Warner Gardner Complete Oral History Package

WARNER W. GARDNER, ESQUIRE
Interviews conducted by:
William B. Schultz, Esquire
January 8, February 4, June 5, September 4, December 2, 1997
and January 26, 1998
NOTE
The following pages record interviews conducted on the dates indicated. The interviews
were electronically recorded, and the transcriptions were subsequently reviewed and edited
by the interviewee.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject
to, the Oral History Agreements included herewith.
© 1998 Historical Society of the District of Columbia Circuit.
All rights reserved.
TABLE OF CONTENTS
Preface …………………………………………………….. .
Oral History Agreements
Warner W. Gardner, Esquire ……………………………….. ii-iii
William B. Schultz, Esquire
Biographical Sketches
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-V
Warner W. Gardner, Esquire ………………………………… v1
William B. Schultz, Esquire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vu
Oral History Transcript of Interviews
January 8, 1997 …………………………………………… 1
February 4, 1997 …………………………………………. 40
June 5, 1997 …………………………………………….. 72
September 4, 1997 ………………………………………… 94
December 2, 1997 ……………………………………….. 123
January 26, 1998 ………………………………………… 156
Index ………………………………………………… Al
Appendix A (Oral History Interview with Warner Gardner by Jerry N. Hess,
Harry S. Truman Library, June 22, 1972)
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia Circuit is
to preserve the recollections of the judges who sat on the U.S. Courts of the District of Columbia
Circuit, and judges’ spouses, lawyers and court staff who played important roles in the history of
the Circuit. The Project began in 1991. Most interviews were conducted by volunteers who are
members of the Bar of the District of Columbia.
Copies of the transcripts of these and additional documents as available- some of which may have
been prepared in conjunction with the oral history – are housed in the Judges’ Library in the E.
Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C.
Inquiries may be made of the Circuit Librarian as to whether the transcripts are available at other
locations.
Such original audio tapes of the interviews as exist, as well as the original 3.5″ diskettes of the
transcripts (in WordPerfect format) are in the custody of the Circuit Executive of the U.S. Courts
for the District of Columbia Circuit.
-iHistorical
society of the District of Columbia Circuit
.Interviewee Oral History Agreement
1. In consideration of the recording and preservation of
my oral history memoir by the Historical Society of the District
of Columbia circuit, Washington, D.C., and its employees and
agents (hereinafter “the Society 11 ), I, Warner W. Gardner , do
hereby grant and convey to the Society and its successors and
assigns all of my rights, title, and interest in the tape
recordings and transcripts of interviews, including the diskette
containing the transcripts, of me as described in Schedule A
hereto, including literary rights and copyrights.
2. I reserve the right to use the tapes, transcripts and
diskette and their content as a resource for any book, pamphlet,
article or other writing of which I am an author, co-author or
subject.
4. I authorize the Society to duplicate, edit, publish, or
permit the use of said tape recordings, transcripts and diskette
in any manner that the Society considers appropriate, and I waive
any claims I may have or acquire to any royalties from such use.
/?Jo/ ?,..? “fJ’i/ftP
Signature of Interviewee Date
SWORN Tq AND SUBSCRIBED before me this 9ru day of
,’::, EJ?JJs,y e,p; , 19 9 Jr. .
L-L 1 St <>< <–;L ?L
NANc;h??.tiffM-i Pt;f li£ ?
Notary Public Oistriet of G::!limba
. . . My ,. __ ;«10· n Expire., April 14, 2001 My Commission expires _1,,,11,oU……..,
ACCEPTED this 2,Ji.,{ day of ty:z,,.iHVt-,_ , 19 7″? by Daniel M.
Gribben, Presi ent of the Historical Society of the District of
Columbia Circuit.
Daniel M. Gribben
-iiSchedule
A
Tape recording(s) and transcript resulting from -?6 _
(number)
interviews of warner w. Gardner on the following
(Interviewee)
dates:
January 8, 1997 1 tape 49 pages
February 4, 1997 1 tape 42 pages
June 5, 1997 1 tape 28 pages
September 4, 1997 2 Tapes 37 pages
December 2, 1997 2 Tapes 43 pages
January 26, 1998 1 Tape 23 pages
The transcripts of the six interviews are contained on one
diskette.
-iiiHistorical
Society of the District of Columbia Circuit
Interviewer Oral History Agreement
1. Having agreed to conduct an oral history interview with
warner W. Gardner for the Historical Society of the District
of Columbia circuit, Washington, D.C., I, William B. Schultz,
do hereby grant and convey to the Society and its successors and
assigns, all of my right, title, and interest in the tape
recordings and transcripts of interviews, including the diskette
containing the transcripts, as described in Schedule A hereto,
including literary rights and copyrights.
2. I authorize the Society to duplicate, edit, publish, or
permit the use of said tape recordings, transcripts and diskette
in any manner that the Society considers appropriate, and I waive
any claims I may have or acquire to any royalties from such use.
3. I agree that I will make no use of the interview or the
information contained therein until it is concluded and edited,
or until I receive permission from the Society.
SWORN TO AND SUBSCRIBED
October ,199.§..
\,.)? \;;,. c:,jJ,… 1),\ … \1) Signature of Interv·e er Date
before me this \l? day of
.P.M AlCi,W UAN
Nlllaa-1 Public District of Columti,
My commission expires: _.! M,!!l?0,rnm?? ;’!’?”‘””.!!!:Expir!9?”·?es!,:,A!!prl’!!!iI-‘l?4i,, !!20!!!C)!!lc…
ACCEPTED
Gribben,
Columbia
this a h.,.sJ day of 1 ? C..<..n-/1./1.. , 19 ?? by Daniel M. President of the Historical Society of the District
Circuit.
Daniel M. Gribben
-ivof
Schedule A
Tape recording(s) and transcript resulting from -?6 __
interviews of
(number)
-?w?a?r?n?e?r?w=·?G?a?r?d?n?e?r?- on the following
(Interviewee)
dates:
January 8, 1997 1 tape 49 pages
February 4, 1997 1 tape 42 pages
June 5, 1997 1 tape 28 pages
September 4, 1997 2 Tapes 37 pages
December 2, 1997 2 Tapes 43 pages
January 26, 1998 1 Tape 23 pages
The t ranscripts of the six interviews are contained on one
diskette.
-vI
was born in 1909, graduated from Swarthmore College in 1930, from
Rutgers University (M.A. economics) in 1931, and from Columbia Law
School in 1934.
On Columbia’s recommendation I served as law clerk to Justice Harlan
F. Stone of the Supreme Court during its 1934-1935 Term. There followed six
years in the Office of Solicitor General, where I served under Solicitors
General Reed, Jackson and Biddle. From 1938 to 1941 I was First Assistant to
to the Solicitor General.
I became Solicitor of Labor in October 1941 but after ten months moved
five blocks west to become Solicitor of Interior. A year later I joined the
Special Branch of the Army Military Intelligence. I was shortly assigned to the
British “code-breaking” unit at Bletchley, England, which after a half-year
reassigned me to handle their “Ultra” intelligence at the 6th U.S. Army Group,
forming the southern flank of the Allied movement across Europe. I returned
to the Pentagon on the German surrender and to the Interior Department on
the Japanese surrender.
Secretary Ickes resigned in February 1946 after a quarrel with President
Truman. As the offices of Under Secretary and one of the two Assistant
Secretaries happened to be vacant at the time, I was thrust into administrative
and policy work, becoming Assistant Secretary in the spring of 1946. I
resigned a year latter in order to resume the practice of my profession.
I had expected to join the Columbia faculty but was persuaded by Frank
Shea to join him in forming a new law firm. We had an unusually interesting
calendar of litigation for a two-man firm, but for the first four or five years,
having no significant clients of my own, I was perforce an assistant to Shea.
By one accident or another that situation changed and there followed a half
century of interesting but hardly momentous work at Shea & Gardner.
My last Supreme Court argument was in 1982, my last Court of Appeals
argument was in 1988 and my last proceeding before an administrative agency
was in 1989. The subsequent decade has been pleasant enough but lacks the
promise of spring necessary to call it a time of hibernation.
/ . ./ tfe–re4. W”
?rn?r ’11./ ·/t> JII, J’i 3
William B. Schultz
William B. Schultz is the Deputy Commissioner for Policy at the
Food and Drug Administration (FDA). As the Deputy commissioner,
Mr. Schultz oversees the Agency’s policy development activities
and the processing of all FDA regulations. He is the principal
advisor to the Commissioner on policy matters before the Agency
and bears primary responsibility for coordinating FDA’s policies
with other government agencies and countries. He also oversees
implementation of the President’s Tobacco Initiative and the
development of the Agency policy positions on legislative matters
before Congress.
Prior to his appointment, Mr. Schultz served as Counsel to the
House Subcommittee on Health and the Environment, which was
chaired by Congressman Henry A. Waxman of California. Mr.
Schultz was the Counsel principally responsible for the following
laws: Nutrition Labeling and Education Act of 1990; Saf? Medical
Devices Act of 1990; the Prescription Drug User Fee Act of 1992;
Generic Drug Enforcement Act of 1992; and DES Education and
Research Amendments of 1992.
Prior to becoming Counsel to the Subcommittee, Mr. Schultz was a
Senior Attorney at Pμblic Citizen Litigation Group, where he
litigated cases in state and federal court (at all levels) on a
variety of issues, including food and drug law, automobile
safety, nuclear power, voting rights and anti-trust. He also
represented Public Citizen before Congress and has written a
number of articles, principally on food and drug law issues.
Between 1982 and 1996, he was an Adjunct Professor at Georgetown
University Law Center, where he taught Civil Litigation and Food
and Drug Law.
Mr. Schultz served as a Law Clerk to United States District Judge
William B. Bryant.
He received his J.D. from the University of Virginia Law School
and his B.A. from Yale university.
-viiMr.
Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
ORAL HISTORY INTERVIEW
OF
WARNER W. GARDNER
INTERVIEW NO. 1
(January 8, 1997)
1909-1934
I’d like to start, Mr. Gardner, by asking you to tell us
when and where you were born.
I was born on September 25, 1909, in Richmond, Indiana.
My parents were married immediately upon my father’s
graduation from Earlham in Richmond and settled down in
that town for a year or two.
Who were your parents?
My father was Frank Gardner whose father in turn was a
farmer in Indiana. My mother was Camilla Winslow whose
family had been somewhat scattered; basically, Alabama
or Louisiana, who also attended Earlham.
And were you named for anyone?
I was named for my grandfather, the Indiana farmer.
And he was a drummer boy in the Union Army?
That is what he was.
What do you know about your grandfather?
Little or nothing. I visited his farm, which was a
typical, small 80-acre corn and hog farm in Indiana,
perhaps four or five times when I was a child. He died
– 1 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
when I was 12 years old, which I know because I had to
take a journey from Westtown School to Indianapolis all
on my own. I felt very adult and adventuresome and
arrived to discover my grandfather had been kicked by a
mule and had died while I was en route.
What about your parents? Can you tell me about them?
Very little. My father was an entrepreneur of variable
success. A few years of quite satisfactory prosperity
and many more of completely impoverished living. Ups and
downs were typical. Somehow they got me educated.
How about your mother?
Just the other day I thought that I had done her
inadequate justice in my recollections. I remember at
the age of six when we were living in Louisville I stole
a part of my friend’s chemistry set, carried it home and
told my mother unconvincingly that I’d been given it.
She soon got the truth out of me, said I must take it
back. I said I would and I would slip it back and he
would never know it was gone. She said that wouldn’t do
at all. I had to take it back and tell him I stole it
and I was sorry. So I marched down the street, weeping
with this stolen chemistry set. It was the kindest
thing, which I consider a remarkably good thing for her
to have done.
On the other hand, during a prosperous period I came
up from boarding school to go home over the weekend and
my mother took me to a play called “Green Pastures,” an
admirable musical comedy, with black characters which
– 2 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
I still remember with a great deal of pleasure. I
remember also my mother complained that there was a
large number of blacks in the orchestra who watched this
play. But I was an intolerant 20-odd-year-old at the
time and I thought that was an outrageous statement to
make. Going to see a black play and complaining that
the orchestra was sprinkled with black people. All
told, I think she was a very good woman but I wasn’t too
much aware of it at the time. I left home at the age of
about eleven for all practical purposes.
Did you have siblings?
I had one brother who still lives with a variety of
unfortunate illnesses. Lost a leg to cancer. He’d been
in the State Department, Civil Service not Foreign
Service. He was there since World War II.
Is he older or younger?
He is younger.
By how much?
Six years.
And his name?
James.
Where did your family live as you were growing up?
I had to answer that question on admissions to the New
York Bar. It took me almost half a day to make an
incomplete enumeration. I can’t begin to do it. I was
born in Indiana, my father moved for a year or two to
Louisville then to Indianapolis, then to New York, New
Rochelle. In tne summers we lived in various places on
– 3 –
Mr. Schultz:
Mr. Gardn er:
Mr. Schultz:
Mr. Gardner:
the Sound. :•d say I started out in Indiana and then
lived in or near New York until I came down to
Wash_ington for nine months in 1934. I haven’t left
since. It’s a long, long nine months!
What recollections do you have of your childhood?
Remarkably little. It wasn’t overly happy nor was it
unhappy. I remember that I was the best skater on Field
Avenue in New Rochelle. Roller skater. Which wasn’t too
great an achievement since it was only one block long. I
remember attempting a variety of children’s games. I’ve
never been notably coordinated. I’ve not distinguished
myself in that regard. I remember being given the choice
between piano lessons and dancing school, choosing the
latter because it was only an hour or two a week as
opposed to daily practice at the piano. And there,
dressed up in patent leather shoes and white gloves, I
ended up dancing with little fat girls. I just disliked
it so much that I’ve been saddled ever since with an
inability to dance at all. I can go on and on with
trivia, but nothing of consequence.
What about your early schooling? What are your
recollections of that?
My recollection is that I was I think a fairly good
student. In the New Rochelle public schools I went from
first to third grade, missing second grade, and from
sixth to eighth grade missing seventh grade. The
consequence of which my education has been exceedingly
spotty. The rules of giarnrnar I have never gotten in my
– 4 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
head. I write and read by ear rather than any notion of
the grammatical technicalities taught in the seventh
grade. What I lost in second grade, I don’t know. I do
recall that in the eighth grade, most of which I spent
in New Rochelle, I had a music teacher who was a stupid
woman who arranged people in a row according to the
pitch of their voices. But I was a year or two younger
than everybody else in the class. I hadn’t begun to
lose my baby voice. And so there were boys at one end,
then all the girls, and then me down at the other end.
Needless to say I was humiliated beyond description.
And so I am unable to sing nor do I have any musical
interest, consequently. So I can say I was ruined by my
education in two respects.
And then you said when you were eleven you went to
boarding school?
My father had prospered a year or two after the first
World War. We were living very comfortably in a large
house, large yard and so on. And connected in a way that
I didn’t understand then or now with the price of sugar,
he encountered financial catastrophe. Had to give up the
fancy house in which we were living and the question was
what to do with me. One of my mother’s Earlham friends
recommended very strongly Westtown School as a place to
deposit a child.
What was the name of the school? Westtown?
Westtown School. Yes. And so I was packed off there in
the spring at the age of eleven and in the eighth grade.
– 5 –
Mr. Schultz:
Mr. Gardner:
I did not really have a home complete with parents after
that. Vacations I enjoyed with them in the early years,
but we never settled down living as a family after that.
Where did you spend summers?
Oh, it varied. One summer, I think probably the first,
at a lake in Northern New York called Lake Bonaparte, in
a cottage owned by a business friend of my father’s, and
then several years at Lake Wauramaug in Connecticut. And
for several years my parents would rent a house in the
Greenwich area or other Connecticut towns on the Sound.
Those were in general the years of comparative prosperity.
For the first two or three years after we left New
Rochelle, my father pursued an elusive goal in the North
Georgia Mountains. The first mint in the United States
was at Dahlonega. The mines and the miners — the mines
closed when the miners left in a rush for San Francisco
in California in 1849.
The mint closed about a year after that. But there was
gold around and my father, being a man of incredible
optimism, pursued it for two or three years, prospecting
with a small crew of three or four men. It was to have
been my last year in Westtown and he was unable to send
me back. So I spent that year in Dahlonega with my
parents and with the mining crew. At the age of 14 you
don’t have much tolerance for your parents, and I spent a
month or so living with the mining crew on location,
growing somewhat accustomed to mice rattling around in a
straw mattress and more than accustomed to canned
– 6 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
peaches, which was their most cherished dessert. It
didn’t do me any harm, probably was good for me. But I
ende? up still the youngest person in my class back at
Westtown and still badly in need of some maturity which
I didn’t have, though probably more than if I hadn’t
taken that year out.
What recollections do you have of boarding school?
Obviously I have a lot, but of no particular consequence.
Again, I was not aware of being particularly happy or
being unhappy. I was not an athlete and I was always the
youngest in the class. But I wasn’t inordinately worried
by any deficiency at the time. I was a fairly good
student.
Did you have a particular academic interest? Particular
professors who made an impact on you?
No. Oddly, not. I nevertheless liked Westtown
sufficiently so three of my four children went there, as
did my brother, as did his son. And a grandchild went
there and another one is about to start next year, so it
was obviously not a poor experience.
How did you make the decision to go to Swarthmore?
In those days there wasn’t any difficulty about getting
into a college that you wanted that I know of. And
Swarthmore was, I think about 15 miles down the railroad
from Westtown on the way to Philadelphia. So I got on
the train there and went to Swarthmore and talked to
people for a few hours and came back.
– 7 –
Mr. Schultz:
Mr. Gardner:
So as far as there was any other motivation it was
because Westtown and George School were the two Quaker
schopls in Pennsylvania; Haverford and Swarthmore were
the two Quaker colleges in Pennsylvania. There had been
a schism in Quaker religion early in the 19th Century
and the portion called “Hicksites” broke away. They
were more modern in thought. They did not consider that
dancing and music were sinful. They even had paid
ministers, all sorts of trappings of the world which the
orthodox didn’t have. Westtown is orthodox as is
Haverford, and its graduates went either to Haverford or
Bryn Mawr; George School graduates went to Swarthmore. I
went to Swarthmore instead of Haverford. I think as the
first graduate from Westtown in 10 or 20 years to have
done it; it happens a little more regularly now. This
represented a very modified protest, not protest
sufficient to break away from Quaker education but at
least to get a little bit out of the established line.
And as I think I indicated in the little piece that you
read, I was quite happy to go to Swarthmore.
Why don’t you tell me about that; talk a little bit about
Swarthmore.
I can talk most readily about my academic career. I
started out to be an engineer and joined the engineering
course. They had a modern (then modern) principle of
sequential instruction. You first went to shop. There
you made yourself a drawing board, a mechanical drawing
board. When that was done, you went to mechanical
– 8 –
drawing. When that was done, you went to survey. By the
time the class had gotten to survey I was still in shop.
I co_ncluded I wasn’t meant to be an engineer.
So I marched into the dean’s office a little before
Thanksgiving and said I wanted a change but I was not
sure what I wanted to change to. My father, so far as he
had a profession, was an amateur or close to amateur
chemist. So I thought, alright, I’ll be a chemist. So I
was a chemist for 2 or 3 years and I was a very good
theoretical chemist. I believe that on a standard
organic chemistry examination which the University of
Manchester produced, which is highly regarded, I got the
highest score in the United States or something like
that.
But I also managed to break a large number of the
instruments which were required for laboratory work. And
organic chemistry instruments were a lot more intricate
than the beakers and test tubes of ordinary chemistry.
They had coils and pipes within spheres, and all sorts of
things; they were a beauty to observe. And a disaster to
drop.
My chemistry breakage bills ran up and I thought,
well, I didn’t want to be a chemist anyway. Among other
things, it required a mathematical education which I did
not care for and really did not master from calculus on.
I had to really learn by memory and that’s an awfully
hard thing, learning calculus by memory.
Swarthmore had an honors program under which you
– 9 –
Mr. Schultz:
Mr. Gardner:
didn’t go to class for the last two years, but worked on
your own except for a weekly hour with a tutor, based
larg?ly on the Oxford-Cambridge model, I think. When I
was in junior year, I was an honor student in chemistry
with a minor in philosophy, which is a somewhat odd
mixture that they allowed me. That was because my
philosophy teacher, a man named Bland Blanshard, I much
liked and I think he was the first person that I can
recall that thought that I had a capacity for thought and
I got along reasonably well with him. After my junior
year I was fed up with chemistry so I thought I would be
an economist. Well I hadn’t ever taken any economics.
Why did you decide to be an economist?
I didn’t have any better idea. I knew I didn’t want to
be a chemist. I knew I didn’t want to be an engineer.
So I went to Columbia during the summer and took one
course in economics which is most notable for the fact
that the moral standing of the summer school students, at
least, at Columbia was very doubtful as was their
ability. I remember the final examination. I ·didn’t
like my fellow classmates and I had a spotty sense of
honor then; some deficiencies here and there, but I
didn’t like cheating in examinations. So I regret to
say that, as we sat there writing in pencil our
examinations, I’d write a wrong answer and wait until my
neighbors had copied it down and then erase it and put in
the right answer. I felt like an avenging angel and
– 10 –
most enjoyed it.
But then that was just the start of my troubles. I
went.back to Swarthmore, having decided to be an
economist, so I’d be an economist in the honors program.
They said you can’t do that, you haven’t had any
economics. I said I sure did, I had a class at Columbia
and besides that, obviously an honors student should be
able to vary his st udies. Well, we argued back and forth
and finally compromised: I would take two courses in
economics and be on my own for the other half or twothirds
of the time.
Well, you get around the adult world only by paying
their costs. They had a great deal of pleasure I think
and I don’t believe it was an accident. They ended up by
prescribing two courses in economics, one of which
started at 8:00 in the morning on Monday, Wednesday and
Friday; the other at 8:00 in the morning on Tuesdays,
Thursdays and Saturdays. I thus had much spare time and
wrote a long, long thesis. I think it holds up pretty
well, though I can’t bring myself to read it. It
demonstrated to my satisfaction that the Federal Reserve
System, by jiggling interest rates, could control
business cycles, which I believe is rather more widely
accepted now than it was then. You know, a long paper.
And got second prize in the what was then called the
Hart, Schaffner & Marx national competition. A girl at
Reed College in Oregon got first prize. I felt on the
whole that I’d justified my initial position at the
– 11 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
beginning of the year, and that I was fit to do honors
work in economics.
That. was your junior year?
That was my senior year. My junior year I was in
chemistry and philosophy.
I see, so you switched after your junior year.
Yes. At Swarthmore the Phi Beta Kappa elections come at
the end of the senior year, not any time before. And at
that time I unfortunately was expelled. It was the
second time at Swarthmore. I was expelled this time
because Swathmore, in those lovely bygone days forbade
cars at college, and I had a car from September on parked
outside my room in the dormitory. Nobody had done
anything.
And you weren’t supposed to have a car.
No. But just before graduation, in that lovely week when
you’ve taken your exams for graduation next week, which
you’ve looked forward to for four years, and have no
responsibility whatever, I was driving a young lady of
whom I was rather fond through the campus going
somewhere. I looked up from our conversation and saw a
pedestrian in front of me and jammed on the brakes.
Unfortunately it was the dean of the college and I
stopped before I hit his shin but not before I hit the
crease on his trouser leg. That led to an expulsion
until graduation day.
I had been making a little beer in the dormitory
with a fellow accomplice. We did it back in the
– 12 –
basement in between the trunks. Sometimes it worked out
very well, sometimes very poorly, sometimes the bottles
expl_oded. But shortly before that disastrous trip
through the campus we had taken the current brew up the
fire escape, at about 2:00 in the morning, each with a
case or two of beer. I had stored it in my closet, and
locked the closet. But then I was told I had to go home
until graduation morning.
This was during one of my parents’ period of
prosperity and they lived in an East Side apartment house
in New York with an unlisted phone. And I was there and
I was told the Dean of Swarthmore wanted to talk to me.
I thought, “Oh my God, the beer bottles have exploded.”
I could see a rivulet of beer pouring out of the closet
in the dormitories. And I thought on the whole I’d
rather explain that in person than over the telephone, so
I wouldn’t take it. So finally the dean, an imaginative
man, went to a friend of mine and got her to say that I
could come back to Swarthmore a few days early.
The reason was that they had elected me to Phi Beta
Kappa. But one professor, a spoilsport, said “How can
you do that, elect him to Phi Beta Kappa and certify as
to his good character and he’s expelled?” But they
solved it by saying I could come back on what was called
Phi Beta Kappa Day, a couple of days before graduation
at which point came the actual induction. So they
thought they could designate me with bad character but
– 13 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
that I’d be cured and have good character by the day of
election. So I came back. That is a brief summary of
the ups and downs of my education.
Now what happened with the beer?
It didn’t explode. It was all there.
good, but there it was.
And there was a Phi Beta Kappa dinner?
It wasn’t any
No. President Aydelotte and his wife had an engaging
custom of asking the senior class, graduating class, to
dinner. They did it in the form of a formal invitation
requesting the honor of your presence, and so on. And I
replied with some care, even consulting an etiquette
book, explaining that Mr. Warner Gardner regretted that
he could not accept the kind invitation and so on and so
on, because the President had forbidden Mr. Gardner to
set foot on campus. There came back, in due course, a
letter, a reply from the Aydelottes. They, too,
regretted the unfortunate circumstances, but would I
please give them the honor of corning to lunch on the
following Sunday. So, there was gathered at the “Phi
Beta Kappa lunch” the commencement speaker, the Phi Beta
Kappa speaker, the Chairman of the Board of Trustees, and
one expelled student. I was so out of my depth there, so
nervous, I recall vividly when the butler passed
biscuits I took one by the top, and as I pulled it over
the tray the bottom half fell, turning slowly over,
until it landed butter-side-down on the carpet. Well,
the butler picked it up and offered me another and
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Mr. Schultz:
Mr. Gardner:
I was so flustered by then that again I picked it up
also by the top but that one landed butter-side-up, not
down ..
What graduate school options did you consider?
I had rather intended to go to the Harvard Business
School; I think I’d gone as far as making application.
The Lord took care of me and stripped my father of his
funds. There was no way that he could send me to
business school. I don’t know what I did that summer. I
wasn’t employed. I know that I had no particular plans.
I was just playing with my thoughts.
And toward the end of August a young lady whom I’d known
at Swarthmore I’d not pursued because it was obvious at
the outset that I was doomed because all sorts of
glamorous people were in hot pursuit of her, including
Jim Michner (a class ahead of me at Swarthmore). In any
event, she had married a man by the name of Tom Holland
who was an economist, somewhat older, who was teaching at
Rutgers. Rutgers had instituted a fellowship/
scholarship for graduate students in economics Which paid
$100 per month. Now, in 1930 that was a pretty good sum.
Not magnificent, but enough to be comfortable.
The position having not been filled, I expressed a
very lively interest in it and was appointed to it. And
that year I don’t think I was taking on any classes. I
was assigned the study of building and loan liquidity,
so-called, which was very limited and they were all in
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terrible trouble. It was a state affair in those days.
New Jersey institutions were all on the verge of
bankruptcy and I spent the year working on a proposal for
a common fund of liquid assets.
That would be the early 1930s?
It would be 1930-31 and, in the course of that year, I
read and was much impressed by a book by John R. Commons
at the University of Wisconsin in which he tried to weave
together economics and law. I thought, “aha,” here is a
field that had real attraction and real potentiality. I
ended up with an MA at the end of that year. Instead of
going on for a Ph.D. in economics, I thought I’d go to
law school, study law and try to weave the two
disciplines together into a meaningful structure.
The story that one could tell about my life is that
it is a series of completely accidental good fortunes.
The next one that occurred was an instructor in the
Rutgers Economics Department by the name of Hurlbert.
Hurlbert?
Hurlbert. He was worried about the severe depression
prevailing at the time and he had a cure for it. His
cure was to stand on his head on Wall Street for as long
as he could, so he proceeded to do that. Well, that did
not endear him to the faculty or the Chairman of the
Economics Department, and he was relieved of his
teaching duties. I was there so they loaded his classes
onto me which I was to teach for the remaining school
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Mr. Gardner:
year. The New Jersey College for Women was also in the
same town, New Brunswick, and my first class was over
there. And, by mishap, the course had just reached
Ricardo’s views of the almost certain devastation because
of the growth in population; that inevitably led on to
ways of restricting population — birth control and the
like. I was a pink-faced 19-year-old or 20-year-old
talking to this class. I think there was about 40 of
them, every one of them knew more about population
control than I did.
In consequence of Hurlbert, I was able to go to law
school. I was hired by either Rutgers or NYU for parttime
teaching, for all but one semester of the three
years of law study. This was not because they were
overwhelmed by my talent, but because I had one great
advantage by being available and making no demands and
having no expectations for the future beyond the semester
or the year. During the fall semester of my second year,
I was unemployed. That was fairly rough in terms of
money. Columbia gave me tuition, books and rent but I
had to have a little cash for living. If it hadn’t been
for Hurlbert I wouldn’t have had any.
How did you decide to go to Columbia and what was the
application process?
I decided to go to Columbia because there it was, at
hand. And the application process consisted of taking
some sort of an examination, which I took, paying no
attention to it. My first year, I did not do at all
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well – C’s and B’s. I didn’t much like the courses I was
taking. I didn’t like my fellow students. They behaved,
it s.eemed to me, in an abominable way — arriving with
green, red, purple, and black pens and scribbling in
leather notebooks, followed by a mad dash to the professor’s
desk at the end of the lecture in the hope that
they could make an impression on him that might be
useful. There was intense competition throughout.
At the beginning of my second year, a week before
maybe, the Dean, Young B. Smith, called me in and said my
marks were not really good enough to renew the
scholarship they had given me, but that it would cost
more to revise their entrance examination, on which I
obviously did well. So they would give me another
chance. They renewed, on that cost-saving basis, the aid
they were giving me. I then took courses that I liked
and ended up on top of the class with A’s in everything.
Did you work harder in your later years? To what do you
attribute this change in your academic performance?
Partially the courses which I liked. I think it was
chiefly that. It was stupid of me to dislike the firstyear
courses because, if I wanted to do anything in the
nether world between law and economics, the first year
compulsory courses of property, trusts, and contracts and
were fertile ground for any imaginative weaving that I
was going to do. The second year included interesting
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Mr. Gardner:
things — trade regulation, constitutional law, public
utilities and things that I was interested in here and
now.
And there are a number of professors at Columbia at that
time who were still very well known: Karl Llewellyn,
Herbert Wechsler, Walter Gelhorn? — maybe there were
others?
One other, I’d add Hale, his first name I forget.
Herbert Wechsler and Walter Gelhorn were reasonably close
friends throughout my life. During my third year in
Columbia, I was teaching half-time at NYU and also doing
half-time for an odd sort of operation called the
Legislative Drafting Research Fund. I ended up with two
half-time jobs in addition to law school. That’s because
I had been wholly unemployed, with no income on September
1, my dates are a little arbitrary, and, in two days, I
had New York University offer me a job and said “yes.”
The Legislative Drafting Fund, either the same day or the
next day offered me a job, which I also took, so I ended
up very busy.
The Legislative Drafting Fund was actually across
the hall from Walter Gelhorn’s office and we ran into
each other with fair regularity. I ended up spending
my weekends, which were my only time off with that
schedule. I had to work from morning to midnight on
weekdays. Weekends, I took Sundays off and spent
Sundays with Walter and Kitty Gelhorn very satisfactorily
and have been very fond of them ever
– 19 –
Mr. Schultz:
Mr. Gardner:
since.
I took a course with Wechsler, but I wasn’t very
clos? to him until he came down to work in the Solicitor
General’s Office when I was there. I got rather close to
him then and when he was conducting brilliantly the
experiment on Civil Service Commission for Lawy-ers. I’ve
been quite close to him ever since. We generally have
had dinner together when the American Law Institute meets
in Washington. But last year, about the week before, I
ended up in the hospital and Herb Wechsler was also in
the hospital. Neither of us could make it, but as usual
we have high hopes of doing it again this year. Hale was
not as impressive a man, with nothing like the national
standing of Wechsler and Gelhorn, but he taught courses
that I was particularly interested in and was a very
thoughtful and decent person.
Tell me about Llewellyn.
I thought he was a showman, and he added mightily to my
disaffection with the Law School in my first year because
he was in charge of indoctrinating or something.or other
of incoming students, and put on a dramatic show. We had
to eat law, think law, live law. He did all sorts of
dramatic things and made the whole process of legal
education seem a little like a group of circus clowns
performing in a theater. I tried one semester on sales
with him in my third year. After the second or third
session, he announced we would please hand in the class
notes we had taken. He wanted to read them.
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Well, I found that distasteful, in part, because I didn’t
have any class notes and, in part, because I thought it
was an insult to the students to make that request. So,
I told him I had not been subjected to that close a
scrutiny since I lived in the Stone House in Westtown,
where they put the little children not big enough to go
into the dormitory in charge of Teacher Jesse. She would
inspect us before we went up to meals in the big
building, to ensure that our hair was combed and our ears
were cleaned. I hadn’t been subjected to that close a
scrutiny at any time since, and I wasn’t going to, so I
quit.
What do you mean, you quit?
Well, I just quit.
You quit the class?
Yes.
What course was it?
Sales/contracts.
was it the first year?
No, third year. By the third year, I had sufficient
mastery of the institution.
Right. Did you generally not take notes as a student?
No, I generally did, but I was not going to get myself
a fancy notebook with five or six colored pens. So I
took notes in the margins of the case books. My writing
is no good anyv.,ay, and when you’re writing in a small
margin of a case book, you don’t end up with very
legible writing, but it had a good result. Before the
– 21 –
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examination, I would sit down for about a day or maybe
two days per case book and try to piece out what I had
written and put it together in a form of connected
typewritten notes. I may have ended up with a better
understanding of what had been said to us than the people
who were so seriously putting it down.
Why is that?
Because it came together …
The text?
The annotated text was studied consecutively over a day’s
time or two days’ time, looking at nothing but that area.
It worked pretty well. It also served symbolically to
indicate my distaste for my fellows who so avidly copied
all things down. I remember one course when I was living
with a friend in a broken-down apartment in the Village
on Barrow Street, and I needed a place to type so I
turned over what I thought was an empty refrigerator to
be used as a desk. Unfortunately, there was a bottle of
olive oil left in that refrigerator and when it was
turned over it produced a permeating smell of olive oil
and for years I could not think of trade regulation
without smelling olive oil.
What were the goals of your fellow students in law
school? What did they intend to do after law school?
They intended to get rich on Wall Street — period.
So they didn’t have the goal of going into the Roosevelt
Administration?
I think few, if any, of them did. You know when I was
– 22 –
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put up to Stone along with one other man as possible
clerk.
This is Justice Stone, when you refer to being a clerk?
Yes, Gelhorn and a professor named Dowling had control of
that operation. They made the recommendation to Justice
Stone. He would interview two or three people and make a
selection. I wasn’t on the Law Review after my first
year marks and by no means was among the elite. The Law
Review people hated me after Stone had selected me and I
was in the middle of guerilla warfare with anyone on the
Law Review for having invaded their territory.
Is that right?
The man that also went down to see Stone and was not
selected graciously said that he thought it was right and
proper — a good thing — because he had a very good job
on Wall Street and I had no prospects.
Because you weren’t on Law Review?
Yes.
Did many in your class come down to Washington?
There is one man who may have ended up in the Office of
Senate Parliamentarian, a drafting office. I never got
that too straight. I think that of the entire class, I
was the only one who came down to Washington. Later on,
more of them did.
Justice Douglas, was he at Columbia then or was he
Chairman of the Security Exchange Commission?
– 23 –
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
He was not at Columbia while I was there. He may have
been at Yale.
Oh, he may have been at Yale, all right.
He was at Columbia and then he went to Yale. Then he
came down here. I don’t know if he was Chairman of the
SEC or someplace else.
Mr. Schultz·:·· And then he went on the Court in the late 30′ s or
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
sometime after you clerked for Stone? So you came down
to Washington to Clerk for Justice Stone in about 1934?
1934, yes.
Why don’t you tell me a little bit about Justice Stone.
What was his background? How did he become a Justice of
the Supreme Court?
I don’t know about him prior to his days at Columbia, but
he started teaching at Columbia early in the — I just
don’t know. He was Dean of Columbia until about 1920.
My dates are very approximate. During that time, or part
of that time, he a1so practiced law with a New York firm
I think it was Sullivan and Cromwell — and was quite
well-to-do which was not the ordinary lot of the law
school Dean. Coolidge was President and there’d been the
Teapot Dome Scandals which included the then Attorney
General Daugherty. Coolidge wanted to clean up the
Department and asked Stone down as Attorney General.
After one or two years as Attorney General, he was
nominated to the Supreme Court. That was 1924 where he
was until he made Chief Justice in 1940. He died in
1946.
– 24 –
I had and have a great respect for him as a good solid
thinker, completely dispassionate without regard to or as
close to being without regard to his own interests as any
man can be. A vivid illustration of that is that when
the Gold Clause cases came to Court, which is during the
year I was working for him, his frugal New England soul
was shocked that the should issue bonds promising
payment in gold and then reneging. He was shocked and
deeply distressed. He had a very strong sense of
identity with his government. He said he’d never buy
another United States Bond. I think he sold off whatever
he had. He probably would have done that anyway when the
case was corning up to the Court. And despite that very
strong emotional distaste, he was the only Justice who
held that repudiation was an exercise of the power to
regulate currency which resided in the Congress. He
permitted them to do it.
I’ve known only a few Justices at all closely. I’d
be willing to venture that nobody other than Carl McGowan
and John Harlan, the younger, of the Judges that I’ve
known, would have a similar capacity to put their
personal beliefs aside. Powell I did not know, but I,
for many years, have been reading the opinions of the
court and for the last 20-odd years, more than that, 40
years, I guess, the ideological cast of the Justices
have been such that one was almost certain of the
outcome when you saw who was writing the opinion, and
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saw the question itself.
But not Stone?
Not Stone, and to a degree, not Harlan or Powell. And
Souter seems an uncommitted man.
You moved to Washington to clerk for Justice Stone,
expecting to be here nine months? What did you expect to
do after that?
I didn’t have the vaguest feeling. Oh, somewhere, I
thought for the first two years, I was going to teach
economics when I got through. The third year I decided
law was much better than economics.
You planned to practice law?
No, I didn’t. I planned to teach law if anything.
To teach law?
I did.?’t plan very well. I’ve never been very good at
advanced planning but I thought I’d end up teaching
either economics or law and did nothing about it.
Indeed, I was fairly sure I wasn’t going to remake the
intellectual world because my senior year, with Hale, a
seminar course, I did a fairly extensive job of getting
back into John R. Commons in his how-do-you-call-it Legal
Foundations of Capitalism. I decided he really didn’t
know what he was talking about and I wasn’t much
interested in it anymore. So having reshaped my life
again, I concluded that economics was a bad idea. I
really expected that I would teach law, but I did not
give it much thought. I don’t know why.
In those days they didn’t have a formalized notion of
– 26 –
integrity, such that a Supreme Court clerk now cannot go
into the Solicitor General’s Office. That would be a
conf·lict because, who knows, there might be some case
hanging over from their days working for the Court -Goddamn
nonsense. Roosevelt had started off with a
Solicitor General of striking incompetence. Stone once
remarked that he wasn’t fit to try a cow case before a
justice of the peace, that is, unless the cow was sick.
In any event, he was so bad that even the White House
realized that they had to do something about it and they
selected Stanley Reed, a good and capable fellow, who was
general counsel of Reconstruction Finance Corporation.
He was moving into the Solicitor General’s Office
about the summer of 1935. Adolph Berle, I had one course
with him and for whom I had written one long paper at
Columbia was instrumental in my going there. I had
really impressed him in only one way. He was
teaching at Columbia. He was on LaGuardia’s policy
council and on Roosevelt’s brain trust. The three of
them together kept him reasonably busy. In the seminar
he was teaching that year, he would hold his head in his
hand gathering himself together before we started in. I
was teaching at night school at NYU and we happened
to be on this same subway, about 6:00 or so, going
down town. He took time enough off his major worries,
to inquire about what I was doing and I gave him a
thumbnail sketch of my commitments. He said, “My, you
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are as busy as I am.” In any case, because I was as busy
as he was, I think I may have written a fairly decent
paper for him too, he was always reasonably fond of me.
He told Reed that he ought to get me into the new
Solicitor General’s Office. So Reed asked me and I said,
“Yes.”
This is after you clerked for Stone?
It was spring at the time and I was still clerking for
Stone.
Now, let’s go back to when you came to clerk for Justice
Stone. Howard Westwood was your predecessor?
He was, yes.
And he trained you for a day or two?
He spent about one-half a day giving me a vague idea of
what I should do. And I don’t complain. I did no better
with my successor. And I don’t think training is much
use anyway. It’s largely a matter of chemistry and
natural wit and so on.
What’s your recollection of how Westwood had done?
With Stone?
Yes.
Very well, so far as I know.
would you describe how you worked with Justice Stone?
It’s my imprecise recollection, that of the ever present
petitions for certiorari, which were numerous even then,
that he read only a fraction of the sizeable flow. They
would be distributed — the petitions, the record and
response — all in a pile held together with a rubber
– 28 –
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band, and I would go through it and write up a little
memorandum, not a full size, maybe six by eight instead
of eight by nine paper, attempting to summarize it,
occasionally getting into a second page, but rarely. If
my recommendation raised any doubt, and maybe it’s one
time in ten or one time in twenty, he’d look at the
briefs and records himself. In general, he’d read the
memorandum and make up his mind in a total of about three
minutes. And, in contrast to the present custom, for I
am sure the Justices are now “prepared” i.e., given
questions to ask by their clerks before they go on to
oral argument. He would take that certiorari memorandum
with him and glance over it, not reading the brief, or
anything else.
This was before argument?
Oral argument, yes.
Oh, I thought you were just talking about cert.
petitions.
Well the cert. petition memos he’d carry on to oral
argument. I was talking about both.
So, for an oral argument, you would read the briefs?
No, I wouldn’t. Nobody would read the briefs. He would
have the certiorari memorandum; he’d have a notion of
what the case was about; he’d listen very closely to oral
argument; and, on that basis he would generally make up
his mind. If a case was assigned to him, then he’d get
into it very carefully and write the opinion. To
determine his votes; he’d sometimes look at the brief
– 29 –
•
or a record, whatever seemed to have struck his interest,
but rarely. His votes on the merits reflected the
initial memorandum, a very broad outline of the case plus
oral argument, plus the discussion in conference.
He would get into a study of the record only if the
opinion was assigned to him. If assigned, his practice
was fairly uniform. He would spend a fair amount of time
— a day or two — in the brief and record, formulating
his thoughts, and then he’d dictate an initial draft of
his opinion with a profusion of “[cases).” That was my
job, the first of my jobs, to fill in those brackets.
My second job came after I had added the cases that
followed out of my research, which was nothing very
extensive or revolutionary. Stone would take that and
produce a second draft, at which time I started a
literary examination. Stone was not a graceful writer
and his opinions required a fair amount of attention to
produce what I thought was a reasonably well written
opinion. I, in contrast to others who had written about
their days as clerks, did not sit down and engage in long
discussions with Stone about the merits of the case and
did not shape his thinking in any way. I have some
doubts as to the recollection of the people who explain
bow long they labored together to develop a Stone
opinion.
Putting those doubts aside, we had next to no
prolonged or close discussion about the usual case. I
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Mr. Gardner:
went to him once on a tax case for help because two
recent Holmes opinions were directly contradictory. One
dictn•• t conform to the other, and I said, “so what do I do
now?” He said, “The old man in his later years didn’t
pay much attention to authority, not even his own, so
just pick out whichever one you want and cite it.” And
then one other case, a conflict of laws case, happened to
be almost a replica of a lot of work that I’d done for a
term paper on conflicts of laws the year before and so he
let me write the initial draft, which he largely
accepted. That case was more mine than his but it was
the only one. Well there was another, a little tiny
banking case, as dull as dishwater, Stone couldn”t bring
himself to get into, nor could I. But he had the
authority so he told me to work out a draft. Beyond
that, I contributed nothing to the process of adjudication.
After he dictated the draft, did he then edit it and
rewrite it?
No, then he’d wait for me to come back with the completed
research and then produce a second draft. I can’t
remember whether he’d sit down and dictate it or study it
and write it out. I would then do some literary editing
which he would read over and then circulate a printed
copy. But we always got the assigned opinions out in a
sense of being completed and circulated to the other
Justices within the two week interval between arguments.
Nothing was ever held over.
– 31 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Were you the only clerk or were there others?
Oh no, there’s only one clerk.
And,· how would you compare the Supreme Court today to
when you were there?
Adversely. Not in terms of ability. The clerks have
above-average ability, with some outstanding people. In
terms of habit and tradition, I think there has been a
great deterioration since my day. I say my day, I mean
the day that I happened to join briefly in the work of
the Court. The opinions then were not replicas of Law
Review articles. There wasn’t an attempt to paint an
exhaustive picture of the law. The dissents and
concurrences were comparatively rare and there were none
of the monstrosities that we now get on occasion, where
several Justices pick and choose paragraphs and sections
of the main opinion, where they agree, and where they
disagree.
Nobody can understand the damn opinion, unless you
take a piece of paper and construct a chart. This sort
of judging is disgraceful since their job is not to
vindicate the judge’s learning, intelligence and so on,
but rather to straighten out the law which the fragmented
opinions don’t do. The lower court judges and the
practicing lawyers are often ill-served by the complex
opinions which come out.
I remember about ten years ago, Chief Justice Burger was
promoting an intermediate court to save them from the
burdens that they had. I don’t doubt the burdens they
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were working a lot harder than the Justices were when I
was around. But what they were working on was the
development of separate positions, their concurrences or
dissents. Burger supported the additional court on
grounds that I thought were dishonest. He emphasized
that in Chief Justice Warren”s first year, they had only
84 signed opinions in the Court, while today we have 120.
Warren’s first year was the lowest year in the history of
the modern Court in turning opinions out. They had spent
most of their time on Brown v. Board of Education and all
of the political, intellectual and legal problems in
connection with that. Back in the 30’s, instead of 120
that Burger was complaining about and saying there ought
to be another court, they were doing 150 opinions a year
without working too hard.
What were the working hours?
I only know Stone’s. This was the last year before the
new Courthouse opened and the Justices worked in their
homes, so I can speak only to my year with Stone.
And the Court was in the Capitol?
Yes, the old Senate room and the Senate Chambers. Stone
started work, I think about 8:00 or 8:30. I didn’t
know. I didn’t get there until about 9:00. At about
6:00 we would stop and we would go out for a little walk
and that was the end of the day. He may have worked
longer on weekends. I didn’t work either nights or
weekends, not because of indolence, not because there
wasn’t some work to be done, but chiefly because Stone’s
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chambers were in his home. He had built a house and
there was a large room for his chambers in which he and
his Clerk and secretary worked. He’d push a button on
the wall and the bookcase would swing away permitting
entry into the house. At the day’s end, the outside door
was locked. And the only way you could get into the work
area after hours was through the house, which I didn’t
care to do, and I expect that he didn’t care to have me
do. On Saturdays the Justices did work. They then had
their conferences on Saturdays. I guess everyone worked
on Saturdays before the war, but I don’t think Stone, as
a rule — maybe never — work ed on Sunday. I don’t think
he worked nights. He got his work done, as I say, within
the two-week interval. We never had — when I say never,
I’m probably exaggerating, but it muse be rare — the
opinion writing ?pill over.
The current Court produces more opinions with, I
suppose now, something like 100 cases a year than the
Hughes Court did with 150 cases. The current Justices
work a good deal harder and turn out more opinions and
complete more research. More than half of the Court’s
current effort is devoted to dissents and concurrences,
which adds confusion to the legal world. I’m speaking
now of the Supreme Court, not the Courts of Appeals,
which by and large, are much harder pressed than the
Supreme Court, yet in one way or another get their work
done. Simply, they don’t have time for the luxury of
– 34 –
I
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
dissents and special concurrences. You asked me a
simple question and I gave you an interminable answer.
No, it’s a fascinating answer.
Oh, I should add when Burger told us by this little
sleight-of-hand trick? how overworked the Court was,
choosing with such care, only Warren’s first year as a
basis of comparison, I was sufficiently infuriated that I
spent about ten or twenty pages documenting the Court’s
output with detailed comparison of his terms with 1934.
I didn’t think I wanted to send it off to ask somebody
please to publish it. And, I didn’t want it to drop
silently into a well so I sent a copy to the Chief
Justice and to each Associate Justice saying I wasn’t
publishing it but it was something I wanted to contribute
to the present controversy,
Somebody published it, didn’t they?
No. Out of the Court of nine and, I think, one retired
Justice, I had two responses, Powell and Stevens, each of
whom sent back a many-page, thoughtful and gracious
comment, in essence agreeing with me. But from Burger,
as the chief offender, and the others, not a word.
Mr. Schultz: · What was Washington like in 1934? How did it compare as
Mr. Gardner:
a city from Washington today?
There weren’t so many cars, there weren’t so many
buildings. It was also a much smaller, compact town, or
so it seemed. There was a enclave or a ghetto, if you
want so to view it, of bright young men who came down to
– 35 –
Mr. Schultz:
Mr. Gardner:
be New Deal lawyers. By and large the group was fairly
compact; almost everybody in it knew almost everybody
else·. I’m sure I exaggerate but unrelated to your
daytime occupation, social evenings were generally in the
same group. Somehow it was like a small town. We would
expect to see two or three people we knew if we went to
the theatre or to a restaurant. It was both smaller and
on the whole a friendly town, if you were white. If you
were black, it was quite a hostile environment. You were
not allowed in restaurants; theaters maybe, I’m not sure.
As the area got bigger and more crowded, there wasn’t
anything like the rapport that was around in the New Deal
days. It came again, during the Kennedy days, but it
didn’t go that far. The cause may have been only the
eloquence of Sorenson, but the attraction of Washington
was substantial then. In New Deal days, the excitement
was in Washington. The feeling of doing something useful
was in Washington, and, in addition, the government pay
in the early 30’s was higher than on Wall Street.
Oh, is that right?
Yes, when I came down and worked for Stone my salary was
a lot higher because he spent more of his appropriated
allowance on his clerk and less on his secretary. But, I
can remember with some vividness, Stone paid me $3,600,
The government rate was $2,600 a year and the Wall Street
rate was $2,200. Those happy days have vanished, I
think.
– 36 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Did you walk a lot? How did you get around? You said
there weren’t as many cars?
I would walk from my home to Stone”s which was less than
a mile. I had a beat-up car then. After that, just as a
matter of course, I think, everybody had cars and drove
to work.
Do you have any particular memories of segregation?
Oh yes, I have a very vivid memory in one respect. When
I left the Justice Department, I went over to the Labor
Department as a Solicitor, which was the only job I’ve
ever had in my life that I didn’t like. My chief trouble
was Frances Perkins. She had been kicked around by the
Congress for almost a decade, and ended up entirely too
timid to do her job. In any event, I had a great
difficulty with personnel. It was the beginning of the
war years and lawyers were leaving the Labor Department
in sizeable numbers, either joining the Armed Forces or
being lured away by more exciting work in war agencies.
And, by the same token, I was having difficulty
recruiting others. One day there walked in, it seemed to
me, an ideal solution — a young lady who had been on the
University of Colorado Law Review, and was obviously
intelligent, obviously attractive; I hired her
immediately. As a theoretical matter, the employment
papers had to be signed by the Secretary and, if I had
known that it was a controversial problem, I might
have talked to her. But I knew she wanted to hire
– 37 –
Mr. Schultz:
black people. I knew that she wanted to hire a woman,
and I thought, “Ha, this will please her, it is two for
one.·” It didn’t please her and we had stormy sessions
about how she was afraid — as I said the recruit was
attractive that a white lawyer might take her out to
dinner and be seen by a Congressman. She was afraid that
the white ladies wouldn’t like it. She undertook to
explain to me anatomical differences between men and
women in the toilet arrangements. Oh, and, beyond that,
she was antisemitic. I had to justify Jewish appointrnents.
I once asked sent a formal memorandum asking
if there could not be a momentary breach in the
antisemitic policies of the Department so that I could
hire a good lawyer or two. But I didn’t quit
immediately, like a man of true principle would have
done. In those days, all you had to do was tell a
passerby on the street you weren’t particularly happy,
and people would be around in a week or two or a month or
two suggesting alternatives.
three months before I left.
It took me about two or
And I left to become
Solicitor of the Interior Department, under Harold Ickes,
who differed from Miss Perkins dramatically, and was not
in any way intimidated by the Congress or anyone else. A
different story to be sure.
You said that there was an esprit de corp, and a lot of
socializing by young lawyers and others who came to
Washington to work on the New Deal. Why don’t you tell
me just who some of these people were?
– 38 –
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
The list starts with the Solicitor General’s Office.
Paul Freund, Charlie Wyzanski, Alger Hiss, Charlie
Horsky, and me. There was Hugh Cox. And Ben Cohen and
Tommy Corcoran, of course. There were other outstanding
players, such as Jim Rowe.
Where was Joe Rauh?
I don’t know where he was essentially, where he was on
the payroll. He was actually an assistant to Ben Cohen
much of the time. There was another 20 or 30 of us.
This is probably a good stopping point.
Good.
– 39 –
Mr. Schultz:
Mr. Gardner:
INTERVIEW NO. 2
(February 4, 1997)
1934-1936
Mr. Gardner, in the last interview we talked about your
clerkship with Justice Stone. Do you have any further
observations you’d like to add about the Supreme Court or
the workings of the Court.
I do not remember exactly what I said in our last
interview but I am quite dissatisfied with the basic
operation of the Court. Much too little attention seems
to be directed to what I think is their major job of
settling the law and doing so in terms that can be
understood by the Bar and by the lower courts. Much too
much attention is directed to maintaining an individual
point of view, to debates among the Justices. I would
guess that probably a dozen cases a year become so
fragmented that there is no way they can be understood
except by virtue of charting with some care the positions
of each of half a dozen contributors to the decision.
A considerable cause of that unfortunate state of
affairs seems to me to be a surfeit of law clerks. There
was a day when one law clerk was all that a Justice
needed. Now they have four — causing opinions too
often to end up much like a learned article — a
display of erudition that is impressive but not
particularly helpful in the main job of the Court which
– 40 –
•
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
is articulating an intelligible body of law. I think too
it may be that the fractured nature of the opinions and
the insistence of most of the Justices in having their
precise view spread out for posterity rests, oddly
enough, on the law clerk structure. If a position is
researched in depth, discussed in depth and the Justice’s
office is committed to that position, I think it is
harder psychologically to say “all right, all right, my
colleague’s opinion is not going to destroy the republic
and I might as well go along with it.” But if you have
to justify a conference position not hammered out by a
team of law clerks, go back and tell them that the large
amount of research that they did you tossed overboard, it
must be somewhat diff icult.
Thank you very much. After working for a year in the
Supreme Court, I believe y ou then worked in the Solicitor
General’s Office.
I did for a little over six years.
And how did you come to obtain a job in the Solicitor
General’s Office?
I was held in reasonably high regard by Adolph Berle who
taught corporate law at Colwnbia, and he was also working
in one capacity or another in what was known informally
as Roosevelt’s “brain trust.” When Solicitor General
Reed was nominated to replace a wildly incompetent
Solicitor General, Berle recommended to Reed that he
get me to join the group he was forming. Those days
were not quite so sensitive to the appearance of
– 41 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
absence of conflict and complete purity as we are now.
I’m told that now it is not considered proper for a law
clerk to go directly into the Solicitor General Office
because who knows there might be some case in common
between his service in the Court and the work in the
Solicitor General’s Office. In those cruder frontier
days, it was assumed that people were honest and you
didn’t have to worry about that. Then if there was an
overlap somehow you’d stay out of it. In any event there
was no formal bar at that time.
So Reed offered me a job and I, having only a couple
of months before decided that I wanted to teach law
rather than teach economics, accepted his offer. This
was work so attractive that I put aside teaching law for
awhile as I did for about 50 years.
But your intention when you went to the Solicitor
General’s Office was ultimately to teach law?
Yes.
When you went into the Solicitor General’s Office how
many attorneys worked there other than the Solicitor
General?
Mr. Gardner: . The core staff who did the work consisted of Paul Freund
and Charlie Wyzanski, Alger Hiss, Charles Horsky, and me.
There were two more or less peripheral participants.
One was a man named Marvin Smith who worked on run-ofthe-
mill criminal cases and had been there for many
years and then a man named Hudson who was rather
older than any of us. He was a brother of Manley
– 42 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Hudson, the international law man. He had been hired by
Solicitor General Biggs as his principal attorney. I
think that he was incompetent, or rather I saw nothing to
indicate that he ought to be called exceptionally
competent. He left after about a year, having
participated very slightly in work of the office.
Solicitor General Biggs preceded Stanley Reed.
He did, yes.
Now what about Jerome Frank, was he in this office at
that time?
No, he never was. He was General Counsel of the
Agricultural Adjustment Administration and did a
spectacular job in recruiting able attorneys. His staff
over there — just a random selection of those that I
knew were my partner, Shea, Abe Fortas, Lee Pressman, and
Alger Hiss. They are only a sample. They aren’t the
whole lot, but he had a remarkably able staff over there.
Then he went directly to New York, maybe directly to the
Court of Appeals, I’m not sure.
I’d like to go back to Paul Freund, Alger Hiss, Charles
wyzanski and Charles Horsky, which is quite a staff.
I thought it was.
Could you describe each one of them for me as you
remember them then, and also as you came to know them
later?
Starting with Freund who was the senior. He was, of
course, a vecy thoughtful, very able, non assertive
– 43 –
lawyer who was always a gentlemen. He was almost
exclusively on special projects — not the routine work
of the office. He and Jerome Frank worked together on
the Agricultural Adjustment Act briefs. They started
with a draft from Jerome Frank’s office and then going on
to the Solicitor General’s office. I recall being in
Paul’s office one day when he looked at a Jerome Frank
footnote and in the footnote, there was a passage that
was underlined and in the underlined passage, was a
passage that was capitalized. Paul looked at that and
said, “Wouldn’t you think that’s important enough for the
text”? ( laughter)
Paul then as ever since invoked universal
admiration. He was also the only person I have ever
known, God knows including myself, who you could see
leaning back in the chair with his eyes closed and you
were confident that he was thinking and not asleep.
Wyzanski came over from the Labor Department working on
the National Labor Relations Board cases primarily. He
had an extraordinary ability, along with a phenomenal
memory, to think nearly like a machine and less like a
person who has human passions than anyone I ever really
encountered. I remember one case — I happened to be
down there — it was an Indian case and then as now the
Justices have a game they like to play, “if you’re right
counsel, why not this or why not that?” and lead you
down a path to another disaster. Somebody asked
Wyzanski, “If your position is correct, Mr. Wyzanski,
– 44 –
Mr. Schultz:
Mr. Gardner:
why not?? (I forget the why not). For about 60 seconds,
he thought and said, “You’re right your Honor.” He sat
down. and that was the end of his argument. I don’t think
he would do that for a private client. (laughter) It
would be funny.
Did you lose the case?
Oh, of course, he gave up the case without 60 seconds
thought because he examined the hypothetical and it was
perfect without any flaws. I’ve never been too close to
him after the Solicitor General’s Office. He had no
emotion, but he did have a considerable vanity. He wrote
a ten or a twenty page, not exactly a memoir, but
something close to it, which he sent to Judge Weinfeld
with copies to a good number of friends. He said that
Reed was so impressed when he heard him make a Supreme
Court argument without notes that Reed invited him to
present the cases on the constitutionality of the
National Labor Relations Act instead of Reed himself.
In an exercise in mild malice, I took the trouble of
pulling out the Supreme Court Reports to ensure that my
recollection was right. The main case was argued by Reed
together with Warren Madden, the Chairman of the Labor
Board. Reed argued the secondary case alone. Two less
important cases were divided between Wyanski and the
General Counsel of the Labor Board. Wyzanski was in
charge of the briefs but his role in the oral argument
was markedly less than what he recollected.
Alger Hiss was likeable, and very able. So far as his
– 45 –
Mr. Schultz:
Mr. Gardner:
politics were concerned, Joe Fanelli, who was working in
the office for a while, I thought correctly summarized
the case. Hiss he said was a little to the right of
Grover Cleveland. My judgment of his character was clear
that he could never be engaged in disloyal espionage.
Yet as his trial went on, I could never believe on the
evidence that he was an honest man. What the full truth
may be, I don’t, to this day, know. The business of
covering for somebody seemed more probable than anything
else, however improbable.
The business of what?
That he was being a gallant cover for maybe his wife,
maybe somebody else, is the only way I can reconcile my
judgment of his character with my judgment of the facts
of the trial, because they were kind of contradictory.
The first year we were there, Horsky and I, we arrived
about the same time, our work was supposed to be reviewed
by our seniors (every senior still being in his 20’s)
As Freund was busy thinking large thoughts, it meant
either Wyzanski or Alger. My office was next to Hiss,
one door down. I don’t know about Horsky but as far as I
was concerned, I could tell when Alger had left his
office to go to the library or the men’s room, or God
know where. At that point, I’d pop out to have my work
reviewed and discover, as he wasn’t there, it must be
reviewed by Wyzanski which was much more satisfactory in
the sense that t-Jyzanski would immediately say he was
wrong, when he was, without a long and prolonged ba ttle.
– 46 –
Mr. Schultz:
Mr. Gardner:
By the first winter, or spring maybe , I concluded there
wasn’t any real need for anyone to review our work. So I
induced Horsky to join me in simply going ahead and
sending our work on to the Solicitor General or the
printer, whatever the case may be, and nobody complained,
so that indignity didn’t last too long.
Horsky has been, if not my closest, almost my closest
friend for 50 years and he is a completely satisfactory
man, to whom I am greatly indebted. Among other things,
when I went abroad for the Army, I left a pregnant wife
as a house guest with the Horskys, where she lived for a
couple of years until I came back. I have never
adequately repaid that courtesy.
You talked a little bit about how briefs were written and
either were reviewed or not reviewed. Could you talk a
few minutes about the other workings of the Office? How
were decisions made about what position to take on cases
and that sort of issue?
It was the exceptional case in which there was occasion
to specifically address what position to take, putting
aside the authorization of appeals. One of the curious
aspects of the Office was that all government appeals had
to be authorized there. Inevitably there were policy
decisions to be taken, but they were usually easy ones.
Most cases on the merits in the Supreme Court require
some degree of policy decision which was exclusively
the responsibility of the Solicitor General. We would
make recommendations, we’d discuss it and so on, but
– 47 –
Mr. Schultz:
Mr. Gardner:
it was his decision. On most days I never undertook to
trouble the Solicitor General with the appeal
authorization.
One issue that I treasure,–I may treasure it so
much that I may be repeating myself. The Post Office,
which at that time was by and large a agency, directed
by Catholic politicians, undertook to ban from the mail a
magazine called The Nudist. The District Court enjoined
the banning. I said they couldn’t appeal it and there
arose a storm. They demanded a personal audience with
the Solicitor General, Francis Biddle, and about eight
portly gentlemen armed with law books marched over and we
sat down for a conference. They handed him a copy of the
magazine and said “this is what your young man says the
mails have to carry.” Biddle carefully examined each
page as he turned through the magazine. Everybody sat in
silence awaiting the final judgment. He finally got to
the back cover and he put it down and he said, “Pretty
little girls, aren’t they?” I don’t believe the Post
Office ever again undertook to take an issue to the
Solicitor General.
What was the work load like? How hectic was the pace?
I would say the Office was overworked, except that the
summer time was very slack. The Court wasn’t in session
and there was no routine flow of cases. It seems to me
that when the Court was in session there would be one or
two nights a week when you hadn’t completed your work
and had to stay at it. t•Je had very good relationships
– 48 –
with the Printing Office. I guess I participated in
petty corruption. Each Christmas I used to take a bottle
of & good scotch down to the night superintendent. If we
got a brief there before midnight, we’d have it on our
desks in the morning printed or in proof, whichever was
needed.
The Solicitor General’s review varied according to
the Solicitor General, and, to a degree, according to his
schedule. The amount of review that we, the working
lawyers, gave to drafts that came up from the divisions
depended entirely on the individual division. Now to
illustrate the latter first, the Antitrust Division
through my time had first-rate lawyers. Everybody was
very good. Beyond that, their records were enormous and
there is a presumption in favor of accepting their
mastery of a ten-volume record. We took as our
responsibility, with every division other than Antitrust,
that we were responsible for the record as well as the
brief except in very rare exceptions. But with
Antitrust, we tended to take the record on faith, then
simply to go at the law, and even then to go at the brief
more as a literary editing job than a legal research job.
At the other extreme were two divisions, the
Criminal Division and the Lands Division and in each
case our practice would be to read over the brief more
or less rapidly and then to pull out a yellow pad and
start from scratch. It was almost never anything that
– 49 –
we could use. When Carl MacFarland came to the Lands
Division, he largely changed their condition. He was
like• a corporate slave driver, though he came out of, I
guess, the University of Virginia as a law school
professor. He brought a great deal of order to the
division and he brought in some capable brief writers.
The Claims Division was very well run by my frequent
antagonist and later partner, Frank Shea.
In general, I would suppose, a brief on the merits
would be assigned to one of the attorneys in the
Solicitor General’s office where three days to a week
would be devoted to review, revision, etc. And then,
what happened after that depended on the Solicitor
General and his degree of confidence and the degree of
competing concerns. Reed would go over every brief on
the merits — often in consultation with the attorney and
we would discuss it. I remember his once saying, “Why
don’t you sit down and stop that God Damn whistling.” I
was waiting for him to make up his mind. It didn’t seem
to me that he needed as long as it took. Less important
briefs, such as those in opposition or petitions, I
believe would go through his office, but didn’t get much
of his attention.
Jackson and Biddle delegated a great deal more
responsibility. If it was a case that Jackson was going
to argue, he would get into it throughly, and the brief
and record would go to him. Apart from his cases, only
the most important ones which I thought needed his
– 50 –
•
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
participation would come to him. By and large, the great
part of the work was left to the staff.
If it was not a case for the Solicitor General, the
attorneys would have to go over the record and on their
own write or revise the draft brief from the Division or
agency. When I was First Assistant I would review, at
least, in a perfunctory way, all briefs except tax briefs
which would go to Arnold Raum. I think it was only when
more difficult Solicitors General later came along that
the work of the staff attorney was invariably reviewed.
I understand that Erwin Griswold wouldn’t let a postcard
go out of the office without his going over it in person.
He was a very good Solicitor General but I would not like
to work under so close a review.
I’m not so sure, but I rather believe that Archie Cox
also reviewed everything personally. As to the others, I
don’t know.
Did you typically work long hours, nights and weekends?
I typically worked from about 10 until 6 or 7:00 p.m. If
we were behind on a brief, I would work into the night as
long as necessary and so too for weekends. There wasn’t
any typical pattern one way or another.
And you worked for, I think, four Solicitor Generals:
Reed, Jackson, Biddle and Fahy. Is that correct?
Yes, but only briefly for Fahy. He and I were plainly
not going to be happy companions.
I wanted to ask you to describe each one of them as a
supervisor, as a lawyer and as Solicitor General.
– 51 –
Mr. Gardner:
Mr. Schultz?
Mr. Gardner:
It would be pretty presumptuous of me. The sinner can
pass judgment on the saints, but it would be worthless.
I can edit it out.
Reed was enormously better than J. Crawford Biggs of whom
Stone once said, “he was not fit to argue a cow case,
unless the cow was sick.” Reed was a good competent, not
brilliant, not quick attorney, but solid, and I was happy
enough to be working for him.
He was succeeded by Jackson who was a brilliant advocate,
remarkably deft in his touch and with remarkable
instincts about what to emphasize and not to emphasize.
There was an important case that he was going to
argue and I more or less abandoned any feeling of
responsibility for mastering the record. I knew he would
do it and do it as well or better than I possibly could.
This produced an unfortunate result. The case involved
the validity of Dennison Dam, a major source for the
Southwest Power business. It was attacked as an
unconstitutional exercise of federal power and was
justified chiefly on grounds of the general welfare
clause, which was a fairly anemic reed to lean on in
those days. I went to the argument and remember waiting
and walking up and down the aisle on the edges of the
court room with Jackson. He said it was a consolation
that I always knew the record perfectly, since he hadn’t
looked at it. I told him that I didn’t look at it
either, since it was a consolation for me that he was
– 52 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
going to. So, we went in. The angels took care to look
out for him. He didn’t get a single question on the
record during an hour of argument.
Biddle was an absolutely delightful man, quite the
most charming person I have ever worked for. He was not
a particularly good advocate. He too left the brief
writing to me and how he prepared himself for his own
oral arguments, I have no idea. I didn’t participate in
it; I’m not sure what he did. But he was a man of superb
poise, confidence, and graciousness. In terms of living
a pleasant life, I’d rather have him than any Solicitor
General that I worked for, but not as an advocate. He
had no interest in reading the briefs. When we had a
policy problem, his judgments were fairly good. Of those
three Solicitor Generals, I would put him at the bottom
in terms of legal skills and ability, and at the top in
terms of personality.
What happened to him?
He became Attorney General and then Truman removed him
and, God help us, put in Tom Clark who was a much
inferior selection. I had just come back from the War
and made a courtesy call on Biddle. Oh, I’ve told you
this, I’m sure at our last meeting. The lovely
circumstances of his resignation as Attorney General,
didn’t I?
No.
Well, if it were anybody but Biddle, I wouldn’t believe a
word of this tale.
– 53 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Oh, you told us this at lunch, but go ahead.
The appointment secretary, Matt Connolly, phoned Biddle
to say the President would like his resignation. Biddle
said he was a cabinet member and would not resign on a
clerk’s call, but would be happy to honor the President’s
own request. Truman called him to the White House and
they had a very pleasant chat, including Biddle’s resignation.
Then, Biddle said “As I was leaving, I leaned
over and patted him on the shoulder and said, ‘Now,
Harry, that wasn’t so bad, was it?'” As I say, I believe
it was absolutely true but had it been anyone else, I
wouldn’t believe a word. He then was Chief Justice of
the Nuremberg Tribunal where, oddly enough, in Nuremberg,
he was an exceedingly successful Chief Justice. There,
the principal job was keeping the British, the French and
the Russians, and ourselves on a tolerable speaking
acquaintance at least, and not having the whole thing
blow up, and for that Biddle was superb. He knew the
issues well enough and he was a thoroughly charming
person and he kept everyone contented.
Again, oddly enough, Jackson did a remarkably bad job as
a prosecutor. Perhaps remarkably bad is too strong a
word. He had turmoil in the prosecuting staff, according
to those who were there, and his judgment was said to be
erratic. I wasn’t there.
Did Jackson go on to be Attorney General and to the
Supreme Court and then left the Court temporarily, to be
prosecutor?
– 54 –
l
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Temporarily, which a good many on the Court felt was
improper and I would agree with them. My own relations
with· the prosecution were fortunate. When V.E. day came,
I burned all of my files, despite the lesser need for
security, and went off with a companion for a three-day
trip to Munich and Bechtesgarten because I couldn’t get
out of Heidelberg, our headquarters. When I came back to
London, I learned that Jackson had been searching for me
everywhere. So I went into hiding. I had two telephone
numbers, one so that any unidentified caller was to be
told that I had gone to an unknown destination, and
another which I had given to the transport people, meant
that I was to be run down no matter where I was. I
survived about a week in London before I was able to get
a flight back home successtully and then got on a small
plane from London to go to Prestwick, then used for
trans-Atlantic flights. Everybody who traveled in those
days, of course, was in uniform, and I sat down and then
noticed that a civilian had come in and sat down next to
me. I didn’t pay any attention to him until I wondered
what a civilian would be doing traveling on a military
airplane at this point. I looked around after awhile and
it was Jackson.
He found you.
I was caught. Actually, it was good that I was caught.
I told him that I wanted to go home. I had been away for
almost two years. He canceled his requisition for
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me; this probably would not have happened if I had not
been apprehended by him.
Fahy and I didn’t get along at all. He was able,
and widely respected and I’m not sure that I did not bear
much of the blame for our difficulties. They were
principally two: (1) Fahy was a really solemn man and
didn’t easily accept levity. (2) I had been accustomed to
running the office. He was Acting Solicitor General for
about three months, waiting his nomination, which was
held up a very long time because, I was told on pretty
good authority, Roosevelt had told Tommy Corcoran that he
would appoint him as the next Solicitor General, and had
promised Felix Frankfurter that he would never appoint
Tommy Corcoran, so he solved that by making no
appointment. It was my great, and on the whole
irritating, concern that Fahy, during the three months he
was Acting Solicitor General, thought he was the
Solicitor General, and I thought he was only an Acting
Solicitor General who was undertaking to reexamine things
that had been settled by his predecessors. I didn’t at
all like working with him, so I left. He was able and
certainly conscientious, but not my cup of tea.
During those years and during your year clerking on the
Court, you must have seen a large number of arguments.
Who do you recall as being a great advocate — Supreme
Court advocate — of those times?
The best, I think, was George Wharton Pepper. He was a
good lawyer and also a remarkably capable theatrical
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actor, and exploited the combination of legal ability and
dramatic ability. I once had a case down there and he
argued the one before me. Ordinarily, you are filled
with impatience to get that fellow out of the way and let
the Court get down to important business — your own
case. Pepper had a case involving a patent on a washing
machine — the case before me. He held my attention
riveted throughout his presentation of the patent issue.
That’s a magical feat. And I’d put Bob Jackson, I’d put
Bob next to him. Nothing like the theatrics but a very
able mind, with sound judgment and a good manner. The
third was a thoroughly distasteful man, Fritz Wiener.
Could you spell that?
Wiener. W-I-E-N-E-R. There had been an enormous case
involving the Northern Pacific Railroad and land grants
going back around for a hundred years with about sixty
subordinate issues. Someone, probably Biggs, had hired a
man thought to be outstanding at the Boston Bar who made
the most God-awful hash out of an argument that ever
occurred. The Court just gave up since they couldn’t
decide it at all, and set the case for reargument. Reed
or Jackson and I, with some apprehension, decided to try
Fritz Wiener, then a senior but not top attorney in one
of the divisions. He got on top of that vast collection
of issues and made the case perfectly plain. He
presented the case without a single note for two hours
and won the case hands-down. And, that’s the only
Wiener argument I had myself seen, but I understand
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there were others. He was always very good.
He happened to be quite offensive personally.
Nobody could put up with him. Frankfurter and I had at
least a two-year battle about Wiener. He kept insisting
that Fritz ought to be brought up to the Solicitor
General’s Office, and I kept saying that in that office
he’d have to do more than write a brief and make an
argument. He couldn’t possibly get along with the
divisions and agencies that he would have to deal with.
I don’t know, but I think he may have been brought up to
the S.G. ‘s Office after I left. It didn’t occur to me at
the time — it certainly does now — how grossly improper
it was for Felix to be trying to dictate who should work
in the S.G.’s office to present arguments to him.
Do you recall any other interactions with Justice
Frankfurter, involving cases or similar kinds of issues?
Not involving cases; involving people, yes. He had been
meddling in that area almost all of his adult life. I
had at least two long sessions with him when we
differed about an issue or person and a good many phone
calls over the years. I was never a Frankfurter man. I
never went to Harvard. He viewed me simply as one of the
people he wanted to keep abreast to ensure that they
followed his advice. He told me, I think accurately,
that I was getting near the end of my service, adding
that I wasn’t meant for private practice. I should
concentrate on teaching. And I thought,
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damn, he is probably right. I still think he was
probably right. I survived the world of private practice
rather well only because of a few strokes of good
fortune. I could otherwise have spent half a lifetime in
a frustrated condition. Getting clients is terribly
important in the private practice of law. I am not
naturally gifted in that area and managed only by good
fortune to do well.
Did you ever see John w. Davis?
Never did.
Are there any other memorable arguments or incidents that
you remember doing arguments on?
Wait. I remember seeing John W. Davis argue when I was a
clerk. This was in the Gold Clause cases. Clerks then
didn’t work in the Supreme Court building. So it was
kind of a special occasion to hear arguments.
Because the Court was in the Senate.
The clerks worked where the Justices lived. I went down
and listened to that argument. I don’t remember much
about Davis in particular. But another man who was
representing Bankers’ Trust was a typical New York lawyer
of prominence. He had a plump stomach, white hair, and
white piping on his vest. He made a dramatic gesture and
out popped his false teeth. He caught the teeth at knee
level and put them back in his mouth and continued
without diminution in aplomb or the slightest deviation
in his argument.
Reed fainted at the end of an argument?
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In the Agric ultural Adjustment arguments.
What argument?
Agriculture Adjustment Act argument. Reed had been
working too hard pr eparing it and the strain of the
argument plus the fact that it wasn’t going terribly well
proved too much and he fainted.
What happened then?
It was near the end, and he was carried out. The Court
decided against him.
Did you have any particular strategies or habits or do
you have any observations on brief writing or arguments
or preparing for argument?
No, I didn’t. Indeed, when Bob Stern was in the
Solicitor General’s Office for a long time and undertook
afterward to write a case book or a text book, I refused
to help him. I always thought it was silly, that one
couldn’t write a case book on that subject. In the first
place, the basic requirement is natural wit and
intelligence which you”re not going to get out of a case
book. Second, the most desirable means of preparation
depends entirely on the man and whatever mechanics he
finds useful. And, indeed, all the time I presented, I
suppose, maybe a hundred oral arguments before Courts or
agency tribunals but never developed a standard method of
preparation. One thing I did not like was the
presentation of a practice or “moot co urt” argument to my
colleagues, which I always refused to do.
You never participated in a moot court before your
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arguments?
No, because chiefly, I think, because I started out in
the S.G. •s Office and there wasn’t time to develop an
argument, try it out, refurbish it, and then present it.
The idea of the moot court argument was completely alien
to me. The way I rationalized it was in part because a
successful argument depends to a large degree upon a
steady flow of adrenalin that keeps you on your toes.
That adrenalin flow is a little hard to get in a moot
court. Only late in life did I adopt the practice of
dispensing with notes. Of course, I never read an
argument. It’s the surest way to lose a case but, most
of the time, I had notes in front of me, chiefly outlined
notes, in case of need. Following the example of a very
young partner who put a case in the Supreme Court without
a note before him, I thought I’d try it and I did. You
make it a very severe sacrifice of absolute orderliness
and your phrasing is inelegant. But you’re probably not
going to be able to make a polished argument anyway
because the Supreme Court now views oral argument as a
time for them to talk, rather than to listen. The
apparent spontaneity of a noteless argument keeps the
attention of the Court really better than trying to cause
the Justices to go down a carefully thought-out path.
I think it all comes down to there just isn’t
anything useful to be said in the way of general rules
beyond the obvious. Don’t try to be funny. Prepare
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your argument with an eye to flexibility. Don”t
interrupt the Justices talking to you — a bad habit I
have never wholly overcome. Chief Justice Hughes had the
same bad habit, which produced a startling result in one
case. I was arguing a case in which the state court had
enjoined the local regional manager of the Bureau of Land
Management. The ranchers sought to enjoin the collection
of minimal fees for grazing cattle on public lands. I
worked very hard on the merits and had it in pretty good
shape but also worked on the suit against the United
States which was the same as always — very uncertain.
The day before the argument, I suddenly wondered,
now is there authority for state courts to enjoin a
federal official proceeding to enforce a federal regulation
under a federal statute. It seemed to me to be a
nice question. I spent the evening before the argument
hunting for authority one way or the other and couldn’t
find it. I presented the point anyway and was going to,
I thought, alert the Justices of the issue and win their
hearts and affection by commendable candor.
I had a sentence worked out that I started to use.
The sentence was, “I have not found any case to support
or to contradict this point. It is true I did not start
looking until last night.” I thought that might give
them a warm feeling for an honest lad. Hughes
interrupted me in the middle of the sentence. He said,
“Mr. Gardner, the Court is satisfied that, if you cannot
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find any case, there is none.” Well, I could have said,
“Your Honor, you ought to let me finish the sentence in
which case I would have told you that I have barely
started looking.” But to my shame I just remained quiet.
By the grace of the good God if there was such a case, it
didn’t turn up.
You said you probably argued about 100 cases in one place
or another. Do you know how many before the Supreme
Court?
I counted once. I had about 25 when I was at the
Solicitor General’s office and only about four in private
practice.
That’s a lot. And what were the most significant cases
that you worked on when you were at the Solicitor
General’s office?
It’s easiest and it’s simplest to explain the cases I did
not work on. My second year there was the year that the
New Deal crisis was approaching with the Agriculture
Adjustment Act, the National Labor Relations Act, and the
Social Security Act, all under challenge before the
Supreme Court. Those were divided among the senior
attorneys in the office. Horsky and I were just
completing our first year. Reed said one of us would
serve as an assistant in that work and the other would
carry on the routine work in the Solicitor General’s
Office, getting the briefs written and the arguments
prepared. And, I much preferred unsupervised work on
unimportant cases to being an assistant in important
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cases, so I leapt greedily for the routine, and didn’t
work on any of those constitutional Goliaths.
Are ·there any cases for arguments that stand out in your
mind?
No, no one is prominent in my mind. You’re now talking
about my arguments?
Your arguments or briefs that you wrote.
One brief which I wrote was in a case called The United
States v. Wood, which involved the constitutionality of
government employees sitting on juries in the District of
Columbia criminal case. The Court some years before had
held this to violate due process and the obstacles in the
United States Attorney’s Office were very great. Too
many potential jurors were government employees. I had
the summer to work on it, the first full summer I was in
the S.G. ‘s Office, and I did a very thorough job. I went
back to the Year Books and I got cases in which, in those
days the jury did not have quite the same impartiality as
we try to ascribe to it now. In any event, there were
early records of the King’s servants and the sheriffs’
employees sitting on the jury. My opponent, a man named
Hughes, a rather prominent criminal lawyer here, said he
had just completed a draft and was most uncertain about
the Year Book cases. He was going out of town and he
wanted to send his brief to me and I was to revise it as
necessary and then send it to the printer.
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Your opponent?
My opponent, yes. The case showed a certain lack of
mistrust by the local bar. It was also that case which
Brian McMahon argued. He was an awfully nice fellow
heading the Criminal Division, to whom the concept of
reliance upon a Year Book case was of grave concern. He
took a room at the Hay Adams and we spent two days there
going over the case. At the argument, the Chief Justice
got rather fed up asking him questions and waiting for
him to ask me, and at the end was asking Mr. Gardner
directly. I think the free use of Year Book cases made a
lasting impression on several of the Justices there.
Brandeis, for example, asked me to tea and inquired about
my research techniques, and all of this I found really
gratifying.
I gather you had a excellent reputation with the Court
for doing thorough research.
Yes, I did and also all along I had a fairly good
standing with the Justice Divisions and the agencies, who
were reasonably comfortable with me. That was a lovely
job.
Did you like oral argument?
Oh yes.
In your book, you mention an incident with Thurman Arnold
which I thought was worth recording.
Thurman had moved from being the head of the Tax Division
where he was wildly out of place. He headed the
Antitrust Division succeeding Bob Jackson where he
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was beautifully attuned to the work. Along with a very
vigorous pursuit of traditional antitrust defendants, he
went.after the labor unions for many aspects of their
work that seemed to violate the antitrust laws. He lost
one case in the Supreme Court but didn’t give up. He
wanted to try it another way, but he lost in the Court of
Appeals and then encountered two obstacles: One, he
tried to file a cert petition while Solicitor General
Jackson was out of town.
The second misadventure was, at that time, I, and
almost everybody else I knew, believed in almost any kind
of dispute — the labor union was right and the employers
were wrong. There was a very heavy presumption in favor
of the labor movement. In any event, I refused to
authorize any petition for certiorari. Thurman hit the
ceiling and devoted some weeks to an attempt to get me
discharged on the stated grounds that I had too much
authority and too few years and too little judgment.
Many years later, we came together at some point. I said
he certainly ought to know that I now thought he was
right in that labor dispute. He said, ffWell, you ought
to know that I would not have had the fun of trying to
get you fired if I had thought there was any chance of
doing it.”
Did you get to know him in later years.
No, I knew him better when he was head of the Tax
Division because, before Arnold Raum came to the office,
I was the one who usually worked with the Tax Division.
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Thurman had one very large and important case involving
the reorganization of two oil companies. John w. Davis
was his opponent. It was a very complex tax problem and
I worked hard and long trying to get it into Thurman’s
head. He wasn’t the man to go from Section 1900(17) (h)
to the Third Section of Chapter 14 and then to Section 64
and on through that maze of technicalities on oral
argument. He made a respectable opening argument. He
opened his reply with a wonderful beginning for a man who
did not really understand his opponent. He said, “My
opponent has spent an hour throwing feathers to the sky
and I would like to catch a few before they hit the
ground.”
Was he an effective advocate?
He held your attention.
He was a character?
He was more than a character. Bob Jackson once said in
some book or some place that he was half cowboy and half
philosopher, but mostly cowboy. He was very forceful,
independent, an innovative thinker, and an admirable
writer. He was self-confident and he was very
extroverted.
He went from the Antitrust Division to the D.C. Circuit?
Yes.
For a short period?
Very short. He found working in private practice less
restrictive.
And did you know Judge Bazelon, at that time?
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No, not at that time, I knew him later.
You knew him later.
I kn·ew him well enough so that he wouldn’t speak to me.
I have to ask you, why is that?
My partner, and then my primary assistant, Bob Basseches,
had been his clerk and, when Bazelon had served for 25
years on the bench, Basseches persuaded me to write a
commemorative piece for one of the local law reviews.
After, in my draft paper, I’d done the routine recitation
of how great a man he was and summoned up the routine
illustrative cases, I thought I had earned a chance to
say my own piece. And so I undertook to suggest that the
Court of Appeals here in the District was doing an
entirely too close a review of the agencies in areas the
Court didn’t understand. There wasn’t any effective
appeal from its mistakes because, by and large, the
agencies had work they had to get done and couldn’t spend
two years trying to get Supreme Court reversal.
This was in the late ’70s?
Yes. But, in any event, I indicated considerable, mild
dissatisfaction and then did worse. Carl McGowan was a
fairly close friend (his wife, Jodie, is now my wife) who
had just finished a long re-examination of a Power
Commission case, composing a 75-page opinion which he
ended up complaining of labors the agencies had cast
upon him. In order to tease McGowan and to suggest that
he had brought those labors on himself I quoted a couple
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of paragraph s from his opinion. But Bazelon didn’t like
the criticism of the Court, I gather, and then he
misunderstood my long quote from McGowan with which I
ended the article. “He writes about me and ends up with
a long quote about McGowan,” he told some cocktail
parties. For some years he wouldn’t speak to me when we
chanced to meet. Until one Thanksgiving we went out to
Basseches’ home for Thanksgiving dinner and Bazelon and
his wife were there. Bazelon, by that time, had slipped
rather badly; he had Alzheimer’s and he was delighted to
see a familiar face and thought that as the face was
familiar, so we were good friends. My wife, observing
his friendliness, said, “He’s sick, he’s sicker than he
knows.”
How many years later was that?
Oh, about five years later, I guess. So, yes, I knew him
but there was not much mutual admiration.
Now Carl McGowan you mention and he later was on the D.C.
Circuit as well.
Oh yes.
Talk to me about him.
He was, I would put him, probably in the same group of
judges that I have most admired who were learned enough
but also had strong instincts for practicalities. Stone
and the younger Harlan, and Powell from the Supreme
Court, and Byron White also. Carl McGowan had that same
capacity, and in his cases it was particularly important
because during his ?ays on the Court, the Court of
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Appeals had gone thro u gh three ideological stations: One,
it started out in a conservat ive if not reactionary
position; it then shifted over to dominance by the
Bazelon and Leventhal liberalism, and has now swung back
to a divided, but essentially conservative, Court again.
Carl was there during throughout these changes and was a
wonderfully important member of the Court. He was a
balancing force, not alienated from nor allied with
either side. He’d make people see both sides. I’m
certain he was one of the greater of the Circuit Judges,
along with Learned Hand and Henry Friendly. He was about
the top.
What about Judge Leventhal, how did you know him?
I knew him quite well, actually, he was second after me
as a Stone law clerk, and immediately after Torn Harris.
The three of us knew each other pretty well. For about a
year or so he worked for me in the Solicitor General’s
Office when I was Principal Assistant there and we’ve
been more or less friendly throughout the years since
then.
What was your opinion of him as Judge?
He lacks nothing in terms of brilliance or literary
skills. But I think he was sometimes rather lacking in
good sense. On occasion, he like Scalia, was unable to
look at the results his decision would produce in the
real world.
Would you have predicted that about Leventhal from what
you knew of him when he \•1as young?
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Not really, because he had, in terms of Leventhal
himself, he had a highly practical behavior. He helped
found a very good law firm and then became General
Counsel of the Democratic National Committee.
We’ll stop there.
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INTERVIEW NO. 3
(June 5, 1997)
1936-1941
Mr. Gardner I want to start by asking you about your role
in President Roosevelt’s famous court packing plan. I
understand that in October of 1936 you were assigned to
do research on how President Roosevelt could control or
change the Supreme Court. I’d like to start by asking
you who asked you to write this paper and what you
remember about that conversation.
The first person that I dealt with of course was
Solicitor General Reed. He was, however, relaying what I
imagine what was a general request f?om the Attorney
General Cummings. I would imagine that Attorney General
Cummings asked him for the loan of an attorney in his
office who would be able to conduct the research for him.
I had not known Cummings at that time. I had been in the
Solicitor General’s office for about a year and a quarter
and I was more dispens able than some of the older
attorneys so I was assigned to Cummings and spent
probably the next three months working for him on the
court plan. I cannot recall the extent to which that was
an exclusive assignment or done in the nooks and crannies
of minor routine work in the office, but I’m sure that my
assigned briefs received less than usual attention.
Do you remember what questions he asked you to research?
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They weren’t very specific but they were very important.
He said if the President were re-elected, as seemed
highly probable then, he wanted to move immediately to do
what he could — short of a constitutional amendment
to rescue the New Deal program from the apparently
intransigent majority on the Supreme Court and I was to
explore the issue and see what could be done.
And what were the avenues that you looked into, the
possible ways the President could control the Supreme
Court?
Well, there was first the congressional power over the
jurisdiction of the lower courts. There was the power to
control the appellate process in a way that I cannot at
the moment recall. There were suggestions to require a
super majority on the Court to invalidate legislation .
Suggestions to . I believe my memory is just not up
to retrieving the particular issues and the reasoning
backing them – there were about half a dozen all told. I
would have to take a very hasty look at the paper which I
retrieved.
Mr. Gardner, can you tell me in general, what conclusions
you reached after doing this research?
I reached the conclusion that no step taken by the
Congress could effectively immunize legislation from
constitutional review by the Court and that the only way
feasibly to control what seemed to us at the time, and
still seems to me, a devastating determination on the
part of the Court to invalidate any legislation that
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upset the traditional common law relationships between
people, was that to use a power which had been abundantly
exercised in the past — which was to increase the number
of justices on the Supreme Court, which lay within the
power of Congress. And in the first half of the
nineteenth century, and maybe throughout the nineteenth
century, the Court membership had gone up and down
according to political needs at the time and it seemed
that was the only effective way that would not leave the
whole program at the mercy of the majority of the Court.
We added the attraction, the attraction as defined in the
first draft, my draft, we had the arrangement that the
Court would shrink back to nine and that actually, in
fact, would become a nine-man court composed of people
under 70.
I was 27 at the time and it seemed to me obvious
that senility set in no later than the 70th year. At the
age of 87 I don’t subscribe to that view quite as
heartily as I did then. The attraction of the plan to me
was that I thought that a nine-man court was about the
maximum number for efficient operation. I just wanted a
different nine. And the notion that you would appoint an
additional judge for everyone over 70 would be a strong
incentive to retire at that age.
Do you remember how many there were over 70 at the time?
I believe there were 4 or 5. I believe that one of the
more arrogant statements of youth was one that I made
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when I got back from Europe after the War and visited
then Chief Justice Stone and had the temerity to enter in
my diary that he “seemed in admirable health though 73.”
That was ’46 so he would have been about 62 or 63 at the
time of the court-packing episode. So I would gather
from that that nobody was over 70 except for the 5 men
who constituted the majority.!’ In clearing out the
ancient relics we would clear out all the undesirables.
So President Roosevelt would get about five new
appointments to the Court?
And then when the over-70 man retired he would not be
replaced. In effect it would drive out everybody as they
reached their 70th birthday and that seemed to be a good
thing.
It’s a clever idea — did you come up with it?
I came up with the refinement, shortly abandoned by
Cummings, that no successor would be appointed when the
Justice stayed on after 70. But I wasn’t the first one
on the basic principle, because McReynolds, the. Attorney
General during the Wilson Administration, suggested that
same device for the district court judges. That I did
not discover and did not know. Apparently, it was the
discovery of a man who was doing research for a
book published by Cummings and MacFarland who was an
assistant attorney general. It came to my attention
?/ Mr. Gardner overlooked Justice Brandeis.
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after the bill had been drafted and while they were
trying to justify, preparing to justify it to the
Congress. And it seemed to everybody a perfectly
wonderful exercise in irony that the device had been
first advocated by McReynolds.
After you wrote the paper, what happened to the idea?
The history went through several stages. Early in
December I finished the paper and then Cummings told me
to go draft a bill on this. I drafted a bill that I was
quite satisfied with and as far as I could tell Cummings
was too. That was then given limited exposure within the
government, the President and his then assistant, Jimmy
Roosevelt, and I suppose ranking people in the Department
of Justice, certainly Reed, and certainly Jackson and
MacFarland.
Once the ubiquitous Tommy Corcoran and Ben Cohen
came over I remember meeting them in Cummings’ office.
However, it’s developed a long and continuing controversy
between Joe Rauh and me. Joe was very close to them and
said that they were horrified and thoroughly opposed. I,
to the contrary, saw no indication of this during our
conference with Cummings.
Now, who are Corcoran and Cohen?
Corcoran and Cohen were, in effect, presidential
assistants. I think they were not on the White House
payroll but they were in constant attendance on the
President and his thinking and they contributed a great
deal to the innovative thought of the whole New Deal
– 76 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
program. They had sort of a roving commission and
whatever particular area became subject to the
concentrated governmental attention they would generally
get mixed into it. Corcoran was a Irishman. He was
essentially a lobbyist. Cohen was essentially a thinker.
They made a very effective pair who probably did a lot
more good than they did harm.
And where was Joe Rauh at that time that he
He was Ben Cohen’s assistant. He was very close to
Cohen.
Oh. And was he at the meeting?
Oh no. So it was just a matter of recollection and
either his recollection or mine is reliable.
But it’s also of different conversations – you recalling
that meeting, and he’s recalling conversations?
One theory would be that I am recalling a conversation
which was directed to essentially my bill and
justification that the Court was being tyrannical and had
to be curbed and as I am about to indicate shortly after
I had drafted the matter — a couple of weeks or so -Cummings’
justification shifted to what I thought was an
unsupportable and sleazy ground. He urged that the old
men were too feeble to do their work and they needed
help. If I had been older, I would have stopped at that
point but I was only 27, and also I shared their
objectives completely. I thought they had to do
something about the Court. I did not like in any way the
plainly false justification that the men were too
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i
Mr. Schultz:
Mr. Gardner:.
Mr. Schultz:
Mr. Gardner:
Mr. Sc hultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
old to do their work and needed help. As I say if I had
been a few years older I would have said alright that’s
your- job, not mine, and I would have stopped working on
it. But I didn’t, I continued doing what I was told.
Now did you meet with the President on the subject?
I did and Cummings was a strange man. I don’t know
anyone else who would allow a largely unknown 27 year old
kid to go to visit the White House and explain his
department’s position to the President on this bill. I
think it was because we were doing it in such a limited,
secretive way. There weren’t many people he could send
if he wasn’t himself able to go.
So, you went without him?
Yes.
You were the representative for the Justice Department?
Yes. Which as I say is perfectly extraordinary. I
wasn’t wholly alone — I met Sam Rosenman who was
effectively the White House counsel — they didn’t have
those positions in those days. Rosenman and I went up to
his bedroom.
Can I just stop you? Can you just tell me about Sam
Roserunan?
The only time I knew him was that morning when we
together went up and talked with the President about this
bill. He was obviously an able man. This was not the
time that the President was told about the plan.
Cummings had told and talked to the President before.
All I was doing was answering questions that the
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
President had about it and explaining the detail. I had
not been sent over with the mission of remaking the
United States Government, but only that of explaining
detail. But it did seem, and even more now, an
extraordinary act of faith in a youngster, or else
cynical indifference, whichever you might think of it.
Anyhow, it was for me quite an experience.
So tell me about the meeting with Roosevelt.
At some point, probably that morning, the White House
said that they had some questions and wanted them
answered. I imagine it was inconvenient or possibly even
impossible for Cummings himself to go. There wasn’t in
December of ’36 really anyone else I expect that he could
send to answer questions. Reed was aware of it but
keeping himself as distant from the project as he could.
Because he had to argue before the Court.
He was essentially a conservative man.
He wasn’t crazy about the idea?
He didn’t oppose it but he wanted to keep his hands clean
– I think that’s a slight overstatement but I imagine
earlier that morning that Cummings must have told him the
White House wanted to ask some questions on the bill, so
they agreed to send me over to answer questions. I must
have reported to him when I came back but there wasn’t
any very elaborate report – just that we had an hour or
so of questions answered and discussed.
– 79 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Was that the only time you met with the President?
The only time that I did — we’re now talking about the
bill· obviously not semi-social occasions and so on in the
White House. It was the only time I met with the
President. Another time I went over to have lunch with
Jimmy Roosevelt who was then the President’s aide and he
and one or two other people of whose name I have no
recollection. And again it was only an explanatory luncheon
meeting. I can’t recall what we said other than
the fact that the lunch was held.
Do you remember anything about your impressions of
President Roosevelt from that meeting?
Well, the President was obviously a very intelligent man.
He had no trouble with understanding problems and was
obviously a very courageous man and an able man.
Was he in his wheelchair?
He was in bed.
He was in bed.
He did not like to get out of bed was my understanding.
He was more comfortable in bed than strapped in his
wheelchair. And his mornings were quite often such that
he could do his work in bed and this was one of those
mornings.
Sometime in December Cummings got seduced into this
sleazy idea of coming to the rescue of overworked old
men. I don’t know where that came from and have always
suspected that it came from Carl MacFarland. He was
close to Cummings.
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Now who is Carl MacFarland?
He was initially a professor at the University of
Virginia and may have come directly from the University,
that I don’t know, into the Department to run the Lands
Division — the Lands Division had a collection of
largely incompetent attorneys. It was not one of the
smarter outfits in the Department. MacFarland was a very
good, effective administrator. He added two or three
very able people to spice up the Lands Division and put
in regular management controls, which I would find highly
offensive if I were subjected to them, but they worked.
He had charts on the walls showing what had to be done
and who was doing it, how nearly complete they were. His
office was like a computer having little bar charts that
they’re 24 percent, 63 percent , and so through their
tasks. But he was very effective head of the Division.
I didn’t like him chiefly because he was a ruler by the
book and not a thoughtful man at all. He went on to
become President of that Mormon university.
Brigham Young?
Yeah. He was a very good President.
So you think he came up with the idea that the
Court was overworked?
I think he was the one and I believe he’s probably the
only one who could capture Cumming’s allegiance for a
dubious proposition. However, I remain exceedingly fond
of Cummings. We worked together very closely on his
eulogy for Cardozo, a particularly difficult literary
– 81 –
Mr. Schultz:.
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
job since the dead man wrote so beautifull y. It turned
out exceedingly well. He had a very sensitive ear for
the English language. We remained reasonably close while
I was in the Department but on the change in that bill I
did not like him.
Did you ever talk to him about your disagreement?
Yes. But not in a admonitory or rebellious tone. I said
I didn’t like it and didn’t think it would be persuasive.
I didn’t say I didn’t think it was honest. But I’m not
too pleased with how readily I gave in. I think largely
it was because I was on the team and Cummings was
captain; it would have been disloyal to walk away.
So tell me what happened to the proposal. I guess
it was submitted to Congress?
It was submitted to Congress in early February of 1937.
Cwnmings presented to the Senate Committee his bill to
relieve old men. The next day, Bob Jackson, whom I did
not then know at all well, spoke; he was head of the
Antitrust Division, and I was only later to work with him
very closely. Jackson, to his credit, urged enactment
strictly on the ground that the Justices had abused their
power. He offered no talk at all about overworked old
men who needed assistance.
Now this was in Congressional testimony?
Congressional testimony. The contrast looking back on it
is remarkable. Chief Justice Hughes organized a very
effective counter fire to the plea of overworked old
– 82 –
men. To the best of my recollection that Senator
Robinson, I think of Arkansas, who may have been the
Majority Leader in the Senate, at least if not that he
was a very powerful figure — I’m afraid that there was a
side deal somewhere between him and the White House by
which if this bill gets through he would be put on the
Court. He was not my notion of who ought to be on the
Court. And then he died. And it was in this misfortune
that the final important support in the Senate
disappeared.
In the course of this debate the Sumner Retirement bill
was enacted. It permitted retirement from Supreme Court
service but continues authority to serve on lower federal
courts. This is thought to give constitutional
protection instead of only legislative protection to
continuing the judge’s salary for his life. It’s been on
balance a good idea because it has stimulated retirement
— people who otherwise would hang on. Van Devanter
retired almost immediately after that bill was enacted
and was replaced by Black. It apparently speeded up the
retirement process with other Justices as well.
Mr. Schultz: · So, before this bill they could retire at full
salary but there was a risk that salaries would be
cut?
Mr. Gardner: Yes. I can’t remember the terms in the existing statute
but what this bill did was offer constitutional as well
as legislative protection of their salaries.
– 83 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner? •
Mr. Schultz:
Mr. Gard..’1.er:
How could it offer constitutional protection?
The Judge retires from regular, active service but
remains available. Thus, the retired Justices still do
sit on the courts of appeals.
I see.
So that was the only direct benefit that came out as a
whole exercise. The indirect benefits were I think
rather considerable. And while it was not the sole cause
it was at least a major factor in the complete shift of
the court’s reaction toward the constitutionality of
congressional legislation.
What do you think accounts for the public reaction
to the proposal – you know the hue and outcry?
It was an attack on the revered tradition and as such not
at all welcome. Part of it, of course, was that at all
stages of the NeW Deal there was a very heavy minority
reaction against it — political, republican and economic
distaste for much of the New Deal and that substrata
opposition was of course opposed to throwing mud on the
white marble walls of a very important institution. What
caused the reaction in legal circles, I don’t really
know.
Charlie Wyzanski, for example, who was in the
Solicitor General’s office, was in violent opposition and
claimed he tried to resign but was talked out of it by
maybe Frankfurter or maybe some other Justice on the
Court. I don’t know quite how to explain the lawyers’
opposition other than the fear that if you start
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Mr. Schultz:_
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
politicizing or tampering with the Court there’s no end
to it. I can’t explain it o ther than a fear, perhaps a
legitimate fear, that it represented a political threat
to the integrity and independence of the judiciary.
a reasonable position.
Did you ever talk to Justice Stone about the court
packing plan?
It’s
Yes. I had a feeling that I ought to confess my
activities there. He was, of course, somewhat divided.
He had both in his dissenting opinions and more
vigorously in private conversation, said the Court was
simply building up trouble for itself by being hostile or
unsympathetic toward any new legislation. And to a
degree he felt vindicated by the court-packing proposal,
but also he was, of course, quite strongly opposed to it.
And I felt that I should go by and confess that I had
something to do with it. He and I were not exactly close
but remained in reasonably frequent contact with each
other. So I told him about it and all he did was laugh
and say, “Well, you’re very young,n which I certainly did
not view as a compliment.
What’s your view of the proposal today?
My view is that at the time it was necessary and the
country could not have survived a major economic
depression and dislocation where a third of the country
was out of work and they couldn’t pull out of that, it
did not seem to me then, and it does not seem to me now,
without a whole lot of :egislation which was enacted
– 85 –
Mr. Schultz:
Mr. Gardner:
then and eventually upheld. Of course, it was the war,
and not the New Deal tampering with the economy that
finally got the economy on solid ground again. But even
now I do not believe that a responsible government could
have avoided seeking a remedy for a Court that struck
down every remedial device that was tried because it
violated somebody’s contract. And, as I say, I believe
the court-packing effort was at least partially
responsible, if not largely responsible, for the change
in attitude of the Court. Actually someone, Stevens or
White, in a more or less recent opinion, has indicated
their view that the Court changed its posture because of
it. So on whole I’m glad we did it.
I think that’s what most historians have said too.
Civil Service reform — what was your role there?
My role was I had worked with Solicitor General Reed for
the two or three years that he was in that office before
being appointed to the Court. There was widespread
dissatisfaction with the Civil Service Commission
insofar as it related to lawyers. It was worse than
useless in finding able lawyers. And, too, it was
counterproductive beyond measure. Within the Civil
Service you could hire a new lawyer only from a Civil
Service list. They were unimpressive examinations
producing an undistinguished list which in any case was
largely dominated by those with veteran’s preference.
You would have a choice among I think the top three on
the list. In consequence the Civil Service system was
– 86 –
bypassed – almost every recent appointee in Justice, for
example, was a special assistant to the Attorney General,
outs.ide of Civil Service, which was what my title was at
the time.
Because of the wide dissatisfaction the White House
created a commission to study the problem. Reed was made
chairman. On it were Frankfurter and Jackson and Mur phy,
a high official of the Civil Service Commission and two
or three distinguished private citizens: a General Wood
who was head of Montgomery Ward, and a very able lawyer
who was general counsel of the Pennsylvania Railroad and
had a fairly public role, whose name I now forget, and
one or two others. It was a very high grade commission.
Reed wanted help and persuaded Solicitor General Biddle
to let me go for a few months and I served as, I think my
title was Assistant to the Chairman, or it may have been
Executive Secretary. The other title was held by Oscar
Cox, a very able lawyer who had been with Sullivan &
Cromwell and was then general counsel of the Treasury
Department. It was a pretty good group. And I had
probably the best office in the Supreme Court building an
enormous corner office on the first floor.
We studied and ended up with a system by which
lawyers would be a special group within the Civil
Service Commission. The mechanics I don’t recall
completely. But they’d be examined throughout the
country. There would be a nationwide true/false
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Mr. Schultz:
Mr. Gardner:
mechanical examination and eligibility for appointment
was the top quarter or top fifth. There would be that
nationwide test and then a particular appointment would
be made only after examinations or discussion with a
panel of lawyers. The other detail I don’t remember, but
it worked remarkably well. An able student in an obscure
law school in the far West would be brought to the
attention of people in Washington by his score and the
comment of the reviewing committee. Instead of going
only to Harvard, Yale and Columbia, as was customary, the
whole country was opened up to appointment, which was
beneficial to the agencies and obviously to the
applicants. The system worked so well the Congress could
not tolerate it. There was no play in it, no room for a
congressional intervention in the hiring process. And
after two years it was scuttled. It worked so well,
chiefly because Herb Wechsler was its first executive
director, or executive secretary, I don’t remember what
the title was. He was the first director and was then
succeeded by Ralph Fuchs who also did an admirable job.
Who selected or commissioned the director?
Either the Attorney General or the Solicitor General.
They had asked me to do it and I wouldn’t. I urged
Wechsler and Wechsler didn’t want to do it any more than
I did. He felt it would be better if he was able to say
that Colwnbia wouldn’t extend his leave so he
unfortunately couldn’t consider the position. With full
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
confidence he wrote off to the Dean of Columbia and said
he had been asked to do the work but he thought he should
come.back to Columbia. They replied that it’s such an
important job, you simply ought to do it. We’ll extend
your leave. And so he had entrapped himself thoroughly.
But he didn’t sulk, instead he did a brilliant job of
work.
Now what was the Advisory Committee on Lawyers?
You know I believe that the whole commission had the
missio ns beyond the lawyers – they didn’t do much, or
attempt to do much in the non-lawyer area. I think the
Advisory Committee on Lawyers that has a familiar sound –
would be either a subcommittee of the Commission or an
outside group that was created to give their ideas on
government. I just can’t remernbor.
It’s not important. Now, tell me the
circumstances under which you left the Solicitor
General’s office.
I had been spoiled under two Solicitors General, Jackson
and Biddle. They didn’t have a great deal of interest in
the day to day work of the office – not much interest in
going over briefs and so on. And so I had a very happy,
contented life directing the regular flow of work in the
office. Jackson would carefully prepare his own cases
but Jackson just didn’t interfere with the less important
work at the office unless I had a problem and took it to
him in which case he was always very helpful. Much the
same arrangement p?evailed under Biddle, though he was
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Mr. Schultz:
Mr. Gardner:
not quite so helpful when I took problems to him. Under
either man, I was thoroughly spoiled. We also had a nice
degree of cooperation in several things that I was
interested in, such as the intergovernmental tax immunity
which the Treasury had sold us and on which we were
pursuing with substantial success.
This was tax immunity for the states?
Intergovernmental tax immunity, which we effectively
eliminated as far as constitutional law was concerned,
but not so far as the Congress was concerned. I got
along pretty well with the divisions in the Department
and pretty well with the agencies. It was a fairly
lovely situation.
Charlie Fahy was the Assistant Solicitor General,
but that position in those days had nothing, beyond its
title, to do with the work of Solicitor General’s office.
The office was in effect the predecessor to the Office of
Legal Counsel. There was a long period of delay between
Biddle’s appointment as Attorney General and the appointment
of the Solicitor General — a three month period.
Charlie Fahy and I were not destined to like each other
very much anyway. He was an able man but also very
sincere and quite humorless.
On one of our major policy issues, intergovernmental
tax immunity, his views were perhaps heavily influenced
by or maybe accidently were much the same as Frank
Shea’s who was never in favor of giving up anything
of value to the government. But that wasn’t much of
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Mr. Schultz:
Mr. Gardner:
a problem with me, or with the Solicitors General and the
Attorneys General who were in harmony with the Treasury
Depa!tment and sought the major goal of abolishing the
tax haven of state bond interest. Fahy felt otherwise.
I was pretty strongly of the view that Fahy was in no
position to overrule the positions taken by prior
Solicitors General and Attorneys General, at least until
he was a full Solicitor General.
Then we differed on other issues and I was offensive
to him in that I didn’t adequately recognize his
authority, which was clear, because he was acting
Solicitor General, and was sitting in that office. And,
too, he was offensive to me because he didn’t recognize
what might be called my common law authority of four
years’ standing. We just didn’t get along. Washington
in those days was lovely — all you had to do was think
about moving from where you were, and maybe tell one or
two people at the most. And very few weeks would go by
without several people asking if I might want to move on.
I ended up taking Jerry Reilly’s place at the Labor
Department as Solicitor. I had no great enthusiasm for
the job but I did not want to continue the position of
perpetual conflict with Charlie Fahy and that proved to
be a mistake.
Why was it a mistake?
Francis Perkins had been substantially battered and
weakened by the Congress. She was afraid to do anything
that might produce criticism and that’s not a very
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
endearing atmosphere to be in. And, again, while the
Department had a fairly important role in the war
busipess, it developed that the chief function of the
Perkins Administration was to persuade the labor leaders
to be helpful and to avoid anything that looked like a
sanction. In result, I sometimes feared that the Labor
Department was a detriment to the war effort. I lasted
there only nine months.
Do you have any other recollections of Francis
Perkins?
Yes. Some of them are very favorable. She was
intelligent and she was an exceedingly effective
advocate. She compared favorably with most of the highly
regarded lawyers that I had worked for. For example, she
had to appear on some issue before a Senate committee.
She was out of town, and took a train scheduled to arrive
in Washington in the early morning, but it was delayed
and got into station about half an hour before she had to
appear before the Congressional committee. I went down
and met her at the train and gave her the underlying
papers and talked to her during that half hour that was
spent largely in transit. She made a brilliant
presentation of a complex issue. Indeed, her advocacy
was consistently of the highest quality. Her trouble was
simply that she had no remaining backbone after being
attacked by the Congress for so many years.
How was she attacked?
– 92 –
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
By denunciation and by denial of appropriations and
legislative support, sometimes by Republicans, sometimes
by others. There was always a heavy resistance to
anything which could be called socialistic in legislation
or activity, and her Labor Department was necessarily in
this battlefield. She was responsible, for example, for
inaugurating the social security program, which was by no
means popular and was heavily fought. As these
controversies multiplied over the years, she seemed to
have come to believe that it was good government to avoid
controversy.
So, you left Labor and went to the Department of
the Interior. Tell me how that came about.
Well, as I say, Washington was then a very small town, at
least as far as lawyers were concerned. If you were
thought to be available, people would know about it and a
variety of alternatives were likely to be presented. One
arose when the long-time solicitor of the Interior
Department, Nathan Morgold was appointed to a local
court. He had been the Solicitor of the Interior
Department from ’33 and this time was ’43, so for ten
years I guess.
– 93 –
•
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
INTERVIEW NO. 4
(September 4, 1997)
1941-1947
I believe this is the fourth interview and it is at
Mr. Gardner’s home in Washington, D.C. During the last
interview, we talked about the time you spent at the
Department of Labor and about leaving the Department of
Labor. Let’s start this interview with my asking what
the circumstances were that led you to go to work as The
Solicitor at the Department of the Interior.
The primary circumstance was that I did not want to work
at the Labor Department. In those days Washington’s
legal fraternity was a very small group; you could tell
one or two people that you weren’t happy where you were
and within a mon’th or two there would be a variety of
suggestions of other things to do. The Interior
Department seemed to be the most attractive of the
suggestions that were made to me. It was in many ways a
remarkable and invigorating contrast to the Labor
Department.
What were the main attractions of the Department
of Interior?
Harold Ickes.
Tell me about Harold Ickes.
I could go on for quite awhile. I would start with the
interview I had with him before I agreed that I would go
to the Interior Department. At the end of a moderately
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
satisfactory conversation, I said to him, “Mr. Secretary,
you ought to know that I’m not getting a long very well
with· Frances Perkins.” And he said, “Grrr, wouldn’t have
you if you were.” Which seemed to me a good candid first
approach. He was a man of great courage, complete
integrity and no patience whatever for anything of which
he disapproved or a person of whom he disapproved. It
was fun being around him.
What years were you at the Department of Interior?
Not too many. I went there in September of ’42 and I
left in September of ’43 to go into the Army. Came back
September of ’45 and Ickes left the next February in a
blaze of acrimony, and I left in June of ’47. All
together I was there maybe a total of three separated
years.
Are there examples of Ickes integrity or courage
that stand out during the time you were there?
Oh, my yes. One grew out of the whole hysteria of
subversive employees created by the Dies Committee and
Senator McCarthy. Even the good people in the moved
with extreme caution when opposing McCarthy or Dies.
Dean Acheson was one. He was a perfectly splendid man,
but did not in any way undertake to defend the employees
of the Department who were under attack unless he knew
them personally, in which case he was brave enough, as he
was with Alger Hiss. Many others,
some of whom I had represented, encountered a lofty
indifference. John Service being one. He was the
– 95 –
Mr. Schultz:
Mr. Gardner:
best of his class in the Foreign Service and had his
career ruined by reckless McCarthy charges. In any
event, in the midst of all of that timidity, Ickes would
descend upon the Dies Committee, the Dies Un-American
Committee, and testify that the most Un-American thing
that even happened was the Dies Committee.
He would say that in the hearing?
Oh yes. As for the FBI reports that were sent out, the
FBI put its youngest and, I believe, stupidest agents on
the search for subversives and they were remarkably
naive. They were a group of people whose ears would perk
up and they would gasp whenever anyone would mention
anything connected with Communist or left-wing influence.
They were like a horde of locusts descending without any
thought or discrimination. They’d send over their
reports including raw, unevaluated gossip and suspicions
to the Departments, and the Departments would agonize
over them. In the Interior Department, as Solicitor,
they came to me and I would glance at them and send them
to the file room. Nobody cared one thing about them, a
most refreshing attitude.
The main event that led to the parting of the ways
between Truman and Ickes was one which I have since
thought that I should have stopped somehow, but didn’t.
Ed Pauley, an oil man, had been nominated as Under
Secretary of the Navy, not a position of momentous
importance, but Pauley had, a year or two before, had an
interview with Ickes — Ickes and Fortas, as a matter of
– 96 –
fact (Fortas was then the Under Secretary), in which he
said that there was $400,000 available for the Democratic
National Committee if the , i.e., the Interior
Department, abandoned its claim that the United States
owned the offshore oil. Ickes had a habit of making a
daily diary entry, not all of which were temperate or of
sound judgment, but he recorded this whole conversation.
When Pauley was nominated, the Committee, I think, on
Naval Affairs, maybe Armed Services, I can’t recall the
title at that time, knew that Mr. Ickes had a grudge
against Pauley and asked him to testify. On the part of
caution, or of reason, I should have insisted, as
Solicitor, that he take flight from it, saying that his
job didn’t include the Navy Department, or passing
judgment on the President’s nominations. But, instead,
he marched up there and said that Pauley was a man trying
to subvert integrity. He had cleared with Trwnan, he
said, after a cabinet meeting. Ickes said that he had
been called by the Senate and wasn’t entirely clear what
to do. Trwnan had said, “Tell the truth, Harold, but be
charitable.” (Laugh) He told the truth, but being
charitable was a trait that he had not
learned. So Truman was furious. Ickes, in turn, was
furious. Fortas, who had by that time resigned, with
an instinct for compromise or an instinct for
preservation, as you view it, said yes, he had been at
that meeting, and Pauley’s words could have been
construed to mean an offer of money, to withdraw
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the claim to offshore oil, but it wasn’t all that clear
to him.
·Well, I could go on almost on any topic you can
think of. Ickes’ course was always belligerent, and I
think almost invariably on the right side. He and I got
along pretty well. I had reached the point that I could
write a blustering speech that was a little hard to tell
from the original. I did a fair amount of his speech
writing, but I was defeated once. There was a meeting in
Chicago to honor Senator George Norris, a very great
liberal from, I believe, Nebraska or North Dakota who was
close to retiring. And Ickes went out to give an
encomium at that dinne r honoring Norris. He felt
strongly enough about this one to write his own draft.
I can remember even the pagination. It was thirteen
pages long. The first half-page praised Norris and down
at the bottom of the page he said Norris was not like
Mayor Thompson. Ickes came from Chicago and had a yearslong
feud with the then Mayor Thompson. For the next
twelve pages he denounced Mayor Thompson. On the last
page he said, “As I said earlier, George Norris was not
like Mayor Thompson. He was a great Senator.” There
followed the requisite praise for three-quarters of the
last page. He asked me to go over it and smooth it down.
I found it impossible to do anything with it, other than
just scrapping it and starting out with a brand new
speech and I wasn’t anxious to take on that. Beyond
offending Ickes, it would take a day’s time we
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Mr. Gardner:
didn’t have. I regret to say that I told him I thought
it was so good a talk that I couldn’t do anything to
improve it.
I don’t know of anything in the law work at the
Interior Department that was a particular attraction.
The lawyers there, with a few exceptions, were
indifferent. I had a good time principally because of
Ickes and also the Interior Department was doing a lot of
important things often contradictory to each other.
There were about a dozen bureaus each with_ its own agenda
and the internal conflicts were momentous and therefore
it was an interesting place to be. Ickes’ abrupt
departure, through a series of accidents, left me largely
in control of the Department for a few months and highly
influential for my final year under Secretary Krug. So
it was a good experience.
Now what about Abe Fortas? What are your
recollections of him?
Brilliant. Very good judgment on most things, but rather
self-consciously cast in the street-wise tough category,
which wasn’t always very attractive.
What do you mean by that?
He would take a very cynical view of almost anything both
in general and in particular to the specific issue.
Nothing that he did at the Interior Department gave me
any concern and there were a lot of things that I
thought were entirely good and efficient. It was largely
the Supreme Court experience that rather soured
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me on his general nature. One, at a dinner party or two
he would be very outspoken in cynic al criticism of the
Supreme Court Justices. They were sort of degraded in
his thought and his conversation.
Was this when he was on the Court?
Just after he was on the Court. When he was on the
Court, I was offended, but did not then appreciate quite
the degree to which he continued as an advisor and a
disastrous advisor to Lyndon Johnson. He gave perhaps
the most influential of the vastly mistaken “hawk” advice
on Vietnam. I had a fair amount to do with him when he
was the Under Secretary and I was Solicitor. Until I
left for my own war, we had a completely satisfactory
relationship. He never interfered in any way with the
law work that was being done, neither appointments, nor
opinions and so on. He was very helpful on the policy
issues in which the Department was engaged.
How did his brilliance come through? You said he
was brilliant. How did you experience that?
Largely the quality of his mind. The quickness in which
he grasped issues, cut to the heart of them. There was
almost nothing that he didn’t understand. Very effective
man.
Very effective?
Very effective man. I guess I was closest with him in
our little war with the Army over Hawaiian martial law.
We had about a six-month campaign to restore a civilian
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Mr. Schultz!
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government. The Army and the Navy lost a large a portion
of our fighting forces at Pearl Harbor, but they captured
one Japanese sailor and gained control of the civilian
government and they were not going to give it up. The
Army training is to expect, to be prepared for the
absolute worst and the population of Hawaii was, to a
very large extent, of Japanese-origin and so, therefore,
by Army wartime standards, they ought to be kept in close
and unflinching control.
Now why was the Department of Interior involved in
that issue?
Hawaii was not a state but was a territory and among the
Interior responsibilities were the territories and
possessions of the United States.
Now in 1942 there was a coal miners strike. Did
you have some involvement in those issues?
At a little before 5:00 p.m. one afternoon, Ickes called
a meeting of two or three division heads and himself and
said that the President had decided to seize the coal
mines in order to prevent a strike by John Lewis which
would have been exceedingly unfortunate in terms of war
production, and of our whole war effort, and that he had
asked Mr. Ickes to take control of the nations 3,000
mines the next day. That’s a rather formidable
assignment to get done.
In a day?
In a day. Everybody fell to, and I and one or two other
lawyers drafted a series of regulations not having the
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faintest idea of what the problems were or what we were
dealing with, but put some together overnight. The
publicity man got the Government Printing Office to print
overnight and delivered 5,000 or 10,000 big posters
saying, “This Mine is Now Property of The United States.”
A skeleton supervisory operation was set up based on
largely Bureau of Mines offices, and some regional
offices were established in the space of — not the next
day; it was two days later before the alleged takeover
took place. And the whole thing, of course, was a
semantic fraud in one sense. The same management
continued under the name of — I forget what we called
them — in any event, they were theoretically agents of
the United States. Lewis was happy enough to have a
face-saving arrangement, and sent the men back to work
and everything went along nicely.
When I came back to Interior after a two-year
absence at the end of the war, there had been another
takeover during another coal strike during the war which
I had nothing to do with, then the third one came along
and we — I may have been Assistant Secretary by that
time, at least I was acting in that capacity, and — were
right back in the same old swamp, but it eventually
worked again. It started to unravel when Lewis decided
he’d breach a contract he’d made with the Interior
Department and we finally forced the Department of
Justice to file suit for an injunction and then for
contempt because of his violation. They were very
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reluctant.
You were saying the Department of Justice brought
a contempt action and Lewis ignored the
injunction.
Yes. And, the Union was fined, I think, $3.5 million
dollars and Lewis had a personal fine which I later
learned was paid with a United Mine Workers check. It
turned out alright in the end and I learned not put my
feet up on the table. That was a painful instruction,
but effective. The Navy Department was asked to do the
mechanics of running the mines and Captain Collison, a
splendid fellow, who had been running seized industries
during the war, was given the job.
I’m sorry, say that again?
The t•muld seize the plant.
Right.
Or I think not, outside of coal, not the industry, but
if there was a recalcitrance or if there were labor
problems threatening the shutdown of a plant which was
considered indispensable to the war effort, the would
seize it and Collison was one of the most professional
seizors. He was a very good man, and we ended up, he and
I, two short, not very commanding men negotiating with
the mine workers who would arrive
twenty strong. They had a negotiating tactic which was
terribly demoralizing though I’m not sure that it ever
produced anything for them. The other side would say
something, then there would be a dead silence for ten
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Mr. Gardner:
minutes, fifteen minutes, all twenty men sitting there,
not moving, no expression, just frozen. It’s a nervewracking
experience. The expectation was that Collison
or I, after a time woul d break down and say something.
Who knows what it might be. Once, about ten minutes into
that silence, there came a deep rwnble from the other
side of the table which as I recall went roughly this
way: The miners of this nation, in their soot-covered,
blood-stained bodies and their widows grieving for their
deaths do not in any way appreciate seeing a young lawyer
from Harvard sitting around with his feet on the table
making light of their desperation. I could reply only
that I went to Columbia not Harvard, and I left my feet
on the table until I saw an appropriate moment when I
could inconspicuously remove them. I guess I did, when
we next got to talking about something. But, I think
I”ve never put my feet on a desk or a table in the SO
years or 60 years since then.
Was John L. Lewis at any of these negotiations?
Oh yes. To my recollection he was one that improved my
manners — my feet on table manners.
And what was your impression of him?
Remarkably effective. uneducated, but he’d married a
schoolteacher who had sort of engrafted a large
acquaintance of Shakespeare and the Bible into his
vocabulary. Fearless, and in many ways an honorable man.
In general, unless it were too important, what he said
he would do, he did. By and large a good man and
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unquestionably an effective labor leader.
What prompted your decision to go into the Army?
It didn’t require much prompting. It was unique among
our wars and adventures in my lifetime, in that I totally
agreed with the need for war. On the personal side, my
wife, a British girl, had a brother who was a doctor in
the British Army who had stayed behind at the Dunkirk
evacuation to care for the field hospital. He was a
German prisoner for a good bit of the war, and I wasn’t
comfortable being a employee at a safe little desk.
Beyond that, the social pressures were obviously very
high and one did not want to be sitting at a safe
comfortable place simply because he was a official. I
had given Ickes advance warning before joining the
Department.
I am reminded, when I was stationed in England
during the war, of a lovely little tale which I believe
to have been true, that standing in the Underground
awaiting a train there was a British colonel in full and
ostentatious uniform and a young man in civilian clothes.
The colonel addressed him, “Why aren’t you in uniform,
young man?” The young man said, “I am in the foreign
office and you don’t wear uniforms.” The colonel
proceeded to denounce him and the young man said,
“Colonel, if it weren’t for the foreign office, you
wouldn’t have your bloody war.”
I had, as a matter of fact, nearly a year long
battle with Ickes and Fortas. I felt that I had to get
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into the war, but on the other hand I had no desire to
get in and be treated as unfit for combat service. I
quite agreed that it would be foolish to climb into a
soldier’s uniform in order to do typist work, but on the
other hand I did not want to avoid the prospect of combat
duty simply because I was a employee. Ickes could not
conceive that anything in the Army was more important
than being a useful member of his administration. At one
point we had worked out a compromise that I would go
through a physical examination with a group being
drafted. If I came out lA which meant fit for duty, he
would not object to my going, if I came out 1B, I would
not object to staying. So I marched over to Ft. Myer one
day having made arrangements to be examined with that
day’s group of draftees.
The Army was then deeply segregated, there was no
black and white mixture whatever, and it happened to be
a black day at Ft. Myer and I was an object of
considerable curiosity and one of the doctors began to
wonder, black doctors of course, wondered about my
psychiatric stability coming over on a black day to be
examined. Well, in any event, I turned out to be lB.
But, then the Draft Board subjected me to a fairly
perfunctory physical examination and ended up
classifying me lA. I wanted two months to clean up
things and the Draft Board wasn’t going to give me
two months. So there was an appeal on that by the
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Department. The Draft Board was reversed and then the
discussion at the Department continued .
. At some point, we put it up to the White House. I
drafted a letter for Ickes, one of the few times in his
life he’d ever presented two positions. His view, that I
should stay and do important work where I was and my
view, that a young man ought not to avoid draft with a
convenient job, and sent it over to the White House. I
am quite sure that I fell into a trap on that one,
because on the same afternoon the reply came back saying
that I had to stay with Ickes.
Then, a friend of mine, Telford Taylor, undertook to
recruit me. He had gone into something called the
Special Branch in the Army intelligence, in charge of a
man named McCormick who was a lawyer at Cravath; he had
been Stone’s first law clerk as a matter of fact. He
built up a staff largely by hearsay and not accidentally
it was largely composed of lawyers. They were a very
talented group whose job was to organize and disseminate
information that was being derived by intercepting and
deciphering messages of the Japanese and occasionally of
the Germans. We specialized on the Japanese and Britain
specialized on Germany. Britain was actually far ahead
of us in the business.
In the Pentagon the task was to get out a daily
summary of the intercepted information which went to a
very selective small group, starting with the President
and going do\,m to particular generals and admirals in
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the armed services. It was a closely held, deeply held
secret, for obvious reasons: once suspected by the
enemy, the advantage was gone. So Taylor joined in as
McCormick’s principal assistant, I think. He didn’t tell
me what it was but gave me a general notion that it was a
job in which I would enjoy and in return would be useful.
We didn’t get very far the first time because Ickes
said he would release me only if he could be shown that
my work would be more important there than at the
Interior. Well, there were two obstacles, nobody could
persuade Ickes that anything was more important than his
own work, and the second thing was they couldn’t begin to
say what they were doing. That impasse was in the
Spring, I guess of ’43.
Then, we were left alone for ar.·.1hile, until the Draft
Board, which had a very strong prejudice against anyone
avoiding the draft for reasons as frivolous as work, got
into the act again. They classified me lA with almost
immediate induction, and I and Interior agreed on a
limited appeal, this was then about June, I guess, to
delay induction until September 1. I’d been assigned a
little task of — I forget what that job was, but it was
something I couldn’t very well stop.
The Special Branch came back at me again and I was,
by this time, more than a little anxious to join them,
because I did not want to end up being an Army typist
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and I wasn’t at all sure how far I would get in my
bloodthirsty dreams of being a co mbat soldier. So I said
yes,. I would. But they had a rule, the Army had a rule
that they wouldn’t commission anyone who was subject to a
draft call. Ickes wouldn’t let me go, but one way or
another McCormick worked it around so the Army waived its
rule and Ickes more or less gave up at that point. So, I
then had two orders for September 1, one from the draft
board to show up for induction and one from the adjutant
general to report for duty as a Captain. I obviously
chose the latter over the former, and just wrote the
draft board a letter about a week before the time saying
I would …
Accept another offer?
Yes. I was lacer told that the appeal board in the
District distrusted the local draft board, actually
“watching” it before appeals were taken, and had things
ready to reverse it again in my case, but happily didn’t
have to.
So where did you spend your time in the Army?
The army experience was a remarkably good one. There
were only a handful of people in the 7 million brought
into the Army that were in the job for which they were
well adapted and which they liked and that was my case.
After training in the Camp Ritchie Intelligence Camp up
in the mountains here and in the Pentagon for a couple of
months, I was sent over to England to join the British
group at Bletchley that was decoding the German
– 109 –
messages. The job there was to decipher the intercepted
message, translate it, separate the important from the
unimportant, file them, send out the important messages
immediately to the Prime Minister, to the defense
ministers and to a few of the military commanders. It
required a very large degree of imagination and
intelligence and ability to decipher the messages and
somewhat lower requirements for my work, to organize the
material and do short understandable messages to the
recipients.
I got along with the British pretty well. They were
bringing in Americans as a gesture of goodwill and also
in order to ensure that they got the Japanese intercepts.
When Europe was invaded, Bletchley started sending out,
to the American units as well as the British, selected
reports of the decoded German messages. They would go to
Allied Headquarters, down to Army group and to Army
level, but not below Army level and not to anyone who
stood in any danger of being captured. In our Army group
I think there were five generals and one colonel who were
made aware of it and who received the briefing based on
the messages from Bletchley. The messages were similarly
restricted elsewhere. With the Prime Minister and the
Ministers for Navy and War and two or three other people
in the civilian government added in the total circulation
would be probably about fifty people.
The work got through the entire war without the
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Mr. Gardner:
Germans ever suspecting it. It failed only one time, at
the Battle of the Bulge. There was quite a build up of
German divisions between the Rhine and the Ardennes,
apparently of divisions withdrawn for rest and refit and
anything we could tell from the intercepted messages
showed that’s what they were doing. But actually the
Germans, not because of fear of decoding, but because of
fear of leaks in the officer corps of the German Army,
did not use their usual coded wireless transmissions, but
had sent out personal couriers to the commanders to
protect against the Ardennes breakout being known too far
down in the German ranks. Well, they not only protected
it from the Germans but from us as well.
How many people worked on this project?
It got to be a fairly lar9e number. In the Sixth Army
group there were two people, Les Rood and me, on the,
what you might call, front line of talking. We got the
messages and organized them and briefed the generals
every morning — I on the ground war and he on the air.
And then there was a British signals detachment who came
along with us. Ten or fifteen men who managed the
technicalities of the transmission of messages between
Bletchley and our headquarters. And, that would be
repeated to five Army and Air groups and there would be a
similar but smaller detachment, without the Air, at
the Army level. So in the American and the British
field groups there will be maybe fifty officers, 150
British technicians and in Bletchley there was a much
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larger operation.
Where?
Bletchley which was the center of the decoding with
several hundred people. The technical cryptanalysts were
pretty rigidly separated–! was never even in the
building in which the cryptanalysis was done–and then
maybe a hundred people on the straight intelligence side
using the material as it was given to them. In any
event, it was a good experience and one to which I was
fairly well adapted, getting the information in, and
organizing it. Keeping the generals’ attention was a
little like a kindergarten class in some ways and an
appellate court in other ways. I was completely happy
and I think reasonably effective.
Are there other high points of your service in the
Army that you would like to talk about?
Well, let’s spend a moment on what was probably the peak
of my wartime briefing of the generals. Just after the
Battle of the Bulge, the start of which I had mistaken,
though it wasn’t our business, it was just a casual look
at somebody else’s sector. General Devers, a lovely man
whose intelligence I didn’t greatly respect, said that he
was worried about those German troops assembled for rest
and refit because Germany had traditionally burst out of
the Ardennes when they started WWI and again in WWII. I
explained to him rather patronizingly that it was quite
different now because then they could gather in the
wooded area and break into the open. But, here
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they would have to fight their way into the Ardennes.
You’re saying here they had to break into the
wood.s.
Yes, which had only one road going through it and where a
troop movement could be decimated by the air. And he
agreed, “Well, I guess you’ re right Major.” Well, he was
right and I was wrong. But at the end of campaign the
Germans went to an enormous effort to persuade us that
when retreating from the Bulge they were going to go
south and into the 6th Army Group territory. We were
much weakened because we’d sent off two or three
divisions to Bradley and the 12th Army Group. The
Germans sent false messages, they left plans in the
pockets of dead officers, went through the whole routine
of undertaking to persuade us that we were about to be
attacked by the German army pulling back. Eisenhower and
his Intelligence Officer, a General Strong, a Britisher,
came down to talk to Devers about it. They took a train
overnight, and the next morning Eisenhower and Devers and
Strong and I debated the matter. Strong was of the view
that the Germans were going to strike south as a logical
last gasp for them and I was of the view that they were
not. I had the advantage over him in that he had not
received that night’s decryption because he had come down
on a train but by and large I had I thought a much better
case anyway. We debated it for a couple of hours and
then …
With Eisenhower?
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Yes, he and Devers and nobody else. Th ey sat there
without a comment while Strong and I carried on our long
debate. At the end, Eisenhower without hesitation,
without consultation, just said “Well, I think they’re
not coming south,” got up and left. Devers said,
amiably, that he would not have believed it if somebody
had told him that a civilian major who can’t even stand
up straight had cost him three divisions. Three
divisions and perpetual glory as well. Because if he had
those three divisions, and no major German opposition, he
could have cut across the Rhine and the southern part of
Germany and the glory of winning the war would have been
his. On the other hand, every American general detested
the British and he was delighted to see the British
general done in. In any event, it was probably my high
point.
Wow, that is a high point.
It left me with considerable admiration for Eisenhower.
And then at the end of the war you came back to
the Department of Interior for a short time and
then in 1947 went into private practice.
That’s right.
Let me just ask you to look back at your service
in the , just reflect on it for a
minute, what jobs did you like the most, what were
the high points — just some of your reflections
about working in .
Well, on the civilian side I had a steady downhill run
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from the Solicitor General’s office which was one of the
most interesting and maybe in a way the job to which I
was best adapted. That required high-speed work of
considerable consequence using all of the legal ability
that I had. The business of oral argument — where I was
adequate, not outstanding I don’t believe — was
engrossing. For six years there I was c ompletely happy,
but I think that it’s well that I left. People get stale
and get numb. No other civilian job was as interesting
nor where I was as completely sure that I was as
effective as I would like to be.
The Army job was absolutely engrossing and to the
extent that military intelligence could ever be fatal or
helpful, I suppose it was in that sense the most
important job that I ever had, as thousands of lives
could well turn on a conclusion that I had developed.
When you were in the Army, in Intelligence, how
did you spend your time? Did you spend a lot of
your time briefing generals or did you spend it
interpreting messages?
You keep tempting me into long explanations.
little bit in the Pentagon and at Bletchley.
It ?aried a
The job
was to receive the decrypted raw material and in both
places every fragment was filed. I was not concerned
with the filing but it was a tool of great importance,
because one fragment here one fragment there and so on
often added up to something important. But the
immediate objective at both places was getting the
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information compressed into intelligible form and out to
the people who would act upon it. In the Pentagon when I
was there which was the fall of ’43, operations were just
getting underway. We weren’t sending it out to the field
units but only to the President, the armed service
Secretaries. I don’t know how far down we went,
certainly the Chief of Staff and probably to the Chiefs
of Staff of the several services but that was as far down
as we went. In any event, it was a daily publication of
about three to six pages which we would put together and
circulate. Circulate by an armed officer who would stand
by while it was read, collect the paper after it was
read, bring it back and destroy it. Security was very,
very close and, in the long run, necessary but often
hampering.
In Bletchley we did much the same thing except we
didn’t put out a magazine. We sent out messages directly
to the civilian leaders of the war and to the service and
unit heads. These were individual messages based upon
something that we thought ought to go t o them so they
would go out and not be organized into a general
discussion. That was essentially selection,
condensation, composition and sending out a message that
people could act upon. In the Army group, our job was to
receive the messages from Bletchley that came in,
organize and compress them and primarily to tell the
commanding generals.
We had a 15 or 20 minute briefing each morning at
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Mr. Schultz:
9:00 a.m., to get that information into the head of
commanding general Devers and his chiefs of operation and
supply, a group of about half a dozen people. That
required a fair amount of plain showmanship. Generals
were ordinarily not much interested in the detail of
intelligence, but after a very slow start at which for
the most part they ignored me, once they tried the daily
morning briefing, at the end of October, not one of them
ever failed to show up for the rest of the war. I had a
fairly interested audience. We’d have a large map about
the size of that bay window and stick on tabs that
represented what we considered to be the daily position
of the German divisions and our own divisions. When the
headquarters moved we would just take the plywood map,
cover it over and put it in a heavily-armed truck, go to
the new office, and set it up.
My job there was essentially collecting this
information, organizing and presenting it briefly and as
effectively as I could in 15 or 20 minutes. Our office
was the only secure place in the Army group because
nobody could come in without being cleared for Ultra.
The generals sort of enjoyed their hiding place and this
made it a doubly interesting job. They’d often stay on
for half an hour and informally talk and plan as they
couldn’t do in a larger meeting. So it was not a happy
life but a very good life.
Did you do all the briefings or most of them? How
was that divided?
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Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
I did all of the Ultra.
All the what?
The decoded or decrypted material was called Ultra. I
did all of the Ultra. My colleague Rood at the start
would do it on the air side but the German air force got
to be so unimportant — it was largely destroyed by the
last half year of the war — he then launched a
substitute topic, the German supply situation. There was
in addition an, by no means unimportant, intelligence
briefing by the regular intelligence staff from the
conventional sources of air reconnaissance, prisoner
interrogation, secret agents reports, and so on, the
production of which I had nothing to do with.
And then you would do the briefing on Ultra
Intelligence affecting the ground war?
Yes.
was that every day?
It would take the better part of the day and the evening
before to get on top of the messages, selecting,
organizing and so on. I was also supposed to send back
to Bletchley the material from the open intelligence that
I thought Bletchley might be interested in. That was a
secondary job. I had all the open intelligence coming
into me as well as Ultra, but I didn’t do very much with
it. I tried to keep a notebook ready containing all
German troop data, from all our intelligence sources,
“open” in blue and “Ultra” in red. One rather
entertaining bit arose when a prisoner of war
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Mr. Schultz:
Mr. Gardner:
or an agent, I can’t remember which, had said that a
named German armored division had stopped in Strasbourg
to get gas. I thought that was interesting information
so I sent it back to Bletchley and then within a half an
hour had an anguished message in reply. We had been
sending poison gas over to Europe in the event the
Germans started using it. We stored much of it in
Marseilles, as we didn’t have the train space to move our
urgent supplies plus a contingent asset such as poison
gas. When I said that the 15th, just to use an arbitrary
number, the 15th armored division had stopped in
Strasbourg to get gas that triggered a vast activity.
People immediately replanned train movements from the
Mediterranean up to the front and started to prepare
protective troop directions. Back came a message asking
when I’d said “gas” did I mean “gas” or was I using a
vulgar Americanism for petrol?
So the Solicitor General’s office and the Special
Branch of military intelligence were the two places I
felt were probably the best part of the public part of my
working life, and automatically the best overall, since
the next fifty years were somewhat less impressive to me
than the first thirteen.
In 1947 you went into private practice. What were the
circumstances of that decision?
They were multiple. One, I had a general feeling that it
was time I got back to the law. I hadn’t really been
doing law work as opposed to administrative work since I
– 119 –
left the Solicitor General’s Office. I had taken a few
cases arguing before the Supreme Court from the Labor
Depa?tment and from the Interior Department. That was
only sport and not extended work in the law. Secondly, I
had a suspicion, though this was not an important factor,
that the Democratic days were about over and I had got to
a point where I could not reasonably expect to stay on
after a change in Administration.
Third, I didn’t like Oscar Chapman. After Ickes’
quarrel with Truman he submitted a resignation in midFebruary,
resigning as of March 15. Truman accepted it
effective at once and made Oscar, the only remaining
Assistant Secretary, Acting Secretary. Well, no one,
much less Oscar, was able to discharge that job. So
Chapman and I, as Solicitor, had to do a lot of fancy
work persuading Justice, and 0MB finally, of the need for
executive orders so I could also act as Assistant
Secretary. We worked out a jury-rigged compromise so I
could be Acting Secretary in the absence of Chapman. I
construed “absence” very broadly, so that I disposed of
unimportant matters as Acting Secretary and sent
important matters on to Chapman with my recommendation.
When Krug was appointed Secretary, he naturally made
Chapman Under Secretary. But we preserved our “Acting
Secretary” arrangement, eventually succeeded by a more
accurate title when I became an Assistant Secretary.
That is, papers coming in to the Secretarial level would
come through me and I would dispose of unimportant
– 120 –
matters. If important, I would send it on to the
Secretary or Under Secretary. I would thus have as
gateKeeper adequate knowledge, and usually control of
what happened in this Department and I was relatively
content. I had a few episodes with Chapman which I found
distressing but I don’t think I need go into that. I
wasn’t anxious to keep working under him and so I thought
well it’s time to give up life as a bureaucrat.
Colwnbia had been regularly after me to come back and
teach as had a fair number of other law schools on one
occasion or another. I just assumed I would end up
teaching law. So, I told Columbia that I would by fall
be prepared to leave the and to teach. They said they
couldn’t offer me a good teaching schedule for a while
until people retired. The professor who had the courses
that I would particularly want would retire in two or
three years. But, in the meantime I would have to teach
commercial law or take charge of moot courts or do things
I didn’t particularly want to do.
While I was debating that, Frank Shea was putting
together a law office with Fred Greenman. They had
envisioned two small offices, one in New York and one in
Washington, Greenman in charge of the New York one and
Frank in charge of the Washington one. Frank set out to
recruit me.
When Frank got something in mind, he pursued it with
full vigor. He and I had known each other for all the
time I had been in t”Jashington. We hadn’ t been
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Mr. Schultz:
Mr. Gardner:
particularly close and had never, for example, so much as
lunched together. Indeed, we had some splendid quarrels
at the Justice Department. We had lunch together in midFebruary,
and I believe every week thereafter until I
succumbed. By the end of the month I concluded that I
did not want to move a large family to New York in order
to teach commercial law, and I agreed with Frank to try
it. I had never before set foot in a law office and had
never expected to. As you have discovered, in the you
expect lawyers to come to your office. I had never set
foot in a law office; I had no idea what they did and I
didn’t expect to stay in one too long.
You didn’t stay too long, only fifty years.
It’s getting on to fifty-one.
– 122 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
INTERVIEW NO. 5
(December 2, 1997)
1947-1977
Today is December 2, 1997, I believe this is the fifth
interview and it’s in Mr. Gardner’s office in Washington
D.C. Mr. Gardner, today I want to talk to you about Shea
& Gardner. You came to work here in 1947.
correct?
July of 1947.
Is that
What do you remember about the first few days?
We start with naivety, in that I had never been in a
private law office in my life and had no idea of what
they looked like. These were fairly humble quarters in a
little building down on 15th Street, the name of which I
forget. The entire process of a private law firm was to
me a mystery and it still is. Chiefly because my
partner, Shea, who had been at work for three months had
experience in some private law firms and he liked to
manage things while I didn’t. So I did nothing; he did
all the management and so it has continued for 50 years.
I can’t describe precisely what our total practice was
like. We had early on a number of fairly large
undertakings which kept us as busy as could be. I don’t
know what else you would want to know.
I remember reading in the book you wrote about the firm
that you didn’t have any of your own clients for your
first five years of practice.
– 123 –
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
No, one or two trifling ones, but none to speak of. No,
I had no clients of consequ ence until late 1950. I did
have• one man come to me who had been wronged, he felt, by
a decision at the Interior Department. They hunted
around for the best attorney to take on a major grievance
and he thought that I would be the ideal attorney to
attack a decision of Acting Secretary Gardner, as indeed
I suppose I would have been.
You declined?
I declined.
During those first years of practice, did you consider
accepting one of those teaching offers that periodically
were made to you?
Yes, I was essentially a back room assistant to my
partner Shea. The work was interesting, the cases
remarkably so, but I was not happy in a subordinate
position which I hadn’t been in since I could remember,
and I had an illusion that being a law school dean would
combine my interests in the law and research with a
certain practical underpinning to it. I did not realize
that the principal job of a Dean is raising money and,
secondly, trying to keep peace among a group of prima
donnas. It is a singularly unattractive job when you
took a realistic view of it.
I had indicated to Stanford that I could probably be
had for their deanship. I didn’t do anything about it
and they chose a different and probably a better man.
– 124 –
The Berkeley and Boalt Hall story was rather different.
For some reason, Chief Justice Traynor, I suppose he was
on their board, was doing the recruiting, and he cruised
around to some eastern universities and came up at
several places that he said suggested me. I rather liked
the idea; I liked San Francisco and then thought that I
would like being a Dean. So he and I agreed subject to
the faculty clearance on his side and my wife’s clearance
on my side. That would have been a disastrous mistake.
I can’t think of anyone less equipped to handle the
disturbances of the 60’s or the SO’S, whatever it was,
than I, and Berkeley was about the worst in the country
for violent activism. In any event, I was saved by an
unexpected birth of twins. In those days, the expectant
parent didn;t know what was corning and what came was
twins. The idea of picking up four children all under
four and moving across the country and moving my wife who
was Bermudian, 3,000 miles farther from her home, was
overwhelming. I backed out of that one.
I had in the meantime agreed to go to Colwnbia and
teach during the summer term; it was still shortly after
the war and they had full terms in the summer. I was to
teach Gellhorn’s class in administrative law. When the
twins were born, I tried to back out of that but the Dean
was pretty hard-nosed about it and we ended up with a
compromise that the three-hour course could be one and a
half hours on Monday afternoons and one and a half
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Mr. Schultz:
Mr. Gardner:
hours on Tuesday mornings. So I could be gone only one
day. That was an awful burden both on me and on the
students, but we got through it. That was as close to
teaching as I came.
In subsequent years did you have any thoughts of going
back to teaching?
Yes, though they receded. When I moved out of the
government into this little firm, I was not a Frankfurter
protege as were so many people in town, although our
paths had crossed many times, but he never liked to see
anyone going off in their own without having Frankfurter
advice to support them. He was emphatic that I was meant
to be a teacher and not a practitioner and I expect he
was right. I didn’t give a serious consideration to the
academic inquiries and after about five years or so they
tapered off to virtually nothing except for Bill Warren
who was Dean of Columbia. The faculty wasn’t very fond
of him, but he was an enormously successful man at
raising money and in building on the side his own tax
practice. He showed his talent in his effort to recruit
me. Somewhere in the early fifties he telephoned and
said he was going to be in town the next day and could we
have lunch. So we had lunch and he put a maximum degree
of pressure on me. I discovered his talent in that he
came down from New York to Washington just to have lunch,
went back immediately after lunch. I don’t know anybody,
especially not me, who would undertake to devote a day
– 126
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
to travel, when there are perfectly good telephones, but
he did and he came a lot closer to getting me than he
would have on the telephone. But after, oh say
arbitrarily, seven years people stopped asking me and I
stopped thinking about it. I became rather doubtful that
I would be happy with the comparatively placid life of
the law professor. I rather liked getting up in the
morning and not knowing what was going to happen in the
afternoon and I liked the excitement of litigation.
Why didn’t you go to Columbia?
As I just said ….
Oh, I thought that was in hindsight.
No, no, I knew at the time, I had gone up there the
summer of 1948, largely as a test and it was inconclusive
in the rough sense where it was probably hard to separate
the inconvenience of the Monday afternoon Tuesday morning
regime from teaching generally, so I had about the same
open mind, undecided mind that I had before I had started
the teaching.
Tell me about your first big client. Who was that and
how did it happen?
Mr. Gardner: . The first and major client, directly and indirectly, in
my private practice was Ralph Davies. He had been
Executive Vice President of Standard Oil of California at
the start of the war and came to Washington to be Deputy
under Ickes, and actually running, the Petroleum
Ad ministration for War during the war, which I’m told (I
wasn’t around} was.a singularly effective operation. He
– 127 –
had stayed on after the war largely to get an oil and gas
division organized in Interior and to get ratified an
Anglo-American oil treaty to provide for a concerted
action in the Middle East and other oil producing
countries. By a series of accidents, after Ickes had his
temper tantrum with Truman and left, there was virtually
no leadership in the Interior Department. Fortas the
Under Secretary had gone. Mike Strauss the leading
Assistant Secretary had gone down, or up as the case may
be, to run the Bureau of Reclamation, which was building
all those lovely dams, and Oscar Chapman, the perennial
bottom Assistant Secretary for thirteen years, was a
graceful and adept politician, but was not an executive.
The bureau heads, who were in an argument used to fight
for the privilege of being the second one to talk to
Chapman, because he always agreed with whoever last
talked to him. Not a unique failing in the government,
but carried on for thirteen years, it rather distorted
his internal effectiveness.
Ickes bad planned to move me to Under Secretary, but
left before prying it out. He would have had some
difficulty in that a young Easterner, who had already
offended some of the Western Senators, would not have
been very attractive to the Congress. There was in any
case, nobody there. After much stewing about we finally
persuaded Justice, or 0MB, whatever it was called then,
to issue an Executive Order authorizing me to act in the
absence of a Secretary or Assistant Secretary and I took
– 128 –
the view that if Chapman wasn’t actually in my office, he
was absent. It was alright with him since I sent all the
important matters to him, and disposed of the
unimportant.
To get back to the Anglo-American oil treaty, the
State Department had as one of its ranking executives, a
man named Wilcox, who had taught me Economics at
Swarthmore, and whom I rather liked and rather admired.
He came over to persuade me that the oil treaty was a bad
idea. These great imperialist nations, United States and
Britain, were framing joint non-competitive approaches to
these poor, undeveloped mideastern countries. To my
shame, I rather agreed with him and said yes, we would
withdraw Interior support of the treaty, and thus would
kill it.
Then I had the unpleasant task of advising Davies of
our decision. His office was at the opposite corner of
the Interior building, and we were about a block apart.
I walked down to his office and explained my apostasy as
best I could. Two years later he remembered the
courtesy, which I’m ashamed to say is more less
unique in the bureaucracy, of the superior
officer walking down to the subordinate, more vividly
than he did the substantive offense. My conscience
didn’t really hurt me until the oil and gas shortages of
the late 70s when the oil countries decided they ought to
cut down on the gasoline available to us. When I sat in
the long lines outside filling stations hoping they’d
– 129 –
still have gas by the time I worked my way up to the pump
I deeply, deeply regretted our 1946 solicitude for the
OPEC·nations.
In any event, the Dollar family, a group of
enterprising thieves who had run the Dollar steamship
line, and much of San Francisco, for a good many decades
had been forced by Joe Kennedy when head of the Federal
Maritime Commission for a year or so, to hand over the
stock of this Dollar steamship line to discharge their
personal obligations to the . The Dollar line was
rechristened the American President Lines with virtually
all of its stock owned by the government. Davies had
gone back to San Francisco and had become a director of
the government-owned line. He considered returning it to
the Dollars would be very distasteful and would also
interfere with his own plans to acquire control of the
line. The Dollars brought suit on the ridiculous theory
that they hadn’t transferred the stock to the government.
It had been only a loan and not a sale. And, now APL,
after the war years, was prosperous and valuable, the
loan had been repaid in effect and their stock should be
returned. The U.S. Court of Appeals for the District,
with Prettyman who was able, but no crusader for social
justice, and with Clark, the ex-Senator who was neither
able nor blessed with any social conscience, thoroughly
disapproved of any socialistic enterprise, even though it
had been inaugurated by Joe Kennedy and, therefore, held
– 130 –
Mr. Schultz:
Mr. Gardner:
Dollar to be right. The Supreme Court refused to review
what was essentially a factual dispute .
. navies thought the government might be helped by a
minority shareholder and he asked the people at Justice
who were working on it who would be a good attorney for
him. They gave him a few names and he selected me
chiefly, I learned after we had become very good friends,
because of that long walk down the hall to talk to him.
By good fortune, although it had been by that time
ten years since I’d left Justice, the people that were
working on the case both in the Civil Division and
Solicitor General’s office were people I had worked with
when I was at Justice and we fell into an easy and
complete partnership on it. I’d attend the government
conferences and draft some of the government briefs and
we were throughout all very congenial.
we started a litigation in California based on the
old United States against Lee case, which said that you
could sue any agent holding the property of the
government for his misconduct but you couldn’t affect the
title of the United States in that suit. It’s a highly
metaphysical doctrine. Anyway, we brought suit in San
Francisco to establish the title of the United States to
own the stock.
This is after the Supreme Court denied certiorari?
Yes, and we had again good fortune. Chief Judge Harris
of the District of California who was an old Democratic
– 131
politician and inclined to be sympath etic with us, issued
a preliminary injunction pending trial to prevent
transfer of the stock to the Dollars. Well, that
infuriated the D.C. Court of Appeals. At one time,
George Killion, President of APL, was threatened by the
Court of Appeals with jail unless he turned over the
stock within ten days and he was under injunction, also
having a jail penalty, if he did turn over the stock. So
with that sort of conflict it finally got the Supreme
Court’s attention. The government filed a petition for
rehearing on the original denial of certiorari, which was
never acted on. They never granted or denied, so for
three years we had a petition for rehearing pending in
the Supreme Court.
In the Ninth Circuit we were getting along alright
until Judge Murphy, a protege of Senator Mccarren, who
was very active in support of the Dollars, managed to get
himself assigned to the case. Murphy entered summary
judgment for the Dollars. The Ninth Circuit
reversed him and sent the case back for trial. We were
virtually home free but at that moment Sawyer, who was
Secretary of Commerce and after some reorganizations in
charge of the Maritime agencies, settled with the
Dollars, aided by a new Attorney General who I’m clear
was committed to this course by Mccarren, who was
Chairman of the Judiciary Committee. Sawyer agreed to
put the stock up for sale and to split the proceeds 50/50
between the Dollars and the government. It was a
– 132 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
multi-million gift to the Dollars. Perlman, who was
Solicitor General, was so offended by it that he
resigned.
What year was that?
1952.
Why don’t you describe the practice at Shea &
Gardner.
It was very heavily dominated by litigation. I would
suppose that 90 percent of our activity in the first
quarter century was litigation. We were very fortunate
in the early years in our recruiting. A majority of our
recruited associates were Supreme Court law clerks and
the rest of them were about equally talented.
I don’t believe our early successes would be
possible in the modern world where litigation itself has
more or less mushroomed. Documents resulting from
discovery are now numbered in the thousands if not the
millions and it is generally believed that only a large
firm can take on large litigation. That attitude, of
course, leads in turn to the multiplication of.the
discovery requests, and the magnification of every step.
I don’t believe that today it would be possible, as
it was in 1948, for the railroads of the country to
choose as counsel a two-man law firm to handle an
antitrust case involving the joint ownership by the Class
I railroads of Railway Express, which was at that time a
package freight operation. It was rather more fun in
those days but I believe that every aged lawyer
– 133 –
considers that in his years things were much better.
Mr. Schultz: What stands out about Shea & Gardner?
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
What·were its unique characteristics?
I would put it in terms of ability which I think is not
universally recognized, but is broadly recognized. We
have, for example, a substantial practice representing
major law firms who come into difficulty with malpractice
suits or with internal disputes. That doesn’t happen on
account of good publicity. In general, I would say our
claims to uniqueness would be a higher level of ability
than is customary plus an attitude that in general has a
slightly higher flavoring of social responsibility than
is usual at a law firm.
I also want to ask you to reflect on how the practice of
law has changed in the past 50 years.
You may recall, in that little history that I tried to
write, the pleasure I had in finding the comments on the
50th Anniversary of Sidley & Austin in 1914. The senior
partner bewailed the fact that what had been a
gentlemen’s profession had turned into a greedy dogfight.
It is perversely reassuring to see that 80 years ago, as
today, the aged attorney feels that the contemporary
lawyers were interested to an immoderate degree in the
net income of their activities and to a much lesser
degree in the professional excellence they might attain.
Again, the bulk of the present practice by the
Washington firms is a corporate practice and the house
counsel are increasingly interested in accounting
– 134 –
for the pennies and less interested in professional
capacity of their retained lawyers .
. One major company that we’ve represented for more
than quarter of a century, in one area of their work,
thought they ought to have competitive bidding for that
work and for some reason I got mixed into it. I rarely
am involved with any practical problem, but happened to
be here. We decided to reply that they could reduce any
billing that they didn’t like to whatever amount they
chose. That wouldn’t do. They had to have competitive
bidding in order to prove to the Chief Executive Officer
that they had indeed saved every penny that was
available.
Brennan, Black and Douglas considered the commands
of the First Amendment to be stone tablets thrown down
from above, and had no place for flexibility or any
common sense. They managed single-handedly to destroy
the legal profession’s traditional aversion to
advertising. Twenty years ago a respectable firm
wouldn”t think about advertising its virtues, or having a
department called business development. We haven’t got
to the point where the large good firms are advertising
extensively. Yet they are beginning to. In the last
year or two, I forget the exact instances, but they were
chiefly in government contracting, oddly enough, there
were two or three respected firms who have bought space
to explain their skills in the government contracting
business.
– 135
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
I have a son, who about 20 years ago left Cleary
Gottlieb when he concluded that he did not want to retire
after 50 years and say that his life’s achievement was
the deposit of a hundred tons of toxic material in the
rivers of the nation. So he went over to the EPA, to the
Chesapeake Bay Foundation and then to Legal Services in
Northern New York, two or three years ago, at about your
age I should guess.
Which son is this?
Richard Gardner.
You know, I went to camp with one of your sons.
Well, that was my non-scholar son, Bill, I think.
Oh, that 1 s right.
Dick was the son who went in private practice in Clinton,
New York, a few years ago.
A small practice?
He is alone, in a small town much of his work results
from the practice of New York state to farm out to
private counsel or pay private counsel for representing
indigent clients in contests over social security,
disablement, and other small stuff. But he, last fall,
complained that he was having three or four trials a
week, which is not a bad menu to have. So, I’ve
overstated myself when I say just the whole profession
has gone down hill.
For you, what have been the highlights of private
practice? You have handed me a list of cases. I would
like you to begin by talking about representation of
– 136 –
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
people who got caught up in the McCarthy investigation.
Chronologically. The people who were caught up with
McCa?thy come pretty early.
Okay, why don’t we start with that.
As I said, the first four or five years I had virtually
no clients of my own and I had accordingly, a somewhat
larger availability for the needs of people being
harassed by McCarthy for representation. The hysteria in
the government in respect to so-called subversives is
hard to understand now, but it was real and almost
violent. McCarthy could waive a paper in the air and
say, “I have a list of 50 communists in the State
Department, and no one is doing anything about it.”
Well, people started doing things about it.
Even officials as able and as well intentioned as
Dean Acheson, a distant friend of mine, gave into it
pretty thoroughly and joined in ruining the career of
John Service and a couple of other foreign service
officers because they had predicted that the communists
would defeat Chiang Chai Chek and take over China and
obviously, to McCarthy and his allies, that meant they
were responsible for the loss of China. They were
hounded out of service. If Acheson knew the man
personally, as in the case of Alger Hiss, he was
courageous enough, but if he didn’t know him, well he had
a lofty indifference to what sort of injustice may have
been worked upon them.
I represented a young lady who had, as many people
– 137 –
had, joined the Young Communist League when in college.
After she left Vassar, fifteen years before, when nothing
she had done or said could have caused anyone any
trouble, a deranged woman, working at the Library of
Congress at the same time that my client had, included
her among her targets. She was pursued through two
hearings at the State Department and cleared, and then
McCarthy produced his list of 57 communists in the State
Department, including her, and the whole damn thing
started all over again.
The practice then was for the departments and
agencies to receive reports from the FBI that were
compiled with an incredible naivety if not malice. They
would pick up whole, not varying a word, the more extreme
right-wing publications of anything that undertook to
disparage anyone, and they would quote it without change
as a statement of a reliable informant. They wouldn’t
even tell the officials in the departments when they
asked who the “reliable informant” was. It was at about
the same time that the so-called Committee on Un-American
Activities in Congress was holding hearings and
conducting investigations where the greatest tangible sin
of their victim, was that the unhappy fellow refused to
list everybody he knew who was or might be a communist.
It was not a happy time.
I represented about five of those people, four of
them successfully and one State Department employee
unsuccessfully. I should have, in her case, gone on
– 138 –
into court to contest it, but she had not been candid
with me in one or two unimportant respects, and things
would have had to be explained. I had no desire to take
on several years of litigation on behalf of someone I
wasn’t too sure of myself. Because of that lack of
candor, I didn’t do it, but gave up after the
administrative decisions.
John Service, the unfortunate State Department man
that had predicted the communist victory in China, was
represented by Ed Rhetts, a friend of mine. The Civil
Service Commission took with deadly earnestness all the
FBI reports and in Service’s case they reversed the State
Department and said he should be discharged because of
doubts as to his loyalty. Dean Acheson, within two hours
after the report of reversal reached his department, sure
enough discharged Service. Rhetts then went into court
and lost in the District Court and the Court of Appeals
and asked me to help on the Supreme Court certiorari
where we rewrote his work and I have no doubt that we
were, indeed, helpful. He had, quite justifiably,
attacked Acheson as the perpetrator of the injustice, but
I had only too good a picture of tall Dean Acheson and
short Felix Frankfurter walking to work every morning and
did not think it would be at all helpful. So we found
that the State Department, in one respect or another,
violated their own regulations and while there was an
undertone that no decent man could support the
results, the specific arguments were based on
– 139
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
the violation of their own procedural regulations. The
court granted certiorari and reversed. I have no doubt
it did so because the majority of them thought it was an
outrage, but the opinion centered on the violation of the
regulations. By this time the Secretary was John Foster
Dulles, who no one had ever suggested was a man of
liberal or overly decent convictions. So they restored
Service to his job, but assigned him, he who was the most
promising of his class of Foreign Service officers, the
job of shipping furniture, which had no doubt its
responsibilities, but they were not very high.
What _explains Dean Acheson’s conduct?
I don’t know. He was of a skeptical frame of mind, and
it was not conviction. It could easily have been that he
had larger fish to fry such as the Marshall Plan.
Did you represent any of these people before a
Congressional Committee?
No. Not in private practice. I did at the Interior
Department. The FBI reports and the hysteria had no
reception in the Interior Department.
Did you get paid for this representation.
No. I’m sorry to say the girl that I failed to get
cleared, at some point, had a pang of conscience and sent
in what for her was a large sum of money, $1,500, as I
recall as a fee. Bill Warne wanted to pay me a fee, and
I said, “Oh no, no.” He said, “Oh yes, I want to, what
about $100, would that be alright?” So I said,
– 140 –
“Yes.” He did most of the important work himself. Fulton
Lewis was a radio commentator who worked hand and glove
with-McCarthy and followed the same tactics. I’m sure
they consulted almost daily. To one television audience
he had waved a piece of paper which he said was from an
Interior Department file on Warne. Warne had succeeded
me as Assistant Secretary and had then gone off to Iran,
of all places, on a Foreign Development project. In any
event, Lewis said this piece of paper showed that Warne
was a communist and a thief.
I thought that I would go see this piece of paper to
start with. I went to the Solicitor of the Interior
Department and saw hanging on the wall of the anteroom a
large picture of me, which made me rather uncomfortable.
I told the Solicitor what I wanted. He got all nervous
and said he couldn’t let me into an Interior Department
file without the approval of the Secretary. I said,
“It’s Warne’s file, I’m his attorney.” He said, “No,
no.”
So I came back a week later after he had consulted
the Secretary. The Secretary told the Solicitor that I
couldn’t get into his file. I also noticed that my
picture was gone from the anteroom. Whether they burnt
it or sent it off to storage, I do not know after I
fussed around one place or another, including the
McCarthy committee, which was quite unsatisfactory.
Bill Warne, himself, solved the problem. He went to
the television station and had the tape rerun. As
– 141 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Lewis waived that paper in the air the camera caught it
square-on in one still and it could easily be read. It
was perfectly routine advice from Warne who was taking a
week’s holiday period, nothing else. I regret to say we
didn’t put it to public use, but we did write a rather
pointed letter to Lewis and nothing was ever heard of it
again.
What factors during that time allowed McCarthy’s efforts
to be so successful?
The start and the shock of the Cold War, the ambition and
the depravity of Russia. Russia made a large, popular
impression, and also I don’t believe it was realized, or
generally realized, the degree of irresponsibility found
in McCarthy and the Dies Committee, along with a few
others who were discovering the political values in the
denunciation of people thought to be agents of Russia. I
think it reached extraordinary lengths. Oppenheimer, for
example, was in effect drummed out of the government as
disloyal because of trifling indiscretions unrelated to
the charge.
Or you can make a case that the tides of history
flowed as a matter of nature. At the end of the first
World War we had a similar period of hysteria where the
detail, which I haven’t in mind now, but was closely
comparable to what followed WWII. There’s no logical or
rationale way to tie the two together, but it is as good
an explanation as any.
Let’s talk about some of your cases and other projects.
– 142 –
Mr. Gardner: There are too many of them there, many of no particular
interest. I’ve told you about the Dollar litigation.
The Gerlach case was interesting and it had to do with
whether or not the government had to compensate the
ranchers who were dependent upon the waters of San
Joaquin River in California.
Interior had dammed the river and converted it into
agricultural irrigation. They were pumping up water from
the Sacramento which drained the northern part of
California. In any event, it was a major project. The
ranchers had filed suit for compensation for the water
lost and the principal water attorney in California had
the initial case which had been argued and decided in the
Court of Claims on a wonderfully interesting point, to
wit, whether or not the government’s control of navigable
waters meant that they could take the navigable waters
without paying compensation.
At this point we took on a client, after the Court
of Claims decision. The petitioned for certiorari in
the Supreme Court on this highly interesting question of
liability for taking navigable waters. I filed a brief
amicus which pointed out that the issue wasn’t there.
Congress had enacted that the water was to be paid for
and there was no way to get to the issue which
preoccupied the parties in the Court of Claims. I don’t
believe, contrary to the position of everybody else in
this firm or indeed in the legal
– 143 –
profession, that briefs aroicus curiae get much attention.
In any event, that aroicus brief was just ignored, and
they· granted certiorari.
The fifteen western states had joined in filing a
amicus brief on the merits to support the land owners,
not the government. California was the leader there and
I talked to the Deputy Attorney General in California,
again whose name I forget, and suggested to him that
quite possibly we would be granted oral argument if I
could say that I was speaking for the western states and
he also thought that I might have a better chance because
I was known to the Court as just having left the Interior
Department. So we agreed to try it. I moved for leave
to participate in oral argument on behalf of my client
and speaking also for the fifteen states. The states
ought to try this more often; generally they are just a
long footnote.
In any event, it worked and the court granted me 10
or 15 minutes for oral argument and I presented again the
facts which showed that the Congress had authorized
payment. Neither the government nor the private attorney
paid any attention to my argument. They had a nice
constitutional issue and they weren’t going to give it
up. The Court apparently felt unable either to accept or
reject my position. So they sent it down for reargument
in the next Term, and again I came up with my argument
that Congress had removed any issue. After that
argument the Court, on an opinion by Jackson, which
– 144 –
Mr. Schultz:
Mr. Gardner:.
in effect followed my brief, held that the Congress had
indeed authorized the payment. So I found that one to be
a fair amount of fun.
Do you have any other cases that are as interesting or
were so successful?
Most of my cases were successful. APL, against Federal
Maritime Board is an example of a man inflicting major
injury on himself. After Davies took control of APL and
I became his counsel, we departed from the inflexible
tradition that one does not sue Santa Claus. The
subsidized lines had always thought that it was not only
risky but absurd to take a dispute with the Maritime
Agency into court. Well, we didn’t quite believe that so
we took them into court. We got Holtzoff who, one, said
we did have standing to sue, but two, we were wrong on
the merits. We took an appeal. In the meantime, the
Federal Maritime Board had begun to demonstrate why the
tradition arose that you didn’t sue Santa Claus. They
told us that we would not be eligible to purchase any of
the new vessels that the government had built. They were
advanced and very good freighters. They had about twenty
of them and in the normal course APL would have bought
two or three, but they said you don’t buy any as long as
you’re suing us. They also indicated they might force
APL to live up to its contract and build combination
vessels, passenger and freighter, for its
round-the-world service, which was certain bankruptcy
because by then the jet aircraft was coming in. The
– 145 –
Mr. Schultz:
Mr. Gardner:
business community had abandoned the use of passenger
vessels.
I told APL we had only about a 50 percent chance of
winning anyway. We abandoned our appeal. It’s an
important case in that ever after the shipping industry,
and in particular their attor neys, were running into
court on the slightest provocation and the maritime
agencies themselves became completely frozen with fear of
court litigation. In result, things that often had been
done in a month could now take some years. I spent five
years, at least, in petitions for rulemaking or
litigation, trying to get the agency to see they ought to
do the quick and sensible thing, proceed by summary
judgments and orders to show cause and so on so as to get
the work done in a matter of months rather than three
years which was the norm. The opposing attorneys, of
course, lawyers being what they are, would invariably
advise litigation. They had two objectives, one,
embarrassing or handicapping a competitor and, the
second, helping out the law firm.
Not until about 1980 or even later did the Maritime
Agency finally accept our proposal for show cause
proceedings by which they announced they were going to do
this unless somebody had a good reason why not. So that
was the level of success met by brave men going into
court.
What do you recollect of Judge Holtzoff?
(Laugh) I knew him at Justice when we were both at
– 146 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Justice.
Oh, he was at Justice?
Oh yes, he buzzed around as a sort of a roving assistant
to the Attorney General and he was fairly volatile, hardworking
and his instincts were by-and-large good. He and
I tried, for one example, to establish a filing system by
which research done in one case would be available in
another instead of being done all over again. It was too
ambitious a job, we didn’t get very far.
Then, when he got on the court, he became completely
irascible. I was down there once to present a motion to
him and the man before me was standing there being
denounced vigorously by Holtzoff. He thought that every
lawyer knew better than that, what did he mean by filing
such a motion. He finally said, “Now what do you have to
say for yourself?” And the man said, “Only this, your
Honor, it’s not my motion, it’s my opponent’s motion.”
Now what else?
Another maritime case that went to the Supreme Court.
Oh that’s the Isbrandtsen case. That, too, has its
interesting points. we had represented, back when I was
Shea’s assistant, International Relief Organization, who
had been defrauded of about $800,000 in the repair and
rehabilitation of a ship. After many cases in many
courts, we had recovered about 60 percent of it, mostly
through a fraud suit that was in San Francisco, against
the shipyard and their attorneys, Graham and Morse, and
– 147 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
the Bank of America. The defendants settled the fraud
case. When Morse came to Washington as General Counsel
of the Maritime Board, and then its Chairman, I wondered
whether I should tell my clients that there was a
probability of my being in disfavor because of that fraud
case. I decided that, no, because the President of APL,
whom I did not admire, would be in a large tizzy over it,
more than necessary, I didn’t tell them. I never found
any indication that Morse didn’t deal with me perfectly
fairly. Well, the Isbrandtsen case put an end to all
those worries. It was the most important case the
Maritime Board had had and he didn’t trust his agency
General Counsel very thoroughly, correctly, because he
wasn’t very competent. So he retained me to represent
the Board in the Supreme court.
You were saying the Maritime Board arranged for you to
represent them in the Supreme Court, which does not often
happen.
As far as I know, it’s never happened.
Before or since?
The WINAC case is also interesting. Two lines, American
Export Line and American President Lines represented the
U.S.-flag trade from Italy to the United States, the
westbound trade. APL was in it with its round-the-world
vessels. The two principal offenses under the Shipping
Act were (1) agreements between steamship lines that were
not filed with the Board for approval, and (2) rebate
from the published tariff rates.
– :48 –
Export and APL had managed to violate both of them. They
formed an agreement to the effect that they would not pay
more. than 3 percent rebates and those only to designated
freight forwarders in Italy. So the concept of an
unapproved agreement to violate the law was rather
shocking to the Board, and they instituted proceedings.
I went over to Genoa and spent a week there getting
the full facts. My witness, the APL manager there, had
died between my week there and the time of the hearing,
so I filed a document said to be the intended testimony
of William H. Sharon. One hundred and fifty pages
relating every detail. The government attorney, who had
no other evidence, had to agree to accept it, though
“Only against APL.” In any event, the main thrust of my
case was the Maritime Board had, from the beginning,
accepted the rebate system. I had letters indicating
that. They had done nothing about it. In fact, they had
done nothing about any control of practices followed
abroad and they couldn’t.
I said that APL and Export by this agreement had
done more to control foreign rebating than the Maritime
Board had in its entire history and in result they were
threatened with fines including the loss of subsidy which
exceeded the fines that the Maritime Board had collected
from the entire industry in its whole history. It wasn’t
very appealing to the Conunission but it was effective.
They and the Maritime Administration ended up saying
that there would not be any fines or loss of
– 149 –
subsidy on the quaint ground that the misconduct had
ceased. But, we also enraged the other lines who’d
figured in my little account of what Sharon would have
testified to. So, we had no penalty, but universal
condemnation as a result.
Piper Aircraft v. Reyno, is probably the most widely
important of the cases I’ve had. That involved a crash
of a small plane which is conducting a shuttle service
between Bristol and Edinburgh. It went down over the
Scottish mountains, and all concerned were killed. One
of the professional aircraft plaintiff’s lawyers by the
name of Cat hcart very graciously sent over to Scotland
his personal engineer, apparently the one he uses in
these cases, to help the authorities in the investigation
and, incidentally, to sign up the beneficiaries of those
who were killed, which he did. I think there were 9 or
10 passengers. He returned to Los Angeles with all of
their estates committed to Cathcart. Cathcart had a
trustee pendente lite appointed. By some coincidence the
trustee was his secretary and by another coincidence she
retained Cathcart to present the claims against the
manufacturer of the airplane and the manufacturer of
the propeller. We had, at that time, been representing,
occasionally and only in the appellate courts, the
American Aircraft insurance underwriters or some
similarly complicated name, a combination of the
insurance companies who covered the aircraft
industry. My partner, Rich Sharp, had been doing
– 150 –
their work on one or two of the maj or crashes. They
considered him a little young for the Supreme Court so I
took. that one on. A few years later Sharp was able to do
the Supreme Court work himself.
There were two counsel, one representing Lloyds and
I re presenting the propeller company. The Lloyds counsel
had no business whatsoever being in the Supreme Court.
It made him enormously nervous to the point where
rational thought was difficult for him. At the same time
he had a trial scheduled in Denver for the next day and
he was going into what would be a two-week trial without
any prep aration and no qualms whatever. He had an
assistant he said that had been working on the record and
he’d be with him in court. If I had had that trial I
would have spent at least two or three weeks in preparing
for it, getting all the facts carefully organized and
strategies developed. It all goes to show, I think, that
your own barnyard is a familiar one. Anyway, he did such
a bad job that I had to spend of my fifteen minutes the
first twelve minutes straightening out the mistakes that
he had made in trying to explain rudiments. Fortunatel y,
there came the luncheon recess. When we started
after that the Marshall told me that I had 3 minutes and
36 seconds left in my argument. I announced that I
thought that I could make the six indispensable points in
that time, and the Court shut up. They didn’t ask me a
question. They thus got a coherent and fairly
effective 3-minute argument. And, they decided
– 151 –
Mr. Schultz:
in that case that foreigners could not sue the American
manufacturers in Armerican courts on foreign accidents.
I won that case unanimously on the points that had been
included in the petition for certiorari on three related
points not included in the petition, I won only four to
three the dissenters complained that the issue hadn’t
been in the petition. So I thought on the whole that was
a rather successful little venture.
I spent almost ten years after my flight from APL
representing Peabody Coal Company, chiefly in respect of
the Surface Mining Act of 1978 which was vastly
complicated and vastly expensive and undoubtedly vastly
needed. The open-pit coal mining was devastating the
terrain in large parts of the country. The litigation
was significant to me chiefly in the fact that we worked
out, after some bit of floundering among dozens of
companies, an arrangement by which we carried on the
litigation jointly, Crowell & Moring representing the
Coal Association and I representing Peabody (who also
paid its part of the Coal Association’s bills). It was
an exceedingly pleasant, and we like to think effective,
cooperation between Crowell & Moring and ourselves. I
haven’t had, at any time, the same sort of relaxed
feeling in inter-firm cooperation that I had with them.
We would split up topics, one would do one and one would
do the other, divide oral arguments and arrange
everything for our mutual satisfaction.
Who were the lawyers at Crowell & Moring?
– 152 –
Mr. Gardner: Chiefly, John MacLeod. They being a much larger and much
more specialized firm, he was their mining man.
Oh dear, Abercrombie v. Davies, deserves a moment’s
mention. After my client, Ralph Davies left the
government Standard Oil refused to make him president
when they had a vacancy. He would have succeeded
normally, as Executive Vice President, but he had
antagonized much of the oil industry as Petroleum
Administrator for War. It was a source of pride rather
than regret that they wouldn’t take him back.
In any event, he formed something called American
Independent Oil Company consisting of one wealthy
individual in addition to himself and, I think, eight of
the then smaller oil companies, such as Ashland and
Signal Oil & Gas, and also one virtual, if not complete
major at that time, Phillips Oil Company. As it later
developed, it was an impossible combination because
neither Phillips nor Davies were at all accustomed to
having anyone differ with them and the internal quarrels
grew great. Davies had attempted to build a firm
alliance of the smaller companies against Phillips’
domination and had agreements that they would both vote
together and their representatives on the board of
directors would act together.
Ashland, I think, decided to break the agreement
and then to join the Phillips side of the controversy
and there followed an enormous amount of litigation
starting in California. The board was meeting in
– 153 –
Chicago, when Ashland defected. I went out there and
spent a day drafting a complaint, and dictated it over
the telephone to a friend in the Mccutcheon office. I
went on to San Francisco the next day, and got the
injunction from the state court in California.
But then the Phillips group began litigation in
Delaware, which went on for a year or two through all the
Delaware courts. In the end we lost. And, I think,
probably inevitably had to lose. In the first place, you
can’t make an agreement binding the directors’ discretion
and in the second place, the stockholders agreement
required under Delaware law that it be posted and made
public in either Wilmington or Dover, I forget. So we
lost it, but then there was a face-saving agreement
settling some additional litigation we had brought in
California. The agreement settled that Davies remained
as chairman and maybe one or two minor things. As
chairman Davies was entitled to bring an attorney to the
directors’ meetings, which is an odd quirk of the law.
The reason it was the rule was itself an oddity;
there was a large treatise on corporation law, a standard
treatise, the name of which again I forget, but they had
reported a Louisiana lower court case in the middle of
the 19th Century where the court held that chairman of
the board could, of course, bring his attorney to the
board. There was no other law other than that
Louisiana case which had been embalmed in the
– 154 –
corporate treatise.
I was allowed to attend and it was a delightful
experience. The directors were each the chief operating
officers of the oil companies and they had an expertise
in the oil business no other board of directors had ever
had. They worked in complete, expert harmony. Unless it
got to be an issue involving Phillips’ control or Davies’
control in which case the animosity was extraordinary,
and so extraordinary indeed that the rest of the
companies eventually bought out Davies stock. I guess
the amounts are relevant. He had paid $1 million for it
in a non-recourse note and hadn’t repaid the note, of
course, but they bought the stock for $10 million. And,
got rid of a thoroughly disagreeable addition to the
board and there my knowledge of the oil industry stopped.
No, actually it didn’t, I was later on the board of
Natomas, but that was after a ten year interval. Aminoil
found oil in Kuwait and built quite a large operation
there. Davies would never go to Kuwait. He never saw
his project underway because he had a conviction that if
he went there he would have to go to gala dinners in
which Arabs with unwashed hands would dip into the pot
and pull out sheep eyes.
– :ss –
Mr. Schultz:
Mr. Gardner:
INTERVIEW NO. 6
(January 26, 1998)
1968-1990
Today is January 26, 1998. We are in Mr. Gardner’s home,
and we are going to continue discussing private law
practice. Mr. Gardner, let me start by asking you about
your work with the Administrative Conference of the
United States during the 1970’s and 1980’s. Maybe you
could begin by explaining what the Administrative
Conference is and what your participation was.
The Administrative Conference, pursuant to a statute,
enacted I believe in 1966, was supposed to be sort of a
convention of government lawyers, professors, and
attorneys in private practice. For about two years
President Johnson did nothing about it, but finally
appointed a director and a governing council. The
council included Walter Gelhorn, who was in effect the
guiding light of its work throughout its nearly 20 year
existence. I was made a member, members being private
practitioners rather than government officials who were
so-called public members. Private attorney members were
appointed for a two year term and I was appointed to and
then made Chairman of the Committee on Informal Action
which was a fascinating subject. I was reappointed for a
number of terms and resigned about 1978. In a year or
two later I came back as a senior member. I was allowed
– 156 –
to listen and to talk, but not to vote.
Informal action, as you know, occupies most of the
‘s activities. I created the fact that 90 percent of
what the did, it did by informal action. I once stated
that in a small article on the Administrative Conference
and then Paul Verkuil quoted me for that 90 percent
figure and Ken Davis then quoted Verkuil for the 90
percent figure and I ended up quoting them both. So it
was by then an incontestable fact.
On the Committee was Ken Davis. I thought surely
he’d been asked to be Chairman but said no. He was the
outstanding expert on informal action and was well aware
of that. I was Chairman. We had at least an eight year
quarrel over two basic propositions. He wanted to
eliminate all discretion, in particular prosecutorial
discretion, and I was violently opposed to that since I
considered that a prosecutor’s discretion was one of the
most important foundations of a sensible government
concerned with civil liberties.
I had an aspiration that with sufficient work and
sufficient talent one could produce an informal procedure
act equivalent to the Administrative Procedure Act as a
way of crystallizing at least the basic standards that
ought to apply and Ken thought that was silly. We had an
eight year contest over each of those. Neither of us
winning, except that nobody ever undertook the
formidable task of drafting an informal procedure act.
Roger Crampton as Ghairman gathered a number of
– 157
outstanding professors and we had a weekend “retreat” or
meeting to discuss it. The professors in general agreed
that. it was a job that should be tried but none wanted to
do it himself.
By and large I think the conference gave a pretty
large amount of good but nothing spectacular. In my
committee we discovered the most useful thing to do was
approach a particular agency and study it carefully with
a competent man and provide particularized
recommendations. One example being the SEC no-action
letters. They were SEC advices responsive to inquiries
of what was legal or not legal and they were not made
public. Only the person who made the inquiry got the
answer except if you were one of half a dozen large New
York firms. They pooled all of their answers and they
had a library which no one else in the country had. In
any event, we got the SEC to make them public as a
routine matter, which I considered probably a good thing.
And so it went in our Committee. We accomplished very
little in general solutions, but a modest amouilt of good
in particular instances. About the same thing occurred
in the other Committees. The Congress was never
interested in the work of the Conference and
eventually about three or four years ago eliminated its
funding. One Congressman, his name I forget, had been
trying to accomplish that for two or three years on the
express ground that the Conference was useful
initially in teaching people how to draft
– 158
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
regulations, but now tha t they knew, they didn’t need a
Conference to teach them how.
•The Conference at first had some very good Chairmen.
The first Chairman was Jerry Williams, who was not
notable. He was Dean of the Texas Law School and is now
on the Fifth Circuit. Then there was Roger Crampton who
was at the University of Michigan. I can’t remember
whether he was Dean or not.
He was Dean of Cornell at some point, I believe.
After his Adm inistrative Conference job he went off to
Cornell as a Dean and I think he’s now given up the
Deanship and is teaching there. He was admirable. Then
Nino Scalia who was also very good. I believe he was a
Nixon appointee. He had been in the government in a
fairiy obscure position. He was very good but I didn’t
find him as enterprising as Crampton had been.
Can I interrupt to ask you, what did you mean you didn’t
find him as enterprising as Roger Crampton?
Crampton had ambitions for the Conference. Taking up
projects and taking a very active interest in them.
Scalia was more hesitant about adopting new programs or
objectives than was Crampton. I think he was obviously
able and I liked him very much and I can’t at this point
explain in any detail why I thought that Crampton was
better in the job. The Chairmen who followed Scalia were
not very inspiring. For one example: the annual
meeting had been accustomed to having the Attorney
General or someone of comparable repute address the
– 159 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
meeting. Loren Smith, when he was Chairman, decided to
reach to the truly upper strata and he had speak to us
the judge on the radio or television program, People’s
Court or something.
Judge Wapner or somebody like that?
That’s the fellow. It was insanity rising to the highest
possible levels. When I came back I forget who was
Chairman. I was assigned to some committee chaired by
the General Counsel to the Commerce Department. I forget
his name, but he was a first class bureaucrat. He had an
assistant who came to meetings with him and did all the
work, thus requiring no thinking of his own.
What significant impact do you think it had, if any?
A vague and hard to measure impact in forcing the General
Counsel of the deparcments and agencies to take a little
walk with you and consider the impact of their work on
the affected people. In general, get their eyes
appropriately focused beyond the immediate programs to
which they were committed. I think it was useful and
good in that sense, but I also think it had no lasting
impact. Probably, we’re about where we would have been
anyway.
Mr. Gardner, I want to change the subject and ask you now
about a case you handled in the late 1960s called
Fortnightly, which I guess was ultimately argued in the
Supreme Court.
I didn’t handle the case. It was a very important case
for the broadcasting industry relating to whether or not
– 160 –
the cable industry could pick up broadcast programs and
carry it on without copyright or royalty obligation to
the broadcaster. One of the usual counsel for the
broadcasting people, Vernon Wilkinson by name, felt that
they ought to get before the Court a brief written by
someone who didn’t know anything about the technicalities
on the assumption that ignorance would permit him to
communicate more effectively with the Court than could
one with expertise. So, as I had plenty of ignorance
they came to me. The National Association of
Broadcasters asked me to write a major amicus curiae
brief. I don’t believe amicus briefs are very
influential but in this case I thought it might well be
because of the challenging subject.
‘l’he broadcast interests were on the sidelines. The
parties were a cable station and the American Association
of Copyrighters. I can’t remember the exact name. They
had Louie Nizer who was a self-proclaimed outstanding
attorney. The problem was that he had won in the
District Court, Southern District of New York, and he’d
won in the Court of Appeals, and the broadcast industry
was feeling fairly confident. I was not so confident and
thought that they would lose in the Supreme Court if they
didn’t make some very considerable concessions and seek a
lesser goal. I forget what the smaller objective was
that I was seeking. In any event, the broadcast
systems reacted violently to the suggestion that the
National Association of Broadcasters should ask
– 161 –
for a smaller pie than they already had, because they
could see otherwise nothing but disaster. I went up to
New York with a couple of assistants and from 10:00 a.m.
until 8:00 p.m. had a quarrel with the General Counsel of
the three Associations. At 8:00 p.m., I finally got up
and said that the only thing I knew about the television
industry was how to turn the damned box off, and that we
were going home.
I modified our position quite a bit, probably too
much, and only later did I discover that the broadcasters
who were our client were really independent of the
networks. ABC, CBS, and so on sounded awfully important
from the outside, but the broadcasters were not all that
impressed by them. In fact, I probably could have had my
way completely had I realized the power st:ruct.ure more
clearly. I was out of sorts by then and I did not go
down and listen to the argument, but my assistants did
and they said that Nizer, who had just finished writing a
large book explaining how to be a brilliant lawyer, read
his argument to the Supreme Court, which is the surest
way in the world to put the Justices to sleep or
virtually to sleep and to destroy all their interest. He
did a wretched job and the broadcast industry lost the
entire issue and the cable industry ended up without any
obligation to the broadcast industry for picking up the
broadcasts and carrying them on.
I think it has been at least twenty years since
– 162 –
Mr. Schultz:
then; I have not been approached by anyone in the
broadcast industry or the television industry to do
anything. I”ve been persona non grata for many decades
and I’ve have concluded when you’re dealing with the
television industry the image is a lot more important
than the fact. I was prepared to give up what they’d
thought they had won in the lower courts, and my
disloyalty was made worse when it later developed that I
was right.
episode.
In any event, it was an entertaining
Do you think that’s often true in law practice that the
client cares as much or more about your just being on the
client’s side than about the quality of the legal
advice?
Mr. Gardner:· Well, one I think obviously is a factor, but I think what
is more important if the lawyer can somehow make himself
even a minor celebrity. If he becomes famous his
professional career in private practice is pretty well
Mr. Schultz:
assured. Some very able lawyers who are not well known
continue obscure in the public’s eyes. A lot of terrible
lawyers who are well-known … I’m not going to go any
farther in that direction. We both could find
examples.
Well speaking of high-profile situations, let’s talk a
few minutes about Anita Hill. That issue arose near the
end of your career. Can you tell us how you came to be
part of Anita Hill’s legal team.
– 163 –
Mr. Gardner: I have been a friend of John Fran k for many, many years.
He is a slightly younger lawyer. I worked with him when
he w?s in the government. I tried to have him hired for
the Solicitor General’s office when that was my concern.
And he went out to Phoenix because he had or was thought
to have bad lungs, I think. And from being a bright very
liberal youngster he’d become, I think, the most
prominent attorney in practice in Arizona and was very
good and has combined to an unusual degree his liberal
activities with corporate representation.
He’s a trying man sometimes but anyhow we’d known
each other for years. He was active in opposing the Bork
nomination, active and reasonably effective. When Anita
Hill stumbled into these hearings unexpectedly and on
very short notice she was advised initially by one or the
other or both of two lady law professors here in the
District who in turn recommended that she approach John
Frank to get his help. And he immediately agreed.
I think the hearing was to start on a Thursday and
this was on a Tuesday and by the end of Tuesday he got to
thinking that his Bork activities would be prejudicial to
Anita in this hearing if he took a prominent part. So he
set about to find someone to serve as a stalking horse,
preferably an establishment lawyer in Washington who
could add a note of respectability. He tried one very
prominent lawyer, I think with a reputation for
liberal causes, and he said, oh yes, he’d like to but he
was a little busy at the time and couldn’t.
– 164 –
His partner told me later that he regretted that he did
bow out. So then, Tuesday night, John tried me and I
said., sure I’d help. And, on Wednesday noon, I guess, I
joined Frank and Anita and the two lady law professors
I’m a little hazy on their names which is why I’m being
obscure; my memory is not as good as it ought to be, and
also Charles Ogletree the very energetic black attorney,
who had just gone up to Harvard to teach. He was very
able and very frenetic, on a deadline all the time. John
Frank has some tendencies in that direction.
It was not at all clear to me what I was supposed to
do and it wasn’t at all clear to anyone what they were
supposed do to. There was very considerable
disorganization. It was not clear at least to me or
anyone else, whether Frank or Ogletree i·1as in charge.
They didn’t differ but they dashed about conducting their
own enterprises and there was not a great deal of
coordination.
I went over Anita’s statement. The establishment
attorney who didn’t want to be seen in public and I each
objected to her graphic and precise account of
disagreeable things like pubic hairs on the coke can that
had been told to her by Thomas. We thought she ought to
be more polite about it and use vague terms. But she had
her view and no one can say it was wrong. Since she was
telling what Thomas had said, she thought she ought to
say exactly what it was. It gave her considerable
– 165
discomfort but not enough to convince her that she ought
to soften the account.
I decided that the only thing that I could see that
I could do usefully, because I was not her principal
advisor by any means, was simply to listen to the
opposing testimony and, if anything developed to try to
do something about that. The opposing testimony, I
thought, was unreliable and distasteful, but what could I
do about it? I had no client on the stand, and I
couldn’t interrupt the testimony of the Thomas advocates,
particularly since when Anita wasn’t present I had been
moved out of the central location into the general
audience by the staff of the Committee.
The pro-Thomas testimony was uncontested by the
Democratic Senators. Neither that nor the
disorganization, lack of clear program on Anita’s side,
seemed to me at the time to be disastrous. She was a
splendid witnes$, evidently sincere, calm and collected.
I haven’t seen more than two or three witnesses in my
many years that I found as satisfactory as she was and
the Committee, I think, had much that feeling. The
Democratic side was warm and outspoken in complimenting
her and the Republicans to a degree joined in.
Then they started back with Thomas. We were badly
outdone in timing the witnesses. I was so innocent of
public relations, that I didn’t realize at the time, and
wasn’t in control anyway, the Republican side of the
Committee had maneuvered it so that Thomas had all the
– 166 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
evening hours, the television hours. At the start of the
hearing, Anita had been scheduled to go first and the
Comm?ttee asked if it would be alright if Thomas went
first. Well, I was the only one around that the lady
professors could ask because Frank and Ogletree were
tearing off on their own projects and again in my
innocence I thought that’s good, we’ll find out what he’s
going to say. I didn’t realize that we were being led
into a trap. Thomas testified first, then Anita, then
Thomas testified again rebutting Anita in the evening
hours, and that’s where the nonsense about the technical
lynching of a poor black man was paraded.
Right.
When people are in a repetitive sitting situation, for
reasons that are not clear to me, they general l.y tend to
go back to the seat they had the first time they were
there. The first time we sat down Ogletree was
immediately back of Anita. Frank was in the back row,
his objective being to keep out of the public attention.
So I sat one seat removed in the row behind Anita. The
television cameras were set up in a corner of the room so
as they got a picture of Anita they couldn’t help but get
a picture of a white-haired, broken down, white honky
over her shoulder, and it made a pretty good aesthetic
contrast.
So it sounds like she took the lead in her testimony.
She didn’t take directions as to what she would say at
all. All the Republicans, and Specter oddly enough in
– 167
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
particular, would accuse her of going back and being
instructed by lawyers how to perjure herself, or how to
avoid it in the next session. She, in fact, during the
recess period went off with her priest, her minister or
whatever he was, in a room by herself and didn’t have any
contact with the lawyers. I never had any doubt as to
the honesty and the sincerity of her testimony. I”ve not
been too happy with her subsequent career, but to a
degree she is perhaps naturally exploiting her experience
and the prominence that it brought her. She had the
misfortune of having Senator Boren become the President
of University of Oklahoma. He was one of the Senators
who voted to confirm Thomas.
Other than the timing of her testimony is there anything
you would have wanted done differently in hindsight?
There certainly is. Biden was so much a neutral, and so
anxious to show everyone, particularly the Republicans
that he was completely impartial, that he, in effect,
allowed the Republicans to dominate the hearing. And
then on the Democratic side, there were a lot of nice
gentlemanly people, ineffective as compared to the
effective, unscrupulous attacks of Hatch and tall fellow
from Wyoming.
Simpson?
Simpson and Specter. The one effective man on the
Democratic side had chained himself into silence. It
was Kennedy, and the hearing came just after he had taken
his nephew out ori that trip to Miami, no I guess
– 168 –
it was a Palm Beach bar, and the Smith episode was very
prominently in the press then. Only once did Kennedy get
so impatient that he burst into speech. Had he been able
to talk throughout the hearing it could have gone in a
different direction.
Then Biden, for example, agreed that it was a very
difficult area and that no one could ask Thomas about
anything other than what had happened when he was
actually at the office. Well, we didn’t have the Clinton
atmosphere then and no one expected that Thomas would be
engaged in lewd contact in the office. In any event, all
the supporting material of conduct outside of the office
was irrelevant under the Biden rule. And then there was
strong supporting testimony from another girl who had
been fired. Because she had been fired, Frank, I chink,
or Ogletree, I don’t remember which, did not want to call
her. And she would have been a good witness indicating
roughly comparable experiences. That was a mistake; I
don’t know of any other mistakes.
It was a disorganized thing. There were four other
witnesses designed to support Anita Hill. Not major but
minor ones. Ogletree thought it was good to call the
hearing closed at about 2:00 a.m. Monday morning as I did
indeed myself and so we agreed not to have Anita come
back, not to call on her witnesses and not to try to
squeeze them in under Biden’s time bar, which was
probably a mistake. We weren’t as far ahead as we
thought we were. In any case, it wasn’t the hearing; it
– 169
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
was the fact, oddly enough, that the black vote was
terribly important to a group of eight or ten of the
Senators who voted for Thomas and the black community was
supporting Thomas, so the hearing itself would have made
no difference.
Ultimately, it was one or two votes, I think, that
determined it.
The final vote was 52 to 48.
Right, my recollection is here there was at least one
Senator that could have gone the other way if it would
have made the difference. It was very close.
But, I like to say that when I win a case, I have one or
two people watching and when I lose one I have 20
million.
That I think wraps up the specifics of Shea & Gardner.
I’d like to just give you the opportunity to reflect on
private practice in Washington and to compare private
practice to your service in the government.
Well, first the comparison is easy. The variety of
issues, the excitement, the feeling what you’re doing
makes a major difference, all line up on the side of
government service, as you know. Your basic trouble with
government service is as you advance through the ranks,
you pretty soon get to a point where the political
foundations are of first importance. I went in to the
government service being a nonpartisan, belonging to
neither party, and stayed in that condition despite
occasional embarrassment when I got into the
– 170 –
Senate confirmation stage. It was evident that I
couldn’t continue there. Krug, who was Secretary of
Interior at the time I left, very sincerely but I think
naively, urged that I was in a position of a nonpartisan
Assistant Secretary pretty well acquainted with the
working of the Interior who should stay on whoever
controlled the White House. And it might have been an
opportunity to create something somewhat equivalent to
the British permanent Undersecretary. But I was
confident he was completely wrong in that. Being both
young and an easterner and having already offended two or
three of the western Senators there wasn’t any future in
the Interior Department secretariat.
My major government service, both in time and
perhaps importance, was in the Solicitor General’s Office
which is about the best job a lawyer can have in the
United States. But it was a real wrench to come into
private practice where you were in a sense engaged in
matters of no apparent consequence. But it was a wrench
more or less easily overcome. Any occupation that
requires a lot of work, full attention, is interesting
and rewarding in itself; whether it is a big or a little
matter.
Private practice in recent years has become somewhat
distasteful, I think. The practice of law has become a
business, a merchandising business, rather than a
profession. I overstate slightly but only slightly in
that aspect of the law practice I have not the slightest
– 171 –
Mr. Schultz:
Mr. Gardner:
talent and I don’t think I’ve ever known , and don’t know
now, how to ask somebody to hire me as a lawyer or how to
go about that. Our firm has been among those less
infected by the drive for business development, but we’re
unquestionably infected by it now. So too are many
excellent firms which used to find adequate income
flowing effortlessly to austere, superior polished
people. It’s reasonably evident now that business
developing is critical to most large law firms which
require constant fuel to drive the engines. Even though
it is not possible to escape the business development
aspect, I don’t like it, and I doubt that many of the
people of other firms like it.
What advice would you give somebody coming out of law
school today and looking forward to a career?
Fortunately, I’m not asked to give that advice, but if
they were in a small community with established family
and social connections, and liking the life, then by all
means do a small town practice and not get caught up in a
large law firm. We have lost from Shea & Gardner over
the years probably a score of highly talented young men
and women. They go into government service and stay
there and I think by and large are happy and probably
happier than they would be in private practice. When you
happened to hit a good agency, the SEC used to be,
whether it still is don’t know, and if you’re content
with the prospect of staying put in a mid-level position
and not advancing c?rtainly not to division head level,
– 172 –
and I think these days there’s a political requirement
even at section head level, you can have a good stressfree.
life. There are highly capable men in Justice who
have spent their lives litigating. But again that’s
risky because a bad superior can play hell over them. So
I don’t know.
A large law firm in the first place requires at this
point, I think, eight years as the usual period before
you’re considered for partnership, which is outrageous.
At Charlie Horsky’s funeral the other day my mind went
back to when he and I were in the Solicitor General’s
office together. He and I were the juniors and Paul
Freund, Alger Hiss and Charlie Wyzanski were the seniors,
and they conducted probably the most important litigation
the government’s had in this century. Not one of them
was 30, and not one of them could now be considered at
his age for partnership at Covington or at Shea &
Gardner. Things have not improved.
After that long apprenticeship you end up in a large
firm with a fairly narrow practice area. Most large
firms have a litigation section; if you end up there
you’re a little better off, the work area is somewhat
broader. By and large compartmentalization is not that
attractive.
I have myself been very lucky. As a general
proposition, teaching or government service would
probably be more satisfactory for me than private
– 173 –
practice. I have in fact been happy in private practice,
and happier than I’d have been if I’d tried to stay in
the government, and probably happier than if I’d
undertaken to teach, but I had a lot of underlying and
perhaps undeserved good fortune.
– 174 –
INDEX
Abercrombie v. Davies, 130 A.2d 338 (1957), 153-155
Acheson, Dean, 95, 137, 139, 140
Administrative Conference of the United States, 156-160
Chair, Committee on Informal Action, 156-160
Administrative Procedure Act, 5 U.S.C. 553, 157
Advisory Committee on Lawyers, 89
Agricultural Adjustment Act, 7 USCA 35, 44, 60, 63
Agricultural Adjustment Act case, 44, 60
Agricultural Adjustment Administration, 43
American Association of Copyrighters, 161
American Export Line, 148, 149
American Independent Oil Company, 153
American Law Institute, 20
American President Lines (APL), 130, 132, 145, 146, 148, 149, 152
American President Lines, Ltd. v. Federal Maritime Board, 317 F.2d 887 (D.C. Cir. 1962) 145, 146
American President Lines case (see Dollar v. Lana), 130-133, 143, 145
Aminoil, 155
Anglo-American Oil Treaty, 128, 129
Anita Hill matter, 163-170
Bi den rule, I 69
Public relations and politics in, 166, 167, 169, 170
Senate hearings, 166- I 69
APL (see American President Lines)
Arnold, Thurman, 65-67
Ashland Oil Company, 153, 154
Aydelotte, President (of Swarthmore), 14
Bank of America, 148
Basseches, Bob, 68, 69
Battle of the Bulge,, 111-114
Bazelon, Judge David L., 68-70
Bechtesgarten, 55
Berkeley Law School, I 25
Berle, Adolph, 27, 28, 41
Biddle, Francis, 48, 50, 51, 87, 89, 90
Nuremberg Tribunal, 54
Resignation of, 53, 54
Biden, Senator Joseph, 168, 169
Biden rule, The, 169
Biggs, J. Crawford, 43, 52, 57
Black, Justice, 83, 135
– Al –
Blanshard, Bland, 10
Bletchley, England, 109-112, 115-119
Boalt Hall Law School, 125
Boren, Senator David L., I 68
Bork, Judge Robert H., nomination to Supreme Court, 164
Brandeis, Justice, 65
Brennan, Justice, 135
Brigham Young University, 81
Bristol, England, 150
Brown v. Board.of Education of Topeka, 347 U.S. 483 (1954), 33
Bryn Mawr College, 8
Bureau of Land Management case, 62, 63
Bureau of Reclamation, 128
Burger, Chief Justice, 32, 33, 35
Camp Ritchie Intelligence Camp, 109
Cardozo, Justice, eulogy for, 81- 82
Cathcart, Daniel C., 150
Chapman v. Santa Fe Pac. R. Co., 198 F.2d 498 (D.C. Cir. 1951)(Northem Pacific Railroad and land
grants case), 57, 58
Chapman, Oscar, 120, 121, 128-129
Chek, Chiang Chai, 13 7
Chesapeake Bay Foundation, 136
Civil Service Commission, U.S., 86, 87, 139
Civil Service Commission for Lawyers, 20
Civil Service reform, 86-89
Clark, Judge Tom C., 53, 130
Cleary, Gottlieb, 136
Cleveland, President Grover, 46
Coal Association, 152
Coal miners strikes, IO I – I 04
Cohen, Ben, 39, 76, 77
Cold War, The, 142
Collison, Captain, 103, 104
Columbia University, IO, 17, 19, 23, 24, 27, 88,121
Law Review, 23
Law School, 41, 88, 125, 126, 127
Commons, John R.,. 16, 26
Connolly, Matt, 54
Coolidge, President Calvin, 24
Corcoran, Judge Thomas, 39, 56, 76, 77
Cornell University, 159
Covington & Burling, 173
Cox, Archibald, 51
Cox, Hugh, 39
Cox, Oscar, 87
Crampton, Roger, 157, 159
Crowell & Moring, 152, 153
– A2 –
Cummings, Attorney General William F.:
Eulogy for Justice Cardozo, 81, 82
Roosevelt court packing plan, 72, 75-80
Dahlonega Mint, 6
Davies, Ralph, 127-131, 145, 153-155
Davis, John W., 59, 67
Davis, Ken, 157
Democratic National Committee, 71, 97
Denison Dam case, 52
Devers, General, ·l-I2-114, 117
Dies Committee (Dies Un-American Committee), 95, 96, 138, 142
Discrimination, 37, 38
Dollar Family, 130
Dollar v. Land, 154 F.2d 307 (D.C. Cir. 1946) (American President Lines case), 130-133, 143, 145
Daugherty, Attorney General, 24
Douglas, Justice, 23, 135
Dover, Delaware, 154
Dowling, Professor, 23
Draft Board, I 06-108
Dulles, John Foster, I 40
Earlham College, I
Edinburgh, Scotland, 150
Eisenhower, General Dwight D., 113, 114
Environmental Protection Agency (EPA), 136
Fahy, Judge Charles, 51, 56, 90, 91
Fanelli, Joe, 46
Federal Bureau oflnvestigation (FBI), 96, 138
Federal Maritime Board, 145-147, 149
Federal Maritime Bd. v. lsbrandtsen Co., 356 U.S. 481 (1958) (Jsbrandtsen case), 147, 148
Federal Maritime Commission, U.S., 130
First Amendment and law finn advertising, 135
Fortas, Justice, 43, 96, 97, 99-101, 105, 128
Fort Meyer, I 06
Fortnightly case (Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968)), 160-163
Frank, John, 164, 165, 167, 169
Frankfurter, Justice, 56, 58, 59, 84, 87, 126, 139
Freund, Paul, 39, 42-44, 46, 173
Friendly, Henry, 70
Fuchs, Ralph, 88
Gardner, Acting Secretary of the Interior, 124
Gardner, Bill (son), 136
Gardner, Frank (father), I, 2
Gardner, James (brother), 3
Gardner, Richard (Dicky) (son), 136
Gardner, Warner W.:
Amicus curiae briefs, 143, 144, 161
– A3 –
Anecdotes:
expulsion from Swarthmore, 12-14
intelligence briefing on the Battle of the Bulge, l 12-114
negotiating with striking miners, 103, 104
Bazelon, Judge David L., relationship with, 67, 68, 69
Career (prelaw):
Legislative Drafting Research Fund, 19
teaching:
New Jersey College for Women, 17
New York-University, 17, 19
Rutgers University, 15, 16, l 7
Career:
Department of the Interior:
Anglo-American Oil Treaty, 128-130
Assistant Secretary, 102, 120, 121, 128-130
leaves, 119- I 21
Solicitor of, 37, 38, 93-95, 99-104
coal miners strikes, 101-104
Hawaiian martial law matter, 100-101
Department of Justice
Solicitor General’s Office, 28, 37, 39, 41-43, 46-5 l, 56
briefs, review of, 49, 50
cases, 62-65
Civil Service, reform of methods of hiring lawyers, 86-89
First Assistant, 51, 69
intergovernmental tax immunity, 90, 91
leaves, 89-9 l
notable cases:
The Nudist (magazine) case, 48
Bureau of Land Management case, 62, 63
Dennison Dam case, 52
United States v. Woods, 299 U.S. 123 (1936), 64, 65
policy decisions in, 47
Roosevelt court packing plan, 72-86
age-based justification for, 74, 75, 77, 78
bill submitted to Congress, 82-84
Congressional hearings, 82, 83
drafts bill, 76, 77
effect of, 85, 86
meets with President Roosevelt, 78-80
opposition to, 84, 85
researches, 72-74
workload in, 48
Supreme Court, U.S.:
arguments before, 120
Bureau of Land Management case, 62, 63
Supreme Court, U.S.:
arguments before, 60-63, 120, 144, 145, 151, 152
– A4 –
Department of Labor:
Solicitor, 91-93
Shea & Gardner, 123, 124
Administrative Conference of the United States, 156-160
Chairman of the Committee on Informal Action, 156-158
impact of, 160
Securities and Exchange Commission (SEC) no-action letters, 158
Anita Hill matter, 163-170
major clients, 127, 130-133
notable cases:
Abercrombie v. Davies, 130 A.2d 338 (1967), 153-155
American President Lines, Ltd. v. Federal Maritime Board, 317 F.2d 887 (D.C. Cir. 1962)
145, 146
Bill Warne case, 140-142
Dollar v. Land, 154 F.2d 307 (D.C. Cir. 1946) (American President Lines case), 130-133, 143,
145
Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481 (1958) (Isbrandtsen case), 147, 148
Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) (Fortnightly case),
160-163
In re Surface Min. Regulation Litigation, 627 F.2d 1346 (1980) (Peabody Coal Company’s
cases), 152, 153
McCarthy loyalty cases, 137-142
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), 150-152
Service v. Dulles, 354 U.S. 363 (1967) (John Service case), 139, 140
U.S. v. Gerlach Livestock Co,, 339 U.S. 725 (1950) (Gerlach case), 143-145
WINAC case, 148-150
recruited by Frank Shea, 121, 122
Law clerk to Justice Stone, 23, 36
Gold Clause cases (see Norman v. Baltimore & Ohio Railroad Co.? Nortz v. United States; Perry
v. United States, 25
research and editing, 30-31
Stone’s method of working, 28-31
Stone’s work schedule, 33, 34
Career goals, 16, 26, 42
law school teaching and administration, 121, 122, 124-127
private practice, reasons for joining, 119-122
Children, 122, 125, 136
Early life:
childhood homes, 4
family background, 1-3
family business ventures, 2, 5, 6
on a mining crew, 6, 7
Education:
Columbia Law School, 17-23, 26,
friendships, 19, 20
memorable professors, 19-21, 27
study habits in, 21, 22
work during, 16, 17, 19
– AS –
Columbia University, 10
elementary, 4, 5
Rutgers University:
economics fellowship at, 15-17
Swarthmore College:
awards received, 11, 13, 14
decision to attend, 7, 8
expulsion from, I 2, 13
majors, 8-12
Phi Beta Kappa, 12-14
Westtown School, 2, 5-7, 21
Fortas, Justice, opinion of, 99, 100
Frankfurter, Justice, relationship with, 58, 59
Friendships, 47
Government service:
appreciation of, 114, ll5, 119
compared to private practice, 170-174
politics in, 170, 171
Holtzoff, Judge Alexander, opinion of, 146, 147
Ickes, Harold, opinion in, 94-99
Judges, memorable, 69, 70
Law, practice of:
advertising in, 135
changes in, 133-136, 171-174
effective advoeacy:
memorable advocates, 56-59, 67
oral argument, 60-62, 162
private practice compared to government service, 170-174
Lewis, Fulton, 141, 142
Lewis, Judge John L., opinion of, I 04, 105
Supreme Court, U.S.:
arguments before, 60-63, 120, 144, 145, 151, 152
Bureau of Land Management case, 62, 63
comparison of today and in the 1930s, 32-35
criticism of modem, 40, 61
workload of, 32-35
U.S. Army career, 95, 96
encounter with Bob Jackson, 55, 56
in Army Intelligence:
Battle of the Bulge, 111-114
at Bletchley, England, 109-112, 115-118
nature of the work, 115-119
recruited, 107-109
Ultra briefings, ll 7, 118
disputes between Draft board and Department of the Interior, 105-109
Washington, D.C., recollections ofin the 1930s, 35-37
Gelhom, Kitty, I 9
Gelhom, Walter, 19, 20, 23, 156
– A6 –
Genoa, Italy, 149
George School, 8
Gerlach case (see U.S. v. Gerlach Livestock Co.), 143-145,
Gold Clause cases (see Norman v. Baltimore & Ohio Railroad Co.; Nortz v. United States; Perry v.
United States), 25
Government Printing Office, U.S., 49, 102
Graham and Morris, I 48
Greenman, Fred, 121
Green Pastures, 2
Griswold, Dean.ErWin, 51
Hale, Professor, 19, 20, 26
Hand, Judge Learned, 70
Harlan, Justice, 25, 26, 69
Harris, Chief Judge, 131-132
Harris, Tom, 70
Hart, Schaffner & Marx National Competition, 11
Harvard University, 58, 165
Business School, 15
Law School, 88
Hatch, Senator Orrin, 168
Haverford College, 8
Hawaiian marital law matter, 100, 101
Heidelberg, Germany, 55
Hill, Professor Anita, 163-170
Hiss, Alger, 43, 45, 95, 137
Political beliefs of, 46
at Solicitor General’s Office, 39, 42, 43, 173
Holland, Tom, 15
Holtzoff, Judge Alexander, 145-147
Horsky, Charles, 39, 42, 43, 46, 47, 63, 173
House Un-American Activities Committee see Dies Committee, 95, 96, 138, 142
Hudson, Manley, 43
Hudson, Mr. (brother of Manley), 42
Hughes, Chief Justice, 62-63, 82
Hughes, Mr., 64
Hurlbert, Professor, 16, 17
Ickes, Harold, 38, IOI, 105-107, 108, 109
Integrity of, 95, 96
Pauley nomination, 96-98
Resigns from Department of Interior, 120, 128
Speech by, 98, 99
In re Surface Min. Regulation Litigation, 627 F.2d 1346 (1980) (Peabody Coal Company
cases), 152, 153
Indianapolis, Indiana, 2, 3
Interior, U.S. Department of the, 93, 94, 96, 102, 120, 124, 128, 143
Iran, 141
Isbrandtsen case (see Federal Maritime Bd. v. lsbrandtsen Co.), 147, 148
Italy, 148
– A? –
Jackson, Bob, 67, 76, 82, 87
Excellence as advocate, 52, 53, 57
as Solicitor General, 50-57, 66, 89
Jackson, Justice, 145
Johnson, President Lyndon Ei., I 00, 156
Justice, U.S. Department of, 102, 103
Kennedy, Joseph, Sr., 130
Kennedy, Senator Edward, 168, 169
Killion, George, 132
Krug, Julius A.,. 99, 120, 171
Kuwait, 155
Labor, U.S. Department of, 37, 44, 91-93, 95, 120
Lake Bonaparte, New York, 6
Lake Waurarnaug, 6
Law clerks on Supreme Court, U.S., 40, 41, 59
Law finn advertising, 135
Legislative Drafting Research Fund, 19
Leventhal, Judge Harold, 70, 71
Lewis, Fulton, 141, 142
Lewis, Judge John, 101-104
Library of Congress, U.S., 138
Llewellyn, Karl, 19-21
Lloyds, 151
London, England, 55
Macfarland, Carl, 50, 75, 76, 80, 81
Macleod, John, 153
Madden, Warren, 45
Marseilles, France, 119
Marshall, Justice, 151
Marshall Plan, 140
Mccarren, Senator, 132
McCarthy, Senator Joseph, 95, 137, 138, 141
McCarthyism, 95, 96, 137-142
McCormick, Mr., 107
McGowan, Jodie, 68
McGowan, Judge Carl, 25, 68-70
McMahon, Brian, 65
McReynolds, Attorney General, 75, 76
Miami, Florida, 168
Michner, Jim, 15
Montgomery Ward, 87
Morgold, Nathan, 93
Morse, Chairman of the Federal Maritime Board, 148
Munich, Germany, 55
Murphy (Civil Service Commissioner), 87
Murphy,Judge, 132
National Association of Broadcasters, 161, 162
National Labor Relations Act, 29 U.S.C. 164, 45, 63
– AS
Natomas, 155
Navy Department, U.S., 97, 103
New Brunswick, New Jersey, 17
New Deal Lawyers, 38, 39
New Jersey, 16
New Jersey College for Women, 17
New Rochelle, New York, 3-5
New York, New York, 13
New York University, 17, 19, 27
Nizer, Louie, 161; 162
Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240 (1935) (see Gold Clause cases), 25
Norris, Senator George, 98
Northern Pacific Railroad and land grants case (see Chapman v. Santa Fe Pac. R. Co.), 57, 58
Nortz v. United Stales, 294 U.S. 317 (1935) (see Gold Clause cases), 25
Nuremberg Tribunal, 54
Office of Legal Counsel, U.S. Justice Department, 90
Office of Senate Parliamentarian, 23
Ogletree, Charles, 165, 167, 169
Oppenheimer, J. Robert, 142
Oregon, 11
Pauley, Judge Ed, 96, 97
Pauley nomination, 96-98
Peabody Coal Company, 152
Pennsylvania Railroad, 87
Pepper, George Whanon, 56, 57
Perkins, Frances, 37, 38, 91-93, 95
Perlman, Solicitor General, 133
Perry v. United States, 294 U.S. 330 (1935) (see Gold Clause cases), 25
Petroleum Administration, 127
Phi Beta Kappa, 12-14
Phillips Oil Company, 153-155
Phoenix, Arizona, 164
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), 150-152
Powell, Justice, 25, 26, 35, 69
Presidents of the United States:
Cleveland, Grover, 46
Coolidge, Calvin, 24
Johnson, Lyndon B., 100, 156
Roosevelt, Franklin Delano, 56, 76, 78
Truman, Harry F., 53, 54, 96, 97, 120, 128
Pressman, Lee, 43
Prettyman, Judge E. Barrett, 130
Quaker religion, 8
Rauh, Joe, 39, 76, 77
Raum, Arnold, 51, 66
Reconstruction Finance Corporation, 27
Red Scare, 95, 96, 137-142
see also McCarthyism
– A9
Reed, Stanley:
Solicitor General, 45, 52, 60, 86, 87
assigns work, 50, 57, 63
Gardner, hired by, 27, 28, 41, 42
Roosevelt court packing plan, 72, 76, 79
Reed College, 11
Reilly, Judge Gerald D., 91
Rhelts, Ed, 139
Rhine River, 114
Richmond, Indiana;·
Robinson, Senator Joseph, 83
Rood, Les, 111, 118
Roosevelt, President Franklin Delano, 56, 76, 78
Court packing plan, 72-86
Roosevelt, Jimmy, 76, 80
Roosevelt Administration, 22
Roosevelt Brain Trust, 41
Roosevelt court packing plan, 72-86
Rosenman, Sam, 78
Rowe, Jim, 39
Russia, 142
Rutgers University, 15-17
Sacramento River, 143
San Francisco, California, 6
San Joaquin River, 143
Sawyer, Charles, Secretary of Commerce, 132
Scalia, Justice, 70, 159
Securities and Exchange Commission (SEC), i 72
Securities and Exchange Commission no-action letters, 158
Segregation:
in U.S. Army, 106
in Washington, D.C., 36-38
Senate Judiciary Committee, 132
Service, John, 95, 96, 137, 139
Service v. Dulles, 354 U.S. 363 (1967) (John Service case), 139, 140
Sharon, William H., 149, 150
Sharp, Rich, 150, I Ji I
Shea & Gardner, 172, 173, 124
Management of finn, 123
Type of practice, 133, 134
Unique character of, 134
Shea, Frank, 43, 50, 90, 121, 123
Shipping Act, 148
Sidley & Austin, 134
Signal Oil & Gas, 153
Simpson, Senator Alan, 168
Smith, Dean Young 8., 18
Smith, Judge Loren, 160
– AlO
Smith, Marvin, 42
Smith episode, 169
Social Security Act, 42 U.S.C 401, 63
Solicitor General’s Office, 27
Antitrust Division, 49, 66; 82
Claims Division, 50
Criminal Division, 49, 65
Differences among Solicitor Generals, 50-53, 56
Divisions of, 49, 50
Fahy, Judge Charles, 51, 56, 90, 91
Freund, Paul, 39, 42-44, 46
Hiss, Alger, 39, 42, 43, 45, 46
Horsky, Charles, 39, 42, 43, 46, 47, 63
Lands Division, 49, 81
Macfarland, Carl, 50, 75, 76, 79-81
Notable cases:
Bureau of Land Management case, 62, 63
Dennison Dam case, 52
The Nudist (magazine) case, 48
United States v. Wood, 64, 65
Personnel in, 42-47
Policy decisions in, 47
Raum, Arnold, 51, 66
Solicitor Generals:
Biddle, Francis, 48, 50, 51, 53, 87, 89, 90
Biggs, J. Crawford, 41, 43, 52, 57
Cox, Archibald, 51
Griswold, Erwin, 51
Jackson, Bob, 50-57, 66, 89
Perlman, Philip B., 133
Reed, Stanley, 27, 28, 41, 42, 45, 50, 52, 57, 60, 63, 72, 76, 79, 86, 87
Tax Division, Department of Justice, U.S., 65-67
Workload of, 48
Wyzanski, Charlie, 39, 42-47
Solicitor of the Department oflnterior, U.S., 141
Sorenson, Ted, 36
Souter, Justice, 26
Special Branch, Army Intelligence, 107, I 08
Specter, Senator Arlen, 167, 168
Standard Oil Co., 127, 153
Stanford Law School, 124
Stem, Bob, 60
Stevens, Justice, 35, 86
Stone, Justice, 23-27, 36, 69, 75
as Attorney General, 24
Method of working, 28-31
Opinion of J. Crawford Biggs, 52
Opinion of Roosevelt court packing plan, 85
·All ·
Work schedule, 33, 34
Strasbourg, France, 119
Strauss, Mike, 128
Strong, General, I 13, I 14
Sullivan and Cromwell, 24, 87
Sumner Retirement Bill, 83, 84 (N/A)
Supreme Court, U.S.:
Comparison of Court today and Court in the 1930s, 32-35
Criticism of, 40
Gardner argues cases before, 60-63, 120, 144, 145, 151, 152
Justices’ conferences, 34
Justices:
Black, Hugo L., 83, 135
Brandeis, Louis D., 65
Brennan, William J. Jr., 135
Burger, Warren E., 32, 33, 35
Cardozo, Benjamin N., 81
Douglas, William 0., 23, 24, 135
Frankfurter, Justice Felix, 56, 58, 59, 84, 87, 126, 139
Harlan, John M., 25, 26, 69
Hughes, Charles E., 62, 63, 82
Jackson, Robert H., 145
Marshall, Thurgood, 151
Powell, Lewis F., 25, 26, 35, 69
Souter, David H., 26
Stevens, John Paul, 35, 86
Stone, Harlan F., 23, 52, 69, 75, 85
Thomas, Clarence, 165-167, 169
Van Devanter, Willis, 83
White, Byron R., 69, 86
Law clerks, 40, 41, 59
National Labor Relations Act, cases on constitutionality of, 45
Notable cases:
Agricultural Adjustment Act case, 44, 60
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), 33
Bureau of Land Management case, 62, 63
Chapman v. Santa Fe Pac. R. Co., 198 F.2d 498 (D.C. Cir. 195 l)(Northern Pacific Railroad
and land grants case), 57, 58
Gold Clause cases (see Norman v. Baltimore & Ohio Railroad Co.; Nortz v. United States;
Perry v. United States), 25
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), 150-152
United States v. Woods, 299 U.S. 123 (1936), 64, 65
Predictability of, 25
Roosevelt court packing plan, 72-86
Workload of, 32-35
Surface Mining Act of 1978, 152
Swarthmore College, 7, 8, 15, 129
Taylor, Telford, 107, 108
– Al2
Teacher (Jesse), 21
Teapot Dome Scandals, 24
Texas Law School, 159
The Nudist (magazine), 48
The Nudist (magazine) case, ·48
Thomas, Justice Clarence, 165-167, 169
confinnation hearings, I 66-167
Thompson, Mayor William Hale, 98
Traynor, Chief Justice, 125
Treasury, U.S. Department of the, 87, 91
Truman, President Harry F., 53, 54, 96, 97, 120, 128
Ultra intelligence operation, 117, 118
Union Anny, 1
United States v. Woods, 64, 65
U.S. Court of Appeals for the District of Columbia:
Ideology of, 70
Judges:
Bazelon, David L., 68-70
Clark, Bennett Champ, 130
Leventhal, Harold, 70, 71
McGowan, Carl, 25, 68-70
Prettyman, E. Barrett, 130
Scalia, Antonin, 70
U.S. Court of Appeals for the Ninth Circuit:
Judge, Murphy, 132
U.S. District Court for the District of Columbia:
American President Lines, Ltd. v. Federal Maritime Board, 317 F.2d 887 (D.C. Cir. 1962)
145, 146
Judge:
Holtzoff, Alexander, 145-147
U.S. v. Gerlach Livestock Co., 339 U.S. 725 (1950) (Gerlach case), 143-145
United States v. Woods, 299 U.S. 123 (1936), 64, 65
University of:
Colorado Law Review, 37
Manchester, 9
Michigan, 159
Oklahoma, 168
Virginia School of Law, 50, 81
Wisconsin, 16
V.E. Day, 55
Van Devanter, Justice, 83
Vassar College, 138
Verkuil, Paul, 157
Wapner, Judge Joseph, 160
Warne, Bill, 140, 141
Warren, Bill, 126
Washington, D.C., 4
In the 1930s, 35
– A?3
Segregation in, 36-38
Wechsler, Herbert, 19, 20, 88, 89
Weinfeld, Judge Edward, 45
Westtown School, 2, 5-8, 21
Westwood, Howard, 28
White, Justice, 69, 86
Wiener, Fritz, 57, 58
Wilcox, Professor, 129
Wilkinson, Vernon, 161
Williams, Jerry, l.S9
Wilmington, Delaware, 154
Wilson Administration, 75
WINAC case, 148-150
Winslow, Camilla, 1-3
Wood, General, 87
Wyzanski, Charlie, 39, 42-47, 84, 173
Yale Law School, 88
Yale University, 24
Young Communist League, 138
– Al4
Appendix A
Oral History Interview with Warner Gardner
by Jerry N. Hess
Harry S. Truman Library
June 22, 1972
Oral History Interview
with
WARNER W, GARDNER
Solicitor, U.S. Department of the Interior, 19?2-?3
and 19?5-ij6, and Assistant Secretary of the Interior,
19ij6-ij7.
Washington, D.C •
. June 22, 1972
by Jerry N. Hess, Harry s. ‘Iruman Library
The Harry S. Truman Library
Independence, Missouri
August, 1972
WARNER W. GARDNER
…
Ir
NOTICE
This is a ·transcript of a tape-recorded interview conducted
for the Harry s. Truman Library. A draft of this transcript was
edited by the interviewee but only minor emendations were made;
therefore, the reader should remember that this is essentially
a transcript of the spoken, rather than the written, word.
RESTRICTION
This transcript may be read, quoted from and cited by researchers
and may be reproduced for purposes of research. Publication
rights, however, are retained by the Harry S. Truman Library.
Oral History Interview
with
WARNER W. GARDNER
Washington, D.C.
June 22, 1972
by Jerry N. Hess, Harry S. Truman Library
HESS: For the record, sir, will you give me a little of your
personal background?
GARDNER: Yes, I was born in 1909 in Richmond, Indiana. My
family moved about a great deal during my youth, ending
up in New York City and New Rochelle, New York. I went
to Westtown School, a Quaker preparatory school in
Pennsylvania for five .years, and then to Swarthmore
College, graduting in 1930. To escape unemployment I
took graduate work on a fellowship at Rutgers University,
receiving a Master of Arts Degree in 1931. From there
I went to Columbia Law School, graduating in 1934.
There followed about.thirteen years of Government
service, starting with one year as law clerk to then
Justice (Harlan Fiske] Stone on the Supreme Court; then
about six years in the office of the Solicitor General
at the Department of Justice, where I was an attorney
and t?en first assistant to the Solicitor General. I
served under three: Stanley Reed, Robert Jackson and
Francis Biddle, and very briefly under Charles Fahy.
– 2 –
I went to the Labor Department as Solicitor in
the fall, I belie?e, of 1941, and I was there for
about nine months and went over to Interior Department
as Solicitor under Mr. [Harold] Ickes, where I
was on duty for about a year, and then entered the
intelligence service of the Army where I served for
two years. During that period I was trained at
Camp Richey and the Pentagon, and then assigned to
the British intelligence group which was working in
the Midlands in England, and by them reassigned in
the summer of 19?? to the 6th Army group, under the
command of General (Jacob Loucks] Devers. I was his
intelligence officer in respect to the specialized
intelligence which the British were producing. At
the conclusion of the European hostilities I came
back to the Pent agon, and as it was evident to me that
I would never learn enough about the Japanese army to
be of any use to anyone, I did nothing for the summer
and returned to the Interior Department, again as
Solicitor, about October the lst of 19?6. I found
some of the same problems on m y desk that I had left
two years before.
HESS: They were waiting for you.
;
0> / l,
– 3 –
GARDNER: Yes. I resumed service as Solicitor to Mr. Ickes.
No, I believe it was in 1945 when I came back to the
. rnterior Departmerit. I resumed service with Mr. Ickes
until his somewhat tempestuous resignation as Secretary
of the Interior and became Assistant Secretary under
Julius Krug who succeeded Mr. Ickes, and stayed in
that position until July of 1947 when I left and came
to what io now Shea and Gardner, where I’ve been ever
since.
HESS: All right, now moving back, you mentioned the names
of four very interesting men who were Solicitors General:
Stanley Reed, Robert Jackson, Francis Biddle and Charles
Fahy. Would you tell me a little about those fciur men
and if you were called upon to rate them at the job of
Solicitor General, their administrative ability, etc.,
how would you rate them?
GARDNER: The first position is very easy. Robert Jackson,
who was by all odds the most satisfactory man that I
have worked for. I was, I believe, his first assistant
from the start or shortly after he came in, and we had
an extraordinarily satisfactory working relation from
my viewpoint. He left the day-to-day conduct of the
office to me without interfering; and yet whenever I
– 4 –
needed help, as regularly a couple of times a week
I would, he was available and invariably helpful.
Beyond that, he was a d istinguished advocate, an outstanding
lawyer all told, and my period with him was,
as I say, quite the most satisfactory that I’ve had
with any superior.
HESS: Did you ever have any conversations with him in
later years about his duties at Nuremberg and the
Nuremberg trials?
GARDNER: No, we were never close personally, and I am by
no means clear that I even saw him after his return
from Nuremberg. It was also a matter of some delicacy.
If I did see him I wouldn’t have mentioned it. My
partner, Francis Shea had been over there as his
.. first assistant, and had .left for reasons which he
has never mentioned.
HESS: •And about which you have not inquired.
GARDNER: And as to which I have not inquired.
On Nuremberg, I should say that immediately after
V-E Day, I began working very hard to get back to the
United States, and I got as far as London by the first
of June. I was told that Jackson was searching for
– s –
me for his Nuremberg staff, which was the last thing
in the world that I wanted to do, and I hid out in
London leaving word where I could be found if the Air
Force called me, but no one else.
HESS: Why didn’t you want to become involved in that matter?
GARDNER: I had been away from home for eighteen months
was the primary reason. Second, I was by no means
clear that I approved and I certainly was not enthusiastic
about the conduct • • •
HESS: About the war crimes trials? What is your view today?
GARDNER: It’s about the same. It’s a very dubious undertaking
to make the law after the crime has been committed.
In a way, it’s rather worse to do it with a
panoply of procedural rights and protections in due
process than it would be by summary execution, which you
put aside as military excess, and it didn’t affect the
structure of the law to the extent that papering it
over with perfectly evident laws, but nonetheless made
after the event,
In any case, as I was on the way back, I finally
got a seat on the plane going out of Prestwick and I
boarded a plane in London to go up to Prestwick, I
– 6 –
saw an empty seat and noticed there was a man in
civilian dress, and thought very little of it and
sat down next to him. After awhile I looked up and
it was Robert Jackson whom I had been hiding out from.
He was, however, very considerate and I explained that
I’d been away from home long enough, and he canceled
the request he’d put in with my superiors in the Pentagon.
So I never saw any part of Nuremberg.
HESS: How would you rate the other three gentlemen: Mr.
Reed, Biddle and Fahy?
GARDNER: Reed is a very solid lawyer, a very careful workman.
He wasn’t a brilliant advocate, but was to my mind a
very good and satisfactory man to work for.
Mr. Biddle was a completely charming man;to work
for. Perhaps his essence is best caught in one episode.
One of our duties in the Solicitor:Ge?eral’s
office was to authorize appeals, when the Government
lost a case in the district court. The Post Office had
lost a case in which they banned from the mail a nudist
magazine, and they had been enjoined in the district
court and wished to take an appeal. I said that they
couldn’t and they demanded an interview with the Solicitor
General before a final.decision was reached, and I
– 7 –
said, “Certainly.” We set up an interview in which
about eight people from the Post Office came over and
?xplained that Mr. Biddle’s young man did not wish to
authorize an appeal here. They handed him the nudist
magazine in question. For a good fifteen minutes he
looked at it, turning over page by page, skipping none,
and at the conclusion announced his judgment, which
was, “They’re pretty little girls, aren’t they? 11
The Post Office Department left, and I believe
has never since taken an appeal from the young man in
the Solicitor General’s office.
They were all very capable men and it was a privilege
to work for each of them.
HESS: Any· comments about Mr. Fahy?
GARDNER: I didn’t work with him long enough to have any
very clear notion. He did not carry on the tradition
of Messrs. Jackson and Biddle of allowing the first
assistant to run the office.
HESS: He ran it himself?
GARDNER: He ran it himself, and ran it well. It was nevertheless
a sanewhat less interesting job after a working
Solicitor General arrived on the scene, and accordingly
– 8 –
when Miss Perkins asked me to be her Solicitor, I said,
“Yes,n and went over to the Labor Department for about
riine months.
HESS: What are your reminiscences, recollections, about
Madame Perkins?
GARDNER: She was a highly intelligent woman, very committed
to social improvement. By the time I got to her she
had been in Washington as Secretary of Labor for,
it must have been nine years, and had been kicked around
quite a bit, particularly by the Congress. It had the
effect by the time I was there of making her somewhat
timid about causing·con troversy, and with that attitude
she was less effective than I think she had been in her
earlier years. Personally, I had the highest regard
for her.
HESS: And in 19?2 you changed over from Solicitor of the Labor
Department to a similar position with the Interior Department.
What brought about that switch?
GARDNER: The man who had been Solicitor of the Interior
Department for many years, Nathan Margold, had, I
believe, been appointed to one of the inferior courts
in the District and they needed a Solicitor. Abe
– 9 –
Fortas I had known off and on for a number of years
and suppose that he suggested to Mr. Ickes that I
might be a suitable replacement. I had one interview
with him, at which I said that I thought that he ought
to know that I was not getting along too well with
rrances Perkins, to which his characteristic reply
was, 11 I wouldn’t have you if you were.”
HESS: He thought that was a pretty good recommendation?
GARDNER: Well, he thought it was something of a recommendation.
I found a personal pleasure in the fact that
during the last week I was in the Labor Department I
had been examining the law of libel from a plaintiff’s
viewpoint. My first week at Interior I was back in the
law of libel but this time from the defendant’s viewpoint.
By and large life is more interesting if you
represent the defendant rather than the plaintiff in
libel problems.
HESS: What were some of your other duties as Solicitor in
the Interior Department?
GARDNER: We had a staff of about twenty or thirty, I would
guess, after these years, in the Solicitor’s office
itself, and there were legal staffs in perhaps a half
dozen of the bureaus, and l was supposed to be in
charge of them. The work in the Interior Department in
– 10 –
terms of volume, the legal work, was comparatively
dull and I regret to say that I devoted almost no
t’ime to the supervision of the law work in what was
then the General Land Office, for example, or the routine
problems of the department, I should have gotten
into them, should have worried about them, and am
ashamed that I didn’t. I let them coast along on
their own, and by and large worked largely, personally,
on whatever problem at the moment seemed the most important
and the most interesting.
HESS: Did you work closely with Mr. Ickes, the Secretary?
‘
GARDNER: Yes.
HESS: Tell me a little about him, How would you characterize
Mr. Ickes as a man?
GARDNER: That’s rather hard to do in generalities. He was
a man of extraordinary courage and an equal amount of
belligerence, and is one of the very few people in
Washington who has ever really managed to get control
of the department to which.he was appointed, and to
overcome the jello-like consistency of the·bureaucracy
and make it do what the Secretary wanted. [Robert S,)
McNamara, I understand, did that to a degree in the
– 11 –
Defense Department, while he was there, but no other
example comes immediately to hand where an established
department was remade so that it amounted to an instrument
controlled by the Secretary.
HESS: This relates to his administrative ability. Just
what steps did he take to make the department come
around and operate in the manner that it did?
GARDNER: With Mr. Ickes, one’s mind turns more to the
dramatic episodes than to any carefully-wrought judgment.
Before I was there, he was in charge of the Public Works
Administration as one of his duties, and at Interior the
practice was to move matters requiring action up through
the department with each successive official initialing
the signature page. The Public Works Projects ran to
about a hundred or a hundred and fifty pages of recommendations.
Mr. Ickes had a secretary type out a very
large segment, if not the whole part of Alice in Wonderland
enclosed in appropriate papers, and started it
on its way at about the third supervisory level. It
reached him after ten initials had been added.
HESS: They were all initialing Alice in Wonderland?
GARDNER: Yes. If any one of those ten had a real contribution
– 12 –
to offer Interior Department, I’m sure he was forgiven.
If he didn’t, he may have been out hunting for another
job. That sort of conduct repeated often enough brings
even quite large departments into a sudden stage of
intimidation.
Again, something pleasant to recall, particularly
in these times–! say these times, because this town
has never been more politically dominated than it has
been in the last four years. This, too, was shortly
before I came to the Interior Department.
Mr. Ickes had an Under Secretary named Charles
West, who was a politician from, I believe, Ohio.
I think he was succeeded by Mr. Fortas. The occasion
·of his departure was that Mr. Ickes had objected when
he was appointed Under Secretary. Mr. Roosevelt had
said that it was his appointment and he was going to
find him useful in a lot of ways. Mr. Ickes complained
from time to time that he was no use in the Interior
Department, and he was told that he’d just have to
get 4long with him 4nd that beyond that it W4Dn’t hia
business, it was the President’s business.
Charlie West was out on a speaking tour, of more
political than departmental import, leaving behind three
large and spacious offices which were for the purpose
– 13 –
of the Under Secretary, He returned to find all
furniture, all drapes, all rugs, removed, except for
one desk and one straightbacked chair sitting in the
middle of the largest room. Mr. Ickes view, either I
was told or he later told me, I don’t remember which,
was that certainly the President did control Mr. West’s
appointment, but that he, Harold Ickes, was in charge
of the furniture in the Interior Department. Mr. West
left very shortly after his return.
One could go on quite a bit with more or less
flamboyant examples of that sort, but they add up to
a man of great courage,. great integrity, and eternally
ruthless towards those who stood in his way.
HESS: At that time, did you also work closely with Abe
Fortas when he was Under Secretary?
GARDNER: Yes.
HESS: ·What type of a man was he?
GARDNER: Very able, very intelligent and I thought at the
time possessed a remarkably good judgment.
HESS: Which might have slipped some time later?
GARDNER: Yes, I think it’s rather noto?ious, at least there
– 14 –
were one or two episodes in which his judgment, when
on the Court, was slightly imperfect.
HESS: And two Assistant Secretaries were Michael W. Straus
and Oscar L. Chapman. Did you work closely with those
gentlemen at that time?
GARDNER: Yes. Mike Straus was First Assistant Secretary,
but his major interest was the Bureau of Reclamation
??
and the lovely dams that they put oll)t. And he, in a
sense, stepped down, and in another sense stepped up to
become Commissioner of Reclamation. At that point I
succeeded him. He has been a friend of mine from the
time I went to Interior until his death. In some ways,
as Mr. Ickes, a rather difficult person in that he was
not easily intimidated and had reasonably clear ideas
of where he wanted to go and was quite capable of .getting
there. And I discovered only as I was leaving Interior
Department that what any department needs as m? ch as
a secretarial staff to fix policy, another equally large
staff to be sure that policy is carried out.
The Bureau of Reclamation has always been very
powerful in the Congress, exceeded by the Corps of
Army Engineers, which has·a goodie for every Congressman,
not only those who from west of whatever the
– lS –
·meridian is, I think the 100th meridian, that Bureau
of Reclamation serves. Quite often I discovered we
·would reach in my office some, what seemed to me,
enlightened agreement or compromise among the conflicting
interests represented in the Interior Department, but
only later would I discover the Bureau of Reclamations
had done nothing about it other than to explain to the
Congress, the congressional committee involved, that
the department wanted to do that, but of course a
sensible person would know better.
I took some consolation from the fact that the
Corps of Engineers had an even greater degree of
independence from the Secretary of War, and, indeed,
was quite capable of ignoring clear directions from
the President, which seemed to me on the whole a
little more ruggedly independent even than the Bureau
of Reclamationb.
Mike was.a newspaperman by origin with a bent
toward public relations, probably a little stronger
than a bent toward administration. He was thoroughly
effective in securing appropriations and congressional
support for the reclamation projects, and I always
liked him.•
My relations with Oscar Chapman were not nearly
– 16 –
so close. Is he now dead or alive?
HESS: He’s living,
GARDNER: Still living, He’s not practicing now is he?
HESS: He still has his offices over on Pennsylvania
Avenue.
GARDNER: I haven’t run into him for about five years. I
discover if I haven’t seen someone my age for about
five years . . .
HESS: The natural assumption is that they’re no longer
living?
GARDNER: One friend of mine I was convinced had died, by
the name of Gardner Jackson, I met in the middle of
l?th Street, and I was so astounded that I stopped
and threw my arms around him, figuratively at least,
at great hazard to him and me in terms of tra?fic.
But Oscar and I were not close.
HESS: Did you leave the department about the time that he
came in as Secretary when Mr. Krug was leaving?
GARDNER: I left a little before,
– 17 –
HESS: Mr, Krug was still Secretary when you left?
GARDNER: He was still Secretary when I left, and I left
without regard to either Mr. Krug or Mr, Chapman. I
was just getting a little tired of administrative work,
for which I have no great hunger and was anxious to get
back to the profession of the law,
HESS: What are your earliest recollections of Mr. Truman?
GARDNER: I don’t have too many. I wasn’t too close to him,
and I take it you want personal recollections, not my
recollections of what ne?spapers said about him, and
so on.
HESS: What is the first time that he came to your attention,
let’s put it that. way?
GARDNER: Oh, apart from just routine attention that any
Senator pro.duces, he was in charge of some Senate
committee investigating, possibly, railroads.
HESS: He served on that committee, that’s quite right.
That was one of the subcommittees of the Senate
Interstate Commerce Committee. Burton Wheeler was the
chairman of that Committee,
– 18 –
GARDNER: I rather think that a friend of mine by the name
of Telford Taylor, who is now teaching at Columbia,
was counsel for that committee, and had a high regard
for Mr. Truman’s conduct of the investigation. I
don’t believe that before the war I had any contact,
direct or indirect, with him.
HESS: In 1941 Mr. Truman caused to be established the
Committee for the Investigation of the National
Defense Program, which came to be known as the
Truman Committee, as you know. Do you recall anything
about his handling of that Committee?
GARDNER: Nothing at all. I had no contact with it at
any point. I knew it was in existence; I knew it had
a good reputation.
HESS: You were out of the country during the war, during
much of this period of time anyway, correct?
GARDNER: I left the Interior Department in September of
’43, as I recall, and left the country about December
and was engrossed in military training before then.
The first time Mr. Truman came vividly to my
personal, though indirect, attention, was when I got
back during the summer of 1945. I went around to
– 19 –
visit Francis Biddle who was then Attorney General and
we had some vague talk about perhaps starting up a law
·firm. He’d had vague talk with three or four people.
I indicated that I thought he’d stay on as Attorney
General and he said no, that he was leaving, and then
gave a delightful account to the manner of his leaving.
He had had a telephone call from one of the President’s
assistants, perhaps Matt Connelly, who indicated that
the President would be sorry to see Mr. Biddle go,
but he’d be pleased if he would resign his position
as Attorney General. Mr. Biddle, who was mainline
Philadelphia, and so far as I know, intimidated by no
one, told Mr. Connelly that it was his view that the
proper etiquette was for Mr. Truman to tell himself
that he wanted him to go, that he was at Mr. Truman’s
service any time that he, Connelly, could arrang.e .an
appointment, that he would not accept such a9vice
from Connelly.
In due course he went over to see Mr. Truman who
told him that he wanted his own man as Attorney General,
and I gather was polite but firm about it, and.Biddle
said, r•m sure accurately, when he got up to go, he
leaned over and patted him on the shoulder and said,
“Now, Harry, that wasn’t so bad, was it?”
– 20 –
HESS: Going back one year further than that, in the summer
of 1944 Mr. Tru man was nominated for the second spot
• on the Democratic ticket.to serve as the vice-presidential
candidate for Mr, Roosevelt, Just what did you
know about Mr, Truman at that time?
GARDNER: I doubt that I even knew that he was nominated
for. Vice President. I was either in Caserta or Corsica
trying to get the intelligence transmission working
prior to the invasion of Southern France. Nothing
was farther from my mind or interest.
HESS: Where were you on April 12, 1945 when Mr. Roosevelt
died?
GARDNER: I know exactly where I was. We were in Heidelberg.
We’d moved our headquarters to Heidelberg* and the
announcement of the President’s death was transmitted
by whoever the man is who is in charge of personnel
in the Army (I forget his title now). The headquarters
group was assembled in the courtyard of the University
of Heidelberg where we were stationed, and the announcement
was read to us. The courtyard was enclosed by a
wrought iron fence, and it was interesting to me that
the citizens of Heidelberg were gathered outside the
– 2l –
fence in quite a large nWJlber, and were as moved and
as sad as the American Army personnel itself. I also
remember it because General Devers who read the quite
eloquent announcement to the Armed Forces overseas,
and, being a somewhat literal-minded man, kept on
going, including all the telegraphic transmissions at
the end. That had a somewhat anticlimactic effect.
HESS: What did you know about Mr. Truman at that time,
very much?
GARDNER: No, other than the general impression that he had
an impossible job, and it was generally understood
that he had not been either close to Roosevelt or
in any way a par?to the decisions that were being
made, which I ?elieve is the universal situation of
Vice Presidents.
HESS: Even more so back in that day than perhaps it is
today?
GARDNER: I don’t know what the situation is today, but I
would suppose that Kennedy and Johnson came closer to
having some degree of a working relationship than most
Presidents and Vice Presidents in my time, certainly
throughout the Roosevelt administration. I’m quite
– 22 –
sure he could have given the name of the Vice President
at any given moment, but I’d also be surprised
•beyond measure if there had ever been a serious consultation
with a Vice President as to any matter of
Governmental policy or problem. I hope that’s the case
now.
HESS: What are your recollections concerning the resignation
of Mr. Ickes,?
GAIUlNER: Quite vivid. By way of background, Mr. Ickes was
the most belligerently anti-political Cabinet officer
that’s been in the town during my lifetime. I told
you of the episode of the West furniture.
On another occasion, a man by the name of [WelbernJ
Mayock, who was general counsel of the Democratic
National Committee, had a practice which involved some
land affairs. This was during my time. Ile went to
the lawyer working on the file, they were called
examiners, I think they were members of the bar, but
that was about their only legal attainment; and in
the course of discussing this case advised them that
he, Mayock, was general counsel of the Democratic
National Committee, which was reported in due course
and reached Mr. Ickes’ ears, who addressed himself a
– 23 –
memorandum to the guards of the Interior Department
saying that under no circumstances ever in the future
Was Mr. Mayock to be allowed entrance into the Interior
Department, and sent a copy to Mr. Mayock. I’m sure
there· are dozens of other examples, but he had a very
firm commitment to particularly non-political administration
of not only the Interior Department but, insofar
as it lay within his power, of the Government as a
whole,
Ed Pauley was an oil man of considerable wealth,
well-known and variously regarded throughout the
Government and throughout the oil industry generally,
Mr. Ickes was convinced, and I wasn’t present at the
episode, though I was in the Department at the time,
that Mr. Pauley had asked him to enter some decision
on some matter of moment, presumably connected with the
oil industry, and he had-in return offered tp make,
in the event’ of such a decision, either personally
or through his clients, I cannot recall, a very sizable
contribution to the Democratic National Committee.
In contrast to our present Attorney General, Mr. Ickes
immediately recognized that as being improper and very
close to a bribe, and needless to say, I’m sure with
a considerable drama, ushered Mr. Pauley out of his
– 24 –
office.
Shortly after that, whether a month or a year I
do not know, Pauley was nominated to be either Secretary
or Under Secretary of the Navy.
HESS: Under Secretary.
GARDNER: Under Secretary of the Navy. Mr. Ickes objected
to the nomination chiefly on the basis of this episode.
His objections, again, were not heeded in the White
House, and he agonized over what he ought to do. I
think I knew at the time, but I cannot now remember,
whether he was independently asked by the chairman
of whatever committee had jurisdiction, whether it was
the Naval Affairs Committee in those days, or whether
it was the Armed Forces or Armed Services, if he would
testify. It is possible that Mr. Ickes procured ?hat
invitation. My recollection is not clear. It leans
a little on the fact that he did not procure it, and
the issue was whether he should refuse to respond to
it. It was not a subpoena, it was just a request.
It’s coming back now that that’s the way it was.
I’m sure that Mr. Ickes’ distaste for Mr. Pauley,
and possibly some part of its foundation was gossiped
about through the town, and undoubtedly led to the
– 25 –
somewhat unusual request of having Mr. Ickes’
views.
He and I discussed it. Abe Fortas had left,
Abe having on the whole a more cautionary frame of
mind than Mr. Ickes, or than I. I was comparatively
young at the time. He and I worried about it, and on
the ground that technically he could not refuse to
appear because a subpoena could issue and require
his attendance; and more essentially on the ground
that it was not in the nature of Mr. Ickes to refuse
an entertaining combat that was offered him, nor in
his nature by silence to condone what he thought was
improper, and which he felt, I believe accurately,
lay within his power to stop.
So, we prepared his testimony, I assume that I
prepared it, though I can•t remember definitely, and
marched up and explained the reasons why Mr. Pauley
was not in the view of Mr. Ickes fit to be confirmed
as Under Secretary. I do not know, I may have at the
time, but certainly do not now, whether Mr. Ickes
proceeded to resign on his own v6lition or whether
it was suggested by Mr. Truman. I do not even know
the time sequence. I have a vague feeling that his
resignation followed very quickly and was, in a sense,
– 26 –
his own volition, though I would expect also if he
didn’t take action, very probably he’d be asked to
.. leave. Mr. Truman ran a somewhat tighter ship in
terms of personal adhere.nee, personal conduct, than
Mr. Roosevelt did. I’m fairly clear that when
Charlie West found his furniture gone, Roosevelt
just laughed.
HESS: Some historians say that in taking Mr. Pauley’s
side in the disagreement with Mr. Ickes, that Mr.
Truman was taking the wrong side. What is your view?
GARDNER: Obviously I am a partisan in that controversy,
so my view is not worth very much. I was Mr. Ickes’
principal adviser and assistant at the time, on that
sort of an issue.
HESS: What is your general opinion, why would Mr. Truman
come down on that side of the fence in an argument
such as this?
GARDNER: I cannot give an answer that has any foundation
other than general newspaper understanding.
Mr. Truman was a politician who had worked his
way up through Kansas City politics into the Senate
and he had a lively appreciation of the compromises
– 27 –
that go to make a political system, if you’re going
to make it work. I am by no means convinced that his
position was wrong in the sense that our Government is
founded on politics and works that way and always has,
and one may hope always will, because with all its
defects it’s a little better than other ways of
approaching the government.
Mr. Ickes was not possessed of a similar background.
He was, in a sense, outrageously upright
and he did love a fight. I was convinced then and
am now that on that controversy we certainly were on
the right side. I’m not sure that at this point I
would have advised him to go down to the Senate and
to make his views known. Now that my arteries have
hardened I would have said, “He’s done all anyone
can expect a man to do to prevent the appointment,
but he’s not in charge of the Navy Department, nor
the White House.”
HESS: Have you ever heard the.story that Roosevelt had
promised Pauley the position and Mr. Truman felt that
he was just carrying on ?hrough with a request or a
promise that had been made by the previous administration?
– 28 –
GARDNER: I can’t say that I’ve never heard it. I can’t
recall it now. It seems to me highly likely, in view
of the timing, that that would be the case.
HESS: Also since Hr. Pauley is an oil man it brings up
the subject of tidelands oil. Did you get involved
in matters of tidelands oil at the time that you were
in the Interior Department, and the political ramifications
of that thorny subject?
GARDNER: To a degree. It had come to a head in terms of
the law work while I was in the Army. I came back and
picked up, either for the first time, or for the first
intensive time, the. legal problems involved. I remember
very vividly going out to Wichita, I believe it was,
in the fall of 19?6, in order to address the annual
meeting of the, I believe they were called Interstate
Oil Commissioners. It was completely an ind¥stry group,
and I believe that some of ‘them held state positions in
one form or another. I explained to them why the
offshore oil really belonged to the Federal Government
rather than the states, and I convinced one person in
the audience–me. The other three hundred were fighting
for the floor in order to be able more loudly than
their neighbor to denounce.me. Governor (Andrew)
– 29 –
Schoeppel, he was later Senator, was then Governor,
and at the meeting, and I was never clear whether it
was an act of courtesy or an act of permitting me to
escape the town, but he turned over his car and
chauffeur • • •
HESS: For your getaway.
GARDNER: • • • for my getaway to the railroad, which I also
remember, because I had had the forethought to bring
some whiskey with me and was looking forward to a
nice, leisurely dinner and I observed with urban
tolerance the farm family next to me which was opening
a basket of food. Well, it developed the dining car
developed a flat wheel and there was no food until
about 1 o’clock the next afternoon on that train.
I seem to recall a fair amount of communications
back and forth with the Justice Department on it.
Throughout that period, of course, Mr. Truman and the
Justice Department and Interior were united in attempting
to establish Federal title to the offshore oil.
HESS: Moving on, Mr. Julius Krug was selected as the next
Secretary of the Interior. Do you know why he was
selected? Tell me a little about his background?
– 30 –
GARDNER: I did not know him, had never met him until he
was Secretary of the Interior. He had been first,
1 believe, Executive Director and then Chairman of the
War Production Board, and the general understanding was
that he had done an exceedingly effective job, and in
the circumstances would be a natural man to turn to
with the Cabinet vacancy, particularly since I should
suppose Mr. Truman’s interest in the War Production
Board, growing out of his chairmanship of the Senate
committee, had been fairly marked, and I have no doubt
that he had many times run into Mr. Krug.
HESS: What is your general evaluation of his handling of
the department?
GARDNER: I don’t think he did handle the department. He
was a very intelligent man, and he could take effective
action, would take effective action, when the crisis
built up so that he was £creed into a corner and it
had to be solved. I liked him, and found him a satisfactory
man to work for, but his administration of the
department was certainly a much more passive one than
that of Mr. Ickes.
HESS: If he didn’t run the department, who did?
– 31 –
GARDNER: I’m probably one in half a dozen people, each
of whom thinks that he did. I was, in effect, first
assistant secretary.
HESS: Here is a copy of a page from the Official Register
of 1947. It shows Oscar Chapman as Under Secretary
and then yourself as Assistant Secretary.
GARDNER: I was Assistant Secretary with department-wide
jurisdiction and all the mail for the Secretaries,
all the problems, came through me. I was young and
active.
HESS: And then the other Assistant Secretary in 1947 was
C. Girard Davidson. Did you work often with him?
GARDNER: Often and I’m not at this point at all clear of
the jurisdictional division. I had insisted that
before I became Assistant Secretary that I not be
subjected to whacking up the bureaus. I’d been
spoiled as Solicitor with department-wide interests.
It was my belief that Jebby and I divided things up
more or less on ad hoc assignments.
HESS: Nothing cut and dried, but you handled problems as
they would arise, is that right?
– 32 –
GARDNER: I’m sure there was more form to it than that,
but I can’t remember it now.
HESS: Did you work closely with Oscar Chapman at this
time when he was Under Secretary?
GARDNER: I very frequently, I would suppose once a day or
twice a day, would meet with him, and report something
or discuss something with him. I would draw back a
little bit from the ‘1working together” verb.
HESS: Why?
GARDNER: He’s not a worker. He’s a man with a good sense
of people, human relations, a good politician, but
not the man you turn to if you want to get something
done today or next week.
HESS: Did it seem to you that he spent a good deal of his
time, or perhaps was called on to spend a good deal of
his time, on political matters for the President or for
the Democratic National Committee?
GARDNER: I haven’t any recollection of that. I should
think it likely.
HESS: He was from Colorado, and I understand that he worked
– 33 –
as an advance man for some of the President’s tripe
when the President would go to the western part of
the United States.
GARDNER: Yes.
HESS: Do you think that cut into the effective administration
of his job in Interior?
GARDNER: No. His talents and his contributions to the
Interior Department could be given without working
full time at it.
HESS: Let’s discuss briefly some of the other units of
the Department of lnterior. We have mentioned the
Bureau of Reclamations, but did you work closely with
the office of Indian.Affairs? At that time William
A. Brophy was Commissioner?
GARDNER: Yes, I worked reasonably closely with all the
department bureaus and depending, by and large, with
those who had a particular problem of importance at
the time. Brophy I was very fond of; I have not seen
him since he left Washington but we were quite friendly
when he was here, to the point of–once or twice.he
dined with us, which is not a very frequent intermixture
– 3? –
of my Government or professional activities and home
life. He was an Irishman, highly intelligent, very
dedicated, charming man.
HESS: What is your general opinion of the handling of
Indian Affairs’ matters during the Truman administration,
and then up to the current time? Has the
United States Government handled this problem in a
correct manner?
GARDNER: I should think obviously not. The Bureau of
Indian Affairs when I was there was not quite as
.
“‘ unimaginative and. lethargic ? bureaucra·cy as what
was then called the General Land Office, but it was
pretty close to that condition.
There was, on the part of John Collier, who
was Commissioner when I was there, and most especially
(.,· ✓
on the part of my distinguished associate(‘Solicitor
Felix Cohen, a very real compassion for and highly
talented efforts to improve the lot of the Indian.
But, from my observations, which did not reach very
far below the top I’m sorry to say, the general impression
that I have was that it was a slothful and
lethargic bureaucracy, which had no active animus
against the Indians, but was incapable of effective
– 35 –
action. One small episode: For a period of a
month or two I surreptitiously ran a time check on
all of the mail that was prepared in the department
for the signature of the Secretary or an Assistant
or Under Secretary, and at the end of the month we
had a department meeting and I delivered myself a
number of thoroughly unkind remarks. I can still
remember the prize example of that lot which indicates
my lack of admiration for the Indian office as I then
knew it.
By some historical accident, one of the tribes,
perhaps even many, required an approval of the Secretary,
personally, in order to spend the money of the
tribe members which were held in trust. We fixed up
some delegations after this month’s experiment, but
at that time, no matter how trifling, it had to reach
the Secretary. One little Indian girl had asked
approval of spending money in order to buy a heifer
calf, which had been approved by every official along
the way. She got the approval three years after she.’d
made the request. The heifer calf was no longer a
calf,.and that is, of course, an extreme example, but
the fact that it can happen at all indicates the grave
reservations I had.
– 36 –
Just last week or two weeks ago, I’m fairly
active in the Administrative Conference of the
Hriited States, and one of the recommendations was
to set up an independent Indian trust authority to
represent the Indians against the United States in
case of conflicting natural resource claims. I
was forced to go back and think why it was that I
had never been troubled about it when I was in
Interior, and I searched my recollection to explain
“Why not,n although I strongly supported the proposal
once it was called to my attention. I concluded that
the reason was that the Interior Department is a very
curious department in the sense that it is custodian
of about fifty separate and almost invariably conflicting
interests, and I really can’t say that it
never occurred to me, but after twenty-five years I
can’t remember focusing on the fact that the guardianship
of Indian affairs was a much more strong commitment,
being as it was a fiduciary commitment, than the
Governmental commitment to miners, fishermen, bird
lovers, etc. More or less, my own attitude, speaking
with the enlightment I gained two or three·weeks ago,
my wrone attitude was that it was just another damn
– 37 –
problem, that you couldn’t help the Indian in many
respects without hurting somebody else. And that
. was the focus in Which I as an Assistant Secretary
would find myself, if there were no inter-bureau
conflict, it was rather rare that I would get too
deeply into a problem. So I don’t know too much
about the administration of the Indian office. I
just had a lively skepticism of the people who are
dealing with it, short of the top. Collier and
Brophy were good.
HESS: Would a lack of ideas being pumped into the Bureau
of Indian Affairs•, and the lack of action of the Bureau
of Indian Affairs, show somewhat of a dereliction of
duty on··Mr. ·Truman’s part?
GARDNER: No, Mr. Truman had global problems and national
problems to the point that I’d be surprised if he gave
much attention at all to the Interior Department as a
whole, and certainly not to the work of any bureau.
HESS: He expected the people he appointed to that department
to run that department, correct?
GARDNER: That would be the natural explanation, or if you
will, speaking as an old bureaucrat, rationalization.
– 38 –
I didn’t know what went on in the Land Office. You
can say that I expected the people in charge to run
it, but in fact I didn’t think about it.
HESS: You hoped that somebody over there knew what was
going on.
GARDNER: Yes, when I thought about it.
HESS: Did you become involved in the operations of the
territory and the island possessions? That also came
under the Department of Interior.
GARDNER: Yes.
HESS: In Alaska, Ernest Gruening at that time was Governor,
correct?
GARDNER: That’s correct.
HESS: Any thoughts on Alaska or were there any particular
oCcasions you may have worked with Mr. Gruening?
GARDNER: I was plunged into Alaska on the salmon fishing
controversy, whic? was a three-sided battle between
the then territory and its seine fishermen, the local
fishermen, the salmon packers and the Indian claims.
Mr. Ickes had called a hearing before him in order to
– 39 –
consider a regulation, some form of which I can’t
recall, and he pulled out tempestuously about a
-week before that hearing was to meet, and I carried
it on, and I was waistdeep in Alaskan problems all
the time after that, as they affected the conflicts,
Krug and I went up to Alaska on a ten-day trip
with, as I recall, a fair number of staff people, he
was the first Secretary that had ever been in Alaska
and it was considered very good. He took one day to
go fishing, and I went over to Cordova in his place
to attend the lunch and speak, At the end of the
lunch the mayor introduced me, and virtually the
entire adult population of Cordova was there, and
he explained I was the third high dignitary from
Washington that they had had the honor of giving
lunch to. He said, 11Who knows, some good may com?
of this one. 11
HESS: ·Nothing had come from the other two?
GARDNER: And oddly enough, what they wanted, I told them
then they couldn’t have.
HESS: What did they want?
– 40 –
GARDNER: They wanted the Copper River railroad paved
over,- the old Copper River road. There had been
a railroad bringing down mine material, and they
wanted road access to the interior of Alaska, and
it didn’t seem to me that it began to warrant the
expenses involved. But it’s my understanding that
very shortly after Mr. Eisenhower came in office·on
an economy program, the Copper River railroad project
was carried forward, although we heavy spenders endangered
my reception in Cordova by saying it was out
of the question.
HESS: The problems between the salmon canneries, the seine
fishermen and the people who would like to have the
fish go back, up the river to their spawning grounds
still remain, do they not?
GARDNER: It’s much better controlled.
HESS: · Is it now?
GARDNER: I hati worked out with salmon packers a compromise,
or rather with the man who.was speaking for them, a
splendid fellow by the name of Phil [Philip Douglas]
Macbride, one of the leadin? attorneys in Washington
who was also chairman of Pacific-American Fisheries,
– ?l –
which is one of the larger packers. He and I worked
out a compromise that made sense to us, it still makes
sense to me, by which the fish traps, which was a major
bone of contention, the structures that caught the
salmon as they were coming in, would be phased out over
a ten-year period so that the packers’ investment would,
i f not be recovered, would be amortized, and there would
be an end to it. I think the salmon packing industries
refused to accept what Macbride negotiated on their
behalf and the Congress refused to pass the bill,
which had industry opposition, and on the other hand,
the opposition of a splendid fellow, Delegate [Edward
Lewis] Bartlett, who thought ten years was too long.
So poor Macbride and I were left in the usual position
of those who cQmpromise without adequate control of
their constituents, as many union leaders have found
themselves in recent days.
HESS: ‘And Governor [Ingram M.J Stainback was in Hawaii.
Did you have any dealings with Hawaii?
GARDNER: Again, quite a number–no, I guess only one
transaction, but it was fairly protracted and reached
a typical level of acrimony that had to do with martial
law in Hawaii.
– 42 –
Stainback and his attorney general, Garner
Anthony, came into Interior Department and Mr. Ickes
summoned a major meeting starting with [Chester
William] Nimitz and whoever the corresponding man
was in the Army (I forget now). I recall sitting
around his table, and the meeting convened at 10
a.m., and he surveyed people over the top of his
glasses, and said, “Gentlemen, the agenda today has
only one item: The liberation of Hawaii. 11 And we
carried on a battle for, oh, about three months, I
guess. Stainback didn’t stay, but Garner Anthony
did. He was a very able·. and very courageous attorney
in Hawaii, a leader of the bar there for twenty or
thirty years, I guess. Abe Fortas worked on it very
closely, and I suppose I did most of the actual work.
I’d say it was a good fight, which I think we won in
the· end, as I recall–yes, we did.
HESS: ,Governor [Jesus T.J Pinero was down in Puerto Rico.
GARDNER: I didn’t know him at all. I had virtually nothing
to do with Puerto Rico for one accident or another.
HESS: How about the Virgin Islands where Judge William
Hastie was? Did you have anything to do with that area?
– 43 –
GARDNER: Not very much with the Islands. I think it was
his appointment–yes, it would have been his appointment
to the Virgin Islands. He had been nominated
while Mr. Ickes was there. His confirmation hearing
was scheduled when Mr. Krug had come, and Mr. Krug
did what Mr. Ickes would never have done, allowed such
a dramatic opportunity to pass by, and sent me down
to testify in behalf of Hastie. It wasn’t too bad.
Senator [Ralph Owen] Brewster had been on the Harvard
Law Review with Hastie, and so his color was less
prominent than it would have been if Senator Brewster
had gone to another school.
HESS: Was there some objection from some of the southern
Senators?
GARDNER: There was a terrible lot of covert objection. I
don’t recall any overt, but there may have been.
HESS: ·During the time you were working on these and any
other matters, did you ever call upon the assistance
of any of the people who served on the White House
staff: Mr. Truman’s Special Counsel, Clark Clifford,
for instance?
– 44 –
GARDNER: No. The traditions of Interior Department under
Mr. Ickes, a?d as Mr. Krug was not one to diSturb any
established tradition, why, the less help we had from
the White House, the better. We thought we could do
our own work.
I suppose the two times I had White House contact
I should mention here.
Before I had marched off to war, we had on one
occasion taken over the coal mines because of the
strike, and I noticed when I came back that the
regulations that I and an assistant had drafted from
S p.m. to 8 a.m. the next morning were still in effect,
unchanged. Nobody in all the years had bothered even
to improve the somewhat awkward phrasing that comes
about 4 o’clock in the morning. It was the only time
I was in the Interior Department on time and I di?covered
there was a bell that rang at 8:15.
HESS: ·That’s the only time you heard the bell?
GARDNER: That’s right. It took Mr. Ickes a little while
to learn that he couldn’t be sure of getting me before
9:30, but he gave into it.
HESS: What other occasions did you work with the White House?
– 45 –
GARDNER: I was just leading up to that. When I came back,
we had another coal strike, and I think this overlapped
also Ickes and Krug. We seized the mines and
a very capable Navy captain by the name of Harvey
Collisson who was later president of Olin [Olin
Mathieson Chemi cal Corporation], I believe, and he’s
now dead, came over tO run them in a highly technical
sense. We had labor negotiations with [John L.] Lewis,
There was some major controversy with–no, I’m trying
to keep them separate, because I was mixed up in three
coal seizures altogether. I think our major controversy
with–no, we had a controversy with Tom Clark,
of rather formidable proportions, in which I went over
and had lunch with him once, and that afternoon the newspapers
had the content of our discussions, and he had
what I later discovered to be a justifiable grievance.
I thought he’d done it; and he though? I’d done it.
HESS: ·Who did?
GARDNER: Oscar.
HESS: Oscar Chapman?
GARDNER: Yes.
– 46 –
HESS: Why?
GARDNER: Ours was the right and proper side, and it was
a discreet leak to the newspapers in the best governmental
tradition. It took me about a week or two to
discover that. I was furious when I did.
But in the course of it, we finally got the matter
settled with the help of an injunction that the Justice
Department had gotten. I went over with Krug to report
to Truman on it.
We had a pleasant half hour in which he was congratulating
us and talking quite at ease, and I believe
enough time has now passed so that I can mention what
he then said. This was shortly after he had appointed
[Fred] Vinson, I believe, as Chief Justice, or had just
sent his name up, which was, more or less, contemporaneous.
Shortly before the rigors in Nuremberg had eaten too
deeply into Bob Jackson and he issued some wildly indiscreet
denunciation of [Hugo] Black, in what connection
I don’t know, but it was an extraordinary thing
to have done and most ill-advised. In the course of
the conversation Truman said (and he did not always
speak with measured and stately eloquence), that if
Jackson hadn’t “pooped off in Nuremberg, he would have
– 47 –
been Chief Justice now,” which, I think, was both an
accurate statement of his frame of mind and what then
seemed to have been a sound judgment.
When he got back to the stability of this country,
the Jackson conduct was always impeccable thereafter.
What happened in Nuremberg I have no idea.
Another time, or two, I was over in the White House
in connection with the Taft-Hartley Bill, the issue being
whether to veto it or not. It’s my recollection, which
is terribly dim after twenty-five years, that, first,
Truman did veto it and it was passed over his veto,
and that he did so over the advice of the clear majority
of his departments. I recall at that meeting that only
the Labor Department and I for the Interior Department
recommended the veto. I’m not sure, I don’t know whether
Clark Clifford was there or not, but whoever the White
House Counsel was.
HESS: · He was.
GARDNER: It was more or less undecided but leaning more to
the veto than placating the Congress and industry.
HESS: But your recommendation for a veto was the only one
coming from the Department of the Interior, is that
– 48 –
correct?
GARDNER: I’m sure so, I was sent over to represent them,
and I’m sure also I would have talked it over with
Krug before. I wouldn’t have been sent under Ickes.
He would have either been there himself or sent Abe
For tas. It’s also true I wasn’t Assistant Secretary
under him, but nevertheless, Krug delegated authority
with • • •
HESS: Far more often than Ickes would do, is that right?
GARDNER: Yes, and would not follow the formulation of the
policy nearly as closely. In fact, I once got good
and angry at Ickes. He took to writing a newspaper
column after he left Government, and he didn’t like–
I forget whether it was the salmon compromise or the
Alaskan timber business that I worked on also, to try
to get the timber resources opened up to use. They
were issues Ickes didn’t like, and it represented–
it was the salmon thing, I had spent about a year on
it, and finally hammered out what seemed to me then and
seems to me now, a good compromise. Everybody would have
been better off. Ickes devoted either one or two
colwnns denouncing Krug for it and saying that among
– 49 –
his sins that he had coerced an otherwise reputable
young man named Gardner into supporting it. Krug
didn’t know what the damned policy was.
HESS: It was what you had done anyway. You weren’t
coerced into doing it at all.
GARDNER: I was more than a little irritated at Ickes.
HESS: At the time of the meeting regarding Taft-Hartley,
do you recall what President Truman’s attitude was,
what his reactions were to the advice that was being
given ?o him?
GARDNER: No, I just don’t recall.
HESS: You did sit in on the meeting though, is that right?
GARDNER: Yes.
HESS: With the others.
GARDNER: Yes. My vague recollection is that Truman was
there only for • . •
HESS: It is quite correct though, that most of the departments
recommended that he not veto the bill, that is
correct, and then he did veto it and it was passed
– 50 –
over his veto.
GARDNER: Yes. There were two or three other rather grim,
semi-social occasions when I ran into him.
With me as with the world generally, Truman grows
in stature as you look back. He seemed at the moment
a very ordinary man, with responsibilities far exceeding
those which any man ought to be asked to bear. But
as you look back, he bore them remarkably well. I was
not by any means enchanted by him at the time.
There are a couple of small episodes. One Christmas
he called together all of the under and assistant secretaries
of the departments and they marched over to the
White Hou?e at Christmastime, it wasn’t Christmas day.
I’m sure everyone had what he thought was an ureent
problem that he thought he ought to be spending his
time on. As we gathered around–! forget which room–
in a nice little semicircle, waited for twenty minutes,
Truman came in, wished us all a Merry Christmas. I
was standing next to Dean Acheson, who was a semi-friend
of mine for many, many years. My only consolation was
that if Acheson could be subjected to that indignity,
so could I.
HESS: You were in good company.
– Sl –
GARDNER: Yes. On some other occasion, he came over to
Interior Department for a dinner. I suppose somebOdy
was visiting, I don’t know what, but he bestowed
autographed menus on everybody, which again, for an
eastern unobtrusive Quaker, seemed to me not in the
very best of taste, but he was quite right. I suppose
everyone’s child or children was happy to have one.
It didn’t appeal to me.
HESS: On what other occasions did you work with the White
House on matters of substance, other than the TaftHartley
matter?
GARDNER: The coal seizure, and there was a recurrent consultation
on the annual messages. I’d go over and quarrel
with them about not striking a paragraph or putting
something in. I don’t recall.
HESS: Just how was that handled? Were you, as Assistant
Secretary, requested to send to the White House· a
complete message or a section of the message that you
would like to have included?
GARDNER: It would be the section relating to the Interior
Department ..
– 52 –
HESS: Relating to Interior,
GARDNER: Some other time, I can’t recall, I was there
through most of the night with somebody, it may have
been Clark Clifford, it may have been somebody else,
working on a, I believe,. a speech that the President
was making on something that came in reasonably close
to the Interior Department concerns. It was fairly
frustrating, but I can’t recall the occasion or,
indeed, the man.
HESS: Were there times when a speech was being formulated
when you found that part of what you and your department
wanted to be included was not in the speech, would
you go over to the White House and try to get it put
back in or argue your point?
GARDNER: I guess so. I don’t recall the mechanics. I
just know that’s in evitable with any White House
message.
HESS: That’s just the.way.it’s done.
GARDNER: It has to be. If you allowed every department to
say what it wanted, you’d have • • •
HESS: You’d have a complete speech for each department,
– 53 –
would you not?
GARDNER: That’s right, five volumes of contradictory • • •
HESS: You returned to private practice before the 1948
election?
GARDNER: Yes.
HESS: But I’d like to ask you just a little about that
anyway. Do you recall anything about the role that
may have been played, or may have not been played, by
Secretary Krug in the events of 1948?
GARDNER: I do not recall that at all. I can offer you
instead a rather charming account.
I do not recall if I ever knew, what, if any,
role Mr. Krug plaJed in the 1948 electio n campaign.
I do recall, however, being told by Mike Straus that
Mr. Ickes had asked him to come and see him. He had
done so, and Mr. Ickes, an old campaigner who loved
it, particularly because it gave him such unrivaled
opportunity to denounce the opposition, said, 11Mike,
I’m going to campaign. I haven’t decided yet whether
it ought to be Truman or Dewey. What do you think?”
HESS: He knew he was going to campaign for someone.
– 5• –
GARDNER: He was not going to let that election campaign
go by without adding his comments. He ended up
·campaigning for Mr. Truman.
HESS: There was quite some time, was there not, when he
was taking the Republican side and speaking and
writing in opposition to Mr. Truman? This was after
his retirement, and before 19?8.
GARDNER: He was certainly riot fond of Mr. Truman, and
was undoubtedly critical of him.
HESS: I could be wrong, but I thought he supported Dewey.
GARDNER: No, I’m quite clear that it was Mr. Truman.
HESS: Good, I’m glad you are, because I am probably wrong
on that.
Have you ever heard anything about Mr. Krug being
considered for the vice-presidential spot on the Democratic
ticket in 19•8?
GARDNER: Never heard a word of it. I should add that I was
always quite remote from polities. I went through Government
refusing to be a member of either party, thereby
creating quite a large number of problems.
– 55 –
HESS: Why did you take that stand and what were the principal
problems that it caused?
GARDNER: I took that stand because I was very young, and
had notions about Government that no political party
could really conform to.
I was very fond of Homer Cummings, with whom I’d
worked closely on one project or another, but he irritated
me, though it wasn’t my affair and why I was so
concerned I cannot now recall, by refusing to prosecute
some rather notorious crooks in New Orleans who happened
to be prominent in the Democratic Party. That is the
chief episode that remained in my mind. I think more
than anything it was youthful idealism, that I was here
to serve the Government with a capital G, or the people
with a capital P.
The problems it caused were whenever I was nominated
and had to be confirmed. Somebody, Jim [James
J;, Jr.] Rowe, I know, loused up one job with the Labor
Department. Oscar Chapman did a rather better one with
the Interior Department. They had to go down and make
their peace with the appropriate Senators to let this
odd youngster be confirmed.
HESS: You say Mr·. Chapman “loused up” a confirmation’?
– 56 –
GARDNER : No, Jim Rowe did. Jim Rowe is an old friend of
mine.
HESS: And he loused up a job that you were in line for?
GARDNER: No, he loused up the confirmation by putting my
name in with about fifty postmasters who were being
appointed, it got in by mistake before Jim had gone
down and made his peace.
HESS: Was that at the time when he was one of President
Roosevelt’s administrative assistants?
GARDNER: Yes, that was under· Roosevelt. And I’ve never
let him forget it, he’s never let me forget it, and
he always adds that he went around to the old gentleman
who was·in charge of White House mail, had been
for twenty or fifty years, and for whom Jim had a
gre·at respect, and told him what a terrible thing he I d
done and explained it at length. I think his name was
Hassell–I’m not sure, but something like that–he
looked at him and said, 11Young man, you’d be astoniGhcd
to know how little difference that makes to me. 11
HESS: Was that Bill Hassett?
GARDNER: Hassett, yes.
– 57 –
HESS: He was the Correspondence Secretary.
GARDNER: That’s right, and some how the nomination got
in the wrong basket.
HESS: He’d been there for years and years.
GARDNER: So not only was I not a Democrat, the nomination
hadn’t even been mentioned.
So I became a Democrat for much the same reasons
that I had refused to become. I went through storm,
lightning, and high winds in order to register as
a Democrat in Rockville, because Mr. [Herbert]
Brownell was prosecuting people, it seemed to me,
because they were Democrats. It’s a little hard to
articulate the difference, but there’s a world of
difference between not prosecuting someone because
of political considerations and prosecuting them.
HESS: Then it turns into persecution, does it not?
GARDNER: It does indeed. I thought that was a sorry
position.
HESS: That was during the Eisenhower administration,
obviously.
– 58 –
GARDNER: Yes.
HESS: As a man who was an independent during the Truman
administration and held high positions, what is your
opinion of th? weight that Mr. Truman would give to
political considerations before he would take an action?
GARDNER: I don’t know. I wasn’t that close to him on actions
which involved political considerations.
HESS: Just what was your general impression?
GARDNER: My general impression was that he was a good
practicing politician. Also, my general and concrete
impression was that never in the thirteen years that
I was in Government did we have to consider the political
affiliation of anyone who was being selected for
appointment, and there was no thought of it during
Mr. Truman’s time, whether they were Democrat or
Republican, even for positions of considerable magnitude.
HESS: Do you think he was more interested in getting the
best man rather than the best Democrat?
GARDNER: If I had to put together the indirect knowledge I
had, the newspaper business and so on, I would say
•
• 59 –
obviously he was more interested in eetting the best
man; if it produced a political problem of consequence,
that the interest in having the best man could be overcome,
which is about all you can ask of a Presiden t.
HESS: Did you think Mr. Truman was going to wi n in 1948?
GARDNER: No, I did n’t, a position shared by quite a number
of people.
HESS: You were in the majority, that’s right.
GARDNER: Very clear majority, excep t for those who voted.
HESS: Why did you think Mr. Dewey was going to win?
GARDNER: Just reading the damn newsp apers.
HESS: Jus t what you read in the papers.
GARDNER: Yes.
HESS: Did it come as quite a sur prise in November of ’48
when Mr. Truma n won?
GARDNER: A surprise, and a ver y pleasant one.
Hi.:SS: And then not too long after that, in the year following,
Mr. Krug left and was replaced by Oscar Cnapman. Why,
– 60 –
in your opinion, did Mr. Krug leave the Departmen t of
the Interior?
GARDNER: I don’t.know,
HESS: Any opinions?
GARDNER: Well, it could have been either of two things: He
got_ himself into some trouble with Howard Hughes (I
think it was Howard Hughes), and starlet s out on the
west coas t which was public and which would not make
any Presi dent feel happy with his Cabinet membe r.
Krug also had a quite lively eye out to his business
future. I don’t know which it was, it could have
been either. It could have been a suggestion that on
the whole it woul d be nice if he took up somethin g else,
or it could have been his own decision, that he saw a
good opportunity and wanted to take it.
HESS: Oscar Chapman was chosen as his replacement. Why , in
your opinion , was Mr. Chapman the next Secretary of the
In terior?
GARDNER: On e, he was Under Secretary; two, he was a good
politician who had been vecy useful to Mr. Truman. Any
other selection would have been quite out of the question
I would have thought.
– 61 –
HESS: You mentioned that Mr. T?uman had a good many problems
on his mind and had international considerations to
.. look out for. What’s your opinion, do you think that
he should have given more attention to domestic matters
and to the operation of the departments concerned with
domestic affairs?
GARDNER: No. I think every bit of attention he gave to
international problems was required, and particularly
in terms of the Marshall plan, one of the more sensational
successes in recent centuries, in the plural. I
can well recall that it looked almost hopeless at the
time. Coming down on the train I ran into Gary [Gerhard)
Gesell who is no? a district judge, each of us lawyers
of modest competence, and in our wisdom we decided that
the Marshall plan couldn’t possibly work, things were
too far gone to be helped.
HESS: Was this about the time it started, in ’47?
GARDNER: Yes.
HESS: Or when it got underway?
GARDNER: Just getting underway. From this viewpoint I am
far from enchanted with the Acheson-Truman policy of
– 62 –
containment, which I think now is a mistake but I
didn’t at the time.
F.ESS: Do you think it was the correct thing to do at the t iree?
GARDNER: No, let’s ·say that at the time I thought it was the
correct thing to do·:
HESS: What sho1Jld we have done?
GARDNER: I don’t know. I’m sure it’s produced both in our
own mentality and in international relations a great
d?al of harm. What I’m really complaining about is
that it should have been stopped long ago, not that
it was bad when it started.
HESS: You mean our international involvement?
GARDNER: Our international effort to contain communism,
reaching its flower • •
HESS: Should we have tried to seek greater accomodation with
the Soviets?
GARDNER: I just don’t know enough about that. At this point
I rather wish we’d tried it, as we’re trying it now.
HESS: Just a couple of questions about the “Little Cabinet, 11
– 6 3 –
and you’ve mentioned the time that you gathered around
the Christmas tree.
GARDNER: That was the only “Little Cabinet” meeting that I
ever experienced.
HESS: Do you think that was evidence or a demonstration of
the absence of good administrative policy? Would it
have helped if “Little Cabinet” meetings had been held,
the assistant s ecretaries of Interior, and the ass istant
secretaries of Commerce and the • •
GARDNER: I don’t believe it would have contributed anything
to the conduct of·Govemment. It would have been a
social occasion, but no one was sufficiently posted on
the problems of another to make a general systematic
meeting of any utility. When interacting or conflicting
problems arose, why, there would be ad·hoc committees.
HESS: In your opinion, what did Mr. Truman regard as the
proper role of his Cabinet members’? Just how did he
see this organization?
GARDNER: I can’t really characterize it.
HESS: Approximately. how many times did you either meet with
– 64 –
or see President Truman during the period of time you
served in his administration?
GARDNER: Probably ab out half a dozen times.
HESS: What is your opinion of the level of Mr. Truman’s
administrative ability during the period of time he was
President’?
GARDNER: I had too li ttle contact with President Truman to
have a reliable fir st-hand jud gment. So far as I can
n.ow recall, the White House did not interfere with the
4dminis?ration of or the appointments in the Interior
Department; that non-inte rference we of course considered
good administra tion.
HESS: In your op inion, what were President Truman’s major
accomplishments, and what were his major fail ings?
GARDNJ::R: I am reasonably clear that the formulation and
execu tion of the Marshall plan, which was the indispensable
foundation of the European free governments
and economic prosperity, was the major ac complishment
of President Truman. At the time I thought his vigorous
actions in respect of Greece and Korea were well-conceived
and of first importance to the world. I am
– 65 –
somewhat less confident now about the whole program
of 11 containing communism, 11 and can wonder as to the
_c;ourse of history if we had relied more on the course
of evolution in place of armed resistance.
-I would consider his greatest 11 failure 11 is found
in what he did not attempt. Even in what now appears
to be the halcy.on year of 1946 there were a number of
things in our Government and society calling for
drastic and i nnovative action. These domestic matters
received little or no attention, in part because of
a generally mediocre level of appointments to office
and in related part becaus e by and large the Government
was not attracting the fresh young talent that it
had in pre-war days. The distinguished appointments
of Marshall and Acheson, and the resulting initiative
in foreign policy, i llustrates my point by contrast.
HESS: In your opinion, what will be President Trwnan 1 s
piace in history?
GARDl-lER: My euess at the verdict of history is not worth
much, but I should suppose that President Truman
will be ranked somewhat below the giants and well
above the average.
HESS: Thank you very much.