Georgetown University Law Center Georgetown University Law Center

Scholarship @ GEORGETOWN LAW Scholarship @ GEORGETOWN LAW

2007

Howard T. Markey Howard T. Markey

Sherman L. Cohn Georgetown University Law Center, cohn@law.georgetown.edu

This paper can be downloaded free of charge from:

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1 J. Fed. Cir. Hist. Soc'y 7-12

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Part of the Judges Commons, and the Legal Education Commons

HOWARD T. MARKEYBy Sherman L. Cohn, Professor of LawGeorgetown University Law Center

Chief Judge, jet test pilot and Air Force General, lead partner in a highly-respected

law firm, law teacher, law dean and sought-after lecturer, Howard T. Markey

packed into a single life four distinguished careers, any one of which would merit

biographical attention. His early years, however, did not show the promise of what

later occurred - or perhaps it did.

Howard Markey was born November 10, 1920,in Chicago, the son of Thomas Markey, a rail-road telegrapher, who worked nights, and MarieDryden, who worked days, writing a column ofvaudeville critiques and gossip. Thomas Mar-key made his own beer, capping his own bottles,which had a habit of popping open at the most em-

Chief Judge and Mrs. Howard i Mackey standing in the enrance toThe National Courts Building.

barrassing moments. Marie made many friends inthe vaudeville world who frequented the Markeyhome, including the famed Sophie Tucker.

Howard Markey was driving at age 9 (nodriver's license required in those days) andbegan smoking at age 11, a lifelong addiction.From age 12 to 14, he sold ice cream door todoor, and with his Irish charm became the mostsuccessful salesman of his company. At age 14,he was made associate manager of the CockRobin Ice Cream Stand. He stood out in pri-mary school, so that the nuns arranged for himto attend St. Phillips Academy on a full schol-arship. In high school he was captain of boththe football and basketball teams in each of hisjunior and senior years.

In third grade, at age 10, he told his best friendthat he was going to marry a classmate, Eliza-beth Pelletier. Eleven years later, he did. Mean-while, he was obsessed with motorcycles whichhe made out of Model A and Model T parts. Hewould make one, use it, sell it, and make an-other. All of which was dedicated to followingthe name bands of the day (Artie Shaw, BennyGoodman, Glenn Miller, etc.) through the Mid-west, with Elizabeth on the back of the motor-cycle. Quite often her dress caught fire from theexhaust, so she always carried an extra slip - allto go "dancing with Howie."

There was no thought of college, as the fam-ily had no money. He worked at CommonwealthEdison Company, testing and loading refrig-

8 JOURNAL OF THE FEDERAL CIRCUIT HISTORICAL SOCIETY w VOLUME 1, 2007

erators. Immediately after Pearl Harbor, he en-listed in the Army Air Corps; three days later,he departed for Williams Field in Phoenix, Ari-zona, for flight training. On his first five flights,Howard got air sick and turned green. He thendecided to "remove the evidence" by not eat-ing. He passed flight training and, the next day,he married his childhood sweetheart. Howardand Beth knew that the day after the weddinghe would receive his orders and in the crisis of1942 could expect to ship out that same day toany of the war fronts. However, he was orderedto Wright-Patterson Base in Dayton, Ohio, totrain others, which he did throughout World WarII. Supposedly, he still holds the record of thenumber of hours flying the P-38 Lightning, hisfavorite aircraft. He was also a test pilot for newplanes being tried out by the Air Corps.

Howard had his first introduction to jet pro-pulsion while at Wright-Patterson. The jet air-

craft had been invented but was still very muchexperimental. There was a struggle between twogenerals, one of whom commanded Wright-Patterson, as to where the new jet force wouldbe based. One day, Howard saw a plane underwraps and guarded by two armed sergeants.Howard went to the library and read up on thisnew technology. He then went out to the fieldwith a group of his men some of whom distract-ed the two sentinels. Howard then took off thewraps, jumped into the jet, and roared away. Hisgeneral could then claim that he had a jet pilotwho was, in fact, flying the plane. That won theday for Wright-Patterson to become the base forthe new jet force, and Howard became the prin-cipal jet pilot.

After the war ended, Howard continued flying,this time solely as a test pilot of the prototypesof the newly developed jet, flying in Alaska,chosen because of its secrecy and inaccessibil-

O'Hare Air Force Base - Chicago - Mid 1960'sRight to Lel: Major Gi ,nera Howard r Markey and Colonial Lowe L effinger

HOWARD I. MARKEY 9

ity. He was on fire at least five times and lost hiswings at least twice. He became quite proficientat bringing in wounded planes, crash landings,and bailing out at the last second. Most of hisco-test pilots did not survive.

Then came the Korean War. He was orderedto Korea in early July 1950, but somehow ar-ranged an extension of time so he could be withhis wife, Beth, for the birth of their son, Chris-topher, at the end of the month. Four hours af-ter the birth, Howard was on his way. In Korea,he was, for 22 months, Air Operations Officerfor the Korean Airlift, receiving many medalsincluding the Distinguished Flying Cross, theBronze Star, the Purple Heart with Oak LeafCluster, the Ulchi Medal (South Korea), elevenservice medals, and the Soldiers Medal (Hero-ism), for saving the lives of comrades at com-plete risk of his own.

Before the Korean War, Howard Markey alsogave speeches about jet propulsion and rocketry,including to civic groups. After one such speechto a Rotary Club, he was approached by LeslieParker, senior partner in a leading Chicago patentlaw firm. Parker was impressed with how Howardcould explain a difficult, technical subject so thatlay persons could understand. Seeing Howard'spotential before a jury, Parker offered to pay halfof Howard's tuition for undergraduate and lawschool and offered him a three year contract withhis law firm at the then princely sum of $5,800 ayear. The next day, Howard enrolled in a specialprogram at Loyola University for returning veter-ans, going days, nights, summers; he completedundergraduate plus law studies in three and one-half years, graduating cum laude and serving aseditor-in-chief of the law review.

In 1949, he passed the bar examination andjoined Parker & Carter. That next year, whileworking full time, he also studied for a mastersin patent law at John Marshall Law School inChicago, which was awarded to him in 1950.Parker and Carter soon became Parker, Carter &Markey, and then Markey, Plyer, Dorn & McK-echran. Howard also joined the Illinois Air Na-tional Guard, continuing his military career.

Howard Markey excelled in both the prac-tice of law and running a highly successful law

firm. He also excelled in the military, becoming,at age 38, the youngest brigadier general evercommissioned. From 1954 to 1970, he com-manded an Air National Guard Wing. For thenext six years, he was deputy commander forthe Reserves, Tactical Air Command, achievingthe rank of major general in 1973. He qualifiedin virtually every aircraft of his era. In 1974, hereceived the Man of the Year Award from the AirForce Association.

Howard also became involved in Republicanpolitics. There was some pressure on him to runfor the United States Senate against Paul Doug-las. Once Howard met Charles Percy, and sawhow he worked a room, however, Howard pulledhis name out of the race. But in the process, heimpressed Senator Everett Dirksen, who wasa significant power in the Senate in the early1970s. Senator Dirksen was then instrumental inencouraging President Nixon to nominate How-ard Markey to his first judicial appointment tothe Court of Customs and Patent Appeals. Thatcourt was terribly backlogged with cases takingthree years to be decided, reputedly the mostinefficient federal appeals court in the country.Moreover, the decisions of the court were reput-ed to be inconsistent to the point of incoherency.Clearly a strong manager was called for.

On May 3, 1972, President Nixon nominatedHoward T. Markey to be the Chief Judge of theU.S. Court of Customs and Patent Appeals. Hewas confirmed on June 21st, and formally in-vested a month later by Chief Justice Warren E.Burger. During the ensuing decade, the court'sbacklog was brought up to date, to the point thatit took only seven months from filing to deci-sion. Moreover, there emerged a coherent doc-trine of law in well-written opinions. The courtcame to the attention of both bench and bar farremoved from its specialized subject area.

A decade after Judge Markey was appointedto the CCPA, the Federal Courts ImprovementAct of 1982 created the U.S. Court of Appealsfor the Federal Circuit, combining the appellatefunctions of the CCPA and of the U.S. Court ofClaims. By the specific terms of that Act, How-ard T. Markey became Chief Judge of the newcourt, a position that he held until 1990.

10 JOURNAL OF THE FEDERAL CIRCUIT HISTORICAL SOCIETY m VOLUME 1, 2007

In the words of the Judicial Conference ofthe United States, Chief Judge Markey was "agiant of the federal judiciary, not only leadingthe CCPA and the Federal Circuit, but also guid-ing the governance of the entire Third Branch."Judge Markey had a tremendous influence onthe development of the law before the courtsof which he was Chief. He sat more often thanany other active judge on those courts. In ad-dition, he sat extensively on other courts; he isreported to be the only judge to have sat on allthirteen federal circuit courts of appeals. For hisown courts, Judge Markey wrote more than 800opinions and heard over 5,000 appeals. As theJudicial Conference stated, "for two decades, hewrote most of the landmark patent decisions."For the various regional circuits, he authored an-other 250 opinions and heard over 1,400 cases.Judge Markey also found time to deliver innu-merable speeches all over the United States andpublished articles on patent law and various as-pects of judging in 57 law reviews.

Judge Markey also became known for his ef-fectiveness as a judicial administrator. He wasproud of the fact that the CCPA caught up onits significant backlog and that both courts ofwhich he was chief thereafter remained current.He was also proud of the fact that, every yearhe was chief judge, the court returned some ofits appropriated funds to the United States Trea-sury. As the United States Judicial Conferencestated: Chief Judge Markey "lived out the mottoposted in his Chambers which read, 'The bestpossible decision, in the shortest possible time,at the least possible cost."'

Chief Judge Markey was the senior member ofthe United States Judicial Conference, servingfrom 1972 to 1990, chairing the conference inthe absence of the Chief Justice of the Supreme

Court. He also chaired the Conference commit-tee now known as the Committee on Codes ofConduct, writing many of the leading opinionsconstruing and applying the ethical canons ap-plicable to federal judicial officers. Under ChiefJudge Markey, that committee for the first timebecame a real force within the federal judiciary.Judge Markey served as Chair of the ScienceAdvisory Committee of the Federal JudiciaryCenter, the Chair of the Circuit Chief Judges

Conference, the Chair of the International Ap-pellate Judges Conference, and the chair of theCommittee on the Bicentennial of the Constitu-tion. He was a member of the Conference's Ex-ecutive Committee, served on the Committee onCourt Administration and was a member of andliaison with a score of other committees, taskforces, and conferences. Chief Justice Burgerfound in Chief Judge Markey that wonderfulperson who, no matter how busy he was, couldbe depended upon to do well in still another im-portant task.

Judge Markey was also active outside thecourts. He was founder of the Thomas MoreSociety of America, chair and vice chair for theFederal Judiciary in the annual campaign of the

United Way for the National Capital Area, mem-ber of the board of the Supreme Court Histori-cal Society, national president and chair of theboard of the Air Force Association, a fellow ofboth the American Law Institute and the Ameri-can Judicature Society, and a member of variousbar associations.

One of his proudest achievements, and the onein which the author worked closely with him,concerned the American Inns of Court, whichis dedicated to the improvement of skill, ethics,civility, and professionalism among lawyers andjudges. Judge Markey was co-founder and firstpresident of the Charles Fahy American Inn,which was the fifth in the nation to be organized.He served on the Ad Hoc Committee of theUnited States Judicial Conference, appointedby Chief Justice Burger to report to the Confer-ence on whether the American Inn concept wasof value to the administration of justice, if so,whether there should be a national structure,and, if so, to propose such a structure. On the AdHoc Committee, Judge Markey was quite instru-

mental, personally authoring many of the basicdocuments. He became the second chair of theBoard of Trustees of the new national AmericanInns of Court organization. In that capacity, hegave much time and energy to moving the con-cept forward. He used his contacts among judgesand lawyers throughout the country to encour-age the creation of new American Inns, and hiswise counsel to guide the Board of Trustees.Under his leadership, the number of American

HOWARD T. MARKEY 11

Inns grew to 204. The Inns, located throughoutthe land, became the foundation for significantgrowth, which occurred in subsequent years.

Judge Markey often spoke eloquently of hisvision for the American Inns of Court. This vi-sion was summed up in a speech in 1991:

[W]e are engaging in a "quiet crusade" - acrusade literally to save our profession, oras much of it as we can. In doing so, wethereby also serve the administration ofjustice - the very heartbeat of a free soci-ety. I harbor a fervent, fevered hope, and anunquenchable belief, that when the Ameri-can Inns of Court have reached their fullpotential, there will be accepted through-out our society another unchallenged ac-colade. I believe the day will come whenour total society will accept as a given anduse daily as a measure, the phrase, "ethicalas a lawyer."

In 1990, Judge Markey stepped down fromthe chief judgeship of the Federal Circuit. Thefollowing year he resigned from the court to be-come the Dean of the John Marshall Law Schoolin Chicago. For years, he had been teachingclasses at George Washington University andat Loyola University in Chicago. So, becomingDean was carrying on still another career.

By this time, however, back trouble, withwhich he had been plagued for years, becameworse. He underwent an operation, which, ifanything, increased his pain and gradually lefthim unable to walk. The death of his belovedBeth was a significant blow from which he neverfully recovered. Through the use of his nationaland highly respected name and many contacts,Dean Markey contributed to a significant moveforward by John Marshall, but his disabilitiesmade it impossible for him to continue beyondhis initial three-year appointment.

Through the years, Judge, General, Dean,and lawyer Howard T. Markey received manyawards, including seven honorary doctorate oflaws degrees. To mention only a few, he receivedthe George Washington Honor Medal, FreedomsFoundation; Citation of Merit, John MarshallLaw School; Medal of Excellence, Loyola Uni-versity; Old Master Certificate, Purdue Univer-

sity; Herbert Harley Award, American Judica-ture Society; the Thomas More Award; and theSherman A. Christianson Award, American Innsof Court. Perhaps most meaningful was the re-naming of the National Courts Building as the"Howard T. Markey National Courts Building"in 1998, upon an Act of Congress which, amongother things, waived the usual congressional rulethat buildings not be named for living persons.

No biographical sketch of Howard T. Markeywould be complete without recognizing the es-sential role played by his wife, Elizabeth, or"Beth" as she was called by all who knew her.Beth was Howard's constant support and more.In all his activities, Howard was little at home.It was Beth's role, which she carried out with-out complaint, to maintain the home and raise thechildren, almost single-handedly, and be a gra-cious hostess, as well as an emotional and physi-cal support to Howard and all he did.

Beth and Howard had a spiritual bond. One oftheir sons relates how, on two occasions, whileHoward was flying solo, Beth woke her son inthe middle of the night to join her in ferventprayer. Without a phone call, she knew that hewas in trouble. In their son's words: "Mom and Iwere on our knees, elbows on the bed and handstogether around our rosaries. She was shaking,she was praying so hard." She knew that herHoward was in trouble, and each time she wasright. He was out of gas and far from an airfield.Somehow, bone dry, he was guided to a place toland safely.

In addition to being devoted mother andwife, Beth had a life of her own. She grew upin a strongly Catholic household attending massseven days a week. But her religious trainingwent further. Her father, a railroad locomotivedriver, had a job through the Great Depression,when many around them did not. Throughouther school years Beth helped her mother three tofour days a week to make soup and bake breadwhich they then delivered to various familiesidentified by their pastor as being in need.

Beth carried forth this tradition into adulthood.She became active in The Daughters of St. Fran-cis de Sales. This is an organization of women,usually married or widowed, who devote time

12 JOURNAL OF THE FEDERAL CIRCUIT HISTORICAL SOCIETY w VOLUME 1, 2007

in the service of others, ministering to the sick,consoling the bereaved, counseling those withmarital difficulties, and the like. Her involve-ment led to her appointment as one of the twoprioresses, directing and inspiring the Daughtersin the eastern half of the United States. WhenBeth and Howard left the Washington, D.C. areain 1991 to return to Chicago, the Daughters hada grand dinner in her honor.

At the end of 1993, Beth and Howard were inseparate beds in the same Intensive Care Unit ina Chicago hospital. Beth died soon after the NewYear. From that point on, Howard perceptivelybegan to slow down and withdraw from activityafter activity. When one of his sons confronted

him, trying to encourage him to stay involvedin life, Howard responded: "All of my life, ev-erything I ever did, I did to make her proud ofme and now that she's gone, there's no morereason to do anything." At the dinner upon theoccasion of his retirement from the Court of Ap-peals, Howard sang a tribute to Beth, as being"the wind beneath his wings." With her death,Howard had no further interest in flying.

Howard T. Markey died on May 3, 2006, andwas laid to rest in Arlington National Cemetery.He is survived by three children: Jeffrey, Chris-topher, and Jennifer.