A new documentary highlights the life and legacy of federal judge Robert Merhige
May 20, 2018
Photo from the Richmond Times-Dispatch Collection courtesy The Valentine
“I don’t know what you want to write about me for,” Judge Robert R. Merhige Jr., genially said to Richmond Mercury reporter Lynn Darling in early 1973. “I’m just somebody doing his job, that’s all.”
As U.S. District Court judge in Virginia’s Eastern District, Merhige became, as Darling put it, “one of the most active and controversial federal judges in the nation.” His decisions opened the University of Virginia to women, gave the first legal recognition that the Vietnam conflict met the criteria for a full-on war, allowed for reforms in the state penal system and, most roiling, brought about the integration of Richmond public schools through mass busing.
The late Merhige’s life and career — chronicled in a 1992 biography, “May It Please the Court,” by University of Richmond law professor Ronald J. Bacigal — are revisited in a documentary in progress, “The Judge,” directed by Richmond filmmaker Robert Griffith and co-produced with artist Al Calderaro. The idea for the documentary originated when Calderaro met Merhige’s son, Mark, who owned the gallery space the artist rented. This spring, the filmmakers are conducting interviews and editing footage. A four-year project, the film is slated for release this fall through a new nonprofit Griffith and Calderaro formed called The American Documentary Film Fund.
Calderaro says of Robert Merhige, “He was essentially a Frank Capra character,” referring to the director of “It’s a Wonderful Life” and “Mr. Smith Goes to Washington.” “He was committed to the law as the great leveler; everybody is equal.”
Born in 1919 and raised on New York’s Long Island, Merhige attended High Point College in North Carolina on a basketball-football scholarship. There, he witnessed for the first time the effects of racial segregation.
“Segregation didn’t make any sense to him,” says Calderaro, “because it wasn’t fair or right. All the historical tentacles that segregation bred in resistance to change … the judge didn’t have any of that.”
A job as the assistant football coach for St. Christopher’s School brought him to Richmond in 1940. He soon enrolled in T.C. Williams School of Law, passed the Virginia bar exam during his second year and graduated among the top three of his class. He enlisted in the Air Force the day after the Japanese attack on Pearl Harbor and served as a radar jammer on B-17 bombers over Europe. During one run, the bomb bays opened, but the payload release failed. Merhige stood on a 6-inch-wide platform to kick the bombs out of the aircraft while the bouncing ship avoided anti-aircraft fire.
Back in Richmond, he partnered with Leith Bremner, a highly regarded trial lawyer. Merhige established a demanding daily schedule in which he began working at 2 a.m., went to court five days a week, and came home for dinner, a drink and bed. The work established, in Darling’s description, “a flamboyant civil and criminal practice,” which, combined with his real estate investments, made him well off. But the pace was exhausting. Merhige escaped for six months in 1965 to the Spanish island of Mallorca with his wife, Shirley, then returned to his practice and moved into a new house.
Filmmakers Robert Griffith (left) and Al Calderaro (center) interview Robert E. Payne, a senior judge of the U. S. District Court for the Eastern District of Virginia in Richmond. (Photo by Kent Eanes courtesy Robert Griffith)
When Congress added two federal judgeships for Virginia, then-President Lyndon B. Johnson called to see Merhige about the Eastern District seat.
“I think some Richmond people were perplexed,” Griffith says. “[Merhige] wasn’t from Richmond, he didn’t have any family connections.”
He considered turning down the post, which involved a substantial pay cut, until he walked into the Oval Office and Johnson said, “Bob, I need you down there.” Merhige later recalled, “I did then what any red-blooded American would do in that situation: I said, ‘Yes, sir, Mr. President.’ ”
He ended his 21-year private practice career on Aug. 31, 1967, when he took his oath of office and entered the courtroom in the old U.S. Postal Service building on Main Street. Three weeks later, H. Rap Brown, then a civil rights activist and leader of the Student Nonviolent Coordinating Committee, stood before him with lawyer William Kunstler on a habeas corpus plea, seeking release after being charged with inciting a riot during a speech in Maryland. Merhige released Brown into Kunstler’s protective custody, but Brown returned a year later, after his arrest in New Orleans while carrying a gun. Merhige forfeited his bond, and Brown went to jail.
More cases followed, including draft resisters and protesters. Darling wrote, “School integration cases that had slumbered on the dockets for years strode into the courts in the wake of new Supreme Court decisions.” Merhige’s efficiency earned his court the nickname “rocket docket.” His decisions held up, too — fewer than 5 percent of his rulings were overturned.
A growing chorus, meanwhile, insisted that the judge’s thirst for power was causing him to exceed his authority. Virginia lawmaker Edwin H. Ragsdale wanted Merhige to be impeached, hinting darkly to Darling, “If the people can’t rid themselves of Merhige through the law, they may start looking outside the law for the answer.”
At the height of the busing controversy, protesters marched in front of Merhige’s house; the family dog, Cappy, was bound and shot (but survived); and segregationists burned the cottage where his mother-in-law lived. The family received 24-hour protection by federal marshals for about a year. He later told the Richmond Times-Dispatch, “I thought people would say, ‘We don’t like the little S.O.B., but he’s following the law.’ That didn’t happen.”
After 31 years on the bench, Merhige retired in 1998 and joined the firm of Hunton & Williams. He died Feb. 18, 2005, after undergoing open-heart surgery at VCU Medical Center.
As a judge, Merhige’s resolve was unwavering. He told Darling, “I get tired, like any other person, but … I never go to bed thinking I’m not going back there, in the morning, early, because there’s work to be done.”
Merhige Files
Here are some of the judge’s high-profile cases that are highlighted in the documentary.
School Desegregation
Starting in 1970, Judge Robert R. Merhige Jr. issued a series of rulings designed to integrate Richmond schools. In January 1972, he ordered the consolidation of the Richmond, Henrico and Chesterfield school systems to achieve desegregation in Bradley v. School Board of City of Richmond. The 4th U.S. Circuit Court of Appeals overturned that ruling on June 6, 1972, and the U.S. Supreme Court declined on a 4-4 vote to review the case, with Justice Lewis Powell, a former Richmond School Board chairman, recusing himself.
Gender Equality
As part of a three-judge panel in 1970, Merhige wrote the order admitting women in the case of Kirstein v. Rector and Visitors of the University of Virginia.
Kepone Pollution
On Oct. 5, 1976, Merhige fined Allied Chemical Corp. $13.2 million for secretly dumping the toxic chemical Kepone, used as insecticide, into the James River at a Hopewell plant after the company pleaded no contest to 940 criminal pollution counts in United States v. Allied Chemical Corp. He later reduced the fine to $5 million when Allied agreed to establish an $8 million endowment to improve the environment.
Dalkon Shield
This complex case involved a faulty intrauterine contraceptive device (IUD) called the Dalkon Shield that was marketed by A.H. Robins Co. Merhige approved a reorganization of the company under federal bankruptcy law in July 1988. The reorganization created a $2.5 billion trust fund to compensate an estimated 300,000 claimants, who said the device caused infections, sterility, miscarriages and birth defects.
