Super Lawyers Pro Bono Award
Published in: Northern California Super Lawyers 2010 — August 2010

Remembering the St. Louis

By Erik Lundegaard

Robert Rubin has made protecting civil liberties his life’s work

In March 1993, Robert Rubin, litigation director of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, flew in a C-130 cargo plane to Guantanamo Bay, Cuba, to visit his clients, about 250 HIV-positive Haitian refugees on a hunger strike. He didn’t accomplish what he hoped to accomplish, then got kicked out for doing what he didn’t do. Some might call the trip a failure. Not Rubin.

“I’ve never been as emotionally impacted in a case,” he says from his cluttered, fourth-floor office overlooking The Embarcadero and Pier 14 in San Francisco. “You couldn’t help but be swept up by the courageousness of these people.”

The Haitians, fleeing their country’s political turmoil by boat in November 1991, had been blocked from entering the U.S. by the Coast Guard. Guantanamo was the temporary, neither-here-nor-there solution, and Rubin and his colleagues, Michael Ratner and Harold Koh of Yale University, among other attorneys, were trying to get them into the U.S. where they could pursue their asylum claims. But first the Bush administration, and then the Clinton administration—after promising otherwise during the 1992 campaign—continued a policy of forcible repatriation.

“We’ve been telling them for months, ‘As soon as Clinton’s in, you’re free,’” Rubin says. “And now we go down and tell them, ‘Guess what? Clinton’s in, but you’re out.’ So now I’m not only trying to talk them out of a hunger strike, but I’m trying to talk them out of a hunger strike from a perspective of distrust.”

He never talked them out of their hunger strike. But one evening he visited them on the soccer field where they were sleeping, and in the dark he began telling the story of the St. Louis, a ship that left Germany in May 1939 filled with German Jews. “[The St. Louis is] floating in the waters off the coast of Florida—much as your boats are bobbing off the coast of Florida,” Rubin remembers telling the Haitians. “They telegraph FDR, who tells them, ‘Go back, wait until your visa numbers become current.’ They go back and many perish in the Holocaust.

“Well, I get maybe halfway through this story and I completely lose it. All lawyerly detachment and emotional objectivity is lost. I start seeing not the black faces of Haitians, but the faces of Jews wearing striped uniforms with yellow stars. As a Jew it’s obviously a very powerful experience for me because we swore, ‘Never again’ at the end of World War II; and yet here I was in some way a part of perpetuating the same gross injustice on the Haitians. … They see that, I talk about it, and we’re sobbing. It was a very emotional moment.”

Two days later, Rubin was kicked out of Guantanamo for instigating a riot. “That picture there,” he says quietly, pointing to the bottom of three photos in a single frame on his wall. “I’m holding a small baby and walking around the camp. That was the riot.

“Anyway, I’m being driven off in the Army jeep and a number of Haitians line the road. And they begin chanting, ‘Remember the St. Louis!’ And it was very poignant because … they knew their place in history. They understood that this had happened to another people. There was a sense of solidarity.”

Eventually, after a federal judge ordered that hearings couldn’t be conducted without counsel, the federal government, rather than letting more counsel into Guantanamo, let the Haitians out, and into the U.S., to pursue their claims. As they landed in Miami, waiting on the airport tarmac to embrace them, stood Rubin.

“He’s very passionate, very dedicated to the cause,” says George H. Brown of Gibson Dunn, who is a board member for the Lawyers’ Committee, and co-counsel with Rubin on several voting rights cases. “He’s very persuasive in court because of the passion he brings as well as his ability to draw on decades of work.”

“Robert is a very client-centered person,” says Ratner, currently president of the Center for Constitutional Rights. “[He has] ease in dealing with other human beings—compared to a strictly lawyerly way of approaching people.”

Rubin began practicing in 1979—a year before the country began its rightward march with the election of Ronald Reagan, and 15 years after the heyday of the Civil Rights Movement—and says, “I often bemoan the fact that I was born 10 years too late to really be involved in that.”

Then he tells stories from his career: about getting a temporary injunction that freed 20,000 Central Americans trapped in Brownsville, Texas in the late 1980s; about battling Gov. Pete Wilson and Proposition 187; about holding a press conference on Sept. 12, 2001, announcing that the Lawyers’ Committee was prepared to represent the victims of the inevitable backlash against Muslims; about the Haitians and the St. Louis.

“I feel like I’ve been a participant of the civil rights movement of the last 30 years,” he says.

 

He was born in July 1951, raised in northern New Jersey, and at the age of 5 ran away from a Chinese restaurant because his parents refused to let him order the shrimp with lobster sauce. He knew what he wanted even then.

After graduating from Northwestern in 1973 with a degree in psychology, he got a job in upstate New York teaching at a school for the mentally challenged and emotionally disturbed. He soon discovered that residents were being doped up on Phenobarbital and Thorazine. They walked around like zombies, and if drugs didn’t keep them in line a cattle prod did. “I didn’t know what a whistleblower was at the time, but I was a whistleblower,” Rubin says. He stole the cattle prod and had it photographed. He helped close down the school and testified in the Willowbrook trial on abuses in the New York system. It was a case that brought journalist Geraldo Rivera to the attention of the nation and attorney Bruce Ennis to the attention of Rubin.

“Bruce died several years ago,” Rubin says. “When he died I believe he had argued more times before the U.S. Supreme Court than any lawyer other than the solicitor general. But before that he had been the legal director of the national ACLU. And before that he was legal director of the New York Civil Liberties Union. He was the guy who was handling the Willowbrook case. And I got inspired. I felt like the lights were going off and the buzzers were sounding and all arrows were pointing in one direction: using law as a vehicle for social change.”

He adds: “I didn’t go to law school to go to law school or because daddy was a lawyer, which he wasn’t. I went to law school with purpose. I was out of school in three years. I knew exactly what I wanted to do.”

He got to do it. After graduating from the University of San Diego School of Law in 1978, he went to Mississippi to be the sole staff counsel at the state ACLU office in Jackson. In his first trial he appeared before Judge William Harold Cox, who had recently been voted Man of the Year by the Ku Klux Klan. Cox lived up to the billing. He asked the color of Rubin’s client in a nonracial police brutality case. He mocked Rubin’s accent and beard. He called the 5th Circuit, which often reversed his decisions, “the 5th Circus.” They reversed this one, too, summarily dismissing his judgment and ordering a new trial before a new judge.

The judge on his next case wasn’t much better. Rubin represented Iranian students who were suspended from Mississippi state colleges after demonstrating at the height of the Iranian hostage crisis. “Curiously most of them were for the Shah because they came under his auspices,” Rubin says. Judge Dan Russell, who had a mural behind his bench of black folks playing music on a plantation, didn’t care. “The judge, in order to grant the preliminary injunction,” Rubin says, “has to consider whether or not it would serve the public interest. And so in the open courtroom, with my clients sitting there, he gets to the public interest factor. And he says, ‘There’s no question that the granting of this injunction would greatly disserve the public interest. Because it’s students such as these’—and he starts shaking his finger at my clients—‘who have been holding our country hostage for 67 long days; and students such as these who have been running their country in a chaotic and rebellious manner.’”

And that’s how Rubin, six months out of law school, got to argue before the 5th Circuit. Asked if he ever ran into an impartial judge during his two years in Mississippi, Rubin says, “Well, the 5th Circuit—which is ironic because it’s one of the most conservative circuits today—was a leading progressive voice from the bench: John Minor Wisdom, Homer Thornberry, Frank Johnson. There was one good judge after another. So while in the two years [in Mississippi] I didn’t win a single case at the district court except one, I got them all reversed at the 5th Circuit.”

It was a great experience for a young lawyer, but his wife wanted to return to San Francisco to start a family. So in 1981 he moved from one of the nation’s most conservative states—where the hostess of a party once asked him, in a not necessarily friendly manner, “How does it feel to be a social pariah in the town that you live in?”—to one of its most liberal cities.

 

The lobby for the Lawyers’ Committee for Civil Rights, housed on the fourth floor of the Jim Joseph Building on Steuart, comes as a slight shock to anyone used to the sleek, glass-and-steel look of high-powered law firms. It’s small, with a low ceiling and old, black leather furniture. It feels like it could be the set of a low-budget 1970s film. On one wall there’s a framed black-and-white photo of President Kennedy and the founding of the Lawyers’ Committee for Civil Rights Under Law from June 21, 1963. The plant on the reception desk is half-dying, and there is no receptionist, merely a bell, with a sign, in both Spanish and English, to ring for assistance. Asked about the worst aspect of his job, Rubin mentions how in 2009 several people at his firm were laid off, due to the global financial crisis, “people who were solid, loyal, competent, dedicated workers,” he says. The receptionist was one of them.

Rubin, without the bell being rung, is the first to enter the lobby. It’s 2:30 and he’s on his way out to lunch—a sandwich place over on Market Street. He’s 59, thin, his back hunched from the Parkinson’s disease that was diagnosed five years ago. At times his hands shake, and he says he can have trouble with the “a” and the “s” on the keyboard. His voice is quiet but forceful, and often filled with indignation or wit. Examples:

On the Monterey County voting rights case, which the opposition twice took to the U.S. Supreme Court in the late 1990s on different grounds for dismissal: “I was particularly pleased that they pursued the second issue because the first case was decided on a 9-zip vote. And I didn’t feel it would be a true civil rights victory if Clarence Thomas was on the same side as me. We went up a second time, and, sure enough, it was an 8-1, with Thomas in the dissent. That felt much better.”

On issues of freedom and security in the Patriot Act: “You see these studies saying people are ready to sacrifice personal liberties for security. It’s a false dichotomy. ‘Sure, I’ll trade your personal liberties for my security.’ No, are you willing to give up your rights? ‘His rights. I’ll give up his rights.’”

On the referendum process: “It’s an abdication of responsibility by the legislature. So you end up with policy being made by some guy with an ironing board on a street corner, and you get abominations like 187, and 229, and 227—the bilingual initiative. ... We’ve done so many things to screw up our form of government in the political process. Term limits are another. They’re an abdication of a responsibility by the voters. So it’s the flip side. The legislature abdicates and the people abdicate. And nothing gets done.”

On that election night in 1994, Rubin already had his draft complaint against Prop. 187 ready. “As soon as the hammer is dropped on the 59-41 vote,” he says, “I rush back to the office, put the final touches on the complaint, and go in the next morning and get a TRO [Temporary Restraining Order] stopping the enforcement of the education provisions, which would’ve kicked kids out of school that day.”

What happened? He became a social pariah in the town he lived in. NPR listeners, of all people, gave him grief when he went on the air at KQED. “I get railed on,” he says. “‘How dare you?’ they said. ‘We voted for this. How dare you find a way to thwart the people’s will?’” Rubin responded with a civics lesson. “You’ve got your two branches of government that you and your 51 percent control: the executive and the legislature,” he told them. “But there’s a third branch of government. And it isn’t ruled by majoritarian dictate. It’s ruled by the Constitution and the laws of the state. And when the Constitution says, ‘You shall not discriminate,’ that admonition has to be followed by the court—whether 51 percent of the people think it’s OK to throw kids out of school or not.”

For the first 20 years of his career, Rubin’s focus was primarily immigration rights. He helped write San Francisco’s sanctuary law in 1989. For the last 10, his focus has shifted more to voting rights. He authored portions of the California Voting Rights Act of 2002, emphasizing that at-large elections when characterized by racially polarized voting will produce racially biased results. This last provision has led to controversy.

Rubin, of course, is aware of the more famous Robert Rubin, the former treasury secretary, but there was a day last November when, if you were online, “You didn’t have to go through Robert E. Rubin to get to me,” he says.

It was the day an AP story came out critical of the fact that the only two lawyers to sue under a provision of the 2002 California Voting Rights Act were the two lawyers who helped write the provision: Joaquin Avila and Rubin. The law, according to the article, “makes it easier for lawyers to sue and win financial judgments in cases arising from claims that minorities effectively were shut out of local [at-large] elections.” The story, despite a passing reference to Rubin’s salaried position, also implied that the two lawyers were getting rich from it. Headlined “Jackpot: Lawyers earn fees from law they wrote,” it spread quickly on anti-lawyer blogs.

“It was very biased and one-sided,” Brown says of the article. “They didn’t ask for competing points of views, they didn’t discuss the purpose of public-interest impact litigation. It suggested that these lawyers were in it for the money; but a lawyer like Robert Rubin has dedicated his entire life to public interest work. He’s certainly not in this line of work for the money.”

“I’ll make two points,” adds Brad Seligman, a civil rights attorney with Impact Fund. “The first is voting rights litigation is extremely difficult. It’s often unsuccessful. And unlike many other areas of the law they don’t create any damage pot. The only way to get paid in those cases is if you actually win the case. Then it’s up to a judge to decide how much you get paid. That’s number one. It’s unlike almost every other area of law. There are no rich lawyers doing voting rights cases.

“The second is Robert is an employee of a nonprofit organization. He doesn’t make any money personally from these cases. And his salary level as an employee is way lower than what he could command in private practice. In fact, if he was in private practice, given his reputation and experience, he’d be making a million dollars a year. But he’s working in a nonprofit agency.”

To Rubin, the issue comes back to fairness and fear. “You’ve got a white community in California that is still holding onto power—but they know it’s tenuous,” he says. “The quiet revolution that’s taking place in terms of Latinos assuming power in the school districts and city councils, where we have sued to get district elections, is, on a day-to-day basis, changing the face of California. And it’s scary to white folks. Because they figure, ‘Hell, if they treat us half as bad as we treated them, we’re in big trouble.’”

 

Hady Omar doesn’t remember exactly how he found Rubin. He thinks he looked him up online. But in December 2001 he called the office and explained his case and Rubin took it on.

On Sept. 11, 2001, Omar’s flight from Florida was grounded in Houston, but he made it back to Fort Smith, Ark., and his American wife, Candy, in time for the FBI to pick him up the next day. He was targeted for: a) being Egyptian, and b) buying his plane ticket from the same Kinko’s in Boca Raton that one of the hijackers used. The FBI had questions but Omar wasn’t worried. The next day he took a lie detector test, passed, but instead of going free, the INS took him, in shackles, across state lines, to an office in Oakdale, La., then to a prison in New Orleans, then to a federal penitentiary in Pollock, La. There, while someone videotaped him with a camcorder, he was ordered to strip. There was a body cavity search, and jokes were made, and guards, including female guards, laughed. Finally he was placed in shackles in a 10-foot by 10-foot cell. He told officials he didn’t eat pork so he was served pork twice a day. His hot water was turned off so he stopped bathing. Days turned into weeks turned into months. He lost 20 pounds. He had thoughts of suicide. Finally, after 73 days without charge, he was freed. By then he’d lost his job and many of his friends—the front page of the Fort Smith paper on Sept. 13 featured a four-column photograph of Omar being led away in handcuffs under the headline: “Terror Strikes Home.” He and Candy were forced to sell their car and furniture; they moved in with her father.

That’s when Rubin got involved. “He came to my house several times to work on the case,” Omar says. “He helped me a lot, with my immigration as well, by finding other attorneys to work on my immigration case. Without his help I don’t think I’d be a U.S. citizen today.”

The lawsuit settled out of court. Rubin dismisses the settlement. “Nuisance money,” he says with distaste. The true importance of the case, he says, lies elsewhere.

“The day I filed the complaint,” he says, “[Omar] said, ‘Robert, I can’t thank you enough, this is so great.’ I said, ‘Whoa, hold on a second, we haven’t gotten anywhere yet.’ He said, ‘No, you don’t understand. When I got out of jail, I walked around town with dark glasses and a wool cap over my head so people wouldn’t recognize me. Because if they did, they’d associate me with ‘terrorist.’ Now there’s a picture of me in the paper today, playing with my kids, and saying that I’d been harmed and wronged by the U.S. government. And I can take my glasses and my hat off and hold my head up.’

“You get a million-dollar judgment and you count all the dollars,” Rubin says. “But you get somebody’s pride, their sense of self-esteem, restored, and that just makes it all worthwhile.”

Rubin may have been a social pariah 30 years ago in Mississippi, and on KQED in 1994, and on anti-lawyer blogs last year, but there are two people in Qatar who see him in a different light. “My parents were having a hard time understanding the whole situation,” Omar says. “By me just talking about Robert and my attorneys and how great they were, and how they believed in my case …” His voice trails off. “They never met Robert, but they have his picture hanging in their house. They view him not just as a lawyer but as a hero who tried to save their son.”

 

On the wall of Rubin’s office, among the NAACP awards and moments of triumph in the civil rights movement, there is a framed photo of a girls basketball team, and their coach Robert Rubin, from the 1996-97 independent school league. It was his first year of coaching.

“My coaching philosophy when I was hired by the principal of the school was: ‘Losing offers you greater life lessons than winning,’” he says. “Sports gives you an opportunity to do that, and a safe place to do that, because when you lose typically there’s an opportunity to play another game and improve and do better. And if you can deal with disappointment, and come back and win, you’re learning an important life lesson.”

Of course his team went undefeated: 11-0.

“I went up the principal afterwards,” he says, “and said, ‘I’m really sorry. I didn’t get to teach the girls those important life lessons.’ He says, ‘That’s typical of you. You’re never satisfied.’”

In many ways he isn’t. In one important way he is. “I get to wake up every morning, read the paper, see what’s wrong with the world, and go out and try to do something about it,” he says. “That’s a great luxury.”

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