Reposted from the Virginia State Bar publication Virginia Lawyer
Written by Gordon Hickey
If there are any lawyers in Virginia who don’t know the lasting effect Judge Robert R. Merhige Jr. has had on the law, documentary filmmakers Al Calderaro and Robert Griffith are out to fill them in.
At one time, Merhige was arguably “the most influential judge in the United States,” as is noted in the teaser for the film that Calderaro and Griffith are close to completing. Catch phrases from the cases he handled are familiar to most lawyers, and most anyone else paying attention: Richmond school desegregation, women admitted to the University of Virginia, Kepone, Dalkon Shield, Greensboro massacre, Wounded Knee, Watergate.
Merhige’s rulings desegregated Richmond public schools and admitted women to the University of Virginia. He presided over the case involving the Kepone discharge by Allied Chemical into the James River. He handled the bankruptcy of the A.H. Robins Company after the Dalkon Shield debacle. He was involved in the Watergate trials, rejecting the appeals of three defendants convicted of breaking into Daniel Ellsberg’s office. And he presided over the trials of members of the Ku Klux Klan and American Nazi Party for the murders of Communist Workers’ Party members in Greensboro, North Carolina.
Though he is now admired and often revered, many people hated Merhige, particularly over his ruling desegregating city schools. Those people went so far as to shoot his dog and burn a cottage on his property to the ground.
“We need more people like the judge,” Calderaro said in a recent interview at his Shockoe Slip office when asked about why he and Griffith were making the movie. “We think that those people are out there.”
A major goal is to get the film shown in law schools, he said. “If we can inspire five or ten law students to be like the judge. … Judicial independence is becoming an issue. This is a tough job, your loyalty is to the Constitution, and to the laws of the land, not to the president or whoever it was that appointed you. It’s to the Constitution. If there was anybody who embodies judicial independence, and being willing to do a difficult job, it was Judge Merhige.”
Calderaro and Griffith are managing directors of the American Documentary Film Fund, a non-profit company they started to produce educational documentary films. The Judge, their movie about Merhige, is the first in what they intend to be a series.
Beginning in 1967 when he was appointed by President Johnson, Merhige served on the US District Court for the Eastern District of Virginia. He took senior status in 1986 but continued hearing cases for many more years. He died in 2005.
The film makers have begun assembling a long list of Merhige’s friends and colleagues to offer praise, pictures, and many personal stories. The teaser for The Judge includes comments from former Secretary of Education Anne Holton, who also was a law clerk for Merhige; Rita Ruby, partner at Hunton and Williams and another former law clerk of the judge; The Honorable Robert E. Payne; The Honorable James R. Spencer; the judge’s court reporter, Gilbert F. Halasz; Lewis Powell III, partner at Hunton and Williams and another former law clerk; and former Governor A. Linwood Holton Jr.
Calderaro said Roland Reynolds offered him and Griffith a short film of Merhige relating how he was appointed to the bench. In the video, which was made at the dedication of J. Sergeant Reynolds Community College, Merhige says that he got a call one day from his best friend, J. Sargeant Reynolds, inviting him to go along to the races. While on the road to Washington, Reynolds said he had to make a stop at the White House. When Merhige asked why, Reynolds told him that he was going to recommend that President Johnson put Merhige on the federal bench. The judge objected, saying he thought he shouldn’t be along on such an errand, that it would be unseemly for him to go to that meeting. But Reynolds insisted that they at least walk together through the park. Merhige stopped there and sat on a bench in Lafayette Square while Reynolds went in the White House to nominate his friend.
At the time, Merhige was one of the top defense lawyers in Richmond. He became a lawyer in 1945 after serving during World War II as a crewman on a B-17 bomber.
As a judge, Merhige was known for the “rocket docket.” He had little patience for delays and long witness lists. Once, when he went to West Virginia to hear a case there, he discovered a long backlog of cases, some of them six years old. He ordered pre-trial motions on the case he was hearing within a week and a hearing in thirty days. Merhige then set about cleaning up that long backlog of cases.
“The judge was a big believer in every- body having their day in court,” Calderaro said. When he was in West Virginia, he heard a case, long delayed, for a terminally ill man who had been waiting for six years for his case to go to trial. “The guy lost,” Calderaro said, “But he was so thankful to have his day in court that he thanked the judge profusely.” Merhige “was like a Frank Capra character. He really believed in America and the goodness of America…. Going to court is like going to church.”
Calderaro said the company’s landlord is Merhige’s son, Mark Merhige. The pair started researching the judge after they moved in. “He was just in the middle of all this stuff,” Calderaro said. “In history you keep running into these people.”
The American Documentary Film Fund had enough money to shoot the teaser film, but then delayed further production to work on fund raising. They’ve recently received help from the Mary Morton Parsons Foundation, the Virginia Sargeant Reynolds Foundation, the Virginia Film Office, William and Pamela Royall, S. Buford Scott, and others. They’ve lined up their next set of interviews, including Governor Gerald Baliles, Henry Marsh, Senator Tim Kaine, and Tommy Rockhold, a US marshal who guarded the Merhiges’ house during the school desegregation case. They have a picture of the marshal, who was assigned to Mark Merhige, standing outside the house.
Their movie is in production, but fund- ing is still an issue. Griffith said they will be expanding their interviews to people from other states where Merhige had an impact. He imagines they’ll be including people in the film that they haven’t yet even heard of. “It’s a documentary. It’s an ongoing process.” They continue to look for pictures and archival material, stories, and funding.
If they can raise enough money, they intend to finish the film this year. They will then work on getting it on TV and into film festivals.
“After we make this movie, the judge is immortal,” Griffith said. “His legacy goes on.”
