Alan Rosenthal Complete Oral History Package (1,375 KB)

ALAN S. ROSENTHAL, ESQUIRE 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 ALAN S. ROSENTHAL, ESQUIRE Interviews conducted by: Judith S. Feigin, Esquire In 2011: March 3, March 21, April 20, May 9, May 23, June 6, June 20 July 18 and July 25 TABLE OF CONTENTS Preface .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Oral History Agreements Alan S. Rosenthal, Esquire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Judith S. Feigin, Esquire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v Oral History Transcript of Interviews: Interview No. 1, March 3, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Interview No. 2, March 21, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Interview No. 3, April 20, 2011.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Interview No. 4, May 9, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Interview No. 5, May 23, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Interview No. 6, June 6, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Interview No. 7, June 20, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Interview No. 8, July 18, 2011.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Interview No. 9, July 25, 2011.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Epitaph by Mr. Rosenthal, May 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1 Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1 Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 Biographical Sketches Alan S. Rosenthal, Esquire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1 Judith S. Feigin, Esquire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-3 NOTE The following pages record interviews conducted on the dates indicated. The interviews were recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded an opportunity to review and edit the transcript. The contents hereof and all literary rights pertaining hereto are governed by, and are subject to, the Oral History Agreements included herewith. © 2012 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 of the Courts of the District of Columbia Circuit and lawyers, court staff, and others who played important roles in the history of the Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer attorneys who are trained by the Society. Indexed transcripts of the oral histories and related documents are available in the Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of the Historical Society of the District of Columbia. Both the interviewers and the interviewees have had an opportunity to review and edit the transcripts. With the permission of the person being interviewed, oral histories are also available on the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most interviews, as well as electronic versions of the transcripts, are in the custody of the Society. i ORAL HISTORY OF ALAN ROSENTHAL First Interview – March 3, 2011 This interview was conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is Alan Rosenthal and the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in Rockville, Maryland, on Thursday, March 3, 2011. This is the first interview. MS. FEIGIN: Good morning. MR. ROSENTHAL: Good morning. MS. FEIGIN: Let’s start at the beginning, with the beginning being as far back as you know it. How far back do you know your family history? MR. ROSENTHAL: On my father’s side, I know it back to my great-grandfather, Herman Rosenthal, who came to the United States in the early 1880s. For a while, he was working on some kind of commune in the Midwest which was rather peculiar, I think, given that he was basically a scholar. But he ended up working for the New York Public Library as the director of its division on Slavic and Baltic collections, and indeed we’ve now established a memorial fund at the library to which I contribute each year. I don’t know much else about his life. MS. FEIGIN: Where did he emigrate from? MR. ROSENTHAL: He emigrated from Russia, although his roots were in Germany. How he got to Russia, I’m not clear, but that’s where his son, my grandfather, was born, and he emigrated to this country along with his father Herman. My grandfather’s name was Max. He was a gynecologist/obstetrician and one 2 of the founders of a hospital in New York City, the Sydenham hospital, which was up in Harlem. It’s now no longer in existence. It was taken over eventually by the city, and then Mayor Koch, I think, closed it down. I think there may be a clinic on the site, but the hospital is gone. In any event, my grandfather, as I say, was very active in the founding of that hospital. It’s where I had, at the age of three, a tonsillectomy and subsequently in 1936, when I was 10, I had my appendix removed there. All I can now recall is there was a bust of my grandfather in the hospital lobby. Max had three sons – my father, Morris, and his two brothers, Harold and Alan, after whom I was named. It’s interesting that my father had very definitely wanted to go away to college, and his father, my grandfather, saw absolutely no reason. “We have Columbia here. It’s a perfectly good university, there’s no reason at all why you should go elsewhere,” so he was required to go to Columbia and did go to Columbia. His two younger brothers, as he, did not want to go to school in New York City, and my father was able to persuade my grandfather to let them go elsewhere, so one went to Harvard and the other to Dartmouth. That’s basically what I can recall on my father’s side, given that I remember little of my paternal grandmother. On my biological mother’s side, I recall very little. My birth mother’s name was Elizabeth. She came from St. Louis. Her father, my 3 grandfather, was a lawyer in Clayton, which is a suburb of St. Louis. He was a very active Republican politician and in the state Senate for a number of years. Apparently in that era, there was a corrupt Republican machine in St. Louis and a corrupt Democratic machine, the Pendergast machine, in Kansas City, and I was told at one point that my grandfather barely escaped going to jail, which apparently did happen to one of his political mentors in the St. Louis area. In any case, I know nothing at all about any of my maternal relatives past my grandfather. My mother, who met my father in the early 1920s − I’m not clear today on the particular circumstances − took ill several years after my birth in 1926 with multiple sclerosis, and she had her ups and downs over a period of years and then died in the summer of 1935, which was just short of my 9th birthday. I don’t recall at all having any contact with my maternal grandfather or any of my other relatives on my mother’s side. I understand that my maternal grandfather, Richard Ralph, came East at one time during the 1930s to visit us, but I have zero recollection of that. As a matter of fact, the only other relatives on that side of the family that I ever met were my grandfather and my maternal grandmother who were divorced. My grandfather then remarried and had a child by his second marriage, my half uncle, who was just a year older than I am, and years later in Washington, he and I got together a couple of times. I was working at Justice. He was a lawyer and was in the Army JAG stationed 4 in Washington so we had him over to dinner once and I had lunch with him. But my contact, as I say, with my birth mother’s family was negligible. It’s a source of some regret to me that I know so little about my birth mother’s family and had so little contact with them at any point during my life. My father, less than a year after my mother’s death, remarried, and he married a woman with whom he had gone to school way back when and they were good friends. My stepmother had been married previously and had divorced her husband several years before she married my father. So in terms of my ancestors, that’s about all that I can recall. Again, it’s really a source of some regret to me that I had so little contact with my birth mother’s family. MS. FEIGIN: Tell us some more about your dad. What did he do after going to Columbia? MR. ROSENTHAL: My father was born in 1897, and as I say, he went to Columbia College. He also was, during World War I, in naval aviation, an aviation cadet, but the war ended before he got his commission, so he never was active in the war at all. Then he, as I said, went to Columbia, got his degree in the business school and shortly thereafter went to work for a company for which he worked his entire career, Stein, Hall & Company, based in New York City, though it had a factory in Chicago, I think. It was in the business of importing various products principally from what was then the 5 Dutch East Indies, now Indonesia, tapioca and tea, and they also manufactured in this country various materials including apparently envelope glue. In December 1941, immediately after our entry into the war because of Pearl Harbor, he accepted a government position as an Assistant Director of the Board of Economic Warfare, Assistant Director in charge of the Office of Imports, and so he came to Washington. He was with that office until early 1945 when he returned to New York, before the war actually ended, and resumed his position at Stein Hall. When he left the company in 1941, he was a vice president. He returned as vice president but very shortly thereafter became president at Stein Hall, a position he occupied until he retired in the mid 1950s, and he died in 1958. MS. FEIGIN: Tell me a little bit about what he did during the war. MR. ROSENTHAL: He had complete control, or his office did, over materials imported into the United States during the war years, and he made several trips abroad during the war, one of them that I recall to somewhere in Africa, but a lot of what he did was not discussed around the dinner table. This was wartime, so the old adage at that time was “loose lips sink ships” − you may have heard that − [laughter] so we really didn’t talk. One thing about it that was interesting was the vice president of the United States up until 1945 was Henry Wallace. Wallace was dumped by Roosevelt for Harry Truman in his last term. Well Henry Wallace was overall superintendent of the Board of Economic Warfare, that was one of the 6 assignments that Roosevelt gave him, and so Wallace and my father became very well acquainted, and I can recall Wallace coming to our house for dinner on a couple of occasions, I think in the 1943-44 range. Needless to say, we kids didn’t partake of the dinner, but I did have occasion to meet and shake his hand, and that was about it. We were then, of course, dismissed. So that’s why I was down here during the war years and went to high school down here. There’s a funny story about that. I have to back up at some point to my early years, but when we moved down here immediately after Pearl Harbor, it was a matter of where we would go to school. We lived on West Kirke Street in Chevy Chase, just above the Chevy Chase Circle in Maryland, and my parents learned quite early in the game that the Montgomery County public schools were terrible at that time. They additionally discovered that, on a space-available basis, sons and daughters of federal government employees could go to the District of Columbia public high schools, paying a relatively nominal tuition. They were able to get me into the Woodrow Wilson High School which I attended and graduated from in February 1944. MS. FEIGIN: Midyear? MR. ROSENTHAL: I accelerated. I went over the summer because I was going into military service because the war was still on and I wanted to get in some college before going into the military. So in any event, I went to Woodrow 7 Wilson. My sister was not quite that fortunate. The junior high school associated with Wilson was Alice Deal, still is. Unfortunately they were not taking at that point any non-District residents because of space considerations, so she attended Leland Junior High School, the junior high school that served the Chevy Chase area in which we lived and it was an absolutely terrible school. When my family went back to New York, they were so despairing of the quality of education she had received at Leland that they sent her to a very rigorous boarding school to catch up. The thing about Wilson that was interesting was, I’m now moving many many years to the point where my youngest son was headed to the Bethesda-Chevy Chase High School (BCC) which is the school that I would have gone to if I had been sent to a Montgomery County public high school. Well, in the spring of the year before my son James was entering BCC, there was an orientation session for the parents of incoming 9th graders, and we attended it, of course, and the then principal, a woman named Ann Meyers, said to us, “You parents of incoming BCC students are so fortunate, why this school combines the best features of, without exaggeration, Oxford and Cambridge.” She laid it on, not with a trowel but a steamshovel, the virtues of the school [Laughter]. I couldn’t resist it. When we got to the social hour, I introduced myself and I said, “Ms. Meyers, you may be interested to know that when I was of high 8 school age, I lived in the BCC district and my parents paid tuition to send me to a District of Columbia public high school so I wouldn’t have to come here.” Well she glared and said, “Well that must have been some years ago.” [Laughter] “Well Ms. Meyers, I can’t really claim to be a recent BCC graduate.” We’re talking about, I guess this was 1985, 1986, 1987, somewhere in that period. She said, “I will have you know that this year we have a number of District of Columbia residents attending this school and their parents are paying substantial tuition to have them come here.” I said, “Well I guess times do change.” But the fact was that the Montgomery County schools in the early 1940s were of very poor quality, and this was mainly because the county was controlled by a rural element and education was not a particular priority. Now after the war, things changed because a lot of the people who came down here to work for the government during the war years stayed here and these were welleducated people who placed a high priority on the quality of education for their kids. MS. FEIGIN: You mentioned coming down right after Pearl Harbor. Before we get to your early childhood, do you remember Pearl Harbor today? MR. ROSENTHAL: I remember Pearl Harbor today because I was living at home, the radio on, it was a Sunday, and I was listening to the Redskins game. I think they were playing the New York Giants though I am not certain of that, and there was an interruption during the broadcast to the effect that there had 9 been some kind of an attack on Pearl Harbor. So that’s what I remember of it and what I was doing when the news first hit. MS. FEIGIN: Where were you born? MR. ROSENTHAL: I was born in the Lenox Hill Hospital in the middle of Manhattan on September 30, 1926. MS. FEIGIN: Where were your early years spent? MR. ROSENTHAL: Well, my early years, of which I have no personal recollection, but what I’m told is, that we lived, for reasons I’m not clear, it may have been because of my mother’s health problems at that point, we lived on West 89th Street in the Manhattan home owned and occupied by my grandfather, the physician, and after a point, I’m told, when I was about two, we moved to New Rochelle. I have no recollection of my time in New Rochelle. We then moved to Larchmont, 40 Lincoln Street, in Larchmont. I was probably about 5 then. MS. FEIGIN: In Westchester, New York? MR. ROSENTHAL: Westchester, New York. And I went to the Chatsworth Avenue Elementary School in Larchmont in the first and second grades. All I remember of that time was that one of the subjects was French. They taught French in the first and second grade there. Not that long ago, in connection with our move, I found my French book. So that would have been, I think, through 1933. In any case, we moved from Larchmont eventually to New York City. But in the interim, because of my mother’s 10 increasingly ill health, in the summer – now this is something people will not believe – in the summer of 1933, I am at that point 7, I guess, or about to turn 7 – my sister is almost three years younger than I am, and we are sent off for eight weeks to a resident camp. My sister had her fourth birthday at the camp. People, when I tell the story to them, don’t believe it. How could our parents have sent somebody not yet 4, somebody not yet 7, off to a residential camp for eight weeks? But this was something that my father obviously saw as a necessity given the conditions at home. The following year we didn’t go to the camp because we had whooping cough; we both had whooping cough in that summer of 1934. Now, 1934- 1935, my sister and I were dispatched to a boarding school, and this again was because of our mother’s ill health. We went to the Cherry Lawn School in Darien, Connecticut. I have actually very little recollection of that stage. I think that I blocked out a good deal of the period of time when my mother was very ill, and where there were therefore these kinds of accommodations made, camp and boarding school. I have actually very few recollections of my mother at all. In the summer of 1935 she died. In 1935-1936, my sister and I and our father lived in an apartment house on Bank Street in Greenwich Village, on the corner of Bank Street and Greenwich Avenue. Then in the spring of 1936, my father remarried and we moved to a brownstone. She brought to the marriage a son by her prior marriage who was born in 1932, so he was at that point 4 years old. 11 Eventually, my father adopted him, so he took the name Rosenthal ultimately. MS. FEIGIN: So there were three children? MR. ROSENTHAL: At that point there were three. Then my father and my stepmother had a child of their own in 1939, so I, with my sister, had a half brother David and a stepbrother Jon. When we moved back to New York, a year after we were at the Cherry Lawn School in Darien, my sister and I, and then eventually my stepbrother, attended private elementary schools in New York. We first went to the City and Country School, on 12th Street in Manhattan. My father, and my stepmother along with him, had a fight with the principal, so we were moved to the Little Red School House, which now is combined with Elizabeth Irwin High School, but in my time there was no high school, so we went there through the 8th grade, and I graduated from there in the spring of 1940. MS. FEIGIN: That was a very progressive school. MR. ROSENTHAL: It was indeed, and still is. MS. FEIGIN: Do you remember anything about that? MR. ROSENTHAL: It was progressive only to a point. I had in the 7th grade a teacher named Marjorie Kneeland, who, I don’t remember the term precisely that we coined referring to her out of her hearing, but it was not particularly flattering, although she was a magnificent teacher and she was extremely strict, particularly where it came to English grammar. I have a number of 12 shibboleths that I have employed in reviewing the work of folks, both in my Justice days when I was a supervising attorney in the Civil Appellate Section and more recently with law clerks who worked for me at the Nuclear Regulatory Commission, but she taught me a number of things, including that you don’t split infinitives unnecessarily. There was nothing progressive about her, but she was an excellent teacher. A lot of the other teachers were considerably more laid back. I thought we received a decent education. When I graduated from that school, I took the examination for admission to either Stuyvesant or Bronx Science and was accepted at both. I went to Bronx Science. It was quite a trip because we were living in Greenwich Village, and Bronx Science was up in 180-something Street in the Bronx just off the Grand Concourse so I took the A train on the Eighth Avenue line. I guess it was a half-hour, 45 minutes getting up there. Science was an excellent school academically, but I can’t say I enjoyed it that much. It was run like a reform school. We were continually reminded that we were there as a matter of the sufferance of the administration and if we stepped out of line, they threatened us with William Howard Taft which was the closest high school in the Bronx. But for me, living as I did in lower Manhattan, it would not have been William Howard Taft, it would have been some other school, assuming I stayed in public school. They ran it, as I say, like a military school in terms of the 13 discipline. I was there a year and a half, until we came to Washington right after Pearl Harbor. I don’t regret the time there. MS. FEIGIN: Was the student body evenly distributed among male and female students? MR. ROSENTHAL: Oh good God no. In those days it was all male. It didn’t become co-ed until well after that time. There wasn’t a woman in sight. I think Stuyvesant also was entirely male at that point. I don’t know offhand precisely when it became co-ed; I know they both are co-ed now. Indeed I have two nieces of my wife who went to Stuyvesant. MS. FEIGIN: Did you have women teachers? MR. ROSENTHAL: Yes. As a matter of fact, I took German and that was because they didn’t offer Spanish, and the teacher was a woman, Frau Weiss. Frau Weiss must have been about 4’8”. When the word “Prussian” was invented, they had to have her in mind. As a matter of fact, at times when some of the students were not as attentive as she would have liked, she expressed some regret that corporal punishment was no longer allowed in the city schools of New York. [Laughter] I don’t recall whether the majority of the teachers were men or not. I had men teachers, and I had Frau Weiss, and I think I had at least one or two other women. MS. FEIGIN: Tell me a bit more about your family life. For example, was your family politically active? MR. ROSENTHAL: My father was very active. He didn’t run for political office but he took great interest in political affairs and was on a number of − which we’ll get 14 to later on in the saga − but he belonged to a number of organizations that were politically active, political action committees, that sort of thing. He was a very staunch Democrat and was very active in the campaign of Adlai Stevenson in 1952, when Stevenson ran against Eisenhower. Yes, I’d say he was politically active, which later on became a problem for me. MS. FEIGIN: Living in New York City, were you involved in a lot of the cultural things in New York − theatre, things like that? MR. ROSENTHAL: To some extent. I don’t think that was particularly a large part of our life. I might say that I was not involved directly in any kind of religious enterprise. My birth mother was Episcopalian and indeed one of the few things I can remember of my years in Larchmont was attending an Episcopalian Sunday school, and the only thing I remember about that is that we made sheep out of pipe cleaners. [Laughter] To remember just that of the entire experience! My parents were non-observant Jews, my father and stepmother. They actually had attended in their youth the Ethical Culture School. So to the extent that we were involved in anything, it was the Ethical Culture Society, and I indeed attended some of their youth functions over the years. During the years on Bank Street in the Village, my parents believed in having a few hours a week of the weekend free from the kids to the maximum extent possible, and it happened that within a block and a half of our residence there were two movie theaters. There was a Loews 15 Sheridan and a block away from it was the Greenwich Theater. Every Saturday afternoon we were dispatched to the movies. That’s my sister and myself, not the younger ones. I don’t know whether you recall those days, but what you had was a double feature, a newsreel, coming attractions, and a cartoon. This was 1:00 to 5:00, so were pushed out the door either to the Greenwich or the Sheridan. They did some modest sort of screening of what we were being sent to see, but they got rid of us that way. MS. FEIGIN: Are you a movie aficionado as a result of this? MR. ROSENTHAL: No. I don’t like modern-day movies. What we have is Netflix. The last movie that we saw, probably this week, went back to 1943 or something. Most of the movies today have little appeal to me. I think I live in a bygone era anyway because I listen quite religiously on Sunday nights to the Big Broadcast on WAMU FM. Ed Walker now lives in this building; he moved in a couple months ago. MS. FEIGIN: We should say for the record that he’s the moderator of that show. MR. ROSENTHAL: He’s the moderator of that show, it’s the old radio shows: Gunsmoke, Dragnet, Jack Benny, Fred Allen, Deluxe Radio Theatre, all of those great radio programs as Ed would put it “of the ‘30s, ‘40s, and ‘50s.” As a youth, I listened to the radio constantly. When I was doing my homework in the evening, I always had the radio on. Henry Aldridge, and even 16 before that, in my younger days, Jack Armstrong, and all those. I sent in for the rings, sent the boxtop and the ten cents in for this magic ring. MS. FEIGIN: Did you listen to the Fireside Chats? MR. ROSENTHAL: I don’t recall listening to the Fireside Chats at all. In my youth, I was not very politically active or even particularly interested. MS. FEIGIN: What kind of magazines and literature came into the house? MR. ROSENTHAL: One thing that I recall is The New Yorker, which we get to this day. I don’t recall what other magazines. Newspapers, we got both The Times and The Herald Tribune. Morning papers in New York were The Times, The Herald Tribune, The Daily News, and The Daily Mirror. The News and Mirror were tabloids. Afternoon papers included The Journal American, The Sun, PM, and the World Telegram. We got two morning papers and The World Telegram. I don’t recall what magazines. I’m drawing a blank on that, apart from The New Yorker. MS. FEIGIN: There were so many more newspapers then in New York. MR. ROSENTHAL: Oh yes, oh my Lord, in terms of general circulation, there were at least four morning papers and I think five afternoon ones and now it’s down to virtually nothing. MS. FEIGIN: Do you remember the kinds of games kids played? MR. ROSENTHAL: One of the games that we were not allowed to play − my father wouldn’t have it in the house − was Monopoly. MS. FEIGIN: Because? 17 MR. ROSENTHAL: Because he thought that it glorified absolutely the wrong values. Monopoly. What was the objective in Monopoly? To get all the sites of a particular color, put houses on them, and then milk your opponents dry paying rent. He did not regard that as the kind of ethic that he wanted to see instilled in his kids. [Laughter] We had Sorry, we had all of these Parker Brothers games, with the exception of Monopoly, which was not allowed. MS. FEIGIN: Did you sneak out and play it with your friends since you seem to know how it works? [Laughter] MR. ROSENTHAL: I undoubtedly did play at somebody else’s house. The proscription was simply that he wouldn’t have it in our house. I don’t think we had to conceal the fact that we might have played it at some friend’s house, but he didn’t want it under his roof. MS. FEIGIN: So you moved to D.C. and then came back to New York. Is there anything more you want to tell us about the early years? MR. ROSENTHAL: I went to Woodrow Wilson High School in D.C. in the middle of the 10th grade. I had taken the first half of biology at Bronx Science, and one of the things we covered in that first half was dissecting a frog, and I found that particularly distasteful, and also the formaldehyde in which it was pickled, I found the smell of that very unwelcome. Well I get down to Woodrow Wilson High School, I started the beginning of the second semester, and I’m taking the second half of biology. What do I find but at 18 Woodrow Wilson High School, dissection is in the second half of the year. [Laughter] I said to the teacher, in effect, “been there, done that.” She said, “Well then, you’re probably an expert at it. You’ll be able to do it even more efficiently than the rest of the students for whom this is the first time.” [Laughter] I was on the Woodrow Wilson debate team. I enjoyed my years at Wilson. The living conditions at that point with the war on were not great. With gas rationing, our parents drove us nowhere. They had, I think for my mother’s car, which was just used for pleasure − my father commuted to work by car so he got an additional gas ration − but for my mother’s car, it was three gallons a week or something like that. If we couldn’t go somewhere on the bus or a bicycle, we didn’t go. MS. FEIGIN: We should make clear there was no Metro then. MR. ROSENTHAL: No subway. We were just a block and a half up from Chevy Chase Circle, which was the end of the Connecticut Avenue bus line, so I could walk down there and catch a bus going downtown, and that was about it. If we wanted to go to the amusement park that was still existent at Glen Echo, it was by bicycle or not at all. MS. FEIGIN: Was D.C. very segregated at that point? MR. ROSENTHAL: Absolutely. It was totally segregated. In the District, the only restaurant that I think was desegregated was the one at Union Station. Everything else was at that time segregated. The buses were not segregated in the 19 District and in Maryland. The buses were segregated in Virginia, and when there was a bus − the Capitol Transit Company then operated the buses and street cars − when a bus crossed the river to Rosslyn and was going beyond that, any of the African-American passengers had to get to the back of the bus. There was total segregation. Schools were segregated, everything was segregated. MS. FEIGIN: Woodrow Wilson was entirely white? MR. ROSENTHAL: Absolutely. In the District of Columbia at that time, there were two school systems. There was Part I and Part II. The white schools were Part I, black schools were Part II. Separate but equal? Not at all. They were separate, but not equal. And one of the things about that was we got brand new textbooks, “we” meaning the white schools. When the textbooks got sufficiently used that they were no longer suitable for us Caucasians, what do you think happened to them? In the county here I think there was one black high school and that was up in Rockville. The black students all went there no matter where they lived in the county. Racial segregation all the way through. Certainly segregation in the housing. Segregation in all public accommodations. MS. FEIGIN: Did you, as a young white boy, have any contact with people of color at all? MR. ROSENTHAL: Not here, but in New York, because the Bronx High School of Science had black students. I had zero contact during my years in Washington 20 between Pearl Harbor until my family moved back to New York in the summer of 1944. I had zero contact here with any blacks. MS. FEIGIN: Was that something that seemed odd to you? MR. ROSENTHAL: Yes it was a little odd. Certainly, good lord, in the Little Red School House there were a number of black students. In New York, I had contact in schools. Also I socialized with black students. New York was not exactly free of all Jim Crow. I recall that blacks were not only segregated in New York residentially, but there were plenty of restaurants that did not welcome blacks. Washington, D.C. in the war years was a southern city and, in terms of the ability of blacks to go to restaurants, attend theater, etc., this could have been Atlanta, Georgia, just as easily. MS. FEIGIN: My understanding is the Mall during World War II had a lot of makeshift buildings. Can you tell us a little about that? MR. ROSENTHAL: They were temporary buildings. And indeed, in the winter of 1943-1944, I was finishing high school and I got a job as a file clerk over the Christmas vacation in the then War Department. This was a temporary building along Constitution Avenue up in the vicinity of 20th, 21st, 22nd streets. There were several of them stretched out along Constitution Avenue on the Mall. At some point after the war, they were all demolished and are obviously not visible today. MS. FEIGIN: I gather there was an influx of women in D.C. to work during the war? 21 MR. ROSENTHAL: Absolutely, because there were all kinds of opportunities, particularly in the government, because the younger males were all supposedly away in the military service. MS. FEIGIN: Did your stepmother work ever? MR. ROSENTHAL: Yes. She was a psychologist, and she worked for many years. Actually, she could claim being a psychologist, which she couldn’t today, because today, at least according to the American Psychological Association, you have to have a doctorate in order to use the term psychologist. She had a master’s degree, not a doctorate, but she was grandmothered. I guess that’s the term [laughter]. So she was a member of the American Psychological Association. She taught school for a number of years before she married my father. As a matter of fact, I think it was the City and Country School, a private school. In her later years, after she married my father, she had sort of a private practice. She did not work as a psychologist in any kind of school or other facility. She saw clients or patients, whatever you call them, privately. MS. FEIGIN: Was it unusual to have a mother who worked in that generation? MR. ROSENTHAL: It was a very part-time business. I think it was a lot less common overall than it obviously is today where there are a very substantial number of families in which both parents are working. Indeed today in many instances it’s a matter of economic necessity. Then, I think it was much less common. 22 MS. FEIGIN: Did you have what we would today call nannies? MR. ROSENTHAL: In the year between my mother’s death and my father’s remarriage, as previously noted, we lived in an apartment on Bank Street and we had a governess. That’s what she was called. Subsequently, all the way through, both in New York and down here in Washington, we had a cook. The one thing that my stepmother did not do was cook, except on weeknights when the cook was out. But we didn’t have anyone taking care of the kids, not a governess or anything of that order. MS. FEIGIN: When you left Washington, where did you move back to in New York? MR. ROSENTHAL: When the family moved back to New York, they moved to an apartment on Park Avenue and 93rd Street, in New York. This was in the summer of 1944. I had just completed one semester at the University of Pennsylvania. I graduated from high school in February of 1944 and I immediately started college. Then I went into the military service. MS. FEIGIN: Before we get to your military service, let me ask what made you choose Penn? MR. ROSENTHAL: What made me choose Penn was in large measure its location. My family was very soon I knew heading back to New York, and one thing about Philadelphia is it is more or less equidistance between New York and Washington. I knew I was going into military service, I knew my family was moving, and I thought it would be desirable to go to school somewhere in the New York/Washington region. So I went to Penn. 23 Actually I applied to very few schools. Even though it is not anywhere near New York or Washington, I did apply to the University of Wisconsin [laughter] though I can’t tell you if I was accepted there. I can’t tell you why I did that. I probably could have gotten into Penn at that point if I had a grade point average of zero because universities were looking for male students. Where were the male students? They were all in the service. So it was a hell of a lot easier to get into college at that point if you were a male than it is today. Out of necessity today, kids apply to 55 different schools and it’s a crapshoot getting into college, at least into the very selective colleges. At that stage, in the winter of 1943-1944, with the war in full blast, with kids coming out of high school and for the most part heading right into the military, male students that is, the college admissions standards were considerably reduced. MS. FEIGIN: What was the draft age? MR. ROSENTHAL: Eighteen. MS. FEIGIN: You weren’t quite 18? MR. ROSENTHAL: No, I went in earlier than 18 as it turned out. I entered three months short of my 18th birthday. I was avoiding the draft. This was because I had a strong aversion to ending up in the infantry, so for me, the choices were one of two, and both of them were something that you worked on before you turned 18. Either try to get into the Navy V12 program where they sent you off to college before you actually got into – in Pennsylvania, I 24 had a lot of Navy V12 students in my classes – or try to get into the Army Air Force. I decided to opt for the Army Air Force, so I took the examination to get into the aviation cadet program and was successful. I passed the physical, so when I entered Penn in February of 1944, I was already in the Army Air Force Reserve, even though I was just 17. I knew that what was going to happen was I was going to finish one semester of college and then I was going to be off into the wild blue yonder. MS. FEIGIN: There was no general deferment for college? MR. ROSENTHAL: Absolutely not. MS. FEIGIN: So you were following in your father’s footsteps kind of. He’d been in aviation. MR. ROSENTHAL: I had some reservations about the Navy, although in a way that would have been a better program. The one thing I wanted to avoid was the infantry. Actually, in the latter stage of the war, they were even drafting them into the Marines, which would have been even worse. I wanted to avoid the infantry. So at the end of the semester, I was off. But what did the Army Air Force do? They sent me to college for a while. As a matter of fact, I spent two semesters at the University of Buffalo. MS. FEIGIN: Studying Air Force stuff? MR. ROSENTHAL: Actually no. When I returned to the University of Pennsylvania, I presented them with the transcript from my two semesters at Buffalo, and I became immediately an upper-level sophomore. They gave me full 25 credit. The courses I took there were college-level courses – chemistry, physics, calculus, economics, geography. MS. FEIGIN: Did the Air Force run the classes at Buffalo? Did they have a base up there? How did you get to Buffalo? MR. ROSENTHAL: At the University of Buffalo, I was taught by their professors. It operated differently than the Navy college program. The Navy college program, the Navy students attended classes with the civilians. They were housed separately, and in the afternoon they had the Navy drills and whatever, but they went to class with civilians. So I had my semester at Penn, I had a number of Navy V12 students with me. Bear in mind that at that point, the Air Force was part of the Army. They didn’t become a separate branch of the service until much later. We were entirely segregated from the civilian population at Buffalo. We went to class by ourselves. But we were taught by University of Buffalo professors who also taught courses to the civilian population. They had this program at a number of schools. As a matter of fact, I was initially scheduled to go to Duquesne University in Pittsburgh where they had this program. They had them at a number of universities. But they decided to send me instead to Buffalo, and I must say that out of my experience in Buffalo, I made the only resolution I’ve kept over the years, which is not to go up there again in the middle of winter [laughter]. I was there from the beginning of July through January 1944-45. 26 MS. FEIGIN: Did you attend class in uniform? MR. ROSENTHAL: Absolutely. MS. FEIGIN: And then you had training? MR. ROSENTHAL: Oh yes. And one of the things I remember, the University of Buffalo’s main campus is now in Amherst, a Buffalo suburb, but its main campus then which still has some courses, I think, was in the city, Main Street, up on this hill and the wind blew across from the lake and I remember the physical ed class required us to run around this whole campus. The instructor rode in the back on a bicycle, exhorting us to keep running faster. It was not a particularly pleasant experience. MS. FEIGIN: So you spent two semesters there? And then where? MR. ROSENTHAL: They had a test that they gave to the aviation cadets that was designed to determine whether you were going to be shipped to pilot, bombardier or navigator school. It was weighted differently for the three different occupations because, for example, for navigators, coordination was not important, but for bombardiers, it was extraordinarily important. So I took that test, and I did very well for navigator. It was graded on a scale of 1 to 9 for each of the three different occupations. I scored very high on navigator and not that high on bombardier or pilot so I was going to be sent to navigator school. Well what happened was that before I got there, the Germans decided that knowing they’d have to deal with me, they should throw in the towel [laughter] so they quit, and at that point, they 27 decided they didn’t need any further aviation cadets. They could see the Japanese war was probably not going to last that much longer, so I was summarily dismissed from the aviation cadet program, and ultimately I went to cryptographic technician school and learned how to operate the code machines. MS. FEIGIN: Where was this? MR. ROSENTHAL: This was at Scott Field, Illinois. Then after the Japanese threw in the towel, I was sent to an overseas replacement depo in Sheppard Field, Texas, and I was down there with sort of a fungible group. We were all people that had been bounced out of the aviation cadet program because of the close of the war. We all had basically the same education level, and I think most of us probably had gone through the cryptographic technician program. In any case, there were about 30 of us headed for God-knowswhere overseas. We were given malaria, all these other shots. All of a sudden, a sergeant comes in and says, “Rosenthal, report to X”, so I reported to X and he said, “Well, you’re going to Maxwell Field, Alabama, to personnel school.” I said, “Well that’s pleasant news.” He said, “Yes, you’ll probably ship off in four or five days.” I was sort of curious as to how I was the only one out of this group selected for this and I made some inquiries. I found out – it’s amazing − a call had come in from I don’t know where to select one out of this group of thirty to go to this personnel school. They had a slot for one person. Up in the 28 headquarters at Sheppard, there was a clerk assigned apparently to the task of randomly selecting somebody [laughter], so he was looking through the personnel files of the thirty. “My god, here’s somebody who went to Woodrow Wilson High School in Washington, D.C. That’s where I went [laughter], so if I’m going to do a favor for somebody, I might as well do it for him.” That was how I got picked out of that group of thirty and sent to Maxwell. I never did go overseas. I was in the service for almost another year. I left a couple of days later. I left behind the 29 others from my group, and I have to assume they ended up somewhere, God knows doing what, maybe washing airplanes in the Arctic Circle [laughter], but that was how I happened to stay in the United States. MS. FEIGIN: This is probably a reasonable place to stop and we’ll pick up here next session. MR. ROSENTHAL: Very good. MS. FEIGIN: Thank you so much. 29 ORAL HISTORY OF ALAN ROSENTHAL Second Interview – March 21, 2011 This interview is being conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is Alan Rosenthal and the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in King Farm in Rockville, Maryland, on Monday, March 21, 2011. This is the second interview. MS. FEIGIN: Good morning. MR. ROSENTHAL: Good morning. MS. FEIGIN: When we left you at the last session, you had just found out that you were going to go to Maxwell Field in Alabama to do personnel work, I believe. MR. ROSENTHAL: To go to personnel school. After that, I was sent first to Love Field, Texas, and then I went to Langley Field, Virginia, which is where I spent the balance of my undistinguished military career [laughter]. There really was nothing during those eight or nine months at Langley that’s worthy of any kind of note. I was basically assigned to the task of determining where returning pilots would be assigned throughout the United States as no longer fliers but as officers in the Army Airways Communications System. They served as control tower officers and the like. I was discharged –– MS. FEIGIN: Before we get to your discharge, let’s back up a bit. Can you comment a little bit about what it was like to be in Alabama at that time. We’re talking about a segregated era. 30 MR. ROSENTHAL: It was extraordinarily disconcerting in fact. At Maxwell, as indeed at the other bases that I served on at one point or another below the MasonDixon Line, two things were very apparent. First of all, the AfricanAmerican airmen were assigned at these bases to what were euphemistically referred to as engineering squadrons. What they did in point of fact was simply maintain the grounds. Beyond that, they were segregated across the board. They were segregated in the mess hall, they were segregated in the movie theaters on base, and essentially they were segregated in all other aspects of life. The beer garden, the PX, everything else. It was disgraceful. This was the way the Army Air Force operated at that time. Indeed, throughout my two years plus in the Army Air Force, the only time I was in a nonsegregated environment was at the separation center at Ft. Meade, Maryland. The barracks at Ft. Meade, the separation center, were integrated. Up to that time, there was strict segregation in all aspects of my military service. It was really a disgrace. As you know, there were the Tuskegee Airmen, but they were a totally segregated unit. But where I was, the only black airmen were engaged in, as I say, maintaining the grounds and similarly menial undertakings. MS. FEIGIN: So you never met them? MR. ROSENTHAL: I had no contact with them at all. In the movie theaters, they were relegated to sit in the very back of the theatre. I had no contact with any 31 of the black soldiers at any of the installations that I was at during something over two years of military service. MS. FEIGIN: After you left the military? MR. ROSENTHAL: I returned immediately to the University of Pennsylvania. I will have to say this for the Army Air Force, it was probably the only consideration that I really got in my service time, but they let me out a month early in order to allow me to start the semester at Penn. In those days, the semester began at the very end of September, unlike today when most colleges go from the middle of August and end the semester before Christmas. In those days, at least at the University of Pennsylvania, as well as I think most schools elsewhere, the semester began late in September and ran through January. So you spent your Christmas vacation essentially writing papers, and now when they get to the Christmas vacation, the semester is over and they can really enjoy themselves which was not the case for me. MS. FEIGIN: What year was this? MR. ROSENTHAL: I returned to the University of Pennsylvania at the end of September in the year 1946. And I returned as an upper sophomore because, as I think I noted in our last session, the Army sent me to the University of Buffalo for two semesters. So while I left Pennsylvania in the middle of my freshman year having just one semester, I returned as a second-half sophomore. And that’s actually very interesting. That enabled me to 32 graduate from college in June of 1948. Had there been no war, had I not been in the military service at all, that’s exactly when I would have graduated. I managed to do that by first accelerating in high school one semester. I graduated in February of 1944 instead of June 1944. The Army sent me to college, again, for two semesters. Then when I returned, I did a summer session in 1947, and I took the maximum number of courses that I could every semester, and I graduated in June 1948 with the absolute minimum number of credits [laughter]. But that was interesting. I was in the military service over two years, yet I graduated from college precisely when I would have graduated but for the war. MS. FEIGIN: Was campus very different when the war was over? MR. ROSENTHAL: It was considerably different. Among other things, in the pre-war days at least, there was a lot of hazing that went on with freshmen. They were required to wear beanies and there were all kinds of demands made upon them [laughter]. Let me tell you that in the post-war era, that went by the board. There was no way that a returning veteran who had spent four or five years in the military service, much of it in combat, was going to be told by some 18-year-old upperclassman that he had to wear a beanie [laughter]. It was quite different. I think what you saw also was the GI Bill of Rights that enabled a large number of these returning veterans to go to college, and particularly to an Ivy League institution. A lot of them could not possibly have 33 afforded a college education without the benefit of the GI bill. And the thing about it was that they were for the most part very, very serious students. When you think of Joe College and all of that, these were older men – there were some women veterans as well – but principally men. They took their studies extremely seriously. MS. FEIGIN: Were you on the GI bill as well? MR. ROSENTHAL: Absolutely. My father paid for my first semester of college before I went into the military. I do not think that from that point on, though my college education and my law school education were both at Ivy League universities – the University of Pennsylvania for college and Yale University for law school – my father contributed as much as $2,500, even though that might be today $40,000. The GI bill covered most of my educational expenses, both tuition, my room and board, and books. My father gave me some spending money, but in large measure, the GI bill covered it through the second year of law school. Now the third year of law school, tuition at that time, this is the academic year 1950-51, the tuition at the Yale Law School was the princely sum of $750. I had a position as a legal research instructor as a third-year student. The compensation for that position was $750. It paid for my tuition. Tuition is now $40,000. I don’t know whether they still use students to teach legal research in their third year, but you can rest assured they’re not getting paid $40,000 [laughter]. In other words, 34 they’re not getting paid the equivalent of tuition, as I did. My father could well afford to have paid for my college and legal education, but I’m sure he appreciated the fact that he was relieved from doing much of that. Again, for many of my classmates in, both college and law school, the GI bill was a savior. MS. FEIGIN: Tell me a little more about college. What did you major in? MR. ROSENTHAL: I had planned to major in political science. My father put substantial pressure on me to major in economics. He felt political science was essentially a worthless major, particularly for somebody who was headed to law school. He felt very strongly that all young people should have a fundamental grounding in economics. Well in those days, I think more so perhaps than today, children were more prepared to follow their parents’ wishes [laughter]. At least in my case, I decided I would indulge him and so I was an economics major. MS. FEIGIN: You say especially because you were going to go to law school. How early in life did you realize that was where you were headed? MR. ROSENTHAL: I think from birth. [Laughter] I’m only being partially facetious. As far back as I can recall, that is what I wanted to do. I didn’t go through the agonizing period that many children do in their teens wondering what they might do and changing their mind periodically. No, I never wanted to be a fireman or a policeman or any of those things. As far back as I can recall, what I wanted to do was to study law. I have to say that that was probably 35 a good early decision and something that I stuck with because I think I’ve been a reasonably decent lawyer, but I also think I would have been perfectly terrible at anything else [laughter]. So I think as it has turned out, it was a very wise decision for me to have made early on [laughter]. MS. FEIGIN: What was it that intrigued you about the law? What was it that you wanted to do? MR. ROSENTHAL: I have no idea. I couldn’t tell you [laughter]. As far back as I can remember, this is what I wanted to do, and what pushed me in that direction, I have not the slightest idea. But that’s the way it was. So when I was in college, there was no question about what I was going to do and that was to apply to law school. MS. FEIGIN: Were any teachers in college particular mentors to you? MR. ROSENTHAL: Not that I can remember. I actually had very, very little contact with professors outside the classroom, I guess by choice. There weren’t any, I have to say, that I felt particularly moved to have contact with outside of the classroom [laughter]. MS. FEIGIN: Can you talk a little about what college was like in that era? Did people dress to go to school? MR. ROSENTHAL: I don’t recall there being a formal dress code, but they certainly, on the whole, dressed a lot more formally than kids seem to do these days [laughter]. I wore a jacket. I guess a good deal of the time I wore a tie as well, and dress slacks. I didn’t wear a suit. 36 MS. FEIGIN: Were women in dresses or skirts? MR. ROSENTHAL: Absolutely. The attire in that era was certainly much more presentable than what one sees generally today [laughter]. I think the faculty were better dressed than I understand the faculty are at a lot of these schools today [laughter]. MS. FEIGIN: Speaking of how women dressed and the faculty, I’m curious, were there many women in the classes and were there many women on the faculty? MR. ROSENTHAL: The University of Pennsylvania at that time had a separate college for women, a liberal arts college, and as far as I can recall, women were not admitted to the Wharton School, which is the business school, at all. I had women in some of my classes. I was in the College of Liberal Arts and Sciences, called The College, which granted BA and BS degrees. The women, as I say, went to a separate college called, appropriately enough, The College for Women. The baseline courses I think for the most part they took separately from the men who were in The College, but to the more advanced courses, the women were admitted. Those courses were offered generally in the men’s college that the women were admitted to. So I did not have women as a rule in the basic courses, the elementary courses, the 101s, but I did have women in the advanced courses, with one notable exception. There was a very venerable professor of English named William Page Harbeson who I think had taught there for 30 or 35 years. He was at least in his 60s. William Page Harbeson would not 37 allow women in his class, and that was because he had a habit of telling off-color jokes, and he was sufficiently old-school that he didn’t want to tell them in the presence of women, yet he was not prepared not to tell them at all [laughter]. So Professor Harbeson did not allow women in his classes. My impression is he was an exception. MS. FEIGIN: Was there any protest about that? MR. ROSENTHAL: Not at all. I don’t think that the women at the University of Pennsylvania in that era were nearly as prone to challenging the administration on matters such as that [laughter]. No, they just didn’t have the benefit of Professor Harbeson, who was an excellent professor, but he had that one idiosyncratic approach to co-ed education. MS. FEIGIN: Were there women on the faculty? MR. ROSENTHAL: I’m sure there were at The College for Women [laughter], but I think I can state with a degree of confidence that I did not have a woman professor or instructor. Interestingly enough, at Pennsylvania, a lot of the courses were set up for three credits with three hours of instruction, with one lecture, in an enormous room with the professor up front, and then two so-called quiz sections that were taught by a graduate student. So what you’d have is probably 300 people in the lecture hall, and then out of that would come maybe ten sections of thirty students which would meet with a graduate student. I don’t recall any of the graduate students that had these sections being women. That was quite a different era. There were many fewer 38 women students at the university. It’s not like it is today where in many of these institutions the women outnumber the men. MS. FEIGIN: So you graduated in 1948. How did you go about applying to law school? MR. ROSENTHAL: I guess that I was unduly egotistical. I applied to just two law schools, Yale and Harvard, and was happily accepted at both. But in those days, in all fairness, it was considerably easier to get into those law schools than it is today. There is not a doubt in my mind that, given the record I had at Pennsylvania and my LSAT score, that today if I applied to Yale with the same GPA, the same LSAT score, the admissions director would say, “Why is this lunatic applying here? [Laughter] The University of North Dakota would be a better bet [laughter].” Interestingly enough, if I may move forward then come back, years after I graduated, down here in Washington, there was a meeting of the Yale Law School Alumni Association of D.C., and the newly anointed dean came down to address us. The gathering included a number of very senior partners of law firms here, as well as some judges, and the dean reeled off the statistics on the class that had just gotten admitted. He looked around the room and said, “As you see, ladies and gentlemen, there are very few of you who would get into the law school today.” [Laughter] I thought that was undoubtedly a correct statement. At the same time, if the law school was looking for money [laughter], that wasn’t a very politic thing to have said. In any case, I was accepted at both, and I opted for 39 Yale on the basis of what I had been told – that life at Yale was a lot more pleasant than it was at Harvard. MS. FEIGIN: How so? MR. ROSENTHAL: The faculty were much more congenial, the attitude was not as it apparently was at Harvard when you came in there, “look to the right of you, look to the left of you, one of the three of you ain’t going to be here next year.” The dean of the Yale Law School at the time, Wesley Sturges, when he met with the incoming students, he said to them, “You have probably now accomplished the most difficult task that you will face in your lifetime, and that’s getting into this law school.” [Laughter] It was just a more pleasant environment. I don’t think that the academic side of it was any less rigorous than it was at Harvard. After the first semester, I actually enjoyed life up there. MS. FEIGIN: Tell me about the class, the size, the diversity. MR. ROSENTHAL: We were the largest class I think ever to go through the Yale Law School. This was a post-war class. We had 210 in the class. Of the 210, 12 were women. So you can see the difference between that era and the current era. Among those women was Patricia Wald, later the Chief Judge of the federal Court of Appeals for the District of Columbia Circuit, as well as Rita Davidson who was the first woman judge on the Maryland Court of Appeals. So we had some very distinguished women out of the very small group of 12. The class was relatively large by Yale standards, although 40 again, compared to Harvard which had over 500, it was relatively small. The first semester courses were required. After that, everything was an elective, with the exception of the second half of Property and Moot Court, which were in the second semester of your first year. Beyond that, everything was an elective, and there were many electives that were far removed from the so-called black-letter classes like Corporations and Taxation and the like, so that one could almost go through three years there, after the first semester, without taking any of the standard courses. MS. FEIGIN: Can you give me some examples? MR. ROSENTHAL: They had Arbitration, they had a course in jurisprudence, and they had several others, I don’t recall. This has been true of Yale right down to the current time. I interviewed in the 1980s a Yale graduate for a clerkship on the NRC panel on which I then served. I was looking at his résumé and he had taken a course in Tragic Choices [laughter]. I did ask him at the time what that was about. I don’t recall his response. There were several of them of that stripe. So if you weren’t really interested in the usual curriculum of corporation and tax, bankruptcy, and domestic relations, you could avoid them. MS. FEIGIN: I would ask you also about the faculty. Were there women? Was it diverse in other ways? MR. ROSENTHAL: The faculty did not have a woman on it. The faculty was diverse to some extent in political beliefs. There were a couple, believe it or not, 41 moderately conservative Republicans as well as a number of left-wingers. Thomas Emerson was familiarly referred to as “Tommy the Commie” and Fred Rodell was known as “Fred the Red” [laughter]. All male. A substantial percentage of the faculty were of a very liberal persuasion, but there were a couple of exceptions. Several of the professors were known also for their ability to consume alcohol in large quantities and still be able to meet their classes, although one of them who had an 8:00 a.m. Evidence class seemed to have to hold onto the rostrum after what seemed to have been a night of pretty heavy drinking [laughter]. MS. FEIGIN: I asked you about women in your class. What about diversity in other areas? Was there ethnic diversity? MR. ROSENTHAL: There were a couple of African-Americans, but not many. My class, two or three. I don’t recall an Hispanic, and I don’t recall an Asian. The class consisted of essentially male Caucasians with 12 women. I can’t recall whether there were any blacks among the women. There were some in classes below me. I think in the class immediately behind me and the class two years behind me, which my wife was in, there was a black woman, at least one. But the composition of that law school in terms of gender, diversity, and racial diversity, a completely different breed of cat from what’s true today. MS. FEIGIN: Did everybody live in a dorm? 42 MR. ROSENTHAL: We had married students. There was a dorm in which a large percentage of the students who were not married lived. A number of students were older, veterans, married, and they, of course, lived off campus. MS. FEIGIN: Where did you live? MR. ROSENTHAL: The summer that I graduated from college, I went abroad for the whole summer, and during my time abroad, the material came in about applying for rooms in the dorm, and somehow that didn’t get handled properly, so the upshot of it was I lived off campus the first semester. But then there were several people that at mid-year graduated or left the dorm. I was able then to get into the dorm. So for my last 2 1/2 years, I lived in the dorm. MS. FEIGIN: Before we get a little bit more into law school, let me go back to your summer abroad. Was that by yourself? MR. ROSENTHAL: I travelled with the son of another executive of the company that my father worked for. It was nice because my father was, I may have mentioned this in our last session, an executive of a company that did a lot of importing. They had a very close relationship with the American Export Line, and so my travelling companion and I went abroad on the MacAllister Victory, which was a World War II victory ship that had been carting during the war various goods to war zones. After the war, the American Export Line purchased this ship, maybe others, so I went over gratis, as guest of the American Export Line and came back at the end of the summer on one of 43 their regular ships, their regular fleet, not a converted war vessel, and on that ship we had the owner’s cabin, which was very nice. Going over, we were in the rear of the ship where gunners had apparently been housed when it was being used as a cargo vessel for war purposes [laughter]. So we had a very nice summer. We landed in Italy and did Switzerland, France, Spain and Portugal. We did not get up to the British Isles. This was eight weeks, a very leisurely time. MS. FEIGIN: Did you see a lot of the war ravaged areas? MR. ROSENTHAL: No. I don’t think we saw any. In Italy, we were in Naples and Milan and Venice, and I don’t recall seeing any. Of course, in Switzerland there wouldn’t have been any. In France, we were in Paris, Marseilles, and various places in between the two, and I don’t recall any war ravage there. And I didn’t see anything in either Portugal or Spain, which again were out of the war. MS. FEIGIN: How were American treated in Europe at that time? MR. ROSENTHAL: It was interesting. My most interesting experience was in Spain. Franco was still the dictator of Spain, and what we found was that Americans were treated very cordially, but for the most part, the Spanish were very guarded in what they would say about the government. One of the interesting things that did happen was we were on a train going from one point of Spain to another, and on this train was an American young woman from Rye, New York, who had been over there for the summer. 44 She was studying in Madrid or someplace. She told us a wonderful story about how arrangements were made for an interview session between Franco and a group of American students, including herself. During the course of the interview, Franco asked the students how they liked their time in Spain, and they politely said they were having a good time. The next day there’s a big article in the Madrid newspaper on this meeting between Franco and the students, and this young lady to whom we were talking discovered to her great dismay that the article contained the following: Miss So-and-So, a millionairess from Rye, New York [laughter], was asked by the Generalissimo how she liked Spain, to which, according to the article, she responded, she loved it and she wished she could spend the rest of her life in Spain. And, the article continued, she really regretted all the lies that were being said about the Franco administration in the American press. I think she was probably about 19 years old and she becomes extremely alarmed. Are they going to expatriate her? [Laughter] We didn’t have a Consulate, or an Embassy in Spain in those days. We had a chargé daffairs. She goes down there to report that this is all a lie, that she said none of this, and the guy in the chargé d’affairs office said don’t worry about it, we run into this all the time. The one thing I did find was that the Swiss were not nearly as cordial, particularly the shopkeepers, as were the people, the natives in the 45 other countries, Italy, France, Spain and Portugal. We were left with the impression that what they were really interested in was our money [laughter], much more so than in the other countries. MS. FEIGIN: Back to law school. Did you take a bunch of these wild and liberal courses? MR. ROSENTHAL: No. I did take the Arbitration and Admiralty courses, which I guess could be described as being sort of out of the mainstream of the black-letter courses. But I also took Corporations, Tax, and Domestic Relations, all of the standard courses. MS. FEIGIN: You mentioned some of the women in the class who went on to fame, but I suspect some of the men did as well. MR. ROSENTHAL: Burke Marshall is probably very well-known and was also in the class. MS. FEIGIN: For the historical record, you might say who he is. MR. ROSENTHAL: Burke Marshall later on was, among other things, the head of the Civil Rights Division in the Department of Justice where he was very, very involved in the civil rights issues of the 1960s. Also, interestingly enough, in my class was the father of Supreme Court Justice Elena Kagan, as well as the father of the gentleman who is now the CEO of Time Warner. So we had some people who sired very prominent citizens indeed [laughter]. MS. FEIGIN: Despite your protests that you would not have gotten in today, I gather you graduated at the top of your class. 46 MR. ROSENTHAL: At the end of the first semester, I was number one in my class, and I attributed that to advice that I had gotten from a lawyer named Sam Harris who was a partner at Fried, Frank, Harris, Shriver and Jacobson, a very prominent law firm. He was the Harris. He was a Yale Law graduate himself. My father knew him, and Sam was very kind to send a letter of recommendation on my behalf to the law school, and therefore he had some interest in how I did at the school [laughter]. He took me to lunch about a week or two before I reported to the law school, and he gave me the following piece of advice. He said the most significant part of your law school career is going to be that first semester. Because in those days, unlike today, grading was not anonymous. Your name was on the blue book. So Sam said it’s very important that you do well that first semester because if you convey the impression of being a top student, that’s going to carry a lot of weight for the balance of your law school career [laughter]. I took that to heart, and in my first semester of law school, I left New Haven only once the entire semester and that was to spend a weekend at an uncle’s place in Pound Ridge. He had come up for the Yale/Dartmouth game, he was a Dartmouth graduate, and I had gone back with him. I went back with him Saturday afternoon and I returned Sunday afternoon. On second thought, I guess I went home for Thanksgiving, a day or two. Apart from that, I made law school a 7-day, 24-hour a day 47 proposition, and it paid off. After that, I relaxed a bit, and my recollection is I was fourth in my class at the time of graduation. One of the things that was interesting was the Yale Law Journal. In contrast to the Harvard Law Review, you didn’t get on automatically on the basis of grades. At the end of the first semester, a certain percentage of the top of the class by grade was invited to “compete” for the Law Journal, and an additional group was invited, based upon grades, at the end of the second semester. Well I didn’t like the concept of competing, particularly because there were aspects of that that seemed to me to be hazing, and beyond that, the decision as to whether you were then tapped to become a member of the Law Journal was based upon the evaluation made by third-year students. So I elected not to compete, which created quite a stir because in those days the class rankings were made public. It was known that I was first in the class, and I was informed that I simply could not refuse it, that it made a mockery of the competition. I said I didn’t see anything in the booklet containing the rules and regulations governing the Yale Law School that required anybody to compete, and I said I’m not going to do it. And I didn’t do it. Well when this word got down to a lawyer friend of my father, who was a partner in a moderately prominent New York law firm, he said Alan is just out of his mind [laughter]. We would never consider hiring a lawyer out of school who had not been on the Law Review or Law 48 Journal. And when my father reported that to me, my response was I had no intention of considering his firm in any case, so I didn’t regard that as a big loss [laughter]. The only price I paid for that, turned out it was no price at all, was that there was a very, very structured system set up with regard to judicial clerkships. There was one Supreme Court Justice at the time who always took a Yale law clerk, and that was Tom Clark, and there were three judges on the Second Circuit that always took Yale law graduates. At the time, it was Charles Clark who had been a former dean of the law school, Thomas Swan, who I think also had been a dean, and Jerome Frank, who taught a course at the law school on the side. The person who was in charge of placement had a session in which certain people were invited to attend it for the allocation of these clerkships [laughter], because for the most part they took whoever was recommended. Well, if you weren’t on the Law Journal, you weren’t invited to this session. It didn’t make any difference what your class standing might have been. So I wasn’t invited and therefore the Frank clerkship and the Charlie Clark clerkship, and the Tom Swan clerkship and other clerkships were out of bounds, at least to the extent that the school wouldn’t recommend me. I could have applied for any of these clerkships but it would have been without the law school’s recommendation. I wasn’t terribly interested in those clerkships anyway. What I was interested in was a clerkship with a judge on the 49 District of Columbia Circuit at the time named Henry Edgerton, who I had read a great deal about. He was an extraordinarily able liberal judge, and I decided that I would apply for his clerkship. The woman who ran the Yale clerkship program said, “Well you’re free to do that Alan, but I have to tell you, it’s an entire waste of time.” I said, “Well why is that?” She said, “Well, he’s a Harvard law graduate, he has taught at George Washington and Cornell; his clerks have all come from those schools, and there’s no way obviously he’s going to consider a Yale graduate.” So I said, “Thank you very much for that but nothing ventured, nothing gained. I’m going to apply anyway.” And I did. I was invited to come down for an interview, which I did, and the judge talked to me for a while and then turned me over to his then one law clerk. In those days the Court of Appeals judges had a single law clerk, now they have four or something like that, and then he took me to lunch. After lunch, he asked me to talk to the clerk for a while, he had something to do, but that he would be seeing me again before I left. I’m in chatting with the clerk when the judge’s bailiff comes in. This was a very elderly African-American, and he says to me, “Congratulations,” and I said, “For what?” He said, “I understand from the judge you’re it.” [Laughter] Well, half an hour or so later, the judge reappears, I go back with him into his office, and in fact he does offer me the clerkship, which I accepted on the spot. 50 MS. FEIGIN: Did he ask you why you weren’t on the Law Journal? MR. ROSENTHAL: Never came up. Subsequently, not on that occasion, but subsequently after I started working for him, I told him what I had been told by the placement director, and he laughed and said, “It’s true, I never had a Yale law clerk before you, but that might be because no one has ever applied” [laughter]. And actually my immediate successor was also out of Yale. That was funny. MS. FEIGIN: Had you applied to any other judges? MR. ROSENTHAL: No, I hadn’t applied to any other judges. There’s one other sort of amusing story regarding my search for employment. I interviewed with a number of law firms on the campus, and several of them invited me down to New York – they were New York firms – for further interviews. One of them was a firm called Dwight, Royal something, and I went down for this further interview, and a partner is interviewing me, and he’s extremely interested in where I live, what my father does, and it seemed to me all the questions really were going to my background [laughter]. I finished interviewing with that firm, and I saw another firm the same morning. I then went back to the family apartment and my mother said to me, “You just got a phone call from Mr. So-and-So” – one of the lawyers I had seen down at Dwight, Royal – “and he wants you to call him.” So I called him, and he said, “One of our major clients is 20th Century Fox, and they have an office around Columbus Circle, and we would very much like you to go 51 right down there to meet them. I said, “Sorry Mr. So-and-So but I’m committed to be back in New Haven later this afternoon, and to make that commitment, I have to leave in the next half hour or so I’m afraid I can’t do it.” “Well,” he said, “that’s too bad, maybe another time.” I’m just walking out the door and the phone rings again. It’s the same gentleman offering me a job. Well, of course at that point I told him that I had a clerkship application pending. When I called back subsequently to tell him I was accepting a clerkship, he said, “When the clerkship is finished, we would certainly like you to come work with us.” Well what do you think I discovered subsequently? They were interested in me on the assumption, based upon my name, that I was Jewish and apparently they were getting a lot of heat from 20th Century Fox, the client which had in its management essentially Jews at the time, they were getting a lot of heat because there were not many, if any, Jews in the firm. I looked like a wonderful candidate. I had gone to an Ivy League school, the University of Pennsylvania, my father was an executive, I lived on Park Avenue, and thus I was, from their standpoint, a fine candidate. The same morning that I interviewed, one of my classmates interviewed with that firm. He was an Articles editor on the Yale Law Journal. He did not get an offer, although also Jewish, and why was that? Well he had gone to the City College of New York and his father had some relatively menial occupation, and they lived in the Bronx, 52 so that was that. In those days, unlike today, there was an enormous amount of discrimination on the basis of religion in law firms. There were Jewish law firms, and there were not Jewish law firms, and I have to say that some of the Jewish law firms in that era took advantage of the fact that it was very difficult for Jewish graduates of the Harvard, Yale, Columbia, stripe to get jobs in the Cravaths, et cetera, of the time. Therefore these Jewish firms had a pay scale that was lower than that of the so-called gentile firms because they could take advantage of the fact that the Jewish graduates of these law schools had to turn to them among the mega law firms. MS. FEIGIN: Do you remember what the pay scales were in those days? MR. ROSENTHAL: Yes. You’ll be interested in this. I went to work as a GS7, for Judge Edgerton. I was paid the princely sum of $4,205 a year. What do you think the Cravath salary was? Among the New York law firms, Cravath was the salary setter at the time – it had just raised its amount to $4,000. In other words, I was getting paid as a GS7 more than the Cravaths. Obviously today it’s a quite different situation [laughter]. MS. FEIGIN: Do you know what the Jewish firms were paying? MR. ROSENTHAL: They were paying less. I think $3,600 or something like that. It was a disgrace. They were taking advantage of, again, the fact that the Cravaths and the Winthrop Stimsons and Cadwalader, the rest of those firms, were 53 essentially not taking Jews. Now there is a sideline, and this is an interesting story. There was a fellow in the class ahead of me named Edward Benjamin, and Edward Benjamin’s ambition in his law school career was not only to get accepted by Cravath, Swaine & Moore, which maybe had some Jewish associates, but never had a Jewish partner, unless there might have been one or two from one of the Warburgs, Rothschilds, that crowd [laughter]. In any event, Benjamin was bound and determined to not only get hired by Cravath but to become a partner and he managed to get hired by Cravath, and he managed to become a partner. A year after he became a partner, he was flying back from a business engagement in Chicago, his plane ended up in the East River, and he was killed. He left a very wealthy widow. But he was an exception. Basically, the firms did not hire Jews at that time. MS. FEIGIN: Or women? MR. ROSENTHAL: Women? [Laughter] You know the story about Sandra Day O’Connor who comes out at the top of her class at Stanford and is offered some legal secretary positions hither and yon. Most of the women in my class I think ended up in the government, which, of course, was much less discriminatory. MS. FEIGIN: Between law school and the clerkship, was there anything? MR. ROSENTHAL: I spent the summer working in a lab in my father’s plant to pass the time. What I did do before I started with the judge was I got married. That was 54 a very significant event in my life [laughter]. I got married on my father’s 54th birthday as a matter of fact. My wife Helen was at the Yale Law School two years behind me. She entered in the fall of 1950, and I mentioned before that I taught legal research in my third year. She was one of my students. We didn’t date during that time, but after the semester was over – that was just a one-semester proposition –we then started to date and we got married in early September of that year. MS. FEIGIN: So that was right after you had graduated? MR. ROSENTHAL: Yes. At that time, I thought I was going to come down for the year with the judge in Washington and then return to New York. So for that reason, Helen transferred to Columbia. Well, during the fall of that year, I decided I was not going to go back to New York, I was going to stay in Washington, and I hoped to get a job in the Department of Justice. So Helen made another move, and she transferred from Columbia to George Washington, which is, in fact, where she got her degree. She was I think something like second in her class at GW, and was on the Law Review. I think she got on it automatically, I don’t think it was a matter of competition. MS. FEIGIN: When you say you thought you’d be going back to New York, you thought you’d be going back to New York to do what? MR. ROSENTHAL: Well, if I had gone back, I would not have gone to the Dwight, Royal law firm. After I heard about the basis upon which they were interested in me, 55 that certainly was off the table. It very possibly would have been with the law firm that Sam Harris was with, Fried, Frank, Harris, Shriver, Jacobson, although it was under a different name at that time. Ironically, that’s the firm that my son, my oldest son, Ted, went to, many years later. Obviously. I wasn’t certain about it, but when I came to Washington at that point, it was with the anticipation that I would be returning to New York. MS. FEIGIN: How did you find out that the reason the firm wanted you was because of your background? MR. ROSENTHAL: I actually learned that from one of my classmates who ended up at that firm, and he found that out. That was a very bad business but not surprising in that era. After all, how many instances are there of there being token blacks, so I could have been, in this case, the token Jew. MS. FEIGIN: Tell us a little more about Helen and her background before we get to the clerkship. MR. ROSENTHAL: She grew up in Paterson, New Jersey, across the river from New York. Her father was a manufacturer of chemicals used in the dye industry. I think for a while she had gone to a public elementary school in Paterson but ended up in a very small private girls school in Passaic, which is a nearby community. She went from there to Wellesley College where she majored in economics. The year that she graduated from Wellesley, that was 1950, was the first year that the Harvard Law School admitted 56 women, and indeed at least one of her Wellesley classmates ended up at Harvard, but she had the good sense to go to Yale instead [laughter]. So that’s her background. She has a brother who went both to Yale College and Yale Law School. MS. FEIGIN: So you had a commuting marriage the first year? MR. ROSENTHAL: Through the first semester. Yes. Some weekends I went to New York, some weekends she came to Washington, but she was actually at Columbia only one semester as it became quite clear to me fairly early in the fall that I was going to try to stay in D.C. The year with the judge was an enormous educational experience. One of the things that he made perfectly clear very early in my year with him was never use ten words where one word will suffice. About midyear, with that firmly in mind, I was assigned to draft an opinion in a fairly complex case involving riparian rights on the Anacostia River. I set about with that in mind his admonition, and I sweated over that decision and I boiled it and I boiled it and finally I got it down to about 19 pages, which I was absolutely certain was the irreducible minimum. I sent the opinion in to the judge confident that what I got back was going to be at least the 19 pages that went in. What came back was about 16 pages [laughter]. I said, no, no, he’s obviously left out something essential, but I went over it with great care, and no, I could not find anything that he had cut out that was essential. So I felt very, very deflated at that time [laughter]. He was 57 a magnificent judge and a magnificent human being, and I look back upon my year with Henry Edgerton as definitely one of the high points in my now 60 years or so legal career. MS. FEIGIN: Tell me about how the office ran. Was it common procedure for you to do the first drafts? MR. ROSENTHAL: Yes, in most cases. The office just consisted, again, of the judge, his secretary, his bailiff, and yours truly, his one and only law clerk, so there was just the four of us. For the most part when he was assigned an opinion, I was called upon to prepare a first draft, and he did a lot of editing on it, but as I say, this was an enormous learning experience. So the fact that I was excluded from the meeting of would-be law clerks up in New Haven didn’t prove to my disadvantage at all. MS. FEIGIN: Do you remember any particular case that stands out in your mind that you worked on? MR. ROSENTHAL: No. I would have to say that none of them was earthshaking. Some of the years he had cases involving civil rights issues and that kind of thing. My year was pretty mundane. There were a couple of things that happened during the year, though, that were interesting. One of them was that the District of Columbia still had the death penalty in those days, and on several occasions on the eve of execution, there would be another petition for a stay. Whenever I heard that one was in the making – we would sort of get advance word that this guy was scheduled for execution the 58 following day and that there would likely come up in the afternoon or early evening a stay request – I would encourage the judge to head for home because these things were so heart-wrenching. I can’t think of anything that is more difficult for a judge to face than to deal with one of these eleventh hour stay of execution requests. During the year that I was with the judge, the Steel Seizure case came through the court. As a matter of history, in early 1952 President Truman seized the steel industry and there was an immediate attack upon the seizure in the courts. The case reached the Court of Appeals for the District of Columbia Circuit, our court, which sat en banc to consider it. MS. FEIGIN: From the get-go it was en banc? MR. ROSENTHAL: Yes. It was on an emergency basis. All nine judges participated. The four liberals, the four conservatives, and Barrett Prettyman who was in the middle, Henry Edgerton being one of the liberals. Well who appears to argue the case on the government side, the Solicitor of General of the United States, Philip Perlman, who comes up with the then Assistant Attorney General of the Civil Division, Holmes Baldridge. Perlman absolutely infuriated the court. “Well judges, I am Solicitor General, and I normally do not appear except in the Supreme Court, but I am making a special exception on this occasion, and dignifying this court with my presence, so what I suggest you judges do is just sit up there and listen to me.” It was almost that crass. The judges were livid, absolutely livid. 59 U.S. Steel was represented by a Cravath, Swaine & Moore partner named Bruce Bromley, who had been previously a judge on the New York Court of Appeals, and Bromley paraded into the courtroom followed by a retinue of junior partners and associates, and he looked around I think for the red carpet, which wasn’t there [laughter]. Bethlehem Steel, on the other hand, was represented by a lawyer named Howard Westwood, who was relatively junior, certainly compared to Bruce Bromley, a partner in Covington & Burling here in Washington. Well, Bromley’s argument was totally pomposity. He was making no headway at all. Obviously he had been briefed by his retinue but was very ineffectual. On the other hand, Howard Westwood, who didn’t have his reputation and all of that, delivered a very solid argument on behalf of his company, his client. Well as it turns out the D.C. Circuit didn’t pass on the case at all, it went immediately up to the Supreme Court which decided the case eventually against Harry Truman in favor of the steel companies. I can remember to this day Philip Perlman, just sit back there and listen to me, I am the Solicitor General [laughter]. But that case was the most notable one that came through the court during my year there. Again, the three-judge panel cases that Edgerton sat on, none of them, regrettably, was something that was memorable. MS. FEIGIN: Did you have a personal relationship with the judge? 60 MR. ROSENTHAL: Oh yes. A relationship that extended well beyond the conclusion of my clerkship. I had lunch with him fairly regularly, I’d say probably every two to three months. It was a very close relationship. He had a very close relationship actually with all his ex-clerks. MS. FEIGIN: This might be a good time to stop, unless there’s something you want to add about this period. MR. ROSENTHAL: No, I don’t think that there’s anything particular about this period. As I said before, the court was sort of split. It had four liberals, in addition to Henry Edgerton and David Bazelon, there was George Washington, who was apparently a descendant, a collateral descendant, of the president, and Charles Fahy. Those were the four. On the conservative side were Chief Judge Harold Stephens, Wilbur K. Miller, James Proctor, and Bennett Champ Clark. Bennett Champ Clark was formerly a senator from Missouri who was appointed to the court by Harry Truman, and Clark was a very interesting fellow. He was very, very outspoken in his decisions. He sat on one case where somebody was sentenced to death. The majority overturned the conviction on some procedural ground. Clark wrote a dissent, and the first line of the dissent was something to this effect: This bloody-handed murderer will die a natural death before he suffers the penalty he so richly deserves [laughter], and the dissent went on from there. But he was quite a character. In the middle of the nine judges was 61 Barrett Prettyman who sometimes sided with the liberals and sometimes sided with conservatives. MS. FEIGIN: Were the relationships among them acrimonious? MR. ROSENTHAL: It was somewhat acrimonious as far as I could see only with respect to Judge Clark. Judge Clark unfortunately had an alcohol problem as well as a number of medical issues, some of which might have been tied to his alcohol problem. In any event, he had a habit of not turning up in the robing room at five minutes of nine, when the court would convene at 9:00, and frequently the word would have to be sent down to his office, when is he coming up? He would then stagger up, frequently on the arm of his bailiff, and this did not sit too well with his brethren, and there was some acrimony. Other than that, my impression was that my judge got along very well with the other conservative members of the court at that time. MS. FEIGIN: Did you interact with the other judges as well? MR. ROSENTHAL: Only to a very limited extent. We law clerks were not invited into the meetings where the judges decided how they were coming out on a particular case, and so we were never involved with the other judges in that context, so I had relatively limited contact with the other judges. Judge Bazelon’s law clerk never could make a luncheon engagement any earlier than ten minutes to twelve. He never knew when the judge was going to want him to have lunch with him. I would occasionally have 62 lunch with my judge, but I was always free at any point to make a luncheon engagement. It was never a matter of having to wait until ten minutes to twelve to see whether the judge wanted to have lunch with me. MS. FEIGIN: We’ll break now and pick up at this point next week. I want to thank you so much yet again. 63 ORAL HISTORY OF ALAN ROSENTHAL Third Interview – April 20, 2011 This interview is being conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is Alan Rosenthal and the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in King Farm, Rockville, Maryland, on Wednesday, April 20, 2011. This is the third interview. MS. FEIGIN: Good morning. MR. ROSENTHAL: Good morning, Judy. MS. FEIGIN: So, Alan, when we left off, you were in the midst of your clerkship. MR. ROSENTHAL: Yes, well there are just a few additional items that might be of possible interest. The first is that in my time all of the judges were white males, all of the law clerks were white males, all of the secretaries were white females, and all of what they called the messengers − these were individuals who served the judges in rather a menial capacity − were African-Americans, so that in each class, everybody was of the same gender and race. The messenger that Judge Edgerton, for whom I worked had, was a man in his middle 60s named William, and William was quite diligent at doing the various chores that were assigned to him, such as making certain that the water pitchers were filled at the beginning of the day, but he wasn’t terribly bright. One of the things that he did was to declare on his income tax return an aunt who in point of fact was not a dependent, and 64 the Internal Revenue Service at some point came up with this fact and summoned William to their offices to have a chat about it. William returned and he was in a state of terror. Apparently the agent or whoever it was that interviewed him told him that if he did not come up immediately with the total amount that was owing in terms of taxes, penalties, interest, and all of that, he was going to be crushing rock in a federal penitentiary for some years. He was absolutely terrified. Well, when he told this to the judge, the judge, who was very fond of William, was not too pleased with this kind of treatment. I was delegated to go over to the Revenue Service and to make it clear that they were to immediately correct the erroneous impression that William had as to what could be done to him. My first words when I got over to talk to the agent were, “I am the law clerk to Circuit Judge Henry W. Edgerton, and I’m here at his direction.” Needless to say, in very short order it was agreed that William would be told that there was no threat of imprisonment and that arrangements would be made to have him repay the money that he owed the Revenue Service in very small increments. But that I think was a stratagem that the IRS employed quite frequently then in dealing with people like William who were essentially ignorant. Another aspect of my clerkship that might be of interest is that I’ve always thought, and still think, that the value of a clerkship as an educational experience is totally dependent upon the quality of the judge 65 for whom you’re clerking and the manner in which the judge uses his clerk. That brings to mind the story of Judge Wilbur K. Miller, one of the D.C. Circuit judges at the time. Judge Miller came from Kentucky, and in selecting his clerks, he had only one requirement, well actually two: that they come from Kentucky and that they be very amiable, they be very good companions. And this was important because Judge Miller did not use his clerk for anything apart from companionship. For eleven months of my clerkship, the District of Columbia Circuit was still in a building on the corner of 5th and E Streets, the building which today I think is the Court of Military Appeals. It was only the Court of Appeals in that building and indeed the building was not large enough to accommodate nine judges. So the junior judges at that point had their chambers elsewhere. Of course, they would come to the building at 5th and E for oral arguments. In September, the courthouse that’s now occupied by both the Court of Appeals and the District Court, at 3rd and John Marshall Place or something like that, was completed, so the Court of Appeals moved into it. In any event, in the old building at 5th and E, the judges’ chambers consisted of, among other things, a very large room for the judge and a considerably smaller room but nonetheless spacious enough, for the law clerk. In Judge Miller’s chambers, the judge occupied the law clerk room, and the law clerk occupied the much more spacious room that was allotted to the judge [laughter]. Why he did that I don’t 66 know, but the story was that the judge preferred to work in somewhat more confined quarters. But here was the law clerk sitting in this enormous room doing essentially nothing, and I would have to say that I do not think in the year that I was there I saw the Miller clerk in the library even once. Now one of the things that he did do was in the summertime during the baseball season. We had a daily pool and the clerk, since he had nothing else to do with his time, was assigned to run the pool, which he did quite efficiently. At the end of his year, my recollection is that the clerk went back to Kentucky, I think he went to Frankfurt, to work as an Assistant Attorney General of Kentucky, and I’m sure that they were impressed down there with the fact that he had been a law clerk for a judge on the federal Court of Appeals for a year [laughter], and what they didn’t know is that in terms of it being an educational experience, it was nothing at all. MS. FEIGIN: Just to remind everybody, what was the year? MR. ROSENTHAL: I started the clerkship in the fall of 1951 and concluded the clerkship at the end of September of 1952. Now, as I mentioned before, in my year there were no women or African-American law clerks. To my knowledge, in the District of Columbia Circuit at least, there had been no women or African-American clerks before my time. After my time, two years after I concluded my clerkship, in other words, beginning in the fall of 1953, Judge Edgerton took a woman clerk. I think she was the first one, and he 67 kept her for five years, and indeed she only gave up the clerkship when she had a child. As a side point, this woman now resides in the same retirement community in which I live. And then a few years thereafter the same judge, Henry Edgerton, took what I think was the first AfricanAmerican law clerk employed in that court. You have to remember that Washington at that time was a pretty southern community, and it was during the period of, I think it was 1950- 1951, that the District of Columbia Circuit rendered a decision in what was known as the Thompson Restaurant case which dusted off a D.C. law going back to the 1870s, I think, which had been essentially ignored and which precluded racial discrimination in places of public accommodations such as restaurants. And indeed until that decision came down, most of the restaurants in the District of Columbia were segregated. In fact, when I lived here in the 1940s, the only restaurants in and about D.C. that were integrated were those at Union Station and the Washington National Airport. The Thompson Restaurant case did open up things. I have to say that when William, the judge’s messenger, heard about this decision, he was most disapproving. He was most disapproving because in his view, Negroes should not go where they’re not wanted. He was an AfricanAmerican definitely of the old school. So those are essentially my additional recollections of the clerkship which concluded for me at the end of September. 68 I’ll add one more thing. In those days, the court did not sit in the months of July, August, or September, at all. The judges were required to be “on call” for one of those three months. The other two months they could do what they pleased, and in point of fact Henry Edgerton, my judge, left town for two months of the three, and it left me with relatively little to do, and even on the month that he was on call, that just meant that if there was some kind of emergency matter that came before the court he had to be available to sit on it. I would have to say that the dockets of the courts of appeals in those days were a lot slimmer than today so that the judges were able to indulge in that kind of vacation schedule. MS. FEIGIN: Do you think that was also partly because it was pre-air conditioning era and so it was uncomfortable? MR. ROSENTHAL: I don’t know whether that was a factor. Certainly it was plenty hot in D.C. Although my recollection is, now that you raise the matter, that we were air conditioned, so I don’t think that could have been it. I think it was simply that their docket was such that this kind of vacation schedule was permissible, which I doubt it would be today. The Supreme Court justices still go off for a couple months [laughter], but as I understand it, their docket is not that weighty these days either. MS. FEIGIN: Less than it used to be. By the way, just to make this clear, I assume when you say there were no blacks and there were no women, that would include any other minorities, no Asians, no Hispanics, others? 69 MR. ROSENTHAL: That’s right. I don’t think the Hispanics were that much of a factor in the population of the District of Columbia as Hispanics are today. MS. FEIGIN: You finished your clerkship. When did you take the bar exam? MR. ROSENTHAL: I took the bar exam in New York in July of 1951. This was early July. This was, incidentally, before the multistate examination. In those days, the New York bar was in two parts over two days. The first part dealt with substantive issues, seven hours I think, and the following day there were five hours devoted to procedural matters and evidence. Now, I took the New York bar even though I was headed in the fall to a clerkship down here because it was my intention to return to New York at the end of the clerkship. In other words, when I applied for Judge Edgerton’s clerkship, it was not because of the location of the clerkship, it was because of the judge. That determination was sufficiently firm that when I became engaged to Helen in the spring of 1951, and we decided to get married before I started the clerkship, she transferred from Yale not to a District of Columbia law school but to Columbia, and so that’s where she started in the fall. We had at that point a commuter marriage, and she was in New York attending Columbia, and I was in D.C. on my clerkship. Well I got into the clerkship I think about a month, we’re now talking about October of 1951, when I decided that I really didn’t want to return to New York after all, that what I wanted to do was to both stay in Washington and if possible get a job in the Department of Justice, and my 70 eye was particularly on what was then known as the Supreme Court Section of the then Claims Division. The Supreme Court designation was a misnomer because while the lawyers in that section did indeed draft pleadings for filing in the Supreme Court, the vast majority of its work was in connection with the Courts of Appeals. MS. FEIGIN: Before we get to DOJ, let me ask you one question about the bar exam. In those days, were there these big bar review courses? How did people prepare for the bar? MR. ROSENTHAL: There were indeed bar review courses, and the one in New York City that I took, and virtually all of my classmates who were taking the New York bar took, might have been under the auspices of the Practicing Law Institute or some like organization. The class met at the then Stuyvesant High school in downtown Manhattan five nights a week, Monday through Friday, and again on Saturday morning. There were a couple of enterprising gentlemen who decided that they could make some money by having – this was the prior year – a professional stenographer attend the cram course and take verbatim notes on the lectures. What they then did was had the notes transcribed, mimeographed, and in my year, they were sold to us. And every one, I think, of my classmates joined me in purchasing them. Because this way, we didn’t need to sit there taking notes. I could put the mimeograph thing before me, and if there was any kind of change, I would just make a note. The advantage of this was that I 71 did not get writer’s cramp. Well, the existence of these notes came to the attention of the man who ran the cram course, and he accosted the entrepreneurs who were still law students themselves and told them that, if they did not, not only cease and desist but offer to give everybody their money back, he would personally see to it that they were never admitted to the bar, and he made the point that this was a violation of copyright, et cetera, etc. And he reported all of this to us and he took the high road and he said this was being done for our benefit because there had been some changes in the law and we would not be aware of them, because we were relying on these notes from the prior year. Well, of course, that was nonsense because what we did was, again, we had the purchased material before us as the lecture proceeded, and if there was some kind of change, we would note it. In any event, that brought this to a screeching halt while under compulsion the entrepreneurs offered to return our money. I can say that to my knowledge nobody asked them to do that. As far as we were concerned we had gotten what had been promised and what was of considerable value. And the other thing was, we didn’t have to study from a lot of scrawled notes taken in class. We had this very nice printed verbatim account of the lectures, even though from the prior year. Indeed, it wasn’t very much changed from year to year. Most of those transcribed lecture notes from the prior year still were totally valid. 72 MS. FEIGIN: Do you remember how you learned you passed the bar? In my day it was in the newspaper. MR. ROSENTHAL: As it happened, the results were coming out a few days after Helen and I were married on the 8th of September of 1951, and I was aware of that fact. We were going to be on our honeymoon so I told my father only to contact me if I passed [laughter]. Well I knew that he would contact me either way. I got a phone call from him that it had appeared in The New York Times and, yes, that was the way he learned about it and then he passed it on to me. Now the one thing about the New York bar was, as I say, it was in two parts and you could pass one and flunk the other, and in that circumstance, you only had to take over the part that you had failed. Happily, I did get by both parts. The New York University Law School, located then, as now, at Washington Square, but in a different building, was fairly close to the Stuyvesant High School, which was where the bar review course was taking place. The NYU Law School made its library available to all persons who were studying for the bar and taking the cram course, whether or not they had gone to NYU, and so I had gone down every morning about 9:00 and spent the day in that library and then went on around 4:30, 5:00 to Stuyvesant for the cram course. Now a number of the students that were doing the same thing that I was doing, utilizing the 73 NYU library, were graduates of what were euphemistically referred to as three-year cram courses [laughter]. I won’t identify the schools, but I think you probably have some idea what I have in mind. Well, I would take a 10-minute break to go out into the lobby for a cigarette – I was still a smoker in those days – and out there would be students from these schools arguing over whether it was Section 126 of the New York Practice Act or Section 294 that covered this, that, or the other thing, and I must say I found that a little intimidating, given the fact that the Yale Law School did not have a course specifically devoted to the New York Practice Act. But in any case, the bar exam was something that one had to get through. They gave it in New York City, in Manhattan, in three locations, and one of them was a big auditorium, un-air conditioned. The second one was in a much smaller facility, also un-air conditioned, and the third was in a nice air conditioned building. You were arbitrarily assigned to one or another of the three locations, and I got the intermediate one, but I felt that they didn’t provide an even playing field [laughter]. In July it was very hot. MS. FEIGIN: So getting back to your interest in the Supreme Court Section. How had you learned about the section? MR. ROSENTHAL: I assume I learned about it at an early stage in my clerkship. There were lawyers that were arguing appeals before the District of Columbia Circuit 74 that came out of that Supreme Court Section, Claims Division. I imagine that’s the way I learned about it. In any case, I went over in the late fall, maybe early winter, to talk to the then chief of the section, a man named Paul Sweeney, and subsequently he indicated to me that he had a place for me in the section, subject, of course, to my passing the security/loyalty investigation. MS. FEIGIN: And we’re in the McCarthy era now? MR. ROSENTHAL: This was definitely the McCarthy era, and in any case, things went on and I submitted whatever I was required to submit in connection with the security/loyalty investigation, and I thought everything was proceeding smoothly. I had a reporting date of I think it was October 1, 1952, my clerkship officially terminating on September 30. MS. FEIGIN: No break? MR. ROSENTHAL: No break, although I had a considerable break during the summer because, as I indicated, the judge had a considerable amount of time off and there wasn’t that much for me to do, so I cannot say that I was going to move from the one position to the other in a state of total exhaustion. In any case, I’m assuming everything is in order when, on or about September 10, maybe three weeks before I’m due to report for duty, I receive a phone call from Mr. Sweeney who tells me that the Assistant Attorney General of the Division, a man named Holmes Baldridge, wanted to see me. “What about?” Well he didn’t know, or more accurately he 75 wouldn’t tell me because he probably did know. In any case, at the appointed date and time, I appear in the office of Assistant Attorney General Baldridge of the then Claims Division. In his office with him is a gentleman who he introduces as on the staff of the Deputy Attorney General. “Well,” says, Mr. Baldridge, “I’m afraid, Mr. Rosenthal, that there have been some questions that have arisen in the course of your security investigation.” I said, “Okay, what might they be?” “Well,” he said, “I think I’ll allow Mr. X, representative from the Deputy Attorney General’s Office, to go into that matter.” I don’t recall this man’s name. In any event, he said, “Well for one thing, we have discovered that in 1940 your father was a member of the National Citizens Political Action Committee in which, it is our understanding, there were Communists.” I said, “Well, I can assure you that, while that well may have been true, my father certainly was not a Communist; indeed, he was a capitalist.” “Well we’re not saying that he was a Communist, but there were Communists in that organization and that gives us some pause.” Then the gentleman goes on, “In 1942 your father was a member of” – and he identified some other organization, the name of which currently escapes me, – “it too had Communists in it and that is also a matter of concern to us.” I was dumbfounded. I said, “Well, gentlemen, for one thing, I thought that I am the applicant for this position, not my father. For a second, I find this very strange because in 1945, as a member of the 76 United States Army Air Force, I had a top secret clearance that allowed me to attend the cryptographic technicians school.” At this point the gentleman from the Deputy Attorney General’s Office starts leafing through this stack of papers before him which I assumed consisted of the FBI report on the investigation, and he’s looking through these papers in stony silence. After about a minute, I said, “Do I assume correctly that that fact is not to be found in any of the papers that you have before you?” A long pause. He didn’t say a thing. I said, “I assume that the answer to that question is there is nothing in those papers that disclosed the top secret clearance that I had obtained several years after my father’s membership in these organizations that you find troublesome.” I then stood up and said, “Gentleman, this interview is terminated. I’m sorry but I’m not going to sit here any longer and listen to this kind of questioning.” Obviously the FBI was much more interested in what my father belonged to than in what I had done and what I had obtained by way of a security clearance. I walked out, and I went back to the Section Chief’s office. I said, “Well Mr. Sweeney, this is what happened.” I explained it to him and I said obviously we are not going to be colleagues, and I left the building. I went back and I reported this to Judge Edgerton who was livid. He called in Judge Bazelon with whom he was very close and asked me to tell Judge Bazelon what had transpired, which I did, and Judge Bazelon said 77 he’d be very happy to intervene. I said, “No I don’t want you to. I don’t want you to be involved in this at all. We’ll just see how it plays out.” Two days later, I get a phone call from Paul Sweeney, “You’ve been cleared, so we’ll expect to see you here on October first.” I suspect what happened is they were so concerned that if they turned me down that I would go public with this whole thing about what was in the FBI report and what was not, and it was so embarrassing that they decided that the better course was simply to clear me. When I tell this story to people who didn’t live at the time, at least not as adults, and thus were not cognizant of the impact of Joseph McCarthy, they just don’t believe something like this could happen. But it did. And one of the things that was interesting was what Sweeney told me later. He said, “You know there have been several people the last couple of years that I have wanted to take on here and I’ve been told, ‘no dice,’ that they just haven’t passed their security test. And I’ve never been given an explanation beyond that. Nor have any of them been given, as you were, the opportunity to meet with the Assistant Attorney General and the Deputy Attorney General’s representative.” I found this experience incredible. MS. FEIGIN: How do you explain your being invited to meet with them? MR. ROSENTHAL: I don’t know. It may be that they thought – again, this was my father that they were pinpointing, not me, and again, they were not claiming that he 78 actually was a Communist, a claim which would have been farcical. They might have felt that in that circumstance they had to bring me in. I don’t know. But the other thing I think that should be kept in mind is we’re not talking here about a Republican administration. These were the dying days of the Truman administration. That Assistant Attorney General was a Democrat; the guy coming from the Deputy Attorney General’s Office I think was probably political and therefore also was a Democrat, so this couldn’t be put on the shoulders of Joe McCarthy’s Republican Party. MS. FEIGIN: So, you get accepted. Tell me about the section that you walked into. What was it like? MR. ROSENTHAL: I walked into the section and the total number of members of the section, including me, was twelve. MS. FEIGIN: Including the supervisors, everybody? MR. ROSENTHAL: Everybody. Twelve bodies. MS. FEIGIN: Including secretaries? MR. ROSENTHAL: No. Twelve lawyers. The Section Chief was Paul Sweeney, the Assistant Section Chief was Sam Slade, and ten Indians of various levels of seniority. With the exception of Sweeney, a Georgetown graduate, and a fellow that came in just before I did, John Laughlin, who was a GW Law graduate but was coming in off a clerkship with a judge on the Tenth Circuit, everybody else – in other words, 10 of the 12 – were either Harvard, Yale, or Columbia, so that there was definitely a bias in hiring in 79 favor of graduates of those three schools. To my knowledge, however, none of the ten, apart from John Laughlin, who came in with me off the Tenth Circuit clerkship, none of them had had clerkships with an appellate judge. I think only John and myself. But there were twelve of us. The section was colloquially referred to as Sweeney’s Synagogue in that the majority of the lawyers in the section were Jews [laughter]. MS. FEIGIN: And Sweeney was not? MR. ROSENTHAL: Sweeney was not. Sam Slade was not, but there were a number of them that were. Now one of the things that I found somewhat interesting when I arrived on the scene, or I learned very shortly thereafter, was the two most senior nonsupervisory lawyers shared an office. At that point the only persons that had their own offices were the Chief and the Assistant Chief, of which there was just one at that point, and everybody else, men – they were all men, I might say. MS. FEIGIN: All white males? MR. ROSENTHAL: All white males. Previously there had been a woman lawyer in the section and she apparently didn’t stay very long. Paul Sweeney said he was never going to have another woman lawyer because apparently he and she did not get along at all, so he definitely was discriminating against women lawyers at the point I came in. I hadn’t been there very long when I discovered that the two most senior line lawyers who shared this office didn’t speak to one another. Their secretary also was in the office with 80 them, and one time I was in that office talking to one of them. The other one had been out of the office. He returned, and the lawyer to whom I was speaking said to the secretary, “Dorothy, will you tell Mr. X that so-and-so had called.” They literally did not speak. And I thought to myself what am I getting into here? I mean these are the two most senior staff lawyers acting as children. I’m thinking am I really in kindergarten? MS. FEIGIN: Can you tell us, because I think people down the road will have no context, what a secretary did for lawyers in those days. MR. ROSENTHAL: Well, those were the days, number one, before word processors, and number two, before lawyers were expected to type their own stuff. The lawyers wrote out their drafts on yellow pads and the secretaries typed them up. Now, today, with the word processor, in drafting anything, you’re continually making changes because the changes can be put in very readily. In those days what was typed up was done on a typewriter with carbon paper, and let me tell you, you prepared a draft and that was it because you did not go to the secretary, who had just typed it using four, five, six carbon sheets, and say, “Well, Dorothy, I’m afraid there will have to be some changes made here.” You just didn’t do it. I am not certain that the products were any worse than when they were dispatched to the courts or, if they were memoranda, to the Solicitor General’s Office, than they are today when people slave over them and make all these changes. In any case, that was a completely different world. 81 MS. FEIGIN: And the secretaries were all women? MR. ROSENTHAL: They were all women, and they were all white. The Administrative Section of the Division was headed by a woman who had a Georgia accent you could have cut with a knife, and she had total control over who was employed as a secretary in the Division, and it was clearly a matter of no African-American need apply because her thesis was that if one AfricanAmerican secretary were employed, thirty white secretaries would resign in protest. That, of course, was nonsense, but she had that control, and it was some years thereafter before an African-American was employed in the Division as a secretary, and surprise, surprise, to my knowledge, not a single one of the white secretaries resigned in protest. You have to bear in mind that the whole Department at that point was segregated basically. There were only white lawyers roaming the halls. The only blacks that I saw in my early years there were the messengers or people who occupied equally menial positions. There were no black lawyers, no black secretaries. As a practical matter, the Justice cafeteria was segregated. Not legally segregated. I didn’t often eat in that cafeteria because it was down in the basement of the building and it wasn’t very attractive, but on the few occasions that I did turn up there, I observed that the black employees – and again, these were essentially menials – were off eating in one area. There was a time before that when the Justice Department cafeteria I think was officially segregated. This 82 was a southern town, and the southern mores still were in play to a very large extent. MS. FEIGIN: Tell me about the work of the section. MR. ROSENTHAL: The section’s work consisted of the drafting of Supreme Court briefs on the merits, Supreme Court petitions for certiorari, and Supreme Court briefs in opposition. It consisted of writing briefs for filing in the Courts of Appeals, occasionally in a state court of last resort, and it consisted of writing of memoranda recommending for or against appeal in cases which the Division had lost in the District Court and for or against certiorari in cases in which the Division had lost in the Court of Appeals. The major portion of the work, I would say probably 75%, related to Court of Appeals briefing and appeal memoranda on cases lost in the District Court. The Supreme Court work was not that significant a part overall of the section’s operations with the consequence that when the Eisenhower administration came in, in early 1953, one of the first things that happened was that the name of the Division was changed from Claims to Civil and the name of the section was changed from Supreme Court to Appellate. MS. FEIGIN: Did anything change substantively in what you did? MR. ROSENTHAL: Not a thing. It was purely a name change. I think it more accurately reflected what the Division did on the one hand and what the section did more particularly. My first assignment when I arrived was to write a memorandum recommending against appeal in some case. The second 83 assignment I got was to draft a brief in a case in which we were amicus curiae in the Supreme Court and invited by the Court to file an amicus brief. It was a case that involved maritime rights in connection with a ship that had gone down off the Australian coast during World War II. What I found was that it was necessary in connection with preparing the draft to go up into the stacks in the Department of Justice library and pull down some reports from the Queen’s Bench, in other words, English reports of the 1800s because in this case there was a lot of the law involved that was derived from the British admiralty law, and I think I was lucky not to have come down with some serious lung disease like the coal miners get [laughter]. I can assure you that these books that I was taking off of the shelves had not been looked at previously probably for a hundred years, if then. When the term stack dust was invented, they had in mind these books. MS. FEIGIN: I think we should say for people reading this history that this was way before the era of Westlaw. Everything was done in the library. MR. ROSENTHAL: Oh yes. All of the research was done going to the books. At that point Westlaw, Lexis, all of those things I don’t think were even a figment of anybody’s imagination. This was just like the matter of typing the briefs. This was an era where there was no computerized anything, either processors or research tools such as Westlaw and Lexis. I have to say that, in the years as a drafter of briefs, I spent a considerable amount of time in 84 the library. Fortunately, the Department library was very complete. I never had a need to go to the Library of Congress looking for something. MS. FEIGIN: Just to explain how the Department was set up, when you say you drafted briefs on the merits for the Supreme Court, there still was a Solicitor General’s Office. MR. ROSENTHAL: Yes there was. Just to give some perspective, the Civil Division itself had in it seven or eight sections. All of the sections but Appellate operated on the trial level. There was a Torts section, there was a Court of Claims section that represented the government in suits brought against it in the Court of Claims. There was a Frauds section, there was a General Litigation section, there were all these trial-level sections. The Appellate Section was superimposed on top of them. When a case was lost in a District Court, the section in the Civil Division that had responsibility for that case, and it might have been tried by the Assistant U.S. Attorney, but there would be some lawyer in the Trial Section who had supervisory responsibility for the case, would transfer it to the Appellate Section. The Appellate Section then would write a memorandum recommending for or against appeal after obtaining the recommendation of the agency whose case it was. If a case was won at the trial level and an appeal was taken by the opposing party, then that case came to our section. Memoranda recommending for or against appeal or for or against seeking Supreme Court review in cases lost in the courts of appeals, would go to 85 the SG’s office and the Solicitor General would make the ultimate determination as to whether an appeal should be taken or certiorari should be sought. The Solicitor General’s Office at that time I might say was considerably smaller than it is today. I don’t think they had more than 10, 12 lawyers, if that number. It was just like the Civil Division Appellate Section which had 12 when I came to it, and today has 60 or thereabouts. When it came to matters where either the Solicitor General had authorized an appeal from a decision against us in the District Court or an appeal was taken by the adversary from a decision that was in the government’s favor in the District Court, we would decide whether we would handle the appeal ourselves or would farm it out to the United States Attorneys. At that time, we almost invariably handled the appeal ourselves if we were the appellant, if it was our appeal. If it was an appeal taken against us, we would then decide whether the issues were sufficiently significant to warrant our keeping the case or instead farming it out to the United States Attorney’s office for handling. We did run into a problem with the U.S. Attorney’s Office in the Southern District of New York. They were of the impression that there were no lawyers in the entire United States government that were of equal quality to the Assistant United States Attorneys in the Southern District of New York and therefore it was their belief that there was no circumstance in which an appeal in a case that originated in the Southern District of 86 New York should not be handled by them. So we were in constant battle with them over that. MS. FEIGIN: Who resolved those battles? MR. ROSENTHAL: They were resolved by us in the final analysis. However, I had a case in the Second Circuit that involved the doctrine, which might no longer apply, that a government employee or former government employee who was complaining of having been unlawfully fired had to bring the suit challenging the firing in the District of Columbia. This was because it had been held that the Civil Service Commission was an indispensable party to such a suit and obviously the Civil Service Commission is located in D.C. This was a case in which an employee, I think he was in the Veterans Administration located in New York City, was discharged and he brought suit in the federal District Court in Manhattan; in other words, the Southern District of New York, challenging that removal. Well, the United States Attorney’s Office refused to file a motion to dismiss the complaint for the failure to have joined an indispensable party because it believed that that rule was rubbish. That a prior employee should be entitled to bring a suit challenging his or her removal where she or he lives. Somebody in Washington, in the appropriate trial section in the Division, filed the motion which was granted. Then the ex-employee filed a notice of appeal to the Second Circuit which has jurisdiction over the Southern District of New York, and we said to the U.S. Attorney’s Office 87 in New York, the Southern District, “You handle this.” They said, “We won’t” [laughter]. This was exactly the reverse of their usual demand to be allowed to handle the appeal. They didn’t believe in this rule, they thought it was outrageous; they weren’t going to defend it. Okay, so it was briefed in the Appellate Section. I go up to New York to argue the appeal. Presiding on the Second Circuit panel was J. Edward Lumbard, who formerly had been the United States Attorney for the Southern District of New York. Lumbard says to me, “Mr. Rosenthal, what are you doing here?” I said, “Your Honor, I’m here to argue this appeal.” “Well,” he said, “will you tell me why this appeal is not being argued by lawyers in the Southern District of New York?” I said, “I’d be happy to tell you. We offered it to them and they refused to take it” [laughter]. Lumbard was speechless at that point, and I thought that that was a modest bit of revenge that we got. This was a continual hassle. But in the final analysis, we had the final word, and if the United States Attorney himself or herself complained, I’m happy to say that our Assistant Attorney General, no matter who it was at the time, would back us up, so complaints from the U.S. Attorney to the Assistant Attorney General invariably proved unavailing. MS. FEIGIN: I just want to make this clear. When the office drafted briefs on the merits for the Supreme Court, that was a draft for the Solicitor General’s Office, right? 88 MR. ROSENTHAL: Yes, the draft would be sent to the Solicitor General’s Office where one of the staff members there, Assistants to the Solicitor General they were known as, would go over the brief, would make revisions, and there would then sometimes be some kind of discussion between that Solicitor General’s Office member and the member of the Appellate Section who had drafted the brief as to the changes. Sometimes they were just made and the brief was filed. But there was something considerably different in that era from the era today and that is, as I will go into in greater detail at later stages of my recitation of my DOJ career, I had a total of nine Supreme Court arguments. These were assigned to me by the Solicitor General. Today, a lawyer on the Appellate Staff, as they call it today – it was the Appellate Section – his or her chances of getting a Supreme Court argument are about the same as that person’s chances of being on the moon. This shift occurred just before I left the Department in 1972, and this was due in large measure to an enlargement of the staff of the Solicitor General’s Office, and obviously the lawyers who join the Solicitor General’s Office reasonably expect to have a number of Supreme Court arguments. So in order to accommodate the much larger staff of that office today, and indeed over the last thirty years or so, the Appellate Section lawyers are frozen out. They just don’t get it. MS. FEIGIN: Might it also have something to do with the fact that now the number of Supreme Court arguments is diminished? 89 MR. ROSENTHAL: I think that’s a factor also; there are fewer of them. I had my first argument in the fall of 1956, and the last of the nine I think was in 1969, three years before I left. I was getting them routinely. Now, when the arguments came to an end, as I say, that was shortly before I left the Division, I said to the then First Assistant to the Solicitor General, Dan Friedman, I said, “You know, Dan, if we’re not getting any oral arguments, I don’t see why we should be writing any briefs.” It seemed to me that if these arguments were going to be presented by nothing other than SG staff members, that those are the folks that ought to be writing the briefs. Needless to say, that suggestion did not receive a very favorable reaction [laughter]. Obviously over the years we had a very close relationship with the Solicitor General’s Office and the staff members there in connection with, again, the memoranda on appeal or on certiorari and also with respect to the petitions for cert, briefs in opposition, and briefs on the merits that are drafted in the Division and then sent up to the SG’s office for further review and filing. MS. FEIGIN: Let me ask you a couple of questions about things that I think were different then from the way they are now at DOJ. At the time when you began, the FBI was in the same building. MR. ROSENTHAL: Yes it was. I saw J. Edgar Hoover frequently in the elevator. I was on the third floor and if I got on the elevator and J. Edgar Hoover was already in 90 it, the elevator immediately went up to the fifth floor. It did not stop on any intermediate floors [laughter]. MS. FEIGIN: How did that happen? You weren’t allowed to press the button? MR. ROSENTHAL I don’t remember how that happened, but it did. Director Hoover never suffered the indignity of having an elevator stop at a floor before it reached his floor. MS. FEIGIN: The FBI lab was there as well, is that correct? MR. ROSENTHAL: I think so, and the firing range I think also was there. MS. FEIGIN: Did you have any interaction, aside from the ride on the elevator, with the FBI? MR. ROSENTHAL: Oh absolutely. I had one particularly notable experience. This was when Ramsey Clark was the Attorney General, so I guess that was sometime in the 1960s. I was called upon to represent two FBI agents who were sued personally in a state court in Nevada for allegedly having bugged the hotel suites of some gangsters down in Vegas, and the defense that we were putting up was that they could not be sued for anything done in their official capacities. We filed a petition for a writ of mandamus in the Nevada Supreme Court seeking to get that court, on the basis of that principle, to get the state trial court to throw the suit out. A day or two before I’m making my first appearance in the Supreme Court of Nevada on this mandamus petition, an Assistant Director of the FBI shows up at my door. “Mr. Rosenthal, it is my understanding that you are going to be 91 going to Carson City in two days to appear before the Supreme Court of Nevada in this matter.” I said, “Yes, Sir.” “Well,” he said, “the Director wants you to file a motion to disqualify Mr. Justice X.” I said, “He does? On what ground?” “Mr. Justice X is in league with these gangsters who are the plaintiffs in this suit. Indeed, they have provided him at no cost with a swimming pool.” I said, “Well that’s very interesting, but what authority do you have for that proposition?” Well it turned out, of course, a confidential informant. So I said, “There’s absolutely no way in which I am going to seek to disqualify a justice of that court on the basis of the statement of a confidential informant.” “You don’t understand, Mr. Rosenthal, the Director wants that” [laughter]. I said, “Well, the Director might want it, but he’s not getting it from me. He can go to the Attorney General if he wishes, and if the Attorney General decides that that’s to be done, I suppose it will be done, but it’s not going to be done by me. I value my license to practice law too greatly.” He huffed and he puffed and he left. Well, that was, I think, basically my only contact with the higher levels of the FBI during my time there. MS. FEIGIN: I assume the motion was never filed. MR. ROSENTHAL: Absolutely not. What did happen, though, was this was a matter in which the Attorney General, Ramsey Clark, took a personal interest, and so I got a call from his office the day before I was due to go out to Nevada in which I was told that the Attorney General was having second thoughts 92 about the position that we were going to advance in the court. So I said, “It’s a little late in the game for second thoughts. Not only have we filed papers setting forth this position that these agents could not be sued personally because these were acts within the course of the performance of their official duties, but I’m scheduled to go out in 24 hours and argue this position.” “Well,” he said, “perhaps you’d better come up and see Mr. Clark.” So I go up to see him and he’s having some very substantial doubts as to whether we should continue with this position. He wanted to sleep on it overnight. I said, “I will be leaving at 5:00 tomorrow afternoon for Reno and I obviously have to know before then what you want me to do.” He said, “Come back tomorrow.” So I went back to his office and literally at 1:30 that afternoon I didn’t know what he was going to decide should be done. I kept telling him you have to reach a decision. Finally at 3:00 or so, which was about an hour before I was leaving for the airport, he said, “Okay, go ahead.” This case was the only matter in my twenty years in DOJ that I had any direct involvement with the FBI, and the only occasion in which I had any direct dealings with an Attorney General. I obviously had plenty of dealings with the Solicitors General over the years. MS. FEIGIN: This might be a good place to stop. We’ll pick up on more of your cases and your career at DOJ. Thank you again for a very interesting session. 93 ORAL HISTORY OF ALAN ROSENTHAL Fourth Interview – May 9, 2011 This interview is being conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is Alan Rosenthal and the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in the King Farm subdivision in Rockville, Maryland, on Monday, May 9, 2011. This is the fourth interview. MS. FEIGIN: Good morning. MR. ROSENTHAL: Good morning, Judy. MS. FEIGIN: So Alan, we had barely scratched the surface of your career at DOJ, but before we get into all the details of it, I just want to get a sense of it. Can you give us an idea of how many arguments you did while you were in the Appellate Section? MR. ROSENTHAL: I was in the Appellate Section exactly twenty years, almost to the day, and my estimate is that I argued something in the order of 225 cases in that period of time, nine of them in the Supreme Court, the balance in all of the Courts of Appeals, the Court of Customs and Patent Appeals, and I had I think five arguments in state courts of last resort. So the bulk of my arguments obviously were in the federal courts of appeals. MS. FEIGIN: And I guess we should just say for those who may not know the timing of this, there was no Eleventh Circuit Court of Appeals then, correct? MR. ROSENTHAL: No. There was the District of Columbia Circuit and ten other circuits. It was after I left that they broke up the then Fifth Circuit, and now what was 94 the Fifth Circuit is partially in the Fifth Circuit and partially in the new Eleventh Circuit. MS. FEIGIN: Given that vast number of arguments, which is really quite extraordinary, can you recall your first? MR. ROSENTHAL: I recall it very well. It was in a Federal Tort Claims Act case in the Second Circuit in New York City, and it being my debut so to speak, my family, specifically, my parents and sister, all of whom lived in New York, came down to listen to my maiden voyage in appellate advocacy [laughter]. The panel in the case included the two Hands – Learned Hand and Augustus Hand, his cousin, plus Jerome Frank. I knew Jerome Frank because he taught a course in the Yale Law School in fact-finding. It was a seminar in the afternoon. He came up from New York once a week to New Haven to offer it. It was a fairly small class, so he got to know the students in it, including myself. So that was a rather formidable panel. The case, as I say, involved the Federal Tort Claims Act, which in many respects applied state law. It had certain, however, statutory exclusions from its operation, but we had won the case on state law grounds in the District Court up in Plattsburg, New York, I think it was, way upstate. The Section Chief told me that, in arguing this case, he wanted me to focus my attention on an issue of statutory construction. This despite the fact that, as just noted, we had won the case on the basis of New York State law which was imported into the Tort Act. So I said 95 well, okay, I would do that. Obviously as a neophyte I was to going to follow the orders of my Section Chief. So I stood up before the court and I started to argue the statutory construction point. I got through about one sentence, and Learned Hand interrupted and said, “Well, Mr. Rosenthal, was that the ground of decision in the District Court?” I said, “No, the District Court had decided the case in the government’s favor on a state law ground.” He said, “I assume that you’re abandoning that ground.” I said, “Well, no, Your Honor.” He said, “I suggest that you get right to it.” So I think I got maybe six additional sentences out of my mouth when all of a sudden Judge Hand says, “Jones v. Smith,” or something like that. MS. FEIGIN: This is still Learned Hand? MR. ROSENTHAL: Learned Hand. Augustus seemed to be asleep during most of the argument [laughter]. “Jones v. Smith.” And I’m thinking my goodness, is that a case that I somehow overlooked? At this point, I hear the rustling of papers behind me, and it suddenly occurs to me that Jones v. Smith was the next case [laughter]. So my oral argument in that case consumed I might say probably no more than four minutes [laughter]. Well, all I can say is my sister thought, gee, this is a great job you’ve got [laughter]. You come up from Washington, you’ve got the whole day in New York. Actually I’d flown up the night before. And all of this is for four minutes or thereabouts of work. So I had to assure her that this was not likely to be my experience throughout my career as an appellate lawyer [laughter], and 96 obviously it wasn’t, but that was it. I was somewhat surprised at this abrupt end because as a law clerk the prior year for a judge on the District of Columbia Circuit, I sat in on a number of the arguments, and when the court thought they had heard enough, they would say to the lawyer, “Well Mr. Jones or Ms. Jones, I think we’ve heard enough.” It wasn’t simply abruptly calling the next case [laughter]. But that was the way Learned Hand apparently operated. Another story about Learned Hand was he took great interest in making certain that the margins on the briefs that were submitted to the court were of the appropriate length. Indeed, I did see him during the argument that immediately preceded mine – mine was not the first case on – I saw him sort of looking, measuring the margins on the briefs before him [laughter]. So that seemed to be one of his idiosyncrasies. That was a very interesting way of embarking upon my career as an appellate advocate [laughter]. For his part, Jerome Frank I think recognized me; he simply smiled. But that was it. The only other amusing thing about that experience was my opponent, who came from the northern reaches of New York State. This might well have been his first appearance in the Court of Appeals, I don’t know, but as we were leaving the courtroom together he said to me, “Well Mr. Rosenthal, we’ll just have to see how it comes out.” Now bearing in mind, I was the appellee, and it was just four minutes or so of argument, 97 there was little doubt in my mind as to how it was going to come out, and indeed, within a matter of a few weeks, a very brief decision came out which affirmed on state law grounds the District Court decision. So the statutory construction argument that my Section Chief wanted me to address never got decided. MS. FEIGIN: When you talk about his telling you what to do, how did you prepare for these arguments? Were there moot courts? MR. ROSENTHAL: Absolutely. There were always moot courts, and the moot courts were particularly thorough in the instance of the Supreme Court arguments. For the Court of Appeals arguments, there might be two other members of the section in addition to either the Section Chief or Assistant Section Chief sitting on the moot court. In the case of the Supreme Court arguments, there were generally at least five or six, and the endeavor, of course, was to raise every question that the Supreme Court Justices could possibly have in mind. Needless to say, I did not have one Supreme Court argument in which there were not several questions posed to me that had not been anticipated by the individuals conducting the moot court [laughter]. MS. FEIGIN: Having argued in all the circuits, can you give us a thumbnail description of the differences among the circuits? MR. ROSENTHAL: There were enormous differences. In that day and age, in the Fifth Circuit based in New Orleans, but they also sat in other locations – in Florida, 98 Alabama, and Texas – it was rare that you got out more than “May it please the Court,” before the judges were on you, and they were thoroughly prepared. I was amazed and actually welcomed that because it seemed to me that the principal virtue of an appellate argument from the standpoint of the lawyers presenting it, is that it provides, or should provide, an opportunity for the advocate to learn what is troubling the court, if anything, and to provide an opportunity to endeavor at least to satisfy the court that its concern regarding some aspect of the advocate’s position is not substantial. Now in contrast to the Fifth Circuit which was, as I say, invariably prepared, the Tenth Circuit was never prepared [laughter]. The Tenth Circuit was a court that was based in Denver and covered several additional states like Oklahoma and New Mexico and Wyoming. I may have missed a state or two. When the clerk of the court called the case name, let’s say United States v. Jones, those judges apparently did not know at that point whether it was, for example, a Mann Act criminal prosecution or a Federal Tort Claims Act case. As far as I could see, none of them had picked up a brief or had their law clerks brief them on what the nature of the issues were. It was, I must say, extremely frustrating to have to start at Square One and to provide a total education as to what the case was all about. The Eighth Circuit, however, was even more frustrating. The 99 Eighth Circuit was St. Louis-based. I had, I would say in the 1950s and 1960s, probably eight cases in that circuit. I went out from Washington to St. Louis on those eight occasions or so to present arguments. In the total of eight cases, I was given a total of three questions [laughter], and those three questions all related to whether something was or was not in the record of the District Court proceeding. In those days the Eighth Circuit allotted an hour for oral argument. MS. FEIGIN: Each side? MR. ROSENTHAL: Each side. Today you’re lucky I think to get more than 15 minutes a side in most cases. They never interrupted you. They sat there taking copious notes, and you just went on for as much of the hour as you saw fit to devote to your case. Now, I thought to myself after several of these experiences, “What am I doing taking the time to go all the way out from Washington to St. Louis; why don’t I simply send a tape of my oral argument?” [Laughter] One occasion was particularly frustrating. This was a case which involved the question of the appropriate rail tariff rate for shipments of government materials. The railroad was claiming that a particular provision of the tariff applied. The government was claiming that a different tariff provision applied, which, of course, called for a lower rate. In the District Court, the government prevailed. So in the Court of Appeals, I needless to say argued that the District Court was clearly right 100 in applying tariff provision X, and the railroad lawyer argued that the District Court was clearly wrong, that tariff provision Z applied. Down comes the decision of the Eighth Circuit several weeks later. By a 2 to 1 vote, the court held that the question was one of reasonableness of rates and therefore within the primary jurisdiction of the Interstate Commerce Commission, that it was not simply a matter of tariff construction. Therefore the matter was remanded to the District Court with instructions to send it to the Interstate Commerce Commission to determine the issue of reasonableness. During the course of the argument, not once was there a suggestion on the part of any one of the three judges that there might be a reasonableness issue involved which would put the matter in the primary jurisdiction of the ICC. So this was extremely frustrating [laughter]. Another occasion in the Eighth Circuit, this was an appeal from the District Court in Minneapolis, District of Minnesota, the issue being whether the Federal Reserve System was unconstitutional [laughter], with the consequence that the Federal Reserve notes that were being issued were all about as good as counterfeit money. Needless to say, this was a frivolous suit to begin with, and an even more frivolous appeal from a decision of the District Court to the effect that obviously the Federal Reserve System was constitutional. Yet the Eighth Circuit allowed this rabble-rouser, if I may put it that way, from Minneapolis to orate for a full hour on the subject of the unconstitutionality of the Federal Reserve 101 System. The court didn’t say a word, just let him talk. At the end of the hour, I got up and I said if the court had no questions [laughter], I would submit on our brief. The court had none; they never had any questions, but on this occasion they particularly had no questions [laughter]. And that brought the argument to the end. When I left the courtroom, in the vestibule, the lobby outside of it, opposing counsel was getting the adulation of a large number of adherents of his view who had come down from Minneapolis to hear the argument, and they were saying to him, “You did a magnificent job” and “It was obvious that you had done a magnificent job because the government had no response.” [Laughter] There was a good deal of difference in the way the various circuits conducted their business. I will make reference to only one other circuit, which was the Fourth. The Fourth Circuit at that time had only three judges. John Parker was the Chief Judge and had been on the court for a long time. In fact, I think in 1930, he was a Hoover nominee to the Supreme Court, and his nomination was rejected by the Senate. He was not confirmed because, as I recall it, he had rendered a decision on the Court of Appeals that had been extremely unpopular politically. If I recall correctly, it dealt with yellow-dog contracts or something of that order. In any event, Parker was the Chief Judge. The other two judges were Morris Soper, who came from Baltimore, and Armistead Dobie, 102 previously the dean of the University of Virginia Law School who came from Charlottesville. That’s all there were, just those three judges. They sat on virtually all cases except when a district judge was brought up to sit on a particular week by designation. They were an interesting trio. They had one practice which I thought was very good. I think it’s still being followed in the Fourth Circuit, but I don’t think it’s been adopted by any other Court of Appeals. After each argument they would come down off the bench and shake the hands of counsel and exchange a few words. Well, I had one encounter with that practice that made me a bit nervous in advance. I had argued a test case. It involved an issue, again, of which tariff applied to government rail shipments. This was a test case covering a very large number of other cases. We lost in the District Court and appealed to the Fourth Circuit and we lost in the Fourth Circuit. What we then did was to take another one of these cases where the facts were a little bit different and we ran it up the pole again, and when I got to the Court of Appeals, Parker said, “Well Mr. Rosenthal, haven’t we heard you on this before, and didn’t we reject your position?” “Well yes, Your Honor, but we think that this case is a little bit different factually.” Well, we lost it again, in an opinion that said in effect we’ve already decided this issue previously, why are you bothering us with it again. This time we took it to the Supreme Court. The Supreme Court reversed the Fourth Circuit, remanded it to the Fourth Circuit for further 103 consideration. So I appear again. Well, Parker was absolutely livid [laughter]. He accused me of having mousetrapped the court and all of this kind of thing. It was a very, very unpleasant time. I think it was probably 45 minutes or so – I think the Fourth Circuit allowed 45 minutes a side, and he had me up there for the full 45 minutes. And finally the argument was over, and, of course, they’re going to come down off the bench, and what kind of reception am I going to get? Well, he greets me, “Mr. Rosenthal, it is always a pleasure to see you again.” [Laughter] That was a very interesting court. Now there is an interesting sidelight to Armistead Dobie. As I said, he was the dean of the University of Virginia Law School, and before getting on the Fourth Circuit, he was a district judge in the Western District of Virginia, and Roosevelt promoted him to the Fourth Circuit, and supposedly this was a matter of gratitude for the fact that he hadn’t thrown one of Roosevelt’s sons out of the law school for misconduct [laughter]. Whether that’s true or not, I don’t know. In any case, one of my Fourth Circuit arguments, the argument ahead of mine, involved a case where a woman was suing her former husband for having maliciously had her incarcerated in a mental institution where she had remained for two weeks or so before she got herself out. Well, the jury in that case − this was a diversity of jurisdiction case − had awarded her a very large sum of money. On the appeal taken by the former husband, the main point that 104 his lawyer was making was that the award was grossly excessive, and it was obvious that he was making considerable headway with the judges on that issue of the excessiveness of the damage award. Well this was appreciated by the lawyer for the wife, and when he stood up, he opened his argument by saying, “Your Honors, I can appreciate the fact that you might think that this award was very generous, but you should take into consideration that any amount of time spent in a mental institution, no matter how short, places a blot on one’s reputation that is never removable.” “Well,” says Judge Armistead Dobie, “for your information, I spent several weeks myself in a mental institution [laughter], and whatever blot there may have been put on my reputation, I think was removed when I was appointed to the federal bench.” This poor lawyer [laughter]. That shows what comes of not making a close enough study of the background of the judges before whom you are going to appear. I learned later that Dobie had had a mental breakdown at some point in his early career and he had indeed spent some time in a sanitarium. MS. FEIGIN: When you say that shows the problem of not studying enough about the judges, how did you prepare these arguments? Did you study the backgrounds? MR. ROSENTHAL: Oh no, but I was fortunate enough never to have encountered that kind of a response [laughter]. 105 MS. FEIGIN: You’ve given a snapshot of several circuits, but this is an oral history for the D.C. court, so I’d like you to, if you could, give us a sense of the D.C. Circuit as it was when you argued, and that is different from being a law clerk. MR. ROSENTHAL: I think I might have mentioned this when I was talking about my year as a law clerk there, but for many years it had nine judges, four conservatives, four liberals, and Judge Prettyman who was sort of in the middle. I argued a number of cases obviously in the D.C. Circuit, and with many of them, I wanted a conservative bench, and unlike today where apparently you know in advance who’s going to be sitting on a particular case − I understand that is now the practice in the District of Columbia Circuit, to reveal that in advance – in those days you didn’t know who was going to be sitting until the curtains parted. Well the official word was that the judges were assigned by lot, that the Chief Judge of the court had nothing to do with who was assigned and what the clerk would do was find out what judges would be available to sit at a particular time, and then there would be a by lot assignment of those judges. During a good part of my time arguing before the District of Columbia Circuit, David Bazelon was the Chief Judge, and lo and behold, maybe this was all by lot, but on the cases where it really mattered whether a majority of the panel were conservatives or liberals, when those curtains parted, I saw two liberal judges and a conservative judge, and this 106 was almost invariably the case. Well one day when I was coming up there, I said to the clerk, Nate Paulson at the time, “Nate, you know who’s assigned to this panel, I don’t, but,” I said, “I will bet you $10 right now that when the curtains part, I’ll see two liberals up there.” Needless to say, he did not take the bet, and needless to say, when the curtains parted, yes, there were two liberals up there. In the cases that I had in that court where it really didn’t make a difference what might be the particular persuasion of the participating judges, then I might get two conservatives or I might get two liberals, or I might get three conservatives or even three liberals. MS. FEIGIN: In your time there as a clerk, did you have a sense of any of that going on? MR. ROSENTHAL: No I did not, because the Chief Judge was Harold Stephens at that time who was one of the conservatives. It was only subsequently, mainly in the Bazelon days. On another subject, when I appeared before it, I found the judges of that court invariably well prepared. I would have expected that because certainly in my time as a law clerk, all the judges got at the very least briefing from their law clerks before they got on the bench even if they hadn’t taken the time to read the briefs themselves in advance of the argument. It was a little stressful appearing before Henry Edgerton. He did not disqualify himself in cases in which I was involved, but he made it abundantly clear that I was getting no favors [laughter] from him based 107 upon my previous service as his law clerk. I found the D.C. Circuit to be a perfectly acceptable court to appear before. MS. FEIGIN: You say you made the bet with the clerk before the panel appeared. Can you tell us about your relationship with clerks of court? MR. ROSENTHAL: I made a concerted endeavor to become acquainted with, and if possible to obtain the a friendship of, the clerks of all of the courts of appeals and the Court of Customs and Patent Appeals. I found it inured to my benefit. For example, when I had an argument coming up in the Court of Appeals for the Ninth Circuit and the argument was almost certainly going to be heard in San Francisco as opposed to Los Angeles or Seattle, I would usually want to have the argument on a Tuesday so I would go out the prior Friday night, visit friends of mine over the weekend, and Monday, of course, would be the travel day. So when an oral argument was coming up in that circuit and I thought I was going to San Francisco, I would call the clerk and I would say if at all possible, would you put the argument down for a Tuesday, and almost always that was very possible, and almost always that happened. I had an acquaintance, a man named Melvin Welles. Mel was a lawyer with the National Labor Relations Board who argued dozens of appeals every year. He was an avid rooter of the New York Yankees and took pride in the fact that, over the course of 15 years or so, he never once missed a game when the New York Yankees were playing the then 108 Washington Senators in Washington. He would, at the beginning of the year, get the schedule and determine when the Yankees would be playing at Griffith stadium in D.C. He would then look over his list of cases and decide what cases might come up for argument when the Yankees were in D.C. And what did he do? He would call the clerks and say please do not set an oral argument for, and he would list the particular days, and it was my understanding that these clerks were all very accommodating, with the consequence that Mel Welles never missed a Yankee game [laughter]. MS. FEIGIN: And they understood that was the reason? MR. ROSENTHAL: I don’t know whether he gave them that as the reason or not. He may well have. In any event, his request that they not be set to coincide with a Yankee game here was always met. Now in my case, in addition to the courtesy that was extended to me by the Ninth Circuit clerk, with my older three kids, I took them with me short of their fifth birthday when they could travel on the train for nothing − nobody could ever accuse me of being a spendthrift [laughter] − I would take them on the train to an oral argument, in two cases to Cincinnati and one case to Chicago. In all of these three occasions, while I was in the courtroom, my kid was in the clerk’s office being entertained by the clerk’s office staff. MS. FEIGIN: Really? How nice. MR. ROSENTHAL: That was the kind of thing that went on in those days. They couldn’t have been nicer. I recall with my daughter, who I took to the Sixth Circuit in 109 Cincinnati, when I went back to the clerk’s office after the argument to pick her up, she was busily drawing pictures and they were putting the court seal on them [laughter]. So that was just something that I found that was very helpful. I found, without exception, that the court clerks in those days were extraordinarily accommodating. MS. FEIGIN: Tell me about the Mel Richter argument in the Fourth Circuit. MR. ROSENTHAL: That was unbelievable. Mel had a very complicated case. I don’t now recall what the specific issue was, but it had a voluminous record of several thousand pages. It was set for argument on a particular day in the Fourth Circuit in Richmond, the headquarters, and four or five days before the argument, Mel’s mother died in Springfield, Massachusetts. Well Mel was a moderately observant Jew, but even had he not been so, obviously there would have been a period of at least a week when he would have been up in Springfield on the occasion of his mother’s death. When Mel reported this to the Section Chief and said he was about to leave for Massachusetts, the Section Chief got on the telephone with the then clerk of the Fourth Circuit and said that obviously the argument should be postponed. The clerk’s response was, “You’ll have to take this up with Judge Parker, but I can tell you that when my wife died, I was back at work the next day.” Unbelievable. In any case, the next thing that happens is the Section Chief calls Judge Parker down in Charlotte, North Carolina, which was where he was based, and explains the situation. 110 Parker said, “Well you’ll just have to get somebody else to argue the case.” The Section Chief at the time, Sam Slade, said, “Judge Parker, this case has a voluminous record, a number of complex issues, it would just be impossible for somebody else to come adequately prepared to present this argument in the space of a few days.” “Well,” Parker said, “in that circumstance, I’m afraid Mr. Richter will have to do his mourning in court. We don’t postpone arguments. Once they are set for a particular day, they are held on that day.” When Sam got off the telephone, I understand that he was apoplectic. In any case, he went down to the front office and reported this to the Assistant Attorney General in charge of the Division who said “I will call Parker myself.” About half an hour later, the Assistant Attorney General – I don’t recall whether this was Warren Burger or whether it was his successor after Burger went on the Court of Appeals − but in any case, a half an hour or so later, the Assistant Attorney General called Sam Slade and said, “Judge Parker has reluctantly agreed to postpone the argument.” Then what do you think Parker did? He set it down for a Saturday for a special session. Now fortunately Mel was not that religious that this presented a problem for him, but there was obviously an element of malice involved in that. MS. FEIGIN: Wow. Speaking of Warren Burger being head of the Civil Division, since he 111 went on to the D.C. Circuit and then renown as Chief Justice, did you have a lot of interactions with him? Can you tell us something about him? MR. ROSENTHAL: I had a modest amount of interaction with him. Fortunately the Assistant Attorneys General in my time did not involve themselves to any great extent in the doings of the Appellate Section, so my dealings with him were relatively modest. I have, however, a great Burger story. When Burger was nominated, we’re now talking about the spring of 1956, nominated for a seat on the District of Columbia Circuit, his nomination was assigned to a subcommittee of Senate Judiciary, chaired by then Senator Joseph O’Mahoney of the state of Wyoming. Well the nomination is no sooner assigned to his committee, the subcommittee, than five former lawyers in the Civil Division informed Senator O’Mahoney that they are prepared to testify that Warren Burger is antiCatholic war veteran. And how do they know this? Well it seems that all five of them had been lawyers in what was then called the Claims Division when Burger arrived on the scene as Assistant Attorney General in early 1953, and one of his first acts had been to fire all five of these gentlemen. What better proof could there be that he was anti-Catholic war veteran? They were all Catholic, all war veterans. Well Senator O’Mahoney thinks that he’s really got an issue there, but the Senate, it was a presidential election year – the Senate recesses for the year before it gets to Burger’s nomination, whereupon Eisenhower gives him a recess appointment. 112 We’re now in January of 1957. Eisenhower has been duly reelected, up goes Burger’s name again, and O’Mahoney is scheduling hearings, and he gets a message from J. Howard McGrath. J. Howard McGrath had been Attorney General during the Truman administration. He was not Attorney General at the end of it. But he also at one point was a United States Senator from Rhode Island. J. Howard McGrath said that he has heard about this claim being made by these five former Justice Department lawyers and he wanted O’Mahoney to know that if they were allowed to testify, he, J. Howard McGrath, will appear before the committee and testify that, when he was Attorney General, he had tried to fire all five of them and had been blocked from doing so by their patron who was a senator from Massachusetts. Somehow this whole Irish Catholic war veteran matter got dropped, and as we know, Burger was then confirmed and eventually, of course, ended up as Chief Justice of the United States. That’s the main story I have about Warren Burger. The only other thing I might mention about Burger is in those days, the Divisions each had one political assistant to the Assistant Attorney General in the Division. Today I understand in the Civil Division there are a number of political deputies to the Assistant AG, but there was just one in those days. Well Burger comes on board and in the position of the political deputy was a career employee and Burger was perfectly satisfied with him. But the Republicans are coming in after 113 twenty years of Democratic rule and there are some people up on the Hill that learned of the fact that there is a Democratic holdover occupying this political position and they sent word to the Attorney General, that was passed on to Burger, that he had to get a political deputy of Republican stripes. Burger said, “Well, okay, supply one. I’m not going to be very active in the search for a replacement,” and the Attorney General, who was Herbert Brownell at the time and came from the New York legal establishment, came up with a gentleman who was an associate at the time at Cravath, Swaine & Moore and was not going to be made partner. Of course, the Cravath firm was noted for the fact that it was a good employment agency for its associates who were not going to be made partner. Apparently somebody at Cravath had served this guy up to Brownell, and Brownell passed him on to Burger, and Burger took him. Well he turned out to be an absolute disaster, but he occupied that position for the entire eight years of the Eisenhower administration. So Burger wasn’t that much really of a political animal in terms of the Division. I think he ran it quite competently on a non-partisan basis. But actually the Civil Division, unlike, for example, Antitrust or Civil Rights, was really not very much affected by changes of administration. That’s because what the Civil Division really didn’t have very much of a policy flavor to it. We were regarded as the country’s largest general law 114 practice, and there wasn’t really the same kind of policy issues coming up that would arise in, particularly, Civil Rights or Antitrust. MS. FEIGIN: Were there any McCarthy Era cases? MR. ROSENTHAL: Definitely. The most notorious of them all was a case called Peters against Hobby, and this involved Dr. Peters who was a consultant to the then Department of Health, Education & Welfare, and he had passed the security inquiry of an outfit within HEW. The Civil Service Commission had its own security operation, and it flunked Dr. Peters on grounds that were outrageous. Well, Peters took it to court, and it eventually ended up in the Supreme Court, and that case, as a number of others of its ilk, was within the purview of the Appellate Section for the drafting of the brief in the Supreme Court. I had told the Section Chief at the very outset that there were very few things that I was not prepared to work on as a matter of conscience, but that line of cases was one of them. Fortunately there was then a lawyer on the staff who relished working on cases like Peters v. Hobby, so he had no reluctance at all in taking on those assignments. Now the interesting thing about the Peters case was the Solicitor General at that time was Simon Sobeloff who had formerly been the Chief Judge of the Court of Appeals of Maryland, the highest court in Maryland. Soboloff informed the Attorney General that he would not sign the brief in support of what had been done to Dr. Peters. As a consequence, the brief that was filed in the Court bore the 115 signature of the Attorney General and, I think, that of the Assistant Attorney General Office of Legal Counsel, but the Solicitor General’s name was conspicuously absent. You can rest assured that that was something that was not lost on the Supreme Court justices. Well, Sobeloff paid a price for that independence. He was very anxious to get a seat on the District of Columbia Circuit. He was very close, I might say, to Judge Bazelon, who was then the Chief Judge of the court. The Eisenhower administration was very anxious to get rid of him, but there was no way that it was going to put him on the D.C. Circuit given the nature of the cases that come before that circuit, so what it did was dumped him on the Fourth Circuit. Being from Maryland, of course, that was an equally appropriate place to put him, so he had to settle for the Fourth Circuit, when he really wanted to be on the D.C. Circuit. MS. FEIGIN: Was there any problem in saying I won’t handle a certain kind of case? Was that acceptable? MR. ROSENTHAL: I don’t think there were many occasions in which anybody in the Civil Division Appellate Section ever requested not to be assigned a particular type of case. I’m certain that several of my colleagues in the section were very, very relieved when Ben Forman indicated not only a willingness, but I think a desire, to handle that kind of case. Now whether they had indicated to the Section Chief that they would not be willing to handle that kind of case, I don’t know. 116 MS. FEIGIN: What cases – there may be more than we can do today – but what were your appellate cases? We’ll get to your Supreme Court cases next time. Of your appellate cases, what stands out for you? MR. ROSENTHAL: It’s hard to say. I had a wide variety of experiences that led me to remember some of my arguments more than others. One that I particularly recall, not that this was a terribly significant case. It was a Federal Tort Claims Act case, again in the Fourth Circuit. What had happened in that case was a young man, a merchant seaman, his vessel had docked at some port in Alaska, where in order to get into town, you had to go through a military reservation, and he had gone through the reservation into this town and he was returning to his ship, again through the reservation, and he was carrying a package. He was stopped at the sentry gate and was asked what was in the package, and instead of disclosing that it was laundry, which it turned out to have been, he took off and ran into the reservation, and when he wouldn’t respond to a warning shot, he was shot and killed. His parents, I guess it was, brought a suit and lost in the District Court and took this appeal to the Fourth Circuit. Well the lawyer for the plaintiff/appellant made what I thought was the dreadful mistake of bringing his client, the mother of the deceased, to the oral argument. During my entire argument, in the background were sobs. My point, of course, was that this young man had brought this on himself by his reckless conduct, not stopping and disclosing to the sentry what was in 117 this package he had. I found that very disconcerting. But it’s very hard to say. My arguments obviously covered a very wide range of topics. The great attraction, from my standpoint, of Civil Appellate, was that the number of different issues that we dealt with was enormous. It covered virtually every area of civil litigation apart from tax or civil rights, or things that were assigned to the other more specialized Divisions. That was really the appeal of the Section. So it’s fairly hard right off hand to think of what, on the appellate level, really stood out. There were many very good experiences and there were many very frustrating ones, particularly when I encountered what I thought to be a very dense judge. I thought a judge was dense when he didn’t both see and agree with my position, needless to say [laughter]. The quality, I would have to say, of the Court of Appeals judges that I encountered over a twenty-year span, varied widely, trying to view them objectively. And I guess that is to be expected. Virtually all of these judges got on the courts of appeals because of political connections, and it is very understandable therefore, that they are going to be of varying quality. MS. FEIGIN: Who stands out at the top of the range? MR. ROSENTHAL: Well I would have to tell you that two of the Court of Appeals judges for whom I had the highest regard were the two judges that supposedly were the finalists when President Ford had a Supreme Court appointment, namely John Paul Stevens, who actually was appointed to the Supreme 118 Court, who was a Seventh Circuit judge at the time, and Arlen Adams, who was a judge on the Third Circuit. I appeared before both of them more than once. I might say before Stevens, in one of the most important cases I had and I lost, but I think I lost justifiably. I felt those two were outstanding. There were a number of other excellent judges. On the District of Columbia Circuit, I thought Judge Bazelon was first-rate and I thought Judge Washington was first-rate. I thought Judge Fahy was as well, although quite frankly I think he stayed on the court beyond the time when he probably should have retired. Needless to say I had the highest regard for my employer, Henry Edgerton. MS. FEIGIN: What made you say these are the outstanding judges? Was it the level of preparedness, the kinds of questions they asked? What was it that make them stand out in your mind? MR. ROSENTHAL: I thought that it was a combination of their level of preparation, their objectivity, their analytic skills being brought to bear on the issues at hand, and also I put into the mix the matter of courtesy. I have always thought that one of the cardinal sins that can be committed by one in an adjudicatory capacity is to be overbearing and rude because obviously the lawyers appearing before the judge cannot respond in kind. One story, I don’t know whether it’s apocryphal or not, involved actually the District of Columbia Circuit, although I don’t know what 119 judge it was, but this judge had supposedly given a lawyer an extremely hard time, not letting him get a word out without being all over him, and finally, so the story went, the lawyer said to him, “Well, Judge X, I’ll concede your vote if you’ll allow me to address my argument to your two colleagues.” Now again, that’s told as a true story. Whether it’s apocryphal or not, I really don’t know. But I think that’s a very important ingredient. One of my colleagues in the Appellate Section went out to deliver an argument in the Tenth Circuit before Judge Murrah and Judge Murrah said to her, “I see that you are here from Washington.” He added, “I have to tell you that I have yet to hear a single argument presented by a government lawyer coming from Washington that was worth a damn.” I never encountered that, but what I did encounter was a judge in the Fifth Circuit, his name was Ben Cameron from Mississippi, and the story went that Judge Cameron never decided a case in favor of the government unless it was either a criminal case or involved some AfricanAmerican being done in. He was an absolute horror. Well I had an argument before a panel in the Fifth Circuit on which Cameron was sitting, and we were the appellee and we were clearly right. It was a case in which there was little doubt that we were going to prevail. Well my opponent presented his topside argument, as appellant. As I stood up, Cameron left the room; he left the bench. I thought well maybe he has an 120 urgent call of nature [laughter]. In any case, the second that I sat down, and my opponent got up to deliver rebuttal, Judge Cameron reappeared. He was clearly delivering a message. MS. FEIGIN: I know one other thing that is really important to you is the crafting of words. You’re a master at it. And I know you value it. Among the judges before whom you appeared, are there any that you look back upon as being particular word craftsmen of note? MR. ROSENTHAL: I would say there’s one outstanding judge in that regard, and his opinions were a delight to read, and that was John R. Brown, who was on the Fifth Circuit; indeed for a number of years was the Chief Judge of the Fifth Circuit. One of the things I never knew, of course, was the extent to which these opinions were being written by the judge or being written by his or her law clerk. I did see with some of these judges a considerable difference in their writing style from one year to another [laughter] which led me suspect that they might be relying quite heavily on their law clerks to draft their opinions. MS. FEIGIN: Do you have any thoughts about that as a practice? MR. ROSENTHAL: I don’t have any problem with that. I think I do have a problem if the law clerks are deciding the cases, but if the judges want to rely on their clerks to draft their opinions, that does not give me heartburn. 121 MS. FEIGIN: Well why don’t we end on a note where you don’t have heartburn [laughter], and we will continue again next time. And thank you again for a fascinating session. MR. ROSENTHAL: Thank you. 122 ORAL HISTORY OF ALAN ROSENTHAL Fifth Interview – May 23, 2011 This interview is being conducted on behalf of the Oral History Project of the District of Columbia Circuit. The interviewee is Alan Rosenthal and the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in the King Farm subdivision in Rockville, Maryland, on Monday, May 23, 2011. This is the fifth interview. MS. FEIGIN: Good morning. MR. ROSENTHAL: Good morning, Judy. MS. FEIGIN: When we left off, you had had well over 200 appellate arguments, and I wanted to ask you, given the gamut of arguments, if ever you felt you were called upon to defend the indefensible. MR. ROSENTHAL: Yes, unfortunately, on several occasions that was necessary. Now, I have to say that the Department of Justice had control over what it argued, what it would pursue or defend in the courts, but it had to recognize that it had captive clients who could not go elsewhere, and that had to be taken into account. In addition, when the government won a case in the District Court, it was very difficult to persuade the agency involved to throw in the towel on the appellate level, to confess error, as the term goes. One case that I have in mind particularly originated in the District Court in New Hampshire, and it seems that the Coast Guard had come to the conclusion that a particular vessel was responsible for an oil spillage on a particular river in New Hampshire and had arrested the vessel and did 123 not release it until it had paid a very substantial amount of money. Well, the vessel owner sued in the District Court in New Hampshire claiming that it could not possibly have been responsible for the oil spillage. The case went to trial in the District Court, which for some reason, despite the fact that the evidence clearly indicated that the oil spillage could not have come from this vessel, found for the government. The vessel owner took an appeal, and in the Court of Appeals for the First Circuit in Boston, the vessel owner made a very persuasive case for that proposition. Well I got up and I said to the court, “The District Court’s finding in the government’s favor was not clearly erroneous,” whereupon the presiding judge, who was Bailey Aldridge, said, “Yes, Mr. Rosenthal, you’re quire right. The finding was not clearly erroneous, it was grossly erroneous.” [Laughter] And the argument went downhill from there. I think I can say that there were not too many cases where our position really bordered on the frivolous. There were a number of cases where I think we were probably on the losing side, or should have been on the losing side, but that case in the First Circuit is an example of one where we never should have defended the position, but the Coast Guard was adamant. After all, it had won the case in the District Court and so we had to go through the appeal. And I have to say that at that point I was an Assistant Chief of the section and therefore in a supervisory position, but I would not have allowed one of the junior lawyers to go up to Boston to 124 argue that case. I felt that if somebody had to take the beating, it should be a supervisor. MS. FEIGIN: How often do you think the oral argument makes a difference? MR. ROSENTHAL: I’d like to say in a lot of cases, but my guess is in a very small percentage of cases. I think in the vast majority of cases, the court has made up its mind before the argument, except if we’re talking about the Tenth Circuit, because as I think as I mentioned in the previous session, the Tenth Circuit does not – or didn’t then – read briefs in advance of argument, so in that circuit, it may well be that the oral argument played a significant role in the court reaching a decision. But my surmise is that in the circuits where the court is pretty well prepared in advance of argument that the argument doesn’t make that much difference. MS. FEIGIN: You mentioned last time that included in your 200+ arguments, there were 9 Supreme Court arguments. I’d like to discuss those with you. When did they start? MR. ROSENTHAL: The first one was in the fall of 1956 and the last one of the nine was in the fall of 1969, so they were all in a 13-year period. I might say that this was an era when the Solicitor General assigned oral arguments to lawyers in the appellate sections of the various Divisions, and that’s how I happened to get nine arguments in that relatively short period. Today it’s my impression that it’s very rare, if ever, that a lawyer in the Appellate Staff of the Civil Division will get an argument; that the arguments seem to be 125 all presented by – or virtually all presented by – lawyers on the Solicitor General’s own staff. MS. FEIGIN: Can you tell us what it’s like to argue before the Supreme Court? How you prepared. MR. ROSENTHAL: Preparation involved spending a good deal of time, obviously familiarizing myself with all aspects of the case and then trying to conjure up all of the questions that might possibly be asked by the Justices. Then I would go through a moot court with usually five or six of my peers participating, and they would throw at me every question that they thought might possibly be asked of me. It happened that at I think all of the nine arguments I got at least one question, and sometimes several, that neither I nor my peers who participated in the moot court had thought of. For me it was a pretty nerve-wracking experience getting up before those nine Justices. I would have to say that I don’t think it was much less nervewracking on number nine than it was on number one [laughter]. In each instance, it was an interesting experience. MS. FEIGIN: Can you give us some flavor of it? Tell us about some of the Justices and how it was to appear before them. MR. ROSENTHAL: My recollection is that Justice Frankfurter, before whom I appeared several times, had the habit if he didn’t like the answer that he received from a particular question and wasn’t too sympathetic with that party’s case to begin with, he would turn his chair around and give counsel the 126 benefit of his back, which I thought was rather rude. I saw that happen on more than one occasion. MS. FEIGIN: For the remainder of the argument? MR. ROSENTHAL: No, no. He was just displaying his irritation, displeasure, whatever, and then he would flip his chair around again. He did this on more than one occasion. I found most of the Justices that I appeared before courteous. I found the questions that they asked for the most part were pertinent. Some of them, at least the ones obviously that I had not anticipated, I felt were somewhat afield [laughter]. If I recall correctly, I think Justice Minton was still sitting at the time of my first case; he seemed to be perplexed. As I think back upon it, there was nothing that I found remarkable about the Justices and the questions that they asked apart from the little trick that Justice Frankfurter played. MS. FEIGIN: Did you appear before Justice Fortas? MR. ROSENTHAL: Oh yes. Justice Fortas, I think, though my memory on this is a bit dim, actually might have written the opinion in our favor in one of the six of the nine cases in which the government prevailed. MS. FEIGIN: When you argued, you argued in full morning coat? MR. ROSENTHAL: Yes. That was expected of government lawyers. There was a cynical comment made by somebody that the government was expected to wear morning coats so that the Justices would have in mind which side was the government [laughter]. Very few of the lawyers that appeared for private 127 clients appeared in morning coats. I only know of one who did that. I came in full regalia. Now there was an interesting story that preceded my arrival at the Justice Department by a year. There was a lawyer in the Solicitor General’s Office who was making his final appearance in the Supreme Court as a member of the Solicitor General’s staff, and he thought that this business of morning coats was a bunch of nonsense, so without telling anybody he was going to do this, he appeared in a very conservative dark business suit. The following day, so I’m told, the Solicitor General received a note from Mr. Justice Burton in which Justice Burton called attention to what he characterized as a deplorable breach of tradition [laughter] and requested, indeed I would say demanded, that the Solicitor General see to it that there was not a repetition of that very unfortunate incident. Certainly in my time there, to my knowledge, there was not a repetition of the deplorable breach of tradition. MS. FEIGIN: Did you own a morning coat? MR. ROSENTHAL: No. I rented them. In those days, they could be rented for $8 [laughter]. I might say, however, that I was aggrieved because up until I think the time of my last argument the General Accounting Office took the position that these were not reimbursable expenses, and this was because, after all, we didn’t have to argue in the Supreme Court [laughter]. We were doing it 128 essentially as the GAO saw it, as a volunteer. The $8, that was a fair sum in those days, but not that great a sum today. MS. FEIGIN: In looking over your arguments, I believe that a couple of them you argued over two days. Why was that? MR. ROSENTHAL: That was because in those days, it’s changed now, the Supreme Court sat from noon to 4:00, and if at the stroke of 4:00 the argument had not been completed in a particular day, the court adjourned and the argument was resumed the following morning. Indeed, the argument in Brown v. Bd. of Education, which we’ll talk about later, on the question of relief in 1955, if I recall correctly, that went over three days. MS. FEIGIN: My understanding now is when the time is up, it is over. It wasn’t as strict then? MR. ROSENTHAL: The point was they would start an argument, let’s say at 3:30, and at 4:00, wherever the argument was at that point, the court cut it off and it resumed the following noon. MS. FEIGIN: I’m not sure they resume now. Perhaps they do. So that happened to you twice? MR. ROSENTHAL: I think so. MS. FEIGIN: Let’s talk about Brown. That was a huge case and you were involved with it early on. Tell us how that came to be. MR. ROSENTHAL: I stress at the outset, I did not argue Brown; it was not one of the nine. I came to the Department of Justice in the Civil Division’s Appellate 129 Section, as I previously indicated, in the fall of 1952, October 1 of that year to be specific. I had been there approximately 18 months. We’re now in the spring of 1954. On May 17 of that year, the Supreme Court rendered its decision holding that public school segregation was unconstitutional. That was Brown v. Bd. of Education and a number of combined cases. At that time, the Court set the case down for further argument on the question of relief; in other words, on the question of what remedy should it provide based upon its conclusion that school segregation was unconstitutional. Within days of that decision on May 17, the Assistant Attorney General in the Civil Division received a phone call from the Solicitor General himself requesting the assignment of one of the Civil Division appellate lawyers to the Solicitor General’s Office for the purpose of assisting in the preparation of the government’s brief to be filed on the question of what relief should be provided. The government, of course, was a participant as a friend of the Court. It was not a party directly to the proceeding. For some reason I was tapped, and I was directed to report to the Solicitor General, then Simon Sobeloff, to receive my marching orders. I was informed by Judge Sobeloff that I would be working with one of his staff members, Phil Elman, and that it would be our joint responsibility to come up with a draft of a brief for filing in the fall on behalf of the United States on the question of relief. My immediate assignment was to study the history of school 130 segregation in states where there had been previous segregation but that segregation had been eliminated. And this included, in particular, areas of the states of New Jersey and Indiana. In New Jersey, the schools were segregated up until 1947 from somewhat north of Camden down to, I guess, it’s Cape May, at the bottom of the state. Indeed, that portion of the state was known at the time as the Georgia of the North. In or about 1947, as I recall, the New Jersey constitution was amended to specifically outlaw segregation in the state’s public schools, and the school systems that were then segregated were informed that they had a relatively brief period of time to desegregate or else they were going to lose all state aid. So needless to say, they did desegregate, and there was a good deal of written material respecting how this was accomplished, which I was called upon to study. In addition, the schools in some southern portions of Indiana were segregated up to a particular time, I don’t recall when, and then were desegregated and there, too, there was a good deal of historical material involving how they accomplished this. So I spent a good deal of time in researching the literature pertaining to the desegregation of the schools in those two states. In addition, Baltimore and the District of Columbia decided to desegregate their school systems effective the fall of 1954 without waiting for the Supreme Court’s determination as to the remedy that should be accorded the plaintiffs. So I spent a fair amount of time over the course of the summer in both Baltimore and in the administrative 131 offices of the D.C. public school system seeing how they were planning to move forward with the desegregation of their schools as of the end of that August. So that was the way I spent a good deal of the summer, in that kind of research. Well around the first of September, I got down to preparing the first draft of the brief; this was obviously with a good deal of input from Phil Elman. Not at that point anything particularly from the Solicitor General or the Attorney General or the Assistant Attorney General and head of the Office of Legal Counsel, all of whom became involved in this. In any event, I came up with a draft. Elman went over the draft, and then it was submitted for examination by Attorney General, Solicitor General, and Assistant Attorney General, Office of Legal Counsel. When this was all completed, the brief was personally carried over to the White House by Solicitor General Simon Sobeloff and delivered to Eisenhower, who was then president of the United States. The following day, Sobeloff received a phone call from the White House asking that he come and pick the brief up, which as I recall he did personally. He would not send a messenger [laughter]. In any case, the brief comes back and there are all kinds of pencil comments on it, written in hand by Eisenhower. Well we had taken a fairly tough position in the draft brief. Eisenhower would have had it considerably weakened. His comments were to the effect that the Court had to take into consideration 132 the fact that for over a half a century, since the Supreme Court’s decision in Plessy v. Ferguson, the southern states had acted in the good faith belief that school segregation was constitutional and that was a consideration that had to be taken into account in fashioning the remedy. Well, giving the Attorney General, who was then Herbert Brownell, a good deal of credit, the Eisenhower comments were ignored. And the brief that was filed took an even stronger position than the draft that had been submitted to Eisenhower. I’m sure Eisenhower never subsequently had occasion to look at the brief, so I’m equally confident that he did not know that what he had to say was essentially ignored. The Supreme Court, when it came down in its decision on the question of relief the following spring, used the now famous “with all deliberate speed” dictum. The dictum that we had in our brief, or the suggestion we had in our brief; we didn’t use those words but we made it abundantly clear that the government was not advocating giving the southern states a good deal of slack because they had for 50 or more years operated in the good faith belief that segregation was constitutional. There’s one aspect of the oral argument that took place, again in the spring of 1955, that has stuck in my mind to this day. MS. FEIGIN: You were there? MR. ROSENTHAL: I was there. Again, I was not up there arguing. Solicitor General Sobeloff argued for the United States. The plaintiffs in this case included one or 133 more children who were in the Prince Edward County’s school system in southern Virginia, and so that school system was a defendant, and it was represented by the then Attorney General of the state of Virginia, a gentleman named Lindsay Almond. He got up and said to the Court, “I would like to present you with some statistics.” And he presented statistics on the number of illegitimate births that had taken place in the Commonwealth of Virginia in a particular year and the percentage of those illegitimate births that were attributable to African-Americans, and it was a high percentage. And then he set forth statistics on the number of recorded venereal diseases in the Commonwealth of Virginia, and the percentage of those venereal diseases that were attributable to AfricanAmericans, and that too was a relatively high percentage, and he said to the Court, “Now you understand why the white parents in my state will not stand still for having their children go to school with Negroes.” The Court simply listened to this, not a word from any of the Justices. That is the absolutely only thing that more than a half a century after that oral argument that I recall. MS. FEIGIN: Wow. Well, one thing that strikes me is you mentioned that the Attorney General was involved in the brief. Was that unusual? MR. ROSENTHAL: Very unusual. The Attorney General rarely signed briefs filed in the Supreme Court. The senior official signing the brief was almost invariably the Solicitor General, but this was, of course, a reflection of the 134 importance that the Attorney General and the administration attached to this particular case. There are five signatures: Herbert Brownell, Attorney General; Simon Sobeloff, Solicitor General; J. Lee Rankin, Assistant Attorney General, Office of the Legal Counsel, and then Philip Elman and Alan Rosenthal. MS. FEIGIN: How do you look back on your involvement on this case? MR. ROSENTHAL: I look back on it in this way: This is the only thing that I have done in a legal career that has now extended sixty years, or close to it, that has sort of been attached to me. A lot of people know me or know of my legal career only in that, “Yes, he had been involved in Brown v. Bd. of Education.” This was, from my standpoint, certainly an important part of my career, but certainly, in my perhaps immodest view, not the only thing that I have done of any significance. MS. FEIGIN: That is certainly a fair statement. Was it apparent at the time how important this case would be? MR. ROSENTHAL: Absolutely. There was no doubt in my mind that it was going to be enormously important in its effect. I had thought in my naiveté that desegregation of the public schools in the south would be accomplished much more rapidly than turned out to be the case, but it certainly has had an enormous impact on the American civilization, more so I would say than any other decision that I can think of offhand in the 20th century. 135 MS. FEIGIN: You mentioned earlier that at some point you became Assistant Chief in the Appellate Section. MR. ROSENTHAL: I became one of two, and this was in February, I think, of 1958, I was unofficially designated Assistant Chief and became one officially I think later that year. And this was because basically of attrition. A number of the lawyers that were more senior to me left the section and I suddenly obtained a relatively senior status in the section, and I became an Assistant Chief. I don’t think it was because of any particular remarkable attainments, accomplishments up to that time. MS. FEIGIN: As Assistant Chief, your responsibilities changed? MR. ROSENTHAL: Yes. I no longer prepared the initial drafts of the briefs or the initial drafts of the memoranda to the Solicitor General recommending for or against appeal or seeking Supreme Court review. They were drafted in the first instance by the line lawyers and I then would review the briefs or memoranda before they were filed. In a number of cases, I revised them to some extent. MS. FEIGIN: Your manner of review was, I believe, with the line attorney, right? You reviewed it in the presence of the line attorney. It wasn’t that you reviewed it and handed it back? MR. ROSENTHAL: No, but I would go over it without the line attorney being present. Then after I went over the brief, I would meet with him or her and go over the brief in some detail. 136 MS. FEIGIN: How did you manage to have so many arguments after you no longer were writing briefs? MR. ROSENTHAL: Well we had a great number of cases, and the review officer had the [laughter] ability to choose which ones he would argue himself and which ones he would pass on to the line lawyer. But I would have to say that despite the fact that I obviously took a number of cases myself, I don’t think any of the line lawyers were particularly aggrieved. They seemed all to have enough arguments themselves. There is actually a funny story about that, if I may digress. The Appellate Section obtained from the lawyers it hired a three-year commitment. We indicated that we expected them to remain for at least three years. Well, in the case of one lawyer who shall remain nameless, he came to us after one year and said he was thinking about departing. I reminded him of the three-year commitment. But not that long thereafter I had a phone call from Abner Mikva, who was subsequently both a congressman and a judge on the District of Columbia Circuit. At that time, he was a partner in a large Chicago law firm, and he asked me about this gentleman. I said, “Well, if I were called upon to consider him for employment elsewhere, I would turn him down in a minute.” And there was a moment of silence. Then he said, “Would you mind giving me the reason?” And I said, “Not at all. This gentleman has been with us a year, he made a commitment to stay for three years, and I believe that a lawyer 137 is no better than his word, and this gentleman’s word doesn’t seem to be very good.” “Well thank you,” said Mr. Mikva, “but would you mind telling me what you thought of the quality of his work?” I said, “The quality of his work was excellent. He came to us number one in his class at the University of Chicago Law School, we expected very high things of him and he made good.” I said, “Now Mr. Mikva, I have a question for you. What reason has he assigned for wanting to leave?” He said, “He doesn’t feel he’s getting enough responsibility.” I said, “Not getting enough responsibility. Well, Mr. Mikva, he has been here a year, he’s already had one appellate argument in a federal Court of Appeals, I think he’s got four or five other cases assigned to him where he’s very likely to get the oral argument in at least one or two of them. Now tell me, if he goes with your firm, how many court appearances is he likely to get in, shall we say, the next five years?” Another pause [laughter]. “Well I get your point.” Well the fact is that the following day this gentleman comes in and says he’s leaving us for Mikva’s firm. I learned later on that he only stayed there for about two years. I did obviously take a number of the arguments in cases in which I did not prepare the initial draft, but still, we had an enormous number of cases, so the line lawyers were certainly given their fair share. MS. FEIGIN: I noticed when you talked about the reviewers, you used the male gender, and yet I do know there came a time when women came to the section, 138 although you told us Mr. Sweeny had said “No more.” Can you tell us a little bit about that? MR. ROSENTHAL: Yes. The first woman lawyer that came to the section after I arrived was Sandy Slade, a Yale Law graduate who had been in my wife’s class at Yale, and the Section Chief at that point who hired her was Sam Slade. Within two or three years, Sam and Sandy were married, at which point the Assistant Attorney General insisted that Sandy be transferred out of the Appellate Section. In that Assistant Attorney General’s view, there should not be someone working in a section in the Division under the supervision of his or her spouse. So Sandy got transferred to the Court of Claims Section. Well subsequently, a lawyer in the Court of Claims Section named Katherine Baldwin was transferred to the Appellate Section, and subsequent to that, this was after I left, she became the first woman Assistant Section Chief in Civil Appellate. So there were women eventually. The fact that there were no women prior to Sandy Slade in my time there was again due to Paul Sweeney. Curiously enough, after Paul Sweeney left, there was another woman who was hired by Civil Appellate and curiously her name was Sweeney and she happened to be Paul’s daughter [laughter]. MS. FEIGIN: Speaking of women being hired, could you tell us about women in the Solicitor General’s Office? 139 MR. ROSENTHAL: In the Solicitor General’s Office, during most of my time in the Department, indeed up to the summer of 1972 when I was getting ready to leave, there had never been a woman Assistant to the Solicitor General. That was the title that these folks had. And I learned that lo and behold a woman had just been hired. Her name was Harriet Shapiro, and Harriet happened to have been a college classmate of my wife at Wellesley, but her real claim to distinction was she was editor-in-chief of The Columbia Law Review. I thought the first woman editor-in-chief, but it turns out that she was the second one. In any event, I thought this was great, and I called Danny Friedman who was then the First Assistant in the Solicitor General’s Office to compliment him on having broken the gender barrier with such a competent woman. “What gender barrier?” was Dan’s response [laughter]. I said, “Well, Dan, perhaps I’m mistaken, but I don’t recall there having been a woman in your office during the twenty years that I have been here at Justice.” “Well that’s true, but that’s because we’ve never had a qualified one apply” [laughter]. I thought that was interesting. MS. FEIGIN: It is indeed. You talked about the Attorney General signing on to the Brown brief which leads me to ask you, in all those years, did you ever feel that political considerations were brought to bear on how you handled a case? 140 MR. ROSENTHAL: I got, believe it or not, to two months before I left the Department, and actually a little under two months, before I was ever asked to do something or to refrain from doing something, for a partisan political reason. Now this was in part because I was in the Civil Division, which basically did not deal with cases that were of partisan political significance. I’m sure that lawyers in the Antitrust Division or the Civil Rights Division could not have made a similar claim, but I got almost to the end of August of that year, 1972, before being asked to do something for a partisan political reason. MS. FEIGIN: Can you tell us about it? MR. ROSENTHAL: I thought you were going to ask [laughter]. I was at my desk, this was very late in August, and I received a phone call from John Dean, who identified himself as being a counsel or something like that at the White House. I had never previously heard of John Dean. I heard a lot about him later. MS. FEIGIN: We should say why for people down the road. MR. ROSENTHAL: He was heavily involved in Watergate business later in that year. Dean said that he understood that I was handling a case that had been recently decided by the District of Columbia Circuit involving a challenge to some milk marketing order prices that the Secretary of Agriculture had set. I said, “Yes, the District of Columbia Circuit had just decided that case.” “Well,” he said, “I understand that the court had reversed the decision of 141 the District Court that had granted summary judgment in favor of the Secretary and had remanded the case to the District Court for a trial.” I said, “That’s right.” He said, “Well, we don’t want that trial to take place before the election.” This was 1972. Nixon was up that November for reelection. “Therefore,” he said, “I want you to file a petition for rehearing, preferably en banc, so that way the case won’t get back to the District Court until late in the fall and there will be no decision in the District Court, probably no trial, before the election.” I said, “Mr. Dean, as far as I’m concerned, and I think I speak for the entire section, the Court of Appeals decision is clearly correct. There is no basis upon which we can file any petition for rehearing.” “That’s not the point,” he said. “The point is we don’t want a trial in this case, particularly not a decision, before the election.” I said, “I’m sorry, Mr. Dean, but in order to file a petition for rehearing, you have to have a good-faith belief that one is justified, and indeed you have to certify in the petition for rehearing, that it is not being filed for purposes of delay.” “But,” I said, “you did mention rehearing en banc, and rehearing en banc cannot be sought unless authorized by the Solicitor General, so I’ll pass your request on to his office.” So I called the same Dan Friedman, the First Assistant, and passed on to him what Dean was requesting, and he said Dean Griswold, who was then the Solicitor General, was up at his summer place, somewhere in New England on vacation; he was not planning to get back 142 until Labor Day, which was probably then a week or so off, and he, Dan, thought it could wait until Dean Griswold came back. Well the upshot of it was Griswold told Dean to fly a kite. No petition for rehearing en banc was filed, and the case went back to the District Court as soon as the mandate came down which was probably sometime in September. The footnote to this story is that a year or so later, by this time I was in the Atomic Energy Commission, Griswold was summarily fired, and there was a reception for him in the Great Hall in the Department of Justice, and I came down from my AEC office to attend the reception. Griswold took me aside at one point and told me that while he couldn’t be absolutely certain about it, it was his assumption that it was his turning John Dean down that brought about his dismissal as SG. MS. FEIGIN: Speaking of figures of stature in the Department, we talked last time about your dealing with Warren Burger. Were there other Assistant Attorneys General of note who should be mentioned in this history? MR. ROSENTHAL: Well I thought that the best Assistant Attorney General in my twenty years there was John Douglas, who was appointed by Jack Kennedy and was the son of Senator Paul Douglas of Illinois. John Douglas came to the Department as Assistant AG from Covington & Burling, which is where he was a partner. I thought some of the other ones were good, but not as good as John Douglas. There were one or two of them that I thought didn’t measure up to what I thought would have been the standard. 143 I would say this, that my twenty years in Justice covered both Republican and Democratic administrations. I came in at the tail end of a Democratic administration, there was eight years of Eisenhower, then there was eight years of Kennedy/Johnson, and then there was Nixon, and in my view, the quality of Assistant AGs Civil Division and the quality of the Solicitors General during that period did not depend upon party affiliation. I saw good Democratic Assistant AGs, good Democratic Solicitors General, and I saw poor ones of both of those political parties. MS. FEIGIN: When we talk about Assistant AGs, this may have been slightly after your time but perhaps you can shed some insight on it. There came a time when I believe it was Barbara Babcock as Assistant Attorney General had plans for the Appellate Section, and I wonder if you could talk about that. MR. ROSENTHAL: I might say I knew Barbara Babcock because she was a law clerk for the same judge that I clerked for, some years after I was there, so I had encountered her at reunions of the judge and his clerks. When Barbara Babcock decided – this was, it must have been in the early stages of the Carter administration, because she was a Democrat – to reorganize the Division, one of the things that she planned to do was to eliminate the Appellate Section. Henceforth there would be no strictly appellate lawyers. The appeals would be handled by the Trial Section lawyers who had been responsible for the cases on the trial level. Well, the one thing that I had been persuaded from day one is that 144 just as there’s a distinction in the medical profession between neurosurgeons and dermatologists, there is a distinction in the legal profession between the conduct of appellate litigation and the conduct of trial litigation. Indeed, I might say I think I would have been one of the worst trial lawyers possible even though I thought I was at least respectable on the appellate level. This belief was shared by a number of other alums of Civil Appellate and we all embarked upon a letter-writing campaign to the Attorney General, then Griffin Bell, in which we said we thought this was the height of absurdity. Well, as it happened, Bell also got a similar message from the then Chief Judge of the Fifth Circuit with whom he had sat before he had become Attorney General. Before Bell came to the Attorney General position, he had been a judge on the Fifth Circuit. The upshot of it was that the Attorney General told Barbara Babcock “no way,” that there still was going to be a separate appellate operation. Well, Ms. Babcock apparently was very unhappy about that result and also felt that the alums, including yours truly, had no standing to be raising objections to her plan, and maybe she was right about that. But in any case, the Appellate Section became the Appellate Staff. Its name was changed, but it remained, and still remains, as a separate entity within the Civil Division responsible for the conduct of appellate litigation. There’s a story going around, and I don’t know whether this is true 145 or not, that it cost Barbara Babcock a seat on the District of Columbia Circuit, a seat that was instead awarded to Patricia Wald. So the story goes, the Attorney General was very irritated at being blindsided by all of those letters. It appears that Babcock had mentioned her plan to eliminate the Appellate Staff to somebody in the Attorney General’s Office, but the word apparently had not gotten to Griffin Bell. Now again, that’s just hearsay. I don’t know whether that, in fact, occurred, but it certainly is possible. MS. FEIGIN: Did you get a lot of powerful people to write letters? MR. ROSENTHAL: Basically these were simply alumni of the section. None of us I think would have been described as that powerful at the time, but I’m sure that when Griffin Bell got the letter from his former colleague, the Chief Judge of the Fifth Circuit, he paid a lot of attention to that, probably more so than to our letters. I’m sure he also, I mean, after all, he had been an appellate judge, that is Bell, and I’m sure that he appreciated himself that trial lawyers do not necessarily make good appellate advocates. And one of the things in that regard is, at least my experience was, that it was very difficult for the lawyers in the Civil Division’s Trial Sections to really look at a case objectively which they’d lost. It’s always the view, “What an injustice, let’s go forward.” The Appellate Section lawyers, of course, who don’t have the same stake in a particular case, can look at it more objectively. 146 MS. FEIGIN: When you modestly say you wouldn’t have made a great trial lawyer – I suspect you would have – but when you talk about different skill sets, how would you define the skill sets that you need as an appellate attorney as opposed to a trial attorney. MR. ROSENTHAL: The trial attorney, if as is very frequently the case – less so probably in government litigation – is confronting a jury, has to be an actor, and I think most of the successful trial lawyers are actors of the first rank. That’s the last thing you want to be before an appellate tribunal. They don’t want to hear the kind of emotional presentation that is commonly presented to jurors. Also, obviously, there is a much, I think, greater need for the kind of analysis that’s involved in presenting appellate arguments than is possessed, I think, by a lot of trial lawyers. MS. FEIGIN: You mentioned that you ultimately left to go to the Atomic Energy Commission, but before we get to that, which I think we’ll discuss in our next session, during the twenty years, were there times when you considered leaving the Department? MR. ROSENTHAL: Yes, toward the end. After about the 17th year arrived, I thought at that point that maybe the time had come to look at some other possibilities. At about that point, I was recommended – this would have been I guess more than three years, this was about 1967, it was still in a Democratic administration – I was recommended by a lawyer who had previously been in the section to the then head of the Equal Employment Opportunity 147 Commission, who was Clifford Alexander at that time. I was recommended to him for the position of General Counsel, and I went up and talked to him, but I decided that that office was much too political for my taste, so I withdrew my application. I don’t know whether I would have gotten the job or not. I was also considering a position that had opened in the Congressional Legislative Reference Service – I don’t know its precise name – at the Library of Congress. This is the office that does all the research on a wide variety of subjects for the Congress, and there was an opening as the head of the office that dealt with legal issues, I can’t remember what the title was. Well I went up and spoke to the senior man on board at the time and learned that a good deal of what that office seemed to be doing was research papers for the children of members of Congress [laughter]. MS. FEIGIN: Really? MR. ROSENTHAL: Yes. The congressmen would request a particular document, a particular piece of research, and there was no way of knowing whether this was something that the congressman or congresswoman needed in the dispatch of his or her duties. Obviously, the congressmen were not supposed to be using that office for personal purposes, but that sort of turned me off. There were other things I explored, but the AEC, we’ll talk about next session, but that was the first one that came up that I decided was worth my leaving the Department. 148 MS. FEIGIN: Had you ever argued a case on behalf of the AEC while you were at the Department? MR. ROSENTHAL: No. This was a curious thing about that, I think of all of the departments and agencies that were represented by Civil, and that was an enormous number, I think at one time or another during my time at Justice I represented virtually every one of them other than the AEC [laughter]. But that might have been a good thing because I was going into completely new territory. MS. FEIGIN: Before we leave DOJ, is there anything else you want to add about that? MR. ROSENTHAL: I wanted to mention one thing about my first Supreme Court argument. It was in a case called United States v. Bergh, and this was in the fall of 1956, and the issue was whether blue-collar government workers were entitled to double pay for holidays that they worked in World War II. Now for the white-collar workers, there was no question. They didn’t get extra pay for working on government holidays during a war, but these blue-collar workers were claiming that by reason of a particular legislative resolution, they were entitled to this extra holiday pay for the days they worked during World War II. Well they persuaded the Court of Claims that their claim was meritorious, and of course, this was a test case involving just Mr. Bergh and perhaps a couple of others. We filed a petition for certiorari in which we represented that there was $750 million involved in this case. This was the General Accounting 149 Office’s estimate. Now that, of course, would have been the case only if every possible claimant was still alive and filed a claim. But that is what we said. $750 million. We represented that as being one of the reasons why the court should take the case. In the brief in opposition, the lawyer for these former employees didn’t challenge that figure at all. What he said was simply, “It doesn’t make any difference how much money is involved, the Court of Claims decision is clearly right and therefore there is no reason for the Court to take the case.” Well the Supreme Court did take the case, and by a vote, I think it was of 6 to 3, reversed the Court of Claims decision. In those days, The Washington Post had a Federal Diary column dealing with government employee issues, written by a guy named Jerry Klutz. Two or three days after the Court’s decision comes down, Klutz’s column quotes the lawyer for Mr. Bergh as saying, “The only reason that the government won that case is that it lied to the Supreme Court as to the amount that was involved.” I was, needless to say, rather displeased at that [laughter] and I sent a note to Mr. Klutz in which I called attention to the fact that the lawyer had not challenged that figure in his brief in opposition, and Klutz, of course, didn’t respond either by note to me or in his column. The other cases there was nothing particularly remarkable about them. They covered a very wide range of issues. They came from a wide 150 range of different government agencies and departments. This was understandable given the range of the Civil Division’s operations. MS. FEIGIN: Thank you again. When we pick up next time, we’ll start with the next phase of your career. MR. ROSENTHAL: Very good. 151 ORAL HISTORY OF ALAN ROSENTHAL Sixth Interview – June 6, 2011 This interview was conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is Alan Rosenthal and the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in the King Farm subdivision in Rockville, Maryland, on Monday, June 6, 2011. This is the sixth interview. MS. FEIGIN: Good morning. MR. ROSENTHAL: Good morning, Judy. MS. FEIGIN: So, Alan, when we left off, you were getting ready to leave DOJ, just about to, and I wonder if you have any final thoughts about that part of your career. MR. ROSENTHAL: Yes, I have a few. First, as I think I might have previously mentioned, when I came to the Appellate Section, or as it was then known the Supreme Court Section, in the fall of 1952, there were a total of twelve members in that section, myself included. MS. FEIGIN: The top people included as well? MR. ROSENTHAL: Absolutely. The Section Chief, the Assistant Section Chief, and there were ten Indians, myself being the most junior one. When I left, there were approximately twenty-two. Then, so I’m informed, the staff has been steadily increased since then, and the total number currently is around sixty. In other words, five times the number in 1952. At the same 152 time, so I’m informed, these days the section is not able to handle nearly the percentage of cases in the courts of appeals that were handled within the section in the twenty years that I was there. Stated otherwise, there are a large number of cases that in my time would have been handled on appeal by section lawyers that now have to be farmed out to the U.S. Attorneys, and what that indicates is the enormous proliferation of litigation in the federal courts of appeals. So that I think is one interesting factor. A second interesting factor is that when I left the Appellate Section in 1972, there remained only one of the eleven others who had been there when I arrived. In short, except for Morton Hollander, who was the Chief of the section at the time I left, everyone else had gone. Now this is in sharp contrast to the situation today. I’ve been gone from Civil Appellate for the better part of 39 years, and believe it or not, there are I think five or six of the lawyers that were in the section when I departed who are still there. MS. FEIGIN: Do you have any theory as to why that would be the case now as opposed to –– MR. ROSENTHAL: To the contrary, what surprises me is that for me at least the years that I was in the section were years that were much more pleasant than the working situation is in the section at present. I noted I think at the end of the last session that I was never called upon during my twenty years there, 153 up until my encounter with John Dean a month or two before I left, with a request that I take or refrain from taking action for partisan political reasons. Today, in the Civil Division, there are a number of political deputies to the Assistant Attorney General in charge of the Division, and indeed, the Appellate Staff, as what used to be called the Appellate Section is now known, has its own political deputy. I have to think that that means that there’s much more of a political overtone, if I may put it that way, with regard to the Civil Division’s activities than was the case during my twenty years there. MS. FEIGIN: Do you know when this change occurred? MR. ROSENTHAL: I do not know precisely. Obviously it was after I left, and my understanding, but it might not be correct, is that it was within the last 10 to 15 years. I think there were political deputies in the Clinton administration as well as in the second George Bush’s administration, and they continue in the now-Obama administration. So that’s something I frankly state I would not have liked. I would not have liked to have worked in that section with a political deputy looking over my shoulder. And yet, as I say, there’s this group of lawyers that have remained there for more than 38 years, and what was of concern to me apparently is not of concern to them, or is not of sufficient concern that they have felt the need to seek other employment. So basically I think that’s it. I would only add that I think that the most satisfying aspect of my twenty years at DOJ was 154 the high quality of the people with whom I was associated. From top to bottom, they were a first-class group, and that included, I might say, you, Judy, who came in in the very late stages of my time there. MS. FEIGIN: Thank you. MR. ROSENTHAL: It was a very, very solid crew, and it was a great pleasure to have worked with them. I think that we can all agree that in any work environment, collegial work environment, it’s extremely important how good and how decent the people are with whom you are working, and all the way through the twenty years, they were a great group. So I think with that, I will conclude my twenty years at the Department of Justice and move on. MS. FEIGIN: Well you did move on, and you went to what was then known, I believe, as the Atomic Energy Commission, and I’m wondering how it happened that you went there, especially in light of the fact that you had never done a case with them. MR. ROSENTHAL: That’s right [laughter]. That was one of the very few government agencies with which I had zero contact during my Department of Justice years. I was sitting at my desk at DOJ in June of 1972, when my secretary informed me that there was a Mr. X – I don’t recall now his name – on the telephone, and he introduced himself as the legal assistant to Atomic Energy Commissioner William Doub, and he stated that Mr. Doub would like to have an audience with me. I said, “Well, would you mind telling me what he wants to talk to me about?” “I think I will leave that to the 155 Commissioner,” and he said, “while the Commission is basically housed in Germantown, it does have an office at 1717 H Street, Northwest, in the District, and he would appreciate it if you would come up to that office to meet with him.” Well needless to say, I agreed. Also needless to say, I was enormously curious to see what he might possibly have in mind. I turned up at the appointed hour at 1717 H Street, Northwest, and the Commissioner informed me that I was under consideration for the position of Chairman of the Atomic Safety and Licensing Appeal Panel of the AEC, and he was interested in knowing whether I wished to be further considered. Well, you can rest assured this was a bolt out of the blue, again recognizing my absolute lack of prior contact with this particular agency. Mr. Doub went on to explain that I had been heavily recommended for this position by a lawyer named Anthony Roisman who had been involved in a fair amount of AEC litigation, and in whom Mr. Doub had a great deal of confidence. Well, I had had no professional contact with Tony Roisman, but it so happened that his then wife Florence had been on the staff of the Appellate Section of the Civil Division, and I had had a good deal of professional contact with her, and a certain amount of social contact with Tony as well, and I can only assume that Florence had recommended me to her husband who in turn had given my name to Commissioner Doub. The AEC operated on a principle that assigned specific areas of 156 responsibility to particular commissioners, and the responsibility for obtaining a chairman for this appeal panel had been put at the doorstep of Commissioner Doub. Well, obviously, I was interested in getting a lot of further details as to what this involved, and at the end of the session I asked Doub if I could have a week to think about whether I wanted to be a serious candidate, and after giving it that week’s additional thought, I called him up and informed him that, yes, I would be willing to be a candidate for the position. Well a week or two passed and I heard nothing, and then I received a phone call from him in which he asked me to go to Germantown – again, which was the headquarters of the Atomic Energy Commission – to meet with the then chairman James Schlesinger, who at different times occupied other positions, including Secretary of Defense, and James Ramey. Ramey was another lawyer-commissioner and had been on the AEC for many, many years. They very kindly sent a car to pick me up at the Department of Justice, and I was driven out to Germantown, the AEC headquarters, and I first met with Jim Ramey who seemed a little chilly, I must say, and then was ushered into the office of Chairman Schlesinger. Schlesinger said to me, “What are you doing here?” [laughter] And I said, “Well, Mr. Chairman, Commissioner Doub had suggested that I meet with you.” “Well,” said Schlesinger, “I don’t know why my time is being taken up with this meeting. It’s my understanding you’ve already been chosen.” 157 [Laughter] Well that was the first that I had heard of that, but in any case, my session with Schlesinger came to an almost immediate end, and I was returned to the Department of Justice by the AEC driver, whereupon I called Doub and inquired as to just where did the matter stand. He laughed and said, “Well, the fact of it is that you’re the prime candidate, but,” he said, “I think the chairman may have been a little premature in announcing that you were definitely it.” Well, I waited a few weeks and heard nothing, and then Helen and I went on vacation at the beginning of August to Capon Springs, West Virginia, where we spend a week every summer for God knows how many years at a resort there. I had been there two days of the week when I received a phone call from Doub that indeed I had been selected, and for the record, did I accept the position, and I said, “Yes, I did.” There’s an interesting footnote to that. My appointment was, of course, subject to a security clearance. Whatever clearance I had received coming into the Department of Justice, which as you recall had that problem associated with it, was not good enough. I needed what’s characterized as a Q clearance. So before coming on board, I had to wait for the security clearance to be completed. I’m happy to report that the same difficulties I encountered with the Department of Justice clearance were not repeated [laughter], and in the latter part of September, I received a phone call from a woman in what was then called Personnel – now I 158 gather it’s always Human Relations – named Helen Washington. I remember her name to this day. Ms. Washington said, “I’m happy to inform you that I’m in a position to offer you the position of Chairman of the Atomic Safety and Licensing Appeal Panel.” I said, “Well, Ms. Washington, I thought that the position had been offered to me by Commissioner Doub some six weeks ago.” “He had no authority to offer the position to you. [Laughter] The formal offers must come from somebody in Personnel.” I said, “Well, excuse me.” In any case, the next thing that happened was that I was supposed to report to the Commission on October 1, which would have been the 20th anniversary of my arrival at Justice. It would have been twenty years to the day. Well, my arrival was delayed for some two weeks because, in the interim, I had an operation to remove a part of my thyroid that had what turned out to be a non-malignant tumor, but I did turn up right after Columbus Day, and it was quite a formal ceremony. Indeed, the day after Helen Washington formally appointed me to this position, I received a phone call from somebody in the AEC secretariat who asked me whether I intended to produce my own Bible for the swearing in ceremony or whether I would be satisfied with a government-issued one. I said I thought that the government issued one would do just fine. Well, he said, I have a second question. Are there specific individuals that you would like invited to the swearing-in ceremony? I couldn’t think of anybody 159 particularly other than the two employees of the AEC with whom I was acquainted. One of them was the Mayor of Kensington who lived a couple of blocks from me, and the other was the Deputy Controller who I met previously because we had had friends in common. I mentioned those two, but I couldn’t think of anybody else. So the day comes and I report to Germantown for the swearing in. My office, however, was downtown at the H Street building, and lo and behold I’m ushered into this quite substantial conference room and there are all five commissioners plus half a dozen other reasonably high functionaries in the AEC, and I am administered the oath of office before this crowd – hand on the government-issued Bible [laughter]. Never before and never since, have I been involved personally in anything remotely resembling that swearing in, but I have to say, that’s the way the AEC functioned. After the swearing-in ceremony ended, I then was driven back to the District to my new quarters in the Matomic building, that was the name of the H Street building, and I got to work. MS. FEIGIN: Who swore you in? MR. ROSENTHAL: I think it was the Secretary of the Commission. When they asked me whether I was going to supply my own Bible or not, I had an idea that this might be something modestly out of the ordinary, but I certainly did not expect this rather large turnout of AEC functionaries, including, as I say, the entire five Commissioners. 160 MS. FEIGIN: Before we get to the AEC and your life there, you said when you were first approached about the job, you said let me have a week to think about whether I want to be considered. What made you feel this was the job you wanted or the time to leave DOJ? MR. ROSENTHAL: I don’t recall whether I mentioned at the last session that I’d begun to have feelings about departure, probably around the middle of the 1960s. MS. FEIGIN: You mentioned a couple of other opportunities. MR. ROSENTHAL: None of those panned out. At this point, in 1972, I thought the time had really come to leave. Unlike these people who stayed for over 40 years, I felt that as great as my years at DOJ were, the time definitely had come to move on. With respect to this job in particular, I concluded that it would represent a definite challenge, considering my total previous AEC noninvolvement, and at the same time, also would provide an opportunity to play judge, and I felt that after having spent 20 years catering to judges [laughter] that maybe there was something to be said for now having lawyers catering to me. I think there was something of that in it as well. I have to say that while accepting the position with no reservations, at the same time I was a little nervous departing for this quite different position, in an area that was totally unfamiliar to me. MS. FEIGIN: Before we talk about how the AEC was structured, can you tell us the nature of the cases that the AEC handled? 161 MR. ROSENTHAL: Yes. For most of my time at the AEC – then NRC – I think I should state at this point that the AEC in 1975, a little more than two years after I arrived, was divided into two parts. The regulatory part became the Nuclear Regulatory Commission. The promotional part, promoting the use of atomic energy, became ERDA, the Energy Research and Development Administration, which subsequently was factored into the Department of Energy when that department was created. So the part of the AEC that I was involved with was responsible for the regulation of all civilian uses of atomic energy, and it had its source in the Atomic Energy Act which I think was enacted in 1946, and more particularly, the Atomic Energy Act of 1954, which still remains the source of the Commission’s regulatory authority. Now what we were regulating was in large measure commercial nuclear power plants. When I arrived on the scene, there were applications for either construction permits or operating licenses for a very substantial number of nuclear power plants all over the country. So the grist of the adjudicatory mill was in the area of the applications for construction permits or operating licenses. Virtually every one of those applications was vigorously opposed by, for the most part, local groups in the area of the proposed facility who were dead set against the construction in their territory of a commercial nuclear power plant. We’ll get into it a little later, but some of their concerns were legitimate, others 162 were fanciful. I can’t tell you how many people believed that a nuclear power plant was just like an atomic bomb; it could blow up, which, of course, was not the case. In addition to those cases involving opposed applications for construction permits and operating licenses for commercial nuclear power plants, there were cases involving violations of the terms of AEC, then NRC, licenses. When the Commission staff determined that there was a violation of a license, the usual outcome was the imposition of a civil penalty. In extreme cases perhaps suspension or even revocation of the license, and the licensee was, of course, given an opportunity to challenge the punitive action taken by the staff. So we had a certain number of those cases. In addition to that, there was the occasional case involving the decommissioning of sites on which activities under a nuclear license had been conducted. These sites would generally contain some radioactive material, and there was always the question of how was the licensee going to deal with that material, and they were required under Commission regulation to come up with a decommissioning plan. The decommissioning plan was frequently challenged by some of the folks in the area where the activity had taken place. Finally, believe it or not, we had a few antitrust cases. As difficult as it might be to believe, there were competitors of the proposed nuclear 163 power plant who believed that, as a result of economies of scale, these large nuclear power plants would have a competitive advantage over the smaller systems. Now what were these smaller systems? In large measure they were rural electric cooperatives that generated electricity that was then sold through distribution co-ops. In the case of Cleveland, it was a municipal electric power company, and Cleveland at that time might have been the only city in the United States where there were two separate electric lines going down every block. One line that of the Cleveland Municipal System, the other one of the investor-owned Cleveland Electric Illuminating Company. Every individual, every homeowner, had the option of buying electricity and having it delivered to his door by the Municipal system or instead by the Cleveland Electric Illuminating Company. So there was this feeling on the part of the Cleveland Municipal system, as in the case of the electric co-ops, that the grant of a construction and then operating license to one of these big electric companies would put them at a competitive disadvantage, and so they would challenge the grant of the license on antitrust grounds as indeed was permitted by the Atomic Energy Act. In most cases what they wanted at the end of the day was to be given a portion of the nuclear facility. Now this is all ironic, because it turned out that the belief that there was going to be an enormous advantage because of relative size proved to be not the case. And indeed we had, I think, just three antitrust cases over the years, 164 and those were all in the 1970s, and by the early 1980s, nobody was claiming that there was an antitrust problem because of economy of scale. MS. FEIGIN: Did you have to get up to speed on all the scientific background? MR. ROSENTHAL: That gets into the question of what was the adjudicatory structure. Now in most of the federal agencies, the adjudication of the issues coming before the agency must be conducted by an administrative law judge, and the administrative law judges are appointed by what was then the Civil Service Commission, now the Office of Personnel Management. They’re appointed to a roster, and they’re assigned to specific agencies, and the theory is that an administrative law judge should be able to handle the adjudication of any agency. In point of fact, I think that almost all of the administrative law judges end up in one agency and that’s where they remain for their entire career. The Atomic Energy Act of 1954 provided the Atomic Energy Commission with an exemption from the requirement of the Administrative Procedure Act that administrative law judges be used to conduct the agency’s adjudication. The AEC was authorized to employ, instead, licensing boards that consisted of three individuals drawn from a panel. In the case of the AEC, and this was carried over by the NRC, still true today, there is a licensing board panel consisting of a certain number of lawyers and a much larger number of technically trained individuals – nuclear physicists, nuclear engineers, geologists, seismologists, health 165 physicists, you name it. Some of the technical members are full-time. Many of them, however, are part-timers called upon to serve on boards as needed. Some of the part-timers come from industry, from university faculties. Many of them are retired, but many of them are not and just fit in their service on licensing boards with their other occupational responsibilities. The typical licensing board, from day one to today, consists of one lawyer who serves as its chairman and two technical members. They’re drawn from this large panel, and they’re assigned to the particular case by the Chief Judge, Chief Administrative Judge, of the licensing board panel. Now my panel was the appeal panel. MS. FEIGIN: Let’s just go back one minute to the licensing panel. I assume it’s not random, that it’s assigned based on skill sets? MR. ROSENTHAL: To some extent, but at the time they’re assigned, it often – I would say most frequently – is not known precisely what are going to be the technical issues that come up in a case. Now, the theory is that even though these technical members have a specific discipline, they’re supposed to be Renaissance men and women, and I’m going to get into that a little more when I talk about the appeal panel. They’re supposed to be willing and able to familiarize themselves with enough of other disciplines as might be required to adjudicate the technical issues arising in the particular case. Now, on the other hand, it might be readily 166 apparent at the very threshold when a case arrives and it’s necessary to make the assignment that the principal issues will deal with the impact of the proposed nuclear facility on the water – these nuclear facilities are all located close to bodies of water, which is necessary in order to provide cooling water. If it thus appears that water quality issues will be at the forefront, I would suspect that the Chief Judge would look at his roster for somebody who has special expertise in that specific sphere, but a lot of the times, they’re selected on the basis of availability, which is a more important consideration generally than is the matter of the specific discipline of the member. MS. FEIGIN: Now tell me about the appellate panel. MR. ROSENTHAL: The appeal panel no longer exists, having been assassinated in 1991, but that’s for next week or next session. When I arrived as chairman to replace the chairman who had retired, there were on the appeal panel a full-time nuclear physicist who was the vice chairman of the panel and one other technical member who served part-time. His principal occupation was dean of the School of Engineering and Applied Sciences at the University of Virginia, and he came up as needed. So there were those two technical members, one full-time, one part-time, and there was just one other lawyer besides myself, full-time. I immediately determined that given the caseload the appeal panel was confronted with, that was grossly inadequate, and I made that view known to the Commission which 167 immediately authorized me to take on several additional people. In that day, the procedure for selecting members of the appeal panel was quite different than the procedure that exists now for appointing people to the licensing board panel. Officially, the appointment was made by the Commission, but, in fact, it was made by me; all that I needed to do was to determine who I wanted for the particular vacancy, send that person’s name up. Appointed. Now today that’s not the way it functions. If there’s a vacancy on the licensing board panel – again there’s no longer an appeal panel – there is a formal vacancy announcement put out, applications are collected, there’s a screening panel that interviews the candidates, rates them A, B, C, and D, or I don’t know, and then the A candidates names are sent up to the Commission and generally interviewed by the commissioners who accept or reject particular candidates. So in point of fact, the current chief administrative judge of the licensing board panel has relatively little to say about who ultimately is tapped for his panel. MS. FEIGIN: How did you go about it? MR. ROSENTHAL: Well the first vacancy I had, while I was just beginning the process of deciding who I might select for this position, I had lunch with a former Justice Department colleague named Mike Farrar. Mike was one of our stars in the Appellate Section. He came to it about 1967 from a clerkship with a district judge in New Orleans. He was I think number one in his 168 class at the Notre Dame Law School. He actually had gone to Notre Dame also as an undergraduate. He was a seven-year Golden Domer, as they’re called. In any case, in 1970 Mike had been with us a couple years, a stellar performer. Bill Ruckelshaus, who was then the Assistant Attorney General of the Civil Division, becomes the Administrator of the newly created Environmental Protection Agency, and he appoints somebody as general counsel and instructs him to come up with a first-class staff, and he apparently said to the general counsel, “You might want to go over to the Civil Division, Appellate Section, and see who you can raid.” In any event, that’s exactly what the general counsel did, and we lost three of our very best lawyers, Robert Zener, Dan Joseph, and Mike Farrar, to EPA. Well this didn’t sit too well with me, and I put in a phone call to the EPA deputy general counsel who I was told had been really the architect of this raid, and I told him, I could understand why he was looking to build up a first-class staff, but I thought that he might have distributed the raiding a little more equally among the various departments and agencies. It seemed to me that taking three of our very best lawyers was a little much. Bear in mind, this was a staff of just about 21 or 22; this wasn’t a several hundred lawyer staff. His response was, “I didn’t point a gun at the head of anybody” [laughter]. Which, of course, was true, but I found was a very unsatisfactory response. 169 In any case, at the time I was faced with the decision as to who to anoint as my first appointee, I had lunch with Mike Farrar, and it became readily apparent to me that he wasn’t overwhelmingly happy over in EPA. What he was, he was the Assistant General Counsel of the office that dealt with pesticides, and he was a fighter of DDT and some of the other pesticides which were supposed to be carcinogens or to cause other ailments. So I said to Mike, “Any chance that you might be interested in coming over and joining me?” Well, he said he would think about it, and in a week or two thereafter, I think it was, he came back and said yes, he thought he would like to join me. And so after the deputy general counsel of EPA had raided him from Justice, I in turn raided him from the EPA. So Mike was the first one that joined the staff. Subsequently, I took on another alum of Civil Appellate, Dick Salzman, who later took a demotion and became a D.C. Superior Court judge [laughter]. And then in 1980, it was interesting. Mike had four daughters that he had to educate. He decided that the private sector was a greener pasture insofar as financing their college educations, so he departed. Well I had a vacancy then, and I had as it turned out two superlative candidates. One of them was James Asselstine, who had been my first law clerk. I hired him in 1973 upon his graduation from the University of Virginia Law School, and he stayed with me for the two years, the term of my clerks, then remained in government and eventually 170 ended up on the staff of the Joint Committee of Atomic Energy, which no longer exists, but was a very formidable committee at that time. MS. FEIGIN: Congressional committee? MR. ROSENTHAL: Yes. Well, Jim expressed an interest in joining the panel, and even though out of law school just seven years, I regarded him as very viable. He was absolutely superlative. At the same time, I received a phone call from a lawyer who I knew very well and had a great deal of respect for his judgment. He had learned that I had this vacancy, and he recommended, very highly, a woman named Christine Kohl, who at the time was the staff counsel to the District of Columbia Circuit. I invited Chris over to meet with me and was extremely impressed with her, just from that meeting. I was so impressed that I did something I never did before and I never did again. I sent both of their names to the Commission and said, in effect, “Take your pick.” Well, the Commission chose Chris. I suspect, without knowing, that the gender factor came into play, and thus poor Jim Asselstine had to settle, a couple of years later, for a much less prestigious position within the agency. He became an NRC Commissioner [laughter]. Apparently, again, he was working for the Joint Committee on Atomic Energy, and as I understand it, his mentor on that committee saw to it he got appointed. Well I think it worked out well for them both. Jim was an excellent Commissioner. He served only one term. At the end of the term, he decided that he wanted to make a little more 171 money than working for the government allowed. He went up to one of the investment banking firms in New York and became their guru on all kinds of nuclear energy matters, and I understand he made a ton of money. On the other hand, Christine was with the appeal panel until its abolition. The last few years she was its chairman, replacing me at the time I retired in 1988. When the appeal panel was abolished in 1991, at my urging, she applied for a position in the Civil Division, Appellate Section, Appellate Staff as it’s now known. I told Bob Kopp that if he did not take her, he would be making the largest mistake that he could possibly make. MS. FEIGIN: Bob Kopp, Chief of the Appellate Staff? MR. ROSENTHAL: Bob Kopp, yes, the Director of the Appellate Staff. And I will state as I’ve said on many occasions, that there is no lawyer that I’ve encountered in my 60 years at the Bar – and they are 60 years this year – for whom I have a higher regard than Christine Kohl. She is absolutely magnificent. As I say, it worked out well for me. I think it worked out well for Chris. I’d like to think so. And it certainly worked out well for Jim Asselstine. I think next month Chris will have been in Civil Appellate 20 years, and it will exactly equal the time that I was there. Whether she remains there for 20 years is another matter. MS. FEIGIN: I notice that when you mention the people you appointed, they were all lawyers. Did you not appoint −− 172 MR. ROSENTHAL: I appointed the technical people as well. Obviously I employed a completely different procedure in their case. What I essentially did was I got recommendations from people in the technical world for whom I had respect, and I acted upon mainly those recommendations. One thing that I was very interested in and is something that came up a short while ago was the matter of the Renaissance man and woman concept, particularly with the appeal panel where any case that we got could – and usually did – involve a wide range of technical issues. It was imperative that the technical members be prepared to suit up on the disciplines which were not their primary one as the need arose. And I would have to say that, with one exception, all of them met the challenge. I had a health physicist who is now long deceased who unfortunately was magnificent in dealing with health physicist issues but he just couldn’t come to grip with the issues that came up before the board that were in other areas, and particularly in – the most difficult I think of the issues that we faced were those in the area of seismology. Again, I had to use a different approach with respect to the technical members, but on the whole, it worked out well. MS. FEIGIN: How many people sat on an appellate board? MR. ROSENTHAL: Three. Unlike the licensing boards, where, as I noted, you had a lawyer and two technical members, on the appeal boards, two lawyers and one technical member, and in the antitrust cases, three lawyers. So it was just 173 the opposite. Now, the appeal boards had two powers that most appellate tribunals lack. First, we had the power to take evidence ourselves. And if on an appeal from a licensing board decision, we decided that the record needed enlargement on some issue, without exception we took the evidence ourselves rather than remand the matter to the licensing board to take the additional evidence. We knew precisely what the deficiency was, at least the perceived deficiency was, and thought, therefore, that it would be more expeditious if we took the evidence ourselves rather than remand it. The other respect in which we differed from the technical appellate tribunal is that we were required to review on our own initiative every licensing board decision that was not appealed to us. In the trade, it’s known as sua sponte review. There’s a very amusing story in that regard. The second case that I sat on after coming to the AEC involved an initial decision on a construction permit application for a proposed reactor in the state of Michigan. No appeal was taken by the intervener who had challenged the application before the licensing board. But nonetheless, following the Commission’s directive that we conduct a sua sponte review in the absence of an appeal, we took a close look at the licensing board decision and decided that it was defective in one respect. It didn’t involve taking additional evidence, however, and so we remanded the case to the 174 licensing board to take whatever action was necessary to cure the defect. The day after the decision issued – our decision – my secretary buzzes me and informs me that the lawyer who represented the utility in that case wanted to talk to me and was in the office. I couldn’t imagine what he wanted, but I said, “Okay, have him come in.” So he comes in. Right out of the barn, “Judge Rosenthal, I can’t imagine what you thought you were doing when you remanded this case to the licensing board. [Laughter] The intervener had no problem with the licensing board decision, what possible justification did you have for sticking your nose into it?” And it was almost in those terms. Well it was probably two minutes before I recovered from the shock, and I said to him, “Well, Mr. X, to begin with, you have no business being in my office.” But, I said, “Apart from that, if you have a complaint, you’re addressing it to the wrong forum. You might want to go up and talk to the five commissioners because in reviewing that decision sua sponte, we were acting under a direct instruction from the commissioners.” He turned around and walked out. I couldn’t believe that exchange. I can tell you that at no point in the years following that incident did I encounter anything remotely approaching it. MS. FEIGIN: Were your decisions themselves appealable? MR. ROSENTHAL: Our decisions were not appealable as a matter of right. The licensing decisions were appealable as a matter of right to the appeal boards. The appeal board decisions were reviewable by the Commission at its 175 discretion. In other words, in the Supreme Court terms, certiorari jurisdiction. A disgruntled party could file a petition for review with the Commission. In the overwhelming majority of cases, the petition was denied. Then our decisions, if not reviewed by the Commission, became the final Agency action and reviewable in the federal Court of Appeals under the Hobbs Act. If the Commission reviewed our decision, then its decision was reviewable in the Court of Appeals. MS. FEIGIN: Your appellate work sat at H Street? MR. ROSENTHAL: We were only at H Street for a year, fortunately. I used to refer to the Matomic Building as being the cockroach palace. Not that much of an exaggeration. Actually, when I signed on board with the AEC, it was with the understanding that the adjudicatory boards would be moving to Bethesda very shortly, and that was another attractive feature given that I lived in Kensington, and in point of fact, we did move to Bethesda in the fall of 1973 and remained there. MS. FEIGIN: Were these adjudicatory boards set up like the courts of appeals that we are familiar with in the judicial sense? Did you have reporters? Did you sit in robes? MR. ROSENTHAL: No, no. Not only did we not sit in robes, we didn’t use the term “judge.” There’s a story about that as well. When I arrived, we were all “Mr.” or “Dr.” And then when Christine Kohl arrived, it was “Ms.” Some time in the early 1980s, the licensing board panel acquired a new chairman, and 176 the first thing – or one of the first things – that he did was to decide that his troops should henceforth be referred to as judge. They too up to that point were Mr., Dr., or Ms. They did have one or two women members. Well he came down to me and told me of his intent and he said, “What do you plan to do?” So I said, “Well, I’ll poll my gang and see what their preference is.” The lawyer members said they could not care less. The technical members said “Not on your life. We are Dr., and insofar as we’re concerned, the term “doctor” is vastly superior to the term “judge.” [Laughter] So to the day of the abolition of the appeal panel in 1991, we were Mr., Dr., Ms. MS. FEIGIN: Well on that note, we should end today’s session, and next time we can talk about some of the substantive cases in which you were involved. MR. ROSENTHAL: Very good. MS. FEIGIN: Thank you again. 177 ORAL HISTORY OF ALAN ROSENTHAL Seventh Interview – June 20, 2011 This interview is being conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is Alan Rosenthal and the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in the King Farm subdivision in Rockville, Maryland, on Monday, June 20, 2011. This is the seventh interview. MS. FEIGIN: Good morning, Alan. MR. ROSENTHAL: Good morning, Judy. MS. FEIGIN: So, when we left, you had come to the Atomic Energy Commission, and you explained how it was set up, and how you organized the boards, and I think we’re probably ready to hear now about some of the casework that you handled while you were there. MR. ROSENTHAL: Very good, Judy. I was on the appeal panel in a full-time capacity from the time of my arrival at the AEC in October of 1972 until I left the Appeal panel in the spring of 1991. I’ll get to it a little bit later, but the last few years I served in a part-time capacity, having retired from fulltime government employment in August of 1988. During my time on the appeal panel, the panel – not just myself personally, but appeal boards drawn from the panel – were involved in the adjudication of applications either for construction permits or operating licenses for almost all of the 104 reactors that are operating today, in June of 2011. MS. FEIGIN: There are 104 today. How many were there when you started? 178 MR. ROSENTHAL: A very small number; most of the reactors that are in operation today were built in the 1970s or in the 1980s. The last application that was filed before a renaissance that has taken place in the last one or two years was in 1983. Between 1983 and well into this century, there were no applications at all. The bulk of these reactors were built in the 1970s and 1980s, and as I say, there are 104 of them in current operation, and the largest number of those 104 is located in the state of Illinois. That’s President Obama’s home state, and well down the road in a subsequent session, I will have occasion to note the irony of that fact. MS. FEIGIN: Is there any reason for that being the case? MR. ROSENTHAL: No, that’s just how it happened. The reactors are located from coast-tocoast. We have on this coast Seabrook in New Hampshire; several of them south of Seabrook along the coast. On the West Coast, you have two of them in California, on the Pacific Coast; one of them in the San Clemente area, and the other one in the San Luis Obispo area, north of Los Angeles. But there are a substantial number of reactors in the Northeast. There are a fairly substantial number in the South, some in the Southwest. None in the Rocky Mountain area at all, to my knowledge. All of these reactors, with I think one exception, at least one exception that I am aware of, are on bodies of water, either rivers, lakes or the ocean. The exception is Palo Verde which is in the Arizona desert, and it, if you can believe it, is cooled with water that is provided by the City of Phoenix. 179 This is waste water. I forget the precise distance between Phoenix and Palo Verde, it might be 50 or 60 miles. But every other reactor, to my knowledge, is cooled by water close to the site. This, again, is the ocean, a river, or a lake. And in at least one case, the North Anna reactor in Virginia, southwest of Fredericksburg, it’s cooled with a man-made lake. This is a lake that the utility built initially for the sole purpose of providing coolant water for the reactor, but it has turned out that they made quite a resort area out of it. They’ve sold lots all around the lake. So they’ve really profited in that way as well as from their having established this lake. In any event, that’s basically the picture. This morning I’m clearly not going to address every one of the cases that I had involving one or another of these 104 reactors. If I started upon that, we’d be here until at least midnight, if not into some time well into tomorrow. I want to start with a reactor that was completed, was approved by a licensing board and an appeal board, but was never put into operation, and it is quite a story. This was the Shoreham Reactor. It was constructed in Suffolk County on Long Island. It was completed in 1984 at an expense of $6 billion – now that’s billion, with a “B” dollars – and in the following year, 1985, it received a low-power license from the Commission that allowed it to start its testing prior to obtaining a license that would allow it to operate at full power. Well the biggest issue with respect to Shoreham was the adequacy of its evacuation plans. Now, 180 evacuation is, as you can readily understand, a major issue with respect to all of these reactors. While an accident is not contemplated, we know from the experience of Three Mile Island in this country and what transpired very recently in Japan that it’s important that there be assurance that, in the event of an accident, there will be an ability to evacuate the population in the vicinity of the reactor safely. The area around Shoreham was pretty heavily populated. As we know, Long Island – both Nassau County and Suffolk County – are heavily populated. MS. FEIGIN: We should say for those who may not know, we’re talking about New York. MR. ROSENTHAL: It’s the state of New York, Long Island. And therefore there was a considerable concern on the part of the authorities of the municipalities in the vicinity of Shoreham as to whether the utility’s evacuation plans were satisfactory, whether they would in fact ensure the safety of the population in the event of an accident. The consequence of this concern was that many of these municipalities simply would not sign off on the local evacuation plans, and the result of this was that in 1989, the governor of New York at that time, who was Mario Cuomo, and the Long Island Lighting Company, which had built the reactor, jointly announced that the reactor would not go into operation but would be decommissioned. And that is what took place at an expense of an additional $186 million. MS. FEIGIN: Is that government funds or funds from the utility? 181 MR. ROSENTHAL: That was at the cost of the utility, but what happened was that it was agreed, by I guess the Public Service Commission of New York or whoever it is in New York that regulates these utilities, that for a 30-yearperiod, the ratepayers of the Long Island Lighting Company would be assessed a 3% surcharge on their bill in order to enable the Long Island Lighting Company to recoup, not merely the $186 million in decommissioning costs, but as well the $6 billion cost of building the facility. Presumably it will be 2019 before the Long Island Lighting Company ratepayers are relieved of the obligation of paying this 3% surcharge. So they ended up not getting the benefit of electricity that would have been generated by Shoreham, but in addition, have been saddled with this surcharge. Thirty years. I want to touch upon one other event in the state of New York that also involved the aftermath of an appeal board decision, although it didn’t involve a commercial power reactor. Instead, it involved a research and educational reactor. It was identified as a Triga Mark II. This Triga reactor was located in a building on the campus of Columbia University in Morningside Heights, Manhattan, and it was part and parcel of the Columbia University program for the training of nuclear engineers. It was a very controversial proposal, very controversial instrumentality, even though, as one of my colleagues pointed out, it was so small and generated such a small amount of electricity, that in the event of an accident, it could 182 have been cooled adequately with a garden hose. Notwithstanding that fact, there was a revolution on the Columbia campus when it came to light that there was this Triga reactor in one of the buildings on the campus, and this protest – a very loud protest – involved not only students but faculty members as well. Faculty members, I would say, who were mainly in the humanities and social sciences rather than in the physical sciences, particularly physics. There was a tremendous hue and cry against this Triga reactor, and this was in an era when Columbia was encountering protests, building sit-ins, by protestors of the Vietnam War. MS. FEIGIN: What year are we talking about? MR. ROSENTHAL: 1974. There were still these protests at that point, and some of the protesters – even faculty members – were insisting that this reactor could blow up and cause enormous radiation exposure throughout the Morningside Heights area, which was pure nonsense. In any event, the president of Columbia at that time – I don’t recall who it was – was so sick and tired of the protests that were being encountered with relation to the Vietnam War situation that it was decided not to put the Triga into operation. So the result of that was that the nuclear engineering students at Columbia lost a valuable educational tool. But that was the way things were at that time. I might say at this point that with respect to virtually every case that was adjudicated by the AEC, and then NRC, during the 1970s and 183 1980s, whether it was an application for a construction permit or an application for an operating license, there was enormous public opposition in the area in which the reactor was located. That opposition, however, was tempered by economic factors. I’ll give you an illustrative example. The Vermont Yankee Reactor is located in a community called Vernon, in the state of Vermont. It’s in the southern portion of the state, not far above the Massachusetts border. The citizens of Vernon absolutely love that reactor. And why? Because it contributes so much to the tax base of Vernon that the ordinary garden variety citizens pay virtually nothing in property taxes, and at the same time, they have streets paved with gold [laughter] and libraries that would rival the Library of Congress. That’s something of an exaggeration, obviously, but they’re very well equipped at very little cost to themselves. Now, are they bothered about the radiation? After all, they’re the closest to the reactor. Well, if they’re bothered, not so much so that the economic considerations are trumped by their concerns. Now, you get outside of Vernon, a greater distance from the reactor, and oh, there, every one of the citizens is totally persuaded that they’re going to be radiated every day that that reactor operates. And why is that? Because they derive no economic benefits from the reactor’s operation. So it’s an interesting thing that for all of the health and safety concerns that people have, they seem to be subordinated to the economic advantages that some 184 of these communities obtain from their proximity to the reactor, from the fact that the reactor is located within their boundaries. MS. FEIGIN: Are there a lot of environmental groups that come into play here? MR. ROSENTHAL: Oh yes. You have over the years a number of nationally recognized groups, such as the Sierra Club, such as the Natural Resources Defense Council. But the majority of the intervenors in these proceedings in opposition to the particular application for a construction permit or operating license are ad hoc local groups, and some of them are prone to demonstrate in ways that are not found terribly acceptable by the local authorities. The arrests that take place at a number of these sites can be numerous. Now, let’s go back a step. The licensing boards, as a matter of Commission policy, conduct all of their evidentiary hearings at or close to the reactor site, and they encounter all kinds of demonstrations when they’re out at a reactor site conducting a hearing, and in some instances, they have been required to invoke the assistance of federal or local law enforcement authorities for their own protection because it’s turned violent. The appeal boards, for the most part, conducted their oral arguments in their hearing room in Bethesda. However, on occasion, when it wanted to visit a site, the board would go out to conduct the argument in the locality where the reactor was located, and when it conducted, as it was authorized to do, an evidentiary hearing, it invariably 185 was at or close to the reactor site. So the appeal boards encountered some demonstrations, but none of the ones that I personally encountered was anything but peaceful. I had no concern at any point for my safety or the safety of my colleagues. Now I said that we would go out occasionally to the reactor site because we wished to visit it, and that often proved to be very useful. There was a proposed reactor on the shores of Lake Ontario, north of Syracuse, and the claim was made to us by the intervenors opposing the facility that the area where this reactor was to be sited rivaled the Muir Woods in the San Francisco area in terms of magnificent trees and would be destroyed by the construction of this reactor. Well, we visited the site, and all that I can say is that I saw not a single tree that I thought was worth preserving. I recognize I’m not an arborist, but nonetheless, I can assure you there was nothing that rivaled, or came close to rivaling, the sequoias of the west. And so that was very instructive. On another occasion – this involved the Seabrook facility on the New Hampshire coast – and I’m going to have a lot to say about Seabrook a little bit later, but one of the claims that was made by the intervenors in Seabrook involved the transmission line route, which they said would absolutely destroy a virgin forest area of unparalleled beauty. Well, we were going up to Nashua, which is relatively close to the coast of New Hampshire, to conduct an evidentiary hearing, and we decided that 186 while we’re up there, we would go and take a look at this wonderful forest ourselves. This happened to be in December, and it gets mighty cold in that month, and it happened on this particular day that the wind was blowing off the ocean, and it was mighty chilly. We were led on the expedition to look at this forest by a woman who lived in Exeter, New Hampshire, and was the president of some kind of conservation society there, and we walked along the border of the forest which happened to be a spur line of the Boston & Maine Railroad. We walked for about a mile, and we looked into this forest, and there was nothing that appeared to us to be that remarkable. Well the upshot of it was that in our decision on the challenge to the transmission line, we decided against the intervenor. In other words, we found the transmission line to be acceptable, and we noted that we had visited it ourselves, and so our decision was based in part at least upon our visual inspection. Our decision ended up appealed to the Court of Appeals for the First Circuit based in Boston, which has jurisdiction over the state of New Hampshire, and in the brief filed in support of our decision by the Solicitor of the NRC, it was pointed out that we had visited the site. Indeed, that was stressed. The court’s decision came down some months later affirming our decision on the transmission lines, and it made a substantial point of the fact that the board had taken the time and made the effort to visit the site. 187 I take it what this really amounted to was their approval of the fact that some bureaucrats got out of their comfortable offices on the banks of the Potomac and had gone up in the middle of winter and had taken a look at the matter in controversy themselves. [Laughter] So these site visits can be helpful. We didn’t do that many of them, but I think on the cases that I sat over that period of 18 or so years, I probably visited maybe six or eight sites. MS. FEIGIN: That leads me to the question of how frequent were the cases? How many panels did you sit on in a year? MR. ROSENTHAL: Curiously, in the nomenclature of the NRC, the overall operation was the panel, and there were boards that were drawn from the panel, which is exactly the opposite of the courts’ nomenclature. But I would say that in the course of an average year, I might have been on perhaps ten boards. Now they all were not active at the same time, but I would say that that was probably a reasonable estimate. Now I made reference to Seabrook in the context of the transmission line controversy, but the major controversies that confronted the board in Seabrook dealt with much more significant issues, the principal one being earthquake potential. Under the regulations of the Commission, a reactor had to be designed to withstand the largest potential earthquake that might occur on that site. The term that was used to describe that earthquake was the “Safe Shutdown Earthquake.” Now, 188 in many of the cases arising in areas where there was substantial seismic activity, or potential seismic activity, the Safe Shutdown Earthquake was a major bone of contention. In the Seabrook case, the intervenors presented as a witness on the Safe Shutdown Earthquake issue a very prominent seismologist. I don’t recall now whether he was associated with MIT or Columbia; it was with one or the other, but he had credentials as long as his arm. The license applicant presented its expert, and he was either at Columbia or MIT – one of them was at Columbia, the other at MIT, and as I say I can’t remember which one was where – and his credentials were as impressive. On the East Coast, as opposed to the West Coast, earthquakes were not measured on the Richter Scale. The Richter Scale was employed in the west, and it was based upon the readings of seismographs. On the East Coast, the measurement of earthquakes in the distant past was formulated on the basis of subjective criteria. Did the dishes in Widow Brown’s kitchen shake during that earthquake? Did they fall off the shelf? It was that kind of thing. It was solely subjective. It was recorded observations of the practical consequences of the particular earthquake, and they were measured on, not the Richter Scale, but on a scale called the Modified Mercalli Intensity Scale (MMIS). Well, both of these experts had available to them precisely the same data that were derived from a series of earthquakes that had occurred in the northeast – one of them in 189 Montreal I think in 1732, and another one in Cape Ann, Massachusetts, in what year I don’t recall, and there was still a further one in the Lake Winnipesaukee area in New Hampshire, I think in something like 1937. But there were recorded reports of each of these earthquakes and the damage that had resulted from the earthquake. The intervenors’ expert, based upon these data, concluded that the potential was an enormous earthquake that would probably rival the San Francisco earthquake of 1900-something. When it became his turn to testify, the equally qualified expert produced by the applicant said the ground would hardly move. So here we were, the board, confronted with two highly qualified seismologists looking at precisely the same data and coming to dramatically different conclusions as to what the earthquake potential for the Seabrook site might be. Now why was that? Well it turned out that it was because they proceeded on the basis of quite different assumptions in the application of these data to the Seabrook site. The board for Seabrook consisted of – in addition to myself – the vice chairman of the appeal panel, Dr. John Buck, who was a nuclear physicist by education, and my good colleague over many years, Mike Farrar. And it turned out that on the seismic issue, as well as on many of the other issues that arose in the Seabrook proceeding, Jack Buck and Mike Farrar agreed upon only one thing, and that was to disagree, and there wasn’t a decision rendered by the Seabrook board of any 190 significance that was unanimous, and in every case, I was the swing vote. Dr. Buck was in one corner, Mike Farrar was in the other, and I was in the center, sort of the shuttlecock in a badminton game, and it was my call as to how it went. With respect to the seismic issue in Seabrook, I lined up with Jack Buck, and Mike Farrar filed the dissent. On some of the other issues that we encountered, I was lined up with Mike against Jack. But this is the kind of thing that we had to deal with. The earthquake issue, needless to say, is extremely significant in terms of the California reactors, which, both of them, sit on faults. It was also a large issue in the Indian Point proceeding. Indian Point is a reactor located on the Hudson River, about 30 miles north of New York City, and needless to say, there’s a major evacuation issue associated with Indian Point, given the enormous population in that whole area – Westchester County, to say nothing, of course, of New York City. And there’s also a significant issue raised with respect to earthquake potential. What was the Safe Shutdown Earthquake for Indian Point, against which the reactor had to be sufficiently hardened to a standard? Well the intervenors in that case came up with a figure that would have produced an earthquake that had it occurred, as Jack Buck wryly observed, nobody would be worrying about the Indian Point site because the entire city of New York would be wiped out. So that’s one of 191 the issues, earthquakes, that I had to focus on during my 18 years on the Appeal panel. MS. FEIGIN: I assume in most of these cases it would be as you describe in Seabrook where one side would be arguing horrendous potential. This would be typical, right? MR. ROSENTHAL: Absolutely, but what sticks out when Seabrook comes to mind is that in most of the other cases where there was this issue where, as you say, there were diametrically opposed positions taken on the Safe Shutdown Earthquake, we did not have witnesses of the caliber of these two gentlemen. What made it so remarkable was that these were two outstanding seismologists with extraordinary credentials and reputations. In one of the cases that involved the West Coast reactor where the Richter Scale came into play, the applicant produced Richter himself as a witness. He was very interesting. He testified as to the application of his scale to the particular reactor that was involved. He was well up in years. I think, if I recall correctly, he died shortly thereafter. He was shown, I can tell you, considerable deference during the course of his testimony [Laughter]. MS. FEIGIN: I would expect. Is it still the case that the East Coast doesn’t measure in terms of the Richter Scale? MR. ROSENTHAL: I don’t know about the recent seismic events on the East Coast. What I’m talking about are the events that had taken place in the distant past. This 192 was before the seismograph was invented, and therefore, the only way of measuring the extent of the quake was through the observations of the individuals as to the damage that had been caused. MS. FEIGIN: So there weren’t earthquakes on the East Coast after the Richter Scale was devised? MR. ROSENTHAL: I don’t know of any significant earthquake on the East Coast in the last 50 to 75 years. If there has been one, obviously a seismograph has been employed in its measurement, but there have been a number of West Coast earthquakes of relatively recent vintage, and they’ve all been measured on the Richter Scale using seismographs. Some of the other issues that I encountered involved financial qualifications. The utility had to demonstrate that it had the financial qualifications not only to run its plant in accordance with all existing regulations, but also to decommission the facility when its life had come to an end. There was a financial qualifications issue with Seabrook. Once again, I sided with Jack Buck against Mike Farrar, but Mike Farrar was able later to tell me, correctly, that he had the right on that issue, even though perhaps not on the seismic issues, since there has not been an earthquake up there. Not that many years after we determined – that is, Jack and myself – that Seabrook had the requisite financial qualifications, the Public Service Company of New Hampshire, which operated the 193 facility, went bankrupt [laughter]. As I told Mike, I can’t be right all the time [Laughter]. I’m not divinely inspired. MS. FEIGIN: It’s one thing when you’re an advocate and you lose a case, it’s probably another thing when you’ve written a decision, and then a court, a higher level court, reverses it. I wonder how that is. MR. ROSENTHAL: I’m glad you asked that question, because I can answer it this way: I was never reversed. Never. Neither by the Commission nor by a Court of Appeals. MS. FEIGIN: Really? Astounding. MR. ROSENTHAL: The Commission didn’t like a lot of our decisions, and that’s one of the reasons why eventually the panel was assassinated. But I don’t recall – we clearly were not reversed by a court. And it was a very rare instance where the Commission even agreed to review our decision. There was not an automatic appeal to the Commission. So the Commission almost never took one of our decisions. I don’t recall their ever having one of them reversed, but I can state, without fear of contradiction, that we were never reversed by a court. MS. FEIGIN: I’m sure you were appealed to courts. MR. ROSENTHAL: Oh, yes. I would say that there were probably 20 or so of our decisions that ended up in the courts of appeals. So, no, I never had to face the matter of how dejected I might be by being turned over by a court. 194 MS. FEIGIN: Actually, that number itself is a pretty small number. You were there about 20 years and maybe 20 decisions got appealed to courts of appeals. MR. ROSENTHAL: Most of them didn’t get appealed. Most of them didn’t get beyond a request to the Commission that it review our decision, and there were relatively few, as that figure indicates, that ended up in a Court of Appeals. MS. FEIGIN: I’m surprised a little bit because there’s so much at stake. Do you have any theory as to why so few were appealed? MR. ROSENTHAL: Well first of all, in a very substantial percentage of the cases that came to us, the appellant was the intervenor; the applicants rarely lost cases before the licensing boards. The intervenor was most often represented by either a pro se member of the group, a non-lawyer member of the group appearing pro se, or by a lawyer who was out of his or her league. There were a couple of lawyers who were intervenor representatives whose practice was in large measure the representation of intervenors in our licensing proceedings, but you could count them on the fingers of one hand. It was a matter of not having the talent, not having the resources. It was a very, very uneven playing field. The applicants were much better represented, had much greater resources, and, in addition, they had the NRC staff, which was a party to all of these proceedings, usually in their camp. MS. FEIGIN: So how did you go about trying to even the playing field a little bit? 195 MR. ROSENTHAL: Well, I think the best that I can say on that score is that we approached the arguments that were being advanced by the applicant, usually joined in by the NRC staff, with a good deal of skepticism. We couldn’t put ourselves in the position of being the attorneys for the intervenors, but we took into account to the maximum extent that we could, the fact that we were dealing with parties that were not playing on an even field. Some of the other issues that we encountered frequently included – and this was on the environmental side – the National Environmental Policy Act requirement, among other things, that the Commission consider alternative sources of generating the power that would be generated by this facility which might have fewer environmental consequences. We were told in the Shoreham case that the windmill alternative was superior to the Shoreham facility in terms of the generation of electricity. Never mind that, as Jack Buck pointed out, to have generated the equivalent amount of electricity that Shoreham would have produced, you would have had to have had a giant windmill every 25 yards all over Long Island, and these windmills would have to be operating in a gale-force wind constantly. And there was in Seabrook the claim that the wood-burning alternative was superior to Seabrook. Well, to have generated the same amount of electricity as would be generated by the Seabrook units, you would have needed a wood-burning facility probably every five miles over the whole state. There would have to be a large number of transmission 196 lines connecting these various facilities, and in order to produce the fuel, there would have to be a substantial raid on the forests of northern New Hampshire, to say nothing then of the big logging trucks that would be employed to carry the wood down from the forest to the various woodburning facilities. In short, the proposal was ridiculous. The same, I’m afraid, must be said for the alternatives that were put forth in most of the other proceedings. For example, in connection with a reactor close to the Gulf of Mexico – in Texas, I think it was – there was a suggestion – no, a claim, not a suggestion – that the proposed nuclear power plant could be replaced by generating facilities using the kelp from the Gulf of Mexico for that purpose, and that too was really pretty far off the mark. So that most of the claims regarding the generation of electricity through some other means really were not substantial. Another issue that was encountered from time to time was whether the power was, in fact, needed, and in most cases, the claim that it was not needed lacked any possible substance. There were, however, issues that did require serious consideration in addition to earthquakes and financial qualifications. One of them, which arose on the operating license level, was whether the quality assurance that had been employed during the construction of the plant had been adequate. In a number of cases, intervenors were able to establish that the utility had cut some corners, 197 usually for economic reasons, in the course of building the facility. So in many of the cases there was a significant quality assurance issue on the table. Another issue that came up frequently was the impact of the proposed facility upon the body of water on which it was located. Now, in many cases, the proposal was to build cooling towers. The water used to cool the reactor would go through the tower and back into the facility, and that had a minimal impact upon the body of water on which the facility was located. But in other cases, the water – cooling water – would be drawn from the ocean or river or whatever other body of water was involved, put through the reactor and returned to that body of water. When it was returned to that body of water, it was at a temperature that was considerably higher than when it entered the facility, and this had an obvious possible impact upon, for example, fish in the particular body of water that might be sensitive to increases in the water temperature. This was an issue in a number of cases, one of them being Indian Point, the reactor on the Hudson River, where there was a fishermen’s association that claimed that the increase in the water temperature in the Hudson where they fished would have a deleterious impact upon their pursuit of their livelihood. In connection with one of the reactors in New Jersey, a claim was made that the water temperature increase would produce an increase in the number of marine borers which, in turn, would have a 198 deleterious effect upon the wooden yachts in the marine basin located there. So these are some examples, but the fact of it is that the appeal boards, as the licensing boards before them, encountered a very wide variety of issues, both going to the safety of the reactor operation and the environmental impacts of that operation. That’s the reason why it was very important, particularly on the appeal panel level, to have technical members who were Renaissance men and women, in other words, who, even if their education and early vocational endeavors had been in nuclear physics, were prepared to address water quality issues, financial qualification issues, seismic issues, indeed the whole range of issues that come before the boards. I found this a very exciting period. The fact that there was a great deal of controversy in this area made it even more exciting. I look back upon my 18 1/2 years on the appeal panel with great satisfaction. In the summer of 1988, I decided that I had enough of 9-to-5, five days a week, and advised the Commission that I intended to retire from full-time government service. I was able to do that at age just short of 62 because the federal government has very liberal retirement policies. Indeed, I could have retired at the age of 55 with, at that time I had more than 30 years of federal service. MS. FEIGIN: That’s under the old system. 199 MR. ROSENTHAL: That was the system then, and that was the system under which I operated. There have been a lot of changes made, I’m sure, since then. But I did retire, and Christine Kohl replaced me as the panel chairman. I stayed on the panel part-time for another several years, indeed until March of 1991, which was just a couple of months before the appeal panel assassination. MS. FEIGIN: Before we get to the assassination, which you’ve been hinting at for two sessions now, so I really want to hear how that happened [laughter], I just want to follow up on one thing you said as you look back on that part of your career, and happily with much satisfaction, but one of the things you had said about working at Justice that you loved was the diversity, the cases were so different. Did you find that the issues were sufficiently different here that it kept you engaged? The focus was narrower, I guess, but –– MR. ROSENTHAL: That had been a concern of mine when I was invited to come to the AEC, whether I would find sufficient diversity in the work to satisfy me. True, almost all of the cases that we had before us as appeal panel members at bottom dealt with the issuance, or nonissuance, of construction permits and operating licenses, but the issues that arose in reaching the ultimate judgment on the approval or disapproval of the issuance of a license were extraordinarily diverse. And I think this is seen from some of the things I discussed this morning. Certainly the issues that came up in the seismic area were totally different from those that came up in financial 200 qualifications and water quality, and need for power and consideration of other alternatives, and not only were the factual issues quite diverse, but so too were the legal issues. So I found my concern in that regard to be entirely unjustified. MS. FEIGIN: And before we have the panel being demolished, I should ask you about probably the most well-known case in this area and whether you had any work with it, which is, of course, Three Mile Island. MR. ROSENTHAL: Three Mile Island case, yes. I was assigned to the Three Mile Island board that was considering issues with respect to Unit 1, which is not the unit that sustained the partial meltdown and is now out of operation. An issue that had come up with respect to Unit 1 dealt with the degree of probability that an aircraft of a certain weight would crash into the containment of the facility on its way to the nearby Harrisburg International Airport or leaving from that airport. And I had a hearing scheduled on either that issue or another issue, I don’t recall today which it was, for a particular Monday in March of 1979. On the prior Wednesday, March 28 of that year, the accident occurred in Unit 2. And for a day or two thereafter, I had no idea as to what the dimensions of that accident were, whether I should go ahead with the hearing scheduled for that Monday in Harrisburg or not, but by Friday, it became quite apparent that this was a very serious matter and that we would look like total fools if we went ahead with this hearing on Monday on the unit that was not impacted 201 by the accident. So I did have contact with Unit 1 of that facility, but I didn’t have anything to do with the accident itself, other than agonize over whether I should go ahead with that hearing on the following Monday. MS. FEIGIN: So now the denouement. What happened to the appeal panel? MR. ROSENTHAL: Well, we learned, probably in late 1990, that the Commission had in mind abolishing the panel, which it could do, so long as it gave advance notice to the Congress that it was planning to take that step. It was obvious to me and to the rest of the panel that this was being done because the commissioners at that point had a very strong pro-industry orientation, that they didn’t like some of our decisions, even though, I might add, that I would say that probably 95% of our decisions were in the applicant’s favor. I’m certain it was over 90%, but, of course, they focused on the 5% or whatever that went against the applicant. They apparently felt that they could not legitimately reverse those decisions, but they further decided that what they wanted to do was to abolish the panel and take over themselves the review of licensing board decisions. And what I did at the request of Chris Kohl, the chairman at the time, was to go up on the Hill and to talk to the staff members of some of the congressmen and women who were sympathetic to the cause of the intervenors and to try to enlist their assistance in expressing opposition to this proposed move. To my surprise, I couldn’t get one of the staff members of these congressmen to agree to do anything. 202 MS. FEIGIN: Do you have any theory as to why that is? MR. ROSENTHAL: I have not the slightest. I was amazed as well as extremely disappointed because these were members of the staffs of congressmen, as I said, who had been sympathetic to the intervenors and had been very sympathetic to the appeal panel. I really don’t know, but that’s the way it turned out. In addition to that, I went to former Commissioner Jim Asselstine, who had been my first law clerk. At this time he had left the Commission and was up in New York working for an investment banking firm, and I tried to enlist him to contact some of the congressmen who I knew he had substantial relations with, and he declined as well. For what reason, I don’t know. The fact was that nobody would come to the assistance of the panel, and in July of 1991, the panel in fact died, went out of existence. I had left, as I say, three months, four months before that happened, knowing it was going to happen, and in any event, I thought at that point it was probably just as well that I move on to some other endeavor. MS. FEIGIN: We should probably get to your later endeavors in our next session, but just to be clear on this, you retired from full-time work when? MR. ROSENTHAL: In August of 1988. MS. FEIGIN: And you continued on in what capacity? MR. ROSENTHAL: I continued on in the capacity of a part-time member of the appeal panel. I was also assigned, in I think it was 1989, apart from my appeal panel association, to conduct a special investigation of the deputy director of the 203 Office of Enforcement who, the claim was, had engaged in improper contacts with some outside folk. Nothing much to say about that investigation. I conducted it for about a year at which point I had not come to a conclusion. The agency appointed its first inspector general. It didn’t have one prior to that time which is why I had gotten appointed to carry out the investigation, and it was then transferred to him. The only other thing I would say about my appeal panel time was that I was, on a number of occasions, called to testify in my capacity as chairman of the panel, before Senate and House committees, and they were very frustrating experiences. What I encountered was that the congressmen who were sympathetic to the appeal panel – and these were basically the ones that were sympathetic to the intervenors and somewhat suspect of the nuclear utility industry – would be given by their staffs a long list of questions to ask me, and they were all softballs. There was never any follow up on the questions asked. And I thought to myself, what would have happened if I had responded to one of those questions, “I think that that is the most ludicrous question imaginable [laughter]. I don’t know how you got elected to Congress,” whether at that point, “Yes, Mr. Rosenthal, now let’s get to the next question,” or what, but I found that very, very frustrating. I was very grateful that I wasn’t really called upon to do that that often. 204 MS. FEIGIN: After all those years, do you have an overarching view about the nuclear industry and the role that nuclear power should be playing in this country? MR. ROSENTHAL: Well I am basically a supporter of the utilization of nuclear power, but that said, I think that from time to time there are corners being cut on the part of some nuclear plant operators, with, unfortunately, the tacit acquiescence of the regulator. I returned to the NRC at the very end of 1999, and in my next session I might have some general observations about the industry, about the regulatory process that is in existence, that I would like to put forth. For now I would just say again I am a supporter of nuclear power, but at the same time, there is, I think from a societal standpoint, some balancing to be done. What you have in nuclear power are very substantial benefits, but very substantial risks if the worst happens. I think we were fortunate with Three Mile Island that it was only a partial meltdown. A much more serious situation in Chernobyl obviously and then we have the more recent Japanese situation. So I think what society has to decide is whether it’s willing to accept the risk, small that it is, of a disastrous accident, in exchange for the benefits that clearly are derived from the use of nuclear power, which among other things, does not produce the same environmental consequences – in terms of climate warming – that are attendant upon fossil fuel generation of electric power. And we’re a long ways, it seems to me, from the day when we’re going to have solar energy, or fusion, or wind power, or any of these other 205 alternatives that do not involve the risk that nuclear power involves as adequate sources of the energy that we need. MS. FEIGIN: Well, unless there’s anything more that you want to add –– MR. ROSENTHAL: That’s it. MS. FEIGIN: I think that would be a good place to stop this week. Thank you again, so much. 206 ORAL HISTORY OF ALAN ROSENTHAL Eighth Interview – July 18, 2011 This interview is being conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is Alan Rosenthal and the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in the King Farm subdivision in Rockville, Maryland, on Monday, July 18, 2011. This is the eighth interview. MS. FEIGIN: Good morning, Alan. MR. ROSENTHAL: Good morning, Judy. MS. FEIGIN: When we left off, the Board was being abolished and efforts to lobby on its behalf were unsuccessful. Where did that leave you? MR. ROSENTHAL: It left me with the need to find something else to occupy my time, and a few months prior to the word from the Commission that it was intending to abolish the Appeal Panel, I had decided that maybe my time had come to find something else to do, so it wasn’t simply the abolition of the Panel that led me to go elsewhere, and the elsewhere was to the Personnel Appeals Board of the then General Accounting Office. The Personnel Appeals Board was created by statute. It called for five judges, and its mission was to consider and to pass upon claims by GAO employees that they had been subjected to a prohibitive personnel practice. Today, the Board has also the authority to adjudicate labor disputes, disputes between management and the union, but at that time, it only considered prohibited personnel practice claims. 207 The structure of the Board was something like that of the National Labor Relations Board. The Board had a general counsel, and the general counsel’s responsibility was to receive the claims of employees that they had been subjected to prohibited personnel practices. If the office of the general counsel, upon investigation, concluded that the claim was meritorious, then it would prosecute the claim before the Board. If it determined that it was not meritorious, the employee had the right to retain private counsel to prosecute the claim. In the first instance, the claim was heard by a single member of the Personnel Appeals Board, and his or her decision was then appealable to the full five-member Board. It could be appealed by either the employee, if he or she lost before the single judge, or by the agency, if it in turn had not prevailed before the single judge. So that was essentially the structure. The one unique feature of the Board was that the five-year term to which you were appointed was not renewable. It was five years, and then you were out. MS. FEIGIN: And who appointed you? MR. ROSENTHAL: The appointment was made by the Comptroller General, but there was a committee that screened the applicants, and on that committee were both representatives of the management and representatives of the employees. The employees designated somebody to represent them on the screening panel. So this panel made a recommendation to the Comptroller General, and he – it was a man at the time – acted upon that recommendation. So I 208 was appointed to this Board in the spring of 1991, and this was some three or four months before the abolition of the Appeal Panel. I found the five-year service on the Personnel Appeals Board interesting. For two of those five years, I served as its chair, so I had some administrative responsibilities. The administrative responsibilities were made much less onerous by the fact that the Board had a perfectly magnificent executive director. Her name was Beth Don and I would be remiss if in the course of my recounting this oral history I did not take recognition of the fact that she was just great, and I have to say that she still occupies that position, even though it’s now 20 years later. There was nothing particularly remarkable about any of the cases that I heard during that period of time. I have to say, however, that early in my career on that Board, I had some question about my colleagues, and it had nothing to do with their legal acumen. A month or so after I joined the Board, I had a physical examination in which it was determined that I had some kind of growth on my lung, left lung to be specific, and I underwent an operation that removed what turned out to be an entirely encapsulated cancerous tumor. I might say that I’ve had no problems with it at all for 20 years since that operation, and it occasioned no difficulty. Because it was encapsulated, I didn’t have to undergo chemotherapy or radiation or anything at all. But needless to say, there was a period of recovery. This was relatively major surgery, an operation on the lung. 209 It turned out that the then Board chairman had scheduled an oral argument in a very important case, and this was an oral argument before the entire Board, for some two weeks after my surgery. Well I made the request, which I thought was perfectly reasonable, to postpone the argument. There was nothing about the case that necessitated an immediate decision, and I thought, as I say, that this request was entirely reasonable, and it was rejected. The Board chairman said to me, “Well, of course, the oral argument will be transcribed, and you can read the transcript.” And I said to him, “Well, what about my ability to ask questions?” [Laughter] That didn’t make much of an impression upon him, so just two weeks after the surgery, I dragged myself out of my home and went down and participated in that oral argument, and returned home immediately thereafter. There were no ill effects, but needless to say, that left me with a rather sour taste in my mouth about the willingness of my colleagues to accommodate what seemed to me, again, to be a perfectly reasonable request. But that was the only actually unpleasant note in terms of my association with colleagues during the five years that I served on the Board. At the end of the five years, I was off the Board. Again, there was no possibility of serving on it for a second term, and for the next two-anda-half years, I was in the only period of total unemployment since I graduated from law school, now 60 years ago. I can’t say that I really 210 looked around for a job, but it wasn’t a particularly happy time. But we now come to early 1999, and I received a phone call from the then Chief Administrative Judge of the Nuclear Regulatory Commission’s Atomic Safety & Licensing Board Panel, that was the trial board panel, whose decisions I had reviewed as a member of the Appeal Panel. Paul Bollwerk said to me that he had just been commissioned to conduct a special inquiry utilizing a task force into a claim that the NRC Office of Enforcement had bungled its investigation of an allegation that the officials of the Millstone Nuclear Power Station, which is located just south of New London, Connecticut, had retaliated against an employee that had been a whistle-blower. Paul told me that the chairman of the Commission had directed him to include in this task force four other persons, including one outsider, and Paul asked me whether I would be willing to serve as the outsider. MS. FEIGIN: You were sort of an inside/outsider? [Laughter] MR. ROSENTHAL: Well, I was an outsider at that point. As I say, I was totally unemployed. When he asked me whether I was willing to serve as the outside member of this task force looking into this claim, he told me that if I accepted it, I should be prepared to work on it 24/7, and this was because the then chairman of the Commission, Shirley Ann Jackson, had told Paul that he had six weeks in which to complete this project, and six weeks meant six weeks, not one minute beyond six weeks. And I think she threatened him 211 with I don’t know what kind of consequences if the six weeks were not met [laughter]. I agreed to serve on this task force, and it was six weeks of I would say 60 hours per week of work. It was pressure that I hadn’t been under for a long time previously, and I’m thankful to say that I have not been under that pressure since then. In any event, we completed the project in the six-week period and turned in the report, and I then returned to idleness [laughter]. In the summer of that year, I received a phone call from Paul Bollwerk, and he asked me whether I might be interested in joining the Licensing Board Panel as a part-time member. There was no thought on his part, and certainly no thought on my part, of possibly returning to full-time government employment after having, in 1988, decided that fulltime was no longer something of interest to me. But I agreed to join the Licensing Board Panel, and I did so in October of 1999. MS. FEIGIN: Was this on a contract basis? MR. ROSENTHAL: I don’t know if it was on a contract basis. I signed a letter agreeing to serve, and I serve on an annual basis. Now it begins on July 1 and goes through the following June 30, so I just renewed within the last month my appointment for another July 1 to June 30 year. Obviously I serve at the pleasure of the Chief Administrative Judge of the Panel. He decides whether he wants each of us part-timers to serve for another year. 212 I think I might have mentioned in my session dealing with the Appeal Panel that the Licensing Board Panel, on which I now serve, consists of a group of full-time lawyer members and full-time technical members, and a large number of part-time technical members. I’m the only part-time lawyer member. Part-time technical members are drawn from a variety of sources. Many of them are academics, teaching at universities, and many of them are retired from whatever their occupations might have been. In any case, I joined the Licensing Board Panel in the fall of 1999, so I’ve now been on it for I guess it’s almost twelve years, if my arithmetic is correct. In the early days on the Panel, the cases to which I was assigned were for the most part challenges to applications for license amendments that would approve decommissioning plans. These applications were filed by NRC licensees who had been engaging in some activity or another under the aegis of their NRC license. For one reason or another, the particular activity had terminated, and under the Commission’s regulations, the licensee was then required within a year to submit a decommissioning plan to ensure that whatever radioactive material remained on the site would be handled in such a way as to pose no danger to the public health and safety. In many instances, some local group would oppose the decommissioning plan that had been submitted by the licensee, asserting that the plan was not sufficient to protect the public 213 health and safety. One of these cases had been assigned to me almost immediately upon my arrival in late 1999, and today, July the 18th, 2011, the matter has not as yet been resolved [laughter]. It’s an absolutely unbelievable case. It involves the United States Army. The Army has a proving ground out in Jefferson County, Indiana, which is on the Ohio River, about equidistant between Cincinnati to the north and Louisville to the south. The county seat is Madison, Indiana. Well, beginning in the 1980s, the Army was shooting off ammunition that was designed to test its capability to penetrate tanks. It required an NRC license because the ammunition contained a certain amount of depleted uranium, a radioactive material. In something like 1994, the Army stopped this activity of testing antitank munitions. Under NRC regulations, it should have submitted a decommissioning plan in one year. Instead, being the Army, it paid no attention to that requirement at all, and it was sometime around 1999 when it submitted its decommissioning plan to the NRC. At the end of 1999, a local group filed a request for a hearing to challenge this plan, and I determined that the group had standing and had also submitted at least one acceptable contention. So I granted the hearing request and was prepared to move forward to consider the challenge to the plan. The Army said, “Please don’t do that. We’re going to come up with an entirely revised plan.” So I put the case in mothballs, and a year or so 214 later, the Army came up with its new plan, and the Commission’s regulatory staff said, “We’re not going to even consider this plan because it’s got so many defects on its face.” So, said the staff to the Army, “Go back to the drawing board.” The Army then came up with another plan, and the staff said, “Well, before we pass upon that plan, you have to conduct a survey of this site – they call it a site characterization – to determine where any spent munitions might be found on the site, etc. The Army said, “Well we can’t do that, it’s too dangerous, because there’s a lot of unexploded munitions on the site.” [Laughter] And I’m thinking to myself, wait a minute, this is the Army, which I thought had trained experts in dealing with unexploded munitions, UXOs I think they’re called [laughter]. In any case, the Army said, “We can’t do this; now what we would like is a license to continue to maintain the site without any kind of plan for ultimate decommissioning.” Well, that was granted, but a year or two later, the Army came back and said, “Well, we changed our mind. We now can go forward with conducting the site characterization. I guess we did find some soldiers in our ranks who are capable of that kind of activity, but we want a period of five years in which to conduct the site characterization.” This didn’t sit too well with the local group, but we conducted a hearing and decided, with some reluctance, that the Army had made a good case for having this period of time to conduct the site characterization and to submit a new plan. So we granted them the five 215 years, which will run out this December. December 2011. By December 31, the Army will be required to submit a new plan with the site characterization as part of it. And this will be – what is it – 12 years since I got the case, and something like 17 years since the activity terminated. Now I can’t say that this is typical of the cases that I’ve handled, but it is an example of what can happen in the course of the operation of this bureaucratic maze, and I can say that I have one other case that has had an equally – or almost equally – long history without its being finally resolved. But, again, for the most part, these cases move forward with some degree of dispatch. I say “some degree,” because the entire mechanism, adjudicatory mechanism that is, of the NRC is absurd. What our regulations require is – now I’m talking about the applications for permits to construct and to operate nuclear power plants – and there has been a renaissance in that area. Between 1983 and about 2006, a period of 23 years, there were no new applications filed for permits to construct and/or licenses to operate nuclear power plants. But there now are probably 20 such applications in the mill before licensing boards. Now how does the adjudicatory process start? The Commission puts a notice in the Federal Register that an application has been filed by the XYZ Utility for a combined permit to build and license to operate a nuclear power plant at a particular site. These applications, I might say, nowadays almost all call for the construction of additional units on 216 existing sites, sites where there are already one or more nuclear power units. I think there’s just one exception. I think there’s one application that’s been filed that calls for the construction of a nuclear power plant on a so-called virgin site. Within 60 days of the notice in the Federal Register of this particular application, anyone desiring to challenge the application must file a hearing request. And that hearing request, in addition to establishing the standing of the particular hearing requestor to challenge the application, must set forth contentions that are deemed admissible under the provisions of the Commission’s Rules of Practice. It must set forth in detail a solid basis – or bases – for challenging the particular application. Now, environmental contentions must, in effect, challenge the Nuclear Regulatory Commission’s fulfillment of its responsibilities under the National Environmental Policy Act. That Act, in the context of the NRC, requires the Commission staff to fully evaluate the environmental impacts that will be associated with the construction and operation of the facility, and to conduct a cost-benefit balance with respect to those impacts. So, the challenge on the part of the hearing requestor to the application must, insofar as concerns the environment, be challenging the staff’s environmental assessment, which results in an Environmental Impact Statement. The problem is that at that early stage, the staff hasn’t even 217 embarked upon its environmental assessment. It will have received from the applicant for the permit an environmental report, which the applicant must submit, but it will not have the staff’s action on that report in the form of an environmental impact statement. Now, to be sure later on, when the environmental impact statement is filed, the hearing requestor, now presumably an intervenor, its hearing request having been granted, will have the opportunity to put in new contentions. But it really makes very little sense, in my judgment at least, to require a challenger to an application for a permit to construct and license to operate a nuclear power plant to do anything more than establish standing before the staff has completed its work. But that’s the way it goes. In the now almost twelve years that I have been back at the NRC, the most significant matter that I’ve worked upon has involved the proposed Yucca Mountain high-level waste repository in the state of Nevada. Now a little bit of history. Obviously, one of the major issues regarding the generation of electricity through the use of nuclear power is what to do with the spent fuel. Currently, the spent fuel is retained onsite, either in a pool of water or in dry casks on the surface of the land. Now, it was long ago recognized that this was not a very good long-term storage of nuclear waste, and so back in 1982, and that’s almost 30 years ago, the Congress enacted the Nuclear Waste Policy Act of that year in which it directed the Department of Energy to come up with plans 218 for the construction of an underground repository to which the spent nuclear fuel that was being amassed at these various sites could be transferred for permanent storage. The Department of Energy, as required by the 1982 Act, embarked upon the study of a large number of possible sites for this repository, and eventually there were three sites that were selected for further consideration. One of them in Deaf Smith County, Texas; another on the Hanford Reservation in the State of Washington. MS. FEIGIN: An Indian reservation? MR. ROSENTHAL: No, no. This was a reservation that actually had nuclear activity on it, definitely not an Indian reservation. And finally, Yucca Mountain, which is located some 100 miles northwest of the City of Las Vegas, adjacent to the Nevada test site. Of these three sites, Yucca Mountain was eventually selected, and it was selected under the aegis of amendments to the Nuclear Waste Policy Act in 1987. The Act specifically provided that the Department of Energy was to consider only Yucca Mountain. The suspicion in some quarters is that Yucca Mountain was selected because it was in a state which had relatively little political influence – at the time, at least. Yucca Mountain having been selected, it was supposed to receive spent fuel by January 31, 1998. That’s a few years ago [laughter]. In point of fact, the application for a permit to construct Yucca Mountain was not filed with the Nuclear 219 Regulatory Commission until June 2008. In other words, more than ten years after the facility was supposed to be up and running. MS. FEIGIN: Is there a reason for that? MR. ROSENTHAL: Well, the reason for that is that the Department of Energy spent how many years – 1987 to 2008 – investigating the site, preparing its application, and in the course of doing all of that, spending probably $12 billion. Just to construct a tunnel, a five-mile-long tunnel, under the mountain, DOE expended $2 billion. I might say I went through that tunnel at one point. They had a tram that went through it. They were conducting investigations – geological investigations, hydrological investigations – under this tunnel, or at various locations through the tunnel. Now, before the application was filed, and this, as I say, was in June of 2008, there were licensing boards that were very active, and they were active because there were a number of pre-application discovery issues that had arisen. I had the dubious pleasure of serving on the socalled pre-application board that adjudicated these issues, and the issues were being adjudicated between, on the one hand, the Department of Energy, which was the proponent of the proposal, and on the other hand, the objectors, which were principally the state of Nevada, but in addition to that, the state of California – Yucca Mountain is very close to the California border – and certain other governmental entities within Nevada. Well the application was filed in June 2008 and Nevada and these other 220 opponents filed something over 300 contentions in opposition to Yucca Mountain, which raised an enormous number of both safety and environmental issues. The Department of Energy, supported by the Nuclear Regulatory Commission staff, responded to these contentions by saying that virtually every one of them should be rejected because they didn’t comply with the Commission’s regulations regarding what was necessary in order to have a contention admitted for litigation. In the spring of 2009, a little less than a year after the application was filed, three separate licensing boards went to Las Vegas to the Commission’s hearing facility that had been built there specifically for the purpose of the Yucca Mountain adjudication to hear oral argument on the 300-and-some-odd contentions and the objections that had been filed in virtually all of them. The contentions were divided up between these three boards, and each board spent one day listening to oral argument on their segment of the overall –– MS. FEIGIN: Just one day? MR. ROSENTHAL: Just one day. So that the total oral argument went to three days. Three full days of argument on the objections to these contentions. On the day that I sat as a member of one of the three boards, I requested and obtained the privilege of making an opening statement on my own behalf in which I said that if, as I thought was very likely to be the case, the Board ended up finding that the vast majority of these contentions were admissible, there 221 were very serious questions in my mind – or there would be very serious questions in my mind – regarding the credibility of both the Department of Energy and the NRC staff. These objections were ridiculous. In fact, Nevada was represented by a former deputy general counsel of the Nuclear Regulatory Commission, and if there was anybody who knew how to file contentions that were in compliance with the Commission’s regulations, it was that gentleman. I don’t think that my message was favorably received by the Department of Energy counsel or the staff counsel, but they didn’t say anything in response. It turned out that we admitted all but about 15 of the contentions, which bore out how ridiculous these objections were. In any case, we were then prepared to move forward on the 300-plus admitted contentions when last March – March a year ago, that is – 2010 – the Department of Energy filed a motion to withdraw its application. Was the motion based upon a claim that the Department of Energy has suddenly discovered that there are safety or environmental problems with Yucca Mountain that cannot be overcome? Absolutely not. The motion was based solely upon policy considerations, and the foremost policy consideration being guess what? DOE just woke up to the fact that there is a lot of local opposition to this proposal in the state of Nevada. Needless to say, Nevada welcomed this withdrawal, but it did not sit that well with the states of Washington and South Carolina, in 222 particular, both of which have a lot of nuclear junk accumulated on sites in their states and had been counting upon Yucca Mountain to get rid of it. So, the motion to withdraw the application was duly opposed by those states, among others, and the opposition was based upon the claim that the 1987 amendments to the Nuclear Waste Policy Act that designated Yucca Mountain as the sole site prohibited the Department of Energy from withdrawing the application that that very Act required it to file. The argument was that under the statute, DOE was required not only to file but to prosecute the application, and it was for the Nuclear Regulatory Commission then to make a decision as to whether Yucca Mountain cut the mustard in terms of safety and environmental considerations. The Board (not including me) assigned to consider the motion to withdraw took note of the fact that the 1987 Act also permitted a challenger to the motion to go directly into court without exhausting administrative remedies, a very unusual provision. And indeed, the Board noted, Washington and South Carolina had done just that. They had gone to the District of Columbia Circuit challenging before that court, as before the Licensing Board, the motion to withdraw the application. At this point, the Board said to the Commissioners, “We don’t see any cause to pass upon this motion to dismiss, any objection to it. The matter is before the court, the court is going to decide it in any event, so it’s going to be simply a waste of resources for us to proceed with this 223 matter.” The Commission’s response was, “You’re going to decide it, and moreover, you’re going to decide it in 30 days.” To which the Board responded, “We can’t do it in 30 days. We haven’t gotten the briefs yet, let alone the oral argument, but we will issue a decision as rapidly as we can following the oral argument.” In fact, within a month of the oral argument, on the 29th of June, 2010, the Board issued its decision holding that the Department of Energy did not have the authority to withdraw its application. The Board agreed with South Carolina and Washington State that, under the provisions of the Nuclear Waste Policy Act, the Department of Energy had to prosecute its application, and it was for the NRC to decide whether to grant or to deny it. DOE immediately appealed the Board’s decision to the Commission, supported, of course, by Nevada. Today, July 18, 2011, this is almost thirteen months since the rendition of the Licensing Board decision, and the Commission has not as yet publicly announced whether or not it will review the Licensing Board decision. Rather surprising isn’t it? The Board was given a month to decide the case, and the Commission in thirteen months – almost thirteen months – has not as yet publicly announced whether it will review the decision. Now, is this because the Commission has not voted on this matter? There was a Congressional hearing a few months ago addressed to the question of what’s going on here, and the four commissioners who are participating 224 in this matter – the fifth commissioner had recused himself because he had had some involvement with Yucca Mountain before coming on the Commission – testified under oath that they all had voted last October. Well why, you might ask, has there been no decision? The reason that there has been no decision is that the chairman will not allow there to be a formal vote. What happens regarding Commission decisions is the commissioners all submit their votes on a sheet, and then, at a meeting, their votes are confirmed. The chairman will not allow there to be a confirmation meeting. And why is that? Because the chairman is totally opposed to the Yucca Mountain project. He has one commissioner with him. There are two commissioners who wish to uphold the Licensing Board decision. What happens if there’s a 2/2 split, as there was here? The decision below is affirmed, and that is not what the Commission chairman wanted. What he wanted, and what he’s now accomplishing unilaterally, is killing the project in a different way. DOE and the NRC both have totally dismantled their Yucca Mountain operation. Everybody that worked on Yucca Mountain in the Department of Energy is no longer assigned to that project. The NRC has shut down entirely its review of the Yucca Mountain proposal. The hearing facility in Las Vegas that was constructed solely for the purpose of conducting the evidentiary hearings on Yucca Mountain is being released. As of the end of this fiscal year, that’s September 30, 2011, neither the 225 Department of Energy nor the NRC will have anybody working on Yucca Mountain. All of the people that had been working on it will be assigned elsewhere. All of the contractors that had been employed to work on it will be gone. Even should the court, which still has the matter before it, determine that the Licensing Board decision was correct, that under the Act in question DOE was required to prosecute the application, as a practical matter the project is probably dead. Now, are these facts secret? No. Everybody knows what has happened here. And what it has done, among other things, has been to sadly impair the Nuclear Regulatory Commission’s reputation as a nonpartisan regulatory agency. It’s recognized far and wide that the chairman, for political reasons, has unilaterally destroyed this project. The political reason: Senator Harry Reid. The Majority Leader of the United States Senate, a Senator from the state of Nevada, has violently opposed this project from Day One, and the suspicion abroad – I think myself it’s more than a suspicion – is that this is being done for Harry Reid’s benefit as well as to make good on President Obama’s commitment when campaigning in Nevada to scrub Yucca Mountain if elected president. So this is entirely a political decision, bearing in mind again that DOE did not claim in its motion to withdraw the application that the motion was based upon safety and/or environmental considerations. 226 MS. FEIGIN: You said last time that there’s an irony in President Obama’s position. I wonder if you could explain that for us. MR. ROSENTHAL: I’d be happy to do so. There are more operating nuclear power plants in the State of Illinois than in any other state in the Union. As a consequence, there’s more nuclear waste generated by power plants to be found in Illinois than in any other state. For that reason, it would seem that Illinois would have the greatest interest in seeing Yucca Mountain built so that the nuclear waste that’s being generated in the state could be removed from it to the repository. I’m certain that, unlike President Obama, the senators and representatives from the state of Illinois are most anxious to have Yucca Mountain built, although apparently, at least with the Democratic members of Congress, Senator Reid carries enough influence that they’re not raising an issue about it. It is my understanding that among the Republicans in the House there’s a great deal of agitation over what’s happened with respect to the Yucca Mountain application. MS. FEIGIN: I sense a frustration on your part, and I wonder does this impact how you feel about decisions you make that go up to the Commission, that at least in some cases can be politically motivated? MR. ROSENTHAL: Over the years, obviously, first as an Appeal Panel member and more recently as a Licensing Board member, I’ve had many decisions go to the Commission. I’ve been satisfied with some of the Commission outcomes. 227 I’ve been dissatisfied with others. But I have never previously felt that any Commission decision, whether on review of one of my decisions or a decision of a colleague, was motivated by partisan political considerations. I have thought that some Commission decisions over the years have reflected too cozy a relationship with the industry, but that was not a partisan political matter. And that, frankly, is what disturbs me the most about what has transpired with regard to Yucca Mountain. I have devoted a very significant portion of my life to this Commission and its predecessor, and as a consequence, I take a substantial interest in how it’s viewed by the public at large. It’s for that reason that I deplore what has transpired with respect to the Yucca Mountain application in the course of the last year or so. Now, I don’t know what’s going to happen from this point on. My oral history is about to come to an end. I would like to think that despite the current posture of this matter, Yucca Mountain will be revived. Now when I say “revived,” what I’m talking about is the application. I’m not predicting at this point what will be the ultimate outcome of an evidentiary hearing on Yucca Mountain, should one occur. There are very serious safety and environmental issues that have been raised by the opponents, principally the state of Nevada, and it might turn out that their concerns will prove to have been totally justified, with the consequence that at the end of the day NRC boards and the Commission on its review will 228 determine that Yucca Mountain simply will not fly. My problem is that Yucca Mountain is being scrubbed – or at least an attempt is being made to scrub it – without the evidentiary hearing that seems plainly required, as the Licensing Board found, by the governing statute, and this is particularly appalling, in my mind, because there is no Plan B for dealing with the accumulating spent fuel. There is some kind of commission that has been established by the president to explore other alternatives. In my mind, such commissions are created simply because there’s no other alternative on the horizon. It’s the absence of Plan B for disposing of this nuclear garbage, some of which I might say is military in nature. Yucca Mountain would not merely be housing the spent fuel from commercial nuclear power plants. It also would be housing nuclear waste that’s generated by military operations. So that’s where it stands, and I don’t know how it’s going to turn out. As matters now stand, Yucca Mountain is dead. It might or might not be revived. I just think this is a very, very sad day in the history of the Nuclear Regulatory Commission over the now almost forty years of its existence. MS. FEIGIN: I wonder now that you’re on the initial panels, as opposed to an appellate panel, whether that changes your perspective at all. In other words, when you were on the appellate panel and you were reviewing these initial 229 decisions, you looked at them one way; now when you’re looking at them, does it change anything for you? MR. ROSENTHAL: Not really. I would like to think that I avoid some of the mistakes that as an appellate adjudicator I found in Licensing Board action [laughter], but I haven’t found it substantially different. One of the things, though, that I should have mentioned is that I’ve been there, as I say, for almost twelve years, and I’ve conducted exactly one evidentiary hearing. Almost all of the cases that I’ve been on have been disposed of without the necessity of an evidentiary hearing. Now, I probably have conducted maybe 40 oral arguments on issues of standing, on issues of contention admissibility and the like, but that happens to have been the way it goes. I mention that because it demonstrates that as it’s turned out, what I’ve done as a Licensing Board panel member has not been substantially different from what I did as a member of the Appeal Panel [laughter]. It’s been basically hearing oral arguments on legal issues. MS. FEIGIN: You work part-time now, but what does that mean? How much time do you devote to it? MR. ROSENTHAL: Well unfortunately I’m not working as many hours these days as I would have liked. Four or five years ago, in anticipation of extended evidentiary hearings with respect to Yucca Mountain, as well as numerous evidentiary hearings in connection with the renaissance in applications for construction permits and operating licenses for new nuclear power plants, 230 the Licensing Board panel management decided to take on four additional full-time lawyer judges. Well, Yucca Mountain did not materialize, or at least it has not at this point. Most of the applications for construction permits and operating licenses for new nuclear power plants have not produced evidentiary hearings. The consequence is that the workload is now much less than had been anticipated. Obviously the full-timers have to be kept busy, and so I get what’s left over, and these days it isn’t very much. Most of my time I regret to state is devoted to the peer review of other Licensing Board members’ work. And that’s something that gets me into the office from time to time, but I would like to have more work than I now am given or that I’m likely to receive in the future. How long I’m going to stay on the panel remains to be seen. As indicated earlier, I signed up last month for another year, which will take me, health permitting, until June 30, 2012, and it remains to be seen whether I will continue. My present inclination is that if they continue to want me, I will stay with the panel as long as my health permits and there’s at least something for me to do. MS. FEIGIN: Let me just ask one closing question before we leave the Commission today. You said earlier that there was a long period without applications for new or expanding facilities and then there came a time more recently when they have started to come in. I assume the original hiatus might be related to Three Mile Island? 231 MR. ROSENTHAL: I don’t know to what extent it was related to Three Mile Island. I think it was related more to considerations of economics. It requires an enormous sum of money to build these plants. In many states, you cannot put the cost of construction into your rate base until after the facility has gone into operation, so you’ve got significant borrowing costs associated with building them. There was a time when it was thought that electricity generated by nuclear power would be too cheap even to meter, and that certainly was proved early on to be a total fallacy. I have even substantial doubt as to whether many of these proposed plants today – the ones that are going through licensing proceedings – will actually be built. In that connection, Dominion Power Company, which is across the river in Virginia, has a two-unit facility in operation at Lake Anna, down south of Fredericksburg. North Anna is the name of the facility. It applied for an early site permit for an additional unit or two on that site. When it came to the attention of a reporter, he asked the president of Dominion whether the application for this permit meant that Dominion was all ready to go with the building of an additional unit or two once it got NRC approval, and the president said, “If I answered that question ‘yes,’ my chief financial officer would have a heart attack.” But even back in the 1980s it was becoming increasingly clear that there were definite economic obstacles to building these plants. MS. FEIGIN: Why now then is there an increase in applications? 232 MR. ROSENTHAL: I think they’re hopeful of getting all kinds of federal government benefits of one kind or another. There is a federal government impetus to increase the use of nuclear power for the generation of electricity, but it remains to be seen how many of these plants actually get built. MS. FEIGIN: You said earlier that the way the system works is a bit awkward in that the environmental assessments are written after you file your opposition to them, so is it ultimately that you can amend your opposition? MR. ROSENTHAL: Well, yes. You can file what the Commission for a long time characterized as late contentions, which carried an onus. Really they should be described as new contentions. Once there are new developments, you can file new contentions addressed to the new developments. My view of it, as I indicated earlier, is that at the threshold state, all that a prospective opponent should have to do is to come in and establish standing, that he has a basis for complaining about the particular facility. Then everything should be kept in a state of suspension until the staff has completed its technical review. The technical review consists of issuing an environmental impact statement addressed to the environmental impacts and a final safety analysis report which is addressed to the safety issues. What happens now is hearing request filed, opposition filed by the applicant, usually joined by the Commission staff. The Board then passes upon the hearing request, decides whether there’s standing, decides 233 whether there’s at least one admissible contention, and then guess what happens? The case goes into suspension for a year, two years, while the staff is conducting a technical review. It makes utterly no sense. I’m just waiting for some young administrative law professor who’s faced with publish or perish [laughter] to come up with a scathing Law Review article addressing this system which for my money would have made Lewis Carroll and Alice in Wonderland proud. MS. FEIGIN: Alan, maybe since you’re not working as many hours as you had hoped, you can start working on that article [laughter]. MR. ROSENTHAL: Obviously, as long as I remain in the employ of the NRC, even on a parttime basis, it would be very poor form, I think, for me to attack the Commission’s procedures. Needless to say, I’m not the only one who is mystified by them, and particularly, there are boards that are now handling these power plant cases, which I am not. It’s sort of frustrating when they go through the preliminary stages and they hold oral arguments on contention admissibility and standing and all of that and then they come down with their decision on what contentions are admissible and what are not, and then they just do nothing for a year or two in the case, waiting for the technical review to be completed. And I would have to say in that regard that the staff is pretty good about the technical reviews in the power plant cases, in getting them completed seasonably. But in the decommissioning cases, or in the license extension cases, they take 234 centuries. If I may just add one other thing before we close it out, on license extensions. You have a license and it’s for a term of years, and now you want to get it renewed. Here is a perfect example of the flaws associated with the renewal process. In one of these cases a month before the license was to expire the licensee filed its renewal application. This happened to be for a uranium mine. Because the licensee had filed the application a month before the license was to expire, under the Commission regulations, the license thus remained in effect until such time as the renewal application was adjudicated, on the opposition of residents of an Indian reservation who claimed that this mine’s operations had been polluting its waters and had caused all kinds of ailments to the residents of the reservation. Now, their hearing request was granted two years ago. Have their claims been heard yet? No they haven’t. And why is that? Because the Commission staff has not completed its technical review of the license renewal application, and it now looks like it’ll be another year before this matter reaches a hearing. So what’s the current situation? The situation is that for at least three years this mine will continue in operation, notwithstanding the claim of the Native Americans that the mine operations are causing them substantial physical injury, without any hearing on the merits of that claim. Is that reasonable? No. But that’s the way the system works, and I have to say that while the Commission puts 235 enormous pressure on the licensing boards to get their decisions out, particularly where it’s an application for a permit to build a nuclear power plant, and to operate it, in these cases such as the one I just referred to, no pressure on the staff at all. It’s a disgrace. But that’s the way that the system operates. If I were the Native Americans in this uranium mine case, I would be in court claiming that there has been a denial of due process and that because of the fact that the agency has dragged its feet so long, the principle of exhaustion of administrative remedies simply doesn’t apply. But this is the way it goes. So, what I’m saying is that there’s a lot wrong in my judgment with the way that the administrative adjudicatory process operates. There’s one irony here, which is that while it’s to the advantage of the licensee seeking an extension to wait until a month before its license expires to apply for the extension, most of the utilities seeking extensions of their operating licenses apply for the extensions 10 and 15 years before the license expires because they want the certainty as early as possible that they’ll get the license extension. MS. FEIGIN: Interesting. Well thank you very much for walking us through this. I appreciate it enormously. MR. ROSENTHAL: It’s been a pleasure once again. I guess there’ll be one more session. MS. FEIGIN: I look forward to it. 236 ORAL HISTORY OF ALAN ROSENTHAL Ninth Interview – July 25, 2011 This interview is being conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is Alan Rosenthal and the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in the King Farm subdivision in Rockville, Maryland, on Monday, July 25, 2011. This is the ninth interview. MS. FEIGIN: Alan, good morning. MR. ROSENTHAL: Good morning. MS. FEIGIN: We have, I believe, covered your career, but not your personal life, and I’d like to know about you, what you’ve done extracurricular, your family, some of the more personal details, if you would care to share them with us. MR. ROSENTHAL: I’d be delighted to, Judy. Perhaps I might start with some of what I think of as extracurricular activities. I actually on two separate occasions taught courses in law schools. In the spring of 1982 and again in 1983, I taught a seminar in, of all things, nuclear law, at the University of Pennsylvania Law School in Philadelphia. It was taught on a Tuesday afternoon, between 4:00 and 6:00, and I would catch the train at Union Station here in Washington around noon, I would get to the 30th Street Station in Philadelphia around 2:00, and it was just a short walk, probably 10 minutes, from the railroad station to the law school, where I would first have office hours. Then the class, as I say, went from 4:00 to 6:00, and I 237 would be back home by 9:00 or shortly thereafter. Each semester there were approximately 16 in my class. The first semester – this was the one in the spring of 1982 – the first day of class, a gentleman came in, I took a look at him, and I estimated his age at being somewhere between 55 and 60, and it was difficult for me to conclude that he was a regular undergraduate law student. Well, we took a 10-minute break midway through the two-hour session, and I asked him to stay for a minute, and I gently inquired as to whether he was in fact a student in the class. He said yes, he was Edward Shils, and sure enough, his name was on the roster. It turned out that Dr. Shils was a chaired professor in the Wharton School who had decided that he was going to come over to the law school and take an occasional course that might be of some interest to him. He was not going to be a degree candidate. I said, “Well I assume therefore that you’re just auditing the class.” He said, “Not on your life. I intend to do a paper at the conclusion of the class.” Which he did, and the paper was perhaps a little more economics than it was law, but I can tell you it was of much higher quality than anything I got from the regular undergraduate law students, and he obtained one of the few “A’s” that I gave out in that class. I might say that while I enjoyed the experience, two years were enough of this business of commuting up to Philadelphia once each week, and in one respect, it was a rather discouraging experience, and that is all 238 my students obviously were either in the second year or the third year, and this was in the spring of the year. The third-year students all had jobs already lined up, and for the most part, their interest in putting a lot of time and effort into the course was minimal. Now the second-year students, of course, were not as yet the possessors of permanent employment, but they had been led to believe, which at that time was probably correct, even though it’s certainly not at the present, that attending a consensus top-10 law school assured them of employment post-graduation, no matter what their grades might be. Indeed, most of them seemed to think that employers would come to the law school on their knees begging the third-year students to come to their law firms. So I found, quite frankly, that a good number of the students that I had did not put into the coursework the amount of effort that I would have preferred. Well we now move on a number of years to the year 1991-92, and I was induced to teach a section of the legal method course at the Washington College of Law of American University. This was the nutsand-bolts first-year course, learning the tools of legal research, preparing in the fall semester memoranda, in the spring semester doing an appellate brief and an appellate argument. My problem with these students was what to me at least was a substantial attitudinal deficiency. This materialized when at the end of the first semester the students were called upon to provide evaluations of the 239 course and of the professor. I had 16 students, and 13 of the evaluations struck the same note: Much, much too much work for a two-credit course. “Why are we being required in this course to do much more work than we’ve had to do in any of our black-letter 3- or 4-credit courses?” I can tell you that that irritated me no end, and, at the beginning of the second semester some time after the first of the year, I said to the class, “You’re now going to be subjected to a 5-minute monologue. This applies to 13 of you, not to the other three, but unfortunately the people to whom this does not apply are going to have to listen to it.” And I made no bones about the fact that I thought that that was a very poor attitude towards the study and eventually the practice of law. I suggested to them that if they thought that upon graduation their major problem, or burden, was going to be carrying big paychecks to the bank, they were sadly mistaken. In any case, they just sat there, obviously in silence, and listened to this and there was no response at all. And we moved forward from there. I would also note that one significant difference between these students and the Pennsylvania students was that whereas the Pennsylvania students were, as I indicated a few minutes ago, arrogant, these students were not. Indeed, I think that they recognized that they were at a law school that did not have as much prestige as some others and that employment might be an issue if they did not do sensationally well, and most of them had incurred as undergraduates substantial educational 240 indebtedness, and now the law school indebtedness was going to be piled on, so this was a pretty nervous lot. I kept track of two of the students, both of whom were among the three who had not given me this course evaluation that I found unsatisfactory. I’m happy to say that both of them did well through the three years of law school and both obtained employment post-graduation with very blue-ribbon law firms. The one thing that I would just add with regard to that experience is that one of the three whose course evaluations I found acceptable, indeed one of the two who I tracked down the road, had graduated summa cum laude from Kenyon College, which is a very solid institution. He graduated summa cum laude or alternatively it may have been junior Phi Beta Kappa. In any event, he graduated from Kenyon with an absolutely superb academic record, and here he was at a law school of somewhat less prestige. I inquired as to what had brought him to American, and he said what brought him to American was that he had done relatively poorly on the law school admission test and he discovered to his dismay that most of the more selective law schools had a LSAT floor that if you didn’t get on the LSAT a grade above a certain point, they wouldn’t take you no matter what your academic record was. I found that rather surprising, as well as in my view irrational. In any case, those were my two excursions into the world of academia. 241 MS. FEIGIN: What is your general view of the LSAT? MR. ROSENTHAL: Well I have no idea the extent to which the LSAT overall is a good measure of the likelihood of success in law school. It isn’t intended to be, and certainly is not, an indication of how successful one is going to be in practice, and that’s why it has always surprised me when I got a résumé from an applicant for a position in one of the agencies for which I worked that contained a specific reference to his or her LSAT score. I would remind them during the course of the interview that, at least insofar as I was concerned, that was totally irrelevant. But these were actually very good scores, which is why they thought fit to put them on the résumé [laughter]. MS. FEIGIN: So you only spent one year at AU? MR. ROSENTHAL: One year at AU. I didn’t find that an interesting or worthwhile experience so I just did it one year. I did have, I might say, a third-year student assistant who took care of indoctrinating the students into the tools of legal research, particularly how to use the so-called Bluebook which is given slavish observance in many quarters, although I would have to say that at the Department of Justice not that much attention is paid to the fine points of citation that were contained in this Bluebook. I discovered that when I came on board, because, according to the Bluebook, the federal Court of Appeals citation is, in the case of the District of Columbia circuit, “D.C. Cir.” For the Solicitor General, who controls the citation forms employed 242 in the Department, it is “DC CA.” So when some of my law clerks correct what I write to change the citations to the Bluebook form, I remind them of the fact that they may think that the Bluebook is the necessary last word, but that’s not an opinion that has been shared by a large number of Solicitors General. I have to assume, I’ve been out of the Department of Justice for a very, very long time, but I have to assume that they still cite in the Department, in some respects at least, in a manner different from that dictated by the Bluebook, which after all is simply a publication of the Harvard Law School, that is subscribed to by I think Yale, Columbia, and Pennsylvania. The University of Chicago, I think, has a competing citation book, but I don’t know who uses it outside of the University of Chicago Law Review. MS. FEIGIN: When you were teaching legal research, this was pre-Westlaw days? So people were doing research the old fashioned way using Shepards? [Laughter] MR. ROSENTHAL: Oh yes, this was clearly before the days of Lexis. No, you did it the book way. You went to the library and pulled the books off the shelves, rather than doing the research on the computer. MS. FEIGIN: We should probably clarify for generations down the road what Shepards is. MR. ROSENTHAL: Shepards was a vehicle for determining whether a particular court decision had subsequently been reversed or modified or critiqued in some 243 fashion. There’s nothing more embarrassing than to rely heavily in one’s brief on a particular case, Jones v. Smith, for example, and then to be informed, either by your adversary or, what’s even worse, by the court, that “Counsel, that decision was overruled several years later.” So Shepards was a very valuable tool, and, of, course now you can Shepardize on the computer. MS. FEIGIN: In addition to your teaching, do you want to tell us about some of your non-legal activities. MR. ROSENTHAL: I had two main enterprises outside of the vocational area. One of them was the Cedar Lane Unitarian Universalist Church which I became affiliated with in 1959 and still am a member there, albeit not that active given the fact that we now live at a distance of 12 miles or so from the church. But over the course of the period between 1959 and, let’s say 1993 or 1994, I served on the board of trustees for a total of eight years and was its chairman for one year. In addition, there were very few areas of church activity that I was not heavily involved in at one time or another. I chaired the Denominational Affairs Committee, I chaired the Religious Education Committee, I was on the Social Action Committee for two years and served as its treasurer. I was engaged in most of the activities that the church offered apart from two. One of them was I did nothing that involved the use of the kitchen. I stayed away from that entirely. In addition to that, for good and sufficient reason, I had nothing 244 to do with the music program. I don’t know whether I’m tone deaf exactly, but certainly I would not have been a welcome member of what has always been in that church an excellent choir. I’m sure that the music directors over the years have been very happy that I have stayed away from that. The church, up until the time that we moved here, that’s just a little over a year ago, has occupied a very, very significant part of my life. The way we got there was interesting. I think I may have noted in my first session that I grew up essentially without any involvement with a religious institution. A little Ethical Culture, but that was the extent of it, at least post my biological mother’s death. I think I may have mentioned that I had gone to an Episcopal Sunday school when I was very, very young. In any case, we came to Washington, and when our first child was born in 1954, we decided to look around for a church. One of the things that draws people to churches or to synagogues or to other religious institutions is providing some kind of religious instruction to kids. It’s amazing how many people turn up at our church, Cedar Lane, when they have kids reaching the age that religious education becomes something of interest. In any case, we started out attending, but did not join, a Presbyterian church in our area. Well, it became clear for reasons that are not important that that church was running into some problems, and so we abandoned that. But in, I think it was about 1958, one of our neighbors asked us to join him and his wife in attending the local Unitarian church. 245 It was then just Unitarian, the Unitarian and Universalist associations a few years later merged, and so the church is now Unitarian Universalist. Then it was simply a Unitarian church, and we accepted his invitation to visit the establishment, and here it is umpteen centuries later we’re members. So that’s how we got involved with the church in the first instance. MS. FEIGIN: Before we leave the church, to just clarify, or give a little more detail, you taught Sunday school I believe? MR. ROSENTHAL: I taught Sunday school for six years, between 1960 and 1966. This was a class of 4th graders. The members of that class this year turn 60, so it gives you some idea as to how long ago they were 9-year-olds in the first year that I taught. It was an interesting experience. I had never taught before, anything, and certainly not 9-year-olds, and the then director of religious education said to me, “Alan, just remember boys will be boys.” That was all of the instruction or guidance that I received before the first class [laughter]. Well, in that class there were five boys among the 15 in the class altogether, five boys who, let’s put it this way, were bent on being as disruptive as they could possibly be. And at the end of the first class, I asked them to stay for a minute or two, and I tried to politely but forcefully get across the point that I found their conduct unacceptable. “Well,” they said in injured tones, “we have been together since 246 kindergarten, and no teacher has ever before said that our behavior was not acceptable.” [Laughter] They didn’t put it quite in those terms, but that was the message. I said, “Well, number one, gentlemen, I don’t believe it [laughter]. And, number two, it’s entirely unimportant what your teachers in prior years tolerated. I am not tolerating what took place today.” Well there was a modest reformation in the balance of the semester. I wondered, however, whether those boys were going to end up in Alcatraz [laughter], but I was only able to track one of them because his mother remained a member of the church for many, many years thereafter, and this gentleman ended up as a professor at the University of Chicago, so I guess I have to say that there was a conduct modification somewhere down the road [laughter]. MS. FEIGIN: What is it that drew you to this church? What was the appeal of this organization, since you obviously tried others? MR. ROSENTHAL: I think it was the fact that it totally lacks a doctrine to which members have to subscribe. The principal tenet of Unitarian Universalism is that it is up to everyone to determine for him or herself where truth lies to the extent that truth can be ascertained, and to formulate his or her own value system. In most of the other religious institutions that we might have looked over, there is a doctrine to which one is expected to adhere, so it was essentially that, and it was a good fit for us. Helen taught in the church school for something like 38 years, most of it the Bible, and she 247 just retired fairly recently from teaching in the school of religion. Moving on to my second principal avocation, it was the North Chevy Chase Swimming Pool, and more particularly, its swim team, which competes in the Montgomery County swim league each summer. It involves a division of six pools and there are five dual meets, a dual meet against each one of the other pools, plus two meets that involve all six teams in the division. The divisions are seeded depending upon the performance of the team the prior year, and they go from an A division down to an O division. This involves now about close to 90 community pools all located in this county. In any event, my son Richard, when we joined the pool, was 9 years old and joined the team and swam on it for a number of years. Kids age out when they’re 18. That’s the last year that they can compete. And Richard competed for a number of years, and then down the road, my youngest son, James, competed on the team from age 7 to age 18 and was a very accomplished swimmer. So I became heavily involved in the activities of the swim team and occupied various deck positions, place judge, timer, stroke and turn judge, and eventually I became a certified referee, and I refereed both the so-called “A” meets which were on Saturday morning and which involved the better swimmers, and the “B” leagues which were on Wednesday nights and involved the not-soaccomplished swimmers. I refereed meets for something like 30 years, 248 and the last summer in which I refereed meets – they were “B” meets – was 2009 when I was approaching my 83rd birthday, and I’m fairly confident that I was the oldest certified referee still operating at that time. In addition to being involved with the swim team, I was also involved with the administration of the pool. I served on its board of directors for a total of 20 years, off and on. You could serve six-year terms and then you had to be off the board for a year, and then you could come back on. I was president of the pool for two years, 1974 to 1976. So this was really a major part of my non-working life. MS. FEIGIN: Are you yourself a swimmer? MR. ROSENTHAL: No, not particularly. I can swim, but I never was involved in it competitively. My form, in virtually every stroke, is dreadful [laughter]. I would get disqualified in a minute in the breaststroke and probably as well in the butterfly − although I never really tried the butterfly. That’s a pretty difficult stroke, so no. But you don’t have to be. It’s interesting that there was at one time for many years a head coach of the West Point swim team who was regarded as one of the absolutely top college swim coaches of his era, and he couldn’t swim a stroke himself. And, of course, coaching, you don’t normally get into the water with the swimmers. That’s different than when you’re teaching swimming, then frequently you get into the water with the swimmer to assist in teaching the particular strokes and whatever. The coaching is generally done on the deck, so the fact that this 249 West Point coach couldn’t swim did not at all interfere with his ability to do his job. So, in any event, those were my two principal activities. In addition to that, over the years I did a number of other things over a much shorter time span. When my older two kids were in elementary school, I served both as the president of the elementary school PTA and at a different time, as the chairman of the principal’s advisory committee. MS. FEIGIN: This was public school? MR. ROSENTHAL: Public school. This was public elementary school. My four kids went through Montgomery County public schools kindergarten through 12th grade. None of them attended as much as a minute of private school. In addition to that, at one point my oldest son became a Cub Scout and I was pressured, and I use that word advisedly, into becoming the chairman of this particular Cub Scout pack, and it was an extraordinarily onerous duty, given that the principal function was to recruit women – and in those days they were all women – to serve as the den mothers, and I tell you it took all of my powers of persuasion, which unfortunately are rather limited, to get these women to do this [laughter]. A carpool mate of mine – these were still Justice Department days – was a Mormon, and I recounted to him one day the difficulties that I was having in recruiting these den mothers. He laughed and said, “Well you know,” he said, “my kids, at least one of them, is in a Cub Scout pack, and 250 the chairman has no difficulty at all in recruiting den mothers.” It seems that this pack was sponsored by the Mormon church, and all that the chairman had to do was to say to Mrs. X, Mrs. Y, Mrs. Z: “You are the den mothers,” and this was accepted by them as part of their responsibilities as members of that church. So I thought to myself, well is there any possibility of converting my pack into one under Mormon sponsorship [laughter], and I immediately came to the conclusion that no, that was not possible, and I would just therefore have to continue to try to persuade these ladies to assume this duty. Well happily none of my other three ever saw fit to become involved in either scouts, or in the case of my daughter, Brownies or Girl Scouts. So I never again was called upon to do anything in that particular sphere. I can’t say that my exposure to the Cub Scouts was one of the more pleasant aspects of my avocational life. Another activity that I engaged in took place some time I think in the early 1970s, although I don’t remember the precise year. A chapter of the American Civil Liberties Union was formed in Montgomery County, my county here, and I ran for and was elected to a position on its inaugural board of directors. The board had 15 members. Well I found that experience quite acceptable until the teachers in the county went out on strike, I might say in violation of Maryland law, and the union officials, to avoid getting served with process in a lawsuit designed to produce an injunction requiring the termination of the strike, all crossed the river into 251 Virginia and were holed up in some motel there for some time. I thought the strike was absolutely outrageous. I am a firm believer in obeying the law in general, and more particularly in public servants respecting their obligation to refrain from illegal activity. There was a meeting of the board of directors to discuss what position the board was going to take with regard to the strike. I was quite frankly appalled to find that all 14 of my colleagues on the board were prepared to issue a statement, which in fact was issued over my dissent, to the effect that the strike represented an appropriate exercise of a civil right. That was shortly before my term expired, and it had left such a bad taste in my mouth that I did not run for reelection. To this day, I regard that statement as shameful. But again, I guess I’m really not able to say that everybody else on that board necessarily was totally out to lunch. Still another activity that I engaged in beyond my work life was service for two terms on the Montgomery County Board of Education’s Ethics Panel. My two colleagues were the chairman, who was a man, and a woman. The duties of the panel were basically twofold. First, annually the panel members were called upon to review the financial disclosure statements that had to be submitted by the members of the Board of Education, by the superintendent of schools, by all of the assistant superintendents, and by a few other ranking officials, such as the director of purchasing. The object of this exercise was to determine whether, on 252 the basis of the securities that were owned by these individuals and their other outside associations, there were any conflict of interest problems. And actually those financial disclosure statements were a mere shadow of what federal employees such as myself were required on a certain level to submit each year, and they actually provided much too little information in terms of the financial assets and associations of the people submitting these forms. So I thought that was essentially a worthless enterprise. The other function was to entertain from the employees of the school system any inquiries that they might wish to make regarding whether they could engage in this activity or that activity consistent with the ethics code that governed their employment. Well, the problem with that was that the existence of this panel was artfully concealed from most of the employees [laughter]. It was not advertised. Oh, there might have been a passing mention of its existence in some school publication. The consequence of this is that I think in the six years that I served on that panel, two three-year terms, the panel might have gotten as many as five inquiries as to whether a certain activity could or could not be engaged in consistent, again, with the ethics code that governs school employees. So the short of it was that at the end of the six years, being entirely unsuccessful in my endeavor to get the powers that-were in the school system to advertise more broadly the existence of the panel and its functions, I advised the Board of Education that I did not want to stand for 253 a third term. So the fact of it is that neither my term on the Montgomery County ACLU Board nor my time on the Ethics Panel was particularly meaningful to me in sharp contrast to my many, many years of involvement with both the Cedar Lane Unitarian Universalist Church and the North Chevy Chase Swimming Pool Association. So that’s about it insofar as extracurricular activities are concerned. MS. FEIGIN: Tell us a bit about your family. MR. ROSENTHAL: Well, my family starts, of course, with my wife, Helen, who grew up in Paterson, New Jersey, went to Wellesley College, and then on to the Yale Law School. And her first year at Yale, which was 1950-1951, was my third year, and in that third year, as I probably noted early on, I served as a legal research instructor, and lo and behold, Helen ended up in my class. Needless to say, I did not date her through that semester, but was very attracted to her, and we started to date shortly after the semester was over. I might say she got a “B” in my class [laughter]. I think she did a lot better in her black-letter law courses than she did in that. In any case, we dated through the spring, and late in the spring became engaged. Well, I was headed to Washington for a clerkship, and at that time, my plan was at the end of the year’s clerkship to return to New York, so Helen transferred from Yale to Columbia, and she was there for the fall semester, 1951 into 1952. Well during the course of that semester, I informed her that I 254 changed my mind. I was planning to stay in Washington. So what does she do, she then transfers to George Washington. So she went to three law schools, and I have to say that her time at GW was immensely successful. She graduated second in her class, and even though she was getting a late start, made the Law Review. MS. FEIGIN: She accepted it, unlike you? [Laughter] MR. ROSENTHAL: Yes, she accepted it, and she wrote a very solid piece for the Law Review which was published on a case that dealt with the desegregation of the restaurants in the District of Columbia. It involved the Thompson Restaurant, which was a cafeteria-type operation. A suit was brought against it based upon an 1880 or 1870-something statute that everybody had overlooked that precluded racial segregation in public accommodation establishments such as, of course, the Thompson Restaurant. In any case, she had a very distinguished record at George Washington, a very solid record, and I might say at Yale and Columbia before that. Coming out of law school in 1953, jobs were almost as difficult in the legal profession for entry-level lawyers as they are today. MS. FEIGIN: And especially for women I presume. MR. ROSENTHAL: And especially for women. So she opened her own law office with a classmate, or maybe two classmates of hers, and they practiced law briefly. Well then a year after she graduated, her oldest son was born, and that brought her law practice to an end. She has not practiced law since, 255 and she devoted the following years to bringing up our three sons and daughter, and I have to say that this was done in an era where most men, or at least many men, I think it is probably most men, myself included, did not do the share of housework that is expected of men today, and I think I can say that my sons are all fully into what is the current expectation. So I have to say that Helen is entitled to 99% of the credit for what turned out to be the very successful upbringing of our four children. The oldest, Ted, Edward is his name, called Ted, named after Helen’s brother, went to Carleton College and in the senior year at Carleton, he was apparently torn between going on and getting a PhD in history which was his college major or instead going to law school. Well, in December of that year there was an article in The New York Times about the meeting of the academic historians, and at that meeting, so the article said, there were about 120 history PhDs, most of them from very prestigious graduate schools, who had lined up in quest of a position that had opened up at the East Nowhere Junction University [laughter], and Ted reached the conclusion that maybe the law was the better course to follow. So he applied to and was accepted at Columbia, was a managing editor of the Columbia Law Review. Post-graduation, he had a clerkship for one year with the then Chief Judge of the Court of Claims Daniel Friedman, who just died a week or two ago. Ted spoke at his memorial service. 256 After the clerkship, Ted returned to New York, went to work for what has been known in more recent years as Fried, Frank, Harris, Shriver and Jacobson, for which he had been a summer associate both after his first and second years. Ted remained with Fried Frank from 1980 until he left the firm in 2002 to go to Pittsburgh where he is currently the deputy general counsel for corporate matters at PNC Financial Group, which is a large regional bank that now has banks here in the Washington area. His first years with Fried Frank were in New York. Shortly after he became a partner in 1986, the firm opened a Los Angeles office, and he was detailed to it for what was supposed to be 11 months. Well in the course of those 11 months, he met Nadine, who was a native of the Valley out there, and that was the end of any interest in returning to New York. They were eventually married, and they lived in Santa Monica first and then in the Bel Air section of Los Angeles until they moved to Pittsburgh in 2002. For her part, Nadine attended the California State University at Northridge and for a period of time worked as a trust officer at the Wells Fargo Bank. She now is heavily engaged in maintaining a cooking blog that features a number of delicious recipes. I congratulate her on making such a good adjustment to Pittsburgh winters after spending almost her entire life in California. They have two children, a son Charles – Charlie – who followed 257 his father to Carleton College, where he’s now a junior, and a daughter Kate who is now attending a private school in Pittsburgh. I think that she is a rising junior, if I’m correct, and an avid tennis player. She apparently spends all her waking hours that are not in school playing tennis, and I’m sure that that’s going to be her interest as an athletic activity when she gets to college. For his part, Charlie has been a Quiz Bowl whiz in both high school and college and has also been involved in the campaigns of candidates for political office. My daughter Susan is not married. She followed her mother to Wellesley College. After teaching for a few years at a private school in the county here, she went to the University of North Carolina-Chapel Hill where she got a doctorate in psychology. The first two years after she obtained her degree, she did a post-doctoral fellowship at Yale University’s Child Study Center, and then she went to Cincinnati to the Children’s Hospital there, where she was an adolescent psychologist for a period of 12 or 13 years. During that period, she came under the wing of the then director of infectious diseases at Cincinnati Children’s, Dr. Larry Stanberry. He moved to the University of Texas Medical Branch in Galveston, where he became head of the Children’s Hospital, part of that medical branch, and induced Susan to follow him to Texas where she became the director of the Adolescent Medicine branch of the Children’s Hospital. At one point, there was reason to believe that she was one of 258 only two non-physicians heading up an adolescent medicine branch at a major children’s hospital. Well she remained at the University of Texas medical branch for seven years or so, during which she survived several hurricanes, the last of which devastated Galveston Island, absolutely wrecked her office, but her house managed to survive with minimal damage. In any case, Dr. Stanberry moved on to New York to become head of the Children’s Hospital that’s part of Columbia University’s Medical School. MS. FEIGIN: Physicians and Surgeons? MR. ROSENTHAL: Physicians and Surgeons. And the hospital at one time was known as New York Presbyterian. I think it may have changed its name. In any event, Susan has now followed him to New York. She did this about two years ago, where she is the vice chair of the Department of Pediatrics at the College of Physicians and Surgeons, and is in charge of faculty development. I think for somebody who has not a medical degree that represents quite a significant accomplishment. My son Richard went to Haverford College, majored in the Classics, and for two years after graduating from Haverford he taught Latin at the Maret School in downtown D.C. or semi-downtown D.C. I guess is more accurate. He determined there was probably not a financial future in teaching in a private school, so he entered the University of Michigan Law School, from which he graduated in 1988. He then had a 259 one-year clerkship with John Eldridge, a judge on the Maryland Court of Appeals, the court of highest resort in the state of Maryland. Following that, he joined the law firm of Covington & Burling where he was an associate in their tax practice. While in law school he met his later-tobecome wife Audrey, and Audrey, upon graduation from the Law School two years after Richard, first became law clerk to Harold Greene, a federal District Court judge in D.C. and then law clerk to the then Chief Justice of the United States, Justice Rehnquist. After the clerkship, she joined Hogan & Hartson in their litigation practice. Their first child, Andrew – or Andy – was born in 1994, and at that point, Richard and Audrey decided that they were not going to go the nanny route or the daycare route, that one of them was going to stay home and become the principal caregiver of Andy and any future children they might have. Well the election was that Richard would assume that role, and so he left Covington & Burling. Some years later, when Andy and his brother Eric, who was born a few years later, reached the age where he could be out of the home for a good period of time during the day, he became a professional swim coach, and he coaches year-round for the Curl-Burke Swim Club, which is one of the two principal year-round programs in this area, and coaches in the summer at the Tallyho Community Pool team on which both of his boys swim. Andy is now entering his senior year of high school, is an 260 accomplished distance swimmer, and is being recruited by a number of NCAA Division III programs, principally in the northeast, in New England and in New York State, so we’re going to see how that turns out this fall. Eric, the younger boy, is entering the 9th grade in the International Baccalaureate program at the Richard Montgomery High School, and his forte is the cello. He has become quite an accomplished cellist, and indeed now is occasionally asked to play at church services at the Cedar Lane Church. He swims, but he’s not the competitive swimmer that his brother is. Now, their mother, Audrey, left Hogan & Hartson shortly after the Obama administration came into existence to accept a political position as an Associate General Counsel in the Department of Homeland Security, so that’s where she has been for the last approximately two years. Obviously, how long she will be there may be influenced by the outcome of the 2012 elections [laughter], although I don’t know whether if President Obama is reelected she plans to stay there for a second term, but in the meantime she is certainly enjoying it, and finding it, I might add, a considerable challenge. MS. FEIGIN: Before we leave Audrey, could you tell us the story of her getting the clerkship with Justice Rehnquist and the one thing he was interested in? 261 MR. ROSENTHAL: Yes. Apparently what you do these days, and I know that you have a son who was a Supreme Court law clerk, and I assume it was the same thing with him, but at least with Audrey, it was a matter that you applied to all nine justices and you see what comes out of it. In that case, what came out of it was an invitation from Chief Justice Rehnquist, so she turns up for the interview and she doesn’t know what to expect. There’s absolutely no inquiry at all into her political beliefs. As it turned out, both of her fellow clerks – Rehnquist only kept three clerks even though he was authorized five – both of her co-clerks were very conservative, but she wasn’t asked about that at all. What he wanted to know was how good was her tennis game [laughter]? And this was a matter of critical importance to Chief Justice Rehnquist because during the good weather he and his three clerks would go down to some public tennis court, I think down at Haines Point somewhere, in the middle of the day and play tennis. It seems that even though Audrey’s game was respectable, he always had one of the two men clerks as his partner [laughter]. I will say this, that she found her year with the Chief Justice very rewarding, I mean she liked him very much, and he was extremely considerate because one of the things that she said to him was that she would prefer not to work on abortion cases because she knew that her thinking on those cases and his was miles apart. That was really a matter of conscience for her. He was perfectly agreeable to that. So that was a very good year for her. 262 So now I think we can move on to the youngest son, James. James came into this world ten years after his next-oldest sibling Richard, and his single interest outside of the school environment was swimming, and he took up with the summer community pool team at the age of 7. Not that long after he moved into a year-round club program and became a pretty competent butterflyer, and indeed in the last two years in the summer league, when he was 17 and 18, he won the butterfly in the All-Star meet in that summer league. He went on to Pomona College where he swam as his one extracurricular activity, made the Division III nationals all four years, and in his senior year finished third in the 200 Butterfly and sixth in the 100 Butterfly. Now this is Division III. He wasn’t headed for the Olympics or anything, but nonetheless he did very well in that enterprise. He then went out to the University of Michigan Law School where he graduated magna and was a Note Editor on the Law Review. Notwithstanding those accomplishments, he was turned down by every district judge, federal district judge, in this area, Northern Virginia, District of Columbia, or Maryland. He got interviews only with one of the judges in Maryland, who came from Montgomery County and would interview any applicant that came from this county, and one of the judges across the river. To this day, I have no idea why that was the case. Beyond that, he had an application with the Civil Division at Justice. In 263 my day someone with his credentials would have been taken under the Justice Honors Program in a minute, but he survived the first cut and then was turned down. But everything worked out well for him in the long run. He went to work for Arnold & Porter. He was a summer associate the prior year with the D.C. office of Latham & Watkins which is a Los Angeles-based firm. They invited him back, but he decided to go to Arnold & Porter because he thought that, in the Washington area at least, Arnold & Porter had a broader, more diversified, litigation practice. Well that turned out to be an ironic conclusion, given the fact that James’s entire 15-year career at Arnold & Porter has been devoted to one client – Phillip Morris, in the product liability area. Interestingly, a week before he reported to Arnold & Porter, he received a phone call from someone there who said, “We’re thinking of assigning you to the litigation practice involving tobacco,” which was Phillip Morris, of course. They said, “If you have a problem with that, we’ll assign you elsewhere,” and they made it clear that that would not prejudice him. He said he had no problem working on tobacco litigation, and so that’s what he’s done for the last 15 years. His association, however, with Arnold & Porter, is about to come to an end, because in September, or thereabouts, he is moving in-house with the Altrea Group, which is the parent of Phillip Morris as well as of a smokeless tobacco company and a Washington state-based state winery. So he’s going with 264 them in the capacity of vice president and associate general counsel. His wife Amy he met at Arnold & Porter in the Phillip Morris practice group. She was raised in North Carolina. She went to the University of North Carolina–Chapel Hill and then to the Georgetown Law School. She at some point decided that she wanted a little better quality of life so she left Arnold & Porter and went to Verizon Communications as an Assistant General Counsel. Well, she was there for a year or two and they had their one and only child, Brannick. She took maternity leave, went back to Verizon, but a few months after the return decided that she wanted to be the full-time caregiver for her son, and so she retired from Verizon, and that’s what she’s doing now. Brannick will turn 4 next month, in August. So that’s basically the story. I can say I think without being overly prideful, if that’s a term, that my kids have worked out extremely well. They gave us no problems of any serious consequence when they were growing up, and they all four have had very successful adult careers. The grandkids, all five of them, are flourishing in whatever they’re engaged in now, so all I can say is that I have been extraordinarily fortunate, and, as I indicated at the very beginning of this discussion, I give Helen almost the entire credit for how well our kids have turned out. She was the one that really managed the upbringing. So that’s basically the family story. 265 MS. FEIGIN: It’s a wonderful story. And, of course, I noticed you have a lot of lawyers in this family, so I’d like to close by asking you what advice you’d give to a young lawyer starting out today? You’ve had a varied long career and seen your kids go through a lot of different things. MR. ROSENTHAL: This is a dreadful time, the worst certainly in the 60 years that I’ve been associated with the law, for obtaining legal employment out of law school. The recession that has been in place for two or three years now has had a significant toll on law firms. In addition to that, the nature of the practice has changed. No longer are most corporations willing to pay $300 an hour for the services of a first-year law associate. They’re much more cost conscious, and this is having an impact on the firms as well. I would say this to begin with. I do not think that anyone should go to law school unless they have a clear understanding as to what the practice of the law involves and they have a strong desire to be part of the practice. I’m talking now about people who are thinking in terms of law school as an entry into the practice of law rather than using a law degree in some business enterprise. So that’s the first thing. I think that you ought to know what the practice of law is about, and you ought to be convinced in your own mind that this is something that you really want to do, not something that’s just going to occupy a couple of years of your life. And I say that because you have to bear in mind that there is an enormous investment, both in time and money, in going to law school these days. 266 It’s three years of your life, or four if you go at night, and the cost now exceeds $150,000. This is an enormous investment. Secondly, it’s extremely important that if you’re going to law school, you go to the most prestigious school you can get into. I use the term “prestigious” rather than “best” because I don’t think there’s a necessary correlation between prestige and actual quality. Now in that connection, what you want to do is due diligence on all of the claims that are made by law schools on their websites and this has become an enormous issue today given that a lot of law schools are misrepresenting the career opportunities that are available to their graduates. What many of them are doing is presenting a figure as to the number of their graduates that are employed six months after graduation without noting that the figure that they provide – 96%, 95%, whatever – includes not only those working for prominent law firms, but also those who are waiting on the tables of customers who are coming from those law firms or are driving the taxi cabs to take the partners to and from their offices. And this has become a scandal, and it’s actually led to a lawsuit against one of the schools that allegedly have been engaging in this practice. So I think it’s important that before you enter law school you know that this is what you really want to do and that you are realistic as to what is going to be the outcome of the three years, and that includes, again, as I say, doing due diligence on the claims that are being made by the law schools as to what 267 is going to be at the end of the rainbow if the individual attends their school. If I had my way, I would eliminate about 25% of the existing law schools. Unfortunately, not only is that not happening, but there are new law schools being created every year. Now, once the individual graduates, I think my principal point to them would be that the most important, in my judgment, requirement, in terms of a successful legal practice is paying the closest attention to the smallest detail in everything that you do. At the Department of Justice I had lawyers working for me during the latter stages of my time there, I’ve had law clerks throughout my career at AEC, NRC, and the GAO, and what I have found that separated the good ones from the bad ones – and they all had very impressive academic records in law school or they wouldn’t have been employed where I was – was the extent to which they exercised the utmost care, paid the closest possible attention to every detail in the course of whatever they were doing at the time, even if they thought that that particular assignment was of minor significance. Now, there are other things that I might say. This has been a long session, but I think that that, to my way of thinking, is the principal advice that I would give to someone coming out of school. Now, the only thing I would say about the law school time itself is, particularly in the first year, make it your sole occupation. The advice that 268 I was given when I entered the law school by a graduate of that school who had endorsed my application was “Forget about everything else, at least in your first semester. Make the law school your single focus.” And I did that, and the whole first semester I only left New Haven for one abbreviated weekend, and it had the results that I had hoped for. MS. FEIGIN: And for a final closing question, can I ask you what would you tell people is the secret to finding satisfaction in their career in law? What you seem to have found, is that fair to say? MR. ROSENTHAL: Yes. Well I think I have found satisfaction because I was doing something that I really enjoy doing. I think that’s the name of the game. When my son Ted started out with the New York law firm, Fried Frank, and was working around the clock, had he not enjoyed what he was doing, I think that would have become impossible. But he was doing mergers and acquisitions, and he loved it. In my case, I early decided that what I wanted to be was an appellate lawyer, and I had the opportunity first to have a clerkship on an appellate court and then to move on into what was regarded generally at that time as the best appellate operation in the government short of the Solicitor General’s Office, and I think that was it. I think it’s a truism that whether one can work long hours acceptedly hinges upon whether the person enjoys what he or she is doing, and I think I was very lucky in that. I was lucky all the way along the line. I decided at the age of 12, for what 269 reason God only knows, that I wanted to be a lawyer. I never deviated from that. So all of these folks that have, “What am I going to do?,” that have these terrible anxieties over making career decisions, I never had that, and fortunately, as I say, all of the breaks worked well for me. MS. FEIGIN: Well one of the biggest breaks for me was to be able to work with you and have this opportunity to take your oral history. MR. ROSENTHAL: I’d like to conclude if I might, by saying how grateful I am, in the first instance to you, for having number one suggested this, and number two, made all of these long treks. This is the ninth one, out from the Dupont Circle area where you live to this distant region [laughter]. And also, of course, thanks to the Historical Society of the District of Columbia Circuit which is willing to sponsor it. I don’t have the slightest doubt that this is going to be of interest to at least some of my descendants, and indeed I had given some thought at one point to possibly doing something by way of an informal memoir, and this has taken the place of it. So again, I’m very grateful to you and the Society for providing me with this opportunity. At that point, I think we can probably conclude this, the ninth and final session. MS. FEIGIN: Thank you. Oral History of Alan Rosenthal INDEX Adams, Arlen, 118 African-Americans law clerks, 66–67 messengers, 63, 67, 81 in military, 30–31 and segregation, 19–20, 30, 81, 133 at Yale Law School, 41 Aldridge, Bailey, 123 Alexander, Clifford, 147 Almond, Lindsay, 133 American Export Line, 42–43 Arnold & Porter, 263–64 Asselstine, James, 169–71, 202 Atomic Energy Act of 1954, 161, 163, 164 Atomic Energy Commission (AEC), 154, 155–56, 161. See also Nuclear Regulatory Commission Babcock, Barbara, 143–45 Baldridge, Holmes, 58, 74–75 Baldwin, Katherine, 138 Bazelon, David L., 60, 61, 76, 105, 106, 115, 118 Bell, Griffin, 144, 145 Benjamin, Edward, 53 Bergh, Alfred C., 148–49 Bluebook, 241–42 Board of Economic Warfare, 5 Bollwerk, Paul, 210, 211 Bromley, Bruce, 59 Brown, John R., 120 Brownell, Herbert, 113, 132, 134 Buck, John, 189–90, 192, 195 Burger, Warren, 110–13, 142 Burton, Harold H., 127 Bush, George W., 153 Cameron, Benjamin F., 119–20 Clark, Bennett Champ, 60, 61 Clark, Charles, 48 Clark, Ramsey, 90–92 B-1 Clark, Tom C., 48 Clinton, William J., 153 Columbia University, 181–82 Congressional Research Service, 147 Cravath, Swaine & Moore, 52–53, 59, 113 Cuomo, Mario, 180 Davidson, Rita, 39 Dean, John, 140–42, 153 District of Columbia and death penalty, 57–58 public schools, 6, 8, 19, 130–31 segregation, 18–20, 67, 130–31, 254 and World War II, 20 Dobie, Armistead, 101–102, 103–104 Dominion Power Company, 231 Don, Beth, 208 Doub, William, 154–56, 157, 158 Douglas, John, 142 Douglas, Paul, 142 earthquakes, 187–92, 196 Edgerton, Henry, 49–50, 52, 56–62, 63, 64, 66–67, 68, 69, 76, 106, 118 Eisenhower, Dwight D., 14, 111–12, 131–32, 143 Eldridge, John, 259 Elman, Philip, 129, 131, 134 Emerson, Thomas, 41 Energy Department, U.S., 217–18 and Yucca Mountain repository, 219–25 Energy Research and Development Administration (ERDA), 161 Environmental Protection Agency, 168–69 Ethical Culture Society, 14, 244 Fahy, Charles, 60, 118 Farrar, Michael, 167–69, 189–90, 192–93 FBI, 76, 77, 89–92 Federal Reserve System, 100–101 Federal Tort Claims Act, 94, 116 Ford, Gerald, 117 Forman, Benjamin, 115 Fortas, Abe, 126 Franco, Francisco, 43–44 Frank, Jerome, 48, 94, 96 B-2 Frankfurter, Felix, 125–26 Fried, Frank, Harris, Shriver & Jacobson, 55, 256, 268 Friedman, Daniel, 89, 139, 141–42, 255 General Accounting Office, Personnel Appeals Board, 206–207 GI Bill of Rights, 32–34 Greene, Harold, 259 Griswold, Dean, 141–42 Hand, Augustus, 94, 95 Hand, Learned, 94–96 Harbeson, William Page, 36–37 Harris, Samuel, 46, 55 Hobbs Act, 175 Hoover, J. Edgar, 89–90, 91 Illinois, 226 Indiana, 130 Interstate Commerce Commission, 100 Jackson, Shirley Ann, 210 Joint Committee on Atomic Energy, 170 Joseph, Daniel, 168 Justice Department, U.S. and African-Americans, 81 Appellate Court Section/Staff, Civil Division, 82, 84–85, 87–88, 112–14, 171 assistant attorneys general, 111, 142–43 attempted elimination of, 143–45 employee raiding, 168–69 litigation proliferation, 152 and McCarthy era cases, 114–15 political deputies, 153 staff, 151–54 women in, 79, 138 See also Justice Dept. – Supreme Court Section, Claims Division library, 83–84 Solicitor General’s Office, 84, 85, 87–89 women in, 138–39 Supreme Court Section, Claims Division, 70, 73–74, 82 151. See also Justice Dept. – Appellate Court Section/Staff, Civil Division Kagan, Elena, 45 Kennedy, John F., 142, 143 B-3 Klutz, Jerry, 149 Kneeland, Marjorie, 11–12 Kohl, Christine, 170, 171, 175, 199, 201 Kopp, Robert, 171 Laughlin, John, 78–79 law firms pay scales, 52, 265 religious discrimination, 52–53 and women, 53 Law School Admission Test (LSAT), 38, 240–41 Long Island Lighting Company, 180–81 Lumbard, J. Edward, 87 Marshall, Burke, 45 McCarthy, Joseph, 74, 77, 78, 114 McGrath, J. Howard, 112 Meyers, Ann, 7–8 Mikva, Abner, 136–37 Miller, Wilbur K., 60, 65–66 Minton, Sherman, 126 Modified Mercalli Intensity Scale (MMIS), 188 Montgomery County (Md.), public schools, 6–8, 249 Morton, Hollander, 152 Murrah, Alfred P., 119 National Environmental Policy Act, 195, 216 Native Americans, 234–35 Nevada, 217, 218, 219, 221, 223, 227 New Jersey, 130 New York University Law School, 72–73 Nixon, Richard M., 141, 143 nuclear engineering students, 181–82 nuclear power plants economy and, 231 and environmental alternatives, 195–96 applications and licenses for, 161–62, 177–78, 215, 230–32 cooling of, 178–79, 197–98 Indian Point, 197–98 nuclear waste, 217–18, 226, 228. See also Yucca Mountain repository public opposition to, 182–85 quality assurance, 196–97 Safe Shutdown Earthquake, 187–91 B-4 Seabrook Reactor, 195 earthquake potential, 187–92 financial qualifications, 192–93 transmission line route, 185–87 Shoreham Reactor, 179–81 Three Mile Island, 200–201, 204, 230–31 Nuclear Regulatory Commission (NRC), 161, 194–95 adjudicatory process, 215–17, 232–35 antitrust cases, 162–64 appeal panel, 166–67, 172–73, 174–75, 193–94, 198 abolition of 171, 176, 193, 199, 201–202, 206, 208 site visits, 184–87 sua sponte reviews, 173–74 commissioners, 223–24 and environmental groups, 184–86 and Environmental Impact Statements, 216–17 license extension cases, 233–35 licensing boards, 164–66, 172, 173–74, 175–76, 184, 194, 212 license violations, 162 and Yucca Mountain, 222–24, 225, 227–28 nuclear power plant permits and licenses cases, 161–62 Office of Enforcement, 203, 210 partisanship of, 225, 226–27 public opposition, 182–85 site decommissioning cases, 162, 180–81, 212–15 and Yucca Mountain repository commissioners’ decision, 223–24 construction permit application, 218–20, 221 dismantling of, 224–25 history of, 217–19 and Licensing Board, 222–24, 225, 227–28 opposition to, 219–21 See also Atomic Energy Commission (AEC); nuclear power plants Nuclear Waste Policy Act of 1982, 217–18, 222, 223, 225 Obama, Barack H., 153, 178, 225, 226, 260 O’Connor, Sandra Day, 53 O’Mahoney, Joseph, 111–12 Parker, John, 101–103, 109–10 Paulson, Nate, 106 Pearl Harbor, 5, 6, 8–9 Perlman, Philip, 58, 59 B-5 Peters, John P., 114 Phillip Morris, 263–64 Prettyman, E. Barrett, 58, 61, 105 Proctor, James M., 60 Ralph, Richard, 2–3 Ramey, James, 156 Rankin, J. Lee, 134 Rehnquist, William H., 259, 260–61 Reid, Harry, 225, 226 Richter, Charles F., 191 Richter, Mel, 109–10 Richter Scale, 188, 191–92 Rodell, Fred, 41 Roisman, Anthony, 155 Roisman, Florence, 155 Roosevelt, Franklin D., 5–6, 103 Rosenthal, Alan – Personal advice to young lawyers, 265–68 and African Americans, 19–20, 30–31 birth, 9 Bronx High School of Science, 12–13, 17, 19 Cedar Lane Unitarian Universalist Church, 243–47, 253 board of trustees, 243 committees, 243–44 Sunday school teacher, 245–46 Chatsworth Avenue Elementary School, 9 Cherry Lawn School, 10, 11 childhood, 9–13 City and Country School, 11 Cub Scout chairman, 249–50 daughter (Susan), 108–109, 255, 257–58 father (Morris), 4–6, 10–11, 16–17, 42, 72 and education, 2, 33, 34 and politics, 13–14, 75–76, 77–78 and religion, 14 file clerk job, 20 games, 16–17 on GI Bill of Rights, 32–34 grandchildren, 256–57, 259–260, 264 grandfather (maternal), 2–3 grandfather (paternal), 1–2, 9 great-grandfather, 1 B-6 half-brother, 11 half-uncle (maternal), 3–4 law career decision, 34–35, 268–69 on law schools, 265–68 Little Red School House, 11–12, 20 marriage, 53–54, 69, 72 military service, 22, 23–24 Army Air Force, 24–25, 30–31 aviation cadet program, 26–27 cryptographic technician program, 27, 76 personnel school, 27–28, 29 University of Buffalo, 24–26, 31–32 Montgomery County American Civil Liberties Union board of directors, 250–51, 253 Montgomery County Board of Education’s Ethics Panel, 251–253 mother, biological (Elizabeth), 2–3, 4, 9–10, 14, 244 movies, 14–15 newspapers, 16 North Chevy Chase Swimming Pool Association involvement, 247–48, 253 Pearl Harbor memory, 8–9 PTA involvement, 249 radio, 15–16 religion, 14, 243–47 residential camp, 10 sister, 7, 10, 11, 15, 94, 95 sons Edward (“Ted”), 55, 244, 249 children, 256–57 education, 255 with Fried, Frank, Harris, Shriver & Jacobson, 55, 256, 268 wife Nadine, 256 James, 7, 247, 262–63 with Arnold & Porter, 263–64 child, 264 wife, 264 Richard, 247, 258–59, 262 children, 259–60 wife Audrey, 259, 260–61 stepbrother, 10–11 stepmother, 4, 10–11, 14, 21, 22 summer abroad, 42–45 summer job, 53 swimming, 248–49 transportation, 18–19 B-7 uncles (paternal), 2 University of Buffalo, 24–26, 31–32 University of Pennsylvania, 22–23, 25, 31–32, 34, 35–38 vacation, 157 wife (Helen), 69, 72, 157, 246–47 child rearing, 254–55, 264 Columbia Law School, 54, 56, 253 George Washington Law School, 54, 254 on Law Review, 54, 254 Wellesley College, 55–56, 253 Yale Law School, 54, 253 Woodrow Wilson High School, 8–10, 17–18, 19 Yale Law School, 33, 39–40, 46–47 application to, 38–39 courses, 40, 45 faculty, 40–41, 94 housing, 42 legal research instructor, 33, 54, 253 and Yale Law Journal, 47–48 Rosenthal, Alan – Professional adjunct faculty member of legal method, Washington College of Law of American University, 238–39, 241 of nuclear law, University of Pennsylvania Law School, 236–38, 239 on Assistant Attorneys General, 142–43 bar exam, 69, 70–73 Chairman of the Atomic Safety and Licensing Appeal Panel of Atomic Energy Commission/ Nuclear Regulatory Commission, 12, 142, 147, 175–76, 177–78, 199–200, 229 appeal board selection, 166–72 appeal board site visits, 184–87 appointment, 157–58 and Congress, 203 and courts of appeal, 193–94 and environmental alternatives, 195–96 and environmental groups, 184–86 issues, 196–98 on nuclear industry, 204–205 part-time appeal panel member, 177, 198–99, 202–203 Seabrook facility controversy, 185–93, 195 selection for, 154–57 Shoreham Reactor case, 179–81 sua sponte review case, 173–74 swearing-in, 158–59 Three Mile Island case, 200–201, 204 B-8 clerkship with Judge Edgerton, 48–50, 52, 56–62, 63, 64–68, 69, 74, 96, 105, 106–107 Department of Justice Assistant Chief, Appellate Section of the Civil Division, 135–37 indefensible arguments, 122–24 partisan political cases, 139–42, 152–53 attorney, Appellate Staff of the Civil Division, 12, 78–79, 82–83, 93 assignments, 82–83 Bergh case, 148–49 Brown case involvement, 128–34 changes to Section, 151–53 Circuit Court differences, 97–104 and court clerks, 107–109 on courts of appeals judges, 117–20 D.C. Circuit Court cases, 105–107 FBI case, 90–92 Federal Tort Claims Act cases, 94–97, 116–17 and McCarthy era cases, 114–15 moot courts, 97, 125 morning coat tradition, 126–28 reasons for leaving, 146–47, 152–53, 160 Supreme Court arguments, 88–89, 97, 124–28, 148–50 test case, 102–103 and U.S. Attorney’s Office, Southern District of New York, 85–87 U.S. Court of Customs and Patent Appeals, 93, 107 interview, 75–78 professional goal, 69–70, 73–74 Dwight, Royal job offer, 50–51, 54–55 and law clerks, 12, 120, 169 on Law School Admission Test (LSAT), 38, 240–41 and law students, 238–40 on legal research, 241–43 Nuclear Regulatory Commission’s Atomic Safety and Licensing Board Panel Licensing Board part-time member, 211–12, 229 cases, 212–15 on NRC’s procedures, 215–17, 232–35 Yucca Mountain adjudication, 220–21, 226–28, 229–30 Task Force outside member, 210–11 on Personnel Appeals Board of General Accounting Office, 206 appointment to, 207–208 chair of, 208 colleagues, 208–209 retirement from government employment, 177, 198–99, 202 unemployment, 209–10 B-9 Rosenthal, Alan, 2 Rosenthal, Edward (“Ted”), 55, 244, 249 children, 256–57 education, 255 with Fried, Frank, Harris, Shriver & Jacobson, 55, 256, 268 wife (Nadine), 256 Rosenthal, Elizabeth, 2–3, 4, 9–10, 14, 244 Rosenthal, Harold, 2 Rosenthal, Helen, 69, 72, 157, 246–47 child rearing, 254–55, 264 Columbia Law School, 54, 56, 253 George Washington Law School, 54, 254 on Law Review, 54, 254 Wellesley College, 55–56, 253 Yale Law School, 54, 253 Rosenthal, Herman, 1 Rosenthal, James, 7, 247, 262–63 with Arnold & Porter, 263–64 child, 264 wife (Amy), 264 Rosenthal, Max, 1–2, 9 Rosenthal, Morris, 4–6, 10–11, 16–17, 42, 72 and education, 2, 33, 34 and politics, 13–14, 75–76, 77–78 and religion, 14 Rosenthal, Richard, 247, 258–59, 262 children, 259–60 wife (Audrey), 259, 260–61 Rosenthal, Susan, 108–109, 255, 257–58 Ruckelshaus, William, 168 Salzman, Richard, 169 Schlesinger, James, 156–57 Seabrook Nuclear Reactor, 195 earthquake potential, 187–92 financial qualifications, 192–93 transmission line route, 185–87 Shapiro, Harriet, 139 Shils, Edward, 237 Shoreham Nuclear Reactor, 179–81 Slade, Sam, 78–79, 110, 138 Slade, Sandy, 138 school segregation, 129–32, 134 B-10 Shepard’s Citations, 242–43 Sobeloff, Simon, 114–15, 129, 131, 132, 134 Soper, Morris, 101–102 South Carolina, 221–23 Spain, 43–44 Stanberry, Larry, 257–58 Stein, Hall & Company, 4–5 Stephens, Harold M., 60, 106 Stevens, John Paul, 117–18 Stevenson, Adlai, 14 Sturges, Wesley, 39 Supreme Court, U.S., 59, 87–88, 102, 114, 132, 149 Justices, 125–26 morning coat tradition, 126–28 Swan, Thomas, 48 Sweeney, Paul, 74, 76, 77, 78–79, 138 Three Mile Island nuclear plant, 200–201, 204, 230–31 Triga Mark II reactor, 181–82 Truman, Harry, 5, 58, 59, 60, 78 Twentieth Century Fox, 50–51 U.S. Army, 213–15 Army Air Force, 24–25, 26–28, 30–31 U.S. Attorney’s Office, Southern District of New York, 85–87 U.S. Court of Appeals for the District of Columbia Circuit, 49, 58, 59, 68, 93, 115 judges, 60–61, 63, 65, 105–106, 111, 118–19 law clerks, 63, 65–67, 106 and Yucca Mountain case, 222–23, 225 U.S. Court of Claims, 148–49 U.S. Court of Customs and Patent Appeals, 93, 107 U.S. Courts of Appeals Eighth Circuit, 98–101 Eleventh Circuit, 93–94 Fifth Circuit, 93–94, 97–98, 119, 120, 144, 145 First Circuit, 123, 186 Fourth Circuit, 101–104, 109–10, 115, 116 judges, 117–20 Ninth Circuit, 107, 108 Second Circuit, 94 Sixth Circuit, 108–109 Tenth Circuit, 98, 119, 124 See also U.S. Court of Appeals for the District of Columbia Circuit B-11 University of Buffalo, 24–26, 31–32 University of Pennsylvania, 23, 24–25, 31, 32 College for Women, 36, 37 dress code, 35–36 Law School, 236–38, 239 women at, 36–38 Vermont Yankee Reactor, 183 Wald, Patricia, 39, 145 Walker, Ed, 15 Wallace, Henry, 5–6 Washington, 221–23 Washington, George T., 60, 118 Washington, Helen, 158 Welles, Melvin, 107–108 windmills, 195 women and Cub Scouts, 249–50 judges, 39 law clerks, 63, 66–67 lawyers, 53, 79, 138–39, 170, 254 secretaries, 80–81 teachers, 13 at University of Pennsylvania, 36–38 in the workplace, 20–22 at Yale Law School, 39, 41 World War II, 5–6, 8–9, 20–21, 23–24, 26–28 Yale Law School, 38–42, 73 tuition, 33 Yale Law Journal, 47–48 Yucca Mountain nuclear waste repository commissioners’ decision, 223–24 construction permit application, 218–20, 221 dismantling of, 224–25 history of, 217–19 and Illinois, 226 and Licensing Board, 222–24, 225, 227–28 and Nevada, 217, 218, 219, 221, 223, 227 opposition to, 219–21 politicizing of, 225–26 and South Carolina, 221–23 B-12 and Washington, 221–23 Zener, Robert, 168 B-13 Cases Cited Brown v. Board of Education, 347 U.S. 483 (1954), 128–29, 134 District of Columbia v. Thompson Co., 346 U.S. 100 (1953), 67 Peters v. Hobby, 349 U.S. 331 (1955), 114–15 Plessy v. Ferguson, 163 U.S. 537 (1896), 132 United States v. Bergh, 352 U.S. 40 (1956), 148–49 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952), 58–59 C-1