Years ago, in the 1950s, there was a great musical on Broadway starring Gwen Vernon and Ray Walston. The musical was "Damn Yankees." In that show two songs were outstanding - "Shoeless Joe From Hannibal, Missouri ," and "You Gotta Have Heart." "You Gotta Have Heart" went:

"You've gotta have heart
All you really need is heart
When the odds are sayin' you'll never win
That's when the grin should start
You've gotta have hope
Musn't sit around and mope ...
You've gotta have heart
Miles n' miles n' miles of heart
Oh, it's fine to be a genius of course
But keep that old horse
Before the cart
First, you've gotta have heart."

In preparing for these remarks I tried to think of one word, one characteristic of Judge McMillian, which would capture his complete psyche. And that song captures Ted - he had "heart." He had it all his life.

I first met Judge McMillian when he entered the law school with that great class of 1949. In my memory's eye, I can still see, after more than 50 years, the young men, many of whom had just returned from World War II. Sadly, many are not with us anymore. Ted had recently been discharged from the Signal Corp as a part of that "Greatest Generation," many of whom lie in distinguished graves throughout the world and who literally saved the world.

I hate to show my age but years ago in early television, there was a weekly program starring Richard Carlson titled, "I Led Three Lives." In that television series Herb Philbruch led three separate lives in World War II.

In some ways, Judge McMillian, too, led three lives all rolled into one - he was something of a human trinity - (1) his personal life (2) his legal and judicial life and (3) his life dedicated to the public service and to the St. Louis community.

First, his personal life. He was born on January 28, 1919 in a run-down neighborhood at 14th and Papin. His father was once a professional boxer. Like many of his generation, he was born poor, and the product of a broken home. His mother remarried; his stepfather was good to him and he had the guidance of his thrifty, sacrificing grandmother who urged him to get an education. In high school, a friend, Horatio McNeal, would talk about the honor roll and he listened. He worked after school at a grocery store and graduated from Vashon High School in three and a half years. He attended Stowe Teachers College before going to Lincoln University . After graduation, he wanted to study physics, but first had to earn sufficient money to get a higher degree. He worked on the Frisco Railroad's dining car, but soon was drafted into the Army as a buck private. In 1943, he was commissioned a first lieutenant, married Minnie and ran the 93rd Division's Radio School . In the service, he inquired of a friend, a major, about becoming a lawyer: apparently his first interest in the law. In November 1946, he was discharged and intent on being either a physicist or physician. Though he applied to medical school, he would not be able to enter until 1951. That is when he applied to the School, and everything started from there. Life was not easy in law school either. Before classes began, he worked at a shoe company washing windows.

Ted's personal life and character were pole stars that we all could emulate. His personal life, although born with original sin, was almost without blemish. No one is perfect. Devoted to his family, he had his share of tragedy. In this age of seeming incivility, he was civil to all he met. In an age of rudeness, he was always kind, polite and compassionate. He was dedicated to his faith. In an age of violence, he was a peaceful, pleasant and personable man. Today, there seems to be a lack of courtesy among too many of us. Today there seems to be no room for reason, compromise or gentleness. But Ted embodied all these humane characteristics.

These simple personal characteristics spill over into his second, legal and judicial, life. After being admitted to the Missouri Bar in 1949, he and his friend, Al Lynch, opened a law office, which represented many clients from 1949 through 1953. In 1953 he joined the staff of the circuit attorney's office under the direction of Ed Dowd. Ed's brother, Bob, who was Ted's friend, helped him get that job. There he tried many cases and developed trial expertise. In March of 1956, he was appointed by Governor Donnelly to the circuit bench for the city of St. Louis , and served in that capacity until 1972. While a circuit judge, he served in various divisions, but was most proud of serving as the juvenile court judge from 1965 to 1971. There he tried to help young kids in trouble. The more he found out about young people in trouble, the more he realized that often the trouble was not their making. He urged reform and suggested a Missouri Youth Authority to administer a system of training schools throughout the state.

In 1972 he was appointed by Governor Hearnes to the Missouri Court of Appeals, St. Louis District. There, we served together - with chambers next door to each other. Ted, Judge George F. Gunn and I opened up a division in St. Louis County , and the three of us have often said these were our happiest days.

In the circuit attorney's office, he honed his skills as a trial lawyer, as a circuit judge he ruled wisely, and he wrote scholarly as a state appellate judge. From his first opinion in the Missouri Court of Appeals, Fowler v. Laclede Gas Co., to his last on that court, there were 261 opinions in between.

On September 23, 1978, he was appointed to the Eighth Circuit by President Carter. There he served until his passing. Since 1978, he wrote over a thousand opinions, the first being United States v. Hauck.

This second life - that of advocate and especially judge - was perhaps Judge McMillian's greatest contribution. Other than residency requirements of a district judge, there do not seem to be any particular qualifications to being a federal judge. Society expects its judges to be learned in the law, and to have wisdom, knowledge, patience, courtesy, mercy and consideration. We expect our judges to be just and tactful, to be free from even the appearance of impropriety and their personal behavior to be beyond reproach. How much can we, as a society, expect? With all these attributes and all these characteristics, we should not make such men and women judges: in my church, we would canonize them.

In a small book by Judge Botein, he discusses the role of judge. The judge is perched upon a vantage spot overlooking the arena, aloof from the passions of the case, walled off from the parties and must play an impartial role - be considerate and gentle, yet stern when necessary. In the courtroom the judge has great power, even broader than the president; when the judge enters, everyone rises, and lawyers are deferential. The judge is the showcase of our legal system. The least error a judge may commit is to be wrong on the law. The ordinary citizen does not care much whether the decision fits neatly in a legal precedent category; what the citizen is concerned about is whether in a particular case, the citizen receives what he believes to be a fair hearing, and a just decision that analyzes the facts and the law. And, as Lord Devlin puts it, the judge is the "guardian" of the law and is the person in charge of the maintenance of the "fabric" of the law. As an appellate judge, when the parties are faceless and not before the court, and where the clash of fire or the intensity of the combat are not preserved on a cold written page, the judge must decide and justify that decision in a reasoned legal opinion, written often in the middle of the night, with sweat and sometimes tears.

All this is what Ted McMillian has done in the last 50 years of the 20th century.

The third quintessence of Judge McMillian's life was his service to his beloved community. He served on numerous boards of civic organizations. He was the first board chairman of the Human Development Corporation in President Johnson's war on poverty from 1965 to 1977. He was a member of the Board of Catholic Charities of the city of St. Louis and a member of the Executive Committee of the St. Louis Crime Commission, and was a past president and founder of the Herbert Hoover Boys and Girls Club of St. Louis. How did he find the time? How many lives did he touch and improve in all these endeavors?

Not only was he in civic affairs, but he also gave of his talents to his alma mater. Over the years, he served as faculty member of the law school and contributed to various law journals.

Because of all his worldly activities he received many awards and honors. There are so many that he needed five walls to put up his plaques.

Surely he has left his imprint on this community. His unselfish sacrifices have made the St. Louis community a little better. He has uplifted the poor and the underprivileged. Can one contribute any more?

In living all three aspects of his long life, he made a lasting impact on the law and the community. He always recognized that the law substitutes orderly ritual for "the rule of tooth and claw" and that the law in a civilized community gives society a means, forged by centuries of experience, to resolve disputes. That is all we have "standing between us and the tyranny of . unbridled undisciplined feeling."

In discussing the man Ted was and the lifelong activities he pursued, I can't help but find the words of Judge Learned Hand particularly appropriate: "A judge's life, like every other, has in it much of drudgery, senseless bickerings, stupid obstinances, captious pettifogging . these take an inordinate part of his time; they harass and befog the unhappy wretch, and at times almost drive him from that bench . but there is something else that makes it . a delectable calling. For when the case is all in, and the turmoil stops, and after he is left alone, things begin to take form. From his pen or in his head . out of the murk the pattern emerges . the expression of what he has seen and what he therefore made, the impress of his self upon the not-self, upon the hitherto formless material . over which he has now becomes the master. That is a pleasure that nobody who has felt it will be likely to underrate."

Now that he is no longer with us, history will judge Ted McMillian on the "content of his character," and, when all is said and done, he can look back on these years and repeat to himself those holy words written two thousand years ago by St. Paul to Timothy:

"I have fought a good fight, I have finished my course, I have kept the faith: Henceforth there is laid up for me a crown of righteousness, which the Lord, the righteous judge shall give me."

Judge Joseph J. Simeone
Eulogy to Judge McMillian, based on remarks
given at the September 10, 2003 presentation of
McMillian's portrait at the U.S. Court of Appeals for the Eighth Circuit.

A Collection of Memories: friends, classmates and colleagues share a few words

It has been my privilege to serve as one of Judge McMillian's law clerks for more than 20 years.

It has been a most rewarding experience, but one I suspect began by mistake. In the late 1970s, the Missouri Court of Appeals judges collectively interviewed prospective law clerks. Facing a conference table full of judges who were all older men was a daunting experience, particularly for someone like me. I had gone to law school primarily because graduate school in my field, European intellectual history plus some art history, would have virtually guaranteed underemployment, if not unemployment. Because Judge McMillian had something else to do that day, he did not participate in the interviews. Needless to say, I was surprised when he offered me the position as his law clerk for the next term. To this day, although Judge McMillian gallantly denied it, I am sure he thought I was someone else!

That was in 1976, and my clerkship started in 1977. In the fall of 1978, President Carter nominated Judge McMillian to succeed Judge William H. Webster on the U.S. Court of Appeals for the Eighth Circuit, and Pam Bucy, his intern at the time, now the Bainbridge Professor of Law at the University of Alabama School of Law, and I followed Judge McMillian to the Eighth Circuit as his first law clerks at that court. As it turned out, we were just the first of many Missouri Court of Appeals employees to migrate from the Civil Courts Building to the federal courthouse across the street. Law clerks traditionally serve one-year terms. Most law clerks continue to do so, although there are now quite a few "career" law clerks, so many in fact that the Administrative Office of the United States Courts considers career law clerks to be something of a personnel problem. In the late 1970s it was almost unheard of to make a career out of a clerkship. I vaguely recall the Judge asking me if I would be interested in clerking another year. I was, and since then have served as his law clerk though five chief judges, dozens of co-clerks, one office remodeling and several Macintosh computers.

Any clerkship is an excellent experience, but clerking for Judge McMillian has been a wonderful job. I have enjoyed every day, although perhaps not every oral argument and certainly not every brief. And, although I have occasionally disagreed with Judge McMillian, I have never been disappointed. I would be willing to bet that very few employees can say that about their employers. The Judge really was just as he is described in these testimonials - intelligent, scholarly, courteous and generous. He also worked too hard - his employees always thought he should take some time off! He was extraordinarily patient with even the most confused memoranda and confusing arguments. He really did know almost everyone in St. Louis . I once saw him standing outside on the courthouse steps - he was going to go for a walk for the exercise - and I returned an hour later to find him in exactly the same place; so many people had stopped to talk to him that he never got to go for his walk. His ability to clarify issues and cite holdings with a near-photographic memory was unsurpassed and not a little unnerving, especially since he typically outlined the analysis, in meticulous detail, while talking on the phone.

Those fearful of an imperial, or imperious, federal judiciary were reassured to know that, for someone in such a prestigious and powerful position, Judge McMillian was extraordinarily modest and unassuming. Even though he spent most of his professional life making judgments, he was scrupulously fair and non-judgmental. He was impartial, but not indifferent. In fact, he was passionate about many things, from civil rights to crab cakes. The Judge was also curious; he was genuinely interested in people and their problems and was intrigued by new things. Federal appellate judges are by necessity generalists (at least on the circuit courts of appeals, arguably less so on the newer specialized courts of appeals), and his interest in and openness to new subjects, new ideas and new legal arguments was infectious. Of course, that willingness to consider new legal arguments did not mean that the Judge would agree with them, much less adopt them, despite the enthusiastic endorsement of his law clerks.

Judge McMillian was also a realist. He never forgot that the law and the cases he decided affected real people and had real consequences. That realism counterbalances the theory and ideology of appellate arguments. I think the Judge's realism was the source of his famous equanimity; despite personal and professional experiences that would embitter or enrage most people, he was neither bitter nor angry. He was, however, under no illusion about the law or lawyers, or judges for that matter. Judge McMillian kept his faith with the law because, like Sir Thomas More, a reproduction of whose portrait by Holbein hung just inside the Judge's office door, he believed that the law was the best hope for justice. It was that clear-eyed assessment of the utility of the law and its ultimate objective that was Judge McMillian's true legacy, not only to his law clerks, who had the honor and privilege of working for him, but to everyone involved in the administration of justice.

Marilyn Tanaka
Clerk to Judge McMillian,
8th Circuit Court of Appeals
Reprinted from 43 Saint Louis University
Law Journal 1325 (1999).

Judge Theodore McMillian's mere presence nourished all of our spirits, represented possibility and kept us all focused to the task at hand, irrespective of race, gender
or ethnicity.

He believed that one's professional and courteous demeanor were equally as important as one's ability to analyze legal theories and to write
legal briefs.

For a judge like me, he was a blueprint.

Judge Jimmie Edwards, '81
Circuit Judge, City of St. Louis ,
22nd Judicial Circuit

Judge McMillian was a great friend and mentor to me. He was always interested in helping others and inspired and encouraged me to pursue my goal to become a judge. He was, professionally, the epitome of a judge that I would aspire to be - very compassionate, forthright, stood for his beliefs, always treated people with the utmost respect and had the utmost integrity. He was a good friend. I visited him often in his chambers as well as when he was in the hospital sick. Through all his illnesses, he was always the kind of person who never viewed life as death. He never spoke about dying. His focus was always on life and how he could make a difference as a jurist and how he could make a difference in other people's lives.

If there was a parting word that I could say about Judge McMillian, it would be that he fought a good fight; he finished the course, good and faithful servant, well done.

Judge Angela Quigless, '84
Circuit Judge, City of St. Louis ,
22nd Judicial Circuit

Judge McMillian is sorely missed. He was dedicated and worked hard even after achieving senior status. He ignored his many ailments, even self-administering dialysis to facilitate travel to various Eighth Circuit courtrooms to hear arguments. During the past few years I visited him often, looking forward to our conversations. He often queried me about my experiences in court and offered helpful suggestions. I relied on him for advice, as he was a role model for me and for many others. He never hesitated to offer assistance and support to those who needed it. I admired Judge McMillian because of his humility and his dedication to making the world better for others. I admired and respected him not just because of his status, intellect and numerous achievements. I admired and respected him because he was a warm and genuine individual who cared about others more than he did himself. He never lost the common touch.

Judge Donald L. McCullin, '77
Circuit Judge, City of St. Louis ,
22nd Judicial Circuit

Judge McMillian's last year at the law school was my first, but I remember him as the star of the School. That's all I really knew at the time.

Everything else I knew or felt about him came much later. In 1963, my wife and I obtained temporary (pre-adoption) custody of a pair of twin boys, with the adoption decreed about a year later. Judge McMillian presided at both hearings in his (then) capacity as a judge of the (State) Circuit Court in St. Louis . We followed his career with great interest ever since and have never forgotten his kindness. We've lost a good one.

Judge Joseph R. Nacy, '51
Administrative Law Judge, Federal Energy Regulatory Commission - Washington , D.C.

I had the honor of serving the judge as a law clerk from 1973 to 1975 when he was
on the Missouri Court of Appeals. I applied for that position because I already greatly admired the judge from a distance. He was an icon of integrity on the bench and also a focal point of support for his own community in his work as chair of the Human Development Corporation.

But shortly after applying for that position and before the interview, I ran into a problem. While still in law school, which I was then, I had a nighttime job at the old St. Louis Globe Democrat. I was a reporter. The Globe's editorial page had taken a critical editorial position on the judge on the juvenile court bench. I came into work one night, and got what's called a "publisher's special," which is a direct order from the publisher to write a story on a subject chosen by the publisher. The import of the story was to revive the criticism of the judge and his tenure on the juvenile court bench. I wrote the story, as ordered. And to my horror, it was published as a banner front-page headline and they put my byline on it, which I had objected to no avail. Two weeks later, I am in to meet the judge for the interview. There were other highly qualified candidates, I assure you. But the judge hired me. That's the kind of person he was. He chuckled later, but figured that the story was a publisher's special, because he knew what a "publisher's special" was.

In my two short years as his clerk, I learned about the law as an intellectual pursuit and as a method to help others. But most of what I remember from my clerkship was the judge's insistence that everyone - whether judge or clerk, assistant, lawyer or litigant - be treated fairly, kindly and with dignity. There was never a mean spirited word uttered in his chambers while I worked with him. Ever. And I also remembered his continued work in those years trying to help others. Mostly through his beloved Human Development Corporation. Helping others, I think, the one thing that the judge loved best.

After my clerkship ended, I found that my relationship with the judge did not. He knew my wife and my children by name, and knew what they were doing. The same with my many siblings. He knew them all by name and what they were doing. To me, the judge was a second father. I suspect the same was true for his
many clerks.

Harry B. Wilson, '74
Partner, Husch & Eppenberger, LLC

The crowning achievement of Ted McMillian's long and distinguished judicial career is not capable of being reduced to the outstanding decisions he has written. It was his truly extraordinary personality, his subtle sense of irony and his dry, sharp wit. Ted McMillian lacked the capacity to be bitter. He overcame diversity by, among other things, sheer persistence. But the remarkable and essential feature of his personality was his ability to keep moving to always search for the way to build a useful career. He was persistent, as well, in his principles. He was a forceful and consistent voice for fairness and equal treatment under the law. His intellect, his personality and his adherence to principle has over the years earned the respect, and sometimes the votes, of many who shared neither his view of the world nor the law. He brought to his tasks the kind of emotional intelligence that the rest of us should imitate, even though our talents are not as great as his were. Ted McMillian has shown that if you cannot overcome your adversaries by logic and moral suasion, with the grace of God and good humor, you can outlive them. And, in Ted's case, we are thankful that he was able to see the result of what he worked for in the careers of those who followed and emulated him.

Judge Michael A. Wolff
Chief Justice , Missouri Supreme Court