Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2007
Profiles in the Law
The Pragmatist:
From Deli to Docket, Jake Tanzer Sets the Bar

By Melody Finnemore

Jacob Tanzer

For Eugene attorney Bill Gary, Justice Jacob Tanzer has been an invaluable mentor and, at times, a worthy opponent. As a young attorney, Gary clerked for Tanzer. Gary later encountered Tanzer again, this time in the private practice arena as competing candidates for appellate work.

"I learned after going through that process a couple of times that he liked to tell people he taught me everything I know, but he didn’t teach me everything that he knows. I suspect that’s true," Gary says. "He’s had a legal career that is a model for me and I think most of the people who clerked for him. He was a great mentor and taught me more of a pragmatic approach to the law than what they taught in law school."

Pragmatism is a hallmark of Tanzer’s legal career, which took root when he was in the seventh grade. Tanzer, 72, was born in Longview, Wash., and grew up in Portland among several extended family members. These included his cousins, Maurice Sussman and Sol Stern, who inspired Tanzer to become an attorney.

"As a boy, I really admired them. They seemed smart," Tanzer says, adding he found out only recently that Sussman represented Japanese citizens of Portland who had been interned during World War II.

Tanzer graduated from Grant High School in 1952 and attended Reed College and Stanford University before earning a law degree from the University of Oregon in 1959. Tanzer claims he graduated as the "top man in the bottom half of the class" and, since firms weren’t exactly knocking down his door, he established a small practice with a friend.

Less than three years later, Tanzer joined the U.S. Department of Justice as a trial attorney in the Organized Crime and Racketeering Section. He investigated and prosecuted cases of official corruption, labor racketeering and tax evasion while working under Attorney General Robert F. Kennedy Jr.

"It was a wonderful experience and a formative experience," Tanzer says. "Kennedy grew into as fine a public official as I ever knew. He inspired the best in us. My only regret is that his presidential aspirations were cut short."

Tanzer’s grand jury experience earned him a transfer to the department’s Civil Rights Division to handle the grand jury investigation of the Ku Klux Klan in the 1964 murders of civil rights workers Michael Schwerner, James Chaney and Andrew Goodman in Philadelphia, Miss.

"It was the most profoundly moving experience of my life," Tanzer says. "My job was to prepare witnesses who had been identified by the FBI, so I spent a lot of time in the cotton fields of Neshoba County. These were witnesses who had been brutalized and were scared to death. I found their humility, dignity and courage moving and admirable.

"I also saw it, in the larger picture, as a truly popular mass movement that we helped, but the force was the people themselves," Tanzer adds. "As it turned out — and you could see it coming — it was the greatest social revolution in this country, and I just wanted to be part of it. It was something where lawyers’ skills could help make a difference, and they did."

Upon his return to Portland in 1964, Tanzer became a Multnomah County deputy district attorney. In 1969, he became the Oregon Department of Justice’s first solicitor general. One of Tanzer’s first tasks was to edit the briefs in Thornton v. Hay, the case that preserved Oregon’s beaches for public use. His next case established the state labor commission’s right to order emotional damages for people who were victims of housing discrimination.

Between this position and his former job with Multnomah County, Tanzer argued more cases before the Oregon Supreme Court than any lawyer in its history. Also, he discovered how much he relished government work. "I enjoyed it because you’re usually dealing with interesting issues that are of public concern," he says.

Tanzer then served as the first director for the Department of Human Resources, now the Department of Human Services. Gov. Tom McCall tapped Tanzer for the job in 1971, and the state legislature gave the agency two years to prove itself.

"I didn’t know anything about running a government agency, but I had a fine deputy and staff," Tanzer says, noting the challenge was to find a guiding organizational philosophy in providing services for a broad range of the state’s population, from children to mentally challenged adults to the aged. The common thread, Tanzer found, lay in preserving as much independence as possible for those receiving health and welfare services from the state.

"It was very different from being a lawyer because you had to pull together so many diverse elements," Tanzer says, adding the job involved not simply working with clients but also the legislature, advocacy groups and a hive’s nest of bureaucracy. "It’s like a tugboat pulling a whole assortment of vessels behind."

Tanzer had the opportunity to return to the legislature two years later a successful model for how the state’s social services agency should operate. He missed being a lawyer, however, and told McCall so. McCall, who by then was Tanzer’s friend as well as his boss, asked him if he wanted to be a judge and, if so, on which court. Tanzer chose the Court of Appeals.

While working for the district attorney, Tanzer had been part of the planning committee that ultimately established the Oregon Court of Appeals. After helping lobby it through the legislature, Tanzer looked forward to serving as an appeals court judge. He had that opportunity from 1973 to 1979.

His most memorable cases include American Can Co. v. OLCC, a challenge to Oregon’s bottle bill. The case has appeared in most constitutional law textbooks, one of the few that is not a U.S. Supreme Court case.

"Yes, I was pleased with that," Tanzer admits. "If I’d known that they were going to publish it, I would have edited it more closely, though."

As an Oregon Supreme Court justice from 1980-83, Tanzer’s cases included Springfield Education Association v. School District, which established procedures for judicial review of all government agency actions.

Tanzer says his time on the bench, both at the Court of Appeals and on the Oregon Supreme Court, provided an opportunity to serve the public while wrestling with some of the most pressing issues facing the state.

"I enjoyed the intellectual challenge of getting things right, both theoretically and pragmatically. I saw it as problem-solving on a grand scale," he says. "There’s also just the responsibility of it."

Tanzer found a brief respite from that responsibility behind the cheese counter at Elephant’s Delicatessen. Elaine, Tanzer’s wife of 33 years, owns the well-known Northwest Portland eatery. He admits he got a kick out of encountering other attorneys and judges while helping out at the deli on evenings and weekends.

"It was hugely amusing when I saw the looks on their faces when they saw me behind the counter."

Tanzer returned to private practice in 1983 when he joined the Portland law firm Ball Janik, a setting that allowed him to hone his skills in civil litigation. Among his most memorable cases there, Tanzer won a $225 million judgment in Alsea Veneer v. State of Oregon.

"It’s very different being a lawyer from being a judge," Tanzer adds. "As a judge, the lawyers sort of organize a case and hand it to you on a platter. As a lawyer, you have to analyze it, organize it and present it. It’s much harder in its way."

Tanzer says he saw it as his job to make complex cases as simple as possible. "I had a theory that every case boiled down to one pivotal idea, and once you figured out that idea you could win a case or lose it," he says. "My style was simplicity, to boil it down to its essence."

Peter Richter, an attorney with Miller Nash in Portland, has seen Tanzer’s style in action from a couple of perspectives. He recorded Tanzer’s oral history for the U.S. District Court’s historical society and argued against him in court.

"When he got involved in the case, he called to invite me to lunch and to try to reason with me about why, in his humble opinion as he put it, we should have the case dismissed because there really was no merit and it shouldn’t go to trial because it would just be a waste of everybody’s time," Richter says. "Of course, he didn’t convince me, but, by golly, he was right.

"I think that’s true of his demeanor to try to resolve cases to the benefit of a client in a very gentlemanly, self-deprecating manner," Richter adds. "He has always had a reputation of being one of the giants of the bar, and has that unique combination of intelligence and common sense. And he has always been a gentleman in the truest sense of the word."

Along with his renown in the courtroom, Tanzer has served as an educator for law students and other attorneys since the late 1960s. His legal career is highlighted with honors such as the ACLU’s E.B. MacNaughton Civil Liberties Award and listings in "The Best Lawyers in America" since 1998.

He closed his law practice in 2002, but there is no retirement on the horizon for Tanzer. He continues to serve as a CLE lecturer for the Oregon State Bar and Oregon Law Institute. In addition, he established a part-time business mediation and arbitration service that carries him throughout the state.

"Business ADR is like being a judge in that you’ve got to identify the issues quickly, and it’s like being a business litigator in that you have to understand business. I really like both aspects of it," he says. "The best thing about it is this: In active practice you can take on a case that lasts for years. I once litigated a case that lasted 11 years. In mediation, generally you’re usually in in the morning and out in the evening, for better or worse. I try to get to the heart of things quickly."

Tanzer’s part-time schedule also leaves plenty of time to work out and play tennis each morning while allowing him to continue doing the work he loves.

"It keeps my mind active and I’m doing something I think I’m good at," he says. "I like the fact that you have to take a different approach to every case, depending on the people."

Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin.

© 2007 Melody Finnemore

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