A federal judge who did it his way
By Richard Mertens
Photo courtesy the Will family
Hubert Will, AB’35, JD’37, was not altogether pleased when JFK made him a federal judge in 1961. Not only was the pay low—Will had four children to put through college—but justice flowed slowly from the Northern District of Illinois, too much impeded, he thought, by the gamesmanship of lawyers. His first trial, a case in which a man rear-ended a woman while driving his wife and children to Sunday dinner, took ten days and yielded a verdict of $2,750.
“I made a bad mistake,” he grumbled to a clerk. “I bought myself a lifetime ticket to an endless series of unprepared, badly acted, amateur theatricals, the result of which is supposed to be justice. It’s not going to work.”
Will spent the next 34 years trying to make it work. He became a nationally recognized expert in judicial administration, a master of what he called “the art of judging.” He established rules and procedures that curbed lawyerly excesses, speeded litigation, and encouraged settlements. Many of those innovations are now accepted practice.
What rules could not accomplish he achieved by sheer force of personality. Handsome, articulate, and self-assured, Will relished being in charge. In the theater of federal court, he was always the main actor. He dressed down lawyers who were late or ill prepared, told jokes at their expense, and sometimes interrupted cross-examinations to pose the question the attorney was headed toward. It drove lawyers crazy.
Will’s personal force and talent for administration won him the respect of judges nationwide. He earned their gratitude in 1980 when he successfully sued the U.S. government over judicial pay, which had lagged behind the cost of living. “He was fearless,” says William Bauer, a friend and fellow judge in the Northern Illinois circuit. In 1992 he received his greatest honor, the Devitt Award, an annual prize federal judges bestow upon one of their own. “My Oscar,” he called it.
Will was born in 1914 in the back of his father’s pharmacy in German-speaking Milwaukee. He learned the habit of hard work at an early age. At his father’s store he dabbed the eyes of local auto workers to remove steel filings, and he concocted Will’s Cough Syrup, adding three of four drops of tincture of capsicum—hot pepper—to give it zing. He paid his way through the College by working many jobs, including one as President Hutchins’s butler, shining his shoes and walking his dog.
After law school he moved to Washington, where he arrived in time to take part in the final years of the New Deal. He worked for William O. Douglas on the Securities and Exchange Commission and, as an assistant to Democratic New York Senator Robert F. Wagner on the Senate Banking and Currency Committee, helped write the first (failed) national health-care bill.
In 1943, two years after the United States joined World War II, Will, like many young, well-connected lawyers and intellectuals, was recruited into the newly formed Office of Strategic Services, an overseas intelligence operation. He went to London as head of counterespionage in Europe. Historian Timothy Naftali describes him then as “an ambitious young lawyer—not yet 30—who spoke a mile-a-minute in flat Midwestern tones” and “opted for the hardball approach.” He also, Naftali writes, “had a nose for politics.”
Perhaps his most important job was to keep plans for the 1944 invasion of Normandy from leaking to the Germans. After D day, as the OSS shifted its efforts to tracking down Nazi officials, he followed the retreating German army across the continent. He was among the first to arrive at the Buchenwald concentration camp. Fifty years later, as he lay dying of liver cancer, the memory of Buchenwald’s emaciated inmates brought tears to his eyes.
After the war Will entered law practice in Chicago and plunged into Democratic politics. He was Adlai Stevenson’s floor leader at the 1952 Democratic National Convention. As cochair of Volunteers for Daley, he helped elect Richard J. Daley mayor in 1955 and 1959. After Daley’s first victory Will chaired the mayor’s Commission on Youth Welfare. The machine boss and former New Dealer were in some ways an unlikely pair, admits Will’s son Jon Will, AM’68. But his father, Jon Will says, admired Daley’s ability to govern a city as rough and ethnically diverse as Chicago.
Will did not want to become a judge, at least at first. By 1960 he was an experienced litigator with ambitions of becoming a U.S. attorney. Instead, with Daley’s blessing, President Kennedy nominated him to the district court.
Custom dictates that junior judges receive the oldest, least tractable cases, and Will inherited a backlog of more than 300. He attacked them with characteristic vigor, demanding status reports from every lawyer. In two years he cut his caseload in half. He held lawyers to 20 interrogatories—written questions about matters of fact posed to the other side—rather than allowing an unlimited number. He also required them to outline their cases before trial, forcing them to focus on essential issues.
Will’s influence was felt far beyond Illinois. Traveling the country, he lectured to new appointees at “baby judges school” and presided as a guest judge in many jurisdictions. He founded the Federal Judges Association and served on many judicial committees, helping, for example, to revise bankruptcy rules. In one feat of judicial showmanship, he disposed of 100 cases in Philadelphia in less than a year, visiting only three days a month while maintaining a full caseload in Chicago. The task of a judge, he once said, was “to produce the highest quality of justice in the shortest time and at the lowest cost consistent with that highest quality.”
Will loved both the principle and the practice of justice. When he addressed juries, he began with a history of trial by jury, going back to Socrates. He carried a copy of the Constitution in his pocket. And he went further than many judges to protect the rights of defendants. Unless they were violent, Will preferred to sentence first-time offenders to probation. “I thought if for five years you lived within the law, the chances were that you’d continue to live within the law,” he said. “But if you went to jail and hobnobbed only with people who were also criminals, and you weren’t trained to make a legal living, you’d probably come out more a criminal than when you went in.”
A resident of Kenwood, north of Hyde Park, Will sent his children to public schools when other whites fled to the suburbs. He served in civic organizations dedicated to youth, housing, and the fair treatment of prisoners. He kept in touch with a few men he had sent to prison and helped get them jobs when they were released. An early and influential member of the American Veterans Committee, a left-wing group founded in 1944 that was antiwar, internationalist, and racially integrated, he helped found the World Veterans Federation, an international organization of veterans groups that he championed until his death.
Will was fiercely competitive, boasting that as a lawyer he had never lost a jury trial. An all-American in water polo at the University, he water-skied until his late 70s. He could sing too, and at parties often did, belting out his favorite song, “My Way.”
Of course, his way did not always work. His relationship with his children suffered after he divorced and remarried in 1969. (He met his first wife, Phyllis Nicholson, PhB’34, at the U of C.) His daughter Wendy refused to speak to him for six years afterward. But when she developed breast cancer in her 30s, Will hurried to her side to orchestrate her care. Her death in 1982, he later said, was one of the bleakest periods of his life.
“I think he just thought that her determination to survive, with him pulling the strings and with the force of his personality, was going to make a difference,” says another daughter, Nikki Will Stein, executive director of the Polk Bros. Foundation.
It was in the courtroom, with its combination of theater, intellectual jousting, and high moral purpose that Will was at his best. “He enjoyed it very, very much,” says his second wife, Jane Will. “He liked the conflict, the give and take. He liked being in charge and doing a good job.”
Will took senior status in 1979, when he turned 65, though he continued to hear cases until a few months before he died in 1995. He had long hoped for promotion to a higher court, but a series of Republican administrations offered little opportunity for an old New Dealer to advance.
Although he didn’t make it to the Supreme Court, he was once offered a job almost as exalted: commissioner of baseball. Kenesaw Mountain Landis, an earlier judge from Illinois’s Northern District, had been baseball’s first commissioner, and some thought the game needed another judge. Will said yes—but only if he had lifetime tenure and absolute authority over the game.
“They said, ‘Thank you very much. We’ll get back to you,’” he later recalled. “I never heard another word from them.”