DESCRIPTION OF THE ORAL HISTORY OF CHARLES A. HORSKY
By Carl Stern
Based on Charles A. Horsky’s Oral History for the D.C. Circuit Historical Society
Although few Washingtonians know his name, lawyer Charles Horsky did as much to create today’s Washington as Pierre L’Enfant. Perhaps more.
His legacy includes the current structure of the DC government, METRO, the Watergate buildings, the Kennedy Center, the redevelopment of Southwest Washington, DC University, AMTRAK and Conrail, the preservation of Union Station, the Woodrow Wilson Center, and on and on. He had a substantial role in bringing about all of these. At one point, when he went to work at the White House as President Kennedy’s advisor on DC affairs, he had to resign from the leadership of 15 organizations!
Horsky still found time to partner for almost 40 years at the firm of Covington & Burling, and to take part in some of the Supreme Court’s most epic cases. Interviewed by Washington attorneys Thomas Williamson and Carol Elder Bruce, Horsky recalls arriving in Washington in 1935 from his native Montana, and the excitement of working in the Solicitor General’s office at the height of the New Deal. “Everybody worked without regard to the clock…. I was persuaded like everybody else that I was here saving the world and I was going to do my damnedest to get it saved.”
Using his experience in the SG’s office, Horsky became an appellate lawyer. He says he appeared only twice in a trial court. The high court was his favorite forum. “It’s great fun to argue before the Supreme Court, really,” says Horsky.
His most memorable Supreme Court case? Korematsu, the Japanese internment case which he argued in the Supreme Court in 1944 on behalf of a young Japanese-American who had refused to report for internment. “I think it was the best argument I ever made,” Horsky says. “I really put my heart into that one.”
He lost. By a 6-3 vote the Court accepted the contention of the commanding general of the Pacific Coast that Japanese Americans might be communicating with Japanese submarines supposedly lurking off shore. Says Horsky, “I should have won it. The Naval security apparatus had investigated all of these things and had given all the Japanese a clean bill of health.”
Among Horsky’s most satisfying victories? Griffin v. Illinois, in 1956, in which the Supreme Court ruled that if a person cannot afford a transcript to appeal his conviction, the states have to give him one for free. “(A)lmost nowhere in the civilized world could I find a case in which an appeal depended on whether you had enough money to appeal and supply the necessary papers,” says Horsky. The justices had appointed Horsky to argue the case.
Horsky regrets that “so many” high court cases are argued by lawyers who view it as a rare opportunity and “by God, they are going to argue it themselves.” “The result is that a lot of the cases are not well argued.”
Horsky seems to enjoy the give-and-take of questions from the bench. He recounts an argument in an antitrust case in the Eighth Circuit. The Court at the time had a rule not to interrupt counsel. “It was very unpleasant,” says Horsky. “I got up and talked my allotted 40 minutes or whatever it was and then sat down. I might have just as well sent them a typewritten transcript. It was completely frustrating.”
While noting that some lawyers are not up to the pressure of courtroom argument, Horsky acknowledges that he too was merely mortal. He reminisces about an appearance before a legendary no-nonsense federal judge in New York, Harold Medina. “I finally broke out in a rash from the strain,” says Horsky.
Horsky believes one of his greatest victories was achieved outside the courtroom. Says Horsky, “If there was a hubbub somewhere in the District, the police would round up everybody and arrest them. Not charge them with anything but arrest them for investigation.”
Horsky was convinced it was unconstitutional to arrest people without probable cause. So he got a small grant to hire some students who examined five years of records that showed the number of prosecutions of those “arrested for investigation” was “practically zilch.”
“Most of the people were held for a while and then discharged. Nothing ever happened afterward. It was just a means of conveniently getting people off the streets.”
Horsky, along with U.S. District Judge William Bryant and then police department lawyer Roger Robb, wrote a report condemning the practice. The DC Commissioners immediately abolished “arrests for investigation.” Robb later sat on the U.S. Court of Appeals.
Horsky took time off from Covington at the end of World War II to become a prosecutor at the Nuremberg war crimes trials. However, he had no military clearance to possess trial documents that were marked “top secret.”
So, recalls Horsky, he contrived to join the Coast Guard, which had a volunteer organization called the Temporary Reserves. “I discovered that in order to be eligible you have to be able to breathe in and out and that was about all.” Horsky was sworn in as a Lieutenant Commander, which entitled him to possess classified documents and to take part in the Nuremberg trials.
Horsky remembers proudly, “I went out and purchased two uniforms – a dress uniform and a regular uniform. Not quite enough to get scrapple on the visor of my cap but a good rank.”