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Two Old Judges Stuck All Night in the Lift.

Fortnightly Fiction.




IN THE OHIO State House, there was of course a proper elevator in the front of the building, and that’s what it was called – the elevator.  The one at the back, however, was called the lift. It dated back to the time when the State House was built, and it was very small.  Most of the time, it was used to carry building materials or small tables and chairs up to the Supreme Court chambers.  Eventually, it carried my grandfather’s bust to the second floor, where it could still be seen when I last visited, which is already a long time ago. But one night, it carried the two oldest and fattest Supreme Court judges halfway up — and then got stuck. This was a story my father liked to tell and one I also loved to hear.

The event in question occurred well after the dedication of his own father’s bust. That event weighed on him as if he had carried the bust up the long flight of marble stairs on his own back.  At that time he was still new to the court having run for his father’s unexpired term.  All of his colleagues, of course, had only a few months before been his father’s colleagues, and he himself a judge on the Columbus municipal court bench.  There we all stood – sons, brothers, sisters, cousins, aunts – listening to one Supreme Court justice after another praising the jurisprudence of the recently deceased Senior Judge, who still, by the way, holds the record of serving longer than any state Supreme Court justice on any bench in the country.

The most impressive remarks, I thought, were given by justices Stewart and Zimmerman.  They both reminded me of pictures of William Howard Taft, the three-hundred-pound US Supreme court justice who became, briefly, president of the United States.  They were not quite as hefty as Taft, but they both had a huge belly, tightly bound by a waistcoat sporting a chain with a pocket watch and Phi Beta Kappa key at the end, both tucked into a little pouch on the waistcoat. Looking at their watches, they could show off their smarts by dangling the Phi Beta Kappa key. The shortest speech that day was by the Chief Justice, Hembler – my father called him Himmler – who had actually feared that my grandfather might try to depose him eventually.  I think he must have been relieved when he read in his morning paper that the Senior Judge had died falling from the attic window of his house while trying to direct the work of exterminators who were trying to get rid of the squirrels who lived between his walls.  I still have the clipping: “Dean of Ohio Judges Dies,” the headline reads. And then there is a picture of the big stone house with an arrow showing the trajectory of the fall.  When my father didn’t call the Chief Justice Himmler, he called him “the chef.”  Hembler was something of a gourmet and, had he lived long enough, he probably would have attained the weight of his two fat colleagues.  I used to laugh when everyone called him “Chief,” as if he were an Apache. Only my father called him chef.


IN THOSE DAYS, I was in my senior year of high school, and it was 1959. I attended the “University School,” a hothouse of privilege run by Ohio State on the progressive education principles of philosopher John Dewey.  Since we were all technically Ohio State University students we were allowed to audit or even take for credit any course that the university offered.  I was sitting in on a creative writing class taught by Peter Taylor, known in those days as part of a “stable” of authors more or less on retainer from The New Yorker.  He had signed one of those “first reading” contracts, which meant that The New Yorker had the right of first refusal. It also meant that Taylor could hit them up for loans and advances, which he regularly did.  My father never quite understood what my literary ambitions were at the time, or why I should have any literary ambitions at all.  The most he would say when asked what his son intended to do in life was to say, with great embarrassment, “Oh, he wants to write a best seller.”  This made me furious since what I really wanted to do was to derange my senses and write like Arthur Rimbaud or Henry Miller. Taylor, although he was a very nice man, seemed to me a sellout.  He had recently been to Paris for a year, but he had returned – to Ohio State, of all places.  Why hadn’t he stayed in Paris like Hemingway and Fitzgerald?  (I was, you know, eighteen.)

But this story is not about me but about my father.  After a couple of years on the Supreme Court he used to begin our dinner table conversation by blurting out – “Well the God-damned Chef Himmler,” or “You can’t imagine what The Chef put on our plates today!  Two rotten, stinking fish!”  And then we’d get the story of some perceived slight, or a plot involving the Chief Justice, Stewart and Zimmerman to humiliate him in some way.  He was always seen, or he thought he was seen, as his father’s son – and found lacking.

The first problem that my father had with these older justices had to do with his desire to have a law clerk rather than a secretary.  When he floated the idea, The Chef looked over his pince-nez and said: “Miss Jennifer was always good enough for your father.”  “But,” my own father argued, “she’s a secretary and not a law clerk. I think we need professional help with legal research.”  No one actually said, “Can’t you do your own legal research,” but that’s what he heard.  U.S. Supreme Court Justices had law clerks, why shouldn’t state supreme courts?  It in fact was a good idea, and it finally caught on.  All of the Ohio State Supreme Court justices now have law clerks.  But in 1959 it seemed to be only a sign to the old justices that my father was lazy.  The inference made him furious.  Somehow, and I’m not quite sure how the machinery turned, Miss Jennifer was retired and my father’s first law clerk, who followed him from the Municipal Court, was hired.  He was very loyal and in fact named his son after my father (which, since my name is the same, means that his son is also named after me).

THEN THERE WAS the contest among them regarding appeals to the U.S. Supreme Court.  They were all Ohio conservatives, but this was the era of the Warren Court in Washington.  In his first few years on the bench, my poor father held the record for reversals.  Many of the opinions overturning his own were written by Justice Douglas, the most liberal justice of all in those days. All of the Ohio Justices got overturned, and they all hated Douglas – Douglas and Warren himself. I remember billboards in those days reading, “Impeach Earl Warren.”  My father was all for that, and it was about the only matter about which he agreed with Himmler, Stewart, and Zimmerman.  By some kind of strange coincidence, my cousin Robert was in those days a U.S. Supreme Court page.  It was a strange thing to hear my father phoning his nephew in Washington trying to figure out the dynamics of his adversaries.  “Why do they keep reversing me, Robert?” he’d ask. Embarrassed, Robert said he had no idea.

Robert, like my father, did eventually have some good stories to tell. My favorite has to do with a folded note he was asked to pass from a back room to Chief Justice Warren.  He did so. After reading the note, Warren signaled him, re-folded the note, and asked him to pass it on to Justice Douglas.  Douglas then asked him to pass the note to Justice Black – and then from Black to Harlan, from Harlan to Frankfurter, Frankfurter to Brennan, and so on.  At the end of the session my cousin was cleaning up around the bench and found the note. It said: “Yankees 3, Dodgers 2.”   In our family, only Robert and I are Democrats.

I liked it that Justice Douglas liked the ladies.  As a friend said many years later, “Let’s do try to keep him in virgins in order to keep those opinions coming down.”  I suppose now he’d be hung out to dry for sexual harassment since everyone else is.  Even I have had some problems in that department. Peter Taylor was evidently infatuated with Katherine Anne Porter, even after she was eighty years old. Me, I preferred twenty-year-old students, but that’s another story.  Some of Douglas’s reversals of my father’s opinions are only a paragraph long. As if to say, “Judge, you’re only worth these few words.”

While I was still living at home – I went to Ohio State after I graduated from the University School – my father’s childhood rheumatic fever began catching up with him.  He talked now and again about retiring from the Court.  But he in fact stayed on for many years longer mainly because of one event, an account of which I have been promising.  It must have occurred in the early 1960s, although I’m a little vague about dates these days.  At any rate, one night he sat down to dinner with a wide grin on his face. He didn’t begin, as usual, by saying “The God-damned Chef Himmler,” although Hembler was still Chief Justice.  And he didn’t complain about some reversal of an opinion.  He said, “A funny thing happened this morning.”

IN THOSE DAYS, my father didn’t laugh much or think very many things were “funny.”  But the grin when he began to tell the story was very refreshing and real.

A little background to it is still required. Stewart and Zimmerman were from Cincinnati and Cleveland respectively. For that reason, they stayed in Columbus from Monday night to Friday night, pulling out a foldup beds in their offices. There they would sleep, following dinners at two separate downtown restaurants. They never ate dinner together.  They in fact disliked each other almost as much as they disliked my father. Stewart sat at the far left of the bench, and Zimmerman at the far right.  As they were both arch-conservatives, this right and left meant nothing much, except that they were separated by five other justices.  They were both inclined to interrupt lawyers with questions and, when things got heated, shout at each other from opposite ends of the bench.  Sometimes only Hembler could bring them to order.  At any rate, theirs were the only windows that shown out, lighted, over Columbus from the State House.

One night, arriving back from their separate restaurants at about 8:00 pm, they met at “the lift.”  Nodding politely to each other, they both got in and one of them pushed the button that said “Supreme Court of Ohio.”  The lift began to ascend, and then it suddenly stopped.  There they stood, belly to belly.  They both pushed several other buttons, including one that said “emergency.”  Nothing happened at all. After half an hour of pushing and re-pushing all of the buttons, they realized that they were truly stuck.  “Well and truly,” as Hemingway might have said. They were eyeball to eyeball as well as belly to belly. They were toe to toe. They were kneecap to kneecap.  They were . . . er, one shouldn’t say.  Not only were they regularly seated at opposite ends of the bench, but they were also, at that moment, on opposite sides of what looked like it would be a 3-4 decision. As it happened, my father was the one justice who hadn’t yet made up his mind.

My father was not usually an early riser, though my grandfather had been. He, the latter, would begin making the family rounds at 6:30 a.m.  First he would visit his daughter’s family in Bexley, then he’d circle around to Worthington to visit his granddaughter.  Finally, he’d come through the old North Side and drop in on us. He was always at work by 8:00.  As for my father, he’d sleep as long as he could, then realize that he hadn’t read his briefs very carefully the night before. Now and then, he’d get up early and head downtown, intending to read the briefs more carefully once he got to his office.  I pause for a moment to appreciate his parking space at the State House.  It was within a short walk of the best movie theatres in town, the best department stores, the best hotels.  My girlfriends were always impressed when I’d pull up to a kind of guard post and pull out my ID.  We’d park there and dash to whatever event we were attending.  After it was over, my father’s private parking space was the best and darkest place to take a girl in town.  There we’d engage in the kind of (minimal) sex that was permissible in those days.  Besides kissing girls in the parking lot, I enjoyed stopping by the international newsstand near the State House at the corner of Broad and High streets.  It had newspapers from all over the world, some even printed in Chinese, Arabic, and Cyrillic.  Jimmy, the newspaper vendor, knew me well and always asked “How’s the judge,” meaning my father.  Then he’d reach me down from a high shelf one of the shrouded “men’s magazines” of the period, saying “I’ll put it on your tab.”  Since I had no tab, it was understood that the contraband was a gift.  Jimmy was an intelligent and sensitive man. He always had classical music playing on his radio and would urge me to “go to the symphony.” But back to my father and his fellow justices.

He was familiar, of course, with the early morning ablutions of his two antagonistic colleagues. On those days when he arrived early enough, Stewart and Zimmerman were in their bathrobes, washing and shaving at the bathroom sink, eating a sweet roll or two for breakfast, and getting properly dressed and robed for the day.  No one was surprised to find them walking the hallway clutching a toothbrush and towel.  Sometimes their fellow justices even indulged in risqué jokes, asking which secretaries had spent the night in their respective beds. But on this particular morning they were nowhere to be seen.

MY FATHER, AS usual, took the front elevator up to the Supreme Court’s floor. Arriving at his office, he was surprised to hear nothing at all from the offices of Zimmerman and Stewart.  He sat down at his desk and pulled out the briefs. He had plenty of time.  In the quiet of the early morning, he had the distinct sense of hearing a strange sound from somewhere.  He shook it off.  When he heard the sound again, he stood up and looked down the hallway in both directions. He saw nothing. It was still early for any of the custodial staff to arrive; his own law clerk wasn’t due to arrive until 9:00.  At 7:30 he was almost certain that he could hear a voice, and maybe even two voices, shouting “Help!”

You can imagine the rest for yourself. Half an hour later my father realized that all of the shouting was coming from the “lift” at the back of the building. When he got there, he recognized the voices of Zimmerman and Stewart.

“Are you OK?” my father shouted.

“We’re stuck in the lift!” one of them shouted back.

“I can tell that’s the case,” said my father.

“Can you get us out?” said one of them.

“I don’t think so,” said my father.

“Please find someone who can,” said one of them.

“Keep calm,” my father said. “I’ll go for help.

But my father could find no help as it was still early in the morning and none of the maintenance people had arrived.  What he did find was a room full of tools and ladders.  Taking a large screwdriver with him, he returned to the elevator door thinking he would somehow try to pry it open.  First, though, he pushed the button, and the door opened wide without any prying.  His colleagues were not facing him inside the open car as he hoped they might be. The car in fact was stuck so that the top of it was about three feet below the bottom of the open doors. My father could only get a glimpse of this because the doors, having opened when he pressed the button, now closed.

Then my father had a good idea. “I think I can get you out,” he shouted to his colleagues. “Just hang on a little longer.”

Back he went to the room full of tools and hauled out two ladders. Having dragged them down the hall, the screwdriver in his pocket, he once again pushed the elevator button. When the door opened he quickly put one of the ladders flat on the floor between the open door and the far wall of the elevator shaft. In a moment the door tried to automatically close itself but could not. There was a lot of grinding and other kinds of noise followed by a kind of pop. The doors would stay open.

“There’s a kind of metal plate on the top of the car,” my father shouted. It’s got big screws holding it on and I think I can get it off with a screwdriver. I’m now getting into the shaft and you’ll hear me moving around on top of you.”

He did just that, knelt down and began taking out the screws that held down the metal plate.  The justices inside were muttering things like “Thank God,” “I’ve really got to pee,” and “Has the Chief arrived yet?”

My father told them he was going to lift down a second ladder once he had the plate off and that they should use that to exit from their long captivity.  In due course he was able to do that and slowly the corpulent justices climbed out, given a hand by my father who was now standing in the open elevator doorway. “Heave-ho, Stewart” he said. “Heave-ho” Zimmerman.”  Stewart and Zimmerman heaved-ho. Out they came, slowly, painfully, stiff and embarrassed.  Fatly they emerged, both mumbling “thank you, thank you.”

My father’s triumph did not go unrewarded. By the time that Stewart and Zimmerman got themselves cleaned up and onto the bench at their opposite ends, they more or less drowsed through oral arguments.  Like my father, they of course had also failed to read the briefs regarding the morning’s cases.  At recess, my father, passing down the hallway, saw both of them having a stiff drink from the whisky bottles they kept in the bottom drawers of their respective desks.  During conference, Zimmerman seemed to be pretty much his usual self, smoking a cigar and using the nineteenth century brass spittoon by the side of his chair. Stewart didn’t look so well, drifting in and out of the deliberations led by Hembler. When it came to a vote on the case where everyone was expecting a 3-4 decision, Stewart surprised everyone by saying “I vote like judge Matthews.”  But Judge Matthews, my father, hadn’t voted yet.  The Chief, looking over his pince-nez at my father, said “But I don’t think judge Matthews has declared himself.” My father said decisively, “I declare for the plaintiff.”  Zimmerman suddenly said: “I declare for the plaintiff as well.”  So it was settled 5-2 rather than the expected 3-4.  My father, delighted, was assigned the opinion – which was eventually reversed on appeal to the U.S. Supreme Court.

And so even through the gloom of his illness and eventual retirement my father had this one amusing story to tell, a kind of scherzo he’d play off against all of the adagios having to do with his unhappy years on the Ohio Supreme Court.  During one of my conferences with Peter Taylor, I told him the story. He laughed and laughed, clearly enjoying it.  “Why,” he said, “don’t you write that up.  It would make a good short story.”  I didn’t do it then, but now I have. I think I’ll send it to the New Yorker.

John Matthias is editor emeritus of Notre Dame Review, emeritus professor of English at Notre Dame and the author of some thirty books of poetry, translation, criticism, and scholarship. Shearsman Books published his three volumes of Collected Poems, as well as the uncollected long poem, Trigons, two more volumes of poetry, Complayntes for Doctor Neuro and Acoustic Shadows and a novel, Different Kinds of Music. Tales Tall & Short— Fictional, Factual and In Between  was published by Dos Madres in 2020 and The New Yorker recently published his widely read memoir, “Living with a Visionary.” His Fortnightly essay on Peter Taylor is here.

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