Gerhard Gesell Complete Oral History Package (3,422 KB)

THE HONORABLE
GERHARD A. GESELL
U.S. District Court for the District of Columbia
Oral History Project
The Historical Society of the District of Columbia Circuit
Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
The Honorable Gerhard A. Gesell
U.S. District Court for the District of Columbia
Interviews conducted by:
John G. Kester, Esquire
December 27, 1991
TABLE OF CONTENTS
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Oral History Agreements
Honorable Gerhard A. Gesell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
John G. Kester, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Biographical Sketches
Honorable Gerhard A. Gesell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
John G. Kester, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Oral History Transcript of Interview on December 27, 1990 . . . . . . . . . . . . . . . . . . . . . . 1
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1
Appendices:
1. The Individual Calendar
Some Comments Re: Chronology of District Court
Individual Calendar Reform
2. Student Riots
3. Lorton Youth Center II
4. House Committee on Internal Security
5. Pentagon Papers
6. Watergate
7. Sirica – Watergate
8. The Statute of Liberty July 3, 1986 Naturalization Proceeding
9. McCabe
10. Interview by Karen Average and Lisa Douglas of Judge Gesell for Circuit
Newsletter, February 1991, as edited by Judge Gesell
11. Comment
12. Judge Gesell’s Law Clerks
13. My “Jealous Mistress” 1932-1984 by Gerhard A. Gesell
14. Presentation of the Edward J. Devitt Distinguished Service Award
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 interviews, a copy of the transcript on 3.5″ diskette (in
WordPerfect format), 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 Avenue, N.W.,
Washington, D.C. Inquiries may be made of the Circuit Librarian as to whether the
transcript and diskette are available at other locations.
Such original audio tapes of the interviews as exist as well as the original 3.5″ diskettes
of the transcripts are in the custody of the Circuit Executive of the U. S. Courts for the
District of Columbia Circuit.
The oral history interview of Judge Gerhard Gesell, conducted in December 1990, covers
his career up to the time of his appointment and confirmation to the United States District
Court for the District of Columbia.
Included as appendices to the oral history are several short memoranda written by Judge
Gesell as background material for a history of the Courts of the District of Columbia
Circuit. Many of these documents have been included in Judge Gesell’s collection of
papers, which have been donated to the Library of Congress.
Also attached as appendices are a copy of “My Jealous Mistress, 1932-1984,” written by
Judge Gesell in l984, a copy of the transcript of the presentation of the Edward J. Devitt
Distinguished Service Award to Judge Gesell on May 16, 1990, and several additional
documents from Judge Gesell’s collection of papers.
i
Historical Societv of the District of Columbia Circuit
Agreement
1. In consideration of the preservation of the Narrative
Prepared by the late Judge Gerhard A. Gesell and tapes of the
December 27, 1991 interview by the Historical Society of District of Columbia Circuit, Washington, D.C. (hereinafttehr e “the
Society”) on which the Narrative was based (hereinafter “the
materials”}, the undersigned, as both executor and a residuary
beneficiary of the estate of the late Gerhard A. Gesell, does
her?by grant and convey to the Society, its successors and assigns,
the ownership of the materials except as otherwise provided herein.
The undersigned grants and conveys to the Society all right, title,
and interest in the materials and their content, including literary
rights and copyrights.
2. These rights have not been previously conveyed, assigned,
encumbered or impaired by the undersigned.
3. It is agreed that access to the materials shall be in
accordance with the direction and control of the Society and
subject to terms to be set by the Society. The Society is hereby
authorized, subject to the above and to any exceptions contained
herein, to duplicate, edit, publish, or permit the use of the
materials in any manner that the Society considers appropriate, and
any claim to royalties from such use is hereby waived.
4. The undersigned reserves for herself and her children,
Patricia P. Gesell and Peter G. Gesell, the right to use or
authori,ze the use of and access to the materials and their content
as a resource for any book, pamphlet, article or other writing by
any person designated by the undersigned or either of her said
children.
Marion P. Gesel
AC?,Sl??EDQED before me this. day of
-C.’-‘-/’;:f??,,-r?’-=??? 1?—–‘ 1994.
,/,, ,f; ,,/ll // L! My commission expires—-,-?-? ….. ?-?-‘–?-?L’—?’?·-..J-f——
ACCEPTED:
Date: .5//3/9? ? yl\ ?
President
Historical Society of the
District of Columbia Circuit
Schedule A
I
Tape recording(s) and transcript resulting from _____ _
1 1 /1 r ,1,1 ( number)
interviews of ?rh? •rr – rHreu on the
{interviewee)
following dates: ‘j1·,:eJ,,.,, 27, I?’!(
Historical Society of the District of Columbia Circuit
Agreement
l. In considei:-ation of the recording an,d _preservation of
the oi:-al history memoir. prepai:-ed by ?t,,,,..,J (>J’s-,.# and
me, by the Histoi:-ical society of the District of Columbia
Circuit, Washington. D.C., its ,?ployees and agents (hereinafter
“the Society”) I. ::7<,t; .. (i.. t:.,.r/4.,, do hereby grant and
convey to the society, its successors and assigns, the ownership
of the tape recordings and transcripts of interviews as described
in Schedule A hereto. I also grant and convey to the Society all
right, title, and interest .I might have in such tapes,
transcripts and their content, including literary rights and
copyrights. All copies of the tapes and transcripts are subject
to the same restrictions.
2. I have not previously conveyed, assigned, encumbered or
impaired my rights and interest in the tapes, transcripts and
their content referred to above.
3. It is agreed that access to the aforementioned tape
recordings and transcripts shall be in accordance with the
direction and control of the Society and subject to terms to be
set by the Society. I authorize the Society, subject to the
above and to any exceptions contained herein, 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 my claim to any roya t..i.e? from such use.
Date:
)
DISTRICT OF COLUMBIA) ss.:
)
ACKN’OWLEDGED
1). i’4
‘1–,-:’
befoi:-e me this c,V day of
.;
,?Vi’Llla ! ·
Notary Public
ACCEPTED:
Date:
1994:
.\ C
President
Histoi:-ical Society of the
District of Columbia Circuit
-v-
Gerhard A. Gesell
Judge Gesell was appointed U.S. District Judge for the District of Columbia in December
1967. He graduated from Yale Law School in 1935. He was employed by the Securities and
Exchange Commission from 1935-1941 in various legal capacities, including Special Counsel for
the Temporary National Economic Committee of the Congress and Technical Advisor to the
Chairman. In 1941 he left the Commission to become a partner at Covington & Burling, where
he remained until his appointment to the Court. While at the law firm, he also served as Chief
Assistant Counsel for the Joint Congressional Committee on the Investigation of the Pearl
Harbor Attack (1945-1947), and Chairman of the President’s Commission on Equal Opportunity
in the Armed Forces (1962-1964). Judge Gesell died on February 19, 1993.
JOHN G. KESTER
John G. Kester was born in Oshkosh, Wisconsin on
June 18, 19 38. He was educated in the public schools of that
city and received the B.A. degree in 1959 from the University of
Wisconsin, where he was elected to Phi Beta Kappa.- The following
year he studied in France at the Universite d’Aix-Marseille as a
fulbright Scholar. In 1963 he was gradu<1ted maqna cum lau.de from
the Harvard Law School, where he was President of the Hacvard Law
Review.
From 1963 to 1965 Mr. Kester served as Law Clerk to the
late Associate Justice Hugo L. Black of the Supreme Court of the
United States. In 1965 he entered active military service in tbe
U.S. Army Judge Advocate General’s Corps and served as Assistant
to the General Counsel of the Army until 1968. In 1968 he -also
was Visiting Lecturer in Law at Duke University Law School. From
1968 to 1969 he taught constitutional law as Assistant Professor
of Law at the University of Michigan.
Returning to government service in 1969, he was
appointed Deputy Assistant Secretary of tbe Army for Manpower and
Reserve Affairs, and remained in that office until joining the
Washington, D.C. law firm of Williams, Connolly & Califano in
1972.
In January, 1977 Mr. Kester was appointe·d by Secretary
of Defen. se Harold Brown to be The Special Assistant to the
Secret’ary and the Deputy Secretary of Defense. In 1979 he again
became a member of the firm of Williams ? Connolly. In 1981, Mr.
Kester was appointed by President Jimmy Carter to the Board of
Visitors of the U.S. Air Force Academy. He was also appointed by
the Secretary of the Navy to the U .$. Naval Academy Ac.ademic
Advisory Board and by the Secretary of Defense to the Defense
Science Board Committee to Review the Environmental Impact of
Basing the MX Missile. He was a Senior Adviser to the u.s.
Senate Democratic Conference Str.ategy Group on National Security
Policy.
In 1985 Mr. Kester was appointed by President Ronald
Reagan to the President’s Chemical warfare Review Commission. In
1986 he was appointed to the Advisory committee of the Nancy
Reagan Drug Abuse Fund. He also served on the Ptliladelphia
Regional selection Panel of the White House Fellows program.
Mr. Kes. ter from 1982 to 1988 •tJas a member of the Legal
E:thics committee of the District of Columbia Bar. He is a membet
of the bars of the District of Columbia, the supreme court of the
united states, the l/.S. court of International Tr.ade, the u.s.
court of Military Appeals. and many other federal courts. He is
also a member of the council on Foreign Relations, the Federalist
Society, the Acquisitions Committee of the Supreme Court
Historical Society, the American Society of International Law,
and the American Bar Association sections on litigation and
administrative law. He is a Pii:ector· of the Historical Society
of the District of Columbi.a Circuit, and a Fellow of tlle American
Bar Foundation.
His writings on legal topics include “Soldiers who
Insult the President: An Uneasy Look at Article.BB of the
Uniform Code of Military Justice” (Harvard Law Review, June,
1968); “Constitutional Restrictions on Political Parties”
(Virginia Law Review, May, 1974); “12 Great Moments of Washington
Law” (Washingtonian, September:, 19 81); “An Un-Supreme Court” { New
\:’ork Times, Sept. 30, 19B2); “The Law Clerk Explosion”
(Litigation, Spring, 1983); “Are Lawyers Becoming Public Enemy
Number. One?” (Washingtonian, February, 1984); “Faculty
Participation in the.Student-Edited Law Review” (Journal of Legal
Education. March, 1986); “State Governors and the Federal
National Guard” ( Harvard Journal of Law and Public Policv,
Winter, 1988); “Some Myths of United States Extradition Law”
(Georgetown Law Journal, April, 1988); “Bush’s Court”
(Washingtonian, Match, 1990); “No Holds Barred” (Washingtonian,
April 1991}; and “Nowhere To Hide” (Washingtonian. January 1993).
Mr. Kester’s writings on military subjects include “The
Future of the Joint Chiefs of staff” (/\EI Foreign Policy&.
Defense Review, February, 19B0); “Do We Need the Service
Secretary?” (Washington ouarterly. Winter, 1981); “Designing a
u.s. Defense General Staff” {Strategic Review, Summer, 1981);
“Revamp the Joint Chiefs of Staff” (Wall street Journal. May 8,
1982); “Politics and Promotions” (Parameters. December 19.82);
“Strengthening Defense Without Breaking the Budget” (with Walter
Slocombe) in Center for National Policy, Budget and Policy
Choices 1983; “America’s Strongest Military Officer” (New York
Times. Nov. 19. 1983); “Thoughtless JCS Change Is Worse Than
None” ( Armed Forces Journal International, November, 1984); “The
Role of the Joint Chiefs of staff” in Kaufman et al., eds., !J….S..,..
National Security (1985); “The Office of the Secretary of Defense
With a Strengthened Joint staff system” in Blechman and Lynn,
eds .. Toward a More Effective Defense (1985); “The Reasons To
Draft” in Bowman et al .. eds., Ihe All-volunteer Force After a
Decade ( 1986) ;· and “T. he Chemica. l warfare Review Commission — Two
Years Later” in center for Strategic and International studies,
Chemical Warfare Policy (1987).
Mr. Kester has been awarded the Depar:tment of the Army
Decoration for Distinguished Civilian Service. and the Department
of Defense Medal for: Distinguished Public Service. He has three
sons and resides in Alexandria. Virginia.
– 1 –
Forward
Commencing in 1991 the Historical Society of the District of Columbia Circuit has
interviewed various judges and lawyers on tape in what is known as an Oral History Project. In
December 1991, John G. Kester, a partner of Williams & Connolly, spent a full day with me
covering events up until my nomination to the Court. An able lawyer, he proved also to be an
excellent prompter and got me going.
This narrative was then prepared, aided by a transcript of the tape. Anyone who reads a
taped transcript of any length is surprised and often shocked to learn the awkward way what
originally appeared to be coherent and well stated turns out to be. The spoken word loses many
inflections and pauses and the continuous stream of words, as transcribed, somehow becomes
unusually clumsy as the transcriber attempts to figure out where sentences begin and end.
Moreover, I found the transcript necessarily contained some inaccurate recollections,
exaggerations and could be made more useful if repetitions were eliminated and some further
recall added.
What follows is the result.
G.A.G.
August 1992
– 2 –
Yale College
My mother and father were each Phi Beta Kappa college graduates, and my indifference
to grades and often poor marks must have been puzzling. After Phillips Andover, Yale seemed
dull. Few courses were interesting and none helped me decide what I should do to make a living.
I read almost constantly — anything I could get my hands on — and wanted to write.
I signed up the first year at Yale with a professor named Benny Nagel. He had what was
called a daily theme course. You were to be taught how to write. At the first session of the class,
everybody was asked to write a theme. At the next session of the class, as I came in, he said,
“Well, Mr. Gesell, please come up here at the end of class.” I went up. He said, “Get out of this
course. I can’t teach you anything.” So that was the end of my formal training.
Yale was reaching out to students all over the country from public high schools. I had
had wonderful training in English at Andover under Claude Moore Fuess and felt further along
than many of my classmates.
Later I competed for the Yale Daily News and led the competition in writing skills but
was a total flop because I got the fewest advertisements. Finally, along with a good friend,
Johnny Moore, I earned money as a stringer for the New York Times covering sports. Our
biggest moment was the Yale-Georgia football game when we sat in the press box at the Yale
Bowl and ran a play-by-play account over direct open wire to Atlanta.
My major was, of course, English with emphasis on American literature. In fact, I came
to the point where it seemed a good idea perhaps to become an English teacher. Professor
Stanley Williams, a specialist in American literature, an excellent teacher who became a friend,
guided me in this direction as I concentrated on his field. He made books come alive by relating
– 3 –
them to the political and social conditions of their time. The more research-oriented English
courses, picking Shelley, Keats, et al. apart, left me cold. They seemed to concern matters that
probably had never occurred to these esteemed poets.
In spite of setbacks, I felt I could write fairly well and this plus my experience with
Professor Williams kept my interest in English teaching alive. A final event ended this fantasy. I
tried out for the Henry Fellowship, which was a very desirable fellowship that would have given
me, I think it was two years, in one of the British universities — Cambridge or Oxford. I wrote a
learned piece on the influence of Coleridge upon Poe, and reached the conclusion that Coleridge
did not influence Poe, but that Coleridge and Poe both read the same books. I lost out to a
classmate named Norman Pierson, who became a very distinguished professor of English at
Yale. He has been a hell of a lot better one that I would have been. At the time I thought he had
the unfair advantage because someone had given him a stack of unpublished letters of
Longfellow. So he had it made. But, in any event, I’m awfully glad in retrospect I didn’t win and
equally pleased in retrospect that he did. He has been a real figure at Yale and won the
fellowship fair and square.
Job prospects in 1932, when I was to graduate, were few, particularly for the son of a
college professor like me who had no business contacts. My grandfather, Jefferson Chandler,
had been a distinguished Washington lawyer but I never knew him. I knew no one who was a
lawyer and actually had only the vaguest idea of what a lawyer did. Many of my friends from
Andover and Yale were going to law school for want of anything better to do, and I tagged along.
It seemed a profession that offered a variety of opportunities and taught one how to use your
mind. Ability to write would help.
– 4 –
I squandered many intellectual opportunities at Yale. There seemed to be no important
challenges. It was too easy to get passing marks in routine classes, hang around my fraternity,
meet some girls and embrace the endless leisure. I had never been made to stretch my mind.
During the summers I tutored one of John Foster Dulles’ sons, taught kids to sail and was paid
handsomely for sharing the pleasures of Oyster Bay, Long Island, where there was still a
debutante party once or twice a week and all the lavish living of pre-Depression days. That many
fathers of girls I met were rich lawyers didn’t escape my notice. Looking back, I am amazed I
was not more concerned about the future, but I wasn’t. When I chose law school it put off the
evil day. I still didn’t know what I really wanted to do. Anyway, the world was coming apart and
the University was a good place to hide a little longer.
Yale Law School
Between college and law school I spent another summer walking in Europe, most of the
time in Germany, joining up with friends from time to time along the way. We went up the
Rhine in the mail boat, constantly stopping at small towns to deliver mail and test the local wine,
followed by two weeks or so in Munich to combine the opera and the beer halls. Finally, a walk
back through the Black Forest, sleeping in youth hostels.
Hitler was just coming into power and won his first seat in the Reichstag that year. There
were perhaps twenty-six political parties in Germany. His was the only party that wasn’t
collecting money on the street corners. Many businessmen were supporting him. He was
contending that the Communists were going to take over the dye factories and destroy the
industrial economy of Germany. Everywhere I walked there were kids carrying broomsticks as
guns, marching and saying “Sieg Heil” or “Heil Hitler.” It seemed ominous.
– 5 –
I saw Hitler several times at the opera or making a speech and once at a beer hall where
his gang congregated. He had a strident voice that made my hair curl. Goebbels and Goering
were with him at the beer hall when a young man ran in saying the Communists had attacked
him. His white shirt was smeared with red. Everyone ran out to throw stones at the intruders. I
read the New York Times. They made fun of Hitler, like they later made fun of Dewey, a little
man on a wedding cake, who wouldn’t amount to anything. And they said he was just a flash in
the pan, forget him, he wasn’t going to go anywhere. I wrote a letter to the Times saying
something to the effect that, “You better send someone over here who knows what they are
doing. This guy is a dangerous fellow.” And I recounted one or two of the experiences I had
where Hitler impressed everyone as he spoke dramatically in his strident voice. Of course the
New York Times never published the letter. I always thought they made a reporting mistake. I
was so worked up; that is one of the few times I have ever written a letter like that. I came back
worried about him and what a demagogue could do to turn people onto their heads. I thought he
was bad news, and my concern sharpened my reading.
That summer, of course, I was thinking more seriously about law school and tried to
figure out what the profession was all about. I took along two books to carry in my knapsack:
The Nature of the Judicial Process and The Growth of the Law, both by Cardozo. I carried these
two books with me while walking in Germany, and elsewhere. They are on my library shelves
now, full of underlines and marginal notes of things that hit me as important. I still read them
from time to time. They are particularly helpful to me in my present job and have influenced my
understanding of what the law can do, what the law is, and the ways a social system created by
laws can adjust to the times and the needs of people in a changing world. Those two books gave
– 6 –
me a good slant and guided my interests during law school, perhaps more than any faculty
member.
The physical transition from college to law school was simple. I was assigned a room in
the law school dormitory just two blocks from where I had lived during my senior year. About
half the class of 100 were classmates from Yale, many of whom I knew. Some were among my
best friends. Many of the group, like myself, were staying in school because there were no jobs
and the Depression was apparent everywhere. If there had not been an admission preference
given Yale college graduates at that time, I probably would not have been admitted. Because I
had some kind of faculty scholarship and earned money in the summers, I was able to live in the
dormitory rather than at home.
Law school put me on fire. I had an intellectual experience at law school, which I had
never had at Yale College — probably my own fault. I wasn’t stimulated by college the way I
was almost immediately at the law school. I grew up mentally at law school.
The law school faculty, at least many of the professors, were developing a more realistic
concept of how the law should develop and were pointing out how it had often been misused to
benefit special interests in the past. These men were involved in events of current interest and
were teaching by examples taken from practical affairs. The case method took the place of
treatises, and decisions were analyzed with a skeptical attitude to reveal, it was suggested, results
that the judge because of his background or leanings achieved by playing available precedents to
reach predetermined results. The outrage that trickled down from conservative legal quarters
simply whetted the faculty’s appetite for more. There was plenty to argue about and especially
exciting to find oneself revising premises you had accepted with complete satisfaction during
– 7 –
college. Contact with faculty was informal and easy. The atmosphere was exhilarating.
This was a time when banks were failing. Wall Street was in as much of a mess as it is
now. I had several classes with William O. Douglas, who had a series of seminars under such
titles as Public Control of Business. He would recount his investigations of protective
committees and reorganizations that benefitted insiders, leaving investors dry. He was spending
considerable time in Wall Street investigating and taking testimony concerning corporate
reorganizations and methods of refinancing. We learned about what are now called golden
parachutes and things of that kind.
Douglas dealt with the nature of corporations, corporate responsibility, and corporate
rights of minority shareholders. He knew a great deal about these matters, not only because he
was head of a committee appointed to investigate such things as scandals emerged, but because
of his early work as a lawyer in Wall Street with the Cravath firm.
Myer McDougall was another stimulating professor. I learned a lot from him, too. I
really don’t remember what he taught so much as the way he taught. He would stand you up and
put you through a very rigorous questioning about why you believed certain things. He made you
think. I became one of his prize butts for some reason. He had several in the class. I was one of
them. He had me on my feet time and again defending positions. I didn’t like it at the time, but I
learned a lot from him.
Harry Shulman was teaching torts and labor law. I remember him as another professor,
like Douglas, who really got me excited.
And, of course, there was Thurman Arnold, a brilliant teacher and a great character. I
remember these professors particularly.
– 8 –
Arnold had courses called Procedure I, II and III — we called them Thurman Arnold I, II
and III. He covered much more than procedure, often very practical matters. He was a
fascinating man. At that time he was writing those two famous books of his, The Symbols of
Government and The Folklore of Capitalism. Arnold had been a trial lawyer. He had been a
mayor of a town. And when he began to talk about procedural matters, he was talking about
actual use of procedural rules to defend or to take advantage. And he made you think.
I learned a valuable lesson in his first class the first year. He came in and drew a jackass
on the blackboard. It had three legs. He then went down row after row getting different students
to say what was wrong with the picture — only three legs; two dimensional; eyes
disproportionately large; ears bad — you know, all the different things students could think of.
Then he ended the class by saying, “Well, that shows how many different ways you can look at a
subject.”
And I still do that today as I did practicing law. I look at a problem. I say, ”Well, what is
this jackass?” (Namely, the case I’ve got.) “Is it really a tort case, or contract case, or what is
it?” I used to find it very helpful in dealing with clients when I was practicing law. What is the
man’s problem? What name do you give it? How do you fit it into something so you can get
some relief for him? It seems like a simple thing, and it is, but I still carry it in the back of my
head today.
All the courses with these professors touched matters of then current concern, as opposed
to, let’s say, a course that was given by a fellow named Underhill Moore that dealt with bills and
notes. Or a course by an old-fashioned, very fine gentleman named Vance, who taught evidence.
You could learn evidence from hornbook, and he didn’t have any experience that gave life to the
– 9 –
rules. It was just a drill course. I was watching evidence being applied down at the local
courthouse. But he was a Germanic, a kind of courtly gentleman who drilled us in the hearsay
rule and things of that kind. Practice and theory were far apart. So those courses seemed
pedestrian courses or far-out kinds of courses. Underhill Moore was far-out on new theories of
bills and notes. And I didn’t think I would ever see a bill or note in my life anyhow.
Or take another course that I took with Fred Rodell on taxation. I think taxes are boring,
except when you have to pay them. And I never intended to be a tax lawyer. He was an
interesting guy, and full of fire. But he taught taxes. There wasn’t anything that I particularly
wanted to do less than understand enough to get through with the course.
During the second year I wanted to get out of law school into the real world. I stopped
going to some classes, if I could. There was a city agency called the New Haven Legal Aid
Bureau. Yale Law School students could participate. However, it was not organized in any way
as clinical programs are these days. I went down to help and eventually became by far the most
active student until I was spending around at least 30 to 40 hours a week working with the clients
of the organization, on top of my law student work. There was no academic credit for this, but
there was much that needed doing. The clients were people who had been thrown out of their
homes, or weren’t getting paid, or had their money attached under an archaic Connecticut statute,
etc. The Bureau had about 1800 clients. I gave each client I met a number because I couldn’t
pronounce their names. Most of them were Italians. I even worked full-time, without pay,
helping with the case load for two summers. It was my law office, in effect, while I was at law
school. At the end of my second year I said, “I’ve got to get out of law school and do something
useful.”
– 10 –
I was very touched by what I saw at the Legal Aid Bureau and what was happening to
ordinary people down on their luck. I was able to help a lot of families. One of my first cases, to
show you the desperateness of the people then, was when an Italian family came in and said the
grandmother had died. They wanted to know what member of the family should get the gold out
of her teeth. I had to sit with the whole family and negotiate what would happen to the gold, and
how it would be divided when the grandmother was buried.
I remember a lady who was owed money by a bartender who had an illegal bar next to the
railroad station where all the conductors drank. He wouldn’t pay her until I finally forced a deal
out of him where I would go down there every Friday and collect her back pay for her a bit at a
time. She would come to meet me at the office and I would give her the money. That went on
for, I guess, four months or so, until I got all the money she had coming to her. There were many
similar experiences that affected me deeply. I started doing this toward the end of the first year,
and into the second and some in the third. Young people today don’t realize how desperate
things were. In New Haven the poor stormed the mayor’s office and broke down the door of the
mayor’s office because they wanted food. Homeless men needing some kind of protection from
the cold would drink Aqua Velva shaving lotion, on the Yale Green, and it would just absolutely
make them stiff as a board. The police would lift them up and put them under protective warmth
somewhere. It was a bad time. And I found myself touched by it and working with it and
relating what I was learning at law school to what I might be able to do to help when I left
school.
I wrote an article in the Connecticut Law Journal attacking an atrocious statute that
allowed a creditor to attach everything the debtor owned so the debtor couldn’t even use
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something for food. Then I peddled it around up in Hartford to various people who took it up
and somebody thought I was right, and a bill went through changing the law. I have forgotten all
the details, but the law was changed and my article was printed in the official proceedings and all
that kind of thing, so, of course, I claimed credit for it.
I would go to court often. I never stood up. There was one lawyer who had been
designated by the mayor for the Legal Aid Bureau. He was the real head of the Bureau. He took
serious rape and other kinds of cases like that to court. I’d go to court with him when I could.
And sometimes I would drop into court and just sit and watch what was happening. But I didn’t
do any court work. There were criminal as well as civil matters. I learned a little about what not
to do, which is the real trick of being a good trial lawyer. So it was at the end of my second year,
I said to myself, “I’ve got to get out of here and do something useful.”
I came down to Washington and the New Deal, and I went to see James Landis, who at
the time was chairman of the SEC. I told him I wanted to drop out of law school, go to night
school to get my degree and go immediately to work. I had an introduction to him from an uncle
of mine named Matthews. I had never met Landis. But he said, “Don’t do that. Don’t do that.
Come back. I want to take you to lunch.” When I went to lunch with him he said, in effect, “It
would be the worst mistake. I’ll tell you, though, if you’ll go back and finish law school, you
come back, and you’ve got a job at the SEC.” That’s the most I got out of him. He convinced me
it was a jackass idea, and I guess it was. So I went back and finished up at Yale.
Law School was a pleasant place for me, partly because of Corby Court. This was the
only fraternity in which about 20% of each class became members. If you were fortunate enough
to be chosen — and it was Yale-dominated, so I was chosen, because I knew a lot of people there
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— you really had a wonderful time. We ate all our meals at Corby Court, many of the faculty
members came to play bridge there in the evening or to pick up fellows to go to the movies. This
made life at Yale Law School very pleasant. I had a lot of friends there, friends I’ve still kept to
today, those who are still alive, that is.
When I left Yale Law School I had very spotty marks. I got what you now would call
honors in the subjects that interested me. In the subjects that didn’t interest me, I got quite
conventional marks. But I got through. And I immediately took the Connecticut bars and passed
them. This was a two-day affair. It was a lot of pressure because the law school put no emphasis
on passing bar exams.
Yale Law School has remained one of my lasting loves. I went back there to teach
seminars — still do from time to time. I recently was there as the Anderson Fellow and spent a
week with the faculty and students. Fascinating week. I was, first of all, on the Executive
Committee and then I was chairman of the Executive Committee for several years. After that I
became the Law School representative on the Yale University Council that met with President
Brewster on the planning of the future of the Law School and other departments. I represented
the Law School there for five years.
My portrait hangs in the Law School. The school has become my strongest allegiance of
all the different institutions that I’ve had something to do with, directly or indirectly through my
wife or kids. I think it is an extraordinary place. I remained extremely active in the Law School,
far beyond simply carrying out formal positions, up until the time I went on the Court.
I’ve raised money for the Law School and obtained material for the Library. I co-chaired
a Special Gift Capital Funds Campaign and served on special committees. When we organized
– 13 –
the Yale Law School Association of Washington, D.C., I think I was the second president of that
outfit.
I’ve learned a lot from the Law School long after I left it. For instance, during the
Anderson Fellowship I lived on the campus for a week. I taught in five different class sessions. I
met at dinners and lunches with individual faculty members, talking about their plans and their
ideas and what could be done or should be done to improve the Law School. I’ve been a
counselor to some of the deans who became close personal friends and talked to me about
aspects of the Law School.
I had something to do with making sure that the Law School wasn’t bled too much
because of its prosperity by diverting funds to units in the University that weren’t doing too well
financially. I helped to establish clinical programs and participated in them. I’ve been involved
in almost every way you can imagine. Almost all of my law clerks have come from Yale, with
just a few exceptions.
It is difficult to put into words my debt to Yale Law School. I grew up while at the
school. It taught me to think. My contacts there following graduation have widened my
experience, kept me in contact with coming generations and filled me with ideas. It is a jewel in
the midst of Yale that has supported public service and high professional standards. My whole
life came into focus because of what the school taught and represents. If I’ve done anything
useful since I left, I give the school the credit.
Securities and Exchange Commission
When I started law school I was still wondering whether I really wanted to be a lawyer.
As I have enunciated, I had come to realize that a lawyer could help people, and I was more
– 14 –
conscious of how many people needed help. Signs of the Depression were all around us in New
Haven, and I was curious about what a beginning lawyer or politician could do about it in real
life.
I knew I had a vague promise from Landis that I was sure he had probably forgotten. My
first thought was that I wanted eventually to be a senator from Connecticut. I thought I had better
practice in Connecticut. Hartford seemed the best place to start, so I went to Hartford. It was not
an easy time to get a job. It’s difficult to realize that many in my law school class never practiced
law. They became policemen. They became investigators for insurance companies. The only
law jobs were jobs where your dad was a good client of the firm, or if your dad was a practicing
lawyer, you could get yourself a job with him. But there were few jobs advertised.
I went up to a firm, Robinson & Cole or something like that, and I talked to a senior
partner and he hired me. I was surprised and excited. I thought I was about to get married,
although the same lady actually kept me waiting a year, and with a job I could go ahead. As I got
up to leave I said, “By the way, what’s the pay?” He was a very nice man but looked at me and
said, “We don’t pay anything.”
Since my father was a college professor, there wasn’t a lot of money running around. In
my egotistical way I said, “Well, supposing someone does an outstanding job the first year, what
could he expect the second year?” Well, he looked out the window a long time and then said,
“We have one person that we are paying $50.00 a month in his second year.” And I said, “Well,
I think you’d better give this job to a more deserving person.” I walked out and went on down to
the SEC.
So that’s the reason I came down to Washington for what I planned to be only an
– 15 –
experience of a few months. Of course, I had a great interest in the New Deal, a desire to see at
first hand how the country would address the social problems caused by the Depression, but I
still had in mind going back to Connecticut.
I fell in love with Washington, and there was a lot of work to keep me very, very busy.
The thought of going back to Connecticut disappeared from my mind, although I’m still a
member of the Connecticut Bar in good standing. I’ve been a member for more than fifty-five
years now. I never appeared in any of the state courts there but have appeared in the Federal
District Court.
My first job as a lawyer was with the General Counsel’s Office of the SEC. In those days
you had to be a member of the Bar to be hired by the government as a lawyer, no matter at what
level. Mine was the lowest level. I was paid $2,000 a year. I started out in the Fall of 1935 and
stayed with the Commission until the end of l940. It was a rich experience, varied and almost
always I found myself in roles of ever-increasing responsibility, pushing me to the limit. The
Commission was a very congenial place to work. The staff was young and eager. Unlike
long-established government agencies, there was not an entrenched bureaucracy suspicious of the
New Dealers and against change, which they viewed as standing in the way. Long hours,
informality and a minimum of supervision were the order of the day. If you didn’t stumble too
often, there was no end of opportunity.
When I went to work in the General Counsel’s Office of the SEC, I was the only Yale
man there, surrounded by Harvard graduates and thus immediately suspect. There were a bunch
of brilliant Harvard graduates in charge. Johnny Burns was General Counsel. The SEC was
without doubt considered the best legal shop in the government at that time. The office was
– 16 –
writing statutes and dealing with businesses. It was a very active, interesting place. But I was a
maverick because I came from Yale.
My first job was to draft opinion letters. In those days lawyers for financial institutions
would write asking for interpretation of a rule or statute as it applied to their particular fact
situation. We would write the kind of letter that said, “Assuming these facts are true and
complete, this is what it means –.” For a short time I wrote draft opinion letters that would then
be looked at by the more experienced lawyers there, and obviously edited. It was a good start. I
remember I finally came to the moment where I thought I should dictate. I had never dictated to
a secretary in my life. I wrote out what I was going to dictate and propped it up on a book in
front of me and called for a secretary to come up from the “pool.” This young lady came up with
her note pad, and I started to read slowly to her as though I were dictating it to her. And she said,
“OHHHHHH.” Her eyes rolled up and she fainted dead away. It turned out that she had never
taken dictation before! That was sort of the way I got started.
Soon I wanted to get out of writing opinions and was assigned to the enforcement area.
This involved straight prosecuting work, development of facts for presentation to grand juries,
unraveling stock frauds, and filing civil cases in court, in addition to helping in criminal trials
and representing the Commission before the agency itself.
When I started out I was teamed up with two experienced enforcers — Jack Flynn and Big
Tim Callahan of Yale football fame. Detroit was considered the center of security swindlers; and
we went out to clean it up, aided by Postal Inspectors. There were several “bucket shops” going
at full blast, full of men selling securities by telephone, securities they didn’t have, on an
installment basis and rigging the market to attract buyers and then dropping market support to
– 17 –
wipe the customers out. We conducted raids, got injunctions and initiated criminal prosecutions.
Early on, when this cleanup effort was just starting, I found a note under my door from
Flynn relating to a particular case, saying, “My mother is ill. I’ve gone to New York. File a
complaint tomorrow in Federal Court.” Callahan was elsewhere. I was on my own, but I had
never drafted or filed a complaint in my life. I had met one of the U.S. District Court judges. I
wrote out a complaint and saw the judge in chambers, explaining my inexperience. He agreed to
look it over. This saved my life for the moment because, with a twinkle in his eyes he simply
said, “It looks O.K. to me but don’t you think it would be a good idea to say what ruling you
want?” Talk about learning by doing!
As Detroit straightened out I was assigned to what proved to be a major criminal case.
We indicted 21 men for a scheme that involved selling Stutz stock by telephone over a ten-state
area. Customers signed up to buy various securities with 50% down on assurances the stock
would go up. After a large number were on the hook, the telephone calls began to tout Stutz,
then selling around $3 a share. By matched sales the price was made gradually to go up. When
it reached about $12 a share, customers were switched to Stutz and then “the plug was pulled”
and the stock fell back to $3, wiping out everyone who had put 50% down. Several times the
entire capital of Stutz had been “sold.” It was a $10 million swindle. I put the investigation
together, wrote the report and got Justice Department approval. Indictments were returned at
Gainesville, Georgia; and Peg and I went down to live for a couple of months in Atlanta, when
the case was tried. Neil Andrews, a fine trial lawyer, tried the case. My job was to line up the
witnesses, “horse shed” them and turn them over to Andrews each day. The Judge was E.
Marvin Underwood, and former Governor Slayton was for the defense. We convicted the main
– 18 –
defendants, after a long trial of what became known as United States v. Kopold Quinn. It was a
big win for the Commission because this type of fraud could only have been uncovered by
federal authorities. The states had been bamboozled by false documentary material indicating the
stock sold was being held elsewhere.
Roosevelt was running for reelection in 1936, and the Republicans were claiming that
overregulation of security markets by the SEC was stifling business. This angered me. In my
spare time after the trial I wrote a small 160-page book entitled Protecting Your Dollars,
documenting what the Commission was doing and how people were being swindled and needed
protection. Over 50,000 copies were sent out, and it brought me some attention. I was paid
nothing, used no government facilities and paid for the typing. It sold for fifty cents and was part
of a General Welfare Series printed by the Home Library Foundation.
Then I had a stroke of great luck. I was assigned to lead the entire investigation of
Richard Whitney. This turned out to be the major financial scandal of the era and brought about
Whitney’s downfall, along with a total reorganization of the New York Stock Exchange. It has
been written up in several books, and the entire transcript of the hearings I conducted in New
York and Washington is printed and accompanies the Commission’s final report. My name was
in the news every day as what proved to be a front-page story, and I gained recognition, working
under great pressure.
Whitney was a real scoundrel. He had been the leading opponent of the SEC, trying to
prevent federal legislation from being enacted by saying it wasn’t necessary, that the Exchange
could monitor its own business. He did all the business of J.P. Morgan & Co. He got
overextended by investing in securities in a company known as Florida Humus, which had some
– 19 –
grandiose idea about making a lot of money out of decayed material that would be scraped up in
Florida. He couldn’t meet his commitments, so he first stole all of his wife’s securities from her
account, then he stole from other customers. He stole from the Stock Exchange Gratuity Fund,
which was the pension fund for the employees of the Stock Exchange. He was treasurer of the
New York Yacht Club, so he then stole the funds of the New York Yacht Club. And then he
went around and borrowed or tried to borrow from members of the Exchange who were not on
the inside, some of whom were quite taken with the fact that Morgan’s broker had come to them
for a little money. He’d touch them for $100,000 at a time.
One thing I learned was what a great lawyer can do. I never forgot it during my later
practice. One day at the Links Club, which is a small bridge and social club in New York,
Whitney was there; and a partner of J.P. Morgan was there, named Bartow. Bartow was playing
bridge. He was not a man who had become a Morgan partner because of wealth and family, but
out of sheer ability, and was highly respected. I don’t mean that others didn’t have the ability, but
he made it the hard way.
Richard Whitney came up to him at the Links Club and said, “When you’re dummy, I’d
like to talk to you at the bar for a minute.” So when Bartow was dummy, he went over and said,
“What’s on your mind, Dick?” or words to that effect. And Whitney said, “I need a lot of
money.” And Bartow said, “What is the trouble? Are you temporarily embarrassed?” But
Whitney said, “It’s worse than that.” Bartow immediately said, “Come with me.”
They got into a cab and went down to John W. Davis’s office at Davis, Polk. Whitney
spilled the beans for the first time to John W. Davis, who was counsel for Morgan. They got in a
car and they went out to Great Neck, Long Island, where old man Morgan lived. I had the old
– 20 –
man on the stand later; he was a keen gentleman. After describing what Richard Whitney had
said, Davis said, “If you loan a penny to this man, it will be the end of the House of Morgan.”
Morgan accepted this advice, Whitney went under when they rang the Stock Exchange bell on
him the next day, and he was thrown out of the Exchange. That was very wise advice from an
experienced corporate lawyer. He earned much more than his fee, as it turned out.
When the investigation started, it developed that Richard Whitney’s brother, George, had
been helping him to the tune of around $2 million with his own money. But nobody knew about
this. And the business advisory counsel, and all of the other officials of the Exchange who were
supposed to check people’s accounts, either hadn’t caught it or winked at rumors. From the SEC’s
point of view, this was classic proof of the need of federal regulation of the Exchange; and
Douglas, who was Chairman, made the most of it.
I was the chief counsel for the SEC in all the Whitney hearings, both public and private.
Some were held in Washington and some in New York. Morgan did not want to come to
Washington for health reasons. He was in frail health and I questioned him in New York and I
had one or two of the other witnesses in New York. But most of the hearings were down in
Washington. Davis, Polk and all kinds of law firms were running around representing these
people who were in trouble. It was a fascinating account of skullduggery.
The SEC’s New York office gave financial men, who did the auditing and traced the
stolen securities. I had a couple of other people who were investigators. The hearings were all
before an SEC trial examiner (now called a trial judge) named Sam Clark, brother of Judge
Charles E. Clark, former Dean of the Yale Law School.
In the middle of the investigation Whitney pled guilty to a state charge arranged by his
– 21 –
lawyers with Tom Dewey behind our backs, took a five-year plea bargain and went to Sing Sing,
where he played first base on their prison baseball team. I had a few days to complete his
testimony, until midnight on a particular day. At midnight they were to take him to jail. I was
trying to catch up and get everything I needed to know from him out of him, a big session, right
up to midnight.
I finally came to the final question, asking, “Now, Mr. Whitney, when was the first time
you realized you were insolvent?” He always dressed perfectly with a stiff collar and his
Porcellian pin — a beautifully tailored man. He looked at me with contempt and said: “I am not
insolvent.” I was flabbergasted. I burst out, “What do you mean?” He said, “I can still borrow
money from my friends.” I said, “Take him away.”
Many prominent persons on Wall Street testified: Whitney’s brother, George, J. P.
Morgan, Lamont, and many others, including officers of the New York Stock Exchange. Dean
Acheson of Covington & Burling represented the Exchange and I came to know him fairly well,
riding back and forth to New York in the club car of the Congressional, a crack train in those
days.
Finally, it came to an end. The report was out and legislation in the works. Bill Douglas
and the SEC were riding high and I was doing odds and ends, expecting a new assignment.
I got a call from Douglas’s office. “Come to the Chairman’s office immediately. Come in
the back way.” So I went upstairs and went into the Chairman’s office. Douglas said, “You’ve
just agreed to be special counsel to the Temporary National Economic Committee.” I said,
“What the hell is that, Bill?” He said, “Just shut up and sit down.” I sat down. He said, “Show
Mr. Corcoran in.”
– 22 –
Tom Corcoran, well known for his handling of political chores for FDR, was outside and
he had with him a fellow named Bill Youngman, who later became Corcoran’s partner, and was
an experienced insurance lawyer. He had brought Youngman over to introduce him to Bill and
to ask Bill to make him special counsel to the insurance investigation of the Temporary National
Economic Committee, which had been delegated to the SEC by Congress. So I’m sitting there,
and in comes Corcoran and Youngman. Corcoran said, “Hi, Gerry.” And Youngman, who I
knew slightly, said “Hello.” Then Bill said, “Tom, before we get started on your business, you’ll
be delighted to know that Gerry here has just agreed to be SEC special counsel to the Temporary
National Economic Committee.”
That job took about two years of my life. It was a big job. I got a pay raise with it. I had
a staff of thirty-five people. It was also my first real administrative job. I learned how to run an
office and widened my trial experience.
The Temporary National Economic Committee (TNEC) was a joint congressional
committee created to study the growing economic power of business. Its chairman was Senator
Joseph Mahoney of Wyoming. Various industries were assigned to different agencies for
investigation, and the heads of these agencies were also committee members. The SEC was
assigned insurance, and we concentrated on life insurance. Metropolitan Life had some $5
billion of assets, and its size attracted criticism. There was no federal regulation of insurance.
This was the first national inquiry into life insurance affairs since the investigation by Charles
Evans Hughes in 1905.
The job had two facets. I was primarily responsible for guiding the investigation,
conducting hearings before the committee in the big Senate Caucus Room and helping with the
– 23 –
reports. Ernest Howe was the financial man who developed searching questionnaires and
striking bits of useful information from the extensive reports filed by life insurance companies
with the state regulatory agencies. We got out two reports, TNEC Volumes #2 and #28. Number
28 developed aspects of economic power of insurance companies through their holdings,
interlocking relationships with major concerns whose securities they owned that were
represented on their boards of directors, etc. It traced how those relationships were used.
Volume #2 was a study of families and their life insurance, which is, I believe, still an
amazing social document. It reflected our analysis of nickel-and-dime burial insurance as sold by
Metropolitan Life and Prudential, then the two largest life insurance companies, through
door-to-door collections for burial insurance by weekly payments, mainly in the impoverished
sections of large cities. Michael Cardozo, one of my friends and classmates at law school, came
down to work on this project along with a savvy statistician and sociologist named Davenport.
We used it as the prime example of abuse of economic power when we put on our first hearing
before the committee.
Metropolitan and Prudential were both mutual companies. They boasted that they were
managed by officers chosen by the insured by open election. This was false but effective. We
disclosed the truth. The insurance agents were asked each year to get policyholders’ signatures
on a “Hitler” ballot that listed only the existing management, and the companies took pride in
affirmative responses of over 90 percent for each election. The catch was that these agents knew
their clientele was suspicious of signing anything, so they regularly forged signatures to please
the management and to avoid losing an account. I called agent after agent of Metropolitan Life
who told the story. It was a sensation that gave the committee a prime example of what they
– 24 –
suspected. Prudential, knowing we were about to make a similar showing with their agents,
stipulated the truth; and we were on our way. Report #2 details the full effect of this wasteful
form of burial insurance that deprived many of their savings with often no benefit.
A mass of information was developed but the committee labored over it and in the end
the lobbies and growing concern over developments abroad resulted in nothing very concrete.
Back at the SEC it was obviously time for me to move on if I was going to practice law. I
was made Technical Advisor to the Chairman and stayed awhile working with Douglas and then
with his successor, Jerome Frank. This involved drafting opinions and other miscellaneous
duties, along with some administrative hearings. Then I resigned late in 1940 to join the law firm
of Covington & Burling.
Looking back on my five SEC years, I cannot help but be impressed with the vigor,
dedication and effectiveness of the agency in those early days. The staff was young. It was a
privilege to be a public servant, not spokesman for something dubious that had to be explained.
There was no shortage of work, and responsibility was everywhere for those who could handle it.
The atmosphere reflected quiet, tolerant but highly knowledgeable leadership of two Chairmen
who set the goals and high standard by which they were expected to be achieved with
cooperation of other hard-working commissioners.
William O. Douglas
My job at the SEC began before Douglas arrived, but I already knew him fairly well
because of participation in several of his small seminars at Yale Law School. It was exciting to
work for him, as I have already noted, and I got to know him better. It was fortunate I was not a
Harvard man fresh out and the only recent Yale Law graduate around.
– 25 –
Bill Douglas carried no Wall Street baggage. He had worked for Cravath and knew much
about how it functioned. But it was not for him. He hated New York, having slept in doorways
and struggled for food when he first came there on the rails from out West. He knew the investor
needed protection. He was salty, direct, uncompromising and a good administrator. If you
performed, he left you alone. If you stumbled, watch out! He didn’t pontificate or “worry the
bone” but carried those in his circle with him in an effort always to reach a defined objective.
In those early days Bill was my idol. There was talk of his running for President. Many
of us thought he was perfect for the job. He had an ability to talk with cowhands, botanists or
corporate moguls. He was genuine.
I was in his office when the President called him and said he had sent his name up to the
Hill for the Supreme Court and was absolutely devastated. He seemed too young to become an
old man like the other Justices. A lot of us had been talking about how he ought to run for
President. Of course, he knew the nomination was coming, but this was the official call from the
White House that his name had gone up. I said, “Oh, for God’s sake, Bill, why are you doing
that?” He said, “I need the money.” I never learned the true reason.
I think it was partly a pay raise. I don’t know how many obligations he had — I guess he
had at least one wife he was already supporting at that time. But I don’t know. I don’t think that
money was the whole reason. He was being talked of a lot for the presidency then and it
continued even after he went on the Court, particularly in 1939.
After SEC days his personal affairs got him adrift, he often became taciturn to a fault and
certainly the Court soon proved routine and dull. We drifted apart but kept in touch. Sometimes
I met up with him walking on the C&O Canal or I went to one of the cocktail parties he liked to
– 26 –
have in his chambers at the Supreme Court. And I read his books, every one of them, which
reported his wide travels, his youth and his notions of how the Constitution should be applied for
the benefit of the ordinary citizen. He was unique. He seemed to me to be missing a good fight
and to believe he was somehow unfulfilled.
The dismal last days’ visits to his home were short. He wanted to do things but couldn’t.
As his health failed, Justices Brennan and Burger and Judge Skelly Wright and some of us from
the SEC days were frequent visitors. He lay on a cot on the first floor.
Jerome Frank
When Jerome Frank succeeded Bill, my role at the Commission was different. Under
Douglas I was always handling a trial load or special chores. With Frank I was involved more in
the day-to-day functioning of the Chairman’s office.
Frank was a New Dealer. He had come down from Columbia where he was on the law
school faculty and he had served at the Department of Agriculture. He was an intense, bright,
inquisitive man who loved to write. He loved gossip and overflowed with ideas. One of my first
jobs was to assist him immediately after Christmas. The day after Christmas we went to the
office and arranged to return all the presents. “You were kind to send me a bottle of Jameson’s
Scotch, which I am sending back.” “Thank you for the basket of apples. I have sent them to
Children’s Hospital.” The most minor kind of thing — everything was returned.
We were all very strict about such matters in those days. We would never let anybody
buy us lunch. Wall Street lawyers or other people would come down. Sometimes I’d have lunch
with them. I would always pay for my own lunch. They would think it was absolutely silly, you
know, but the atmosphere was one of avoiding any kind of appearance of influence or conflict.
– 27 –
Here is another example of working with him. One day he brought me a draft opinion.
My recollection is that it was about 110 pages long. He said he wanted me to look at it and see
what I thought of it. After reading it over I said, “Jerry, this thing is way too long. There are a
lot of good points in it, but you have lost some of those points because it is so discursive.” I
continued, “Here, I have boiled it down, taking your own language, but I’ve boiled it down, and
here is a 30-page thing that you really ought to look at.” He said, “I’ll look at it.” I was hopeful.
Soon he called me and said, in effect, “You’ve done a wonderful job. I’m going to use it just as is
and have attached it as a preface.” You couldn’t win!
Frank gave me my first opportunity to argue before a court of appeals. To show you how
diabolical he was, the SEC had a case in the Fourth Circuit — Houston Natural Gas, I can
remember the name. I don’t remember what the case was about. The problem was that the
Circuit had decided a case on all fours against the position the Commission was taking. In
addition, SEC Commissioner Haley thought that the Commission’s opinion was wrong, and he
insisted on writing a brief opposing the SEC brief.
Nobody wanted to go near the Fourth Circuit on that one. It was my first experience with
appellate practice. I went down to the Fourth Circuit, which is a wonderful circuit to argue
before, wonderful. I went down there, and I had Haley’s brief saying I didn’t know what I was
talking about, and I had their opinion that was dead against me. So I was stumbling around
trying to weave my way, as you do, through all the intricacies and distinctions. One of the
Judges, I think it was Judge Parker, finally said, “Counsel, as I listen to you, you think we’re all
wet.” I said, “Yes.” He said, “Well, say so. Get on with your argument.” They all laughed.
The court ruled against me. They came down into the well of the court afterwards, the way they
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do, and we shook hands. You can understand why I, as a young lawyer, got the chance to argue
it. Nobody else wanted to argue that case. But jumping at things like that is the way you get
experience. And I still remember that experience. Later, I argued other cases in the Fourth
Circuit, a number of cases for the Southern Railway.
By the time I left the SEC the key legislation was well in place as far as the Stock
Exchange was concerned. The Commission was in a more defensive posture elsewhere. The
Public Utility Holding Company Act had stirred up increasing antagonism. Frank held things
steady. He was persuasive in Commission meetings, and his insistence on maintaining the
course we were on was quietly effective. The staff knew it would not be sold down the river.
But conditions were changing.
New Deal Washington
Until the District of Columbia was affected by the events of World War II, it was a
glorious place to live and practice law. It was beautiful, clean and tolerant. Except for some
cave dwellers and the social life of the diplomats, both of which were easily avoided, the town
was full of interesting people, including many drawn to the city by the New Deal. Best of all,
most of Covington’s clients lived elsewhere, and there was not the country club social pressures
to meet and to please clients typical of the practice in some other cities.
In those early days there was no imperial presidency surrounded by rude Secret Service
details, no daily sense of racial tension, no notable crime, no lack of work, no contempt for
privacy, and no wallowing in commercial violence over TV. One felt useful, safe and
challenged. Nobody was worried about assassinations until Truman’s presidency. Many of us
never locked our doors. Peg and I had an apartment on California Street for $60 a month. I
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bought a second-hand Ford for $246, drove to Atlanta in it and back, and we hired a maid for $9
who worked three times a week. Movies and things like that were cheap, like the five-cent candy
bar; fifty cents for the movies. Peg and I lived well on $2,600 a year. The tempo was slow.
There was a fine street car system that took you out where you could walk and picnic.
Some fail to realize that Roosevelt had no real staff. I imagine now the staff of the White
House is close to a thousand. The first big step was when FDR got six anonymous assistants.
There was also one person, an usher: if you wanted to see the President, you went and asked to
talk to the usher. I remember a man in town then with a great long white beard and shaggy hair
who called himself God. And he liked to talk to Roosevelt. He would go to the usher, and the
usher might say, well, God, the President is busy now, but he’ll see you next Thursday at 2:30.
And he’d come back and FDR would talk with him.
When my great friend, Jim Rowe, who was one of the six anonymous assistants, went to
work one day, the President was still in bed, as he was most mornings, doing business, but in bed
because of his crippled condition. The President had the morning paper. He said, “Jim, I’ve just
seen an article that said that you were at a cocktail party. If I see that again, you’re fired.”
Anonymous assistants didn’t go out and talk to people where there was drinking, or cater to the
press. Now what do we have? All those guys are on talk shows every living hour of the day and
night, and sometimes twice a day on Sunday. It was a different atmosphere.
Nowadays few realize how simple government affairs were in those days. Speaking of
Jim Rowe, one morning while I was at the SEC the telephone rang and Jim said the President is
going to make a statement about the 1935 Investment Trust Act. Would I write up something for
him? I said, “Sure.” So I sat down and wrote him a page about what the Investment Trust Act
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was. I knew very little about it myself. But I knew its general idea, and I wrote that up and sent
it over to Jim.
The next day the President read it publicly without changing a word. There were no
public relations people. I didn’t clear it with anybody at the SEC. It comes back from Jim with a
note saying: From GAG to JR to FDR to JR to GAG, or something like that!
Of course, the city was segregated. No blacks were allowed in most theaters, hospitals
(except Children’s Hospital), department stores, libraries, restaurants used by the whites; and
schools were racially divided. Old Washington families and the diplomats ruled the social scene.
The infusion of New Dealers manning the alphabetical agencies that came about almost
overnight were resented. The latter had their own gossipy cocktail parties, consumed with
political energy and hopes. The two groups saw little of each other, and neither focused on the
blacks. There was a sense of excitement for us newcomers. Government was important. FDR
had a reception every year for government lawyers and even low-ranking beginners like me were
invited. It was easy to make acquaintances and to share experiences. But we were not concerned
with the city. Most of us planned eventually to leave.
In retrospect, it is almost unbelievable that the New Deal and what it stood for could
ignore the problems of the black citizens. Not only was the city a totally segregated town but
often in early days while walking to work, as I did for years, a black gentleman coming toward
you might step off the curb, take his hat off as you walked by, and say “Good morning.” Most of
us, a thing to be ashamed of, were really not conscious of the degree of isolation that existed for
blacks. We were wrapped up in matters that appeared to be of great national concern. Roosevelt
did not address black discrimination until very late in his presidency, when he did take some
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halting steps in the military.
Black women were servants. They were wonderful people who would work in one’s
home. They brought up many a white child. We had a lady from Meridian, Mississippi, who
helped bring up our kids, and who was just like a member of the family, in the old southern kind
of tradition. Blacks tolerated whites but they weren’t sharing much in the economy. They were
rarely in government, and you didn’t run into any blacks socially, except on the rarest occasions.
Peg and I were blackballed from a well-known club because we had entertained blacks in our
home on occasion.
We lived mostly in Georgetown. There were blacks living all around. I bought the house
I am still living in by going to a man who lent money to individuals on their face, and I signed
five notes. The bank where Covington & Burling had its account and where I was a partner
wouldn’t lend me any money.
Where we lived earlier there were blacks in the alley. If we wanted a sitter, we’d open the
window and say, “Who wants to sit?” And everybody would race to the house. The first one
who got there was the sitter. Our kids played together. They were wonderful people, and I see
some of them still. A great chance to avoid what happened later was missed.
To indicate the flavor of those early days, I remember being at a People’s Drug Store,
sitting at the counter having a Coke or something. A young southern woman driving north,
obviously going, I guess, to the Cape or somewhere, had her black nanny with her and some kids.
She left them in the car and came in to get sandwiches for them. While she was getting the
sandwiches, a black man came in. At that time the blacks couldn’t sit at the counter, but they
could come to the take-out counter. He came to the take-out and got a sandwich and went out. I
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remember her saying, “I declare! You let them come in this way? If I had known that I could
have stayed in the car and I could have sent nanny in to get food, couldn’t I? Maybe we ought to
do that down home.” Unbelievable to think of today. But I remember that and many similar
incidents. It took World War II to finally shake us out of our magnolia tree lethargy and to
energize more blacks to have the courage to speak out.
Covington & Burling
As I mentioned earlier, I had been thinking about leaving the government because I didn’t
want to become a full-time government worker, and five years was about it.
Peg and I had been wondering what to do. We both wanted to stay in Washington. So
when I was approached by Dean Acheson and Eddie Burling asking whether I’d be interested in
going to Covington & Burling, I quickly said yes.
The offer from the Covington firm was another lucky break. The firm was losing
Acheson to the State Department; and he was the partner handling a series of major antitrust
problems involving the DuPont Company, one of the firm’s then principal clients. Several
younger partners who might have been available were in the Naval Reserve or likely to be called
up. I had gotten to know Acheson and Eddie Burling three years earlier during the Whitney
matter and had been taken to Mr. Burling’s cabin on several occasions later for his famous
Sunday rum drink lunches where Peg and I had met other partners and famous guests like
Learned Hand. There was work waiting for me, and I liked the members of the firm I had met. It
was easy to say yes, although I had little idea what might lie ahead. After all, I had never
practiced law.
When I accepted, we never discussed pay. We never discussed status. I just said, sure.
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And I set a date and left the SEC and went over to Covington & Burling one morning. They
were in the old Union Trust Building at 15th and H Streets, N.W., on the southwest corner. I was
asked to help Tom Austern, one of the partners, who was working on a bunch of facts for trial;
and then I did some things with Howard Westwood. But I wasn’t getting paid any money. I
didn’t worry too much at first because I was still receiving accumulated earned sick leave from
the SEC. In those days when you left the government you really didn’t officially leave until you
got paid benefits you hadn’t used.
The first thing that happened that cheered me up was that Paul Shorb, one of the senior
partners of the firm — a superior fellow, a tax lawyer — came into my room and said, “I just
wanted to come down and meet you,” he said. “I always like to meet my new partners.” That
was the first time I knew I was going to be a partner. We shook hands and had a little visit.
But the firm was still silent about money. Then one day Mr. Burling said he wanted me
to come up and see him in his office. So I went up to the office and he hemmed and hawed a
little bit, and said, “Now, you know, you’re just coming into the partnership, and Charlie Horsky,
who has been here a long time, is being made a partner at the same time. We think you both
should get the same pay and we’ve talked it over.” I didn’t know who he meant by “we.” I
supposed he and Judge Covington and Shorb had talked it over. There wasn’t any firm
agreement or anything formal in those days that I ever heard about. “And,” he finally said, “we
have decided that we’ll make it $12,500 a year.”
He looked at me with his cocked eye and for some reason that I can’t explain, though I
have often thought about it, I said, “I won’t take it.” “Well,” he said, “what’s that all about?” I
said, “That’s too much money.” I said, “I don’t know anything about practicing law. That’s more
– 34 –
money than my father ever made in his life.” And he smiled and said, “What is your idea?” I
said, “I know that I am worth $7,500 because that is what I’ve been earning at the SEC. I want to
come in at $7,500 with one understanding and that is that you’ll pay me what I’m worth.” He got
up, and he walked around his desk and put out his hand and said, “It’s a deal.” We shook hands.
Well, I did better than $12,500 that year. And I never regretted that entry into the firm. I
really didn’t know what a lawyer did. I’d not come fresh from law school to a law firm and had
never been an associate. I knew something generally about what happens in court, but I didn’t
know what people did in law firms. I didn’t know anything about dealing with clients. I’d never
had a paying client except Uncle Sam. So that’s the way I got started.
When I talked with Mr. Burling I also told him I didn’t want to do law business with the
SEC. I said something like this: “Mr. Burling, I’ll tell you what’s going to happen. All kinds of
people are going to want me to do that because of people I know. Ganson Purcell is one of my
best friends in town. He is Chairman. My name is associated with the Commission, I know the
key people and how the SEC operates.” Mr. Burling said, “Thank God, we’ve got enough
business. You will be busy on the DuPont work. You don’t have to worry about it.” Sure
enough, all kinds of people came. I wouldn’t have wanted to represent any of them. I never went
back, until I had one SEC case many years later for Alex Brown & Sons. I went back and won
the case. By then I didn’t know a soul who was there. They didn’t know who I was because it
was at least fifteen years after I had left.
I realized I had to become a member of the D.C. Bar, a member of the U.S. District Court.
I was a member of the Connecticut Bar, a member of the Court of Appeals Bar and the Supreme
Court Bar. But I wasn’t a D.C. lawyer. Judge Covington said, “When I was Chief Judge of the
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U.S. District Court, I wrote the regulations.” He said, “Just fill out this application and file it.”
So I filled out an application saying that I had been five years out handling cases in
federal court. Five years was one of the requirements to be admitted on motion, subject to
character check. Everything was fine. I sent it over. They turned me down. They said that
representing the United States for five years was not practicing law, and therefore I’d have to take
the written bar exam.
Well, Judge Covington went through the roof. He said, “Those damn fools over there. I
drew that rule. I’ll go over personally and get them to agree.” So he took my application and
went over to the court. But he lost — by one vote. So I had to take the bar exam. Well, by then
everybody in the firm was chuckling, and secretly hoping, I guess, that I’d flunk or something.
When I went to take the bar, there sitting next to me, up one, the way the seats were staggered,
was James Landis, former Dean of the Harvard Law School and my first SEC boss. He wasn’t a
member either, and he was taking the bar exam!
I remember one question on the bar exam that I heard later I got 50% on. They asked
what the statutory provision was about, or some such thing. And I wrote, “I do not know what
the statutory provision is, but even if I thought I did, I’d have enough sense to read it before I
gave any advice to a client.” In that fashion I got through, I passed.
Years later I learned that Judge Covington, who didn’t know me, had said, “What are we
doing taking this young New Dealer in here? I think I had better check him out.” Someone said,
“How?” And he said, “Well, George Whitney is on the Board of General Motors, a client of
ours, he’s on the Board at Kennecott, and he’s on the Board of DuPont, and those three are our
biggest clients.” He said, “I’ll hop up to New York and see what George thinks.” He came back
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and reported to the firm, I’m told, the following. He said to George Whitney, “We’re thinking of
taking young Gesell into the firm and want to know what you think about him.” George Whitney
was kind enough to say, “He’s a damn good lawyer. You are lucky. But you ought to get rid of
that fellow Acheson.” Dean had represented the Stock Exchange. Judge Covington felt happy,
but I doubt that he ever told Dean Acheson.
Now comes the time to talk about my activities at the firm. The reason there are few
solid biographies of lawyers discussing the practice of law is obvious. If you respect the
lawyer-client relationship in its true sense and you have regard for the privacy of your partners,
there is nothing left to talk about, only matters already on the public record. While some lawyers
obviously disagree and parade intimate details about clients and their problems, I feel
constrained. Covington & Burling gave me every possible opportunity, its standards were the
highest, and I had a glorious time working with an exceptional group of talented lawyers for
quality clients. Although my narrative of this era will be brief, I treasure my association with the
firm and am proud to have played a role in its development to the premier position it maintained
in the professional life of Washington, following standards laid down long before I got there by
Mr. Burling and Judge Covington. Thus I will give but a brief summary of 27 years practicing
law.
There was plenty of work to do. The firm lost several younger partners when they were
called up by the Naval Reserve. The firm was short-handed. On the other hand, the Justice
Department had launched an attack on international cartels, claiming that several large concerns
had divided international markets and fixed prices. DuPont, because of its arrangements with
British, French and German chemical concerns, was a prime target. Grand juries subpoenaed
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masses of documents; and more than 15 civil and criminal antitrust cases naming DuPont, among
others, were soon in progress at various stages of development in different jurisdictions. The
firm was defending, and I was given the lead assignment. The legal and factual issues were
complex. I traveled frequently to Wilmington, Delaware, and to New York City, where counsel
from the larger firms were located and attorneys for other defendants met for strategy sessions
and to exchange information about co-defendants. Our instructions from DuPont were to fight
hard, and we did. The trials were drawn out and publicized. I won some big cases early on and
became fairly well-known among business lawyers and general counsel of sizeable companies,
particularly after several victories in the Supreme Court.
Soon I had developed a more or less national practice. I tried cases in New York,
Trenton, Wilmington, Indianapolis, Grand Rapids, Chicago, Tampa, Baltimore and Washington,
D.C., and was consulted by companies in many other cities, particularly Detroit, Kalamazoo and
Cincinnati. None of this would have happened if Covington & Burling was not there and backed
me up to the hilt. My activities were for a blue-ribbon list of clients. I was retained, along with
the firm, for Scott Paper, Upjohn, IBM, Procter & Gamble, Parke-Davis, W.R. Grace, White
Motor, PanAmerican-Grace Airways, General Electric, Bank of America, The Washington Post,
Transamerica, Southern Railway, and the National Football League. The work took me to
London, Montreal, Rome and South America. I also did considerable administrative work before
the Federal Trade Commission, the Civil Aeronautics Board and the Federal Reserve Board,
argued cases in the U.S. Supreme Court and several Courts of Appeals and the Court of Claims.
Some of these matters involved antitrust laws. These cases were much more varied and
challenging than some may realize. Whether criminal or civil, they were always fact-oriented.
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Most of the legal principles were carved out, and New Deal judges naturally tended to give the
government its way in this area. Sometimes the issues generated interest on the Hill, and on two
occasions Senate committees sought to try the cases by holding hearings before trial. I remember
having rather explosive confrontations with Senator Kefauver over a General Electric
price-fixing case and with a Senator from Washington state over a DuPont dye cartel case. These
were both high-profile matters that caused considerable publicity. Both Senators were publicity
seekers of the worst kind.
One of our advantages came from mastering the underlying business facts. To get my
hands on some Scott Paper Company case I spent several days with salesmen in the field, calling
on supermarket customers, observing the competition and learning how to get shelf space. While
trying a cellophane monopoly case for DuPont, which involved alleged patent abuses, I took the
Judge, along with government counsel, to a cellophane plant to demonstrate the patent coverage;
and later we went to a packaging show at Atlantic City to see how cellophane faced competition
from other flexible packaging materials. We documented cross-elasticity of demand with these
materials at great expense and ultimately won a split decision in the Supreme Court by using
physical exhibits imaginatively arranged in booklets devised by my extraordinary, able secretary,
Doris Brown.
Finally, to illustrate the factual nature of the cases, consider the antitrust alibi defense
which served me well to exonerate a vice president of General Electric, without trial, and to keep
him out of prison where several of his colleagues later resided for a while.
We represented General Electric when they were caught by the government in the
damndest bunch of price-fixing cases you can imagine. The company pled guilty. I refused to
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represent the individual officers. They had separate counsel and several pled guilty. But there
was one vice president who said, “I didn’t have anything to do with price fixing. And I simply
won’t plead.” The government wouldn’t take a guilty plea from the company without a guilty
plea from this top vice president, who was the highest ranking official that they thought they had
caught. So we were facing a trial we wanted to avoid and were certain to lose on the corporate
side.
I decided we had to see what we could do to get this vice president off. The evidence
against him came from three men who worked for General Electric in Philadelphia. They said
that this vice president had come down from New York and instructed them to go to
Westinghouse and fix the price of turbines and that, thereafter, a turbine price deal had gone
through and they had been fixing and rigging the price of turbines. The three men fixed the
conversation within a three-month period and said it occurred in the company’s Dining Room B
at Philadelphia when all three were present and the vice president came down from New York.
Well, my partner Bob Owen and I set out to prove that this didn’t happen.
First of all, we found the days when the dining room was closed due to repainting, or
something. Then we found when all three people were not present in Philadelphia by looking at
their travel because some of them were on business trips from time to time. So we limited it
down to the days during a week when all three men could have been in Philadelphia and lunching
in Dining Room B. The three men had passed lie detector tests with the FBI. The FBI said they
were all telling the truth, which didn’t help. And what made it more difficult was: this vice
president loved to fly. One of his duties was that he was in charge of the fleet of GE airplanes
and he could order up a plane at any time and fly anywhere and he usually did, short distances,
– 40 –
long distances, anywhere.
We went through all the logs and there was no trip to Philadelphia that matched. We
were able to prove he hadn’t gone by airplane. Therefore the question was the time it would take
to drive or go by train. We decided to see if we could prove where he had lunch on each crucial
day. Well, he had signed some chits in the company dining room in New York City. That took
care of some dates. He signed some other chits at his New York club. And he had had speaking
engagements and other matters out of town on several occasions. So we got down to a handful
of dates. And then we really began to sweat because we had to cover these.
Finally, we got clear documentary evidence that kept him in New York and not down
there in the crucial time of lunch, except one. And, I thought to myself, “That’s the date.” He
would look at me and say, “I can’t explain it. I don’t understand.” It was right on the money in
terms of time and everything else. One day at home he was bemoaning about this date with his
wife. And she said, “Dear, could that possibly have been the day that you asked me to come to
town and we went to the bank together and went to the safe deposit box and got out those
deeds?” Bingo! They had gone to the bank and, sure enough, the bank had stamped the date and
time.
Then I went over to the Antitrust Division. There was a fellow named Biggs who was
head of it. A fair but highly skeptical man. And I said, “Now you’ve got to let this guy go.
There’s nothing else you can do about it.” I went there at about 9:00 p.m., as I remember, and
talked to Biggs, along with some of his staff, until about midnight. He was interested in it
personally. He had his staff there, you know, and they went over it carefully. He said, “We’ll
investigate it, we’ll get back to you.”
– 41 –
Well, in about ten days the telephone rang. It was Biggs. He said, “We’ve got you.” I
said, “Oh, my God. Have those fellows lied to me?” He said, “They sure have lied to you.” I
said, “What’s the trouble?” He said, “There is another plane he didn’t tell you anything about;
we’ve gone to the C.A.B. and there’s another General Electric airplane, and, of course, that is the
plane he came down on.”
I called up the general counsel. Oh, I was steaming. And he said, “Well, let me look into
it. We weren’t pulling any tricks on you.” It turned out the plane was a wooden one-seater
airplane used for testing radar equipment in New Jersey. This vice president couldn’t pilot an
airplane anyhow. So eventually the government dismissed the vice president and General
Electric pled guilty. That was an alibi defense!
Of course, like most clients, the vice president turned to me and said, “I knew they had
nothing on me anyway!”
Senator Kefauver heard about the result and was so sore that he had a hearing on how it
was the vice president had gotten off. This was in a big hearing room on the Hill. So I went up
there with the vice president and Kefauver berated us. I gave the Senator a learned memorandum
indicating that lie detectors weren’t any good and weren’t accepted by the courts and that they
were unreliable. But then Kefauver turned to this vice president, who was a pretty smart guy, and
asked why he wouldn’t take a lie detector test to settle the whole thing. My client said, “You
know, if those fellows passed it, I don’t believe in it.” It was a good answer. Kefauver was
furious.
Another aspect of antitrust practice was the extent to which lead counsel in major cases
necessarily sometimes became involved with top management of major companies. These
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officers had to consider the risks, the possible effects of a loss and wished to have a voice in
tactics, so counsel could do his best to protect vital business concerns. Thus, more and more I
was brought into high-level conferences, sometimes with other partners; and we were alerted to
litigation pitfalls and asked to guide acquisitions or other major corporate initiatives to avoid
litigation in the future. Often one could have a prophylactic effect. I became intimately involved
in such matters, for example, in the affairs of the National Football League after winning, with
Hamilton Carothers, a major suit brought by a legal rival, the American Football League; with
The Washington Post’s acquisition of its major competitor; and in work done by the government
to eliminate Nazi pilots from South American national airlines, through PanAmerican-Grace
Airways as the instrumentality.
When the attack on Pearl Harbor came so abruptly in December 1941, I was loaded with
cases, including a trial for DuPont. I did not volunteer. Peg was pregnant and I decided to wait a
bit. Then it was too late. My draft number came up much later and the next day after being
drafted, FDR said people of my age could not be drafted. I had tried for the Marines, who
wanted trial lawyers to interview returning pilots, but was turned down for health reasons; and
the Red Cross refused to consider me for a chance in China because I was 1-A in the draft. I was
looking for active service, not a desk job, but never served. Working as a civilian to help as an
air raid warden and waiter for troops on leave at the USO facility in the old Belasco Theater
didn’t amount to much, but I felt I was doing something. It was difficult holding the firm
together during the war, and those of us who stayed were stretched to the limit. When the war
was over everyone who had left came back, and the firm grew rapidly because of the clients I
have mentioned and many others who came for tax advice, international matters involving the
– 43 –
United Nations and a growing general business practice.
Covington & Burling, during my time with the firm, was unstructured, informal; and we
found the practice fun. When I started there were only about 30 lawyers. Mr. Burling no longer
took any share of the earnings. He had become wealthy by shrewd investments. He loved the
firm, came in every day, reached out always for talent and encouraged initiative. This was not a
place where partners claimed clients as their own. We all knew the firm had much to do with
why any of us had business come our way. Business brought in was discounted and the money
went to those who did the work. We were all well taken care of financially and allowed to find
our own ways. Whether a client would like what one of us got tangled up in made no difference.
We fought McCarthy, did considerable civil rights representation and took roles outside without
seeking permission of anyone. We pitched in and helped each other, and all in all it was a very
happy place. Standards were high and there was great emphasis on quality work. There were no
pressures to join country clubs, entertain client’s wives or compete with other lawyers socially.
One could make his own way, seek out the people he wanted to and live an independent life away
from the office. All of this engendered great loyalty and esprit de corps. Those who left usually
left on request and were helped to relocate. The firm grew by advancement from within rather
than by acquiring big names as “rainmakers.”
Not much business brought me before the U.S. District Court for D.C. I tried several
libel cases for The Washington Post, an antitrust civil case for Parke-Davis, which went to the
U.S. Supreme Court, and was called down for appointed cases a number of times. Some of these
matters were before Judge Tamm, who was then a District Judge, Judge Keech and Judge
Holtzoff, primarily, but I had motions or preliminary matters before several other Judges. Since
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Covington & Burling’s practice was not focused locally and its clients were encountering their
principal problems elsewhere, I was in no way a daily practitioner in District of Columbia courts
and knew the judges much less than many outstanding local lawyers, like Nubbie Jones of Hogan
& Hartson, Dick Galiher, David Bress or Spencer Gordon of Covington, whose work was
concentrated in Washington.
The local Bar was very close-knit and resented outsiders. Covington’s phenomenal
success and growth was resented by many local lawyers, and the firm remained aloof for a long
time.
Of course, there have been immense changes in the legal profession, particularly in
Washington law practice, since the 1940’s. Many new firms have come to town. Covington &
Burling no longer has the same dominant role, many other top firms are involved in
governmental practice for out-of-town clients, and the volume of law work has grown into a
roaring flood of business.
My years with the firm, 1940-1967, were tumultuous years. Changes in the practice
reflected changes in the role of the Capital. Pearl Harbor ended the New Deal, and the city
became the arsenal of democracy. Then FDR died, the atom bomb ended the war with Japan,
Russia threatened from behind the Iron Curtain, followed by the Communist witch hunt, Korean
Conflict, and economic Cold War, amidst growing racial tensions at home. Dissension and riots
mounted, reflecting the murders of two Kennedys and Martin Luther King, Jr. and frustrations
with still another war in the Far East over Vietnam. History was being made almost every day.
It was an exciting and often discouraging time.
* * *
– 45 –
While at Covington & Burling I served, among other things, on various school and
charity boards. (Beauvoir, St. Alban’s, Madeira, Children’s Hospital, Community Chest.) But
there were only three outside involvements of sufficient interest which perhaps should be
described more fully. I continued to practice but, at the same time, acted as Special Counsel to
the Joint Congressional Committee Investigating the Pearl Harbor Disaster, later as Chairman of
the President’s [Kennedy] Committee on Equal Opportunity in the Armed Forces, and, finally, as
Chairman of the D.C. Circuit’s Advisory Committee for Reorganization of the Local Court
System. These were all non-compensated activities. A brief word about each follows.
Pearl Harbor
When the Japanese attacked, a sketchy report was prepared by Justice Roberts at FDR’s
request but, necessarily, security considerations masked the full truth because the fact that we had
broken the Japanese highest secret Code was still a secret and unknown to the Japanese. After
Pearl Harbor, the United States continued to read the Japanese messages that aided the war effort
every day. After the Japanese surrendered, a congressional inquiry was inevitable. The inquiry
awakened old controversies. America Firsters saw a chance to be vindicated, and Republicans
hoped to tag FDR with the blame for allowing the attack to occur. William D. Mitchell, a
Republican and former Attorney General and Solicitor General, was named Chief Counsel of the
congressional investigation. He asked me to be his first assistant. I guided the day-to-day
investigation and questioned many of the witnesses at the long hearings in the Senate Caucus
Room that followed. Mr. Mitchell wanted to start at the point where a possible attack was
imminent and known in Washington and then to work up, event-by-event, to a final confrontation
on the witness stand with the two commanders, Admiral Kimmel and General Short. That was
– 46 –
our plan. Throughout, some Republican members persisted in trying to divert us into a review of
how FDR got us into the war and to turn attention away from who was responsible for failing to
intercept the Japanese planes when they attacked Pearl Harbor.
I had never met Mr. Mitchell. He said that he had been to the Supreme Court and asked
for names, and my name was given to him by several of the Justices. Based on this he walked
into my office at Covington & Burling one day and asked me to help after talking to my partner,
John Lord O’Brian. Mr. O’Brian and I were very close, and I have always felt that Mr. O’Brian
had much to do with it, and that Mr. Mitchell just checked me out with some Justices, but I don’t
know.
We hired a staff and we started out building the story from the ground up. We released
all the pertinent intercepted Japanese code traffic immediately, and I personally read all the FDR
correspondence and material at the White House concerning the President’s contacts with
Churchill. As we got nearer and nearer to taking the testimony of the commanding officers,
some members of the committee became increasingly restive because the net was tightening.
There were many people who felt that Admiral Kimmel, the Navy Commander, was being
unfairly accused of dereliction of duty and that the real dereliction of duty was on the part of
General Marshall, Admiral Stark and Franklin D. Roosevelt, who had not given adequate
warning.
It got to be quite a political brawl. Senator Alben Barkley was chairman. The committee
functioned on a rule that provided that any member could have any witness called that he wanted,
and if the committee failed to hear some requested testimony or failed to go into some line of
inquiry, all the committee would let it happen, regardless of relevance. Senator Homer Ferguson,
– 47 –
who had been selected, in spite of his limited capacity, because he had been a one-man grand jury
in Michigan, kept trying to take over the investigation almost from the beginning. He was an
America Firster and totally self-centered. The other agitator was a fellow named Keefe, a
Congressman from Wisconsin.
Books have been and are still being written about the attack, and there is no point in
discussing what we developed. Information later obtained from the Japanese confirmed much of
it. However, the political controversy still continues unabated.
For my part, I had a lot of fun listening to Keefe when he took on General Marshall one
day and fell flat on his face. It was really very humorous. There was a message that had been
sent out to Hawaii shortly before the attack, and it had been written by Secretary Stimson.
Usually, such military messages had been gone over by Marshall, who had an office next door to
Mr. Stimson, to be sure the message was in militarese language and perfectly clear. But Marshall
was out of town that day.
So Keefe asked him, didn’t he think that a better worded message could have been sent if
he, Marshall, had been there? Marshall was a very laconic, but honest man. “Yes,” he said, “I
think it could have been improved.”
So Keefe began: “Now, where were you, General?”
“Well,” he said, “I was on maneuvers.”
“Oh, you were on maneuvers, were you? Were you down in Carolina?”
“We were having maneuvers there.”
“And I suppose you had a good time?”
Marshall said, “I had a very good time.”
– 48 –
Keefe said, “At night you saw a lot of your old buddies that you’ve known for a long
time?”
“Yes,” answered Marshall.
“You sat around and drank?”
“Well, I guess I had a drink after dinner. But I went to bed pretty early. But I had a very
good time.”
“How long were you down there?”
“Oh, three days.”
“Wouldn’t it have been better for the country for you to be up next to Stimson who is
getting along in age, and you could have helped write a more proper warning message?”
“Well, in retrospect, maybe it would have been.”
But Keefe didn’t stop there.
Keefe said, “Now General, let me ask you this one final thing. (I was sitting right next to
General Marshall.) Can you think of a single good thing that came out of those maneuvers that
you accomplished?”
I saw a twinkle in Marshall’s eye.
Marshall said, “Yes.” The big caucus room was full of people, including many reporters.
Keefe was stuck.
“Well, what was that, General?”
“Well,” Marshall said, “I saw a major who performed well with tanks and I promoted him
on the spot and sent him overseas.”
There was a silence. Keefe had to ask, who was it, and he did.
– 49 –
Marshall said, “A fellow named Patton.”
The audience stood up and clapped and cheered and yelled, and all the press laughed.
Keefe got redder and redder and redder in the face, and soon he walked out of the hearing room.
Then we later had a very momentous, historical occasion involving that bumbler, Senator
Ferguson. It has never been written up and I believe it ought to be known.
One morning out of the blue Senator Ferguson came in and said on the record, “I’ve just
learned the most terrible thing.” He said, “I have just learned that the man who is responsible for
breaking the Japanese code has not received even a measly medal from President Truman. I want
that man here tomorrow so we can give him the thanks of the nation.”
Well, the true story was that the man who broke the code had broken it by computer
techniques unknown anywhere else in the world, aided by IBM. United States authorities had put
out a story that our people had broken into the Portuguese embassy of the Japanese and stolen the
code. The Japanese believed this and had simply changed the formula in the code, but not the
code itself. As a result, the United States continued to read the highest Japanese traffic all during
the battle of Midway, and probably won the battle of Midway because of it, and continued to read
it all the way when MacArthur was going into Japan itself.
Now this guy Ferguson was about to bring out what had really happened. President
Truman called Barkley, I assume, or somebody did. And Barkley scheduled an emergency early
morning Executive Session of the committee for the day this code fellow was to appear. I had
met him. He was a kind of brilliant, odd fellow, like many of those guys are. He could probably
see a freight train go by and add all the numbers on the freight cars and take the square root in his
head, but might not always know how to get on a bus to get home because his mind was
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concentrating elsewhere. He and others who worked with him made a great contribution.
Anyway, General Marshall appeared at the Executive Session in full uniform with a letter
from President Truman and said that we were reading the Russians, we were reading the
Germans, we were reading the Italians, we were reading the French, as well as continuing to read
the Japanese traffic, all by this same decoding method, and that if this man was called, we would
lose everything that we had found so useful in post-war military and diplomatic intelligence.
Senator Ferguson stood up and said, “I’ll not sit in the same room with this traitor.” He
pointed his finger at George Marshall, and walked out of the room.
Barkley said, “I can’t do anything. We have this understanding. We’ve got to go ahead
with it.” We went to the hearing room. The guy was sitting there. He had been subpoenaed.
Barkley nods at Mr. Mitchell. Mr. Mitchell shook his head. Barkley nodded then at me. I shook
my head. Neither of us wanted to ask him a question. So Senator Ferguson has to bring it all out
himself. He did. Various countries changed their codes by nightfall. That was a pretty bad
show, in my opinion, dishonorable and immoral.
After this episode Mr. Mitchell correctly felt we had lost control of the proceedings.
Supporters of Admiral Kimmel were claiming the Admiral should be heard before we were
ready. Senator Ferguson was riding high and there seemed to be more political agitation than a
search for the truth at work. Mitchell and I resigned.
When we left, the committee appointed Admiral Kimmel’s lawyer as Mitchell’s successor,
a fellow named Richardson, who practiced law in Massachusetts. Soon the committee came out
with a wishy-washy report.
The effort to vindicate Admiral Kimmel, which still continues, is understandable.
– 51 –
Admiral Kimmel was an outstanding naval officer and a great leader of men. If he hadn’t had
that responsibility at Pearl Harbor, he probably would have been one of the great heroes of the
war. Indeed, I believe, any Navy commander who had that job at the time would have had the
same thing happen to him. The climate at the time was that the attack just couldn’t happen. For
example, shortly before the attack, Admiral Kimmel turned to Admiral Halsey, who was at Pearl
Harbor in charge of the aircraft carrier Enterprise. Kimmel asked, “What should I do? Should I
send all the ships to sea if there is to be an attack or should I bring them all into the harbor?”
Admiral Halsey said, “Bring them into the harbor. Put a net across.” That’s what
Kimmel did. That decision caused much of the trouble because these Navy officers had failed to
realize that the Japanese had learned from the Italians to mount their torpedoes from aircraft with
a different kind of fin so torpedoes would take effect after a very short run. And, of course, the
Japanese also made a lucky hit when they dropped a shell down the smokestack of the Arizona.
When the attack came, Halsey, coming into Pearl, flew the cream of our naval aviators
into Diamond Head. As they approached the island, all unarmed in the plane, they flew into the
face of the attack, they were shot down and killed. This occurred, even though the Command
had even war-gamed the attack. It would come on Sunday. It would come from the north.
Exactly the way the Japanese did and it was what the Navy had war-gamed and expected, if it
ever happened.
Consider the following. On November 28, 1941, a message went out to the Panama
Canal Zone, the Philippines, Hawaii and San Francisco saying, something like this: “This is a
war warning. Expect enemy attack. Effect necessary reconnaissance.” San Francisco put
everybody down on the docks with iron hats, guns ready, everything they could do. The Panama
– 52 –
Canal Zone took every precaution for protection of the Canal Zone. From the Philippines,
General MacArthur indicated, we would do very well in the first wave. Our pilots could shoot
down a large number of Japanese. “But,” he said, “we’ll be destroyed on the ground. We don’t
have enough fuel. We’ll come back to refuel and they will eliminate us. But we’ll do our best.”
In Hawaii, they went and played golf. It was the climate of the times, a lack of
imagination. But I think it was endemic to the Navy at that time. The Navy was not as superior
as it believed.
I think any commander would have been cashiered, and probably any commander would
have made similar mistakes. Where to put the blame — I don’t think it was fair to blame, but you
had to blame the commanders. It wasn’t just Admiral Kimmel’s fault. It was the fault, in my
judgment, of the inability of the military, the Navy in particular, to recognize its vulnerability or
to realize that we were no longer necessarily the masters of the Pacific. The Japanese were very
clever. They sent all kinds of ships down by Indonesia, publicized a fake attack that was not to
go on down there. The Japanese papers are fascinating about the planning of this attack. They
really knew what they were doing. But it certainly wasn’t Marshall’s fault, or Nellie Stark, or
Short or the Army commanders’ fault or Admiral Kimmel, the Navy Command’s fault alone.
We were, in a sense, victims of overconfidence and tended to discount intelligence information
accordingly.
The Pearl Harbor investigation was unsatisfactory. This was caused by the inability of
some members of the Joint Committee to forsake political opportunity and personal advantage.
Two Republicans, Senator Homer Ferguson from Michigan and Congressman Frank B. Keefe
from Wisconsin, sought to turn the inquiry into vindication of the America First movement that
– 53 –
had worked to keep us out of the war. Their contention was that FDR and General Marshall had
known the attack was coming and had allowed it to happen because FDR had long before
committed us to aid the British without the knowledge and approval of the Congress or the
public. From the outset, Ferguson sought to take over the investigation, demanding,
unsuccessfully, access to all the staff work as it developed. Admiral Kimmel and his ardent
supporters contended they had been kept in the dark and not allowed to see the intercepted
Japanese diplomatic messages. This heaped fuel on the fire. Mitchell had insisted, and I fully
agreed, that we should work up the facts in chronological form, ending with the commanders. As
the hearings progressed, the noose tightened as circumstances indicated how clearly Kimmel and
Short had been alerted to the danger of attack. General Marshall had left a slight gap. He could
not remember where he was the night before Pearl Harbor. He declined to speculate and was
pictured as conspiring at the White House with FDR, although there was no record he had been
there. He was returning from retirement to accept a presidential mission to Communist China,
and the two obstructive members implied he was about to perform another act against the
interests of the country. Two incidents reflect the vicious effort to impinge the integrity of the
great man.
[Inserts re incidents not found.]
Left with no further ammunition, the Committee insisted that Mitchell call witnesses out
of order so that the America First attitude of Ferguson and Keefe which, by this time, Kimmel
perhaps unconsciously shared in his search for self-justification could be presented by Kimmel
and others before all the chronological proof was in. Mitchell and I resigned, and Kimmel’s
lawyer was put in charge of the investigation. A mild, incompetent, slanted report issued. No
– 54 –
commander who is surprised can ever be exonerated. But, as time has passed, the public has, I
believe, come to recognize that the U.S. Navy and U.S. Army were unable to appreciate the
might and zealous dedication of the Japanese and overestimated our superiority. Kimmel would
have been a public hero and a fine commander in the war that followed had he not been in
command when Pearl Harbor was attacked. Many books have been written since continuing to
argue the basic political argument the Committee reflected. This hindsight has not changed the
basic fact — our country was unprepared, overconfident and unsophisticated. It took the war to
wake us up.
President’s Committee for Equal Opportunity
in the Armed Forces
President Kennedy appointed me chairman of this significant committee, which included
key black leaders and well-known figures like Abe Fortas. Judge Fahy, before he became a
Judge, had headed a similar committee under President Truman, and this was to follow on as an
update. The committee was given offices at Lafayette Square. I employed some young lawyers,
and we reviewed voluminous records and conducted limited field investigations, sending teams
around the country and to Europe to look at the situation, particularly in Germany, where many
troops were then stationed. We published two reports that still make interesting reading today.
The first concerned opportunities for blacks for advancement from within the Services and the
second dealt with treatment of blacks by the local communities (stores and real estate renters)
where bases were located and their families lived. Secretary of Defense McNamara gave full
support, and our work had some affirmative effects and resulted in several important changes.
It proved to be a lot of work to get the Services to disclose the true facts, and for a long
– 55 –
time I was at the committee offices most mornings giving things a push, scheduling interviews,
and the like. It was soon apparent that the Army was doing the best job, the Navy much less so,
and the Marines were dragging their feet. They even selected a striking red-headed, blue-eyed
junior officer as my contact, but it didn’t work.
The most interesting part for me were the visits I made with Whitney Young, the black
leader and member of the Commission whose name is now on one of Washington’s bridges. He
was a tremendous man, large of size and vision. We got to know each other well while riding
around in an Air Force plane as emissaries of President Kennedy. I remember telling him one
time early on that I really disliked some blacks. He stuck out his big hand and shook my hand
and said to me: “So do I — brother, you are emancipated.” We got along fine and worked in
tandem.
I remember, particularly, a couple of incidents. We went down to a Navy base near
Jacksonville. The way we would approach a field trip was that I would go see the whites and
Whitney would go see the blacks. He told the blacks, among other things, that I was O.K. I told
the whites that Whitney was O.K. Then we would meet with everyone, having hopefully quieted
fears we were acting on preconceptions or coming from different philosophies.
Down at this base, we sat with a fine commander, a pro, the kind of fellow you were glad
was in the Navy, defending the country, and all that. A real experienced officer. We said to him,
first of all, why is it that there has never been a black assigned to the gate as a sentry to control
who comes and goes? We had heard there had never been a black at this visible post. He said,
“That’s not true.” He looked around at his young aides, and they all said it was true. He blew up.
He didn’t know anything about it. Right then and there he issued orders correcting the situation.
– 56 –
Then we said that we had a more serious problem. We had been out around the base and
noted that all of the new quarters on one side of the high railroad tracks were occupied by whites,
and the very old, dilapidated quarters were occupied by black sailors and black pilots. He again
said that it couldn’t be so. We said, “Get in the car; we’ll show you.” We got in the car and we
took him out and showed him.
When I got back to Washington I sent him a wire and said that I was about to report to the
President and I would like to know, within twenty-four hours, what solution he had arrived at
with respect to the housing. I remember there came back a wire telling me that the old housing
had all been destroyed and that he had arranged to place the blacks who were there, along with
some whites, in the area that had been occupied only by the whites.
On a different occasion, we went to a base in one of the Carolinas where the commanding
officer, this was an Army base, had been trying and trying to stop segregation in town. The taxis
would not take blacks to and from the base. Blacks were excluded from the stores, even the
Army-Navy store. These were soldiers defending the country! The Colonel in charge had really
done everything he could to change local attitudes because it was bad for morale. In fact, it was
bad for everything. He hadn’t been able to do much because the Army is trained to keep out of
civilian affairs. Our presence was known all through the town right away, of course. I had been
invited to go down to a meeting of the board of commerce, or whatever they called it, for lunch.
I said I’d thought I’d go down, and that I was going to give them a message. The Colonel backed
me up when I mentioned my plan. The military guys were all with me but felt that the military
should not interfere in local affairs. They had been trained that way.
At lunch, while I was talking about the Committee they asked what I thought of the base
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and what I observed. “Well,” I said, “it looks to me like a pretty efficient base.” I remarked, “Of
course, it’s going to be on the list to be closed.” Boy, did they wake up. They said, “What do
you mean? We hadn’t heard it was going to be closed.” I said, “No, but you understand the
country is retrenching after the war. And one of the things our group is doing is seeing what
bases ought to remain open; and obviously, a base that has the degree of segregation that you’ve
imposed on the troops will be one that I don’t think President Kennedy would put up with.”
“Well, how long are you going to be in town?” I said, “We are leaving in less than twenty-four
hours.”
By that time, I got a message that the situation was changing; and it did change. They
changed it almost overnight. They opened up the stores. They opened up the whole thing. It’s
just amazing when you think of it now. It just needed a bunch of b.s. from me. That’s what it
was. But you have to do something to break some of those old traditions and attitudes. I got a
nice letter from the commander. He said that he wanted to thank me, that morale was much
better on the base. Sure. Of course, it would be much better on the base. Can you imagine, if
you were black, when leave time comes and you would go out looking for a cab and they would
only pick up the whites and leave you stranded outside of town. Today there would be riots.
We got off a couple of good reports. Perhaps the most important step taken based on the
committee’s work was to establish a firm policy, accepted by all branches of the military service,
that if there was segregated housing near a base, whites as well as blacks could not rent for
themselves or their families. We also succeeded in integrating the National Guard, which had
remained segregated in several states, north and south.
As I write this account focusing on my personal experiences, I find it difficult to tell what
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happened because it may appear that I exaggerate my importance, which is not my purpose. This
rather prosaic reference to the committee’s “off base” recommendation is a case in point. Thirty
years ago it was a bombshell that stirred up violent personal attacks and much public comment,
mostly adverse. Inevitably, as happens often, the committee’s work and the endorsement by
Secretary McNamara all became known as the “Gesell Report.” Some prominent southern
senators and congressmen loaded the Congressional Record with a mounting attack, attempting
to justify these claims by drawing me, through public correspondence and challenges, into a
personal debate. I ignored it all, particularly a very persistent rogue from Louisiana who led the
attack on the House floor. Every possible theme was played to exhaustion. Traditionally, the
military was trained to stay out of politics and social affairs. I was pictured as attempting to
make each serviceman a political agent beating the drums for blacks. It was claimed this ignored
military needs, weakened national defense, interfered with states’ rights, would cost taxpayers
money, involved the military in the segregation battle, weakened enlistments, denigrated men in
uniform, and resulted in closing southern bases so skillfully and strategically placed at the
invitations of Senators Stennis and Vinson. This twaddle is difficult to believe.
Today, integrated off-base housing and facilities near bases is accepted as obviously
desirable for the communities involved as well as the servicemen.
Gradually the attacks receded. Legislation to set aside the proposals failed in both
Houses. It was not pleasant to be on the receiving end of the tumult, but I simply grinned and
kept my mouth shut and it finally went away. A thumbs-up from Whitney Young was worth the
unsought prominence. The loudest and most unfair attack came from senators and congressmen
in the Deep South, but it should be noted that when my confirmation came before Senator
– 59 –
Eastland he never mentioned this facet of my career four years later.
Judicial Council Committee
At the time President Johnson nominated me to the court and for about two years before, I
had been spending a great deal of time assisting on various plans to reorganize the D.C. Court
system in my role as chairman designated by the Circuit to provide input from the Bar.
Originally Chief Judge Bazelon called me over and asked me if I’d do the job. While I
was talking with him about it he said to me, in effect, “You know, if you take this job, I’ll hate
you before its over.”
“Why is that,” I asked.
“Well,” he said, “I’ll get angry, I’m sure, with you and we’ll have a lot of rows.”
I went back and thought about it and wrote him a letter saying I would not take the job
unless I was the unanimous selection of the entire Judicial Council.
This helped me. Judge Tamm told me later that was a smart way to start. There was a
wonderful bunch of people who agreed to help at my request. Many of them are now judges: Pat
Wald, June Green, Tom Flannery, Barrington Parker (deceased), Paul McArdle (deceased), and
others. They worked on various studies and were members of the committee. Later the Council
met, and I was unanimously asked to be chairman. We had meetings with many practicing
lawyers who gave us the benefit of their specialized experience and pitched in to do some of the
work. Gradually we sketched out the general direction that we thought the reorganization ought
to take.
There was a mess over at the local courts. Aubrey Robinson was judge for the juvenile
court, which consisted of three judges, but they would not even all talk to each other at once.
– 60 –
Each of the other judges would talk to Aubrey, a sensible, talented leader, but the other two
would not talk to each other. We urged that this court be abolished, along with some other
special courts, and that greater jurisdiction be given elsewhere. We worked out some of the
provisions for transition. Joseph Tydings, who was in the Senate then, was very active in trying
to bring this about, as was Ramsey Clark, the Attorney General. Clark worked very closely with
us. By the time I left to become a judge, we had finally broken down the problems and, after
examining various state courts around the country, we came up with two basic recommendations.
One was that the United States District Court should give up the master calendar and go
on the individual calendar, which is, I think, the biggest single internal administrative change
made in that court for many years. The other was to free the U.S. District Court of much of the
purely local business and thus to make it a more truly federal court.
We felt we needed to get an outside outfit to come in and pull together a lot of the
material we had gathered during our studies — get the statistics and information as to how the
business ought to be divided between courts and the mechanics of transition. We had started
raising that money, and after I left the money was raised. The committee continued and the
report was finally accepted in all respects.
And that was a very interesting project. We met with judges, almost every judge in one
way or another, all over the city. We talked to many practicing lawyers. We would have
sessions related to juvenile justice, divorce, the nature of the business of the District Court, night
court, all those different things. We met every week. I found it time-consuming, but worked
hard because it was very important. This project was the most active thing I did in terms of the
local Bar. I was also active in the early organization of the American College of Trial Lawyers
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and one of its original D.C. members.
Personalities
Before being nominated to the court, it was my special fortune to become involved over
the years with some of the leading personalities of the time. While I can add nothing of
consequence about these extraordinary men, my contacts will suggest how informal and exciting
it was to be part of Washington in the days before Pearl Harbor. There were three such men in
particular who influenced and heightened my continuing concern with public affairs and desire to
be involved: Dean Acheson, Felix Frankfurter and Louis D. Brandeis, all Harvard lawyers at the
beginning of their careers.
Dean Acheson became a close friend as we were brought together in common
undertakings at the firm over the years and before. I admired him and reveled in his company
whenever he let me behind his outward aloofness and sometimes haughty manner. Inside he was
a warm and caring person, full of fun, perceptive, with an eye for the bizarre and he loved to
“undress” stuffed shirts with his penetrating wit and control of the English language. We were
on opposite sides in the Richard Whitney matter but shared a common view of Whitney and his
ilk. Riding back from New York on the fast evening train, the Congressional, we would sit
together, have a drink while we laughed over the doggerel he would compose summarizing the
day’s events.
When we, much later, became partners, we often walked home together, and there were
many enjoyable lunches at his Maryland farm where he gardened and made beautiful furniture in
his shop. I met many interesting people at Dean’s house. We lived near each other and
sometimes he had me drop in for a drink on the way home. Usually others were there, including,
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often, Felix Frankfurter, who loved to banter with Dean, or one of the bright Acheson children.
I met Felix Frankfurter under unusual circumstances and came to know him as a person
as time went on, through Dean, by personal contacts, and as a Justice sitting on cases I argued or
worked on before the Supreme Court. He was a firecracker of a man, and I could never figure
him out. That he was complex, volatile, egotistical and far from a shrinking violet is apparent
from the many conflicting glimpses of his extraordinary personality released since his death. For
my part, I enjoyed being around him as he expatiated, but often winced when he sat on one of my
cases.
When I was working for the SEC on the Whitney case, the telephone rang one day and I
picked it up in the office. A voice said, “This is Felix Frankfurter. I wonder if you’d have lunch
with me?” At first I couldn’t remember who Frankfurter was. I had forgotten. I had read one or
two of the articles he had written on federal jurisprudence and on Sacco and Venzetti. When I
kind of paused, he said, “I’m a professor at Harvard Law School. I want to talk to you.” I said,
“Fine.”
So I met him at what was then the Powhatan Hotel, which later became the Roger Smith
Hotel across from the SEC offices at 19th Street and Pennsylvania Avenue. We were in an old
building that has since been torn down. So I just went across the street.
When he got to the point, he said, “I’m teaching evidence at Harvard Law School. I have
been reading in the New York Times the verbatim transcripts of your questioning in the Whitney
case. I called up Thurman Arnold at Yale and I said, ‘Who’s this fellow Gesell?’ And Arnold
told me that you were just a “C” student and just a typical Yale Law student, there wasn’t
anything very special about you at all. I can’t understand where you learned to question a witness
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so succinctly and how you get at the subject matter without getting rattled or taken off the track
by the answers.”
I said I didn’t know. Nobody taught me that. That’s just the way I ask questions.
He said, “I’ve got to find out about it, because I think we’ve got to get people up at
Harvard to learn how to do that.”
I said, “Well, I don’t know. I can’t help you.”
We got to be friendly and chatted. Then he said, “By the way, how would you like to
meet Brandeis?”
I jumped at the chance, saying, “God, I’d love it.” As a result, I got invited with some
regularity, Peg and myself, to the Brandeis teas.
I had another very special relationship with Frankfurter. Naturally, some of his clerks
wanted to go back to Harvard to teach. He would land on them with both feet and say, “You’ve
got to spend a year with Gerry Gesell before you do it. You won’t be any good as a teacher if you
don’t know something about the trial practice.” He had always felt he had learned a great deal
from being an Assistant U.S. Attorney.
So, Covington was in a situation where we would take one of his clerks, and they would
work with me for about a year and a half, and then go on to Harvard. Al Sachs worked for me
for a year and a half. So did Abe Chayes. Frankfurter was curious and would follow up and ask,
“How are they doing? Are they making any sense? Are you giving them a real chance?” All
this kind of stuff.
I used to be in his chambers occasionally. He dictated right to the typewriter. The
typewriter was on wheels. He rarely made carbons. He would write, I guess, ten, fifteen letters a
– 64 –
day –notes, little things, like, saw about you in the New York Times. And I was down there
several times and saw that process. I can’t remember why I was there.
As I have indicated, he was a pain in the neck sometimes when you were arguing a case.
He could lose a case for you quicker than anybody by agreeing with you too much during
argument. I was arguing a case up there one day in the Supreme Court and he agreed with me
one hundred percent. And he kept rubbing it in until he alienated several of the Justices. He
never ceased being a teacher and did many kindnesses for young people, as he did for me.
I came to know Brandeis quite well later when I was doing insurance work for the
Temporary National Economic Committee. He had been the person who had developed Savings
Bank Life Insurance in Massachusetts and, of course, was a man who was against bigness in any
form. We were directing our attention to the bigness of the Metropolitan and Prudential life
insurance companies, particularly because they were then considered enormous. Metropolitan
was five billion dollars of assets, and I think that Prudential was about four billion — examples of
concentration of economic power.
When I had succeeded in displaying how that power was obtained through salesmen
forging ballots, this tickled Brandeis to death. And he wrote me letters about it, and I’d go out
and see him and he would chuckle about it and we’d talk about how the hearings were
progressing.
I remember telling Brandeis how I sent the investigators up to Metropolitan Life at the
beginning. The company had a beautiful, big building up in New York. I told Brandeis the story
of what happened when the investigators arrived, which he thought was very funny.
Company officials greeted my crew and cordially said, “Now, is there anything we can do
– 65 –
for you? This is an extraordinary building and we’re very proud of it. We have a big conference
room. Would you like to see that? It’s where the directors meet. We also have the largest
kitchen and dining facility of any building in New York City.”
And my fellow, Blumquist, who was the chief investigator, said, “Well, I’d like to see that
kitchen. I cook for my wife, and I’d like to see the kitchen.”
They couldn’t find it. They didn’t know what elevator to take to get to it. And all these
vice presidents suddenly were running around and calling their offices, saying, “What floor is the
kitchen on, and where is the dining room?”
Well, I told Brandeis that. He really thought that was funny.
At the teas I met people who became my life-long friends. Two of my partners were
Brandeis clerks, in addition to Dean, and that is where I met Joe Rauh, for example. My
acquaintances expanded enormously with the kind of people at the teas because almost nobody
was coming down to Washington from Yale, and I didn’t know many people. This really opened
up friendships for me and I also met several interesting people, including Henry Wallace, Ma
[Frances] Perkins. Although the cookies were terrible and the tea cold, the teas were always a
high point never to be missed.
Brandeis was getting feeble but he was still an advocate for his points of view and very
interested and informed about what was going on everywhere — full of questions, many of which
I couldn’t answer. He had a great curiosity. Although he was in his declining years, he was still
very influential. My limited contacts were a very special experience I will never forget.
– 66 –
Politics
My father was a Wilsonian Democrat, and my instincts seem to have always put me on
the side of the Democrats. Indeed, for a while I was a member of the Democratic Central
Committee for D.C., after being elected, until defeated a few years later. When Averell
Harriman and Hubert Humphrey campaigned for D.C. delegates, I was actively supporting their
campaigns with both routine work and some money.
My principal local concern was to try to get the citizens of D.C. a vote. A small
committee, headed by Walter Washington, who later became Mayor, and Mrs. Marshall
Hornblower was formed and as one of several lawyers in the group I met at night at the
Hornblower home or at the old Occidental restaurant for lunch. We drafted proposed legislation,
helped to develop strategy on the Hill and some of us (not me) lobbied vigorously. Eventually
we won, but I can take little credit because my practice kept me on the road.
Nationally, I was an advance man for Stevenson during his second campaign and traveled
on the campaign plane from Portland, Oregon, down through California and on to Phoenix and
then to Boston. After tutelage from Oscar Chapman and Jim Rowe, the wise, old campaign men,
I spent a week in Portland, Oregon, setting up the visit. No help. No sleep. Too much to do.
Bobby Kennedy came in on the campaign plane, undoubtedly learning what to do and, mostly,
what not to do. Months later I set up a big rally in Los Angeles for Stevenson on another trip
West.
I had nothing to do with the Kennedy campaign. My sympathies were with Humphrey.
When Johnson ran, Jim Kellogg, Chairman of the New York Stock Exchange and a close friend,
and I were asked to line up “Intellectuals for Johnson.” This was to offset the false claim that
– 67 –
Johnson was simply a country hick. We wrote out a full-page ad and solicited signatures of
support from college presidents, Nobel prize winners, and the like. Whether it got a single
additional vote I, of course, have no way of knowing. Somebody must have been pleased
because I became chairman of the Credentials Committee at the Inauguration after Johnson won.
I had an office and staff for a short time and controlled the sale of souvenirs along the parade
route. This earned me a seat in front of the White House to watch the parade close to the stand
where the President took greetings from everyone passing by.
These experiences gave me a chance to see politicians at work, to learn how complicated
the election process is, and to respect those who succeed in the very controversial, sometimes
even violent context in which they practice their art. It greatly broadened my acquaintance with
varying ranks of people, high and low, and convinced me irrevocably that I never wanted to run
for office.
This was the last of my politicking, except for some interesting contacts with President
Kennedy, Bobby Kennedy and President Johnson.
My relationship with the Kennedy Administration was mixed. The record of John and
Bobby did not impress me. I was working for Humphrey and bitter over the way the Kennedys
stole the key West Virginia vote. In spite of this, when Kennedy was elected (he then lived
directly across the street from me, but I didn’t know him), the cabinet search committee,
consisting of Sargent Shriver and Harris Wofford, had me listed toward the top as possible
Attorney General. No one ever spoke to me about this idea, but it leaked out to the New York
Times. Harris Wofford was an old friend and although there was nothing to it, Peg and I were
watching the appointment process because Kennedy was making all the appointments on the
– 68 –
front steps right across from our house. Peg would call me at the office and say, he just
appointed McNamara, let’s say, the head of Defense. I’d hurry over to the Metropolitan Club for
lunch where everybody was wondering who was going to be Secretary. Well, I’d opine it’s a
tough thing, but my sources tell me it’s going to be McNamara. Soon I would be confirmed in an
early edition of the Washington Star. After a while, I was considered quite a guru, so much so
that Arthur Krock even came up and asked me how I had found out so much.
In any event, we were all waiting for his announcement about the Attorney General, not
believing it was going to happen, but yet it was dangling out there. Then all of a sudden the
President decided that instead of sending Bobby to be McNamara’s right-hand assistant, that he
needed some legal experience and he was going to be Attorney General.
I had met Bobby because he rode the Stevenson campaign plane when I was advance
man, but I didn’t know him. He kept very much to himself then. After he became Attorney
General he asked for my advice about the post of Assistant Attorney General for Civil Rights,
and I talked with him about Burke Marshall. Several friends went to work for Bobby, including
two of my other partners, John Douglas and John Jones. President Kennedy telephoned me and
offered me the job of Assistant Attorney General, Criminal Division; and I said no immediately,
remarking that I didn’t want to play “cops and robbers.” I did not say more but I was suspicious
of Bobby with his McCarthy connections and unconstitutional vendetta against that bum, Hoffa.
Later, Bobby asked me to prosecute U.S. Steel for price-fixing and I said no, telling him Roger
Blough, the president of U.S. Steel, was a friend; we had worked together closely at Yale in
alumni affairs. Still later when the President made me chairman of the Committee on Equal
Opportunity in the Armed Forces, Bobby called me over asking me to lay off integration of the
– 69 –
National Guard for political reasons. I told him I worked for his brother, not for him.
I’m sure I misjudged Bobby and that he reached a taller stature later, but we didn’t mesh.
He was a complex, sensitive man who grew with experience.
Nominated and Confirmed
When President Johnson nominated me a U.S. District Judge for the District of
Columbia, our paths had crossed only in a couple of ways. Sometime in the early ’40s, I had had
dinner with him and Lady Bird at Ganson Purcell’s house, just the six of us. Ganson Purcell,
later head of the SEC, knew him well because Purcell had been staff counsel to the Senate and
had come to know Johnson in that connection. Johnson was then a young congressman. He
wasn’t even in the Senate. It was just a pleasant evening, nothing of any consequence.
Then when Kennedy was killed, after a reasonable interval had passed, I called up Bill
Moyers at the White House and said I wanted to come over to see whether the President wanted
me to continue as chairman of the Committee on Equal Opportunity in the Armed Forces. I
didn’t know Moyers, but I thought from what I had read in the paper he was the guy to see. He
was sort of, at that time, the administrative assistant to Johnson in the White House.
When I got over there, Moyers said, “Mr. Gesell, the President wants to see you.” I was
surprised and pleased. I hadn’t expected to see the President. After a few minutes, President
Johnson came out and put out his hand, “Well, Gerry,” he said, “how the hell are you?” He was
one of those Jim Farley types, who never forgets anybody’s first name. He remembered it all the
way from having met me once at Purcell’s. He may have heard my name because I had worked
in his campaign. Whether he ever knew I had anything to do with the campaign I don’t know.
He asked me to continue as chairman and wrap it up.
– 70 –
I had one other rather extraordinary meeting with him before I was nominated. He was
having a meeting of black leaders in the Oval Office and he wanted me to be present. Of course,
I went over to the White House. Burke Marshall was there, and Whitney North Seymour, the
father, the real Whitney North Seymour, was also there. All around the oval table were black
political leaders from Chicago, Texas, New York, Kansas City, various parts of the country.
There must have been ten of them. I didn’t know what the meeting was about at first but it was
soon apparent.
When President Johnson came in he said, “Now, the purpose of this meeting is to explain
to all of you why I haven’t appointed more black judges.”
He said, in effect, to put it right on the table, its your fault. You’ve been sending me the
most outrageous names that I couldn’t possibly get one of them through on the Hill. You’ve got
to get out and get some decent candidates so I can appoint them.
The President didn’t have a note in front of him. He was all alone, except for a
photographer who hovered around.
One fellow spoke up, I remember, and said, “Well, I sent you [so-and-so].”
“Yeah,” and he said, “you know what the FBI told me?” Johnson reeled off three or four
devastating facts about this fellow’s past.
Then he picked on a fellow from Texas. And he said, “You’re sending me tripe up here.
You don’t realize what a job I had to get a Jew on that court down there.”
And he went all around, berating each one. They were obviously beginning to get kind of
angry with him because the tone had gotten sort of antagonistic to blacks. Johnson wasn’t. He
was simply talking dirt politics. I began to wonder what I was doing there. I had nothing to do
– 71 –
with the whole problem.
Then he pointed his finger at me, and said, “Do you hire any blacks in your law firm?” I
said, “No.” I said, “Do you want to know why?” He said, “Yes.” I said, “We won’t take
anybody that we don’t think will be a partner. We’re not going to have token blacks in our law
firm. As soon as we get our hands on someone that we think can make the partnership, we’re
going to take him.” Whitney North Seymour said, “That’s our view.” We both said we were
looking very hard.
He turned to the other fellows and said, in effect, you see, you’ve got to send me lawyers
or bankers with law degrees. People who amount to something. You can’t just send me
somebody who is going around passing stuff out at voters’ doors and expect that I am going to
appoint them to be a federal judge.
Then he said something to Burke, who headed the Civil Rights Division at the Justice
Department. And Burke, in a quiet way, said, “Well, I think there are people in all of these cities,
and I’d be willing to be helpful in identifying them.” So then Johnson began, and said, “Well,
we’re moving along.” And Burke said, “You have appointed some blacks.” Burke was being
helpful. “Yes,” he said. And he remembered a couple. Burke said, “And you appointed
Spottswood Robinson.” President Johnson looked at him straight faced and said, “I didn’t know
he was a black.”
Well, that went on awhile, then it began to get kind of humorous. Everybody got the
message. We were breaking up. As he was leaving, he stopped at the door, saying, “And, by the
way, I forgot. I put Marshall on the Supreme Court. Oops!” And he walked out. Of course, he
hadn’t sent his name up yet. Classic Johnson!
– 72 –
Then I received the most important telephone call in my life. One evening I’m at home
packing to go to Los Angeles for Procter & Gamble, one of the clients I was working with. I was
going to go out to Dulles and get a night flight. The telephone rang and Peg said it was the
White House. The President was soon on the telephone. He said, “Gerry, how the hell are you?”
And I said, well, I was fine. He said, “How would you like to be a judge?” I hadn’t applied for
any judgeship anywhere. I kind of stopped and blurted out, “What court are you talking about?”
And he said, “The D.C. United States District Court.” And I said, “Well, I don’t know. I guess
so. I guess it would be all right,” or something like that. I was utterly dumbfounded. He said,
“Don’t be surprised, then, if a lot of FBI agents are sneaking all around asking about you.” I said,
“Thank you very much, Mr. President.”
I didn’t tell anybody at the firm. First of all, I didn’t know if Johnson meant what he’d
said or anything else. And I knew that you had to keep your mouth shut with Johnson because if
he had something planned and it became prematurely public, he would get very angry about it.
So I didn’t tell my partners. I didn’t tell anybody. And I went on that night flight out to Los
Angeles.
Well, it turns out that our neighbor had been a secretary for Johnson at one time and had
married a congressman from Texas, who was living down the block. She telephoned a few days
later, saying, “The other night the President called me and he wanted to know whether you have
any wild parties going on in your back yard, and what kind of a fellow you are.” And she said, “I
figured something was up. I told him, no, that you weren’t a drunk and that things went along all
right at your house. He seemed reassured,” she said. Mine was truly a personal presidential
appointment.
– 73 –
I have since found out what happened. At least, I believe it’s correct, but I can’t prove it.
Ramsey Clark was Attorney General. He recommended me to be Solicitor General. He sent
over to the President a full presentation about my qualifications for Solicitor General. I didn’t
know about it. He never talked to me about it. I didn’t know Ramsey Clark, except during the
Judicial Council study. But I think everybody understood, from the kind of life I’d lived, that
Solicitor General would be something that any trial lawyer in a similar situation would seriously
think about.
Johnson then called in Clark Clifford, so I’m told, and said, “What do you think about this
fellow Gesell for Solicitor General?” And Clark Clifford said, “Well, he’s a good lawyer. He’s a
damn good lawyer. But you ought to get somebody of distinction.” Which was a perfectly
proper “put down” comment on his part. I wasn’t a person of distinction.
And Johnson asked, “Like who?”
He said, “Like the dean of a law school.”
So Johnson said, “Well, what’s the best law school?”
Clifford apparently said Yale right then was considered the best law school.
They looked up the dean of the Yale Law School, who is now a judge up in Philadelphia.
Johnson quickly found out that he was against the Vietnam War. That was the end of that. His
opportunity to be Solicitor General disappeared down the drain. Then he came to Griswold, the
Harvard Dean. Griswold accepted. He’d been very active before the Supreme Court and was a
very distinguished man. Griswold got the appointment.
What I understand then happened was that there was a vacancy on the U.S. District Court
in D.C. There had developed a lot of hard bickering between different Senators who wanted to
– 74 –
put somebody there. Apparently Johnson didn’t like to hurt anybody’s feelings unnecessarily and
he wanted to make an appointment that would be generally acceptable to put an end to this thing.
And here was this fellow Gesell. He had all this write-up about him from Ramsey Clark. He
sounded like a good one to be a judge. So he decided. He never talked to Ramsey Clark about it.
I never received a recommendation from the Justice Department. It was the President’s own
personal choice. And so he decided to put Gesell in that job, telephoned and did it.
All this just came out of the blue as far as I was concerned. I had a good friend, Jim
Rowe. Jim was close to Johnson. I’m sure that Jim in some way or another was consulted at
some stage. But I never told Jim or anybody else to help me be a judge. That is how it
happened. And so I never had to go around and talk to members of Congress or discuss how I
would decide something.
I went down before Senator Eastland’s subcommittee. I had raised Cain down in
Eastland’s district with the Equal Opportunity in the Armed Forces inquiry. They had Leander
Perez down there. It was a bad situation for blacks locally. Many whites thought I was having
the military take over private life, and there had been personal attacks on me in the newspapers
and on the committee. So I didn’t know what was going to happen. I didn’t have any sponsor. I
didn’t know any senator well enough to ask him to say a good word for me. So I asked Mr.
O’Brian, my partner, to go down with me because I had to have somebody down there with me. I
went down to the confirmation hearings with O’Brian and Peg, not knowing quite what to expect.
It turned out there was a list of several people up for confirmation. Eastland sat there. He
had his cigar in his mouth, most of it chewed up, you know. The first guy that got up was a nice
looking guy. He had four redheaded kids with him and a redheaded wife. And he came from
– 75 –
upper New York State. And he looked like a fine person. I’m sure he was. Eastland looked at
him and said, “What do you know about the civil rules of procedure?” Obviously he was in a
testy mood.
Then the fellow gave some answer that indicated that he didn’t have much practical
experience. And before it was over, it was perfectly clear that fellow was in trouble. I believe he
never did get confirmed at that time.
Next somebody else stood up and Eastland was at the same old business. Well, let me
see what the Bar Association says about you. I began to think, God, what am I doing here, I
didn’t know what was going on.
Finally he called my name. I stood up. He said, “Mr. Gesell, you have the best FBI
report that I have ever seen in this job. Welcome to the federal judiciary.” And then he said to
the staff, “Let me see that Bar Association rating.” And they handed him up the D.C. Bar rating.
Well, the D.C. Bar had been a little mediocre about me. After all, I came from Covington &
Burling. “No,” he said, “I want to see the ABA.” He holds it up and it says, “Exceptionally well
qualified.” He read it out. He gave it back to the clerk, “Welcome, again.”
I went through the subcommittee, the full committee and the Senate all in one day. They
were about to adjourn. Somebody put it on the fast track. Eastland, or the President, or
somebody. I had no waiting around or anything else. Eastland gave me no trouble. There were
two other members of the committee. One was a Florida Senator, George Smathers. I knew
Smathers because I had been chairman of the board of St. Alban’s School, and he was a member.
So he gave a flowing speech about what a wonderful person I was. He didn’t know anything
about me, really. The third Senator was a Republican, Hruska, who had been on the Kefauver
– 76 –
committee. He never said a word. When I got outside, he came up to me and said, “I was all for
you, Gesell, but you know, I am a Republican, I thought I’d better keep my mouth shut.” So I had
a very easy confirmation. My commission was signed December 7, 1967; and I took the oath of
office that day.
-A1-
INDEX
Note: Gerhard A. Gesell is referred to in index entries as G.A.G.
Acheson, Dean (District of Columbia attorney and Secretary of State), 21, 32, 36
G.A.G. appraisal, 61-62
African-Americans, 70-71
Agriculture, Department of, U.S., 26
“America Firsters,” 45, 47, 52-53
American Bar Association (A.B.A.), 75
American College of Trial Lawyers, 60-61
American Football League, suit against National Football League, 42
American Red Cross, 42
Anderson Fellowship (Yale Law School), 12-13
Andover – See Phillips Andover Academy
Andrews, Neil (SEC attorney), 17
Antitrust law, 37-38, 41-42
Alibi defense, 38-41
Armed forces, U.S., integration of, 54-59
Army, U.S., 54, 55, 56-57
Arnold, Thurman (Yale Law professor), 7-8, 62
Folklore of Capitalism, 8
Mayor, 8
Methodology, 8
Procedure I, II, III, 8
Symbols of Government, 8
Trial lawyer, 8
Atlanta, Georgia, 2, 17, 29
Atlantic City, New Jersey, 38
Attachment (legal doctrine), 10-11
Austern, Thomas (District of Columbia attorney), 33
Awards
Edward J. Devitt Distinguished Service Award, i
Henry Fellowship (Yale), 3
Baltimore, Maryland, 37
Bar examination, 12
Barkley, Alben W. (U.S. Senator, Kentucky), 46, 49-50
Bartow, Mr. (J.P. Morgan partner), 19
Bazelon, David L. (U.S. Circuit Court Judge), 59
Belasco Theater (District of Columbia), 42
Biggs, Mr. (Justice Department attorney), 40-41
-A2-
Bills and Notes (Yale Law School course), 8, 9
Black Forest (Germany), G.A.G. visits, 4
Blough, Roger (president, U.S. Steel), 68
Blumquist, Mr. (TNEC investigator), 65
Boston, Massachusetts, 66
Brandeis, Justice Louis D., 61, 63
G.A.G. appraisal, 64-65
Brennan, Justice William J., Jr., 26
Bress, David (District of Columbia attorney), 44
Brewster, Kingman (Yale University president), 12
Brown, Alex, & Sons, 34
Brown, Doris (G.A.G.’s secretary), 38
“Bucket shops,” 16-17
Burger, Chief Justice Warren E., 26
Burling, Edward (“Eddie”) (District of Columbia attorney), 32, 33-34, 36, 43
Burns, John (“Johnny”) (General Counsel, SEC), 15
California, 66
California Street, District of Columbia, 28
Callahan, Timothy “Big Tim” (SEC attorney), 16, 17
Cambridge University, 3
Capitol Hill, 38, 41, 66, 70
See also Congress, U.S.; House of Representatives, U.S.; Senate, U.S.
Cardozo, Justice Benjamin Nathan, 5
Growth of the Law, 5-6
Nature of the Judicial Process, 5-6
Cardozo, Michael (TNEC attorney), 23
Carothers, Hamilton (District of Columbia attorney), 42
Case method, use of, in legal education, 6
Chandler, Jefferson (G.A.G.’s grandfather), 3
Chapman, Oscar (Democratic politician), 66
Chayes, Abram (attorney and professor, Harvard Law School), 63
Chemical firms (British, French, German), 36
Chesapeake & Ohio (C&O) Canal (District of Columbia), 25
Chicago, Illinois, 37, 70
Children’s Hospital, District of Columbia, 30, 45
China, 42
Communist, 53
Churchill, Winston S. (British Prime Minister), 46
Cincinnati, Ohio, 37
Civil Aeronautics Board, U.S. (CAB), 37, 41
Clark, Judge Charles E. (former dean, Yale Law School, and U.S. Circuit Court Judge), 20
Clark, Ramsey (U.S. Attorney General), 60, 73, 74
-A3-
Clark, Samuel (SEC trial examiner), 20
Clifford, Clark (District of Columbia attorney and Secretary of Defense), 73
“Cold War” (1946-1991), 44
Coleridge, Samuel Taylor (poet/essayist), 3
Columbia Law School, 26
Communist witch hunt – See McCarthyism
Congress, U.S., 38, 53, 74
See also Capitol Hill; House of Representatives, U.S.; Senate, U.S.
Connecticut, 9, 14, 15
Bar, 15
Bar examination, 12
Connecticut Law Journal, article by G.A.G. in, 10-11
Contract law, 8
Corby Court (fraternity, Yale Law School), 11-12
Corcoran, Thomas (District of Columbia attorney) 21-22
Covington, Mr. (“Judge”) (District of Columbia attorney), 33, 34-36
Covington & Burling (District of Columbia law firm), 21
G.A.G. practice with, 24, 28, 31, 32-45, 46, 63, 75
See also G.A.G.: Professional
Cravath, Swaine & Moore (New York law firm), 7, 25
D. C. Circuit’s Advisory Committee for Reorganization of the Local Court System –
See U.S. Courts, D.C. Circuit, Advisory Committee for Reorganization of the Local
Court System
Davenport, Dr. (TNEC sociologist), 23
Davis, John W. (New York attorney), 19-20
Davis, Polk & Wardwell (New York law firm), 19-20
Depression, Great (1929-1941), 4, 6, 10, 14, 15
Detroit, Michigan, 16, 17, 37
Dewey, Thomas E. (politician and public official), 5
New York district attorney, 21
Diamond Head, Hawaii, 51
District of Columbia, 11, 14, 18, 32, 37, 56, 65
Bar, 34, 44, 59, 60, 75
During New Deal, 28-32, 44, 61
During World War II, 42, 44
Segregation, 30-32
Douglas, John (District of Columbia attorney), 68
Douglas, Justice William O., 24-26
Attorney at Cravath, Swaine & Moore, 7
Chairman of Securities and Exchange Commission, 20-22, 24-26
Presidential candidate, potential, 25
Public Control of Business course, 7
-A4-
Supreme Court Justice, 7, 25-26
Yale Law School professor, 7, 24
Dulles, John Foster (New York attorney and Secretary of State), 4
Dulles International Airport (District of Columbia), 72
DuPont du Nemours, E.I., Company, 32, 34, 35, 42
Cellophane monopoly case, 38
Dye cartel case, 38
Justice Department investigation, 36-37
Eastman, James O. (U.S. Senator, Mississippi), 58-59, 74-75
Hearings on G.A.G., 74-75
Europe, 4, 54
G.A.G. tours, 4
Evidence (Yale Law School course), 8-9
Fahy, Charles (U.S. Circuit Court Judge), 54
Far East, 44
Farley, James A. (“Jim”) (Democratic politician), 69
Federal Bureau of Investigation, U.S., 39, 70, 72, 75
Federal Court – See U.S. District Court
Federal Reserve Board, U.S., 37
Federal Rules of Civil Procedure, 75
Federal Trade Commission, U.S., 37
Ferguson, Homer (U.S. Senator, Michigan), 46-47, 49-50, 53
Flannery, Thomas Aquinas (U.S. District Court Judge), 59
Florida Humus securities fraud, 18-19
Flynn, Jack (SEC attorney), 16, 17
Fortas, Justice Abe, 54
Frank, Jerome (New York attorney, U.S. Circuit Court Judge), 24, 26-28
Agriculture Department, 26
Columbia Law professor, 26
SEC Chairman, 26-28
Frankfurter, Justice Felix, 61
G.A.G. appraisal, 62-64
French code traffic during World War II, 50
Fuess, Claude Moore (teacher, Phillips Andover), 2
Gainesville, Georgia, 17
Galiher, Richard (“Dick”) (District of Columbia attorney), 44
General Electric price-fixing case, 38-42
General Motors, 35
General Welfare Series (Home Library Foundation), 18
Georgetown (District of Columbia), 31
-A5-
Georgia, University of, 2
Germany, 4, 54
Code traffic during World War II, 50
G.A.G. visits, 4
Gesell, Gerhard (father of G.A.G.), 14, 66
Gesell, Gerhard A.: Personal
Chandler, Jefferson (grandfather), 3
Education, 2-3
Phillips Andover, 2-3
Yale College, 2-4
Yale Law School, 4-13, 24, 62
Gesell, Gerhard (father), 14, 66
Gesell, Marion (Peg) (wife), 17, 28-29, 31, 32, 42, 63, 67-68, 72, 74
Influence of Yale Law School, 13, 24
Matthews, Mr. (uncle), 11
“My Jealous Mistress, 1932-1984,” i
Parents, 2
Phillips Andover, 2-4
Travel, 4
World War II, 42
Yale College, 2-4
G.A.G. as English major, 2-3
Gesell, Gerhard A.: Professional
American College of Trial Lawyers, 60-61
Awards
Anderson Fellowship (Yale Law School), 12-13
Edward J. Devitt Distinguished Service Award, i
Bar memberships
Connecticut, 12, 15
District of Columbia, 34-35
U.S. Court of Appeals for the D.C. Circuit, 34
U.S. Supreme Court, 34
Career choice, 3-4
Connecticut Law Journal, article on attachment in, 10-11
Corporate clients, 36, 37
Bank of America, 37
DuPont, 32, 34-35, 36-37, 38, 42
General Electric, 37, 38-42
Grace, W.R., 37
IBM, 37, 49
National Football League, 37, 42
Pan American Grace Airways, 37, 42
Parke-Davis, 37, 43
-A6-
Procter & Gamble, 37, 72
Scott Paper, 37, 38
Southern Railway, 28, 37
The Washington Post, 37, 42, 43
Transamerica, 37
Upjohn, 37
White Motor, 37
Covington & Burling (1940-1967), 24, 28, 31, 32-45, 46, 63
Antitrust alibi defense, 38-41
Antitrust cases, 37-38, 41-42, 43
DuPont investigation, 36-37
Functions and responsibilities, 36, 43
Libel cases, 43
Partner, 33
Salary, 33-34
Declines appointment as Assistant Attorney General, Criminal Division, 68
Early employment, 2
Influence of Yale Law School, 13, 24
Law clerks, 13
Lie detectors, G.A.G. memo analyzing unreliability, 41
Methodology, 8
New Haven Legal Aid Bureau, 9-10, 11
Portrait at Yale Law School, 12
Protecting Your Dollars (1936), 18
Securities and Exchange Commission (1935-1940), 13-28, 33, 34, 62
General Counsel’s Office, 15
Responsibilities, 16, 29-30
Kopald-Quinn case, 17-18
Salary, 33-34
Technical advisor to Chairman, 24
Whitney case, 18-21, 32
Solicitor General, considered for, 73
Special Counsel to Joint Congressional Committee Investigating the Pearl Harbor
Disaster, 45-54
Resignation, 50, 53
Teaching at Yale Law School, 13
Temporary National Economic Committee (TNEC), 22-24, 64
Functions and responsibilities, 22-23
The New York Times, 2
U.S. District Court for the District of Columbia, 12
Nomination and confirmation, 69, 72-76
Gesell, Gerhard A.: Public Service
Chairmanships
-A7-
D. C. Circuit’s Advisory Committee for Reorganization of the Local Court
System, 45, 73
President’s Committee on Equal Opportunity in the Armed Forces, 45, 54-59,
68-69, 74
“Gesell Report,” 58-59
Committees and boards, 12
Beauvoir School board, 45
Children’s Hospital board, 45
Community Chest board, 45
Executive Committee (Yale Law School), 12
Madeira School board, 45
St. Alban’s School board, 45, 75
Yale Law School Association of Washington, D.C., 12
Yale Law School Special Gift Funds Campaign, 12
Yale University Council, 12
Political activities, 66-69
Advance man, 1956 Stevenson campaign, 66
Chairman, Credentials Committee, 1965 Presidential Inauguration, 67
District of Columbia local government, 66
Humphrey campaign (1960), 66, 67
“Intellectuals for Johnson” (1964), 66-67
Gesell, Marion (“Peg”) (wife of G.A.G.), 17, 28-29, 31, 32, 42, 63, 67-68, 72, 74
Goebbels, Dr. Josef (German propaganda minister), 5
Goering, Hermann (German air minister), 5
Gordon, Spencer (District of Columbia attorney), 44
Grand Rapids, Michigan, 37
Great Neck, Long Island, N.Y., 19-20
Green, June Lazenby (U.S. District Court Judge), 59
Griswold, Erwin (dean, Harvard Law School, and Solicitor General), 73
Haley, Mr. (SEC Commissioner), 27
Halsey, Admiral William F., 51
Hand, Learned (U.S. Circuit Court Judge), 32
Hartford, Connecticut, 11, 14
Harvard Law School, 15, 24, 35, 61-63, 73
Hawaii, 51-52
Hitler, Adolf (German dictator), 4-5
“Hitler” ballot, and insurance industry, 23
Hoffa, James R. (president, Teamsters Union), 68
Hogan & Hartson (District of Columbia law firm), 44
Holtzoff, Alexander (U.S. District Court Judge), 43
Home Library Foundation, 18
Hornblower, Mrs. Marshall (District of Columbia activist), 66
-A8-
Horskey, Charles (“Charlie”) (District of Columbia attorney), 33
Houston Natural Gas case, 27-28
House of Representatives, U.S., 38, 74
See also Capitol Hill; Congress, U.S.; Senate, U.S.
Howe, Ernest (TNEC official), 23
Hruska, Roman (U.S. Senator, Nebraska), 75-76
Hughes, Chief Justice Charles Evans, 22
Humphrey, Hubert H. (U.S. Senator, Minnesota, and Democratic presidential candidate), 66, 67
Indianapolis, Indiana, 37
Indonesia, 52
Insurance industry, 22-24
Burial, 23, 24
“Hitler” ballot, 23
Hughes investigation (1905), 22
Lack of federal regulation, 22
Life, 22
Mutual companies, 23-24
“Nickel-and-dime” burial, 23
Savings bank life insurance, 64
Integration of armed forces, 54-59
International Business Machines Corporation (IBM), 37, 49
Investment Trust Act of 1935, 29-30
Iron Curtain (1946-1989), 44
Italian code traffic during World War II, 50
J.P. Morgan &. Co. – See Morgan, J.P., & Co.
Jacksonville, Florida, 55-56
Japan, 44
Attack on Pearl Harbor (1941), 42, 44, 45-54
Codes broken by U.S., 45, 46, 49-50
Johnson, Lady Bird (First Lady), 69
Johnson, President Lyndon B., 59, 66-67, 70-71
Nominates G.A.G. to U.S. District Court for District of Columbia, 69, 72-76
Joint Congressional Committee Investigating the Pearl Harbor Disaster, 45-54
Executive session, 49-50
Jones, John (District of Columbia attorney), 68
Jones, Nubbie (District of Columbia attorney), 44
Judicial Council Committee – See U.S. Courts, D. C. Circuit, Advisory Committee for
Reorganization of the Local Court System
Justice Department, U.S., 17, 36, 74
Antitrust Division, 40-41
Assistant Attorney General, Criminal Division, G.A.G. declines appointment, 68
-A9-
Assistant Attorney General for Civil Rights, 68, 71
DuPont case, 36-37
General Electric price-fixing case, 38-42
Solicitor General, G.A.G. considered for, 73
Kalamazoo, Michigan, 37
Kansas City, Missouri, 70
Keats, John (poet), 3
Keech, Richmond Bowling (U.S. District Court Judge), 43
Keefe, Frank B. (U.S. Representative, Wisconsin), 47-49, 53
Kefauver, Estes (U.S. Senator, Tennessee), 38, 41, 75-76
Kellogg, James (“Jim”) (chairman, New York Stock Exchange), 66-67
Kennecott Copper Co., 35
Kennedy, President John F., 44, 45, 54, 55, 56, 66, 67, 68, 69
Cabinet search committee (1960-1961), 67-68
President’s Committee on Equal Opportunity in the Armed Forces, 45, 54-59, 68-69, 74
Kennedy, Robert F. (U.S. Attorney General and Senator, New York), 44, 66, 67, 68-69
Kester, John G. (District of Columbia attorney), 1
Kimmel, Admiral Husband E., 45-46, 50-51, 52
King, Rev. Dr. Martin Luther (civil rights leader), 44
Korean Conflict (1950-1953), 44
Krock, Arthur (journalist), 68
Labor law (Yale Law School course), 7
Lafayette Square (District of Columbia), 54
Lamont, Mr. (financier), 21
Landis, James M. (legal scholar, SEC chairman), 11, 14, 35
Lie detectors, 41
Links Club (New York, N.Y.), 19
London, England, 37
Longfellow, Henry Wadsworth (poet), 3
Los Angeles, California, 66, 72
MacArthur, General Douglas R., 49, 52
McArdle, Paul (District of Columbia attorney), 59
McCarthy, Joseph R. (U.S. Senator, Wisconsin), 43, 68
McCarthyism, 44
McDougall, Myres S. (Yale Law professor), 7
McNamara, Robert S. (U.S. Secretary of Defense), 54, 58, 68
Mahoney, Joseph (U.S. Senator, Wyoming), 22
Marine Corps, U.S., 42, 55
Marshall, Burke (Justice Department official), 68, 70, 71
Marshall, Justice Thurgood, 71
-A10-
Marshall, General George C., 46, 47-49, 50, 52, 53
Maryland, 61
Massachusetts, 64
Matthews (Mr.), uncle of G.A.G., 11
Meridian, Mississippi, 31
Metropolitan Club (District of Columbia), 68
Metropolitan Life Insurance Company, 22-23, 64-65
Midway, Battle of (1942), 49
Mitchell, William D. (chief counsel of Pearl Harbor investigation), 45-46, 50, 53
Resignation, 50, 53
Montreal, Canada, 37
Moore, Underhill (Yale Law professor), 8, 9
Moore, John (“Johnny”), 2
Morgan, House of, 19-20
Morgan, J.P., & Co., 19-20
Morgan, J. P., Jr. (financier), 19-20, 21
Moyers, Bill (Presidential assistant), 69
Munich, Germany, G.A.G. visits, 4
Nagel, Benjamin (“Benny”) (Yale professor), 2
National Football League, 37, 42
National Guard, integration of, 56, 68-69
Naval Reserve, U.S., 32, 36
Navy, U.S., 45-54, 55-56
New Deal, 11, 15, 28-32, 38, 44
New Dealers, 15, 30, 35
New Haven, Connecticut, 10, 14
New Haven Legal Aid Bureau, 9-10, 11
New Jersey, 41
New York, N.Y., 17, 18, 19, 21, 25, 35-36, 37, 39, 40, 61, 64-65, 70
New York State, 75
New York Stock Exchange (N.Y.S.E.), 18-21, 28, 36
New York Yacht Club, 19
O’Brian, John Lord (District of Columbia attorney), 46, 74
Ossining, N.Y., State Prison (“Sing Sing”), 21
Owen, Robert (District of Columbia attorney), 39-40
Oxford University, 3
Oyster Bay, Long Island, New York, 4
Pacific Ocean, 52
Panama Canal Zone, 51-52
Parker, Barrington, Sr. (U.S. District Court Judge), 59
-A11-
Parker, John J. (U.S. Circuit Court Judge), 27
Patton, General George S., 49
Pearl Harbor, Hawaii, Japanese attack (1941), 42, 44
Perez, Leander (Louisiana politician), 74
Perkins, Frances (“Ma”) (U.S. Secretary of Labor), 65
Phi Beta Kappa, 2
Philadelphia, Pennsylvania, 39-40, 73
Philippines, 51-52
Phillips Andover Academy, 2-3
Phoenix, Arizona, 66
Pierson, Norman (Yale professor), 3
Poe, Edgar Allan (poet), 3
Pollak, Louis H. (dean, Yale Law School, and U.S. District Judge), 73
Portland, Oregon, 66
Postal Inspectors, U.S., 16
Powhatan Hotel (District of Columbia), 62
President’s Committee on Equal Opportunity in the Armed Forces, 45, 54-59, 68-69, 74
“Gesell Report,” 58-59
Procedure I, II, III (Yale Law School courses), 8
Protecting Your Dollars by G.A.G., 18
Prudential Life Insurance Company, 22-24, 64
Public Control of Business (Yale Law School course), 7
Purcell, Hanson (chairman, SEC), 34, 69
Rauh, Joseph L. (District of Columbia attorney), 65
Reichstag (Berlin, Germany), 4
Republican Party (U.S.), 18, 45
Richardson, Seth W. (second chief counsel of Pearl Harbor investigation), 50
Roberts, Justice Owen J., 45
Robinson, Aubrey, Jr. (Associate Judge, District of Columbia Juvenile Court, and U.S. District
Judge), 59-60
Robinson, Spottswood William, III (U.S. District and Circuit Court Judge), 71
Robinson & Cole (Hartford, Conn., law firm), 14
Roger Smith Hotel (District of Columbia), 62
Rome, Italy, 37
Roosevelt, President Franklin D., 18, 22, 29-30
Death, 44
Indifferent to segregation, 30-31
Names Douglas to Supreme Court, 25
Pearl Harbor, 45-54
Staff, 29-30
Rowe, James (“Jim”) (Presidential assistant), 29-30, 66, 74
Russia – See Union of Soviet Socialist Republics (U.S.S.R.)
-A12-
Sacco, Nicola (defendant), 62
Sacks, Albert M. (attorney and dean, Harvard Law School), 63
San Francisco, California, 51
Savings bank life insurance, 64
Scott Paper Company case, 38
SEC – See Securities and Exchange Commission (SEC)
Secret Service, U.S., 28
Securities and Exchange Commission, U.S. (SEC), 11, 13-28, 29, 33, 34, 35, 62
Enforcement, 16
Functions and responsibilities, 16, 26-28
General Counsel’s Office, 15
Opinion letters, 16
Senate, U.S., 39, 69, 74
Committees, 39
See also Capitol Hill; Congress, U.S.; House of Representatives, U.S.
Senate Caucus Room, 22
Seymour, Whitney North, Sr. (New York attorney), 70-71
Shelley, Percy Bysshe (poet), 3
Shorb, Paul (District of Columbia attorney), 33
Short, General Walter, 45-46, 52
Shriver, Sargent (Democratic politician), 67
Shulman, Harry (Yale Law professor), 7
“Sing Sing” prison – See Ossining, N.Y., State Prison
Slayton, John (former governor of Georgia), 17
Smathers, George (U.S. Senator, Florida), 75
South America, 37
Southern Railway, 28, 37
Stark, Admiral Harold R. (“Nellie”), 46, 52
State Department, U.S., 32
Stennis, John C. (U.S. Senator, Mississippi), 58
Stevenson, Adlai E. (Governor of Illinois and Democratic Presidential candidate), 66, 68
Stimson, Henry L. (U.S. Secretary of War), 47
Stock Exchange Gratuity Fund, 19
Stutz Auto Company, 17
Tamm, Edward Allen (U.S. District and Circuit Court Judge), 43, 59
Tampa, Florida, 37
Taxation, 9
Taxation (Yale Law School course), 9
Temporary National Economic Committee (TNEC), 21-24, 64
Insurance investigation, 22-24
Volumes 2 and 28, 23
Texas, 70, 72
-A13-
The Folklore of Capitalism by Thurman Arnold, 8
The Growth of the Law by Benjamin Nathan Cardozo, 5-6
The Nature of the Judicial Process by Benjamin Nathan Cardozo, 5-6
The New York Times, 2, 5, 62, 64, 67-68
The Symbols of Government by Thurman Arnold, 8
The Washington Post, 37, 42, 43
Tort law, 8
Torts (Yale Law School course), 7
Trenton, New Jersey, 37
Truman, President Harry S, 28, 49, 50, 54
Tydings, Joseph (U.S. Senator, Maryland), 60
Underwood, E. Marvin (U.S. District Judge, N.D. Ga.), 17
Union of Soviet Socialist Republics (U.S.S.R.), 44
Code traffic during World War II, 50
Union Trust Building (District of Columbia), 33
United Nations, 43
United Services Organization (U.S.O.), 42
U.S. Courts, D.C. Circuit, 44, 59
Advisory Committee for Reorganization of the Local Court System, 45, 59-61, 73
U.S. Court of Appeals, D.C. Circuit
Judges:
Bazelon, David L., 59
Fahy, Charles, 54
Robinson, Spottswood William, III, 71
Tamm, Edward Allen, 43, 59
Wald, Patricia, 59
Wright, J. Skelly, 26
U.S. Court of Appeals, Fourth Circuit, 27-28
U.S. Courts of Appeals, 37
U.S. Court of Claims, 37
U.S. District Court, District of Columbia, 12, 43, 60, 73
G.A.G. named to, 12, 69, 72-76
Judges:
Flannery, Thomas Aquinas, 59
Holtzoff, Alexander, 43
Keech, Richard Bowling, 43
Parker, Barrington, Sr., 59
Robinson, Aubrey, Jr., 59-60
Robinson, Spottswood William, III, 71
Tamm, Edward Allen, 43, 59
U.S. District Court, District of Connecticut, 15
U.S. District Court, Eastern District of Michigan, 17
-A14-
U.S. District Court, Northern District of Georgia, 17-18
U.S. Steel, 68
U.S. Supreme Court, 26, 46, 64, 71
G.A.G. argues cases, 37, 38, 64
Supreme Court Justices, 64
Brandeis, Louis D., 61, 63, 64-65
Brennan, William J., Jr., 26
Burger, Warren E., 26
Cardozo, Benjamin Nathan, 5
Douglas, William O., 7, 24-26
Fortas, Abe, 54
Frankfurter, Felix, 61, 62-64
Hughes, Charles Evans, 22
Marshall, Thurgood, 71
Roberts, Owen J., 45
Vinson, Fred M., 58
U.S.S. Arizona (battleship), 51
U.S.S. Enterprise (aircraft carrier), 51
Vance, William (Yale Law professor), 8-9
Evidence course, 8-9
Vanzetti, Bartolomeo (defendant), 62
Vietnam Conflict (1954-1975), 44, 73
Vinson, Chief Justice Fred M., 58
Wald, Patricia M. (U.S. Circuit Court Judge), 59
Wall Street financial district (New York City), 7, 21, 26
Wallace, Henry A. (U.S. Secretary of Agriculture and Vice President), 65
Washington (state), 38
Washington, Walter (mayor of Washington, D.C.), 66
Washington Star, 68
West Virginia, 67
1960 Democratic primary, 67
Westinghouse, 39
Westwood, Howard (District of Columbia attorney), 33
White House (District of Columbia), 67, 69
Oval Office, 70
Whitney case, 18-21, 32
Whitney, George (financier), 20, 35-36
Whitney, Richard (financier), 18-21, 32, 61, 62
Williams, Stanley (Yale professor), 2-3
Williams & Connolly (D.C. law firm), 1
Wilmington, Delaware, 37
-A15-
Wilson, President Woodrow, 66
Wofford, Harris (Democratic politician), 67-68
World War II (1941-1945), 28, 32
Wright, J. Skelly (U.S. Circuit Court Judge), 26
Yale Bowl, 2
Yale College, 2-4, 11-12
Henry Fellowship, 3
Yale Daily News, 2
Yale-Georgia football game, 2
Yale Law School, 4-13, 15, 16, 24, 62, 65, 68, 73
Admissions process, 6
Anderson Fellowship, 12-13
Clark, Charles E. (former dean), 20
Corby Court fraternity, 11-12
Curriculum, 6-9
Bills and notes course, 8, 9
Case method, use of, 6
Evidence course, 8-9
Labor law course, 7
Procedure I, II, and III courses, 7
Public Control of Business course, 7
Taxation course, 9
Torts course, 7
Executive Committee, 12
Faculty, 6-9
Arnold, Thurman, 7-8, 62
Douglas, William O., 7, 24
McDougall, Myres S., 7
Moore, Underhill, 8, 9
Rodell, Fred, 9
Shulman, Harry, 7
Vance, William, 8, 9
Fundraising, 12-13
Influence on G.A.G., 13, 24
New Haven Legal Aid Bureau, 9-10, 11
Portrait of G.A.G. at, 12
Special Gift Capital Funds Campaign, 12
Yale Law School Association of Washington, D.C., 13
G.A.G. as second president, 13
Yale University Council, 12
Young, Whitney (civil rights leader), 55, 58
Youngman, William (“Bill”) (D.C. attorney), 22
TABLE OF CASES
Scott Paper Company v. Marcalus Manufacturing Company, Inc., et al, 326 U.S. 249, 66 S.Ct.
101, 90 L. Ed. 47 (1945)
United States v. E. I. DuPont de Nemours and Co., 351 U.S. 377, 76 S. Ct. 994, 100 L. Ed.
1264 (1956)
TABLE OF STATUTES
Public Utility Holding Company Act, 49 Stat. 803 (1935), 15 U.S. Code §§79 et seq., 28
-1-
Appendix 1
September 1990
THE INDIVIDUAL CALENDAR
The Master Calendar system for assigning cases in multi-judge courts was used by most
federal trial courts until the 1960’s. It served the purposes of the District Court well during the
period it acted as primarily a state court with limited federal business. Divorce, landlord/tenant,
juvenile and probate cases crowded its docket and dominated its basic federal business under the
Master Calendar system. Judges came to work each day and were given the day’s assignment by
an Assignment Commissioner, who tried to even the load of each judge while giving some
judges the kind of cases the judge preferred wherever possible. The system had its faults. Often
a case was not ready and if nothing else was available a judge might leave in disgust or to play
golf. A single case passing through the process might come before six or eight judges prior to
trial who disposed of many motions or other key issues. As the case neared, trial lawyers
jockeyed for position. A knowledgeable attorney could manipulate assignments to get repeated
continuances or the judge he wanted. Criminal matters awaited the pleasure of the U.S.
Attorney.
The basic inefficiency of the Master Calendar led to backlog because delay was readily
achieved. The Assignment Commissioner and a couple of Pretrial Examiners made minimum
efforts to hasten the flow of work, and the judges asserted no case control.
As special minor courts were created to take on some of the local cases and civil litigation
became more complex due to the growth of the city and governmental initiatives, the federal role
-2-
of the court grew and the weaknesses of the Master Calendar system came under scrutiny in the
District of Columbia and elsewhere.
The focus was on various forms of calendar controls under which criminal and civil cases
would be assigned to a single judge from the outset of the case, remaining that judge’s
responsibility through all phases of pretrial and trial. Several federal district courts in major
cities began testing the idea with varying success and encountered the typical resistance to
change which all too frequently hampers progress in judicial administration. No matter how
fashioned, an individual calendar system made individual judges more accountable, and for some
it meant more work. Elements of the Bar who enjoyed the flexibility of the Master Calendar
system and feared judicial control of the calendar also objected. The Bar was no exception.
Many attorneys acted as local counsel in matters being handled by outside firms and enjoyed
steering cases through the Master Calendar process to get “the right judge at the right time.”
Nonetheless, backlogs were mounting, particularly on the dockets of federal district
courts based in major urban areas. The creation of a truly local court for the District of Columbia
in the 1960’s stimulated an already rising demand for change. The United States District Court
for the District of Columbia had one of the worst records, if not the worst, for delayed disposition
of both civil and criminal cases. Congress, the Attorney General and the Federal Judicial Center
were each suggesting ways of dealing with the problem nationally and, as always, looking to the
U.S. District Court for the District of Columbia to create a workable model.
The Judicial Council of the Circuit made its move in response to these pressures in March
1966 by appointing a committee of practicing lawyers to make recommendations on all aspects
of the evolving new court system and to aid in carrying out of the proposed restructuring. Judge
1 It is interesting to note that the Committee included among its members at various times
Wald, Pratt, Flannery, June Green, Parker and McArdle, each of whom later became a judge.
-3-
Gerhard A. Gesell, then a senior partner of Covington & Burling, was designated Chairman. The
committee came to be known as the Gesell Committee because of its ponderous name. It was
officially known as the Committee on the Administration of Justice of the Judicial Council of the
District of Columbia Circuit.
The Individual Calendar was but one of many issues studied by the Gesell Committee.
However, it was high on the agenda from the outset. The Committee, in a preliminary
Memorandum dated January 6, 1967 to the Liaison Chairman of a supporting D.C. Circuit Court
of Appeals committee selected by the Council (Judge Leventhal), suggested a two-year
experiment; but there was little enthusiasm for the idea, which was promptly vetoed by Judges
Curran, Sirica and Jones of the District Court. The Committee then decided that a detailed
management study was necessary before the plan could get serious attention. A study was finally
initiated after obtaining Ford Foundation financial support, and work went forward to review
various practices of both the United States Court of Appeals and the United States District Court
for the District of Columbia Circuit, including the feasibility of the Individual Calendar
approach.
Gesell became a Judge of the United States District Court for the District of Columbia
Circuit in December 1967, and the Committee continued under the chairmanship of Newell W.
Ellison, then one of Gesell’s partners. The Committee became known as the Ellison Committee.
Ellison continued to push the management study forward with vigor and became a strong
supporter of the Individual Calendar.1
-4-
In January 1969, without any prior discussion, Ellison and Gesell each acted to give the
Individual Calendar another push. Ellison wrote a strong letter to Judge Hart, Chairman of the
Court’s Executive Committee, again recommending use of an Individual Calendar. Ellison and
Hart were long-time friends, and this letter struck home. Gesell separately urged that pending
receipt of the management study the Court should take full control of the criminal calendar away
from the U.S. Attorney in order to clean up court congestion and remedy other causes for delay
of criminal work.
In late January, the broad outlines of Gesell’s proposal were approved by the Executive
Committee. The criminal calendar was in particularly bad shape. The U.S. Attorney controlled
the scheduling and many cases languished. Twelve judges were concentrating on it under the
Master Calendar system. After taking control they began to terminate more cases. Gesell’s plan
worked. He held a calendar call of the 200 oldest cases, and many fell by the wayside when it
developed that key witnesses were unavailable, a defendant had skipped or been convicted
solidly for another crime, or the cases proved for some reason not triable. The support of Judges
Gasch and Corcoran, who had both had prosecutor experience, was vital to this beginning shift
toward calendar control of criminal cases.
By June 1969 the Court’s Executive Committee (Hart, Jones and Corcoran) recommended
that a detailed Individual Calendar plan be developed. Gasch, Robinson and Gesell drew up a
plan; and on June 16, 1969, the Court voted 8-7 after long debate to initiate an individual
calendar for criminal cases only. Eight judges “volunteered” — Walsh, Gasch, Bryant, Smith,
Robinson, Gesell, Pratt and June Green. A detailed plan developed under the chairmanship of
Gasch was circulated and approved, with some modifications. The first criminal trial under the
-5-
new system was held in October 1969. The eight judges worked under the new system for about
seven months. It was a great success. Criminal business moved. Calendar calls got rid of old
cases. A defendant indicted at the same time for separate offenses came before the same judge.
Prosecutors were assigned to individual judges so they were always available to the Court. The
judges took control, and the U.S. Attorney was obliged to take positions on the merits of the
cases.
On April 23, 1970, the whole Court, including the seven original dissenters who had been
handling the civil cases for the Court, recognized the value of the new system and, led by Judge
Hart, graciously threw in their full support. Civil cases went on the Individual Calendar
assignment on April 29, 1970. Thereafter, each judge became individually responsible for his or
her share of both civil and criminal cases.
In May 1970, the final management report from the Ellison Committee issued setting
forth in clear, unequivocal terms the value of the Individual Calendar which the Court, in its own
halting, tentative way had come to recognize.
In retrospect, this now well-accepted process was the spark that transformed the District
Court into true federal status. Judges felt they were now truly [federal] judges. They could
determine the cases needing attention and guide their preparation for trial and be held solely
accountable for the result. No longer were they plagued by the uncertainties of the old Master
Calendar, which often held them accountable for work of other judges they could not understand
and often found inconsistent with their view of how a case should be shaped for trial. The trial
judge himself pursued dispositive pretrial motions; issues for trial were more clearly defined, and
scheduling conflicts became less severe. Because they were free to regulate their own activities,
2 William Jeffress, Jr. (Gesell); John Aldock (Youngdahl); Robert Higgins (Corcoran).
-6-
they were not chained to the bench. This, in turn, sparked an ever-increasing list of opinions and
more careful rulings that became the mark of the Court’s vital role in developing federal
precedent for the cutting issues of the day.
In order to put the Individual Calendar into effect, Court rules were hastily devised to
accommodate the new regimen. The precise plan and rule changes were worked out by a
committee consisting of Gasch, Robinson and Gesell. Experience soon necessitated minor
changes; and the inadequacy of the Court’s Rules, which had developed in a patchwork fashion,
became more apparent.
The Court authorized preparation of a new set of Rules, which proved to be a difficult
task. Gesell chaired a committee and designated three former District Court law clerks2 then
practicing in the District of Columbia to prepare a new working set. This committee has
continued to function ever since as rule changes became necessary and in recent years has been
chaired by Judge Harold Greene. A system has emerged by which proposed Rule changes are
publicized in advance for comment, and a model set has been created that rivals the best in the
country.
-7-
Some Comments
The side effects of the Court’s shift to an Individual Calendar system were not planned.
Apart from taking control of our own business and achieving more efficient disposition of the
work, other effects were soon noted:
(1) Each month every judge received a statement showing the state of every judge’s
calendar. The number of dispositions by each judge, civil and criminal, was tallied, along with a
breakdown of the age of his or her remaining cases. Thus, every judge was quietly confronted
with how effectively he or she had been in comparison with his or her peers. A healthy but
gentle competition emerged. The monthly statement was not publicly released, but it was
occasionally referred to in the press.
(2) The new system placed a premium on a judge’s skill as a manager. Those judges who
kept close tabs on inventory of motions and the stage of each case moving toward trial [or
disposition by motion] made the most significant gains against backlogs. There was considerable
experimentation, and successful techniques were passed along to fellow judges at the judges’
lunch table. Gesell was asked by the Federal Judicial Center to prepare a tape for general
distribution illustrating case control techniques. This is reviewed by law clerks and some judges
of the Circuit and elsewhere, particularly for indoctrinating new judges.
(3) A judge with a well-managed calendar had more time in chambers to read and to
write, and the notion that a judge was loafing if the courtroom was dark gradually disappeared.
(4) When Watergate and other major litigation developed, the Individual Calendar
system provided two essential ingredients. First, it assured that a single judge would manage
each step of the proceedings, a continuity that would have been absent under the Master
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Calendar. Second, the Court’s Rules allowed the Chief Judge, who was not in the assignment
draw, to assign a protracted matter specially, either to himself or another judge. The monthly
statements enabled the Chief Judge at a glance to identify those judges most readily available for
special assignment because of the status of their already assigned duties. Chief Judge Hart, Chief
Judge Sirica and Chief Judge Robinson took full advantage of this process from time to time.
-9-
RE: CHRONOLOGY OF DISTRICT COURT INDIVIDUAL CALENDAR REFORM
March 15, 1966 Gesell designated chairman of The Committee on the Administration of
Justice of the Judicial Council of the District of Columbia Circuit.
General concern existed over delays in criminal cases. U. S. District Court
for the District of Columbia in bad shape. Congress and Federal Judicial
Center active. Department of Justice also. This Court has especially poor
statistics.
January 6, 1967 Preliminary memorandum to Judges’ Liaison Committee indicated need
for two-year experiment with individual calendar. (Circuit Judge
Leventhal Chairman of the Liaison Committee.)
Thereafter, Ford Foundation grant obtained and management study of the
Circuit Court of Appeals and the District Court got underway. Individual
calendar was but one of many issues. Judge Leventhal and Judge
McGowan in continuous contact.
District Court not receptive (Judges Curran, Sirica, Jones). Bar also
unenthusiastic – manipulating Master Calendar. Controversial issue in
other district courts.
December 1967 Gesell becomes United States District Judge and Newell Ellison [his
former partner] continues work of the Committee, including court
management study, as Chairman.
January 1969 Gesell Memorandum to Executive Committee of the Court urging Court
control of docket. [at Library of Congress]
January 23, 1969 Executive Committee of Court approved Gesell’s proposal that District
Judges take calendar control away from U.S. Attorney in criminal cases
and move business by Calendar Calls. Chief Judge Curran gives his O.K.
Gesell conducts test calendar call of [200] oldest [criminal] cases.
Ellison again recommends use of the Individual Calendar in letter to Judge
Hart.
June 6, 1969 Court’s Executive Committee (Judges Hart, Jones, Corcoran) recommend
time to prepare detailed plans for Individual Calendar.
Burger becomes Chief Justice of Supreme Court and immediately urges
more current case loads.
-10-
June 16, 1969 Executive Session of Court decided (8-7), after long debate, to start with
criminal Individual Calendar only. Judges Gasch, Robinson and Gesell to
prepare plan. The eight Judges voting favorably on the idea were assigned
to the first Individual Calendar because they volunteered: Judges Walsh,
Gasch, Bryant, Smith, Robinson, Gesell, Pratt and June Green. [Note, the
last three Judges had been active on the Committee on the Administration
of Justice appointed by the Judicial Council.]
August 6, 1969 Judge Gasch’s committee circulates proposed Criminal Individual
Calendar Plan developed by the committee.
September 8, 1969 Above plan approved at the Executive session of Court.
October 1, 1969 Criminal Individual Calendar Plan in effect and the first trial held that
month. Individual Calendar an immediate success. Control taken early by
calendar calls of all pending criminal cases assigned to the eight judges
carried on at approximately the same time.
April 29, 1970 Individual Calendar approved for civil cases as well, effective May 1,
1970.
May 1970 Ellison Committee’s formal report setting forth advantages of Individual
Calendar issued in printed form.
Senior Judges at the time, Pine, Youngdahl, Keech and McGarraghy, had
expressed preference not to participate when queried in January and
February 1970, and their wishes were honored. Thereafter, new senior
judges accustomed to the Individual Calendar continued on this basis but
with reduced draw of cases.
G.A. Gesell
June 26, 1990
Note. I have assembled most of the basic materials to make available at any time. These include
most of the key internal Court memoranda and some statistics. G.A.G.
[at Library of Congress]
1 Howard University is federally incorporated. It receives some federal funds, and the
United States has a representative on its Board of Directors.
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Appendix 2
STUDENT RIOTS
In the early months of l969, and during the mid-sixties before I became a Judge, Washington
was the scene of frequent political riots, some severe, some mild protests exacerbated by a few trying
to make trouble. The Weathermen and opponents of involvement in Vietnam were strident.
Martin Luther King’s assassination touched off looting and fierce protests. Howard
University was hard hit. Buildings were burned, classes could not be held, and the school
administration had completely lost control. There were also protests, far less violent, involving the
campus of George Washington University. Chief Judge McGuire enjoined further rioting but
nothing happened and the U. S. Attorney joined forces with school authorities to have the orders
enforced. In May 1969, new on the bench, I was motions judge and the problem fell into my lap.
The press had been notified and were milling around. Everybody was demanding an immediate
answer. After taking evidence concerning conditions at Howard University during a brief hearing,
I ordered the United States to enforce Judge McGuire’s order and asked, toward the end of a hectic
day, that the government present an appropriate order to me in chambers that day.1 Around 5:00
p.m., Deputy Attorney General Kleindienst and Assistant Attorney General Ruckelshaus (sp?) came
to chambers and handed me a brief form of order finding the rioters in contempt and directing the
injunction be implemented. There were no details. I turned to Kleindienst and asked, “How is this
Order going to be enforced?” He looked me straight in the eyes and said, “Most respectfully, that
is none of your business.” I was shocked and immediately suspicious. In reply, however, I simply
-2-
said firmly, “You may be right, but if I don’t know I won’t sign the Order.” Kleindienst got red in
the face, talked quietly to Ruckelshaus, who seemed more relaxed, and then told me his horrendous
scenario. The students were to be given a midnight ultimatum. Stop, or face arrest at 12 midnight.
U.S. Marshals had been ordered in from other cities. The National Guard was alerted to come in if
necessary. Hundreds of police were to surround the campus. I was certain in my mind that this was
stupid, unnecessary and guaranteed a violent confrontation with serious risk to life. A similar
approach had led to injuries on the Howard campus. Washington newspapers had noted various
outsiders coming toward Howard to incite the situation. Thus Kleindienst confirmed in justification
of his plan when I objected, larding his presentation with words about Reds, scum, etc. I said I
would not sign the Order and it looked for a moment that the Justice Department men might leave,
but Ruckelshaus calmed Kleindienst down, with the latter protesting that he had orders from
Attorney General Mitchell, who had been to the White House. Finally, they asked what I would
suggest. I said:
1. U.S. Marshals for the District of Columbia would handle.
2. Disband the alerted National Guard.
3. Pull back the Metropolitan D.C. Police.
4. Broadcast [on radio and by flyers distributed in the area] to D. C. parents to
get their kids home because there might be trouble.
5. Cancel the [don’t impose a] midnight deadline.
6. Have U.S. Marshals for D.C. in small numbers enter the campus and arrest the
ringleaders after making it clear over radio that the injunction meant what it said.
It began to rain a bit. They agreed, after much talk. A group of 20 made the decision to represent
the protesters and stay on campus and be arrested if the Marshals came in.
-3-
The ringleaders were tried before me after their arrest. The riot was over. No one was hurt.
Students at George Washington University, represented by the Arnold & Porter law firm,
were counseled. The leaders pled guilty to contempt and were sentenced, like those from Howard
U., to light, lenient punishment.
There is no record of these events [meeting in chambers with Kleindienst and Ruckelshaus]
in any court records. There was no transcript, no press statement by anyone.
Howard University v. Abell, et al., Civil Action No. 1169-69.
Arrests at Howard University, Misc. Nos. 32-69, 34-69, 35-69, 37-69, 42-69, 44-69, 45-69, 48-69,
51-69.
George Washington U. v. Mann, et al., Civil Action No. 1318-69.
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Appendix 3
LORTON YOUTH CENTER II
The Youth Corrections Act was a progressive example of much needed penal reform. Young
offenders who appeared to be likely candidates for rehabilitation were committed for indefinite
terms, usually six years, and could be paroled at any time they had accomplished education and other
goals and were believed ready to return to a life without dependence on crime.
Alsbrook had been put in this program by me, but I was advised there was no room available
in the special Youth Center facility and that he would have to be placed in the adult facility at
Lorton. This was obviously not an isolated case; and it appeared that the Mayor, Walter Washington,
was compelled for bureaucratic reasons to give the Youth program short shrift. More significantly,
it was, in effect, an executive challenge to judicial authority and an indirect local repeal of the Youth
Corrections Act.
I ordered the Mayor to build a new Youth Center, deciding that it was an occasion to start
vindicating the Third Branch, which had been hampered in recent months by fund cutbacks and
staffing restrictions.
Mayor Washington was an outstanding public servant whose common sense and
understanding of the city played a major role in getting Home Rule off to a good start. We were
friends. I had eaten many luncheon sandwiches with him as a lawyer working with a small group
for Home Rule. He sent Gil (Gilbert) Hahn, Chairman of the City Council, to see me. We talked
in chambers. Gil said the city could not find the money and the Center could not be built. I kept a
straight face and said, “I’m very sorry for the Mayor.” Gil looked startled and asked why. I said, “An
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order is an order. You know that. You’re a good lawyer. Contempt is how orders are made to
work.” He left somewhat upset. A few days later he came by again and simply said, “Judge, you’ll
be pleased. We found the money.” Youth Center II was built.
Someday this precedent may prove useful.
United States v. Alsbrook, 336 F.Supp. 973 (1971).
-1-
Appendix 4
HOUSE COMMITTEE ON INTERNAL SECURITY
In October 1970, the House Committee on Internal Security [UnAmerican Affairs Committee
“HUAC”] was on its last legs and almost forgotten. Congressman Ichord was Chairman. Suddenly
I was faced with a complaint attacking the Committee that was difficult to believe. Plaintiffs
provided documentary proof that the Committee had assembled a long list of individuals it believed
were Communists or otherwise out to destroy the country by spreading their allegedly un-American
beliefs. HUAC proposed to send the list to the officials and leading alumni of colleges and
universities asking that persons listed be prevented from speaking on the campuses to student groups
or faculty. The complaint asked that the Committee be enjoined from carrying out this obvious
intrusion on First Amendment values, attempted in the hope of stemming subversion. I could not
believe HUAC was seriously undertaking such a brash step, but it was soon clear Mr. Ichord planned
to go full speed ahead. I felt something had to be done. Obviously a United States District Judge
could not enjoin a committee of the House of Representatives, but HUAC had instructed the Public
Printer to run off its implementing Resolution and the list for wide mailing. I enjoined the Public
Printer from doing so.
The first reaction from the Hill was Ichord’s rage. He had an issue! By speeches on the floor
and elsewhere he sought to draw me into a debate. I did nothing. HUAC backed him up, but it
needed approval of the House before the Public Printer could be directed to ignore my order. HUAC
failed. First, it watered down the Resolution to meet criticism and finally the project was abandoned.
This was not immediate and my action had stirred up the old Martin Dies, Nixon-type of Red
-2-
baiters. Some nasty telephone calls and letters came in and for a while we were threatened by a man
with a gun who came to my farm in Virginia on several occasions when I was not there, saying he
was going to kill me. We took some precautions and the Loudoun County Sheriff ran him off.
This early small experience indicated that a deeply entrenched fear of alien ideas still
remained in the minds of some people, and I was to learn how easy it was to play on these fears for
political purposes as more serious cases came my way during the Nixon period. Indeed, looking
back on the episode involving the Howard University riot, which resulted in my confrontation with
Deputy Attorney General Kleindienst, it became more likely that his proposals for quelling the
turmoil were more shrewdly political and less stupid than I had come to believe.
Hentoff v. Ichord, 318 F. Supp. 1175 (1970).
-1-
Appendix 5
PENTAGON PAPERS
The Pentagon Papers case was really two cases proceeding through two Circuits toward a
final ruling by the Supreme Court in June 1971. The New York Times, and The Washington Post,
close behind, had portions of the papers and were proceeding to publish a series. The Department
of Justice sought to enjoin publication. In New York a brand new judge, Judge Gurfine, sitting in
motions, had the application for a temporary restraining order aimed at the Times, and I was
randomly assigned the case in the District Court in D.C. in which the United States was seeking a
temporary restraining order aimed at The Washington Post “off the wheel” by our random selection
process.
The complaint against the Post named the paper and about eight top managers and newspaper
reporters, including Kay Graham and Chalmers Roberts. During the following days I held court
often to meet new developments with the constant pressure of publication deadlines on the one hand
and the effort of the Department to block whatever was going to come out each day. There was no
time to write. Rulings were oral and, of necessity, almost immediate. At every stage, without fail,
I refused to enjoin the Post and refused even short “stays” of an hour or two as appeals followed.
Every other Court enjoined publication for brief intervals. (The U.S. District Court for the Southern
District of New York, both circuit courts and the Supreme Court.)
Judge Gurfine issued a temporary restraining order after calling me and learning that I was
going to do the opposite. When the ten decisions of the Supreme Court Justices came down, I had
no complaints! The only point of these notes is to mention events not found in my papers to
illustrate the extreme tactics employed by the Nixon Administration to prevent publication. A
1 Solicitor General Griswold has recently (1991) revealed that even he was misled into
making false representations to the Court of Appeals for the D.C. Circuit and the U.S. Supreme
Court.
-2-
deliberate program of deception, misrepresentation and meanness was used to sway the result.1
Having gone through it and the earlier encounters with Kleindienst during the student riots, when
Watergate came along the excesses then revealed seemed almost normal.
I denied the TRO and refused a stay. Almost immediately the Court of Appeals sent the
matter back to me for further consideration and stopped the Post’s presses. This was on a Friday
[Saturday a.m.] and I was directed to act by 5:00 p.m. on Monday. The courthouse was closed that
weekend for some repairs, and I asked counsel to come to my house to arrange the Monday hearing.
Government lawyers came in force and prepared. The Post had a lawyer from New York who
seemed somewhat bewildered but ably assisted by a bright younger man who was far more aware
of the issues.
We got off to a rocky start. Assistant Attorney General Mardian, who headed the government
team, had persuaded me it would be necessary to hold some of the Monday hearing in camera
because of the sensitive security issues supposedly present. At the outset he said, “Of course, it will
not be proper for any of the defendants to be present.” I was flabbergasted. When I expressed
surprise he indicated his position had been cleared at the highest level. I replied that as far as I was
concerned the United States of America was not Russia and that I would dismiss the complaint
unless his orders were rescinded. I told him to use the telephone in my upstairs study. He made a
call, I presumed to the White House, and said the defendants could attend when he came down. To
focus the issues I suggested that the government should present its ten most sensitive examples at
-3-
the closed hearing to demonstrate why prepublication restrictions were necessary. This was agreed
and a set of the papers was left with me at my request as the lawyers left.
In a few minutes, while I was thumbing through the papers, there was a sharp knock on the
front door. Opening the door I found three large men in military uniform with white bands across
their chests and side arms who said they had come for the papers. I said no. They insisted, saying
I had no security. I was angry and told them to buzz off or stand around outside, that I had security
because the papers would be hidden under a sofa pillow. They left. Clearly somebody was playing
hard ball.
Monday’s hearing resulted in my again denying injunctive relief and up the case went again
to the Court of Appeals which, after issuing a stay, affirmed by a split vote. The transcript of the in
camera proceedings, now unsealed, is among my papers. What it does not reveal is the
Administration’s effort to discredit the Court. During the closed hearing the national press, now fired
up by the threat of government censorship, was milling around outside. A group of Defense
Department public relations types were spreading the word that I was about to release our country’s
most secret war contingency plans and that lives were somehow threatened. A Chicago paper took
the bait and ran a scare story that morning. Calls to chambers sought confirmation. It was a wild
morning. But there were no facts presented at the hearing to support this canard. The government’s
witness on this point was a former CIA man detailed to the Pentagon who said certain material
constituted these vital war plans. I smelled a phony and asked to hear from a knowledgeable General
familiar with the subject. A General promptly appeared and said the planning paper was so out of
date he hoped our enemies would think it was the real thing, or words to that effect, as I now recall.
The Justice Department tried another false ploy that fell flat. At one moment I was set back
-4-
to learn from the government that a document revealed the name of a Canadian diplomat who it
showed was assisting our people from his post in the Far East. Counsel noted that this was a form
of treason that violated the British Security Act and that disclosure might result in his execution.
Here, indeed, was cause to reflect. I noticed one of the defendant’s, Chalmers Roberts, taking a book
to the Post’s counsel who shortly rose to read into the record the text of several books which had
carried the Canadian’s name and revealed his useful service to this country.
To this day I don’t know what got the White House so excited. The papers held few secrets.
Nothing earthshaking. All code references, precise dates of transmission and similar notations of
intelligence value were not involved. Indeed, the material was boring. Ellsberg, who released some
of the material, was a sharp critic of the Nixon Administration; and they tried to compromise him
later, as Watergate inquiries disclosed, but it is unlikely he participated in the almost violent effort
to keep the Pentagon Papers secret. Perhaps it was a mixture of hatred of the press and a legitimate
concern expressed by Macomber that foreign governments would hesitate to share intelligence and
diplomatic confidences with us if we couldn’t control the leakage. Censorship via legislation such
as the British Security Act cannot be squared with the First Amendment, but it was a closer call than
many realize. It is easy to mislead judges and the Solicitor General in this murky intelligence area,
and this experience stiffened my resolve on a number of occasions when comparable considerations
were pressed by the Bush Administration during the case of United States v. Oliver North.
It was apparent that the Administration felt no restraint and was willing to twist facts to gain
advantage.
Publication of the Pentagon Papers hurt the United States, not because our security was
undermined or vital national defense activity was disclosed. The serious consequence of publication
-5-
was the fact that foreign governments were given a chance to question the wisdom of secret
diplomacy when so many confidential discussions with our representatives became public. President
Nixon’s trip to China was being explored through third country channels, and a leak would have been
disastrous. I learned later that there was genuine concern at the Department of State that disclosure
of our inability to honor confidential diplomatic discussions might chill future plans like this then
underway.
But the cat was out of the bag. Our government had failed to keep its secrets secret. It, not
the press, was at fault.
-1-
Appendix 6
WATERGATE
Chief Judge Sirica took on the original Watergate case. This was a major undertaking that
earned him national and international recognition. But Watergate could not be confined to the
original break-in. Many cases and novel legal problems followed. As different matters came up
Judge Sirica farmed them out to different Judges, but primarily to me.
My involvement covered a variety of different matters in 1974, including the following.
(1) The indictment and trial of Ehrlichman, Colson, Liddy, Barker and Martinez. (Cr.
No. 74-116)
(2) The indictment and trial of Dwight Chapin. (Cr. No. 990-73).
(3) The indictment and guilty plea of Donald Segretti (Cr. No. 828-73).
(4) The indictment and guilty plea of Egil Krogh. (Cr. No. 857-73).
(5) A civil suit arising out of Judge Sirica’s case, United States v. Mitchell, by NBC,
ABC, CBS, et al., to obtain and broadcast Nixon tapes in evidence in the criminal
case. (Misc. No. 74-128). 386 F.Supp. 639 (1975). Subsequent Order of Judge
Sirica on 4/4/75 reversed me, and then the 10/26/76 Court of Appeals decision
reversed Judge Sirica.
(6) A civil action to set aside the discharge of Archibald Cox as Special Prosecutor that
questioned the legality of the firing by Robert Bork. (Nader v. Bork, Civil Action
No. 1954-73. 366 F.Supp. 104 (1973)). Court of Appeals Order 8/20/75 dismissing
appeal as moot.
Other cases were assigned to Judge Hart and Judge Bryant. We were all in the center of a
1 Senate Select Committee on Presidential Campaign Activities, et al. v. Richard M.
Nixon, individually and as President of the United States, Civil Action No. 1593-73, 370 F.Supp.
521 (1974), affirmed, 498 F.2d 725 (1974).
-2-
growing storm under ever-demanding press attention and called on to confront difficult
constitutional problems in the face of ever-changing facts. The parallel proceedings on the Hill
affected our own timing and certainly intruded on efforts to maintain an atmosphere of judicial calm
and thoughtful deliberations. For example, Senator Ervin, Chairman of the Senate Select Committee
inquiring into Watergate, in a rush for headlines sought to subpoena tapes1 from President Nixon
which were vital to Judge Sirica’s criminal case and pertinent to the Ehrlichman criminal case before
me. This would have compromised the trials and increased pretrial publicity to some defendants’
prejudice. Judge Sirica asked me to handle the subpoena, which Nixon resisted; and with tongue
somewhat in cheek, I sustained President Nixon’s claim of Executive Privilege (see Letter from
President Nixon to me dated February 6, 1974) to keep the judicial proceedings before Judge Sirica
on track. Similarly, the managers of the House Committee considering possible impeachment of
President Nixon were concerned with our work but more considerate. They were willing to delay
a bit if the Ehrlichman matter could be moved to a conclusion rapidly, and I gave assurances to the
lawyers for the Majority and Minority that the Ehrlichman trial would be done by about the end of
June — I hoped.
The only defendant in the Ehrlichman case assigned to me who attempted an excessive
defense was Ehrlichman himself. Colson pled guilty. Liddy offered no excuses. Barker and
Martinez correctly claimed they had acted to protect the security of the United States on White
House orders from Hunt, Colson, et al. It was Ehrlichman’s defense that brought me into a sharp
-3-
confrontation with President Nixon during pretrial discovery.
The trial itself was more or less routine once a jury had been selected. The defense was
feeble and arrangements worked out with the press went fairly smoothly. Pretrial was a different
matter. The course of the trial depended on whether or not President Nixon was personally involved
and whether claims of national security or the suggested right of the President to withhold White
House materials needed by the defense were sustained. Rumors were flying around. I did not want
the trial to start unless it could be finished. It was necessary to pin the President down and settle the
merits of any obstacles presented.
Initially Ehrlichman suggested he had acted on orders from President Nixon to protect
national security. He made elaborate requests for papers from the Defense Department, CIA and
Justice Department. The President denied any advance knowledge of the break-in into the offices
of Ellsberg’s doctor or his staff’s participation in the planning in an April 29, 1974 letter. However,
he made a broad attempt to protect White House and agency documents on the ground that it was
his overriding responsibility to protect national security. I struck down this obstacle in a long
opinion, United States v. Ehrlichman, 376 F.Supp. 29 (1974), 546 F.2d 910 (1976). The way was
still open for Ehrlichman to press his claim to examine government records of various security
agencies, but he made no effort to do so, making it crystal clear that his claim that he acted for
reasons of national security was merely a ploy.
The really bitter confrontation concerned Ehrlichman’s request to see his own papers. They
had been taken from him and sealed in a White House vault when he was fired by the President.
Informal requests for access for himself and his lawyer had been denied. I held a hearing and
supported Ehrlichman’s demands, indicating that any secret or irrelevant material could first be
-4-
screened by me in camera. The White House still resisted. Obstacle after obstacle emerged.
Ehrlichman could look at the papers alone but could not copy them or make notes. Then when I said
he could make notes and have a lawyer, observers would be required to be present to overhear
lawyer-client talks. Hours were limited. No table or chair would be provided. Counsel for the
President, James D. St.Clair, a respected, experienced Boston trial lawyer, insisted he was following
presidential instructions. I hinted in open court that this intransigence could lead to dismissal of the
indictment against Ehrlichman, but the White House refused to budge.
On June 10, 1974, I finished an opinion directing the President to show cause why he should
not be held in contempt or the indictment dismissed. This opinion is in my papers, but never was
issued. I realized that if it issued, President Nixon would, in all probability, be impeached. Perhaps
I had somehow failed to impress the White House with my hints that dire action would be taken and
given the national consequences of my proposed action, I decided to make a final effort.
I asked St.Clair and Ehrlichman’s lawyer and the prosecutor to come to chambers, and after
repeating my clear demands for release of Ehrlichman’s files, I appealed to St.Clair’s sense of fair
play. I had been involved in several antitrust cases as a lawyer and knew he was a successful
attorney in this area. I said, “You must make it apparent to the President that he is being unfair.
Imagine how you would feel if the U.S. sued one of your clients for criminal antitrust violations and
the Department of Justice refused to show you papers its people had taken from your client’s files
and there were no other copies.” He said he would take my message to the White House. The
President gave in, probably never realizing how close he came to disaster — or did he know?
Finally, it was necessary to get the President’s sworn testimony before the jury. His letter to
me of April 29, 1974 was not enough. The Jefferson and Burr controversy and Marshall’s ruling
-5-
were the only genuine precedent. I decided to try interrogatories, drafted a short, precise set, boiling
down Ehrlichman’s lawyer’s long-winded, mostly irrelevant efforts, sent it to the White House and
the sworn responses were read to the jury.
There was in this unusual case always the unexpected until the very end. When we reached
the day for final argument, the Courthouse was an armed camp. The cellblock had been seized by
armed convicts and my courtroom was closed. I arranged to have the sequestered jury taken to the
old courtroom used by the D.C. Court of Appeals where there still was an ancient jury box and held
forth there, sharing Chief Judge Reilly’s chambers. An old friend, he was most helpful and handed
me a short nip of bourbon when the verdict finally came down.
The various letters from the President are in my papers and may take on more meaning
against this background. The Watergate scandals would never have occurred if the many lawyers
involved had remained true to their profession; but their failure did not, in the end, undermine the
rule of law.
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Appendix 7
SIRICA – WATERGATE
A high-visibility case places enormous pressure on the trial judge. This is especially the
situation when a matter of wide national interest is filed in the U.S. District Court for the District of
Columbia because Washington, D.C., harbors an experienced, cynical, widely varied national press
corps, foreign and domestic: TV, newsprint, columnists, magazines; and when a high-visibility story
develops, they never stop reporting, even when there is nothing in particular to write about.
Judge Sirica handled the intense press attention of Watergate like a pro. There were often
press meetings as he started from his home to court in the morning and he seemed always available
for questions. He became an enormously popular public figure during the turmoil of Watergate.
Within the Court, he turned over the day-to-day affairs of the Chief Judge to Judge Hart and
exercised his prerogative as Chief Judge to assign and control the ever-increasing volume of
Watergate-related matters. He sent many key cases to me; campaign contribution matters to Judge
Hart; and some other matters to Judge Bryant.
Judge Sirica and I were not involved away from the courthouse. Our friends and interests
were different. During Watergate we worked together intimately and without friction, often seeing
each other daily.
The pressures of the trial itself on Judge Sirica seemed to grow. It was obvious that his entire
judicial career would be largely remembered by how he handled the major Watergate trial, which
he had assigned to himself and cleared his decks to handle. There were many novel issues; some
novel defense motions had no precedent. He hated graft in government and wanted the truth to come
-2-
out, but because he had come to the bench through local Republican politics he sensed every ruling
he made favorable to the defense would be looked at by those who didn’t know him with “cover-up”
suspicion. He wanted to be fair to both sides, and the pretrial motions made it more difficult to
handle. He could not sleep too well, would pace up and down the corridors and often checked
difficult decisions with former Chief Judge McGuire and other judges he might find available.
Judge Sirica’s chambers and mine were on the same floor. I was also deeply involved in
Watergate cases. Both of us were very early risers and usually the first two judges arriving at the
courthouse. He often came and talked with me in my chambers before he opened court in the
morning; and sometimes his law clerk, following his suggestion, would check his way of expressing
a ruling with me. He could ignore advice as readily as he would accept it and always did what he
thought best. I felt I helped him a bit more often than not, but not always. Once when I ruled that
the press could have access to tapes received in evidence in his case, when the issue came up in a
collateral matter he turned over to me, he promptly took the matter back, ruled the other way and
only much later the United States Supreme Court agreed with my view.
There were times, on the other hand, when I was successful in reworking the text of a ruling
he proposed to make and helped to clarify the point he wanted to make. He had a short temper on
occasion, and I would counsel him to keep his legitimate anger over some of the legal theatrics to
himself.
He was very excited but cautious when McCord’s famous letter came to him sealed. He
speculated it might contain a confession, a bribe, or perhaps a wholly irrelevant scandal, designed
to hurt the President or someone else. When the letter was finally opened in the presence of the FBI
and interested attorneys, he knew the case had broken wide open and what followed is history.
-3-
When Congress later turned to the Independent Counsel problem and began to fashion a
permanent statute, some on the Hill had the idea it would be desirable to put the appointing power
in the United States District Court for the District of Columbia. Judge Sirica and I wrote a letter
turning the proposal down after consulting the full Court. None of us had any enthusiasm for the
idea.
The strong support Judge Sirica received from the Court of Appeals, which, at that time,
recognized the difficulties under which he had labored, and his own strong stance and excellent
public relations, all combined to make him a national hero. People trusted him and he helped to
bring influence and prestige to the District Court and the federal bench generally.
4/10/91 Gerhard A. Gesell
Appendix 8
s
THE STATUTE OF LIBERTY JULY 3 , 1986
NATURALIZATION PROCEEDING
Once a month our Court holds special naturalization
proceedings to swear in about 50 or more new citiz-ens.
some other neighboring United States District Courts, our
proceedings are bir more elaborate.
chosen by the Bar Association, the Marine Color Guard advances
the Colors, the presiding Judge makes some remarks, and there is
a coffee reception afterwards under the auspices of the Daughters
of the American Revolution and other patriotic groups. It is
simple but impressive.
proceedings at the Archives in conjunction with anniversaries of
hisrorical events. Once when I presided, Ross Perot gave a very
moving talk, and all four pages of the Constitution and the Magna
Carta were on display.
Unlike
There is a special speaker
1′
On occasion we have held these special
1986 was the year to celebrate the one hundredth
anniversary of the Statute of Liberty and elaborate festivities
were scheduled in New York City stretching over several days
during the July 4th holiday, with everything from the magnificent
tall ships to Elvis Pressley “look-alikes.” Since I happened to
be the Morions Judge in early July, I became unexpectedly
embroiled in the unusual series of events summarized below.
It all started with a March 12, 1986, letter from the
Immigration and Naturalization Service of the Department of
Justice, the body responsible nationwide for processing
applications for citizenship, whose duty it is to make certain
that a l l technical formalities have been satisfied. The letter
advised that on July 3rd there would be a national swearing-in
ceremony to be broadcast by ABC television from E l l i s Island,
with similar judicial ceremonies tied in by satellite from Los
Angeles; St. Louis: Washington, D. C.; Miami: Independence,
Missouri; Boston and Philadelphia. The letter stated that “The
Chief Justice of the Supreme Court is scheduled to swear in
applicants at each hearing via the televised hookup.” “The TV
production will be in good taste and will respect the dignity of
Court proceedings. President Reagan and the Chief Justice would
not be involved had they not exacted such a promise from Wolper
[:the producer]. ”
1-
We heard that as many as 15,000 new citizens would be
taking the oath from the Chief Justice. It was suggested we hold
our normal full naturalization ceremony on the steps of the
Jefferson Memorial and that ABC would take shots of our ceremony
during the televised portion emanating from New York. This
seemed like a good idea, considering the assurances and high
sponsorship, but details were lacking and many praccical
questions that arose could not be answered when we asked
questions.
Unfortunately, there was nobody in charge. Wolper, a
Hollywood producer, was in charge, but all detailed- arrangements
were in the hands of AEC. Uncertainties continued. Finally a
meeting was set up at the Jefferson Memorial. I went with a
Deputy U. S. Marshal and court personnel. Park Service,
Naturalization, and Bar Association people were on hand. We were
told the program should be so arranged that the Chief Justice
would give the oath by TV monitor precisely at 9:07 p.m., but no
thought had been given to the formal court proceedings that, by
law, had to precede this event. After much discussion the
various functionaries took heed of this fact and tentative
arrangements were made. We needed at least 125 chairs, tables,
parking spaces, a rainy day alternative because there was no
shelter, and it looked as though the normal tourist traffic could
not be held back. Still no one was in charge. With the aid of
the Park Service and the Bar Association, some of these gaps were
filled but the Naturalization and Immigration people offered no
help and we broke up with little nailed down.
I went of€, to Maine the middle of June for a week
thinking that everything might nonetheless fall into place. When
I returned I found that ABC had finally supplied more details
about its plans.
sing two songs after taking the oath — America the Beautiful and
This is My Country — and immediately after the oath was given by
the Chief Justice a commercial would be televised during the
two-and-one-half minute l u l l when the Chief Justice would fly by
helicopter from Ellis Island to join the President on Governor’s
Island. I was told that when the Court staff objected to the
songs, pointing out it would be dark and the group might not know
the words, ABC confidenrly had replied they would “dub in“ sound
and “pan” from a distance. In other words, they would fake it if
need be! It had further developed that the Chief Justice’s oath
would be purely symbolic and wirhout legal effect because he
could only administer a binding oath to those in his immediate
presence on Ellis Island. I was very troubled.
Someone had told them the new citizens would
3
This all seemed most unfortunate. I couldn’t believe the
Chief Justice was aware of what was going on and I could not
allow show business gimmicks to take over the court proceedings.
I reported my information and concerns to lhe Chief Justice’s
personal staff and public relations people, made several calls,
but never heard a word. The Supreme Court was still in session,
the Chief Justice had just resigned, and impeachmeht proceedings
involving a judge of another Circuit had arisen. These and other
matters naturally had higher priority. I simply couldn’t get
through.
After waiting a week I told Chief Judge Aubrey Robinson I
1′
thought our participation should be dropped. A few telephone
calls indicted that some judges in other cities chosen to be
involved in the affair were becoming concerned and one had
already cancelled, saying “the Courts are not in the
entertainment business.”
We decided to cancel and I wrote the Immigration and
Naturalization Service saying I felt arrangements were not in
good taste, as promised, and that we were not going along because
the Court proceedings were being turned inco a pageant over which
1 had no control. Because various newspaper reporters, rival
broadcasters and some members of the public had been asking
questions about out court’s program and some had planned to cover
or participate, we released the letter, wichout comment, to the
public and the other members of our Court.
The response was varied. ABC said it wouldn’t lose any
money, thus emphasizing its narrow focus. David Wolper, the
impresario who had directed and designed the Liberty Week-end,
4
however, was angry. He pleaded with me over the telephone but to
no avail, He was crude and vulgar. Soon the Commissioner of
Immigration and Naturalization, with his lawyer, met with Chief
Judge Aubrey Robinson and me for a full hour, putting on every
kind of persuasion, but we stood our ground. We assumed Wolper
had agitated someone at the White House. False rumors floated
around that I had been disciplined by the Chief Justice and was
changing my mind and it was apparent that Wolper was pulling
every string. This increased the publicity until this rather
simple decision became a national news event kicked off by a
front page story in the New York Times on June 28, 1986, headed
“Judge Citing Commercials, Drops TV Citizenship Oath. ” This was
followed by another piece in July 4, 1986, headed “Judge Gesell
Has it His Way, Without TV.” The telephones rang off the hook. I
must have had a dozen requests for interviews on talk shows and
the press built things up in their usual fashion.
,
I
I avoided gecting involved in any way and turned to
arranging our own program €or 4:OO p.m. on July 3, in the
Ceremonial Courtroom at the Courthouse. The Immigration and
Naturalization people remained unresponsive and our own people
had to write or telephone many prospective new citizens to be
sure all were aware of the change of plans for fear belated
written notices fpom Immigration and some of their half-hearted
calls might be insufficient.
Immediately I had my own TV problem. While the federal
courts have strict rules against TV or radio or photographers in
Court, ceremonial occasions may nonetheless be opened to these
media in the discretion of the presiding judge. ABC had
5
negotiated an exclusive w i t h Wolper for Liberty Week-end and NBC
and CBS were mad. They asked to have their cameras a t our
courthouse. Public TV and radio, Time Magazine and others also
wanted to cover. ~y t h i s t i m e there appeared to be considerable
i n t e r e s t in what a normal naturalization ceremony was l i k e and I
thought if the public could see and hear what we were going to do
the contrast w i t h the a r t i f i c i a l i t y of New York would make a
point. Accordingly, I opened the proceedings t o the media with
the following strictures.
(1) No commercials to interrupt proceedings would be
shown.
(2) Only one stationary TV camera would be allowed
-pooled coverage.
(3) No l i g h t s in eyes of audience or Court.
(4) Two s t i l l photographers to remain stationery and
pool pictures.
( 5 ) One small radio microphone.
The press f u l l y cooperated i n every way. There was no
disturbance or intrusion. The 99 new citizens and many others
f i l l e d the Ceremonial Courtroom to capacity and a l l went
smoothly.
some of the new c i t i z e n s . To placate the s t i l l grumbling
Naturalization people I told the new citizens they could take
After my remarks,l I went down and shook hands w i t h
another symbolic oath from the Chief Justice on the Jefferson
Memorial steps a t 9:00 p.m., but only twelve went. I d i d n ‘ t .
6
This was our first experiment with full TV-radio mass
press coverage of a court proceeding and fortunately it went
well.
Our decision not to allow commercials in the midst of a
court proceeding struck an unexpected response. There were a
number of favorable editorials and wide press coverage. Members
of the public call chambers indicating strong approval. The mail
was very heavy — all favorable. A few samples are excerpted
below and give the tone of the unanimous reaction that came my
way. A judge is so used to hate mail that these often thoughtful
letters carried a double significance. In a small way, perhaps,
respect for the Federal Courts was enhanced.
,
Here are samples2 from letters received:
Just a word to let you know how much your highly
unusual (in these days) move was, and how much your
personal decision as a judge, has done €or many of us.
I’m sure there are many more of us than you will hear
from.
* * *
Thank you for understanding that becoming a naturalized
citizen of the United States is a decision made with much
thought and feeling.
Thank you for understanding that a landmark in my life
was not for the benefit of commercial television, just as
it should not have been in July, 1986.
* * *
To introduce commercialization into such ceremonies is
to reduce, if not desrroy, the dignity and significance
of the naturalization process, and the office which you
hold.
* * *
——–_-___–
*None of these excerpts are from letters written by friends or
acquaintances, although many in this category also wrote.
7
I want to tell YOU how much I admire you for deciding
not to participate in a “spectacle.” As an immigrant
myself becoming a citizen is a wonderful special
spiritual experience – not to be commercialized.
Congratulations for your courage and integrity. It is
not easy to go against the “tide.”
* * *
My thanks to you for emphasizing the serious commitment
of citizenship by refusing to make it part of a
commercial entertainment. The dignity of the Court
should not be seen as part of the “fun.”
Many of us are grateful for your stand.
* * *
Please accept the gratitude of one citizen for your
action in refusing to participate in a lowering of the
dignity of ‘the U. S. courts.
I hope, with modest expectation of fulfillment, that
your refusal to join in a televised, commercial-sponsored
administering of the oath to new citizens on July 3 , chat
this will be educational for some of our fellow
Americans. I fear the act may be lost in our national
hoopla. But better this than acquiescing in a demeaning
scene.
* * *
Please accept my deep thanks for your wisdom, sobriety,
dignity and good taste in withdrawing from the Statue of
Liberty gala in the manner that you did.
I am happy that there is someone like you, who refuses
to surrender our values to the show business managers of
our country.
* * *
Please accept my congratulations for your having
resisted the attempts to make your official duties a part
of the circus that will be televised next weekend.
* * *
I agree with you completely — a naturalization
ceremony is not commercial entertainment.
hucksters out of it!
Keep the
* *
Thank you for having the courage to speak out.
8
* * *
Perhaps your welcome quiet exercise of judicial
prerogative will help reverse an ugly and destructive
trend. In any event, it was heartening and inspiring to
find someone in public office willing to stand and say,
“No farther. “
* * *
The quiet dignity of a court room is the proper place
to officially welcome our immigrant friends. A judge
whose solemn duty is to administer the oath should not be
discarded or replaced by a voice and picture on TV. New
citizens deserve personal attention not an Orwellian 1984
subscitute.
* * *
May I congratulate you on the courage and the wisdom
you showed in refusing to make a naturalization
proceedingla part of a television show. You have shown
that even in this entrepreneurial age not everything is
to be measured by the bottom line.
* * f
We read of your refusal to participate in the July
Fourth parody of patriotisn and your decision to swear in
the new citizens on July 3rd. We support your decision
with enthusiasm. This country stands to lose all of its
values to commercialism. Your stand helps to slow that
process.
* * *
It is heartening to know that one voice survives wich
the courage to speak out against the nauseating
cheapening of the high standards on which our country was
based.
* * *
I applaud your decision to abstain from participacion
in the conkercialization of the statute of liberty.
only wish that there were more leaders of integrity and
tasce.
I
* * *
My parents were immigrants who arrived in Boston years
ago. In their lifetime they instrucced and were sponsors
€or many “new citizens“ in the Northampton/Hadley,
Massachusetts area. The induction of these people was a
solemn and most often moving occasion. It was done with
9
dignity. I hope if they were alive today, they would be
saddened by the carnival atmosphere of today’s Liberty
celebration.
The fact that everything went so smoothly and many
possible mistakes were avoided was due to the interest and
dedicated work, under pressure, of LeeAnn Flynn and the
naturalization team in the Clerk’ s Off ice.
Gerhard A. Gesell
October, 1986.
10
Remarka at the Naturalization Ceremony
July 3 , 1986, by
Gerhard A. Gcsell
United State8 District Judge
This formal court proceeding is required by law. Congress
has for many years placed upon United.States District judges like
myself the pleasant responsibility to complete the process that
brings you into full citizenship. Every month naturalization
proceedings like this are held here and elsewhere throughout the
country under prescribed rules and procedures. It is traditional
I €or the presiding judge to make a few remarks at this point to .
enphasize the sighificance of the oath you have just taken.
This nation has had a long-standing and continuing
willingness to welcome and accept men and women from all lands
who seek citizenship here. The Statute of Liberty being honored
in ceremonies today symbolizes that commitment. We have
liberalized uniform rules of naturalization, always recognizing,
as Chief Justice Marshall declared in 1824, that a naturalized
citizen becomes a member of the society, possessing all the
rights of the native citizen and standing in the view of the
Constitution on the footing of a native.” [Osborne, 22 U.S.
827-1
By accepting citizenship today you are now a part of a
great experiment in government which has relied heavily on the
talents and energies of its naturalized citizens. Indeed, if you
think about it a moment, you will realize we are a nation of
immigrants trying to make a unique experiment work — an
experiment whose ideals are so forcefully stated in the
Declaration of Independence and embodied in our Constitution.
Our government is unlike that existing anywhere else in the
world. O u r s is not a government originating in takeover and
– fraud, or one imposed by designing individuals for their personal
advantage. N o r is this a country of military dictators,
hereditary rulers or one governed by a self-chosen rich elite who
control the destiny of the poor.
Our experiment in government has a system to assure that
I the will of the people, not the will of its officials, shall
decide what is beit for the public good.
society where those who live here have the right to be left
alone, to speak out for what they believe is best for the good of
the whole, and to worship as they choose. We want to live and
work in peace, free f r o m molestation, subject to rules set out in
laws chosen by us as the most appropriate for our general
welfare. This was and is a new, radical and daring experiment.
We seek to perfect a
Remember, this is a very young country. In many
countries of the world, people trace their heritage back hundreds
of years to relatives who lived in the same town or village and
worked in the shadows of the same ancient church or buildings.
Not so here. This is a nation of immigrants, like yourselves,
and the children, grandchildren, and great-grandchildren of
immigrants who have preceded you. As recently as when my
grandfather came here from Germany, he went to the far West and
was wounded by an Indian arrow. The land was vast, our
3 a.
population waa relatively small, and the country was still
opening up.
As life has become more crowded and complex, our
experiment in government demands more than ever that each
citizen get involved in the process of government to assure that
it continues to serve the best interests of us all. This is your
high responsibility that comes with the privilege of citizenship.
Do not take our form of government for granted. It will prosper
I Only if those born into citizenship and those, like you, who are
sworn into citizedship, remain vigilant and participate to keep
our form of government working. It must not be allowed to wither
because the people for whom it was created simply don’t care
enough.
There are some who mistakenly believe that the civil
liberties guaranteed by our Constitution authorize them to impose
their own private views and moral standards upon everyone else.
These people are sometimes strident, excessively demanding and
well financed. They would interfere with religious beliefs and
practices of others, or dictate what we or our children can read,
or control intimate family affairs and other aspects of
individual personal lawful conduct. We should be wary of these
people and examine carefully what underlies their vehement
assertions. Some special interests may not always be as
concerned with our welfare as they purport to be. They may well
be peddling forns of bigotry and intolerance in disguise and, if
,
4
so, they must be thwarted to assure that the basic principles
underlying our unique form of democracy are preserved.
We have moved ahead as a nation because we- strive €or
something better.
continue to prosper if we become smug, self-satisfied and think
only of ourselves.
to continue simply because things are that way. We have in the
past worked to correct deep-rooted societal problems such as
poverty, racism and sex discrimination. These and other
problems, such as illiteracy, housing, unemployment, concerns for
the aged and drug addiction, continue to challenge ingenuity.
This land of opportunity and promise will not
We have not been willing to allow inequities
11
We must not give up, but continue to learn and improve,
using the talent and experience that people like yourselves bring
when they come into our citizenship from other lands.
i
In short, do not be willing to leave government to
others — participate. Demand competence in your leaders. Ours
must be a vital, not a complacent, conforming, wholly
mat e r ia 1 is t ic society .
You can help in some way. Seek out the good, shun the
bad. Vote, work, help others, be useful, obey the law, speak out
against intolerance, get involved. Use your minds, not your
fists. Your voice will be heard. If you do this your
citizenship will be especially valuable and will remain a
precious tool by which you can gain the good life you sought by
coming here and our radical experiment in government will
continue to flourish.
~
-1-
Appendix 9
McCABE
On an occasion when I was early on the bench, it fell to my lot to call the calendar of ancient
criminal cases to see what could be done, if anything, to lighten the docket load of our overburdened
Court. A case came up a bit out of the ordinary — a forgery case, itself ordinary enough, but the
circumstances were unusual. A defendant serving time for check irregularities in Virginia was
lodged in the D.C. Jail to stand trial on two forgery and uttering indictments arising out of a prolific
check kiting scheme, the modus operandi by which bad checks follow bad checks to cover balances
in banks initially created by deposit of bad checks, all to the end of creating larger withdrawals from
nonexistent funds. The details are of no account. He was guilty and readily admitted same. But the
defendant’s affairs were complicated, for other charges emanating from other alleged forgeries were
pending in a number of jurisdictions. It seemed best to bring all outstanding federal offenses within
one jurisdiction and, with due care, work out a single disposition which would place defendant one
with society and after sufficient time in the penitentiary hopefully somewhat rehabilitated. He was
a likeable chap, as indeed many confidence men are; educated and not without family advantages.
The D.C. Jail authorities liked him and, sorely pressed for funds under miserly congressional
appropriation, he had moved to a position of some consequence handling records at the institution.
Having received assurance that the court was sincerely interested in his future, having
changed lawyers a number of times, and having set the stage to his liking, defendant pled guilty and
some three weeks of technical proof tracing checks through many banks and gullible tellers was
avoided. The Probation Office was asked for a detailed report, a troublesome docket problem was
-2-
resolved, and justice at least appeared to be moving in the right direction.
Soon a Probation Officer sought to interview the miscreant only to be informed that the
defendant had been released and had gone his way. It soon developed that a master forgery unique
in the annals of jurisprudence in the District of Columbia had occurred.
Working from his position of advantage at the D.C. Jail, defendant had drawn a spurious
order in convincing legalese absolving himself of all debts to society and directing his immediate
release. The paper he executed was almost flawless — signed by the Assistant U.S. Attorney,
defendant’s lawyer, and the Judge. It was made even more authoritative by stamp, clerk’s signature
and other indicia of total regulatory. But, in fact, it was a total, albeit a highly imaginative, fraud.
Lacking only a proper seal, the forged order had cleared unsuspecting jail authorities who wished
defendant well and sent him unencumbered on his way.
Few forgers can equal this distinction for most forgeries are more materialistic, and money
motivates the work so painstakingly done. Forgers have pride in their work. This cannot be
questioned. Not so long ago a man accused of forgery was acquitted by a jury when, putting his
constitutional rights to one side, he took the stand to advise the jury that he was a superior forger
with many convictions but could not possibly have been responsible for the crude, makeshift forgery
of which he was then being accused. This pride in work done earned him at least temporary
freedom.
The instant case can only evoke admiration for a daring job well done. Imagine the thought
and care that went into it. It’s sublime bravado. And, of course, the feeling of accomplishment and
amusement which accompanied him as he walked to freedom one day after pleading guilty. He will
return, for the FBI will not smile on such conduct. Retribution will be sought, but his moment will
-3-
not be forgotten. Unfortunately his combination of skill and personality will no longer be sought in
the jail’s record office — or will it?
Appendix 10
INTERVIEW BY KAREN AVERAGE AND LISA DOUGLAS OF JUDGE GESELL
FOR CIRCUIT NEWSLEITER
FEB. 1991, AS EDITED BY JUDGE GESELL
Judge Gerhard A. Gesell is an active and illustrious member of the District Court bench, as
well as a devoted, longtime resident of Washington, D.C. Al the same time, he maintains a farm in
Loudoun County, Virginia, contributes his time and expenise to legal and educational programs, and
manages to escape. for rare moments of peace, to an island retreat in Maine.
Judge Gesell was born in Los Angeles in 1910 and raised in New Haven. Connecticut; his
father was a professor at Yale University and an eminent physician and child psychologist. Judge
Gesell graduated from Phillips Academy, Andover, and renirned to New Haven to attend Yale. He
continued his education at Yal.e Law School and received his J.D. in 1935. Judge GeseU spellt his
summers earning part of his college and law school tuition by sailing boats. He t0ok time to visit
and “walk across Europe” as well. At Yale Law School, be directed the Legal Aid Bureau; during
those years of widespread financial adversity. over 1800 clients received assistance.
Upon graduation, Judge Gesell moved to Washington, D.C. for “six months experience .. .!
haven’t decided if rve had six months experience yet,” he q u ips. Fie accepted a position at the
Securities and Exchange Commission, where he worked in Various legal capacities for five years.
In 1936. Judge GeseU married Peggy Pike. He now says, “We are still married … our golden wedding
was some ,cime ago.” Judge Gesell comments: ‘T haven’t done much shifting around,” in reference
to his years of residence in Washington, D.C. and his enduring marriage.
In 1940, Judge Gesell left the SEC to join Covington & Burling as a partner. He remained
at the firm until his appointment to the Court in December IQ67. During his years at Covington &
Burling, Judge Gesell was a litigator, and now admits he occasionally misses the excitement a trial
lawyer experiences in a bard-fought case. He also served as Chief Assistant Counsel for the Joint
Congressional Committee on the Investig11tion of Pearl Harbor Attack (1945-1947) and Chairman
of the President’s Commission on Egual Opportunity in thcAnned Forces (“I 962-1964). Judge Gesell
notes, “I have had 27 years of public service and 27 years of private service,” and has operated in all
branches of the government. Judge Gesell credits Doris Brown, his secretary, for her skill in helping
the management of his cases and who takes full blame for his mistakes. Doris worked with him for
Fifteen years at Covington & Burling, and accompanied him to the courthquse when he was
appointed to the b.ench.
Judge GeseU enjoys the atmosphere of the courthouse; he has long held an “interest in the
court system” and in the “history of the Circuit.” He recalls the restructuring of the D.C. Court
system in the 1960’s, As chairman of the judicial conference comminee monitoring 1he
reorganization. he recalls working with Judge Wald, Judge Pra(t, Judge Flannery, Judge June Green
-1-
nnd Judge Parker, among others; who were then leaders of rhe Bar. “The people who were brought
together on that committee” worked together on the bench as well: they shared “intetest in thecoun
system, and the reorganization brought several of us to this Circuit.”
An active member of the co mmu nit)• before coming to the bench. Judge Gesell made a
particular contribution in the arc.a of education. ‘Tvehad a lot to do with educallon all my life,” Ile
remarks. Judge Gesell h,1s taught classes at the University of Virgmia Law·School an.d lectured at
Yale Law School. In addition, he served as Chairman of the Board of Saint Alban’s School for Boy.s
and on the board of the Madeira School For Gi rl s . Judge Gesell also served on the board of
Children’s Hospital.
Judge Gesell considers Washington, D.C. his home. His grandfather practiced law in the
District, and he himself has been a member or the Bar for over ufly years. “I love Washington.” he
says, and asserts lie has long been and continues to be an advocate of Home Rule.
Nevertheless, Judge Gesell does not neglect his Virginia farm. He and his wife raise cattle
and hogs, and grow soybean,s, corn, hay and wheat. Those who enjoy honey can sample some of
Judge Gesell’s special brand; he is a beekeeper and tends 10 sixteen hives.
While not at work as a judge or a farmer, Judge Gesell enjoys spending time with his wife.
Peg. and their two children Peter Gerhard Gese.11 and Patncia Pike Gesell. Peter is a political figure
in Cambridge, Massachusetts, and has long worked with lhe mentally handicapped. Peter has three
children: Sabina, who attends Vassar College: Alexander and Justine, who are students in Germany.
Pa1sy lives in New York and works for a computer company.
Judge Gesell is an avid reader; be recenllycompletedHedrickSmith’sThe New Russians and
Thomas L. Friedman’s From Beirut to Jerusalem, and enjoys Tony Hillerman’s dctec1ive novels as
well. When asked about his hobbies, Judge Gesell notes “three hobbies I don’t have: I don’t talk to
newspapers, I don’t give speeche.s. and I don’t write articles.”
·2-
Appendix 11
COMMENT
The dilemma federal trial judges face today recalls Socrates’ struggle to reconcile a wrong
done the individual citizen under the law of the state. Most federal trial judges in criminal cases
today are forced by the law to impose sentences which too often are grossly unfair, given the
individual circumstances of the particular offender. Their judicial experience and knowledge of
the individual’s background tell them this, but the law mandates an unfair result. The defendant
is free to protest but those charged with the duty to enforce the law find this no solution. Some
judges, a few, have chosen to resign rather than perpetuate the tyranny imposed under current
legislated formulae. But this is no solution. Their place in the present circumstances of this
republic will be taken, in all probability, by judges of less conscience and experience. As in so
many matters of public consequence, and this is but one, the willingness and ability of the press
to make the effort to focus the issue for public discussion must be approached. Public attitudes
are hostile. But constitutional values are eroding and we are saddling our urban generation with
broken homes, increasing welfare rolls, and enormous expense, without making any appreciable
deterrent of the crime rate. One only has to read the situation outlined in the Fatal Shore to learn
that when England faced comparable concerns, resort to Draconian sentencing was selfdefeating.
We must question our legislative premises more sharply and turn down a different
road.
G.A.G.
Appendix 12
JUDGE GESELL’S LAW CLERKS
Jan.-June 1968 John N. McBaine, Jr.
Boalt
July
1968-69 Alan Dranitzke
Yale
1969-70 John F. Dienelt
Yale
1970-71 William H. Jeffress, Jr.
Yale
1971-72 Timothy W. Bingham
Yale
1972-73 Michael C. Devorkin
Yale
1973-74 Roger W. Fonseca
Yale
1974-75 E. Donald Elliott, Jr.
Yale
1975-76 Mark I. Levy
Yale
1976-77 Scott Blake Harris
Harvard
1977-78 Seth P. Waxman
Yale
1978-79 Eric B. Amstutz
Yale
1979-80 James J. Brudney
Yale
1980-81 Peter A. Barnes
Yale
1981-82 John D. Echeverria
Yale
1982-83 Lynn A. Stout
Yale
1983-84 John C. Millian
Yale
1984-85 Patrick A. Malone
Yale
1985-86 Michael E. Tankersley
Harvard
1986-87 Kenneth Chesebro
Harvard
1987-88 Kevin Czinger
Yale
1988-89 Elizabeth Cavendish
Yale
1989-91 David Halperin
Yale
1991-92 Scott Siff
Harvard
1992-93 (Feb.) Dorothy Ames Jeffress (Amy)
Yale
COURT CRIERS
1968-79 Edwin Roan
1979-93 Roy Smith
SECRETARY
1953-93 Doris P. Brown
MY
“JEALOUS MISTRESS”
1932 – 1984
,
Gerhard A. Gesell
For Private Reading 0d~’
MY
“JEALOUS MISTRESS”
1932-1984
–
,’ bY
Gerhard A. Gesell
For Private Reading Only
Preface
” . . . The lawyer writing about his own
career is unobjective to a degree that fei:
other professions have the skill to attain,”-
A sign of approaching old age is the urge to put down on
*!
paper an account of your life. I’ve often marveled, however,
at the willingness of some, as old age creeps in, to lay out
for public consumption intimate details of strained
family relationships and the human frailties of friends,
clients and colleagues. Memoirs of this type may be a
necessary catharsis, but they are surely in bad taste and
perhaps written more for mercenary reasons than for anything
else. While I have to admit that the urge to put something
down is upon me, (although I won’t admit approachinq old age),
I’m going to confine this account to my professional life as a
trial lawyer and judge. Were I to attempt to unburden more
personal recollections, it would be of little interest, for
there’s nothing more boring than an account of a long and
happy marriage, with loving children, an untroubled youth with
supportive parents, and friends and associates who never
interfered but gave help along the way. Yet, fortu-ately,
such has been my fate.
1′
The reader should also be warned that I have n:, startling
disclosures to make, nor gossip to peddle. While I have never
held a position of major national importance, many challenging
-* / M. Boudin, Stanford Law Rev. Vol. 35, No. 3 at 9.626.
p r o f e s s i o n a l o p p o r t u n i t i e s came my way during a changing
s i g n i f i c a n t period of our h i s t o r y . I venture t o hope t h a t
family and close friends w i l l enjoy t h i s rambling.account,
which records t h e joy and excitement of a l e g a l career i n the
n a t i o n ‘ s capital during those i n t e r e s t i n g t i m e s .
G.A.G.
GETTING HOOKED
1928- 1935
When I went to Yale as an undergraduate in 1928, I had
little sense of what I wanted to do with my life. Some who
came down with me from Andover had it all worked out. They
would be doctors or they would be engineers and straightaway
went to that strange offshoot of Yale called Sheff. A few
were headed into family businesses, but most of us had no idea
what we were going to do. So we took liberal arts with a
vengeance.
write, so I majored in’English. But Yale was a disappointment
in this regard.
One thin3.I know I wanted to do. I wanted to
The fates were against me from the start. In high
school, before Andover, I had lost the writing prize to an
ingenious classmate who had copied an excellent article from
the National Geographic. At Andover, where I went for an
extra year of high school, I was too busy trying to meet the
demands of the first formidable teachers I had ever
encountered. They insisted on quality not mere attendance at
class and there was no time to write.
Coming down to Yale I eagerly signed up for Prof. Benny
Nangel’s daily theme course. Naturally, the first day we were
each asked to write something terse and pithy, which we all
attempted to do. When the next class convened, Professor
Nangel announced, “Will Mr. Gesell please see me after class,”
which I did with some fear and trepidation. To my surprise,
and, in retrospect, to his discredit, he said, “Your piece was
excellent. I can teach you nothing. Get into some other kind
of course.” There were no other options.
–
Somewhat later I went into the competition for the -Yale
Daily News. I was first in writing at the end of the
competition, but lost out under a system that gave credit for
getting advertisements as well as writing. Unlike some of my
competitors whose businessmen fathers had useful connections,
I was not able to do much on the advertising side. Another
fellow and I commis’erated (he also had lost out) about the
world in general, and decided that we’d had enough of Yale.
We called up a man named Beebe at 1:OO a.m., woke him from a
sound sleep in New York and said we wanted to go with him to
the Pacific, where the newspapers had reported he was going to
do some underwater exploratory experiments accompanied by a
group of gorgeous girls. It looked intriguing. He was
cordial, but firm. He said we couldn’t go.
Later, when Johnny Moore and ,I were working for The New
York Times as runners, we had a moment or two of glory as
sports writers. We gave a play-by-play description from the
Yale Bowl press box of the first game between Yale and
Georgia. But my writing ambitions were never satisfied.
I tLought I wanted to be a professor of English. My
professor, Stanley Williams, was an inspiring teacher, and
with his encouragement 1 set out again to write a paper to see
if I could win a Henry Fellowship, which would take me to
England for a year preparatory to corning back to teach
English. My composition had to do with the influence of
Coleridge on Poe, and I concluded that there was absolutely no
influence at all, only that each of them had read the same
books! Quite properly, although I got second place and an
II All , I lost to my fellow classmate, who wrote about some
recently-discovered Longfellow letters. At the time, I felt
he had gotten a special advantage. Norm Pierson won the
prize, and came back to Yale and became a distinguished
professor of English,’ Losing the Henry, I felt, condemned me
to nonacademic pursuits. It was very sad at the time, but in
retrospect, this was a very lucky loss. I would have been a
lousy English professor; Norm was a great one.
So much for Yale undergraduate life. I was never
seriously challenged intellectually. I got mediocre marks
except when I could write a long paper. Most of my courses
were boring. It seemed to me I wasn’t headed anywhere in
particular. It was a time, 1 suppose, of growing up. 1 read
and read and read; often with little understanding. More and
more I turned to biography, history, personal accounts of
historical events. I learned a lot, but I had no focus.
Actually, my good friends were few. My resources were
negligible, and I had no consuming interests. During summers
I worked as a camp counselor, as tutor on Long Island, or
traveled on foot, usually alone, around Europe. As
graduation approached, reality loomed. The country was in a
deep, deep depression by 1932. I doubt that there were many
jobs. At least, no one came knocking on my door, and I didn’t
even know where to look.
So I decided to go to law school. I didn’t really know
much about what lawyers did or what law school was all about.
It was a way to escape from more difficult decisions, and in a
vague way I had an impression that law was the key to
political success and public service. It seemed a good
gamble. 3.
The summer after graduation, before law school, I tramped
around Europe, mostly in Germany. In my knapsack I carried
Cardozo’s two books of essays: The Nature of the Judicial
Process and The Growth of the Law. These books are on my
study shelves today. I read them over still at least once a
year. They are full of underlinings and questions which I
indicated in the margins as I read them that summer. They
sunk in deep. They gave me a vision of the function of the
law, its role in an ordered society, and its creativeness in
relation to societal needs.
I entered law school; excited, a bit wary, but very
eager. For the first time in my life, I soon felt challenged
and stimulated intellectually. I knew I was on the right
track. The law school opened up vistas I had never suspected,
raised issues I had never sensed, and gave me a feeling of
purpose and commitment. There had been no lawyers in my
5
immediate family, and nothing in my growing up had involved
lawyers. My grandfather on my mother’s side, Jefferson Chandler,
had been a distinguished lawyer, but I never knew
him. He was in his time a member of the elite Supreme Court
Bar practicing in Washington, D.C., at the turn of the century
arguing about a hundred cases in that Court. He was President
McKinley’s lawyer, and almost a Supreme Court justice.
While my mother and father constantly read books and
discussed ideas, their own attention was directed more to
literature and sciencd’ than to the world of business and
governmental affairs.
in our family, however, that ran pretty deep, and law school
soon awoke it in me. My father’s father had left Germany as a
young orphan in his teens after firing off the village cannon
stuffed with copies of a tabloid called The Free Thinker into
the face of the approaching constables. My mother’s mother
was the daughter of an Irish revolutionary who, like Emmet
before him, had fled from Ireland. My mother and father were
both liberal minded and occasional discussions of politics at
the dinner table always tended that way. I don’t remember
much of the talk. My father admired Wilson and La Follette.
There was a latent strain of liberalism
Mother was a leader in the Vote for Women movement in
Connecticut. 1 well remember the time when Dad returned home
after being one of the two men who walked in the Vote for
Women’s parade. He was smeared with rotten tomatoes thrown at
him by the people along the way and laughing heartily, well
pleased with his performance.
6
We were aw-a re of Dad’s German heritage. He recalled how
native-born Germans were hauled in cages through the streets
of Madison, Wisconsin, and ridiculed by the populace during
the First World War. As a result German was never spoken in
the home, but I sensed the discrimination and anti-German
prejudices of that time. As in any university community there
was also constant talk of academic freedom at the table.
These and many other issues fell into clearer focus at law
school.
Yale Law Schohi was a stimulating place. It had few
rules. Nothing there was particularly sacred. You were
tossed up against many harsh realities from the beginning. I
drank it in. From the outset it was not for me a matter of
getting good grades, but getting involved. I took the
exciting courses. When a particular project interested me, I
got A’s. On some matters that I was required to take as
compulsory courses, I treated the subjects with indifference.
I got indifferent marks. Thurmond Arnold, William 0. Douglas,
Harry Shulman, and later Mc Dougal were my heroes. The
old-time professors; Vance, Corbin and Lorenzan, all superior
scholars and men of distinction, seemed less interesting and I
paid less attention to their teaching.
The New Deal was underway. The country was concerned
with immediate and different problems. My faculty heroes were
the ones that were in the thick of things. Douglas’s several
small seminars i n t h e area of public control of b u s i n e s s were
amazingly e x c i t i n g . H e brought into t h e classroom case
s t u d i e s of corporate machinations and drew on h i s experienccs
i n Wall S t r e e t . H e aroused my first i n t e r e s t i n t h e pioneer
work of the SEC. Arnold, who was then writing t h e Folklore of
Capitalism and Symbols of Government, taught procedure w i t h a
f l a i r and almost d a i l y made fun of our naive preconceptions.
Shulman knew the realities of the labor struggle, and brought
them i n t o t h e classroom with accounts of current events based
on h i s work as a labor a r b i t r a t o r . These men had l i t t l e
regard for custom.
and contempt for fools. They played hard, sometimes drank
hard, had r o l l i c k i n g humor and were fun to be around. I was
i n t r i g u e d by t h e i r involvement i n current events, and anxious
to get i n t o the fray as they relayed the latest Washington
gossip.
‘They,worked hard, they had high s t a n d a r d s ,
The New Haven Legal A i d Society, which gave l e g a l
a s s i s t a n c e to the poor, was p r a c t i c a l l y unmanned but swamped
with p r e s s u r e s generated by the deepening Depression. I
volunteered and soon almost l e f t classroom a c t i v i t y entirely
to handle t h e flood of ” c l i e n t s .” Few students had shown any
s u s t a i n e d i n t e r e s t . On t h e other hand, I stuck with it. I
p r a c t i c a l l y had the place t o myself, handling about 1 , 2 0 0
” c l i e n t s ,” which took about 40 hours a week during law school
when it w a s i n session. Much of my vacations and a l l of two
Summers w e r e spent at the Legal Aid O f f i c e , ” p r a c t i c i n g l a w .”
There I saw t h e l i f e of t h e poor i n a l l of i t s tragedy as the
Depression l i t e r a l l y overwhelmed New Haven’s somewhat
antiquated economy. Evictions, family support, marital
problems, wage claims, i n j u r i e s , were matterg–of d a i l y
concern. I s t i l l remember seeing a group of starving people
storm the mayor’s office demanding bread, and t h e large family
t h a t wanted t o dig up t h e i r father to g e t the gold from h i s
t e e t h . I ‘ v e never forgotten those people who were so
desperate. I worked very hard t o help them, 50 t o 60 hours a
week i n the sunper. I came t o see f i r s t h a n d the u n f a i r r u l e s
and i n d i f f e r e n t legal system t h a t had grown up for resolving
some of the day-to-day problems of these people. In an
article I sought to get the Connecticut law of attachment f o r
debt changed. And a l l t h i s , plus what I read in the
newspapers, led me t o become a confirmed and dedicated
follower of Franklin Delano Roosevelt.
-1 T
My interest grew u n t i l at the end of t h e second year I
t r i e d to land a job with the SEC, planning t o complete l a w
school at night in Washington while working for the
Commission. James Landis, then Chairman of the SEC, gave me
an interview, and when I told him what I had i n mind, asked m e
t o hang around because he wanted to take me t o unch. A t
lunch he talked me out of my harebrained scheme. H e told me
t h a t he had done t h e same thing and always r e g r e t t e d it. He
got so worked up that he made, for m e , the fortunate m i s t a k e
of saying t h a t i f I ‘ d go back t o Yale and f i n i s h up, he would
9
guarantee me a job a t the Commission when I graduated. I w e n t
back and stayed the course.
As law school was winding down, the harsh f a c t emerged
t h a t I had t o get a job. We a l l knew there were no- jobs.
Some classmates ended up policemen or went into some other
work and were never lawyers. Some were lucky because they
could go t o family firms or t o Wall Street, which was taking a
few top- ranking students, which I was not.
event, w a s n ‘ t for me. I toyed with the thought of p r a c t i c i n g
i n Connecticut and be’coming a senator i n due course.
New York, i n any
With t h i s i n mindr I drove to Hartford:’ and had an
i n t e r v i e w with a leading law firm there. To my g r e a t
s u r p r i s e , I was offered a job. I was about to be married, a t
least I hoped so, and the idea of a c t u a l l y going t o work a s a
lawyer in Hartford had me i n a s t a t e of absolute b l i s s . As
I got up, having sealed the d e a l , I casually asked, “By t h e
way, what is the pay?” I was quickly t o l d t h a t the f i r m paid
nothing the f i r s t year, and i n my somewhat e g o t i s t i c a l manner
I asked, ” W e l l , supposing I do exceptionally w e l l , what w i l l I
be paid the second year?” I was t o l d t h a t they had one person
who w a s making i n h i s second year $50 a month. I t o l d them
t h a t I thought they should give the job to a more deserving
person, and walked out.
-* / On J anua ry 1, 1933 I had become t h e proud owner of a 1 9 2 9
Model A, 4 c y l i n d e r , Ford roadster for $40.
– ^-
lo
THE SEC YEARS
1935-1940
At this point, it was clear what I was going to do. I
would have to call Landis on his raincheck and join the SEC.
The fact my uncle, Bud Mathews, was a member of the Commission
didn’t hurt, and I got a job. I took the Connecticut Bars,
proposed to Peg, my wife-to-be, midway in the preparation,
passed the Bars, and went to Washington to go to work for the
Commission at $2,000 per annum in the fall of 1935.
When I arrived at the SEC as the most junior attorney, I
was fortunate to join a very superior law office staffed by a
group of talented men. The General Counsel, Johnny Burns, was
a savvy Irishman who ran his overworked staff, small as it
was, by a very simple expedient. He dumped responsibility on
everyone willing and able to take it. If you survived, you
got more to do. If you didn’t, you shuffled papers in a back
room. We were literally writing laws, then interpreting them,
and then implementing and enforcing them by regulations and
lawsuits. At the same time, we were figuring out what –
additional laws were necessary to make the security markets
work. It was a night and day and weekend business. The
General Counsel’s office was busy every night, often to
midnight and beyond. There was much to be done. The “esprit
de corps” was high, and of course the opportunities,
particularly for a young lawyer, unlimited.
As I have already suggested, I had found the girl I
wanted to marry, but Peg was keeping me dangling from Detroit
for about a year. I ha2 no ties to anyone else, only the job
at hand. 1 ate it up, and welcomed the law as the “jealous
mistress” she has remained ever since.
I started out writing drafts of opinion letters. The
General Counsel’s office was staffed with a group of-very bright
Harvard Law School graduates, well trained in legal disciplines
by their work on the Harvard Law Review. These fellows were
consummate draftsmen, and once they had a law in place breathed
life into it by writing carefully designed interpretive opinions
in response to the dny questions that came in from Wall Street.
There was much to learn about drafting that law school had
never taught me. It was sink or swim, and I managed barely to
keep afloat at the beginning.
I had never dictated anything. We used “secretaries”
from a pool. My first attempt was a fiasco! I prepared a
carefully written opinion letter that I was going to read to
the secretary, pretending it was dictation, and covertly propped
my pad up against a book and rang for someone from the pool.
She arrived, crossed her pretty legs, and poised pencil and
pad. At the first words I spoke, she fainted dead away. She
had never taken dictation before! We were all beginners.
Matters progressed. Soon I was in the enforcement area,-* /
-* / My first argument in a Court of Appeals was in the 4th
Circuit where I had the hopeless task of trying to get the
Court to ignore its own precedent and to make matters worse I
was obliged to file a brief for the other side expressing the
view of one of the SEC commissioners. I was treated with all
the great courtesy of that fine Court and lost. Houston Natural
Gas Corp. v. Securities and Exchange Commission, reported at
100 F.2d 5 (1938) incorrectly reports I was only on the brief.
12
the t r i a l work of t h e o f f i c e , where I d e f i n i t e l y wanted to be.
I t r a v e l e d with Big T i m Callahan, Jack Flynn, and seasoned
postal inspectors hunting down i n t e r s t a t e stock racketeers.
There w e r e few regulatory controls. Stock fraud was rampant.
Backed by our a d m i n i s t r a t i v e subpoena power and where possible
with grand jury a u t h o r i t y , we grabbed books and records,
closed down “bucket shops,“ f i l e d c i v i l i n j u n c t i o n s u i t s ,
developed cases f o r criminal prosecution and i f indictments
r e s u l t e d , we aided a s s i s t a n t U.S. Attorneys a t t r i a l . Talk
about experience!
s t a r t e d . In no t i m e , I was taking testimony, d r a f t i n g c o u r t
papers, preparing witnesses to t e s t i f y , presenting prosecution
r e p o r t s t o t h e Department of J u s t i c e , and w a s often in court.
We had t o f e r r e t out t h e f a c t s and then present them. There
w a s a b i t of l a w i n it, but mostly I was learning how to make
facts work. How to prove them, what they were, and which
facts w e r e u s e f u l .
1’
I w a s over my head i n it from the moment I
I n the middle of 1936 I was p a r t of a team t h a t went i n
to clean up the c i t y of Detroit.
stock swindling t y p i c a l of what was going on throughout many
p a r t s of the country.
o t h e r s sought SEC a s s i s t a n c e when it became apparent t h a t
matters w e r e out of hand as f a r as the e f f e c t i v e n e s s of s t a t e
regulatory a u t h o r i t i e s w a s concerned. I went t o Detroit with
a “ f l y i n g squad.“ In a s h o r t period, a f t e r we moved i n , we
brought nine indictments and a large number of c i v i l a c t i o n s .
It had become the c e n t e r of
The Detroit Better Business Bureau and
1 3
A s I recall it, indictments naming some 51 defendant were
lodged and in 18 injunction suits we covered a wide spectrum
of the security business. Convictions resulted, fines were
collected, and many injunctions were obtained.
During the Detroit clean-up the SEC’s activities were on
the front page almost every day. State legislative inquiries
were initiated, the Better Business Bureau became more
involved, some prominent financial figures were arrested and
our commission was praised editorially.
Our efforts brought about a great deal of publicity. We
were in the local headlines almost every morning and night.
The Michigan governor called upon the Bar to conduct an
investigation of the Security Commission, and the headlines
ran in bold letters across the top page of the paper night
after night , “Huge Stock Fraud Bared, ‘I “Boilerroom Tactics
Aired,” “Fifty Driven Out in SEC Quiz,” “Brokerage Firm
Enjoined by Federal Court,” “Public Loses $350,000,” “U.S.
Indicts Seven Brokers in Oil Stock Sales Here,” and so forth.
It was a very busy time, and we were very successful in the
effort.
The work was exhausting, satisfying and exciting. The
fact Peg, my bride-to-be, lived in Detroit didn’t make the
assignment any less attractive, but I got little sleep.
Because of leads developed in Detroit, along with Jack Flynn
and, finally, alone, I became responsible for an investigation
which ended up in a substantial mail fraud trial in Atlanta,
1 4
Georgia known -as United States vs. Kopald-Quinn, et al. We
worked up the facts, got indictments and the principals were
convicted.
..
The scheme to defraud was simple, but devastating. The
swindlers sold various stocks by telephone, 50 percent down
against promises to the customer that they would never have to
pay the additional 50 percent because the stock would rise.
They purported to hold the stocks against future delivery.
Orders for stock were obtained in large quantities until the
boilerroom salesmen had literally thousands of people on the
hook for 50 percent down waiting for their particular
securities to rise. In the meantime, the swindlers jiggled
1*
the stock of Stutz Motorcar Company, manipulating it up and up
and up while gradually calling the attention of all of their
customers to this rapidly rising security. At the crucial
moment, they turned the telephone boiler rooms loose and
switched all of their customers to Stutz stock, still at 50
percent down. They sold Stutz in amounts more than four to
five times the total capitalization of the company. Then they
“pulled the plug” and allowed the stock to sink to practically
nothing and wiped out all their customers, pocketing all the
proceeds to the tune of millions of dollars.
This was a very shrewd, wide scaled operation, which
escaped state security attention because of phony options
which the swindlers concocted to show stock was available from
phony companies located in different states when in fact it
wasn’t. The prosecution went forward in Atlanta, Georgia,
against the entire group and in spite of some difficulty with
the judge, we got convictions for the major offenders after
several months of trial. I helped the U . S . Attorney,
testified and was at the trial table throughout. Talking with
one of the chief defendants on one occasion during the trial,
he said the best sucker list was a list of doctors who had
been swindled once before. There is no doubt that the public
is gullible, and these bucket shop salesmen took full
advantage of human frailties until the Commission stepped in
and stopped operationq of this kind.
In March 1938 I got a big break. I was put in charge of
the Richard Whitney investigation when his firm was suspended
from the New York Stock Exchange for insolvency. Whitney was
J. P. Morgan & Co.’s broker, recent past president of the
Exchange and long active in the management of the Exchange.
He was the spokesman for Wall Street in its violent opposition
to everything the SEC was attempting to do, and appeared
frequently before congressional committees in a pious manner
to insist that the government should keep its hands off. His
firm’s insolvency was a major financial event.
William 0. Douglas, then chairman of the SEC, quickly saw
the implications of Whitney’s difficulties. He had long been
convinced that the Exchange ran like a private club, overly
tolerant of a members’ questionable conduct, and unconcerned
with what he perceived to be the public interest in a fully
open, well-regulated public security market place. A thorough
review of what had occurred might well demonstrate these
failings and lead to more adequate regulation of the Exchange
to assure the fairness of the markets which the SEC was
responsible for in so many ways. That was my assignment.
–
Rumors were flying everywhere. “Sell ’em” Ben Smith had
told Gay, the president of the Exchange, that Whitney was
broke and borrowing all over lower New York. Gay did nothing.
Whitney’s friends and acquaintances, from whom he had borrowed
large amounts on ah’unsecured basis, had kept silent. Some
were proud the great man had come to them; others were afraid
to ask questions. The House of Morgan, it was said, had
protected him. He was not just insolvent, some claimed he was
a thief. So it went. Some of these rumors were true, some
were false, no one knew the details. The investigation I
conducted was designed to uncover the truth and lay the
foundation for reform.
Many responsible people in the financial world, including
some members of the SEC itself, were, however, against a public
investigation. They were confident that nothing was wrong,
and they were concerned that what might be brought to light
would result In some kind of undefined market panic. Douglas
wanted to plow ahead with public hearings.:’ My preliminary
-* / I was sound asleep at my parents’ home in New Haven when
he telephoned on a Saturday night about 2 A.M. to ask how I
stood on the issue!
look into the matter convinced me there should be a full
public airing of the scandal. Ganson Purcell, the able head
of the Trading and Exchange Division of the Commission agreed.
Others did not. It was necessary first to hold limitgd private
hearings behind closed doors before we had full approval to go
ahead with a public airing of the scandal. The private
hearings made it clear that the management of the Exchange had
protected Whitney, that it could have uncovered the
burgeoning scandal at an early date and indeed could have
prevented much of the disaster that eventually occurred.
The public hearings-were high drama. I conducted all the
examinations of the witnesses and received enormous publicity,
much of it favorable and some even flattering. For example,
under the heading, “Rah! Rah! Yale,” Raymond Clapper wrote
in part:
“Never in the whole lifetime of most lawyers
does such a conspicuous professional opportunity,
or fat part, come. In private practice, where
opportunity is supposed to be so much greater
than in Government service, a youngster three
years out of law school would never be heard of
in public. He might be a good man but his job
would be the drudgery of working up the case so
that one of the big shots in the firm could pick
his brains, take the case second-hand, and
relying on a combination of his own wits plus the
prompting of his anonymous young assistant, grab
the glory, the prestige, the headlines and the
pictures in the papers–and, oh, yes, of course,
the fat fee.
“There are not fat fees in the Government
legal service but who can say there is no
opportunity? Young Gesell was taken green out of
law school and has been working for SEC three
years. He was competent and he developed
rapidly. He handled the Detroit bucket-shop case
and worked up the big Atlanta fraud case. When
SEC begafi investigating the Whitney affair, he
was assigned to the job. He prepared himself
with extreme care and thoroness. In addition to
that he had a gift for compact, succinct
questioning. He worked with economy of effort,
avoiding useless questions, and handled his
witnesses with a cool, sure touch, but calmly and
without browbeating, revealing skill that most
lawyers are years in acquiring.”
And another headline read, “Yale Man Outstanding Example
of Young Government Careerist.” Some of this was because I
was a freak from Yale, not a “Frankfurter hot dog” from
Harvard. Some perhaps because of the way things had gone.
There was much more; for example:
1.
“The Securities and Exchange Commission
lawyer who has been doing such a suave and
effective job in uncovering the ramifications of
the Richard Whitney scandal is a 27-year-old
youngster, and this is his first big case.
“His name is Gerhard A. Gesell. Born in
California, he was brought to New Haven, Conn.,
as a boy, and lived in the shadow of Yale
University until he joined the SEC about two
years ago. One of his teachers at Yale was Prof.
William Douglas, now SEC chairman.
“Tall, stocky, with streaks of gray running
through his curly black hair, Gesell looks older
than 27, though his manner and smile are
youthful. Unlike most prosecutors, Gesell does
not storm and glower at witnesses, but acts
calmly confident.
“He is polite and quiet spoken, but stands
for no monkey business. The presence of the
mighty tycoons of J. P. Morgan and Company
neither awed nor disturbed him. He was
courteous, but firm–as Thomas W. Lamont, veteran
Morgan partner and sharp-tongued legal fencer,
learned when he attempted high-hatting tactics.”
I had to stop reading much of this stuff in order to keep
a cool head.
1 9
The leaders of Wall Street; J. P. Morgan himself, and
George Whitney, Richard Whitney’s brother, a partner of J. P.
Morgan, all testified. Many of the witnesses were forthright
and honest. Some were very evasive. Some were casual, some
lied, others were nervous. I remember, for example, the
chairman of the Business Conduct Committee of the Exchange, a
meticulously-groomed man, sitting in the witness chair
breaking one by one the links in his platinum watch chain and
putting the links in his pocket to control his obvious tension
while he testified, $nd tried to bait me with references to my
28 years of age, to the laughter of some 10 Davis Polk
partners assisting him.
But the facts were overwhelming.:’ Richard Whitney had
stolen securities from his wife, from his clients, from the
New York Yacht Club where he was treasurer, from the gratuity
fund of the Stock Exchange itself, for which he was
responsible, and from others. He had borrowed from everyone
including his brother without revealing the true state of his
affairs in order to get more money to send after bad money he
had already unwisely invested in various Florida ventures.
The managers of the Exchange had ample reason to suspect that
things were going awry, but had done nothing.
-* / In the Matter of Richard Whitney, et al., Vol. 1, Report
on Investigation 11/1/38, Vols. 11 and IV hearings and
exhibits, Before the Securities and Exchange Commission,
U . S . Printing Office.
LU
In the middle of the i n v e s t i g a t i o n , w h i l e we were
attempting t o develop a thorough case t o include a l l who were
involved, Tom Dewey pushed himself i n t o t h e act. H e was then
S t a t e ‘ s Attorney General.
g u i l t y the same day, and Whitney w a s off to Sing Sing before
anybody could say boo. Under the arrangements t h i s made
H e indicted Whitney, who pled
necessary, I had Whitney on t h e witness stand i n the SEC
proceedings up to midnight. As I ended h i s i n t e r r o g a t i o n , I
saw before me a t a l l , still well-groomed man; with a s t i f f
collar wearing thk Porcellian Club charm on h i s watch chain,
a r r o g a n t and calmly insolent. He had bawled me out when I w a s
five minutes l a t e f o r the evening s e s s i o n . In response to my
last question, when I asked him t o t e l l me when he f i r s t knew
he was i n s o l v e n t , he r e p l i e d , “I am not insolvent. I can still
borrow money from my friends.” With t h a t a b s u r d i t y , I turned
him over to the New York State s h e r i f f s , and he went off to
p r i s o n . H e was f i r s t baseman on the prison baseball team, but
never did anything else of consequence–a t r a i t o r t o h i s class!
N a t u r a l l y , the press and those with p o p u l i s t leanings had
a hue and cry a g a i n s t J. P. Morgan & Company. Morgan had been
fair game i n the p a s t during s e c u r i t i e s i n v e s t i g a t i o n s . The
f i r m f o r many reasons, was vulnerable. George Whitney,
Richard Whitney’s fathep, w a s a partner of the firm and had
l e n t Richard Whitney a -l a r g e sum of money. Richard Whitney &
Company acted as the Morgan broker on t h e cloor of,the
Exchange. I refused t o join thf! hunt and t r e a t e d Morgan l i k e
a
any other witness.:’ The proof showed how a great lawyer had
acted at time of crisis. It made a deep impression on me.
John W. Davis was counsel for Morgan. The evidence
showed that shortly before Richard Whitney was declared
insolvent and the Exchange rang the bell suspending him from
the Exchange, Richard Whitney had gone to a Morgan partner,
Bartow, who was playing cards at the Links Club, and asked for
financial help for his firm. When Bartow found Whitney was
not simply “temporarily embarrassed, ‘I but was in deep trouble,
he took him from the,hinks Club and went directly to Davis
Polk to confer with Dav&s. Davis quickly gleaned the
essential facts and said, “We must go immediately to see Mr.
Morgan.” The three men drove out to Great Neck, Long Island,
and told Morgan in a succinct manner that Richard Whitney was
over his head and insolvent. He wanted money. Morgan asked
what to do. Davis said, “If you lend this man a cent, it will
be the end of the House of Morgan.” Morgan said he would loan
nothing, and Richard Whitney & Company went under the next
day. Davis’s shrewd advice demonstrated what a skillful
experienced, foresighted corporate lawyer, thoroughly familiar
with public attitudes, can do to rescue a client if he speaks
with candor at a moment of difficulty.
After the hearings were over, Stock Exchange reforms
followed, but I had little part in these for reasons that will
-* / When he testified before Congress years earlier someone
put a midget in his lap!
22
soon be apparent. I should mention, however, that throughout
the hearings the New York Stock Exchange was represented by
Covington & Burling. The work was being done by Dean Acheson,
who was assisted by Mr. Burling’s son, Eddie. The hearings
were held both in Washington and New York, and we rode back
and forth together frequently on the evening Congressional,
gravitating naturally after a hard day to the club car for a
drink. We became friendly enemies. I enjoyed immensely
Dean’s ability to pick up a pad and spin off doggerel, making
fun of the witnesses or the events of the day. More of this
later, but this was, as it turned out, an important contact in
my life.
1’
E
Soon after I finished Whitney and settled into the
2
routine of administering hearings and daily events, I received
a call one morning from Douglas’s secretary who said, “The g
chairman wants to see you right away.
in the back door.” Of course, that’s what I did. Douglas
Come up quickly and go
looked at me and said, “Gerry, you’ve just agreed to be
Special Counsel for the Temporary National Economic
Committee.” I said, “What the hell is that? And he said,
“Don’t ask any questions.” He buzzed for his secretary and
said, “Show Mr. Corcoran in.” In came my friend, Tommy the
Cork, with a friend of his, Bill Youngman, who he was pushing
for the TNEC Special Counsel job. Bill Douglas said, “Tom, I
know you know Gerry Gesell.
just agreed to be Special Counsel for the Commission at the
You’ll be interested to know he’s
LIGHT ON THE SACRED COW.
TNEC insurance hearings.” Tom looked somewhat abashed, and
after a short conversation he left.
.-
The result of this was that for 18 months I ran the
insurance investigation which the Securities and Exchange
Commission conducted before the Temporary National Economic
Committee of the Congress. This involved managing a staff of
some 35 to 40 people along with a wonderful guy named Ernie
Howe, assisting with the preparation of two important
monographs, and conducting lengthy hearings before the
committee in the’large Senate Caucus Room. To go into the
details of this hard work I fear would be boring, but we did a
great deal to bring forward an understanding of the
extraordinary economic power of the life insurance companies.- * /
Again the publicity was enormous and again I was in the eye of
the storm. Here is an indication of the publicity taken from
cartoons. They showed Gesell as David in a lion skin
attacking the insurance company Goliath armed with a sword
labeled legal talent. Uncle Sam giving the insurance
companies a cleaning up in a tub. A statute of a complacent
cow, the insurance companies, with a bright light shining on
it. A building housing colossal mutual insurance companies
with seven trustees marching in wanting business for their
banks, law firms, oil, etc. The industry mounted a campaign
-* / Investigation o f Concentration of Economic Power –
Temporary National Economic Committee Monographs 2 and 28.
Testimony Parts 4, lO,a, 10, 12, 13, and 28. U . S . Printing
Off ice.
claiming the government was about to socialize the companies
and take over. Both parties had planks in their platforms
antagonistic to any effort at federal regulations, and I was
attacked as a hatchet man by some and praised by others as an
infant prodigy and near genius.
For me, the most interesting part of the investigation,
apart from the important experience gained from administering
a staff and conducting congressional hearings under intense
public exposure, were my contacts with retired Justice Louis
D. Brandeis. They cape about this way.
Before the hearings started, I received a telephone call
from a man who said, “This is Felix Frankfurter.” I had no
idea who Frankfurter was, other than I recognized he was some
kind of a professor at Harvard Law School. He said, “I want
to have lunch with you,” and we went to lunch. He had
been reading the transcript of the Whitney investigation,
which had appeared verbatim, full page, in The New York Times,
and said that he was teaching a class in evidence at Harvard
Law School based on my questions. He wanted to know where I,
a Yale man, had learned to ask questions that were so
effective. I joshed with him. I couldn’t figure why he was
talking to me. We had a friendly luncheon, and that was the
end of the matter.
When the TNEC insurance study got going, however, he
called me again and said that Brandeis wanted to see me.
Brandeis, of course, had a fetish against bigness. One of the
ST. mST-DISPATCH, SLWDAY, mBXUm19, 1939
, ..
/-
.. I
’ i .I ,’ ~…,
… ..
MEETING OF THE TRUSTEES. , *! – ..,. . ~~ -=
things he had done in his life which he felt was perhaps as
important a5 anything he had accomplished was to have created
the system of savings bank life insurance in Massachusetts.
This system had been very successful.
inexpensive insurance by eliminating the enormous expense of
agent solicitation. I went to see Brandeis with Frankfurter,
and thereafter I saw Brandeis frequently. Peg and I were also
occasionally invited for Sunday teas to Brandeis’s stark
apartment on California Street. He followed the insurance
proceedings very clodely, sending me notes of encouragement
and commented on the events as they went forward.
It provided ‘sound,
Apparently what had particularly caught his interest was
my initial presentation which opened the insurance hearings in
the large Senate caucus room. We demonstrated that boards of
directors of the Metropolitan Life Insurance Company and the
Prudential Insurance Company, the two largest mutual life
insurance companies at that time, were self-perpetrating, not
the choice of their respective policyholders. These companies
both sold door-to-door “nickel and dime” burial or death
insurance, as it was sometimes called. Company agents
testified they had forged ballots with the policyholders’
names in order to present to the management the appearance of
overwhelming support for the management which put out a
Hitler-type slate each year and then advertised the ostensibly
large but fictitious vote of support received in this
dishonest manner. They thus deceived many into believing they
i
26
were really mutual life insurance companies run and controlled
by the policyholders. Brandeis thought this testimony
exquisite, and he referred to it many times. He read the
transcript of my hearings each day, and commented on
developments by a note or a suggestion when I should come out
for a talk. He kept in touch even when he left for a summer
at Cape Cod. He hoped for more significant reform than
occurred and he was very disappointed when the government did
not take over the life insurance business or alternatively
come forward wits legislation breaking up what was then
believed to be mammoth concentrations of economic power
reaching $5 billion assets. But World War I1 was creeping
into reality and Congress had no taste for new approaches.
As time went on, I was less on the road and more in
Washington, and Peg and I made many friends. Until World War
11, Washington was a gentle southern city. The influx of
people to man the new alphabet soup agencies that blossomed
under FDR and his New Deal made housing scarce, but left the
city basically unchanged. Blacks, who were in those days
referred to as Negroes or colored people, were sharply
segregated and excluded from much of the life of the city.
They could not enter the theatres, the hospitals, the
libraries, and indeed were actually excluded from many of the
drug stores. They went to the back of the bus or trolley.
Concern for this discrimination was not in the focus of the
New Deal of those days. Many blacks were of the old school.
27
Polite as Pullman porters and frequently obsequious. It was
not unusual, walking to work, for a black to step off the
street and tip his hat as I went by. The women worked as
domestics primarily, or as nannies, the men labored in
construction or menial jobs.
The angry ferment then generating at Howard University
was never given much attention at first. Old Washington families
took particular blacks under their wing in the southern manner
and resented the growing migration of other blacks from the
South. They ignoredt’the occasional “uppity” black who in
frustration spoke his mind. The lines between blacks and whites
were strictly drawn. I was later blackballed from membership
in the Chevy Chase Club because Peg and I had entertained some
blacks in our home. All this, of course, changed with the
war.
Most of us coming to town had little interest in city
affairs. We were interested in party politics. The District
of Columbia didn’t even have a vote. Our attention was on the
national scene. The government itself was small and informal.
High officials actually were at home on particular afternoons
to entertain any visiting tourists who might drop in for tea.
YOU left your calling cards with people that you wished to get
to know better, including the White House. Mrs. Frankfurter,
I recall, was at home one afternoon a week. Indeed, Peg
frequently poured tea for her on those very simple occasions
and sometimes the Justice would drop in.
The White House was more a home than the office of the
President. FDR had only a handful of assistants. Practically
everyone in the government service, including myself then only
a $2,600-a-year attorney, was invited at least once a year to
a White House reception where FDR shook everyone’s hand and
Eleanor moved us all along the line with pleasant effective
formality.
in a hurry to cut through to get to the Occidental restaurant,
for example, you did just that. It didn‘t matter. Congress
was also less obtrusive. In those days sessions were
curtailed, many Congressmen went home to test the sentiment of
their constituents and to avoid the summer heat. There was
little or no air conditioning. The District Court itself, as
I remember, shut down for sixty days each summer. Social life
was simple. Rarely did you hear anything but shop talk at
cocktail parties or Sunday lunch. At the SEC we were all
embroiled in the work at hand, working long hours and
weekends.
The White House grounds were open and if you were
i’
On my salary, which was all we had, we rented a small,
comfortable apartment on California Street for $60 a month.
We had a part-time maid for $5 a week, and we traveled in a
second-hand Ford that cost us only $245, but which did have a
leakinq roof that required Peg to raise an umbrella when We
took it out in the rain. Gasoline was 14t a gallon!
The SEC offices, at the beginning, were in an old World
War I temporary building on the Mall. This was wholly
inadequate in all respects, particularly in the summer.
Sometimes the heat was so bad we had to close down. Later the
SEC moved to Pennsylvania Avenue in a building opposite what
was then the old Powhatan Hotel, where the work was-much easier
to handle in the splendor of that building. But there were
never any frills or perquisites with the job.
I ended up at the SEC with the fancy title of Technical
Assistant to the Chairman, which meant in simple terms that I
was a senior person and no one knew quite what to do with me,
there being no key spot open after I finished the TNEC inquiry.
By this time, Douglas had gone, albeit rather reluctantly, to
the Supreme Court, saying he didn’t want to go but he needed
the money, and Jerome Frank had become chairman. I don’t remember
anything in particular about this last job. It involved work
on Commission opinions and policy matters. I do recall that
after every Christmas we sent back apples, whiskey and other
presents the chairinan had received. I found him a delightful
but sometimes difficult man to work with. He was very wordy.
On one occasion, he had written an all-too-lengthy and somewhat
confused opinion, and I suggested that it could be written
in a much shorter space and boiled it down to twelve pages.
Frank was delighted. He said, “Exactly what I needed. 1’11
put it as a preface, at the beginning of the opinion.” I felt
1
both frustrated and amused.
During this period I became annoyed with all the attacks
on FDR from the Republicans who kept harping about how the
President was undermining free private enterprise using the
sinister SEC regulators as his tool. So I wrote a book in
1940 for laymen called Protecting Your Dollars which described
how the SEC worked, why it came into being and what it was
accomplishing. I wrote at night, completing the text in about
three weeks, found a publisher and thousands of copies went
out to libraries, politicians and curious buyers. The book
did no harm, helped some in the political campaign and was fun
to write. It was, however, never nominated for a Pulitzer
Prize! 7’
I had been with the Commission five years, and at age 30
it was apparent that if I wanted to practice law, I’d have to
get out of government and go to work in a a law firm. I knew
little about law practice, as such, and indeed was not sure
whether I could stay in Washington or would have to go to New
York City. Peg and I had talked it over, and we were
particularly keen on staying in Washington. As luck would
have it, Eddie Burling came in and asked whether I would be
interested in coming to Covington & Burling. Following up on
that, I talked with Dean Acheson and a bit with Mr. Burling,
Sr., whom I had gotten to know slightly in a social way,
having gone out to his cabin on occasion for Sunday lunch. I
accepted.
In a letter of thanks from the chairman, he said, among
other things: “In your Richard Whitney investigation and your
insurance study you leave personal monuments which will stand
and be admired for many years not only as extremely important
achievements in and of themselves, but as tokens of the
opportunities which await young men in government.” While any
monuments have long since crumbled, his latter comment hit the
mark. It was a good time to have been young and to have
entered public service. I was lucky to be involved in what
Lady Bird Johnson correctly called a “yeasty, exciting time.”
COVINGTON & BURLING YEARS
,* 1940-1967
Covington & Burling was the largest and best-known law
firm in Washington at this time. It already had a national
reputation. Judge Covington, a former Congressman, and later
Chief Judge of the United States District Court on which I was
later to serve, was an urbane, cultured and respected lawyer
with wide connections throughout the business world. Mr.
Burling was a shrewd and exceedingly bright westerner who had
come to Washington in the First World War to be counsel for
the Shipping Board. Covington and Burling were friends, and
they formed the partnership shortly after World War I and were
soon joined by Rublee, a civil libertarian, who didn’t much
like the law but enjoyed taking on leisurely foreign
assignments of a legal nature.
When I accepted the job there had been no discussion of
status, pay or the type of work I would be doing. When I got
to the firm, there were about 30 lawyers. Many of them had
3 2
come down from the Harvard Law School and had clerked for the
Second Circuit or for the Supreme Court. Three had clerked
for Brandeis. I was the first Yale man. Mixed in were some
unusually able, less spectacular personalities of sound
judgment and expertise in taxes, estates, administrative law,
and plain old fashioned litigation. The firm was a loosely
run collection of talented lawyers all prizing their
independence. The practice was growing, reflecting both the
high quality of the work being done and the fact that the firm
was the first in”the nation’s capital to seize the opportunity
to develop a nonlobbying practice for out-of-town clients.
–
When I went to work, the firm had its offices in the Old
Union Trust Building, and I started out on simple assignments
for Thomas Austern and Howard Westwood. I was beginning to
wonder a bit about money, because I had not yet had any
discussion of compensation. Paul Shorb, who was an
outstanding tax lawyer, dropped in to my office one day and
said he wanted to meet me because he always liked to meet any
new partner of the firm. This was the first indication I had
that I was going to be a partner! Later Mr. Burling sent for
me to discuss money. He went through a rather elaborate
analysis of what other people in the firm were getting and my
limited experience, et cetera, et cetera, and said he thought
the proper starting pay should be $12,500. I said I wouldn’t
take it, that I’d been making $7,500 at the SEC, and I wanted
to start at $7,500, because I knew I was worth that much,
‘
33
provided he would guarantee me one thing. He was interested,
and I said I wanted him to promise that he would pay me what I
was worth if I could prove my mettle. We shook hands on this,
and I started at $7,500, but was well above that figure before
the year was out. I did make one other condition. -1 told Mr.
Burling that I did not want to have anything to do with the
SEC, that I knew too many people there, and I didn’t want to
appear to be trading on my influence. He was delighted with
this, because the last thing in the world he wanted was more
business at that time. My hunch proved to be sound, because
several questionable characters came in wanting me to handle
something for them at the Commission, and I was pleased to
send them on their way.
It was soon apparent why I had been asked to come to C&B.
Dean Acheson was the senior partner, involved in complicated
trials. Spencer Gordon, who was a very experienced and
competent trial lawyer, kept away from long administrative
hearings and from trials that focused more on economic issues
than the law. He was a leader in the local courts, but
matters like the Stock Exchange representation which I
mentioned earlier fell to Dean Acheson. The antitrust
division of the Department of Justice at this time was
launching a major attack on cartels and patent abuses, and
E. I. du Pont de Nemours & Co., C&B’s then principal client,
was the major target. This work would have naturally fallen
to Dean Acheson, but he was leaving the firm for the State
Department. Qthers who could have handled the work had been
called up by the Navy Reserve for duty or were too busy with
other firm business. Actually, although the number of lawyers
in the firm was diminishing because of the threatened war, law
business was booming, and there were not sufficient competent
men available to do the firm’s business.
Thus, somewhat surprisingly, almost as soon as I arrived
at the firm I got the chance to handle C&B’s major account at
a time when that client was in deep, deep trouble. Before
long there were &me fifteen antitrust investigations going
forward more or less simultaneously involving almost every
aspect of du Pont’s business.
enthusiasm, and it kept me in court off and on for long
periods during the next eight or ten years. Du Pont gave me a
free hand and accepted advice willingly. It was prepared to
pay the freight and give its counsel the tools to do the best
job possible. No lawyer could have had a better client or a
better opportunity. We were shorthanded, extremely busy and
the days for me were long.
I tackled the work with
Although I had been a member of the Connecticut Bar for
five years and often in courts, the admissions committee
of the D.C. Bar took a narrow view of New Deal government
lawyers. My application for admission from Connecticut Was
denied on the ground I had not practiced law.
was outraged.
bfmotion when chief judge, and felt it was being distorted.
Judge CovingtOn
He had drawn the court rule governing admission
35
He filed a petition on my behalf and took it to each of 15
judges but only 7 agreed with him and I had to take the exam.
When I passed, praise the Lord, I went for my character
interview. I had listed Justice Douglas as a reference. When
the examiner asked how well I knew the Justice, I laid it on
pretty thick. Then he said, “That’s too bad, because he’s a
communist.” I took him on and gave him my views with force.
He must have decided I was a good advocate even if a fellow
traveler, because I was soon sworn in. Feelings ran high in
those days, and the 6ave dwellers of Washington were putting
up a staunch stand against all us intruders. I should have
emphasized my grandfather’s Washington practice and how my
mother grew up playing in Dupont Circle and attending
Georgetown Visitation Convent.
When the war broke out, I was at a Redskin football game,
and learned from the taxi driver after leaving the stadium
that the “Japs” had attacked Pearl Harbor. Peg was pregnant
at the time, and for that reason, I guess, among others, I
didn’t immediately enlist. Later it became impossible to do
so because of my age. 1 was an associate deputy air raid
warden (No. 7019) and used to march the streets of Georgetown
at night, wearing a helmet, to enforce blackouts. Also during
the war I helped Arthur Godfrey put on projects to raise funds
for the war effort and one or two nights a week I would go
down to the Belasco theatre on Lafayette Square to be a waiter
serving G I s who came in for a bit of relaxation.
The work for du Pont grew. There were both civil and
criminal cases to be tried for du Pont: The titanium and ICI
cases in the Southern District of New York, a criminal case in
Newark naming high officials of the company involving a
plastic named methyl methacrylate, and the Cellophane case
which was tried at Wilmington and eventually went to the
Supreme Court. There was also a General Motors case and a
paint case which I initially handled but which were tried by
my partner Hugh Cox, because there was simply too much for one
lawyer to handle‘.
There were other matters. I remember eight criminal acid cases
out in Indianapolis, and it seems to me there were proceedings
of various kinds in Wisconsin. In all of these cases I played
a substantial role. Initially in the early cases in New York
Cox was very talented and an excellent litigator.
the firm was teamed up with Root, Ballantine in one instance
and Cravath in another. The Cellophane case I handled
entirely on my own all the way to the Supreme Court and won
it. These were busy, challenging days, and I was frequently
at Wilmington, sometimes several weeks in a row.
It was prestigious business, and success attracted other
clients to the firm. I found myself involved with a wide
range of work for clients who came for help including Scott
Paper Company, Procter & Gamble, Upjohn, Parke-Davis, General
Electric, IBM, and Pan American Grace Airways. In addition,
there was a wonderful client that came in, the National
Football League. I handled litigation against the new
American Football League successfully up to the Supreme Court.
In addition, I did considerable banking work, having become
involved in the bank holding field through representation of
Transamerica, which was then in the hands of an extraordinary
man, Mario Giannini, a hemophiliac and a difficult but
interesting client who later was succeeded by an equally
remarkable man Frank Belgrano who became a good friend.
There was also considerable libel work for The Washington
-P’o st an old client of the firm, which for a while kept me in
various aspects of t;he paper’s business, including a very
exciting merger in 195$ which the Post pulled off with its
leading competitor The Time Herald.*/
came directly to me, but it was all because of the
extraordinary reputation of the firm and the knowledge that
clients had that the firm was well staffed in depth.
Much of this business
After days of preparation the unexpected slip of tongue
of a key witness, the failure of an opponent to seize an
opportunity when it arose, or the joy of watching a tactic pay
off — such are the things that few can appreciate unless they
have been through the mill. But there is not space here to
reconstruct trials, and, strangely, descriptions never equal
the real thing. Even if you read Carson’s cross-examination
of Oscar Wilde €or example, as I have done many times, only a
-*/ The Post soon afterwards went to other lawyers when its
owner became mentally ill.
38
small bit of the high drama comes through. Reading
transcripts of trials is always dull. Someday television
coverage of a trial will catch much that is lost in the
printed word, but the press as constituted today seems
incapable of doing anything approaching adequate coverage of
courtroom drama.
–
Lawsuits have brief moments of triumph or excitement, but
trials are hard work. There are long nights, unrewarding
preparations, and often well-laid plans go amiss when a
witness fails to come through as expected or the Court misses
the point you have so carefully presented. To put the
exciting moments into focus too much background must be —
developed and the reader yawns.
picture of how emotions were affected by a judge’s statement
he was going to jail some leading American businessmen when
the jury came in and the jury then disappointed him by
announcing a not guilty verdict.
prosecutor’s conduct while in a judge’s chambers made me a
-pariah with counsel for my client’s co-defendants who were
I cannot hope to give a true
How my defense of the
playing dirty pool. How a British solicitor came to my room
before breakfast to tell me he was going to flush a document
“down the johnny” and I said’ I’d report him to the judge.
a decision on the spot not to cross-examine a libel plaintiff
led to violent objections from the client but won the case.
HOW we lost a case because the judge got a new law clerk. How
an objection to the authenticity of a clearly authentic
How
document irritated a judge but was sustained and the case won
by the testimony of the authenticating witness. How it was
necessary to roll the dice by presenting a witness without
knowing what he would say, etc., etc. This was all-grist for
the mill and kept excitement high. There is a seasoning from
these experiences which adds to the effectiveness of business
advice, and one finds profit in the next case from the lessons
learned in the cases that went before.
Here is one more detailed recollection which will give
some flavor. GeneraT’Electric was caught in a massive price
fixing mess. Top men just below the rank of senior officers
in response to management’s persistent drive for better profits
and the lure of big bonuses had, contrary to company policy,
agreed on prices with major competitors. Some communicated
with a phase of the moon code. Many key products were
involved. These employees were indicted. I represented the
company after the fact. The company was anxious for a general
settlement and the key actors in the company involved
represented by personal counsel were prepared to plead guilty
as they eventually did and some went off to jail. There was
one obstacle. The corporation was ready to take its fines but
one high official, a vice president named Vinson, had been
indicted. He said he was innocent. I could not plead him
otherwise, and a settlement of the whole mess hinged on the
disposition of his case and we prepared for trial.
40
Three managers i n the company’s Philadelphia plant said
.-
Vinson had m e t with them i n Philadelphia and he had t o l d them
t o f i x t u r b i n e p r i c e s w i t h t h e i r opposite numbers i n
Westinghouse. Vinson denied t h i s accusation. -The managers
took FBI lie d e t e c t o r tests and passed. They said the meeting
took place i n Dining Room B, a t lunch, a t Philadelphia
sometime during a 3-month period.
Vinson remained firm. Along with my able colleague and
f r i e n d , Bob Owen, I set out t o prove Vinson was being framed.
It took weeks. .First we eliminated some dates by showing t h a t
on c e r t a i n days t h e t h r e e managers w e r e not i n Philadelphia
and on o t h e r days the dining room was closed f o r redecorating.
Many days remained to be accounted f o r and t h i s was
p a r t i c u l a r l y d i f f i c u l t because Vinson i n nearby New York was
in charge of t h e GE f l e e t of a i r p l a n e s and flew everywhere at
t h e drop of a h a t . Thus he could go to Philadelphia at a
moment’s n o t i c e but analysis of the a i r p l a n e logs eliminated
t h i s p o s s i b i l i t y . Then it w a s up to Vinson t o prove he was i n
New York City o n – a l l t h e days s t i l l unaccounted f o r .
days were easy. He had signed lunch c h i t s at the company
dining room. Other dates were blank. F i n a l l y we n a i l e d them
Some
a l l down but one. Finally Vinson’s wife remembered the
missing day. Vinson had gone t o t h e bank to get out a real
estate paper from h i s safe deposit and the bank had stamped
t h e t i m e . W e w e r e now set with a copper r i v e t e d a l i b i t o beat
the charge. Bob and I presented a11 our proof to the head of
the antitrust division in a long late night session at the
Department of Justice before a group of skeptical attorneys —
then we waited. Before long disaster threatened. The
antitrust division had checked the aviation records-and found
another plane! When I got the call, I was devastated. I felt
after all our work I had been hornswoggled. Frantically I
called the company. Before long the mystery was solved.
There was indeed another plane, but it was a one-seated wooden
radar testing plane that could not have gone from New York to
Philadelphia and anmay Vinson was not a pilot. The U . S .
dropped the case againqt Vinson and the other defendants pled
guilty.
Estes Kefauver, a senator heading a crime committee who
had an eye for publicity decided to investigate GE’s price
fixing conduct and hauled Vinson with me in attendance before
him €or a dramatic hearing.
detector test. Vinson refused. I handed the Senator a memo
indicating how unreliable these tests were and Kefauver
scoffed. But Vinson saved the day. He simply said if his
accusers could pass lie detector tests, he had no faith in
them. Csockett, the famous cartoonist, showed Kefauver’s
antitrust subcommittee putting the electrical companies on the
hot seat for price fixing and yours truly snipping off the
electrical current behind Kefauver’s back. There was much
more to my practice than knowledge of law and somehow I was
always in the middle of action.
He wanted Vinson to take a lie
qL
TWO of my several arguments in the United States Supreme
Court gave me great satisfaction.
involved the Ray-0-Vac leak-proof patent. An able patent
lawyer from Chicago had the case for the company. He lived
and breathed patent law, but the company thought.1 might be of
help before the Supreme Court. The Supreme Court hated
patents, C&B thought up a non-patent point that might win and
since the man from Chicago thought the point made no sense, I
insisted on 5 minutes of his argument time.
brilliant defeqse of the patent in a dull but informed way and
was getting nowhere — the Justices were restless. He had 5
minutes left but didn’t sit down. Finally I pulled him down.
In the remaining three minutes I said “you must sustain the
patent. Two courts below have found invention as a fact. You
have a rule you will not upset concurrent findings below.” I
sat down. The Court woke up. Justices Frankfurter and
Roberts bombarded the other side with questions. We won by a
split vote! Afterwards I heard that Justice Black told his
law clerk that if you could patent a leak-proof battery you
could get a patent on a piss pot. But he was in dissent and
finally a patent had been sustained in the USSC.
One was a patent case.:’ It
He put on a
The other case was Cellophane.x*’ I had tried the case
below. The antitrust division claimed that du Pont had
– */ The Goodyear Tire and Rubber Company, Inc. and General
Dry Batteries, Inc. v. Ray-0-Vac Company, 321 U . S . 175 (1944).
**/ United States of America v. E. I. duPont de Nemours and
118 F. Supp. 41 (D. Del. 1953), affirmed, 351 U.S.
7 (1956). [Cellophane case].
monopolized cellophane. It produced over 90 percent. I had
argued that competition from other flexible packaging
materials deprived du Pont of power over price and hence it
had no monopoly power. The facts were on my side- — the law
was on the side of the Government. Before the argument I
prepared from our set of exhibits in evidence nine packets of
flexible wrapping materials — wax paper, Pliofilm, etc.,
which the court had found were used functionally
interchangeable with cellophane and arranged with the clerk at
the Supreme Court have them handed to the Justices when I
requested in course of argument. I had won below — the
Government was laughing me out of court in the USSC. When my
turn came I argued that the U.S. was all theory, I had tried
the case and had the facts, then nodded to the clerk. He
passed the packets. The Solicitor General had never seen
these physical exhibits, although they were in the record. He
protested. Justice Warren scolded him and then I had the
Court in the palm of my hand. The Justices passed the packets
back and forth. Whispered and nodded they saw how bread,
candy, cereals,, cigarettes, etc. were all wrapped in these
different materials as well as in cellophane and sensed the
competition. They obviously relished this glimpse of real
life. When the Government counsel rose to respond, I felt I
had won. The Court wouldn’t let him talk and kept waving the
packets. We squeaked through on top. It was a smashing
triumph after months of hard work. Cross-elasticity of demand
had won for a brief moment.
During my entire time at C&B, I combined agency practice
and court work. The contrast was sharp and not complimentary
to the agencies. Courts were far more expeditious, less
political and result oriented and made without exception an
attempt to be fair. Agency procedures in actual practice were
often rigged and controlled by agency counsel.
the courtroom one often felt as though he was in a foreign
country. Elaborate records were developed before hearing
officers, often of marginal ability, and ultimately the agency
would decide without ever looking at the testimony and
exhibits while purporting to weigh the proof.
agency practice and procedures varied markedly. In my
experience the FTC and CAB were well below standards set by
the FDA and the Federal Reserve Board, for example, although I 7:
did equally well and equally poorly before all of them.
Coming from
The quality of
One of the joys of a trial practice like mine was the
chance it gave to learn different areas of the law, to be
before different judges and agencies and to learn, often on a
crash basis, the intricacies of different businesses. I
learned much about professional football attending owners’
meetings, about cellophane visiting plants and marketing
conventions, about toilet tissue and paper towels calling On
supermarket buyers with Scott salesmen, etc. The business
implications of litigation often took me to board meetings
where practical business policy had to be meshed with
litigation tactics. This brought me into contact with top
45
management. I participated in many sessions, helping to
fashion strategy that would accommodate both the business
needs of the client within the law and the requirements of the
litigation. In many instances I became a negotiator for the
client. Cases had to be won or lost in a manner least
traumatic for the underlying business. These tactical
decisions had far-reaching financial repercussions on the
clients involved.
C&B rarely had one partner handling the client’s business
problems and anotheGthandling its litigation, a situation so
typical of New York practice in my day. For most of my major
clients I was both advisor and advocate and for me this was a
combination that worked well. It was not unusual in an
antitrust matter, for example, for me to analyze a government
suit and prepare a brief for the United States at a very early
stage, drawing from documents and my knowledge of government
objectives a sharp adversary statement of the government’s
cases. I would send this to the client and in effect say this
is my problem, how do we deal with it. There were moments
when a new client wondered who I was working for, but this
technique was effective and certainly got everyone down to
brass tacks in a hurry. I have an autographed picture of Pete
Rozelle, Commissioner of the NFL, in my study, inscribed, “TO
Gerry, attorney-psychiatrist, without whose help NFL would
never have been termed the sports phenomenon of the 1960’s.”
This perhaps reflects my dual role as advocate and advisor.
46
There were many problems beyond winning a lawsuit that had to
be worked out, and that added immensely to the challenge of my
practice.
Of course, trials were the best fun. A loncj trial out of
town, as most of mine were, throws a team of lawyers together
night and day relying on each other, sensing each other’s
strengths and weaknesses much in the manner of a camping trip.
Close friendships are formed that last long after the trial is
‘over. You have a common bond just as if you had climbed a
difficult mountain together.
I ended up before many judges and came to know some of
the very best federal trial judges of my time. Judge Forman
(N. J. ) , Judge Rifkind (N. Y. ) and Judge Leahy (Del. ) were my
favorites. Later I have tried to pattern my own court along
lines I learned from them. There were others. I saw some
judges overwhelmed by the complexity of the issues, others
shielding ignorance by intemperate arrogance, and others
seeking to avoid decision at extreme cost of time and energy
because of possible reversal on appeal. Such an experience is
sometimes disillusioning, but almost essential training if one
aspires to become a seasoned litigator or by chance end UP a
trial judge.
My earnings rose rapidly. I became fully involved in
aspects of what we called “firm management,” but i n fact the
firm prospered without any strong guiding hand. I n e v i t a b l y , I
became involved in civic affairs and to some extent in
i 47
politics. Eventually I took two very interesting assignments
in government service while remaining a partner at C&E.
Politically I was one of the early members of the
Washington Home Rule Committee, and worked for yea-rs with
Walter Washington, Marve Hornblower and many others; trying to
get a franchise for the city. I was a member of the
Democratic Central Committee for a number of years, elected on
two occasions. I was a card-carrying Democrat and always
subscribed to the $100 dinners. One of the most exciting
political ventures $ took on was to be an advance man €or
Stevenson in his second campaign. I traveled with him across
the country into Portland, Oregon, down through California,
and back to Phoenix during an exciting part of an obviously
failing campaign. Later I campaigned for Humphrey and
Harriman in the District of Columbia.
I
During the Kennedy campaign I was a bystander. In the
Johnson election I also did very little advance work. However,
I was one of the two members of a committee that was organized
to persuade intellectuals to come out publically for Johnson.
Jim Kelloqg, former head of the New York Stock Exchange Board
and a very good friend, and I obtained endorsements from a
wide variety of important people. Johnson felt that he was
considered a nonintellectual, and he was trying to attract, as
we were able to do for him, the endorsement of physicists,
nuclear scientists, college presidents, authors, historians,
novelists and others of renown.
.. .
48
Within the city, after our kids had polio, I became very
interested in Children’s Hospital, and served on its board for
a long time. I had various jobs in the Community Chest. I
was chairman of the board of St. Alban’s School. At other
times I was a member of the boards of Beauvoir and Madeira
School. I occupied almost all of the possible jobs in the
Yale Law School Alumni Association, being chairman of its
executive committee and the law school’s representatives on
the Yale Council, succeeding Roger Blough €or a period of five
years. With Lloyd Cutler I helped to raise capital funds.
In April 1967 I ieceived the law school’s Citation of
Merit at the annual alumni day gathering, embarrassed yet
pleased by all the kind things said and the exaggeration of
the citation itself, which reads:
“CITATION OF MERIT
to
GERHARD A. GESELL
of the Class of 1935, in tribute to his
distinguished career as a public servant and
practicing lawyer and his devoted service to the
Yale Law School.
His high achievements in public life and in
the practice of law have brought distinction and
honor to himself and to the Yale Law School. He
has served the School faithfully as president of
the Association and chairman of its Executive
Committee and as chairman of the University
Council’s committee on the Law School, and in
countless other ways as well. Purposeful and
decisive, a lawyer of high integrity, superb
skill and esteemed judgment, he is a gentleman of
charm, sensitivity and intellect.
He exemplifies the highest standards and
traditions of the legal profession. The Yale Law
School Association is proud to pay him honor.”
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FOR PEARL HARBOR ON
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– .. . —–,,– · -·? ‘
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The other assignments that attracted me included an
appointment as chairman of a Committee of the Judicial Council
of our circuit to consider methods for improving the court
system, a project on which I worked for some five years with a
group of distinguished lawyers before going on the Court. In
addition, I took appointed cases and helped Charlie Horsky,
one of my partners, in representing some of the victims of
McCarthyism. I was an early member of the American College of
Trial Lawyers, joined ALII etc.
Shortly after <he war, a rather unusual assignment came
my way. A Joint CongFessional Committee was created to
investigate the Pearl Harbor disaster. Roosevelt had died. I
remember learning of his death riding a Pennsylvania Railroad
train with Donald Hiss on my way to Wilmington from New York
City. Truman was president. The Joint Congressional
Committee was chaired by Senator Barkley. William D.
Mitchell, former Attorney General and Solicitor General, a
distinguished Republican with a reputation for honesty and
integrity, was appointed general counsel. After conferring
with members of the Supreme Court he cane to me and asked me
to be his chief assistant. I had never met hin.
For a period of months, I was deep in the Pearl Harbor
inquiry, presenting witnesses before the Joint Congressional
Committee. We unraveled the facts carefully and thoroughly.
After being sure that the top secret intercepted jnpanese
50
messages were made public for the first time.:’
start from the beginning and work our way up to Kimmel and
Short, the two commanders in charge. Things went pretty well
for a time.
particularly Homer Ferguson from Michigan and a man named
Kceff from Wisconsin, constantly sought to divert the inquiry
into an investigation of how we got involved with the British
and in their view brought on the attack because of this; but
We decided to
Some of the America Firsters on the committee,
of course the focus of our work was much narrower, and we kept
it that way. Our’job was to find out why we were surprised at
Pearl Harbor.
Two events led to Mitchell’s decision to resign and I, of
course in full agreement, went with him. As the evidence
against Kimmel and Short accumulated, their friends wanted
them to come to the stand and justify their performance by
blaming FDR before all the evidence was in. Mitchell and I
resisted this with everything at our disposal. Finally one
day, and this was the last straw for me, Homer Ferquson stated
that he had just learned a “shocking fact.” He had learned,
he said, that President Truman had not decorated the man who
had broken the Japanese code. Up to this time it was a great
secret as to how the Japanese code had been broken. We had
put out a story to the effect that we had captured the key to
the code by breaking into the Japanese embassy in Portugal.
– */ Before the war started the U . S . had broken the Japanese
code and we were reading their most secretive traffic,
including diplomatic messages.
In f a c t , t h e code had been broken by c r y p t a n a l y t i c a l methods
using IBM computers. Ferguson, a b e t t e d by Keeff, i n s i s t e d
t h a t t h e man who broke the code be brought forward and given
an opportunity to explain how he had done it, so t h a t a
decoration could be awarded him. This, of course, had
a b s o l u t e l y nothing t o do with the Pearl Harbor d i s a s t e r .
Chairman Barkley had a r u l e t h a t any witness would be
called so long as any committee member demanded t h a t the
witness be p r e s e n t e d , and so we had to go forward. On the
morning before, Gene,ral Marshall asked for an executive session
of the committee. He appeared with a letter from Truman to
state that disclosure of t h e method of breaking t h e code would
set our i n t e l l i g e n c e e f f o r t s f a r back throughout the world,
because we w e r e reading the Russians, we continued t o read the
1
Japanese, and we had broken other s i g n i f i c a n t codes. Ferquson
stood up and said he would not s i t in the same room as ” t h a t
t r a i t o r General Marshall.” The meeting broke up and the
hearing was called. Barkley nodded to me to question the
w i t n e s s , and I refused. He was angry. The committee went
ahead n o n e t h e l e s s , and t h a t day a l l codes the U.S. was reading
around t h e world, including t h e Russian, were changed and
indeed our i n t e l l i g e n c e e f f o r t w a s set back enormously.
M i t c h e l l and I resigned not long after t h i s , and the
committee wound up with an inconclusive r e p o r t aided by i t s
new counsel, who a t one t i m e had been counsel f o r Kimmel!
Again t h e r e w e r e cartoons. Several c h a r a c t e r i z e d our
r e s i g n a t i o n s as another Pearl Harbor and another showed us
.z5
I* “NARY A PEARL” .t;i
__…
– –.+. ‘ . : .”‘
\,
putting the Republican effort to smear Roosevelt into their
own bucket of smearing tar. Others showed us looking for a
needle in a haystack. Since then controversy continues and
the revisionists have been hard at work rewriting khe facts to
prove their preconceptions. This was, nonetheless, a most
interesting experience, and gave me a good deal of background
about the Hill.
I think the thing that impressed me most during all this
was the integrity of General George Marshall. We had met him,
Mitchell and I, at tfie beginning of the investigation, and
before we got down to business, Mitchell, a staunch
Republican, said to General Marshall, who was sitting all
alone with the two of us in his big office, “General, next to
yourself and Roosevelt and Churchill, who do you think was the
greatest hero of the war?” Marshall said, “You don’t have to
include me. Next to Churchill and Roosevelt, the greatest
hero of the war without question was Harry Hopkins.” Of
course, Hopkins was viewed by many as a left-wing radical, and
Mitchell was dumbfounded. He blurted out, “Well, what about
Ike?” Marshall said, “Ike?” “He was a good officer. I
always used him when I wanted a compromise.” The great
contribution of Hopkins, he said, “was that Hopkins could talk
to Stalin, to Churchill, and to Roosevelt on an intimate,
first-name basis.” Marshall described him as “lord root of
the matter,” because he would insist they decide and not just
talk when they got together. Hopkins was the one effective
53
go-between among these three great leaders and really the man,
in Marshall’s opinion, who had greased the way to many
important, significant decisions that had won the war.
–
Marshall was fully cooperative throughout-the
investigation. There was much speculation that he and
Roosevelt knew the Japanese attack on Pearl Harbor was coming,
and that they encouraged it to get us into the war. As far as
Marshall was concerned, he was embarrassed, because he could
not remember where he was the night before Pearl Harbor, and
the speculationifan that he was in the White House conspiring
with FDR when the Japanese message cutting diplomatic
relations was intercepted. Marshall said he was not. He
searched his diaries, followed up every possible lead, and
could find no evidence where he was that night. In all
probability, he came home tired, had a light dinner, fell into
bed, and got up in the very early morning to ride horseback as
was his custom, at about 5:15 a.m. There were no records at
all at the White House that he had been there. The thought
was that it was at the White House that he learned of the
crucial final Japanese message, which was intercepted and
which gave clear indication that war was on its way. Marshall
was urged to testify that he was home in bed but since he
could not remember he refused to sa17 so and took much abuse.
But the accusations had no foundation. I personally reviewed
all of Roosevelt’s papers relating to Pearl Harbor, including
his most intimate correspondence with Churchill. There was
nothing in any of these papers, which President Truman
willingly and easily made available, to suggest in the
slightest way that Roosevelt had any knowledge of the attack
that was coming or that General Marshall knew the -Japanese
were about to attack.
I took on this assignment without compensation while
remaining a partner at C&B under a special statute which
exempted both Mitchell and myself from any of the conflict of
interest laws that then vaguely hung over the area where an
attorney, while sti,ll in practice, undertakes some kind of
government work. 1
During the war, one opportunity came my way. The
Attorney General wanted me to become a special prosecutor to
try a criminal conspiracy case against a scattered group of
pro-German editors publishing small pro-Nazi newspapers mostly
in Pennsylvania and the Middle West. I looked at the
Government papers. These people were misguided, but not
subversive. I declined. The case was tried before Judge
Eicker in Washington, D.C. by a man I disliked, 0. John Rogge.
He lost. The case was a shambles. It actually killed the
judge, a nice man who had been an SEC commissioner. All
defendants were acquitted. Although the defense lawyers had
behaved abominably, I felt I had made a sound decision in
avoiding this sample of war hysteria.
Except for the Pearl Harbor investigations, things were
rather dull during the Truman and Eisenhower administrations,
as far as I was concerned. Law practice continued to be demanding
but much of it was routine. At the very end of the Truman
administration, President Truman attempted to get me to come
and help at the White House as one of his immediate
assistants, but I declined through Dean Acheson, who took me
off the hook, saying that if I talked to the President, I’d
be unable to refuse. The only governmental opportunity that
came along for me in the Eisenhower administration was a
suggestion from Gordon Gray that I come to the Pentagon as
General Counse1,tbut I was in the middle of a long trial up in
New York, and this was out of the question. Moreover, the
Pentagon did not hold any interest for me.
–
Everything became more sparkling when Kennedy reached the
–
scene. Kennedy was a showman from the start. He set out to ’
dramatize his concept of the New Frontier long before he was
sworn in, reaching out for talent. Sargent Shriver and my old
friend Harris Wofford were an informal search committee checking
into suggested names and assembling lists for possible appointment
to key posts. The makeup of the Cabinet was naturally receiving
a great deal of attention because Kennedy had announced that
he was going to have his full team in place by the time he was
sworn in. There was much speculation in the press and the
possibilities were constant fuel for gossip. I had been working
for Humphrey and had not been involved in any way in the Kennedy
campaign, but by pure happenstance I had a catbird seat to
watch developments. Kennedy lived directly across the street
f r o m us in Georgetown, and his home became the center of
attention during the pre-inaugural activities. He was making
his plans at his home, and from time to time announced
appointments on the front steps. Possible candidates for high
office, including the Cabinet, slipped in and out of his house,
some by the front door and some by the alley in back. When he
reached a decision on a particular job, it was usually announced
from his front steps at an informal press conference when he
called together the group of newsmen who were always hanging
around outside. In fact, press headquarters was next door to
our house, where a f.riendly neighbor had opened her living
room and poured coffee for the representatives of various media
as they came in, shivering from the cold. A few of our close
friends in the press, in fact, used our house as a refuge.
As each appointment was announced, Peg would call me at
the office with the news, and I would hasten to the Metropolitan
Club for lunch. Without revealing my superior sources, I became
known for my reliability as I announced my “guess” as to each
appointment and proved to be so extraordinarily accurate when
the Star came out la<er that afternoon. This was great fun.
Matters became a bit tense when Harris Wofford told me I
was near the top of the list for Attorney General. The press
began to call, and The New York Times printed a piece saying
that I was to get the job or was the leading candidate or
something of that kind. Of course, nothing came from any of
this. I was not even approached. Kennedy selected his
brother, Bobby, at the last minute shifting him from deputy at
the Pentagon to Attorney General, where of course Bobby
immediately began in his energetic way to select a top team.
–
When the day for the swearing-in finally came, a large
crowd gathered on the corner of 33rd and N to watch President
Kennedy in full regalia leave for the Capitol. Kennedy came
out in top hat and went across the street to present a plaque
to the kindly neighbor, and to give her two tickets to the
Inaugural Ball. It was quite exciting for everyone. Aero
‘Saarinen, the architect, and his wife, Aline, who had been a
roommate of Peg’q-at Vassar, were with us on our front steps
and we were in touching distance of the new president. Saarinen
was absolutely beside himself with joy. He worshipped Kennedy,
and felt that at last someone was going to go into the White
House who would get things moving again.
Byron White had been named Deputy Attorney General, and I
knew him slightly from my Yale activities. I had tried to
recruit him for C&B at an earlier time when he was a law clerk
for the Chief Justice. After Bobby Kennedy was sworn in, I
got a call and went over to meet with him and White. I knew
Bobby very slightly, having met him when he was riding the
Stevenson campaign plane as we went into Boston many years
before. Kennedy said that he was considering two names for
Assistant Attorney General in charge of the Civil Rights
Division. One was Harris Wofford, and one was Burke Marshall.
He said that since both of them had worked for me, he wanted
my opinion as to who should be appointed. I immediately said
that he should appoint Burke. Kennedy was surprised. He
58
said, “He knows nothing about civil rights.” I said that was
correct but he had a superior legal mind and it seemed to me
racial issues were going to present extremely complicated Constitutional
legal problems requiring an outstanding-lawyer
rather than experience as a civil rights specialist: I went
on to say that I thought Wofford, a vital, knowledgeable man,
could do much more helpful work if he went into the White House
as an advisor to the President because he knew the personalities
and the issues. When I left the Attorney General’s office, I
immediately called bgth Burke and Harris to tell them what had
happened, and to his wedit Harris said he thought I had done
the right thing. And that’s the way things worked out. I
hope Harris meant it. He went on to have a great career in
civil rights and education. Burke got the job.
After a few more days went by, I got a call from the
President himself. He said he was calling me “at the
suggestion of his brother,” who wanted me to be Assistant
Attorney General in charge of the Criminal Division. I
immediately declined, saying that I did not want to play cops
and robbers. The President did not seem surprised. He was
very cordial. It was a brief chat. Jack Miller, who
eventually got the job, did an excellent job.
Many of my friends were going into the Kennedy administration.
From C&B, John Douglas went to head the Civil Division,
Johnny Jones went to be the deputy in the Tax Division, and
there were others who went to other parts of the government.
I had an urge to get involved, but felt the Kennedys were ruth•.
… •–r—??—–••——-,-.-,•.-..-?. – •”••r?-?-?-?—–?-……… —-• ——- ————-,-………,, ‘lr’:tr::t:::::’:rlf:=h” ::::..:,-“T’C,: . T.————-
·- – — —
–
—- — –
less and devious. I was hesitant. There were several minor
opportunities.
I remember another call from Bobby. He was very angry
because the United States Steel Company had raised-the price
of steel, and he and his brother, the President, felt that
they had had a commitment from Roger Blough, the president of
U.S. Steel, to hold the line on prices. In their Irish anger
they suspected some kind of a conspiracy to fix prices was
involved, because the other companies had followed U.S. Steel’s
lead. Bobby asked i$ I would leave the firm and take on the
job of prosecuting Roger Blough dangling the possibility of a
federal judgeship if I took the job. I laughed and said I had
no intention of doing anything of the kind. In the first
place, Blough was a friend of mine. He and I had worked
together very closely in connection with a major Yale Law
School fund drive and in other matters at the Law School. I
had never represented him. I also pointed out to Bobby that
since I had been active on the defense side in the antitrust
field, and written all kinds of briefs on price fixing at one
time or another, I would be a poor choice to become a
prosecutor because my own words would be thrown back in my
face. He was sort of miffed. The whole thing blew over,
t
however, and nothing was ever done involving Blough or the
steel company.
My real involvement with the Kennedy administration came
later, when the President appointed me Chairman of his Commission
for Equal Opportunity in the Armed Forces. This was a
challenging job, which I carried forward during the latter
MES-PICAYUNE, NEW ORLEANS, LA., FRIDAY MORNING, AUGUST 9, 1963
PRAISE THE CONSTlTUTlON AND PASS ASPIRIN
60
part of the Kennedy administration, and on into the Johnson
administration. By letter to me dated June 22, 1962, President
Kennedy indicated our focus was to be on the following two
questions:
Ill. What measures should be taken to
improve the effectiveness of current policies
and procedures in the Armed Forces with regard to
equality of treatment and opportunity for persons
in the Armed Forces?
“2. What measures should be employed to
improve equality of opportunity for members of
the Armed Forces and their dependents in the civilian
community, particularly with respect to housing,
education, traqsportation, recreational facilities,
community events, programs and activities?”
We had a committee of distinguished members, both black
and white. The two most outstanding members were &e Fortas,
who later went to the Supreme Court, and Whitney Young, a
national leader in the black movement. While I continued to
practice law, I ran the commission from offices in a small
building facing Lafayette Park.*/ For almost two years I had
-* / About this same time I became one of the original members
of the Lawyers’ Committee for Civil Rights Under Law organized
by President Kennedy. Since its establishment in 1963, hundreds
of thousands of hours of legal time, worth millions of dollars,
have been contributed to Lawyers’ Committee cases. In 1982
alone, over 33,000 hours, valued at more than $2.8 million
were donated in cases referred by the national office. He
sent the following telegram on June 10, 1963 to a group of
prominent attorneys.
“At four o’clock on Friday, June 21, I am
meeting with a group of leaders of the bar to
discuss certain aspects of the nation’s civil
rights problem. This matter merits serious and
immediate attention and I would be pleased to
have you attend the meeting to be held in the
East Room of the White House. Please advise
whether you will be able to attend.
John Kennedy”
479 8QT1i CONGRICSS
1ST SESSION
0
IN THE HOTJSE OF REPRESENTATIVES
dnausr ’7,1963 _‘I ~
Mr. SELDEsXub mitted the following resolution; which was referred to the
, Conmiittee on Rules
1 Resolved, That an appropriate cornnittee of the House
2 of Representatires of the United States Congress investigate
3 the forniubtion, contents, and apliropriateness of the initial
4 report of the President’s Committee on Equal Opportunity
5 in the Armed Forces entitled “Equality of Treatment and
6 Opportunity for Negro i\.lilitary Peisoiinel Stationed Withill
7 the United States”.
V
two full-time jobs. I recruited two or three young men to
help, and we went about our work. At one time early in the
game the entire commission met with President Kennedy and had
our picture taken. I recall that when we went back to the
offices across the street from the White House, the black
members commented quite openly that they felt that Jack
Kennedy had no understanding of the black problem.
We got out two very significant reports, one relating to
discrimination on base and the other relating to discrimination
off base. McNamara.; who was Secretary of Defense, cooperated
throughout the study and specifically detailed his aide, Adam
Yarmolinsky, to make sure we had access to all papers and all
personnel. We held quite a number of informal hearings, and
we then broke up into groups of two to do some field
investigation.
I teamed up with Whitney Young. We went to a Navy base
and an Army base, both in the South. At the Navy base in
Florida, we found that all of the married black enlisted men
were in shanty buildings on one side of the railroad tracks
and the whites were all in much better quarters on the other
side of the railroad tracks. There was complete segregation
on federal property! When we reported this to the captain in
charge of the base, he told us pointblank that we were not
correct, and that that condition didn’t exist. I remember we
put him in a car and drove him there and showeci him the place.
I wrote him a letter the day after we left saying I wanted an
immediate report as to what was going to be done about the
situation. Three days later I got a wire. The captain had
leveled all of the black housing, and placed all of the blacks
with the whites in the other, better facilities across the
tracks. I remember also at this base we found that no black
had ever been allowed to stand guard at the entrance, and that
there were other types of petty discrimination which we called
attention to, and which were at least for the moment corrected
At the Army base, we found that the merchants in this
–
city who depended on the base for their principal business did
not permit any bhck soldiers to go into the stores. Even the
store that sold Army and Navy surplus goods where soldiers
would pick up odd items to supplement the “general issue” that
they had, would not allow blacks in to buy. I met in several
meetings with the business leaders, and when I indicated that *
if the situation wasn’t corrected we would recommend that the
base be shut down entirely, the city fathers adjusted their
position. It must be said that the Army had been trying for a
long time to accomplish this, and were in no respects party to
the blatant discrimination that was taking place.
The most serious problem at many bases had to do with
off-base living quarters. We were able to work out arrangements
by which these off-base facilities were put off limits unless
they eliminated their policies of discrimination, thus assuring
that regardless of race, creed or color all military personnel
had equal access to quarters for themselves and their family.
A biting cartoon showed me demanding that the defenders
of national security in the armed forces become subservient to
a social dictatorship. Our “Gesell report” was labeled as a
radical takeover of the defense establishment and assailed by
hard-line southerners. The Congressional Record in the summer
and fall of 1963 is full of personal attacks on ydurs truly
which I never answered and a resolution to investigate the
Commission introduced in August 1963 failed to pass. The
so-called Gesell affair fizzled.
We learned that many units of the National Guard were
completely segregated, and we set about to make sure that
blacks were admittqd to the National Guard components in every
state. Bobby Kennedy, somehow got wind of this and didn’t like
it. He thought the issue was politically dangerous. He
called me to his office and protested. He said he wanted to
see in advance a copy of anything we put out on the Guard. I
told him that I’d been appointed by his brother, not by him,
and that I was going ahead. I never sent him any material,
and I never heard from him again on the subject. The National
Guard was fully integrated in due course as a result of our
pressure.
President Kennedy was pleased with our first report and
instructed the Secretary of Defense to report his reactions in
thirty days. While McNamara was slow to respond, he always
came through and things began to move. The commission work
was still in progress when Kennedy was assassinated. I recall
that at this tragic moment I was arguing a case before the
full Federal Trade Commission. A note was brought in and
handed to Chairman Dixon, and he announced that the President
the Oval Room. Johnson came across, put out his hand, and
said, “Hello, Gerry, how the hell are you?” I was absolutely
dumbfounded. I had met him only once before, perhaps twelve
years before, at dinner at Ganson Purcell‘s house: Johnson
was then a young Congressman. He had an extraordinary memory
for names. Moyers didn’t know my nickname, and apparently
Johnson had no trouble pulling it back by memory.
I told him briefly about the commission. He had not heard
of it apparently. His attitude was finish it up, go ahead,
get it done quickly,,,which I went ahead and did, publishing
the second of our two,reports a few months later. Johnson did
indicate that he‘d like to meet the members of the commission,
and on one occasion we all went to call on him, much as we had
done with Kennedy. After this meeting, the attitude of the
members of the commission was entirely different. Universally
they all said, here is a man who understands blacks, who understands
the black problem, and they were much more hopeful than
they had been after leaving the presence of John F. Kennedy.
The commission‘s reports had some effects immediately,
and eventually had a pronounced influence when the Department
of Defense made it clear that off-base facilities could not
discriminate against black soldiers, sailors and Marines. On
December 21, 1964, President Johnson wrote his thanks, saying:
“You and the members of your Committee have
taken seriously the assignment given you by
President Kennedy in June of 1962 and I know that
since that time the progress that has been made
must give all of you a feeling of deep
satisfaction. The fact that today every State in
the Union has an integrated National Guard is, I
66
believe, due in large measure to the quiet and
persistent efforts of your Committee. The Committee
has done its work well and I congratulate and
thank you for your contribution.”
Apart from this, I had only one further significant
contact with President Johnson. On one occasion I was asked
to come, on short notice, to the White House, and found there
seated around the oval table, Burke Marshall, Whitney North
Seymour, a leader of the New York Bar, and a group of 12
prominent black leaders. Johnson had no staff with him. The
subject apparently was why there had not been more black
appointments to’ ‘the federal courts around the country.
soon turned out, as Johnson took up the situation in Texas,
Chicago, Atlanta, and New York, that he knew more about the
It
._
local political situation than these black leaders realized.
He pointed out the difficulties, he listed with precision the ~
number of blacks he had appointed already to one position or
another, and frequently challenged these men to come up with
better qualified candidates. He kept talking about how
important it was that blacks get into law firms and questioned
me at some length as to why C&B had not hired more blacks. At
that time, we had no black lawyers, and I explained with some
care that we wanted only to take lawyers who would be
qualified to go all the way to partnership, and that we were
not about to run the firm by taking in people with inadequate
abilities or preparation merely because of the color of their
skin. Johnson agreed with this and kept saying that the
trouble was too few blacks were being graduated from law
5 4
had been shot. Some people in the audience began to sob. The
members of the press raced out, and the hearing was adjourned
in midstream. I have never seen people so moved by a public
event of that kind. It reminded me of the time-when FDR died.
I was riding the Pennsylvania Railroad from New York to
–
Wilmington, doing work for Du Pont when the conductor
announced that FDR had died and people throughout the car
began to cry and to sing hymns. Both occasions were very
moving.
There was 4,dramatic series of events following this
awful assassination. I remember the funeral procession where
Haile Salassie walked at the head of the parade next to the
very tall head of France, Charles De Gaulle. Everyone was
bewildered, many felt they had lost a friend, and rumors were
flying everywhere. Johnson quickly took over. He was an
experienced politician, and most people felt that the
government was back on course. Only the Kennedy people
sulked.
– After a reasonable time, I sent word to the White House
-that I wanted to find out whether the President wished me to
continue as Chairman of the Commission on Equal Opportunity in
the Armed Forces. Our work was still in midstream. I was
asked to come to the White House, and spoke with Bill MOyerS,
who was then one of Johnson’s right-hand men. Moyers said,
“The President wants to see you.” I was surprised and
pleased, and after waiting a few moments I was ushered into
67
schools and urged the black leaders to encourage more young
blacks to enter law school. It was Johnson’s view that the
lawyers really in the end were running everything, not only in
Texas but everywhere. As we left, Johnson had let-slip
purposely that he was going to put Thurgood Marshall on the
Supreme Court. This was a very interesting meeting, and soon
we all received a beautiful photograph of the group made by
Johnson’s ubiquitious Oriental photographer, who in those days
accompanied him everywhere.
b
I did get a glimpse of Johnson on one or two occasions at
political fundraisingmeetings, and I acted as chairman of the
Concessions Committee at his inauguration. This involved a
lot of legwork selecting the concessions to be sold along the
line of march, and as a result, I sat in the preferred seats
in the front of the White House along with Whitney Young and
many dignitaries.
At no time did Johnson ever ask me to do any particular
public service, and I really didn’t think he was very aware of
who I was and what was more I was sure he didn’t care. He was
a very complex man, generous in the extreme, difficult at the
other extreme, and of course stories about him will continue
to emerge for many years to come.
While I leavened my practice with a bit of teaching at
University of Virginia, government assignments, civic
activities and politics from time to time, I never strayed far
from the law. Washington practice in my day offered many
6 8
j
advantages. – F i r s t and foremost f o r me was the f a c t t h a t my
c l i e n t s w e r e for the most part out of town. I d i d n ‘ t have to
commute with them, e n t e r t a i n them, j o i n t h e same clubs and
pretend to l i k e t h e same things and get my s o c i a l l i f e so
entangled with them t h a t o b j e c t i v e advice would be d i f f i c u l t .
Lawyers i n many c i t i e s I m e t were c o n s t a n t l y catering to t h e i r
t r a d e . I was spared a l l t h i s . Most Washington lawyers were
on t h e road a l o t , and I surely w a s . Covington’s n a t i o n a l
p r a c t i c e took me to many d i f f e r e n t c o u r t s and exposed me to
every type of fawyer imaginable. This was for me a c o n s t a n t l y
broadening experience which was to be invaluable when I became
a t r i a l judge. And a f t e r a long t r i p or t r i a l out of town, it
was always r e f r e s h i n g t o sit down with people who were doing
u s e f u l t h i n g s , f u l l of ideas, reading books, looking more o f t e n
on the b r i g h t side of a f f a i r s and not be under any compulsion
to conform. The period from FDR to Johnson was r a r e l y dull.
In Washington we f e l t we were a t t h e hub of the universe and
i n some degree privy t o major events i n a watershed period
t h a t was changing the c i t y and changing the world.
>
I
One of the s u r p r i s i n g developments i n recent years is t h e
growing belief expressed by many r e c e n t l a w graduates t h a t
corporate p r a c t i c e is d u l l and removed from opportunity to
f u r t h e r the public i n t e r e s t . Of course any generalization i n
t h i s area is nonsense but at C&B i n my t i m e such was not the
case. C&B had the m o s t p r e s t i g i o u s and biggest corporate
p r a c t i c e i n D.C. and yet it received the gold medal of the
69
Civil Liberties Union for the firm that had done the most for
civil liberties in the first 50 years of the Union! Nobody
talked about pro bono work, we just did it. Indeed at one
time the firm was a bit concerned to find after a survey that
25 percent of time logged was “for free.” As a firm, we were
into everything, helping the YWCA, victims of McCarthyism,
handling assigned cases for arsonists, homosexuals and the Bad
Man of Swampoodle and doing countless chores for various
members of the Community Chest or non-chest members like
Planned Parenthood.>’ We lent lawyers and secretaries free to
Legal Aid and Legal Services. What’s more, many seem to
forget sound advice to corporate clients can go far to bring
corporate practices into harmony with established public
policy.
It is particularly difficult to write about my happy busy
days at C&B. Much of the excitement and challenge can only be
understood by revealing client confidences or by discussing
personalities, not always in favorable terms. I want none of
this, so it’s difficult to paint the full flavor of those
days.
C&B was a stimulating place to work. It was loaded with
talent. There was plenty of money to go around and few
squabbles. While my social life rarely included colleagues, I
enjoyed working with other lawyers in the firm and, with few
exceptions, there was a true collegiate atmosphere. I
remember that when one partner began to boast of how much
70
business he brought in, we laughed at him and cut his take
because it was the firm that drew the clients — its high
reputation for quality work. As the firm grew, it became less
attractive. High standards continued to be emphasized and
relations among the older established partners remained
reasonably serene, but size brought its own inevitable
problems. The firm recruited only young lawyers it felt could
be partners eventually, and it did a good job. The pressure
for partnership became such that an eventual partnership
became almost a matter of course. Partners had favorites
whose routine work had become indispensable. They were
fearful they would lose able associates if partnership became
unavailable. The ability of these people was unquestionable,
but some attributes of a true partner many had not. Their
–
client appeal was slight, status as leaders of the profession
was never to be realized, and some of them had little sense of
what others had done and were doing to make their lives so
comfortable.
On top of this came an inevitable tendency to award
conformity and question idiosyncracies, forgetting that the
strength of the firm came from the highly individualistic
nature of the earlier partners fueled by Mr. Burling‘s
exceptional eye for those who, regardless of school marks,
family or class showed special qualities yet not fully tapped.
At the same time, young lawyers showing the irreverence and
skepticism of the ‘60s and ‘70s pushed to have a voice in all
~ ~~ -~~ –
71
firm decisions, ignoring the need to earn status by
performance, believing apparently that those who created the
firm could not be trusted for its future course. These
changing times and attitudes made life less congenial.
Contemporaries in other firms were experiencing the same
tendencies to bureaucratiz; law partnerships and indeed C&B
was having fewer strains than many other firms.
Working with C&B in my day was a rare privilege. Those
of us in the forefront of major litigation had extraordinary
support in depth. Bverything I have recounted was a team
effort. To work with partners like Hugh Cox, Graham Claytor,
James McGlothlin, Burke Marshall, John Douglas, Howard
Westwood, Paul Warnke, Nes Foley, Ham Carothers, Bob Owen, Dan
Gribbon, Charles Horsky, Jack Schafer and those then younger
associates like Ed Gignoux, Abe Chayes, A1 Sachs, James
Hamilton, Steve Pollak, and Harris Wofford assured excellence
and high quality. I have never been associated with an abler
gang. Although often the point man, I couldn’t miss.
A special word about John Lord O’Brian is more than
necessary. He came to the firm after World War I1 from a long
career which combined public service and a successful
corporate practice. We were together constantly. I lacked
the intellectual ability to be his companion in many ways.
His love of literature, stained glass, poetry and the classics
was deep, and his memory incomparable. Unlike Hugh Cox, I
couldn’t keep pace with him in this area but when it came to
~~ 7 2
t h e t r i a l of cases and c l i e n t relations a t hand, we worked
w e l l i n tandem and I p r o f i t e d g r e a t l y from h i s wisdom. He w a s
o f t e n at the t r i a l t a b l e . Although he lived w e l l i n t o h i s
n i n e t i e s he never w a s a t a loss t o c a l l up a s-trory appropriate
to t h e circumstances, and he never repeated. H i s w i t was
legendary.
–
M r . O’Brian asked me t o t e l l him when it was t i m e f o r him
to stop t a l k i n g i n court and when a f t e r an u n s a t i s f a c t o r y
Supreme Court argument I t o l d him, he hugged me and expressed
h i s thanks f o r qy friendship.
conferences where c l i e n t s wondered who and/or what should be
asked of whom to get r e s u l t s from Uncle Sam, and always at the
end he would q u i e t l y say, “1 suggest we p r a c t i c e l a w . ” He was
a very w i s e and charming man who helped me immeasurably along
t h e way. He gave C&B class and f i l l e d t h e void created by
Dean Acheson‘s departure for extended s e r v i c e s i n t h e Department
of S t a t e .
He would sit i n s t r a t e g y
Things continued t o go w e l l f o r me. I found mixing t h e
high drama of the courtroom with an advisory role and a mixture
of p o l i t i c s and c i v i c r e s p o n s i b i l i t i e s m o s t s a t i s f y i n g . I had
turned down o p p o r t u n i t i e s t o go i n t o business, t o j o i n another
leading firm and t o j o i n a l a w f a c u l t y as dean. It looked
l i k e more of t h e same. I was happy with t h e thought. Then my
whole l i f e changed.
JUDGE
1967 —
My nomination by President Johnson as a United States
District Judge for the District of Columbia came as a complete
surprise. In the fall of 1967 I was home, mid-afternoon,
packing to fly out from Dulles in the evening to Los Angeles to
take depositions in a suit I was handling for Procter & Gamble
when the White House called. President Johnson was put on the
line, and said, “HOW the hell are you?” and I replied I was
fine and asked €or,his own health. He then asked,
immediately, whether,I would like to be a judge. Startled, I
blurted out, “What court are you talking about?” And when he
said the United States District Court, I said, “Well, I guess
so.” He then passed a few pleasantries and said that I should
not be surprised if the FBI was soon in the neighborhood
making background inquiries. I turned to Peg and in a
complete state of shock said I guessed I was going to be a
judge .
On the trip west I began to realize what a difference my
way of life was to be and what adjustments would have to be
made once the news was out. Johnson was good to his word. My
selection was by the President personally. It was his own
decision. I was not recommended to him by the Department of
Justice, and of course he was in no way my friend.
The appointment came about in an odd way. When Thurgood
Marshall was eventually appointed by the President to the
Supreme Court, the Solicitor General’s post became vacant. To
me this post was the ultimate trial lawyer position in the
country, and I had from time to time mumbled to friends that
I’d like a chance to be Solicitor General someday. Unbeknownst
to me, Ramsey Clark, then Attorney General, whom I barely
knew, sent my name to the White House with a full background
presentation, and recommended the President select me as
Solicitor General. In this manner, the President became
familiar with some of my activities, and in his thorough,
inquisitive way he began to make other inquiries about me.
Still, I knew nothing of what was going on. It was well known
that President Johnson hated to have anyone learn in advance
about one of his prospective appointments, and often if there
was a leak he would turn and appoint somebody else simply to
fool the press and to show his dislike for the leak. So
apparently some who knew what was going on had been very
careful not even to mention it to me.
The President was seriously thinking of appointing me
-Solicitor General. He spoke to Clark Clifford about it, and
asked Clark what he thought of my being selected. I knew
Clark slightly, because he had been brought in to the General
Electric mess as an advisor to the President when their top
executives were caught price fixing and I was battling the
devastating facts, but he was never a close friend. And that
certainly proved to be the case. I’m informed that Clifford
told the President that while I was a good trial lawyer, he
thought Johnson should select someone of more distinction, and
suggested that perhaps a dean of a law school should be chosen.
The President then inquired into the background of Lou Pollak,
Dean at Yale, but when it turned out that Pollak was violently
against what was going on in Viet Nam, the President then
turned to Griswold, who was at Harvard, and Griswold eventually
was appointed. Of course Griswold was able to stay on with
Nixon, because he was a Republican and a conservative, but if
I had gotten the job, I would have been in place a very short
time and would nevei have been a holdover with President Nixon.
Even if the chance had existed, which I am sure it would not
have, I would have walked out.
At the same time there was a vacancy on the District
Court, and it had been open for some time. Different
political factions based in D.C. and elsewhere a l l had
candidates. Johnson realized that I was apparently qualified,
and that my selection would not ruffle any political faction
particularly, and so I got the nod, which I am sure came in
part because of the kind prompting of my great friend, Jim
Rowe, who was then close to Johnson.
There were no hitches. After a thorough F B I investigation
in which President Johnson participated personally by calling
one of my neighbors to find out whether or not I had drunken
parties at my home, my name went to the Hill. When I came
before Eastand, I had some concern because I didn’t know how
he would view my civil rights activities which had caused
concern in his home area. It never was even mentioned.
7 6
I went before the subcommittee, and my nomination was approved
by the full Judiciary Committee, the Senate, and went to the
President’s desk in a single day. The ABA found me exceptionally
well qualified, its highest endorsement, and Eastland, who sat
as Chairman of the subcommittee, was kind enough to say that I
had one of the finest FBI reports he had ever seen. So I got
off to a good start.
–
The Washington Post gave me an editorial boost on December 2,
3967 , opining:
1′ EXCELLENT CHOICE
“Gerhard A. Gesell is an excellent choice
for the United States District Court for the
District of Columbia for two principal reasons.
First and most important, he is, as members of
the American Bar Association’s Committee on the
Federal Judiciary have indicated, exceptionally
well qualified to be a judge. His extensive
experience in the courtroom, his brilliant legal
mind and his capacity to see all sides of a
controversy are precisely the qualities most
sought in nominees to the bench.
“Scarcely less important is Mr. Gesell’s
deep and abiding interest in the improvement of
our judicial machinery. He was chairman of the
able committee of lawyers named by the District’s
Judicial Council to survey the courts here. The
report he brought in last May contained 45
recommendations for all the local courts, many of
which, the report emphasized, could be put into
effect by the judges themselves. Among the
recommendations was a survey of the courts here
by management experts, a proposal which he was
later instrumental in putting into effect.
“Burdened as it is with stale cases and a
workload beyond its capacity, the District Court
is urgently in need of energetic judges who are
keenly aware of its critical problem. We hope
that this fine appointment will be quickly
followed by naming of a successor to Judge
Holtzoff and by the creation of enough new
judgeships to carry the increased load.”
77
The Senate gave its advice and consent December 7 , 1967,
and I w a s headed f o r the Court. Congratulations poured i n and
t h o s e who d i d n ‘ t approve kept q u i e t . Christmas was a f e s t i v e
t i m e . My partners gave a fancy dinner f o r Graham Claytor and
me a t t h e City Tavern Club. Graham was leaving to be
P r e s i d e n t of the Southern R a i l w a y System. The day a f t e r New
Years I reported to the Courthouse and immediately was put to
work after the usual swearing i n ceremony i n a jammed
courtroom. John Lord O’Brian robed me and a l l the family w a s
there. Stark realie set i n and my l i f e changed.
C h i e f Judge Curran assigned me Courtroom No. 6 , which had
t h e only vacant chambers. I moved i n my own f u r n i t u r e and
spruced t h e place up. I’ve been t h e r e ever s i n c e , i n spite of
t w o or three floods.
Again my luck held. Doris Brown, my exceptionally
t a l e n t e d s e c r e t a r y , without whom I could not have managed a
complex practice or indeed t h i s new assignment, agreed t o come
with me a t a f i n a n c i a l sacrifice. Jock McBaine, who w a s
leaving C&B t o go w e s t , agreed t o f i l l in as my first l a w
c l e r k . Judge Jones put me i n touch with a wonderful guy named
Ed Roan, a former fireman who took over as messenger- b a i l i f f ,
and I w a s s e t t o go.-* /
-* / I n 1 9 7 9 when Roan r e t i r e d my good luck cont inued when Roy
Smith already an experienced b a i l i f f took h i s place following
t h e death of Judge Youngdahl. Doris Brown has stayed the
course !
78
The first couple of years were strenuous. There was so
much for me to learn. I knew evidence, the procedural rules,
and had a clear notion of how I wanted to run my courtroom.
But we were a court of general jurisdiction in those days,
required to deal with local as well as federal issues. In
addition to brushing up on the intricacies of Bazelonian
criminal law, there were many unfamiliar areas; real estate,
.probate, patents, admiralty, et cetera. A judge is very exposed.
You can’t bluff. I worked hard to be prepared night after
night and, of course, all day.
1’
Somewhat surprisingly, friends reacted as though I had
retired. Many assumed it was a ten to four job, with weeks of
vacation interspersed. Their main query used to be, “Are you
having fun?” It was surprising to realize how ignorant even
many lawyers were as to what the job entailed. I’m afraid my
protestations and explanations often were taken with a grain
of salt.
The shift from active practice to judging brings many
changes. Some I realized almost immediately.
me as time went along.
The practice of law has its own built-in
Others grew
disciplines.
on
You can steer your efforts into areas of the practice
congenial to your temperament and skills. Your mistakes are
rarely noticed by the client or most of your competitors. You
can associate others to bolster your weaknesses.
Judging is different. You can’t pick your cases. You
are more alone. You have little experienced help. There is
no true basis for comparing your performance against others.
Your mistakes are fully exposed. There are no rewards.
And there is little competitive prod. A lifetime job
subject to “good behavior”‘gives a judge leeway within which
to operate at almost any pace. Thus a judge must be his own
self-starter, develop a thick skin, and work like hell to
master many fields. It is a wholly different ball game with
many aspects that ar?. not familiar even to a successful
practitioner.
courts, I soon learned that the job was far more complex and
demanding than I had expected. This pleased rather than
annoyed me, and I pitched in to do what I could to master the
work and be useful.
In spit? of my long experience in federal
As I had suspected, if one had trial experience two
qualities more than any other were needed: an ability to
administer a case load and common sense will eventually make a
federal trial judge more or less at ease and productive.
The transition from an active practice to the bench
brought many side effects, not all of which were welcomed. I
no longer had to travel, and it was good to be regularly at
home in the evenings. For years there had hardly been a week
I had not gone out of town to see a client or meet a court
date. Then, too, a judge is master of his own schedule. He
is not at the beck and call of others, and he no longer has
his concentrated train of thought yanked far away by
persistent and often intrusive phone calls. Thus, life
becomes more ordered.
–
On the other hand, the work is lonely. Lawyer friends
are hesitant to keep in touch even when their business brings
them to the Courthouse, because most of my generation, at
least, grew up at the bar conditioned to avoid other than
formal contact with judges. Conversely, once one becomes a
judge he is under many restraints which may well make him less
interesting to h$ former companions.
Courthouse, and there is a good deal usually, is kept within
the confidences of the system. The United States District
Court for the District of Columbia is on the cutting edge of
The gossip of the
many national issues and concerns. A judge never knows what
the next case will involve. For this reason it is difficult
except among a few intimates to discuss matters of current
interest without seeming to be prejudiced on an issue that is
or soon will be before you.
This has always been a sensitive area. Southern federal
judges more than most seem to be able to maintain a close
personal relation with the bar. In Washington there is a
different atmosphere. Justice Harlan and I were good friends.
We had tried a case together for weeks on end and our wives
liked each other. Soon after he came to Washington, we were
invited to his home for dinner. Soon after this, we attempted
to reciprocate but he refused. For several years at the end
of each term he would call or write saying how sorry he was
that he could not see me because I had had some matter in his
court. He was sincere, but it was frustrating. Not all
justices had such scruples, but they all gave lawyers a wide
berth if anything involving their work was in the backyard.
They set a tone and it had trickled down.
Few laymen or even practicing lawyers realize an aspect
of a judge’s job which in many ways is its biggest challenge
once one settles in and makes the necessary adjustments in his
or her social life and financial affairs. Most people seem to
believe the law is already mostly written down and that all a
judge has to do is pluck it out and apply it to the case at
hand, much like turning a nut on a bolt. Nothing, of course,
could be further from reality. In fact almost every case
presents a new situation which cannot be duplicated in the
books. There are actually remarkably few controlling
precedents. The increasing complexities of our volatile
society present issues not contemplated when an applicable
statute was enacted yet it must be applied and one must
constantly develop new approaches to meet unexpected
circumstances and the changing times. Thus there is infinite
variety and novel issues to be found in the cases assigned
which, until the full facts are exposed, may seem routine upon
a casual reading of the complaint. Packed along with the
legal challenge lurking in almost every case is the human
interest of the situation presented. Even after many years on
8 2
the bench a jsdge is constantly amazed to view the incredible
variety of problems brought on by conflicts of personalities,
greed, carelessness and sometimes stupidity. All phases of
society come before you and at the end of almost every day
there is ample material from the day’s doings to fashion a
short story if not a novel. And of course there is
satisfaction in seeing a fair result emerge as the law is
shaped to the facts and the contest is resolved without the
parties resorting to force or violence. If a judge loses an
interest in peopl; and their concerns he should leave the
bench. The best judges always care.
A United States District Judge has two basic
responsibilities: first, try cases, and second, manage the
case load assigned, These tasks are of equal importance and
I‘ll try to cover each aspect in what follows discussing the
trial work first.
In the beginning my principal trial work centered on the
criminal calendar. There was a logjam of never-ending cases,
one after the other. The criminal calendar, particularly
during the first 4 or 5 years, was typical of any large city
because we were a court of general jurisdiction. There was an
endless series of rapes, murders, armed robberies,
housebreakings, drugs, child abuse and the like. Most of the
defendants were black. While each case had its own often
tragic human interest, the end result was usually to lock up a
human being and there was always a danger of getting case
hardened, careless and indifferent as the stream of cases
poured in and out. By and large the defense lawyers did a
fair job, but some were inadequate or too inexperienced to
serve the best interests of their assigned defendants.
During the first two years I noted my verdict as the jury
went out. It was remarkable that over this period in about
98% of the criminal jury cases, the jury came out as I did on
the basic issue of guilt or innocence. There were differences
in multicount indictments, no doubt reflecting compromise or
sympathy in the jury,”but even these were usually
inconsequential. I gained a lasting respect for and belief in
the jury system. Doubts I had had as a trial lawyer were
dispelled.
Cases simply look different when you are an impartial
observer behind the bench and not an advocate at a trial
table. Many lawyers do not realize that they have wholly
failed to get across some fact they assume the jury knows and
understands, and of course advocate zeal often clouds
judgment. My belief in the jury system was greatly
strengthened because I decided to test it from the start.
After now some sixteen years of charging juries, I have yet to
comment on the evidence, to comment on a witness or
intentionally to give any subtle or other clue to point a jury
to a result! Judges who do this overlook the common sense of
the jury and believe too much in their own omnipotence.
Much of -t he unfavorable criticism of juries comes from
the emphasis in the media on large verdicts or unexpected jury
results. Sometimes juries go haywire. So do judges. So do
presidents.
put in and their sensible solutions win my praise.
But the day-to-day conscientious effort juries
The criminal calendar gives a sad picture of urban life
among the more disadvantaged. Most defendants are school
dropouts, lack any vocational skill and are hardly able to
–read and write. They are often caught up in drugs in some
fashion, as user’; or distributors, without motivation or
pride. They have not grown up in stable families and seem to
have a view of life based on the eight to twelve hours a day
many spend looking at the violence and make-believe on TV.
Because of the violence of their offenses and hurt to society,
they must be taken off the street, but prison offers little
hope of reformation and rehabilitation, and soon a judge may
find himself sentencing the same defendant again when arrested
for a second offense after his release from the first.
The concern that “personality disorders” may lie at the
root of such defendants’ difficulties led to many insanity
pleas geared to sometimes unrealistic standards set by Well
meaning appellate judges.
jury, however, it was seldom that the defendant prevailed. I
have rarely had a jury find a defendant’s crime was caused by
his mental condition. There are of course uncontested cases
leading to mental commitment, but the juries don’t buy the
Whenever that issue went to the
idea. They are not influenced by psychologists and
psychiatrists tracing street crimes to the defendant’s
mother’s womb.
Murder cases have their special fascination. Most
murders occur by chance as a result of disputes among friends
or family members. I tried many murder cases in the early
days on the bench. Sex and alcohol play a large part in the
often meaningless and unintended results of knifings and
shootings that occur at the climax of heated arguments.
Apart from many cases of this type, I remember three much
publicized deliberateidouble murders that came my way, all
resulting in conviction. The “Gentlemen Two” killings where
the barman at the Gentlemen Two restaurant knifed the manager
and his beautiful friend to death with a total of more than
sixty stabs when they were in the establishment after hours
dancing to soft music while the bar man was cleaning uh.
“White Tower” killings in Georgetown when three Marines
celebrating graduation from Quantico and a lady friend met up
with two blacks in the White Tower late at night. The blacks
were armed and considering robbery. The Marines were white,
dressed in white dress uniforms. Words led to shooting, two
The
Marines were killed and the other wounded, as was the lady
accompanying them.
Finally there was Billy Austin Bryant, who deliberately
killed two FBI agents, firing at them through his apartment
door when they came to arrest him. Bryant was wanted for bank
86
robbery and had led quite a chase through the city after he
escaped from Lorton Penitentiary. The FBI prepared a locked
case, buttoning up every detail and conviction was assured.
The jury could not agree on the death penalty, so the statute
left it to me to decide. I was very troubled. This was the
first FBI killing since the Pretty Boy Floyd era. One agent
was, like Bryant, black. Bryant had an IQ of 135. I asked
two colleagues to act with me informally as a sentencing
panel. One was for death, the other not, so it did me little
good. I decided qot to order the man killed.
–
Bryant had become a focus of the campaign in 1969 against
capital punishment. Had I ordered him executed he would have
been a “hero”, ensconced in a special cell at the D.C. Jail
and the object of much attention. I told him in effect that I
wasn’t going to fall for this. I imposed two consecutive life
sentences to commence after completion of a sentence of up to
54 years he was already serving. I told him he would die in
jail but at such time as God appoints. When I finished,
Bryant said he was glad he did it and the FBI had him deep in
Atlanta Penitentiary by early morning the next day. To his
dismay, Bryant was not as he had expected the focus of the
capital punishment controversy then raging in the city, and he
was soon lost from the public attention forever.
The trouble with the criminal system is that our proper
concern for constitutional protections leads to endless delay.
There is no certainty of speed in the system, and criminals
caught red-handed walk the streets on personal recognizance
awaiting trial and even long after conviction.
does not approve.
wholly nonrehabilitative.
pampered which they are not.
The public
Incarceration is expensive and almost
The public thinks prisoners are
We have to find a better way.
My own belief is that we start too late. Most adult
offenders have juvenile records, often long ones. Sending a
juvenile “home to mama” without meaningful supervision is no
solution. Teen-agers these days are not little unsophisticated
darlings. Among th+ group are vicious little punks who should
have the screws tighten on them early.
system is far too lenient. Some system fashioned like the CCC
of FDR’s time, where many of these young people could learn a
trade, be subjected to discipline not present in a fatherless
home and made to go to school might be worth trying on a large
scale. At least something new must be attempted. I have never
forgotten a young 18-year-old defendant brought into my court
as an adult because of his frequent vicious juvenile offenses.
He pled guilty convincingly to first degree murder.
about to commit him he raised his hand and asked, “NOW may I
go home 1
Our juvenile justice
As I was
The conviction rate in criminal cases runs in our court
about 89 percent, but whenever one gets restless with our
tedious often indecisive way, it is well to remember the
hazards of identification testimony, the possibility that
legal assistance is inadequate, the occasional overreactivity
of the police and certainly during my time the uncertainties
8 8
of a developing but fluctuating criminal jurisprudence.
Conviction of the innocent is most unlikely, yet it can
happen. On the other hand, delay threatens society. Violent
conduct must be decisively punished or people wi-11 resort to
violence to defend themselves. The civil rights of victims of
violent crime are too often wholly forgotten. A trial judge
confronting these conflicting considerations often has to
tread carefully and struggle to keep proper balance.
–
Then there is the problem of drugs. Most crimes today
are drug-related.,. Drugs are sapping much of the vitality of
our urban communities, and we don’t know what to do about
it . . . whether we are judges, legislators, prosecutors,
policemen, parents or teachers. The small fry get caught, few
of the real violators get caught, Draconian solutions or
legalization are the only alternatives and we are not yet
conditioned to make such a choice.
I did not often find sentencing a traumatic experience.
It was not difficult to be sorry for defendants coming from
broken homes, uneducated, not very bright, lacking marketable
skills and often victims of circumstances largely beyond their
f u l l control. But they had chosen to peddle drugs or to beat
and abuse people on the street or in the privacy of home. It
seemed clear to me that the public interest required such
violent offenders be locked up. The sentence of choice was
probation, particularly for first offenders not falling into
these harsh categories. Over half of the cases in our court
got a chance at probation i n i t i a l l y .
g e t s a better sense of the odds and becomes more l e n i e n t o f t e n
with no l a t e r cause f o r r e g r e t . I t ‘ s t r i c k y business, and
t h e r e is no sure formula.
regrets.
t h e t i m e and look ahead.
and l i f e t h e r e may be v i c i o u s .
l i v e s not cases.
must be protected.
With experience a judge
I f you guess wrong you have
You must do the best you can w i t h what you know a t
Prisons are often mean and degrading
You are dealing with human
But you c a n ‘ t remake the c i t y and t h e public
There is, of course, much t h a t should be done about p r i s o n s ,
and I t r i e d to help. ,The Youth Corrections A c t , an
e s s e n t i a l l y r e h a b i l i t a t i v e sentencing s t a t u t e , required t h a t
defendants below age 22 should, if q u a l i f i e d , have a chance to
be turned around i n a special prison environment free of
a d u l t s .
o f f e n d e r s .
they refused to take him because there was no space.
long hearings, I ordered the mayor to b u i l d a new Youth
Center. He demurred, pleading lack of funds. I t o l d h i s
s p e c i a l emissary who came t o me i n chambers t h a t the Mayor
faced contempt and possible prison if he d i d n ‘ t comply.
The District of Columbia ran out of space f o r youth
I committed a young man to t h e Youth Center and
After
The
funds w e r e found and Youth Ce n t e r I1 was b u i l t-* / .
On another occasion, The Washington Post wanted access t o
the l o c a l p r i s o n s to interview prisoners and t o r e p o r t on
-* / Uni ted S t a t e s v. Al sbrook, 336 F. Supp. 9 7 3 ( 1 9 7 1 )
[ r e q u i r i n g t h e building of Youth C e n t e r I1 at Lortonl.
90
conditions. I- said they had a constitutional right to do this
within limits I set out. I took much testimony showing that
prison reform followed public exposure of conditions. The
Court of Appeals affirmed, but the Supreme Court; in spite of
the Chief Justice‘s concerns for prison reform, got timid and
reversed — but this kind of issue never dies.?’ As I write
the prisons in 40 states are under attack because of claims of
overcrowding and other conditions that violate the Eighth
Amendment. Many seek solutions but there are none in sight.
There is no way I can describe the civil workz’ which
has in recent years consumed 95% of my time. It is varied,
often complex, not always very significant. Former law clerks
have written about some of the more unusual or interesting
cases. Reading these recollections, I realize how often a
federal trial judge in Washington, D.C. becomes involved in
the issues of his time — I have had cases involving:
The House Unamerican Activities Committee
Freedom of the Press in many contexts
The Draft Registration
D.C. Home Rule
Street riots — Vietnam protests — Yippies
Presidential power to fire
-* / Washington Post and Bagdikian v. Kleindienst, 357 F.
Supp. 779 (1972) , affirmed, 494 F.2d 9 9 4 (1974) , reversed sub
nom. Saxbe v. Washington Post, 417 U.S. 843 ( 1 9 7 4 ) .
-* * / I leave until later discussion of the Watergate criminal
trials.
91
Whistle blowers
Presidential power to ignore appropriation bills
Pentagon Papers
Watergate — eight defendants and several related cases
Homo sexua 1 s
Refugee rights
Medical and legal malpractice
Abortion
Baby Doe type cases
Prison condition3
Wiretapping 1
Environment
Judicial misconduct and reform
Iranian hostages
Swine flu
Voting Rights
Race and sex discrimination.
Other cases defy classification such as: Indians having
water cut off from their fishing rights by ranchers;
protesters throwing blood on White House furniture; a Navy
captain complaining that the hospital had inserted controls in
his brain; self-dealing by members of a nonprofit institution;
problems of disturbed persons having grievances against the
President; a bizarre plane accident; a religious sect claiming
the right to use drugs as part of its ritual. And then there
is the grist of the mill: trademark and patent matters; SEC
frauds; contract violations; construction disputes;
miscellaneous torts; labor controversies; disputes over legal
fees; antitrust; truth-in-lending, Social Security, and the
endless often weird variety of pro se claims. Things were
rarely dull. I can only talk about a few high points.
–
I came on the bench at the beginning of a tumultuous
period. Martin Luther King’s nonviolent protests were cut off
by his killing and the first of numerous Washington riots
occurred, accompanied by the burning of a section of the city.
Opposition to the ,Vietnam War was increasing, and violence
broke out. Race and the war were the focus — traffic was
disrupted on occasion. College student protesters were flamed
by agitators from outside. Confrontation with police
increased — President Nixon’s administration fueled some of
these disturbances. He and some of his supporters taunted the
opposition, hurling charges designed to picture them as
Communist-inspired. It was not unusual to smell teargas
walking to work, and matters were tense. Naturally the judges
of our court became involved. Some of the work fell to me.
Howard University students had been enjoined by another
judge from rioting on the campus to further protests against
the university’s administration, which the students believed
was not sufficiently militant in advancing black causes.
However, a riot broke out, some buildings were set afire and I
found the agitators in contempt for ignoring a directive to
desist.
9 3
The Nixon administration was handling the matter directly
through Deputy Attorney General Kleindienst. He came to
chambers late one evening accompanied by Ruckelshaus with an
Order €or me to sign. Rioting was still in intermittent
progress on the campus.
enforce this Order?”
the eye and said, “Frankly, that’s none of your business.” I
said that he was right but that I would not sign the Order
until I knew and he reluctantly outlined a horrifying plan.
Police were to surrou6d the campus, marshals from other cities
had been brought in, a unit of the National Guard was being
assembled just out of sight, and it was planned to announce
that the campus would be raided at midnight unless all
protesting ceased and those concerned left the premises.
was to my mind a deliberate effort to hype up the controversy
into national proportions and a threat to life and property.
Earlier Harvard students confronting a somewhat similar
deadline had amassed at the deadline to demonstrate solidarity
and many were hurt.
adopted.
that students go home. The Guard and police were withdrawn.
I asked, “HOW are you going to
And Kleindienst looked me straight in
This
With the aid of Ruckelshaus, my plan was
Broadcasts were made to parents and students urging
There was no confrontation deadline. After midnight, our own
marshals without outside help went in.
quieted, aided by a light rain. The ringleaders were quietly
arrested and later some were convicted and sent to jail. I
was dumbfounded at the Nixon approach, but put it down to
Things had already
Kleindienst’s inexperience and unwillingness to buck the
Attorney General and White House paranoia which had been
increasingly apparent.
–
When the Pentagon Papers case broke a little more than a
year later and I became enmeshed in that classic struggle
between the press and the White House, I learned at first hand
the corrupt influences at work in the Nixon administration and
had fair warning that events like those which surfaced in
Watergate were bound to occur.
The Pentagoh’ Papers were a 47-volume top secret
retrospective study of Vietnam events and involvement over a
16-year period. The materials had been assembled €or
President Johnson. There was much information unfavorable to
Kennedy and Johnson policies which could provide support €or
mounting anti-Vietnam war agitators. Daniel Ellsberg had
worked on the Papers, had access to one of the few restricted
sets, and decided to leak them to the press in segments.
The New York Times broke the story first, promptly
followed by The Washington Post. Each paper planned a series
of articles.
the Times in New York City and the -Post in Washington.
the -Post case at 5:20 p.m. Friday under our random system Of
assignment to the consternation of the prosecutor, who had
labelled me liberal. Immediately I heard the TRO, which came
The Attorney General moved separately to enjoin
I drew
on with great fanfare. New York proceedings were going on,
but a TRO had been issued there. There was no showing made of
irreparable injury and I ruled from the bench refusing to
place a prior restraint on publication, saying that the First
Amendment guarantees should be preserved. The Court of
Appeals later the same night granted a TRO and ordered me to
hold further hearings on Monday. The Courthouse was closed
that weekend for repairs and the case moved to my home in
Georgetown on Saturday, where I met with counsel to arrange
for Monday’s hearing.
Department of Justice and White House lawyers appeared in
force.
Post was criminal if there was a true national security
violation and the Post lawyers seemed subdued and somewhat
overwhelmed by the Government’s show of forces.
I had indicased that perhaps the remedy against the
–
The Government stated it wished to proceed on Monday in
camera, and that it wanted me to exclude all counsel €or the
Post and all representatives of the Post who had been named
defendants. I was flabbergasted. I commented that this was
not Russia and that if this was the Government’s final
position, I would dismiss the Complaint. The Justice
Department lawyer said he’d have to call the White House and I
sent him to the phone upstairs. He returned and withdrew the
demand.
which the Post had copies, would be left with me and that the
–
–
It was then arranged that some of the Papers, of
Monday proceedings would focus on whatever 10 situations
revealed by the Papers the Government felt were most
sensitive. The group had no sooner left than two men armed
with pistols at their sides and white straps across their
96
c h e s t s knocked at the door. They wanted the Papers back. I
s a i d I wanted t o read them. They p r o t e s t e d , saying I had no
s e c u r i t y . I t o l d them t o bug o f f , t h a t I had plenty of
s e c u r i t y because the Papers w e r e under the sofa s e a t , and they
went off grumbling. Scanning the papers from t i m e t o t i m e
before Monday, I f e l t more and more c e r t a i n t h a t the whole
f r a c a s was a tempest i n a teapot.
–
Security was t i g h t and some of the proceedings i n
–Courtroom 6 on Monday w e r e -in camera. My b a i l i f f , Ed Roan,
discovered a mierophone under my bench. Those admitted t o the
-i n camera p o r t i o n w e r e c a r e f u l l y s c r e ened b e f o r e admission and
t h e Courtroom sealed from the p u b l i c . A White House counsel
not on the list w a s excluded u n t i l , a f t e r a great rumpus, he
w a s c l e a r e d . The -P o s t de f endant s who inc luded s e v e r a l s e n i o r ,
well-informed r e p o r t e r s were present and proved to be of g r e a t
b e n e f i t t o the defense.
The i n camera proceedings have long since been unsealed.
The chief Government witness was a State-CIA i n t e l l i g e n c e man
-who proved highly u n r e l i a b l e . Two examples w i l l s u f f i c e .
Outside Courtroom No. 6 , White House-Pentagon public
r e l a t i o n s men were t e l l i n g a c u r i o u s , f r u s t r a t e d press t h a t I
was about t o r e l e a s e war plans and endanger l i v e s of troops in
Vietnam. Indeed some papers went with t h e s t o r y . The witness
involved pointed t o some w a r plan material i n t h e Papers. It
looked dubious to me. The witness admitted no r e a l knowledge
of w a r plans and I asked for an e x p e r t . A straightforward,
knowledgeable senior m i l i t a r y o f f i c e r appeared and said t h e
material was worthless to anyone and of no consequence.
On another t r y t h e witness said t h e Papers revealed the
name of a Canadian s e c r e t l y behind the l i n e s i n Vietnam whose
presence w a s unauthorized by Canada and who, i f he wasn’t
shot i f revealed, would be cashiered by h i s government. T h i s
w a s troublesome, but I saw a stir at t h e defense t a b l e . Soon
it w a s brought out t h a t t h i s man’s h i s t o r y was f u l l y described
by name i n two or three books already i n c i r c u l a t i o n .
witness had no resppnse.
The
M o s t d i f f i c u l t was t h e able p r e s e n t a t i o n by W i l l i a m
Macomber of t h e Department of State, who described how
embarrassing and d i f f i c u l t it was t o n e g o t i a t e with foreign
c o u n t r i e s when t h e U.S. proved unable to p r o t e c t i t s more
c o n f i d e n t i a l papers. Nixon’s China t r i p was apparently i n
n e g o t i a t i o n , although he d i d n ‘ t mention it, and there was
proper concern t h a t our standing with some foreign governments
would be weakened or cut off i f t h e i r cooperation with us
leaked.
had made t h e mistake of not c o n t r o l l i n g its own papers.
Y
But here the milk had been s p i l l e d and the Government
A t the end I again ruled from the bench, refusing t o
place a p r i o r r e s t r a i n t on p u b l i c a t i o n . In denying an
i n j u n c t i o n , I s a i d i n p a r t :
“Equity deals with realities and not s o l e l y
with a b s t r a c t p r i n c i p l e s . A wide-ranging, longstanding
and often v i t r i o l i c debate has been taking
p l a c e i n t h i s country over t h e Vietnam c o n f l i c t .
The controversy transcends party l i n e s and there are
many shades and d i f f e r e n c e s of opinion. Thus the
p u b l i c a t i o n s enjoined by the Court of Appeals
concern an issue of paramount public importance,
affecting-many aspects of Governmental action and
existing and future policy.
“There has, moreover, been a growing antagonisms
[sic] between the Executive branch and certain
elements of the press. This has serious implications
for the stability of our democracy. Censorship at
this stage raises doubts and rumors that feed the
fires of distrust.
“Our democracy depends for its future on the
informed will of the majority, and it is the purpose
and the effect of the First Amendment to expose to
the public the maximum amount of information on which
sound judgment can be made by the electorate. The
equation favors disclosure, not suppression. No one
can measure the effect of even a momentary delay.”
The Government asked for a stay for a few hours to go 1’
back to the Court of Appeals and I denied it, saying the Court
was only a few floors above. Again the Court of Appeals imposed
prior restraint. Soon however it affirmed, but timidly kept
the stay on publication in effect pending Supreme Court review.
That court then prevented publication and within the month
heard argument of both the Post and Times cases. Ten opinions
issued. I was affirmed by a majority. When it was over, I
was the only judge of the 29 judges hearing the issue who had
refused to put a prior restraint on publication. The law was
as I had said it was.- */
Of course the press was unreservedly ecstatic and
cartoonists had a field day. Attorney General Mitchell was
pictured as speared by a pen, unable to advance the sword of
censorship; the Court was shown stopping arrests of the press;
– */ United States of America v. Washington Post Company, et
-al. , 1
U.S. 713 ( 1 9 7 1 ) .
99
the prior restraint of government on the typewriter was
featured, and the public’s right to know was declaimed. There
was much favorable but far from impartial editorial comment.
The cartoon I liked best was by Herblock, one of many, which
showed two G I s huddled on a battlefield amid bombs and rockets
with the caption, “The Govbrnment says publication of those
documents on the war can be injurious.”
that the continued vitality of the press this case helped to
preserve undoubtedly led to President Nixon leaving office
under the pressure5of Watergate.
It is significant
It is now well known what was an immediate sequel. The
plumbers were organized as part of the Watergate criminal
conspiracies. The white House set out to get Ellsberg, who
had leaked the Pentagon Papers, and later it fell to me to
preside over the trial involving the break-in of Ellsberg’s
doctor’s office engineered by Ehrlichman and others to uncover
dirt on Ellsberg to aid the effort of the Department of
Justice to convict Ellsberg on national security criminal
violations. Because Watergate has more lasting historical
importance and it fell my lot to have a role in the variety of
civil and criminal litigation it engendered, I am writing more
fully about those events.
Our court was in the middle of a storm. Once there were
indications of a deep corruption within the White House,
congressional committees became active, the national press
(print, radio and TV) competed to make the latest disclosure,
business a special prosecutor was put in place to guide the
grand juries, and eventually impeachment proceedings got
underway. As indictments were lodged, it was the judiciary’s
job to remain firm against many conflicting pressures, to uphold
the law and to do our best to assure fair trials. This was
–
not easy, given the flood of publicity which dominated the
newspapers, magazines and airways every day.
Watergate was an extraordinary period in American history.
Here was a President fighting to avoid impeachment who not
long before was covsidered to be on top of his job, informed
and representing us firmly abroad. His private tapes revealed
he was a crude, vulgar, deceptive man, scornful of our form of
government and perhaps a bit paranoid. The Washington Post
was intent on hounding him out of office and relentless in its
quest as the President dug himself deeper and deeper into trouble
by a lack of candor, poor legal advice and what was perceived
as contempt for all who questioned his conduct or motives.
1
4
When Watergate indictments first surfaced in 1974, Judge
Sirica was Chief Judge. He had been taking a limited case
load, as was his right, and had free time. The break-in of
Democratic headquarters at the Watergate looked like an
interesting case bound to attract attention. He assigned it
to himself. As Chief Judge, he was also responsible for matters
arising in the grand jury. He naturally became the Watergate
judge. There was, however, an increasing volume of Watergate
and more than one judge could handle as the ramifications of
the scandal unfolded. For reasons he never explained to me,
Judge Sirica assigned many key Watergate problems to me, both
civil and criminal. This was somewhat contrary to our rules,
but he persisted in favoring me, and my colleagues decided to
allow matters to take their course.
As a result, Judge Sirica tried the Democratic headquarters
break-in and later the main conspiracy case. I tried
the Ellsberg break-in case and separate indictments for prying
or other offenses against Krogh, Segretti and Chapin. In
addition, Judge Sirica assigned me a suit by Senator Ervin’s
Committee against President Nixon and a suit by CBS and others
seeking access to certain Nixon tapes. I also dealt with
Solicitor General Bork’s firing of the Special Prosecutor,
Archibald Cox.
Throughout this period Judge Sirica felt under great
pressure because of the obvious significance of the cases he
was handling and the complex problems arising in the grand
juries which were very active as the Special Prosecutor probed
deeper and deeper.
arrived at the office very early. Our chambers were on the
same corridor, and my normal early hours coincided with his
troubled schedule. He would drop into my chambers before 8 a.m.
and we talked over developments in his cases many mornings.
His law clerk often consulted me as well. Sometimes I was
Judge Sirica had trouble sleeping and
able to affect his decisions.
sounding board as he came to a decision.
had no advance knowledge of what he was going to do. I felt
then and I feel now he was all too concerned with the press
More often, I was simply a
In many instances I
102
of t h e Court. When
and today he is sti
f e d e r a l bench.-* /
I w a s assigned
and h i s publ-jc image. But h i s conduct brought public approval
it ended he was Time “Man of t h e Year,”
1 one of t h e b e s t known judges on t h e
–
U.S. v. Ehrlichman, et a l . , which involved
t h e group of White House s t a f f and t h e i r agents who had
engineered t h e warrantless breaking i n t o t h e C a l i f o r n i a
o f f i c e s of D r . F i e l d i n g , E l l s b e r g ‘ s p s y c h i a t r i s t , i n the hope
-to get information concerning Ellsberg. The defendants were
Ehrlichman, Colsdn, Liddy and two Cuban Americans, Barker and
Martinez. These latter c h a r a c t e r s had also done the o r i g i n a l
Watergate break- in, having been r e c r u i t e d by the White House.
This was a multicount indictment, The t h r e e main defendants
w e r e also awaiting t r i a l before Judge S i r i c a i n the conspiracy
case which also included Haldeman and o t h e r s and named t h e
P r e s i d e n t as co- conspirator.
The White House i n t e r e s t i n Ellsberg dated from h i s
release o f t h e Pentagon Papers.-**/ H e was f a c i n g c r imi n a l
-charges and t h e group indicted i n the case assigned to
-dubbed “the plumbers,” had decided to snoop f o r evidence
-* / When it was a l l over t h e s t u d e n t s of Andover vot ed t h a t I
should have the Fuess award, only s p o r a d i c a l l y given, f o r
Distinguished Contribution t o Public Service. I thought t h i s
w a s i n f i n i t e l y b e t t e r than accepting what Time had t o offer
but I never had t h e choice.
-**/ The d e t e rmi n a t i o n t o d e s t r o y El l s b e r g was i l l u s t r a t e d by
t h e suggestion t o the judge handling t h e Ellsberg t r i a l t h a t
he could be made head of the FBI. The judge w a s not amenable.
the psychiatrist’s office. Some of them, notably Ehrlichman,
had lied before the grand jury when questioned.
Since Judge Sirica’s trial was scheduled for the fall and
impeachment hearings were possibly in the offing, 1-moved the
Fielding break-in promptly for trial before the summer. A
number of unusual problemsbhad to be considered before the
trial could get underway.
directly.
They concerned the President
It was first necessary to deal with the defendants’ claim
that they were free 06 break into Dr. Fielding’s office without
a warrant because they believed in good faith that they were
acting in the interests of national security.
argument, I wrote an opinion rejecting this defense, reviewing
the Fourth Amendment precedents .:’
President had inherent power to order the break-in were
avoided by pointing out that the President had stated he gave
no such authorization and that neither Ehrlichman nor Colson
had yet claimed that he did. The President and his cohorts
had been beating the drum about national security suggesting
there were serious conspiracies against the country at work.
My ruling was printed in full in The New York Times and
After long
Suggestions that the
received much attention. That was the end of the
of national security.
-* * / United States v. Ehrlichman, 3 7 6 F. Supp. 29
F.2d 910 (1976).
alse claims
1974), 546
PUBLIC LYNCHING
(NO RSVP NECESSARY)
Judges Sirica and Gesell have refused changes of venue for the former associates
of President Nixon. The claim of pre-trial publicity has been met by rejection.
Requests for postponements Of trials have been refused.
Immortality has dways been the greatest passion of man, and the immortality
history provides Sirica and Gesell may make them unwilling to resist its temptation,
no matter the resultant injustices to other men.
1. Though pre-trial publicity had ruled the Sam Sheppard case be
dismissed from court, the rule does not apply to those in the most
publicized case in the history of the nation.
2. Though the Watergate Grand Jury of twenty-three people included
but one Republican, its obvious imbalance is disregarded in cases that
heavily involve partisan politics.
3. Though the District of Columbia was the only area in the country,
save one, to vote against President Nixon, the trials will not even be
moved to a less politically prejudiced zone that could be selected from
a choice of fifty states.
I ?
Television network newscasters remain mute on those inequities! since logical
analyzation would defeat their purpose. No Dadid Brinkley commentaries. No
Dan Rather capsulizations. No shaking head of Eric Sevareid.
“Equal Justice Under Law” ~esayy. But it has been a series of the most unequal
injustices this country has prescribed since black citizens were felled by
water hoses and citizens of Japanese heritage were contained in barbed wired
camps.
The public punishment will soon begin and it will be able to be viewed on television
network newscasts through artist’s conceptions and reporters and analysts.
The lynching can be watched in the comfort and safety of your own living room
starting October the First.
REGRETS ONLY:
THE UNITED STATES CITIZENS’ COKCRESS, 1221 CONNECTICUT AVENUE, N.W.. WASHINGTON, D.C. W,(2 021 3474.597
I did rule that since intent of the defendants was at
issue, they should have access to government records at the
Pentagon, CIA and Justice which they said they needed to prove
they were pursuing the national interest. But Ehrlichman
never pursued the broad discovery I granted, thus showing the
shallow nature of the national security claim.
He did, however, insist quite properly that he should
have access to his daily notes of conversations with the
President and others. These papers were under lock and key
and closely guarded ljy Secret Service in the White House. The
President refused accebs. It was obvious to me that this
withholding was illegal and unfair. Another confrontation was
in the making.
named St. Clair from Boston to deal with this and related
problems arising at that moment on the Hill. St. Clair was
not very experienced in the ways of Washington, and dutifully
stonewalled for the President, who gave him at times almost
irrational instructions. Every obstacle was raised. I recall
that at various times it was suggested that perhaps Ehrlichman
could read his notes but not have copies, that he could not be
accompanied by counsel, that if counsel did accompany him they
would have to talk in the presence of the Secret Service
agents, that he could have only a brief inspection, and so
forth.
The President had brought in a trial lawyer
I got counsel into chambers without a court reporter and
sought to persuade St. Clair that his client was taking an
indefensible position. I told him point-blank that access
would have to be granted on fair terms to Ehrlichman, and that
if it was not, I would have to dismiss the indictment. It
seemed to me I made little impression on St. Clair until I
asked him how he would feel if he was defending a criminal
case and the government would not give him his client’s diary
relating to the events at issue. The President still shilly-
-shallied, making inadequate proposals through St. Clair. I
indicated later from the bench I might have to dismiss the
indictment. Whefl’word of this prospect reached presidential
advisors, the White House gave in. Such an event would have
heaped coals on impeachment fires.
In fact I had been contemplating a different course; a
direction to the President to produce, stating that if he
failed to produce, civil contempt proceedings against him
would be held. I wrote a strong opinion and Contempt Show
Cause Order to this effect but it was never issued because the
President capitulated at the last minute. There was in the
-end, after Ehrlichman got access, nothing in Ehrlichman‘s
White House files that helped his defense.
Colson pleaded guilty to obstructing justice in
settlement of both cases then pending against him and Liddy
kept mum.
As the case developed, Ehrlichman backed and filled over
whether or not to call President Nixon as a witness. As other
possible defenses evaporated, he indicated they would call
TflE M’I1ITE HOL SI<
U \SHI\C7TO\
February 6 , 1974
Dear Judge Gesell:
I have been advised by Special Counsel to t h e
President of the o r d e r i s s u e d by you on January
25, 1 9 7 4 , i n which you s o l i c i t e d my personal response
with reference t o f i v e s p e c i f i e d taped
conversations.
As i n d i c a t e d i n the various b r i e f s , pleadings and
o t h e r papers f i l e d i n t h i s proceeding, it is my
b e l i e f t h a t the i s s u e before t h i s Court c o n s t i t u t e s
a non-justiciable p o l i t i c a l question.
Nevertheless, out of respect f o r t h i s Court, but
without i n ahy way departing from my view t h a t the
i s s u e s presented here are inappropriate f o r resol
u t i o n by the ‘ J u d i c i a l Branch, I have made a
determination t h a t the e n t i r e t y of the f i v e recordings
of P r e s i d e n t i a l conversations described
on the subpoena issued by the Senate Select Comm
i t t e e on P r e s i d e n t i a l Campaign Activities contains
p r i v i l e g e d communications, the d i s c l o s u r e of which
would not be i n the national i n t e r e s t .
I am taking t h i s p o s i t i o n for two primary reasons.
F i r s t , the Senate Select Committee has made known
its i n t e n t i o n to make these materials public. Unl
i k e the secret use of four out o€ f i v e o€ these
conversations befoTe the grand jury, the p u b l i c a t i o n
of a l l of these tapes to the world at l a r g e would
s e r i o u s l y i n f r i n g e upon the p r i n c i p l e of confid
e n t i a l i t y , which is v i t a l to the performance of
my C o n s t i t u t i o n a l r e s p o n s i b i l i t i e s as President.
Second, it is incumbent upon me to be s e n s i t i v e
t o the possible adverse e f f e c t s upon ongoing and
forthcoming criminal proceedings should the cont
e n t s of these subpoenaed conversations be made
public a t an inappropriate time. The dangers
connected with excessive p r e- t r i a l p u b l i c i t y are as
well-known to t h i s Court as they are to m e . Consequently,
my C o n s t i t u t i o n a l mandate to see t h a t the
laws are f a i t h f u l l y executed r e q u i r e s my prohibiting
the d i s c l o s u r e of any of these materials at t h i s
t i m e and i n t h i s forum.
Sincerely,
,
The Honorable Gerhard A. Gesell
Judge
U. S. District Court
Washington, D. C.
for the D i s t r i c t of Columbia
Jan. -June
1968
July
1968-69
1969-70
1970-71
1971-72
1972-73
1973-74
1974-75
1975-76
1976-77
1977-78
1978-79
1979-80
1980-81
1981-82
1982-83
1983-84
1984-85
c1985-86
LAW CLERKS
John N. McBaine, J r .
Alan Dranitzke
John F. Dienelt
W i l l i a m H. J e f f r e s s , J r .
Timothy W. Bingham
Michael C. Devorkin
Roger Ii. Fonseca
E. Donald E l l i o t t , Jr.
Mark I. Levy
Scott Blake H a r r i s
Seth P. Waxman
E r i c B. Amstutz
James J. Brudney
Peter A. Barnes
John D. Echeverria
Lynn A. Stout
John C. Millian
Patrick A. Malone
Michael E. Tankersley]
3.
106
h i m .
wanted t o ask h i m about h i s knowledge of the Fielding break-in
and h i s p o s s i b l e direct or i n d i r e c t a u t h o r i z a t i o n of it, I
urged use of w r i t t e n i n t e r r o g a t o r i e s , and t h a t -was done. I
narrowed the i n t e r r o g a t o r i e s t o t h e key p o i n t s , ultimately
d r a f t e d them myself, and asked the President t o respond i n the
i n t e r e s t of j u s t i c e , at t h e same t i m e i n d i c a t i n g doubt as t o
my power t o compel i f he refused. He responded under oath i n
J u l y , again denying any involvement, s t a t i n g he was responding
i n t h e interestst’of j u s t i c e as a matter of d i s c r e t i o n .
later read h i s sworn answers t o the jury.
When in- r e spons e to my i n q u i r i e s it developed t h a t t h e y
I
Each of these developments as w e l l as the t r i a l itself
c r e a t e d i n t e n s e public i n t e r e s t . During the Watergate
p u b l i c i t y my good friends t o l d half lies about me and the
press was very f r i e n d l y i n the main. I was dubbed Buzz Saw i n
J u d i c i a l Robes by t h e Star, and Judge Blue Eyes by The
Washington Post. The news magazines a l s o reported my doings
i n f r i e n d l y fashion. The most troublesome problem was how t o
‘assure a f a i r t r i a l . I considered t r a n s f e r r i n g the break- in
case. Defendants wanted Peoria, I l l i n o i s . I explored the
p o s s i b i l i t y of Bangor, Maine. There was, however, no place
t h a t could provide necessary press f a c i l i t i e s and d i d n ‘ t have
TV and newspapers. So every venue was i n a way t a i n t e d . The
problem was t o keep t h e fires dampened as best I could and t o
take unusual care i n s e l e c t i n g j u r o r s .
–
Jaworski, then the Special Prosecutor, went on TV and
started to discuss the case. I ordered him to court the next
day and told h i m t h a t I would have to d i s c i p l i n e him i f he
continued h i s publicity- seeking ways. He was chasfened. He
came back to chambers and apologized and t h e r e a f t e r kept
s i l e n t , which must have been d i f f i c u l t given the heavy stream
of propaganda issuing from the White House. There was
i n r e a l i t y l i t t l e I could do to stop p u b l i c i t y which was
inflaming the country, but I could keep order i n the
courtroom. 1’
There w a s a dangex t h a t the courtroom would be taken over
by t h e p r e s s . They were swarming all over the court house,
seeking s p e c i a l p r i v i l e g e s and in sone cases they were most
i n c o n s i d e r a t e .
o r i g i n a l Watergate break-in f i r s t occurred.
I f e l t things had gotten out of hand when the
Newsmen were
s i t t i n g i n Judge S i r i c a ‘ s jury boxes, holding interviews i n
t h e w e l l of h i s courtroom, and it appeared t h a t prosecutors
and Judge Sirica were giving regular press interviews. I took
a d i f f e r e n t course. The press was excluded from interviewing
i n Courtroom No. s i x , I gave no interviews myself, decorum
during the trials or hearings was s t r i c t l y maintained and the
prosecutor w a s kept i n r e i n . This set a proper tone f o r a
s e r i o u s criminal t r i a l . There were few complaints. The p r e s s
followed the r u l e s , knowing a l l were being t r e a t e d the same
and t h e more experienced r e p o r t e r s welcomed my e f f o r t s to
e l i m i n a t e a growing c i r c u s atmosphere.
108
Senate h- earings were adding to the difficulties. Senator
Ervin’s hearings were widely covered on nightly TV.
was questioning various members of the President’s staff under
glaring publicity at the same time their conduct was under
review by a grand jury and he continued after they were
indicted!
House, the responsibility for criminal conduct was in the
courts, but Senator Ervin’s committee persisted.
Here he
The responsibility for impeachment was in the
Senator Ervin had learned that Judge Sirica had heard
some incriminatin’g tapes obtained by the grand jury.
wanted them and issued subpoenas to the President.
jury was still at work and trials were about to start. The
Senator, with the best of motives perhaps, was pressing the
Senate claim to the evidence.
He
The grand
President Nixon was resisting.
When the Ervin committee sued the President in an effort
to get the incriminating tapes, Judge Sirica handed this hot
potato to me. I asked each side to make detailed submissions
responding to specific inquiries I deemed relevant. There haa
been much talk from the White House about executive privilege,
but no specific claim. I indicated that only the President
personally could make the claim. He didn’t want to do this
but eventually did by letter to me. It was far from clear
that the claim of executive privilege would ultimately stand
up. I felt strongly, however, that it would soon be
impossible to conduct fair trials if those facing prosecution
were confronted on TV with tape evidence and forced to
incriminate themselves or plead to the Fifth before the
public.
rarely a search for truth when political issues are foremost.
Congressional hearings are in the nature of things
Senator Ervin was a wise, fair man, but his involvement was
unnecessary at this stage, and disruptive of orderly
constitutional processes. I sustained the President’s claim
of privilege and caught all hell from the public which the
press encouraged to believe I was participating in a cover-up,
The public had been quite supportive of earlier
Watergate decisions:’but landed on me with two feet in this
instance.
applauded, but clamping down on Ervin’s inquiry was viewed
by many as throttling the press.
the news, going down in the sewers with Nixon, and of being
bribed.
said to be a fascist decision that would live in infamy.
Another writer simply summed it up by saying, “You are an
SOB.” Not all the mail ran this way, but anyway I didn’t
read much of it as it came in attempting to keep an open
mind.
When I had’clamped down on Jaworski, most letters
I was accused of censoring
I was called “Your Dishonor,” and my decision was
Jury selections went better than I expected. It was
surprising to find many prospective jurors who had little or
no knowledge of Watergate. I remember a truck driver who was
always on the road without a radio, a housewife who always
changed her child’s diapers when Watergate came on TV and
several blacks who quite obviously had no interest because
Watergate “was a white man’s fuss.” Moreover, there were SO
many currents and counter-currents, rumors, disclosures,
denials , et cetera, that only those with political science
interests had attempted to untangle the mess as-it developed.
Many prospective jurors knew a little, had no opinions or for
other reasons were clearly unprejudiced.
–
The trial itself went smoothly. Colson had pled guilty
to obstructing justice, and was out of Judge Sirica’s trial
and mine. Liddy simply sat and listened, smirking at some of
Ehrlichman’s unbplievable accounts and even winking at me when
Ehrlichman got wholly unrealistic.
they were simply dupes. The focus was on Ehrlichman. He put
on a feeble defense. He was represented by a Florida lawyer
of limited taLent who, it was rumored, had been selected by
The Cubans explained how
Bebe Rebozo; Ehrlichman’s original lawyer had dropped him.
Ehrlichman’s reliance on national security had failed, he
failed to show a crucial telephone call by him authorizing the
break-in had not taken place, he demanded testimony from Henry
Kissinger whom I forced to appear,:’
nothing worthwhile from him and finally the President by
interrogatories answered under oath denied responsibility.
but Ehrlichman elicited
– */ After that day in court a British judge who was a spectator
came back to chambers and expressed amazement and approval of
our system which brought a high official before the jury at
the defendant’s request. He felt it would never have happened
in England.
The jury convicted all defendants. After final argument
but before the charge, the Courthouse had been disrupted by
some prisoners who had taken their lawyers and others hostage,
and I had to hold court in the old courtroom of the D.C. Court
of Appeals using the jury box which was still in place. A
welcomed bourbon from Chief Judge
helped while I awaited the result after charging the jury.
did not take long.
Reilly in his chambers
It
On appeal, one of Ehrlichman’s principal points was that
I had facial expredsions which influenced the jury.
wife had asked me to ‘let her bring two friends to the trial.
They were stalking horses, and I the pigeon. They filed affidavits
against me on appeal. However, these false claims were
rejected by the appellate court.
Ehrlichman’s
When it came to sentencing, I felt defendants who had
breached the public trust should serve some time in prison.
Ehrlichman, Colson, Segretti and Krogh were lawyers.
faced loss of their right to practice law and their convictions
carried almost automatically this further sanction.
Liddy, also a lawyer, Judge Sirica had already put heavy prison
penalties on him for the first break-in. Since he never
They
As for
attempted to excuse his conduct and made no false statement to
the grand jury or the court, a concurrent sentence seemed
enough. Chapin went to trial, put on a gentleman’s defense
and lost with grace.
Haldeman, who never came to his rescue in any way.
He had lied to protect his boss,
I received
112
many letters from a wide v a r i e t y of people urging leniency f o r
each of t h e s e men. Some of them had done useful things i n
t h e i r l i v e s and as always families and f r i e n d s are deeply h u r t
—
by a defendant’s mistakes.
When I sentenced Ehrlichman I thought of many criminals I
had seen who had shown f a r more character and manliness than
he had. He was a l i v i n g noodle unable t o acknowledge h i s
weakness or f a u l t as he t r i e d t o wrap himself i n the f l a g with
s e l f- righteousness I never understood how the President
had been able ts’tolerate him. I f e l t I understood Liddy and
Colson. Liddy believed t h a t the end j u s t i f i e d any means. H e
was dedicated t o h i s concept of p a t r i o t i s m and stuck by h i s
guns taking the consequences without complaint. Colson w a s
more complicated. H e worked out a deal with the s p e c i a l
prosecutor, took h i s sentence l i k e a man and has since made a
genuine e f f o r t to be u s e f u l to society. Prison made
absolutely no impression on Ehrlichman and Liddy but it
obviously a f f e c t e d Colson deeply.
perspective on h i s l i f e while incarcerated.
Krogh gained a new
A t the t i m e it w a s d i f f i c u l t to accept t h e obvious f a c t
t h a t men with every advantage and t r a i n e d as lawyers could
have allowed themselves t o be corrupted. Some of them had
~ ~
-*/ A s t h e o n l y major p a r t i c i p a n t i n t h e Watergate s i t u a t i o n
who has not w r i t t e n a book I nonetheless read t h e accounts of
o t h e r s . None jibed with my r e c o l l e c t i o n i n a l l respects but
Ehrlichman’s account of h i s t r i a l before me portrays a t r i a l
t h a t never occurred.
difficulty in understanding what had happened to them. There
was no indication that some driving ideology or burning issue
influenced what happened.
corrupted by power and its trappings. In an imperial
presidency, those near the center were fawned on and glorified
by those on the outside to a point where some, encouraged by
the President himself, lost all perspective. During the
lonely nights in prison this truth was recognized by a few who
wrote me and they have reordered their lives accordingly to
their great credit .I’
These defendants had simply been
When Watergate was over I felt the Constitution had
worked, that the independence of the federal Judiciary had
been demonstrated and that justice had prevailed.
Ford’s pardon of President Nixon did much to detract from what
had been accomplished and left a bad taste.
President
Even as the events unfolded proposals for reform surfaced
before the nature of the sickness could be ascertained. It
was suggested from the Hill that our court should be empowered
to appoint a special prosecutor but the full court declined.
When the Solicitor General discharged Archibald Cox I later
ruled he had exceeded his power. But this event disclosed
that there was no firm mechanism for investigating serious
misconduct in high places and the effort to develop the
Special Prosecutor statute got under way. Now, ten years
later, the Court of Appeals for the District of Columbia has
made the Special Prosecutor statute which had been ultimately
enacted practically ineffectual with strong words from Judge
—–
1 1 4
Bork, the Nixon appointee who earlier had fired Archie COX
because he was inquiring too closely into Nixon’s abuses of
the Presidential office. There will be other Watergates. The
ability of the American public to forgive and forget will
continue.
—
A trial judge learns very soon if he had not already realized
it that he must learn to confront inflammatory issues which
attract public scorn. When the judge is interjected into the
middle of an unsettled issue of intense national concern, he
should know he be damned if he does and damned if he doesn’t.
These situations bring extremists out of the woodwork and are
not conducive to peace of mind. It has been my lot to be involved
in several, and it has been a great solace to know that 1 enjoy
the independence and security granted an Article I11 judge.
In my case this very privilege has led me to try to avoid excess
and to call shots carefully, attempting to explain reasons for
the actions taken, knowing that the hornets will soon be buzzing
as sensitivities become inflamed.
The mail too often contains cheery greetings of which the
following are typical:
“Headline: ‘Drug-Drive Searching of GIS Held
Illegal’.
You are about the stupidist man on the bench.
It is your kind of cancer that infects the
judiciary and America. We are trying to do
something about the drug problem but YOU are no
better than the junkie who sells drugs. Get the
hell off the bench and make your peace with the
victims of drugs. You aid and abet the enemy.!
American citizen”
* * *
“The Rosenberqs turned traitors and turned
the atom bomb secrets over to the REDS.
Now you and the other Jews are deciding
what is secret and what is not
J u s t as Judas betrayed Christ you and the
other creeps such as Eis,lberg and Slushberger
are betraying the U.S.
All these bastards are interested in is the
dollar and control of peoples minds.
No freedom of the press and turning over
papers that give aid and comfort to the enemy
and helps kill more U.S. troops.
1′
You lousy Traitors. I’
* * *
“Congratulations your communistic decision
for reserve officers. GI’s are next.”
* * *
“So what? Why you dumb bastard!!
Definately gutless too. You are typical of the
tripe running our country today.
How can you judge anything with your
limited knowledge of aviation?
public or Govt. payroll since you got out of
college.
I’ll bet you $10,000 you have been on
Slopping at trough S.O.B.
Show some guts and do something about this
letter. ”
* * *
116
At times there was solace in remembering Justice Holmes
–
who once said in addressing the Harvard Law School
Association these comforting words:
“1 get letters, not always anonymous,
intimating that we are corrupt. Well, gentlemen,
I admit that it makes my heart ache. It is very
painful, when one spends all the energies of one’s
soul in trying to do good work, with no thought
but that of solving a problem according to the
rules by which one is bound, to know that many
see sinister motives and would be glad to find
evidence that one was consciously bad. But we
must take such things philosophically and try to
see what we can learn from hatred and distrust,
and whether behind them there may not be some
germ of inarticulate truth.“
One area burning at white heat where I found myself on
-,
the griddle concerned the conflict between abortion and “the
right to life.“ Here religious, economic, scientific and
psychological considerations are all in conflict intermingled
with individual personal experiences.
Columbia had an archaic criminal abortion statute which as
The District of
interpreted by the Court of Appeals placed on the doctor who
performed an abortion the burden of establishing medical
justification rather than placing on the prosecution the
burden of negating this recognized defense beyond a reasonable
doubt. In 1969 I ruled orally from the bench but after much
thought that this statute as interpreted was unconstitutional.
I said in part:
“There has been, moreover, an increasing
indication in decisions of the Supreme Court of
the United States that as a secular matter a
woman’s liberty and right of privacy extends to
family, marriage and sex matters and may well
include the right to remove an unwanted child at
least in early stages of pregnancy. . . .
Matters have certainly reached a point where a
sound, informed interest of the state must
affirmatively appear before the state infringes
unduly on such rights. The abortion debate
covers a wide spectrum of considerations:
moral, ethical, social, economic, legal,
political and humanitarian, as well as
medical. . . . But it does not appear to what
extent Congress has weighed these matters in
establishing abortion policy for the District of
Columbia beyond an expression of a clear
necessity of placing the matter in the hands of
competent doctors.
* * *
“The Court cannot legislate. A far more
scientific and appropriate statute could
undoubtedly be fpamed than what remains of the
1901 legislation. The asserted constitutional
right of privacy, here the unqualified right to
refuse to bear children, has limitations.
Congress can undoubtedly regulate abortion
practice in many ways, perhaps even establishing
different standards at various phases of
pregnancy, if informed legislative findings were
made after a modern review of the medical,
social and constitutional problems presented.
The Court ventures the suggestion that Congress
should re-examine the statute promptly in the
light of current conditions.”
This case came very early in the growing legal
controversy surrounding abortion. The Supreme Court
reversed by holding that the Court of Appeals
interpretations on which I relied were erroneous. The mail
was heavy, but nowhere near the 60,000 letters Justice
Blackman is reported to have received later following the
landmark Supreme Court decision legalizing abortion.
from some letters objecting on religious grounds, the bulk
Apart
of the mail was highly favorable. Many women wrote. I
heard from other judges and law professors, friends and
strangers. It surprised me that many letters spoke of
courage. I had not been aware I was being courageous.
While I expected more adverse comment, I already knew abortion
issues were controversial but thought both sides were about
at an even stance and that many people really didn’t care.
Of course the battle still goes on but now there seem to be
only extremists on either side. I thought the Supreme Court
was indecisive. It often is on major issues and perhaps
should be.
–
Later in 7983 I was again interjected into this
sensitive area when I struck down the Secretary of Health
and Human Services’ “Baby Doe” regulations.- *I Here the
issue was again directed at an age-old question: when a
badly deformed or mentally defective infant is born, should
doctors accede to parental wishes and allow nature to take
its course or should they in the interest of the state
resort to life-sustaining techniques to preserve against
parental wishes whatever quality of life may be present. I
ruled the Secretary’s regulation interjecting federal
1
snoopers into the delivery rooms was invalid because she had
failed to follow proper procedures in promulgating an
emergency regulation without hearing.
heavy. The opinion was carefully and simply written in
understandable language but my correspondents took off to
Again the mail was
-* / American Academy of Pediatrics v. Heckler (HHS), 561 F.
Supp. 395 (1983). [Baby Doe]
1 1 9
voice their preconceptions — fortunately after more mature
consideration the Reagan administration watered down its
position after consulting the medical profession and reached
a far less drastic solution. The appeal was dropped.
Other issues were equally controversial. In late 1970
I enjoined the public printer of congressional documents
from printing a black-list which the House Unamerican
Activities Committee had prepared. This was a list of
radicals to be circulated to alumni and officials of
colleges throughout the country in an attempt to prevent any
person listed from speaking on campuses.
the repressive tendencies of the Nixon administration were
gaining ground. I tried in s.imple language to urge a
greater sense of decency and restraint, pointing out the
total lack of any legislative purpose behind this witch
hunt. Among other things, I said —
This came up as
“It is alien to any legitimate congressional
function, as well as contrary to our most established
traditions, for any Committee of the Congress to
disseminate lists designed to suppress speech.
Members of the Committee may speak their minds,
and their words will carry added weight because
of the great prestige of their high office.
They cannot, however, by the mere process of
filing a report devoid of legislative purpose,
transform these views into official action by
the Congress and have them published and widely
distributed at public expense.
“The Court notes the increasing tendency of
the legislative branch to investigate for
exposure’s sake, and expresses the hope that
members of Congress will by rule and attitude
limit congressional inquiry to those matters
amenable to constitutional legislative action.
The Congress, the Judiciary, and the Executive
branch properly seek remedies against violent
12
conduct, but the marketplace of ideas cannot be
closezl and all branches of government must in
the last analysis depend on the common sense of
citizens. This is the essence of democracy and
it is in times of stress that the fundamental
requirement of free speech and non-violent
assembly mk t be assiduously preserved wherever
possible. ‘I- 7
There was an immediate reaction. The Court of Appeals
refused to summarily reverse. Congressman Ichord mounted a
personal attack on me from the floor of the House and some
legislators of his persuasion joined in. It was labeled the
Gesell affair. My civil liberties and anti-abortion record
1 was raked over. I was pictured as a threat to Congress and
the Constitution and a heavy bunch of letters favorable and
unfavorable arrived. Many writers were appalled and said I
had betrayed the country.
was helping break down law and order, attempting to overthrow
I didn’t know the meaning of honor,
the government to aid the punks. There was a general theme
as stated by one lady, “What on earth is happening to our
beloved country, especially our federal judges?” Others
sent thanks and spoke of courage. There was much editorial
–
comment from The Sacramento Bee to The Washington Post and
New York Times. Again the reaction was mixed but overall
favorable. None of the letters or the editorials spoke of
the essential point — that I had stepped i n to protest
against a congressional committee engaging in tactics wholly
foreign to any legislative purpose — -i.e., to quiet those
-* / Hentof f v. Ichord, 318 F. Supp. 1175, 1182-83 (1970).
121
with whom it did not agree. In the middle of all the bitter
comment, I felt threatened only when a man with a gun came
several times to my farm when I was not there, saying he was
after me for what I’d done. After I spoke to the- Loudoun
County sheriff, the man never turned up again. The letters
and editorials gave me a clear indication that there were
well-entrenched attitudes in the land that could easily be
awakened by one who became restless with the slow and
faltering progress of our form of constitutional government.
Looking back nbw over the mail of the 16 years, it is
clear that there are’many people who believe the press is
doing a good job of disclosing graft and want it to
continue, that the military is protecting us from communism
and that any judge who speaks out for civil rights should have
his head examined. It comes through loud and clear that there
is an amazing ignorance of our form of government and of the
role of the courts. Time and time again cryptic media
coverage results are misleading readers of the true issues.
News is capsuled to a point where only results are disclosed
and the underlying reasoning remains hidden.
On a number of occasions, usually once or twice a year, I
have been asked to sit with the Court of Appeals. Judging
at that level is a wholly different job. The cases have
already been decided. You have nothing to do with directing
the course of the proceedings, sorting out issues or
developing facts. Your job is to review. The frustrations
1 2 2
of appellate work are enormous.
colleagues within reason and await their decision making.
The appellate function has long been distorted. It was
intended to correct error. It has become much- more. Many
appellate judges feel compelled to announce their own views
on the underlying issues. When the decisive facts have a
different thrust well-founded findings below are ignored or
set aside — not always as a matter of law, but of policy.
You must accommodate your
~
+Thus the appellate process may become a matter of
personalities. ,The composition of the Court often foretells
the result. I have been impressed with the dedication,
sincerity and effort our appellate court brings to each case
large or small. But my limited experience convinces me of
these things: Appellate judges should have experience in
the trial courtroom. There are too many law clerks messing
in the appellate decisional process. Appellate courts are
far behind, however, too bureaucratic and as law clerks and
secretaries work over materials for the judge the judge’s
individual effort toward the result lessens and his or her
-work lacks the imprint of individual effort. The appellate
work offers little feeling of personal achievement and is
too removed from day to day events to satisfy one of my
temperament. While it is comforting for a trial judge to be
protected from his errors through appeal, the inferior role
suits me the best.
Let’s turn to something else — court management. Have
you ever seen Richard Pare’s Court House, a Photographic
123
Document? It shows the early courthouses which became the
focus of scattered settlements as they turned one by one
into towns built around the courthouse. The courthouse
reflected community pride.
It was as Pare notes, “The linchpin around which the town
developed.” It also marked the extraordinary influence that
judges in those early days played in establishing law and
order2′ and setting moral standards.
theatre, political jockeying, sorrow and joy and usually
justice developed w$&h aid of common sense juries.
It was the center of activity.
Here there was
In the cities that have succeeded the towns, all this
has been lost.
practicing lawyers don’t even know where the courthouse is.
The press rarely covers trials in any detail.
about its business nowadays with only a glimmer of what is
taking place in its courtrooms. Yet, oddly enough, we seem
The people and even a large share of the
The public goes
to become more litigious every day. The volume and variety
of lawsuits constantly amazes me. Problems that used to be
thrashed out in town meetings or handled effectively by
mayors and town or city managers now come to court as these
mechanisms appear unresponsive. Legislatures beset by
special interest lobbies and conscious of the complexity of
most daily affairs end up speaking in imprecise generalities,
-1/ I should have mentioned earlier my remote Uncle Issac
C. Parker, “the greatest of all American trial judges, the
famous hanging judge who was the first federal judge in the
Oklahoma Territory sitting in Arkansas. See He Hanged Them
High, Homer Croy, Duell, Stone and Pearcey, Little Brown. –
1 2 4
leaving the courts to fashion, interpret and effect practical
solutions hopefully consistent with a generalized legislative
purpose and the Constitution.
–
Yet we have not found a better way to resolve disputes
and keep our form of democratic society on course. With all
the criticism of the courts citizens turn to them for relief
and the stability of our form of government depends on the
integrity and efficacy of the judiciary.
litigation will pour in, much of a judge‘s time is concerned
with case management, case control, how to get the work
done. While lawyers are rarely in a hurry, their clients
are and every delay is blamed on the courts.
Knowing that
The management aspect of the job has two facets. First
and foremost, each judge must learn to manage his or her own
individual caseload. Beyond this there is a continuing need
to perfect a court‘s overall operations by improving
assignment techniques, developing new rules and procedures
and identifying the weak spots that need correction.
My individual caseload was kept i n reasonably good
shape by a few simple devices. Every case had a date for
completing some step leading to a definite trial date set
well in advance. Few continuances coupled with close review
of the progress being made kept things humming. I found
that lawyers respond when a judge seems to know the case,
offers suggestions, and sticks to the dates and rulings he
lays down.
_- – –
1 2 5
It has been my lot, moreover, to be involved almost
continuously with the larger aspects of court management.
When I came to the court, I had been studying ways and means
of improving judicial administration €or several years as
chairman of a special committee created by the Judicial
Council.
persuade the United States District court to abandon the
master calendar and go to the individual calendar system.
Judges Curran and Jones had rejected the idea. The court
was still on the master calendar when I arrived and
everything I saw led me to feel the committee had been on
the right track in proposing a system that would assign each
case to a specific judge who would see it through to
conclusion. File after fils showed the waste, duplications
and delay the master calendar system with its diffuse
responsibility often created.
push, with a few other likeminded judges, for the individual
calendar from inside. The court was swamped with common law
crimes — rape, armed robbery, housebreaking, et cetera —
it was falling further and further behind on the civil side.
After a good deal of discussion, eight judges took the
entire criminal calendar on an individual calendar basis and
left the other judges free to tackle the civil case load.
The committee had sought unsuccessfully to
I immediately started to
This was an experiment. It worked. Even the criminal
calendar improved and the entire case load greatly improved
After a few months the full court went onto the individual
12’
system €or both civil and criminal cases as the dissenters
became convinced. It has been a great success thanks to the
cooperation of all concerned.
–
Soon after I came to the court, I came to know Chief
Justice Warren Burger then a circuit judge. He asked me to
help with his ambitious plans to improve court administration
as soon as he became Chief Justice. I worked with him on a
number of things including the planning for a program to
train court executives.
the Criminal qules Committee of the Judicial Conference,
where I stayed for eight years. Chief Justice Burger put me
also on the Conference Jury Committee, and on the board of
the Federal Judicial Center and I helped him in various
other ways. He stopped by my house at night, on occasion,
on his way home for a drink and a talk. All of this didn’t
last very long. I felt the Center was not doing a good job,
expressed disagreement and resigned. I did this privately.
Although our relationship continued to be cordial he never
spoke to me again on any aspect of judicial management.
Chief Justice Burger had put me on
I still had much to do, however, within our court, as
well as for the District of Columbia. One of my most
interesting assignments was to serve on the Judicial
Disability and Tenure Commission, a statutory group charged
with reviewing the performance of local D.C. judges. The
Commission met regularly, reviewed conduct of individual
127
judges and took formal and informal corrective action.
During my tenure the commission smoothed out some of the
rough spots in the local courts, disciplined a few
intemperate judges, pointed the way toward higher standards
which the majority of local judges desired and in many
indirect ways helped to bring’ about higher standards.
felt somewhat uncomfortable reviewing the bench conduct of
I
other judges, but felt I was able to bring perspective to
the deliberations of the commission which was otherwise made
up of lawyers and laymen. The tribute the commission paid
me at the end of my fiwe-year term warmed my heart, as did
many quiet comments by leading judges of the local courts
who felt we had made significant progress.
Although I thought I knew a good deal about federal
courts after years of practicing before them, I had much to
learn about their management problem.
pinched the federal courts are financially.
are far too small. The courthouse is poorly maintained. Food
is awful. Modern business equipment is unavailable or hard
to get and always slow in arriving. Clerical help is
underpaid. As the Third Branch, the courts get the short
end of the stick. The lush spending on the Hill or at such
agencies as Agriculture and the Pentagon illustrates what
I had had no idea how
Appropriations
poor cousins we federal judges are. Perhaps it is
inevitable.
wrenches into the machinery to maintain constitutional
Courts so often are obliged to throw monkey
12:
standards.
fixed, air conditioning doesn’t function, when little men
cut off your hot water to save money, etc., those of us at
the courthouse felt we needed more leeway to run a smoother
operation which the public deserves.
– But when it takes eighteen months to get a l e a k
In any multijudge court the efficiency of its
administration depends on the skill and interest of the
I Chief Judge, whose selection is made on a seniority formula.
Whoever is Chief Judge must recognize that a group of
life-time Artiple I11 federal judges is composed of highly
individualistic persons often acutely conscious of their
equal status and prerogatives. Thus the federal courts run
essentially by committees, which at best is a cumbersome
imperfect process that tends to compromise at slow speed.
With a limited budget controlled by the Administrative
Office of the United States Courts and with care and
maintenance in the hands of an incompetent General Services
Administration, progress is difficult at best.
At one time or another, I served on almost every
possible committee of the court and did my best to encourage
movement. On the whole, given all the obstacles, we have
had a better than average result, but it is clear to me the
Third Branch could do a bett,er job if it had more money and
was free of GSA. Every court is different. Every court has
its own special problems. Bureaucratic rules applicable to
all federal courts often ignore significant differences.
Many judges coming from the legal profession have limited
administrative s k i l l s . There is much yet to be learned
about judicial management. The need for reform here is
still substantial.
Part of the management problem involves developing
methods for disciplining judges who shirk their
responsibilities or who are unable to perform due to age or
illness. Obviously in a group of several hundred men and
women no matter how careful their selection there will be a
considerable range,of ability, variations of temperament and
a disparity of motivations and energy for addressing the
task at hand. Because some judges have seemed too casual,
sloppy or indifferent to their case management functions an
ever increasing series of rules to govern conduct on and off
the bench and to dictate how a judge should proceed at each
stage of a criminal or civil case has been developed. This
has tended in large part to be ineffective busy work. The
judges targeted have ignored the strictures.
Public concerns have resulted in Congress taking a more
direct and effective step by providing authority for the
disciplining of judges whose performance is found unsatisfactory
after review within the judiciary itself. Recently I upheld
the constitutionality of this significant reform and the
case will now wind its way through the appellate process.
130
Signing Off
Finally, as in everything else, I have been lucky to
have had able, loyal law clerks.:’ Although I have felt the
need of having only one law clerk a year now as-the years
roll along, when we get together on occasion, I am
increasingly aware of what their companionship and support
has meant.
chambers for lunch or when at the courthouse.
watch each of them grow and succeed, fulfilling the great
promise indicated by their resumes that brought them to
Courtroom No. 6. They have a l l prevented mistakes, been
superb sounding boards and helped produce quality work.
have learned much from them individually and as a group, and
we have shared many confidences which have never been
braken.
rolled along serenely.
Many have remained in Washington and drop by
It is good to
1
I
Once Doris Brown breaks in a new clerk, things have
The change each year has been
~-~
– *I
John N. McBaine, Jr.
Alan Dranitzke
John F. Dienelt
William H. Jeffress, Jr.
Timothy W. Bingham
Michael C. Devorkin
Roger W. Fonseca
E. Donald Elliott, Jr.
Mark I. Levy
Scott Blake Harris
Seth P. Waxman
Eric B. Amstutz
James J. Brudney
Peter A. Barnes
John D. Echeverria
Lynn A. Stout
John C. Millian
Patrick A. MaLone
[Michael E. Tankersley
January-June 1968
July 1968- 1969
1969- 1970
1970- 1971
1971- 1972
1972- 1973
1973- 1974
1974- 1975
1975- 1976
1976- 1977
1977- 1978
1978- 1979
1979- 1980
1980- 1981
1981- 1982
1982- 1983
1983- 1984
1984-1985
1985-19861
stimulating and I have never been disappointed. This aspect
of the system I would never change. I look forward to
having a son or a daughter of a clerk follow in the family
tradition. It could happen, and what fun it would-be!
It was easier to begin this account than to end it. That
is because as yet there is no end. I doubt there will be a
third career in the law. While semi or complete retirement
is possible, I am still learning and hopefully doing a
better job through experience.
matter.
to push ahead. Someday I will know it is time to quit or
surely those close to me will let me know. If I add more
chapters to this account in the meantime, this sentiment
will still be at the end.
Age is not a chronological
It is a makter of energy, health and a willingness
G.A.G.
North Haven
August 1984
PRESENTATION
of the
EDWARD J. DEVITT
DISTINGUISHED SERVICE TO JUSTICE
AWARD
m
HONORABLE GERHARD A. GESELL
District Judge, United States District Court
District of Columbia
Washington, D.C.
May 16, 1990
PRESENTATION
In presenting this award to Gerhard A. Gesell, we acknowledge his
devotion to bettering the lives of Americans through his distinguished work
on the federal bench. We also recognize Judge Gesell’s many cuntriiutions,to
improving the system of American jurisprudence for current and future
generations, as well as his example as a colleague, friend and mentor to many.
Judge Gesell’s impact on our justice system and the lives of Americans has
been profound and widespread. He possesses qualities of intelligence and
honesty, along with the drive to see justice carried out in an even-handed,
timely manner. It is rare to find all this in one human being and we will focus
on but a few of his many accomplishments and attri%utes.
COURTROOM SKILL
His skill on the bench, is first and foremost, widely regarded, perhaps even
legendary. One experienced trial lawyer of Washington, D.C.’s Stein, Mitchell
& Mezines he$s define this courtroom mastery:
I have tried a number of cases before Judge GeselL His wntrol of the
case is immediak He permits no exploration ofirrelevancies and the
lawyers are at once aware that a decisive and fair Judge has taken hold
of the case. His broad experience in litigation lets him see what is a bit
beyond the horizon He has never been bothered by Me problems that
plague other judges, discove y disputes. His muscular intelligence
strangles them.
T. Sumner Robinson, Associate Publisher and Editor-in-Chief of The Los
Angeles Daily Journal, who covered the U.S. District Court for many years,
remembers being awed by the judge’s style as he watched the Watergate
trials:
What remaim indelibly etched in my memory is his solemn and
unflinching style in disposing of these weighty and serious matters in a
conscientious and ethical manner, a style seemingly unagected by the
drama that surrounded the events of the time. He remained a stern,
but compassionate, judge, carefilly weighing each case and each individual
defendant on its or their own merit.
AFFINITY FOR PUBLIC SERVICE
In addition, we highlight the extraor.iinary breadth of his devotion to
public service in all forms. Guido Calabr .si, Dean and Sterling Professor of
Law, Yale University, comments on one benefit society has gleaned from
Judge Gesell’s long service to the school as alumni chairman and its representative
on the council of the university:
DEVIR AWARD PRESENTATION
Public senice is a broad term. Work for one’s law school may not
qualib US the most significant of public seruice, but it surely has its
part. When it is done by someone like Judge Gesell, who has also been a
dominant figure in more traditional forms of public service, it serves to
show how a person who is truly dedicated to the public interest, can
find time for it in all its manifestations.
Another prominent attorney of Wilmer, Cutler & Pickering. Washington,
D.C., adds these thoughts on Judge Gesell’s view of his profession as a public
service impacting society-at-large:
Above all, he has maintained an enthusiasm for the profession of law as
a public senn’ce, and for the dispensation of equal justice to the weak as
well as the power-1, that he continues to transmit to all who appear
before him
MENTOR TO MANY
Finally, we focus on his example as a man worthy of emulation. Judge
&sell has served *as a role model for countless young attorneys. These men
and women help shape the legal profession every day, and will continue to
lead our justice system for decades to come in the tradition set out by Judge
Gesell. Says one former clerk, now a professor at a school of law:
He is probably the most ethical person that I know. So ofin in legal
practice, lawyers and othem manage to rationalize nrtting comers.
Though he understands the factors that lead people to do that, he does
not believe that is acceptable. I have fewer shades of gray than before I
met him.
Another law clerk (and Judge Gesell has never had more than one a year)
of Miller, Cassidy, Lam & Lewin in Washington, D.C. sums up the
sentiments of the twenty-three law clerks Judge Gesell helped mold
His accomplishments and contributions are recognized nationwide, yet
he is an unassuming, modest man. when he assumed the federal
bench, he lej2 a highly remunerative and coveted position as senior
partner of one of this county’s premier law firms He is the classic
etample of a man who has foregone matm’al rewards to lead a life of
public service in the justice system. Judge Gesell is truly an outstandingjurist
public servant, and human being. He richly deserves this
award
The Devitt Distinguished Service to Justice Award was established to
recognize extraordinary service by members of the Federal J4iciary. Judge
Gesell’s contribution to American justice epitomizes the spirit of excellence
embodied by this award.
For his distinguished service to justice, we. his confreres on the Federal
Courts, United States Supreme Court Justice Sandra Day O’Connor, United
States Circuit Judge Wilfred Feinberg. and United States District Court Judge
HONORABLE GERHARD A. GESELL
Edward J. Devitt, present to the Honorable CERHARD A. GESELL, the
EDWARD J. DEVI7T DISTINGUISHED SERVICE TO JUSTICE AWARD.
Judge Gerhard A. Gesell was born in LQS Angeles on June 16, 1910, the
son of renowned physician and child developmental expert Dr. Arnold L
Cesell and Beatrice Chandler Gesell. He graduated from Phillips Andover
Academy (1928) and received his A.B. degree (1932) and J.D. degree (1935)
from Yale University.
Fresh out of law school, he joined the staff of the new Securities and
Exchange Commission and is given credit for helping to establish the SEC as
an effective regulatory agency. After only three years at the SEC. he was
put in charge of a public investigation into the New York Stock Exchange and
one of its major brokerages. His handling of the widely publicized hearings,
at which J.P. Morgan and many other Wall Street tycoons testified, was
praised in newspaper accounts, including this one from Raymond Clapper.
Young Gesell was taken green out of law school and had been working
for the SEC for three years. He ww competent and he developed
rapidly. He handled the Detroit bucket-shop case and worked up the
big Atlantafraud case. When the SEC began investigating the Whitney
affair he was assigned to the job. He prepared himself with atreme
care and thoroughness. In addition to that he had a gijlfoi compact,
succinct questioning. He worked rviul economy of elfort avoiding
useless questions and handled his witnesses uith a cool sure touch but
calmly without browbeating, revealing skill that most lawyers are years
in acquiring.
Thereafter, he received increasing responsibilities at the SEC, handled
congressional hearings and advanced to a position in the Chairman’s office.
In 1941, he left the SEC to join Covington & Burling, a major District of
Columbia firm, where he established a national reputation as a trial lawyer
and corporate advisor. During his twenty-eight year career in private prae
tice, Judge Gesell tried many celebratod cases in federal courts around the
country, and argued several antitrust and other matters before the Supreme
Court.
Judge Gesell has always devoted time to public service. While in private
practice, he se:ved as Chief Assistant Counsel to the Joint Congressional
Committee on Iqvestigation of the Pearl Harbor Attack (1945-46). He chaired
the President’s Commission on Equal Opportunity in the Armed Forces (1962-
641, which helped prompt the desegregation of many aspects of armed services
life. He was also an original member of the Lawyers Committee for Civil
Rights Under Law and the recipient of numerous citations for public service
and pro bono activities. He served as Chairman of the Committee of the
Judicial Council of the District of Columbia Circuit (1966-67) and helped to
guide the reorganization of the District’s court system. He was an early
Fellow of the American College of Trial Lawyers and a lecturer at the
University of Virginia and Yale law schools. Throughout his career Judge
DEVIR AWARD PRESENTATION
Gesell has also served on educational and hospital boards in the District of
Columbia. In 1967 he received the Yale Law School Citation of Merit, the
highest award given to graduates of this school, and in 1973 he received the
Phillips Academy Claude Moore Fuess Award for distinguished contribution to
public service.
Judge Gesell’s affinity for public service endured when he was appointed
to the federal bench by President Lyndon B. Johnson on December 7, 1967.
He entered on duty on December 29, 1967. One of the few lawyers at the
time willing to give up a senior partnership in a leading law firm for life
service on the District Court bench, Judge Gesell’s path to federal judgeship
typifies his independent frame of mind. His many noteworthy decisions serve
as an exclamation point. Although eligible for senior status ten years ago, he
remains fully active.
By appointment of the Chief Justice, Judge Gesell has served on several
committees of the National Judicial Conference. He often sits on the United
States hurt of Appeals for the District of Columbia Circuit and on several
occasions has been specially designated by the Chief Justice of the United
States to hear cases outside the District of Columbia. He has been a director
of the Federal’Judicial Center and by invitation has produced a series of
demonstration materials which the Federal Judicial Center uses in training
new judges. He has chaired and served on innumerable judicial committees
within the District Court, most notably chairing a committee he himself
inspired to modernize and rewrite the rules of the District Court Many of the
rules adopted during this process, which began in June of 1972, have been
followed by other Districts around the country and have influenced the
Federal Rules of Civil Procedure. Judge Gesell also served for six years as
the judicial member of the District of Columbia Commission on Judicial
Disabilities and Tenure, which has oversight authority for the District of
Columbia courts. He continues to serve as liaison judge to the District
Court’s grievance committee, and was a member of the Circuit Judicial
Council and the Executive Committee of the District Court
Judge Gesell’s approach to his judicial tasks first came to national prominence
soon after joining the Court in a series of cases involving press access
to news sources and the First Amendment right to publish. Most notable is
the Penfagon Papers case, which involved the government’s effort to prevent
publication of government documents obtained by two national newspapers.
Parallel proceedings moved to the Supreme Court from the Southern District
of New York directed at the New York Times and from the District of
Columbia directed at the Washingfon Post. Throughout a series of proceed-
.ngs, twenty-nine federal judges considered the right of the cou-ts to censor
publication. Judge Gesell was the only judge who never issued an order
termporarily staying or prohibiting publication. His view of the merits was
eventually sustained by the Supreme Court.
Later, the designations of Judge Gesell to try a series of Watergate
criminal cases and subsequently the initial phases of the Iran-Contra matter
W(xI1
_-
HONORABLE CERHARD A. GESELL
and the Oliver North trial were further recognition of his always current
docket and his ability to monitor complex litigation in a practical and yet
scholarly manner. His coumm is always a model for controlled prompt
disposition of well-defined issues which have been sorted out in advance
through his informed personal management of pretrial proceedings. He has
always heard and decided motions promptly. His trial dates are also pmmpt
and are rarely continued.
These well-publicized matters are but a small part of the extraordinary
range of challenging and often novel legal issues that have been presented in
regular course to Judge Gesell by reason of his membership in the United
States District Court for the District of Columbia which has had a unique and
demanding caseload during the last two decades. His judicial career has
covered a time of controversy and tumult which has focused its litigation on
the nation’s capital. Judge Gesell has decided cases of national and often
constitutional significance involving abortion rights, swine flu immunization,
random drug testing, AIDS, genetic engineering, medical responsibility with
respect to newborns, voting rights and redistricting, homosexuality, student
riots and draft problems during the Vietnam war, whistle-blowers, race and
sex discriminatih, civil rights controversies of all types, proceedings relating
to impeachment of two feded judges, national strikes and numerous labor
controversies, bid-rigging of government contracts, major separation of powers
controversies, prison conditions and much more. These exacting responsibilities
accompanied the usual heavy load of regular civil and criminal business
that falls to all federal judges in major metropolitan &. Oventll. it
has been an exacting test of judicial competence, case management and
impartiality. Judge Gesell’s track record through it all justifm this Award.
He exemplifies the dedication and excellence which characterizes the effort of
many federal trial judges across the land and has served as a role model to
many.
Judge Gesell married Marion Holliday (Peggy) Pike on September 19, 1936
and has two children, Peter Gerhard and Patricia pike, and three gnndchildren,
Sabena, Alexander and Justine. While always maintaining an active
schedule on the bench, he spends weekends at his farm in Loudoun County,
Virginia, where he manages the farm and is an amateur beekeeper. In the
summer he sails and raises vegetables in Maine.
Rernarb
of
Chief .,‘uiige Aubrey -E. Robinson, Jr.
Ladies and gentlemin, I assume that everyone in the room knows why he
or she is here, so I won’t have to explain that to you.
We are very pleased that members of the selection panel are present with
one exception, and I will explain that in a second. We are delighted that
Judge Wilfred Feinberg of the Second Circuit joined by his lovely wife,
DEYJTT AWARD PRESENTATION
Shirley, are with us; delighted that Judge Devitt is here; and we anticipate
the presence of Justice Sandra Day O’Connor. She had a tight schedule that
would have permitted her to be here at this moment. but the schedule was
thrown off by fo?es beyond her control. So, we do anticipate .that she will be
present. And, of course, we knew that there could be no ceremony without
the presence of members of Judge Gesell’s family, Peggy especially, his son
Peter, who came from Cambridge, and his daughter Patsy, who came from
New York City.
There is a notation here that I am supposed to recognize distinguished
gta?•st.s. If I did that, then I would have to call everybody’s name in the
au,:ience, including members of our court personnel. I will not do that. I will
just acknowledge that all of you have the sense and sensibilities ta appreciate
Gerhard Gesell, are distinguished for that alone, not for you other personal
accomplishments.
We are pleased as always to have judges of the Circuit Court join us.
judges of the ?Jperior Court, judges of the D.C. Court of App€als, and we
appreciate your support.
Again, and it was a pleasant surprise for me, because I was not advised
that he would be here, we have the president of West Publishing O,mpany,
Dwight Opperman.
When I received the word that Judge Gesell was going to be the recipient
of the Eighth Annual Devitt A ward, I went down t.o his chambers to extend
personal congratulations. and in the course of our conversation I mentioned
the word ceremony in conn?tion with a celebration. I should have known
better. In no uncertain term., he told me he would have none of that.
Grudginrly, he did approve we could maybe have something short. quiet and
simple. But Judge Gesell underestimated my enthusiasm for a form of
proper recognition. So, using the great authority of my position as Chief
Judge, 1 convened a special review panel to consider the matter and in an
unpublished per curiam opinion filed under seal, the panel ruled essentially
as follows:
One. that there would in fact be a program; two, that it would be in the
courthouse and not in Loudoun, Virginia, at the farm; three, it would be in the
Ceremonial Courtroom and not in Courtroom 6 on the second t1oor. But it
further ruled that the judges would not robe or take the bench, there would be
no Marine Color Guard, and that things would be informal and we hope
enjoyable for everyone.
Among the few appeHate decisions accepted by him, Judge Gesell accepted
this one with equanimity. I was pleased at this result because it affords me
the opportunity to express on behalf of his colleagues and the entire court
family our pride that he is the recipient of the Eighth Edward J. Devitt ·
Distingushed Service to Justice Award.
In exe<:utive sessions of the court Judge Gesell has always unhesitatingly
expressed his opinion with respect to our common concerns in managing the
LXXXIV
HONORABLE GERHARD A. GESELL
affairs of the court. His wisdom and experience have greatly assisted the
court’s efforts to remain a flagship court in the federal system. He has pven
unstintingly of his time in working with advisory committees of the court and
other important committees of the court, the Grievance Committee, the Rule
711 Comm:ttee, and now he is working with the Civil Pro Se Panel Committee.
He presides at the luncheon table in the judge‘s dining room in an inimitable
style, commenting on a variety of subjects that ranges from A-to 2. that is,
from animals and appeals to zoology. As Judge Devitt can attest, because
over the years he has broken bread with us very frequently, Judge Gesell’s
comments are often provocative and certainly a respite from the mundane
business of judges.
Your presence today expresses your appreciation of his passion for the law
and the highest standards of practice in the law and for his years of sustained
performance as one of our finest trial judges. Those who work with him and
those who work for him join with all who know him in extending warm and
hearty congratulations.
We are pleased, as I said before, that Judge Edward J. Devitt, for whom
the West Publishing House Award is named, is here to do the honors. Judge
Devitt is in his-tliirty-sixth year as a District Court Judge and for twentythree
of those years he was the Chief Judge of the United States District
Court for the District of Minnesota. He is one of the “Deans” of the federal
trial bench and has been our revered and good friend throughout his tenure.
Judge Edward J. Devitt.
Remarks
of
Judge Edward J. Devitt
Chief Justice Robinson and my fellow judges, friends, we are here this
afternoon to honor Judge Gerhard A. Gesell for his distinguished contributions
to advancing the cause of justice. He has earned the recognition
principally through his highly competent judicial management of cases and the
exercise of outstanding courtroom skills in the conduct of trials. He is a trial
judge of the highest order who well serves as an example to his peen and a
model to the public.
Now, I should recall for you that the purpose of tha~wa rd is to give voice
to the often unappreciated work of federal judges. A. members of a mequa1
branch of the government, they have contributed so much for so long to the
remarkable history of the successful workings of our unique representative
republic. We hear so much about the activities of the Execui *e and the
Congressional Branches, but does the public and even the bench and bar as
far as that goes, know and fully value the contributions of the Third Branch?
Well, our friend, Dwight Opperman, who is here with us today. the long
time president of the West Publishing Company, thought not, and he saw a
need to inform the public about the meritorious work of the federal judiciary,
DEVI’IT AWARD PRESENTATION
and so he established this annual award to bring needed recognition to the
work of federal judges at all levels. For more than 200 years federal judges
have acted as a balance wheel in our system of government and they have
insured in that way effective and fair government under the Constitution.
The life and the work of this year’s awardee, Gerhard Gesell, u emblematic of
the commitment of all federal judges. Through this recognition of him we
honor the whole judicial family.
The brochures that you have in yocr hands tell you all about the rernarkable
life and the times of our honored guest. I am prompted to comment after
reading all about him, that some observers of our honoree in action have
commented that Judge Gesell is gruff. Gruff is what they say. Well, what
about that? Aren’t all federal judges gruff? Doesn’t it go with the territory?
Some lawyers think that all Article 111 judges are born that way, or at least
they become that way after confirmation by the United States Senate.
Well, about the gruffness business, I know this: Gerhard Gesell is an
even-handed, no-nonsense judge who runs a tight ship. There is no fooling
around. He g& right to the point. He prepares diligently. He listens
attentively, considers carefully. He rules promptly-oh, my, that’s important-
and he acts fairly. Those who know him closely see a benign person
with warm heart, full of concern for his fellow man and dedicated to the
commonwealth. And in this instance the inner man is reflected by the outer
one, for Judge Gesell has been described by a seasoned news reporter as
having “a cherub’s face, a Santa’s wispy white hair, and a grandpa’s crinkly
eyes.” Gruff-no. Admirable! You put it all together and you get a fiit
class, highly competent United States trial judge, fittingly representative of
the best in the nation.
Former United States Supreme Court Justice Robert Jackson was a great
admirer of the trial judges. “I am convinced,” he said, “that the position in
our profession which requires the most versatility of mind and firmness of
character is the worthily occupied trial bench.
“Further,” he said, “I do not belittle the very necessary and important role
of the appellate court, but I think it has been exalted at the expense of the
trial judge.” With apologies to you, Judge Feinberg, and the other appellate
judges present.
Well, Justice Jackson must have been visualizing the likes of our Judge
Gesell who has done so much for so long, by conduct and bx Pxample, to make
justice work better in the United States courts. Today Gerhard Gesell joins a
long line of distinguished jurists who similarly have been hcnored in the past
for outstanding contributions to justice-Albert B. Maris of Pennsylvania,
Walter Hoffman of Virginia, Warren Burger of Minnesota, Frank Johnson of
Alabama, William Campbell of Illinois, Edward Tamm of Washington, D.C.,
Edward Gignoux of Maine, Elmo Hunter of Missouri, and jointly last year
Elbert Tuttle of Georpa and John Minor Wisdom of Louisiana, and now you
Gerhard Gesell of Washington, D.C.
_-
HOSORABLE GERHARD A. CESELL
so, on behalf of this Year’s panelists, Justice Sandra Day O’Connor, Judge
Wilfred Feinberg and mvself. it is an honor to present thls scroll, this
beautiful obelisk. and masbe most important of all, an honoranum in the form
of a check for $15,000. Congratulations.
Remarks
of
Gerhard A. Geeell
I didn’t want a ceremonv, but now that we’ve got it underway, I’m pleased
it is taking place. I am very thankful for the honor that the committee has
put on me. I told Ed Devitt before he came in that I was going to accept the
award so he wouldn’t have any doubt. But there is an aspect of this award
that I want to talk about that goes beyond the judge that gets i t You realize
I’m getting to be the oldest living active specimen around here and you can
understand why perhaps it fell on me.
I have made my whole life in the law in the District of Columbia. I came
here right out of law school. I have had a chance to practice law to my
heart’s desire. I have filled positions in the Executive Branch. I have filled
positions on Ca,pitol Hill. I have filled a position with the District of Columbia
government, and 1 want to tell YOU that the most challenging and the most
inspiring work I have had to do has been as a federal trial judge.
Now, there are people who think that you get on the bench and you are a
federal judge and YOU issue decrees, hand down harsh orders, stamp a piece of
paper, and that’s what the job is all about. The reason I’m glad to have a
chance to talk with YOU now (and this audience includes many of the people
I’m going to be talking about in a moment) is to make it clear that a federal
trial judge is no better or no worse than the supporting services he gets, from
the aid he gets from his colleagues, from the help and ideas that you pick up
from the moment you enter this courthouse and a man gives you a cheery
wave, until you say god night to the charlady who is cleaning up for the next
day.
There are a bunch of people who have helped me in every way possible.
We exchange ideas. Sometimes they learn something from me. I often learn
a lot from them. The work of any single judge is a composite of what the
judges can learn from other judges and the help a judge gets from the
experienced supporting people all around the courthouse.
+$e United States District Court for the District of Columbia is the
oubtanding United states District Court in the land. If you look at what
happened here in the last twenty, twenty-five years, we have been constantly
in .he eye of the storm. ,411 of the political ferment has centered here.
Pecple come from all over the country X) file their cases here. What we do is
read every morning by the President, by cabinet officers, by Congressmen,
and we are under the zealous eye of the national press. The performance that
this great court has put forward is not the work of any single judge. It is the
LXXXVll
DEVIR AWARD PRESENTATlON
work of a system that is working. It is the work of my colleagues and other
people here who have contributed to it in various ways. I want to just
mention a few examples, because without that kind of help I am talking about.
this wouldn’t be the great insititution it is.
You look around these walls of this ceremonial courtroom. There’s
nobody here who can remember the names of all the judges whose
portraits hang there. Judges come and go. I will have mine up there
some day. But the thing that counts is the record of the court as an
institution. There are people here from the Clerk’s Office who have made
substantial contribution to our work with new ideas and extra effort. We
have from the Probation Office people who take an extra effort, get
interested in somebody, prevent us from doing something that would be
wrong. We’ve got members of the bar, pretty feisty in court sometimes,
but when you call on them, they’re here. They work for the institution.
They contribute to its success.
The role of any trial judge is to work with what is available, to bring out
the best in everybody that’s doing the job and to profit by the glory that
comes from success-it is happening to me-but you also get all the blame,
and that’s the way it should be. The individuality of judges is a very small
aspect of a smooth, hard-working court.
Now, there are a few people I’ve got to mention. I’m not allowed to
mention Mrs. Gesell. She told me that if I did she wouldn’t come, and I know
she meant it. All I can say about her contribution is that she is where I found
the flowers in my life, and the music, the books, and a chance to forget what
goes on here from day to day. When I get home, the court is gone and we
live a life.
Now, around this mom you are going to see a bunch of fairly uglylooking
people, some of them. They are my law clerks. I am going to see
them tonight at dinner and I‘m going to reserve for dinner some of my true
feelings about them, but I do want to tell you that there is a whole law clerk
family you raise as a judge. I only have one law clerk each year. I believe
in doing my own work. But, you know, I look around and one law clerk
can’t be here because he’s on a delegation representing our country in
negotiations with Canada. I have members of this family in public service,
in environmental work, in private practice, teaching. We stay together. I
marry a lot of them-I mean, I perform the ceremony-and we are all
renewed every year by the law clerks coming together to tell what is
happening to them.
And then there is something very particular about a trial judge’s chambers
and the peo;le ww king immediately with him every day in court. That
is where the plrblic rnezts the federal court. Stop to think about it for a
minute. The public meets the appellate courts if they read the newspapers
or they listen to Dan Rather, who doesn’t necessarily understand the
opinion. But in the federal trial court you meet people with grievances
c(XxVIII
HONORABLE GERHARD A. GESELL
every day. They come for a solution of their problems and it is not just the
decision that you make that must be fair, it is something more than that.
The public must feel they have come to a place where they will be heard,
where they have been treated decently and fairly. and that is the role of a
trial judge and his immediate staff. It is something of prime importance
that is sometimes forgotten.
The people who have helped me work this out are here and I want to
mention them. My Deputy Clerk, Barbara Montgomery, – who handles
lawyers and witnesses gracefully; my Court Stenographer or Reporter,
who has the most incredible ear for things I sometimes don’t ever hear,
Santa Zizzo: my Bailiff, Roy Smith, whose inner decency and concern is
known all over this courthouse as one who always wants to help and be
part of the effort: and then last but far from least I come to a lady who
has been with me now for thirty-seven years. I call her Doris Brown.
There are some people who call her Judge Brown. She is not a lawyer.
But her Irish wit and her knowledge of procedures, both the written and
the unwritten procedures of this courthouse, have enabled her to cajole or
entice or direct the business of my chambers into sound channels and
prompt solutions. She breaks in all the law clerks. She knows ahead of
time what I’mtgbing to think when I arrive and I do a lot that she tells me
I’ve got to do.
So, I’m very particularly grateful to all these people who have worked with
me this way. I’m grateful to my friends, the judges from across the street,
who came over for thii ceremony. I’m extraordinarily indebted to my
colleagues, and I want to thank again the committee for the honor they have
bestowed on me, with a special bow to Mr. Opperman who had the foresight
and sensitivity to get the Devitt Award program going.
I believe I am to tell you that there is some iced tea and cookies over in the
dining room across the hall. I look forward to seeing some of you there.
Thank you.
Concluding Remarks
of
Chief Judge Robinson
Please join us in the judge’s dining room. You know where that is. The
judge’s dining mom is on this floor. There we are going to have a reception
where each one of you will have the opportunity to greet Judge Cesell
individually.
Thank you all for coming.
(Proceedings adjourned at 4 pm.)
co(xu1
DEVITT AWARD PRESENTATION
The Selection Panel
Judge Edward J. Devitt
This year’s presentation to Judge Cesell is the eighth annual award of the
Edward J. Devitt Distinguished Service to Justice Award. It is named for
Judge Devitt, longtime Chief United States District Judge for Minnesota.
The award was created to bring Iublic attention to the dedication and
contributions to justice made by all fed-ral judges by recognizing annually the
achievements of one of the Article 111 judges who has contributed signficantly
to that end.
Judge Devitt is a member of the American Bar Association, Minnesota Bar
Association, Ramsey County Bar Association, Federal Bar Association, American
Judicature Society and the Fellows of the American Bar Foundation. His
activites have included
Chairman, ABA Legal Advisory Committee on Fair Trial-Press (1967-71);
Chairman, ad hoc Committee on Court Facilities and Design of the United
States Judicial Conference (1971-73); Cochairman, Bicentennial Committee
of the Judicial Conference (1975-76); Chairman, Judicial Conference
Committee to Consider Standards for Admission to Practice in the Federal
Courts (1976-79); Member, Judicial Conference Committee on Court Administration
(196C-68); and Member, United States Judicial Conference
Standing Committee on Judicial Conduct (1982). He was a member of the
Judicial Conference Committee which recommended the legislation creating
the Federal Judicial Center (1968-70).
Judge Devitt was the originator of the six-person jury in the federal
courts, now used in 86 of the 95 US. District Courts, and, in addition to
authoring many published articles, is ceauthor of Federal Jury Practice &
Instmetions (3 volumes), Devitt and Blackmar, West Publishing Company, St.
Paul, Minnesota.
Judge Devitt served as chairman of the selection panel which included
Justice Sandra Day O’Connor and Judge Wilfred Feinberg.
Jurtice Sandra Day O’Connor
Justice O’Connor was appointed Associate Justice of the Supreme Court of
the United States on September 22, 1981 and took the oath of office on
September 25, 1981.
Justice O’Connor graduated magna cum laude from Stanford I niversity,
receiving a B.A. degree in 1950 and an LL.B. degree in 1952. Sne w :s elected
to the Order of the Coif, and was on the Board of Editors for the Stanford
Law Review.
Before entering the judiciary, Justice O’Connor was Deputy County Attorney
for San Mako County in California; Civilian Attorney for Quartermaster
xc
HONORABLE GERH.4RD A. GESELL
Market Center, Frankfurt, Germany; in private practice in Maryvale, Arizona;
Arizona Assistant Attorney General; and State Senator in the Arizona State
Senate.
While in the Arizona State Senate, Justice O’Connor was elected Hajority
Leader, and served as Chairman of the State, County and Municipal Affairs
Committee.
In 1975 she was elected Judge, Maricopa County Superior Court. In 1979
she was appointed Judge, Arizona Court of Appeals.
Born March 26, 1930 in El Paso, Texas, Justice O’Connor and husband,
John J. O’Connor, 111, have three sons: Scott, Brian and Jay.
Judge Wilfred Feinberg
United States Circuit Judge Wilfred Feinberg was appointed by President
Johnson as a United States Circuit Judge for the Second Circuit on March 7,
1966. He took office on March 15,1966. Judge Feinberg became Chief Judge
on June 24, 1980 and served in that capacity until January 1, 1989. He
continues to be an active judge with a full caseload.
Judge Feinberg received his A.B. degree from Columbia College in 1940
(Phi Beta Kappa) and his LL.B. degree from Columbia Law School in 1946
where he was editor-in-chief of the law review. He has been awarded
honorary degrees by Columbia University and Syracuse University, and was
the 1990 recipent of the New York State Bar Association’s Gold Medal for
Distinguished Service in the Law. He served in the United States Army
Signal Corps in Africa and Italy during World War 11.
Judge Feinberg was admitted to the bar in 1947, and remained in private
practice until 1961. In October 1961, he was appointed by President Kennedy
as a United States District Judge for the Southern District of New York, a
post he held until his appointment to the Second Ciuit in 1966.
Judge Feinberg has been a member of various committees of the Judicial
Conference of the United States and a member of the Conference itself (1980-
88), and chairman of its Executive Committee (1987-88).
Born June 22, 1920 in New York City, Judge Feinberg is married to the
former Shirley Marcus and has three children: Susan Ann, Jack Leonard and
Jessica Sara.
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