Abner Mikva Complete Oral History Package

Oral History Project
The Historical Society of the
District of Columbia Circuit
United States Conrts
District of Columbia Circuit
Honorable Abner J. Mikva
Interviews conducted by:
Honorable Stephen J. Pollak
May 23, June 11, June 20, July 16, October 2, October 29, and November 4, 1996
October 28, 1997 and May 19, 1999
··.TABLE OF CONTENTS
Preface ……………………………………………………… 1
Oral History Agreements
Honorable Abner J. Mikva. . ……………… …………………. m
Honorable Stephen J. Pollak …………………………………… v
Biographical Sketches
Honorable Abner J. Mikva. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vil
Honorable Stephen J. Pollak ………………………………….. ix
Oral History Transcript of Interviews on:
lndex
May 23, 1996 ……….. …………………………………… 1
June 11, 1996 …………………………………………………. 54
June 20, 1996 …………………………………………………. 91
July 16, 1996 ………………………………………………… 122
October 2. 1996 ………………………………………………. 163
October 29, 1996 ……… . . …………………….. 222
November 4, I 996 …………………………………………….. 268
October 28, I 997 ……………………………………………… 304
-19,1999 . ……. . . . .. . . 346
…………………………….. ………………… Al
Table of cases ……………………………………………………. A28
NOTE
The following pages record interviews conducted on the dates indicated. The interviews
were electronically recorded, and the transcription was subsequently reviewed and edited
by the interviewee.
The contents hereof and all literary rights pertaining hereto are governed by, and are
subject to, the Oral History Agreements included herewith.
© 1998 Historical Society of the District of Columbia Circuit
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges who sat on the U.S. Courts of the
District of Columbia Circuit, and judges’ spouses, lawyers and court staff who played
important roles in the history of the Circuit. The Project began in 1991. Most interviews
were conducted by volunteers who are members of the Bar of the District of Columbia.
Copies of the transcripts of these and additional documents as available – some of which
may have been prepared in conjunction with the oral history – are housed in the Judges’
Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution A venue,
N.W., Washington, D.C. Inquiries may be made of the Circuit Librarian as to whether the
transcripts are available at other locations.
Such original audio tapes of the intetviews as exist, as well as the original 3.511 diskettes of
the transcripts (in WordPerfect format) are in the custody of the Circuit Executive of the U.S.
Courts for the District of Columbia Circuit.
Historical Society of the District of Columbia Circuit
Interviewee Oral History Agreement
I. In consideiation of the recording and preservation of my oral histoiy memoir by
the Historical Society of the District of Columbia Circuit, Washington, D.C., and its employees
and agents (hereinafter 11the Society”), I, ABNER J. MIKV A , except as otherwise provided
herein, do hereby grant and convey to the Society and its successors and assigns all of my rights,
title and interest in the tape recordings and transcripts (including the diskette containing the
transcripts) of interviews ofme, as described in Schedule A hereto, including literary rights and
copyrights. All copies of the tape recordings and transcripts are subject to the same restrictions
herein provided.
2. Pages 1-33 of the transcript Interview No. 6, dated October 29, 1996, and tapes
8A&B relating thereto shall be closed to all users until my death, except with my express written
permission.
3. It is agreed that the Society shall not authorize publication by scholars, researchers
or others of the transcripts or any substantial part thereof during my lifetime without my express
written permission, but that the Society may authorize scholars, researchers, and others to make
brief quotations therefrom without my written permission.
4. I may authorize biographers or others to read and quote at length from the
transcripts and to use the tapes ofmy interviews with or without the Society’s permission.
During my lifetime, I may determine which, if any, biographer may have authority to use all or
any part of the transcripts in any biography.
5. I also reserve the right to use the tapes and transcripts and their content as a
resource for any book, pamphlet, article or other v.,Titing of which I am an author or co-author.
6. I authorize the Society, subject to the above-stated exceptions and reservations, to
duplicate, edit, publish, or permit the use of said tape recordings and transcripts in any manner
that the Society considers appropriate, and I waive any claims I may have or acquire to any
royalties from such use.
,r-,1 /1.. • 4 .v’7. • ,. /},.
? ,?? ABNERJ. MIKVA? . ,. Dat
SWORN TO AND SUBSCRIBED before me this
I?
Daniel M. Gribben
iii
Schedule A
Tape recording(s) and transcript resulting from 2 interviews of
(number)
ABNER J. MIKV A on the following dates:
(Interviewee)
May 23, 1996 2 Tapes (Tape lA&B)
(Tape2A&B)
June ll, 1996 1 Tape (Tape 3A&B)
June 20, l 996 1 Tape (Tape4A&B)
July 16, l 996 1 Tape (Tape5A&B)
October 2, 1996 2 Tapes (Tape6A&B)
(Tape 7A&B)
October 29, 1996 2 Tapes (Tape 8A&B)
(Tape 9A&B)
November 4, l 996 2 Tapes (Tape !OA&B)
(Tape 1 lA&B)
October 28, l 997 2 Tapes (Tape 12A&B)
(Tape 13A&B)
May 19, 1999 2 Tapes (Tape 14A&B)
(Tape 15A)
The transcripts of the nine interviews are contained on one diskette.
IV
86 pages
60 pages
48 pages
65 pages
91 pages
33 pages
CONFIDENTIAL
Per the Interviewee
Oral History Agreement
40 pages
51 pages
55 pages
61 Pages
Historical Society of the District of Columbia Circuit
Interviewer Oral History Agreement
of Stephen J. Pollak
I. Having agreed to conduct an oral history interview with ABNER J. MIKV A for
the Historical Society of the District ofColwnbia Circuit, Washington, D.C. (hereinafter ”the
Society”), I, Stephen J. Pollak, do hereby grant and convey to the Society and its successors and
assigns, all of my rights, title and interest in tape recordings and transcripts (including the
diskette containing the transcripts) of those interviews conducted beginning May 23, 1996, and
concluding May 19, 1999, as described in Schedule A hereto, including literary rights and
copyrights.
2. I authorize the Society to duplicate, edit, publish, or pennit the use of said tape
recordings and transcripts (including the diskette containing the transcripts) in any manner that
the Society considers appropriate and I waive any claims I may have or acquire to any royalties
from such use.
3. I agree that I will make no use of the said tape recordings and transcripts
(including the diskette containing the transcripts) or the information con)ained therein until I
receive permission from Abner J. Mikva or the Society. / \
DEBBIE R.?ei\-81Y Public
NOTARY PUBLIC DISTRICT Of COLUM81A
My commission expires __ ?My=Commission Expires DeC$mbtlr 14, 2001
ACCEPTED this S?y of ?e.rt;..2000, by Daniel M. Gribbon, President of the
Historical Society of the District of Columbia Circuit.
Danie!M.Gribbon
V
If ),:, tO
Date
Schedule A
Tape recording(s) and transcript resulting from 2 interviews of
(number)
ABNER J. MIKV A on the following dates:
(Interviewee)
May 23, 1996 2 Tapes (Tape lA&B)
(Tape 2A&B)
June 11, 1996 I Tape (Tape 3A&B)
June 20, 1996 1 Tape (Tape4A&B)
July 16, 1996 1 Tape (Tape5A&B)
October 2, 1996 2 Tapes (Tape6A&B)
(Tape7A&B)
October 29, 1996 2 Tapes (Tape 8A&B)
(Tape9A&B)
November 4, 1996 2 Tapes (Tape IOA&B)
(Tape IIA&B)
October 28, 1997 2 Tapes (Tape I 2A&B)
(Tape 13A&B)
May 19, 1999 2 Tapes (Tape 14A&B)
(Tape 15A)
86 pages
60 pages
48 pages
65 pages
91 pages
33 Pages
CONFIDENTIAL
Per the Interviewee
Oral History Agreement
39 Pages
51 Pages
55 Pages
61 Pages
The transcripts of the nine interviews are contained on one diskette.
VJ
ABNEAJ, MIKVA
\l’lsiflng Profe$$()r of low
•
T HE UNIVERSITY OF CHICAGO
THE LAW SCHOOL
1111 EAST 60n STB.EET
CHICAOO , ILLINOIS 606’7•?786
ABNER I. MIKVA
Tn.EPHoNE:: 773,834.5852
FAJC 773-702-0730
amltvo8tcsw.uchicago.edu
-1. Mikva-11 Whitc Hou,eCoumcl tiom October I, 1994 umil November I,
1995. Prior to his ? be -u Chief ludge on tbe United S1ates Court or Appeal•
fur the Dislrict of Columl>ia Circuit. He wu appointed to tbo bench on Scptcmbcr 27, 1979, and
bocameChiof ludgeoo January 21, 1991. Befbreoomma to tbe bcocb, be wueleclecl to
Co”lffll lilrmetenm. ? portiomoCChi-and w llUllud>o. JudgeMikvll servec1
OJI both die Ways and Means Committee and die 1udicw) Committee while in? He
11111od his potiric,1..,. in 19S6 in Ille Illinois House or? wliere be ,er,od me
oomoc:utiveterma While in the 1…-,., heWII Cbainnan oftbeHouseludlciaryCommiltee
and helped …… -criminal code f’or lllinoit, .. – … –heoltb <Ode.
Judge Miha ,_ hislaw de@,:ee llom tbe UniwnityofClricqo in 1951, graduating
Aw w+ 11e–wor111o1.aw-an<1 • ….-orthe 0n1er or the Coil; the
oalioflal lepl llonor lOCiely. He is a member ofl’hi -1C1J1F8 and wa a lawclerk to Uaited
S1ales Supreme Court Jumoe Sherman Minton. Alla llis derltsllip, be -to Illinois, where
1ie…-111o practioe ona.., bocomins a? of the lalelustice Arthur Goldberg. His
pndioe indudod…….,. litiption and appcllo!eworlc. He p-..1 ……i comlitutional
.,…. to tbe U.S. Supremo Coun.
He haa 1ausJ1t …,in “The lqi,L,qw, l>roceu” et N-Univcnily,
CleorgGwn Uai>asily, the Uaneniity ofl’amsylyuja, Amoricu Uaivenity, the Uaivenity of
?. the Uniwnity nfU!inoi, 1111d a courso in “Lepl Etllics” 11 Duh Um.a,ity. Judge
Mikva is the ……i!,or ofa patitical–on tlle? mlitled “The American
CO-: 11H:F’ont8nnch” amlllla-lawscbooltextboouontbelqislamn,prooeas.
Heu the recipiall or.., llooonr1 4-. Ho was sivtn the Paul H Doup1’tbics in
o…nm-Award tltroup the Uaivenity of Dlimria am! the Almnni Modal oftbe Univenity of
Chi-. He,…”””‘””” .iecretl to Ille-.,.. Academy of AIU and Scieaces.
Judge Mikva curreotly is a VJSitins Professor II the Unlvenlty of Cllicap. He co-chain a
tuk foroe on Potitical Rep: 1 mlllitm in Illinois with fimw’ Governor J1111e1 Edpr, and serves
OD the Enoutm, lloud ofthe Cartnl and Eallen, ?I.aw-. aa lffilialeofthe
Amaic:an Bar Aasocietion. Judae Mikva e18C’ enpaes in arbitration and mediation WOik with
JAMS, a nllional ?-.., firm. Judge Mikva’s wife, Zoe, recently retired as Director
of?tor• W.,.. flmlk-ta111tudci–..vo1unteerwort fi>rtbeCbipubtie
sc11ooa They bave tllroe ? lawyer& and • rabbi-n seven s,andchildRn.
July,2000.
VII
STEPHEN J. POLLAK
Stephen J. Pollak is a partner and fonner Chair of the Executive Committee of Shea &
Gardner (1993-1996). Mr. Pollak joined the Firm in 1969 after serving in the United States
Department of Justice and the White House from 1961 through 1969. Among his governmental
positions were Advisor to the President for National Capital Affairs (1967) and First
Assistant and Assistant Attorney General in charge of the Civil Rights Division (1965-67,
1967-69) and Assistant to the Solicitor General (1961-64), U.S. Department of Justice.
Mr. Palla.k’s legal practice has consisted primarily of representing clients in trial and
appellate litigation in the Federal Courts, the Supreme Court, Courts of Appeals, and various
District Courts and before federal departments and agencies. Cases Mr. Pollak has argued in
the Supreme Court of the United States are listed at the conclusion of this resume. His fields
of concentration in litigation have included constitutional law, labor and antitrust law, civil
rights, ERISA, and legal ethics. He has also represented individuals under investigation for
possible violation of federal laws, including lawyers and law firms against whom complaints
have been lodged with the Bar Counsel.
Since 1989, Mr. Pollak has been a member of the Panel of Mediators appointed by
the U.S. Court of Appeals for the District of Columbia Circuit and the Panel of Mediators
appointed by the U.S. District Court for the District of Columbia. He has served as mediator
in approximately 75 cases and arbitrator in five cases that went through evidentiary hearing
to decision. Mr. Pollak is also a member of the CPR Institute for Dispute Resolution’s
Washington, D. C., Panel of Distinguished Neutrals. Mr. Pollak serves as a training consultant
in negotiation for the Office of Dispute Resolution of the U.S. Department of Justice.
Mr. Pollak has served as lead counsel for the United Mine Workers of America Health
and Retirement Funds, a collectively bargained multiemployer benefit fund, in litigation over
the validity under the labor and antitrust laws of provisions of the bargaining agreement requiring
contributions to the Funds on coal purchased by companies signatory to the agreement.
Mr. Pollak has handled more than 50 cases of this nature for the Funds, recovering more than
$100 million in contributions. Other litigation for the Funds includes lawsuits testing the
meaning of the 1992 Coal Act which created the UMWA Combined Benefit Fund.
During the 1970s and early 1980s, Mr. Pollak was lead outside counsel for the National
Education Association in many cases at trial, on appeal and in the Supreme Court presenting
frontier constitutional, civil rights and labor issues.
Mr. Pollak served as counsel to the Secretary of the Department of Health, Education
and Welfare, Joseph Califano, in drafting regulations implementing Section 504 of the
Rehabilitation Act of 1973, and was counsel for respondent Camenisch in the University of
Texas v. Camenisch, 451 U.S. 390 (1981), in which the rights under federal law of a student
with a bearing impainnent to have the assistance of a sign language interpreter were at issue.
ix
INIERVIEWNO. 1
The first tape on Th]rrsday, May 23, 1996, of the Oral History of Judge Abner J. Mikva as
part of the Oral History Project of the D.C. Circuit Historical Society. We, the Judge and I,
Stephen J. Pollak, are at Judge Mikva’s home on Capitol Hill in Washington, D.C. The tape and
transcripts made from the tape are confidential and governed by the wishes of the Judge, which
ultimately will be made in the form of a written donative instrument.
Mr. Pollak: What about starting with the date and place of your birth and what that was
about.
Judge Mikva: I was born in Milwaukee, Wisconsin, January 21, 1926. My parents were
both immigrants. They had come from two small towns in the Ukraine near a town called L’vov,
depending OIi whether it was Polish owned or free, or subsequent Communist Russia owned;
now it’s called Lviv. They came from two little towns about 30 kilometers from Lviv, and that’s
where my grandparents came from too. My father came over in about 1914 or 1915; he ?as one
step ahead of the Czarist Anny and was 19. I have had the great experience of going to the
Archives and seeing the ship’s manifest which recorded that he came over. It said “Gershon
Mikva, age 19, laborer, $10.00,” which was the amount of money he had in his possession. My
mother came over with her parents later on. They married in tbis country. My father was about
31 or 32 when I was born, and my mother was a couple of years younger. So he was born in
about 1896.
Mr. Pollak: Were you their first child?
Judge Mikva: I was their second child. My sister, who was almost eight years older, was
also born in Milwaukee. She was a great influence on raising me. First of all she spoke
marvelous Yiddish For the first seven years of her life she really didn’t speak any English.
Yiddish was the language of the house. My grandparents spoke only that. My father learned
-1-
English though he had an accent, but my mother always had trouble and she spoke it not well, did
not read it at all. My sister. was raised speaking only Yiddish and had some trouble in school
learning English Toe result was she was my great translator as well as my great teacher as I
grew up and if I didn’t understand sometrung my parents had said in Yiddish, she explained it to
me.
Mr. Pollak: What was her name?
Judge Mikva: Rose, a wonderful sister. She was just enough older than I was that we
never had the normal sibling rivalry. She was always proud of my accomplishments, always
encouraging me, always defending me against my parents. Just a great relationship. She was
very fond ofme throughout my life. My father’s initial business as I said was a laborer. I don’t
know what that meant exactly. His first job was in a hospital
Mr. Pollak: You were saying that your father’s first job was in a hospital?
Judge Mikva: Yes, I don’t know exactly what he was doing. I think bis first settling place
was in Minnesota. My father came to this country twice. He came the first time and landed in
Galveston and went back to Russia, I’m not quite sure why – it’s always very confusing to me –
and then he came to New York and landed at Ellis Island. One of those times, I think the first
time, he ended up spending a little time in Minnesota, working in the hospital. Then the next
time he came to Milwaukee. Immigrant society in those days operated on what they called the
“1andsleit” – land people – people who came from the area that you came from and whose
families knew each other. So my parents ended up in Milwaukee because they had ”lantsleit”
from their little towns in Ukraine who went to Milwaukee, and they welcomed them when they
came to Milwaukee. In Milwaukee, my father did several things and finally ended up being an
-2-
insurance agent for Metropolitan Life Insurance Company, which was the Jast steady job I
remember him having. I w? yery small in 1930 or ’31 when he was fired. The insurance
company was downsizing, starting the depression, and, of course I was four or five years old, I
remember what a culture shock and traumatic experience that was for me when my father was
fired. It devastated the household. I was so un-understanding of what that meant that I really
thought they had taken a match and put it to my father and fired him I would say that, ever since
the notion of trying to protect pe ople’s employment has been very important to me. For most
people, nothing is more important than a job. In all this talk about welfare, in my mind the best
kind of welfare reform would be to say to everybody that you will be able to get a job if you want
one and even if you don’t want one we are going to give you one or find one for you – as a
condition of getting welfare. This idea of throwing people out on the market place and saying to
them “starve” – I’ve never been able to be comfortable with this idea of looking at the
unemployment rate and saying well if it gets any lower, it’s going to be inflationary. There’s
something wrong with our economic system that we cannot, in a country that boasts of the work
ethic, be proud of getting as close to a zero unemployment rate.
Anyway, from 1931 on we were imperiled economically. I think the next time my father
got a job after losing that one at the insurance company was a WP A job in 1936 and 1937. Five
years later.
Mr. Pollak: So there were five years in which he didn’t have a steady job?
Judge Mik:va: Yes. I think he got some help from my mother’s family, but other than that
he may have done occasional work of some kind. He may have even been an insurance broker
on his own, but I don’t remember that. I do know we were on welfare, we were on relief. It was
-3-
very painful Milwaukee, socialist town that it was, did not look kindly on people who did not
work and so it was not made easy. We got no cash Everything was in?kind. The authorities
paid the rent and the people who owned our house – the Newton Minow family – he and I were
friends in school and I was very embarrassed that he knew and his parents knew that we were on
relief. Our books were stamped ”Property of the Milwaukee County Outdoor Relief Society,” so
I would never leave my books lying loose in school because I didn’t want the kids to know. But
there were other ways to tell. We had all our clothing from relief. Everyone knew that if you
wore a black wool cap and these big black shoes that they were relief shoes and a relief cap. We
bad to pick up food in a wagon, and I would go help my father pick it up a few blocks from the
house and my mother would give us a cloth to cover the wagon. My mother would throw out the
lard and the bacon because while she didn’t keep a completely kosher house, lard and bacon were
not staples of our household. I kept thinking as I grew older how sad it was that we really never
did have enough food in the house and always good staples were being thrown out. The
authorities did not take into account that some of the recipients were Jewish. That was probably
the most searing experience of my growing up. Feeling that we were outcasts because we were
so poor. I remember the excitement when my father got this WPAjob. I don’t remember what
he was doing. He didn’t know how to type. I think they gave him a job typing anyway, and I
seem to remember that it had something to do with scripts for the WP A 1beater. I’m sure it was
hWlt and peck because he didn’t know how to type. But it was very exciting that he finally had a
job again. Every month or week there was a paycheck.
l\1r. Pollak: Your mother during these years did not work?
Judge Mikva: Mother did not work until very much later, after the war, when she was
-4-
about 60 or so and moved out to California, and she very timidly applied for her first factory job
and got one and how excit??.she was at the idea of working. In those years women just didn’t
work and there weren’t that many jobs for women. It’s .interesting, Milwaukee had a socialist
mayor during all those years and in many respects it was a very progressive town, but it sure did
not treat kindly its old people or its women. My father took me to a Milwaukee County Poor
Fann, that was the name. As I remember I couldn’t have been more than 7 or 8 years old. It
looked like what I later saw in many mental institutions. It had this high spiked fence all around
it, and I saw all these people wandering around aimlessly inside. Their only sin was they were
too old to work and they didn’t have enough money to pay for themselves. That was Milwaukee’s
answer to poverty.
Mr. Pollak: Were you aware in the household oflarger concerns besides the economic
concerns, politics, for example?
Judge Mikva: My father crune over as somewhat of a radical. I suppose in Russia he
would have been a social democrat. I know that he thought that the socialist mayor we had sold
out to the bosses.
That’s what the Jewish activists thought of the socialists in those days. There was
competition between two Jewish newspapers. One was the Forward, Forvetz, which my father
wouldn’t read because it was too right wing. “It had sold out.” My grandfather read the Forvetz;
in fact, I was his designated reader. When his eyes got too bad, I would read it to him.
My father instead subscnbed to a paper called Freiheit, Freedom, which was a left•wing
semi•communist alternative to the Forward. Of course, both of them went out of existence as
far as Jewish papers are concerned; but the Forward is now published as a weekly English
.5.
paper and still claims its socialist origins. Its editorial page looks more neo-con than it does
socialist. But as a result, tll??e was some awareness and political involvement in the family but
very unorthodox because again Milwaukee had a socialist mayor all those years. We had May
Day parades. Occasionally my father wou1d march in the May Day parade but would always find
some particularly left wing organization to march with so as not to be too identified with those
right wing socialists. It was an interesting dichotomy to see the socialist mayor, who probably
was the most honest politician of this era anywhere in the country. When he died they had to put
his wife on some kind of a stipend to keep her from going to the poor fann because he never
made more than $5,000 a year. It was interesting to see all these conservative German burghers
vote for Dan Haan because he gave an honest, efficient government whether he was a socialist,
so what. He didn’t take it too seriously and neither did they. Milwaukee ran pretty efficiently.
Mr. Pollak: In your young years, did you live mostly a Jewish life with Jewish family?
Judge Mik.va: Yes, but my father as part of his radicalism had rejected the religion. He
had become convinced that religion was in.deed the opiate of the masses and so I was not allowed
to engage in any religious activities. He was partly traumatized because we had belonged to a
temple on the east side of Milwaukee while he was working. In fact, my sister had gone to
Sunday school there for several years. When he lost his job and couldn’t pay his dues anymore,
in those days they didn’t make any allowance for poverty, they just threw us out of the temple, so
that just confirmed my father’s suspicions that religion was an opiate of the masses. So, I was
never encouraged, in fact I was strongly discouraged, from having any kind of religious training.
I was never bar mitzvahed. My grandfather would occasionally sneak me in to temple on high
holy days. My mother would go to great lengths to keep my father from knowing about it.
-6-
My father decided that he wanted me to learn about the Yiddish culture, but not religion.
There were Talmud Torahs, the after school “cbeders,” that Jewish kids go to prepare for their
bar rnitzvah. They would go every day for an hour or an hour and a half, and they would learn
Yiddish and Jewish culture and prepare for their bar mitzvah in Hebrew. We had one on 49th
and Center. My father enrolled me – my grandfather paid for it I’m sure – but with the
understanding I was not to learn Hebrew; I was just to go there for the Yiddish and Jewish
culture. Tb.at was always the first part of the session and when the session turned to Hebrew, I
was instructed to get up and walk out. I remember walking out and having Mr. Garfinkel yell
after me, “Abner, come sit down, don’t listen to that “mashuggena” father of yours.” I knew
where the power was and I kept walking. So I never was bar mitzvahed and I never did learn
Hebrew. My daughter is a rabbi and she teases m e that I can’t follow the prayer book. So,
Judaism was not much of a force. My mother did not keep a kosher house, but certain foods she
wouldn’t allow in. We kept a second set of dishes for my grandfather. My grandfather lived in a
little small town in Wisconsin called Omro and he would come in for Passover and the high holy
days and he would stay with us usually because my mother was the eldest child and my
grandfather and grandmother didn’t get along at all and so he wouldn’t stay at her house. When
he would stay with us and have a meal with us, we would haul out the Passover dishes, which my
father would snort at, the idea that we would keep a separate set of dishes just for my
grandfather. My grandfather knew that the house wasn’t kosher and there wasn’t much separation
kept between milk dishes and meat dishes, which every kosher house has to do; but he wanted to
see his grandchildren and the best meal he was going to have all year were meals that he had in
Milwaukee. In Omro he had to cook for himself, and so he ate only milk dishes.
-7-
Mr. Pollak Your mother’s father and your mother’s mother were separated or divorced?
Judge Mikva: They .?ere separated. It’s just a story that I found out when I was grown
and both my grandparents had died. My cousins had done some genealogical work on our
family. They told me that my grandfather bad come over first. He bad left my mother and bis
wife and several other children back in the old country. My grandfather was a younger man, in
his twenties or bis early thirties, and be saved enough money to bring over the rest of the family;
but while he saved up, he was young and the hormones flowed. He took up with a woman, but
still saved bis money to bring my grandmother, my mother and my aunts over. My grandmother
came over and found out that he’d been living with this woman and she threw him out of the
house. That led to the separation. He occasionally would stay there but they would never really
talk to each other. Whenever be would come and stay at her house, she would throw things
around. It was an unpardonable sin. So he lived in a small town, Omro, Wisconsin, with 1200
people and he ran the junkyard up there. I must say that during the early years of my life, I
thought his name was “Max the Jew,” because that’s what everybody had called him They didn’t
do it with hostility, but he was the only Jew they had ever known. He was just Max the Jew. I
remember the first time I said that to my mother, she got very upset and she said, «How can you,
that’s your grandfather, call him Max the Jew!” ”But that’s what everybody in Omro calls him”
She tried to explain to me that that was not nice.
Mr. Pollak: Was there anti-Semitism in your youth?
Judge :Mikva: Yes, but the normal kind. Normal for its time. In the neighborhood, there
were a fair number of Jewish kids so I wasn’t totally isolated. We were a minority. But I
remember being called a kike a couple of times and being called “Abe, Abe, Abe, hey big nose,
·8·
hey big nose.” I can hardly say it was painful because there wasn’t that much of it, but it was
uncomfortable. I still find ?t. ?ifficult to bear anybody call me Abe. My mother went to great
lengths to find a name in the Old Testamen t and she thought it translated differently than
Abraham My Hebrew name is Avram, it’s from my ancestor whose name is Avram But she
thought Avram translated into Abner, and so that was the name I was given. Actually in the Old
Testament Avner was a General in David’s army. I still have complications in a religious setting
or a Hebrew setting, people say your name is Abner, then your Hebrew name is Avner, and I say
no, it’s Avram But, as a result, if anybody calls me Abe, I still have to correct them and say no,
my name is Ab, Abner.
Mr. Pollak: What are your early school memories?
Judge Mikva: Public school? Kindergarten and the first couple of grades I enjoyed
thoroughly. It was on the west side of Milwaukee. It was interesting. I remember it being
pleasant. I remember somebody who I lost track of, I am convinced, he is convinced, it turned
out to be a man by the name of Phil Burton. We ended up as colleagues in the Congress from
California. He went to the same grade school I did and actually ended up in the same high school
I did. I think I lost track of him when we moved from the west side to the north side. One of the
many problems of being on relief was when we would fall behind, well I guess the same thing
happened before we went on relief, we didn’t pay the rent. In any event, when you would fall
behind in the rent, the way to solve that problem was to move and find a new trusting landlord.
So we moved from the west side in Milwaukee to the north side, and it was a painful move for
me because I didn’t like the school I went to. I think I only went to the north side school for a
year or so and then I commuted back to the west side, but I had broken continuity and I wasn’t
.9.
there for after school. It just colored my views on busing later on. I realized that even though it
was hailed as this great solμJi?:m for our segregation problems, busing children at a tender age is
not a great idea. Kids like to be able to play in the neighborhoods where they live, and the idea
of being bused to the other side of town – in that case by taking public transportation to the other
side of town – was very unsatisfactory. Because of the time I had to leave to get home, I never
did get the friendships that I had the first year, so from about the second or third grade on all the
way through junior high school and high school, I remember school being very unpleasant.
Mr. Pollak: Did you ever have a busing case come before you on the D.C. Circuit?
Judge Mikva: I think we had the aftermath of some of them We had some of the threejudge
cases. I think on one occasion ] was designated to sit on a three-judge case on busing for
one of the southern states. None of the main line cases, however. By the time I got in the court,
the big Skelly Wright controversies were already over.
Mr. Pollak: And Hobson v. Hansen – was that complex of cases gone?
Judge Mikva: Yes, gone.
Mr. Pollak: Well, maybe it will come up at a later point, but it raises an interesting issue
when someone who later becomes a judge candidly says, well my early experience with public
transportation to a school colored in my feelings about busing and later you meet the issue as a
judge and that’s an underlying framework against which the arguments throw themselves.
Judge Mikva: I recognized early on in my judicial experience, when J got on the court
and had time to reflect on why 1 had come out the way l did and why my intuitions and my
instincts would move me to one side of a case or another, that no judge, and certainly no judge
who has been involved at all in public affairs, comes on to the Court as a tabula rasa, Justice
-10-
Rehnquist once used that term We’re all conditioned and colored by our experiences, and
frequently those early cbild,l}o,od experiences are the most important.
I remember Justice Scalia and I once compared notes on that and realized that both of us
had been affected by things that had happened to us early in our lives. 1bis becomes almost a
given, not a rational, scientifically derived given, but something that’s just part of you, and it
comes out as you react to cases. Would I uphold busing decrees? I think I did. I’m sure I would.
But not without some angst about the consequences of ordering kids to get on a bus to go to the
other side of town.
Mr. Pollak: Obviously, if school was not a pleasant experience for you, you must have
had an aptitude for it?
Judge Mikva: I did. I did very well. In fact, I used to think that that was part of my
problem was that I did well and didn’t know how to handle doing well. You know, some kids
can excel and be nonchalant about it. I obviously must have had a braggadocio about me. I
never felt very secure about who I was and what I was or that I was keeping up with my peers,
but clearly I very much remember people resenting that I did well.
Mr. Pollak: People being other students?
Judge Mikva: Other peers. And most of the teachers weren’t that aware. In class they
had nothing to worry about as long as I wasn’t making a lot of trouble. There were a few
teachers, there were one or two who sort of sided with the students. They sort of sensed that I
was not a lot of fun to be with and that didn’t help. There were one or two that were sensitive to
the fact that I was very unhappy and not comfortable with my peers, and they tried to help. I
remember once – and this must have been in the sixth or seventh grade, seventh grade – the class
-11-
was electing somebody to write the class play. Tuey were nominating various people and, of
course, I was not nominate4. The teacher exploded and she said, “Abner is the best writer in the
class. You ought to be ashamed. of yourselves not norrtlnating him.” Well, of course, then
somebody nominated me and I was elected to be on the committee. But I just felt miserable that
I wasn’t put there on the merits.
Mr. Pollak: Do you recall teachers that had a significant influence on your later being?
Judge Mikva: I do. I had one teacher, I think it was Ellen Hargrove. In junior high
school – seventh, eighth, and ninth grade – we had a teacher for what today we would call
humanities. It was English and composition and all of the reading and all of the things that go
into the humanities courses, and she was great. I had her for three years and she was the primary
teacher that I recall during the period. She understood that I was a very unhappy, lonely kid and
really went out of her way to try to encourage me. I trunk if anybody gave me the beginnings of
self confidence, it was she. She praised me about my writing. Her notes on my themes were
very flattering. She would write more and she would give me books to read and she really had a
good influence. Then there was a high school English teacher, Edna Goeden. I remember her
name because just a few years ago, the Washington High School, which was my high school, bad
a program where they invited back alumni to honor special teachers and Edna Goeden was one of
the nominees who was honored and they asked would I come back and give her the citation,
which I did. It was very exciting. She was then the closest thing to a contemporary that we had
in high school She was about six or seven years older then we were, and I remember that while
we were still in high school, the war broke out and she volunteered to become a member of the
Womens Anny Corps – the WACS they were called – and left school English was my fone. I
-12-
loved writing and I loved reading and I loved drama and it was just, as far as I was concerned, all
the rest of the courses wer?.$flgs you had to do, but I liked to do English One of my original
career aspirations was to be a writer.
Mr. Pollak: It’s interesting that in the early childhood experience you characterize
yourself as sort of not fitting in with your peers and unhappy. It certainly must be a characteristic
of your later life that you fit in with all kinds of people and that you were really quite a happy
person. What changed all of that?
Judge Mik:va: Well, I think that part of it is what I used to tease the President not too
long ago. I trunk that he and I have some similarities in that we came from dysfunctional homes,
though his childhood as he describes it was a bit happier than mine, but clearly there’s this strong
desire to be liked, to tty to accommodate to other people and adjust to other people and you learn
certain behavioral traits. I remember – this was happening when I started practicing law – that I
had a client, a young client, my contemporary, who just always smiled. Somebody could say
tenible things to him and he’d just smile. I thought what a marvelous quality to have to just not
let anybody get your goat that badly that you growl at them or glare at them, you just smile. It
wasn’t a simpy smile, it was just that he would smile at people. I think that out of those
experiences, I became very aware of the need for social graces in this society. I don’t think I ever
particularly aspired to running for public office. Obviously, when I did start doing it, that made
me more aware of how important it is to get along with people and not let personal animosities
litter your life. I think that’s one of the President’s great strengths and one of his failings.
Mr. Pollak: Ab, you mentioned that you had a dysfunctional home.
Judge Mikva: Yes. My parents did not get along at all In addition to economic
-13-
problems, they were at each other’s throats literally, my father was physically abusive. It was just
very troublesome and they.?tayed together “for the children’s sake.” I’m not sure that they did my
sister and me any great favors.
Mr. Pollak: Did they part after you grew up?
Judge Mik:va: Sort of. When we grew up and I went off to the service, they moved out to
California and lived with my sister and her husband in side-by-side row houses. They lived
together as much as they ever lived together and then my mother got sick first, but they got sick
about the same time. Then they were in different treatment .institutions.
Mr. Pollak: Did they both have significant influences on your life? Were you partial to
one or the other?
Judge Mikva: I felt sorry for my mother. I didn’t have much respect for her putting up
with it, but I felt sorry for her that she was being abused. I never felt myself being particularly
close to my parents. I realized as I grew up, I have thought about it since, that they did have an
influence on me. I always thought I got my competitive edge from my father, but I was more
successful in channeling it than he was. But clearly he did trunk about a broader milieu than just
his house. They frequently would not talk to each other. I guess that was one of the things I
remember most. And that too was something that influenced me when I got on the court. They
would frequently get angry at each other and not talk to each other and they would use me and
my sister as conduits. Tell her “dadadadada” Tell him “dadadadada.” And that used to remind
me of what it must have looked like to the lawyers when we sat en bane because the judges –
they were usually important controv ersies or other high-profile cases – and some judges had
strong views about it. Well they couldn’t argue with each other on the bench and so, of course,
-14-
there’s poor Steve Pollak up there trying to argue his case but Judge X says, but Mr. Pollak, isn’t
it a fact that; and before M!: ?ollak can even begin to answer, Judge Y at the other end of the
bench says yes, but Mr. Pollak, isn’t it a fact that “dadada.” And poor Mr. Pollak stands there
because he has no role to play except to be the conduit. I always trunk ofmy parents as using me
as a conduit in those situations.
Mr. Pollak: What about your early reading, any books you can think of that had an
influence on you?
Judge Mikva: I read a lot. I remember reading early. My sister taught me how to read
before I went to school, and I was always considered a fast reader, and my escape from my
unhappiness in school was to read. The public library was close by, and it was accessible, and I
would read five or six books a week. One ofmy proudest possessions one summer was an award
of a paper mache? bookworm for people who read thirty books during the summer. I won it
hands down. Mine was a very eclectic kind of taste though. I remember reading a lot of
adventure stories. A lot of travel stories. But the single most influential set of books that I
remember was a series of boys books called Tahara. There were four books. Tahara, Boy King
of the Desert, Tahara in the Land of Yucatan, I forget the other books. Three of the places that I
have visited since – I felt anxious to visit them in part because I remember reading about them –
were Yucatan and the deserts of Egypt and the Middle Bast and India, which we just went to. It
was just a couple of years ago, and I still remember the descriptions of those countries in the
Tahara books. Other than that, I started reading biography, but I think that was by the time I got
into junior high school or high school.
Mr. Pollak: Did you do any traveling or stay there in illwaukee?
-15-
Judge Mikva: I think we went to Chicago once. I think the only other time I left
Milwaukee was when I we:n.t to enlist in the Anny.
Mr. Pollak: By which time you were 18?
Judge Mikva: Right. I take that back. I went up to Madison a couple of times. And then
we would go to Omro.
Mr. Pollak: To see your grandfather?
Judge Mikva: I’d drive him around when I got old enough to drive. Before then, I would
ride in the truck with him I would go around the countryside, around Omro and Oskosh and all
the way up to Ripon and Fond du Lac and that area, because he would buy junk in that whole region.
Central Wisconsin. I never left Wisconsin except that one visit to see relatives in Chicago.
Mr. Pollak: Were the family finances such that vacation time was essentially just nonschool
time? There were no holidays?
Judge Mikva: Toe big vacation events that I remember were that we would occasionally
take a Sunday and drive up to visit some friends in Oconomowoc or Peewauk.ee – little towns
with lakes near Milwaukee about 30 miles away. We used to go quite regularly because my
parents had some friends that lived in a cottage up there.
Mr. Pollak: Wisconsin, at least outside of Milwaukee, is a very, was then, a very fanning
state. Did you come in contact with either the farming or the wilderness aspects of the state?
Judge Mikva: When I would go visit my grandfather, because he lived in this little town
which was really a farm town, I would meet some of the neighboring families up there. I
remember that we would walk across the street and fish in the Fox River. Tb.at was fun just
wailcing across the street and pulling out a fishing pole and fishing or walking up to the creamery
-16-
to get fresh milk that had just been pasteurized. When I started driving around with him, I would
go to the farm families whe{e. he would pick up newspapers and rags and other things that were
for his junk business. I got to know something about farmers. I always had a feeling they were,
at least in Wisconsin, a fiercely independent kind of people. They prided themselves on their
ability to be self-sufficient, and they wanted as little to do with government and the community
and other people as possible. They would drive into town once a week to pick up their groceries;
but most of them would brag about how much of their stuff they could raise on their own farm.
raising their own vegetables, their own milk, and everything else. This was a source of great
accomplishment for them It would be interesting, I’ve never looked, but I would wonder how
many of these militia from today have antecedents in that farm life of 50 years ago, 60 years ago,
where the idea of being self-sufficient and h aving no relationship to government was prevalent.
Mr. Pollak: Why don’t you say something about high school?
Judge Mik:va: High school was when things started to change for me. First of all, I did
develop some friends. I started up with a couple of them in junior high school but then became
good friends in high school and the circle widened a little bit. I began to develop a little self
confidence. Still, the key things in high school, my high school, were sports and girls. I wasn’t
very good at either of those. I didn’t know how to dance, or didn’t know how to dance very well,
and I didn’t dress well. That was an important measuring stick of how poised you were, how
“cool” you were, to dress well. One, I didn’t have the money for clothes and, two, I didn’t have
very good taste in clothes. I still don’t, I think. I remember my first reason for getting a job was
to go out and buy some clothes and at least think I looked like the other kids in high school. But
in other ways I began to feel a little bit more comfortable with myself First of all, I think doing
-17-
well in school became a little less objectionable. I began to handle it a little better. There were
some recognitions of some. 9f the scholastic things that I did, like the honor society and the honor
roll and the newspaper. I was on the school newspaper and ended up as editor-in-chief of the
school newspaper. That was somewhat reflective of my less-than-secure standing with my peers.
The teacher, who was a very unhappy person, was unhappy with stuff that I was doing. It was
my first electoral effort, and it was a disaster. This teacher would decide who the people would
be who would run for editor-in-chief. You worked your way up by starting as a writer. In my
first year in high school, I became an editor, and then I became managing editor in my second
year in high school In the third year, she would decide who the four nominees would be to run
for editor-in-chief. There would be speeches before the whole school assembly and a campaign
and the school assembly would vote for who would be editor-in-chief. She decided that I would
be one of the four. We all made speeches. Four candidates, one of whom really barely had been
.involved in the newspaper – I figured I could at least run ahead of him because I had some
bylines and some stories. The other two candidates I knew were formidable because one was a
woman who was very popular, very nice and very bright – she was one of the brighter students
around. Anyway, so the four of us all made our speeches. They counted the votes, and I came in
fourth The guy who I had written off made a great speech. He took bis name and T stands for
this and E stands for his and S stands for this. And so he came in third as a result of his speech,
but the popular woman won the editor-in-chief, which was sort of as I expected.
It was in the middle of the year, and there was still one semester left to go, and we didn’t
have special elections. The woman teacher decided who the editor-in-chief should b-e. She
called me in her office and said, “You know, you have done a lot of things wrong in all the time
-18-
you’ve been here, and frankly I would not have voted for you when you ran, and rm still not sure
how good an editor you’ll re.,. but you write better than the other people on the staff, besides
which you did come in fourth and the others didn’t even run.” Two others had dro pped out of the
pa per altogether. “So I’m going to make you editor-in-chief, but you better do it right, the way I
tel1 you to.” Anyway, being editor-in-chief of the paper was exciting, interacting with the other
staff people. Newt Minow was my sports editor. It was a lot of fun.
Mr. Pollak: I’ve always thought that journalistic experience is an excellent background to
law. You get to the point, you are able to express yourself.
Judge Mikva: It really is. Also it gives you some writing experience. It gives you some
thought-marshaling experience. You learn the need for being able to plan a piece- first, let your
mind wander from thin g to thing and from issue to issue and from feeling to feeling. Then you
force yourself to discipline your mind and say, okay, here are the facts, here is what I’m trying to
say , how do I say it in a way that other people can understand. I can’t think of better training for
the land of communication skills that lawyers need.
Mr. Pollak: WaB that your main extracunicular ac tivity in high school?
Judge Mikva: Yes. I was also involved in theater. We had a system when I was in high
school: you had points you would get; you would be assigned a certain number of points for
various things you did, and you could not be involved in more than 30 points a year. Being
editor-in-chief of the paper was something like 20 to 25 points so that didn’t leave me much else,
and the one other thing I did was the Washington Players, which was theater.
Mr. Pollak: How big was your high school class?
Judge Mikva: My graduating class was about 400.
-19-
MI. Pollak: A pretty sizeable school. All urban?
Judge Mikva: All ?ban. All city. It was on the west side of Milwaukee. There was not
a single black student or teacher or person anywhere. I guess I must have met a couple of blacks
when I was a child, but I don’t remember them The first black people I remember meeting was
when I went in the service.
Mr. Pollak: Were there blacks living in Milwaukee?
Judge Mikva: Yes. But they were on the other side of town, on the north side, and they
were a small number then, and they were very much ghettoized, and you just didn’t hear about
them. and there was no involvement with the rest of the community. Out in the pasture.
Mr. Pollak: Did your newspaper have editorial positions that you were involved in
taking?
Judge Mik.va: No. Well, if they did, they were, “We should be for loving the flag, and
we really ought to respect our teachers.” It was namby pamby. The things I remember enjoying
the most were writing, and I used to do this one thing until I became editor-in-chief, (I think I still
did it a couple of times afterwards) was writing biographical columns about other students.
There would be one or two of these in each issue of the paper, showing pictures of the students
and interviewing them; and I enjoyed that. That’s why I thought being a newspaper reporter
would be a lot of fun, just going out and talking to a lot of people and finding out what they think
and have to say. The other thing I enjoyed doing was the physical layout of the newspaper, and
that I kept doing even as editor-in-chief because whoever my managing editor was or whoever
was supposed to do it didn’t quite comprehend how you lay out a sheet on a newspaper, how you
translate the typed words into what they would look like in print and how much to allow for a
-20-
headline. I used to love to do headlines because you had to allow so many places for each letter
and make sure that the hea_ql:ip.e fit.
Mr. Pollak: What was your own direction as you moved toward the conclusion of your
high school career? I guess the World War was going on, so you probably were thinking of
service, but what were you thinking you would make of your life at that juncture?
Judge Mikva: The war broke out in December 1941. I remember, it wasn’t just that I had
discovered girls but at the end I could dance, barely, and dressed passably enough that I could at
least be involved in some matters dealing with girls. We were at a dance at one of the
synagogues on Sunday night. It was Pearl Harbor Day, and so it was 1941. I was 15 going on
16. We were walking home from the dance with one of my friends, who’s still a friend today and
lives here in Washington, and we were talking about what this meant for us. Of course, it meant
going into the service and that just put aside all the other things we used to talk about like being a
firemen or an airplane pilot in our early teens, preteens. We literally stopped talking about
anything after service. If you talked about it, it was very vague and inconsequential. Oearly, the
next step in our life was going to be so overwhelming and so consequential that there was no
point in talking about it. There wasn’t any morbidity. I don’t think we worried about dying. No,
I don’t think we thought about that at all, with that marvelous sense of immortality that all
teenagers then had. But it’s just that the next step was so big and so important that we couldn’t
beg.in to worry about any .in.consequential. things like what we were going to do with the rest of
our lives. So we just talked about the service, what branch we would go into upon graduating. I
bad already made up my mind that I wanted to be a Navy aviator. That’s what I really wanted to
do. I went about it in the worst possible way. I knew nothing about it, I had never been near an
-21-
airplane, but it sounded like a lot of fun. I had never been very good in the sciences, and it never
occurred to me that there w,a? some connection between physics and aviation. I was good at
math and I had taken a lot of mathematics, but when I went to take the naval cadet examination
for admission as a naval cadet, there were about six questions on physics and I didn’t know any
of them Literally, I was astounded. Any test I had taken in the past where I didn’t know the
subject matter very well, at least I could figure it out, but these were concepts I had never heard
of A pump and how it works and some of the other things that are involved in physics. So I
flunked the admission test for the naval cadets. I was so humiliated, so embarrassed, that I went
to the next best thing, the Army Air Corps, which had a cadet program but was not quite as elite
as the navy cadet program. It had an easier examination to crack, and you got into the army cadet
program You were allowed to enlist in the army when you were 17, but you couldn’t be called to
active duty until you were 18. So, even though I had graduated from high school, I was only
17-1/2 and I had another six months; they wouldn’t take me until my 18th birthday, and so I got a
semester of college in.
Mr. Pollak: Let me ask whether you had any disposable income of your own during these
high school years. Did you have summer jobs, winter jobs?
Judge Mikva: Yes. First I worked as a newsboy in junior high school So, I had a little
disposable income. I delivered the Milwaukee Journal. Actually, my first job was working for a
relative of my brother-in-law’s. I worked for lrim for 10 cents an hour, when I was about 10 or 11
years old. That was my first job and that was my first disposable income. I think it was as much
as $1 or $1.50 a week. It was very exciting. Then I got a job as a newsboy and I made about $4
or $5 a week, which was enough to give me spending money and allowed me to buy some
-22-
clothes that I otherwise wouldn’t get. And then, I think when I became 16, I was able to get a job
in a shoe store, and that w? ?hat most ofus did in high school was work in shoe stores on the
weekends – Friday and Saturday, Friday night and Saturday during the day – and then I would
make $10 or $12 or $15, giving me spending money that could buy some real clothes, suits and
sport jackets and saddle shoes. During the summer, until 1 was about 15, I don’t remember
working during the summer. Oh, I used to go up to the country with my grandfather occasionally
and work for him but not get paid very much I think at 16 was the first time I got a job working
for another person, going door to door selling towels made from burlap bags, and that made
money. I guess my last year in high school, I got a job. The war was already on; I got a job in
Schlitz Brewery during the summer, moving cases around. The significance of that job was that I
made $.85 an hour, which was more than my father’s pay. I made $30, $35 a week, which was
just awesome.
Mr. Pollak: I have two questions about it. One, were you then thinking of saving for
later needs? Two, did those jobs form your feelings about work or form your attitudes in later
”° ?we.
Judge Mik:va: Not really. The Schlitz job was kind of interesting because I liked the
camaraderie. We worked side by side with a lot of seminary students who were working there
dwing the summer, and I was awed by these future people of the cloth who knew how to cuss, to
tell dirty stories, and were just like the rest of us and it was great fun. The job as a newspaper
boy, what I remember about it, was that it froze me out of a lot of things that I would have
wanted to do after school.
Mr. Pollak: Oh, you were delivering an afternoon paper?
-23-
Judge Mikva: Yes. It meant I couldn’t participate in some of these extracurricular
activities like others did. I.4?n’t remember the great satisfaction of being able to save money. I
did like the idea of having some spending money and not having to be quite as careful on each
penny as I had been when I was without funds of my own. I think my work ethic, if I have one, I
think it really came from the fear of poverty.
Mr. Pollak: Should we move to this half a year of college before you went into the
service? Let me ask about your consciousness in those high school years of matters that we now
know so much about, the developing war in Europe, the Depression, the Roosevelt
Administration. How did you relate to those events? How did they form you?
Judge Mikva: The Depression was the overwhehning event of my childhood. It seemed
that there was something so terribly wrong and unfair about subjecting this huge part of the
population to this great poverty. I remember reading Grapes of Wrath when it came out and
being outraged at what we had done to the rural poor in the Southwest but feeling equally
outraged about what we had done to the urban poor and my family .in the North I was a strong
supporter of the unions, of the CIO when it first started, and of John L. Lewis and his fight for
the coal miners and learning much about it. My father kind of took a dim view of the unions
because they were all right-wing sell-outs. I just thought John L. Lewis sounded so angry and
vigorous when he would speak. And, of course, Roosevelt was, again, everybody except my
father, thought he was the best thing that ever happened to country. I remember marveling at it at
the time but then marveling at it even more as I got older: Roosevelt was hailed as this great
savior when he was elected in 1932. From 1932 until the war got hot in 1940, our conditions
didn’t change. They didn’t get any better. Welfare was more institutionalized, and the WPA did
-24-
provide jobs for some people for a while but we were still poor as dirt and the economy wasn’t
any better. Now, he did pu? ? this great underpinning of Social Secwity and old age assistance,
but most ofus didn’t really know very much about that, it didn’t really affect us; and yet he was
hailed as the great savior of the poor. It was fascinating; I think that was the first time I realized
how much of it had to do with his persona rather than any particular accomplishments he had
achieved. Most of the New Deal legislation that we now talk about and hail didn’t do much for
the really poor in this country. It helped the working poor, and it created a safety net which has
helped a lot of people since. Social Security has transformed the country, and old age assistance
has transformed the country. But people like my father were not affected.
Mr. Pollak: What about the war?
Judge Mikva: By that time, I was becoming a little more aware of my own Jewishness.
Partly because, in spite of my father, I did get involved in some of the social activities that the
synagogues had. We still didn’t belong to any synagogue, but I got a little bit involved; and I
belonged to a Jewish high school fraternity. It didn’t have any religious roots; but we were
already separated out, Jews and non-Jews. I wasn’t very good in athletics and certainly not good
enough to do any of the competitive stuff in high school. The Jewish organization was something
called AZA, which was affiliated with B’nai B’rith and had its own basketball league for the
Jewish kids, and I played in that. I wasn’t very good but I at least got an opportunity to play. So,
I became more aware of my Jewish i dentity. The stories were just beginning about the great
problems the Jews were having in Europe. But I could not believe some of these stories of excesses
that were going on like ”Kristallnacht” and some of that stuff. I didn’t know what exactly
happened. I thought that was probably somebody’s exaggerated story, just like the stories about
-25-
what the Germans did to the Belgian babies in World War I, which turned out to be a big hoax.
That was just propaganda !lgalllSt the Germans. And I remembered that I, while I didn’t have any
complicated views about Nazism and the Nazis, I really felt uncomfortable about the way it was
being taken out on the Germans. Milwaukee is a big German town, and I knew what they’d done
to the Gennans in WWI.. I recalled reading about how during World War I they’d stopped
teaching German in schools. They were forcing the German restaurants to close up. I thought
that was so stupid, and I really thought we were exaggerating the excesses that were going on.
I must recall one other incident because this has had a great ?uence on my attitude
about street violence. This has to be about 1937. I was maybe 10 or 11 years old. The Nazis had
a Milwaukee Bund and it had pretty wide activities throughout the state. They announced that
they were going to have a big rally in Washington Park, which was one of the parks in
Milwaukee, and there was a big whoop-de-do about whether or not they would get a permit. The
County tried to tum them down and finally the Governor, Phil LaFollette, – the Attorney General
probably told him he bad to because of the First Amendment – issued them a permit and said,
yes, they could march. They had this rally in the park. Toe left-wing organizations in
Milwaukee, with which my father was identified, announced they were going to protest at the
rally. So it was a Sunday morning and we all went out to Washington Park. The protesters were
hanging this big Nazi flag in the park. My father took me out to the park. There was this small
group of left-wingers, members of this organization, who started circling near the flag. My father
was originally supposed to be one of the ones that pulled down the flag. When they saw him
with me, I don’t know if he took me for that purpose or what, but anyway, they would not let him
march with them I mean the demonstrators expected trouble. So we stood on the periphery and
-26-
watched: around this whole group of demonstrators, there was a group of Nazis in their
uniforms, their Sam Browl).?lts, their hip boots, and their swastikas on their arm bands, their
military hats. They formed a circle around the demonstrators, and around them was a circle of
Milwaukee police with all their uniforms, all their clubs, and it was like a little tableau. On
signal, one of the demonstrators lunged at the flag, tried to pull it down, and the Nazis pounced
on top of them and Milwaukee police pounced on top of the Nazis and shrieks and yells and
clubs going and lots of people with bloody beads and bloody noses and the police hauled them
off, several of the demonstrators and several of the Nazis, in the police vans and took them off to
jail. I still don’t know whether that was why my father took me or not, but I can still remember
the sound of those clubs cracking heads and the sight of the blood spurting out. Nobody was
killed. As riots go, it was a very mild one. But I have never been able to watch street violence
since or civil rights violence in the ’60s or the Democratic Convention in ’68 without getting this
chilling feeling.
Anyway, all of this is a lead up to the fact that when the stories started about the Nazi
atrocities against the Jews, I really thought they were exaggerated. I just really didn’t believe that
it was that kind of wholesale killings and slaughter. There were some few immigrants coming
over from Gennany describing this, but nobody paid much attention. We just thought it was
exaggerated. I still remember that embarrassed, foolish feeling I had when I learned in the
service that the first Americans had captured one of the concentration camps. I don’t remember if
it was Auschwitz or one of the other camps. It was a Sunday morning; I was an aviation cadet;
we were supposed to have leave that day and go into town. It was 7:30 am, and it was a surprise
reveille and all the men had to fall out; and the loudspeaker says, “the Captain wants everybody
-27-
in the post theater at 0800.” He apparently did this on his own; I’d love to find out the name of
this guy. He decided the ?.st captured films were important for the troops to see, and he brought
us all in at 0800 and sat us down and put on the films. You’ve probably seen some of these clips.
I remember how embarrassed I felt that I had demeaned the capacity of the Nazis. It was a very
searing experience.
Mr. Pollak: Well, you went off to college. Where did you go? How did that come
about?
Judge Mikva: My first year of college was at the University of Wisconsin in Milwaukee.
1 lived at home. I still don’t understand why. The tuition for the semester was $16, and we didn’t
have it. I had to borrow it from one of my uncles, which made my father very angry because he
didn’t like my mother’s brothers. I was uncomfortable about borrowing the money, but there was
no alternative because we literally did not have $16. Why I wasn’t able to save it I can’t explain
to you, but we didn’t. So I ended up spending the semester at the college in Milwaukee living at
home. I seem to remember it very much as a continuation of high school. It was not particularly
demanding. It wasn’t particularly structured in any way. I didn’t have my head into it. I was
thinking much more about going off to the service and was very anxious to get called up. I
remember even writing a letter to the Army asking to be called as quickly, as possible and my
mother saw the letter and was so upset with me that I was going to go off to war and get killed. I
was trying to encourage them to call me early to the end. Whether it was a result of the letter or
whatever reasons, I got my orders in December to appear on January 25th at Fort Sheridan in
Illinois. I went on to active duty. The only other thing I remember about that college semester
was I learned how to play pool. There was a pool hall right near the college building. The
-28-
University of Wisconsin at Milwaukee was one building. It was called the Extension at that
time, the Extension. It was _o_ne building. It was right near the pool hall, and when I had free
time I would go down there, and there was a man who owned the pool ball, called “John the
Greek,” and he was tolerant of all these college students who would come in because he made
money on us. But, anyway, be taught me how to play pool, which I still love to this day. But, 18
and four days, I was down at Fort Sheridan.
Mr. Pollak: How long did you serve in the military and would you describe your service
and its meaning to you in forming who Ab Mik:va became?
Judge Mik.va: Well, it was my first time away from home. It was my first time out of
Wisconsin. It was my first time in many, many other respects. It was a very maturing experience
for me.
I spent 22, 23 months on active duty. I was mustered out in November of 1945, having
entered in January 1944. I went all the way through cadet school and navigation school and was
commissioned a second lieutenant as a navigator on B-24s, the Liberator bomber. We got as far
as getting our crew together in Lincoln, Nebraska, and went out to Walla Walla, Washington,
which was to be our port of embarkation. We practiced flights around there to get accustomed to
each other as a crew, and then we were supposed to fly over to the Pacific to wind up the
operations there. It was already past VE Day. In fact, I remember we were on a troop train – this
is how callous 18-year-old kids can be or 19-year-old kids – we were on a troop train on our way,
I think, to Lincoln and VE Day came. No, I take that back. We were on a troop tram someplace
and VE Day came and how disappointed we all were that we weren’t going to get a chance to
fight in Europe. Then we were on another troop train, or at least I was in transit someplace, when
-29-
VJ Day came, and I wasn’t given a chance to fight there either. Instead of being happy and
cheering and enthusiastic, ? -?as depressed because I didn’t have a chance to do my thing. So in
November of 1945, the Army was very anxious to get rid ofus. We were getting paid a lot of
money in those days. I forget what it was, but in addition to our regular salary, we got a 50%
bonus because we were flying. That was one of the great inequities of our military pay at that
time – extra flying pay. Flying was much safer than most of the ground activities, much cleaner
and much more comfortable, and yet we would get a 50% bonus if we flew a certain number of
hours each month. So they were paying us a lot of money and they didn’t need us anymore, so
they couldn’t wait to muster us out. In November of 1945, I was mustered out and came back to
Milwaukee and went back to school in January 1946.
Mr. Pollak: Besides all the broadening travel and experience, how significant was this
military service in your life?
Judge Mikva: Mostly it was broadening. The military skills that I learned, learning how
to navigate, has not been something that has stayed with me particularly. I never did develop a
taste for flying. I didn’t want to pursue being a pilot. I wanted to be a pilot originally, but they
found out my depth perception was not very good and I ended up a navigator, and that was fine.
I think it was mostly the broadening experiences in terms of my involvement with different kinds
of people and different situations that I had never been exposed to before. I think I mentioned
the first time I met black people was when I was in the service. The first time I was really
exposed to the deep prejudice that was prevalent in the South against black people was then. I
remember two experiences very vividly.
On my first southern trip, I had just been in Fort Sheridan, and the first place I went for
-30-
my basic training was Keesler Field in Biloxi, Mississippi. Obviously, it was my first time south
of the Mason-Dixon Line, .l¥1? we were an all-white battalion, of course. There were blacks on
the base and in the town. I went to town one day and got on a bus in town and the only seats,
well, [ don’t remember if there were any seats but I just happened to be sitting in the back of the
bus. I sat down. I don’t even know if[ was sitting down next to a black person, or just sitting
down in an area that was designated for black people. I just sat down and the bus driver slams on
his brakes — pulls the emergency brake up, saunters out of his seat. [ still remember him looking
like a prototype of “Bull Connor”; he saunters back to me and says, “God Damn Yankees. The
uniform doesn’t give you the right to ignore the fact that that’s the nigger section of the bus. Now
you sit up there where you belong.” So [ got up and sat where I belonged. Anyway, [ could see
that the black people around me were very uncomfortable and wished I would go away.
The other thing I remember is an incident on my second base down South. I don’t know
where it was. It was a smaller base and the troops were still segregated, but we had only one PX
theater, one post theater, because it was too small for two theaters. Most bases had a black
theater and a white theater. Only on this one post there was just one theater. They segregated the
troops by having the blacks sit upstairs in the balcony, which was common down South. We
were walking into the theater, a buddy of mine from Alabama, and we sat down on the main
floor. And he said, “do you smell them?” And I said, “smell what?” And he said, ”you don’t
smell those niggers?” And I said, “what are you taJking about?” He replied, ”Can’t you smell
those niggers upstairs? I can smell them” And I’m sure he thought he smelled something
different about black people sitting upstairs. I thought about that many times, and I realized how
deep set those feelings were and how incredibly complicated it was to try and change things; so
-31-
what an incredibly courageous act it was for Truman to order integration of the anned forces and
how much resistance there.i;n.μst have been all the way up and down the line, the enlisted forces,
the officers corps, probably the Joint Chiefs, who knows. But what a courageous act it was to
just order it done.
Mr. Pollak: Well, take us back then to the returning veteran going to college for real, no
longer the service clouding your future.
Judge Mikva: Well, I still didn’t have a clear picture of what it was I was going to do, but
I thought I would be an accountant. I liked numbers. Journalism was still attractive to me. The
father of one of my friends was a journalist who worked for the Milwaukee Sentinel, and I could
see that they had economic problems somewhat similar to the ones that my family had. They
clearly weren’t comfortable. At that point, I really decided that the one thing I wanted to do in
life was to get economically comfortable. I remember a high school friend and I, we decided in
our sophomore year, as we were walking home, we agreed that ifwe could ever make $5,000.
Mr. Pollak: You were saying that you had an objective of making $5,000 a year?
Judge Mikva: That would allow us economic security, and, at that time, it probably
would have. That was a lot more than people were making in our society. But that was moving
me more toward accounting than journalism because I decided accountants were more comfortable
than journalists. I came back to school I had developed a lot more self confidence by
that time, and I was more comfortable with the opposite sex and was more comfortable about
who I was myself I found that I could make friends a little bit, not a lot. I still had some trouble
in a certain respect. Nowhere near as bad as I had had in high school.
Mr. Pollak: Let me just interrupt and ask, what were the dollars you earned in the
-32-
service? What was the range?
Judge Mikva: It? when I enlisted, I was getting $21 a month I think when I became
a Second Lieutenant, I was getting something close to $200 a month, and that was a lot. I could
not spend it all because room and board were paid for and I was single. So it was how much you
could drink, and, being 18, it was hard to drink that much It was a lot of money. I didn’t save
anything. I don’t remember saving any. But I lived very well Better than I ever had.
Mr. Pollak: Well, that was an interruption. You were looking toward what you wanted
to do?
Judge Mikva: So I was beginning to think about it. Mostly, I was interested in having a
good time. This time I went to school in Madison, Wisconsin. I had the GI Bill so my tuition
was paid, my books were paid. I think we were getting $60 a month or $70 a month or
something. Oh, the first thing we did when we came back, there was something called the 52-20
Club, which was a program that Congress had passed giving reruming veterans the opportunity to
ease back into the work force. You would get $20 a week unemployment compensation, aside
from anything else, and we just called it the 52-20 Club. We got $20 a week for 52 weeks. I
didn’t talce the whole 52 weeks, but I remember from whenever it was I mustered out until
January 1946, I collected $20 a week for doing nothing, and I did nothing and I did it very well. I
partied a lot. We had welcome home parties. There was always someone coming back from
someplace. I can’t believe the amount that we drank in those days. I was 20, 19 or 20. And we
drank an incredible amount of money away. I went back to school in Madison in January and
went into a dormitory there and spent a lot of time cultivating the social graces. I learned how to
sail and how to dance better and how to shoot craps unsuccessfully. I did a little bit of writing
-33-
for the Daily Cardinal, not much, because you know by that time I bad pretty well decided that
joWDalism was one of the fancies of my youth. And I had to concentrate on the more serious
corrnnercial courses. But I didn’t do anything toward that end in terms of my scholastic achievement.
At the end of the first semester, I joined a fraternity, Phi Sigma Delta, which has since
merged into another.
Mr. Pollak: Was it a Jewish fraternity?
Judge Mikva: A Jewish fraternity. There were no mixed fraternities. Either Jewish
fraternities or non-Jewish fraternities. The blacks didn’t belong to any fraternities. There weren’t
very many blacks on campus at the time. None on the football team In fact, none on any of the
sports teams at WISconsin. At the fraternity, I was the steward, which meant that I got my dues
paid and my room and board paid, so that I really was very comfortable financially because I was
getting this GI Bill and didn’t have any expenses of any kind. The GI Bill money I could spend
on myself. I remember that my grades went from straight A’s at the Extension to A’s my first
semester back, B’s my second semester back, to C’s in my third semester back, because I was just
having a very good time. I still think of those times at Wisconsin as being some of the happiest
times of my whole growing up. It was great fun. Tb.en, in January of 1947, I met my wife on a
blind date.
Mr. Pollak: You were sort ofin your sophomore year?
Judge Milcva: In my sophomore year of college. I was roommates with a man who is still
a friend who was dating one of her roommates at Chicago, the University of Chicago. Zoe came
up to visit Lulu. Len Zubrensky, my roommate, had a date with Lulu in l\11ilwaukee that
weekend. I sort of remember Lenny when he came into our room, four of us were living
-34-
together, and said, Lulu, which was his girlfriend’s name, was having one of her roommates come
up to spend the weekend? .Milwaukee and he thought we’d go out on a double date. He bad
never met this girl. He said, “She was supposed to have a lot of personality.” That was a code
word that she was some ugly hag. So we all looked for escapes. One fell out the window and the
other ran out of the room, and I was stuck. The idea of this homely, ugly roommate of Lulu’s did
not overwhehn me with enthusiasm. Anyway, he prevailed on me and so I met her on this blind
date. It was the beginning of an over SO-year romance. He did not date Lulu much thereafter,
but I certainly became more involved with Lulu’s roommate.
Mr. Pollak: She was a student at the University of Chicago?
Judge Mikva: In her second year at the University of Chicago. And I was in my third
year at Wisconsin. She apparently had been going through a series of boyfriends that her parents
just thought were awful and, when she brought me home to meet her parents, I was encouraged
by her mother. We were having fun together, but I don’t think she was really serious, being only
18. She wasn’t ready to settle down. But her mother just saw me as the first one that could even
come passably close to being a worthy son-in-law. She decided that I was the one that Zoe
should marry and, in the most conniving, manipulative way. I am amazed that Zoe put up with it.
Her mother decided to pull the financial strings on Zoe and announced that Zoe couldn’t go back
to Chicago because they just didn’t have enough money to send her back so she’d have to
continue school in St. Louis, which is where she grew up, at Washington University. Since I had
the GI Bill, I was footloose and fancy free as her mother knew; and in fact, I’m sure she had
asked me if I would go to school in St. Louis, and I said, “oh, I’d love to go to Washington
University.” So I came to St. Louis and Zoe crune back there very unhappy about being pulled
-35-
back home. But, among the blind, a one.eyed act man is king. Compared to all the other galoots
around, I began to look beqer and better, and we spent the year at Washington University. I was
in something called the Special Veterans Program. The school was overcrowded with regular
students. So they set up these after school programs, after regular hours programs, and brought
in high school teachers and others to teach courses. It was very easy, besides which many of the
temptations of Wisconsin were no longer there. I was also a year older, so I was a little bit more
serious. I began to trunk about wanting to get married and have a career, and Zoe announced that
she couldn’t imagine anything more boring than my being an accountant; why would I want to do
that? She said I should think about something interesting like law school, which I immediately
started to do; and I proposed to her. Actually, it’s all jumbled together. I was still at Wisconsin
when I pinned her, which was something that people did in those days. They took their fraternity
pin and gave it to their girl which meant they were going steady. She wasn’t overwhelmed with
this idea, but it was sort of the thing to do at Wisconsin and sort of glamorous and she was
staying in the sorority house and I could climb the balcony to put the pin on her at her sorority
house and my fraternity brothers serenaded her. Two things about that pinning. One is that our
youngest daughter found the pin somewhere in Zoe’s possessions and proceeded to take it to
school one day for show and tell.
The other thing I remember about the pinning was that last year, I was given an honorary
degree at the University of Wisconsin. Zoe came up with me for it. We tried to find that sorority
house balcony which I climbed, and we couldn’t find it. I warned her that even if we found it, I
was not about to reconstruct the scene.
Life in St. Louis was kind of fun. I enjoyed Washington University. I liked the idea that I
-36-
could spend a lot of time with Zoe who was living at home. I spent a lot of time at her parents’
house. They lived comfort<i?ly but were not well off. It was nice to see a family that was more
functional than ours, not that her parents got along all that well all the time, but it was generally a
better functioning family than mine. She had a younger sister who I have always liked very
much It was just a pleasant year, and, after a good year, before the semester break in the spring,
I proposed to her, and she accepted. Compared to the competition in St. Louis, I was pretty good.
We talked about, if we did get married, we would go back to Chicago. I remember when I called
my mother to tell her that I was engaged to Zoe, the first question was, “does that mean that you
are not going to go to law school?” Because I had already started to talk about law school I
assured her I was going anyway. She could not understand how I could go to law school and be
married at the same time.
We were manied in September of 1948. I had finished three years of undergraduate, two
at Wisconsin and one at Washington University in St. Louis. And fortunately, the semesters at
Washington University had gotten my grade point back up again because the courses were easy
and I spent a little more time on my studies than I had in Wisconsin. So my grade point was a
little better than it had been, though I still marvel at the changes that have gone on in places like
my alma mater. They didn’t have anything like the law school aptitude tests but, based on my
overall grade point average, I just don’t think that I would be considered at the University of
Chicago these days. But it was after the war and the competition still wasn’t that great to get into
law school. I was admitted.
Mr. Pollak: Did you graduate from Washington University at all?
Judge Mik.va: No. I don’t have an undergraduate degree at all. In those days you could
-37-
get into law school if you had three years undergraduate. I still have to correct people who
assume that I have a bache?9rs degree from some place. I say, no. And they look at me in
puzzlement.
Mr. Pollak: And what about Zoe?
Judge Milcva: She had gotten this two-year degree that Robert Maynard Hutchins had
innovated. She’d gotten a Ph.B., her bachelors in philosophy, and then she had had a year at
Washington University and came back into the master’s program in sociology at Chicago. She
got her master’s degree at the same time that I graduated from law school.
Mr. Pollak: Well, is there more to say about college? Your college was not really as big
a time intellectually.
Judge Mikva: No, intellectually, it was a bust. When I came to Chicago, I was somewhat
nervous. I remember the first time I visited at Chicago how overwhelmed I was by how erudite
they seemed to be. They were all so sophisticated. They were talking about things and doing
things that I had no awareness of. I remember going to a class Zoe took for a year at Chicago
called “Organization, Interpretation and Integration of the Sciences” — Oil. It was taught by a
very competent teacher. I sat in one day, and I was overwhelmed at how smart these kids were.
Tuey knew all about Hegel and Aristotle and Plato and Kant and all of these philosophers, and I
had never heard of most of these people. I remember going back to Los Angeles that summer
and educating myself.
Mr. Pollak: I think: my recollection is that you’d said that you were somewhat intimidated
by the intellectuals at Chicago?
Judge Mik.va: And so that summer, I went back to Los Angeles. Zoe was staying in the
-38-
Midwest. We were already going to get married. I spent the summer in Los Angeles driving a
cab by night and reading t?? t?Omplete works of Plato by day, the complete works of Aristotle by
day, and I came back in the fall, on my first day with Zoe, and I said, all right, let’s talk about
Aristotle. She said what are you talking about. I said I’ve read it now. She said ”you don’t
understand, I read a little snippet of it in class, that’s all we read.” I realized that the University
of Chicago undergraduate school had this wonderful way of giving people an exposure to little
snippets of all of the great philosophers and the thinkers of our time.
Mr. Pollak: But that was probably an important thing to learn?
Judge Mikva: Yes. And it’s true of a lot of life. For all of that, I still entered law school
with great trepidation. It was clear that I bad had a very pedestrian education, partly my fault,
partly the institutions that I went to. The University of Wisconsin was no longer that great
institution it had been in the 1930s, and again I didn’t apply myself. When I came there I was
really not up to the speed of most of the students at the University of Chicago Law School
Mr. Pollak: Before going at law school, I gather that you didn’t do things like debating,
that were sort of precursors of a legal career?
Judge Mikva: No. I had been involved a little bit in high school politics. There was
something called the Badger Boy’s State which used to take debaters up to Madison, the state
capital, for a day. We’d think we were legislators. I had done that. I loved it. In college, Len
Zubrensky and I had gotten a little bit involved – that was my roommate who introduced me to
Zoe – had gotten a little bit involved in Wisconsin politics. I guess the one incident I still
remember is that in 1946, Robert LaFollette was leaving the Progressive Party and rejoining the
Republican Party. He was then an incumbent Senator, but be decided that be wanted to rejoin the
-39-
Republican Party. We thought LaFollette was a very hard person to beat in Wisconsin, but we
had a very good Democratj.t;; candidate who was a professor from the University of Wisconsin
named Howard McMurray; he was the Democratic candidate for the Senate. We thought that the
best way to knock off LaFollette was to get the Republican nomination for this upstate Wisconsin
divorce judge who nobody knew very much about. We thought since there were open primaries,
we could get all the Democrats to go into the primaries to vote for this upstate divorce judge and
we would knock off Lafollette and then our man could win. We were mostly successful. We
knocked off LaFollette, but Joe McCarthy went on to beat our candidate for the Senate. I still
remember, even though I wasn’t old enough to vote, I was only 20, wearing these big McCarthy
buttons during the primaries so, when the other Senator McCarthy, Gene McCarthy, ran during
the Vietnam War, I still winced every time I’d see somebody wearing a McCarthy button because
I remembered my own embarrassment. But that was the only political involvement that I
remember. We were a little bit involved in Wisconsin politics through that campaign.
Mr. Pollak: Any significant professors that influenced you at Wisconsin or Washington
University?
Judge Mik.va: No. At Washington University, I could not begin to tell you about any of
my professors. At Wisconsin, there was a guy named Selig Perhnan. He was a very famous
economics professor at the time. By taking his course, “Capitalism and Socialism.,” I remember I
walked out of there with a misconception. I thought he bad said that the reason that we would
never have a revolution in this country was that there was too much, it was too easy for money to
be available, that people could borrow money too easily. He said there was too much ‘1end.”
What he was saying was that most of the land had been distributed fairly. So that’s all I learned
-40-
from him
The great influence. 9-i;i my college years, I remember from Wisconsin, was Jim Doyle,
who was a young lawyer in Madison at the time. He’d just come back from World War II, and he
was one of the founders of the American Veterans Committee. That was the other
extracurricular activity, I remember I joined that. We were going to be citizens first and veterans
second. It was the antidote to the American Legion. Jim Doyle was a lovely man. He was a
young lawyer. He was very enthusiastic about life and politics and went on to become State
Chairman and then President of the ADA and a very outstanding District judge. He was the
District judge in Madison.
Mr. Pollak: Oh yes, I remember his name.
Judge Mikva: The family is still very prominent in academic and political affairs. His
son is Attorney General of Wisconsin. One of his daughters is a former dean at the University of
Miami Law School. It’s just a great family. Jim was an influence on me. He’s only a few years
older than I am but he was already a rising star on the progressive, socially democratic scene.
But other than that, I remember learning to sail on Lake Mendota, not much intellectual co ntact
there.
Mr. Pollak: Your health was always good?
Judge Mikva: Yes, as a child I had had various ailments. My mother always cJaimed that
I was a sickly child. From the time I remember, I was skinny. I believe I weighed 137 pounds
when I got married. My wife and my mother-in-law had a “fatten me up” campaign, but other
than that, I was in good health. I have flat feet. That was the only thing that the Army
diagnosed. That didn’t interfere with my flying career. Other than that I was in good health.
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.Mr. Pollak: Well, law school, law school. Do you want to do law school?
Judge Mikva: Why μon’t we start it anyway and then call it a day. Law school was the
most important intellectual experience I have ever had in my life. First, as I said, I came in very
awed by the company I was keeping. I realized these people all were so much smarter than I was
and so much more prepared. I don’t know that I thought they were smarter. They were so much
better prepared. I told Zoe that since the practice of law at that time was very competitive, if I
didn’t get grades at least at the top quarter of my class, I was getting out of law school and going
back to accounting. She thought that was ridiculous. She said you are not going to do that well.
You don’t have sufficient background, so you should just stop setting these impossible goals for
yourself. But I was detemrined to do well.
Mr. Pollak: You must have just been married?
Judge Milcva: We married September 19th and the first classes were October l.
Mr. Pollak.: Any honeymoon?
Judge Mikva: We took a week up at Lake Winnebago, which is in Wisconsin near
Oshkosh, and my father was still alive and he had come in from California for the wedding. He
and my mother were not living together. He was living separately. He decided he wanted to
spend some time with me since he hadn’t seen me for a year and wasn’t going to see me for a
while. He was going back to California, and we were not going to get out there. I still can’t
believe I did this to my wife and had the luck to survive it. He came up to our cottage with us
during our honeymoon and spent several days with us up there. The honeymoon was all of a
week, and he spent three or four days with us up there at Lake Winnebago; and he was not good
company. But it’s remained a good family story. The wedding was fine.
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Mr. Pollak: Tbe wedding must have been in Chicago?
Judge Mikva: In St .. I;.,ouis. I remember the big trauma was my grandmother, who could
not believe I was marrying a Jewish girl. We decided not to take her to the synagogue the Friday
night before because it was a reform temple and they did play the organ. In fact, it was Sunday
morning service. It did look very much like a church It was a real super reform synagogue in St.
Louis. So we decided not to take her to the services, but she still was very suspicious. When the
rabbi came out wearing a black gown, as reform rabbis do, instead of a prayer shawl and high hat
as the orthodox rabbis did, she was convinced that I was in fact marrying a Catholic girl because
the rabbi was really a Catholic priest. My uncle bad to physically restrain her to keep her from
walking out of the hotel where the marriage was being performed. It was, as I recall it, a fairly
modest wedding. My father-in-law kept saying that he would give us $5,000 if I would elope
because it would be cheaper. I don’t know ifhe really spent that much or not. It was a very
modest wedding. After the wedding, we flew up to Chicago, which was the first time Zoe had
ever flown and the first time I had ever been in a civilian airplane. I flew in military planes
during the war. We flew up to Chicago and had dinner at a Chicago restaurant and spent our
wedding night in Chicago and then went up to Lake Wmnebago for this week honeymoon and
came back and started school. We got an apartment on the south side of Chicago. We set up
what was really a very luxurious household. My mother-in-law was an interior decorator, and
her wedding present to us was to furnish this four-room apartment. We had glorious furniture;
and it was a really nice, big, roomy apartment, with windows on either side.
I started law school. I’d commute every day on public transportation when I went to law
school on 59th Street. It was the way we’d start our day. Each morning on the way in, we were
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on the same time schedule as Robert Maynard Hutch.ins, and it was a great uplifting experience
to walk on the campus goip.g toward the law school and see him striding toward the
Administration Building and say, good morning chancellor, and he’d say good morning.
Mr. Pollak: So you were intimidated by your classmates?
Judge Mikva: I was. Over half the class had gone to undergraduate school at the
University of Chicago, and I had some very bright people in the class. Bob Bork was a
classmate. He and I became friends early on. He’d gone to the University of Chicago and was
very bright and showed it in class. One ofmy other famous cla ssmates was Patsy Mink, then
Patsy Takemoto, who was very bright, like most women bad to be. We only bad three women in
the class. We had three women, three blacks in a class of 153. But we had a black professor,
unlike hardly any other major law school at the time, William.Robert Ming, who was a famous
civil rights lawyer. He was a very brilliant teacher and a very brilliant lawyer. Unfortunately, he
got himself into trouble. He didn’t pay his income taxes; but he was a very good teacher, and he
taught civil procedure in my first year. And I remember learning a lot from him I was very
impressed at the time on how well organized he was in teaching.
The faculty was outstanding. Edward Levi was then a young professor at the law school.
He became dean in my second year. Harry Kalven was a young professor at the law school.
Bernie Meltzer had just returned to the faculty. Walter Blum was there as a tax professor. They
were all in their early 30s, late 20s, and just full of enthusiasm and full of excitement about the
law. The old guard that were there were good. Charles Gregory who taught labor law and torts
was a good professor. He was older, but be was pleased at the new faces that were coming on.
William W. Crosskey, a controversial constitutional law professor, was there. He liked the idea
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of all this ferment going on. Sheldon Tefft taught property. He was an old guard, but he
tolerated these young whippersnappers. Others of the old guard sort of began to fade into the
woodwork as these young and bright educators took over. It was exciting.
Mr. Pollak: Who was dean?
Judge Mikva: A man by the name of Wilbur Katz, who taught corporation. law. He was
dean for the first year and was delighted to give up the reins and turned them over to Edward
Levi, who was probably the youngest dean around – well, the youngest dean in Chicago’s
history. Probably Hutchins at Yale Law was the youngest dean ever. Levi literally began to
transform that law school. He brought in all kinds of new people, young people, people with big
names.
Malcohn Sharp taught contracts, and cases that we studied in that course [ applied later
on when I was on the court or Congress and even at the White House. His influence on me and a
whole generation was immeasurable. Harry Kalven, I think, taught us torts first, even though
civil rights was his forte’, but it came the second year and he taught seminars on free speech. A
veritable intellectual feast.
Mr. Pollak: How would you balance the significance to your legal education of the
professors and of your fellow students?
Judge Mikva: The professors were overwhelrrungly important. Admission to the
University of Chicago Law School at that time was nowhere near as competitive as it is today,
and I don’t think that my class was uniformly that great. There were some very bright people in
it, and it certainly was among the brighter law classes in the country; but it would not hold a
candle to the current makeup of law school classes at places like Chicago or Stanford or Harvard
-45-
or Yale. The professors were incredible. First of all, we could relate to them They were close
to our age. They had had OJ.lf experiences. Most of them had been in service or had grown up
about the same time we did. They had been affected by the same political cWTents and
intellectual currents that had affected us, and they imparted them to us. They were on the
intellectual make, if I can use that term. Levi was determined to turn Chicago back into a firstrate
law school, which I guess it had been and had not been for a while thereafter. And he did.
He brought in name professors; but more than that, he started bringing in cross-fertilization
concepts. He brought in the first “economics 2nd” in the law courses; that was a meaty idea. He
brought in psychiatrists and psychologists.
:Mr. Pollak: You were class of 1949? Was that 1951?
Judge Mikva: I entered in 1948.
Mr. Pollak That was really in a lot of respects your intellectual birth?
Judge Mikva: Oh, it was.
Mr. Pollak: Haven’t you been surprised that you took to it and did so well so
immediately?
Judge Mikva: Absolutely. I realized also that even though I had had this great, what I
thought was such a good public school education in Milwaukee, good public schools, and
reasonably small classes, and reasonably bright teachers, that the methodology was so bad. It
never involved thinking. Most of it was rote. You learned thmgs by memorizing and that was
true at Wisconsin. I studied for exams by memorizing dates and memorizing concepts and I
couldn’t begin to understand what they meant. It was sort of the way I learned navigation when I
was in the Army. I learned it by rote. You had this little computer and were told if you pushed
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this dial here and that dial there and then read the third dial, that will tell you your wind speed.
And nobody told you how .it worked or why it worked that way or what were tbe theories of
celestial navigation.
Mr. Pollak: But hadn’t something happened to you when you went to Los Angeles and
read Plato and Aristotle? Wasn’t that some change in you?
Judge Mikva: I think clearly my life began to change enonnously when I met my wife
and began to think about other things. I had a late growing up. But the oat sowing- if you want
to call it that – that I had in college, most other kids had in high school I hadn’t had that
exposure, and so I was three years behind the curve. Meeting Zoe and settling down with her in a
single relationship gave me the time to start to explore whatever my intellectual capacities were
and to be interested, which I just hadn’t been before. If anything, I had read books in my
childhood as an escape because I didn’t have anything else to do. When I found other things to
do, the books went south; and it wasn’t until I met Zoe and had to think seriously about what I
wanted to be when I grew up that books then became important.
Mr. Pollak: But you did have that background of a lot of early reading?
Judge Mikva: Yes. And a good public school education, which, with all its faults, gave
me the four Rs.
Mr. Pollak: Did the Law Journal make a difference or the Law Review?
Judge Mikva: Yes. Again, it was my first exposure to legal writing, which I suppose you
could say was an oxymoron. There is a style of legal writing, and I learned it as a competitor and
then as editor of the Law Review. Secondly, it gave me my first real editing experience, reading
other people’s work and revising it, which is something that lawyers do a lot of and judges do a
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lot of and congressmen do a lot of. Then it gave me that important piece of self confidence that
this really was my place; t:Mt I was good at it; that my peers recognized I was good at it; that my
superiors recognized I was good at it. I began to believe in myself that I was good at it. I
understood what the process was like. It was kind of a liberation for me. I realized that
education did not involve memorization; that that was not the tool of an education. Especially at
law school, you didn’t have to memorize what was the rule in Shelley’s Case or even what the
name of the cases were, which I still don’t remember. What you have to do is learn how to think
about those things and how to analyze things.
MI. Pollak: Falsgraf. I will never forget the name of the Falsgraf case.
Judge Mikva: [Laughter] An experience happened to me, when my eldest daughter went
to law school.
Mr. Pollak: Falsgraf v. Long Island Railroad.
Judge Milcva: Throwing a woman off the train.
Mr. Pollak: It was the firecracker. Didn’t somebody throw a firecracker?
Judge Mikva: Was that it? It’s consequential damages, wasn’t it?.
No, that wasn’t Falsgraf. It was a case like that. It was Hadley v. Baxendale. I was in
Congress and I was getting my annual physical exam out at Bethesda, the Naval Hospital I was
out there and the doctor bad instruments all over me and was giving me this thorough
examination and the nurse comes in and says, “Congressman, your office is on the phone.” I got
on the phone and my secretary said my daughter Mary was calling. Mary was going to
Northwestern Law School; the call was put through because there was an understanding that
when a member of the family called, they could reach me wherever I was. So with great
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trepidation, I picked up the phone. I said, “Yes Mary, what is it1” She said, “Daddy, Hadley v.
Baxendale.” I said, “What, ,”‘.hat, what?” She said, “I don’t understand it.” [Laughing] I trunk
that was the last time she asked my advice.
Mr. Pollak: Well, your peers must have elected you to be editor-in-chief or how did you
get the job?
Judge Mik.va: It was the outgoing board that elected me to the new board. So it was sort
of my peers, my peers plus one. I had had a very good first note in taxation, thanks to Walter
Blum who forced me to understand tax even though I didn’t really want to. I was more interested
in the Bill of Rights and other parts of the law. He just made me understand why this concept of
income was so ephemeral and why it was so hard for judges and law makers to straighten out. I
wrote; and even in retrospect, I looked at it, and it was a good note, and he made me write it. He
didn’t write it for me, but he forced me to think it through and go back. There must have been 20
drafts. He was my faculty advisor and be said, ”Think about this. Just think about this.” It was a
good note. I think I displayed my capacity to get along with my peers, which was one of the
things they required on the board. It was a final important badge for me to have to be satisfied
that this is what I wanted, that I wanted to be a lawyer.
Mr. Pollak: Did you have anything to do with other parts of the University while you
were there?
Judge Mik:va: A little bit. We had a local “McCarthy” by the name of Broyles, Paul
Broyles, a state senator; and he was conducting state senate investigations. This was 1949, 1950,
and civil rights were a hot issue. We were just beginning to be aware that there was a group
called SNCC – Student Non-Violent Coordinating Corrnnittee – which was the first civil rights
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group that was doing any active stuff. I remember we tried to in tegrate some restaurants and a
riding academy. A group of students (I was not one of them) went down to Springfield to lobby
against some proposal on political speech. The lobbying was fairly noneventful, but they went to
eat lunch at a drug store; and since one of the students was black, the drug store wouldn’t serve
him; so they sat in. At that point, Broyles and the drug store were outraged. The business
community was outraged. They thought communists were trying to sit in at a drugstore. So
Broyles was able to get an investigation of the University of Chicago authorized by the state
legislature. There was only one vote against it, in the senate. Abraham Lincoln Marovitz was
then a state senator, and he was the lone “no” vote on the investigation. We were so impressed
that we got him to come to the campus and speak to us under the auspices of the ACLU. It was
one warm May day in Chicago at the University, and there was my wife, me and Senator
Marovitz and maybe two other stray dogs that wandered into the hall; those were all that came to
hear Senator Marovitz give his explanation of why he was against the bill Anyway, the
legislature conducted the investigation. The investigation tu.med out to be one of Robert
Maynard Hutchins’ great successful adventures. He just turned that investigation on its ear. The
students were determined to go down and participate or at least observe it, and we were
concerned that there would be another outbreak. or some kind of uproar and that Broyles would
tum that on the University. The University got a group ofus law students to sort of act as
marshals, and we were up in the gallery, and our sole purpose was to keep the students from
engaging in. any kind of outbreak of noise or demonstration of any kind. Tus was not easy
because Hutchins was at his funniest best. The name of the investigator was J.B. Matthews, and
Hutchins just ran rings around Matthews and Broyles because they kept asking him why he had
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all these communist professors listed in the directory and Hutchins kept saying, “Well, I don’t
know if they’re COilllilunists.o.r not but the reason they’re listed is because it says ’emeritus’; we
list all retired professors. They’re emeritus and we list them as emerit us.” Matthews said, “But
you continue to list them, why do you list them?” And Hutchins said, “Look, you know, it’s the
same as Henry Wallace, who will always be an ex-Vice President of the United States. There’s
nothing you can do about it,” delivered with that great timing of his. (Henry Wallace was then
running as a third-party candidate for president and sounding very radical.) Our main job was to
go around and “Shush,” the students to keep them from applauding or laughing out loud.
Anyway, I was involved in that.
Bob Bork was my good friend; Bob Bork then was as far to the left as he is now to the
right. He was involved in the National Lawyers’ Guild and several Other organizations that
would bring speakers on campus. I remember there was one speaker that they wouldn’t let on
because he didn’t have the proper sponsorship, so finally the law school students, which Bork
fanned, offered him sponsorship. Bork and I actually introduced him It was about the only
extracurricular thing I remember.
career.
Mr. Pollak: Intellectually, you said the University was greatly important to your later
Judge Mikva: Yes, it was.
Mr. Pollak: What about the contacts that you made, the human beings that you met?
Judge Mikva: The faculty remained important to me all my career. Not just in law
school but elsewhere. When I was in Congress, I had a Saturday morning think tank once a
month. Some brilliant people at the University of Chicago, both from the law school and the
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college, would come and consult with me and advise me on some of the things I was thinking
about. Some of the good ?qeas that I had when I was in Congress I would get from people like
Harry Kalven and Leo Strauss, and some other of the great names at the University of Chicago.
So it’s always been a tremendous influence, not only while I was there but i n all the things that
have gone on since. Edward Levi has been my mentor all through my life. He got me the
Supreme Court clerkship. He encouraged me in almost everything I did. Everything except the
writing of my book on legislative history.
Mr. Pollak: In these years, were you reading the daily papers and the periodicals?
Judge Mikva: [ was reading the Chicago Sun Times. [ did not develop a daily need for
the New York Times until much later. It was nice that when I was in Congress and at the
White House l had this clipping service to make sure l saw all the important stories in the Times
and all the other newspapers. I miss that I never did develop that absolute addiction to the
Times. Magazines, l read Time magazine. l read the New Republic occasionally, not all the time.
I read and I guess I still do read a lot more lawyer news than some. When I was a lawyer I liked
to read what the competition was doing. In the practice Milt Shadur and I always thought of
ourselves as serious about the law; we would continue our intellectual curiosity that the
University of Chicago had instilled in us, and so we regularly read Chicago’s Law Review and
Harvard’s, Yale’s. We skimmed them That was about it. I would read the Chicago Tribune
fairly regularly and the Chicago Daily News – whichG56 at that time was a great newspaper- the
afternoon newspaper, which went out of business. The non-influences were perhaps as important
as influences. I never watched television. I never relied on the news until very, very late in my
life. In Congress, for instance, it never occurred to me to watch the television news.
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Mr. Pollak: What about radio? Did radio play a role?
Judge Mikva: Yes,. ?ore for entertainment purposes. During the war it was informative
because we could get coverage of breaking events.
Mr. Pollak: Ed Murrow, Elmer Davis?
Judge Mikva: Right. You remember those names. But other than that, again, I never
listened to the hourly news; and the idea of a full-time news station or a regular news program as
being essential to keeping up with what was going on was just unheard of.
Mr. Pollak: Well, that’s a great start.
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INTERVIEW NO. 2
This is the second ip.t?rview of the Oral History of former Chief Judge Abner J. Mikva as
part of the Oral History Project of the D.C. Circuit Historical Society. It is being held at his
home, 442 New Jersey Avenue, S.E., Washington, D.C., on Tuesday, June 11, 1996. The tape
and any transcripts made from the tape are confidential and governed by the wishes of the Judge
which ultimately will be made in the form of a written donative instrument.
Mr. Pollak: Ab, is there anything that you would add to what we did last time, which was
your forbearers, childhood, college, law school?
Judge Mikva: Well, I think the only thing I would add is that I had the good fortune of
having a very good marriage. My wife and I were and have remained interested in the same
things. She, as I indicated before, encouraged me to go to law school. We’re both interested
politically. Indeed, the first political job in the family was the one she had working for a
congressional candidate on the south side of Chicago, who I don’t think was successful; but she
actually got me involved politically. She was working through the Steelworkers Union for a
candidate. Owing my last year of law school, we survived on her salary of $50 a week as a paid
secretary for the American Civil Liberties Union. So I bad a scholarship to the University of
Chicago from the ACLU that they didn’t know about. Throughout our married life, she has been
both supportive of and sensitive to the things I wanted to do, both politically and in the law. In
the early years, she was home raising children; but then, as they got older, she went back to
school and got her masters degree in teaching and became a school teacher for many years. I
think that’s a big part of what gave me both the stimulation and the freedom to do some of the
things that I was able to do politically.
Mr. Pollak: What did you do in the summers of your law school years?
Judge Mikva: The first summer, we went out to California where my parents had moved.
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We drove out in a car that we rented to deliver there, and then I drove a cab. My wife worked for
an insurance company. ? ?ond summer I seem to remember we stayed in Chicago. Again, I
was driving a cab, by that time in Chicago, fairly regularly. I think by that time I had gotten more
of a full-time job as a cab driver. She was working on her thesis. They were, in neither instance,
jobs involving the law. The idea of summer clerkships or internships just was not that widely
known, besides which we needed the money.
Mr. Pollak: There weren’t real paying jobs available in the law then?
Judge Mik:va: Not really. If there were, I certainly didn’t know about them. I don’t think
there were any.
Mr. Pollak: And your economics during your law school time were at the margin?
Judge Mikva: They sure were. We were living on a GI Bill that paid my tuition and my
books. Tuition, I recall, was all of $600 a year; but the GI Bill paid it all and paid for all my
books, and gave me a living allowance of $115 a month. Zoe’s parents paid for her tuition and
her books and we were able to get by with that $115 plus a little bit of supplementary.
Mr. Pollak: When did your first child arrive in relation to law school?
Judge Mikva: I was out of law school and had finished my clerkship. We had just come
back to Chicago to start practicing, and Mary was born in January 1953, a little over a year out of
law school.
Mr. Pollak: Am I right that upon leaving law school you undertook a clerkship with a
Justice on the Supreme Court?
Judge Mik:va: Yes. The University of Chicago had not had any Supreme Court
clerkships for a long, long time. I might add that at that time most Supreme Court clerkships
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were directly from law school. There were some who did a kind of apprenticeship through the
Court of Appeals, but most .Court of Appeals judges did not have more than one clerk, if that
many. District judges didn’t have any clerks. State court judges didn’t have any clerks; or, if they
did, they weren’t very satisfactory. One of the parMirne jobs I had while I was in my third year of
law school was working for a state court appellate judge, IBysses S. Schwartz, a very well known
judge in Chicago, who paid me $5 an hour out of his own pocket because the clerk that was
assigned to him was a patronage clerk who was pretty much a drunk and didn’t get to work very
often. U.S. paid me $5 an hour to do research for him and to help him do bis opinions. It was
fascinating work.
Mr. Pollak: But you were also editor-in-chief of the Law Review, weren’t you, at the
same time? How did you do it all?
Judge Mikva: It’s amazing the amount of energy you develop when you need it. I was
also driving a cab weekends dwing that period, too, because my GI Bill ran out in the third year.
So it was the money that I got from driving a cab and from work that I did for Judge Schwartz
plus what Zoe was making that kept us going.
Mr. Pollak: Before turning to the clerkship, I’d be interested in your evaluation,
particularly as they may have influenced you as a judge, your evaluation of your training in the
classes at the law school, your training and your experience on the Law Review, and who your
mentors were among the faculty.
Judge Mikva: Well, the classes were incredibly good. I had been the product of a good
public school education in Milwaukee and the University of Wisconsin, but mostly I understood
the education process having to do with remembering things. My memory was very good and I
-56-
was always able to give it back to the teachers the way they wanted it, the way they’d given it to
me.
I was dismayed when I came to the University of Chicago to find out that rote was not a
very big thing, that they expected you to think about things and, indeed, there was a premiwn for
challenging some of the things you read in books; sometimes the professors tolerated your
disagreeing with them, but not too often. It was a superb group of teachers. Harry Kalven was
on the faculty and Malcolm Sharp, who taught me more free market economics in his contracts
class than I guess I’d ever learned before. Edward Levi was teaching. His course was called
Elements of Law. Walter Blum taught taxation. It was a super faculty. They were all the young
people that had come back to the University of Chicago to teach at about the same time after
World War II. They were full of energy. They were full of enthusiasm, and they were great
teachers. They remained my mentors really during most ofmy public life. Edward Levi had
become dean of the law school, and he was determined to bring Chicago back to its earlier glory
as far as being a national law school. He thought one of the ways of doing this was to get the
srudents back into the clerk stream again. He literally camped on Justice Minton’s doorstep until
Minton agreed to take a clerk from Chicago, and it was me. Harry Kalven has continued to be
my source of all wisdom on the First Amendment and a lot of other constirutional matters.
Mr. Pollak: He taught you constitutional law?
Judge Mikva: Constitutional law. It was mostly Bill of Rights law. William Winslow
Crosskey was the constitutional law professor who was a very brilliant and erratic scholar. I
loved learning constitutional law from him, but I must confess, when I got out oflaw school, I
had to relearn it because what he had to say about the Constitution wasn’t the accepted dogma of
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what the Constitution means. He really felt that the Constitution was written by people who
believed in the strong fedet<!-1 .government. He came out of the New Dea1, and, so far as he was
concerned, the old Van Devanter court were doing a monstrous job of interpreting the
Constitution. He did some incredible original research to show that the Constitution was not the
kind of rigid anti-government document that the Van Devanter court said it was. Professor
Crosskey was adamant that the Constitution was intended to provide broad federal powers. He
did incredible research, scholarly research, that created a kind of bizarre reputation for him For
example, he had research to show that the watermark on the paper on which Madison’s notes,
which are always used as a basis for finding out what really went on at the Constitutiona1
Convention, was 1820. He insisted that Madison redid his notes long after the convention to suit
the needs of the time; that as what Madison was involved in, rather than having made an
accurate, contemporaneous record of what went on at the convention. He was not a great fan of
Thomas Jefferson, who· he thought ducked out of the convention by going to Paris. As I say, it
was a fascinating intellectual endeavor. This has always caused me to think a lot about sources
of constitutional history and to realize how dubious they all are because it was in fact a closed
convention, and there weren’t any real records taken. On the other hand, in terms of being able to
use constitutional law as a tool in my lega1 practice and later on in my judicia1 work, I have had
to rely on other sources; and Harry Kalven was one of those.
Mr. Pollak: What significance do you attnbute to your experience on the Law Review
and as editor-in-chief?
Judge Mikva: It taught me first of all how to edit. I think it was my first rea1 supervisory
responsibility of professionals. Somewhere in my early career, I supervised people in repetitive
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tasks, but this was the first time that I had a responsibility for supervising people who were
basically my peers. I learn?? that you don’t order a peer to do something. You fmd out ways of
persuading them that that’s the right way to go. I think it gave me whatever managerial style I
have and taught me how to deal with people, not to try to crack whips, to let people march in
lock step because they like to do it. I think it enhanced my writing ability. I still have a problem
with the way law school narrows peoples’ writing ability. There is such a premium on a word
meaning a single thing, on using the word precisely or exactly, that it squeezes all the juice out of
writing style.
Mr. Pollak: You sound like Fred Rodell.
Judge Mikva: Well, I was a great admirer of bis. I wrote a follow-up article to his
“Goodbye to Law Reviews,” which I wrote, “Goodbye Footnotes,” in which I cited him at great
length I think it’s true that legal writing puts this premium on not using colorful adjectives and
not using descriptive phrases, as much as it favors precise phrases. Toe result is that legal
writing is very dull. When I got to legal opinion writing and legal opinions later on, I used to
insist that no matter bow many different variations and permeations a draft went through between
the clerks, I would write the peroration, and I insisted that people who came out of those good
law schools couldn’t possibly know how to write a good opening to an opinion.
:Mr. Pollak: Ab, were there classmates of yours with whom you’ve stayed in touch who
have had an influence on you or whose careers are significant to you?
Judge Mik.va: Yes, Bob Bork was a classmate. In fact, we bad the same constitutional
law professor. I used to tease him when we served on the court here that it was incredible that
the two of us could have heard the same man interpreting the same Constitution and come out
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with such different views on what the Constitution meant. He used to respond or remind me that
that year he was spending ?_lot of time at Jimmy’s, which was a local watering hole on the sou.th
side of Chicago and that he used my notes for constirutional law; and I used to insist that he read
them upside down. Patsy Mink, who is now a Congresswoman, she was then Patsy Takemoto,
she was one of the three women in that class, and we were friends then and we were friends over
the years. When I came to Congress, she was already there and we stayed friends. Ramsey Clark
was a classmate of mine. He came in at the end of his first year, but he graduated with us. We’ve
been friends over the years. Who else? There were several Washington lawyers who were
classmates. Howard Adler, an antitrust lawyer here in Washington, was a classmate; and we’ve
remained good friends. Abe Krash was another.
Mr. Pollak: Did you think you learned in law school from your classmates from the
debates that you had either in class or out of class, or did you not have time to devote to that with
the other things you were doing?
Judge Mikva: No, there was a lot of that. In fact, that was what was so exciting about the
University of Chicago. I had never been exposed to that before, not at the University of
Wisconsin. At Washington University where I went to school, you went to hear the lecture and
you memorized all the significant dates that the professor gave you in the lecture or that were in
the book, and that was it. Nobody ever talked about the classes. Nobody ever talked about what
they were doing. A$ soon as the class was over, you went out to do whatever else you were
doing. The idea of this intellectual fennent in Chicago where students who cared passionately
about what they were learning and disagreed with each other about what the case meant and what
the professor meant and that this would be canied on not only in class but out of class and at
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parties an d on weekends was just a great eye opener. I loved that process. Of course, all the
professors used the Socratic; method and so nothing was ever given to you in black and white. It
was always, “What do you think?” Toe really good professors had this marvelous way of teasing
out all variations. It o ccurred to me when I took the Bar exam with the incredibly good education
I had that, even though I did not learn a lot of black letter law at law school, when it came to
talcing the Bar exam, I knew how to think about these questions. With the smattering of black
letter law that I picked up in Bar Review, I was able to analyze the questions and get back enough
of an answer that I think I passed. I remember feeling, when people were coming out, saying,
well, I did terrible on the Bar exam, how awful it was, I didn’t feel at all uncomfortable about it.
I felt I had done well on it. I would have been shocked if I hadn’t passed.
Mr. Pollak: Tell about your clerkship on the Supreme Court. Did you start in the
summer?
Judge Mik:va: Dean Levi had told me that he was going to push my name. There were
several of us who bad applied, about three or four students in the class and most on the Law
Review. He said he was going to push my name because he thought my experience as editor of
the Law Review was something that would stand me in good stead if I got a clerkship. I gathered
he wrote a private note to Justice Minton. In any event, I got a handwritten note from Justice
Minton that he would like to interview me. This was in November of 1950. It was my very first
trip to Washington I hadn’t been in this city before. In the service, I bad been down south and
out west but I had never really been in the eastern part of the country at all, not east of Chicago. I
remember Zoe and I flew in. It was very exciting. [ was as nervous as all get out. I felt very
uncomfortable about it. Justice Minton was not very gregarious. That was not his style ever,
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•
though when he was in the Senate, he was much.more outgoing than when he got on the Court.
He had never taken a University of Chicago clerk before. All bis clerks had come from Indiana
or Northwestern, which is where he bad taken them when he had been on the Court of Appeals
for the Seventh Circuit. I can’t remember what the questions were, but I know I was so
embarrassed. It was awesome just walking into that courthouse and sitting and marching into his
chambers and sitting there and feeling like I was interviewing for my whole life career in that ten
or fifteen minutes. I went out of there trunking well, it was a good ride but that’s as far as it’s
going. I think this had to be later than November. I think it may have even been over the
Christmas holidays because I think I got the original letter from him in November and went in
sometime in December. Then in January I remember getting this handwritten note from him
saying, I have decided to take you on as one of my clerks and you will hear from me; be prepared
to start late this summer. I was on cloud nine and a half. I thought about that a lot since. I didn’t
apply until well into the middle of my third year. I wasn’t accepted until the second half of my
final year in law school, and that was plenty of time to worry about being a clerk and plenty of
time for the hiring process to take place. 1bis business of getting it moving so early into the
second year, which is when the judges now choose their clerks, it’s bad for the clerks, it’s bad for
the judges, it’s bad for the law schools. I don’t know why they’re doing it. I tried when I was on
the Court of Appeals to slow it down and move it back to at least the beginning of the third year.
One of the problems with hiring clerks that early is that, when you are asking professors at the
beginning of the second year about these clerks, they don’t even know who you are talking about,
especially in the larger schools like Harvard and Stanford. They don’t know who these people
are.
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Mr. Pollak: It doesn’t serve the judges as well as later?
Judge Mikva: Not .<?tall. But this stampede developed. There is nothing worse than a
bunch of judges charging down on a hiring hall. You can’t stop them
Mr. Pollak Did you have one co-clerk?
Judge Mikva: I had one co-clerk. His name was Ray Gray who was from Indiana and
practiced for many years with a big law finn in Indianapolis. A couple of years ago, he retired to
a small town in Indiana where he practices what he calls gentlemanly law with one of his
daughters who is in the firm It was an exciting group of clerks. Among the people I clerked
with were Bill Rehnquist who clerked for Justice Jackson, Newt Minow, Howard Trienens who
clerked for Chief Justice Vinson, Abe Chayes who clerked for Justice Frankfurter, Vincent
McCusick who clerked for Justice Frankfurter.
Mr. Pollak: Any women clerks?
Judge Mikva: None. Frankfurter had the first woman clerk, and I don’t think it was until
some time later; our group was completely male. It was a male society then. The clerks were
male, the judges were male. The clerks were all male and white, the judges were all male and
white. The bar was pretty much male and white. There was one woman lawyer who used to
argue for the Labor Board, Ruth Wygand (does that name ring a bell?) who was a proIDlllent
appellate lawyer, government lawyer, here in Washington at the time. I think that was the only
woman I ever saw argue.
Mr. Pollak: I see. Bea Rosenberg didn’t argue from the Department of Justice in the
criminal side?
Judge Mikva: I don’t remember her. She may have but I don’t remember her. The only
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name I remember is Ruth Wygand who used to argue some Labor Board cases. Then it was true
of the private bar as well Out of my class of 150, there were three women. There were maybe
three or four blacks, several orientals, Patsy Takemoto was a two-fer. She was an oriental
woman. When she finished law school, she wore out several pair of shoes trying to find a job in
Detroit and Chicago and New York and San Francisco and Los Angeles; and she felt she was
thrice blessed. She was Japanese, she was a woman, and she had gone to what was then known
as that left-wing University of Chicago Law School She literally, because she bad no
alternative, went back to Hawaii to hang out a shingle, and now she’s having a political career.
Mr. Pollak: So what did you do with your clerkship? What did you find that you actually
did?
Judge Mikva: It was an exciting clerkship. Just being there was exciting. You felt like
you were the center of the universe and, especially for somebody who led as insular a life as I
had, this was incredibly exciting, to be involved with all these important cases and to be in
Washington. Washington was and is an exciting place to be. The clerks were absolutely, I think,
person for person, it was the most brilliant group of people I had ever been around at any given
time. If there is a meritocracy in this country, it has to be the way clerks are chosen. Nobody, no
matter how political their background or how unusual their management style, no judge will take
anyone but the very best clerks he or she can get. The result is you just bring out these really
bright people. They were all energetic and enthusiastic and full of ideas and full of enthusiasm
for their task. I came in July or August in the summer of ’51. I had just finished taking the bar
exam and came to Washington. For the first few weeks, Zoe and I stayed in Newt Min.ow’s
apartment. He had an aparttnent in Park Fairfax, and he and his wife were out on vacation, and
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we stayed there until we found a place in Park Fairfax. I read cert. briefs and found my way
around the courthouse and_ ?id the bench memos. The Judge liked the cert memos relatively
short. There was something at that time that we all used to hoot at and that I realized was
something that made a lot of sense. It was called the “Eisenhower memo.” President Eisenhower
insisted that he didn’t want to read anything that was more than one page long and, if it was
something that they wanted his decision on, they had to keep it to one page. We thought, “how
ridiculous.” There are some things you can’t boil down to one page. Well, that may be, but it is
true that when you are dealing with somebody who has an awful lot of paper to digest, shortness
is very, very important. Justice Minton made it clear that he wanted cert memos to be as brief as
they could be and give him everything he needed to know. So we would try to boil them down to
reasonable length. He always wanted a recommendation from us as to whether we thought cert.
should be granted or cert. should be denied. I can’t ever recall his disagreeing with us when we
said cert. should be denied, but he frequently disagreed with us if we thought cert. should be
granted. He had many disagreements with us on the merits. He was very personable. One of the
things that he and Justice Frankfurter agreed on the most is that the Court should take as few
cases as possible. I don’t remember what the phrase was. It was something like, “You shouldn’t
mess around with the law unless you really have to.” There was something called, we used to
call it the “dead list.” I think it has a different name now, but the Chief Justice and his clerks
would read the cert. briefs early; and they would circulate a list, usually two or three weeks
before conference, in which the Chief Justice would say the following cases will not be discussed
in conference unless some Justice objects. And our standing instructions were that, if it was on
the dead list, our Judge didn’t want to see a cert. memo. I think on one or two occasions, we may
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have pushed the envelope when we thought that the Chief Justice was wrong, but very, very
seldom. There were other)ll:Stices who did. For instance, Justice Douglas and Justice Black
both would frequently object to the “don’t discuss list” and, of course, any single Justice could
put it on the discuss list at the time of the weekly conference.
Mr. Pollak: Did he read the briefs for cert.?
Judge Mikva: No. Only on those in which cert. was actually granted. Let me put it this
way. Only on those where we recommended that cert. be granted and where conversation in the
judges dining room led him to think that there was going to be a likelihood of granting cert.
Sure, he read the petition for cert. in the Steel Seizure case. It was obviously an important case.
But other than. that, be did not want to read the petitions or the cert. briefs.
Saturday mornings were always very exciting. The drill was that one of us had to be on
duty Saturday. Usually it was so exci ting that both of us would come in on our own, but we
could take turns. As far as the judge was concerned, he wanted to have one of us there on
Saturday because every once in a while a message would come out — we use to call it a “no
case;” they would be discussing something in conference or sometimes from the bench he’d send
out these ”no case” memos. He’d say, “Isn’t there a case on so and so?” And there was no
computer, there was no finding service. We would start tearing the books off the shelf looking
for the case that he remembered but he couldn’t remember the name of it or couldn’t remember
the year or whatever and, it seemed to me more of the time than not, we would have to send back
a memo saying, “Judge, there is no case.” So we used to call it “no case.” I loved it.
Mr. Pollak: What went on Saturday morning that he was doing, that the Justice was
doing?
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Judge Mikva: That’s when the conferences were.
Mr. Pollak: On Sa11!fday.
Judge Mikva: On Saturday mornings, the conferences, and Monday mornings were
opinion days. And that was rigid. Occasionally, they had extra opinion days, maybe,
occasionally, extra conferences; but traditionally, Saturday morning was conference day. We’d
be there at 9:00 and the Court would work till noon, sometimes later, in identifying cases that
they were going to grant cert. on, and the cases that had been beard would be decided and
assigned. There were only the nine Justices in the conference. I thiDk that’s still the way it is.
Minton, as the junior Justice, which he was then, would be the one who answered the door. Our
standing instructions were that we were never to knock at the door unless somebody in his family
said it was an emergency or unless he had asked for us to give him something. Other than that,
we should never be responsible for the knock at the door. But it was very exciting because the
clerks would all hang around. We didn’t have a lot to do. We were kind of waiting for what was
going to come out of conference, and we’d speculate about what they were going to do on this
case or that case, if they were going to grant cert or affirm or reverse. Then the conference would
break up. Sometimes right after the conference, but usually on the following Monday, he would
go over, not in any detail, the results of conference. In fact, I remember changing this with my
clerks when I became a judge. I would try to have my meeting with.my clerks right after
conference, and I would insist they stay until I came back, even if they had to eat lunch at their
desks, because I found it was useful for them and for me to unload everything that went on in
conference while it was still fresh in my mind. All he said was what was going to be the ratio
decidendi of the case. He would usually do it, as I recall, on Mondays. He would tell us what he
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thought we needed to know. He would say the Chief assigned the opinion on so and so and on so
and so. I think we got everybody but Hugo and Bill, but this is the way I want the opinion to
look. Then he would go into some detail on what he’d want. Usually, we would do the first
draft. Very occasionally, he would do the first draft. I never had any problem about whose
opinion it was because you knew damn sure by the time it was through that it was his. There
were occasions where he was very unhappy with our drafts; this was the height of the McCarthy
era, and both clerks tried to carry out his wishes but sometimes he was just so determined to get
to a particu]ar result. I remember on one opinion – it was a teacher’s oath case – Feiner v.
New York, I wrote the first draft. Clearly he was going to uphold the oath and the teacher
remained fired. I wrote it the way 1 thought he told me to write it, and he looked at it and came
back in the room and said, “God damn left-wing University of Chicago, I don’t know what they
teach you there.” And he handed it to my co-clerk who was way to the left ofme. I was a
moderate compared to Ray. And so Ray took a stab at it and later the Judge said, “I don’t know
what the hell is going on at the law schools these days. I don’t know what they teach you.” And
he sat down with his secretary and they wrote the opinion. It was pretty rough Frankfurter’s
clerks were mimicking the judge, saying unpleasant things about it and other judges were saying
it just didn’t hold together. And it got worked over some by other judges. He didn’t want us
working on it anymore. It finally came down, I think it was 5 to 4 or 6 to 3. It was not one of the
clearest expositions.
Mr. Pollak: But it was, he wrote for the majority?
Judge Mikva: He wrote for the majority and kept the majority on it and it remains a
major precedent as to why loyalty oaths were upheld at the time. But I still don’t remember what
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he was unhappy about. I obviously didn’t handle the speech argument that caused the dissent.
Outside of a few eruptions_ljke that, he was always very pleasant. He was not a hard task master.
He would usually come in about 9:30, 10:00 o’clock when the Court wasn’t sitting. What is now
the Army/Navy Country Club was then the Fairfax daily fee course, and Newt Minow, Howard
Trienens and I used to get out there at the crack of dawn and rush though 18 holes and be in on
time before our judges came in.
Mr. Pollak: Really, during the week?
Judge Mikva: During the week. We’d get out there at 6:00. Play 2, 2-1/2 hours and be
downtown, showered and all set to go by 9:00 o’clock. It was great, great fun.
Mr. Pollak: What were the major cases of your tem1, and do you have observations you’d
like to record about the other Justices?
Judge Mikva: Probably the major case was Youngstown Sheet and Tube, the Steel
Seizure case. It remains incredibly important. It has incredibly important precedential value. I
am amazed at how often it is still referred to in the important constitutional cases. It probably,
more than any other case, plumbed that very fuzzy spot between Presidential powers and the
limits on congressional powers. I saw myself using it when I was White House Counsel deciding
what the President could or could not do by Executive Order. The majority opinion probably
was one of Justice Jackson’s most brilliant intellectual and writing expositions. He was the best
writer on that Court. He was one of the best writers of all time. He got into that one. He sensed
what the historical dilemma was about: when the President’s role as Commander-in-Chief has to
trump the powers of Congress, and when Congress prevails. He parsed it out beautifully, and he
wrote about it beautifully. Justice Minton’s role, and it was not particularly strong, was to join in
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Chief Justice Vinson’s dissent with Tom Clark, the three of them. I think they were the three
dissenters. They were lhr?? Truman appointees who felt that their personal loyalty should
prevail I was kind of shocked. It never occurred to me such an important case would have any,
would in any way be perceived to be a test of the Justices’ loyalty to Truman. I could see if there
is a loyalty to the Executive Branch or loyalty to the Congress, but Vinson and Minton and I
think Clark felt that this was important to show that they were loyal to their appointer.
Mr. Pollak: Explain why loyalty to Truman would call for a dissent from the majority?
Judge Mik.va: Because Truman had seized the steel mills. The steel strike was very, very
crippling to the economy. It was causing a great deal of difficulty. Truman had used the fact that
the Korean War wasn’t technically at an end as giving him the war power to seize the mills to
carry forward necessary wartime military concerns. Jackson in the majority opinion said, no,
tecbnically we’re still in a state of war. But, the fact of the matter is that the President is seeking
to do something that specifically Congress has said can’t be done except through more
complicated labor laws that called for a cooling off period, Presidential boards, and so on, and
wouldn’t have provided the speedy result that Truman wanted. Vinson wrote an opinion which
we argued a lot about because his clerks were Howard Trienens and Newton Minow; and since
we were also on the dissenting side, we had some input on that. We argued a lot about it. I must
confess that history has not treated that dissenting opinion as kindly as I thought about it at the
time. At the time, I thought a reasonable case could be made for Truman’s point of view.
Selfishly, I wanted the result that Truman caused because I was worried that the strike would
resume, which it did, and hann the country, which fortunately it didn’t. But at the time I thought
that the dissenting opinion was good. In retrospect, I don’t think so. It’s only one of the many
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things that does not appear to me now as it appeared to appear to me then. The case brought out
a lot of the differences in th? Justices and how they reacted. I think five of the Justices had
served in the legislative branch of government. Vinson had served in the House of
Representatives, I think; Minton had been a Senator; Black had been a Senator. Who else was
there?
Mr. Pollak: Frankfurter, Jackson.
Judge Mikva: Jackson had been Attorney General. Frankfurter probably had the least
public office experience of anybody on the Court but he, of course, had been involved with
government since he had gotten out oflaw school Harold Burton was a Senator. Burton may
have been the third dissenter. It may not have been Clark. I’m not sure. It may have been the
three senators who were all dissenters, even though it was a test of strength between congressional
power and presidential power and they were with the President. But you had these people
who had this heavy dose of legislative experience.
Mr. Pollak: Another was Reed.
Judge Mik:va: Who I think had been Solicitor General and again in the legislature back in
Kentucky. Maybe he’d been in Congress, I’m not sure. But they clearly were people who had
been involved in government in high positions, many of them if not most of them in the
legislative arena. I just think it made all the difference in the world in terms of the way they
reacted to these cases that had heavy political coI1Sequences. They were never blindsided by the
importance of that kind of a case. They all knew that Youngstown Sheet and Tube was an
important case. It was going to have consequences not only in the immediate future, but forever.
I was always dismayed when I saw how the Court was ahnost blindsided in Roe v. Wade, when
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Justice Blackmun sat down and meticulously went through what I considered to be a very good
intellectual analysis of why_ ?e case had to come out the way it did and why it was necessary
under constitutional precedents, but he seemed totally unaware of the political consequences that
would follow that decision. Anybody that had been on the state legislature as I had could have
told? but on the Court that handed down Roe v. Wade, I think that only Justice Stewart had
had previous political office; and Sandra Day O’Connor was on the Court and she had had two
terms in the Arizona state legislature; but none of the others had ever been involved in the
political arena: not Blackmun, not Brennan, not Burger. Tuey were shocked at the outcry that
came from that decision. I was really shocked that they came down with that decision. I thought
they had been ducking it for so long that they would continue to duck it. And that we were going
to have to wait until the political process did it. I was pleasantly surprised to find that the Court
took it on. When you talk to Justice Blackmun today, he’s almost wondrous about how deep the
feelings were against him
Mr. Pollak: Well, an interesting strand that I hope your oral history will reflect is that you
have this long legislative experience behind your judgeship and very, very rarely today do we
have people on … go ahead, you were speaking about the absence of legislators on the Bench
Judge Mikva: Up to the turn of this century, the quite regular source of federal judges
and state judges was the legislative branch When you go back to look over the history of the
federal and the state judiciary, you find many of them, indeed, maybe most of them in earlier
years, having come from their state legislarures, from the Congress. It was a traditional route to
follow. You were elected to Congress, served a few years, become a judge; get elected to the
legislature, serve a few years and you become a judge. That changed around the turn of the
.72.
century as part of our democratizing and getting rid of the political patronage that supposedly
permeated the judiciary. It. y;ent way too far. The dates are not quite as crisp as I’m making it
sound, but this is something that happened at the beginning of the 20th century. The agitation for
it started after the Civil War, that we had to make our judges more democratic and so we started
electing our state judges. I still remember reading an essay when I was in law school about how
in New York they had gone from appointed judges who had been deemed too autocratic to judges
who were more common . The judge now sat on the same level as the lawyers and without a
robe. Compare the kind of justice that was distributed by those elected, common judges
compared to the old common law judges who, whatever their aristocratic prejudices, at least
knew the law and were sound in their legal opinions. The same thing happened, kept going on,
during the 20th century, particularly when there were these efforts being made to get rid of
patronage in the selection of judges to the point where the federal judges, instead of being
predominantly peppered with people who had served in the legislative branch, became very, very
much the opposite. When I went on the bench in 1979, in the previous ten years, only two
people, including me, had gone to the federal bench who had had congressional experience: Bill
Hungate who became District judge in Missouri who served with me and I, were the only two
appointees in that entire ten-year period who bad had any legislative experience.
Mr. Pollak: Subsequently, George MacKinnon.
Judge Mik:va: George MacKinnon bad gone on previously, but in that ten-year period.
Mr. Pollak: He’s another who occurs to me, but I can’t think of many others.
Judge Mikva: There weren’t many, Judge Buckley, but he crune after me. But between
’69 and ’79, there were two who had served in the Congress who became federal judges. There
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have been more since then, though again, not a lot. It is still not considered a great jumping off
place from which to beco? a judge.
Mr. Pollak: That significant democrat from Arkansas or one of the Oklahoma House
member who went on the Bench?
Judge Mikva: Again, that was before me. That was in the ’60s. I’m trying to remember
bis name. I know who you mean. It was from. I think it was from Oklahoma, but it was in the
early ’60s. Between ’69 and ’79, there were two people. I think that, unfortunately, the federal
judiciary bas paid a price for that. Now again, the arguments that the reformers make are, well,
you know, if Congress becomes the place that Presidents look to pick as judges, between being
members of a fraternity/sorority, they’ll get confirmed too easily, and Presidents will start paying
off political debts by appointing members of Congress who vote the right way on some important
legislation. Some of that is true, though I am a wimess to the fact that being a member of the
fraternity doesn’t necessarily guarantee you easy confirmation. I had one beck of a fight getting
con.firmed. The final vote was 58 to 31 because the National Rifle Association got on that case.
I don’t think that it’s political patronage when judges are selected from the legisla tive ranks, and ]
think it’s an important piece of experience that a judge ought to ha ve. When I went on the Court
of Appeals here, and this was in 1979, until I left in 1994, I probably read more congressional
records on the bench than I did when I was a member of Congress because most of the cases we
had involved interpretation of federal statutes that the Congress had passed. Knowing the
process by which those statutes get on the books and knowing what goes on in the congressional
chambers, is a big advantage to being able to interpret the laws as a judge. Unfortunately, that is
not what the wise people who promote the selection process think, and we continue to have very
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few federal judges come from the ranks of Congress. I think that’s unfortunate.
Mr. Pollak: You ?<;:re speaking about the major cases in your term with Justice Minton
and you mentioned Steel Seizure. Maybe there are others that you want to mention?
Judge Milcva: There’s at least one other, and that was Rochin, the stomach pump case.
Justice Frankfurter had this reputation among the clerks, including his own, of talking the talk
but not walking the walk. He just, that was not the phrase we used but a more contemporary
phrase. He bad this great reputation of being this liberal law professor who defended Sacco and
Vanzetti and had done all these other important civil liberties cases, but when he got onto the
Court, he just always found a reason not to come out on the side of civil liberties. In all the
loyalty oath cases and in all of the other similar cases, Frankfurter was just not on the side of the
civil liberty. We were surprised when Rochin came out the way it did because we counted at
most three votes: Jackson, Black and Douglas, I think, were the only three that we thought were
going to overturn that conviction. We were shocked that not only did Frankfurter overturn it but
wrote the opinion. The wags said, well, we were shocked and he was even more shocked. You
recall the measuring stick he used was one that was not very helpful if it shocked the conscience
of the society to decide when to use force beyond restraints.
Mr. Pollak: It was a Fourth Amendment case?
Judge Mik:va: It was a Fourth Amendment case. They had pumped this man’s stomach to
find drugs or whatever it was, contraband, that they were using as evidence. Frankfurter said that
went beyond the conscience of society to allow stomach pwnping to get the evidence.
Mr. Pollak: I wonder how the law has evolved since then?
Judge Mikva: Well, again, not all the big cases end up malcing a big difference. I’ve
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thought about that many times. There are a few cases that really make a difference. As I
indicated before, Youngstown Sheet & Tube was one that continues to be an important pillar iD
our separation of powers jurisprudence. Miranda has made an incredible difference, both in the
law and in the practice, the way criminal law is and the way the criminal process is carried out.
Miranda is as big, partly because it was a simple rule to administer. The police are told, “Look,
read them their rights.” It doesn’t say you have to read them at so many beats per meter. It
doesn’t say you have to read them in a loud, clear voice. It doesn’t say you have to read them
when the sun is shining or within 20 minutes, it just says, ”read them their rights.” And so the
result is the policeman can carry that little idiot card in his hat and, whenever they arrest
somebody, they pull it out and say, ”you have the right to remain silent, you have the right to a
lawyer, etc.” It has perfonned the purpose it was intended to pe:rfoITil. Cases like Rochin are
much too difficult. We used to tease when I was on the court about the worthy container
exception to when you could search the car and when you couldn’t search the car. You ask the
cop on the beat who’s busy trying to protect the public and his own neck besides to administer
complicated rules that lawyers can disagree about, that judges can disagree about; and it just
doesn’t work. And Rochin is one of those cases in which the standard is just too fuzzy for
anyone really to understand.
Mr. Pollak: Any other case that you think worthy of mention?
Judge Mikva: Those are the two that stand out. There were others. I think I mentioned
Feiner v. New York, but those were the two criminal that I really remember.
Mr. Pollak: Another case taught you a lesson?
Judge Mik.va: Another case that taught me a lesson that I have never forgotten is that
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Congress is first among equals. The case is Wunderlich v. United St ates; and you probably
haven’t heard of it and I wu.! tell you why. The case involved a contract that had been let by the
Army during the Korean War; under the statute (it actually came out of the old Truman
Commission/Committee in World War II) the Anny was free to renegotiate these contracts if
they thought that the prO:fits were excessive. The case came up challenging the constitutionality
of that statute and that provision. Minton was assigned to write the majority opinion. As I
indicated before, he allowed us to do the first draft. This was one where either I was listening
better than I otherwise did or he was more articulate, but the draft I sent in to him came back
word-for-word the way I wrote it; and in 341 U.S., there is an opinion, Wunderlich v.
United States, upholding the right of the Anny to renegotiate this contract for excessive profits,
written by me. But that’s not the story. The story is that within three months, Congress passed a
statute overruling the case. That’s when I learned who really is first among equals.
Mr. Pollak: Do you have any other connnents you wanted to make about the Justices?
You remarked briefly on Jackson and on Frankfurter, and you’ve spoken some about Minton.
You haven’t really spoken about the others.
Judge Mikva: Well, the two heroes for most of us liberal clerks at the time were Black
and Douglas. And they could not have been more unlike each other. Black was gregarious and
outspoken and very charming; and when he’d hire bis clerks, one of them had to play tennis
because Black was a tennis player. He kind of got a commitment out of his clerks that they
would go back to the South and practice law because he felt that it was important that the South
understand what the Supreme Court was doing. By that time he had become very unpopular in
the South – a native Alabamian, liberal on civil rights. Black and Douglas did concur most of the
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time – they saw things pretty much the same way- but they could not have been more unhlce
each other. Douglas was tpjs very shy professor who literally just could not relate to people the
way Black did. Douglas’ chambers were right next to Minton’s chambers; and every morning on
the way in, I would pass Justice Douglas going to his chambers – we were on the same time sync.
So I would say, “good morning Mr. Justice,” and he would look straight ahead and never even
say hello. I thought about that many years later when I was trying to fight back Gerald Ford’s
efforts to impeach Justice Douglas, and my effort sure wasn’t based on any personal relationship
because there wasn’t one. He was just a very cold cookie. There is a story that happened a year
before I was there, maybe the year I was there, but it’s a story that is often told. There was a practice
of inviting one of the Justices down to the clerks’ dining room to talk to them about matters.
Toe clerks had their own dining room, so they were free to talk about the cases without
somebody overhearing them The practice is that the clerks go through the regular cafeteria, get
their trays and take them to the clerks’ dining room Toe Justices normally eat in an upstairs
dining room where they’re served by their messengers. Well, one time, whoever was inviting the
Justices invited both Black and Douglas to come down the same week. Black frequently ate in
the cafeteria with his clerks, and so, when it came time for this lunch where he was supposed to
talk to the clerks, he went through the cafeteria with his clerks and came into the clerks’ dining
room with all these clerks around chattering like magpies. And there was Justice Douglas sitting
there, being served by his messenger who had brought his tray, his lunch, down from the upstairs
dining room. Black looked at him and called out, “Well Bill, how’s the man of the people
today?” Justice Reed was probably the least known of the Justices. Everyone respected him but
he was getting on in years. Justice Clark was very pleasant, very nice, but no one could really
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quite figure out where he came from He had not been known as a great legal scholar; he clearly
had some loyalty to Presid?:μt Truman, but that was not a1ways visible in the way he voted; and
bis reign as Attorney Genera] bad not been that outstanding. Justice Jackson was admired by a
lot of people but, again, people didn’t quite know how to figure out where he would land on the
ideologica1 landscape. His writing was a1ways brilliant. I thought Jackson was the best writer on
the bench of all the Justices when I was there. I think that covers it all.
Mr. Pollak: Burton?
Judge Mikva: Burton was a very pleasant, quiet kind of a person. His greatest claim to
fame was that he had sat on the other side of Harry Truman when they were in the Senate.
Minton had sat on one side, and Burton sat on the other side, and Truman took care of his
lawyers. Burton was not well perceived by the clerks. I think that was all Reed, Burton,
Frankfurter. Frankfurter was as advertised. He was this bouncy law professor, always poking
hard questions at the lawyers and at clerks and whomever else he could get his hands on; but be
very much disappointed those of us who expected him to be a Hohnes or Cardozo, with that kind
of zea] for civil liberties.
Mr. Pollak: Did any of the Justices in performing their roles as Justices, as you observed
them. have an influence on you as you sort of scoped out the way you would perform your role as
a judge when you came some 28 years later to go on the bench?
Judge Mikva: Well, I think I learned some things not to do from Justice Frankfurter. For
instance, he was always writing memos to judges about what they should do in their opinions and
then not joining them I remember my boss complained several times and other J\L5tices’ clerks
complained at how Frankfurter would encourage judges to make changes in their opinions and
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then wouldn’t join in the opinion anyway. 1 realized that, if you’re not going to play the game,
don’t try and make the rule?: J took that very seriously when I got on the court. If I wasn’t
prepared to join in an opinion, I would not make comments on what I thought about the opinion
and what changes I thought it needed. If I was going to join in, then I would suggest changes. In
fact, we developed a phrase on my court called, “Talce it or leave it,” which meant I would go
with the opinion an yway, but I would like you to trunk about such and such a change which you
could leave alone if you want to.
Mr. Pollak: This was on the Court of Appeals?
Judge Mikva: Yes. I think part of that came a bout because I saw the resentment that
Frankfurter’s practices used to generate among his colleagues. Of course, I missed a great
opportunity not being a clerk while Chief Justice Warren and Justice Brennan were there, but I
saw how important personal collegiality was through the way Justice Black behaved.
Unfortunately, it was after Nuremberg. Black and Jackson had had this big feud about
Nuremberg, and Jackson came back insisting that Black was conducting a vendetta against him.
So a little bit of the collegiality that there apparently used to be with Black was gone. Even so,
Black would spend time coming into other Ju stices’ chambers and shmooze with them. Tom
Clark did some of that, too; and I found it, I guess I wasn’t really surprised, but it was reassuring
to know that even at an exalted level like the Supreme Court of the United States, it’s inhabited
by human beings and that human contact is the important thing.
Mr. Pollak: Everyone’s always interested in the hours you kept, the law clerks keep.
You’ve said that you found time to play golf. Were the hours inordinate mostly?
Judge Mikva: Not by law school standards and not by law practice standards. We would
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normally, except on those few days we were playing golf, normally we’d be in by 8:30 or so and,
you never left till the Judg? ,left. That was just sort of understood. He came in later, so he
usually wouldn’t leave till around 6:00. Occasionally, he would stay later. Occasionally, he
would go earlier. That’s what you had to do. Because there weren’t computers, I frequently was
able to do work at home and if the Judge left, I would get home in time for dinner and do some
work at home at night. Saturday was considered a work day. Sunday, pretty much, not. I’d say
that I worked harder in law school and harder as a young lawyer than I did at the court. I worked
harder as a law clerk than most law clerks do these days. Part of it is the difference in the work
habits, and Saturday is no longer considered a work day. I guess that’s true in the law practice as
well.
Mr. Pollak: Right, it was a work day when I began practice.
Judge Milcva: It was just a regular day. And now it isn’t. I wonder how these lawyers
pull in 2200, 2300 chargeable hours if Saturday isn’t a work day.
Mr. Pollak: I have no explanation for that or for some lawyers who could even charge
more hours than that.
Judge Mik:va: I learned something about myself. While I can pull all-nighters when I
have to, and I used to sometimes when I had an opinion that was due that was coming hard. I
learned that my efficiency dropped after midnight horrendously. If there was ever an option, I’d
be much better off quitting and getting up early and starting over again than trying to keep myself
awake with coffee and churn away all night. From midnight on, for every minute of production,
there were 5, 10 minutes of daydreaming and wishing I were elsewhere.
Mr. Pollak: Do you have anything else to say about either collegiality on the Supreme
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CoW1 or acrimony on the Supreme Court, the Court that you observed then as a clerk or on the
Court as it’s come along sll,l?e? I don’t mean to make the question too global.
Judge Mikva: The Court was pretty collegial. There was this tiff between Black and
Jackson that had gone on for some time. Notwithstanding Douglas’ shyness and his loner ways,
everybody reached out to befriend him; Minton, for instance, went out of his way to chat with
Douglas and walk arm in arm with him The Chief Justice, Fred Vinson, was very gregarious
and would tell war stories, and he was always running around from chamber to chamber. There
was a lot of collegiality and there was a lot of collegiality among the clerks. Perhaps the only
kind of loner was Bill Rehnquist because he perceived himself to be much more conservative
than all the rest of us, but he would have lunch with us in our din.mg room He would come in
sometimes a few minutes late, would listen to all ofus who had staked out our positions, and
then stake one out as far to the right of the last one that he could. He played poker with us. We
had a floating poker game that Howard Trienens and Hans Linde were in, and I was in, the Chief
was in. They used to love to see the Chief come to the game. He was single at the time. He
used to love to draw to inside straights. They always knew they could do well if Rehnquist
would show up at the game. I’d say the collegiality level was high. There were several other
things that impressed me. One is that we clerks took ourselves very seriously and thought we
were absolutely at the center of the universe. But it never occurred to us that our job was to try to
really influence our judges. We were trying to present things that would catch their eye, but
never to the point of saying this is the way you must come down. There was the story of one of
Reed’s clerk’s who felt so passionately about something, he said to Justice Reed, please Justice
Reed. I feel very strongly about this. I hope you’ll vote to grant cert. And Justice Reed
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su pposedly said, well, if you feel that strongly, I will Now, Rehnquist picked up that story in an
expose that he wrote for U?’!? magazine some years later; but I never heard the story until I read
about it. There certainly was not a lot of that going around. We thought of ourselves there as
minions of very important personages. We weren’t there for our judgment. We were there for all
the help we could provide with whatever expertise tha t we had from law school. We weren’t
censors for our judges. It has bothered me over the years, especially when at the end of my
tenure on the Court of Appeals, that I would see these law clerks come in with an agenda; and I
find it a most disturbing change. I hope that it is temporary. I hope it disap pears. Because I can’t
think of anything worse than having law students, no matter bow bright they are, no matter how
enthusiastic, committed and dedicated they are, making the judgments that are supposed to be
made by judges who have been around the horn.
Mr. Pollak: Do you want to explain your reference? Are there young people who take
clerkships in your observation and then seek to bring upon the judge their scale of justice?
Judge Mikva: There is a nasty story that I sadly think is true about a clerk for one of the
Supreme Court Justices who helped him on an opinion which was kind of surprising. Everyone
assumed that the Court was going to cut back on Miranda and carve out a larger good faith
exception to the Miranda right. This Justice wrote the opinion which rejected that approach and
kept Miranda pretty much the way it is. The clerk who worked on that opinion was a part of the
Federalist Society network, which has a large group of clerks up at the Supreme Court now.
Whether they get hired from the Federalist Society or simply all happen to be Federalist Society
members when they get up there is not completely relevant, but supposedly they do maintain a
close social network when they end up as clerks. Supposedly, this clerk, after working on this
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opinion for the Justice, went to a party, and he was “shunned” by the other Federalist clerks at
this party. I mean, literally ?hunned. They turned their backs on him when he walked into the
room Thereafter, one of them explained to him that it was well known that his Justice was kind
of weak on that issue and it was his job to shore him up and to see to it that he didn’t write this
wishy-washy opinion. I found that horrendous, just horrendous. I have talked to other Justices
up there and judges who have refrained from using some of the Federalist Society apparatuses
and certain feeders in the way of law professors because they feel that their clerks are coming
with too much of an agenda and that’s not their role. I don’t think anything is more debilitating of
the relationship and nothing could damage the :instirution of clerkships more than clerks with
agendas. As far as I’m concerned, one of the reasons the federal judiciary works as well as it
does is because of the unique institution of clerks. Ibis idea of bringing, of each judge having,
three or four new law school graduates every year whose enthusiasm for the law is unabashed but
who have a proper irreverence for the starus quo and the status quo ante is what keeps the judicial
process working as well as it does. But I think that if judges start to feel that they have to protect
themselves from clerks with their own agendas, we will start losing the institutions we have.
Mr. Pollak: Your clerkship’s drawing to an end and what now? What did you consider
and how did you make your judgments and where did you go and what did you hope?
Judge Mikva: I heard Arthur Goldberg argue the Steel Seizure case, which I considered
the best argument I heard that year and maybe the best argument ever. John W. Davis was
arguing for the steel companies. John W. Davis was very long in the tooth and bis voice was
soft, and he just couldn’t rise to the occasion. I forget who was arguing for the goverwnent; it
must have been the Solicitor Genera] but it wasn’t particularly inspiring. Goldberg was great. He
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handled the questions so well. He was so confident of what be was saying. He was 35 or 40
years old, at ease up there -?t the lectem I said to myself, I’d love to go work for this man. So,
after the case was decided, I asked for an interview and be said yes. The only other thing I was
thinking about was that Adlai Stevenson was then Governor of Illinois and there was some talk
about maybe his running for President. More important, be was just a great governor. It bad
been the Democratic Machine that put him up and Paul Douglas for Senate back in 1948 and he’d
been a superb governor, and the idea of going to work for him was very appealing to me. Newt
Minow had already gotten a job with him Howard Trienens and Dan Walker who had been a
clerk about the same time had also gotten jobs with him. Howard Trienens was either going to
go to work for him or was given an offer, and I just thought that would be a great place to go to
work. Unfortunately for me, or fortunately for me, the Chicago Tribune at the time was owned
by CoL McCormick; he decided to take out after Governor Stevenson for putting in this elite
palace guard, hiring all these bright young Supreme Court law clerks to really make government
in his image. Also, though I don’t think he had to do that with the law clerks, but Governor
Stevenson had been charged with and was guilty of supplementing some of his employees’ public
salaries. He had brought people in from higher-paying teaching positions and lawyer positions
and in order to allow them to work for the government, be bad supplemented their government
pay with a private salary. An argument can be made that that’s a bad practice, but clearly bis
motives were good and his intentions were good; but the Tribune got on bis case on that. They
didn’t have to supplement our salaries so far as the clerks were concerned. But that was part of
this general drumbeat that Stevenson was surrounding himself with elitists, intellectual elitists. I
interviewed with Carl McGowan, who was then his aide-de-camp, and Carl said, well, you know,
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we have a great deal of respect for Supreme Court law clerks, but we can’t take you on to the
governor’s office. There’s j1;1St too much heat on him. What we can do is put you on with
somebody named Joe Pois who is the Director of Finance who is very close to the governor and
you’ll get a chance to work with the governor some but you’ll be on Joy Pois’ payroll. And that
was my other offer when I went to interview Arthur Goldberg. Goldberg and I hit it off right
away. We found that we had similar backgrounds, and I always had been interested in labor law,
which is what he was doing. I thought, well, if he offers me a job to work in Washington at his
Washington firm, I’ll take that over Stevenson’s job because it’s not really Stevenson. But he
didn’t make it that easy. He offered me a job but only in the Chicago firm because they didn’t
need anybody in the Washington firm, and I’d get to do some labor law but not all labor law. He
said, ”I hope you’ll come with us.” I said, “well, Mr. Goldberg, I am considering this offer to go
to work for the state,” and he asked me to describe it. He said, “Oh. you don’t want to do that,”
with a broad wave of his hand. ”In the first place, if you’re not going to work in the Governor’s
office, you’ll never see Stevenson. You’ll see more of Stevenson if you come to work with me.
At least I’ll take you with me when we go to the steelworkers’ conferences where the Governor
will be. You’ll get to meet him now. You’ll be just some lowly nothing if you go to work over
there in the Finance office.” And he said, ”Besides which, they’re not going to be able to
supplement your salary at all. They probably aren’t even going to pay you what you made as a
clerk.” He said, “We can certainly do better than that.” He said, ”How much are you getting
paid now as a clerk?” In those days, clerks were more than competitive with the private practice.
I said, ”I’m getting $5,200, sir.” All the blood drained from bis face. He said, ”That’s more than
one of our partners is making.” But, at that point, he was stuck with his offer. I got $5,200 and
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the partner, Milt Shadur, got a raise. Anyway, I was persuaded, charmed, cajoled by Arthur to
come to work in the Chicago office; and I never had any regrets. Oh, I shouldn’t say I never had
any regrets. Toe early years of practice, and I guess it’s not too different today than it was then,
there were ups and downs. There were some days that were very exciting. There were other
days that were as boring as all get out. Here I had been involved in all these important cases all
these exciting constitutional issues and the drama between the Executive Branch fighting the
Legislative Branch and the drama of those loyalty oath cases and those criminal cases. My first
chore at the firm was to find out where the Municipal Court of Chicago was located and to file
some silly pleadings to make some rich client richer. It was very troublesome to digest.
Mr. Pollak: Maybe it would be helpful to have you structure these years. You came off
the clerkship in the sUilililer of ’52, and that means that you spent then 27 years before you went
on the bench, 26 years, and why don’t, if you would, why don’t you lay in to this record the
blocks of what you did in that period and then we can go through each block to the extent that it
Judge Mikva: It was 27 years, from ’52 to ’79. Well, the first block was the practice of
law. From fall of ’52 until late ’55, I primarily practiced law. I had a short leave of absence to
work on the jury project at the University of Chicago, which was in Wichita, Kansas. They had a
study team there. But other than that, I was mainly practicing law, considerable labor law, some
constitutional law on which we prided ourselves, one of the few law firms in the country that
practiced constirutional law for a living. We had these censorship cases and other First
Amendment cases. Also, I did a lot of what is now called street law. Local 65 of the
Steelworkers had 15,000 members. Every Thursday night I had to go to the Steelworkers’ Hall
on Commercial Avenue and sit and listen to their legal problems. This was before the days of
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Legal Aid. I would listen to their problems, to their wives and their sons and their daughters and
their school teachers and aμ_ the other neighborhood people that had problems.
Mr. Pollak: Well, I think at least I’d like to offer you the chance to go back and speak
more about those three years.
Judge Mikva: Then in ’55, I started running for the state legislature. The important
election was the primary, which was in the spring of ’56. So, from the fall of ’55 until 1966, that
ten-year period, I was involved with the legislature. It began with running for it; meanwhile I
was still practicing, the practice was a good one, becoming more demanding. The fall of ’65, I
started my first campaign for Congress, which I lost in ’66. And I continued to practice that time
full time but really spending a lot of time getting ready for the next race, which was in ’68. So
that from ’65 until the fall of ’68, I theoretically was practicing law; and in ’68 I was elected to
Congress. I served there for four years, two terms. I was gerrymandered. out ofmy district, was
defeated in my new district.
Mr. Pollak: In ’72?
Judge Mikva: ’72. I spent two years practicing law and teaching with another law firm
Mr. Pollak: D’Ancona?
Judge Mikva: Right. I began gearing up for my next race, which I determined I was
going to do. In fact, at that point, an inquiry was discretely made, would I be interested. in a
judgeship? Chuck Percy was looking for a Democrat to nominate to the District Court, but I
turned it off very early because I really wanted to have another time in Congress. So in ’74, I was
reelected to the Congress and I stayed there till ’79, when I was appointed to the Bench. I was on
the Bench until ’91, when I became Chief Judge. In ’94 I was asked to become White House
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Counsel.
Mr. Pollak: Well, 1?,t’s then go back to those first three years, ’52 to ’55, practicing with,
what was the name of the Chicago firm?
Judge Mikva: It started out it was Goldberg, Devoe and Brussel. Abraham Brussel
became a Cook County judge later on. Milt Shadur was the other partner when I came there. It
was a five-person finn. I was the second associate. Shortly thereafter Milt became a partner — in
’56. I became a partner when Judge Brussel went to the Bench. Most of the time that I practiced,
it was Goldberg, Devoe, Shadur and Mikva.
Mr. Pollak: I guess that was the period in which some or all of your children were born?
What would you remark on in connection with that part of your career?
Jude Mikva: Well, they were exciting years. Let me say that the practice of law then, and
I’m afraid that it’s even more so today, every day, isn’t a day at the beach Well, there are good
days and there are bad days. There are days when you say, boy, what a smart move it was for me
to become a lawyer. And there were other days when you say, why did I do so this to myself.
And there are great victories and great defeats and great stimulations and great absences of
stimulation.
Mr. Pollak: Were you briefing comp]ex cases? Were you arguing cases?
Judge Mikva: In a five-person firm, the lowliest person on the totem pole does
everything. I actually argued a Court of Appeals case in the Seventh Circuit within six months of
the time I got there. I was also defending garnishment claims against some of our steelworkers
and standing up in municipal court arguing with the judge who may or may not have passed the
Bar exam against some skin-flint lawyer who’s trying to squeeze the last drop of blood out of
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him, the steelworker. And it was just a potpourri of experiences. Some of them were incredibly
important to me later on wAen I became a judge, and it gave me a feel about how some of these
cases come down to people.
Mr. Pollak: Why don’t you just explain that in a little more detail. Maybe, then you have
to go to lunch.
Judge Mikva: One of them I remember was the terrible block that the law frequently puts
in front of people that makes it impossible for them to vindicate their rights, to vindicate their
position, that makes the parties unequal We had a law in Illinois at that time called confession
of judgment law. It’s still extant in some parts of the country, though I think there are some
federal cases that have pretty much pulled the teeth on it. Under the confession of judgment law,
coupled with the garnishment law, if somebody bought furniture on time and didn’t pay for it, the
furniture company could go in, confess judgment against the buyer without his ever knowing
about it, and then on the basis of that confessed judgment, garnishee his wages. Toe
garnishment, of course, totally blocked the payment of wages by the employer, so that the first
thing that employee knew about the claim was that when he went to get his paycheck, the
employer would say, “I can’t pay you because there is a ‘brick’ on your check, somebody put a
brick on your check.” If they couldn’t find a lawyer, they were dead, because they’d have to go to
the furniture company and make whatever possible settlement they could. Frequently, not only
paying everything they owed in full, but attorney’s fees and late fees and you name it. Just huge
amounts of money — or else they would never get their paycheck.
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INTERVIEW NO. 3
1bis is the third int?fView of the Oral History of former Chief Judge Abner J. Mikva as
part of the Oral History Project of the D.C. Circuit Historical Society. It is being held at his
home, 442 New Jersey Avenue, S.E., Washington, D.C., on Thursday, June 20, 1996. The tape
and any transcripts made from the tape are confidential and governed by the wishes of the Judge,
which ultimately will be made in the form of a written donative instrument.
Mr. Pollak: As I mentioned, you were speaking last time about your commencement of
practice with Goldberg’s Chicago firm 1952, 1955, and descnDing an experience you had in a
garnishment case.
Judge Mikva: Well, I think I bad said that Illinois had this very bad set of creditor
remedies laws which allowed a creditor to confess a judgment against a debtor that he claniled
was in default. As the term implies, when the person bought something on time, whether it was
furniture, or car, or whatever, they would sign a note; and in the note there would be a clause that
said, ”I hereby authorize the attorney or the creditor to confess judgment against me if I’m
deemed to be in default.” It was purely a subjective judgment by the creditors as to whether or
not he thought the person was in default or was somehow not going to make good on his
obligation. The creditors’ lawyer would then go in and file a confession of judgment, which
would actually be a formal legal judgment against the debtor in court; and based on that
judgment, the creditor could then garnishee the wages of the debtor. So that the first time the
poor steelworkers who had bought an automobile on time, or furniture on time, or whatever,
knew he was in any kind of trouble with his creditor was when the paymaster would tell him, “I
can’t give you your check, it has been garnisheed.” In fact, the term was, “there is a brick on your
check,” which means that they could not collect their pay. So that the debtor was always
bargaining with a gun at his head; indeed, the trigger had alread y been pulled: he was without bis
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paycheck. He had to go to the creditor, hat in hand, and work out some kind of an arrangement
to try to get his check rel?ed, and, frequently, to no avail Because the Steelworkers’ Union had
us on kind of a retainer, I would frequently handle these cases for the members. And
incidentally, I might add, some of the steel companies themselves as employers were upset about
the practices, Inland Steel in particular. Others couldn’t care less. It wasn’t their problem And I
fought vigorously because I thought the confession of judgment law was just an outrageous law
and should be abolished. I didn’t like garnishment either for that matter. And I remember that I
used to try to fight these cases in municipal court when the steelworker would come to me and
say he didn’t buy something or he paid them Nevertheless, there was a brick on his check. This
one man came to me who had a very common name. It was Brown or Smith or Jones or
something, and be lived on the south side of Chicago. He swore that he had never done business
with this furniture company which had garnisheed his wages. Nevertheless, there was a brick on
bis check, and he hadn’t been paid, and be was desperate. So I went to the courthouse, pulled out
the file, got the name of the lawyer who had confessed this judgment who worked for a furniture
company. I called rum up and said, “My man said he never did business with your client.” He
replied, “Well, I’m sure he is wrong, he probably just forgot or he’s probably lying to you.” So I
said, “No, I’ve looked at the contract.” In order to confess judgment, they would have a copy of
the contract with the papers that they filed in court. I said, “I looked at his signature on the
contract and the signature of the person who signed that contract is not the same as the signature
of my man.” He said, “I’m sure that he is lying to you or something.” I said, “Well, let me come
over to the office, I think I can satisfy you that you’ve got the wrong man.” So I went over there
and showed him my man who wrote his name several times and finally persuaded even thi s hard-
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nosed creditors’ lawyer that he didn’t have the right Brown, Smith, or Jones. At which point the
lawyer said, “Well, I guess.?e made a mistake. I’ll tell you what, give me $25 for my time and
trouble and we’ll call it square.” And, it would have been cheaper for me to reach into my own
pocket and pull out $25 and give it to him than to have gone through all of the agony I had to go
through to get that garnishment released, that judgment vacated and all the other things I bad to
do before I could get my erroneous employee out of the trouble that he didn’t belong in. And
there was absolutely no remedy, there was nothing that we could do. I, at one point, tried an
abuse of process and malicious prosecution; and the courts just made short shrift of those
because the precedents or whatever were awful on this whole thing. So when I came to the
legislature sometime later, my first crusade was to do something about these awful creditor
remedies; and we did finally get rid of the confession of judgment and a few other things that
made it a little harder. I’ve never forgotten how much trouble I would have saved myself, how
much money I would have saved my firm if I had just given this high-binder $25 as he insisted.
For justice be done.
Mr. Pollak: Have the laws federally changed the rights of the creditors?
Judge Mikva: Not really. The Federal Truth in Lending Law has helped a little bit, but
there are, I think, still states that allow confession of judgments, and assignment of wages, and
wage garnishments, and all these other things. It just put the time purchaser at the mercy of the
seller. Part of the problem is that when somebody goes in to buy furniture, or goes in to buy a
car, or signs a lease, the last thing he is going to do is read all that fine print. One of the remedies
I finally got through the legislature was to require the contract to be printed in larger print so that
there is at least some hope that people might read it I still remember, when I was still doing
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work with the Steelworkers Union, that frequently union members would come into me on these
Thursday nights when it w?? ,awyer night at the union ball, and they would come in with a
signed copy of a real estate contract they bad already signed, or the lease that they had already
signed, and they said, “Somebody at work told me that you’d look this over and see whether it is
okay or not.” I said, “But, you signed it already, what is the point of my looking it over, you’re
already on the hook”? He said, “Well, I didn’t know.” And that is the way business was done
then. That’s why I’ve never been a great fan of the good old common law because many of those
remedies that were applied against debtors in those situations were common law remedies.
Illinois was a common law state. I’ve never found the good old common law to be that good.
Mr. Pollak: So that meant that as a legislator, you wanted to address these common law
rights and remedies?
Judge Mik.va: By statutes. It was interesting that that’s what’s happened actually as this
country has l’.D.oved from a common law system to a statutory system It has been because of
pressure from people – people generally – on the legislators· to do something about these
problems that the connnon law allowed. And the reason the common law allowed them, frankly,
was the unevenness of the lawyering. In most of these situations, the creditors – the business
cornmunity – had very good lawyers. The debtors – the purchasers – had very poor lawyers, if
any lawyers at all Illinois has always had a strong usury law. It goes back to the days of when
money lending was considered kind of an evil anyway. And so Illinois has always had a very,
very tough usury law. I don’t know what it is now, but when I was there, you could not charge
more than six. or seven percent for the lending of money. But the cases bad developed all kinds
of exceptions to the usury law. The most notorious of which was that if you bought something
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on time, the extension of credit for materials that you bought on time was not considered under
the usury law; so that an aμtqmobile dealer could charge 24 percent on the automobile that you
were buying, and it didn’t come under the usury law. A real estate seller could charge 18, 20
percent on a mortgage, and it didn’t come under the usury law. I was fascinated at the stuff. If
you look at the usury statute, there is no way on earth that you could interpret that statute not to
include such obvious money lending transactions. When I went back and looked it up for a case I
was handling at one point where I was challenging one of these doctrines, I found this marvelous
old state supreme court precedent back in the early 1900s which had said time purchase
agreements are not under the usury law. You didn’t have to look at the reasoning of the opinions
or anything else. You just had to look at the lawyering. The lawyering was that some trial judge
had found in favor of the debtor and the time seller had taken the matter up on appeal And,
when you looked at the lawyers, there were three or four of the best law firms in Chicago, the
best LaSalle Street law firms in Chicago, representing the creditor and the debtor appeared pro
?. I’m not surprised at how the law came out in this situation.
Mr. Pollak: Can you attnbute any effect of these experiences in early years of practice on
your views as a judge when you addressed statutory common law questions?
Judge Mik:va: I’m sure they did. We are all victims of our experiences, and rm sure that
those experiences made a very great impression on me as a young lawyer full of enthusiasm for
the law when I saw how unfairly the law could be applied to little people as opposed to the
people who could afford good lawyers and good lawyering. I am sure that affected my judging. I
always looked over at who was sitting at the tables. There was a good defense lawyer in Chicago
who used to say that he would never go into court, in criminal court, with anyone at the table
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besides himself. Because he liked the idea of the prosecutors having three, four, five lawyers
sitting at the table and he liked the impact of the jury of bis being there all by himself. I used to
look at the counsel tables when I’d see various cases appealed, and count the number of lawyers
on each side. If there was a imbalance, I am sure it had some impact on how I looked at the
cases. Obviously, intermediate court judges apply the law as it’s given to them But, in those
gray areas that frequently arise, I am sure it had some impact even when I tried to avoid it.
Mr. Pollak I suppose that you might press your clerks to research issues that a party with
inadequate lawyer help might have missed.
Judge Mikva: I did. I think my clerks used to complain that I took the pro se petitions
that came up much more seriously than I should and frequently used to push to get a lawyer
appointed by the court that I could rely on. Of course, in criminal cases, there always was a
lawyer. I always worried that the imbalanced lawyering was going to create an unfair result.
And there were instances that that happened where, again, if you believe in lawyering as a worthy
profession, and I do, then obviously if one side has good lawyers, and the other side has none or
poor lawyers, it’s going to affect the way the case comes out. I was known even in the Chlcago
days as being somewhat gentle when it comes to dealing with human behavior. I was never a
great believer in capita] punishment, and I don’t think they ought to hang people from the
yardarm for minor infractions. When I was on the Disciplinary Committee of the Chlcago Bar
Association, I was an absolute bear on lawyers that were accused of not representing their clients;
because invariably, not invariably, but quite frequently, it would come up where a lawyer had
pocketed the fee from some person and then not done anything for him AB far as I was
concerned that lawyer should be out of the profession because almost all of the time they were
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exploiting poor people who didn’t know what their rights were, didn’t have any way of protecting
themselves; and the lawyer_ ?ould let a time date, a jurisdiction date pass or something like that.
As far as I was concerned those people just shouldn’t be lawyers. It was too important for them
to misbehave that way.
Mr. Pollak: What else would you want to recall for this record of these first three or four
years of private practice that perhaps other experiences in court or activities beyond the practice
that formed you?
Judge Mikva: Well, growing up in the Chicago lawyering community was a special kind
of experience. The judges in Illinois are elected, and in Chicago that meant that most people
became state and local judges by having worked their way up through the party machinery. It
was a glorified form of patronage. It wasn’t true of all the judges who sat in the state courts, but
it was true of a lot of them You would always worry that you would end up with one of two
problems when you appeared in the state courts in Illinois: either that the judge would not be
competent to do whatever the task, or that political influence was going to affect the way the
judge came out. I actually had put in mimeographed form a petition to remove cases from the
state court to the federal court; I would file such a motion almost automatically whenever
somebody would file suit against a client of ours in the state courts on a theory that I was more
likely to get an informed and unbiased judgment from the federal judges in Chicago than. from
the state court judges. I am sure I indicted the entire judicial community in Chicago unfairly, but
on the other hand, I was probably more right than wrong in trying to get those cases in the federal
court. As a result of my overuse of a petition to remove, I even ended up making some bad
precedents in Chicago. Frequently, employers would file lawsuits against some of our union
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clients in the state courts, and I would petition to remove the case to the federal court and then
move to dismiss the complajnt on the ground that it violated the Norris LaGuardia Act, which
prolu1>ited lawsuits against unions in most situations. Finally, the Court of Appeals for the
Seventh Circuit came down with a precedent that is probably still 13.w, I’m afraid, that said you
may not remove a case from the state court to the federal court in order to show that the federal
court does not have jurisdiction. I regretted that excessive use of the petition to remove.
Mr. Pollak Who were your first mentors in your practice? Did you have models that you
followed?
Judge Mikva: Well, Arthur Goldberg was certainly one. He was so full of vigor. It was
hard to describe how incredibly broad-gauged he was. He was involved in so many matters,
public affairs and private affairs, legal matters, and running the law firm; and he did it all with
such aplomb. I always admired his capacity to be such a complete professional, a complete
generalist, and be a nice guy besides. He was very, very pleasant to be with Carl Devoe was
another one of our partners who had great influence on me because I admired the kind of
partnership that he and Goldberg had where he, Devoe, would devote himself to getting clients
and making sure that their business events paid off while Goldberg was free to get out in the
public sector and do all these glorious things and involvement in the Democratic party.
Mr. Pollak: Did you have more?
Judge Mikva: There was a chancellor, a state court judge in Chicago who had come
through the ranks of a Chicago patronage organization and probably couldn’t claim that great a
law school education, but just turned into a very wise judge. I always admired the way he
handled cases that came before him Some of them were very complicated, and he would work
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his way through them He didn’t have much staff. The courts in Chicago didn’t spoil their judges
by giving them a lot of clerks to help them He worked bis way through these cases, and I always
admired his style as a judge. He always was calm He never raised his voice. He never shouted
at anybody. He never lost his temper with anybody. He bad an incredible way of controlling the
courtroom even though many of the disputes that he ended up with were very, very vexatious and
hotly litigated; but be always was in charge. I thought about him often when I would either
review cases of problems that the trial judges had had or, for instance later on, when the
“Chicago Seven” conspiracy trial was before Judge Julius Hoffman and he gave all this bad
publicity to judges who lost control. I thought of this judge often as somebody who was the
model of how a judge ought to behave in a testy situation.
Mr. Pollak: If you can’t recall his name now, perhaps when you review the transcript it
will come to you or we can search for it.
Judge Mikva: He was a chancellor. He came out of the west side of Chicago and was
hardly somebody who would be considered likely to turn into being a great judge. I always
thought he was one of the best of the state court judges.
Mr. Pollak: Did you have experiences which led you to think that there was corruption in
any of the courts that you practiced in?
Judge Mik.va: Yes. We were never able to pin it down the way corruption ultimately was
pinned down until the scandal like the Greylord scandal in Chicago. I think no one even thought
about getting someone to wear a wire or do some of the other things that ultimately led to the
scandals and the discovery of these corrupt judges. Plus the fact that there was an unfortunate
and unholy conspiracy that was then extant in Chicago and for all I know many of the other big
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cities as well The U.S. Attorney’s Office, the federal attorney’s office, stayed out of the state and
local political matters, and, in tum, they concentrated only on matters that had direct federal links
so that, and of course, it was before the Travel Act and some of the other statutes that are used in
a great many matters of local activity that are under the federal jurisdiction. But, there was no
way of getting the federal government to do some of the things that they h ave done subsequently.
I remember when Jim Thompson, who later on became Governor of Illinois, was U.S. Attorney
in the late 1960s perhaps. He was the first U.S. Attorney to really go after local corr uption, and
he indicted several judges and so on for corrupt activities. There is a story (it may be apocryphal
or may be true) of one of the precinct captains who worked at City Hall. He was heard to have
said, “Gee, if they were going to start enforcing the law, they could have given us six months
notice.”
Mr. Pollak: It sounds like a Chicago story.
Judge Mikva: It’s a great Chicago story.
Mr. Pollak: Well, you’ve said that in 1955 you determined to run for the state legislature
and were elected. What led you to run for Congress? What was your constituency, and how did
it relate to — we were out in the midst of the 1966 campaign.
Judge Mikva: It was an exciting campaign, but it was the first time I had lost a campaign,
and it is no fun. I ended up $30,000 in debt which was a lot of money at that time, especially in a
losing campaign. It took me some time to raise it. And I really had to figure out whether this
was the end of my political career or not, because I was out of the legislature. One of the things
that happened in 1964 was also the reason why I decided not to run for Congress in 1964. In
1964, we ended up with an at-large election in Illinois for the state legislature. The legislature
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had failed to reapportion itself, so under the then Constitution we had, the entire House of
Representatives ran at larg? •. state-wide.
Mr. Pollak: Really?
Judge Mik:va: For the first time ever Mayor Daley asked me to run for re election to the
legislature because he thought I would help the ticket. He let it be known that he agreed with me
that Congressman O’Hara, who was by that time 80 or 81, was getting too long in the tooth and
the next time out, he’d work it out that I would be the candidate for Congress. So, those were
two good blandishments to offer me since that was where I wanted to go. I ran, and rumring
statewide was an interesting experience. There were 236 candidates running for the 177 seats,
118 by each party. The ballot was three and one-haif feet long – with all kinds of confusion. It
was very exciting running state-wide. Adlai Stevenson ID was on the ballot with us, and Paul
Simon was running for the State Senate, and I was running, and we had a team around the state
campaigning on behalf of the Democrats. It took me into all kinds of nooks and crannies of
Illinois that I’d never beard of before. I ran 5th out of236 candidates statewide.
Mr. Pollak: Well, that must have given you a lift!
Judge Milcva: It was very exciting. Adlai ran first, the Speaker, Jack Touhy ran second.
Anthony Scariano, who was my seatmate and roommate, ran third or fourth, and I ran right
behind him I remember when Tony called me up the day after election after all the votes bad
been counted, and laughed and said, “You know why you didn’t do any better than I did?” I said,
“No,” and he said, “Because your name ends in a vowel,” which was always bis way of talking
about people who are Italian. And that session of the legislature was very exciting. That was
when I was Chairman of the House Judiciary Committee and had a lot of influence on what got
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passed and what didn’t. We had a Democratic Governor and a Democratic House of
Representatives, and it w? .? exciting time. Plus the fact that I had been assured by Daley and
by O’Hara that in 1966 I could run for Congress and be the anointed candidate.
Mr. Pollak: Is there a piece or pieces oflegislation in that 1964 session that you consider
a significant product of your work?
Judge Mikva: I trunk that was the year we passed a new mental health code into law
which was a very aggressive set of standards that protected both civil bberties and aspects of
mental patients that had never been protected before. I also think that was the year that we
passed a new criminal code, I’m not sure.
Mr. Pollak: But while you were on the Judiciary, there was a new criminal code?
Judge Mikva: Yes, yes, and there were other pieces oflegislation. One that I was
proudest of– I think: that was also in the 1964 session– was the establishment of the first state
intern program in the legislature. That was very bard to do because the old time legislators did
not like the idea of these young political science students running around Springfield. I know
one of them said, “You let these people come down here and pay them to come down here, and
learn what we know, they’ll run against us.” The current Governor of Illinois was one of the first
interns that came down there, and sure enough he did run against an incumbent legislator and
beat him
Mr. Pollak: Who was that?
Judge Mikva: Jim Edgar. All the fears of the old time pols came to pass.
Mr. Pollak: Had you, through ’68, did you experience much appellate litigation in which
you were arguing in the case?
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Judge Mikva: Quite a bit. I actually had, oh four or five, well, I only had, I think, two
arguments, two or three arguments in the U.S. Supreme Court. I had five or six matters in which
I’d worked on the briefs and was seeking certiorari or opposing certiorari and I’d done a lot of
appeals work in the Court of Appeals in Chicago, in the Seventh Circuit. I had never argued any
cases in the D.C. Court of Appeals. I was involved in a brief on one, but I did not argue the case.
The other lawyers in the firm did.
Mr. Pollak: Is that true all the way to ’79?
Judge Mikva: Yes. I never did argue a case in the United States Court of Appeals for the
D.C. Circuit. I was a lawyer of record on the briefs in a couple or three cases, but I never stood
up and said, “May it please the court,” in the D.C. Circuit. Perhaps my most notorious case that I
argued was Times Film v. City of Chicago, in which I set back free speech in movie cases at least
twenty-five years. I lost that case, 5 to 4, in the Supreme Court. We had planned the argwnent
very carefully.
Mr. Pollak: We, being who?
Judge Mikva: My co-counsel and my partner. It was probably in the 1950s, late 50s.
Dave Feller, who was then partner in the Washington firm, was prepping me for the argument.
We analyzed the Justices and their views in previous cases, and we decided that the key to my
case was Frankfurter. We had to get Justice Frankfurter. So I designed our argument – Feller
kept reminding me to keep it short – like a picture frame in Vogue. I had forgotten or didn’t
know that Chief Justice Warren did not read the briefs before argument or he didn’t read them
very well. I got up and I was representing a motion picture company, I don’t remember the name
of the film anymore. It was an art fibn. It wasn’t that bad. I did represent some racy films later
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on, but this one wasn’t that bad a film, but Chief Justice Warren got on this question did I really
think that dirty movies sho-qld come under the First Amendment. I spent the whole thirty
minutes answering bis questions and nobody else’s. Black may have thrown in a question but it
was a friendly question, and I spent the whole thirty minutes jousting with Chief Warren. When I
walked out my partner said, “You idiot, you blew that one.” I said, “What do you mean?” He
said, “You had Warren, you’re going t? get Warren,” he said, “you didn’t say one word to
Frankfurter.” I said, “But, Warren was so hostile and so angry.” He said, “Ah come on, you got
Warren.” And sure enough, it ended five to four and Warren wrote the dissenting opinion. I
didn’t get Frankfurter. The Chicago movie censorship law was upheld again. It wasn’t until
some years later that it was finally struck down.
Mr. Pollak: And what do you conclude from that experience in terms of appellate
advocacy and judging’!
Judge Mikva: I know judges are very uncomfortable about the fact that lawyers sit down
and get these elaborate briefings on who the judges are and plan their strategy on who is on the
panel and so on; judges like to think of themselves as being completely value neutral and that
they are fungible with each other as far as deciding cases, especially on the intermediate courts.
But it is not true. I think that a good appellate lawyer should know his panel as much as he or
she can and pitch the argument to the judges that can make a difference in the way their case
comes out. This always came up with how lawyers handle the questions of judges. So many
lawyers are so anxious to make their argument, make their speech, they get impatient with the
judge’s questioning, just as I got impatient with Chief Justice Warren’s questioning. But if a
lawyer thinks, as he should, that the oral argument is the opportunity to satisfy a judge who has
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questions about his or her side of the case, then the questions ought to be a golden opportunity,
not an interference. I remember seeing lawyers put their finger in the place where they were in
their oral argument before some rude judge interrupted them I remember once admonishing a
lawyer not to interrupt the judge and the lawyer said, “But, but he intermpted me.” I always said
that if I were ever supremely confident of my brief and supremely confident in my skills as an
oral advocate, that the perfect oral argument would be for the lawyer to get up and say, “Your
honors, it is all in the brief; are there any questions?” I never had that much confidence in my
brief or in my advocacy skills, but that really ought to be what appellate lawyers are looking for.
What are the things that are bothering this judge, that are keeping the judge from going out to the
conference room and voting my way? The way to find that out is to find out what the questions
are and satisfy the judge on those questions. Unfortunately, most lawyers don’t.
Mr. Pollak: Did you ever experience a lawyer doing anything close to that?
Judge Mikva: Edward Bennett Williams
Mr. Pollak: He did. What did he do?
Judge Mik.va: He was always thought of as a great trial lawyer, but I didn’t realize what a
marvelous appellate lawyer he was until the first time he appeared before my court. His
argument was good. The minute a judge would lean forward and question him, he would just
stop and stand back and encourage the question. He wanted to know what was bothering you. It
is hard to realize, considering what a brilliant trial advocate he was; but he was the best appellate
lawyer I heard.
Mr. Pollak: Is that right?
Judge Mikva: He bad a great sense of what makes the decisional process work. And I
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suppose that’s what made him a good trial lawyer too, because he understood how judges and
juries made up their minds,.just as he understood how appellate judges make up their mind. I
recall at least in one of the mine worker cases, if I can get personal, you were pretty good about
showing restraint. Don’t you represent the trustees?
Mr. Pollak: Yeah, I do. I have for a long, long time. Yes.
Judge Mik.va: I was very impressed with the fact that you were willing to let the judges
expound their questions. I hope you won that case.
Mr. Pollak: I did.
Judge Mikva: Good.
Mr. Pollak: I share your view that far from an intrusion, the questions are the golden
opportunities.
Judge Mikva: But lawyers get so … uptight. I never wrote out my oral arguments; I
learned early on, I forget whether it was Goldberg or Feller whoever told me, ”Don’t write out an
argument; make an outline and put down the things in the key cases. Don’t write it out.” We
have a rule in the Court of Appeals in D.C. that prohibits the reading of arguments. I am amazed
at the number of lawyers who, notwithstanding that rule and notwithstanding what a bad practice
it is, literally get up there and start reading their arguments.
Mr. Pollak: But it was my observation that Erwin Griswold would read his arguments.
Judge Mik:va: It could be. I don’t think Erwin ever argued–oh, he must have argued ….
Mr. Pollak: I considered him a good advocate.
Judge Mikva: But I don’t recall what his advocacy was like. I still consider oral advocacy
the creme de la creme.
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Mr. Pollak: So do I, so do I.
Judge Mi.kva: Yes .. , .
Mr. Pollak: It’s sport. It’s a great sport.
Judge Mikva: It can make a difference. The old adage about you don’t win a case on oral
argument. That may be true, but you sure can lose it.
Mr. Pollak: Well, you lost in 1966. What did you do from 1966-1968?
Judge Mikva: Practiced law and got ready for I 968. I was bound and determined to run
agam. I had lost and had lost to this 82-year-old man, who I remember on election night, when
the press went to see him and said, “Barrett, how do you feel?” He said, “I feel the way I felt
when I climbed San Juan Hill with Teddy Roosevelt.” And he had climbed San Juan Hill with
Teddy Roosevelt. And, so my competitive spirit had been challenged by losing to him and losing
in a very hard-fought race. Also, I missed public life. I missed being in the legislature; I missed
the excitement of the effect of decisions on the public issues. Private practice wasn’t that
interesting, no matter how many good cases I was getting involved in. It is true in that period
1966-68 I did attract some new business. I did get involved with some new clients and I was
doing more work for Playboy than I’d ever done before. I was devoting something close to full
time to practicing law. But then in about the middle of 1967, end of ’67, I started to gear up for
the ’68 race. Since I didn’t lmow what it was going to be like, I had to assume I was going to
have a full-scale primary, so I started raising money and started making speeches and started
putting together citizens’ committees and so on. And because I’d come so close in 1966, Daley
decided that he really didn’t want to take me on. It wasn’t that he didn’t want to take me on; he
didn’t want the organization. to lose to me in an all-out fight. They didn.’t endorse me but they
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sort of declared that it would be an open primary, the closest thing to an open primary that the
Daley organization would allow. The committeemen were free to do what they wanted, and most
of the committeemen supported me. One or two didn’t. O’Hara ran again.
Mr. Pollak: He ran again?
Judge Mikva: He ran again. This time I beat him in the primary. Agam, it was a very
painful race. I learned what an important factor age is in a political race, but how delicately it has
to be handled. If you criticize your opponent as being too old, you lose a whole bloc of voters
who are that age or older or younger. The group that I had to worry about the most were the 50
to 60 year olds because if they thought I was running against O’Hara because of his age (which
really was part of the reason I was running) they would feel trapped because they were already
looking over their shoulder; is somebody trying to take my job, is somebody trying to push me
out? The 70-year-olds were all on my side because they know how old ‘/0 is, and they don’t
understand why this 82-year-old was trying to do a young person’s work. But it’s a very delicate
issue. It cmne up in so many complicated ways.
By the time Congressman O’Hara was 84, he was having trouble with bis locomotion. He
was not quite as mobile as he had been. My trick was to get him into the district as often as
possible. Before I had run against him. he hadn’t appeared in the district very often. It was a safe
democratic district. With no primary fights, why come back? But I was trying to get him to
come back to the district as often as possible and get as many debates as possible. We had one
very high-profile debate that was covered by television and so on. Barrett couldn’t refuse to
come, it was so high a profile. And as he walked onto the stage to be introduced, he literally
couldn’t lift his feet. He shuffled and he was smiling and waving. He had been a very engaging
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politician in his prime. He was looking out at the audience and not looking at bis feet; and I
knew that if I didn’t do something, he would stumble and fall over the television cable. But if I
jumped up and helped him, it would look like a real hot-dog trick. It was a few seconds that I
saw him going towards this disaster — I didn’t know what to do. Finally, in what I hoped was a
stage whisper, I said, “Watch it, Barrett.” At the last second he saw the cables and he lifted his
foot over the cables. But those were the kinds of dilermnas that I ran into frequently.
Mr. Pollak: You and he were somewhat colleagues before these races. What happened to
that relationship?
Judge Mikva: It was strained though when it was over. I think the part that I felt the
worst about, though I defend having done it and would do it again, is that shortly after he lost to
me, in late ’68 or early ’69, be became terminally ill and died. Clearly, being in Congress was
one of the things that had kept him alive. I don’t think that’s the way public office ought to be
used, but it pained me that I was the instrument that terminated him I remember going to see
him in the hospital after I was elected when he was near death. He was giving me some advice
on bow I should vote on things. We sort of repaired the damage. But it was not easy. The only
issue that separated us at all was the war, and even there it wasn’t that he was a hawk as much as
it was that he was a Johnson loyalist.
Mr. Pollak But it was as tough time in politics. It was Hubert Humphrey’s race and …
Judge Mik:va: That was the last convention I attended — the 1968 Democratic
Convention. I was there. I don’t think I was a delegate, but I think I was on George McGovern’s
staff as a matter of fact. I was working for McGovern who was trying to get the nomination and
the convention was so painful. Toe combination of the riots outside and the turmoil inside and
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the fact that the Democrats were about to end their Jong dynasty in the White House just was
very sad.
Mr. Pollak: Did you observe the riots?
Judge Mik:va: Yes, I did. I, in fact, was a lawyer for several of the people who were
arrested in that thing. It was a very, very painful time. I worried about one of my daughters who
was working as a volunteer in one of the offices downtown that she might get caught up in it, but
she didn’t. It was an awful period, which is why it makes this 1996 Convention that I’m looking
forward to attending kind of interesting to see if we’ve finally learned how to handle the
Democratic Conventions in Chicago.
Mr. Pollak: Did you move to Washington in ’68?
Judge Mik:va: In ’69. I did after the ’68 election which I won, even though Humphrey
lost. It was not a good Democratic year. My district was such a solid Democratic district that
once the primary was over, it was a foregone conclusion that I would win. Zoe and I started
looking for a place in November, and we bought this house in McLean, Virginia, which was our
first time ever to live in the suburbs, as opposed to the big city. And the reason was that we bad
all our children in school We couldn’t afford private schools, and we were discouraged by what
we heard about the public schools in Washington. We couldn’t afford Montgomery County and
Fairfax County seemed to be a great compromise that was available to us. It was a great success
for my wife and me. We both enjoyed the house. It was a lovely house. Our kids never did get
over the culture shock of moving from the south side of Chicago to Northern Virginia.
Mr. Pollak: I bet. What were their ages when you moved out?
Judge Mikva: Mary was, it was ’68, Mary was 15 or 16. Laurie was 14. Rachel was 8.
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Mary was just starting her junior year in high school or she was just finishing her junior year.
That’s right — she came back for her senior year. The family didn’t move until June of ’69
because Zoe was teaching and the kids were all in school. It was interesting. I was in McLean
for nine months until school ended and then they all came to Washington.
Mr. Pollak: So, you commenced your federal congressional career and you served a
couple of tenns and then were redistricted?
Judge Mik.va: I served in 1968 and was reelected in ’70 without any difficulty at all.
Mr. Pollak: Thursday, June 20, 1996, and this is the second side on that day, go ahead
Judge.
Judge Mikva: There was a bill on strip mining, which Udall finally brought out of his
committee; be was managing it on the floor. It was a carefully crafted compromise of the
arguments between the states righters and federal power. I use this in my teaching when I teach a
class on legislative process. TI1is one congressman from West Virginia, a big strip mining state,
got up and said, “Now will the gentleman from Arizona, Mr. Udall, assure us that this law
protects state sovereignty and makes sure that the states continue to manage their own land
resources?” Udall said, “The gentleman is absolutely correct; this law very carefully protects
state sovereignty and makes sure the states continue to run their own land.” And then, later on,
an environmentalist congressman got up and said, “Now will the gentleman from Arizona assure
us that this bill once and for all establishes federal control over the strip mining disgrace and says
that the federal government can once and for all get in there and make sure that this land is not
left in a ravaged state?” And, Mr. Udall got up and said, “The gentlemen is absolutely correct.
Tbis bill once and for all sets federal standards and says the federal government can resolve this
-Illproblem”
Then Udall came out to the classroom for a drink of water and one of his colleagues
said, “You know, Mo, they both can’t be right.” Mo looked and said, “The gentleman is
absolutely correct.”
Mr. Pollak: Is there more to say about these legislative years in Springfield? Did they
form the Ab Milcva who came on to the D.C. Circuit in 1979?
Judge Mikva: I think they had an awful lot to do with forming my views as a judge. It
was an exciting place. It was a time and a place where you could have a real bands-on effect.
Toe House of Representatives had 177 members which is relatively large, but, of that 177, a large
number of them really didn’t care about the legislative process. Many of them from the Cook
County area were — they were working their way up the political ladder and this was just one of
the steps, a way station in the road. They couldn’t care less about what went on. Others were
farmers and merchants and so on who were elected out of their local areas and didn’t really
understand the parliamentary procedures or the legislative procedures. If you were a lawyer and
you were enthusiastic about the process, you could just get a lot done even though you weren’t
part of the establishment. One of my close friends at the time was Paul Sim on, later on United
States Senator. He and I were roommates. Alan Dixon was one of the reformers in the
legislature when I came down there. Dan Rostenkowski was down there. But Rostenk:owsk.i’s
view and Simon’s view about the legislative process were vastly different. Rosty was concerned
that Springfield was a place you went to first so that you could rise higher on the political ladder.
Simon loved the legislative process. He was a great and effective legislator. I was able to get an
incredible amount done, notwithstanding the fact that I was not beloved by my party and was
considered a h’beral even then by the Republicans, and yet there is a lot of legislation that has my
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name on it. And I am sure that it impacted the views I have on legislative history and legislative
intent and the legislative pro,cess generally. I think higher of it. I really do think. that the
legislative branch necessarily is the first among equals, and I’m sure that all that influenced my
views as a judge.
Mr. Pollak: Did your legislative interest tend mostly in the Judiciary Committee
jurisdictional area?
Judge Mikva: Yes, but the Judiciary Committee in the state legislature bad a very broad
jurisdiction. We covered everything that had to do with the law. Frequently, because the
Judiciary Corrnnittee had lawyers on it and usually people who cared about the process,
whenever it was a hard problem, the Judiciary Committee would end Up with it. So it wasn’t just
crime and punishment cases and laws. It wasn’t just laws affecting the judicial branch It was
anything having to do with the law. We handled workmen’s compensation law revisions for
example. We handled the mental health code. Anything that had to do with the law or that the
Speaker would think was something that the Judiciary Committee would handle better than some
of the other committees, be would send it. I had a very good relationship with the Speak.er. In
Illinois the Speaker designates the committee cbainnen. It is not a matter of seniority or voting
by the caucus. The Speaker does the appointing. I had a good relationship with the then-Speaker
of the House. He and I had gotten to be friends and even though he was a Daley loyalist, he
stood up to the Mayor and designated me as bead of the Judiciary Committee. He told me that
Daley was very irritated at him about doing that. Not even because Daley disliked me personally,
but because to Daley this was rewarding the ingrates in the party. Daley supposedly said to the
Speak.er, “When you give Mikva and people like that committee chairmanships, you just make it
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hard to discipline the troops.” Then they say, “What’s the point of following or showing party
loyalty, you don’t get rewarded for it and you reward the ingrates.” Touhy’s answer was, “Well, I
need somebody who I can rely on to get the work out.” So, it was an exciting time.
Mr. Pollak: What was the name of the Speaker?
Judge Mik:va: Jack Touhy.
Mr. Pollak: Did you have constructive relationships with the opposite party?
Judge Mikva: Yes. In fact, much of the time I had better rela tion.ships with the opposite
party than I did with my own party. I was considered a maverick by my own party and as far as
Daley was concerned, my biggest crime was I had gotten into politics the wrong way. I had nm
against the party organization and the wages of that kind of attitude should be death, not
promotion or success; so I would frequently have trouble with my own party. I would form
alliances with the Republicans – usually on issues that had to do with reform and legal matters
rather than the issues that divide liberals and conservatives. There was a group of legislators who
were known as the “West Side Bloc.” These were Democrats and Republicans who came out of
the west side of Chicago who were suspect in terms of their mob ties and suspect in terms of
their attitudes on various ”law and order” activities. We developed a play on that term for our
own group. We called ours the “Best Side Bloc.” It was a group of Republicans and a few
Democrats – Paul Simon and a man by the name of Tony Scariano, who is now an appellate
cowi: judge out of Chicago; Paul Simon’s wife was a member of the legislature, Jean Hurley; Bob
Mann, Bob Marks, Bernard Peskin. We would make alliances with Republicans basically on
reform issues; and so we could lure conservative Republicans into our alliance because we
weren’t dealing with issues of: should the government do it or shouldn’t it? It was, if the
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government is going to do it, shouldn’t it be done efficiently and honestly? It, as I say, it was a
very exciting time and we got a lot done.
Mr. Pollak: Is there anything to note for the record on your practice during the years from
’57 to ’68 when you were serving in the House of Representatives in Illinois?
Judge Mik.va: No. There was one zoning dispute that I was handling that, believe it or
not, went on during almost that entire period of time. It was a very .important matter involving an
important building on the near north side of Chicago. Some of the competition was trying to
keep my client from building his building. The case went up to the Court of Appeals several
times. The Supreme Court denied the petition for certiorari which was filed by my opponent.
During that entire period, it sort of sat as a lump in the back of my head as something I had to
keep working on and keep getting done, and yet the legislature kept taking more and more time
and then running for Congress kept talcing more and more time. It was very difficult to balance
that.
Mr. Pollak: Do you recall the name of the case?
Judge Mikva: Aaron Weiner was the name of our client; I think his name was is in the
title, Weiner v. 22 East Chestnut Street Corporation. We ultimately won. Ultimately our client
even won a malicious prosecution award in the courts. But it took a long long time, and I had
worthy opponents as lawyers; what is now Jenner & Block were the lawyers on the other side.
We fought hammer and tong all the way through the courts of Illinois and the courts of the
country trying to resolve this basic ordinance dispute.
Mr. Pollak: In this period, Arthur Goldberg left your firm in ’61 to become Secretary of
Labor. Did that make a difference?
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Judge Milcva: We broke up the formal tie with the Washington office. The office here
had been Goldberg, Feller &. Bredhoff. The finn in Chicago had been various things but at one
time, the latest time, it was Goldberg, Devoe, Shadur & Mikva. When Goldberg left the finn to
become Secretary of Labor, we severed our formal ties with the Washington office. The Chicago
firm went its way and the Washington office went its way. It created some nervousness – on
behalf of both shops — mostly because we relied on Goldberg as being the linchpin that would
hold us all together, but both firms went on to do very well. Our practice changed considerably
in Chicago because we no longer represented the national unions the way we had as far as the
two-city furn. We did do more real estate work. We started representing Playboy, which
became a very substantial client of our firm in Chicago and an enjoyable client because it got us
involved in all kinds of First Amendment work, censorship work, hbel actions. It was an
exciting client to have.
Mr. Pollak: Would you descnbe those years up to the time you ran for the United States
Congress as – differ with me please if this isn’t right – the years in which you devoted yourself to
practice in your firm, to the legislature in Springfield and to your family?
Judge Mikva: Yes, that was it. I suspect that from time to time I neglected each and
every one of those responsibilities and objectives. A couple of years ago, we were sitting on the
beach in the Dunes. We still have a house out there in the Michigan Dunes across the lake from
Chicago and, while it is not the same house, it uses the same beach that we used when the kids
were small. We were watching our grandchildren gambol on the beach doing the same things
that their mothers had done when they were their age; and I said to my wife, of 48 years standing,
I said, “You know I really regret that I missed those years when our kids were doing all this and I
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didn’t have the time to spend watching them and enjoying them” She glared at me and she said,
“How dare you. Our daughters have turned out so well; what makes you think they would have
turned out that well if you had been around.”
Mr. Pollak Did you have any teaching during this period?
Judge Milcva: Not really. I occasionally would come in as a guest lecturer at the
University of Chicago, mostly in college. My first teaching job was after I went to Congress.
Mr. Pollak: I see. Where was that?
Judge Mikva: Georgetown.
Mr. Pollak: I see, how did that come about?
Judge Mikva: I forget who was dean. It was before Judy Areen was dean.
Mr. Pollak: Bob Pitofsky.
Judge Mikva: No.
Mr. Pollak: Adrian Fisher?
Judge Mikva It mu.st have been Pitofsky. I guess it was Pitofsky. I think it was my
second term in Congress. I saw either Bob or one of the law school faculty members. They said,
“You know, it is so convenient, you ought to come over and teach a course in the legislative
process.” The thought appealed to me, and I did do it, and I enjoyed it thoroughly. I think that
was while I was still in Congress. I’m sure it was while I was in Congress. And I did do it again
when I was on the Court, but the first time was while I was in Congress, and I enjoyed it
thoroughly. Then the next time I did any serious teaching was in 1972 when I lost my seat and
went back to Chicago. I taught a course in the legislative process at Northwestern Law School
for two years.
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Mr. Pollak: Let me ask you whether, in still sort of stopping it off before yow
congressional race, whether.you ever had any activities with the Bar, the organized Bar.
Judge Mikva: Yes, I was very active in the Chicago Bar Association. I was on the Board
of Managers, which is the governing body of the Board and at that time, the Board of Managers
was also a disciplinary body for the Illinois Bar. We operated under the Supreme Court of the
state. The disciplinary cases involving lawyers went from us directly to the Supreme Court. Tue
Board of Managers was the next step, or it was the last step, before you went to the Court itself.
It had to do with disbarment or suspensions and so on. And that is where I developed those
views of feeling very strongly about the need for lawyers’ ethics being higher than some
marketplace standard. Lawyers dealt so intimately and in such important areas of peoples’ lives
that you just couldn’t afford to tolerate people whose ethics were shoddy or were careless in the
way they handled their affairs. lt also colored my views, which came up in several cases iater on,
that it was one thing to discipline lawyers for dishonesty or lack of ethics; it was another for
disciplining lawyers who were getting overly zealous. While obviously there had to be some
restraints in that the judge had to retain control of the courtroom. that a lot of slack had to be cut
for the lawyer to make sure that we didn’t interfere with the warm zeal that a lawyer owes his
client. I remember how many times I bad judges lecture me while I was practicing law, lecture
me or yell at me, “You’re getting very close to contempt.” Because when you get involved in a
hot case and the canons of ethics require us to be warm, the line gets very thin between warm
zeal and conhlmacious conduct. I think the judges, good judges, shouldn’t be overbearing. The
disciplinary body should look long and hard before they allow discipline to stand against a
lawyer who was overly protective of bis clients.
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Mr. Pollak: Did you COIi.Sider getting into the Kennedy Administration?
Judge Mik.va: Oh, l thought about it a little bit. I was enjoying the legislature and I was
enjoying the practice a little more. I remember :in 1960 Newt Minow had been practicing law in
Chicago with Adlai Stevenson, and I was practicing with Arthur Goldberg. Newt and I were
boyhood friends; we had grown up together in Milwaukee, and we remained friends and clerked
together. Our families were friends. The announcement came that Goldberg was going to
become Secretary of Labor and that Stevenson was going to become UN Ambassador. William
McCormick Blair, who had been one of the partners in Newt’s firm, was also going off to the
Kennedy Administration; so Newt and I had lunch and we teasingly talked about starting a law
firm called the Remnants firm – the people that were left after Kennedy had raided our firms.
The next day I read in the newspaper that Newt had been appointed Chairman of the Federal
Connnunications Commission, so Kennedy’s raid continued. Arthur Goldberg offered me a spot
in the Labor Department and I toyed with it some, but, again, I was having fun doing what I was
doing and I really didn’t want to give up my elected political career. I was enjoying the
legislature immensely.
Mr. Pollak: Even then d id you have plans or hopes that it would go beyond Springfield?
Judge Mik.va: Yes, I was already starting to think seriously about Congress. The
incumbent congressman in our district wa s, in 1960, probably already 78 years old.
Mr. Pollak: Who was that?
Judge Mik.va: Barrett O’Hara. And he had told me that I was his protege, and I would be
his successor; and I thought well, he’ll want one more term, then I can do my tum. Since, by that
time, I had gotten pretty well known in the district, I had a good base; I knew I probably would
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have to fight for the nomination against the organization. Fighting against a non-incumbent, I
thought I could win a primary fight; and it seemed like the logical next step. So I really wasn’t
interested in going to an appointed position. In ’62, when the ’62 election caine up, I remember
seeing Barrett OHara at a banquet and he told me he was going to run again in ’62 but that this
would be his last run and [ could be his successor. I said [ would like to be, Barrett, l’d be very
honored. 1962 came and passed and then ’63. Primary elections then were very early in the year,
and so you had to start planning early on for the primary. So in about the middle of ’63, I started
thinking seriously about running and I went to see Barrett O’Hara in Washington. He told me
well, he was going to run one more time in ’64 and that was going to be his last term. I began to
realize that the only way I could get that seat would be to run against him, which I didn’t relish
doing. But [ was thinking about it and actually was beginning to make some plans to do it when
President Kennedy was assassinated. There really was no connection between the assassination
and my plans except that it just sort of put a pall on everything, put everything on hold. [ just sort
of dropped it for that time and decided well, I’ll wait one more time; and in ’66 I’m definitely
going to run against him ifhe doesn’t retire. Then when I told him I wasn’t going to run in ’64, he
said, “Oh good, because this is my last te rm, I’d much rather give you, my successor, a peaceful
transfer of the office rather than having to fight you.” 1966 came, and guess what, he wanted one
more term. So I did end up nmning against him and losing.
Mr. Pollak: You did run?
Judge Mik.va: Oh yes, and in ’66 it was a hard-fought primary fight. I caine very close. I
lost by something under 2,000 votes. It was a very uncomfortable political fight because O’Hara
and I agreed on most issues. He had been one of the early opponents of the House Un•American
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Activities Committee. He had stands on civil rights and civil liberties that were always solid.
The war was beginning to b,e?t up a little bit in ’66 and he was a hawk on the war. He was
supporting Johnson, and I was already opposing the war but that wasn’t that much of an issue in
’66. It was an issue but not overwhelming. And, I lost. It divided families and households in
Hyde Park and the south side of Chicago where they’d have my placard and my picture in. one
win.dow and Barrett O’Hara’s placard and bis picture in. another window, because the husband
was for me and the wife was for O’Hara.
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INTERVJEW NO. 4
This is the fourth interview of the Oral History of former Chief Judge Abner J. Milcva as
part of the Oral History Project of the D.C. Circuit Historical Society. It is being held at his
home, 442 New Jersey Avenue, S.E., Washington, D.C., on Tuesday, July 16, 1996. The tape
and any transcripts made from the tape are confidential and governed by the wishes of the Judge,
which ultimately will be made in the form of a written donative instrument.
Mr. Pollak Ab, tell me something about the district from which you were elected, the
constituents there, and what you anticipated or told them you were going to accomplish as you
got elected as a freshman congressperson.
Judge Mik:va: Well, the heart of the district, as far as I was concerned, was the University
of Chicago area It was the heart ofmy base, it had been my base line when I was in the state
legislature, it is where all of my most enthusiastic support came from. It came from the law
school and the rest of the university, the student power that helped me win the primary fights
when I had them, and the source of idea people for whatever it was I was doing legislativeiy in
the state government and later on when I was in Washington. But it was, as far as the population
was concerned, it was probably less than ten percent or fifteen percent of the total population. I
had a large African-American constituency – about twenty-five percent or so. I had a large group
of ethnic communities – I probably had.more . Chicago always brags that it has more people of
Polish descent than Warsaw does, and a good piece of that Polish population was in my district.
I bad a large Croatian ethnic group. I had a large Bosnian, probably not Bosnian, large Serbian
ethnic group and then I had a suburban area as well. It was what we call the blue collar suburbs,
they were the railroad towns in the south end of Chicago, but they were suburban. Most of them
were people that had fled the city for all kinds of reasons, and they were a part of my district.
The hot issue oftbe day, as far as I was concerned, was the Vietnam War. And most people,
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certainly the entire University of Chicago area, and most people under 30 were vehemently
opposed to the war.
Mr. Pollak: Would you say for the record again what period you campaigned in? Was it
the fall of 1968?
Jmtge Mikva: 1968. I was elected November of ’68 and took office in January of ’69 and
from then until ’72 the war was going on. Indeed it was going on even after I left, and it was an
overwhehning issue for the American people generally, and it was a generational issue. People
30 and under were very much opposed to it. A lot of the older groups, including these ethnic
populations I descnbed, were in support of President Johnson and President Nixon in support of
the war. It was a tense issue as far as my constituency was concerned. The other hot issue as far
as my district was concerned was civil rights. As I said, I bad a large African?American
population, but I had these large ethnic constituencies who were – they weren’t racists in the
traditional Southern sense- but they were very resentful of Blacks moving into their neighborhoods.
They were very uneasy about integrating schools. They were worried that their children
would go to high school and start dating minorities and this would lead to all kinds of problems.
So there was a lot resentment to the civil rights legislation which was being pushed by President
Johnson, and it was a hot issue. I was known as a supporter of Dr. King’s marches in Chicago
and as a supporter of civil rights legislation. When I would march in the Labor Day parade,
which was the big parade on the Southside around the steel mills, people would boo me. Good
loyal democrats would vote for me but they were angry because I was supporting civil rights
legislation, and they would boo and hiss and tell me to go back where I came from It was
painful, particularly because I had represented the Steelworkers Union when I was in private
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practice and I knew a lot of these people. I knew that on the economic issues we agreed and that
I had their support. It was.overridden by the civil rights issues and the Vietnam War. So it was
kind of a painful period.
Mr. Pollak: Where were you on the war as you campaigned in ’68?
Judge Mikva: I campaigned against the war and again the University area supported me
enthusiastically on it and were very instrumental in my winning in the primary in which I did
have a fight. But in the fall, the other parts of the district weighed in, and the older people in the
area were not opposed to the war. Even if they were opposed to it, they didn’t want to take on
President Johnson and President-to-be Nixon. The ’68 convention further heated up the political
dialogue and the political arena. Even though the fall campaign was relatively easy in terms of
my winning it, it was a very painful experience for me.
Mr. Pollak: Who was your Republican opponent?
Judge Mikva: I can’t even remember. The advantage of that district was that even though
they disagreed with my views, many of them would have thought that their right arm would fall
off if they tried to pull a Republican lever and so they voted Democratic. They voted the straight
ticket, but they weren’t happy with their congressional candidate.
Mr. Pollak: Did you say the last time what you spent on your initial congressional
campaign? Do you recall?
Judge Mikva: I don’t recall By today’s standards, it wasn’t a lot of money; by the money
that I spent later on, it wasn’t a lot of money. I seem to remember that in 1966 in my
unsuccessful primary, I ended up about $20,000 or $30,000 in debt, which was kind of hard to
pay off since I bad lost; but I was able to get it paid off. I don’t think the whole campaign cost
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me more than $70,000 or $80,000.
Mr. Pollak: The ’66.campaign?
Judge Mikva: ’66 campaign. In ’68, the primary may have cost near that amount, but I
spent very little money in the general election because it was a solid Democratic district.
Mr. Pollak: Did you support the Presidential candidate in that circumstance?
Judge Mikva; Hubert Humphrey? I did. I made it clear that I disagreed with him on
Vietnam One of the difficulties was that Senator Humphrey disagreed with himself on Vietnam
He really was not comfortable with our being there, but he felt that he owed a loyalty to President
Jolmson. He’d been bis Vice President, and he couldn’t campaign against the war. I remember
that I and several other democrats went to see him shortly after the convention, encouraging him
to speak out against the war. He told us that whatever his personal views, he felt that he had
gotten the nommation, he had accepted it, with the understanding that he would try to carry out
the policies that Lyndon Johnson stood for. He was stuck and we were stuck and he lost.
Mr. Pollak: Well, you then joined the ’90-something Congress.
Judge Mikva: I think it was the 95th Congress; no it wasn’t. I think it was the 91st
Congress- 91st Congress, yes. The 89th was ’64 and this was the 91st.
Mr. Pollak: Well, say something about that, you got committee assignments. What was
the experience like; what did you do with your family?
Judge Mikva: We moved to Washington. I was elected in November and Zoe and I came
down here after the election and started looking for houses. We would have preferred, I think, to
live in the District of Columbia, but the schools were beginning to tum somewhat grim, and I
couldn’t afford to use the private schools on a congressman’s salary. We looked at Montgomery
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County, which had very attractive housing and a very good school system; but we couldn’t afford
the prices to buy a house out .there. We started looking in Northern Virginia, and we found this
great house in Fairfax County. We had lived in Arlington when I’d been a law clerk, and I
remembered how completely segregated everything about Northern Virginia had been. They had
separate schools and separate shopping areas and everything. I wasn’t about to move my family
into that kind of a segregated area. We went to visit the local schools and this one in the McLean
area where we found a house that we really loved very much at a price we could afford, and I was
delighted to find that there was a black teacher and that she was the counselor for the high
school We spent some time talking to her, and she was very enthusiastic about the Fairfax
County school system and how far it had progressed from the old separate days. So we decided,
well, that solves our problem We bought the house. We were very enthusiastic about it. It was
a great house on 1/3 of an acre of ground with a swimming pool and lots of room and, as I say, at
a price we could afford. I moved into it al.one in January or February right after we closed on the
house. The kids were in the middle of the school year and Zoe was teaching then, so they stayed
until May or June, then they moved in. My daughters never did adjust to McLean, Virginia. The
culture shock of moving from the southside of Chicago to McLean was more than they could
handle. Among other things, they complained that the schools really were segregated, and I kept
discussing with my eldest daughter who was then either 16 or 17, saying, “Well, Mary, we saw it,
we talked to the counselor, and she assured us that the classes were integrated.” She said, “Oh
yes, they are integrated, they allocate 1.7 blacks to every class.” She said, “And any day I expect
to see the 7 /1 Oths of a black come walking down the aisle because we only have one in my class.”
It was partly that and partly moving somebody in the junior year of high school which made it
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not a pleasant event. But they survived, and she graduated from Langley High School; and my
youngest survived the couple-three years that she was in grade school in McLean. The biggest
problem was with our middle daughter. She went from a straight A student in Chicago to B’s to
C’s in Fairfax County. Then one day we got a call from the assistant principal saying, ”Is Laurie
sick? We haven’t seen her in a week.” Turned out that every day she would get dressed and play
hooky. She was so unhappy with school, unhappy with everything about her, that surrounded
her. We ended up putting her in Georgetown Day School, which saved our sanity and her
academic career. It made me aware that some of my harsh criticism of people who opted for
private schools was unfair. I realized the first need I found for using the private schools, I didn’t
wait to try to struggle through it. I picked up our child and put her in a private school. It took her
some time to get her head on straight. She never did graduate from high school. At the end of
her third year of high school at Langley High School, I lost my seat and we moved back to
Illinois and that would have been her third high school and she said, “Give me a break,” — fourth
high school– she said “Give me a break.” I said, “Laurie, you are 16 years old and haven’t
finished high school.” Fortunately, Beloit College took her, mainly on the fact that her sister was
at Beloit and doing well. They took her and she still struggled all the way through her first three
years of undergraduate school; she’d go a year and drop out for awhile. It wasn’t until her senior
year at Beloit that she finally got ber act together.
Mr. Pollak: Senior year in college?
Judge Mikva: In college. She got her act together and graduated from college; and
because of her doing well on the LSAT scores, a couple of years later she entered NYU Law
School, did extremely well, graduated with honors and went on to a good academic and legal
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career. But there were times in high school when Zoe and I were not sure that she or we would
survive the week.
Mr. Pollak: Well, what did you undertake in the Congress? What Committee
assignments did you get?
Judge Mikva: I was successful in getting on the House Judiciary Connnittee, which is
where I wanted to be. I got involved in a lot of interesting issues of crime and punishment. More
generally, that was when I first started pushing my gun control issues, most of which would get
assigned to the House Judiciary Committee. I could never get very far with them. but I got them
assigned. My second term in Congress I went on the D.C. Committee, which was an act of
political bravado. My wife kept saying, “You know nothing is going to make people angry back
home more than if you are on the D.C. Committee worrying about D.C. schools while Chicago
schools are going down the tubes. They will be very unhappy that you are wasting time on the
D.C. Committee.” I realized that it wasn’t a good political move but, again, I had a safe district;
and it seemed that there were some things that [ ought to do with my security.
Probably my proudest accomplishment dwing those two terms that I was in the Congress
and on the Judiciary Committee – well there were several things: one, I was involved in helping
defeat the attempted impeachment of Justice Douglas. That came through the House Judiciary
Committee, and I remember I and Congressman Jacobs from Indiana were assigned the
responsibility of jousting with then-Congressman Gerry Ford who was leading the fight to
impeach Justice Douglas. There were some interesting debates on that issue. At one point, we
were twitting Congressman Ford on the fact that he was arguing for impeachment and he couldn’t
even define an :impeachable offense. Toe Constitution says that the person we impeach shall be
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guilty of high crimes and misdemeanors. And what were the ”misdemeanors” that Justice
Douglas was accused of? Did he mean parking violations or traffic violations? Actually, Ford
tried to explain that that wasn’t what misdemeanors meant. We kept saying, well, “What does it
mean, what does it mean?” Finally in exasperation, he said, ”I’ll tell you what is an impeachable
offense. An impeachable offense is anything that 218 members of the House say it is.” At the
time we hooted; but I’ve thought about it since and, of course, he is absolutely right. There is no
definition of impeachment, and I can’t imagine a court ever reviewing the judgment of the House
that decides to impeach a president or a judge or anybody else; so indeed it is what 218 members
of the House say it is — a majority vote.
Mr. Pollak: Did you maintain good relations with Ford when you were doing this?
Judge Mikva: Oh yes.
Mr. Pollak: You did?
Judge Mikva: We maintained good relations while be was President and even after he
was President. I have always liked Gerry Ford. He is a decent person. We don’t agree on issues,
but he understands the role of government and is committed to it. I share former President
Carter’s view that as President he did more to pull us together than any single person did. He did
quite a job.
My other great legislative success during that period, aside from helping to beat back the
impeachment effort, and a few things like that, was to get a se ction of the Internal Sec urity Act of
1950 repealed. I had gone to speak at Hyde Park High School, which is a predominantly
African-American high school in my old district, and while I was speaking there, during the
question and answer period, one of the students got up and said, ”Congressman, what are you
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going to do about all those camps where they are going to put us black folks?” [ said, “Well [‘m
sure you’re mistaken about those camps. They don’t exist.” He showed me a copy of the Black
Muslim newspaper called Mohammud Speaks; and in it there was a picture of a camp, which it
insisted was in central Illinois, that was reserved for African-Americans if they demonstrated or
otherwise were deemed to be troublesome. I again assured the student that this was somehow a
misper ception, but I promised to send one ofmy staffers down to this location and find out what
was going on. The staffer went down there and came back and with dismay told me that yes
there was a property down there and it said ”Property of the United States Government – Keep
Out.” [t had been a former military base of some kind and was now being maintained by the
Department of Justice. [t wasn’t open, but somebody down there told them it was pursuant to the
Internal Security Act of 1950. I was horrified. So I started digging into it and sure enough, in
1950, when the country was in the midst of its McCarthy excesses, the Senate was pushing a
proposal even more Draconian than that one, and of all people, Senators Douglas and Humphrey
had offered an amendment giving the government standby authority but keeping the camps from
opening up right then and there – which is what [ think the original proposal would have done. It
is the kind of compromise that was probably justified at the time, but here 19 or 20 years later,
these camps were still on a standby operation; and we were again in some period of unrest as far
as dissidents were concerned. This time there were racial tensions rather than political tensions.
But the African-American community had good reason to be concerned about this provisional
law because it gave the Attorney General almost plenary power to detain people in these camps.
Well, when I started getting involved in it and decided I wanted to do something about it, [ found
out that I had not discovered this lost section of the law. Tu.ere was another constituency that
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knew about it and was very unhappy and was trying to get it taken out of the law, and that was
the Japanese-American community. They, with good reason, knew about the dangers of
detention camps. They had suffered through them in World War II, even without the benefit of
law. President Roosevelt used the camps to detain Japanese-Americans. Then Congressman
Matsunaga from Hawaii, later on Senator Matsunaga, had for at least two or three terms been
putting in a bill to repeal that section of the Internal Security Act. Each time he would put in the
bill, it would go to the House Un-American Activities Committee and would not even get a
decent burial He could never get a bearing. He could never get anywhere with the bill. He
offered to let me co-sponsor it with him, and I said yes; but it seemed to me that it wouldn’t do
any better with my co-sponsorship than it had done with his. My staff and I started to noodle
about it, and it was one of these time s when understanding the procedures is even more important
than understanding the substance. My staff and I bit on the idea that instead of repealing that
section under the Internal Security Act, an Act which was under the jurisdiction of the House UnAmerican
Activities Committee, we should put in a section in Title 18, the Criminal Code, that
said no one shall be detained in any federal facility except pursuant to the provisions of this Title.
Such a bill would have the effect of repealing the obnoxious provision indirectly. I worked on
the bill and went up to the parliamentarian and I said, ‘1f we introduce such a bill,” and I
described it to him. and asked “What Committee would it go to?” He grinned broadly and said,
“Well that would go to the House Judiciary Committee, of course — it’s Title 18.” So I
introduced the bill, and it was as signed to the Judiciary Committee, of which I was a member;
and it went right through the Committee almost without opposition and came out to the floor.
Toe then-Chainnan of the House Un-American Activities Committee complained about the way
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we had backdoored bis jurisdiction, but that was a technical objection, and the bill passed with a
very substantial vote. It we:pt over to the Senate, passed on a voice vote, and President Nixon
signed the bill I was very proud of the fact that I used those arcane procedures to good effect.
Mr. Pollak: Who was the leader of the House, McCormack?
Judge Mikva: McCormack was the Speak.er. I was not one of bis favorites.
Mr. Pollak: You weren’t?
Judge Mikva: No. He was very unhappy with those ofus who were opposed to the war.
He felt that was great party disloyalty and, in addition, that we were suspect for all kinds of other
reasons. Whenever I would seek recognition on the floor, he would say, “The gentleman from
New York” And the parliamentarian would lean over and remind him that I was from Illinois;
and I was never quite sure whether it was my antiwar feelings or the fact that I was Jewish, but
one or the other, he had assumed that 1 bad to be from New York.
Mr. Pollak: Did you ever make up with him?
Judge Mikva: Oh, you know, we never had an open conflict. I was not one of bis great
admirers. I’m sure I was not one of his great favorites.
time?
Mr. Pollak Were you close to Phil Burton?
Judge Mikva: Yes.
Mr. Pollak: Was he in the leadership? Were you close to some of the leaders at that
Judge Mikva: He was not in the leadership. We had a group of congressmen. Our title
was “the Group” — that was the only title we gave ourselves. There were about IO or 12 ofus. It
included a lot of the more progressive members of the House: Phil Bw-ton, Don Fraser, Ben
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Rosenthal of New York, William Fitz Ryan of New York, Bob Eckhart of Tex.as, Don Edwards
of California, George Brown of California, Bob Kastenmeyer of Wisconsin. It was just about the
time that the reformers and the more progressive elements within in the Democratic contingency
of the House began to assume more authority. For instance, one of the groups that had always
been kind of a reform group and a thorn in the side of the leadership was the Democratic Study
Group. But after the initial efforts by Gene McCarthy, when it was then known as ”McCarthy’s
Marauders” and later on by a young Franklin Roosevelt and a few other of the Democratic
mavericks, it sort of settled in; and while it was never quite a part of the leadership, it worked out
a modus operandi with the leadership. Several of the chairs of the Democratic Study Group
worked pretty closely with the leadership and it sort of began to be that their major issue was
civil rights and on that they could work with the leadership because the leadership supported
their efforts to do something about civil rights. But they sort of stayed out of the war issues and
stayed out of some of the other issues that would rankle the leadership. And then, just about the
time I came there, the mood began to shift and there was talk about setting up a rival group to the
Democratic Study Group; and, lo and behold, Don Fraser was elected Chair of the Democratic
Study Group. Don was one of our group who was known as a progressive member who was very
much against the war and was going to push some of these issues. At that point, DSG began to
be again the focal point of not opposing, but prodding the leadership to move a different
Democratic party agenda than had been pushed in the past. So, following Don Fraser, there was
then the succession – Phil Burton became Chairman of the Democratic Study Group; I became
Chair of the Dem ocratic Study Group. The Group, Group with a capital G, started to gain pretty
much influence in the House. I think that at one point there were only 10 or 12 ofus and then
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came the election of Bella Abzug. I think that would have had to be 1970, does that sound right?
But whenever it was, some of the other New York members began to push for her to be adillltted
to our Group. Phil Burton was very opposed to this. He kept saying, “Fellows, she is antiestablishment,
she is anti any institution – even our institution will be too straight for her, too
close to the leadership. H we let her in, it would be a bad idea.” He kept resisting, and some of
us kept pushing. I think I was sort of neutral on the subject, but at one point when push came to
shove, he said, “You know, ifwe let her in, you might as well just forget about the Group. There
won’t be any other reason for us to exist. She’ll pull it apart.” I regret to say that he lost that fight
and somewhere in the early ‘?Os, she was admitted to the Group. We had one meeting, and she
criticized all of us for not being vehement enough against the war; and that was the end of the
Group.
Mr. Pollak: lt was?
Judge Mikva: Yes.
Mr. Pollak: Do you think it was Bella Abzug or women?
Judge Mik:va: Oh, it was Bella in part, but it was also that we had outlived our function.
Mr. Pollak: The Study Group had really taken over. Did you work with Frank
Thompson?
Judge Mikva: Yes, I was very fond of Tompy. He was one of the ones who was active in
the Democratic Study Group and very much a reformer.
Mr. Pollak: But also with the leadership?
Judge Mikva: Right. He made an accommodation with the leadership. He and Phil
Burton did not get along.
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Mr. Pollak: Did you ever come to some resolution in your own mind as to why he went
wrong in Abscam? Was it his drinking?
Judge Mikva: Oh absolutely – no question about it. I was on the Court by the time the
Abscam cases came up on appeal; I recused myself and said semi-teasingly, “1 know which ones
are guilty without reading the record.” If someone had prodded me on that, I would have said
that all of them I knew were guilty, with the exception of Thompson. Because with Thompson,
you might as well have injected him with a chemical, a poison chemical, that would have
accomplished the same result. Everyone knew that Tompy had a drinking problem, and I still
remember the most awful part of the transcript was where the agent, who was trying to get
Thompson to take money and Thompson was resisting, went to the telephone, called up his
superior in the FBI and said, “Congressman Thompson won’t take the money.” And the superior
said, “Give him some more booze; he’ll take it.” Tuey went back and plied him with more booze
and at some point he took it.
Mr. Pollak: I wonder why that didn’t exonerate him?
Judge Mikva: Well, it came out during the appeal; it came out during the trial; but as you
recall, the law of entrapment is very, very bad as far as defendants are concerned.
Mr. Pollak: I knew him very well and felt that was a terrible tragedy for a man who was a
great public servant.
Judge M.ikva: He was; and, again, sober I’m absolutely convinced that Thompson would
never have taken a dime. Drunk he was capable of doing anything.
Mr. Pollak: Does your second term distinguish itself from your first term in terms of this
oral history?
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Judge Mikva: No, I sort of lumped the two terms together because they were pretty much
one of a piece. The only difference is I was on the D.C. Committee and got involved in some of
the D.C. issues. That is when I first ran into Marion Barry.
Mr. Pollak: I see, how did that come about?
Judge Mikva: Well, he was a lobbyist for one of the civil rights groups. I forget the
name of it, but he was into wearing a dashiki, those long white gowns; and he used to terrify the
chairman of our connnittee, John ….
Mr. Pollak: McMillan, right.
Judge Mikva: From South Carolina. On the other hand, Barry and I got along; and we’d
chat after our Connnittee meeting. McMillan would see me on the floor and he’d come up and
say, “Aren’t you scared of that man?” He was serious. He was sure that Barry would somehow
physically assault Members of Congress if we let him close enough But I found Barry to be a
very effective lobbyist, a very effective spokesperson; and I shared the dismay of others that his
political leadership later wasn’t as great as it was then.
Mr. Pollak: Did you have any other activities besides your family and the Congress in
those four years?
Judge Mikva: No, I spent a lot of time commuting. We finally worked out a modus
vivendi where I would go in on a Thursday night if the House adjourned on Thursda y — and
spend all day on Friday doing what was necessary in the district. I’d spend most of Saturday
doing that and came back Saturday night so I could spend Sunday with the family here in
Washington. Every time I feel sorry for myself, I think about those California Representatives
who were doing that but they were flying all the way out to California — taking the red-eye both
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ways, in order to meet their schedules. I decided that however bad commuting was, it was better
to commute for an hour an_? one-half than it was for four and one-haHhours. There wasn’t really
any change in my rhythms and patterns ofmy congressional service until the early part of 1972,
or I should say late in ’71, after the middle of my second tenn We needed a reapportionment
because of the ’70 census, and the Illinois delegation agreed on a map. It was marvelous the way
the delegations took care of themselves at that time. It was a bipartisan map in which the
Republicans and the Democrats agreed that all the incumbents would be protected. The lines
were drawn to take care of everybody. In fact, I think we had to lose a seat at the time, but we
even agreed that one of the members who was going to leave anyway, either to run for something
else or retire, would have bis district eliminated. But every member of the delegation was drawn
a district which was comfortable for him or her to get re-elected.
Mr. Pollak: Any women or African-Americans from Illinois?
Judge Mikva: Ralph Metcalfe was a member of the delegation.
Mr. Pollak: Dawson?
Judge Mikva: Oh wait, Dawson still was there, I think, and Metcalfe came later.
Metcalfe was elected in ’70. Then we had Collins.
Mr. Pollak: Cardis Collins?
Judge Mikva: The husband, it was Cardis’ husband. His name was George Collins from
the west side of Chicago. Were there any others? Those were the two.
Mr. Pollak: Was Marguerite Stitt Church still in the Congress?
Judge Mikva: No, no, no.
Mr. Pollak: She’s gone?
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Judge Mikva: Phil Crane already had that seat. Oh, there was a woman from Northern
Illinois – a nice Republican }Voman, I can’t remember her name. She later went on to the Federal
Communications Commission. Anyway we had worked out this map. It was going to solve our
problems. But then late in ’71, it became apparent that the legislature, which makes the decisions
on how the map should be drawn, was going to kick over the traces. There was a Republican
Governor, and, I think, one of the Houses was in Republican control – I think the House of
Representatives. There were a couple of members that were interested in carving out seats for
themselves, and they didn’t care whether the incumbents were protec ted or not. That was bad
enough. But then the complication, of course, was that I was not Daley’s favorite Democrat; and
so his task, as far as he was concerned, was to protect the good loyal Democrats. The map that
finally ended up getting adopted in court, because it was roadblocked in the legislature, was
basically the map that the Republicans in the legislarure had drawn and that Daley had not really
had that much objection to. It took my district and cut it into three pieces – one piece of it,
including the area where I lived, was mostly Ralph Metcalfe territory, a popular and prominent
African-American Congressman. He had been an Olympic runner in 1976 and was a very
popular man. The suburban piece in my district was given to Congressman Derwin.ski, who was
a very conservative Congressman, and the whole district was very conservative. It included all of
the southwest suburbs of Chicago plus my suburbs. Then the middle of my district was given
over to Morgan Murphy who was an incumbent Congressman. So I would have to run against an
incumbent, and none of those three districts were very appealing politically. I could not beat
Ralph Metcalfe in the one I lived in; the middle one of Morgan Murphy’s included a substantial
piece of my former district but was basically Morgan’s. As one of my staffers said, that district is
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30% black and 70% anti-black and is not one in which J could have beaten the incumbent. So at
that point J had to decide whether I was going to leave the Congress or move. I started looking at
the North Shore district which had been carved out as a Republican district, and Phil Crane was
liyjng in it; but Crane saw an opportunity to get a much more secure district further west, and he
made it pretty clear that he was going to move to that western district, which is one he still
represents. That left that North Shore District without an incumbent Congressman. The more I
looked at it, the more attractive it became; it included Skokie and Evanston, and maybe some
pale blue collar communities up there, like rural Des Plaines. A lot of my former constituents
were living up there. They had moved from the Southside when the district and the areas had
changed and moved up to Skokie and Evanston; Adlai Stevenson, when he’d run for Senate in
70, had carried that district when he’d won the election. So I looked at it and it looked more and
more attractive. I remember Paul Douglas was still alive. He had always been my mentor. He
was very concerned about what was going to happen to me. I called him to tell him what my
decision was. He said, “What are you going to do?” I said, “I’m going to move up to Evanston.”
He said, “Oh my dear boy, how ridiculous.” He said, “They would never vote for you with your
views.” He said, “Why I lost Evanston,” and would proceed to count the number by which he’d
lost Evanston every time he’d run. He said, “You’ll get chewed-up up there. Don’t, whatever you
do, don’t do that; run against one of the incumbents, that makes much more sense than getting
sacrificed up there amongst those Republicans.” I said, “Paul, I think I can carry Evanston.” He
said, “Oh, don’t, you’re being naive.” Well, we Were both right. I carried Evanston but I lost that
election.
Mr. Pollak: Who did you lose it to?
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Judge Mikva: Sam Young. He won that one tenn I bad a hot p rimary fight against one
of the party committeemen out there, and I had won the primary quite handily; but I lost the
election barely. I lost it by less than 1 % of the vote. I lost my seat. But I took him on the next
two times, and I beat him Two times I beat him, and then he gave up; and I ran against John
Porter, beat him, and in 1979, I resig ned. But that was a traumatic period for me because it
meant not only giving up my seat and then giving up my old district, and having to move my
family from Washington back to Illinois, moving them to Evanston, making a big to-do about the
fact that we were committed to Evanston, to stay there even when we lose. And I lost and we did
stay in Evanston. I liked it. It was also the hardest campaign in my life, and I lost it. The first
Tuesday after the first Monday in November of 1972, when we surveyed the final results, I had
lost my job, I was somew hat in debt, I don’ t remember the exact amount, but a considerable
amount. I bad two more paychecks coming. I had two kids in college and a third one in high
school, and I was broke and out of a job. It was a very traumatic period.
Mr. Pollak: Well, I would like to ask you a question based on that re-map experience and
that is for you to speak from that experience about this half-decade long litigation that’s still
going on over re-mapping under the Voting Rights Act. I’m interested in your own experience in
seeing the way districts were draw n and for what purposes and whether you come out of that
feeling that drawing them for political purposes is okay, but to the extent that race comes in, it’s
okay when it comes in for Ralph Metcalfe, but it’s not okay when it comes in for minorities
generally. Or, it’s something I’m interested in, the practicalities.
Judge Mikva: I think the biggest disagreement I ever had with Justice Brennan was on
that issue because I came out of that experience very unhappy with the result, obviously. I had a
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subsequent experience in 1975 when I had just won my seat back, but 197 4 was also a big
Democratic year, and we’d. ?lected a Democratic Governor and both Houses. We had both
Houses in the legislature under Democratic control with a Democratic Governor. Daley decided
that that was a good time to reapportion the legislature to pick up an extra seat for the Democrats.
The map would have done that, but it would have put me out. The re-map ran through my front
bedroom and then out to the west suburbs of Chicago, which is Dupage County, a solid
Republican area. I could not have won there. John Erlenbom was the incumbent Congressman.
John came over when the map first swfaced and said, “Ab, you’re perfectly welcome to run.” I
said, “Thanks a lot.” And it would have absolutely driven me out of the Congress again, but I
was able to beat that remap politically by mustering tremendous support from the newspapers,
and from the Republicans because Daley was doing it to pick up a seat, so they were supporting
my efforts to beat the map. Then I got the independent Democrats in the suburbs and down-state
to vote with me, and in a very dramatic showdown in the House- it had passed the Senate – and
in a very dramatic showdown in the House a solid Republican vote and the independent
Democrats defeated the map, the re-map. I used to tell Brennan that that’s the only way you can
beat gerrymanders. There is no way the courts are going to be able to supervise
reapportionments to keep politicians from doing what politicians do best, which is arrange the
districts to their political liking. Now, when the re-map blatantly is done to exclude a particular
group, whether it’s Blacks, or Hispanics, when a remapping does that, I suppose that the court can
get in. 1bis is the sense I make out of Justice O’Coilllor’s position. But the notion that the
courts will supervise the political activities of the legislative bodies or will insist that they be
picture perlect in the way they do it is impossible. I remember Justice Brennan authored an
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opinion which threw out a New Jersey re-map because one of the districts was .001 off in its
population; and I kept saying, “Bill, Justice Brennan, there is no way that courts can understand
all of the political ramifications of where the districts should go or which neighborhoods should
go together. Sometimes it is fair to have a population discrepancy and not break up a
neighborhood, or it is fairer to have a population discrepancy and give a voice to a particular
constituency, whether it’s ethnic or religious or racial or whatever, than it is to insist that every
district be mathematically, precisely the same population.” And I feel that way about efforts of
the courts to supervise what the legislative bodies are doing. Now, I was not for, politically – I
don’t think it was a good idea – when the Republicans, under Presidents Reagan and Bush,
reduced the margin of Southern Democrats by rejuggli ng all those districts in the South and
putting all the minorities in one district. No question, it did provide for more minority
representation in the House, more southern blacks. When I came to the Congress in ’68, there
were no southern blacks. None. Now there are a large number of them. but there are less
Democrats in all those states because what they did is that they took districts which had
Democratic majorities because of minority population and put all the minorities into one district
and the remaining districts then became solid Republican districts; so I think the last time I beard
somebody talk about the numbers, somebody counted some 30 or 32 Democratic seats that were
lost as a result of this political racial gerrymandering.
Mr. Pollak: I’m told that the NAACP Legal and Educational Defense Fund disputes that
theory – I don’t mean to diminish it as a theory – and said that the collection of Blacks in
particular districts did not cause the other districts to become Republican. But I don’t mean to
raise that other than to say to you that your view of what has happened was what you just stated?
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Judge Mikva: Right, yes. It’s an arguable point because, like most elections, the
difficulty with close electio:n:s is that they are like the ten blind men, each feeling a different piece
of the elephant and describing what it is that they felt. One of them says this is a tree, and
another says this a snake, and that’s true of looking at a close election. You can say that any
particular thing was what caused the election to come out the way it did. It is because you lost
the Black women with green eyes, depending on how close the election, that made the difference.
There were other movements, there were other forces at work at the time in the South. The
Republican party was gaining a revitalization in many of the southern states. There were a lot of
new people moving into the South There was an awakening of Black pride, which insisted in
these areas that they wanted Black representation and not a white representative even ifhe had
supported civil rights matters. They still wanted one of their own, which is an understandable
fact of life. So I don’t dispute that it is a disputable point. The point I am making, though, is that
much as I don’t like the result, I would have wished the courts had reviewed those cases with a
lighter hand; and yet I don’t think that is where the “political thicket” is. Just as Frankfurter was
wrong when he said “that.”
Mr. Pollak: You don’t differ with the reversal of Colgrove v. Green? Baker v. Carr?
Judge Mikva: No, Frankfurter was wrong in Colgrove because at some point the courts
do have to supervise the political results because the politicians aren’t going to reapportion
themselves. To prove that, for over 50 years, before and after Colgrove v. Green, it wasn’t until
Baker v. Carr that we began to give urban constituencies an appropriate place and we began to
give various racial minorities and other minorities an appropriate voice in the legislative bodies.
So, he was wrong, but he wasn’t wrong when he said there is a political thicket because at a
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certain point, if the judges don’t realize what the political problems are, and they don’t, and they
start charging in there witQ Jechnical legal concepts, you can’t make a district automatically good
simply by legal concepts. A good political gerrymander is sometimes going to provide better
representation for the people involved than a picture periect, mathematically equal, judicial
reapportionment.
Mr. Pollak: Two questions, did you ever have a case in which you drew upon this fund of
real world experience?
Judge Mikva: I was on a couple of three-judge courts. As you recall, under the Voting
Rights Act, those cases when they come to court are resolved by a three-judge court that includes
two Court of Appeals judges and one District judge. But none of mine came to fruition. They
were always settled before we had to get into them I always thought that it was one of the places
where I felt that my political experiences were helpful to my role as a judge because I think I
understood the limitations on the affect and consequences of judicial power in those
reapportionment cases.
Mr. Pollak: Toe other question I have is whether you find in Justice O’Connor, who does
seem to be calling the tune in this field today, positions which are congenial?
Judge Mik.va: Some of them yes, because when she states the first proposition that you
cannot draw a seat strictly for racial purposes, I think she’s right because otherwise that would
get us back to those battle days when they would draw seats to deliberately exclude an effective
voice for racial minorities. You can’t have one side and not the other. You can’t say, well, it’s
okay if it’s benefitting the racial minority but it’s bad if it’s hurting a racial minority because there
are all kinds of minorities. Some of the districts that were at stake in the cases that were
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reviewed and decided by Justice O’Connor, there were white minorities in these districts who felt
that their rights were being diminished. So, she is right when she says that cannot be the
overwhehningly predominant purpose, but I would have tried to phrase it differently so that it
didn’t automatically strike down all of the districts that she did; I still think a bad political
gerrymander is often better than a good judicial reapportionment. That’s where I stand.
Mr. Pollak: Well, it is undoubtedly a long and complex issue which, at least at this time,
particularly since you haven’t really sat on it, one needn’t pursue. But one further question occurs
to me, and that is your reactions given your own experiences to the unusual configurations of the
North Carolina and of the Louisiana districts that the Supreme Court reviewed.
Judge Mikva: Again, yes they were unusual; yes they did stretch out from all kinds of
places; but you know O’Hare Field is a part of the City of Chicago even though its closest point
of proximity is 15 miles away from the city border. That was done by the legislature, while I was
there, annexing O’Hare to the City of Chicago by a mythical one inch line. Now, a lot of people
say that is a perfect example of exactly the kind of gerrymandering that shouldn’t happen; but on
the other hand, that was a political decision that the political forces decided made sense. Chicago
had need to control that airport. A Republican governor and Republican legislature decided that
Chicago could better promote and develop the airport than if it was given over to a separate
authority or if we let the little suburbs that really surround O’Hare run the airport. Now, are there
problems? Of course there are. I represented all those suburbs that surround O’Hare, and trying
to get the City of Chicago to pay any attention to noise abatement was very hard. I’d come in and
testify before the committee, and we’d have all these city aldermen sitting there; if they showed
up at all, they’d be reading the newspapers. What do they care about noise? It didn’t affect their
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constituents. My people in Park Ridge and Des Plaines were the ones who were having their
barbecues and their concerts ;md everything else spoiled. But, on the other hand, the economic
development and the other plus sides of it were high for the city. Is it a gerrymander? You bet it
is. As I say, you won’t even see it on the map, that one inch. Now, when is a district so unusual
in its shape that it should be struck down? The original gerrymander, everyone forgets, was
upheld. Governor Gerry, in fact, rearranged the districts in his state; I can’t remember what his
state was. The last thing in the world anyone ever thought about at that time was that the court
should get involved. If you want to fight gerrymandering, you fight it politically. You fight it in
the newspapers. You fight it in the reform groups. So, the answer is that I like Justice
O’Connor’s simplest first point; but then she goes on with some other factors as well. If you can
establish that the only reason for creating that district was to deprive somebody of representation
– I guess that is the way I would phrase it – then you have reason for the courts stepping in.
Unless you can do that, I’d let the politicians be politicians.
Mr. Pollak: So you got back into the Congress, defeating the Republican and where did
you go on committees and what was your – you served then three tenns. Did you go back on
judiciary?
Judge Mikva: I did ultimately, but before I came back to Congress, I spent those two
years teaching and working while I was a partner in a law firm and sort of revving up for the next
campaign.
Mr. Pollak: Is there anything you want to say about the teaching experience or the
practice?
Judge Mikva: No, I tried Northwestern. It was very stimulating.
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Mr. Pollak: Justice Stevens there, teaching?
Judge Mikva: No, he wasn’t then. He does occasional teaching. My practice then was a
connnercial practice. I did a lot of tax work.
Mr. Pollak D’ Ancona and Pflaum, not Goldberg’s firm?
Judge Mikva: D’Ancona and Pflaum, not Goldberg’s firm. In ’74 when I ran again, it was
a Watergate year, and Mr. Young had not really distinguished himself in his first term. I guess
that’s when I realized the district was much more Republican than I had been willing to admit
because I barely won; I won by less than 51 % of the vote. And you know 1974 was a strong
Democratic year.
Mr. Pollak: I see, you didn’t have to run against the incumbent?
Judge Mikva: Yes, I did.
Mr. Pollak: Oh, Young had beat you?
Judge Mik:va: Young had beat rne in ’72.
Mr. Pollak: Oh, he beat you in ’72, so he ran against you?
Judge Mikva: So he ran against me in ’74.
:Mr. Pollak: So he had the advantage of the incumbent?
Judge Mikva: He was the incumbent. I was running against the incumbent; but, on the
other hand, 74 was a very good year. A lot of incumbents got beat.
Mr. Pollak: fught.
Judge Mikva: I had this great name recognition. I think one of the most telling things
about the name recognition I learned in ’72 when my first poll was taken. Peter Hart took my
poll in ’72 when I first made the decision to move up there. He came back with results that l was
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ecstatic about. It showed in a head-to-head race that I wa s winning 41 % to 13%. I thou ght, that’s
terrific, a 28 point lead, you.kn.ow. I hadn’t started to campaign, and I realized Mr. Young was
not a great campaigner. Peter said, “You’re in trouble.” I said, “Come on Peter, I know I have to
work hard at this but this is pretty encouraging.” He said, ”No, you should be very discouraged.”
He said, ”Look, you got 41 % of the people agreeing to vote for you; 98% of the people know
who you are. You have to worry that all those people who know who you are, aren’t for you.
Now what can you do to pick up another 10% of those peo ple to get over 50?” And the answer
is, no matter what I did, I didn’t do it. I got up to 49% and that was as high as I got. I realized, as
I said in the ‘7 4 election, that it basically was a Republican district and that I won partly because
it was a Watergate year, partly because Young had not distinguished himself, partly because
again I was well known, and partly because the only appeal I had to a big part of that
constituency was almost the elitist appeal of having been an honors graduate of the University of
Chicago and being a Supreme Court Clerk. My Phi Beta Kappa key, which had been a liability
in Springfield, was a plus on the North Shore. In fact one ofmy committeemen who was my
intellectual guru had said, “You know, you ought to wear your key.” And I said, “Lynn, you
don’t wear your key.” He said, “You got to wear it,” he said. “You’re good at those Kiwanis
Clubs and other places.” I won barely. My opponent and I were embarrassed that we both broke
a record as to how much money we spent in that campaign. We each spent close to $500,000.
We were even more embarrassed the next time out because we spent even more and broke our
own record in 1976 where we spent, between us, over $1 million. That was the most money that
had ever been spent for a congressional seat. But it was one of those districts that was just
divided sharp down the middle. I never did win by more than 51 %. Anyway, in ’74 when I went
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back, I went on the Ways and Means Committee. 1bis was a real reform Congress. Phil Burton
was Chairman of the Democratic Caucus.
Mr. Pollak: Who got you on Ways and Means?
Judge Mik:va: Phil Burton The Congress that I missed had just begun to reform the rules
of procedure, and one of the things they had done in the Caucus was t o strip the Ways and Means
Connnittee of their connnittee on committees authority. In the past, the reason most people went
on the Ways and Means Committee was not to do the jurisdictional work, but rather because they
had the power to pick the other c ommittees. The reform group, led by Burton and Fraser and
others while I was gone, had stripped the Ways and Means Connnittee of that authority and given
it over to the Committee on Steering and Policy of the Democrats. That was a committee that
was elected in part by members of the House and part selected by the Speaker. It was a much
more representative committee for choosing other committee slots than the Ways and Means
Committee. And they decided who would go on the Ways and Means Committee. Phil Burton
was on that committee, and he was Chairman of the Democratic Caucus so he had a lot of
influence. He pushed me and he pushed Congressman Jacobs on the theory that we were the two
re-treads that were coming back after having lost our seats in ’72 and that we were experienced
hands. Therefore, we ought to be getting some benefit for our previous service. Carl Albert was
still the Speaker, and I remember he gave me this story with great glee that he wasn’t opposed to
me, but he was not ultimately to be the primary mover Burton had been. Dan Rostenkowsk.i was
then on the Committee, and Dan was not happy about my coming on. Among other things, he
didn’t like the idea of having two Illinoisans on that Committee; he bad never been happy with
two people from the same State involved. Besides which, clearly he and I did not come from the
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same part of the political forest. He was unhappy about that. Anyway, Albert called me in
shortly after one of the committee meetings and said, “Well, I think I ought to tell you about a
conversation I bad with your Mayor.” Albert and Mayor Daley disliked each other intensely
since the ’68 convention. Albert was Chair of the convention, and Daley thought that one of the
reasons things got out of control the way they did was that Albert wasn’t a strong enough
Chairman. Albert, on the other hand, was absolutely disgusted with the way Daley had handled
the police situation, the rioting; and so they were not warm buddies by any means. Albert said
that be got a call from Mayor Daley who said, “Carl, I think it’s outrageous the way you fellows
put people on committees without consulting with the delegation and the leader of the
delegation.” Albert said, “You know, Ab, your name never came up, but we all knew exactly
what we were talking about, we were talking about you going on the Ways and Means
Committee. I tried to reassure him. I said, ‘Well, Dick you know these things happen.” And
Daley said, “Well, we would never allow it to happen here in Chicago.” And Carl said, “Well,
that’s the problem with the democratic system, Dick.” He chortled with great glee. But I went on
Ways and Means which was and still is a very plum committee because of the jurisdiction. Even
without choosing the new committees, its jurisdiction is huge. It includes all the tax jurisdiction,
all the health, a good part of the health jurisdict ion, the welfare jurisdiction, the special revenue
funds. We would get into all kinds of issues because anything that involves any kind of a tax
problem, or had kind of a tax piece, has to come through the Ways and Means Committee. And,
So it was a juicy place to be.
Mr. Pollak: You were not in the Congress for the Nixon impeachment?
Judge Milcva: I was not. I sat there and cheered my colleagues on but with great dismay
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and disappointment because I wasn’t there. Paul Sarbanes was physically sitting in the seat that I
used to occupy on the judiciary committee. We were close friends, and I was very fond of him
and still am But every time I’d see him expounding, I’d want to kick the television set in because
I was so angry that I wasn’t there.
Mr. Pollak: Wow! Well, who in all your congressional service were the staff people that
you would care to put in this record who were really significant to you?
Judge Mikva: Tue most significant, there were two very significant ones: one was Genie
Ermoyan who was my executive assistant for all the years that I was in Congress and all the years
that I was in the state legislature. She came to work for the law furn as a legal stenographer just
about the time I got elected to the legislature. Part of the reason she came was because she was
interested in politics and I had just been nominated to the legislature. She went to law school
nights. I remember she didn’t even tell anybody in the law firm about it, but the dean of the law
school she was going to was a member of the legislature at the time. He was dean of the John
Marshall Law School – which she was going to – and one time when we were riding down to
Springfield on the train, he started to berate me about bow hard I was working that poor Genie
Ermoyan when she was trucing a full load going to law school at night. That was the first I knew
she was going to law school I called her and she said, well, she didn’t tell anybody because she
didn’t know how she was going to do. Anyway, she went to law school nights for 5 years,
got her law degree, and stayed with me, became my administrative assistant until I retired
from the legislature. \Vb.en I came to Congress, she came to Washington with me and was
with me the whole time. The two years I was out, she went with Senator Stevenson but then
came back to me as soon as I was re-elected. She ran the office and my social
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calendar, and she was a marvelous combination of being a lawyer- knew everything about me
and my family. She was just perfect for the job. She died a few years ago.
The other one was Jack Marco, who now runs a consulting firm in Chicago. Jack came to
work for me, I think, in ’71 or thereabouts shortly before the reapportionment fiasco; and we
ended up losing. He stayed with me and finished out the term with me, and then in ’72 he went
to work in a state job. As soon as I let him know I was running again, he quit his state job and
became my campaign manager and remained in charge of my Evanston office all the time I was
in Congress those three terms. They were both incredible.
I had a lot of other incredibly strong people, but somebody had given me the idea that I
should treat the legislative assistant jobs the way judges treat law clerks and keep them for just
one term of Congress – for two years – and then force myseJf to give them up. Each time I did
that, I was very unhappy that I had started that tradition because they were just getting
comfortable with their job. I was just getting comfortable with them; but it made a lot of sense
because it meant that every two years I was getting a fresh voice and a fresh set of ideas, and they
are good apprenticeships. They gave people a look-see at the legislative process but then told
them to go out and do something more substantive.
Mr. Pollak: And perhaps they call on the Congressperson to keep learning.
Judge Mikva: Oh, you bet. I maintain that is one of the reasons the judicial branch works
as well as it does? the fact that every year you get in this group of very bright, very enthusiastic,
somewhat conservative set of clerks who ask questions. Why? Why are you doing it this way?
It’s helpful.
?- Pollak: Did you have a second committee, other than Ways and Means?
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Judge Mikva: Well, Ways and Means is an exclusive committee, and one of the reforms
that they put through whll? 1 _was still gone that one term was to set up these exclusive
committees where you are not supposed to go on a second committee. I observed that refonn the
first term, but the second term the House Judiciary Committee was working on the recodification
of the Criminal Code. There were a lot of subjects there that I was very much interested in,
restitution and punishment generally, jails and all kinds of things like that. So I decided that I
would go on the Committee just to work on that; and I went to talk to Peter Rodino, who was the
Chair, and he said, fine, they’d love to have me. They would make sure I was on that
subcommittee charred by Father Drinan, now teaching at Georgetown Law School But I needed
special permission from the Caucus to take on a second major committee, as I had an exclusive
committee. I remember when I sought permission, I thought I was quite well known in the
House and reasonably supported by my colleagues. My request was sailing through pro forrna
and Phil Burton came rushing into the Caucus and said, “What’s going on here, what’s going on
here? Are you crazy? We’re breaking up all of the discipline we just set. Pretty soon people are
going to have two, and three, and four committees just like they did before. Who’s responsible
for this?” And then he turned around to me and said, “Oh my God!” and stomped out of the
room [Laughter]
Mr. Pollak: But you got it?
Judge Mikva: I got it. I enjoyed it.
Mr. Pollak: What would you say about these six years beyond what you’ve said. What
bills were you particularly involved in, what hearings, what’s your evaluation of the Presidents
you served, the leadership of the Congress, the relations to the Senate?
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Judge Mikva: It was an exciting period. Congress did finally bring a halt to the Vietnam
War in the good old-fasbio.ned way. It wasn’t by suing the President or burning our draft cards or
burning the flag or anything else. The House finally got up its nerve at an appropriate time in
1975. The House voted down a $600 million appropriation bill that was designed to allow us to
withdraw with honor from Vietnam I remember Henry Kissinger was patrolling the back railing
trying to muster up votes. Ford was President. I guess it was Bob Michel, the Minority Leader,
who was reading a letter from the President saying that if we didn’t have this money, all the dire
things that did in fact happen would happen; there would be people leaving ignominiously at the
end by helicopter. But the House realized that that was the only way the war was going to end, .
that we just had to do the one thing the House has the authority to do and that was to use its
power of the purse. And very painfully, and on a very close vote, we voted down the $600
million. lt was a night session. lt was May or June, it was the springtime, and a very tense
session in the House. As I said, Kissinger was controlling the back, and the leadership was very
divided on this. Some of the leadership was very much opposed to what we were doing. I think
the Speak.er was neutral on it.
Mr. Pollak: And who was the speaker then? Foley?
Judge Mikva: No, it wasn’t Foley — it was either O’Neill or Albert. It may have been
O’Neill, I’m not sure. No, I guess it was Albert. But be was very nervous about what we were
doing. Pushing the envelope too far, challenging the President too much. But it was interesting.
Everyone agreed that if that money was not appropriated, that would be the end of our
involvement in Vietnam. There was no way the President could carry it out. We voted it down
and the troops withdrew. We didn’t withdraw with dignity. I have to acknowledge that. But it
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was the right way to end the war. We couldn’t persuade the President to withdraw the troops, and
the power that Congress has is the power of the purse, not the power to bring on lawsuits and all
of these other things that we tried to do. Then in 1976, Jimmy Carter was elected President,
which was the first time I’d had an opportunity to serve under a Democratic President. That was
very exciting. I was on Ways and Means.
Mr. Pollak: How did it change thmgs?
Judge Mikva: Well, first of all we bad a Democratic White House. The Executive
initiatives were keeping to party policy by and large, though unfortunately the problems of
communication between the White House and the Congress just grew and grew and grew. When
he was first elected, we all had these high hopes that this would be a great productive,
progressive session in Congress. We would get a lot done, but we didn’t get as much done as we
had hoped during either ’76 or ’78. Part of it was that some of the staff he bad just weren’t used
to dealing with Congress. Frank Moore, for example, had been very effective in Georgia, as
were Hamilton Jordan and some of the others; but they just weren’t able to carry that kind of
weight to the Congress. The problems stemmed from an outsider President who came in and
brought in a whole new crew, especially after we bad been out of office for eight years.
Therefore there weren’t too many people ready to come into the executive branch and who the
President was willing to take on. It was during the height of the energy crisis. There was a lot of
energy legislation passing through the Ways and Means Committee. It was one of these
problems that legislation wasn’t going to solve. It was a problem. that bad other dimensions, and
I’m not sure we’ve solved it yet; America’s love affair with the automobile is not over yet. That is
one of the reasons we bad a mild crisis, and we’ll have one again at the rate we are going. It was
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kind of interesting to be invited over to the White House and be on friendly terms with the
Executive and the administrative agencies. I remember a story I tell on the speech trail about my
1976 election. I won by 201 votes. This was after losing by less than a couple thousand votes in
’72 and winning by less than a couple of thousand votes in 74. In ’76 I won by 201 votes out of
almost 200,000 votes cast. That year I got the landslide award ofmy colleagues for winning by
the smallest number of votes of anybody on the Democratic side. I still remember when I
attended my first reception as a member of Congress when the White House was being run by a
Democratic President; coming through the receiving line and feeling sort of pleased that the
President remembered me from when we campaigned together and said, “Hi Ab, good to see
you.” He shook my hand warmly and then he turned to Roslyn and said, “You remember Ab
Mikva, dear, don’t you? He barely won.” I realized that was my place in history, the “barely won
Congressman.”
Mr. Pollak: Did that influence you in going on the bench?
Judge Milcva: Not really. First of all, I enjoyed the district. Whenever I tell people that,
they can’t understand how I could enjoy a district that was so barely supportive. The Democrats
were my kind of Democrats. They agreed with me on civil rights, on the environment, and on the
other issues that I was pushing – on gun control – and many of the Republicans did too. And,
again, because there was a lot of stimulation to having those close districts where you know that
the spotlight is on you in everything. Fortunately, by that time I had been in the Congress long
enough that I’d lost once so that I knew that losing your seat is not the end of the world and that
sometimes it ought to happen to you. I still didn’t look forward to losing, but I was willing to
take some chances with the things I voted on. I remember my staff was very upset that I voted
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for a pay increase because pay increases were as unpopular then as they are now. I said, “Look, if
I have to lose my seat in Congress, that’s one I would just as soon lose it on as anything.” I
believe that public officials and government people ought to be paid a responsible wage, and I’m
not going to be dishonest about bow I feel. So, I enjoyed the district The constituency that
agreed with me were my kind of constituency. The problem was that I had been on the ballot
every two years for 24 years. I had worn out several generations of voters. I remember when I
went back on the Judiciary Committee, I had one of the junior seats and this young new
congressman introduced himself and said, “You know my grandfather.” I said, “How would I
have known your grandfather.” He said, “Well he was a Hoover-appointed federal judge in
Chicago and used to come home and talk about you sometimes, that you were a bright young
lawyer that had cases before him” It was Mike Barnes and, indeed, his grandfather bad been a
federal judge in Chicago. I had appeared before him, and I began to realize that I’d worn out
several generations of voters and I’d worn myself out. I remember we bad this place in the
Dunes, which we’ve had since I was in the legislature. We were sitting there on the last weekend,
probably the Labor Day weekend, just before the campaign got into high gear in ’78 and I told my
wife Zoe, this is going to be my last campaign. She said, “Oh, you’ve been saying that for years.”
I said, “No, this time I really mean it. I’m just finding it so hard to get geared up, get enthusiastic
enough to take on the challenges.” I had made all these speeches dozens of times, and when you
start hearing yourself saying the same things over and over and over again, it is very hard not to
get jaded and lose that extra pitch you need if you want to win in those precincts.
Mr. Pollak: How close was the ’78?
Judge Mikva: It was close, I won by less than 51% of the vote.
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Mr. Pollak: Wow.
Judge Mikva: I wol) by 1800 votes, I think.
Mr. Pollak: Did your service in the Congress put you into issues concerning the
judiciary?
Judge Mik.va: Oh sure. I was involved in pay increases for judges. I was involved in
authorizing new judges to be appointed and the division of the old Fifth Circuit into two circuits.
There was a lot of judicial administration that came before the Judiciary Committee, and that was
something that I was interested in. That had been partly from my having been a law clerk and
partly from having practiced law for so long and mostly in the federal courts. I felt that this was
an interesting line that I wanted to pursue. So I was involved in a lot of judicial work before I
went on to the bench Frequently, when the judges did have issues on the Hill, I would get
consulted by Chief Justice Burger who otherwise was not always my closest ideoiogical ally on
issues, but was a strong friend and supporter, and was delighted when I went on the bench He
thought I’d bring that extra know-how to the courts. He had a tradition of not appointing people
to committees until they bad been on the bench for several years. My first year he appointed me
to a key committee that was working with Congress on working conditions and jurisdiction.
Mr. Pollak: Do you have anything else to add about the legislative experience7
Judge Mik:va: I don’t think so.
Mr. Pollak: I’d like to ask you whether you, you know you’ve been at the White House,
you’ve been on the bench Do you have comments on Congressmen of 95/96 as compared to
Congressmen of your vintage7 Not the individuals but the experience of federal legi slating?
Judge Mikva: Well, I think it is not at a high level and I think it’s due to two things. I
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think that, first of all, even more of the members that were elected in ’94 have never had prior
government experience. A lo.t of them are holding public office for the very first time. I know
it’s a great way to get elected to say, ”I am an outsider; I am not a part of all those terrible things
that went on there under the previous Congresses.” But this is a very big leap to Congress in the
United States and you just don’t learn how to get things done overnight. It is sort of like
somebody going from T?ball to batting clean up in the big show, and it doesn’t work. I think this
is one of the reasons why the Republican leadership is in such trouble: there were just too many
things done that experienced legislators would not try to do. Just as one example, whatever the
faults of Social Security and Medicare, you do not make frontal attacks on those programs. The
combined political strength of the special interest group that represents our seniors, plus, and I
think that this is something that even our sophisticated political leaders in the House missed, plus
their children. It’s not only the people who are on Social Secwity that have a stake in preserving
it; it’s their children. Because the reason that those parents aren’t burdens to their children is the
Social Security program ‘When you talk about cutting it, when you talk about cutting Medicare,
you are just taking on this humongous constituency that includes middle class, working poor, and
maybe even some upper middle class, and you are taldng on large numbers of people. This is
where, I think, Congress got this reputation of being radical. They were proposing to slash key
programs that people have come to rely on. The other thing is that so many of them were elected
running against government. Now, again, it’s always easy to run against Washington.
Washington is not a popular place, and Congress is not a popular institution. But as one of my
colleagues, who I see in the gym said, “What I don’t understand is that if they hate it so bad, why
did they want to come here?” It’s very bard to be an effective and useful Congressman if you
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come in with a view that everything that Congress does is bad. Then all you want to do is get rid
of it and keep things from happening. So, I think that the level of legislating bas been very poor.
I think that the majority party will pay a price for it this next election. I’ve been wrong before,
but I think that they will pay simply because they appear not to be able to make the institution
work
Mr. Pollak: Did you do anything else in this six-year period besides your legislative
responsibilities? Did you teach?
Judge Mikva: No, I think I taught one time at Georgetown, I’m not sure but I think I did.
I found it just a little too complicated, mainly because the scheduling in Congress is so irregular.
On the court, no matter how hard you are working, you can schedule out time and keep that
commitment. It’s hard to do when you are in Congress.
Mr. Pollak: In this whole congressional era of yours, were there leaders or people who, or
ideas, that you came to rely on or model yourself on as you moved on toward the bench?
Judge Mil{va: Well, there were some great people that I had occasion to meet and serve
with I mentioned previously my experience with Paul Douglas, who acted as a kind of a
personal mentor. I had this great admiration for Mike Mansfield. He was Senate Majority
Leader. He just was so effective. I bad a great admiration for Gerry Ford. I thought he was a
great President and had been a great Minority Leader when he served in that function in the
House. I didn’t know him as Vice President very much I had a great affection and respect for
Tip O’Neill. He was the complete politician as far as I was concerned, and he understood politics
in ways that not many did. He was a very effective leader. I’m not sure people realized how
much he influenced what happened and what didn’t happen in that House. Part of the reason
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people misjudge political leadership in the Congress so often is that they forget that a big piece of
the measurement of whether Congress bas been effective or not is not only the legislation they
pass, but the legislation that they keep from passing. I used to say that sometimes the best thing
that Congress does is nothing. When you consider all of the irresponsible proposals that are
offered in any given Congress, a pan of political leadership is keeping that kind oflegislation
from passing. Take legislation to amend the Constitution. We have hundreds of proposals each
year to amend the Constitution. We would have 10,000 amendments for the United States
Constitution had they been allowed to pass, and some of them are very popular. Prayer in the
school decisions caused an uproar, as did the flag burning decisions, and a whole variety of
others. It takes good political leadership to keep those popular proposals from passing, which I
think ultimately is good for the country. I think it is important that we maintain a modest
Constitution that isn’t amended at every opportunity.
Some of the other people that I grew to admire, besides O’Neill and Mansfield and Ford,
were George Mitchell as the Senate Majority Leader. He took over after I left, but I watched him
and had some dealings with him, and I was always very impressed that he bad a way of getting
things done and working out the consensus. One of the people that I really tried to model myself
after, and I’m not sure I was very successful at it, was Phil Hart. He was a Senator from
Michigan.
Mr. Pollak: I knew him pretty well He was a model.
Judge Milcva: He took on these bard, tough issues and he took them on without
alienating people, without making people angry, without hurling invectives at them. I thought he
would be very embarrassed about that mausoleum that they built, that they DaIIled after him; but I
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thought it was appropriate that the colleagues who disagreed with him more often than not,
because he was against the_ w? and he was for gun control, and he was for a lot of unpopular
positions, named the newest Senate Office building after him I found it impressive that he
would get elected and re-elected all those times in Michigan.
Mr. Pollak: He was a nice guy who finished first.
Judge Mikva: He was a nice guy who finished first, and I often thought that that would
be somebody worth emulating.
Mr. Pollak: Did you have any activities in, up to the time you went on the bench with the
ABA? I know that at some point you became head of the section on …
Judge Mikva: The section on Individual Rights and Responsibilities. Congress is so allconsuming
you don’t have a chance to just participate in extracurricular activities. They have to
be related to the Congress. I worked with the ABA when they had matters on the Hill I was
somebody that they considered an ally, and they would try to enlist my help if it was something I
agreed with them But I didn’t really have any active involvement. During the two years I was
out, I think I did; but, again, I think it was more on a local basis. I was on the Individual Rights
and Responsibilities section just as a member, though, not anything important. While I was in
Congress, I would help them when they had something that I could be of help on; but I was not
involved in any activities until I finally went on the bench.
Mr. Pollak: Were there any confirmation battles?
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INTERVIEW NO. 5
This is the fifth int?r;view of the Oral History of former Chief Judge Abner J. Mikva as
part of the Oral History Project of the D.C. Circuit Historical Society. It is being held at his
home, 442 New Jersey Avenue, S.E., Washington, D.C., on Wednesday, October 2, 1996. The
tape and any transcripts made from the tape are confidential and governed by the wishes of the
Judge, which ultimately will be made in the form of a written donative instrument.
Mr. Pollak: Ab, when we last met on July 16, 1996, you had been speaking about your
time in the Congress, some teaching experiences. I wondered whether, during the time in the
Congress, you ever became involved in any battles over confirmation or proceedings over
confirmation of nominees by the President for the federal bench.
Judge Mik:va: The only one I was peripherally involved in was the nomination that
President Nixon had made of Richard Poff who had been a colleague of mine in Congress, a
Republican, a southern Virginia Republican. Congressman Andy Jacobs and I decided that we
would go over and testify in favor of Congressman Poff because he was catching some grief from
the liberals on the Senate Judiciary Committee. While Congressman Poff was very conservative,
he was fair; and we thought he would be a rather enlightened voice on the Supreme Cotrrt. We
didn’t expect to get another William Brennan from Richard Nix.on anyway. So we were all set to
go over, but shortly before we were supposed to testify- I remember where I had already jotted
out at least in my mind my testimony for him. my statement for him- be withdrew for personal
reasons. And that, I think, is the only time I was involved in any kind of confirmation problems
in the Senate, until I ran into my own.
Mr. Pollak: Just a couple of other questions about that era Were you in the Congress at
the times of the assassinations of Kennedy, either Kennedy, John or Robert, and Dr. King?
Judge Mikva: No, I had just been nominated to the Congress for the first time in 1968
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when Dr. King and Robert Kennedy were assassinated. I was not there for any of them, and I
was not there when President Kennedy was assassinated.
Mr. Pollak: Did such events mark you in any way in your face to public service or to the
issues that you faced in the Congress or would face as a judge?
Judge Mikva: Well, they were cataclysmic events. I really felt that in one sense some of
our very best political talents, and I include Dr. King in that, were killed off very prematurely and
at a time when we desperately needed them and that this accounted for some of the malaise that I
think the country went through in the ’70s, where we just could not find our way. I don’t know
what kind of country we would have been if Robert Kennedy had survived. I don’t know what
kind of a country we would have had if Dr. King had survived. They were important characters,
and it’s bard to say that history ever turns on one person; but they were such key players in our
society and our country and their deaths were so traumatic, that I think the course of our history
was changed very dramatically by those two bullets.
Mr. Pollak: Did you in your teaching experience or in your own family or in relation to
your children find that these events changed or affected the outlook of the young people?
Judge Mikva: It immediately affected my children because we were then living in Hyde
Park. At Dr. King’s death, it was obvious that the town was going to go up in smoke in the riots
that followed his assassination. I remember racing home from the office; it seems to me it was
on a Thursday but I’m not sure, but racing home from the office and picking up my eldest
daughter Mary who was then in Kenwood High School on the Southside of Chicago and insisting
that we get out of Chicago and go to our summer place, where I thought we would be physically
safer. She was very upset because she said that she was finding her experience with her Black
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colleagues in high school very moving and that they were all tearfully hol ding each other and
crying about the assassination, which was, indeed, a very moving set of events. But that wasn’t
the way it played out in most of the neighb orhoods of Chicago or in our own neighborhood.
Hyde Park itself was spared. Woodlawn was trashed and South Shore was trashed. It was a
pretty awful time for Chicago, as it was for most other big cities in the country at the time.
Mr. Pollak: Who were your major mentors and models in the United States Congress,
and who would you say from that era bad the most lasting influence or what kind of influence on
your later service?
Judge Mikva: The people in the Congress when I got here who were fairly major role
models for me were, in the House, people like Congressman Robert Kastenmeyer, who was there
for many, many years; Congressman Don Fraser who later became Mayor of Minneapolis;
Congressman Ben Rosenthal from New York, who passed away; Congressman Phil Burton from
California; Congressman Don Edwards from California. We all were in a very little group that
called ourselves “The Group” and we were social friends as well as political allies. These were
all people who had been there for some years and were approximately contemporaries of mine
age-wise, but they all had a little more experience in the Congress than I had. It was very easy to
be able to identify with them. Whenever I came on the floor, the first name I would look for in
the roll-call to see which way he was voting if it was an issue that I wasn’t familiar with was
Congressman Kastenmeyer because he represented a district in Wisconsin, the Madison area, and
his .interests were very similar to mine. He would be the first belle wethers that I would look for –
to see how he was voting. It was a clue as to how I should vote. In the Senate, the person that I
then admired and continue to admire as the most effective senator far and away was Senator Ted
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Kennedy. It was incredible and it remains incredible that if you really want to get something
done in the United States, if you are a Democrat, if you’re a liberal, Senator Kennedy is the
person who is most likely to get it done. He has a staff, the tenacity, the pizazz, the stature; and it
was that way back in 1968 just as it is today in 1996. He has worn very well I know he gets a
lot of criticism for some of the things he has done and some of the things he doesn’t do, but I
consider him far and away the most effective Senator of our time.
Mr. Pollak: Ab, you commented that as you went to the floor you looked to Kastenm.eyer
if the issue up wasn’t one that you hadn’t spent time on or hadn’t been involved with Is that a
marked distinction from service as a judge? In other words, are there issues in the Congress
where you take the lead of someone else because you can’t get deeply enough in them to make
fully your own judgments?
Judge Mikva: Oh, absolutely. There are perhaps over a thousand roll calls or more in
any congressional year, and there is no way you can keep yourself informed. It would be like
having to hear a thousand cases in a year. There is no way you can possibly be fully informed on
all of them. particularly since some of the issues are as complex and maybe even more complex
than a particular case would be on appeal You get involved in some of those recodifications or
environmental issues – the bill can be six. or seven inches thick and have hundreds of provisions.
It’s much more complicated than some of the most complex cases that we handle on appeal. If it
isn’t one that comes before your committee and if it isn’t one that you’ve been personally involved
in, you’d have to follow the leader or you’re going to have to, well, you might as well flip a coin.
Toe process that I used and that I think most members evolved in.to is that I would have one of
my assistants take responsibility for every piece of legislation that was coming on the floor. He
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or she would try to get as familiar with it as they could. Bach morning we would have a staff
meeting, and they would go.Qver with me the things that were coming up that day on the floor. I
had three separate “idiot cards” as I called them: One was my schedule card, which told me to be
at such and such a place at such and such a time. The second one was my voting card. They
were color-coded so my voting card as-I remember was orange, which was to remind me of how
the staff and I had tentatively agreed that l was going to vote on a particular issue when it came
up. Th? third card, color-coded yellow, recorded the things that I was going to try to do
legislatively that day; to sit down and talk to one of the co-sponsors of one of my bills or
somebody who was doing a similar bill and see if I could get them to take an amendment or
something like that. Toe orange cards, the voting cards, always had to be very tentative because
you never knew what amendments would come up. We could sit and talk in the morning about a
bill in its pristine form and lo’ and behold amendments would be offered changing it completely
during the course of the debate. Plus the fact that things would happen during the debate, forces
would change, alliances would change. It was interesting, on the orange card, in addition to
giving me the way I had tentatively decided I was going to vote, I would list in shorthand phrases
the proponents and the opponents, “AFL-CIO-Against,” the “Chamber of Commerce-For,”
“Nationa1 League of Cities-For,” and so on, to give me some idea of who the players were on a
bill coming up. But with all that, you’d come on the floor, you’ve been in Committee or
wherever you’d been, and all of a sudden the bells ring and you rush on the floor and there is
so mebody standing at the door saying vote “Aye,” and som ebody is standing at the door saying
vote “No,” and you needed to have somebody that you can look to that you think would give you
not only an objective view, but something that would be comparable to yours. I found that
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looking for bellwethers was the way to do it. There’s an interesting anecdote involving Barney
Frank who has a mischievo.us.sense ofhwnor. There was a Member of the Massachusetts
delegation who always had trouble making up her mind as to how she would vote. She would
come rushing on the floor and she’d be holding her voting card, looking up at the Massachusetts
delegation seeing how they were voting, making sure she wasn’t too far out of step with everyone
else. Whenever Barney would see her come up, be would dehberately flip his vote the other way
than he was really voting; and frequently be was the only person voting that way from
Massachusetts and sometimes the whole country. Tbis would upset her very much. She’d come
over to people and say, “Why do you suppose Barney is voting that way?” Of course, just before
the vote closed, he would flip back to the way be intended to vote.
Mr. Pollak: Ab, what was the role of women in the Congress during your service?
Judge Mikva: Well, they played a key role. Some of them were very senior members of
the committees. I don’t think any of them had a committee chairmanship, a full committee
chairmanship; but Martha Griffiths on Ways and Means was a very senior member and played a
very important role on the committee. It’s just that there weren’t as many as of them and they
didn’t particularly take on women’s issues. The country was at a stage, unfortunately, where we
really were not very conscious of women’s issues. We were late to really face up to the gender
discrimination that plagued our country for so much of our history. So there were fewer of them
They were not leaders in the kinds of issues that came about. Women like Pat Schroeder, Bella
Abzug, and some of the others came to Congress later.
Mr. Pollak: When you campaigned, were you conscious at all of reaching out for the
women’s vote or was that not a perception of candidates, of you as a candidate, or others that
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were in your shoes?
Judge Milcva: I don’.t .think that really came up. I think that the first galvanizing issue on
which there was a distinct gender grouping was the Equal Rights Amendment, and that came up
in my second or third term From there on in, it became a defining issue. Clearly, if you were
supporting it, you were supporting its ex.tension and so on, the extension of the period to vote to
ratify it, it was a measure of how the district would vote for you. Since I was a supporter of it, I
think I did get a lot of help from women who otherwise may not have been inclined to vote for
me.
Mr. Pollak: You mark that as a kind of a galvanizing issue for the women’s movement.
Judge Mikva: Even though it did not succeed as part of the Con stitution, it was the
rallying cry for the women’s organizations in this country, and it was the measuring stick as I say
that separated them in the Congress, as to those who were supportive of equal rights and those
who were not.
Mr. Pollak: We’re now at a watershed in these interviews, and I want to ask you to
introduce and explain how you came to move from the Congress to the federal bench? How did
it come to your attention, how did you react to it, what were your feelings, who did you consult,
what you want to record?
Judge Milcva: Well one of my great mentors and gurus — my rabbi, if I can use the New
York term– was David Bazelon. I had known him slightly from Chicago days and gotten to
know him better when I was a Member of Congress in Washington and he was already Chief
Judge of the U.S. Court of Appeals here. We had maintained a friendship over the years and
starting in maybe 1977 or thereabouts, I would start to jog with him. Jogging with David was an
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experience. The question was did you walk slowly enough not to get ahead of him But we
would jog around the Kennedy Center, and then he would insist that we have breakfast together.
He was always a very fastidious, modest eater. He insisted on plying his guests with all kinds of
breakfast dishes, which more than offset whatever calories I had burned up in running with him.
But, anyway, we started this routine in perhaps 1977 or so and he kept saying, “Aren’t you getting
tired of being in Congress? Why don’t you come on the Court?” Well, at the time there weren’t
any vacancies, and it was idle chatter and besides which I wasn’t really ready. About that time I
really did begin to think about doing something else; I had been on the ballot every two years for
over 20 years in Illinois, counting the state legislature and the Congress. The election process,
not necessarily the legislative service, but the election process does take its toll. It’s like a rubber
band – you can snap back just so often and then it doesn’t snap back as well. I had worn out
several generations of voters in Illinois in those 20 odd years. I remember sitting on the beach
with Zoe — norm.ally we’d tak e that one last weekend in the fall, usually Labor Day weekend,
where we’d go out to our summer place and spend it on the beach and that would be my last
weekend until I went back and charged into the fall campaign. We were sitting there and I was
thinking about all the things I had to do, money I had to raise, and the campaign schedule I was
going to have to keep and I said to Zoe, “This is going to be my last run, 1978.” And she said,
”Oh you’ve been saying that for a number of years.” I said, ”No, I really mean it this time; win or
lose, I’m ready to give it up.” She said, “What will you do?” I said, “Well, maybe I’ll be a judge,
or maybe I’ll teach.” She said, “You won’t go back to the practice?” I said, ”No, but I really have
had enough of elected politics.” That spring and summer, Bazelon had been particularly urging
me to think about a judgeship because the Congress had just created two new judges for the D.C.
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Circuit. He said, ”You really ought to think about it.” I said, ”David, I can’t think about anything
until after the election, and. then we’ll talk about it.” Well, this ’78 election, I won with my usual
huge morality of 1200 votes or so, and I came back after the election in December. David and I
had lunch or I again jogged with him and he said, ”Well, what are you going to do about it?” I
said, ”Well, I think I’m interested.” He said, ”Well good, there’s this Connnission that President
Carter’s appointing. It’s headed up by Joe Tydings, former Sen ator from Maryland. You know
him; you should know him; you should talk to him and find out what the procedures are.” So I
went back to the office and I called Senator Tydings and he said, “Great, we’ve got a regular
process. I’ll send you some papers; fill them out, and I’ll ask you to come in and talk to the
Nominating Connnission.” I filled out the papers. I was beginning to get more and more
interested, but it still was something off in the distance. Then be called me to tell me that they’d
set a date for me to come and talk to the Commission. My visit with the Connnission was very
interesting. I knew some of the people on it. Dean Griswold was a member of the Commission,
and be was very friendly and supportive. But there were two groups that weren’t as supportive.
One were some D.C. lawyers who were somewhat hostile; as you know, it is still a matter of
contention within the District of Columbia Bar as to whether D.C. judgeships should be filled by
local people. I was an outsider. I remember one of them said, “Well you know you have been” –
both trying to discourage me and influence his fellow commissioners – ”you’ve been away from
the law for a long time.” I said, ”I have?” He said, ”Well, you’ve been in Congress for five
terms.” I said, ‘Well, what do you think I’ve been doing here?” So they were somewhat less
than enthusiastic about my candidacy. Then there were a couple of citizens on the Commission
who were not lawyers. One of them was this lovely woman from one of the suburbs of
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Maryland. She said, ”Congressman I’ve been following your record for many years. I think you
have been an outstanding congressman and I don’t see why we should waste you on the Court of
Appeals. I don’t see why you shouldn’t stay in Congress.” Anyway for all of those
complications, the Commission did recommend me. The procedure then was that they gave the
President five names for each vacancy; and since there were two vacancies to be filled, they gave
a list of 10 names to President Carter. When the list came out, Senator Tydings called and said,
”Well, you’re in.” I said, “Joe, I’m not a modest person, but that’s an awfully overwhelming list.”
There were state Supreme Court justices on there, law school deans and very prominent members
of the Bar. He said, ”No, you’re in because the President is going to look at that list and he is
going to see 10 names and only one face.” And it is true. Of the 10 names, I was the only one
that the President knew. We’d had contact in Congress, we’d campaigned together in ’78 and in
’76; and sure enough it came to pass. Judge Wald aod I were the two people that the President
nominated.
Mr. Pollak: Did you have any exchanges of note before the nomination, either with the
President or with the White House staff?
Judge Mikva: Shortly before the list went to the President, Tydings called me; he was
really a very good counselor of this thing. I don’t think he tried to tilt the Commission process,
but he clearly was being as friendly and helpful as he could be. He called me and said, •cy ou
kn.ow,” he said, “I think you ought to call the President and tell him that your name is on that
list.” He said, “Ifl were President and one ofmy strong supporters on the Ways and Means
Committee was vying for a judgeship, I wouldn’t want to read about it; and ifl saw his name on
the list, I’d like some advance warning of it.” I thought about that and that seemed like good
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advice, so I called the White House and asked to talk to the President. I was asked what was my
business, and I was put through. I said to the President, “I just want you to know that I’m seeking
to become a judge on the U.S. Court of Appeals here in Washington; and my name is going to
appear on the list that is coming to you with some of the recommended people.” He had not
really focused on this at all, hadn’t even thought about it. He said, “Oh, well I hope you have
talked to Senator Stevenson about it because we take a lot of weight from home-state senators.” I
said, “Mr. President, Senator Stevenson. doesn’t have anything to say about this. 1bis is one of
these appointments that is yours exclusively. I hope he’ll vote for me and support me, but it’s
your call.” He said, “Oh really, I guess I didn’t know that.” Anyway, he said, “Thank you,” and
shortly thereafter I ended up being one of his nominees.
Mr. Pollak: Were you interviewed at the White House by staff there?
Judge Milcva: No, not until after he had nominated me. He relied very heavily on the
Nominating Commission. After I was nominated, then, of course, the Department of Justice
came in with all kinds of forms to start the FBI investigative process and so on.
Mr. Pollak: Did you have any communications worth recording in this history in that
period with Pat Wald who was to be your colleague in the nomination process?
Judge Mikva: Yes, I had met Pat once before very briefly. I knew of her, of course, and
she knew of me, but our paths just hadn’t crossed many times. Shortly after we were nominated,
she called and said she’d like to come over and chat. I said, “Wonderful” So she came over and
I remember her opening remark when she said, “Why do you want to give up all this power to go
on the Court?” I laughed and I said, “You sound like one of the members of the Commission.”
Anyway, we hit it off very well and we remained in close communication during the whole
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process. She was having a little bit of trouble on getting confirmed, but nothing like the trouble I
was having.
Mr. Pollak: I see, well, why don’t you go into that.
Judge Mi.kva: When it started out, !just assumed that once I was nominated by the
President, that was it. Ted Kennedy was Chairman of the Senate Judiciary Committee. The
Democrats controlled the Senate substantially. I was a member of the fraternity/sorority. I’d
been there, I knew many of the Senators by their first names. We had worked together on many
of the issues. I just thought it would be a piece of cake, and, indeed, every time I’d see one of the
Senators, I’d be teased. I remember John Culver, who was an old friend from the House days,
teased me. He said, “You know, I really need some restoration with my conservative voters.” He
said, “I think I’ll vote against you to show how I really can be objective.” I laughed and he
laughed. Ted Kennedy called me to congratulate me. He said, “You know it will be proforma.”
Actually, it started out that way. Bob Dole, I saw him.on an airplane, and he said, “You know
the NRA started to get on your case.” He said, “That’s ridiculous, you can’t judge a judicial
candidate by one issue coming before him” And others did. I really thought it was go.ing to be
easy. Pat, who was not as well known in the Senate, was rnnning into some difficulty mostly on
children’s issues she’d been involved in and I guess on some of the mental health issues where
there was this group of people who felt that we should not try to learn anything more about
mental illness than we already know. Treat people like animals, I guess. Anyway, she was
running into some difficulty in the beginning, perhaps more than I was. Then mine started to
build. At first, the National Rifle Association, apparently after some internal controversy,
decide d that they were going to make a showcase of my nomination, not really necessarily in
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order to beat me, but in order to send a message to all of the other Members of Congress that if
you took on the NRA and ever aspired to higher office, you could expect them to be your enemy.
They ended up spending over $1 million dollars to try to defeat my nomination. They really
turned around the process because it started out like it was practically going to be on the consent
calendar; and by the time it was over, I was barely getting out of committee, and the final vote on
confirmation was 58 to 31. I remember at one point Senator Thad Cochran, who is still in the
Senate, a Republican from Mississippi and an old friend, called me and said, ‘”You know, Ab,” –
I was at the Dunes – it was during the summer, ”right now the vote in the Senate Judiciary
Committee is eight to seven in your favor.” And he said, “I’m one of the eight. If you think I’m
comfortable, being a Mississippi Republican and the deciding vote for you, I’m not. Get off your
duff and get some more people supporting you.” The final vote, as I recall it in the Senate
Judiciary Committee, was nine to six. I didn’t get much help. I guess I had never realized how
tough the National Rifle Association could be when they really started leaning on some of the
people who had rural constituencies, real anti-gun control constituencies. Dole is an example.
After telling me how supportive he was – and in the Committee he was; he chewed up the NRA
something fierce. But by the time it came out on the floor, he not only voted against me, he
spoke against me. Orrin Hatch, who always was and is still a good friend, came to see me and
said, “If you need me, I will be there; but I have to tell you that there is just such pressure on me
to vote against you, that I really must do so.” And he did. Alan Simpson was another old friend
who ended up voting no. He still greets me by saying, ”It was the worst vote he ever cast.” But
on the other hand, considering all the times he disagreed with some of my opinions, maybe it
wasn’t so bad after all
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l\llr. Pollak: Were there other issues that fed into the opposition?
Judge Mikva: No .. The NRA tried to put together a coalition. 1bey went to the abortion
groups, the anti-abortion groups, who also had strong reason to be opposed to me; but Henry
Hyde who was a senior Member in the House told the anti-abortion groups that they were crazy
to get involved in that, that I was much more dangerous as a member of the House than I would
ever be on the Court and that they should just get out of that and they did. I had some very strong
allies in the House: Hemy Hyde, Bob Michel, who was then Minority Leader, came to testify for
me, Phil Crane came to testify for me. That chilled the NRA’s ability to put together a coalition.
You cannot underestimate how much that kind of money and the grassroots influence that they
had just influenced the state of affairs. They decided that in addition to getting people to vote
“no” against me because of my stand on gun issues, gun control, that they would try find some
other issues to try to bring up against me. One of them was that they insisted that my
appointment violated the Emoluments Clause, which was –
Mr. Pollak: You had voted to increase judiciary salaries?
Judge Ivlikva: I voted to increase judiciary salaries, not during the term for which 1 was
elected, but in the previous tenns, which is true. Their position was it didn’t matter what term, as
long as you voted it in a previous term, that was enough. I remember they came to, they decided
they were going to get some experts to come testify on that. They went to a law professor of
Northwestern Law School where my eldest daughter was a student. They had already been
turned down by the late Phil Kurland. They offered him $10,000 to come testify, and Phil said
he’d think about it. He didn’t. They came to this Northwestern professor. They offered him
$5,000 to come testify, and he originally said he would. Then his colleagues leaned on him I
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had taught at Northwestern, I had a daughter there, and his colleagues came and said it would just
be very inappropriate for a.member of the Northwestern faculty to come testify against me. So
he finally backed away and announced he wouldn’t do it. The NRA people were very irritated
because they bad already announced his testimony. He saw my daughter walking down the hall
one day and said, ”Mary, I hope you understand that I decided not to testify because ofmy high
regard for you, I hope you understand.” My daughter said, “Sure I do, you’re an SOB,” and
walked away.
Mr. Pollak: What do you recall of your hearing before the Senate Committee? Did you
have more than one? Were you probed substantively on your views of issues that might or might
not come before your Court?
Judge Mik:.va: I think the first time that I began to realize that the bloom was fading was
when Senator Kennedy called me about April or May and said, ”Hey Ab, I think we better put off
your hearings until the fall. We just have too much flak, and I think it will be easier in the fall.”
Well that caused me some concern because I thought that by that time I’d already be a judge. Pat
Wald came to see me just about that time, called me, and said that her hearings were scheduled
for July or June or something like that and that she was nervous about going in alone; and she
somehow thought if we had our confirmation the same day that she would gain strength from my
allies, and I would gain strength from hers, and that she was going to ask the Senator to put her
hearings off until mine. I said, ”Pat, I don’t know the Senate processes that well, but my instincts
tell me, you are better off going ahead and not getting caught up with my problems, if I bring
anything to the table at this point.” She was very reluctant. She finally agreed to it then. In
retrospect, it probably was good advice I gave her because she did run into flak and she did have
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some votes against her but she did get confirmed and, indeed, ended up with seniority on me as a
result. She became chief judge before I did. But that was the first sign of trouble.
Then the hearing itself, by that time my friends in the Senate had begun to take it
seriously. Kennedy, particularly, Senator Nelson, Gaylord Nelson, Paul Sarbanes, began to
realize that this was indeed a nomination in trouble. They started working the bushes and trying
to make sure that those votes that hadn’t been nailed down against me would support me. The
hearing itself was kind of as expected. There were a lot of questions about my position on gun
control Many of the most vigorous opponents didn’t show up. Some ofmy friends didn’t show
up either because they had decided that it would be better to help me by voting for me rather than
giving me help when I didn’t need it. The hearing itself, as I said, was pretty much as expected.
Senator Biden chaired the hearing, and it was very long. Dole was probably my biggest
supporter on the Committee. He kept asking the NRA witnesses if they really thought it made
sense to measure a prospective judge on one issue like gun control, all this kind of precedent to
set for the future, My daughters, who were all there, were ready to vote for Dole for President
right then and there, he was so supportive. But between the time of the hearing and the time of
the final vote, later on in September, the NRA had leaned on Senator Dole considerably. He was
one of the 31 that voted no.
Mr. Pollak: He was on the Connnittee?
Judge Mikva: Yes, he was on the Judiciary Committee.
Mr. Pollak: In Connnittee, how did he vote, he voted again.st you?
Judge Mikva: No, he voted for me.
Mr. Pollak: He voted for you in Committee. Well every vote that voted for you in
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Committee was pretty important.
Judge Mikva: Yes? and I never, you know, I wasn’t as upset with him as I was with some
others. I guess the one that disturbed me the most was Senator Church. Frank Church and I had
been old allies and friends. We fought the Vietnam War efforts together and a lot of other things.
He voted against me.
Mr. Pollak: He did, and he had a big NRA co nstituency?
Judge Mikva: Yes. He was up for re-election. He decided he couldn’t win if he voted for
me, but he didn’t win in any event. It is hard to judge those issues. Tue problem with singleissue
voters is that when it’s a close race, as bis race was, they can make a difference. My own
feeling is that most of the people who supported the NRA didn’t vote for him anyway – even
though he voted against me. But he lost his re-election effort anyway.
Mr. Pollak: Did the White House help prepare you for your hearing? That is a practice
which now occurs.
Judge Mikva: No, there wasn’t that much of it then, and besides, I was a member of the
Congress, and they probably felt I knew my way around. Bill Cable was part of the legislative
liaison team at the time. He was helpful, and they tried to visit all the Senators that were
marginal. They would have provided any help I needed, but it wasn’t the kind of thorough
preparation that now goes on when they prep a judge for the Senate hearings. The other thing I
remember is that in the floor debate itself – well there were two things about it, first of all they
had trouble getting a time agreement from Senator McClure, the Senator from ldaho. He would
not agree to a time agreement. A single senator can block a time agreement. Without a time
agreement, Senator Byrd, who was voting against me anyway, who was the Majority Leader,
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didn’t choose to bring it up. It was in the closing days of session in 79, and he didn’t want to
lock up the Senate with ho.urs and hours of debate about a judgeship which to him was hardly the
most important business of the country. So he told Kennedy that he had to get McClure’s
agreement. So Kennedy started negotiating, and finally the oaly way that Kennedy could get an
agreement from McClure was if Kennedy would agree to get me and Speaker O’Neill to agree
that a bill would pass that would give special standing to any member of Congress to challenge
the appointment of any former member of Congress to the Court of Appeals for the District of
Columbia Circuit, based on the Emoluments Clause. Now they missed my middle initial, but
other than that, it was as close to a bill of attainder as you can imagine. So Kennedy called me
and said, ”You know, we’re going to have to agree to this.” He said, ”I keep hearing from
Justice that legally there is nothing to worry about on the issue, but if we don’t do this, we are
never going to get Byrd to call your name on the calendar.” So I went to Tip O’Neill to tell him
the story that this was going to be added to the continuing resolution, that there was going to be a
rider with this language. Tip said, ”We’ll never agree to that.” I said, “Tip, if we don’t agree, I’ll
never be a judge.” I fmally persuaded him that we had to agree to allow it to happen, and that
rider went on the continuing resolution and became a part of the post-confirmation problems that
I had because two days after I’m confirmed, McClure did indeed file a lawsuit out in Idaho
challenging my appointment.
Mr. Pollak: He did? Did it come to a decision?
Judge Mikva: Oh yes. This was all in this little continuing resolution rider, that any
Member of Congress could bring it in any District Court within the area that he represented. He
could bring it out in Idaho and it would go to a three-judge court, which ended up being a plus
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for me, although I don’t think be realized it at the time. I was very concerned because I thought
that if it went to the District Cowt, it would be judges that be probably had a hand in nominating.
Well, it turned out that the three judges were two District judges, one of them a Roosevelt
appointee, one of the older judges, and the second one a Nixon appointee; but the circuit judge
that headed up the three-judge court was Betty Fletcher who was on the Ninth Circuit. I did not
know Judge Fletcher at the time, but I knew who she was. Anyway, she wrote an opinion that is
still used in teaching civil procedure because it has a lot to do with the law of standing. She said
that while Congress could create standing on certain kinds of issues, they couldn’t create
constitutional standing. She wrote that notwithstanding that provision of law, in the rider, there
was no standing for an individual to challenge the appointment of a federal judge.
Mr. Pollak: So she didn’t reach the merits?
Judge Mik.va: She never reached the merits. Tuey filed a petition for cert. and cert. was
denied. It was more than a little bit of worry to me because in the middle of everything, the 1980
election occurred and the Department of Justice changed hands; so I no longer had lawyers – my
appeal lawyers were, of course, still supporting the case – but the people in charge of making
policy at the Department of Justice were no longer friendlies; and I was always concerned that Ed
Meese might order the attorney who was handing the case on me to change positions. But he
never did. Finally, a year or two later, it was resolved in my favor.
Mr. Pollak: By which time, of course, you had been sitting for a considerable time?
Judge Mik.va: I’d been sitting. In fact, one of the things that I remember happened is that
the confirmation vote was on September 28 or 27th or something like that. The President has to
sign the appointment papers, and they weren’t being signed. Oh, before that, though, I remember
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that Kennedy, who by this time had begun to realize that this was a serious matter and the NRA
was being serious about it,.<J.Dd decided that we better start crossing all the T’s and dotting the I’s.
He called me up the day that the Senate voted and he said, ”I’m sending the confinnatioo up to
the White House right now.” I said, “Oh,” because I wasn’t focusing; I was so happy with the
vote. (Tape ends)
Mr. Pollak: You were speaking of the movement of the Senate Confirmation Resolution
from the Judiciary Committee, or from the full Senate, to the White House in relation to the
tactical concerns, I guess, about McClure’s suit.
Judge Mikva; Yes. Kennedy said, ”Now I want to make sure this resolution is out of
here because I don’t want rum holding it up by bis lawsuit.” And sure enough Senator McClure
filed his lawsuit the next day on the 28th, and one of the people he sued was the Secretary of the
Senate, and pa.rt of the immediate relief he sought was to ask to hold up sending the resolution on
to the President. Well, by that time, that horse had left the barn. I don’t think he ever asked to
hold up the President’s appointment as such, but. .. that’s right, he didn’t, because one of my
concerns was that he might go in for a TR.O. So two days passed and I still hadn’t been appointed
and I called my friends at the White House and said, ”What’s holding this up?” My contact said,
”Well, you know we’ve got this vote coming up on the Department of Education, and our
headcount is close so we want to make sure you’re there to vote for it.” I said, ”Bill, I might be
there longer than you think if we don’t get this done. I don’t know what Senator McClure is
going to do in that lawsuit, but he could go in for a temporary restraining order; and if he gets
some judge out there to issue one, you know the President may not be able to appoint me until
that thing is resolved, which could be forever. So he said, “Well, I’ll get back to you.” He called
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and be called over to the Justice Department and apparently they decided that my vote on the
education bill wasn’t that important. I think I had Tip O’Neil call over too. I did, bec.ause 1 went
to see rum and be said, ”1 don’t know why 1 should be helping them get rid of one of my good
congressmen; who knows who’s going to take your place?” Anyway, he did call and the
appointment came down on September 29. 1 immediately went over and took my oath
Mr. Pollak: You did?
Judge Mik.va: Oh yes.
Mr. Pollak: You had a swearing in here, was there anything?
Judge Mik.va: 1 did. When I finally got news that it was coming down that day, I went to
see the Speaker and said, “Okay I have to resign from the House before I can be sworn into the
Court.” O’Neil looked and me and said, ‘Well, don’t come to me with that problem, you didn’t
get here through me, and you can’t get out of here through me.” Sure enough, when I checked,
you resign to somebody in. your home State. In Illinois’ case, it’s the Governor; so I sent a
telegram immediately to Governor Thompson that I was resigning from the House effective
immediately; and I think I was sworn in originally at the Department of Justice. I can’t remember
who it was, but somebody delivered the oath and signed the Commission immediately so that
that was out of the way. From there, they were dealing with a sitting judge. Then I had a fonnal
swearing-in a couple of weeks later. In fact, Judge Wald and I had a joint swearing in because
she had been, even though she had been confirmed in the Fall, or the end of the summer I think
she actually took her seat in the Fall. We decide d to have our formal swearing-in together.
Mr. Pollak: I see. Was there anything of note at the formal swearing-in that you would
record? Any significant statements of your own or others who marked the occasion?
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Judge Mikva: No, I remember Senator Kennedy was there beaming. He had put a lot of
blood, sweat and tears into my confirmation. I don’t think so.
Mr. Pollak: All the way to now, there has been nothing that you thought you wanted, and
maybe you hadn’t focused on it, to put under any confidentiality stip until some later date. Of
course that is always open to you anyway as to the whole thing. I want to ask a question now
that, conceivably, I have no idea what the answer is, you’d like to avail yourself if you want to
answer. Toe lore is that you and Judge Wald had an agreement that she would step down as
Chief Judge if she ever became it and let you have a crack at it.
Judge Mikva: It wasn’t an agreement. This was a statement that she had made to me
when we first went on the court, long before … The myth is that we made this agreement to keep
Judge Silberman from ever becoming Chief Judge. Nothing could be further from the truth
because, when she volunteered this, her generous offer to me, Judge Silbennan wasn’t on the
Court and it had nothing to do with him at all; we had never even thought of what the pec1cing
order was, of who was next. But she, gracious person that she is, said to me at one point when
we were just sitting around chit-chatting and talking about the possibility that she was going to
be in line to become Chief Judge because I think Judge McGowan was only going to be there for
a short period and then Judge Robinson was going to be there for a relatively short period and
then she was next because the other people by that time were all over 65 and would not any
longer be eligible for the spot. She said, “Well, if I do, I’m going to make sure that I step down
early enough for you to get a crack at it too because we really are contemporaries.” I said,
”That’s very generous of you Pat. I don’t even know when that occasion will arise.” She said
‘Well, I just want you to know that if I beco me llief Judge and you’re still on the Court, I would
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step down to make sure that you get a crack at it,” and she did. I never called her on it
Obviously, it’s not som.etlllJ),g_ that I had any reason to call her on; she’s just a gracious person. I
think most people who know her realize that she did it because of the kind of person she is. But
it annoyed me that this myth was ginned up by mostly some of her and my right•wing critics who
insisted that we had made this kind of “devil’s pact” in order to keep Silberman. from being Chief
Judge. I’m sure, if we had thought about it, I might have urged it [humorously], but it didn’t
happen that way.
Mr. Pollak: Tell us about your early experience as a judge. Your first activities, whether
you went through any training, how you staffed your office. What was it all like?
Judge Mik.va: It was a complicated and confusing time.
Mr. Pollak: Right, it was 79 in the Fall?
Judge Mik:va: September 29, 1979, my Commission was signed and I immediately
moved over, started moving over to the Court. I had already resigned from Congress, as I had to,
and so I immediately took up Chambers at the Court. I remember I followed the tradition of not
even going over there until after the confirmation vote. I did occasionally see Judge Bazelon but
even then, I would be very ciicumspect. Usually we’d meet out of the building. I think I once
met in bis chambers. I was very careful not to be seen walking in because I didn’t want people to
assume that I was talcing this for granted as, indeed, I shouldn’t have. Immediately following the
confirmation vote, I went over and got with the Circuit Executive; and he showed me the
chambers I was going to have temporarily while they completed my regular chambers. I started
talcing on staff I brought over my two secretaries from the Hill. I had to scurry about and find
clerks in a hurry because, again, I wouldn’t have even thought about interviewing anybody until
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after the confinnation. I found three clerks. One I brought with me from the Hill; he had been
my legislative assistant, a Georgetown graduate, and he turned out to be a very good clerk. I
started gearing up for the first set of hearings, which I found to my amazement and a little bit to
my dismay that they had already penciled in Judge Wald and Judge Mik:va for that first round of
hearings. The first day I walked into the office there were cases, briefs there ready to be read. It
was a confusing time. I had done a lot of appellate work but always as a lawyer. The idea of
reading briefs not to figure out what was wrong with my opponent’s briefs but to read them to try
to get the real juice out of them and understand the case and understand how I was going to help
decide the case was a very confusing process. You really don’t know how to ask for help. I
would talk to the sitting judges, and they would all give me their slant on things but you don’t go
to a judge and say alright, I’ve got this case, how should I decide it? That isn’t the way the
process works. I remember some of the early advice I got from Judge McGowan, Carl
McGowan, for instance, who said that he tried never to lock into a position firmly until after oral
argument; that he would read the briefs always trying to keep his mind as open as possible
because frequently the oral argument gave him a different slant than the briefs did. I always
remembered that. I think one of the other judges taught me that he thought – oh I remember it
was Judge Leventhal – that he thought that some judges spent all their time trying to craft the
petfect opinion, and they didn’t spend enough time tbinkine about the case and worrying about
the case, and that he really felt that you should use the clerks a lot in the preparation of opinions,
but just make sure that they never took control of the opinion. Whether you wrote the first draft
or they wrote the first draft, make sure that you wrote the last draft. That was good advice that I
tried to follow. And then I remember Judge Wright just kept saying that the best job that
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anybody could ever hope to have was to be on the Court of Appeals for the District of Columbia
and that I should just enjoy_ tt and not worry about it. I do remember that one of the first batch of
cases that I was on was a case called Tygrett vs. whoever was then the Mayor. Tygrett was a
policeman who had called in with “blue flu.” He tried to start a blue flu episode in Washington,
and they had fired him. Toe police department had fired him It bad been up on appeal once
before, and the panel bad sent it back because of failure of proof or something, failure of the
process of the way they bad fired him. Titis was now up on its second time. 1bis time the
District judge had upheld the firing. It was up on appeal again. I was sitting with Judge Ed
Tamm, a distinguished member of the Court, and Judge Ed Lumbard, who was a visiting judge
from the Second Circuit, a senior judge. Both of them were considered very conservative judges,
especially Judge Lumbard. I think he had been an Eisenhower appointee, or something. Judge
Tamm.might have been appointed by Johnson but bad always been considered a part of the
conservative wing of the court. The more I read the briefs, and thought about the case, talked
about it with.my clerks, I felt that the city had again failed to do it the right way. It’s a very tricky
area, firing somebody because of their political activities or because of their speech; as you
know, there are First Amendment implications; if they were trying to fire him because of a failure
to obey orders or because of a breach of some disciplinary rule, they hadn’t established that in the
case. But, as I was thinlcing about getting ready for argument and thinking about the case, I kept
thinking, “this is awful, my very first case, and I’m going to end up writing a dissenting opinion,
and that really isn’t the way I want to establish my mark on the Court as a great dissenter.” I
wanted to show that I can be a part of the mainstream of this Court and to affect its decisional
process. I really kept brooding about it, and nothing during oral argument reassured me because
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the City’s counsel was very inept at the argument, whoever it was at the time. Tygrett’s attorney,
on the other hand, was very_good and very effective; and I could see Judge Lumbard scowling at
Tygrett’s attorney. I was just sure that meant that he was going to be strong for upholding the
dismissal and then I’d be writing a dissenting opinion. We came out in the conference room and
Lumbard either didn’t know or didn’t care much about our usual order for which judges went
first. Actually, I think, the visiting judge always did go first in conference. Anyway he said,
”Damn, we’re going to have to reverse those idiots again.” I was relieved and sure enough Judge
Tamm assigned me the opinion, and I ended up writing for a unanimous court.
Mr. Pollak: Did you have any formal training to be a judge?
Judge Mikva: Oh, we went to judges school.
Mr. Pollak: What was that?
Judge Mikva: The Judicial Center has a few lectures. Actually, it was kind of helpful. It
caught me up on a few areas that I had, indeed, lost track of.
Mr. Pollak: Substantive areas?
Judge Mikva: Substantive areas. What was happening in some of the habeas corpus
doctrine that had been developed, the Fourth Amendment literature that I had not kept up with
because during the time I was in Congress, it was not always at the top of my agenda. It was
useful in that respect. We had some good people there lecture us and so on, but it was still, when
you think about it, there is only one way to be prepared to be an appellate judge and that’s to just
be involved in as many different experiences in and around the law as you can have and try to
develop an appellate mentality. I always thought that Judge McGowan’s advice and Judge
Leventhal’s advice was very, very helpful in that respect: not locking on a particular position
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until you’ve heard oral argument, try to remember the lesson that the ground rules of this process
that you’re working on. ?t continued to disturb me as time went on and particularly as we got
some of the newer judges who had not had trial experience and had not been trial judges. One of
the things that Judge McGowan reminded me of was that there is a strong presumption in favor
of the District judge’s ruling, that the appellate judges aren’t there to hear the case de novo but
more than any formal distinction between de novo and appellate review, to remember that the
trial judge has not only heard all the evidence and seen the witnesses, but that he has really been
the only one to be able to consider the whole case, a holistic approach to the case, if you will. By
the time it comes up on appeal, you are seeing bits and pieces of it. Obviously, if the appellant’s
lawyer is a good one, he will single out those things that particularly were the weakest parts of
the trial; but as the Supreme Court has reminded us many times, nobody is entitled to a perfect
trial. There is no such thing as a perfect trial. When you don’t give the trial judge the
presumption of correctness, you end up losing that holistic approach to the case, you end up
deciding it on bits and pieces. Sometimes it is important if there is an error, a reversible error,
that in and of itself, no matter how good the rest of the trial was, you may have to reverse. But
on the other hand, the idea of giVlllg that weight to what the trial judge has done, I found to be
very, very useful advice.
Mr. Pollak: It is correct, however, that many of the cases you reviewed probably never
had trials?
Judge Mikva: That is correct.
Mr. Pollak: Never had witnesses other than paper witnesses? Did you feel differently
about those?
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Judge Mik.va: To some degree because those usually then involved more purely
questions of law or questio_q.s of law policy. Remember we’re the administrative court; therefore
a lot of the cases that came up would be agency review cases where even though there were
records and, oh boy, were there records in some of them, again it’s not quite the same as the kind
of presumption that you allow the trial court.
Mr. Pollak: How large was the cowt that you joined?
Judge Mikva: Eleven.
Mr. Pollak: Eleven.
Judge Mikva: Right.
:rvlr. Pollak: Do you want to name the people?
Judge Mik.va: Yes, to the extent that I can. Skelly Wright was Chief Judge. Harold
Leventhal was a judge. Carl McGowan was there. Ed Tamm, Malcohn Wilkey, Robb,
Mr. Pollak: Robinson7
Judge Mikva: Spottswood Robinson.
Mr. Pollak: Yourself and Pat Wald and then …
Judge Mikva: And then Edwards came on to replace Leventhal No, Ginsburg came on,
I’m trying to remember who Ginsburg, oh, Ginsburg came on. Bazelon …
Mr. Pollak: Oh yes, Bazelon was there. Was he on the court when you joined?
Judge Mikva: He’d just taken senior status before I joined. And Edwards took Bazelon’s
seat and Ginsbwg took Leventhal’s seat.
Mr. Pollak: I see, yes that’s it.
Judge Mikva: It was increased to 12 during my tenure.
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Mr. Pollak: You mentioned counsel and advice that you got from Judges McGowan and
Leventhal. Did you have iwqled.iate camaraderie with some of the judges?
Judge Mikva: I’d known Bazelon for a long time, so obviously I had camaraderie with
him. Judge Wald and I had gone through that same fire together of Senate confirmation, so we
became allies and good friends from the time we got on the Court. Judge Edwards came on
shortly thereafter, and it twned out we had a lot of common experiences. He’d started out his
practice in Chicago with a law fum two floors below the one I was with. They were representing
management while we were representing the union side, and on many occasions he had carried
bis senior partners’ briefs while I was carrying Arthur Goldberg’s briefs. Anyway, we became
good friends. Then Skelly Wright was, of course, he was a very outward person who was great.
Carl McGowan I had known from Illinois days. We had been managers of the Chicago Bar
Association together. So there was a good camaraderie, and I found that I learned a lot from the
judges – even from the ones I didn’t have a close person.al relationship with For instance, Ed
Tamm. who I grew to admire a great deal because he was a very courtly gentlemen, very set in
bis ways. He felt very strongly about certain things, but there was a great courtliness and civility
about him For instance, one of the things I learned from him- I had written in an opinion “the
court below,” which is a phrase that is frequently used in appellate literature. When I sent the
draft around (he was on the panel) he came to see me; he didn’t write back a memo or anything;
he came to see me and he said, “You know,” he said, ”I was a District judge and I always used to
resent it when appellate courts would talk about me as being below them” I never used that
phrase again. He was right. To demean a process that is really collegial and even though we are
a reviewing court, we are not superior human beings.
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Mr. Pollak: What kind of relationships developed with judges whose views generally
would be more conservatiV:? J?D. the legal issues than your own, if I could put it that way?
Judge Milcva: It isn’t necessarily conservative or liberal, as different than your own.
While a case is going on, if it is a hard-fought case, some of it spills over into, oh necessarily
personal relationships; the clerks get very feisty about it, and they argue about it when they go to
lunch together. The judges try to avoid talking about the opinion once they reach the point of
closure where nobody is going to change their minds. Tuey just don’t talk about it until the
intensity has faded some. It turns also on the writing style. There are some judges who will go
out of their way to avoid any kind of ad hominem invective, any kind of pejorative phrasing; and
Tamm was one of them He would never use nasty language. On the other hand, some of the
people who I was closely allied with up there would get so caught up in what they were doing
and saying that they wouldn’t realize that someone’s word.,; could bite very hard on somebody
who was disagreeing with them So that happened, but it turned out that I think the one
disappointment I had during those 15 years on the court was that the process of being a judge
does not allow for a lot of personal and social collegiality. There isn’t the kind of personal
bonding that I was used to in the Congress where you would build alliances and build allies and
you know you could rely on people. On the court every judge is expected to, and does in fact do,
their own processing of a case, thinking on a case. I developed a kind of ritual again and tried to
remember what Judge McGowan had said by keeping my mind open. I would resist talking to
the other judges and having my clerks commit me to any particular opinion or position until after
oral argwnent. So there isn’t a lot of getting together on a case. You don’t really, at least I didn’t
really, discuss the matter with the other judges until conference after oral argument. Then there
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would be this brief conference, writing assignments would be made, and from there on in, you
would be exchanging memp,s _with each other on the opinions. Since the work is a lot longer and
harder than some people appre ciate, there just isn’t a lot of time for schmoozing. There is very
little of the personal interchanges and exchanges that I was used to in the Congress. I think that I
found that somewhat disappointing.
Mr. Pollak: I don’t, however, have the feeling that you would call it a lonely experience?
Maybe I’m wrong about that?
Judge Mikva: No, partly because I refused to do what some judges do who really think
that they must break off all ties with any other, ahnost any other contact, other than fellow
judges. I always thought that was a misreading of the canons.
Mr. Pollak: In this early time or any time did you confront cases where it was really
difficult to make up your mind what was the right outcome and how did you deal with those if
you could generalize at all?
Judge Mikva: More often than one would think. I’ve always thought of myself as being
fairly decisive and being willing to live with consequences of decisions even if they are wrong.
But I was amazed at how many important cases came up that really were close. But when you
think about it, we were in effect the government court; frequently, not always, the cases that
came up involved important public policy questions or at least had public policy consequences;
and how they should be decided was a close question. 1 guess it made me aware of the fact that,
even though we’d been at this business for 200 years, there still were a lot of questions of the
Constitution and procedure and substance that there really are n’t precedents for. I still remember
a case involving a criminal law issue in which our court had taken a position many, many years
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before — an opinion that Judge Bazelon had written which had been disagreed with by every
other circuit in the country .. We had held to it, and the Supreme Court had never granted
certiorari. At one point, I think it was Judge Scalia who came to see me and said, ”You know,
after a certain number of years while we’re out in a different orbit than everyone else, we’re not
doing the law any good by staying out there. It is a settled question every place else. We really
ought to get in step with everybody else rather than have this important question turn on where
the suit arises.” I thought about it and thought about it and realized be was right and that even
though on the merits I probably leaned more toward the decision that was the precedent in our
circuit, that unifomrity was more important than our marching to our own drummer. I remember
that whoever our third colleague was very angry with me because I left the fold on that one and
joined Judge Scalia
Mr. Pollak: Can you recall the issue?
Judge Mikva: It bad to do with whether the government can rely on matters that come up
during the defense’s testimony in terms of whether or not to grant a motion to dismiss. If the
government has not proved its case on direct, can the trial judge rely on things that come up
during the defendant’s testimony to fill in whatever was missing in the government’s case?
Every other circuit had said yes the judge can. We had said no. There are good policy arguments
on both sides, particularly since most judges, as you know, in everything except the very clearest
of cases, postpone making a decision on a motion to dismiss until the close of the case. It’s very,
ver y seldom that a judge will grant a motion to acquit or direct a verdict in a jury case after the
close of the government’s evidence. Usually they’ll say, well, let’s bear the defense. The result is
that frequently the defense in order to put in an appropriate defense has to refer to elements or
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open up areas that didn’t get covered in the direct, the government’s case. And so you could
argue that it’s giving the government an unfair second bite at proving its case by letting the trial
judge rely on evidence that comes out during the defense that wasn’t there during the direct
presentation. On the other hand, if it’s not a game and we’re really talking about getting at a just
result, why shouldn’t the trial judge be able to consider all of the evidence before him in deciding
whether or not there should be an acquittal? So argue the policy ahnost every which way around
the horn. I do remember at the time I was very much tom, and I knew that I agreed with Judge
Scalia in the end. There are lots of cases like that.
Mr. Pollak I would think so. What were your, what work habits did you begin with as
you got on the bench?
Judge Mikva: Well, I remembered some of the things I had done and some of the things
that I had complained about when I was a law clerk, so I tried to remember them even though
they had been a good many years ago, and allow for them in developing my relationship with my
clerks.
Mr. Pollak: Like what?
Judge Mikva: Like insisting on a complete bench memo before I even started to read the
briefs. Justice Minton had insisted on that, and the result was that it made the clerks very much
involved with the case from the beginning. Even if the Justice didn’t agree with our
reconnnendation as clerks, we were very familiar with all the arguments plus or minus, for and
against, so we could discuss them with the judge and tell him why we recommended what we
did; and he didn’t have to rely on his reading of the briefs de novo to start to form a view. So I
insisted on that, and more and more of the judges dwing my tenure on the Court left that practice
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because the clerks were now into so many other things and they just didn’t think it was that
worthwhile for the clerks to. use up so much of their time doing bench memos. But I insisted on
it. I really wanted a detailed bench memo about every case that was going to be heard before I
started reading the briefs, which also meant that they had to get them ready a substantial number
of days before because I needed time to read the briefs. I insisted on having them ten days or two
weeks before oral argument; and so my clerks, as a result, were on a much more time sensitive
schedule than the other clerks. But the result was that I could read the briefs against the bench
memo, and I found that it was a lot easier and quicker to read the briefs because I could skip
through the stuff that wasn’t important and get to the chase in a hurry and start to ask why did the
clerk recommend we do so and so. Then the discussions I had with the clerks about the case
were much more useful because I could say, “What about so and so; what about this case? Why
isn’t that controlling there?” It gave me much better preparation for oral argument than afterwards.
Then the bench memo, if I ended up writing the opinion, was a great jumping off point
for the opinion itself.
Mr. Pollak: What other, any other work habits that you found? What kind of days did
you put in, what kind of hours, what kind of weekend?
Judge Mikva: The days were as long or longer than when I was in Congress, but they
were much more re gular. The time was orderly.
Mr. Pollak: You didn’t need the idiot card?
Judge Mikva: Right, to remind me of where to go and what to do. I remember seeing
Speak.er O’Neill (I think I mentioned this story already) at a reception shortly after I went on the
Court.
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Mr. Pollak: No, I don’t think you have.
Judge Mikva: He asked me how I liked it. I said I was enjoying it, and I told him about
the orderliness, and I said, “You know something, Tip, every month the clerk sends around a
memo asking what days we’re available to sit?” Th.is was before we went to a computerized
calendar drawn up month-by-month. I said, “It’s nice, if I tell them I’m not available on such and
such a date, he arranges that I don’t have to sit on that day.” I said, ”You know all the years that I
was in Congress, you never once asked when I was available to vote.” He laughed and said,
”Considering the way you voted sometimes, I wish I had.” There was just an orderliness to the
Court, and I could take off a day to do something else or concentrate on something that I wanted
to do. If I wanted to go off and give a speech some place, I could do it. There was a lot less
waste time. Plus the fact that I found it nice to be able to work at home when I wanted to and, of
course living as close to the Court as I did, I could go there after dinner if I wanted to for an hour
or two or bring some stuff home and go back and forth. It was sort of what I thought was a
gentleman’s practice — the kind that I never had when I was practicing law and that I certainly
never had when I was in Congress.
Mr. Pollak: Would you confer with the clerk who prepared the bench memo before
argument? or all three clerks or four?
Judge M:ikva: Almost without exception I would confer with the clerk who worked on
the bench memo on that case; and there would be long conferences or short conferences
depending on how complicated the case was, how good the memo was. Sometimes the clerks
would complain that I would barely confer with them; and I would laugh and say, ‘That’s
because the memo was so good.” Why gild the lily? Then I developed a practice after I came
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back from conference. I remember that one of the things that had frustrated me when I was a
clerk was that Justice Minton would come back and he would tell us a little bit about the cases
that he had been assigned the opinions to because one of us was expected to draft the opinion;
but he would never give us any of the gossip or any other things; and I always thought how much
fun it would be if he had. The conferences seemed very mystical – like in the Supreme Court. I
bad seen the Supreme Court conference room empty but obviously none of the clerks had ever
seen the conference room with the conferences going on, which is similar on the Court of
Appeals. When the judges are deciding on a case that was to be resolved, only the judges are
present. In fact, in the Supreme Court it is a tradition that if anybody needs anything, the junior
Justice goes to answer the knock at the door, and the person gets whatever is needed. So I had
never been inside a judicial conference; and I could hardly wait to – and, as I said, Minton had
never given us any of the gossip about what went on there – so I could hardly wait to see what
really went on in the conference of the judges on cases. The conference on the first set of
arguments that I heard caused me to be anxious and curious as to what was going to happen. The
presiding judge said, “Okay, let’s start discussing the cases. By the way is Congress going to
bring up that pay raise this year?” which was a little demystifying. But anyway when I came
back from conference, I would sit down with the clerks; and the understanding was that no matter
how late we went in the conference past the lunch hour, that I preferred them to stay and I would
go over all of the cases – not just the ones that we were to write – and give them a very good
summary of what went on and who was in what position and what was behind it.
Mr. Pollak You’re talking to the clerks about what went on in the conferences.
Judge Mik.va: I would summarize all the cases and what was discussed and what the
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decision was and who was writing it and who was dissenting and so on. Then I would prepare
post-conference memos, which I would send around to the other judges – this is when I was
presiding judge, as senior member or Chief Judge. I would send around these post-conference
memos to the other judges summarizing what we had agreed to, who was going to write and what
the basis of the opinion was. Even before I was the presiding judge, I would do those memos for
my internal purposes so the clerks would know what had been agreed upon. Because I found that
one of the things that had happened when I was clerking on the Supreme Court is that judges
frequently change their minds, which is fine. They should. They shouldn’t be stuck with a wrong
decision just because that was the way you came down at the conference, but if there isn’t some
kind of a memo as to what was agreed upon and who was where, they end up frequently blindsiding
their colleagues. I remember that it was a frequent source of gossip on the Court as to who
was mad at who at the Supreme Court because so and so had said they were on such and such a
side and all of a sudden they end up voting the opposite on an opinion. And I would see that
would happen on our Court every once in awhile, and I just found that it was easier if everybody
knew ( or at least I knew) where everyone said they were so if they changed their minds, it’s
identified as a change of mind rather than just a slide-through. It happened more than one would
expect. Judges do change their mind when writing an opinion. I found that one of the phrases I
learned to use and learned to appreciate when other judges used it was to start off saying at the
top of a draft of an opinion, ”It just doesn’t write the way we agreed in conference.”
Mr. Pollak: Did you go on the bench after your preparation with the mind that Judge
McGowan counseled you to have but with identification of a crux issue or perhaps some preprepared
questions?
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Judge Mikva: I wouldn’t always write down the questions, I wouldn’t always think
through what the questions .were, but I usually did try to prepare them in my mind. First of all, I
continue to believe that the Holmseian model of what an opinion ought to be is, especially an
appellate opinion. The opinion ought to be, as often as possible, a single-issue opinion if it is to
perform the work that an appellate opinion is to perform as a precedent, as a teaching tool, as a
guidance to the bar; it ought to confine itself as much as it can to a single issue. Covering the
waterfront, reinventing the wheel in nearly every opinion not only clutters up the law and
confuses the law, it is not useful for any of those purposes that I described. If all you are doing is
deciding the case and satisfying the parties on both sides, don’t waste all that time putting in a
formal written printed opinion Give them an oral decision from the bench and let them ask
questions about it, modify it as you go along. But if you are talking about something that should
be the law of the land, a precedent for future cases, it should be a teaching tool to provide
guidance to lawyers and litigants for future cases. The clearer it is, the more precise it is, the
more specific it is, the better off we are.
Mr. Pollak: Do you have more to say on this focus on a single issue?
Judge Mikva: That’s always very hard to get the parties to do, the lawyers to do, because,
first of all, especially if the lawyer has tried the case in the trial court or before the agency, he or
she is still all hung up on the evidentiary errors that the trier of the facts made and all of the other
things that go on in the trial or the presentation of the case before an agency. I remember how
hard it was when I was doing appellate work as an advocate to put all that stuff aside and say,
“Okay, I’m going to forget about the fact that the judge was cock-eyed wrong on all of the
evidence that he excluded and all those other things that he or she did, and I’m going to
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concentrate on the one big issue of the case.” So, as I said, it’s very bard to get the lawyers on
oral argument to limit theqll>?lves to a single issue, but I would try to focus on whatever the issue
was that I thought should resolve the case as much as possible and point my questions there. It’s
easier said than done when you’re dealing with a collegial panel of three judges who have their
own beliefs about what the important issues are and what their questions ought to be. I’m sure
early on J asked too many questions, J probably too often badgered the lawyers about things that I
didn’t need to ask them about and I hoped as I became a more mature judge, I limited my
questions to those things I really needed to know. On the other hand, I always thought that
lawyers, good appellate lawyers, should appreciate an active bench There’s nothing worse as an
advocate to stand up there and have the three judges just sit there and ask no questions.
Mr. Pollak: I’m with you on that. How significant to you was your experience as a law
clerk as you then became a judge?
Judge Mikva: It was very significant. First of all, it had been my first exposure to the
way the court system really worked, as seen from the inside. Of course, I saw the Supreme Court
from the inside – it was very significant. But, secondly, it identified for me what the ingredients
were for a good relationship between clerks and judge, and I got to see some of the collegiality
that judges on the Supreme Court had for each other. I was always very impressed that Justice
Minton and Justice Douglas were good friends even though they didn’t always agree with each
other on the way the cases came down. They were good colleagues, and they respected each
other and dealt well with each other. I tried to develop those relationships on our court, as far as
I was concerned; and, with very few exceptions, I think I was successful and it makes a
difference. It’s one thing to disagree with somebody and feel that they are wrong about an issue
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or haven’t seen an issue in the right way. It’s another to not have any confidence in the way that
judge is coming out or that mere’s not enough integrity in the way that judge is deciding cases. I
felt that the collegiality and the civility that I saw when I clerked on the Supreme Court among
Justices who disagreed about many, many things was something that was worth emulating. I was
pleased, as I say, with very, very few exceptions, with the relationships I had with those on the
Court. It wasn’t always thus and there were exceptions even when I was there, but most of the
time the judges could disagree without being disagreeable. I have a very strong warm feeling
about Judge Buckley. We probably voted differently more often than any two judges on the
court, but I respected his integrity, I respected the honesty of his views, and I always felt that
what I saw was what I was getting as a judge.
Mr. Pollak: Is there a freshman period for a new judge?
Judge M:ikva: Yeah, they call us baby judges; and I don’t know when the freshman period
ends or when it doesn’t. It probably has to do with when somebody junior to you comes on the
court.
Mr. Pollak, I see.
Judge Mikva: I remember Justice Minton used to complain that he was a baby judge on
the Supreme Court for a long time because it was quite awhile before someone came out to be
junior to him In my case, it wasn’t very long at all before Judge Edwards came on the Court and
Judge Ginsburg; and so Judge Wald and I evaded our baby judge status fairly early. But even so,
I guess the part of being on the court that remained enjoyable even after 15 years was that I never
stopped learning something new about the job or about the judging process. There weren’t many
boring days.
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Mr. Pollak: Were there any rules of the game that were prevalent in the Court that aren’t
written down anywhere but .tJ:iat you needed to comply with – unwritten rules of the game?
Judge Mikva: Let’s see. Now Judge Bazelon had been very strong and written several
opinions about what he called “secret law,” what you just mentioned as rules or doctrines that
governed the way the cases were decided that weren’t known to the public. I think all of us were
very sensitive to that charge and tried to avoid having any secret law. There probably were
behavioral rules that we followed toward each other. For instance, on the bench, we always
addressed each other as Judge so-and-so, never by first names, and, hopefully not using any
expressions or body language that would suggest our emotions about a particular judge’s
questions, about a particular judge’s position. I think most of the time there was an awareness
that, for some of the lawyers, this was their first exposure to the appellate process, that the judges
ought to remember that they’ve all been there themselves in one way or another. In some cases
that are important, the emotions run so high that we forget that. I remember on two occasions at
least, lawyers fainting – one case involved a fairly senior lawyer who was getting so consumed
and bombarded by questions that he found his cure.
Mr. Pollak Wow.
Judge Mi.kva: But most of the time, judging was an ongoing learning process, oral
advocacy is an ongoing learning process. Generally you tried, I guess was a rule of the game,
you tried not to make too clear your tilt on a particular case and how you were going to come
down, partly because, frequently after conference and after exchange of drafts of an op.inion,
you’d change your mind; and the less you’d identified yourself publicly as having been on one
side of the issue, the less embarrassing it was to back up. I’d say those were some of the rules I
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can think of. There was a feeling that judges ought to be discreet about the Court’s business and
not talk to the press.
Mr. Pollak: Talking to the press. ..
Judge Mikva: Occasionally when I was chief judge, l would talk to the press about some
matter of court-wide procedure but other than that, we didn’t discuss cases. I mentioned before
that I didn’t think that a judge ought to totally disengage from all personal relationships, but you
tried to be discreet about what you were doing and use some common sense. For instance, if a
lawyer had an oral argument coming up in my court, I would hope that he or she would have
sense enough not to ask me for lunch until after the oral argument. In any event, if I knew one
was coming up, I would just not think about having lunch with that lawyer until after the oral
argument. The same was true with other kinds of contacts. I still start out every morning in the
House gym to do my physical exercise and Judge MacKinnon, when he was alive, was also in
that same regimen. I could see, for instance, when he was involved with something involving the
Independent Counsel or when Congress was discussing amendments to the Independent Counsel
statute why he would just disengage if anybody started to talk about amendments to the law or
what some Independent Counsel was doing. He would disengage. Similarly, if I was involved in
any case that some particular congressman had an interest in and started talking about it, I’d just
avoid contact with that person and make sure I wasn’t in any kind of conversation with rum It
isn’t that Judge MacIGnnon was going to be brainwashed by any congressman or tip his mitt,
while he was Chief Judge of that Special Counsel Division, or that I would be overwhelmingly
influenced by something that a congressman said; but there is an appearance problem, and, I
think, that most judges try to take that into account with their personal relationships.
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Mr. Pollak: I had kind of a concluding question about the beginning of your judicial
service. Would you remarlc. on the comparison of your early years as a Judge with your later
years a s a Judge?
Judge Mikva: I continue to remember that there was not a lot of personal social
:interchange the way there was :in Congress where the people who were your close allies on issues
in Congress were frequently, at least in my case, were also very close personal friends. There
was that group of Congressmen that I mentioned to you before: Kastenmeyer, Burton, and
others. There was never that on the Court but, when I first got here, especially having heard all
these temDle stories about the friction between Chief Justice Burger and Judge Bazelon, I Was
pleasantly surprised to see how collegial the relationships were. There was a little bit of friction
every once in a while. Judge Bazelon, as you know, could be a very stormy character, but
notwithstanding, even as the Court began to change ideologically with some of President
Reagan’s appointees coming onto the Court, like Judge Scalia, Judge Bork, Judge Starr, the
collegiality remained. Part of it was because of the personalities involved. Justice Scalia, as you
know, is a very gregarious person. He is always great fun to be around.
Mr. Pollak: He has a sharp pen, though.
Judge Mikva: He has a sharp pen. It, unfortunately, has gotten sharper since he has been
on the Supreme Court.
Mr. Pollak: It appears so.
Judge Mikva: It really has. Also, his view of dissenting opinions has gotten more
vigorous on the Court than it was on ours. On our Court, while he wrote some dissents, he didn’t
feel that that was a unique role that he had to play. I think he more felt on our Court the desire
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and the advantages of trying to help make a court. Maybe it was because it was only three people
rather than nine, or maybe ??ause our cases just involve these burning controversies on which
be feels so strongly. But, on our court I don’t remember him having that sharp a pen or being on
so many dissenting opinions. Judge Bork and I were classmates. He was also a very good
colleague. We were good personal friends as well as colleagues. The result was that dwing the
early years on the Court – with Judge Wright, McGowan, Bazelon, and later on Bork, Starr and
Scalia – there was a lot of collegiality. When we had disagreements about the way the Court
should run, they were usually resolved amicably without it boiling over into personal emotions. I
remember at one point one of the judges clearly was not capable of sitting on cases and either
Judge Bork or Judge Scalia came to Judge Wald and me and told us we really had to do
something about it, because they didn’t want to make a formal compl8lllt if they could avoid it.
We engaged in one of those missions that Justice Holmes has described; we had to persuade the
judge to stop sitting on cases; but it was done in a very collegial way without any animosity or
bitterness. I think I described earlier the way in which Judge Scalia came and talked to me about
our criminal law precedent, when we were the only circuit adhering to it. I always had this
feeling that the personal relationships were friendlier and more collegial than later on.
Mr. Pollak: That changed later?
Judge Mikva: It changed.
Mr. Pollak.: Any other differences? I mean, are there differences in approaching the
issues? Does the judge have his own jurisprudence so more of the issues are dosed out as you
serve longer?
Judge Mikva: To some degree. I think what happened is that the reputation of the Court
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began to change. There was a time when we were known as this very pro-labor Court, where
unions and, to some degre?. the National Labor Relations Board used to fight to get to our
Circuit I wrote a very sharp decision complaining about the race to the courthouse, about who
got to file first and how nasty it was and closing up some of the av enues. Some of my good
friends were dismayed that I had written what sounded like such a solid anti-union opinion. But,
in fact; unions were determined to try and take advantage of our pro-union reputation and, in fact,
as the years wore on, we weren’t so pro-union any more. More and more the decisions began to
go against the Labor Board and against the unions. Part of that was, I think, that the national
jurisprudence changed because of the Supreme Court decisions; the law changed slightlyCongress
had made some amendments to the law – and ·the personnel at the Court changed. You
replace a Skelly Wright and David Bazelon with a Larry Silberman and a James Buckley, and
you’re not going to get as sympathetic an attitude about union grievances and toward the Labor
Board that you had before. AB far as judges developing their own jurisprudence, some judges
were known for having expertise in certain fields. Judge Edwards obviously had expertise in
labor issues because he had taught the subject at Michigan for many years and was involved in
labor arbitration. Judge Randolph had done a lot of criminal work in the Courts of Appeal in bis
practice years. The panels are always chosen by lot, so that there is no way for judges to
volunteer for a particular case or a case being assigned to a certain judge because of his or her
expertise. Secondly, I don’t think that anybody on the Court, certainly not the chief judges in my
circuit, thought it a good idea for judges to become specialists. We were a court of general
appellate jurisdiction and that was what they were trying to be.
Mr. Pollak: I think there was sort of nosed around in Chief Judge Bazelon’s time the idea
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that he jimmied around the panels?
Judge Mikva: He i;t?? to delight in that rumor because, you know when I got on the
Court, he said, ”You know you have seen the process. It’s impossible for the Chief Judge to rig
the panel. But I love the fact that people thought I had that land of power.” He said, “And even
Burger thought I somehow rigged the panels and he was here and knew better.” He said, “What
it was, and you know that frequently I would have an issue in mind that I thought needed to be
resolved and I would wait for the case to come along that had that issue in it, that I was on the
panel on, and then I would just make that the issue of the case.” And it’s true, because I looked
over some of the cases that he was most noted for and that were the most notorious of his tenure.
It isn’t that he rigged the panel; it’s that he elevated the issue to be the top issue in the case. I’m
trying to remember one marvelous example of it in a case that he ultimately lost in the court. He
could persuade the original panel to stay with him, but then he was overruled in an ? bane
rehearing and then subsequent panels wouldn’t stay with him It had something to do with
whether or not you could judge people by the same standards even though their IQ was
substantially below the nonnal. It was very much a case of trying to say that the people would
have a different responsibility for observing the law, be subject to a different treatment under the
law if they were retarded and changing the standard. Right now, as you know, mental retardation
is not a basis for diminishing the responsibility or even diminishing the punishment unless you
can actually show insanity. All these other factors cannot be taken into account except maybe at
the discretion of the judge on what kind of sentence he or she applies, and there are various rules
and guidelines. Bazelon was pushjng this notion that you could take it into account even though
it didn’t come up to the level of insanity. It was a variation on bis old Durham case.
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Interestingly, you look at the case and it was just a run of the mill criminal case. He reached into
the record and found the fa,c;t_that the person had a marginal mental ability, and be made that
issue the case. It wasn’t that he had assigned himself or had got the case particularly to him
because it bad these issues. They bad never been raised.
l\1:r. Pollak: Does the Chief Judge have any role that might influence outcome of cases by
taking in or selecting the visiting judges?
Judge Mikva: Yes, and that was a role that the Chief Judge bad. Unfortunately during
Judge Wald’s tenure, the majority of the Court decided they didn’t want to use visitors very often.
I objected to our using District judges any more often than we had to because it’s very bard for a
District judge from the same court to come up and sit on appeal and review bis or her peers. It
just didn’t work. Even if they agreed to overrule or to reverse their colleague, they couldn’t do
the writing of the opinion. So, I objected and Pat agreed with me on this that we should not use
District judges any more often than necessary. During Judge Wald’s tenure, the majority of the
Court tried to take away the power of the Chief Judge to invite visitors except by making them
subject to some kind of a screening process which would have made it impossible for us to get
the visitors – sort of a :fraternity hazing process. So then it just got to the point where we stopped
having visitors – we didn’t use them very often at all. So there was that power. The only other
power that the Chief Judge had was when in the majority he or she could assign the opinion
either to themselves or a colleague. But that was not that great a power because the senior jildge
on the panel could do that. By the time somebody became Chief Judge, they were usually pretty
senior anyway. Long before I was Chief Judge, I was the assigning judge on ahnost all the panels
on which I sat. It was only when I sat with Judge Wald that I didn’t get to assign the opinion.
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Mr. Pollak: What in your view makes a well-crafted opinion?
Judge Mikva: It shquJd as much as possible be limited to a single issue. It should recite
enough facts to make it understandable and make the issue that you’re deciding applicable for
future cases; but, on the other hand, it should not recite so many facts that it makes the opinion
intolerably long and, more important, so many facts that it makes it too easy to distinguish as a
future precedent. A good precedent is one that can apply to a lot of cases. If you put too many
facts in there that future advocates can distinguish it by saying, that was a blue card, this is a
yellow card, as a precedent it’s not as useful. It should be short. I think nothing has done more to
harm the appellate jurisprudence and law school teaching than the length of opinions. The
reason why the Holmes opinion is still such a great teaching tool is that it is one issue, and it is
short, and law school teachers can put the whole opinion in their casebooks; they can assign ir as
an assignment and the issue can be discussed and exemplified. Those are the kinds of things that
Langdell had in mind when he first starting advocating using opinions as a means of teaching law
rather than teaching by the black letter rules. But when you start out with today’s opinions, which
sometimes have their own indices they are so long, by the time a law school textbook writer is
through cutting it up, you might as well go back to a black letter rule as a way of teaching. So,
therefore, legal opinions are just nowhere near as useful as teaching tools as they were during the
Holmesian era. But, secondly, they are not as useful in settling the law, in establishing a
precedent. If there are ten issues, who knows what issue is really the ratio decidendi of the case.
I resent the criticism that is made that law clerks seem too influential in the judicial process. I
think the influence they have is a needed and useful influence except when they are allowed to
ramble on all the issues that are covered in the op.inion. That’s one of my objections to the use of
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footnotes. One of the ways we end up in all of these unnecessary pastures is that footnotes
frequently project issues into .the case that don’t have to be there. What happens when the
opinion has been crafted and there’s an argument going on within the judge or between the judge
and the clerks as to whether or not this issue needs to be covered or :not, it’s too easy to say,
”Well, let’s put it in the footnote.” That’s how footnote four in Carolene Products got in and
ended up creating a whole piece of jurisprudence about disparate impact; that issue shouldn’t
have been decided in that case and probably, not probably, definitely shouldn’t have been decided
in a footnote. So I used to resist footnotes on the theory that it was a way of keeping the opinions
shorter and cleaner. And I used to talk to my law clerks about it because they’re so used to
footnotes.
Mr. Pollak: Is it responsible for a Judge to have their law clerks write the initial drafts of
the opinions?
Judge Mikva: Oh sure. I think that is one of the great silly arguments that go on in the
discussion of appellate jurisprudence – the notion that the judge must be responsible for initially
writing every word of the opinion. In the first place, if the judge insists on writing the first draft
all the time, in many ways it is the eas iest way to lose control of the opinion. If you’ve written
the first draft and it’s gone through eight or nine or ten drafts, and the clerks are constantly giving
this suggestion and that suggestion – by the time it reaches its final stage, the judge is so tired of
it and has so lost bis or her perspective, that control frequently is lost. I always found that I didn’t
care who did the first draft. Some of the time I had the clerks do the first draft. Sometimes I’d
write the first draft. But I wanted to make sure that I still felt enthusiastic about the opinion and
fresh enough by the time it got to the final draft. That’s where my work counted. There were
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never questions, when push came to shove, about whose opinion it was. There were occasions
when I would have to tease.a_ clerk, saying, ”You remember, the commission runs to me; it
doesn’t say or his clerks.” The judge should be able to feel that strongly about an opinion and
what’s in it at the end of the day and not feel so bored and jaded about it that he’s not in control.
Mr. Pollak: What are your views about resolving cases by unpublished opinions? And is
that still going on?
Judge Mikva: Oh yes. It’s as controversial as ever. The argument has to do with whether
or not the Court should publish an opinion which they know about and which some law firms
know about but most law firms don’t know about, and, if so, what weight should that opinion
have as far as future precedents are concerned. Now, as far as I’m concerned, it’s the closest thing
to secret law that I can imagine that Judge Bazelon used to rail against – the idea that you would
have an unpublished opinion that would, in fact, govern future conduct of the Court. So, I felt
strongly that, okay, we have to have them because of the volume. The only excuse for having
them is that there are just too many appeals being filed. I know Judge Silberman thinks that the
judges aren’t worked hard enough at this point and that we have too many judges. I never found
that to be the case. I think most judges, if asked candidly, would say that there are an awful lot of
cases being assigned to each judge; and there is no way every one of them can get a full scale
precedential opinion. Well, you can resolve that problem one of two ways. One, you can just
decide the case completely without opinion, just say ”You win.” I think that is less satisfactory
to the parties than giving them some explanation of reasonableness. Besides which, I think,
judges owe that responsibility to the parties involved to explain how they got there, that they
didn’t just draw straws, that there was reason to their opinion. On the other hand, there is no way
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that a judge, or a group of judges, can devote the kind of time necessary to all the cases that are
heard on appeal that are resolved through an opinion that can be used as precedent for future
decisions. The solution, therefore, is to come up with these unwritten opinions but with the
? that the bar is very unhappy about – that it cannot be cited and cannot be used as precedent
for future cases. It’s the only way that we can resolve the dilemma of the amount of work there
and the amount of time the judge has to devote to it. It’s a very unhappy answer to most
practicing lawyers, as they see it. They can get hold of the unprinted opinions, of course. If they
see one that is right on target, it hurts to be unable to cite it.
Mr. Pollak: The Circuit has, as you’ve remarked, a heavy diet of administrative agency
cases – appeals from them-· sometimes directly to the Court of Appeals, big records. Did you
take a different approach to those cases than you took to other cases which had smaller records
and came from different sources?
Judge Mikva: They were harder to handle, partly because of the size of the record and
partly because they usually .involved more important issues than who gets a particular pot of
money; they usually involve substantial public questions of great moment. So they were harder
cases of more consequence, and they were harder to handle because of the size of the records.
On the other hand, it’s one of the reasons I wanted to go on that Court because it is a public
policy court – it is the government court. I always felt that it was involving the same kind of
process with which I was .involved in Congress, but only from a different end of the telescope. I
probably read as many congressional records when I was on the Court as I did when I was in
Congress, but they were older. I loved those lcind of cases – actually, I’m not sure my clerks
always did. The reason I did was they always had very important public policy consequences.
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Mr. Pollak: But the process of dealing with them was similar to the other cases?
Judge Mikva: Yes? J ?idn’t want to read all those records if I didn’t have to. I wanted to
make sure, though, that the clerk read everything in them and make sure that I was aware of all
the important matter that was in the record; that meant long bench memos to write, bench memos
that required prep time to get ready to sit on a case.
Mr. Pollak And for some reason, they had to be longer opinions too. Often?
Judge Mikva: Yes, though, again, I think that sometimes we were misguided in our effort
to cover every issue. Part of it was the judges felt, with some degree of reason, that they had to
cover all the issues that the parties raised because that’s the way the Court of Appeals should look
at it on review or that’s the way the agency would look at it later on. My own feeling was that we
would probably be better off sometimes not to be quite as diligent in resolving every issue that is
raised.
Mr. Pollak: One practice which went on while you were on the Court, o r perhaps during
your Chief Judgeship too, was to divide up the opinion writing in those cases and put them out
essentially per curiam.
Judge Mikva: It was, again, sometim es necessary because the cases were so convoluted
and complex. I never liked it because just as I indicated before that I favored the holistic
approach to the way a trial judge handles a case, I favored that on appeals as well. The idea of
several judges writing and dividing up the issues – frequently, it would come out looking like
conflicting opinions; you’d have trouble reconciling different pieces of it or reconciling different
writing styles. For instance, l w ouldn’t use footnotes, so when I was involved in one of those, I
produced a piece of the opinion that had no footnotes. When Judge Robinson was involved, his
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piece had more footnotes than text; they looked awkward, and they were awkward. Sometimes,
again, the cases were so ?i;nplex, there was no other way of doing it, but I was never comfortable
with it.
Mr. Pollak: You commented that, in yom view, the judges had a full diet of work I
intend to question you about your Chief Ju dgeship sort of separately, maybe we should just
reserve this for that time; but I was going to pose a general question about responding to
overloaded dockets and what your reactions to that are?
Judge Mikva: There were times when I was on the Court when we were falling
substantially behind. It had to do with the amount of time the judges were taking to write their
opinions because the judges can aJways control how many cases they hear by resolving them
under the separate rule and using unpublished opinions for the result. Frequently, there was just
too long a time span between the time the case was taken under consideration by the panel and
the time the opinions came out. This had only to do with the work habits of the individual judge
or judges that were involved in writing the opinions. There was one work habit that I tried to use
when I came on the court. I don’t think Judge McGowan ever mentioned it to me, but he just had
this custom of turning everythmg out in 30 days from the time it was assigned to him. I tried to
adhere to that rule; and, if it was taking longer than 30 days, I was yelling at my clerks and my
clerks were yelling at me; I was yelling at my colleagues to get word back. One of the rules, this
is an unwritten rule, and I don’t know if it is reported anywhere, is that when a colleague sends
you an opinion, you’re supposed to get back to him o r her about whether you concur or you don’t
concur and make changes as quickly as possible. And there is a time limit in the Court rules as to
how long before you can go ahead without that judge, that he or she has to catch up, so that you
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can come down with the opinion if you’ve got a court and that third judge hasn’t responded. That
is a rule that I didn’t like tq 1:1pply too often. Every once in awhile, you had to at least threaten it
to get a judge to respond to you. But I did think that the 30-day turnaround on getting an opinion
out when it was assigned was a good one to try to follow, and most of the time I did.
Mr. Pollak: Not all the judges are able to do so?
Judge Mi.k.va: No. Again, some judges who write longer opinions and think that they
have to cover more of the issues – obviously, it talces longer to write those opinions and get them
crafted properly. I’m sure that my critics would say that I too frequently tl1ll1cated the case into a
single issue and it shouldn’t have been so truncated. I’m sure that many of the losing parties
would say that.
Mr. Pollak: What would you say about your experience in efforts by panels/panel
members, or, going even further I suppose, to en bane – the unusual cases that are en bane may
be distinguished – but efforts of the panel to reach agreement which would be both at the
conference after argument and then in the opinion writing phase?
Judge Mikva: In conference, there was as much discussion as the panelists and the
subject matter would bear. There wasn’t a lot of effort to persuade in conference. For instance, if
somebody said, I think this case should be reversed, if you were on the other side, you’d make a
brief pass at it. It’s only if the judge said, “I’m really troubled and I don’t know how I’m going to
come down” that you start to try to advance some arguments. The same was true about lobbying
a judge to come out your way after a conference. If a judge announced, ”I’m going to dissent,”
you would maybe shade your opinion a little bit to try to fend off the dissent. Maybe you’d go
talk. to the dissenter and ask what it would talce to bring him/her around. But most of the time,
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there was very little lobbying on cases by judges – much less than what goes on in Congress
when we would :frequently.go try to ba dger a colleague into voting with you or voting for your
bill or co-sponsor your bill. There was very little of that on the Court and only some amount
when a judge e xpressed uncertainty about where he or she wanted to come out
Mr. Pollak: What do you see as the purposes of dissents at the Court of Appeals level?
Judge Mik:va: Tuey serve a couple of purposes, I would guess. The most important
pwpose is it allows the judge to express bis or her conscientious point of view on how that case
should come out. The judge shouldn’t go along with a result that be or she thinks is wrong, and
the dissent expresses that disagreement and explains the basis for it. I don’t think I ever dissented
without some kind of, at least, brief opinion. But if the matter isn’t really that important, it’s just
that you’re reading the record differently than the other judges or you have a disagreement on
what it is that the Supreme Court meant on some inconsequential case, there isn’t a lot more
pwpose to be served in a dissent than to merely explain what your basis is and go on to the next
case. On the other hand, sometimes it is an important public question where you think your
views ought to be sent forth to either promote or commence or continue debate about the issue.
It ought to be registered. Sometimes it’s the way an appellate judge petitions the Supreme Court
for certiorari – usually unsuccessfully – but sometimes it works to let the Court know that you’re
unhappy with what the majority has done and when one of the parties applies for cert. they will
cite your dissenting opinion as a basis for talcing cert. Sometimes it carries some weight,
sometimes it doesn’t. Toe dissent tracks the purposes of the majority opinion. It helps set the
precedential value in some kind of a framework that at least the judge disagreed with the way
that precedent was established. He or she thinks there are :frailties in that precedent, and it is very
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helpful as a teaching tool I find, from my own teaching experiences, that sometimes using a
dissent is the greatest way to get the discussion started in class, and sometimes you want it to be
discussed if it’s a case where you think the dissent is wrong. Just having a judge express his or
her disagreement with the majority opinion is the way to get the juices flowing and get things
stirred up.
Mr. Pollak: Did you ever have assignments in other circuits? Sit in other circuits?
Judge Mikva: No, I sat on our District Court a couple of times; but during most of the
time that I was a judge and when I was Chief Judge, I would have felt very uncomfortable going
elsewhere. We had a full load ourselves. If I had any extra time, I would take cases, sit on an
extra panel or something, rather than go off and sit elsewhere. But, for most of the time, we had
a rule that as long as we were borrowing judges, which we were -we were asking visiting judges
to come and sit with us-we couldn’t at the same time send judges elsewhere. Now, when Chief
Justice Rehnquist became Chief Justice, he modified that rule so that it didn’t apply to the senior
judges, but it still applies to active judges. If you are in a borrowing circuit, you shouldn’t be on
the lend.mg end.
Mr. Pollak: What was it like sitting on the district bench?
Judge Mikva: Fascinating, absolutely fascinating. The one I remember particularly was a
fender bender that I sat on for Judge Sporkin. It was a diversity case, where an accident occurred
here in the Distri ct of Columbia. D.C. has a no-fault law, so that there really wasn’t any liability
question. This was a passenger suing the driver of the car she was a passenger in and the driver
of the other car. Somebody was liable, and the only questions were on damages; and the
plaintiffs lawyer had turned down $70,000 in settlement.
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Mr. Pollak: How did you know that?
Judge Mikva: The _113-?yers informed me of that in chambers. When they wanted to get
me involved in a settlement discussion, I indicated [ wasn’t strong for it, but they told me that that
had already been rejected as an offer, because he knew that one of the parties had insurance of
$100,000, so he was pushing pretty hard for $30,000 plus whatever he might get from a pocket
deep enough to carry it. But the plaintiffs lawyer was a suburban lawyer, from Maryland, I
think, who had read about how generous Washington, D.C., juries were. I must say when the
jurors first ended up going into the box, I had a lot of misgivings about them One of the jurors
had great trouble staying awake. I had to constantly keep banging the gavel or talking in a loud
voice, and I didn’t want to. They didn’t seem too interested in all of the medical testimony that
was going in, and I was having great trouble trying to make sure that they stayed as focused as I
could keep them The damage evidence was very weak. I thought $70,000 was more than the
case was worth. The jury came in with $25,000, which is about where I would have pegged it.
Plaintiff was yelling for a retrial. I said, “Well, that’s what juries are for.” Anyway, I was very
pleased with the way it came out.
Mr. Pollak: So, it came in at $25,000.
Judge Mikva: It came in at $25,000 and I thought it was one more example for me of the
jury working the way it’s supposed to work. It was a great experience for me. I wished I bad
done more of it because I enjoyed it. I was very trepidatious about it. I remember saying to
Judge Sporkin’s clerk, I said, “You know I’ve been away from these evidentiary rulings for a long
long time. I haven’t tried a case in 25 years, so don’t go too far away.” And she said, “Don’t
worry, Judge, when you’re sitting up there, you’re always right.”
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Mr. Pollak: Yeah, that was a law clerk?
Judge Mikva: It w;;i:;: ?he clerk of the court.
Mr. Pollak: Oh, the clerk of the court, of that court? Well, that must have been
encouraging to you in terms of the process going on.
Judge Mikva: Oh yeah, I came away from my entire judicial experience convinced that
the judicial process works incredibly well.
Mr. Pollak: I’m interested in and maybe it’s for a different day. but I’m interested in
whether that’s a view that is shared by judges across the spectrum of judicial positions on
substance of issues.
Judge Milcva: I think it is. There are exceptions. There are a few judges for whom
ideology just trumps everything else, and they are so unhappy with the way cases are being
decided, or so unhappy with the Supreme Court jurisprudence, or so unhappy with the people
who are being appointed to the courts, or so unhappy with their colleagues that it overwhelms
their looking at the process. My own feeling is that, sure I’d rather find people that agree with me
on all these important issues, and I’d rather that the Supreme Court reflected the jwisprudence of
William Brennan in all of his glory, but the process itself works incredibly well The jury system
works well and even when it doesn’t, you can ahnost point to the problem We had a problem
with jury nullification in the District of Columbia for some period where the conviction rate had
gone way way down in the federal courts. But it was clearly the problem of the way cases were
prosecuted and the way they were being perceived. When Eric Holder became U.S. Attorney,
that disturbing trend immediately turned around, and now we are back up to the conviction rates
that are in most federal courts – because the prosecutors are using more discretion in what type of
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cases should be brought ind the way the case is prosecuted, and this frustration on the part of the
jurors that the system is somehow stacked against a particular group or a particular set of
opinions has diminished. ? ?ow I sound like a cheerleader at this point, but I’ve always taken a
little bit of umbrage at describing the court system as the least dangerous branch, because I think
the way to properly describe it is as the “most successful branch.”
Mr. Pollak: Ab, this is a stopping point, at least, just for this session. I want to put one
thing on the record just to reflect your view. We’ve had five sessions and there’s a lot that you’ve
put into it. I wouldn’t come to you with a transmittal instrument until you’re all done, but if
anything were to happen to you, your estate people would want to know your intentions as to
what you’ve already done. Given that, would your intentions be to have it go into the library in
the regular way, the way the Oral History Project is processing this? I think your people would
want to know. You may want to say that you would hope that there would be grammatical and
other kind of editing?
Judge Mikva: I was going to say, I would like to see it edited, but, as far as I can recal1 of
the things you’ve extracted from me, I don’t think that there is anything that I would want to keep
sealed for any period of time or anything like that; and I would certainly want it to be available
for the purposes for which you are taking it.
Mr. Pollak: Yeah, well that is what I figured your view would be, and I’m sure that it will
wend its way to a full conclusion; it will get edited, and you’ll sign the donative instrument and
you’ll make such conditions as you want, but, in the off chance, which has occurred with Judge
MacKinnon, for example, I want to make that preparation.
Judge Mikva: Yes, my strong intention is that this be made a part of the history of the
court and available for public use.
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INTERVIEW NO. 6
CONFIDENTIAL UNDER SEAL
This is the first po?on of the sixth interview of the Oral History of former Chief Judge
Abner J. Mikva as part of the Oral History Project of the D.C. Circuit Historical Society. It is
being held at his home, 442 New Jersey Avenue, S.E., Washington, D.C., on Tuesday, October
29, 1996. This portion oftbe tape consisting of pages 1-33 are under a “Confidential” stipulation
until Judge Mikva’s death.
[NOTE: Pages 222 – 242 ARE CONFIDENTIAL UNDER SEAL Both the donative
instruments and the text of Judge Mikva’s oral history refer to 33 transcript pages of the
interview of Tuesday, October 29, 1996, as sealed. However, due to formatting changes,
the actual sealed portion of the transcript consists of 20 pages. As verified against the
confidential tape of the interview, 20 pages constitute the entire portion of the oral
history which has been designated as CONFIDENTIAL and UNDER SEAL until Judge
Mikva’s death.)
222 • 242
INIERVIEW NO. 6 (continued)
mis IS THE CO.NTINUATION, NOT UNDER SEAL, OF mE SIXm
INTERVIEW OF THE ORAL HISTORY OF FORMER CHIEF JUDGE
ABNERJ. MIKVA ON TUESDAY, OCTOBER 29, 1996.
Mr. Pollak: Comment as you might want on your observations of Justice Thomas as a
Judge on the Court of Appeals during the period you were on the Court with him You might
indicate if you remember how long that period was.
Judge Mik.va; He was on the Court for a little over a year, I think, maybe as much as two.
I found him to be a delightful colleague. He was very warm and very gregarious and had this
booming laugh which you could hear through most of the building. He liked the work, he
enjoyed it. He had a great rapport with not only his own clerks, but with the other clerks. He
really was a charming person. It’s been kind of dismaying to see the personal change that has
come over since he went through that searing confirmation process. It clearly affected him.
embittered him in a way that was bard to watch because on the Court, on our Court, you could
not have asked for a more outgoing, friendly, warm person than Clarence Thomas. Even his
views, I think, were much more measured on our Court. Tb.ere were several crin:rinal law cases
where I was pleasantly surprised at bis strong support of defendants’ rights in cases where the
government was on the other side. I haven’t seen any reflection of that in his work Oil the
Supreme Court. So I really think that this is a case where the confirmation process, which I
defend, painful as it is, took a very heavy and terrible toll on the person.
Mr. Pollak: I’m sure it must have been excruciating, although I remember, historically as
you must, the confirmation process involving Chief Judge Haynesworth. It was hard Oil him.
His ethics were attacked and yet he came out of it and continued to serve on the Fourth Circuit.
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Judge Mik:va: I remember one that you may or may not remember. President Nixon, at
one point, was prepared to.J,1.c;,m.inate, in fact did nominate, Richard Poff. He was a Congressman
from Virginia, a very conservative Congressman from Virginia who I bad served with on the
House Judiciary Committee. I was still in Congress at the time. Congressman Andy Jacobs of
Indiana and I were prepared to go over to the Senate and testify in his support. The pressure went
on, about some of the votes he’d taken in Congress and then something, I tb:ink, in his family, a
family issue of some kind that he just didn’t want to have aired publicly. Early in the process, he
asked the President to withdraw his name. So, it’s a painful process, but one that I think is
necessary if you’re going to appoint a judge for life.
Mr. Pollak: Ab, I have a series of questions which address relationships to other courts
and institutions. You may in our interviews have covered some of this; so, if you feel you’ve put
your views on the tape, just indicate and we11 move on. One is your perception of the role of the
District Courts and the proper role of the circuit court with respect to them?
Judge Mikva: I think it’s a very complicated process. As I indicated earlier, you don’t ….
I learned from Judge Tamm, who was a very courtly judge and Imnself a former District judge,
that District judges don’t like to be referred to as a lower court. I stopped using that phrase early
in my career when Judge Tamm cautioned me about it. But the fact of the matter is that District
judges are appointed for life, as are the Circuit judges. They obviously ar? skilled people before
they even get on the bench. They develop some very incredibly important and unique skills as a
District judge if they are any good. Here are these Court of Appeals judges sitting up ther? and
reviewing their papers, and they are reviewing them in an altogether different milieu and
atmosphere than the way the District judges have to make the decision in the first place. The
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District judges are always under the gun. They are always asked to decide a motion, decide an
objection, decide an issue right there on the spot. The Court of Appeals judges sit up there and
take their time and think about it, consult their clerks, read the books and then come down with a
much more measured decision. There is this wonderful story that District judges like to tell that
the Court of Appeals judges sit up there above the fray and when the battle is over, they come
down and shoot the wounded. It’s sort of a view that the District judges have. I came away with
a tremendous admiration for the District judges. They work very hard, by and large. They do an
incredibly good job. They give the federal judiciary prestige; they are responsible for most of the
good reputation that we have.
Mr. Pollak: I think this historical record would like to know the District judges whom
you rate high in performing?
Judge Mikva: Well, I had the privilege of being on the court for a good piece of the time
that Judge Gerry Gesell was on the court – a superb judge, worked hard – be knew what a judge’s
role is. Judge Louis Oberdorfer was on the court when I came on, and he still is on as a senior
judge as we give this interview. Judge Harold Greene. Judge Aubrey Robinson. These are
really judges who perform. as judges, in an incredibly superb way. As I look back over the cases
that they sat on that I reviewed, including probably some where I voted to reverse or maybe even
wrote the opinion reversing them, I realize what really fine judges they were and how well they
did their craft. Judge Tom Hogan, one of the current active judges, always impressed me. I’m
not sure that the public ever appreciates how complicated a District judge’s role is and how really
bright and capable they have to be to do it right. There are lots of good judges, but the ones I just
mentioned are outstanding. I’ve missed some, I’m sure, but these are the ones who come to mind.
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Mr. Pollak: What are your comments about the proper role of the circuit court vis-a-vis
the District bench
Judge Mik:va: I’m not sure that this is shared by other judges or even expresses itself in
the case lore. Obviously, you defer to the District judges’ decisions on questions of fact; they are
final just as a jury’s decisions on questions of fact are final In rare occasions, there is some
wiggle room for Courts of Appeals to review even them But I always felt that on all issues,
there should be a deference given to the District judge, There is a milieu in which a case is
considered. There is a time frame and a set of circumstances that surround the trial of a case that
only the District judge can fully appreciate. If you’ve got a good District judge and he or she is a
part of that milieu, there ought to be a substantial deference given the judge’s decision by an
appellate judge who is reviewing a cold record and is looking at that cold record trying to
recreate what went on during the trial below. I learned this after awhile. I’m not sure l came on
the Court with that kind of proper respect for the District judges, but I learned it after awhile – to
realize that when in doubt, go with them, they were there.
Mr, Pollak: It must be that the circuit bench here in the District of Columbia on which
you’ve recounted that there are differences of, substantive differences, personality difference?,
disputes, nonetheless must come together in that view because aren’t the figures that about 80
percent of the district rulings are affirmed?
Judge Mik:va: Yes. I think that it is probably lower than it should be. As I look back,
some of the times – if I can start pointing a finger at myself – there are some of the times when I
should have given more deference to the District judges than I did. I sometimes was too quick to
look at the cold record, isolate something and treat that as a basis on which to reverse a judge’s
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judgment in an overall case. Something the Supreme Court said, some years ago, I don’t
remember who it was, has continued to impress me in my later years on the bench. That is that
nobody is entitled to a perfect trial, and for a reviewing court to single out some small piece of
that whole trial episode and say, “Aha, the judge did this wrong, therefore throw the whole thing
out.” There is a basic unfairness to that and an inefficiency to that.
Mr. Pollak: Is that a view that you would lay on the circuit court when it is reviewing a
trial outcome, and would you distinguish reviewing grants of summary judgment or dismissals of
cornplalllts where the District judge was making a more paper ruling?
Judge Mikva: Yes, absolutely. When the District judge is acting just the way a court of
appeals judge acts, they are entitled to some deference for having decided the first instance; and
you look at what they did and how they did it and so on; but certamly there’s no reason why their
judgment should be given any specific deference. But when you are talking about a whole trial
and all kinds of sub-rulings on evidentiary matters and witnesses and decorum and demeanor and
so on, then it seems to me that that deference should grow geometrically. On e of the issues, and
it is true there is a lot of difference between criminal law and civil law in this respect, but even in
the criminal law, I became more impressed with the harmless error doctrine and began to realize
that there was more to it than I used to trunk there was when I was a student taking criminal law
in law school I thought it was just a device for denying some poor defendant his rights.
Mr. Pollak: What about your relationship as a circuit court or as a circuit judge with the
regulatory agencies, the rulings which you would review directly and some comparison of that
relationship and role as compared to your review of the District Court rulings?
Judge Mikva: I don’t think I gave the same deference to a regulatory agency in terms of
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their petformance. Now, the law even before Chevron, but certainly after Chevron, required a
certain amount of deference. to their interpretations of the statute and so on. I don’t think that I
ever felt, and I’m not sure that most of the Circuit judges felt, that the regulatory agency really
performed as well, as far as trial functions are concerned, as did a District judge. Now, there
weren’t that many cases where the evidentiary pattern was in dispute; but [ never felt quite as
comfortable giving deference to an administrative law judge in a labor case, for instance, as I
would about giving deference to a trial judge in a case corning up from the District Court. Partly,
it’s that you’re dealing with Article ID judges as opposed to an administrative law judge. I
appreciate that we made them all judges when I was in Congress, but that doesn’t necessarily
mean that they have the same capacity or the same quality. Sometimes their very expertise on the
subject matter made it less appropriate to be too deferential They were such specialists that they
very frequently lost the forest for the trees.
Mr. Pollak: What about the decisions that would move then from the adrrrinistrative law
judge through a whole commission, the Federal Trade Commission, the Federal Communications
Commission, the Securities Exchange Commission, FERC?
Judge Mikva: Ag ain, the more layers you pile on – and sometimes they’d even go
through the District Court before they’d get to us, not usually, but sometimes – the more layers
you pile on, obviously, the more deference you have to give; you’ve got to take into account that
a lot of other able people have been looking at this problem If they come out a certain way, you
have to find some very good reason to undo it, make them do it over or do it the other way.
Again, the issues where I felt most comfortable disagreeing with the regulatory agency was when
you were talking about an important statutory matter where they were intetpreting the statute in a
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way that I thought was inappropriate. On some of the issues, I would feel that my expertise was
as good or better than theirs. I had seen the law-making process close up. Some of them bad
only read about it, if that much But, usually, if there were thin.gs resembling a trial and a trial
record that was made in the regulatory agency, with or without review by the full agency, you
tended to give them substantial deference.
Mr. Pollak: Well, this leads me to ask you something that I certainly would be remiss if
your interviews didn’t touch on it, given your background in Congress, and that is, legislative
history. I trust that what you were alluding to in terms of the statutory review of an
administrative agency’s interpretation is the “plain meaning role” and all of its attnbutes and the
place of legislative history. It seems to me that this is a time for you to say your piece on that
subject, as both a legislator and a judge.
Judge Mikva: I always felt that the appropriate role for all judges, regulators and Article
ID judges and everybody else in the spectrum, is that if there is any justification for unelected
judges making decisions that have such a material effect on people, it’s that we are carrying out
the policy that others have made, that elected officials have made. We’re not making the policy
in the first place. I know that I’ve been accused of being an activist judge, and I long ago realized
that that term is in the eye of the beholder. I never thought of it being appropriate, nor did I want
to take the place of the policymaker. The policymakers have made the decision, no matter how
much I disagreed with that decision as a matter of policy; if the decision was clear, I was
prepared to carry it out and interpret it that way. There were many cases where I interpreted
statutes that [ would not have voted for if I had been in Congress, or, that I would have voted
differently had I been in Congress. But that is the role of the policymaker as distinguished from
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the judge. The problem is statutes aren’t always clear, and that is what the “plain meaning rule”
is all about. If the meaning.is plain, judges shouldn’t go looking for ways to nibble around at it or
come out with a different decision. I think one of the biggest disagreements on theory that Judge
Wald and I ever had was that she agrees with me on ”plain. meairing,” but her idea of using the
legislative history was to say that you would always look at legislative history, even if the
meaning was plain, to confirm the plain meaning. No matter how plain it appeared. on its face,
something in legislative history can show that that wasn’t what Congress meant. I used to
disagree with her. I say if the meaning is plain, don’t look; don’t ask for trouble because, once
you get into the legislative history, you are in difficult waters. So, if the rneanm.g is plain, the
judge’s role is to interpret it the way that Congress wrote it and go on to the next case.
Unfortunately, many times the meaning isn’t plain. The meaning isn’t p18.lll because words don’t
always have only one meaning. The meaning isn’t plain because frequently for Congress to reach
an agreement with 218 or more House members and 51 or more Senators all of whom are prima
donnas of one form or another and then get the super prima donna down on Pennsylvania Avenue
to sign the bill that becomes law, there is lots of fudging and lots of ambiguities and those
ambiguities are often necessarily to be resolved. by the judges. 1bat is when you do go in and
look at legislative history to see if you can sense where it was that Congress wanted to move,
notwithstancling the ambiguity in the statute. But, looking at legislative history is a very tricky
business and I think that one of the problems – it is a place where Justice Scalia and I agree – is
that judges frequently can get fooled and misled. He has some .ironclad rules that you should
never look at committee reports because that’s just staff and so on. I think you look wherever the
looking is good, but you should realize that sometimes you can be misled. The easiest place to
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be misled is reading phony legislative debate where congressmen get up and make statements for
the folks back home or ask phony questions that have nothing to do with what the bill is really
about, where it isn’t easy to recognize bot debate in a cold record. One of the reasons I always
was most leery of floor debate was because even I, with all the years I’ve read congressional
records, couldn’t always tell when the members were serious and when they were just going
through the motions for the home folks. I always find committee reports to be the most useful
place to look because that is where staff are trying to bring out the consensus that the committee
had when they voted on the obscure language and what it was that they meant by that language.
So a good committee report, I always thought, was very, very useful to understanding a statute.
But always the purpose of legislative history is – this is where Justice Scalia and I had our
biggest disagreement- I feel the use of legislative history is to constrain the independent
judgment of a judge, to keep rum or her from entering into the policy arena and becoming activist
and talcing the place of the congressman or the elected Congress. If you don’t use legislative
history, it’s too easy for the judge to say, ‘Well, the language is fuzzy, therefore this is what I’m
going to think it means,” which is just to say, “Okay, I’m not elected to Congress, but I like that
power.”
Mr. Pollak: It comes up all the time. I guess it always will.
Judge Mikva: It always will. Words are less than perfect.
Mr. Pollak: Well, then the lawyers go into the cold record and they pull out any
statements that help their side.
Judge Mikva: Well, of course. That is why the judges have to be very careful about
using statements. Again, it’s sort of like a reviewing judge trying to review a District Court trial.
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Looking at statements in isolation, looking at little pieces of testimony in isolation doesn’t g ive
you the picture of what really happened there in the whole. The same thing is true about a bill
going through Congress – knowing all the vagaries of the way things happen, the way
amendments are adopted, aren’t adopted, the way language is put into the committee report and
isn’t put in and the kinds of things that are said on the floor. This is my favorite example, and I
might as well put it on the record. I was one of38 people that voted against the Organized Crime
Act in 1970. This was the one that first wrote RJCO, Rac keteering Influenced Criminal
Organization. That was one of the reasons I was opposed to it. There were others too. All the
years after that when I ran for re-election, people would say, ”How come you supported
organized crime? You voted against the Organized Crime Act in 1970.” I did end up opposing
the bill, so I pointed out how reckless and loose the language was in the RICO section. I said,
“You know when this law passes, we’re going to have garden variety fraud suits being brought
into the federal court as a part of RICO. We’re going to have all kinds of things being made
subject to RICO.” It was a hyperbolic speech with a kind of hyperbole that politicians make
when they are opposed to something. And, unfortunately, over the years, every time somebody
wants to expand the definition of RICO, they say, ”Even Congressman Mikva, who voted against
the bill, acknowledged that it would be used for these purposes, and therefore, it’s legitimate.”
Knowing now what I didn’t know then, I wish I had gone to Chairman Celler, who was my
Judiciary Committee Chairman and managing the bill, and said to him. “Manny, we’ve got 38 of
us who are g oing to vote agamst it anyway, will you engage in a little parliamentary pas de deux
with me, and I’ll … ” And he would have said, ”Sure. Go ahead; you write it up, and I’ll do it.”
And I could have gotten u p and said, “Now Mr. Chairman, this won’t apply to fraud suits, will it?
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1bis won’t apply to securities actions, will it?” And he would have said, “Of course not, of
course not.” Whatever [ \l??ted to put in there, [ could have substantially influenced the course
of that legislative history and of history generally if I’d been smarter than I was. But that is what
is dangerous about legislative history.
Mr. Pollak: Very demanding, whether to act in time present or to act in time future.
Judge Milcva: We get smart so late.
Mr. Pollak: Did you have any occasions, or is it even worth inquiring :into, where you
conferred with District judges on a private basis about the matters that were before you?
Judge Mikva: No. I used to like eating in the upstairs dining room where mostly the
District judges ate and few of the Court of Appeals judges ate. Judge MacK.innon was a regular.
I stopped going there regularly because so frequently the District judges would be talking about
cases that –
Mr. Pollak: I see, that you might hear?
Judge Mik:va: Yes. Sometimes they did it dehberately and sometimes just by accident. It
could have an impact on our judgment and so I decided to stop going there. I’d still try to show
up a little bit, especially when I was Chief Judge instead of shunning it, but; on the other hand,
the conversations sometimes would get uncomfortable.
Mr. Pollak: Do you have anything you want to say in relation to your perception as a
Circuit Judge of the Supreme Court?
Judge Mikva: Well, I sort of feel that that was probably the closest that Court of Appeals
judges could understand how the District judges felt when they’d end up having one of their
decisions reversed by the Supreme Court or even taken by the Supreme Court. There were a
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couple of cases where the Supreme Court affinned me, but they did it in a way that made me very
unhappy with the fact that ¢.?y clearly hadn’t read the records as carefully as I thought they
should; they hadn’t understood some of the things that l bad said in my opinion. Then you
realize that for the same reasons Court of Appeals judges can misconstrue what a District judge
has done, so, obviously, the Supreme Court justices are not going to put themselves squarely in
the shoes of the Court of Appeals judges. They are not going to hear the same argument. The
same issues aren’t going to be before them Chevron is a perfect example. The case came up on
what we thought was an important issue of whether Congress bad, what I thought was an
important issue oflegislative history, whether Congress had or had not contemplated that result
I didn’t write the opinion, Judge Ginsburg wrote the opinion; but the court used that as an
occasion to reiterate in somewhat stronger terms a kind of deference that the Court should give
admmistrative agencies in interpreting the law that Congress wrote. That happened on other
cases that we had sent up in one form and the decision had come back in a different form because
everyone was concerned about a different spin on the issue or sometimes a different issue on
which the case should turn. So there was that kind of tension. I think that the one thing that all
Courts of Appeals judges learn early on is that you just have to accept as a given that the
Supreme Court is final, not because they are right, but they are right because they are final!
Mr. Pollak: It’s the view of some people that Circuit judges should be innovators or legal
innovators illuminating issues, or of others that they should merely apply the law leaving the
innovation to the legislatures and the Supreme Court. You’ve alluded to the fact that you felt an
obligation, certainly understandable, under the Constitution, to apply the policies that the elected
leaders adopted. Do you have other views in respect to innovation in the mind of and pen of a
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Circuit judge?
Judge Mikva: No … I .caine on the Court probably much more enthusiastic about the
notion of innovation and finding new ways for Courts of Appeals judges to resolve some of these
legal dilemmas. Over the years I began to realize that is not a good rule for us because we are
intermediate court judges. If it is important, the Supreme Court is going to have to do it If it’s
policy, the policymakers have to do it, and that leaves the area in which the intermediate court
judges can operate as very, very small, usually not that significant. The plate was full enough
without having to look for ways to find new wrinkles on which you can decide an issue. I
remember once I was out of town, and one of my clerks called me who had been working on a
bench memo the night before and said, “Judge, this can be a seminal opinion.” I said, ”I don’t
think so. I try not to do seminal opinions.” In any case, I do opinions that hopefully confirm
what the law is or else on some occasions to resolve a dispute that the Supreme Court is
ultimately going to resolve. But, in any event, I don’t think of myself as doing seminal opinions,
and I don’t want to do seminal opinions. I think that most of the innovations that Court of
Appeals judges try to do sometimes are much less useful than the time they spend on them I still
think of Judge Posner’s insistence that he could develop a formula to decide when a District
judge should issue a preliminary injunction in a case – a mathematical formula for those opinions
– judges still joke about it. But the fact of the matter is be was trying to be helpful by innovating,
but the time he spent on it was hardly worth it.
Mr. Pollak In your own bank of opinions and rulings, are there some or one or some that
you think of that, not necessarily because of your intent, have become or been judged to be path
breaking, innovative, whatever word you would refer to?
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Judge Mikva: Well, the ones I’m proudest of are the ones where the jury is still out as to
whether the doctrine will preyail or not. I wrote an opinion involving American Express many
years ago in which I said that contracts of adhesion have to be strictly construed against the
creditor — the person who wrote the contract – and that, therefore, some pieces of it that might
otherwise be given a strict construction, that is given a favorable construction that could be used
against the debtor, couldn’t be used. One had to do with cancellation of credit cards. I said that
you could not cancel a credit card without notice after the credit had been given. So, if the credit
had been extended, the credit company was stuck with it; or the card issuer was stuck with it
until notice had been given to the debtor. It had to do with a law professor who had taken his
wife out to an anniversary dinner in a fancy restaurant here in Washington. Actually, he wasn’t in
arrears but the credit card company had rum in arrears and had canceled the contract. They
canceled the card but hadn’t told rum; the company instructed the maitre d’ not only to refuse to
accept the card but to destroy it. The maJ.Ue d’ C8Ille out with a pair of scissors and cut the card
in two in the restaurant. Th.is law professor proceeded to sue and, of course, was offered several
settlements that he rejected. He took it all the way up to our court, and we upheld his claim that
the contract couldn’t be canceled after the credit bad been extended. American Express made
several moves in the direction of trying to get certiorari They never did decide whether they
really wanted to get cert or not. They finally didn’t, and so it’s the law of the circuit, although I
don’t know if it’s ever been applied elsewhere.
One of the places where I tried to be innovative was one of my early cases. The case
came out all right, but the Supreme Court quickly rejected my effort to be innovative. The case
was State F§rll. the seat belt case. They upheld my decision, but did not uphold my opinion,
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because one of the tlrings I did in my opinion was talk about something called congressional
gloss – something like judi9?? gloss – where Congress, on several occasions failed to act, where
efforts were tried to change the language in some way that weren’t successful; but then you had
to assume that the language had the original interpretation that was given to it.
Mr. Pollak: A later Congress trying to change the interpretation and failing to do so –
that was a major issue.
Judge Mikva: The court said that’s not the law. You don’t pay any attention to what later
congresses did unless they, in fact, changed the law. The fact that they tried and failed cannot be
taken into account in deciding what the earlier Congress meant. Whether they were right or
wrong, so much for the intended innovation. They were clearly right and I was not.
Mr. Pollak: What was your feeling when you were reversed or your grounds were not
accepted by the Supreme Court?
Ju.cige Milcva: You can’t be anything in the public sector or maybe even the private sector
without having a pretty healthy competitive itch. We all catch it early in life, whether it’s playing
sandlot baseball or just doing well in school or wherever; and, if you want to be successful at
your profession, at your trade, that competitive itch has to keep driving you. So the first thing
you feel is that you’ve lost, you personally have lost, it’s like a personal rejection. The score is
now 1-0 for the other side; and then you start to think about and analyze it, sort of reconstruct the
situation so that it isn’t quite as big a loss as you thought at first. I think the biggest advantage I
had as a judge in tenns of being reversed was that I’d lost several elections. I’d lost two elections,
and nothing is worse than losing an election where several hundred thousand people vote against
you. My wife came out with our favorite holiday card the year I’d lost my seat in Congress. We
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used to send out Christmas cards, Chanukah cards every year, pictures of the kids and some
clever saying up front. Th? y?ar I lost – 1972 – she showed all of us, the kids and us and the dog,
all with knapsacks on our backs heading back to Chicago. On the card she said, “Over 200,000
people asked us to come home …. ” On the inside it said, ”None of them are getting this card.”
[Laughing] You get to realize that it isn’t a personal rejection, you obviously can’t live with it or
treat it as a personal rejection. Compared to being reversed in a case, it can’t be treated as a
personal rejection. But, again, Supreme Court justices aren’t that sensitive or sympathetic to all
that the Court of Appeals judges have said or done any more than Court of Appeals judges are
sympathetic to what the District Court judges have done. I remember at least on one or two
occasions where justices who were good friends of 11lllle used rather sharp language disagreeing
with my decision. But that’s what the court system is about.
Mr. Pollak: Did you ever endeavor to make an opinion cert. proof?
Judge Mik:va: I would sometimes resist going to certain questions that I knew would
force a court to take it in that respect. Judge Wilkey had this theory that if you wrote up an
opinion that was long enough and had enough footnotes, that would make it cert. proof. I didn’t
like footnotes to begin with, and the length of opinions has always bothered me from way back in
law sc?ool, so I didn’t subscnbe to that theory, although it might be right. But there were times
when we would pick up people on the panel who agreed with me to not reach a cenain question
because we thought that would make it cert proof or make it ridiculous for the Court to take it.
Again, sometimes that’s just another variation on a doctrine of what Court of Appeals judges
ought to do and that is, “don’t decide any more questions than you have to to resolve the case.”
Mr. Pollak: Yes, it certainly seems to me that it is kind of a slanted question to say, “Do
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judges make something cert. proof?”
Judge Mikva: I fo\lll4 it always easier to write an opinion in a case where a court had
made its views clear. The hardest opinions for me to write were in that area where the court had
deliberately left all kinds of hanging questions about what they would do in the future, whether it
was in terms of affirmative action or gay rights or attorneys’ fees. It was in those cases that the
court left these things open, and there was difficulty in trying to anticipate what the Supreme
Court would do.
Mr. Pollak: When I bad a pro bono case on set asides, Croson v. City of Richmond, we
were reading three opinions that the Supreme Court justices bad written in earlier cases. You
know there was an opinion that bad three judges/justices and another that bad three.
Judge Mikva: I happen to think that that opinion is still one where the Court came down
with a doctrine that is inconsistent with what they did before, and it is causing great difficulties
where the law is going. I have worried very much that the Court is on a collision course with the
Congress when they say they don’t care what Congress finds, which is what they did in Croson v.
City of Richmond.
Mr. Pollak: Do you have any Comment on whether there is and what there is in the way
of a shift in the Supreme Court? You’ve been a judge, you were a clerk there, you’ve seen a long
history of the Court and, of course, Presidents put different justices on the Court.
Judge Mikva; Most of the shifts have been very evolutionary. There have been very few
watershed cases, and that is healthy because every time there is a case like Roe v. Wade or
Brown v. Board of Education or Miranda, the Court pays a high price for it. It is, at that point,
resolving a very divisive question and in a way that closes off all debate. J guess the current topic
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that worries me the most is the fact that the Court bas taken cert in the two cases involving the
right to die++ the assisted suicide cases. I don’t think that question is ripe for final decision. I
wish the Court hadn’t taken cert. and I hope that they find a way of resolving it without saying
there is absolutely a right to an assisted suicide or there absolutely is not a right to assisted
suicide because that question is still dividing the society too much Toe Court functions best
when it can move as an evolutionary force, when it can interpre t what the Congress is doing and
can move the country ahead along those lines that the Congress has perceived politically. \1/b.en
it decides that it has to do something that is fundamentally going to change the legal or political
topography, whether it’s Baker v. Carr, Roe v. Wade, or Brown v. Board of Education, there is a
big upheaval in society, much more so than if those changes had happened politically. Now
some of them would never have happened politically. I’ve always found it fascinating that the
critics of the Warren Court, including Judge Bork and Justice Scalia, all accept Brown v. Board
of Education as the one case where the Court had to step in. Now, in tenns of the analysis that
Judge Bork would make, for instance on what the Court bas done in other cases like Roe v. Wade
or Miranda, it’s hard to distinguish Brown from Roe v. Wade or Baker v. Carr because it was the
same kind of policy decision that the Court was stepping into and saying “discrimination is over,
is going to terminate now.” The only explanation which I don’t trunk bolds any water is that this
was a mistake that the Court had made itself in Plessy v. Ferguson, and they were undoing it by
Brown; but they have could have corrected the mistake in Plessy without any of the things that
Brown achieved. As I say, I defend Brown; I defend Baker v. Carr. I defend Roe v. Wade, but
the price was very high for the Court having to suffer the serious political consequences from
those kinds of decisions. So I think of the Supreme Court as being a very evolutionary institution
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that hopefully and perceptively measures its use of power. It doesn’t always come out that way.
Mr. Pollak: Baker .v.. Carr or Sanders v. Georgia or whatever presented issues that had
come before the Court a lot of times. There had been Colgrove v. Green.
Judge Mikva: Yes.
Mr. Pollak: Did it seem to you that if the Court didn’t bite that bullet, the nation never
would because the Congress couldn’t?
Judge Milcva: Colgrove v. Green came up the year before I clerked. Justice Frankfurter,
as you recall, had written the opinion in which he had included that great phrase, ”This is a
political thicket in which the Court should not tread.” Colgrove v. Green was an Illinois case.
Green was the Governor of Illinois; I lived in Illinois and I knew how impossible it was for the
legislature to ever reapportion itself. One time we had Justice Frankfurter down to lunch and I
and one other clerk from Illinois who had more experience in this started badgering him about
how could he ever expect the Illinois legislature to correct this temble injustice with this
inappropriate distribution of political power. He said, ‘Well, that’s what elections are for; the
people should throw those rascals out and put in better people.” Obviously, the problem was that
the people who were the beneficiaries of this inordinate maldistribution of political power and
malapportion weren’t about to throw the rascals out who bad given them all that power. I still
think he was wrong, and I’m glad that Baker v. Carr came out the way it did. Now, this is a sign
of my age; there weren’t any great historical analyses I have done, but I’ve often wondered how it
came to pass that women finally ended up with the right to vote in this country. They had zero
political force. They were not part of the voting process that first passed the amendment through
the Congress by a two-thirds vote in both Houses and then ratified it in the state legislatures in
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three-fourths of the states. How did this nonpolitical force achieve that kind of political power?
If they were able to acbieve.i\, maybe there was some way for other minorities, including big city
minorities and racial minorities and so on, to achieve political power without the Court stepping
m. I would not want to repeal Baker v. Carr and find out. [Laughing]
Mr. Pollak: The Court spends a lot of capital in addressing those issues?
Judge Mikva: And it is capital that is never in long supply. The Court and its supporters
must always be aware that this is a very, very precarious exercise of power and distnlmtion of
power that has to be handled very, very carefully. The classic example is Brown. At the time the
Court handed down that decision, the entire enforcement arm of the Supreme Court was this one
superannuated overweight marshall, and the picture of him going down to Little Rock waving a
decree in the midst of that swarm of angry parents and led by their Governor — determined that
these black kids weren’t going to get into Central School in Little Rock is ridiculous. It could not
have happened. You will recall that President Eisenhower had to send in 10,000 troops to
enforce Brown v. Board of Education in Little Rock. Considering that Eisenhower himself didn’t
like the decision, you just don’t want to put the Court in that kind of a po sition too often because
sometime you are going to get the political actors saying: They issued a decree, let them enforce
it.
Mr. Pollak: Well, those are really great issues, Judge.
Judge Mikva: Which we will not resolve in these interviews.
Mr. Pollak: Do you want to say anything about your own personal interactions with
Supreme Court Justices?
Judge Mikva: No, I’ve gotten to lmow many of them over the years. The nice part about
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being active in political life and being a ju dge, Chief Judge, and just being around as long as I’ve
been, is that the Justices, instead of being these mythical figures that I clerked for, or whose
opinions I read about in law school, become real live people; and some of them are friends. They
have human attributes that are good and bad, and that makes for a different feeling about the
Court that is more healthy and, I suppose, in some respects less healthy than I had. I just
assumed that it was the most powerful deliberative body in the whole world. They all either did
descend or should have descended from Mount Olympus. They didn’t though.
Mr. Pollak: What is your own galaxy of great judges? District Court? Court of Appeals?
Supreme Court judges?
Judge Mikva: I just had a great admiration for the way in which Earl Warren operated. I
saw it not close up but sort of saw it from being in the state legislature and in the Congress when
he was Chief Justice. He was never a great legal scholar; I think he would be the first to admit
that he was not. He clearly had a working majority on the Court, and he got that fairly early on
partly because President Eisenhower made what he said were the two worst appointments he bad
ever made. Chief Justice Warren knew how to work with the Court. It just developed that he
worked it the way a good political operative works a collegial body. He made alliances. The
description of”Super Chief,” of how he brought a nearw unanim.ous Court on Brown which was
just incredible, and bow he got them to do Cooper v. Aaron unanimously, each Justice
individually signing the opinion to make it clear that this was something that was the law of the
land. He understood the political consequences of these momentous decisions that the Court was
handing down during that period. Frankly, had he not had the great political experience and
deftness that he had, I think the Court might well have blown open during this period because
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they were very, very hard decisions to swallow. We’re still trying to swallow pieces of Brown v.
Board and it’s true of all the: others. So I just have a great admiration for him as this judicial
figure not because of the great legal scholarship or the great prose, but because he understood the
potency of the Court – how you made it not only come together as an institution but how you
made its product acceptable and digestible in the public arena.
I had a great personal admiration for Justice Black. I didn’t know him that well. He was
there when I was cle rking. I read his biography. He combined his knowle dge of the political
arena, having been a Senator, with becoming a great judicial scholar. Io the last years of his life,
he got a little testy. He really was probably the brightest Justice, certainly when I was clerking,
and understood the craft and understood how things worked and had some feelings about the
Constitution that were very provocative. His views on the First Amendment are a case in point.
I thought at the time it was great to say that when it says ”Congress should make no law,” that is
precisely what it means. I’ve gone back over the years and thought about the role John Marshall
played and realized how deft he was in bis role as Chief Justice. I went back and read very
closely Marbury v. Madison and realized what an incredible example of judicial-political
deftness that was, considering what he did as compared to what he said. He [Chief Justice
Marshall] didn’t really do all that much It’s what he said about what the Court could do in
appropriate cases that has been preserved as a benclnnark for several hundred years. On our own
Court, I had developed this great affection and admiration for David Bazelon, who served as my
mentor. By the time I came on the Court, he was probably past his prime as a Judge, but when
you look over the impact he had on the Court during those years, he really made that Court. He
used his influence in that Court to move the society in many directions that he thought were
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important – some of them perhaps beyond where I would have gone – they were probably overactivist
in terms of what an intermediate court should do; but, on the other hand, he was very
effective. I still remember when Warren Burger went on the Supreme Court. He once said -apparently
this got out somehow – that he wanted to run the Supreme Court the way that David
Bazelon had run the Court of Appeals. You know I’m sure that they understood where the power
was. But Bazelon described, because I was close to him personally, he descnbed to me some of
the ways be operated. For instance, it always used to delight him that many lawyers in this town
thought that be somehow manipulated the docket to see that he would get on certain kinds of
cases. But the docket was- and is – nonrnanipulative. It’s nonmanipulative now. It was then.
But it pleased him that the lawyers thought be bad that kind of power. He said, “I didn’t ever
manipulate the docket.” He said, “If there was some question I wanted to resolve, I’d find it in a
case that I had; I didn’t have to find the case and put it on my docket, I couldn’t do that. I’d find
the question somehow involved with the case and I’d bide my time and wait until it came up in an
appropriate forum or an appropriate vehicle. I’d find the question, and I’d do it.” In many
respects, that was part of Oliver Wendell Holmes’ greatness. It’s one of the reasons his opinions
still are good teaching tools, are still recounted so frequently. Holmes would rearrange the case
the way he thought was necessary to make his point. I can’t remember the name of the case, but
this came up in a case that you were involved in. When I went back and looked at the earlier
case, Justice Hohnes had narrowed the case down to a single question and wrote a two or threepage
opinion on that question. Judge Flannery was on the court, and he and I agreed with the
Hohnes precedent. Justice Holmes wrote a short, pithy two- or three-page opinion on the subject
{Kelly v. Kosuga], which we thought was controlling and the Supreme Court decided wasn’t.
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Mr. Pollak: Well, let me undertake to fmd out what that is for our next session.
Judge Mikva: I not.sure I wrote it but I think I wrote it. [Mullins v. Kaiser Steel Corp.} I
know Judge Flannery was with me on it, and I think we got overturned. I remember at the time
marveling at what a precise, narrow opinion it was and that was not what the Supreme Court
saw.
Mr. Pollak: Were there other great judges you’ve known?
Judge Mikva: I tried to limit it to Supreme Court Judges, because I didn’t want to go
through the rating order of all the other judges.
Mr. Pollak: In your time on the Bench, have you had any relationship that was really
meaningful to you as a judge with judges who sat on any other circuit courts?
Judge Mikva: I was friends with a lot of them Since I never served as a visiting judge
and we so seldom had visiting judges come in to us during most ofmy tenure, I didn’t get to
know them as well as judges. Now, some of them I knew from other arenas. I had known the
Chief Judge in the District Court in Chicago, Jim Moran. He and I bad been in the legislature
together and knew each other for all those years. Milton Shadur from the District Court in
Chicago had been a law partner of mine. I had known him for a number years, but there weren’t
a lot of people like that. Justice Stevens had clerked the year before I clerked, and we went back
to Chicago at the same time and became good friends over the years. Steve Breyer and I were
good friends and became friends when he was with Senator Kennedy originally and then when he
became Chief Judge. He and I were on the Judicial Conference together- U.S. Judicial
Conference together – we were allies on many things there.
Mr. Pollak: But I gather that, however outstanding or relevant those judges were in their
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own courts, it really didn’t impact your role as a judge on your court.
Judge Mikva: I don’.t _think, and I say this with due deference to all Court of Appeals
judges all over the country, I don’t think we had anybody of a Learned Hand’s reputation and
standing while I was on the court. There were other good Courts of Appeals judges and some
that I would cite more regularly than others, but I don’t tlrink there was anybody who was
universally recognized as a Learned Hand as somebody whose opinions were that influential, or a
Judge Cardozo in the circuit.
Mr. Pollak: Which is also by way of saying that you really didn’t have to have a personal
relationship with some other judge, you could read their opinions?
Judge Mikva: Again, there were judges whose opinions I liked better than others and
who, I thought, said things more plainly than others, whose views I agreed with more than others
but there were none that I felt that kind of personal relationship with and there weren’t, there
certainly weren’t any of that lcind of stature. Part of it may be that the work of the Courts of
Appeals is all different than it was when Learned Hand sat or when [Judge Alfred] Friendly sat.
Mr. Pollak: Meaning what? Different in what respect?
Judge Milcva: More cases. You don’t get the single-issue cases the way we used to. We
get these cases that have 27 different issues, and we go straight to trying to resolve the case. It’s
hard to think, aside from Judge Baze Ion because of his unique role on the court, it’s hard to think
of any judges on the D.C. Circuit that had that kind of national stature that a Learned Hand or a
Judge Friendly had. [ say even Bazelon was more – bis influence in taking on these issues and
pushing them into the arena rather than as a judicial scholar.
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INTERVIEW NO. 7
This is the beginning of a not•confidential tape. This is the seventh interview of the Oral
History of former Chief Judge Abner J. Mikva as part of the Oral History Project of the D.C.
Circuit Historical Society. It is being held at his home, 442 New Jersey Avenue, S.E.,
Washington, D.C., on November 4, 1996. The tape and any transcripts made from the tape are
confidential and governed by the wishes of the Judge, which ultimately will be made in the form
of a written donative instrument.
Mr. Pollak: Good Morning. As a judge, there are a lot of informal contacts which you
had – judicial conferences, bar meetings, socializing – how would you descnlJe those as to their
significance, if any, in the development of the law and the performance by yourself of the
responsibilities of judging?
Judge Mikva: I think they are very significant Let me start with the judicial conferences
because a lot of people, including a lot of people in Congress, worked on a theory that these are
some Jcind of boondoggle with the judges, that the lawyers go off to some nice place and play
golf and tennis, and nothing gets accomplished. As I look back over the 14 or 15 judicial conferences
that I attended as a judge plus some others I attended as a lawyer or a congressman, I found
an incredible amount of important things happen at those conferences that affect the way the
court operates. First of all, the programs are much more significant than I think the participants
realize. It’s the only place where the judges and the lawyers get a chance to interact on something
other than a per-case basis – where it’s a very uneven relationship. Lawyers are always saying,
”may it please the court.” At the conferences, lawyers are letting the judges know what it is that
bothers them about the way the system’s working; and, in tum, the judges are letting lawyers
know what they see as problems that the lawyers are creating; they look at where the system isn’t
working properly. It’s an incredibly important exchange. I’m sorry that it’s on such bad paper
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with some people – including some judges, I might add – who think that it is just a waste of time.
As I look back over the Judicial Conferences, they are one of the important reasons why the
judiciary works as well as it does. I still remember a session, for instance, with U.S. Attorney Jay
Stephens. The District judges really had at him about his using the federal courts to bring all
those ”nickel and dime” drug possession cases. It was important, first of all, for the judges to let
the Executive Branch know how strongly they felt that the federal courts were being trivialized
and marginalized. Secondly, it impacted the choice of a subsequent U.S. Attorney and the way
that U.S. Attorney operated to change the process altogether in tenns of the kinds of cases that
were brought, and also in tenns of the role of the federal courts.
Mr. Pollak: Who was the successor U.S. Attorney?
Judge Mikva: Eric Holder.
Mr. Pollak: I see, the current U.S. Attorney.
Judge M:ikva: He just cleaned that problem up; small cases go to the local courts where
they should go, and it has reduced substantially the number of minor drug cases that were in the
federal courts. That is just one example; there were lots of others, where the programs really
materially affected the way the process operated. Sometimes, the programs were a great way to
exchange substantive material, to bring in experts on trends of Supreme Court case law and so on
that were important learning processes for the judges and the lawyers. In addition to which, for
the last eight or ten years that I was on the court (maybe not that long, but close to it), we had a
judges’ breakfast where the judges went over their internal problems. It’s interesting that there
were very few situations in which the District judges and the Court of Appeals judges could meet
in that kind of an atmosphere. We have Judicial Council meetings, but those are attended by
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representative judges of the two courts, and there is usually a very fixed agenda to go over the
business of the two courts._ The breakfasts allowed the District judges to have a kind of a gripe
session. I found it very useful
Mr. Pollak: What is, as you understand it, the substantive basis of those who consider the
conferences not to be valuable?
Judge M.ikva: That the judges end up playing golf, that they are expensive, and that the
taxpayers pick up the tab for judges’ travel down to Williamsburg or PeDilBylvania, wherever it is;
and that the courts aren’t functioillJlg for two or three days while the conferences last; and it takes
a lot of time for the Circuit Executive and other staff to put the conference together. But, again,
an institution as big as the federal courts just doesn’t work on automatic pilot. It takes some care
and some concern, and I think that the conferences are an important place where that kind of
concern is reflected.
Mr. Pollak: Is the Judicial Conference under the auspices of the Supreme Court? How
does that compare?
Judge Mikva: The nomenclature is very confusing. There is a United States Judicial
Conference, which is the official governing body of the federal courts. That consists of the Chief
Justice, the chief judges of all of the circuits, a District Court representative from each of the
circuits (usually a chief judge within that circuit), the Chief Judge of the Court of International
Trade, the Chief Judge of the Federal Circuit. Those people make up the governing body of the
federal ju diciary. They supervise the Ado:rinistrative Office. They supervise the Judicial Center,
and they manage all problems of the federal judiciary on a policy level They meet twice a year,
and they function through committees the rest of the year. It is one of the re asons the federal
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judges are as independent as they claim they are — because of the way the U.S. judiciary operates.
In addition to the U.S. Judicial Conference, there are Circuit Judicial Conferences, which are the
ones I was talking about, which are not really a governing body of that kind. They function as
places where views can be exchanged between the bench and the bar. They used to be required
to meet once per year by statute. Now it’s at least once every other year by statute, but they can
meet every year. Every circuit has a Circuit Judicial Conference at least every other year. Then
there are the conferences that judges have after cases, which isn’t called a ‘judicial conference.”
It’s called the conference where the judges who were sitting on that panel (not all the judges of
the court) meet to decide how the cases should be resolved. There is a great deal of confusion
among non-judges about the difference between these conferences. At one point, for example, a
bill almost passed the Congress which would have drastically affected the way the judiciary
operates. Senator DeConcini was very irritated that the U.S. Judicial Conference would not open
its meetings both to the press and to other observers; so he inserted a provision in a pending bill
to require all conferences of judges to be open. By its literal terms it would have required the
conferences of the judges who decide cases to be open to the press. It would have been a big
change in the way the institution functions.
:Mr. Pollak: You may have sat at least on the U.S. Judicial Conference during your chief
judgeship and probably served on committees. Is that an exchange that has a bearing upon the
performance then of the judges’ responsibilities as a judge in individual cases other than as the
governing body?
Judge Mik:va: No. They will sometimes make policy that impacts individual cases. They
will decide on changes in the Rules of Civil Procedure or habeas corpus law which can obviously
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impact substantive cases, but basically they’re setting policy within the judiciary functions.
Mr. Pollak: Did yo.u find service on the U.S. Judicial Conference a significant part of
your judicial responsibilities?
Judge Mikva: Yes. You realize that you are 1125th or thereabouts of the policymaking
apparatus for the entire judiciary. It’s a very functional body. It really works. The Judicial
Conference really makes decisions, w.bile the Chief Justice has a heavy influence in the
decisional process; it is democratically run. The judges on occasion do outvote him or outflank
him
Mr. Pollak: How does the agenda get set? What comes before the body?
Judge Mikva: The connnittees make recommendations to the Judicial Conference on
matters witrun their jurisdiction. The Administrative Office reviews them Several officials at
the U.S. Administrative Office of the Federal Co urts function as the staff and service the
connnittees and then bring their recommendations to the semi-annual meetings of the U.S.
Judicial Conference. In addition, the Administrative Office itself will bring matters before the
Judicial Conference. 1ben, there is the Executive Committee of the Judicial Conference, which
is composed of five judges who meet regularly by telephone or in person between the Judicial
Conferences. Toe Executive Connnittee has authority to make most decisions between the semiannual
mee tings. Between the Administrative Office, the committees and the Executive
Committee, the agenda is set for each semi-annual meeting. The Executive Committee and the
Chief Justice will decide which matters will be on the list of matters to be discussed, and which
matters will be approved pro forma. While 70 or 80 percent of the agenda is on the pro forma
l ist, any judge can ask that matters be put on the “discuss” list to be brought before the
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conference.
Mr. Pollak:: Was that locus in your time of discussion of whether television should be in
the courtroom
Judge :Mikva: Yes, that was a recommendation from one of the committees. It was a
recommendation that was hotly debated; the committee came up with one decision, but though
the Conference reversed that decision, and agreed only to an “experiment.” The subject
continues to fester within the judiciary. It’s a very complicated matter.
Mr. Pollak:: Is there television today in some of the federal courts?
Judge Mikva: I think we ended the experiment. When I was there we had approved an
experiment with a couple of federal District Courts and, I think, a Court of Appeals, but I’m not
sure.
Mr. Pollak:: You were saying, I think, whether there is any television going on in the
Federal District or Appellate Courts.
Judge Mikva: I think that the last decision of the Judicial Conference ended the
experiment, but I’m not sure.
Mr. Pollak: Where did you stand?
Judge Mikva: I was for televising the Courts of Appeals and the Supreme Court. It just
makes no sense not to. In the places where there has been appellate court television, the N.Y.
Court of Appeals, for instance, it has turned out to be a useful teaching device. It assures those
few people who look at it that this is a good process. Unfortunately, some judges can’t adjust to
it. I do worry about trial court television. I think, again, the judges can adapt; but I’m not so sure
the lawyers can, and I am not at all sure that witnesses or jurors can. I continue to worry about it,
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which is why I was for the experiment. I thought we would look at it and see. Unfortunately the
experiment to do it occurred in normal cases, and it probably didn’t cause any problems. But I
don’t think you can put a case, a sensitive case, like the OJ. Simpson case on a television without
it materially affecting the result.
Mr. Pollak Are there other meetings that you attended periodically that mattered in
terms of your judging besides the Judicial Conference – bar meetings?
Judge Mikva: The bar meetings tended to be too formal and too structured to have any
serious ex.changes. There were speeches and judges were there, but the contacts were too formal.
Toe one other important place where judges did interact was informal, social gatherings: eating
lunch with the judges in the judges’ dining room, judges’ dinner parties and so on. These were
good places to exchange views.
Mr. Pollak: I take it what you’re saying i:: that those were important to you, personally,
not just to judges generally, but you found that aspect of keeping in touch important.
Judge Milcva: Yes. I think that most judges felt that way. There were sometimes down
sides. The judges’ dining room, for instance; I stopped going there, to some degree, because the
District judges who were the largest number of regular attendees would frequently talk about
cases that either were on appeal or on their way to an appeal It would get a little awkward every
once in awhile. I would come in and would overhear words like ”reverse the trial judge.” I still
thought the luncheons were useful, and certainly it was useful for the District judges to exchange
views, find out from each other what trial techniques were working. I was sorry that the Court of
Appeals judges, at least in our court, didn’t have that same kind of regular luncheon arrangement.
Mr. Pollak: I don’t tbink in this oral history that you have painted, your position on the
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cowt is one of kind of a monastic separateness from the world. On the other hand, going through
it, living through the years on the bench, did you feel that there were aspects of the isolation of
your position as a judge which you wanted to remedy by contacts that were available to you?
Judge Mik:va: You wanted as much contact as was proper because there really is a
tendency for the judges to be inner-directed for so long that they start to forget that they are
dealing with real world problems. They start getting very unrealistic and have unworldly
concerns. On the other hand, there are limits to what judges can and should do. I don’t think
judges should speak a lot on subjects that come before them on appeal. They shouldn’t express
their views. It is just a constant dilemma. I have been troubled by the outspokenness of some of
the District judges on the Sentencing Guidelines, views that I share. On the other hand, it makes
it a little hard to reassure the press and everybody else that those judges are really impartial when
they review the guidelines and apply the guidelines to individual cases. When a judge expresses
the view that the guidelines are a dumb idea, which they are, and yet that judge is supposed to
apply those guidelines in a rational manner, it gets a little sticky. So there are limits to what
judges can and should do; but, on the other hand, when judges take those limits to extremes they
really do turn the court into a monastery.
Mr. Pollak: I guess one of the most conm10n things that lawyers think about judges – of
course, you were a lawyer once – is that, unless you knew a judge tremendously well while the
judge was a sitting judge, a lawyer is disinclined to be abrasive with the judge. I wonder what
your observations are of this world of lawyers into which, like a fish, you swim, yet all of the
people that constitute the water in which you are swimming feel disinclined to say anything
really negative?
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Judge Mikva: Yes, it bothered me a little bit, particularly since I had come out of the
political world. The lowliest :voter never had any hesitation about telling me what I was doing
wrong. All of a sudden, here I am in this new job, the bench, where distinguished lawyers,
lawyers who know a lot more about a subject than I did, are deferential on everything. If I said
it’s dark outside, they agree even if the sunlight is getting in their eyes. The first time that I
became aware of this etiquette was at a dinner. There were a lot of lawyers at my table. I sat
next to this person who looked familiar. He was very polite. Whenever I started talking about
the law – it was not a lawyers’ dinner – whenever I started talking of the law, he would change
the subject. Shortly after dinner, before the speeches started, he excused himself and left. I
turned to the person at bis side and said, “Do you know who that was? He didn’t say much.” He
replied, “He just argued a case in the Court of Appeals and you tore his head off.” I remember
that if I ever voted for a bill that a constituent didn’t like when I was in Congress, they let you
know how they felt about it. As a lawyer, if you are arguing a side of a case that another lawyer
disagrees with, he tells you about it. But here was this lawyer who apparently had lost an
important case before me in an opinion in which I had not treated his legal arguments very well,
and he never said a word about it.
Mr. Pollak: It doesn’t surprise me.
Judge Mikva: No, and as I thought about it later on and thought of my own reaction
when I was a practicing lawyer, that’s right. He might be worried that someday he might appear
before me again and didn’t want the dinner conversation to somehow be taken into account the
next time he appeared.
Mr. Pollak: I have this brooding on the omnipresence of an idea that it’s kind of out of
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bounds to talk to a judge about an opinion that he or she wrote in a matter that you argued. I
suppose the judge could raise it, but otherwise not.
Judge Mikva: The problem, though, is that there is a concern that the lawyer shouldn’t
even think that they can reargue the case informally after the fact or should try to influence the
judge’s thinking aOOut that general subject vis-a-vis the case. You can obviously try to influence
the judge in a whole variety of subjects but not regarding that case except in formal court
procedures. Toe problem is you don’t want judges to be disconnected from the real world, from
the way lawyers perform, the lawyers’ problems. I think some of the bad cases, some of the bad
precedents in the law are instances where the judges are just sitting so high up that they forget the
problems that lawyers have. I think: that one reason class action law is moving in some
unfortunate directions lately is that the judges forget how important a class action can be to
resolving a •dispute. Instead of having 5,000 cases spread all over the country, a class action can
get it resolved in one case. There may be some problems about how to put the class together and
how to designate who the representatives will be and what will be the binding effect on
subsequent claims, but all those are problems that arise out of a serious mechanical management
problem: bow do you handle court litigation questions that come in? Asbestos, black lung
disease, breast implants – should they be decided on a case-by-case basis? So, I think that while
lawyers understandably are reluctant to bridge that gap altogether, they shouldn’t be as reluctant,
and judges should encourage this interaction and should know that dialogue can be useful
Mr. Pollak: Do you believe that the Congress monitors what the D.C. Circuit does?
What is the interface that you have observed between the Congress and the court.
Judge Mikva: Ahnost none. I thought of myself as an appellate lawyer when I was
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elected to Congress. I was on the Judiciary Committee and took an interest in what was going on
and the development of the law. But I lost touch Congress is too busy and loses touch
complete ly with what is going on in the law. It is unrealistic to trunk that Congress keeps up
with what the Courts of Appeals are doing. We had case after case where Congress ignored
concerns that the courts had raised – not about policy and not about the direction of a particular
law but about mechanical problems in the law; the fact that Congress hadn’t dotted the i’s and
crossed the t’s. lt would go unaddressed. We finally set up my last year on the bench this formal
procedure where the judges would send copies of opinions to the Speaker and the Senate
President calling to their attention that the court had acted in some way that affected a statute
Congress had passed. We were very careful to make it clear that we were not lobbying for
changes; we were only letting Congress know what was going to happen. It has had a modest
success.
Mr. Pollak: Would those have been statutory interpretation cases?
Judge Milcva: Yes.
Mr. Pollak: Well, that’s a constructive idea The question is whether Congress can intake
it, I suppose.
Judge Mikva: And whether the court will really follow through There was concern in
our court, for instance, and in other cowts, that somehow the judges who are on a particular
panel would seem to be trying to influence Congress in a particular way by malcing it aware of
those cases. I thought it was a serious problem. not to frighten either Congress or other judges.
We had to constrain the way to do it. The clerk of our court sends over an opinion without any
comment saying Congress might be in terested. Then it’s up to Congress.
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Mr. Pollak: Do ju dges ever testify on substantive issues before the Con gress?
Judge Mikva: Yes, but most of the time we prefer an invitation.
Mr. Pollak: Did you do so as Chief Judge? Was that an occa sion?
Judge Mikva: Yes, or even as an individual judge. I trie d to make it clear if I was going
over as an individual judge. First of all, I can’t recall that I ever went over and disagreed with the
Chief Judge of our court or with the Chief Justice. But on other occasions, if I was asked by a
Member of Congress to testify on something, and if my views were not official Judicial
Conference policy (which I think occwred on one or two occasions about very detailed rules or a
procedure), I made it clear that I was speaking only for myself, not for anyone else.
Mr. Pollak: I believe you spoke about contacts with the media in connection with the
Supreme Court nomination process, but I don’t believe that I inquired as to contacts with the
media just along the line of your performance of your judicial duties.
Judge Mik.va: I just thought that there was no appropriate way to do it. I kind of wish
that there were frankly, because some of the cases were grossly misconstrued by the media, some
of the important cases that we handled; and I wished I could clear the record in some way. But
there really isn’t any appropriate way for the judges to explain the decisions that are handed down
by them I wish the media had picked up more on the Chief Justice’s State of the Courts Address
he gives every year, and it would have been nice if major circuits could have made a similar
address about the state of the law of their circuit. The press really didn’t have much interest in
our courts except on an individual case basis. If it was a hot button case in District Court, then
the press was interested. If it was a hot button appeal, then our court was interesting. But as far
as the way the court functioned, there was no regular coverage. Court T.V. has tried to fill that
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gap a little bit and on one or two oc casions I was asked to appear. But there were so many things
that I didn’t think I could talk about.
Mr. Pollak: Would you receive invitations now as a former member of the court, for
example from Court T. V.? Would you feel a broader ambit for your comment?
Judge Mikva: Oh, absolutely. I feel free to talk about everything except anything that was
confidential about the way a particular case was decided or what was said at the conference. But
I can comment on the Court’s work and how the judges function. Part of it is that I feel very
positive about the judicial process and brag about the success of the federal judiciary.
Mr. Pollak: What about contact with academics? Was that something that played a role
in your judging?
Judge Milcva: Yes. I would feel freer in calling an academic to pick bis brain about a
subject matter than I would a practicing lawyer. I justified it on the theory that if I called the
academic, obviously, I was getting bis biases and prejudices spooned into the process of what he
was telling me; but, at least, it didn’t deal with a specific case. I would always worry about
calling lawyers because they might have some stake in a particular case I was asking about. Even
if they weren’t a party to that case, they might have a similar case; and I didn’t want to provide an
unfair advantage by allowing ex parte advocacy.
Mr. Pollak: But when a case was pending before you before argument, after argument,
when you had an opinion writing assignment, you would feel that you could make inquiry of an
academic?
Judge Mikva: Yes. Again, I used their written work extensively. I felt very comfortable
calling an academic. I usually wouldn’t say I’m working on such and such a case; but I would
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say, ”Do you still think that it is a good idea not to apply such and such a rule?” I found that it
was useful and they enjoyed it and I enjoyed asking them
Mr. Pollak: I bet they did. Did you do much writing outside your opinions while you
served as a judge?
Judge Milcva: I tried to do an article or two a year. For a long time I did it because I had
a feeling that the clerks could learn by helping me. You know one skill that young lawyers need
to have to go into practice which really isn’t taught anywhere is the skill of writing vicariously.
When I was a young lawyer, the things I was writing were not usually the things that bore my
name as the primary author. If you were the last name on the brief, you probably did most of the
writing. Arthur Goldberg’s name appeared first on the brief. Now that you are a senior partner,
I’m sure Steve Pollak’s name appears first on the brief. So one has to learn how to write
vicariously to write in the style, conducive of the views of whoever it is one is writing for. This
is particularly true of speeches. I found that when I went to practice law that some of the early
work I was doing involved preparing testimony for some of our clients before a legislature, when
they were lobbying for some position. There is an art to learning bow to write vicariously.
Clerks learn some of that when they are writing opinions for judges. It’s supposed to sound like
the judge’s work, but I thought it would be useful to give them additional experience, particularly
on spe eches. So I always made sure that every clerk worked on at least one of my speeches and
one of my law review articles. Unfortunately, we were given a terrible ethical ruling. The
Committee on Judicial Ethics said a few years ago that clerks should not work on these tlrings
because those are “extracurricular” activities and clerks were hired to work only on opinions. I
thought it was a ridiculous ruling, but I had to abide by it. It makes no sense because judges
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aren’t paid for their speeches, and there was no reason why the clerk shouldn’t work on it. It
came up, unforrunately, ou.t.o.f a situation where a judge was preparing a treatise on bankruptcy
and was using his clerk to work for him on the treatise. Now, obviously, that wasn’t the correct
use of the clerk, since the judge would receive income from the treatise. It is too bad, because I
found that the clerks were useful to me, and it was a useful experience for them When l lost the
advantage of being able to work with a clerk, l found my writing time became more substantial
because I had to do the heavy cite checking.
Mr. Pollak: That leads me to make an inquiry for an observation by you. In your time,
just as in my own, the computer-aided legal research has become a real big part of law practice
and judging, I presume. Would you comment on your own observations as to speed and also
facility and impact.
Judge Mikva: Speed is awesome, the accessibility and facility of finding resources and
sources is awesome, and the overall impact is disastrous. We are running into some really
serious problems, some of them are ridiculous problems of management. I know that once we
had an appeal from this lawyer who had a sanction thrown at him because his complaint had been
stricken. He filed a new complaint which was virtually identical to the stricken one. The judge
imposed sanctions on him, and the lawyer took an appeal. What was his defense? There was no
question that the complaints were virtually identical. He said, “It wasn’t me, it was just that it
was in the computer.” He couldn’t control it, so it was the case of a runaway computer. The fact
of the matter is that you find so much stuff in the briefs that is computer-generated. There are too
many citations and too many authorities that are computer driven. Toe research is so incredibly
easy to obtain. I’m not sure but there are legal services out there besides Lexis-Nexis, which
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really become several pages of a brief. If you need a section on res judicata, they’ll sell you the
whole section, cases and all, The briefs just don’t reflect individual thought and attention that
they used to reflect when lawyers would write case by case and thought by thought. That is part
of the problem The other part of the problem is that all the skills and talents that I prided myself
on where one had to exercise some restraint because of page limits and the difficulty in obtaining
the information are now available to everybody with no restraint at all. The example I always use
is Shepherdizing. I learned early discipline, before I ever put a case in a brief, I would
Shepherdize it; and I would Shepherilize it through the last issue of citations that I could get my
hands on. On one occasion, the other side was a big law finn in Chicago that had cited a case
that had been reversed. I won my appeal, and the appeals court reprimanded the other side.
Well, today the kids in law school don’t even know what it is that they are doing, but they know
they can get a case shepherdized by touching the right buttons on Westlaw and Lexis-Nexis. But
the result is that nobody looks at what you have. You punch it all in. It bothers me. I look over
the overall technology that this country created, and I’m sure I sound like a fudd y-duddy when I
say this, but it has brought us this tremendous informational research and it hasn’t brought us any
self-discipline.
Mr. Pollak: I think that sometime back in our interviews, you did comment on people
who you regarded well who argued in front of you? I think that this should record that, but my
recollection is that you did it.
Judge Mik.va: I think so. I think I mentioned some people.
Mr. Pollak: A number of people. I’m unclear whether I asked you what you looked for in
selecting your clerks. I rather think that I didn’t.
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Judge Mikva: Well, let me go through it very quickly. I would first look at their writing
ability.
Mr. Pollak: And how did you ascertain that?
Judge Mikva: If they were on Law Review, I would look at their Law Review notes; but I
would try to get an unedited version of it. I would ask for papers from them I would ask for
papers they bad prepared over the last several years. I would talk to their professors. That was
one issue. I interviewed. Some judges hi.re clerks without an interview. It always astounded me
because, among other things, I think the most important quality of a clerk is the right chemistry.
Toe judge and the other clerks in the chambers as well as outside the chambers have a lot of
contact with each clerk. So I would always interview. I wanted a clerk who would work hard.
Unfortunately, I’d lose some good people who wanted to do other things. I needed their
undivided attention. I tried to get off the beaten paths as far as law schools were concerned,
although it is much easier said than done.
Mr. Pollak: \Vhat do you mean by that?
Judge Milcva: Harvard, Yale, Chicago, Columbia, Stanford – the clerks on this court tend
to come from those schools. The reasons are obvious and understandable. They do turn out
awfully bright people. Our court has always been a feeder to the Supreme Court so many of our
clerks end up going there after clerking here. Most of the judges had personal relationships with
members of the faculties of those schools so it was easy for a faculty member to call on us and
say they had someone. The relationships were such that it was very hard to pick clerks not from
those schools.
Mr. Pollak: 1bis is the continuation of the interview on Monday, November 4, 1996. We
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are talking about clerking being the best job anyone could have or any law graduate could have.
Judge Mikva: I just.enjoyed my clerkship thoroughly. It has always been an important
credential I always marvel at the fact that some 45 years later, whenever I am introduced to an
audience, one of the things they talk about is my having been a clerk. So that for all of the rest of
the career, the clerk will have the benefits of not just the badge but the experiences that they
usually pick up. If they want to teach, an essential piece of their background that they have to
have had is a good clerkship somewhere along the line. So I’ve always wanted to see this benefit
shared among all of the other law schools in the country rather than an exclusive group of
schools. It is very hard because the personal relationships are that I don’t know people at New
Mexico or Wyoming and, secondly, the measuring sticks aren’t the same. You see somebody
who has A’s at Harvard or Chicago or Columbia and you know the measure of that person as a
lawyer. Someone with A’s at other schools may not be the same. Mostly, I just couldn’t call up
people or people couldn’t call me up to say here’s somebody you might want. That is why it was
always such a treat to get a student from other places.
Mr. Pollak: What places did you obtain clerks from that were on a lower track?
Judge Mikva: Oh. I had a clerk from Florida I had a clerk from Utah. I had a clerk from
Oregon. I had a couple of clerks from Illinois and Wisconsin.
Mr. Pollak: Had you been able to ascertain their qualities sufficiently so that they turned
out to be comparable to your other clerks?
Judge Milcva: Yes. In fact, that is the other thing you worry about sometimes when you
bring in a clerk who is not normally considered in the top ten. How is that clerk going to feel
about competing in the league in which everyone else went to Harvard, Yale, Chicago and
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Stanford? And here, he or she is from a lower gear. Sometimes that is enough to overwhelm
him I had one clerk who l _still look back at as a great clerk but who came from a state law
school Unfortunately, the other two clerks I had were from ivy league schools and looked down
their nose at him
Mr. Pollak: Really?
Judge Mikva: It bothered the hell out ofme. It is very hard for a judge to do anything
about it except set some obvious rules, but I couldn’t say anything that would help. I think it
adversely affected his inspiration, and it probably adversely affected his satisfaction with the job.
So there is a problem; but on the other hand, it is worth it.
Mr. Pollak: As chief judge, did you have four clerks?
Judge Mikva: I was entitled to four clerks. I found – I got this advice from Judge Leon
Higginbotham. I used that fourth spot to bring .in an administrative type of an assistant because
there was a lot of administrative work. The people that come .in as substantive law clerks don’t
have any particular administrative ability, and they aren’t particularly interested. So I found
somebody who worked ? a court administrator.
Mr. Pollak: Have your clerks moved into doing interesting things, doing public service?
You’ve had a lot of them, so I’m not asking you to catalog every one.
Judge Mik.va: What pleases me is that a lot of them have gone into teaching and some of
them are very fine teachers at law schools at the University of Chicago, Virginia, Wisconsin,
Illinois; and that pleases me. Some of them are in public service. I think one of the great plusses
for judges is the whole clerk process. It’s very key to judiciary work. It brings a new act every
year. It is very good for the judge. As a person, you are offered this extended family every year
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with three new children- all grown, with college educations all paid for. It’s the best of all
possible worlds.
Mr. Pollak: In your time as a lawyer, the practice oflaw and clerking has opened to
women. It wasn’t really open to women when you began, and it wasn’t really open particularly
when I began. I wonder what observations you would make including a bunch of clerks?
Judge Mikva: At the levels up to senior partners, the women have been integrated
incredibly swiftly and wel l I think that a firm no longer thinks of hiring at a discriminatory
wage. On the other hand, when I started practicing law, we had no women. We did hire two
permanent associates, and they were getting paid less than new lawyers. Firms wouldn’t consider
doing that today. Women are accepted by their employers. That goes all the way up to, I think,
the senior partners. I think there may be a glass ceiling at the managing partner level
Mr. Pollak: Did you find any difference between men and women?
Judge Mikva: The only place I found a difference – and I told my wife about it – there
was a difference when you have a woman who has children. She has a higher priority that she is
always going to reach for. It’s even more important than getting an opinion in on time. She is
the primary caregiver for a child. I accepted that; but it does make a difference because when I’m
dealing with a male, he never has a higher priority. That is what is wrong with the way parents
divide up their child-raising respon sibilities.
Mr. Pollak: Did you find some males who had that higher priority?
Judge Mikva: No — maybe there was one exception.
Mr. Pollak: What about minorities?
Judge Mikva: It’s harder to make any blanket claim on how to resolve the problem I
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think most judges actively seek out minority clerks to the extent they can. How much affirmative
action they need to do it, I.don’t know. Again, I can’t imagine most of the judges I knew,
including some of the ones whose views I didn’t like or whose styles I didn’t like, who would
ever refuse to hrre somebody because they were a minority or impose a higher standard on a
minority. The difficulty is that there are very few minority students going into the law, and those
that are have frequently suffered from such bad secondary education, have had less than adequate
preparation for law school, that it’s much harder to stay in law school. The University of Chicago
Law School uses LSAT’s and grade point averages as the cornerstones of its admission policy.
One year, the chart I saw showed that in that top segment from which their students were drawn,
there were maybe 30 or 40 African-Americans in the entire country. Some of them decided not
to go to law school; others went to Harvard, Yale and Stanford. It doesn’t leave much of
anything for the rest of the law schools. And that is still a problem Plus the fact that, I think,
advancement in the law firm is a little more difficult. Again, not because the law firms want it
that way, but because there are so many things that happen in a law firm that make it difficult for
IIlillority groups to prosper. Absence of peer support, inability to bring in clients. I’ve had
discussions with some ofmy former clerks and others, and it’s still not easy.
Mr. Pollak: How many minorities did you have as a judge?
Judge Mikva: Well, this excludes Asian-Am ericans because I had a lot of those, but I’m
not sure. I know that they qualify in making up the statistics, when the fact of the matter is, it is
hard to say that Asian-American law students are at any disadvantage. Many of them are third
generation college grads; their parents were professionals, scientists, computer experts; they went
to the very best private prep school, to Stanford Law School. I somehow feel guilty counting
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them as a minority. If you talk about African-Americans and Hispanics, I had six.
Mr. Pollak: Have tl;tey stayed in the law?
Judge Mikva: Yes, they are all in the law.
Mr. Pollak: I’d like to tum to something that is an important part of your history, which is
judicial administration. You’ve alluded to it along the way and so it isn’t something that there
may be that nruch more to come, but you served as chief judge during what period?
Judge Mikva; January of 1991 to September 24th
, 1994.
Mr. Pollak: Before you became chief judge and as a circuit court judge, what comment
would you make a s to your role in administration of the court?
Judge Mikva: Well, I served on various connnittees for the U.S. Judicial Conference; I
chaired the program committee at our judicial conferences; I was on the planning committee
several times. I worked with the chief judge on tasks that were assigned to me. I am impressed
at how well the judicial system works, and I really felt kind of an obligation to help keep it that
way. l just can’t get over how much better the judiciary functions than the other two branches of
the government and with a much smaller piece of the overall budget. The judges keep the
overall cost really small. Unfortunately, the trend is in the wrong direction because, as we have
gotten more judges, as we’ve gotten more people involved in the judicial process, as we’ve gotten
more responsibilities through new statutes for the administration of justice, the comfortable
hands-on administration is getting harder and harder to do. I think that the time I spent as chief
judge was substantially more than my predecessors spent as chief judge on administration; and I
th.ink that Judge Edwards, my successor, is spending even more time on it.
Mr. Pollak: About how much time do you th.ink as a percentage of your working time as
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a judge you spent when you were chief judge?
Judge Mikva: AboJ1t 1/3, between 1/4 and 1/3.
Mr. Pollak: So, did you have to cut down how much you sat?
Judge Mikva: Well, in many circuits they do. In this circuit, it was frowned on. But,
again, I had this one clerk, a person who I hired as a permanent administrator. She was there all
the time. She was very good. She took a big piece of the responsibility off my shoulders.
Mr. Pollak: What was her name?
Judge Mik.va: Debra DeMille Wagman. She came out of the Superior Court, and we had
a good Circuit Executive who made a huge difference. Even so, I’d say it was 1/4 to 1/3 ofmy
time. If nothing else, just reviewing and approving recommendations that they made took a lot of
time. What I found is that since we didn’t reduce the number of sitiings, it impinged on some of
the things that I otherwise would have done with cases.
Mr. Pollak: Was it a rewarding assignment?
Judge Milcva: First of all, being part of the national governing body for a whole branch of
government was very exciting. It was a small collegial body where each individual cbiefjudge
had a lot of input in important decisions. But, in addition, on our own court I had a chance to
exercise influence.
:tvlr. Pollak: Why don’t you give an example of exercising influence and making the
courts run better as a chief judge.
Judge Milcva: Well, I think one of the things that happened — again, I don’t want to sound
like I invented this, but we formalized and computerized the calendar system One of the great
myths in developing this Circuit was that somehow the chief judge manipulated the calendar and
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would decide who sat on which case. Judge Bazelon, when he was chief judge, was always
suspected of such, but it neyer happened. By the time I became Chief Judge we had come out
with this computer model to make sure that every judge sat with every other judge an equal
number of times and calendared the cases strictly through the computer. There was no one that
could ever manipulate the clerk or the chief judge into an assignment so that a particular case got
to a certain judge or that certain judges sat together. We were quite a success at brealcing the
mold. Tue pattern that unfortunately developed was that this wonderful random computerized
way of making sure that the cases were selected and the judges were selected without any biases
nevertheless allowed the judges to trade with each other. If I couldn’t sit on a certain day for
some reason or other, I would trade that day with another judge. Well, that frequently ended up
with two or three judges sitting together more often than they should have. We tried to diminish
that by persuading the judges to avoid any conflicts and rearrange what they have to do – like
teaching and speaking and traveling. I think we got a better handle on statistical recording of
how long cases were taking on backlogs or logjams. We did a pretty good job of controlling the
back.log and the logjams. Some years earlier, the chief judge had presented a rule that precluded
a judge who was a certain number of cases behind from sitting until he got caught up. That
became an internal spur among judges. Anyway, the fact that there isn’t a logjam is in part due to
a more efficient case management system
Mr. Pollak: Does being chief judge give the chief judge any advantages in influencing
other judges either in administration or anything else?
Judge Mikva: Well, the chief judge is always the assignment judge if he or she is in the
majority on any case.
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Mr. Pollak: Your voice in conference didn’t have any greater timber to it?
Judge Mikva: I pre&ided over the conference and assigned the majority opinion, if I was
in the majority. On the administration, most of the judges, not all, but most of the judges,
accepted the chief judge’s recommendations on administrative matters.
Mr. Pollak Did you identify any disadvantages to being chief judge other than the time
demands?
Judge Mikva: No, again, it depends on how you feel about the court. I liked this court.
I’m proud of our court. I was proud to be identified as chief judge of the court. I thought it was
great.
Mr. Pollak What role did you play, if any, and what was your role in spurring the
mediation or ADR program. and what was your perception of its influence on the court’s docket
and case management?
Judge Mikva: Well, I was a very late reformee as far as views on alternative dispute
resolution. When I first Cfillle on the co urt, I bad previous experience in labor arbitration, which I
found very unsuccessful in the settling of disputes. And, I thought particularly when they talked
about mediation of important government disputes, it just seemed to me to be a bad idea. It
wasn’t going to work for this court. I also remember that some courts on the second circuit, for a
long time under the guise of mediation, the judges would lean on parties to settle cases that
shouldn’t have been settled. I remember instances when I was a lawyer, sometime during
pretrial, the conferences with the judge and the judge would look at us and say, ”You know you
really ought to settle this thing; here is where I think you ought to settle.” Then the idea of trying
the case before that judge, if it wasn’t settled, always bothered me. So I was very opposed to the
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idea; actually, I shouldn’t say opposed, but I thought it wasted a lot of time the important cases
would not get settled. Ancl-J was astounded and delighted at how successful it was.
Mr. Pollak: This is at the appellate level?
Judge Mikva: At the appellate level. But then as I began to ask questions about trial
work, I found that it was successful there too. But let me talk about the appellate level. Part of
the incredible success story arose because the program attracted a panel of mediators – mostly
retired or still active lawyers in practice but clearly people who were still at the top of their game
as practition ers of the law. They had the right attitude about mediation. They understood what it
was not – they weren’t supposed to cut the baby in half, they weren’t supposed to act as substitute
judges. They were supposed to keep the parties talking about trying to find a formula for settling
the case. What really astounded me, I think, was that the government, which I was sure would
just reject that system. became a very willing participant. I think that part of it was its greatest
success. And the Civil Division of Justice became an enthusiastic supporter in the mediation
process. They encouraged their attorneys to take part. We seldom had, we did have some rules
which said that you had to at least appear at the mediations; but we seldom had to enforce them
The parties, as more disputes were settled, usually understood that this was a better way of
getting it resolved; and they weren’t hostile to the process. The court didn’t have to apply any
rules; the lawyers just bad to show up. The impact on the calendar of the judges was that there
were a substantial number of cases being taken off the calendar. We save an incredible amount
of public resources for every case that’s settled. Our mediators were not paid, a professional
giving away professional services in a commercial context; but I am convinced that’s one of the
reasons it works so well.
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Mr. Pollak: Are the circuit courts adequately funded, or was your court adequately
funded in your tenure as judge and then chief judge?
Judge Mik.va: Yes, I think that’s one of the reasons the judicial system worked was
because it did provide sufficient funds; we had more help. I’m not sure, for example, that an
appellate judge really needs three clerks; we probably had more people and computer information
than we used. But overall, there were sufficient resources. You expected to put demand on those
resources and get results. The waste in the judicial system. as far as I’m concerned, is the things
that we’ve let happen in places when judges sit. When I started practicing law, the Courts of
Appeals all sat in one place, except maybe in the Ninth Circuit. I think that all the other circuits
had one place to sit. All the judges lived in that place, and there weren’t any travel allowances
and chambers for judges in other places. Now, all the Courts of Appeals sit in many places. The
Seventh Circuit, for in:::tance, still sits mostly in Chicago. But they have chambers for judges in
Madison and Milwaukee and Indiana; all those are very expensive. It is very expensive to
maintain the judges, the travel expenses for the judges and for the clerks, the extra
communications equipment, the extra hbraries in more than one place. Even in the D.C. Circuit,
several of the judges do not reside in Wasrnilgton, D.C. There is an extra expense. I don’t think
they can charge for travel, but there is extra expense for communications and other support
services. More substantial is the extra cost of all the extra District Court facilities, and that is
Congress’ fault. Congress decides where there should be District Courts, where they should sit.
The notion that this special federal jurisdiction should be available in every nook and cranny of
the United States is nonsense. If this is a speciaJ kind of jurisdiction, I see no reason why the
lawyers shouldn’t come to some population center where the District Cowt would be located. It’s
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not the number of District judges, it’s the number of District Cowts. This is Congress’ problem
because they want to bring- courthouses home to their districts. Look at some of the places where
District judges sit; they don’t have any business in many of those places.
Mr. Pollak: What, if you have an answer, what do you want your chief judgeship to be
remembered by?
Judge Mikva: I trunk I’d like it to be remembered that I was trying to make the court
more efficient, without diminishing the personal needs of the judges. It’s hard to describe a
judge’s work schedule in a way that really would be appreciated because judges do control the
schedule. They can decide when they come into the office and when they go home, how long
they make their opinions and how many footnotes they put in. It makes it sound like it’s almost a
non•workingjob. Well, that is not true; most judges put in an incredible number of hours. Their
hours are flexible hours in the sense of when they work, but most judges work more hours than
they did as lawyers. I know I put in more hours as a judge than as a congressman, and most
judges I know put in more hours as a judge than as practicing lawyers. But I would like my chief
judgeship remembered for fmding a way of making the overall operation of the court more
efficient and productive without interfering with the flexibility of a judge’s schedule.
Mr. Pollak: Do you think that you would identify any particular challenges that you bad
to meet during your chief judgeship other than what you may have already spoken about?
Judge Mikva: I trunk the one that I have to meet that I am most unhappy with is that I
was not able to – it took place on my watch and started before my watch – is that I was unable to
restore collegiality among the judges. There was that sharp division, for the first couple of years
before I came on and then when I crone on, between Chief Justice Burger and Judge Bazelon.
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But Chief Justice Burger left the court, and the court was quite collegial It stayed that way until
fairly recently, and I was not able to restore it when I was chief judge. I was challenged by that.
Mr. Pollak: Well, I’d like to ask some general questions. From your perspective, the total
of all your experience and particularly as a judge, I guess, what are the qualities of a good judge?
I suppose initially, it needs to be asked in relation to an appellate judge because that’s the area of
your expenence.
Judge Mikva: You have to care about the law. You have to really think about the law as
rewarding, there really is a fabric of the law. The appellate courts care. Certainly at the federal
level, we define the legal landscape of many, many important things. Judges aren’t consistent in
evaluating the con.sequences of their individual decisions and how they play out in the legal
landscape. Toe landscape is very murky and unfair. So I think that the first thing that I would
say for an appellate judge is that he or she needs to think about the law as the primary institution
of governance that they want to be involved in. I think that, I hate to say it, some judges don’t
like what they are doing. Some judges just aren’t ready to be judges. I’m sure that I was that way
before I came through my 30s and 40s. Some judges are still too involved as active practitioners.
They care too passionately about individual results. I think that an appellate judge has to
somehow exercise some self discipline and say that while the individual result is .important, there
is more to this decision. This decision I am going to hand down, this opinion I am going to write
is going be read a lot later, by people and in cases besides the parties to this case. Subsumed
within that requirement, the judge needs to have some smarts; some of the problems that judges
have are that they have to spoon together things that don’t always appear similar. I think it
requires a certain age because age is what brings some judgment and some patience.
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Mr. Pollak: A feeling for the law, smarts, judgment, some age, patience. Anything else?
I don’t mean that there is, I’m just probing to …
Judge Mikva: Patience. In many respects, it’s a little more difficult for judges than for
lawyers. There is this tendency, because of the black robe and the high bench, to become
peremptory.
Mr. Pollak: I don’t view this set of interviews as one for your service as Counsel to the
President. The Archives will be asking you to speak about that, although you are not precluded
from anything you want to put in. I am led to ask you, because I am sure you had some role in
the judge selection process of President Clinton, I’m led to ask whether the process or even the
part of it that you touched could filter out characterist ics of candidates along the lines that you,
from your experience, know really make a good judge.
Judge Mikva: Most of the time that selection process was incre&Oly successful. There
were occasional aberrations because every once in awhile additional factors got poured in. A
Senator wants somebody very strongly, and the depth of that Senator’s desire for a District judge
just trumps things that should count more. The nominee has some important “rabbis” elsewhere
in the political landscape, and that trumps some more important concerns. But most of the time,
for most of the candidates that came along while I was there, I am impressed at how well the
entire selection, confinnation process works. Unfortunately, the confinnation process during the
last year or year and one*half – really since the 1994 election – really became very political. I
don’t mean because it was taken over by Republicans. I found Orrin Hatch a thorough gentleman
and a delight to work with. But there were people, some of bis colleagues, who really felt that in
the time before the election there was a mandate to block the approval of any judge, to try to
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make the second half of the Administration nonexistent as far as judges were concerned; and that
caused problems. But, taking. that into account, the rest of the selection/confirmation process
works incredi’bly well most of the time.
Mr. Pollak: Where do these characteristics — what agency looks for the characteristics
that you’ve described? Who is doing that?
Judge Milcva: Well, at every level. It starts with the Senator. Let’s take a District judge.
The Senator wants to appoint somebody. He or she is getting input from a whole variety of
places, including local bar associations, local lawyers’ groups, local political groups, local civic
groups, and he or she wants to recommend somebody that will get appointed, somebody that will
bring some credit to him or her. Chuck Percy, for example, was a Senator from Illinois. He
continues to brag about some of the people he helped put on the bench, and he is entitled to credit
for them They were great people who turned the District Court bench around in Chicago. So, it
starts there. Then the names get sent in to the Justice Department, Justice has a whole
department to go out and interview these people and talk to them and do a work-up on the
candidate. The name is brought to this group of Justice people, White House Counsel’s people,
people from other agencies, people that are active within the White House and the Vice
President’s office, other places where they would have some reason to have concern about who
the judges are. They go over the names and think about them, argue about them, talk about them
They sit over coffee and say “Steve Pollak would make be a good judge.” Then it is sent out for
an FBI full field investigation. The FBI usually doesn’t come back with qualitative sports about
the candidate’s abilities. Sometimes, in their field interviews, they will get colleagues of these
lawyers who will say, “This guy would be a temble judge. He can’t keep his cool. He wouldn’t
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be a very good judge.” Academia weighs in because these people have all gone to law schools.
They have some ties to their own institution; some have taught, written and so on. The President
weighs in. He would remind me on occasion in discussing a potential candidate that he used to
teach constitutional law. Since I knew about the judicial process, on several occasions we would
get into full blown serious discussions about the judicial potential of a ca ndidate. All the more
true about the Court of Appeals judges, except that with them, the Justice Department takes this
more seriously and the President takes it more seriously because they are normally thought of as
his appointments. You multiply that process by a jillion in the Supreme Court, and you
understand how thorough the process is. If they had prior judicial experience, their opinions are
read. I remember in several selection sessions, we sat around reading opi nions of some of the
judges.
Mr. Pollak: What about the ABA?
Judge Mikva: The ABA is a very important resource. This President is very, very
sensitive to their reconmendations. He went ahead with only one nomination that the ABA
didn’t recommend. Their processes are extremely meticulous, extremely fair. They make sure
that there is no personal bias; their views are not preordained, and their recommendations are
very meaningful When the ABA rates a candidate ”well qualified,” that person’s chances are
improved mightily. I have to say in conclusion, the result shows. When you look over the
cahber of people who have been appointed as federal judges, and, not just in this Administration,
but over the last four or five administrations, they’ve been very high caliber.
Mr. Pollak: Would you express yourself differently in describing the qualities of a good
lawyer?
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Judge Mikva: Yes, a little bit differently: depending on the field oflaw, the lawyer can
and should be more concerned about the warm zeal quality that they give their clients. You’re
supposed to be an advocate. I know there are limits on how much of a partisan a lawyer can be.
But a good lawyer is much more active for that particular case; the lawyer has less responsibility
to the fabric of the law. A lawyer needs smarts, but a lawyer doesn’t need the kind of patience
and judgment that a judge needs. A lawyer need not worry about the state of the law that a judge
needs.
Mr. Pollak: I don’t trunk that I have any other general questions about the bench I think
you had occasion to speak about the Gender-Bias Task Force, which was a committee of the
court, I guess. It was not a committee of the Judicial Conference, was it?
Judge Mikva: Of the U.S. Judicial Conference?
Mr. Pollak: Or even of the Circuit Judicial Conference?
Judge Mikva: No, but it was of the Council of the Court. It was an official committee.
Mr. Pollak: I’m not suggesting it wasn’t official.
Judge Mikva: The report was – there was a program at the Judicial Conference while I
was Chief Judge that discussed the pro ject and had people on it talking about various of the
recommendations that the gender study was going to make. But, it did not come through the U.S.
Judicial Conference, though they did send signals from time to time encouraging the Circuits to
get involved in this kind of thing. Toe Ninth Circuit had an enormously successful Gender-Bias
Study. I think I indicated before that I felt that women lawyers at the lower echelons of the
practice, that hiring practices and treatment by law firms around here had pretty well bridged the
bias gap that had existed. I think what the Ninth Circuit study showed and what I think our
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studies showed is that while that was true most of the time, there were still some varied
exceptions: as you got higbe,; up the scale, there were a lot of problems that still existed, and
there were some problems of judges not being aware of the consequences of some of their
conduct and the way in which it either involved bias on their part or would be perceived as being
bias on their part. I think maybe I even told this anecdote somewhere else in some interviews
about my daughter who used to do allocutions when she was practicing law in Chicago: She
appeared once with her client before a judge she had known since she was a little girl •· he was a
contemporary of mine in the state legislatme before he went to the bench He patiently heard her
out, and when he was sure she was through, he said, “I’m sorry honey, I can’t give you any help
today.” She said when she was descnOing it to me, “The worst thing was he didn’t even realize
how he had totally destroyed me in the eyes ofmy client who was already concerned with a
young slip of a female who wa.Q making this plea for his freedom before he was sentenced. And
the Judge said, “I can’t help you, honey.” It was just as if I was still a little girl That’s what he
didn’t realize. He was still perceiving me as a little girl who was Senator Mik:va’s daughter, as I
was when he was in the state legislature.” That is the kind of thing that gender-bias studies were
devoted to. It was very successful out in. the Ninth Circuit. I think it did an incredible job here.
The difference here is that there is so much “sturm and drang” about the study itself among some
of the judges, who said they would reject the proposed findings and so on, that no one paid much
attention to the substance. They argued about whether there should be a gender-bias study, what
it should do, what it shouldn’t do, what its impact should be. I think it was very shortsighted of
those judges to say we really resolved all the problems so there was nothing to look at. If we
really resolved all the problems, what better way of establishing that than having a
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gender-bias study that makes this clear. Obviously, we had a disagreement.
Mr. Pollak: I served on the committee that aided the task force that was made up just of
the judges, so I know about the report which, in fact, was extremely supportive of the job of both
the circuit and the district bench having made tremendous forward movement in sensitizing
themselves and so forth You commented earlier that you were not able, as you wanted to be, to
continue to maintain the levels of collegiality on the court. Was there a problem that beset the
Gender-Bias Task Force’s work that came out of the lack of collegiality? How did that occur?
Judge Mikva: No question about it. It started when the Gender-Bias Task Force was
proposed during Chief Judge Wald’s tenure. Other Circuits were considering it around the
country. Tue Ninth Circuit had started its study when she proposed it here. The ma jority of the
judges supported it, but there were some who did not.
Mr. Pollak: Did she propose it in the circuit judges meeting of the active judges?
Judge Mik.va: Right. The majority supported it, and there were some who did not. It was
then taken to the District Court level, and the majority of them supported it. I think that was
when it became a Judicial Council project. It was an official project supported by a ma jority, but
the minority were very, very much against it. I thmk this may have been on my watch but it may
have been Judge Edwards’ watch when the proposed report came out. The majority of the circuit
judges disassociated themselves. It really revved up the level of dissension and disagreement
among the members of the court. It really was unfortunate because, as you point out, most of the
report was very commendatory about the way the judges had behaved. In the majority of the
instances we bad made tremendous progress. Why that should not be something that we look at
and why we shouldn’t look at those places where more progress needs to be made, I never
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understood. I still don’t understand: I won’t begin to speculate on why these judges opposed the
gender study. They were usμJ.g it to beat up on Judge Wald and then continued on me. It
denigrated the openness with which I think.jud ges ought to look at q uestions of bias because, if
there is anything a court has to be concerned about, it is that anyone is perceiving bias – not that
it means there is a bias, but we ought to look at why they are perceiving bias. Whether or not
they would perceive themselves as being biased, wheth er it was true or not, it was for the court
an important percep tion.
Mr. Pollak: What standard did you apply in respect to recusal?
Judge Mik.va: Well there were some formal standards. If it involved a clerk, I would
recuse for two or three years. If it involved a matter on which I bad publicly expressed myself in
a meanin gful way in Congress – if there was something about a bill that I bad co-sponsored or
had come out of a committee where I had strongly been involved, I would recuse myself from
ruling on that law. I didn’t recuse with every law I voted for because I would not have sat on
many cases. I recused on matters where I knew any of the parties on a personal basis. I usually
did not recuse on the basis of knowing the law yers. I figured that they were professionals and I
was a professional.
Mr. Pollak: I think that you had indicated that you wanted to quit, or we had , at 11:30
and it is a little after that so I think I will close it out at this point.
Judge Mikva: Good.
Mr. Pollak: Okay.
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INTERVIEW NO. 8
This is the eighth i]]J?ryiew of Abner Mikva in the talcing of his oral history as part of the
Oral History Project of the Historical Society of the District of Columbia Circuit. The interview
is being taken at Shea & Gardner by Stephen J. Pollak on Tuesday, October 28, 1997. The
persons present are Judge Mikva and Steve Pollak
Mr. Pollak: Good morning, Judge Mikva. It’s a pleasure to see you; you have a Midwest
color to your face.
Judge Mikva: I do?
Mr. Pollak: We had concluded at the last session with some comments of the standards
you applied in recusing yourself, and I don’t see a need to reraise that subject and I’m sure you
don’t quite remember the precises of what you said. Unless there was something in your mind
about recusal, I’ll move to a new area.
When you became a federal judge and thereafter, what did you find your experience was
with your personal friends? Did they change? Did they remain the same, and who would you
identify as people you knew throughout your judicial service as your personal friends?
Judge Mikva: The change was my relationship with lawyers. I’d bad some good friends
among the bar, the Washington bar, while l was in Congress; and when l went on the bench, I
realized, and as I thought about it, was … I’m sure it happens with every judge … t here was a
sometimes subtle and sometimes abrupt influence/change in the way the relat ionship continued.
Many of them had matters in the federal courts. They weren’t quite as free to talk about them
when I was on the bench. Sometimes, if they didn’t, their firm had involvements and it … I,
myself, started imposing sort of restrictions on who I would have lunch with If it was somebody
from a big firm, I would try not to do it during the sitting period or try to make sure there were –
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other people around. I simply did not want some other opposing lawyer to see me sitting with a
partner at Shea & Gardner? ?d the next day somebody else is arguing a case before me. So then
I found that, and I don’t know whether that was our court, I think not, I think it has to do with the
nature of judicial work, but I never developed the kind of really close intimate friends that I had
when I was in Congress.
Mr. Pollak: Among your peers?
Judge Mikva: Among my pe ers. Most of the other judges, the relationships with them,
we had lunch together once in awhile, have an occasional court social event, but it was not the
kind of camaraderie that I was used to .in the Congress.
Mr. Pollak: Did you … do you have a different view respecting the District judges? Do
you think they have a camaraderie?
Judge Milcva: No, I think it’s the same kind of a problem The judge’s work is so
uniquely alone. A District judge does most of his work alone. A Cowt of Appeals judge, aside
from the oral argument and the conference, does most of bis work alone. And, even on the
opinions, even after the conference, almost everything is done by mail, by written word or, at the
best, telephone conversation. But it’s very seldom that the judge will go back and talk to a
colleague about a case after there has been a conference on it The District judges had lunch
together – that was the one break – and I would sometimes go to the lunch room I found that
while I would do it every once in awhile just to show the flag, especially when I was chief judge;
it either did or should have chilled their conversation because frequently they would be talking
about cases that were happening, and many of those ended up corning up on appeal.
Mr. Pollak: Did you find that friendships such as they were with members of your court
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cut across lines which were at least identifiable, if not certain, between more liberal or more
conservative judges?
Judge Mikva: I think so. Jim Buckley and I had a very good personal relationship.
Again, we didn’t do a lot of socializing together, but I was very fond of him and his wife Ann;
and when we weren’t disagreeing about cases, lfound our relationship very pleasant and, well, it
was pleasant even then, but I found we saw eye-to-eye on many, many things. It surprised me;
I’m sure it surprised him too. I became a great … I developed a great affection for George
MacK.innon, especially after I bad served with him for a little while. I don’t know if you
remember him or not.
Mr. Pollak I do, certamly.
Judge Mikva: He had an incredible bark … you know, he couldn’t say good morning
without sou nding like he was barking at you, and this was really a very nice, gentle person that I
became very, very fond of after I realized that it was just a bark.
Mr. Pollak: Of course, you and he had in common the legislative background.
Judge Milcva: We did, and that helped a lot.
Mr. Pollak: What about outsiders from the court? You and your wife must have had a
constancy of friends. Did they carry on in the same way or did being a judge either promote or
interfere with those relationships?
Judge Mikva: The relationships that carried on the most vigorously were the
congressional relationships. I would see the Members of Congress that I had been friendly with
after I went on the bench I still continued to play paddle ball and tennis with them and see them
socially. We probably, Zoe and I, saw them probably more than we saw anybody else. I started
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off every mo.ming working out at the House gym, so that was a place I could keep up with them
Mr. Pollak: Do yoμ \Yant to name a few of those?
Judge Mikva: Don Edwards, Bob Kastenmeyer, Phil Burton before he died, Don Fraser
before he went off and became Mayor of Minneapolis.
Mr. Pollak: That’s a very estimable group there.
Judge Mikva: Wonderful people. We were all part of something that we called “The
Group” when I was in the Congress. I think there were 10 or 12 of us.
Mr. Pollak: The Democratic Study Group?
Judge Mikva: No … no … no …
Mr. Pollak: Something different than that.
Judge Mikva: No, this was much more … this was a smaller group. There were only
about 10 or 12 ofus, and our common bond originally was our anti-war posture. Oh, one that I’m
forgetting is Ben Rosenthal who also died. But we were very close, not only on the war issues,
but on a lot of other things besides and from that we developed strong social relationships. In
fact, I still remember that Phil Burton was very insistent on wanting to keep the group as small as
possible so that we could relate to each other and not get institutionalized like the Democratic
Study Group or some of the others. I remember at one point, I think it was Ben Rosenthal, but
there may have been others, pushing to put Bella Abzug in as a member of the group when she
was in the House. Phil kept resisting saying, “You know, we just won’t be able to stay collegial
If she comes in, she’ll blow up the meetings.” And she did.
Mr. Pollak: I see, she did come in and she did.
Judge Mikva: She did come in, and she criticized us. Our agenda wasn’t doing enough
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things, and we weren’t being militant enough. That was Bella’s style. That was one of the things
that made her a great MeflWer of Congress, but it sure was not good for collegiality. The
“Group” started to wane, and then members left, died, and it became a different kind of a
grouping. But, some of them like Edwards and Kastenmeyer and Rosenthal, I remained friends
with even after I went on the bench.
Mr. Pollak: What newspapers and periodicals did you regularly read when you were on
the bench or television riews programs or public affairs programs? One thing that has always
fascinated me is whether judges read and are influenced by, what I would call, major thrusts that
appear in fourth estate?
Judge Mikva: Well, while we were living here, of course, I read the Post every day. I
would see the New York Times relatively frequently. I lost my contact with the Chicago papers
after I left the Congress. When I was in Congress I would see the Tribune and the Chicago Sun
Times, but when I went to the court it was just too inconvenient to see them I’d see them during
the summer whenever we went back to the Dunes, but other than that I relied, for my news,
mostly on the Post and, to a lesser degree, the New York Times. I stopped watching the talking
head shows pretty much after I left Congress. I have a feeling that those can more subtly
influence a judge. That isn’t why I stopped watching them, I stopped because I really just got
tired of the same pundits propounding the same expertise week after week after week; and since I
wasn’t doing policy making anymore, I just sort of lost my enthusiasm for it. So I pretty much
stopped watching the Sunday shows.
Mr. Pollak: And why do you think they can more subtly influence the judge?
Judge Mikva: Because they will have more engagement on an issue. There will be, you
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know, thrusts and parries; and there will be several people talking about the issue. It frequently
will be more extensive on? issue than a newspaper story, for example. And, again, that wasn’t
why I stopped watching them; but there were a couple times when I would flip on a show I would
see something on an issue that I was inv olved in and somehow it didn’t seem right. These were
clearly advocates, these were not newscasters. They were expressing a point of view and
somehow, I don’t know why, I would have had no problems reading law review articles or even
magazine articles expressing similar points of view; but there seemed something ahnost
invidious about my being influenced by a television show where some advocates were proposing
or stating their points of view on an issue that I bad before the court. I remember one
particularly, because this was some time after I had stopped watching the shows on a regular
basis. Ralph Nader was on a show, it was either Ralph Nader or Joan Claybrook, and it was just
about the time that I heard the seat belt case. There is nothing they could have said that would
have been new to me about their positions; they had been strong advocates when I was in the
Congress of automobile safety, and I knew that; and I don’t think they were saying anything
spectacular, but somehow it seemed inappropriate for me to be watching them. so I flipped it off.
Mr. Pollak: I asked you when we were beginning these interviews to identify ten or so of
your opinions that you thought were representative of the jurisprudence that you left for posterity
or were noteworthy for other reasons or were representative of other aspects of your service that
you thought would make this oral history more informative. You gave me a handwritten list, I
think, in your writing which I will attach to the transcript. I will also attach copies of the
opinions that have been xeroxed from the West Reporters. \Vb.at I thought was that at this
juncture I have studied nine of twelve, and I’ve organized them from the earliest one to the latest.
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I do have some questions about them. but in the main I know there may be things you wish to say
about them
The first one is United States v. Foskey, a decision of the United States Court of Appeals
for the D.C. Circuit, argued May 1980, decided smartly thereafter on August of 1980; and the
cite for our record is 636 F.2d 517. It was a decision of yourself writing the opinion for a court
composed of Circuit Judge Robb and sitting by designation Judge Gesell; and I’m going to lay it
down in front of you. I think you might refer to what it’s about. It is a search and seizure review
in connection with tbe outcome of a criminal proceeding. I want to ask you for starters what led
you to select this 17-year-old decision on a fine point of admissible evidence of a prior arrest and
a criminal prosecution?
Judge Mikva: Well, I think it was one of my more successful efforts and also a good
example of how a collegial court, a multi-member court, reacts to each other. It isn’t the case
where everybody comes in, as many lawyers think, and, unfortunately, sometimes appears to be
the case when you’re reading opinions, that every judge marches into oral argument with a fixed
view of some important question of law, that nothing that is said in oral argument or nothing that
will be said by the other judges will influence that point of view. 1bis was a case where my two
colleagues, one was Judge Gesell who was considered one of the best of the trial judges that we
had in Washington. (Later on, I think Judge Wald ioitiated the practice not to ask District judges
from our court to sit with us anymore and this was an example of why.) Judge Gesell clearly
agreed with me that there had been error. Clearly in the normal course of events, I don’t
remember what the other cases were that were being heard, but Judge Robb as a senior judge
probably would have assigned this case to Judge Gesell. This was Judge Gesell’s bailiwick, he
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dealt with evidentiary questions every day of the week. I’m an appellate judge. By the time I’d
come on the court, we didn’t have that much criminal practice anymore, it was something that
Judge Gesell could have written with more expertise. But Judge Gesell made it clear that he
preferred not to write the opinion, even though he agreed with me, because it meant reversing
one of his colleagues; and that was a very uncomfortable feeling. That’s why Judge Wald (and I
continued the practice when I was Chief Judge) stopped asking District judges from our court to
come sit with us. It was just too big a strain to ask them to sit in review of their colleagues. The
other thing that fascinated me was that I had a strong feeling that sections 403 and 404 of the
Rules of Evidence are almost the touchstones of what should be admissible and that a trial judge
should always be looking at evidence that the prosecution proposes somewhat askance if it deals
with prior activities that are bad or anything that could possibly influence the jury beyond the
facts of the case. I thirik Judge Robb started out with almost an opposite presumption, that is,
that the prosecution should win these cases, that you don’t look for hypertechnical interpretations
of two statutes that were passed a long time ago as part of the Rules of Evidence, neither of
which Congress probably wouldn’t pass today. I’d be the first to admit that if you asked this
Congress, or even Congress when I was there, to pass an exclusionary rule of any kind, they
probably wouldn’t do it. Sections 403 and 404, as you remember, are pretty strong statements of
what the policy-makers thought should be the elements of a fair trial. Anyway, it was interesting
to see how I came in, as I said, with a very strong view that the judge had erred in admitting this
evidence. I think that’s where Judge Gesell would have started out. I think Judge Robb, if
anything, was probably leaning the other way. We were dealing with the work of a competent
trial judge who didn’t make a lot of errors. She was not reversed a lot.
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Mr. Pollak: That was June Green?
Judge Mikva: June Green. And it was interesting to see the group dynamics. First, as to
the oral argument, the defendant’s lawyer, and I don’t remember who argued it anymore, but he or
she did an excellent job. The government lawyer was not as effective.
Mr. Pollak.: Ed Willheit for the appellant and Tom Hill, an Assistant United States
Attorney, with whom. interestingly, the U.S. Attorney then was Chuck Ruff. That is an
interesting lineup- and John Terry, who went on to our District of Columbia Court of Appeals.
Judge Mikva: Yes, this is 17 years ago; but I remember at the time being impressed with
the appellant’s lawyer, the defendant’s lawyer, and not as impressed with the U.S. Attorney’s
argument, who sort of said, “well, I didn’t try the case, we do it all the time,” boilerplate
arguments that didn’t carry any weight. But, as I said, partly the oral argument and then partly the
discussion in conference determined the outcome, I have to give the late Judge Gesell the credit
for persuading the late Judge Robb that this went over the line, that this really was prejudicial
error and could have tilted the jury that otherwise might have come in with a not guilty verdict.
At that point I ended up with this as one of my first criminal law opinions. I’d only gone on the
court that previous fall. It was a fairly important one at the time; it’s certainly not one of the
seminal cases about exclusion of evidence, but on the other band it did send a message to the
U.S. Attorney and to the trial judges that those exclusionary rules were going to be looked at and
were going to be treated seriously by the Court of Appeals and they should look at them carefully
when they’re deciding whether to admit prior conduct.
Mr. Pollak: It’s your recollection, then, that the role of a competent District judge was
quite significant in the outcome of this conference?
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Judge Mikva: Oh yes, absolutely. Again, maybe that dictated our keeping District judges
in the mix. We stopped using visiting judges altogether after awhile, but I think that after we
stopped using our own District judges we still did bring in District judges from otl1er areas, from
other courts; and it was just that there was this clear problem that the District judge had if he or
she was asked to review the work of colleagues on the sitting court.
Mr. Pollak: Contents of a paper bag were taped to the gas pipe of a car, and the question
was whether that was evidence that was admissible; and the other issue was whether the District
judge had properly admitted some post-arrest statements.
Judge Mikva: Right.
Mr. Pollak: This was very early in your career on the bench Do you recall that, as you
sat on that bench for many years after that, these exclusionary rules came up before you later and
that you applied the same standards? I don’t know whether a judge would have recollections of
that kind. Each case is different.
Judge Mikva: What I remember is that we did have other cases where there was prior
conduct evidence, and I was not successful in other cases. I don’t even remember if I dissented in
some of them, but I remember there were a couple of instances where at least I started out being
concerned that the tilting that we did in Foskey in favor of the defendant on 403 and 404 was not
being done in some of the later cases. I would think that the current state of jurisprudence as far
as these sections are concerned is that their impact has been tempered somewhat by subsequent
opinions. Foskey was never overruled and certainly was not challenged by any other panel that I
recall, but I know on a couple of occasions where I tried to … I started out thinking
Mr. Pollak: This was a place where Foskey ought to govern?
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Judge Mikva: I couldn’t persuade my colleagues that it did.
Mr. Pollak: Did yo1+, in your chambers, maintain a filing system which would pull back
to your attention, for example, when a 403, 404 evideotiary issue arose, your prior opinion on
that?
Judge Mikva: Yes, and it was modestly orderly. Actually, I got my best index just as I
was leaving the court. A volunteer intern came in, and she did a marvelous indexing and crossindexing.
The problem was that even though I tried to index them by subject matter, if you don’t
have the proper cross-indexing, the issue doesn’t always come up with the same rubric that it did
in the previous case. I didn’t always have enough cross-indexing to be able to go back. At least
on the important issues, I was able to remember the cases where I had either written or opined
differently. The clerks were very good about that. When a case would come in and they would
start preparing the bench memo for oral argument, they would go back and see what other cases I
had sat on that were at all close to the current case.
Mr. Pollak: It’s a custom that I follow as best I can in presenting a case to the court of
appeals. The procedures of the court now – they changed during my time pract icing before that
court- are that you know the panel quite early. As you prepare your papers or at least prepare
for oral argument, I try to pull up all the cases that would be relevant to the judges who sit there.
Judge Mikva: Of course. This was Justice ScaJia’s contribution to our procedures. We
had, as you indicated, when I came on the court the panels were not disclosed until, I think, the
day of argument.
Mr. Pollak: Right, you went and read the sheet that was out in front of the court.
Judge Mikva: Right. We discussed it at a judges’ meeting one time, and then Judge
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Scalia said, “‘Why shouldn’t we let the lawyers know who the judges are, as long as we don’t give
them continuances. They have to understand, they can’t do any shopping if they don’t like the
panel” I remember one of the judges, I don’t know who, said, ‘Well, if they know what the
panel is they may … ,” and he tried to stop himself in the middle; he couldn’t and he said, ‘1 guess
they might settle the appeal.” [Laughs] ”Nino” said, “So, isn’t that something we should
encourage?” And I think he was right. I think that first of all the lawyers did tailor their
arguments to the judges and I don’t think that was bad, and secondly they did, on some oc casions,
if they felt it was a bad panel from their point of view, work out a settlement.
Mr. Pollak: Dovetails with the current ADR procedure.
Judge Milcva: That’s right, that’s right.
Mr. Pollak: Well, I suppose the trends fos tered by the dominant judges on evidence
admissibility and suppression on the Supreme Court is to narrow the scope of these rules?
Judge Mikva: And that has to have an influence on the jurisprudence of an intermediate
cour t. When you know that the Supreme Court, even if they have not overturned any of their
earlier precedents on the exclusionary rules, that they’ve clearly combined them and made their
application narrower and you know there is agitation in Congress to overturn the basic
exclusionary rules and even taJk about trying to do a constitutional amendment to get rid of
Miranda or whatever. It just has a subtle influence on an intermediate court and, clearly, in my
mind and I’m sure in my colleagues minds as we would look at some of these cases involving
exclusionary rules, “Do we really want to send up a soft curve for the Supreme Court to hit out of
the ballpark and also narrow the exclusionary rules even further?” I certainly didn’t, and I think
that was true of some of my colleagues.
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Mr. Pollak: I can’t resist a momentary digression. You mentioned the subtle influence,
and it leads me to ask you whether you think the cWTent public efforts of leading conserva tives to
float the idea of impeaching federal judges has much reach into the decisions judges are making.
Judge Mikva: Absolutely. Even ifno impeachment proceedings are commenced, the
mere fact that they’re being contemplated or, I guess, Congressman Delay may have actually
introduced some resolutions, some proposals for impeachment of some judges, I’m not sure. Just
the constant news coverage of Congressman Delay’s charge against the federal judiciary that
they’re doing all of the terrible things and that he’s going to impeach some of them has an effect
on the way judges behave. It’s asking the impossible for judges to be that impervious to public
influence and public criticism. A Chicago columnist once said that about the Supreme Court a
long time ago. ”The Constitution may follow the flag,” which was a big controversy at the time
whether the Constitution had extra-territorial effect, ”but the Supreme Court follows the election
returns.” And, it’s a fact of life. I don’t think the day after the election the Supreme Court
Justices sit down and say, “Okay, we’ve got to do so and so and so and so and so and so.” But
the influence of what the people have said in an election does fashion a milieu in which all
judges operate and the influence of what the policymakers in Congress say, let alone do, does
fashion a milieu for intermediate court and Supreme Court judges. I think the classic case is the
incident involving Judge Harold Baer in New York shortly before the 1996 election. I don’t think
we’ve covered this.
Mr. Pollak: No, we have not.
Judge Mikva: You might recall the case involved his excluding some evidence because
he said that the only probable cause for police stopping this woman and searching her car was
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that she ran away. In his first opinion … this is roughly what the facts were. In his first opinion
he said, “It’s well known that .people living in ghetto neighb orhoods run away from police
because they have reason to run away; the police are very threatening to them, very dangerous,”
and he excluded the evidence and threw out the arrest, which meant this person would go free.
The prosecutor filed a motion for trial reconsideration or whatever; but the news hit of Judge
Baer’s first decision (he wrote an opinion, always a mistake when you write a long opinion about
a controversial subject like that; you’re leaving yourself open to criticism) and the New York
papers had a field day with him Judge Baer threw out this dead bang arrest because in his
opinion the police intimidated ghetto residents. It came up in about the spring of ’96 and that
same day, Mike McCurry, the White House Press Secretary, was asked about Judge Baer’s
decision in his session with the press that day. He said the President was thinking about asking
for Judge Baer’s resignation, and it just blew it up. I heard it, saw it over the wire, heard it over
the radio or something; I immediately called up Jack Quinn, my successor, and said, “My God,
what’s going on there?” And he said, “We’re trying to control it, I’ve talked to McCurry.” Mike
McCurry is not a lawyer. Quinn said, “when I called him. before I could even tell him what I was
calling about, be said, ‘I stuck my foot way down inmy mouth, didn’t I?'” Quinn said, “You sure
as heck did.” Well, what I suspect happened, this being an election year, is that the President
looked at the clips early that morning and saw this big story about this federal judge. I guess I’ve
heard this from one of the people that was there that morning, and it probably was their Cbief-ofStaff
Panetta and McCurry and the President who usually went over the clips at 6:00-6:30 in the
morning to sort of plan the day as to what they would have to respond to. The President read that
clip and slammed it down and said, ”There’s the Willy Horton of this campaign.” I should add
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that Judge Baer was a Clinton appointee. Well, McCurry, not being a lawyer, misread or
overread what the President was saying and came out with this resignation thing. He
immediately backpedaled and said, ”No, well we were just criticizing it, but we don’t, we
certainly aren’t going to ask for his resignation.” Unfortunately, for the concerns that I’m
expressing, Judge Baer reconsidered and reversed himself. Now, he may have had all the reasons
in the world, legitimate reasons, for reversing himself; and I’m sure that he thinks so and I’m sure
that whatever the opinion was in which he reversed himself recites those reasons. Whether it’s
the evidence or that the evidence wasn’t as strong as he thought against the police or whatever,
the message that went out from that whole incident to every other judge in the system, not only
the federal system but everywhere, is this is what can happen to you if you get too far out on a
limb in these criminal cases; and I think that’s unfortunate.
Mr. Pollak: I maintained a friendship with Judge Gesell who had been my mentor at
Covington & Burling. Judge Gesell who, despite a position on the bench that was highly
respected and impregnable to vagaries of public opinion, I think, often expressed the need of the
judiciary to have the organized bars protecting the judiciary, that the judges cannot argue their
own matters i n the courts of public opinion.
Judge Mikva: I think that he was absolutely right, and I think that’s why something like
President Clinton’s supposed state of mind, which McCurry then insisted really wasn’t his state of
mind, makes judges so vulnerable. There was nothing that Judge Baer could do at that point to
defend himself. And, indeed what he did do, not to defend himself, but to proceed with the case,
sent out, I’m sure what he considers a very unfortunate signal, if I’m right that it was a signal. He
certainly doesn’t want federal judges to put their finger in the wind to decide which way a
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criminal case should be decided. But Judge Gesell was right: judges cannot defend themselves,
and if the bar doesn’t do it ?4 if elected public officials who should know better, like party
leaders in the Congress, start criticizing the judges for their individual decisions in a way that
threatens their security and their willingness to stand up, that’s a very troublesome event.
Mr. Pollak: The next case is called Big Mama Rag v. The United States, an appeal from
an order of Judge Sirica granting summary judgment to defendants in upholding the Internal
Revenue Service’s rejection of an application for tax-exempt status. You were sitting in this case
with Judge Tamm and Judge Spottswood Robinson; and you wrote the opinion for the court
which was unanimous. There were considerations of constitutional law, and it was a denial of a
feminist-oriented non-profit organization’s application for tax-exemption. Toe case was argued
and decided in 1980, close by the Foskey case in time, and is reported at 631 F.2d 1030. Again,
after you’ve had a chance to look at it a bit, I’m interested in what led you to select that opinion
and what you think the decision represents as a reflection of your own jurisprudence and
decisionmaking.
Judge Mikva: I think it was one of my first First Amendment cases that I wrote on. I’m
trying to remember; I wrote o n two that first year, and in one of them I either lost the panel and
wrote a dissenting opinion or I was reversed by the Supreme Court. I don’t think it was this one,
I think this one held up; but again, it was a long time ago and I don’t remember. We might want
to check whether or not the Supreme Court looked at this again. The reason I included it was it
was the first time, as I said, that in my tenure I was asked to write in the First Amendment field
on something really important. We struck down a Treasury regulation as to what was and was
not educational because I thought that the term itself was incapable of constitutional definition
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under the First Amendment. I remember getting criticized after it came out by a couple of my
former professors, including i:;ny former tax professor, Walter Blum, who really thought that I had
given the Internal Revenue Service an incredibly impossible mission to try to frame a regulation
that did keep out some jownals that weren’t entitled to tax-exempt status in orde r to try to force
them to rethink this issue of what is and what is not educational. I remember, in fact, there were
even a couple of law review articles criticizing the case. Tue women’s movement and the gay
movement, of course, were enthusiastic about it; it was a big victory for them But I remember
some law review articles criticized it, again because the thrust of the decision really was to tell
the IRS that they had to do it over again as to the regulation, but not really giving them any clues
as to how to do it. I still don’t know how you can fashion a regulation that would allow
something like Big Mama Rag in and keep out other stuff that really is outside the pale, and I
think I said that. I marked this paragraph:
We are not unmindful of the burden involved in reformulating the
definition of educational to conform to the First Amendment
requirements, but the difficulty of the task neither lessens its
importance nor warrants its avoidance.
This is a polite way of saying, “that’s your problem” [Laughing]
Mr. Pollak: Did you think that you could recall or refresh your recollection by looking at
who argued it or briefed it that the briefs were useful or more than useful in providing a basis fof
the conclusion that you reached?
Judge Milcva: I seem to recall that this was both well briefed and well argued; but I can’t,
looking over the names here, there are some very prominent names, but I don’t remember who
actually did the arguing, and I don’t know who really wrote the brief. It would look like Robert
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Jenkins wrote it for the appellant and Robert Bernstein of the DOJ wrote it for the rRS. Again,
it’s hard to tell, especially on? case like this where Treasury would not normally have much input
into the appellate briefs. It would be somebody from the Department of Justice. It could be that
somebody with tax experience would look at it mostly from a practical point of view. It could be
somebody who was more.steeped in constitutional problems and concerns, but I have this vague
recollection that it was well briefed and lawyered.
Mr. Pollak: There are a lot of footnotes in the opinion. I wondered if possibly that was
influenced by Judge Robinson being on the panel’?
Judge Mikva: Partly, but it was also before I had evolved my policy against footnotes in
opinions; that happened about two years later.
Mr. Pollak: Is that right?
Judge Mikva: Right. I should be able to remember who the clerks were because that was
one of my stories.
Mr. Pollak: As an opinion writer, what did you think excluding the footnotes served?
Was your message in the opinion clearer in that you had to decide issues in the text and not have
cavils in the footnote?
Judge Mik.va: That is exactly why, as far as I’m concerned. There were a couple of nuts
and bolts reasons for doing it, but the main reason was that it forced me, and my clerks, to
consider whether we were off on some kind of a tangent or was this really essential to deciding
this case. If it was essential to deciding this case, then it should go in the text. And, when it was
one of those borderline forays, I cut them out completely. It pleased me that other judges picked
it up or at least, with the exception of Judge Robinson, were influenced by my strong urgings in
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this matter to cut back on footnotes. I remember this was in the late 80s or perhaps even early
90s, somebody looked at the number of pages we had turned out and there had actually been a
decline in the first few years in the length of pages per opinion after I started my policy and Judge
Buckley sort of took it up and others sort of cut back if they didn’t cut them out completely.
Justice Breyer, who was then Judge Breyer of the First Circuit, and I did this together at the same
time. We had had lunch with the late Justice Arthur Goldberg, and he had told us his strong
views that footnotes were just terrible to opinion writing because they allowed you to go off into
all the forays and, of course, the famous one is footnote 4 in Carotene Products, which has
notl:ring to do with dried milk, but has become a very important piece of doctrinal law in the
Supreme Court and in the country. It’s so important that it should have been decided in a case
where it was really appropriate or, if it was appropriate in Carolene Products, it should have been
up in the text. I remember reading a law review article by one of the clerks who worked on the
case with Chief Justice Stone. The clerk suggested that it may not have been given the full
review of the other justices that it would have been given if it had been up in the text of the
opinion as opposed to a footnote. So Judge Breyer told me that when be cut back on footnotes
and cut them out of bis opinions, he noticed that bis own opinions were shorter and the opinions
of the other judges on the court were being cut back. Again, there is a limit to how far you can
go with what was my strong but still a personal view. Judges on a panel don’t usually rewrite the
opinions of the majority judge who is writing an opinion if they are going to concur. You either
concur or you don’t. I mean sometimes you write a separate concurring opinion, but you don’t
usually respond to the draft by saying, ‘Why don’t you take out all those footnotes.” So,
whatever influence my decision had, as far as footnotes are concerned, was more subtle as far as
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the other judges are concerned. But every once in a while when a draft would come around, one
of the other judges would say, “Well, now 1 know you don’t like footnotes, but 1 think we needed
to cover these other subjects or else we’re going to be open to criticism” Judge Robinson never
conceded the necessity for explaining his footnotes. He felt as strongly the need for putting them
in as I felt for keeping them out
Mr. Pollak: You recounted in the opinion, in connection with the applicant for exemption
who published a newsletter or paper that bad articles respecting lesbianism. that the applicant bad
established that it was educational, and that the IRS officials apparently had advised the counsel
that the exemption could be approved only if the organization agreed to abstain from advocating
homosexuality, and that this action went beyond what you thought the First Amendment could
permit.
Judge Mikva: It’s one of these troubles that the IRS and others have in trying to
determine – the Federal Election Commission has bad its share of problems with this – if an
organization is not-for-profit, even though it engages in some advocacy, does it become an
advocacy group and, therefore, not entitled to not-for-profit status? If it’s the Democratic
National Committee, you can’t deduct your contributions to the DNC, but it’s a fine line.
Churches certainly engage in advocacy positions. I don’t think the IRS will propose to take away
their tax exemption.
Mr. Pollak: I noted a question as to whether you would view a decision you made as an
activist decision. There’s so much pressure these days, it has relation to your comments about
Judge Baer, but so much pressure coming from the more conservative side saying that we can’t
have activist judges on the bench How do you see this decision through that lens?
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Judge Mikva: Had I come up for any further confirmation hearings, of any kind either
because of elevation to the. S1,1.preme Court or because I went some place else in government,
that’s the kind of case that some staffer on the Senate would have hauled out and said, “See this is
an example of an activist judge.” I think I could have and would have defended myself and
probably there would be a limit to how far the critics could go on that because most of the
present difficulties are being encountered by organizations on the far right.
Mr. Pollak: Who cannot get tax exemptions?
Judge Mikva: Who can’t get tax exemption or who, because of tax exemption, are being
threatened because of their advocacy. I think that it would temper the criticis m on that particular
case. The legitimacy of critici sm. though, is that whenever a judge uses the Constitution to strike
down an executive or a legislative action, it is hauling out the maximum blunderbuss. It is the
judge saying, ‘1 don’t care what the popular branch of government has said; I don’t care what the
duly elected national executive branch has said; this is my rock, my sword, my shield; and I
strike it down.” Judges should not do that too often and should not do that without thinking
about it.
Mr. Pollak.: The next decision is Liquor Salesmen Union v. NRLB, decided in March of
1981, another early decision; and it was decision for a court of Judge Tamm. Judge Robb and
yourself. Again, a unanimous decision of the panel The union had filed a petition for review of
orders of the NRLB. There had been appeals from decisions of the NRLB in two cases, and there
was a race to the courthouse, and the unions had, in each of the cases, pretty well complet.ely
prevailed but sought on minor matters to appeal, so they go to the court that might be better for
them than the court the management chose. The question came down to use of28 U.S.C.
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§ 2112(a), which permitted the court in which the cases were consolidated to retransfer for, and I
think I’m quoting the language of the st atute, “for the convenience of the parties in the interest of
justice” I’m interested in both why you selected that decision and what you think it means, and
also it’s a good platform for any comments you might make on your own view of forwn shopping
among lawyers.
Judge Mikva: This is one that I think had a substantial practical effect. It wasn’t the only
opinion of the time that was whacldng the forum shoppers, but it was a pretty strong opinion and
it got a lot of citation at the time as indicating – it certainly didn’t establish it or create new power
– but indicating the power that a court had to frustrate the efforts of forum shoppers. First of all
the labor unions don’t bring that many cases before the NLRB anymore; neither does
man agement because it takes so long. They usually try to resolve their matters in other ways. In
1981, the view was pretty widely held among unions that some forums were more favorable for
union positions than others. We were considered one of the favorable forums, the D.C. Circuit.
The Seventh Circuit was beginning to get a reputation for being hostile to union matters. There
was just no question even though they couldn’t pick the panel, that they thought by getting it in a
particular court they’d have better chances than if it got into another court. They would go
through all kinds of gyrations to be the first to file, including the ones that the Union engaged in
here where they had almost completely sustained their position before the Board. What they
were trying to appeal on was really just a technicality that they couldn’t have cared less about.
The only reason they wanted to appeal it was to get it in our court. So we said that was a bad
practice, and the section that you just quoted gave the judges authority to transfer it back or to put
it some place else, so as not to allow forum shoppers their due.
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Mr. Pollak: Do you think that it had an effect of leading lawyers who prevailed below in
administrative proceedings. wP.ere this comparable race could occur, not to run the race?
Judge Mik:va: It diminished it some. I don’t think that the races have ended completely,
but it diminished it some, for a lot of reasons. First of all, since we were considered a friendlyto-
labor court, for us to come down with that decision which hit the unions got a lot of attention.
Secondly, for a judge who was perceived to be friendly to labor interests when he had been in
Congress, for me to write in what I thought was pretty strong language at the time, I think sent a
message pretty strongly to the unions. They weren’t always the worst offenders, but they were
one of the worst offenders, because they were frequently national unions, and they knew which
court was likely to be friendly and which wasn’t. Frequently, this would be the only time that
that employer might have been before the Board, for example. Their lawyers would be less likely
to go through all the gyrations that you have to go through. I don’t know that J’ve described it in
this opinion or not; I think I did, I know I did in a speech later on. The forum shopper had to
have somebody stationed at the NLRB office so that the moment that the decision comes down
he frantically signal waves somebody at a telephone who calls somebody in the D.C. Circuit to
put the petition on file. It was a complicated maze that they set up to run.
Mr. Pollak: Did you think that the provision of law that you relied on was an appropriate
one to transfer the case out?
Judge Mikva: I thought so. I thought that ”promote justice,” or whatever that term is, is
broad enough to cover this. The decisional problem that I had within the case is that the forum
shoppers weren’t always wrong. It is true that our court had had more experience with labor
disputes perhaps than some of the other courts and that the majority of the judges were probably
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friendlier to union interests than on some other courts. I hope that didn’t mean that we would
decide a case in favor of the union when they didn’t deserve the win, but that the state of mind,
the viscera that go into judicial opinions, whether judges care to admit it or not, would be more
favorable to unions in the D.C. Circuit than they would be, say out in the Eighth Circuit, or
wherever. I thought the purpose of that section was to keep that kind of forum shopping from
happening. It isn’t promoting a good system of justice to let the litigants pick the court they want
review in. Better we should do something about these differences within the courts; between the
courts, and that is the Supreme Court’s responsibility. That’s why the Supreme Court is supposed
to resolve conflicts among the circuits.
Mr. Pollak: Did problems of this kind come up in your handling of your responsibilities
as Chief Judge of this Circuit?
Judge Mi kva: Not really. By the time a case like this would get on the docket, this kind
of question would be recognized; it would aheady be sent out to a panel so that the Chief Judge
would have very little administrative responsibility for this kind of question.
Mr. Pollak: Were there ever discussions of this sort of thing in the United States Judicial
Conference?
Judge Mikva: There were discussions, I know, about the assignment of cases and
designating where a multistate case should be filed and so on. For a good part of the time that I
was on the U.S. Judicial Conference. Judge Tom Hogan was bead of the panel for the Judicial
Conference. He was very good, and he would occasionally report to us about some of the
problems and the kinds of things that happen.
Mr. Pollak: I see – for multidistrict cases and the system which combines those cases into
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one case?
Judge Mikva: Right. While forum shopping is not directly related to multi-district cases,
it really is, because frequently the multi-district cases are examples of attempted forum shopping
by various lawyers.
Mr. Pollak: Next is Gray v. American Express Company, decided in 1984, a decision
which reviewed a ruling of Judge Harold Greene as to whether the credit card company which
had a right without notice to cancel could make its cancellation effective for transactions that had
fully taken p]ace before the card.holder knew. You were the opinion writer for a court of Judge
Wilkey, yourself and Judge Bork. The cite is 743 F.2d IO. What led you to choose that
decision? How does it represent your jurisprudence? What do you recall of the role of the
judges you sat with? Were there negotiations about this, threat of dissent?
Judge Mikva: This is one of my favorite cases. I remember it very well. It involved a
law professor who had had substantial transactions with American Express, including a lot of
travel that he had done overseas. He was a consultant for various places, and American Express
then. probably still has, a plan where if you have a substantial balance, you can pay it down in
installments. They charge you interest while you pay it down. He had been paying down bis
balance, and he received a large consulting fee and paid down a larger amount than was due at
that particular time. And, as computers are wont to do, instead of just recognizing that his
balance was smaller than it had to be, it threw him off the time track, and his balance was
perceived to be delinquent. On the occasion of either bis 10th or 20th wedding anniversary, he
took bis wife out for dmner to what was then a very pricey restaurant on Capitol Hill called
209½; a small intimate dining room, 15 or 20 tables were all that were there. They ordered their
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anniversary dinner and when it was finished he banded his American Express card to the maitre
d’ who came back a couple. minutes later with a pair of scissors and said, “I’ve been instructed to
destroy your card, it is invalid,” and he cut it up in the dining room This was the first that the
law professor knew that American Express had canceled his card. He brought suit, as law
professors sometimes do; and he hired a very good lawyer. I can’t remember who it was.
Mr. Pollak: His lawyer was Hubert Margolies.
Judge Mikva: The lawyering was very important here, and I don’t remember whether the
names that appear on the opinion were the actual lawyers involved. I do remember that he had a
very good lawyer in the Court of Appeals. American Express, as you would imagine, has a lot of
cases like that and they have, I don’t know if it’s house counsel or a young lawyer on retainer or
whatever, that handle these.
Mr. Pollak: Sort of like a collection case.
Judge Mikva: Standard operating procedure was to file a motion to dismiss or a motion
for summary judgment; that’s what I was looking at. I think it was a motion for summary
judgment.
Mr. Pollak: I think it was too.
Judge Mikva: “Which Judge Greene granted. That should be the end of it. What they
didn’t realize was that they had a very angry law professor on the other side of this case. He
brought the appeal, and it was extremely well argued by his lawyer in our court. American
Express was still just going through the motions. I don’t remember that they had a bad argument,
but clearly the appellant’s lawyer dominated the argument. He pointed out the emotional distress
and so on. I don’t know whether I found out about this later, but along about that time, American
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Express began to realize that maybe they had goofed somehow and they talked about a sett]ement
and the Jaw professor was jlli!t not interested at all I mean he had blood in his eye. Obvious]y, it
wasn’t money. It certainly wasn’t that he wanted his card reinstated, though they offered that
many times; he wanted vindication for the humiliation that they had caused him, and he got it
because the holding said that from there on, they could not cancel a card without notice. These
are contracts of adhesion, and there was a provision in there that said they could cancel We said
under a contract of adhesion, you can’t apply that section against somebody. In addition, since it
requires notice, any transaction that has been completed before the notice has to be honored.
This really changed their modus operandi. Certainly, by the time my opinion came out,
American Express was very, very nervous about what this was going to do to their business, as
were the other credit card companies. I seem to remember they filed a petition for rehearing en
bane, they diddled around a lot of time debating about whether to talce it up to try to get cert
granted. Obviously, there was little likelihood of the Supreme Court granting cert on what was
basically a very modest case even if the point of law that I was making was that important to
American Express. It still wasn’t so consequential that the Supreme Court would likely grant
cert. The dilemma for American Express was whether to add “cert denied” at the end of this
citation by taking it up or hopefully just pass it off as an errant opinion in the D.C. Circuit and
maybe not the ]aw in. the other Circuits in the country. They diddled; they asked for extra time
with us; and I think they even asked for extra time from the Supreme Court. Fin.ally they decided
that they weren’t going to proceed any further, that they could adjust their credit card to
accommodate this change in law. But it has had an important effect on the way credit card
companies do business. But, I must say, it also is an eumple of where lawyering does make a
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difference.
Mr. Pollak: I notic_ed in looking at it that on page 18 you quoted a point that American
Express’ counsel made in oral argument. In catching up, American Express, I think, sort of
wanted to have it both ways. You quoted in the opinion from a decision in the New York State
court, “Notice given pursuant to the escape clause in the contract did not terminate liability as to
obligations already accrued, but only as to liabilities thereafter accruing.” Then you said,
”Indeed, counsel for American Express made this point for us indirectly at oral argument when
he was asked whether based on his client’s interpretation of the without notice clause, American
Express was empowered to cancel the agreement retroactively and he answered yes; but he was
quick to add that his client would never take such action against a cardholder.” So, I thought it
was an interesting place to ask you how that fits into what the judges do at oral argument.
Technically, how did you retrieve what counsel had conceded in oral argument?
Judge Mikva: At the time there was a recording made of oral arguments that was
accessible to the judges. We have since allowed them to be printed up if either party requests
them They have to pay for it, and they get a copy of the transcript. In those days, you had to
actually listen to the recording. But I remember making notes about that particular piece of
dialogue with the attorney because he had really put his foot way deep down lris client’s throat
when he answered, ”yes that they did have that power.” Frankly, it would have been a very
difficult answer to give for even the most experienced appellate lawyer, if the only answer you
can give is “retroactive is a color word and that isn’t what happened here. This was future credit,
this was credit that had not yet been agreed to because American Express hadn’t authorized it,” or
something like that. In any event, he played right into our hands. I’ve always felt that oral
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argument can make a difference and makes a difference in more cases than lawyers think it does
and even in more cases than judges think it does. There’s this notion that lawyers are thinking
that by the time you get up to oral argument, the judges have already made up their minds. Well,
that’s not really true. I think I and a lot of my colleagues try to keep our minds as open as
possible. We read everything, but I would not discuss the case with my other colleagues and
most judges behave that way. So that when we came to oral argument our minds were as open as
they could be, given the fact that the lawyers had each taken their best shot with the brief, but we
were trying to wait to see what they would bad to say. The second thing that I think happens at
oral argument is that when it’s really lopsided, one side is really better than the other. Then all of
the points and contentions that the good arguers make get illumined and put in neon lights, and
the points in contradiction that the bad arguer makes sort of get buried. I just think that is what
oral argument is about so that a good oral argument can win a case. Now, can you really claim
that oral argument would have changed Brown v. Board of Education or Baker v. Carr? Not
likely, though as I recall there were some pretty good arguments in those cases. But the notion
that oral argument never makes a difference, I think, is a big mistake some lawyers make and
some judges make. I think oral argument is very important to the appellate process and it’s there
for a reason.
Mr. Pollak: Me too. As you went through this op.inion, you noted that there was some
issue that the counsel hadn’t briefed over choice of law and you decided that issue and actually
cmne out where the parties had assumed that the case would be positioned for choice oflaw, but
you did identify it and …
Judge Milcv”‘ Something they should have …
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Mr. Pollak: … you felt obliged to deal with.
Judge Mikva: I vagutly remember it. Was Judge Bork on that panel?
Mr. Pollak: Yes.
Judge Mikva; I vaguely remember it. There really was never any question about the
result. All three of us were agreed on the result. I think I remember him having a different fix on
the case, and I don’t even remember what it was. I honestly don’t remember why I even said
anything about choice oflaw. Would it have made any difference?
Mr. Pollak: No. Toe headnote said, “As regards state law issu es, federal courts sitting in
the District of Columbia are not obligated to follow the Erie doctrine, but they nevertheless look
to District law for applicable choice of law principles and substantive law of decision to promote
uniformity, ensure proper deference to District laws.” I just had noted that you had made a point
of identifying, in a section called choice of law, that question.
Judge Mikva: I don’t think it was necessary to the holding, but it may have been in
respon se to one of the other judges who thought it was impo rtant.
Mr. Pollak The ultimate point said, “Because American Express is a New York
corporation, we find sufficient basis for deferring to the parti es’ choice of law. We, therefore,
look to the New York law to govern.”
The next case is called Andrews v. Willci:ns. We jump all the way up to ’91. It’s a
decision, a particularly sad event of an intoxicated man urinating outside of a public john and
upon being accosted by the Park Police dove into the Washington Channel and drowned. A
citizen in a boat was going to try to save the per son, and the police cautioned the citizen not to do
so. There was a lawsuit by the family against the Park Police. [t is an interesting outcome
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because of the court lineup. You were, by then, the Chief Judge; and D. H. Ginsburg and
Sentelle were the other judges on the panel Toe opinion for the court was written by Judge
Sentelle, and you wrote a dissenting opinion. Among the issues were questions like negligent
interference with an attempt to rescue. I ask you, for openers, what led you to select this dissent
in obviously a tragic event but probably a small matter and whether there was a principle at stake
and also whether in such a matter it wasn’t possible for the court to reach unanimity?
Judge Mik:va: First of all I’ll say, I don’t think there was evidence that he was drunk. I
think you just indicated that he was intoxicated .
Mr. Pollak: Yes, there’s a lot of talk about that.
Judge Mikva: They did a post•mortem and found that he had drugs in him. but they didn’t
know it at the time.
Mr. Pollak: The recounting in your opinion, I thought, indicated that there was .3
alcobol.
Judge Mikva: They didn’t know that at the time. They did a post-mortem on him, and
they found that he had both intoxicants and drug residue.
Mr. Pollak: Well, the significant thmg is, of course, not my reading of it but your own.
Judge Mikva: The reason I selected it and the reason I felt so strongly is by this time, by
’91 I had been on the court for twelve years. I’d learned that there were times when I would even
swallow my doubts to go along with a majority because the case would not be important enough
to warrant my doing something about it, and there were other times when I would just dissent in
a paragraph and sometimes not even that. It had to be something that I really felt was important
for some reason before I would take on the responsibility of writing a dissent and challenging my
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colleagues. I felt that this was that kind of a case for a variety of reasons. First of all, I really
was dismayed at the way I felt the panel rewrote the record ..
Mr. Pollak: Yes, I did not put that into my precis of the case, and I thought this was …
wasn’t it a summary judgment grant against the claimant? I thought that the material fact in the
dispute aspect of it was worrisome.
Judge Mikva: Yes, because there was no evidence or at best disputed … in this one there
was no evidence that they knew that this young man was … that there was a warrant out for his
arrest. They did not know that.
Mr. Pollak: Yes, that’s clear. They did not.
Judge Mik.va: They did not know that he took drugs, though Judge Sentelle indicated that
it turned out later that he was on drugs and intoxicants and, therefore, what difference did it make
if they didn’t know. My concern was that the case sent out such a bad message that I would put
forth a different message. It was that police departments ought to know that they have a
responsibility for people’s lives and that you don’t interfere with an attempt to rescue somebody.
You know, the police were standing on the shore. They had no capability of saving this kid. He
was a kid, he was 19, they had no capability of saving this kid. There’s this person in a rowboat
who’s ready to reach out, the kid is about to drown, he’s gasping in the water and they’re reaching
out to help him. this man and his wife; and the police stand on shore and say, “Stand clear, this is
a dangerous armed criminal,” or something like that. They did not know that he was armed; as
far as I know he wasn’t armed. They did not know that he was dangerous; we’ll never know
whether he was dangerous or not. They didn’t know that he was a criminal. He peed outside a
locked urinal. I don’t think that’s a felony even in the District of Columbia.
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Mr. Pollak: You describe him as a misdemeanant.
Judge Mikva: A mi&d.emeanant. That’s all the police knew about this kid, and that he ran
away from them, which is also not a feloily. I think that the message that I would have wanted
the court to send out is “You have a responsibility for this person’s lue and you don’t interfere
with somebody else’s effort to save this life unless you have overwhelming reasons for it.” And,
they had none. So I felt it was a very important case. I brooded about it. I couldn’t believe that
two colleagues on a high court could see it so differently than I saw it. I just thought this was a
horrendous, callous approach to life that the Park Police took and that they should have been …
obviously, there is nothing that could bring the kid back. . I didn’t want to send the Park Police to
jail, but a civil judgment against them would send the right message.
Mr. Pollak: Is it an example, as well, of some argument over tort principles or is it
primarily a review of either appropriate or inappropriate granting of summary judgment?
Judge M:ikva: As far as I’m concerned it isn’t that judges should never grant summary
judgment; but trial judges, before they grant summary judgment, are supposed to resolve all
doubts in favor of the movee. I didn’t think that Judge Lamberth had done that here. Secondly, I
really did think that there were some tort principles involved. Again, it is hard to talk about tort
principles when you’re talking about law enforcement. Clearly, law enforcement needs and
concerns have to trump most tort principles.
Mr. Pollak: Your opinion said that you thought the majority bad appropriately decided
several of the contentions of the plaintiffs, and then there was this esoteric doctrine of an
interference of an individual who had undertaken voluntarily to make a rescue.
Judge Mik:va: That’s correct. Again, this is why I thought it was so important. It is an
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esoteric principle. It doesn’t normally come up in to rt cases, but to my mind the overwhelming
social responsibility principle .is that the police should have a concern about people’s lives. For
the same reason .that we don’t condone police shooting perpetrators or alleged perpetrators
callously or negligently, we shouldn’t condone this. I thought that the police exhibited a totally
callous attitude about this kid’s life by interfering with the rescue and that that should have been
sufficient to trump the normal law enforcement concerns that were expressed.
Mr. Pollak: What explains what does appear to be the unwillingness of the majority
judges to apply the standard smnmary judgment rules which call for denying summary judgment
when a material fact is in dispute?
Judge M.ikva: I think they have perceived this to be an inconsequential case that
somebody was trying to squeeze some money out of the Park Police and that this would break
down morale among the police. It would just be anot her one of these courts beating the police
over the head when they’re really trying to do their job, and that that just sort of overwhelmed the
procedural, ahnost technical, arguments that the appellants were making about the misuse of
Sll.IllIIlaty judgment. Since I didn’t think it was a run?of-the-mill case, I thought that it was an
important message that we needed to send the police. I perceived it as much more than a
technical argument.
Mr. Pollak: Since so many cases in modem federal court practice do travel the summary
judgment route, I, as a lawyer litigating, have pretty strong views on the requirement for denying
summary judgment when real facts that are material are disputed.
Judge Mikva: You just put your finger on the two key words, material facts, are in
dispute in a lot of these cases. Are they real and relevant facts or is it some inconsequential
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dispute on which the case cannot tum? While I don’t know that Judge Sentelle who wrote the
opinion ever reached into bis.own thought processes that deeply to find out, I’m not a bleeding
heart on criminal justice, although this wasn’t a criminal justice case. I do have more sympathy
for the Jaw enforcement arm than might appear from my activities in the civil liberties field. I am
concerned that law enforcement be allowed to do their job. I don’t trunk the court should unduly
in terfere with it. But I trunk on this one, he just didn’t see this as a big case. I was shocked. This
shocked my conscience. That was the other reason I chose it. Justice Brennan used to state this
much more eloquently than I’m going to say it. Judges, and especially i ntermediate judges, have
to follow the law. We can’t ignore precedent. We can’t ignore the rule oflaw when it’s
applicable to a case. But neither can we ignore injustice. We shou]dn’t be comfortable when we
come up with an unjust result, and I felt that the undisputed facts here indicated that the police
used bad judgment. Again, I thought that even my colleagues would agree that this was a case of
bad judgment. That being so, then we shouldn’t settle for it.
Mr. Pollak: It’s an interesting panel because.Judge Sentelle was a District judge and like
Judge Gesell, who you spoke about earlier, Judge Sentelle had experience addressing these
issues. It’s an interesting almost textbook example of different judges addressing a problem
Judge Mik.va: And, again, because Judge Sentelle was a trial judge, and considered a
good one by the bar.
Mr. Pollak: Judge, you were speaking about a trial judge who’s been on the appellate
court, I guess.
Judge Mikva: A judge who’s been on the trial bench for awhile does understand the nee d
to have some discretion in granting summary judgment motions because there are a lot of
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complaints that shouldn’t go to trial. The mere fact, as I said before, that there’s some
inconsequential fact disput? involved or a fact dispute of dubious relevance, should not be
sufficient to defeat the motion for summary judgment because then all these cases would go on to
needless and ex.pensive trials. Again, putting myself in Judge Sentelle’s shoes, that may have set
his thought processes in action in a different way than mine, since I never was a trial judge. I do
recognize that discretion that trial judges ought to have, but on the other hand, this one, it seemed
to me, was outside that discretion.
Mr. Pollak: I guess it could have been the split was grounded on whether the disputed
fact was a material fact.
Judge Milcva: It was on a material fact, exactly.
Mr. Pollak: The nex.t case is the only case, I believe, in the group relating to the
Sentencing Guidelines and therefore, is quite interesting and is quite a recent decision. United
States v. Jones is an appeal after sentencing from a decision of Judge Thom.as Penfield Jackson
and was particularly interesting because it’s an en bane decision, the first one you and I have
talked about of those you selected; and the opinion for the court is written by Judge Steve
Williams; and there are dissents written by yourself for Judges Wald, Edwards and Sentelle and
then separate dissenting opinions by Judge Wald and Judge Sentelle. The crux was whether the
right to a jury trial provision of the Constitution was transgressed when Judge Jackson either
added six months to the sentence under the guidelines or reduced the leniency with which he
sentenced based upon the defendant’s taking responsibility for the crime.
Judge Milcva: I think this is a very important point of criminal law, which, as I recall the
Supreme Court did not grant cert. on, though I really thought they might have considered it; they
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didn’t. A careful judge, Judge Jackson, operating in a very deliberate way–this was not the judge
who got angry and said, ”I’.m.going to teach you a lesson,” this was a judge who said, ”I want to
find out whether I have this authority or not. As I read the guidelines, if you exercise this
demand for a jury trial and I find that you had no basis for any defense, I’m going to … give you
the maximum.” I viewed it as “tack-on” something, the majority viewed it as withdrawing the
leniency that otherwise might have been d ue.
Mr. Pollak: Right. I might say that the interesting thing, I’m reading the opinions both
your own and the majority opinion and the quotations from Jackson, I’m reading the cold record
that gets written in the appellate court opinions; but it was, as you’re going to say, Judge Jackson
actually put his thinking processes on the record at the sentencing; and be said, and you quoted
him at the outset of your dissenting opinion, the Judge said, “Because the case did go to trial, I
am going to add an additional six months to the guidelines.” That was determinative, as you
wrote your opinion; and the majority opinion by Williams put it in a larger context saying that
what he was really doing was reducing the amount leniency …
Judge Mikva: … that he could have otherwise applied. My concern about that is, even
stating it the way Judge Williams stated it, which is not what Judge Jackson said he was doing,
he said, ”I’m going to add on” And, if a judge says he’s going to add on, I think you ought to do
a legislative interpretation of what he meant. In either event, Judge Jackson clearly, deliberately,
acknowledged in his opinion that he was doing it to test whether he had that power or not – to put
the demand for a jury trial in play as a quid pro quo against the amount of time this man would
get in a sentence. I find that flatly violative of the right to a jury trial, as did Judge Wald, Judge
Sentelle and Judge Edwards; and we lost.
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Mr. Pollak: About 7 to 4?
Judge Mikva: Yes, ?gain, there were two or three cases where I lost an en bane court
that I felt I should have won. They really pained me, especially when we got Judge Sentelle here,
so it wasn’t an ideological dispute. It really wasn’t. I couldn’t believe that I couldn’t get Judge
Buckley and Judge Ray Randolph.
Mr. Pollak: You didn’t get Judge Ruth Bader Ginsburg?
Judge Mikva: Nope, that’s right, I did not.
Mr. Pollak: Was it the significance of the decision. Is it the? bane split? What led you
to select this decision?
Judge Mikva: This rea11y is an important point of criminal law, and probably one of the
most important ones I sat on during the 15 years I was there. That is, can a trial judge, in his
sentencing discretion- whatever it is, whether it’s guidelines or the old discretion – trade off
constitutionally protected rights in the exercise of wise di scretion? I think, clearly, he cannot. If
it’s a constitutional right, the judge has nothing to say about that right. If a person says I want a
jury trial …
Mr. Pollak: Can’t weigh and balance.
Judge Mikva: That’s it.
Mr. Pollak: At the conclusion of your opinion, you’ll see that you said, “We should
answer a question with a vigorous no rather than with the fudge the majority provides.” I am led
to ask yo u whether in refusing to give effect to Jackson’s own words of adding the six months,
the majority was being activist in reaching the conclusion they reached or was it within the realm
of addressing the larger issue of when the leniency provisions of the guidelines permitted.
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Judge Mikva: Well, I thought that they were acting in an activist manner because the
Judge was seeking an answer. You know we don’t normally give, we don’t answer questions for
District judges when they ask them of us, but he did this in a right way. As far as he was
concerned, this was a question of how much authority he had under the guidelines to take the jury
trial demand into account. He asked it in a perfectly square way, and this is a recurring problem
that they have, especially since there’s no more plea bargaining going on. The District judges are
constantly faced with these cases that shouldn’t be going to trial; there should have been a plea,
somewhere along the line, and there isn’t. They end up doing a fruitless trial, the de fendant has
no defense, and then at that point then he seeks to cooperate and get some benefit. So the judge
was asking a legitimate question. If he asks the question, then we should answer the question he
asks. As far as he was concerned, he was adding on. What the majo rity did was to take the
legitimate question he asked and turn it into a case that wasn’t before us; so it was activist
judging. What they turned it into was a case where maybe a judge, in the exercise of bis
discretion, does take into account, into the back of his head, but doesn’t say anything on the
record about it. Now, I trunk there is a limit to how far the appellate court should go in looking
to see what was the trial judge’s state offfiilld. Was he agitated, was he angry, and therefore,
exercised his discretion improperly? There are limits to how much we ought to do that because
there are a lot of fruitless jury dema nds and fruitless jury trials going on because of the
guidelines. But that isn’t this case. That isn’t what the Judge asked. So, the court twisted the
question that the Judge asked to a case that we didn’t have, that the Judge wasn’t doing here.
There was nothing to indicate that Pen Jackson was agitated or angry at this defendant for doing
what he did. As far as Judge Jackson was concerned, he was asking a legitimate question, “Can
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the defendant use up resources UDDecessarily this way by demanding a jury trial?” And, to my
mind, the Sixth Amendment ?ays, Yes.
Mr. Pollak: The majority opinion did not answer that question?
Judge Mikva: That is correct. Tuey said, “Can you look at the way the Judge exercised
his discretion in light of his attitude about the fact that the defendant didn’t really cooperate
because he sought a jury trial,” which is altogether a different question.
Mr. Pollak: Do you want to say something on this record about the Sentencing
Gu idelines?
Judge Mikva: Well, I’ve said it on the record and off the record. I think the Sentencing
Guidelines were a terrible consequence of Congress’ failure to do something about indeterminate
sentencing in the right way; and that is, change the statutes. If we didn’t like the range that the
judges had been using under the original statutes, which allowed the judge to give anywhere from
probation to 20 years, then change the statute. Congress was unwilling to do that. We punted it
and, I confess, I was part of the punt effort, to the Sentencing Guidelines Commission; and that
was a big mistake. If you’re going to make policy, then make it. It might have come out just as
bad because Congress has been passing these minimum mandatories, which are most of the
problem; and those are statutory. Those aren’t the problem of the guidelines, those are the
problems of Congress itself. But, at least then the policy is being made by the policymakers. [f
Congress wants to say, “We’re going to give 25 years to some 17-year-old courier from New
York who comes in with a package when he or she doesn’t even know what’s in it because of the
quantity of crack that’s in it,” fine. That’s their decision unless you can turn it into a cruel and
unusual punishment question. That’s what Congress has the authority to do, and judges are
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supposed to carry it out. But the guidelines created by the Sentencing Commission, the
guidelines which turn every trial judge into a nerd with that little grid plotter that shows they are
here and blah, blah, blah, and it comes out to 84 months. It’s as if, the sentencing process, the
sentencing procedure is some kind of a mechanical operation. Outrageous. It’s a matter of policy
and if there is to be no indeterminate sentencing and then Congress wants to do that which
they’ve done with mini:n:mm mandatories, that is their prerogative. I object to them, but at least
‘
Congress is doing it.
Mr. Pollak: Is the foundation, Judge, of the Sentencing Guidelines a statute of the
Congress?
Judge Mikva: Frankly there was nothing in the statute that Congress passed that required
the Sentencing Commission to make every sentence a mathematical computation. They could
have still allowed tire judges some discretion. The Sentencing Commission decided, as a matter
of administrative desirability on their own, that they were going to tum it into this precise
g ridlike operation; and it embarrasses judges, as it should; and it embarrasses the judicial system
Mr. Pollak: The time is at the point you said you needed to go.
Judge Mikva: Yes.
Mr. Pollak: If you could come here one more time.
Judge Mikva: Okay.
Mr. Pollak: I would like to read these other cases. I think that the subjects that I would
like to ask you that, one at least comes; and there may be little left, but I have a series of
questions at pages 17 and 18 of our outline that deal with your judicial philosophy; and they
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might be interesting, at least, to pose generally after we’ve talked about these cases. Finally, I
wanted to ask you these ql!-estions that I alluded to and we discussed briefly when you came in
off the record, whether your service in the White House changed your view of what judges do
and, maybe, without going into it “all, your service in the White House, there might be something
you say about the process of selecting judges. That would be interesting to have on this record.
Judge Mik.va: Sure. Now, that I would like to do. Let me find a time when we can meet.
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INTERVIEW NO. 9
This is the ninth int!!ryiew of Abner Mikva in the talcing of his oral history as part of the
Oral History Project of the Historical Society of the District of Columbia Circuit. The interview
is being taken at Shea & Gardner by Stephen J. Pollak on Wednesday, May 19, 1999, at 10:20
a.m The persons present are Judge Mikva and Steve Pollak.
Mr. Pollak: Good morning, Ab. We’re beginning about 11:47 a.m Initially, I would like
to ask you- I know you have been reading your transcripts of the prior interviews that we did –
is there anything that you want to put on the record that they’ve put in your mind that you want to
get off your chest or say?
Judge Mikva: I don’t think so. I must say, I think you were very thorough in those earlier
interviews, and I think we went into probably sufficient length, maybe even more than necessary,
into most things. I can’t think of anything that is laclcing.
Mr. Pollak: Okay. Ab, I think that what we’re in the process of doing is going over ten or
eleven decisions of yours that you put iu fiont of me that you thought reflected your
jurisprudence. We’ve done a number of them. and there are five or six left to go. So we’ll just
step into those and, as I did before, I will put the decision in front of you, to the extent that you
want it, and pose some questions. One of the significant rulings that you marked out came early
in your time on the appeals bench and was, of course, a nationally discussed decision. It went on
to the Supreme Court, and that is the so-called Airbag case, State Farm Mutual Auto Insurance v.
Department of Transportation, 680 F.2d 206. It was a panel of yourself and Senior Circuit Judge
Bazelon and Judge Edwards. You wrote the opinion with a short concurrence by Edwards saying
that, in respect to the grounds for concluding that the agency had acted in an arbitrary and
capricious way, he joined in those set forth in Part 3A of your opinion. You addressed a nwnber
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of major issues after you set forth the background, including the setting out of the long history of
Standard 208; and then you addressed the scope of review issue and the arbitrariness of the
rescission. The issue that was presented to you was whether the rule looking toward passive
restraints that NHTSA had adopted was set for rescis sion in a reasonable way or in an arbitrary
and capricious way. Finally, you concluded with a discussion of the remand to the agency and
what the agency was to do. I have some questions for you, but I think initially you might have
reasons you’d like the record to reflect as to why you marked this as a significant opinion of yours
and what you think it reflects in your jurisprudence.
Judge Milcva: Well, as you point out, it was relatively early in my judicial career. It was
decided in June 1982, which was my third year on the bench or second year on the bench. I
always thought, let me say the good thmgs first and then I’ll talk about the™ culpa parts. [t did
reflect an important rule for agencies to follow as far as judicial review was concerned, although
there had been cases that sort of assumed, and agencies that sort of operated on, that principle.
After the Reagan election, the new NHTSA decided to repeal Standard 208. I always thought it
was interesting looking at it first politically and then jurisprudentially. In 1980, when Ronald
Reagan was elected Preside nt, the one mandate he had was to get “government off our backs.”
Government had seemed too intrusive. The Carter Administration seemed to pick up where the
Johnson and New Deal Administrations had left off, and there was just this reaction among the
body politic that government was too involved in everyday affairs. They were passing too many
laws dealing with too many things. One of which, of course, was that they were passing too
many laws on au tomobile safety then: speed limits, national speed limits, seat belts and so on.
Reagan was elected with that mandate. No question about it. Had he sought to get a repeal of
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some of the legislation that was passed during the Carter years and going back even further into
the Ford years and the Johnson years, he would have had overwhehning support within the
Congress even though the Congress was controlled by the Democrats. Toe Members of
Congress had gotten the message; people wanted government out. So, had Reagan followed a
political route, there is no question that he would have been very successful And, indeed, in
those few areas where he did seek to repeal some of the legislation, safety legislation others had
passed, he got it passed. But he and his advisors decided to use a short cut. All the agencies
were now subject to new appointments. The Carter people were being replaced by Reagan
appointees. Instead of going through the troublesome route of getting Congress to approve
legislation and having all the backmg and filling that goes on in the legislative process, the
Reagan Administration was going to do it by regulatory fiat. A lot of it had come on the books
originally by regulation; they were going to take it off. They were so hel l-bent for election, his
regulators or his deregulators I should say, that they didn’t stop to dot the l’s and cross the T’s. So
what they did with this particular safety standard, 208, was to say, “Okay, we’re taking it off the
books; we’re repealing it.” They didn’t hold any hearings, not any meaningful hearings. They
didn’t take any evidence. Tuey just said, “This is one of these standards that is way too intrusive,
the government requiring 8Ubags and seat belts; and the manufacturers are telling us they’ll go
broke if they have to do all of that; let’s get rid of it.” So they repealed it. When it came up for
judicial review, the big legal point that was involved in the case was not whether it was a good
standard or a bad standard, whether automobile safety was a good thing or a bad thing, but how
does an agency go about undoing a rule that it has adopted. The standard we set down and the
Supreme Court upheld was that you undo it the same way you did it, with full hearings and full
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evidentiary support. You’ve got to have the same kind of reasoned decisionmaking in undoing a
regulation that you had in adopting it. You can’t just say, ‘Well, we had an election, let’s get rid
of the regulations that the last guys passed.” That part of the decision was upheld.
But it was early in my career, and I saw what I thought was a great opportunity, not even
to create a new standard, but to create a new way of talking about it, sometlring called “legislative
gloss.” I don’t know if you remember seeing that term in the opinion, but we lawyers know that
there had been something called ‘judicial gloss” for a long period of time; judges put their stamp,
their imprimatur, on a piece of legislation and that judicial gloss then becomes a part of the
legislation. The interpretation is as if it were in the statute itself. I thought that it was equally
sensible that when Congress looked at a subject matter a certain number of times and refused to
repeal it or refused to modify it, that created a “congressional gloss.” Congress had said, “Yeah,
we looked at 208; we don’t want to repeal it; we don’t tmnk that it was a bad regulation, so we’re
going to keep it the way it is and we do it by a vote; we actually voted down the repeal.” That’s a
congressional gloss, a legislative gloss; and I thought it was a good concept to acknowledge in
the law. As you know, I’m a creature of the Congress; and I thought that frequently Congress
does tllings simply by doing nothing. The Supreme Court didn’t agree, as you know.
Mr. Pollak: Putting it in terms of the subject matter at hand, which was the airbag
requirements, Congress had a number of times defeated the efforts to derail airbags and, was it
your view that in those actions, which didn’t culminate in a legislative bill that was signed by the
President, did you feel that the legislative gloss was tantamount to a mandate for airbags?
Judge Mikva: I felt that it was a message that was sent to the regulatory agency, that the
Congress meant what it said the first time around. Congress had passed the standard, this piece
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of legislation which gave NHTSA the authority to make these regulations; then there were efforts
made to overturn those regulations, and Congress defeated those. They didn’t pass and that
indicates that Congress agreed with the way the agency had been interpreting the statute. The
Supreme Court , and I have to say with the reason of hindsight that they were right and I was not,
said that when Congress doesn’t pass a law, all that means is that it didn’t pass a law. It’s like
when the Supreme Court doesn’t grant certiorari, it doesn’t tell you anything about the merits of
the controversy on which they refuse to grant certiorari.
Mr. Pollak: And that’s pretty much what the Supreme Court said about the Congress?
Judge Mikva: Yes.
Mr. Pollak: When it doesn’t do something , it doesn’t tell you anytbmg.
Judge Mikva: It just doesn’t do something. Right. I think it was Justice Stewart; no
Stewart had already left; it was probably Justice White, who even though they upheld the basic
decision, they vacated my opinion because there was that piece in there about “congressional
gloss.”
Mr. Pollak: Right. You spent pages 222-28 reviewing that legislative history. That is
where you were finding the gloss.
Judge Mikva: Right and agalll I.was, I had the benefit of having been a member of
Congress, and then knowing how to read a legislative history and knowing what Congress was
doing when they did all these things or didn’t do all these things. I quoted a lot from the
congressional debate, and it seemed to me that that was a perfect opportunity for me to express
my views.
Mr. Pollak: In preparing for this interview, I made notes saying that you reviewed the
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.,
congressional purposes at pages 222-28 and my notes went on, “though no new law was enacted,
you concluded there was a.congressional commitment to crash protection devices for vehicle
occupants that the court ‘may not take lightly.'” And my question that I put down for you, and I
suppose you’ve answered it already this morning was, ‘Wasn’t this the determinative court ruling
in reaching the conclusion that you made?”
Judge Mikva: Not really, because the earlier part of the opinion and the basic remand
said, whatever you do, even had there not been all this legislative history, you still just can’t say,
“Okay, we’ve changed our mind; we don’t like that regulation we passed last year,” I’m talking
about the agency. ‘We’re going to repeal it.” If you’re going to repeal it, you’ve got to go
through the same reasoned decisionmalcing that you did in putting it on in the first place. That’s
the ma.in part of the opinion, and that’s the part the Supreme Court upheld.
Mr. Pollak: And that survived, right?
Judge Mikva: That survived and is now important law; and, as I say, it isn’t really new
law, but it’s the first time the Supreme Court specifically had to grapple with that question, “How
do you repeal regulations?” It has become a landmark case in administrative law. So that part
survived, but, as I say, my hubris and my appetite for putting some new language in the
curriculum got in the way.
Mr. Pollak: You might have reached the same conclusion that a rescission must be
subjected to thorough probing and in-depth review, which were your words, even if there had not
been this gloss?
Judge :Milcva: The long review of the legislative history really didn’t add to that first
principle. The first principle was that even if Congress bad never looked at it again, once the
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agency has passed the regula tion through reasoned decisionrnaking, if they want to undo that
regulation, they have to continue to do reasoned decisionmaking. It’s not a startling concept, but
it had never been articulated before in a Supreme Court case. So, the J\.1HTSA v. State Farm
remains a very important precedent. As you know, these important administrative law cases
always have a lot of political history to them and a lot of political aftermath to them This was an
important subject for the Congress. They had been dealing with it for a long time. It probably
divided the conservatives and the liberals as much as any other issue. Not just airbag safety, but
the whole question of how far government should get involved in protecting people sometimes
even from themselves: motorcycle hebnets, speed limits, the whole bit.
Mr. Pollak: I have a question for you that seems to come right off of your last statement,
and I ask it as I ask all of the questions of you in a wholly respectful manner. I’m sure I don’t
even need to say that to you, but you mentioned that these great regulatory judicial cases reflect,
come out of dividing lines between, often between, liberals and conservatives. Toe question I
have for you is that last week the re was a new great regulatory decision by a panel of the D.C.
Circuit called American Trucking Association v. EPA It struck down smog regulations. The
panel opinion, which I’ve only read about in the newspaper to this point, was per curiam. The
majority was by Judges Williams and D.H. Ginsburg. Judge Tatel dissented, citing numerous
Supreme Court decisions to which he said the decision of the majority was contrary. Obviously,
the majority was striking down regulatory action, just as the majority, there was no dissent, in
your 1982 NHTSA case was striking down an effort to deregulate. For good or ill, the judges
that were supporting, or at least ruled, that the deregulation had to be readdressed were yourself,
Judge Bazelon and Judge Edwards, nominees of a Democratic president. The judges in the
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majority last Friday are nominees of President Reagan and the dissenting judge, Tatel, was
appointed by President Clinton. Do these decisions tend to affirm your statement that the
political dividing lines inexorably reflect themselves somehow in the way the judges come at
them?
Judge Mikva: In these ahnost unique kinds of cases, you know, for every case like State
? or like the EPA case that you recited, there are maybe 50 cases that don’t reflect those
interests that are at the very cutting edge of the divisions within our society. In most cases, the
agency is doing its line work and the court’s review is similarly line work, and we use the
standards that have been set for us, whether it’s Chevron or it’s “reasoned decisionmaking” or
whatev?r the term is, and those divisions within the society that reflect themselves, who
appointed the judge, etc. really don’t come :into play. As you know, perhaps 90% of the cases
that come and are decided by even the U.S. Court of Appeals for the D.C. Circuit, a court with a
reputation for factionalism and a lot of divisions, even :in that court, 90% of the cases are
unanimous because the decisio ns just don’t reflect those cutting edge issues. But when there is a
cutting edge issue like State Farm or the EPA case you described, then the basic philosophy, the
basic attitude of the judge, tilts that judge in how he or she comes out. It may not always be
decisive, you can’t a1ways say, ”he’s a liberal; therefore he’s going to come out this way; she’s a
conservative therefore she’s always going to come out this way;” but it tilts them in that liberals
are generally more supportive of regulatory action and the idea that government is a legitimate
force in our lives, whereas conservat ives tend to say government should stay out; only in the
more dire circumstances should government get involved. That division is a division with.in our
society; it’s a division within the Congress, and it reflects itself in the way the elections come out
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and therefore the way in which the President gets to appoint judges. Interestingly, though, you
can go just so far with that. general statement that I made confirming your susp icion, because if
you push it too far it doesn’t come out right. For example, it was Judge Bazelon and Judge
Leventhal who came out with a hard look doctrine which, in effect, said we’re going to look at
the agency decision with a very tough review because we don’t want them jumping too quickly to
regulate. We want to make sure they’re doing the right thing. That looks like it’s an antiregulatory
doctrine. And, indeed, when the first wave of conservative appellate court judges
came on, they tried to get rid of the hard look doctrine because it was too easy to interfere with
the decisions of the Reagan regulators and so on. But all that said is, “Well, we generally support
regulation, we generally support government involvement. We’re not going to let the agency just
run amok. We’re going to make sure that they’re doing it the way Congress told them to. We’re
going to give it the bard look.” What I’m saying is that the notion that you can define a judge as a
liberal or a conservative and automatically predict how that judge will come out on the cases,
even the bard fought cases, is sometimes not true. Before we leave State Farm, I have lots of
memories about that case. It was the biggest case I had that year, perhaps one of the biggest
cases I had during my whole career on the bench It gave me a great deal of satisfaction that the
Supreme Court upheld my basic decision although they did not uphold the opinion. It was also,
at least in retrospect, amusing the way all of the political actors weighed in. For instance, the
Wall Street Journal, which was very opposed to all of these automobile regulatory plans going all
the way back to Presidents Ford and Johnson, when this decision came out it bad an editorial the
next day; and the title of it was “Air Bag Abner.” I still remember that. (Laughing] They were
not very happy with it.
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Mr. Pollak: There’s a little fillip of history. The auto industry was a proponent of
rescission, and there was a.brief argument made to you in behalf of the industry by Lloyd Cutler.
Judge Mikva: Yes, it was a very effective argument. It didn’t carry the day. The auto
industry and the regulatory agency all played fascinating roles in how this finally got resolved.
You know, after the Supreme Court upheld my basic decision, the auto industry was faced with
the proposition that they were going to have to put in airbags, and they viewed that as very
expensive and a very unwise business decision. They didn’t want to do it. At that point, the new
Secretary of Transportation was Liddy Dole, appointed by President Reagan. She was a lot
smarter than her predecessors, and she understood what the Supreme Court had said and her
advisors told her. She figured out a way of getting around, not the decision, but getting around
the airbag problem So she told the manufacturers, ”Look you don’t want to put in airbags? I’m
going to set up a standard which says that if you come up with another safety device as good;
namely seat belts that really work, and you get the states to direct them since we can’t, but if you
make enough states require seat belts as a condition of driving, traffic safety, then I will postpone
the airbag regulation for a number of years.” So all the automobile companies which had been
the biggest lobbyists against seat belt laws in the states, that’s how I first got involved in this
whole subject matter as a policymaker way back when I was a state legislator, flipped around and
instead of being against seat belts they went into their state legislatures and they were for seat
belts. And since the consumer groups are also for seat belts, aJmost all the states passed
compulsory seat belt laws which require drivers and other people in the front seat to wear their
seat belts while they’re driving. As a result, Secretary Dole postponed the effective date for the
automobile companies to put in airbags. By the time that the effective date came up, by that
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time, competitive conditions were such that they wanted to put in airbags because automobile
purchasers were demanding them.
Mr. Pollak: It’s a pretty instructive bunch of history because in the end everybody, it took
about 30 years, but in the end the greater use of seat belts, the airbags, are all here …
Judge Mikva: Everybody can point to their pet principle as what carried it out. For
instance, my friends at the University of Chicago say, ”See, the free market worked. If you’d
only given it enough time, the automobile companies ultimately came around to putting in
airbags because that’s what the consumers wanted.” But, obviously, there were a lot of traffic
fatalities during that long period and if it hadn’t been for regulations like 208 or some of the
others, who knows how many more deaths there would have been. So, it’s a fascinating piece of
political history.
!vlr. Pollak: This was early in your career on the bench. I was interested that the opinion
had 47 footnotes. Do you want to comment on it? When you look at it now from 1999, even
though you came to the conclusion that the footnotes were better gone, would you say in this
decision, ‘Well, they had their function”?
Judge Milcva: No. IfI had had my policy in play then, even as early as 1982, I might
have resisted the temptation to go off into these byways of “congressional gloss.” One of the great
advantages I found of not using footnotes is that it forces the judge and bis clerks to look at every
subject and say, “Now is this important enough to put in the body of the opinion, then let’s put it
up there and explain why it’s here and what it has to do with the rest of the opinion. If it isn’t,
let’s not relegate it to a footnote and say, well, we don’t know that it’s important enough or not,
put it in. a footnote. What difference does it make?” This is what I did there. There are several
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trungs that are in footnotes that I was kind of showing off my expertise with legislative history,
the fact that I knew what the legislative arena looked like. Now if I had had to make the decision
to put those up in the body of the opinion, I probably would have said, “It’s not worthy, it’s just a
little “Abner gloss” and shouldn’t go in there.” Maybe it would have gotten me to the point
where I would have said, ”Do I really want to get into this congressional gloss or do I want to
stick to what is the basic point of the opinion and that is that they didn’t engage in reasoned
decisionmaking.” I don’t know. All l’m saying, in retrospect, it confirms that footnotes are a
dangerous device. Incidentally, it is one of the opinions – the reason that both Justice Breyer and
I both stopped using footnotes is that he clerked for Justice Goldberg and I had been a former law
partner of Justice Goldberg and we would have lunch with Arthur Goldberg, Breyer and I, once
in awhile we both were on the court, Breyer and I, and Goldberg would sort of critique our style,
critique what we were doing. He was lecturing us about footnotes, that we both used too many
footnotes. The Airbag case was one that he was familiar with because it had gone up to the
Supreme Court and gotten a lot of publicity and he, I don’t know if he had read the opinion or just
asked me about how many footnotes were there, and I had to allow that there were a lot of them
“See,” be said, “that’s the kind of trouble you get into. If you hadn’t used footnotes, then the
Supreme Court would probably have just affirmed the opinion and wouldn’t have made all that
big noise.” It was shortly after that lunch that Breyer and I decided we wouldn’t use footnotes
anymore. So the opinion played a historic role in changing my style because it just gave
Goldberg an opportunity to lecture me about it. Footnotes are a bad idea. Breyer still doesn’t use
them Any opinion I’ve seen of Justice Breyer, I don’t think be uses footnotes.
Mr. Pollak: The next case is a decision called Ferebee v. Chevron, 736 F.2d 1529, a 1984
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decision of yourself for a court of Wald and Bazelon. The case was one where the court was
unanimous. It was an agricultural worker, you will recall, who had worked for the government
and had had long-term skin exposure to a herbicide or insecticide called Paraquat, which was
followed by puhnonary fibrosis leading later on to his death He sued, and after his death his
family carried it on and won a jury verdict of $60,000. The issue in front of you was whether the
evidence was sufficient for the case to have gone to the jury?
Judge Mikva: That was one of the issues. It’s the issue that causes a lot of people still to
read the case. Probably the issue that was most troublesome was the …
Mr. Pollak: Was the preemption, that’s right. The question was whether the federal
warning rules or laws preempted the field from state regulation. Your opinion had the federal
government mandating a warning on the label This manufacturer had bad the federally
mandated warning and was saying, ”Well that is all, that should protect us from damages.” You
ruled that it didn’t protect them
Judge Mikva: That’s right. The case was interesting. Tue first issue you talked about,
the standard of evidence as to what can go to the jury, is still being fought about. Toe most
recent Supreme Court case, which modified the D’Alembert rule, I think I referred to it in here,
might or might not have dictated a different result as far as whether or not this case could have
gone to the jury on the evidence that was presented. On that question, this case wasn’t really that
important because there are lots of cases where the appellate court Says, “Well, yes this is
sufficiently well established so that it could go to the jury. ‘This is speculative and we won’t let it
go to the jury.” Even the Supreme Court in its most recent enunciation of the doctrine said,
”Well, the trial judge bas to be allowed some discretion here. We can’t lay down some black and
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white rule that will always tell you what kind of evidence is admissible and what kind is … ”
Mr. Pollak: You didn’t select this opinion for that issue?
Judge Mikva: No. It’s the preemption issue which is much more significant and one that
the Chevron Company had a great deal of difficulty with.
Mr. Pollak: I bet you they thought they had to prevail on that issue.
Judge Mikva: They were so unhappy with the language of the opinion and didn’t quite
know what to do. As I recall, they tried to en bane the case, and there weren’t enough votes to gi,
bane it. I’m not sure about that. Then they took a long time deciding whether or not to seek
certiorari on the case. Were they better off just having one court of appeals decision which was
slightly off the mainstream on this preemption question or should they get certiorari denied? Or
worse yet, the court might take the case and really come down with a broad rule on preemption
which would hurt them My feeling about preemption is that in a federal system — I think I
applied this as consistently as I knew how to all the time I was on the court — in a federal system
where we pride ourselves that we have these competent jurisdictions that are free to legislate in
all these areas, torts and contracts and so on, that Congress should be very clear when it passes a
law that says, “We don’t want the states in this field. We are preempting it. We are going to take
it over completely.” What I said about FIFR.A here was that all Congress had said was that the
manufacturers have to put this label on. It did not say “and we repeal state court law and we
don’t want the states to be involved in this.” Now Maryland tort law said that even with the
warning, a company could be negligent and be responsible for causing somebody’s death. Just
because you tell somebody that there’s a hole doesn’t mean that you aren’t liable if somebody falls
in that hole. That, basically, is what the FIFRA warning was. It said, this is a label that has to go
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on there, but it didn’t immunize the companies from state tort law which said, if you put a drug
on the market, put a substance on the market that causes somebody’s death, even though you’ve
warned that person, that doesn’t mean you are not liable for that death.
Mr. Pollak: One of the interesting issues that’s so very current today and always is, I
guess, is states rights. Would you say this was a states rights decision?
Judge Mikva: Oh absolutely. I came out of ten years in the state legislature a firm
believer in states rights. I think that wherever the state can do something and wants to do
something, it should be allowed to do it, should be encouraged to do it, unless there are some
overwhelming reasons why the state’s doing it will interfere with the national good. But, states
rights to me aren’t the state saying I reserve the right to do this. I’m not going to do it, but don’t
you do it either, such as civil rights or education or voting rights. That’s not states’ rights to me.
The notion that the state is free to act where it wants to, I think, is very important, and Congress
should use its preemption power carefully and be very specific. Now, Congress could have said
in FIFRA, ‘1n addition to the label, we direct that all state tort remedies are repealed and that the
only applicable law shall be this federal law.” They didn’t say that. So, therefore, as far as I was
concerned, yes, the label said that was all the company had to do as far as labeling is concerned,
but that didn’t mean that the company was off the hook as far as state tort law is concerned.
Mr. Pollak: The company, you recounted that Chevron in arguing preemption grounded
its argument upon a section of FJFRA which provides that a state “shall not impose or continue
in effect any requirements for labeling in addition to or different from those required under thi.s
subchapter.” I guess, Chevron argued, you recount further, that a damage action based on
inadequacy of a label has a regulatory aim to assure that adequate labels are used, and that is
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precisely this regulatory aim that F1FRA explicitly preempts. I guess you pretty much answered
that already.
Judge Mik.va: What I said was that all the FIFRA did was say that this is the label and the
state can’t order a different label That doesn’t mean that the rest of state tort law, which is only
applied here doesn’t still …
Mr. Pollak: It was a little unclear to be, Ab, whether Chevron could have put on
additional warnings.
Judge Mikva: Probably not.
Mr. Pollak: Probably not?
Judge Mikva: Probably not. Had that been what I told them they should have done, that
that was the way they could have avoided their liability, that probably would have caused more
of a collision with FIFRA That would have been saying, “All right, now the state is requiring
additional warnings over and above FJFRA” What I said was that putting that drug on the
market, even with the warning label, didn’t protect them from the fact that putting it on the
market may have been a negligent act under state tort law. Just because under FIFRA this is the
label you must use doesn’t mean you should put it on the market at all At one point, I forget
whether it was in the rehearing or in the original briefs, I don’t remember whether I covered it in
the opinion or not, Chevron was complaining that it sounded ahnost like absolute liability.
Mr. Pollak: Chevron said, this strikes me as pretty tough, “Chevron can comply with
both federal and state law by continuing to use the EPA-approved label and by simultaneously
paying damages to successful tort plaintiffs such as Mr. Ferebee.”
Judge Mikva: It’s like the smoking label. When Congress, and remember I was in
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Congress when this happened, at the behest of southerners who thought this was a way of
immunizing the tobacco companies from state tort liabilities, put on the label warning, the
Surgeon General has found that smoking may be dangerous to your health, that doesn’t immunize
the tobacco companies from being sued in state courts by the states for the damage that they did
as a result of people smoking. It’s the same principle. Warning somebody that they’re going to
die doesn’t necessarily allow you to escape liability.
Mr. Pollak: The next case, I’m going as a matter of time flow, is Hammantree v. NLRB,
894 F.2d 438 (D.C. Cir.). This is a decision as to whether a provision of the NLRA had required
the National Labor Relations Board to address and decide an unfair labor practice charge directly
or whether it could leave the matter to go to a private arbitration, which was called for by the
collective bargaining agreement. You held, as I read it, for yourself and Judge Gesell that the
statute called upon the public body, the NLRB, to decide the issue. Hamrnantree was claiming
that for his labor union activity he had been retaliated against and that that was an unfair labor
practice. Your colleague, Judge Wald, dissented and, essentially as I read it, said that the NLRA
provision was sufficiently ambiguous, that Chevron called upon you to follow the NLRB’s
decision as to how to apply the collective bargaining provision. I note that the court in full
vacated the opinion and set for an en bane. I don’t know what the subsequent history is.
Judge Mikva: They reversed me. Since Judge Gesell was not on the court, the en bane
cOurt, I ended up writing all by myself I couldn’t even persuade Judge Edwards that I was right.
I thought it was important, one of these cases that, in some respects is very fact specific and,
therefore, may not be quite as important as I thought it was at the time. But, I thought it was
important because it seems to me that when Congress says this is important enough to put under
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a statute and give the authority to a public body to resolve these disputes, in this case the
National Labor Relations Board, I think that suggests that private action shouldn’t be allowed to
trump that public action. What I felt happened here is that the Teamster, I think it was a
Teamster Union .
Mr. Pollak: It was the Teamsters.
Judge Mikva: The Teamsters Union had decided to go after this fellow, Hammantree,
and had somehow persuaded the Labor Board to let the collective bargaining agreement resolve
the dispute. Under the collective bargaining agreement it would go to arbitration. It was very
stacked on the arbitration panel I hope I wasn’t looking at the final result here, which I think was
going to be very bad for Mr. Hamrnantree. What I did feel was important though was that
Congress had expressed itself in saying there is a public concern about these kinds of disputes.
They should be resolved by the Labor Board. I don’t think it’s easy. I didn’t read the statute as
loosely as Judge Wald did, and as ultimately the full court did, in saying, “Well but the Labor
Board decided that they’d rather let tllis be handled by private arbitration rather than second guess
them” As I recall, Judge Wald used the Chevron doctrine as a reason for saying we shouldn’t
interfere with the Labor Board’s decision. When a regulatory agency, when a public agency,
abdicates a responsibility that the Congress has given to them, I don’t think that’s entitled to any
deference under Chevron or anything else. I’ve always felt that the courts should look closely at
the regulatory agency’s interpretation of its own mandate because, as far as I’m concerned, that’s
the one place where if the court doesn’t review it, pretty soon we’ll have the Treasury resolving
all military disputes and the military resolving all the labor disputes. And, clearly, the basic
mandate, the decision of what kind of disputes the agency should be handling is something that
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the court should be looking very closely at in the statute.
Mr. Pollak: Was this part of a Reagan-era deregulation thrust?
Judge Mikva: I thought it was a tittle bit. Obviously, I could not persuade even my likeminded
colleagues to agree with me. It may well have been that I got stubborn because of the
facts, which I found particularly compelling. This was the Teamsters using its heavy-handedness
at its worst agalllSt one lonely dissident Teamster. I don’t know that the Labor Board would have
reviewed it any more favorably than this private arbitration, but, at least, the Labor Board wasn’t
stacked in advance the way the private arbitration was. As I recall, in the private arbitration, the
arbitrators were appointed solely by the Teamsters. That’s hardly an independent body. I thought
it was reflective of the, you know, ”let’s let the private sector do what they want here and keep
government out ofit.” Again, if you want to relax the National Labor Relations Board
jurisdiction, then change the statute, don’t change the regulations.
Mr. Pollak: The court voted to hear the case en bane. Did it hear it? And reversed it?
Judge Mikva: Yes, they heard it and reversed it and, as I recall, I ended up dissenting
alone because even Judge Gesell, who’d agreed with me on the panel opinion, was not a member
of the en bane court. So I was all alone.
Mr. Pollak: Well, it’s very manful of you to select it for the history.
Judge Mik:va: It shows either that] was a very small minority and I was right, or that I
was very stubbom One or the other. [La ughlng]
Mr. Pollak: Next, you selected three more cases, all of them argued in 1993, and two of
them decided in that year. So these are late decisions of yours, and I’ll take them in order. The
first was called Sweet Home Chapter of Communities for a Great Oregon v. Babbitt; and it
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concerned the Endangered Species Act. It’s 1 F.3d 1, and it was a decision of yours with Judge
Williams and a dissenting opinion in part filed by Judge Sentelle. The question was whether the
regulation defining harm to endangered species was broad enough to include habitat modification
which was argued to hurt the species. There was also a review of a regulation of the De partment
of Interior which automatically extended the protections for endangered species to threatened
species, and both of those regulatory interpretations were under challenge by the industry. I
suppose it was a logging concem What led you to select that decision, and how does it fit into
your jurisprudence late in your career on the D.C. Circuit?
Judge Milcva: It’s my feeling that when Cong ress gives an agency the discretion to pass
regulations to achieve a particular end, the agency should be given broad discretion and should
be upheld in its efforts to achieve that end. You ought not crimp its authority by using the words
in the narrowest sense rather than in the broadest sense. In a sense , as far as I was concerned, the
original decision, which Judge Williams concurred in, was reall y carrying out Chevron in the
original purpose for which Chevrnn existed. Even before Chevron came down as a case , most
Courts of Ap peals had said we will defer to the agency in their field of expertise. They were the
ones who were told, ”Protect endangered species.” Here are the standards that they were
su pposed to use. We should give them great discretion in applying those standards to achieve
that end. In doing so, it seemed to be very simple, it seemed to be reasonable to say , ”Yes, the
agency was right to say that habit at was one of the ways that we need to protect endangered
species as well as any others that have been placed in the statute.”
Mr. Pollak The statute proscribed actions to harm the species, and your ruling said it
was reasonable to read harm as taking habitat action or action in the habitat …
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Judge Mikva: That would cause the harm This was not an unreasonable extension or an
extension at all of the agency’s basic authority to protect endangered species from hann. If you
destroy the place where spotted owls can live, that’s the same as killing them That’s what the
agency basically said. Now, one of the reasons I pulled out the decision is that this is one of
these very divisive questions within the society, within the court, where on rehearing Judge
William was persuaded to change his mind; and he joined Judge Sentelle in an opinion reversing
the agency and saying, “No, you can’t include habitat as a measure of harm” And I ended up
dissenting. Toe case went up to the Supreme Court, and the Supreme Court affirmed me,
affirmed the agency.
Toe Supreme Court’s review of this decision is in most administrative law case books
now because it’s an example of how the Supreme Court views this issue of administrative agency
discre tion and bow the Court views the agency’s looking at a statute and trying to carry out the
basic purpose of the statute without holding it to some very specific, narrowly defined words. It
also, as you noticed, that was the first opinion in F.3d, but it was vacated, [Laughing], because on
rehearing Judge Williams ….
Mr. Pollak: I’m pleased for the record that you brought out the subsequent history
because it provides a very interesting picture of the judicial review of the admm:istrative action.
Judge Mikva: One other tmng that, this probably was more on the rehearing than in the
original opinion, Judge Sentelle was very booked up on a doctrine noscitur ? sociis. I don’t
remember the full …
Mr. Pollak: Yes, the Latin phrase.
Judge Mikva: … the Latin phrase, the canons of construction, and like all canons of
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construction, you can apply it anyway you want to. He applied it to say that habitat wasn’t the
same as the other kinds of harm that were described in the statute, and therefore, habitat couldn’t
be a part of harm. That’s what noscitur §; sociis said. Judge Williams, the first time around,
agreed with me because when we looked at the legislative history, I thought it was pretty clear
that Congress had, to the extent that it was considering habitat at all, clearly wanted it covered.
When we went back on the rehearing, he insisted that the legislative history didn’t reflect that
and, in any event, Congress didn’t use the word habitat and habitat is not associated with harm
and, therefore, the agency couldn’t extend it to habitat.
Mr. Pollak: Well, that was something I was going to put in front of you. The statute,
your opinion related, contained a prohlbition on taking an endangered species and the statute
defined, and here’s where Judge Sentelle was focusing, it defined take in a series of words, as
statutes so often do, and it said to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or
collect or to attempt to engage in any such conduct. I suppose that various judges split,
ultimately the Supreme Court affirmed your position, to put across whether hann partook of the
other words which had abnost a constant meaning of a person doing sometbmg to the animal?
Judge Mikva: Physical hurting, physical involvement of some person with the animal
And as I said, the legislative history showed that Congress really was trying to protect these
species, endangered species. You would do just as much harm to a spotted owl if you shot it as if
you cut down its nest.
Mr. Pollak: There is an aspect of your descnbing the way you came to a case like this
that I want to inquire about More perhaps than some judges, when you approached some of
these regulatory decisions and maybe other decisions, you felt that some of the disputes over
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agency action really should have been addressed to the Congress? You said Congress had set out
in the statute a remedy and had put the agency in motion, and now the court was being asked to
step in. You appeared to be thinking, “Well, the Congress, the legislature continues to sit;
disputes over the agency’s action is something that ought to go back to the Congress.”
Judge Mikva: Yes. Basically, there was much ado made about the Chevron case when it
came down. The Chevron doctrine as to how a court should review agency action. I’ve never
found Chevron quite as useful a tool as other judges did. First of all, because I didn’t think it was
that new. Chevron just basically said what you just said, that is, that the court should give
deference to an agency decision because it’s the Congress that set the direction for this agency to
go in and, if somebody doesn’t like the direction, go to Congress and tell them to change the
direction. That’s where the direction was set in the first place. As long as the agency is acting
within its designated sphere of influence. So, as far as I was concerned, Chevron didn’t do
anything that dramatically new about the doctrine and, in some respects, it almost tried to
mechanize it by step one, step two, and it did some harm because, basically, I always felt that a
judge’s role here was not to treat these reviews of agency actions in some kind of a mechanistic
fashion, but to remember that the basic doctrine is Congress is the first branch of government.
They make policy and they delegate to the agency how to carry out this policy, and the court
should not superimpose its views on either the basic policy itself or the direction that the agency
has taken if it’s consistent with what Congress told it to do. It’s not our job.
Mr. Pollak: Ab, did your approach to this case, after 14 years on the bench, differ from
your approach when you came on? It actually has strains that aren’t so different from the State
Farm.case.
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Judge Mikva: No, I don’t think my approach changed. I think I may have learned to be a
little more temperate about my effusive enthusiasm for congressional action and inaction such as
in the State Fann case. I still think that, to my mind, the first role of a reviewing court when it’s
looking at any statute, particularly a statute that involves an administrative agency, is to say,
”Can we find from the words of the statute what it was that Congress was trying to do?” Our
responsibility is to carry out faithfully that charge, that policy decision. As you know, the words
like habitat aren’t always clear, or harm. aren’t always clear, so that the court can apply this
mechanistic approach. That’s why I always felt that it was legitimate and necessary to look at the
legislative history when I was doing that back in State Fann cases as recently as …
Mr. Pollak: You were moved by the policy of what Congress was trying to accomplish?
Is that right?
Judge Mikva: Yes. And that, I think, is the court’s responsibility.
Mr. Pollak: You had no footnotes, I notice. None at all.
Judge Mikva: No footnotes. None at all I think in about 1986 or thereabout I stopped
using them
Mr. Pollak: The next case in time is a homosexual case, Stefan v. Aspen, 8 F.3d 57. The
midshipman, Stefan, as related in the case, had stated that he was a homosexual; and he was
forced to resign under a regulation which had a number of different provisions, the last of which
was that the member of the military bas stated that he or she is a homosexual, unless the agency
found that the individual is not a homosexual Your opinion was written for a court of yourself,
Wald and Edwards. There was no dissent, but then the case was en banced. Your decision was
reversed. The ruling was that the individual was properly forced to resign by the Navy. What
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does that … ?
Judge Mikva: Let roe line up the history first. The en bane court, which I think. I sat on
although I was not there for the decision because I had left the court by that time, but the en bane
court in its decision for a divided court overturned my decision and authorized the Navy to
cashier this gentlemen. AB I recall, the en bane court divided something like 6 to 3 or 6 to 4
maybe. I view my Stefan opinion as one of the best I ever did because I thought I was being very
careful Oh, and I should say that the en bane decision was not appealed by anybody or Stefan. I
don’t know whether he didn’t seek cert. or whether he did and didn’t get cert.
Mr. Pollak: I wonder if there was some recounting in your opinion that there bad been
later adopted by the military the “don’t ask, don’t tell rule” and that rule was not at issue in. the
Stefan case?
Judge Mikva: That was not at issue. That rule was adopted subsequent to the action that
was taken again.st Stefan. It was not involved in this case at all. There have been other decisions
about “don’t ask, don’t tell,” which have sort of upheld the policy. The implementation of that
policy has been all over the lot. 1bis was, in some respects what bothered me about the way the
Navy behaved here. The Navy went out of its way to punish Midshipman Stefan and discharge
him under less than honorable conditions, to force him to resign. It went out of its way to
achieve this result not because of anything Stefan did. The record was absolutely clear that the
Navy was not alleging any misconduct on Mr. Stefan’s part. This was simply because of what be
believed, what he said. He said be was a homosexual and thought of himself as a homosexual.
The Navy wasn’t accusing him of having assaulted anybody or having embarrassed anybody or
having propositioned anybody. What the Navy accused him of was, it asked him, “Are you a
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homosexual?” And, he said, “Yes sir.” And the Navy said that’s it. Toe last line of the opinion,
as far as l’m concerned, was a basic reason why I thought they were wrong. America’s hallmark
has been to judge people by what they do and not by who they are. This decision on the part of
the Navy to cashier Mr. Stefan was based not on anything he did, but on who he was. He was a
homosexual b y his own standards. There’s a little bit of background to the case. Mr. Stefan had
been an honors midshipman. He was a platoon commander. These are two of the highest honors
given a midshipman. I have met him since the time I saw him sitting in the courtroom He looks
like the all-American boy: clean cut, crew cut, straightforward. After he was cashiered, he went
to law school and is now a member of our profession. He’s a lawyer. He explained why be
answered the question at the time he did and why be felt that he had to answer it. He said,•? ou
know, I’ve been told during my entire career as a midshipman that honesty and integrity are
important to being a good naval officer, so when I was asked, ‘Are you a homosexual?’ I had to
answer honestly, I had to tell them yes. Those were my inclinations.” I think that, as a society,
this is one of these issues that we continue to grapple with very unsatisfactorily. The “don’t ask,
don’t tell” policy is not working very well as far as young people are concerned in their relations
with the military. Steve, this is a generational problem ] have to say that l came by my
understanding, if l have one, of acceptance of homosexuals in the gay community with my head,
not with heart. l still am uncomfortable about the idea of gays getting married or the idea of gay
people kissing in public. It is something that I grew up with and I had great trouble overcoming
that. My children would tease me, and I give them credit for being so enlightened. The fact is I
am just as homophobic as everybody in my generation. l suspect that probably deep down I am
and I’ve resisted it. My generation and the generation that would have made up the majority of
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this court, and apparently still makes up the majority of the policymakers in the Congress, have
an attitude about gays that.is just inconsistent with the way the next generation perceives gays
and gay behavior. One of the background pieces of this — I was then Chief Judge at the time this
came up — the trial judge who beard the case, he is now deceased, used the word “homos” during
the trial. He said, ”Homos this or homos that,” and there was a big outcry. The LAMBDA
Society was upset. Somebody filed a judicial complaint or threatened to file a judicial complaint.
Chief judges did not like to use the judicial complaint process, particularly while the case wass
going on, but on the other band the conduct was indefensible. That was an offensive word. So I
went to see the judge involved and I said, ”There’s this complaint. I think it could probably be
resolved, or this threatened complaint, if you simply make it clear that you made a mistake using
that word and apologize.” He said, “Well, okay, but I didn’t know there was anything wrong with
the word. It sounds like a perfectly good word to me; it’s short for homosexual, what are they all
so upset about?” I said, ”Well, Judge, people are entitled to be called what they want.” He said,
”Well, nobody told me that this is a bad word.” I said, ”Clearly, the outcry makes it clear that it
was. You wouldn’t have used the word ‘nigger,’ Judge, would you?” He said, “Of course not.
People have told me that that wasn’t the right word.” So I think this is a generational problem
that Stefan reflects which, hopefully, will go away in the next era. I hope so.
Mr. Pollak: Ab, there was discussion in the opinion, I’m not sure you want to say more
about it, of what the standard of review was. It was an equal protection case. The question was
whether you gave it rational basis review or whether you gave it close scrutiny. I don’t know
whether you want to comment on that aspect of it. Did it have to do with whether homosexuals
were a protected class?
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Judge Milcva: There were two opinions. There was an opinion of our court which had
been written some years before which bad specifically said that homosexuals were not a
protected class. That Court’s opinion was, of course, binding on us. So, clearly Mr. Stefan was
not entitled to any special protection; and then the Supreme Court had come down with this
opinion, Bowers v. Hardwick, so that we clearly could not review the agency’s action of Bowers
v. Hardwick. 1be D.C. Circuit case was Dronenberg v. Zesch, which came out in 1984. Clearly,
there was no way we could give Mr. Stefan any kind of extra protection in the standard of review
because he was a member of a suspect or quasi-suspect class. Such membership would have
entitled us to give the government action heightened scrutiny under equal protection review. So
we had to give it the rational review test, which we did. We said that there were no rational
reasons for the agency acting the way it did, which meant we also had to go through a litany of
the kinds of things that weren’t raised here. But that might have been a way for the Navy to
justify its action. Was there a risk to military security from homosexuality? Were homosexuals
subject to blackmail? We went through all those and said that even under a rational review test,
there was no basis on which the Navy could kick b.i.m out.
Mr. Pollak It was interesting to note, as you set forth in the opinion, that the regulation
in all of its other parts, and it was a long regulation, focused entirely on actions. And then it
came through at the end with this one item that was the only item that was at issue here.
Judge Milcva: Again, without giving homosexuals any special preference or any special
protection, the idea that someone could say, «Yes, I’m a heterosexual,” and that’s okay, “Yes, l
have no sexual feelings,” and that’s okay, but ”Yes, I am a homosexual,” and that one statement,
not any conduct, not anything that flows from the statement, simply the fact that you can descnOe
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yourself as a homosexual is enough authority for the Navy.
Mr. Pollak: Toe last case you noted was Muldea v. New York Times Co., 15 F.3d 1137.
It was argued in September 1993, decided in February of 1994. It is a very interesting decision,
particularly as you were moving off of the court, with the opinion for the court of Mikva, Wald
and Edwards filed by Edwards and you filing a dissent. You could comment on whether that was
a rare occurrence for that trio? Just briefly to set the stage, the question was whether a book
review about a book by Muldea that said that it was sloppy journalism criticizing the National
Football League was hOelous. The majority upheld a decision that the Times had to answer for
the book review, and you would have protected it under the First Amendment.
Judge Mik.va: That is correct.
Mr. Pollak: Why don’t you speak about the case. It must be one of the last opinions you
wrote.
Judge Mik.va: It was. Again, it had some subsequent action which I should have given
you a copy of. I guess I didn’t have it. They filed a petition for rehearing after a period, after
there were a large number of editorials in the New York Times and the Washington Post and just
about every other major newspaper in the country lecturing Judge Edwards and Judge Wald
about bow they were threatening the First Amendment with that decision. Judge Edwards and
Judge Wald granted rehearin,g and Judge Edwards wrote an opinion reversing himself. I did not
write, it took a great deal of self-restraint not to write ”I told you so, I told you so.”
Mr. Pollak: Were you still on the court?
Judge Mikva: Yes, I was. I just concurred in the new decision. The clerks were very
unhappy as a result. That came from 15 years of having been on the court.
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Mr. Pollak: And what did Judge Wald do?
Judge Mikva: She went along both times.
Mr. Pollak; So there was a unanimous cowt on the adoption of the position of the
dissent?
Judge Mikva: Yes. In fairness to Judge Edwards and Judge Wald, the first time around,
I’m not sure that whoever was defending the New York Times, whoever was defending the book
review, did as good a job as they could have done in making it clear that this was commentary
and that this had to be at the heart of the First Amendment. We seemed to spend a lot of time on
the briefs and once Judge Edwards had reached an opinion, a lot of time was spent on the facts of
the controversy. If it was commentary, it shouldn’t even get there because you are talking about
an opinion. Your opinion doesn’t need to be accurate if it’s truly an opinion. If you say, in your
opinion, I was a lousy judge, there’s nothing that I can do about that. It’s not a libelous statement.
That’s what commentary is all about, especially when you are dealing with trungs as important as
the arts and literature of public officials. That’s what the whole notion of the First Amendment
freedom is about. I think in fairness to Judge Edwards and Judge Wald that the first time around,
while my dissent was based on the fact that this was commentary, this was opinion, they were on
other tracks. It was an example of how – one of the reasons the First Amendment is as
successful as it has been is that it has strong proponents out in the marketplace. Unfortunately,
other amendments, like the Fifth Amendment, Fourth Amendment, Eighth Amendment, don’t
have the same strong advocates defending ..
Mr. Pollak: Right, or revered advocates.
Judge Mikva: Revered advocates, the way the First Amendment does and so when we
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come across some of those, we struggle.
Mr. Pollak: That’s an interesting comment that those who seek the protection of the
Fourth, Fifth and Eighth are often very disfavored.
Judge Mikva: Yes, they are.
Mr. Pollak: And, impecunious.
Judge Mikva: hnpecunious. They don’t have very powerful spokesmen getting editorials
lecturing the judges.
Mr. Pollak: There was a split between the majority and the dissent over the application of
a, I guess, a Supreme Court opinion, Milkovich? Is there anything to say about that or is that to
one side of the issue that you’re making that this was commentary and should have gone down a
different road?
Judge Mikva: I trunk that’s what Milkovich was really about I’m trying to remember.
As you notice, there was even an appendix in which.
Mr. Pollak: Yes, the book review is printed.
Judge Mikva: And, again, it has more to do with, I think that partly almost invited error
that the book the Times, the book reviewer, just did not emphasize how clear this was, how this
clearly was a commentary problem and not a …
Mr. Pollak: The Times advocate.
Judge Mikva: Right, what was advocated for the Times. Milkovich was a case where
they said that fact and opinion is sometimes an artificial distinction, and that’s true; it is
sometimes an artificial distinction. The problem is that it doesn’t follow that you can ignore
everything that is involved in protecting opinions in the marketplace. Basically, I can’t think of
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anything that is more what the First Amendment is about than reviews of books.
Mr. Pollak: The majority was using Milkovich and saying that if you make a statement
and it is verifiable by going to the facts, then you can’t have an opinion. The statement must be
verifiable, and the case goes to the jury on that.
Judge Mikva: In the second time around, Judge Edwards said, “Well, that’s not always
the same case.” Clearly when you’re dealing with something as opinion driven as a book report
Mr. Pollak: That is what a book review is, the writer’s opinion of that book?
Judge Milcva: I think this is one of those places where the absence of foomotes, I
probably wouldn’t have put it in anyway, but I remember when I was working with my clerks on
the opinion, I had come up with, I had remembered President Truman was very outraged at an
opinion about his daughter’s playing the piano, and I wanted to put that in.
Mr. Pollak: Singing, I guess it was. Truman played the piano.
Judge Mikva: Singing. It was Margaret singing. I wanted to put something about that in.
It was a very distinguished music critic for the Washington Post, as I recall; and I wanted to put
something in that both the critic’s right to criticize Margaret’s singing and the President’s right to
defend his daughter were both protected activity, but the clerks talked me out of it
Mr. Pollak: Well, Judge, we’re corning down the home stretch I have a few questions
remaining, and I had some questions that I had laid out in the outline that focused on public
policy and judicial philosophy. I’m somewhat inclined to let the record speak for itself as you’ve
spoken on so many subjects of that. I do have a few that touch on your service as Counsel to the
President. These inquiries touch on your White House experience, but I concluded that there is
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no occasion to inquire generally into that area Probably you may well have an oral history that
would cover aspects of that service, from archives or something. In any event , I’m not unwilling
to do it if you want to.
Judge Mikva: Well , we can touch on it briefly. I haven’t done anything else. There aren’t
too many things that I can talk about. There are a few things that are related , that are law related,
that could be interesting.
Mr. Pollak: Initially , I wanted to ask whether there was anything you wanted to sa y about
how it came about that you left the bench and went to the White House.
Judge Milcva: My leaving and my going there in the first place and my leaving the White
House Counsel position were both so simple , and yet everyone assumes that there were more
complicated reasons than there were. I had been on the bench for almost 15 years. I was going
on 69 years old so that I would have had to step down as Chief Judge about a year thereafter, a
little over a year. I’d enjoyed being Chief Judge and I’d enjoyed certainly my tenure on the bench
I’d kind of made up my mind that I was going to, when I stepped down as Chief Judge, take
senior status and probably spend some time as a visiting judge and some time teaching. Pat
Wald had been just a supportive and remarkable colleague. First of all , as I think I mentioned
earlier, she voluntarily stepped down earlier than she had to so that I would have a chance to be
Chief Judge. I could see from the problems she bad bad and I heard this from other people, it’s
not easy being an ex-chief judge on a court. It’s like being an ex-dean. I used to bear that
complaint from some of the ex-deans I knew that stayed on their faculty. One day you’re running
the whole operation and all of a sudden the next day you’re not running it and somebody else is
and probably isn’t doing it the same way you were; and the best thing you can do is keep your
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mouth shut and not offer advice, and that’s hard sometimes. I must say that Pat Wald, throughout
my Chief Judgeship, was a.remarkably supportive colleague. She always stood with me even if
she had to … she probably ended up with a sore tongue on many occasions from biting it. I
decided that I might not be quite that patient and that when I did step down as Chief Judge, I
would take senior status and probably spend as little time as possible sitting with my colleagues,
sitting elsewhere, teaching and so on.
All this had been going through my mind when I got a call from Lloyd Cutler, who as you
may remember, had been pressed into service at the White House and was White House Counsel
after Bernie Nussbaum left. Mr. Nussbaum resigned and left within a week after he resigned. So
Lloyd was pressed to return, and he’d agreed to go back to be White House Counsel,
understanding that he would only stay there, I think there was some ldnd of limitation and he
couldn’t stay longer than 91 days without losing his special government employee status. So he
called me and said, ”Let’s have lunch.” We had lunch and he said, “What are you going to do
when,” Lloyd and I had been friends for a long time and he knew I was getting near the age
where I’d have to step down as Chief Judge, so he said, “What are you going to do when you step
do\l/11?” I told him what I was planning on. He said, “Well, how would you feel about stepping
down early?” I said, ”To do what?” He said, ‘Take my place at the White House.” I never
thought about it. I never dreamed that there was going to be any other job at the end ofmy
judgeship. The more I thought about it, the more it seemed like an intriguing idea I went home
and talked to Zoe about it; she thought it would be fun if it was what I wanted to do. So, I did it.
The problem was we were trying to keep it secret until I moved over to the White House, and it
leaked out earlier than we’d intended. It was announced earlier that I was planning. I’d planned
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that it wouldn’t be announced until Labor Day or thereabouts, and then I could step down. It
leaked out earlier than that and so we had to have some kind of public ceremony in August I
stepped down earlier than I had planned to by a few we eks. It wasn’t much of a to-do, but it was
just discombobulating. I didn’t get all my house in order before I left, I’m afraid.
When I went there, I found that it was as exciting and enjoyable as I thought it would be.
I liked the President. I liked working with rum He appreciated my skills and talents. I liked the
people I was working with, the White House Counsel staff. It was and is a superb group of
lawyers. It is probably one of those three or four lawyer jobs that are really – a lawyer couldn’t
ask for any better job. I had a great variety during the 14 months that I was there. Paula Jones
was kind of on the back burner. Monica Lewinsky had not yet erupted. I was able to spend a lot
of my time on judicial selection and counseling the President on legislation. Those were all
things that I had hoped to do. I was spending a little more time answering congressional
subpoenas than I would have wished, various records and so on; but on the other hand, it was the
first time I had ever seen the executive privilege question close up and it is fascinating to see how
this doctrine which goes all the way back to who knows when, certainly the beginning of our
Republic if not before, has so many different facets to it. All the time that I was there we never
once really exercised the executive privilege. We mumbled about it every once in awhile, but the
political consequences of exercising it were always so great that even though there were
documents that we would have preferred to protect, that people wished wouldn’t get called before
Congress, the political consequences were such that we just turned over everything. I remember
one crisis with the pes o, for example, where we literally sent over trucks of documents to the
Congress because they were investigating the circumstances under which Secretary Rubin had
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intervened in protecting the peso. Three documents that we held out were telephone
conversations of the President and President Zedillo. Speaker Gingrich complained that we
were holding out three documents. The President was very outraged that we were holding back
anythmg. When I told him what the three documents were he said, “Well, all we talked about
was golf and the weather, turn those over too,” and I finally had to rerrrind him that it wouldn’t
look good if the New York Times bad published conversations that he had in private with
President Zedillo.
So it was a fascinating 14 months, and I loved it. I have no regrets about having gone
there. The one regret I have is that I was 69 years old when I went over there. I was the oldest
person in the White House, with the exception of Secretary Bentsen. I tlunk I was close to the
oldest person in the Administration as far as that point is concerned. Here was a President, 20
years plus younger than I am, and it showed. I’d come in at 6:30 in the mornm.g and I’d leave at
8:30 or 9:00 at night. I was the first one out of the White House. They were still scheduling
meetings after I left. The President has an incredible work schedule; he gets by with very, very
little sleep. I sort of remembered when I was 20 years younger I could do some of that, too. The
one example I still remember is he had come back from a foreign trip, and he has these allergies
so his eyes puffed up. He looked as tired as I felt, and we had a 7:00 p.m meeting. We had this
meeting and it was the usual desultory White House meeting. We didn’t come to any firm
decisions, but it went on for a couple hours. I staggered out of there at 9:00 p.m and went home
and fell asleep with my clothes on without eating dinner. The next morning I saw one of the
deputies who said, “Hey, I saw the boss last night, he made a hell of a good speech.” I said,
‘Where did he make this speech?” Well, incredibly, he’d gone back to the residence, had a 15-
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minute nap and got up, was refreshed and went out and charged up the audience. When I was in
my 40s, I could do that. The rubber band doesn’t snap back that quickly when you’re in your late
60s. So after 14 months, I just was physically exhausted and I decided to leave and nobody
believed that was the reason that I was leaving. They were all convinced that I had something,
something had come up and it was something I was embarrassed about and I had to leave. I was
just flat~out exhausted. Turned out, after I left I found out I had walking pnewnonia and it took
me about six months to get over it.
Mr. Pollak: You did?
Judge Mikva: Yes. But, I left for the same stated reasons, I was just too tired to keep
working.
Mr. Pollak: I think there’s a significance about a few questions that I’ll ask or about the
comments you make and, of course, there’s a significance for the whole oral history because you
are quite unusual I don’t know as a matter of historical fact, but you’ve been a state legislator, a
federal legislator, you’ve been a federal appellate judge and you’ve been Counsel to the President.
Legislative, judicial, executive experience as well as, of course, a lot of private experience and
professorial experience. So I don’t know how many others in the history of the Republic have
had all three. I suppose there’s a few.
Judge Mikva: There are and I love to look back on some of the people that I claim as
examples and predecessors. John Marshall was one.
Mr. Pollak: An estimable person.
Judge Mikva: But, there were others, Jim Buckley, who was on my court with me, was a
United States Senator, was an ambassador, and a judge. You’re right, there are not too many.
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Mr. Pollak: You should put anything on this record that you want. One of the questions
that I want to ask you is what this experience at the center of Executive power made you think
about the role of judges and then the next question that I want to pose is what did your
experience that touched the selection of judges and the identification of people to be judges and
the process of finding people to be judges in nominating them? What did your experience there
tell you about that part of the judicial system. that is, finding people to be the judges?
Judge Mikva: First of all let me say that the only way our system has worked as
effectively as it has is because we stumbled into this independent judiciary. You can’t have the
kind of constitutional system that we have without an independent judiciary, it just can’t work.
Too many times in our own history it’s been the judges that have kept the other two branches
from trumping the constit utional norms and expectations that we want to live up to. Watergate is
a classic example, but the times the court strikes down the excesses of Congress are other
examples. Other countries have tried to emulate the constitutional system similar to ours without
an independent judiciary and it comes a cropper. Many South American countries have great
constitutions, but they were military dictatorships, because the judges were not independent and
nobody could trump the executive and wouldn’t stop the executive from exceeding the powers
that the constitution granted him After all, the executive does have the Army and the Navy and
unless the court has some kind of tradition of independence, that black robe and high bench aren’t
really good defense against the military, as we found out in other countries. I guess I didn’t
appreciate it as much when I was in Congress because I felt that most of the time, because I was
there, Congress could restrain and constrain itself. Most of the time it does. Most of the statutes
that Congress passes are constitutional and are within the limits, but there are times it does
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exceed those limits; and again when I came on the court and realized it isn’t just a flat out conflict
with the Constitution, like flag burning, but frequently it’s nibbling at the edges of the
Constitution that Congress does and it is up to the courts to check that nibbling. What a
remarkable institution the judiciary is. Those views were confirmed when I went over to the
Executive Branch because again, here is this institution of unelected people who aren’t supposed
to, and most of the time don’t, affumatively make policy, once in awhile they do, but in a much
more passive role. I find it fascinating that the Supreme Court personnel, for instance, are known
by almost nobody. Justice Thomas is known because of the contretemps be had when he was
confirmed. But, other than that, people don’t know who is on our Supreme Court. They aren’t
popular figures in any respect. That’s one of its strengths and that is why the Justices can have
this influence and they can have this deterrent effect on the other two branches and the political
branches simply by being the branch they are. The reputation for independence. It is still a
source of amazement to every foreign country I go to. I try to explalll to them that a lowly trial
court judge was really responsible for checking President Nixon in his excesses during
Watergate, a working judge for a number of years.
Mr. Pollak That was Judge Sirica
Judge M:ikva: Judge Sirica But, when the occasion arose where be was obliged to do
these extraordinary things, he rose to the occasion as judges have before and did what was
necessary. But foreigners can’t understand. “How could a trial judge exercise that kind of
power?” The fact of the matter is that under our system a trial judge can tell Congress, ”You
can’t do this,” and tell the President, ”You can’t do this.” It is exactly within his jurisdiction. The
order is valid and binding. That led me to the most interesting and cherished part of my
-384-
experience at the White House, judicial selection. I came away impressed after seeing it close
up, from that point of watching how the President picks the individual judges. It is an incredibly
successful process. It doesn’t always bring up the very best people to the bench. Learned Hand
never made it to the Supreme Court. A lot of good people never get nominated at all. But the
process works to keep bad appointees out, to keep people who can’t or won’t exercise that
independence of judgment. I think it was President Eisenhower said that – no – some other
President said that – picking Supreme Court justices was the worst part of the job of being
President because you appoint somebody and he or she is just a loose cannon once they get up
there. It was Eisenhower who said that the two worst mistakes he ever made were appointing
Justice Brennan and Chief Justice Warren. But that’s part of the role of the selection process as it
works, because judges are selected who really aren’t under the thumb of the President. Even
during times when perhaps the Administration poses too many litmus tests, as I think they were
doing during the Reagan Administration, even so, most of the judges who’ve come through the
process realize that once they’re on the bench they are supposed to exercise independent
judgment and they do it. So I came away from my exposure at the White House really awed at
how our judicial selection works and how absolutely essential it is. It’s .the balance we have
without which the rest of the system wouldn’t work at all.
Mr. Pollak: Did you observe a lot of pulling and hauling before a name would be
selected? How do you describe it?
Judge Mikva: When a lawyer first thinks about this kind of pulling and hauling and
lobbying the President and bombarding the White House Counsel’s office with letters and phone
calls, there’s always a shock. Judges are supposed to be above that political kind of stuff. These
-385-
are appointments for life. They shouldn’t be involved in the political process. I think I realized
this from my own appointment, which was very much a piece of the political process. You may
recall, I encountered more than a little bit of trouble getting con.finned. It is absolutely necessary
and proper for judicial selection to be perceived as a part of the political process. It is, because it
should be the last chance that process has to affect the selectio n of the judge or what that judge is
going to do after he or she gets on the bench Of course, a President should be concerned about
who he puts on the Supreme Court. Of course, a Senator should be concerned about what kind of
recommendations he makes to the President for a nomination to the District Court. In tum, all of
these interest groups wit.run our society, the bar associations and the special pleaders and the
minority bar associations, this is their last shot at it. Once Steve Pollak becomes a federal judge,
they can’t come in and lobby him and say, “Now, you know, we really would like you to look out
for the Hispanics a little better. We really would like you to look out for the Native Americans a
little better.” Their last shot is at who they get on the bench, so there’s a lot of pulling involved.
Hit sometimes looks like it will end up either in total stalemate, no one will get appointed to
anything because everyone is pulling and hauling in different directions, or there will be some
kind of, what the conservatives call rent seeking, which will determine who the judge is going to
be. If it sometimes looks as if the President is going to use the appointment process solely to pay
off political debts or the Senators are going to use it solely to pay off their supporters, that isn’t
what happens. There is some of that; every once in awhile the President will propose somebody
who has been very good at fund.raising for his party. Every once in awhile a Senator will propose
somebody who has been very helpful in that Senator’s most recent election. But 99% of the time,
names that are generated come up through some kind of merits proceeding. So the pulling and
-386-
hauling is necessary and it doesn’t keep the process from working.
Mr. Pollak: What’s. the single difference between service as the President’s Counsel and
service as a Judge?
Judge Mikva: Well, service as a Judge, and especially by the time I was Chief Judge and
had been on the bench for all those years, I really had to answer to my conscience. I wanted to
make my decision more than just my own private views. I had to try to make sure I
communicated well enough to get at least one other judge with me and enough judges to keep the
case from being en banced the other way. I wasn’t always successful, as you know. Basically it
was a very small group of people that were part of the decisional process for me. What was it
that I thought ought to be done? What was the legitimate basis for getting to that decision and to
make sure that I was comfortable, the clerks were comfortable and that I wasn’t embarrassing
myself by what I was saying and I had at least one colleague to go with me.
Getting a decision through the White House is altogether different. I mean it’s like
throwing a balloon up in a wind tunnel with 7 or 8 different wind machines blowing on it. It just
floats this way, that way, this way, that way and all of sudden it’s off in that comer and all of
sudden it comes back in this corner and it’s fascinating to see how the process comes to closure.
When I was in the Legislative Branch, particularly, I used to complain at the inability of the
Executive Branch to make a decision. “Right or wrong, make a decision. Do it.” Even as a
judge I would fault the Executive Branch for being so dilatory in the way they performed
decisionmak.ing. When I got over there, I realized it’s amazing that any decisions ever come out.
Because by the time something would come up to me, where we were prepared to put in a
Presidential memo on some issue, whether it was a judicial appointment or something that the
-387-
CIA was doing, or a piece of legislation, it had already gone through maybe hundreds of these
buffetings that I was talking about and then we finally had agreed that this is the decision memo
that we want to send in to the President and say this is the decision we recommend, yes/no. That
decision memo would sometimes sit there and sit there. Frequently, with judicial appointments,
for instance, we were recommending somebody about whom there was a controversy, and it got
to the point where some of them where there were one, two, three, four memos that bad become
stuck. I sometimes ended up following them up in person. Nancy Hemreich, who was the
President’s secretary, would see me walking down the ball, and she’d know that there was some
decision that [ was particularly concerned about. Before I even said anything she would say “He
hasn’t decided yet.” You’d wait for that left-handed cbeckmark-knowing the way the process
works – that until that decision memo comes back with the yes or the no on it, you don’t have the
authority to do anything except send in another decision memo. I don’t know how else you can
lead the nation of 260 million prima donnas who pride themselves on their .individualism and
their freedom and liberty except very carefully and not too far and not too fast.
Mr. Pollak: Well, l think that’s all the questions l have.
Judge Mikva; Well, that’s good because I was hoping that the supply of answers would at
least keep up with the questions.
Mr. Pollak: Well, the White House service was, I’m sure, exhausting but was a great
additional track.
Judge Mikva: [ wouldn’t have missed it for the world. The only regret I have, and it’s a
very minor regret because I love my lifestyle – I spent from 1956 really, almost 40 years in public
positions of one kind or another, and I miss the support system that that entails. Not just the staff
-388-
people to help, and I had some incredibly bright, talented people doing my research, helping me
with speeches, helping me .with decisions, from law clerks to the congressional staff to the White
House staff, White House Counsel staff, but also in the support system in tenns of other people
you can call on because you are dealing with public decisions.
Mr. Pollak: They take your calls and they want to respond.
Judge Mikva: They want to respond. They want to be a part of it. Now, I’m working on
my course materials for next fall and trunking about how I can stimulate my students to think
about the legislative process. I’m lucky if I can get one of my colleagues on the faculty, at least,
to listen to me for 10 minutes. Usually, they look at their watch and say, “Well, I have to go.” I
have been spoiled. I hadn’t realized how much.
Mr. Pollak: Was it a difficult decompression to leave the public life?
Judge Mik.va: First of all, it wasn’t because I was so physically exhausted. It really was
just sort of a relief to get out of that kind of pressure pot. Zoe and I worried about going back to
Chicago, whether we would be bored or lonely. I must say, partly because Chicago is such an
incredibly great city to live in, and partly because this has been a particularly torturous time for
the government, I’d rather be anywhere but Washlngton. So the decompression wasn’t as bad as I
thought it would be. In decompression, you have to think, “Gee I wish I were there doing those
things,” and I didn’t wish I were Chuck Ruff, I didn’t wish that for a minute. He still teases me;
we had lunch just before I left – I’ve known him for a long time and just before he went to the
White House we had lunch and I said, ‘The good news, Oiuck, is that I think that we got most of
that Whitewater mess behlnd us, Paula Jones is at rest, Whitewater, there really isn’t anything
there, and you can spend all your time on the judicial appointments and legislation.” He reminds
-389-
me of that conversation.
Mr. Pollak: You were a great predictor.
Judge Mikva: Boy, did I rnispredict.
Mr. Pollak Well, well ..
Judge Mikva: 1bis is enjoyable.
Mr. Pollak: Well, that’s the end of the ninth interview of Judge Mikva. We completed
the interview at 12:55 p.m on the 19th of May.
-390-
INDEX
Note: AJM denotes Abner. J. MIKV A
Abscam scandal, 135
Abzug, Rep. Bella, 134, 168, 307-308
Adhesion, contracts of, 256, 330
Adler, Howard (AJM law school classmate), 60
Administrative Office of the U.S. Courts, 272
Affirmative action, 259, 288
see also African-Americans; Minorities; Women
African-American (s), 122-123, 129-130
AJM clerks, 289
House of Representatives, U.S., 137-138
Law schools, 288
see also Blacks; Minorities
Alabama, 31, 77
Albert, Carl (Speaker-House of Rep.), 149-150, 154
Alternative Dispute Resolution (ADR), 292-293, 315
American Bar Association (ABA), 162, 299
American Civil Liberties Union (ACLU), 50, 54
American Express Co., 256, 328-331, 333
American Federation of Labor (AFL), 167
Americans for Democratic Action (ADA), 41
American Veterans Committee, 41
Anti-Semitism, 8-9
Areen, Judy (Dean-Georgetown University Law Center), 117
Aristotle (Greek philosopher), 38-39, 47
Arizona, 111
State legislature, 72
Arkansas, 74
Arlington, Virginia, 126
Anned forces, integration of, 32
Army, U.S, 16, 28, 41, 46-47, 77,383
Army/Navy Country Club (Virginia), 69
Army Air Corps, 22
Asian-American (s), 288
Law clerks, 664
see also Minorities
Auschwitz (Nazi concentration camp), 27
Avner (King David’s general), 9
AZA (Jewish organization), 25
Al
B-24 (Liberator bomber), 29
B’nai B’rith (Jewish organization), 25
Badger Boy’s State (debating society), 39
Baer, Judge Harold, 316-318, 323
Bar associations, 386
see also Individual locations
Minority, 386
see also Individual minorities
Bar examination (Illinois), 61
Bar mitzvah (Jewish celebration), 6, 7
Barnes, Rep. Mike, 157
Bany, Mayor Marion (District of Columbia), 136
Bazelon, Judge David L., 190, 194, 203, 205-208, 212,
264-265,267,291,295,346,352,354,358
relationship with AJM, 169-171, 185, 191, 264-265
Belgium, 226
Beloit College (Illinois), 127
Bentsen, Lloyd (Secretary-Treasury Department), 381
Bernstein, Robert (Justice Department, U.S.), 321
Bethesda Naval Hospital (Maryland), 48
Biden, Sen. Joseph, 178
Bill of attainder, 180
Biloxi, Mississippi, 31
Black (s), 20, 123, 126, 139, 141, 142
Fraternities, 34
Law clerks, 64
Law school, 44
Treatment of in military, 30-32
see also African-Americans; Minorities
Black, Justice Hugo, 66, 68, 71, 75, 77-78, 80, 82, 82, 104, 264
Black:rnun, Justice Harry, 72
Black Muslim (s), 130
Blair, William McCormick (Newton Minow law partner), 119
Blum, Walter (law school professor), 44, 48, 320
Bork, Judge Robert (“Bob”), 44, 51, 59,205,206,260,328,333
Brennan, Justice William!., Jr., 72, 80, 140, 141-142, 163,220,338,385
Breyer, Justice Stephen (“Steve”), 266,322,357
Brown, Rep. George, 133
Broyles, State Sen. Paul (Illinois), 49, 50
Brussel, Judge Abraham, 89
Buckley, Ann (wife-Judge James Buckley), 306
Buckley, Judge James T., 73,202,207, 306,322,341,382
Burton, Justice Harold, 71, 78
Burton, Rep. Philip (“Phil”), 9, 132, 133-134, 149, 153,165,205,307
Bush, President George H. W., 142
Busing, 10-11
Byrd, Sen. Robert, 179-180
Cable, William (“Bill”) (legislative Iiason), 179
California, 5, 9, 14, 42, 54, 133, 136, 165
Capital Hill, 158, 162, 185,186,328
Capital punishment, 96
Cardozo, Justice Benjamin, 79,267
Carter, PresidentJinnny, 129,155,171,174,181,182,347,348
AJM relationship with, 172-173
Carter, Roslyn (First Lady), 156
Cases
Drug possession, 269
Multidistrict, 327-328
Multistate, 327
Celler, Rep. Emanuel (”Manny”), 252
Central High School (Arkansas), 262
Central Intelligence Agency (CIA), 388
Chamber of Commerce, 167
Chayes, Abraham (“Abe”) (law clerk-Justice Frankfurter), 63
Chevron Corp., 359,360,361
Chicago, Illinois, 16, 30, 34, 37, 43, 55, 61, 64, 95,
99-100, 116, 119, 123, 126, 145, 157, 165,169,258,
283,294,298,301,308,316,389
ATM views on judicial patronage, 97 -98
Courts, corruption in, 99-100
District Court hench, 298
Ethnic communities, 122
see also Individual minorities
Lawyering community, 97
Movie censorship, 104
North Shore, 148
North side, 115
South Shore, 165
South side, 43, 54, 60, 92, 110, 121. 139, 164, 165
U.S. District Court, 266
West side, 99, 114, 137
Chlcago Bar Association, 96, l18, 191
Chicago Municipal Court, 87
Chicago Seven conspiracy trial, 99
Chicago Sun Times, 5, 308
A3
Chicago Tribune, 52, 85, 308
Church, Rep. Marguerite Stitt, 137
Church, Sen. Frank, 179
Circuit Executive, 185, 270, 290
Civil rights, 133, 136, 142, 156, 360
AJM support of, 123
Violence, 27
Civil War, US., 73
Clark, Justice Tom, 70, 71, 78, 80
Clark, Ramsey (A™ law school classmate), 60
Claybrook, Joan (consumer advocate), 309
Clinton, President William J., 13, 69,297, 317-318, 353, 377-382
Cochran, Sen. Thad, 175
Collective bargaining agreements, 362-364
Collins, Cardis (wife-George Collins), 137
Collins, Rep. George, 137
Columbia University Law School, 284, 285
Committee on Judicial Ethics, 281
Communist (s), 5, 50, 51
Concentration camps, 27
Congress, US., 33, 69-75, 77, 157, 163, 204-205, 207,
248-252, 254, 257, 259-264, 268,271,294, 315
316,319, 343, 348-350, 354, 359-361, 363,365,
367-369,372,380, 383-384
AJM service in, 9, 48, 51-52, 60, 109, 116-117, 119, 125, 128,
139, 141, 149-156, 158-163, 165-166, 169-172, 175,
179-181, 185, 188, 192-193, 196-198, 204-205, 213,
217,244,276-279,295,303-305, 307-309,361,389
see also Mikva, Abner J.-Public Service, House of Representatives, U.S.
Congress of Industrial Organizations (CIO), 24, 54, 167
Connor, Eugene (“Bull”)(Alabama Commissioner of Public Safety), 31
Constitution, U.S., 57-58, 59-60, 128, 161, 169,193,254,316,384
Article III, 248, 249
Bill of Rights, 48, 57
Eighth Amendment, 75, 376
Emoluments Clause, 176, 180
Fifth Amendment, 375, 375
First Amendment, 26, 57, 87, l04, 116,186,264,319,320,323,374, 375-377
Fourth Amendment, 75,187,375,376
Jury trial provision, 339,340
Sixth Amendment, 343
Constitutional Convention, U.S. (1820), 58
Cook County, Illinois, 89, 112
A4
Court of International Trade, 270
Court T.V., 279-280
Covington & Burling (District of Columbia law firm), 318
Crane, Rep. Phil, 138, 139, 176
Criminal Code-Title 18, 131,153
Crosskey, William W. (law school professor), 44, 57
Culver, Rep. John, 174
Cutler, L loyd (District of Columbia attorney), 355, 379
Czarist Army (Russia), 1
D’Alembert rule, 358
D’Ancona & Pflaum (Chicago law firm), 88, 147
Daley,MayorRicbardJ. (Chicago), IOI, 102, 107-108, 113-114, 138,141,150
Davis, Elmer (radio commentator), 53
Dawson, Rep. John, 137
DeConcini, Sen. Dennis, 271
D.C. Superior Court, 290
DeLay, Rep. Thomas (“Tom”), 316
Democratic Caucus, 149, 153
Democratic National Committee, 323
Democratic National Convention (1968), 27, 109-110, 124, 150
Democratic National Convention (1996), 110
Democratic Study Group, 132-134, 307
Democrat Party, 98
Depression, U.S., 24
Derwinski, Rep. Edward P., 138
Des Plaines, Illinois, 139, 146
Detroit, Michigan, 64
Devoe, Carl (Chicago attorney), 98
District of Columbia, 21, 60, 61, 64, 86,103,110,111,116,120,122,125,136,
140,159,169, 173,218-220,246,256,294,333,335
Bar, 171,304
Dixon, Alan (Illinois politician), 112
Dole, Elizabeth (“Liddy”) (Secretary-Transportation Department), 355
Dole, Sen. Robert (“Bob”), 174, 175, 178-179
Douglas, Justice WilliarnO., 66, 68, 75, 77-78, 82,201
hnpeachment, attempted, 128, 129
Douglas, Sen. Paul, 8 5, 130, 139, 160
Doyle, James (“Jim”) (Wisconsin attorney), 41
Drinan, Rep. Father Robert T., 153
Dupage County, Illinois, 141
Eckhart, Rep. Robert (“Bob”), 133
A5
Edgar, James (“Jim”) (Dlinois politician), 102
Education Department, U.S., 182
Edwards, Judge HarryT., .190, 191,202,207,289,302, 339,
340,346,352,362,369,374,375,377
Edwards, Rep. Don, 133,165,307,308
Egypt, 15
Eisenhower, President Dwight D., 65, 186,262, 263, 385
Ellis Island (New York), 2
Environmental issues, 156
Environmental Protection Agency (EPA), 361
Equal Rights Amendent (U.S. Constitution), 169
Erlenborn, Rep. Joho, 141
Ermoyan, Genie (AJM executive assistant), 151-152
Europe, 24, 29
Evanston, Dlinois, 139, 140, 152
Exclusionary rules, 312,313,315
Fairlax, Virginia, 69
Fairlax County, Virginia, 110, 126, 127
School system, 126
Federal Bureau of Investigation (FBI), 135, 173, 298
Federal Communications Commission (FCC), 119, 138,248
Federal Election Commission, 323
Federal Energy Regulatory Commission (FERC), 248
Federal judiciary, political influence on, 316-319
Federal judiciary, public’s .influence on, 316-319
Federal Trade ColDIIlission (FTC), 248
Federalist Society, 83-84
Feller, David (“Dave”) (District of Columbia attorney), 103, 106
Ferebee, Richard Leander (ton p!aintifl), 361
52-20 Club (unemployment compensation), 33
Fisher, Adrian Oaw school professor), 117
Flag burning, 161
Flanoery, Judge Thomas A, 265-266
Fletcher, Judge Betty, 181
Florida, 285
Foley, Rep. Thomas S., 154
Fond du Lac, Wisconsin, 16
Ford, President Gerald, 78, 154, 155, 160, 161,348,354
AJM relationship with, 129
Representative, 128, 129
Fon Shetidan, Dlinois, 28, 29, 30
Forward (Forvetx) (Jewish newspaper), 5
A6
Fox River, Wisconsin, 16
Frank, Rep. Barney, 168
Frankfurter, Justice Felix, 63, 65, 68, 71, 75, 77, 79, 103, 104, 143, 261
Fraser, Rep. Donald MacKay, 132, 133, 149, 165,307
Freedom (Freiheit) (Jewish newspaper), 5
Friendly, Judge Alfred, 267
Galveston, Texas, 2
Garfinkel, Mr. (religous teacher), 7
Gay (s), see Homosexuality
Gender-Bias Study, 300, 301-303
Gender-Bias Task Force, 300, 303
see also Women
Gender
Discrimination, 168
Grouping, 169
see also Women
Georgetown Day School, 127
Georgetown University Law School, 117, 153, 160, 186
Georgia, 155
German(s), 6, 26
Germany, 27
Gerry, Governor Elbridge, 146
Gerrymandering, 88
Illinois districts, 137-146
Gesell, Judge Gerhard (“Gerry”), 245, 310-311, 318,319,338,362,364
GI Bill of Rights, 33, 34, 35, 55, 56
Gingrich, Newt (Speaker-House of Rep.), 381
Ginsburg, Judge Douglas H., 334, 352
Ginsburg, Judge Ruth Bader, 190, 202,254,341
Gloss, “Abner”, 357
Congressional, 349, 350, 351, 356, 357
Judicial, 349
Legislative, 349
Goeden, Edna (AJM high school teacher), 12
Golberg, Feller & Bredhoff (District of Columbia Jaw firm), I 16
Goldberg, Devoe, Shadur, & Mikva (Chicago law firm), 89, 91, 115, 116, 147
Goldberg, Justice Arthur
AJM mentor, 98
Goldberg, Devoe and Brussel (law firm), 86-87, 106, 191,322,357
Secretary-Labor Department, U.S., 119
Gray, Ray (law clerk-Justice Minton), 63, 68
Green,JudgeJune, 311-312
A7
Greene, Judge Harold, 245, 328
Gregory, Charles (law school professor), 44
Greylord scandal (Illinois),. 99
Griffiths, Rep. Martha, I 68
Griswold, Dean Erwin
Judicial Nominating Commission member, 171
District of Colwnbia attorney, 106
Gun control, 156, 162, 178
Habeas corpus, doctrine of, 187, 271
Hammontree, Paul (plantifl), 362, 363
Hand, Judge Learned, 267, 385
Harmless error doctrine, 247
Hart, Peter (pollster), 147-148
Hart, Sen. Philip (“Phil”), 161-162
Harvard Law Review, 52
Harvard University Law School, 45-46, 62, 284, 285, 288
Hatch, Sen. Orrin, 175,297
Hawaii, 64, 131
Haynesworth, Chief Judge Clement T., 243-244
Hebrew (language), 7
Hegei Georg Wilhehn Friedrich (German philosopher), 38
Hemreich, Nancy (Secretary-President Clinton), 388
Higginbotham, Judge Leon, 286
Hill, Thomas (“Tom”) (Asst. U.S. Attorney), 312
Hispanic (s), 141,289,386
Hoan, Dan Mayor (Milwaukee, Wisconsin), 6
Hoffman, Judge Julius, 99
Hogan, Judge Thomas F. (“Tom”), 245, 327
Holder, Bric (U.S. Attorney), 220, 269
Hohnes, Justice Oliver W., 79, 200, 206, 210, 265
Homosexual (s), rights of, 259, 320, 323, 369-374
Homosexualilty:
AJM views on, 371-372
“Don’t ask, don’t tell” rule, 370, 371
Hoover, President Herbert, 157
Horton, Willy ( criminal), 317
House of Representatives, Illinois, 101, 112, 115, 141
House of Representatives, U.S., 71, 129, 133, 136, 138,142, 154,
159, 160, 161, 174,176,204
AJM service in, 9, 45, 48, 51, 52, 60, 111, 117, 119, 136, 147-169, 182-183, 213,382
JudiciaryConnnittee, 128,131,146,151,158,278
Committee on Steering and Policy, 149
A8
Judiciary Committee, 128, 131, 153, 157, 244,252,278
“The Group”, 132-134, 165,306,308
WaysandMeansCommitttee, 149,150, 152-153, 155,168,172
Women in, 137-138, 168-169
House Un-American Activities Committee (HUAC), 120-121,131-132
Humphrey, Vice-President Hubert, 109, 110, 125, 130
Hungate, Judge William (“Bill”), 73
Hurley, State Rep. Jean (Illinois), 114
Hutchins, Robert Maynard (professor-University of Chicago), 38, 44, 45, 50-51
Hyde, Rep. Henry, 176
Hyde Park, Illinois, 121, 164, 165
Hyde Park High School (Illinois), 129
Idaho, 179, 180
Illinois, 28, 85, 90, 91, 94, 97, ll5, 127, 130, 132, 140,
149, 170, 183, 191,261,285,298
Bar Association, 118
District reapportionment of, 137, 146
Gerrymandering, political, 137-146
Northern, 138
State Constitution, 101
State legislature
AJM Congressman (1956-1966), 88, 93, 101-102,ll3-l 16, ll9
House Judiciary Committee, 101, 113
House of Representatives, 102, 115
“Best Side Bloc”, 114
“West Side Bloc”, 114
Supreme Court, 118
Impeachment, of federal judges, 317
Independent Counsel, 204
India, 15
Indiana, 128, 244, 294
Indianapolis, Indiana, 63
Inland Steel Corp., 92
Interior Department, U.S., 35
Internal Revenue Service (IRS), 319, 320, 321, 323
Jackson, Judge Thomas Penfield, 339,340, 341-343
Jackson, Justice Robert, 63, 69, 70, 71, 75, 77, 79, 82
Jacobs, Rep. Andrew (“Andy”), 128, 149, 163, 244
Japan (ese), 64
Japanese•American community, 131
Jefferson. President Thomas, 58
A9
Jenkins, Robert (attorney), 320-321
Jenner & Block (Illinois law firm), 115
Jewish activists, 5
Jewish culture, 7
Jewish newspapers, 5-6
Jimmy’s (Chicago watering hole), 60
John Marshall Law School, 151
Johnson, President Lyndon B., 109, 121, 123, 124, 125, 186, 347,348,354
John the Greek (pool hall owner), 29
Joint Chiefs of Staff, U.S., 32
Jones, Paula (harassment complainant), 380, 389
Jordon, Hamilton (Chief of Staff-President Carter), 155
Judges
Administrative law, 248
Article ill, 248, 249
Common law, 73
Salary increases, 158, 176
Judicial activism, 249-253, 341-343
Judicial Conferences, Circuit, 271,300
Judicial Conferences, see U.S. Judicial Conference
Judicial Council, 269,302
Judicial nominating procedure, 171-183, 191
Judicialrestraint, 118
Jury nullification, 220
Jury system, 220
Justice Department, U.S., 63, 130, 173, 180, 181,183,298,299,321
Civil Division, 293
U.S. Attorney, 269, 312
Kalven, Harry (law school professor), 44, 45, 52, 57, 58
Kant, Tmmanuel (German philosopher), 38
Kastenrneyer, Rep. Robert (“Bob”), 133, 165,166,205, 307, 308
Katz, Wilbur (Dean-University of Chicago Law School), 45, 57
Keesler Field (Missisippi), 31
Kennedy, President John F., 119, 120, 163-164
Kennedy, Robert F. Jr. (Attorney General), 163-164
Kennedy, Sen. Edward (”Ted”), 165-166, 174, 177, 178, 180, 182-183, 184,266
Kennedy Administration, 119
Kennedy Center (District of Columbia), 170
Kentucky, 71
Kenwood High School (Illinois), 164
King,Rev. Dr. Martin Luther, 123, 163-164
Kissinger, Henry (Secretary of State), 154
AIO
Kiwanis Club (s), 148
Korean War, 70, 77
Krash, Abraham (“Abe”) (AJM law school classmate), 60
Kristallnacht (German anti-Semitic destruction), 25
Kurland, Philip (“Phil”) (law professor), 176-177
Lvov, Ukraine, 1
Labor Department, U.S., 115-116, 119
LaFollette, Governor Phil (Wisconsin), 26
LaFollette, Sen. Robert, Jr., 39-40
Lake Mendota, Wisconsin, 41
Lake Wmnebago, WISconsin, 42, 43
LAMBDA Society, 371
see also Homosexuality
Lamberth, Judge Royce C., 336
Langdell, Christopher Columbus (law professor), 210
Langley High School (Virgirria), 127
Landsleit (land people), 2
Law
Administrative, 351,352
Black letter, 61,210
Civil, 247
Civil procedure, 44
Class action, 277
Connnon, 94
Confession of judgment, 90, 91-93
Constitutional, 44, 57, 58, 60,299, 319
Contract, 45
Corporation, 45
Creditor remedies, 91
Criminal. 193,206,243,247,312,339,341
Doctrinal, 322
Garnishment, 90, 91-93
Labor, 44, 86
No fault, 218
Property, 45
“Secret”, 203
Street, 87
Tax, 48
Tort, 44, 45, 359, 360
Usury, 94-95
Law School Aptitude Tests (LSAT), 37, 127,288
Law systems
All
Common law, 94
Statutory, 94
Lawyers
AJM opinion of, 96-97, 275-277, 299-300
AJM views on, appellate, 104-107
Disciplinary actions ag8.illst, 118
Lega!Aid, 87-88
Lesbianism, see Homosexuality
Leventhal, Judge Harold, 186, 188, 190, 191,354
Levi, Edward (law school professor), 44, 45, 52, 57, 61
Lewinsky, Monica (White House intern), 380
Lewis, John L. (American labor leader), 24
Lexis-Nexis, 282, 283
Lincoln, Nebraska, 29
Linde, Hans (law clerk•Supreme Court), 82
Little Rock, Arkansas, 262
Look, 83
Los Angeles, California, 38, 39, 47, 64
Louisiana, 145
Loyalty oaths, 68-69, 87
Lulu (Len Zubrensky’s girlfriend), 34-34
Lumbard, Judge Edward, 186, 187
Lviv, Ukr8.ille, 1
MacKinnon, Judge George, 73, 204,221,306
Madison, President James, 58
Madison, Wisconsin, 16, 33, 39, 41, 165,294
Mann, State Rep. Robert (“Bob”) (Illinois), 114
Mansfield, Sen. Michael (“Mike”) (Senate Majority Leader), 160, 161
Marco, Jack (AJM staffer), 152
Margolies, Hubert (attorney), 329
Marks, State Rep. Robert (“Bob”) (Illinois), 114
Marovitz, State Sen. Abraham Lincoln (Illinois), 50
Marshall, Chief Justice John, 264, 382
Maryland, 171,172,219,359
Mason.Dixon Line, 31
Massachusetts, 168
Matsunaga, Rep. Spark, 131
Matthews, J.B. (University of Chicago investigator), 50-51, 361
McCarthy (Joseph) era, 68, 130
McCarthy, Sen. Eugene, 40, 133
McCarthy, Sen. Joseph, 40, 48
McClure, Sen. James, 179, 180, 182
A12
McCormack, John (Speaker-House of Rep.), 132
McCormick, Colonel Robert P. (owner-Chicago Tnbune), 85
McCurry, Michael (“Mike”.) (Press Secretary-Wbite House), 317, 318
McCusick, Vincent (law clerk-Justice Frankfurter), 63
McGovern, George (Presidential candidate), 109
McGowan, Judge Carl, 184, 186, 187, 189, 190, 191, 192, 199, 206, 215
Adlai Stevenson aide, 85
McLean, Virginia, 110,111,126,127
McMillan, Rep. John, 136
McMurray, Howard (Wisconsin Democratic candidate), 40
Media, influence on judges, 308-309
Medicare, 159
Meese, Edwin (“Ed”) (Attorney General), 181
Meltzer, Bernie (law school professor), 44
Metcalfe, Rep. Ralph, 137, 138, 140
Metropolitan Life lnsurance Company, 3
Michel Robert (“Bob”) (Minority leader), 154, 176
Michigan, 161, 162
Michigan Dunes, 116, 157, 175,308
Middle Bast, 15
Mik:va. Abner J. – Personal:
Anti-Semitism experienced, 8-9
Aunts, 8
Avram(Hebrew name), 9
Bar mitzvah, 6, 7
Brother-in-law, 14
Career aspirations, 13
Childhood, 3-5, 8, 11, 13-14, 53
Childhood reading habits, 15
Cousins, 8
Daughter(s), 7, 54, 89,110, 116-117, 126,164,178,301,371
Education
college, 22, 24, 28, 32, 33-37, 38
elementary, 9-10, 11-12, 56, 11-12
junior high school, 12, 15
religious, 7
University of Chicago Law School, 36, 37, 39, 42, 43-46, 49-50, 52, 54,
55, 56-60, 258
University of Wisconsin in Milwaukee, 28-29, 35, 36, 39, 56, 60
Washington High School, 9-10, 15, 17-19, 19-21, 22, 24, 25, 32, 39
Washington University (Missouri), 35-36, 37, 40-41
Family, dysfunctional, 13- I 4
Family politics, 5-6
Al3
Family religious life, 6-7
Grandchildren, 116
Grandfather (“Max the Jew”), 5, 6, 7, 8, 16-17, 23
Grandmother, 7, 8, 43
Grandparents, 8
Health, 41
Homosexuality, views on, 371-372
Jewish identity of, 25-26
Judiasm of, 4, 132
Marriage, 37, 42-43, 54
Mikva, Gershon (father), I, 2-4, 6, 7, 14, 22, 24, 25, 26, 27, 42
Mikva, Laurie (daughter, middle), 110, 127-128
Mikva, Mary (daughter, eldest), 48-49, 55, 110-111, 126-127, 164-165, 176-177
Mikva, Rachel (daughter, youngest), I 10
Mikva, Rose (sister), I, 2, 6, 14, 15
Mikva, Zoe (wife), 34-37, 38-39, 41, 42-43, 47, 50, 54, 56, 61, 64, 110,
111, 116, 125, 126, 128,157,257,306,379,389
family of, 35, 37, 41, 43, 55
Military service, 14, 20, 21-22, 24, 27-28, 29-32, 32-33
U.S. Anny, 16, 28-29, 30-32, 41, 46-47
Mother, 1, 4-5, 6, 7, 8, 9, 14, 37, 41, 42
Family of, 3, 8
Parents, 1, 14, 54
Part-time jobs, 22-24
Phi Beta Kappa, 148
Religious observations of, 6-7
Uncle (s), 43
Violence, reaction to, 26-27
Mikva, Abner J. – Professional
American Bar Association, Head-Individual Rights and
RespollSlbilities section, 162
Baze Ion, Judge David L., relationship with, 169-171, 185, 191
Black, Justice Hugo, opinion of, 264
Burger, Chief Justice Warren, relationship with, 158, 265
Carter, President Jinnny, relationship with, 172-173
Chicago Bar Association-Board of Managers, 118
Chicago Bar Association-Disciplinary Committee, 96
Chicago courts, corruption in, 99-100
District Court, sitting on, 218-220
District Courts, role of, views on, 244-245
District judges, performance of, 245
Forum shopping, views on, 325-327, 328
Judges, qualities of, views on, 296-297
A14
Judges, selection of, views on, 383, 385-387
Judicial activism, 249-253, 323-324
Judicial Conferences, importance and function of, 268-273
Judicial congressional testimony, view on, 279
Judicial isolation, view of, 275
Judicial nomination procedure/process, 171-183, 191
Judicial patronage, views on, 97-98
Judicial philosophy, 344
Judicial relationships, 266-267
Judicial restraint, views on, 118
Judicial views, effect oflaw practice on, 95-96
Judiciary, life experiences, 10-11
Jury project-University of Chicago Law School, 87
Law clerks, opinion on hiring, 62
Lawyers, appellate, views on, 104-107
ethics of post-opinion discussion, 277
gender differences, 287
judicial deference, view of, 275-276
opinion of, 96-97
qualities of, views on, 299-300
Leaving public life, 389
Legal research, computer aided. opinion of, 282-283
Legislative history, place of, 249-253, 254
Marshall, Chief Justice John, opinion of, 264
Media, contacts with, 279-280
Mentors
Devoe, Carl, 98
Goldberg, Justice Arthur, 98
Minority lawyers, views on, 287-288
Oral arguments, importance of, 331-32
Oral History Project transcript, use of, 221-222
Private practice, 146, 158, 170,191,268, 275-276, 277-278, 281,294,382
appellate litigation, 102-105, 186
D’Ancona and Pflaum, 88, 147
Goldberg, Devoe, Shadur and Mikva, 87, 89, 91-99, 107, 116, 119
Regrets, 388-390
Rolemodels/mentors, 165-166, 169-171
Role of district bench compared to circuit courts, 246-248
Sentencing Guidelines, views on, 343-345
Summary judgment, views on, 335-337
Teaching, 88, 111, 163, 164,170,378,379,382,389
Georgetown University Law Center, 117, 160
Northwestern University Law School, 117, 146, 177
A15
University of Chicago, 117
Television in cowtrooms, opinion of, 273-274
U.S. Judicial Conference committees, 289
U.S. Supreme Court clerkship, 52, 55, 56, 61-69, 75-84, 88, 148, 158, 195, 198, 199,
201-202,204,207,209,214 ,217,253,259,261,285,289,295,300,327,334,377
U.S. Court of Appeals for the District of Columbia Circuit – Chief Judge
advantage of position, 291-292
disadvantage of position, 292
future judgment of, 295
isolation of, 30
judicial challenges of, 295-296
U.S. Court of Appeals for the District of Columbia Circuit- Judge, 14, 45, 59,
62,74, 80, 112,117,135,183,214,382
academics, contact with, 280-281
administrative agency cases, approach to, 213-214
advic e received, 186-187, 188-189, 191
“Arr Bag Abner”, 354
Alternative Dispute Resolution (ADR), opinion of, 292-293
behavioral rules, 203-205
clerks, functions of, 281-282
clerks, later careers of, 286
clerks, selection of, 283-286
compared with White House Counsel, 387-388
congressional relationships, 306-307
cowt funding, opinion on, 294-295
decision:makine process, 193-195
filing system, 314
footnotes in opinions, views on, 210-211, 321-323, 356-357, 369
friendships, personal, 304-305
judicial administration of, 289-292
judicial approach, changes in. 368-369
judicial innovation of, 255-257
judicial lobbying and persuasion, views on, 216-217
judicial political relationships, 192
judicial process, op.inion of, 220
judicial relationships, 305-306
jurisprudence, representational, 310-377
jwy system, views on, 220
law clerks, role of, views on, 210, 211-212, 389
minority clerks, 288-289
newspapers and periodicals read, 308-309
opinions, cert. proofing, 258-259
opinions, well crafted, views on, 210-211
A16
opinion writing, per curiam, views on, 214-215
overloaded dockets, views on, 215-216
personal jurisprudence, 206-209
purposes of dissents, views on, 217-218
recusal, standards applied, 303, 304
relationship with district judges, 253
reversal of opinions, views on, 257
seminal opinions, views on, 255
staffing procedures, 185-186
Supreme Court Justices, interaction with, 262-263
Thomas, Judge Clarence, opinion of, 243
U.S. Supreme Court, perceptions of, 253-55
U.S. Supreme Court, shift in, 259-262
U.S. Supreme Court/Congressional collision course, 259-262
unpublished opinions, views on, 212-213
work ethic, 195-201
writings of, 281-282
Wald, Judge Patricia, relationship with, 173-174, 177-178, 184-185, 202
Warren, Chief Justice Earl, opinion of, 263-264
Work ethic, 24
Mikva, Abner J. – Public Service
Barry, Mayor Marion, appraisal of, 136
Busing, views on, 10-11
Civil liberties activities, 338
Civil rights, support of, 123, 156
Congressional campaign-Illinois, expenses of, 124-125
Congressman-Illinois State Legislature (1956-1966), 88, 93, 100-102, 107-110,
114-115, 119,266,355,359,382
Chairman-House Judiciary Committee, IOI, 102, 113
effect of, on views as judge, 112
legislation passed, 102
Ford, President Gerald, relationship with, 129
Gerrymandering, views on, 141-146
House of Representatives, U.S., 9, 45, 48, 51, 52, 60, 111, 116, 117, 142, 146,
147-169, 185, 187, 192, 193, 196, 197,198,205,244,248,249,263,268,
276-278,295,303,304,305,307,308,309,311,362,382
collegiality in, 307-308
Committee on Steering and Policy, 149
comparison of membership, 158-160
D.C. Committee, 128, 146
decision not to run for reelection, 156-158
election loss, 139-140, 257-257
Judiciary Committee, 128, 131, 151, 157, 158
Al?
Ways and Means Committee, 149, 150, 152-153, 155, 172
work ethic, 166-168
Political activity, early, 39-40, 49-50
Staffer~George McGovern, 109
States rights, view on, 360
Welfare reform, views on, 3
White House Counsel (1995-1996), 45, 52, 69, 88-89, 158, 345, 377-382, 387-388, 389
White House Counsel (1995-1996), judicial
selectio.n/coofumation, opinions of, 297 -300
Milwaukee, Wisconsin, 1, 2, 7, 15, 16, 56,119,294
Blacks living iD, 20
County, 26
County Outdoor Relief Society, 4
County Poor Farm, 5
German population of, 26
Left wing organizations in, 26
May Day parades, 6
Nazi Bund violence in, 26-27
North side, 9, 20
Public schools, 46
Socialists in, 4, 5
West side, 9, 20
Milwaukee Journal, 22
Milwaukee Sentinel, 32
Ming, William Robert (AJM law school professor), 44
Mink, Congresswoman Patsy Takemoto (AJM law school classmate), 44, 60
Minneapolis, Minnesota, 165, 307
Minnesota, 2
Minorities
Clerkships, 288-289
Ethnic, 26
Lawyers, 287-288
Racial, 262
see also African-Americans; Asian-Americans; Blacks; Individual minorities
MiDow, Newton (“Newt”)(]awyer, FCC Chairman), 19, 64, 69, 85
Family of, 4
Federal Communications Commission, 119
Law clerk-Chief Justice Vinson, 63, 70
Minton, Justice Sherman, 55, 57, 61-71, 75-84, 195,198,201,202
Relationship with AJM, 61-69, 75-84
Miranda rule, 76
Mississippi, 175
Missouri, 73
Al8
Mitchell, Sen. George (Senate Majority Leader), 161
Mohammad Speaks (Black Muslim newspaper), 130
Moldea, Dan (author), 374
Montgomery County, Maryland, 1 IO, 125-126
Moore, Frank (staffer – President Jimmy Carter), 155
Moran, Judge James (“Jim”), 266
Mmphy, Rep. Morgan, 138
Murrow, Edward (“Ed”) (radio connnentator), 53
N. Y. Court of Appeals, 273
NAACP Legal and Educational Defense Fund, Inc., 142
Nader, Ralph(consumer advocate), 309
National Football League, 374
National Highway Transportation Safety Administration (NHTSA), 347, 350
National Labor Relations Board (NLRB), 63, 64,207, 324,
325,326,362,363,364
National League of Cities, 165
National Rille Association (NRA), 74, 174-175, 176, 177, 178, 179, 182
Native Americans, 386
Navy, U.S., 21,369,370,373, 374, 383
Nazis (ism), 25-28
Nelson, Sen. Gaylord, 178
New Deal, 25, 58, 347
New Jersey, 142
New Mexico, 285
New Republic, 52
New York, 2,73, 132,133,134,165,169,316,317,333,343
New York City, New York, 64
New York University School of Law, 127
Nixon, President Richard M., 123-124, 132, 150, 163, 181, 244, 384
Nominating Connnission (judicial), 171-172, 173
North Carolina, 145
Northwestern University Law School, 48, 62, 117, 146, 176-177
Noscitur a sociis, doctrine of, 366-367
Nuremberg War Trials (Germany), 80
Nussbaum, Bernard (“Bernie”) (White House Counsel), 379
O’Conner, Justice Sandra Day, 72, 141, 144-145, 146
O’Hara, Rep. Barrett, IOI, 102, 107-108, 108-109, 119-121
O’Neill, Thomas P. (“Tip”) (Speaker-House of Rep.), 154, 160-161, 180, 183, 196-197
Oberdorfer, Judge Louis, 245
Oconomowoc, Wisconsin, 16
Oklahoma, 74
A19
Old Testament, 9
Onrro, Wisconsin, 7, 8, 16
Oregon, 285
Oshkosh, Wisconsin, 16, 42
Pacific Ocean, 29
Panetta, Leon (White House Chief of Staff), 317
Paris, France, 58
Park Fairfax, Virginia, 64-65
Park Ridge, Illinois, 146
Pearl Harbor Day, 21
Peewaukee, Wisconsin, 1 6
Pennsylvania, 270
Percy, Sen. Charles (“Chuck”), 88, 298
Perhnan, Selig (economics professor), 40-41
Peskin, State Rep. Bernard (Illinois), 114
Phi Sigma Delta (AJM fraternity), 34, 36
Pitofsky, Robert (“Bob”) (law school professor), 117
“Plain meaning” rule, 249, 250
Plato (Greek philosopher), 38, 39, 47
PIII)’boy, 107, 116
Poff, Rep. Richard, 163, 244
Pois, Joseph (“Joe”) (Illinois Director of Finance), 86
Poland, 1
Pollak, Stephen (“Steve”) (District of Columbia attorney), 15, 281, 298, 386
Porter, Rep. John, 140
Posner, Judge Richard A, 255
Progressive Party, 39
Quinn, Jack (White House Counsel), 317
Racist (s)/ Racism, 123
Racketeering Influenced Criminal Organization (RlCO), 252
Randolph, Judge A Raymond, 341
Randolph, Judge Arthur H., 207
Rational review test, 373
Reagan, President Ronald, 142,205, 347, 348,363,354,355,364, 385
Reed, Justice Stanley F., 71, 78, 79, 82, 83
Regulatory agencies, 247-249
see also Individual names
Rehnquist, ChiefJustice William, 10-11, 63, 82, 83,218
Republican Party, 39-40
Ripon, W1Sconsin, 16
A20
Robb, Judge Roger, 190, 310-311, 312,324
Robinson, Judge Aubrey, 245
Robinson, Judge Spottswood, 184, 190, 214-215, 319, 321-322, 323
Rodell, Fred Oaw school professor), 59
Rodino, Rep. Peter, 153
Roosevelt, President Franklin D., 24, 131, 133, 181
Roosevelt, President Theodore, 71, 107
Rosenberg, Bea (attorney-Dept. of Justice, Criminal Div.), 53
Rosenthal, Rep. Ben, 132-133, 165,307,308
Rostenkowski, Rep. Dan (“Rosty”), 112, 149
Rubin, Robert T. (Secretary-Treasury Department, U.S.), 380
Ruff, Charles (“Chuck”) (U.S. Attorney), 312,389
Rules of Civil Procedure, 271
Rules of Evidence, 311
Russia, 1-2, 5
Ryan, Governor George H., 102
Ryan, Rep. William Fitz, 133
Sacco, Nicola and Bartolomeo Vanzetti (criminal defendants), 75
San Francisco, California, 64
San Juan Hill, Puerto Rico, 107
Sarbanes, Rep. Paul, 151, 178
Scalia, Justice Antonin, 11, 194, 195, 205-206, 250,251,260, 314-315
Scariano, Anthony (lliinois politician), 101, 114
Schlitz Brewery (Wisconsin), 23
School prayer, 161
Schroeder, Rep. Patricia (“Pat”), 168
Schwartz, Judge Ulysses S., 56
Secutities and Exchange Commission (SEC), 248
Senate, Illinois, 141
Senate, U.S., 40, 62, 71, 79, 132, 139, 153, 165, 167, 179, 180,244,278,324
Judiciary Committee, 163, 174, 174, 178, 182
Sentelle, Judge David B., 334,335,338,339,340,341,365,366,367
Sentencing Guidelines, 275, 339, 343-345
Sentencing Guidelines Commission, 343, 344
Shadur, Judge Milton (“Milt”) (Chicago attorney and Judge), 52, 87, 89, 266
Sharp, Malcohn Oaw school professor), 57
Shea & Gardner (District of Columbia law fum), 305
Silberman, Judge Laurence H. (“Larry”), 184, 185, 207, 212
Simon, Sen. Paul, 112, 114
Simpson, Sen. Alan, 175
Sirica, Judge John, 3 I 9, 384
Skokie, Illinois, 139
A21
Social Democrat(s), 5
Socialism (ists), 4, 6
Social Security, 25, 159
Socratic Method, 61
South America, 382
South Carolina, 136
Sporkin, Judge Stanley, 218, 219
Springfield, Illinois, 50, 102, 112-113, 116, 148, 151
St. Louis, Missouri, 35, 36, 37, 43
Standing, law of, 181
Stanford University Law School, 45, 62, 284, 286, 288
Starr, Judge Kenneth, 205,206
States rights, 359
Steelworkers Union, 54, 87, 92, 94, 123-124
Steffan, Midshipman Joseph, 369-374
Stephens, Jay (U.S- Attorney), 269
Stevens, Justice John Paul, 147, 266
Stevenson, Governor Adlai, III, 85-86, 101, 119, 139
Senator, 151, 173
Stewart, Justice Potter, 72,350
Stone, Chief Justice Harlan, 322
Strauss, Leo (law school professor), 52
Stu.dent Non-Violent Coordinating Committee (SNCC), 49-50
Suicide, assisted, 260
Surgeon General, U.S., 362
Tahara, Boy King of the Desert by Harold M. Sherman, 15
Tahara in the Land of the Yucatan by Harold M. Sherman, 15
Tahnud Torahs (cheders), 7
Tamm, Judge Edward, 186, 187, 190, 191, 192,244,319, 324
Tatel, Judge David S., 352,353
Teamsters’ Union, 363, 364
Tefft, Sheldon (law school professor), 45, 52
Television, in courtrooms, 273-274
Terry, Judge, John, 312
Texas, 133
The Chicago Daily News, 52
The Daily Cardinal, 34
The Grapes of Wrath by John Steinbeck, 24
The New York Times, 52, 308, 374,375,376,381
The Wall Street Journal, 354
The Washington Post, 308,374, 377
Thomas, Justice Clarence, 243, 384
A22
Thompson, Governor James (“Jim”), 100, 183
Thompson, Rep. Frank (“Tompy”), 134-135
Time, 52
Touhy, State Rep. Jack (Illinois), IOI, 113-114
Treasury Department, U.S, 319,321,363
Trienens, Howard Oaw clerk-Justice Vinson), 63, 69, 70, 82, 85
Truman, Margaret (President Truman’s daughter), 376
Truman, President Harry S., 32, 70, 77, 79, 377
Tydings, Sen. Joseph (“Joe”), 171, 172
U.S. Attorney, office of, 100
U.S. Court of Appeals
First Circuit, 322
Second Circuit, 186
Fourth Circuit, 243
Fifth Circuit, 157
Seventh Circuit, 62, 89, 98, 103, 294, 325
Eighth Circuit, 327
Ninth Circuit, 181,294,300,301, 302
D.C. Circuit, 170-171
Court of Appeals, 10, 14, 56. 59, 62, 74, 80, 83, 88, 103, 106, 112, 115, 117,
135, 144, 169, 172-173, 180,185, 195-196, 198,217,263,265,267,273,276,278,
299,309,312,329,353
administrative agency cases, 213-214, 254
AJM judicial administration of, 289-292
behavioral rules of, 203-205
calendar manipulation, 290-291
collegiality on, 302
docket manipulation, 265
judges, 244-245, 253,255,258,269,274
judicial colleagiality, 192-193, 205-206, 295-296
Judicial Council, 300
judicial political relationships, 192
opinion writing, per cwiam. 215-216
overloaded dockets, 215-216
panel rigging, issue of, 207-208
pro-union reputation, 207
regulatory agencies, 247-249
role of Chief Judge and visiting judges, 209, 312-313
U.S. Supreme Court, relationship to, 253-255
unpublished opinions of, 212-213
District Court
AIM sitting on, 218-220
A23
judges, 244-245, 263, 258, 269
U.S. District Courts, AJM on role of, 244-245
U.S. District Court (s), 56, 88 144, 180-181, 263,273, 279, 294-295
Compared to D.C. Circuit, 246-248
U.S. Judicial Center, 187, 270-271
U.S. Judicial Conference, 266, 270-274, 279,289,300, 327
U.S. Supreme Court, 75, 77, 80, 104, 115, 145, 163, 189,
194,220,247, 255-257,259-262, 265, 269-270,273,
284,299,315-316,319,322,324,327, 330,339,346,
348-352, 354-355, 357-358, 365,367,373,376, 384-386
AJM Clerkship, 52, 55, 56, 61-69, 75-84, 148, 158, 198,
199,201-202,207,217,259,261,285
Acrimony on, 82-83
Black, Justice Hugo, 66, 68, 71, 75, 77-78, 80, 82, 104,264
Blackmun, Justice Harry, 72
Brennan, Justice WilliarnJ., Jr., 72, 80, 140, 141-142, 163,220,338,385
Breyer, Justice Stephen (“Steve”), 266, 322, 357
Berger, Chief Justice Warren, 72, 80, 103-104, 158, 205,208, 260, 265, 295-296
Burton, Justice Harold, 71, 79
Cardozo, Justice Benjamin, 79,267
Case load of, 65
Chief Justice’s State of the Cowt Address, 279
Clark, Justice Tom, 70, 71, 78, 80
Clerks
Federalist, 84
functions of, 64-69, 82, 85, 86
Harvard University Law School, 62
Influence/Agendas of, 83-84
Northwestern University Law School, 62
Stanford University Law School, 62
University of Chicago Law School, 55, 62, 148
University of Indiana Law School, 62
Women, 63-64
Collegiality on, 81-83, 201-202
Confirmation process, 243-244
Court of Appeals for the D.C. Circuit, relationship to, 253-255
Douglas, Justice William 0., 66, 68, 82, 128, 129,201
Frankfurter, Justice Felix, 63, 65, 68, 71, 75, 77, 79,
80, 103, 104, 143,261
Goldberg, Justice Arthur, 83-87, 98,119,281,322,357
Holmes, Justice Oliver W., 79, 200, 206, 210, 265
Jackson, Justice Robert H., 63, 69, 70, 71. 75, 77, 79, 82
Justices, 256, 263
A24
AJM interaction with. 262-263
legislative experiences of, 71-7 4
Marshall, Chief Justice John, 264, 382
Minton, Justice Sherman, 55, 57, 61-71, 75-84, 195,198,201,202
Nomination process, 279
O’Connor, Justice Sandra Day, 72, 141, 144-145, 146
Reed, Justice Stanley F., 71, 78, 79, 82, 83
Rehnquist, Chief Justice William, 10-11, 63, 82, 83,218
Scalia, Justice Antonin (“Nino”), 11, 194, 195, 260, 314-315
Stevens, Justice John Paul, 147, 266
Stewart, Justice Potter, 72, 350
Stone, Chief Justice Harlan, 322
Thomas, Justice Clarence, 243, 384
Van Devanter, Justice Willis P., 58
Vinson, Chief Justice Frederick M., 63, 65. 66, 70, 71, 83
Warren, Chief Justice Earl, 263-264, 385
White, Justice Byron, 350
Udall, Rep. Morris (“Mo”), 111-112
Ukraine, I, 2
University of Chicago, 34, 35, 38, 39, 44, 48, 50, 52, 54,60, 68, 96, 122, 123, 124, 356
.AJM teaching, 117
Intellectuals at. 38
Law Journal, 47, 119
Law Review, 56, 58, 61
AJM on, 47, 52
Law School, 27, 39, 42, 43-46, 51, 52, 54, 55, 56-60,
62,64,87, 122,148,284,285,286,288
Law School Bar Review, 61
University of Indiana Law School, 62
University of Illinois Law School, 286
University of Miami Law School, 41
University of Virginia Law School, 286
University of Wtsconsin in Milwaukee, 28, 39, 40, 56, 60
University of Wtsconsin Law School, 286
Utah, 285
Van Devanter, Justice Willis P., 58
Vanzetti, Bartolomeo and Nicola Vanzetti (criminal defendants), 75
VEDay, 29
Vietnam War, 40, 109, 121-125, 132-134, 143-155, 162,179,307
Vinson, Chief Justice Frederick M., 63, 65, 66, 70, 71, 82
Virginia, 163,244
Nonhern, 110, 126
A25
Segregation in, 126
VJ Day, 30
Vogue, 103
Wagman, Debra DeMille (AJM Special Assistant), 290
Wald, Judge Patricia, 172, 183, 186, 190,191,206,250,
310-311,339,340,358,362,363,369,374,375
AJM relationship with, 173-174, 177-178, 184-185
Chief Judge Wald, 209,302,303,378,379
Walker, Dan Oaw clerk-Supreme Court), 85
Wallace, Governor George, 262
Wallace, Vice-President Hemy, 51
Walla Walla, Washington, 29
Warren, Chief Justice Earl, 263-264, 385
Warsaw, Poland, 122
Washington Channel (District of Columbia), 333
Washington Park (Milwaukee), 26
Washington University (Missouri) 35, 38, 40-41, 60
Watergate scandal, 147, 148,303,384,
Weiner, Aaron (AJM client), 115
Welfare, institutionalized, 24
Westlaw, 283
West Reporters, 309
West Virginia, 111
White, Justice Byron, 350
White House, 110, 155-156, 172-173, 179,182,298,379,381, 387-389
CounseL AJM (1995-1996), 45, 52, 69,270, 297-300 345, 377-382, 387-388, 389
Judicial selection, 385-387
Whitewater scandal, 389
Wichita, Kansas, 87
Wilkey, Judge Malcolm, 190, 258, 328
Willlieit, Edward (“Ed”) (District of Columbia attorney), 312
Williams, Edward Bennett (District of Columbia attorney), 105-106
Williams, Judge Stephen (“Steve”), 339, 340, 352, 365, 366, 367
Williamsburg, Virginia, 270
Wisconsin, 29,34,36,41,46, 133,285
Central, 16
Farm communities in, 16-17
Politics, 39-40
Women
Against Vietnam War, 134
Feminist oriented, 319
House of Representatives, U.S., 137-138, 168-169
A26
Issues of, 168
Jobs for, 5
Law clerks, 287
Law schools, 44, 60
Lawyers, 63,287, 300-303
Suffrage, 261-262
U.S. Supreme Court clerks, 63-64
see also Gender-Bias
Women’s movement, 169, 320
Womens Army Corps (WACS), 12
Woodlawn, Illinois, 165
Works Progress Administration (WPA), 3-4, 24-25
World War I, 26
World War II, 4, 21, 24, 41, 53, 57, 77, 131
Wright, CbiefJudge Skelly, 10, 88-89, 186, 190, 191,206,207
Wygand, Ruth (appellate attorney), 63, 64
Wyoming, 285
Yale Law Review, 52
Yale University Law School, 46,284,285,288
Yiddish (language), 1-2
Yiddish culture, 7
Young,Rep.Sam, 140
Young, Rep. Stephen M., 147, 148
Yucatan, Mexico, 15
Zedillo, President Ernesto, 381
Zubrensk:y, Len (AJM college roonnnate), 34-35, 39
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A27
TABLE OF CASES
American Trucking Ass’ns v. EPA, 115 F.3d 1027 (D.C. Cir. 1999), 352, 353
Andrews v. Wilkins, 934 F.2d 1267 (D.C. Cir. 1991), 333-339
Baker v. Carr, 369 U.S. 186 (1962), 143,260,261,262,332
Big Mama Rag, Inc. v. United States, 631 F.2d 1030 (D.C. Cir. 1980), 319-320
Bowers v. Hardwick, 478 U.S. 186 (1986), 373
Brown v. Board of Education, 341 U.S. 483 (1954), 259,260, 262, 263,264, 332
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), 259
Colegrove v. Green, 328 U.S. 549 (1946), 143,261
Cooper v. Aaron, 358 U.S. I (1958), 263
Dronenburg v. Zech, 146 F.2d 1579 (D.C. Cir. 1984), 373
Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954), 208
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), 333
Feinerv. New York, 340 U.S. 315 (1951), 68, 76
Ferebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C. Cir. 1984), 248,
254,353,362-365,368
Gray v. American Exp ress Co., 743 F.2d 10 (D.C. Cir. 1984), 328-331
Hadley v. Baxendale, 9 Exch. 341 (1854), 48, 49
Hammontree v. NLRB, 894 F.2d 438 (D.C. Cir. 1990), 362, 363
Hobson v. Hansen, 252 F. Supp. 4 (D.D.C.,1966), IO
Kelly v. Kosuga, 358 U.S. 516 (1959), 265
Liquor Salesmen’s Union Local 12 v. NLRB, 664 F.2d 318 (2d Cir. 1981), 324-325
Marbury v. Madison, I Cranch (5 U.S.) 137 (1803), 264
Milkovich v. Lorain Journal Co., 497 U.S. I (1990), 376, 377
Miranda v. Arizona, 384 U.S. 436 (1966), 76, 83,259,315
Moldea v. New York Times Co., 15F.3d1137 (D.C. Cir. 1994), 374-375
Mullins v. Kaiser Steel Corp., 642 F.2d 1302 (D.C. Cir. 1980), 266
Palsgrafv. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928), 48
Plessy v. Ferguson, 163 U.S. 537 (1896), 260
Rochin v. California, 342 U.S. 165 (1952), 75, 76
Roe V. Wade, 410 U.S. 113 (1973), 72,259, 260
Shelley’s Case, YB. 10 Edward III, Mich. no 8 (1337), 48
State FarmMut. Auto. Ins. Co. v. Department ofTransp.680
F.2d 206 (D.C. Cir.1982), 256,352,353,354, 357,368, 369
Steffan v. Aspin, 8 F.3d 57 (D.C. Cir. 1993), 369-372
Sweet Home Chapter of Cmty. For A Great Oregon v. Babbitt, I F.3d 1
(D.C. Cir. 1993), 364-365
Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961), 103-104
Tygrett v. Washington, 534 F.2d 840 (D.C. Cir. 1974), 187-188
U.S. v. Wunderlich, 77
A28
United States v. Carotene Products Co., 304 U.S. 144 (1938), 211, 322
United States v. Foskey, 636 F.2d 517 (D.C. Cir. 1980), 310-313, 319
United States v. Jones, 997 F.2d 1475 (D.C. Cir. 1993), 339-340
Weiner v. 222 E. Chestnut St. Corp., 303 F.2d 630 (7th Cir.) (1962), 115
Wesberry v. Sanders, 376 U.S. 1 (1964), 261 IN IBXT AS Sanders v. Georgia
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), 66, 69-71, 75, 76, 84