Hon. George E. MacKinnon

Summary-DC Circuit Judge MacKinnon

By William Marmon

President Nixon’s first judicial appointment, Judge George E. MacKinnon, served on the Court of Appeals for the D.C. Circuit from May 1969 until his death twenty-six years later, in May 1995, when he was eighty-nine years old. He served the last twelve years as an active Senior Judge.

Judge MacKinnon’s oral history was taken for the Historical Society of the District of Columbia Circuit by Interviewer Michael Socarras on February 18, 1994, just sixteen months before Judge MacKinnon died. The interview, held early in the oral history program, took place in a single session in Judge MacKinnon’s chambers and is fifty-two typed pages.

For the first fourteen pages, uninterrupted by questions, Judge MacKinnon sketched his pre-judicial background. Born in St Paul, Minnesota, he earned a Bachelor of Law from the University of Minnesota, where he was on the law review and graduated in 1929, without getting an undergraduate degree. At the University he was also a star athlete, earning seven letters in football, basketball and track, and served for five years as assistant football coach.

After the War, that would be World War II, where he served for four years as a naval officer, he ran for Congress in Minnesota’s third district in 1946 as a Republican, and won. Known as a “farm/labor” district, says MacKinnon, “I was the only Republican ever to get a majority in that district.” He was defeated in the next election. But while in Congress he got to know his seat-mate and fellow Labor Committee member, Richard Nixon (also elected to the House of Representatives in 1946 from California). From this early relationship, MacKinnon relates an interesting footnote to the Alger Hiss affair. Nixon was a member of the House Un-American Activities Committee and involved in the investigation, which was stalled because of lack of proof that notes passed to Whittaker Chambers were typed on Hiss’s typewriter and that Hiss had access to the typewriter. MacKinnon suggested to Nixon that the FBI examine papers of the Harvard Law Alumni Association where Hess was a member and insurance companies, which MacKinnon knew from his work in the private sector would often get and keep routine correspondence directly from their customers. Bingo. Hiss was indicted and convicted on evidence secured because of MacKinnon’s suggestion.

After Congress, MacKinnon worked for Harold Stassen, his law school classmate and good friend who was running for President, “again.” He also campaigned for Nixon and Eisenhower and got deeply into the Republican political scene. He ran for Minnesota governor and was defeated by incumbent Orville Freeman.

In 1959, Herbert Brownell, U.S. Attorney General under President Eisenhower, asked MacKinnon to come to Washington to investigate Jimmy Hoffa. MacKinnon was able to bring two indictments in 1960 while at the same time continuing his private practice. His success against Hoffa resulted in an offer from Robert Kennedy, Attorney General in the Democratic administration of Jack Kennedy that took over in 1961, to stay on to try Hoffa. MacKinnon said he had to go back to Minnesota to make some money with his upcoming job with Investors Mutual Fund (IMF), the largest mutual fund at that time, and turned down Kennedy’s offer. That this rock ribbed conservative Republican had liberal Bobby Kennedy entreating him for assistance says much about the man.

Back in Minnesota, soon after Nixon took over in 1969, MacKinnon got a call from newly appointed Attorney General John Mitchell: “Your friend the President wants me to find out if you would be willing to serve on the United States Court of Appeals for the District of Columbia Circuit.”.

MacKinnon responded, “I will call you back tomorrow.”

Despite the pay cut – from $95,000 as general counsel for IMF against $47,500 – MacKinnon took the job and moved with his wife to D.C. MacKinnon says, “I was very stunned (sic) to what was going on down here. I considered the appellate court needed somebody with my views of criminal law.” He said he was concerned “principally to the decisions of Judges [David] Bazelon and [Skelly] Wright. They were masticating the criminal law . . ..” He noted that after he arrived on the Court “we eventually turned the court around,” pointing to the overruling of the opinion of Bazelon in Durham v. U.S. In doing so, the Judge implicitly referenced the 1974 decision in U.S. v Brawner where the Durham rule for insanity pleas in criminal cases was rejected and replaced as too liberal and capable of misuse, in favor of the ALI penal code insanity plea rule written by Judge Skelly Wright, who authored the majority opinion in Brawner.

The oral history proceeds with a long and interesting, sometimes salty, discussion on the virtues of “common sense” and the danger of its absence. The virtue of common sense, particularly “mid-western common sense,” occurs repeatedly as a MacKinnon mantra. When the interviewer asked MacKinnon why he opposed socialism, he replied: “Any person who had any brains knew it didn’t work. That’s where you get into common sense.” In the ongoing talk about construing statutes, he quotes Judge Learned Hand appreciatively: “There is no surer way to misread any document than to read it literally.”

There is also an interesting discussion of MacKinnon’s views on the appointment of Special Counsel and about his time on the U.S. sentencing Commission.

The oral history ends with some discussion of MacKinnon’s daughter, Kitty MacKinnon, who analyzed cases of sexual harassment and wrote an influential book, Sexual Harassment of Working Women.

Although taken more than a generation ago, this oral history holds up well in 2025, as the portrait of a man of character, admired and respected by many on all sides of the political spectrum.