Howard C. Westwood Complete Oral History Package (848 KB)

HOWARD C. WESTWOOD, ESQUIRE
Oral History Project
The Historical Society of the District of Columbia Circuit
Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
Howard C. Westwood, Esquire
Interviews conducted by:
Willis J. Goldsmith, Esquire
January 21, January 31, and April 17, 1992

TABLE OF CONTENTS
Preface . ……………………………………………………… i
Oral History Agreements
Howard C. Westwood, Esq.. …………………………………… ii
Willis J. Goldsmith, Esq.. …………………………………….. v
Biographical Sketches
Howard C. Westwood, Esq.. ………………………………….. vii
Willis J. Goldsmith, Esq.. …………………………………… viii
Oral History Transcript of Interviews on January 21, January 31,
and April 17, 1992. …………………………………………. 1
Index. ……………………………………………………… A1
Appendix
Steel Seizure Case…………………………………………. B1
NOTE
The following pages record interviews conducted on the dates indicated. The interviews
were electronically recorded, and the transcription was subsequently reviewed and edited
by the interviewee.
The contents hereof and all literary rights pertaining hereto are governed by, and are
subject to, the Oral History Agreements included herewith.
© 1996 Historical Society of the District of Columbia Circuit.
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges who sat on the U.S. Courts of the
District of Columbia Circuit, and judges’ spouses, lawyers and court staff who played
important roles in the history of the Circuit. The Project began in 1991. Most interviews
were conducted by volunteers who are members of the Bar of the District of Columbia.
Copies of the transcripts of these interviews, a copy of the transcript on 3.5″ diskette (in
WordPerfect format), and additional documents as available – some of which may have
been prepared in conjunction with the oral history – are housed in the Judges’ Library in
the United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C.
Inquiries may be made of the Circuit Librarian as to whether the transcript and diskette
are available at other locations.
Such original audio tapes of the interviews as exist as well as the original 3.5″ diskettes of
the transcripts are in the custody of the Circuit Executive of the U. S. Courts for the
District of Columbia Circuit.
i
Historical Societv of the District of Colwa Circuit
1. In consideration of the recordinu and Preservation of –
the oral history memoir, prepared by wiiiis J. &idsmith and
me, by the Historical Society of the District of Columbia
Circuit, Washington, D.C. , its employees and agents (hereinafter
“the Society ” ) I, do hereby
grant and convey to the Society, its successors and assigns, the
ownership of the tape recordings and transcripts of interviews as
described in Schedule A hereto. I also grant and convey to the
Society all right, title, and interest I might have in such
tapes, transcripts and their content, including literary rights
and copyrights. All copies of the tapes and transcripts are
subject to the same restrictions.
impaired my rights and interest in the tapes, transcripts and
their content referred to above.
2. I have not previously conveyed, assigned, encumbered or
3. It is agreed that access to the aforementioned tape recordings and transcripts shall be in accordance with the
direction and control of the Society and subject to terms to be
set by the Society. I authorize the Society, subject to the
above and to any exceptions contained herein, to duplicate, edit,
publish, or permit the use of said tape recordings and
transcripts in any manner that the Society considers appropriate,
and I waive my claim to any royalties from such use.
Date:
L.
1
1
DISTRICT OF COLUMBIA ) ss. :
Acknowledged befsre ne this
of , 1994.
Idu day
n
ROZLYN K. WATSON
Notary PuMk
Dfstrkt of Columbla
MY Cammiulon Expires: 1/31/%
drn
Pres ident
Historical Society of the
ii District of Columbia Circuit
Date :
Schedule 4
Tape recording(s) and transcript resulting from 2
interviews Of Howard C. Westwood conducted by
Willis J. Goldsmith on the following
dates: January 21, 1992 and April 17, 1992
–
iii
Historical Society o f the District of Columbia Circuit
Acrre emeag
preservation of the oral history memoir, prepared by Willie J.
Goldsmith and Howard C. Westwood, by the Historical Society of
the District of Columbia Circuit, Washington, D.C., its
employees and agents (hereinafter “the Society.) I, Natalie W.
Lombard, personal representative, heir and beneficiary of the
Estate of Howard C. Westwood, do hereby grant and convey to
the Society, its successors and assigns, the ownership of the
tape recordings and transcripts of interviews resulting from
interviews of Howard C. Westwood on January 31, 1992. I also
grant and convey to the Society all right, title, and interest
I or he might have in such tapes, transcripts and their
content, including literary rights and copyrights. All copies
of the tapes and transcripts are subject to the same
restrictions.
1. In consideration of the recording and
2. I have not previously conveyed, assigned,
encumbered or impaired my rights and interest in the tapes,
tranecripts and their content referred to above.
3. It is agreed that access to the aforementioned
tape recordings and transcripts shall be in accordance with
the direction and control of the Society and subject to terms
to be set by the Society. I authorize the Society, subject to
the above and to any exceptions contained herein, to
duplicate, edit, publish, or permit the use of said tape
recordings and transcripts in any manner that the Society
considers appropriate, and I waive my claim to any royalties
from such use.
)
STATE OF NEW YORK ) 8s :
WA MOSA couw* OF wes-)
/ S+ 30 1996
w pUm d New Yalt A No. 471 2406
Acknowledged before me this 11 day QlMiOdII?f&JdChdCburrty of TUdQ , 1996. Term Expires
&7k -J&k
Notary Public –
Date: 3 President
Historical Society of the
District of Columbia Circuit
iv
In-ievar Forr
1. Having agreed to condwt an oral history interview with
for tho Bistorioal Society of the
District oL Columbia Circuit, daahhgta, D.C., I,
Society and i tu *wessore and assignst all of my right, title,
and interest in the tape recordings and transcripts of
intervieua, 80 describeb in Schedule A hereto, lncfudlng literary rights and copyright^.
or pernit the use of said tape recordinga and transctipts in my
manner that the Society considers appropriate, and I waive any
claims I my have or acquire to any royalties iron suah use.
information contabed therein until it is concluded and edited,
or until I teaeive ptrmieoion from the societfi
tloward c. Westwood
Willie J. Gold8 th do hueby grant and convey to the
*
3. 1 authorize the Society, to duplicate, edit, publish,
3. I agrea that I will make no use of the interview or the
n
ACCEPTED tair A st day at 4.’: , uL~ by miel X.
Gribbon, President of the Eist
Columbia circuit.
fa1 souiety of the District of
January 21, 1992 – page8 1 through 43 of transcript
January 31t 1992 – pages 43 through 108 of transcript
April 17/ 1992 – pages 108 through 129 of tranecript
Six (6) microcassettes (undated)
3J
and (1) the n-r of tapes being Conveyed, and (2) the number of
pages of the trwipt of that interview.
Idenkify speoifieally for each htuview, the date thereof
vi
HOWARD C. WESTWOOD
Howard C. Westwood, 84, a partner in the Washington law firm of
Covington & Burling and a specialist in airline law, died of emphysema March 17, 1994, at Chevy Chase House in Washington.
Mr. Westwood joined Covington & Burling in 1934 and retired in
1979. Since then, he had been of counsel to the firm.
His law practice included helping develop government regulation of
airlines and the Civil Aeronautics Act, and the representation of
clients in the airline industry. From the mid-1950s to the mid-197’s,
Mr. Westwood also worked on legal aid for indigents. He was a
founder of the Legal Aid Society and in 1992 was awarded its
“Servant of Justice” award.
Mr. Westwood had written more than 30 articles on the Civil War for
historical journals and had presented more than 25 papers to Civil
War round tables in Washington and elsewhere. His first book,
“Black Troops, White Commanders and Freedmen During the Civil
War,” was published in 1992.
He was a member of the Burning Tree Club and a board member of
the Ulysses S. Grant Association of Carbondale, Illinois.
He was born in Cedar Rapids, Iowa, attended Swarthmore College
and graduated from Columbia University law school. He was clerk to
U.S. Supreme Court Justice Harlan F. Stone for a year before joining
Covington & Burling. During World War II, he was a Marine Corps
drill instructor at Parris Island, S.C.
vii

WILLIS J. GOLDSMITH

Willis J. Goldsmith is a partner in the firm of Jones, Day, Reavis &
Pogue, resident in the Firm’s Washington, D.C. office, and Chairman
of the Labor and Employment Law Section of the Firm’s Litigation
Group. He received his A.B. from Brown University in 1969 and his
J.D. from New York University in 1972.
Mr. Goldsmith represents management in all phases of labor and
employment law, including in state and federal trial and appellate
courts in matters arising under Section 301 of the Taft-Hartley Act,
the National Labor Relations Act, the Employee Retirement Income
Security Act, the Occupational Safety and Health Act, Title VII of the
Civil Rights Act of 1964, and in injunction proceedings. Mr.
Goldsmith also has had extensive experience in litigation before the
National Labor Relations Board, the Occupational Safety and Health
Review Commission and state and local fair employment practice
agencies, and the Equal Employment Opportunity Commission. In
addition, he has been actively involved in collective bargaining and
labor contract administration.
Mr. Goldsmith is a member of the American Bar Association (Labor
and Employment Law Section, Employee Benefits Committee;
Committee on Occupational Safety and Health Law, 1978-92). He is
an Associate Editor of Occupational Safety and Health Law,
published by the Bureau of National Affairs, and a member of the
Editorial Advisory Board of the Benefits Law Journal. He was
formerly an Adjunct Professor of Law at the Georgetown University
Law Center. He has authored a number of articles and participated in
many conferences focusing on labor and employment law issues and
is listed in Who’s Who in American Law. Mr. Goldsmith has been
admitted to the bar in New York and the District of Columbia,
various federal district courts and courts of appeals, and the United
States Supreme Court.
viii
INTERVIEW WITH HOWARD WESTWOOD
This is Tuesday, January 21, 1992. I am Willis J. Goldsmith of
Jones, Day, Reavis & Pogue and I’m here this morning in the
Covington & Burling office of Howard Westwood in connection
with the Oral History Project for the D.C. Circuit. Mr.
Westwood, just to start off, could you give me a little bit of
your biographical data, where and when you were born, where you
were educated, etc.?
I was born December 11, 1909 in Cedar Falls, Iowa.
My father at that time was a salesman. In the course of
time we had been moved from one place to another,
ultimately we were in the Twin Cities in Minnesota and
when I was 6 years old, he had decided that he was going
to be a lawyer. He had been to law school and had been
admitted to the bar in New York and, really, apparently
from the beginning, had wanted to be a lawyer instead of a
salesman. In any event, in 1916 we wound up in the little
town of Sterling, Nebraska. It was a town of about 800
people and there had been one lawyer there who had recently
died and my father decided that that’s where he would become
a lawyer, which he did. He was, two years later, elected
county attorney of that county and we moved down to the
county seat, Tecumseh, Nebraska, which is a town of about
1500 people. It was only a few miles from this town of
– 2 –
Sterling and that’s where I then went on and grew up. I
went through school there, and high school. I was
graduated from high school when I was just 16. I had an
aunt in St. Louis, that’s my father’s sister, who had been
sort of running him in a way and she insisted that I was
too young to go to college. She had me come down, with my
parent’s consent, of course, to live with her and her
husband who was a fairly prominent lawyer in St. Louis and
go to the John Burroughs School in St. Louis. That was a
co-educational, secondary school that was a considerable
thing. It had been started only a few years before. My
aunt had had a good deal to do with the starting of it and
the fact that it was co-educational was rather unique.
Well, I was there for a year and it was a tremendous
education for me, of course, and while there I decided that
I wanted to go to college but in a different part of the
country and I wanted to go to a small college and a
co-educational college. The net of it was I wound up at
Swarthmore the next year and I was at Swarthmore until I
got kicked out in spring vacation of my junior year. I got
kicked out for reasons that were a little obscure. I
think they were obscure to the administration kicking me
out and they were a little obscure to me although I had a
pretty good idea that they had something to do with my
relations with a young lady in my class whom I thought
– 3 –
very well of. But in kicking me out, they assured me
that, nonetheless, I would be permitted to finish the year
in absentia so that I would have three full years of
credit.
Well, up to that point, although all along I had
thought that I was going to be a lawyer, I had begun more
recently to think that I might become an actor because I
was very much involved in dramatics. I had the lead in
all the plays and so on at the college. But when I got
kicked out, I figured I had to face reality and instead of
fiddling around with a possible career in theater, I
decided I better go on to go to law school. Well, the net
of it all — it’s a long story and there’s a lot of
complication — but, in any event, the point is that I
entered Columbia Law School in the fall of 1930, after
just three years of college. I never did get an A.B. At
Columbia, I got along well and at the end of the first
year, I was one of those chosen for the Law Review. In
those days at Columbia, the, I’ve forgotten the exact
number; I think it was 15 from the first year class were
selected to go on the Law Review staff in their second
year and the 15 were chosen just automatically, by the
average grades. So, I had gotten good grades. Then I, of
course, worked, tried to work hard on the Law Review in my
second year in law school and the result was that by my
– 4 –
third year in law school I was selected to be the Recent
Decisions Editor, which is one of the posts on the
editorial staff that had charge of one section of the Law
Review. In effect, revising and so the work done by
second year people in working up what was called recent
decisions which were brief discussions of cases or points
of current interest that were felt to be worth noting in
the Law Review. Well, in due course, I was graduated in
the spring of 1933.
After you graduated from law school, did you stay in New York
for any period of time or did you immediately come to
Washington?
I was selected at the latter part of my last year
there in law school by Justice Stone as his law clerk.
Now, how did that work, when you say you were selected by
Justice Stone. Was there an application process?
No. He just, he just picked out someone each year.
Actually, I think the picking was done by the Dean of the
law school. I’m not sure of that, but I think so. And I
always suspected that the fact that I was a gentile may
have given me a great advantage.
Why is that?
Because there were a hell of a lot of Jews there.
They were all my buddies but, I have no idea. I don’t
want to suggest that Stone was in any sense anti-semitic.
– 5 –
Obviously he was not. But the fact that I was a gentile
made me sort of stand out, probably.
Did you have an interview with Justice Stone or were you just
hired?
Well, there was an interview but it really didn’t
amount to anything. It was a case, essentially, of his
just taking a look at me. I think he interviewed one
other person from the class. I’m a little fuzzy about
that but I think he was up there and he actually
interviewed two people.
Did he come to New York to do that?
Yeah.
He did that in New York?
Yeah. Well anyway, so after law school I rather
quickly became his law clerk and I came down to Washington
right after Labor Day in 1933.
Did you start to work for him immediately?
Yeah. That’s why, I came down with a guy from the
previous class at Columbia who had been chosen as law
clerk to Justice Cardozo. He and I came down together.
We came down as I say right after Labor Day. Stone did
not get to town from his summer place up in Maine until
nearly the end of September. There was then no Supreme
Court building. The law clerks of each Justice and,
incidentally, each Justice in those days had only one law
– 6 –
clerk, worked in the Justice’s home where the Justice
would have his office.
Where was Stone’s home? Do you recall?
Yeah. His home was on Wyoming Avenue on the corner
of Wyoming and 24th Street. That’s a very nice house,
it’s still there. The house, as a matter of fact, that he
had built. In any event, I had to have some place to work
before he came down. Fortunately, the chap that I had come
down with, the law clerk to Justice Cardozo, found that
Cardozo was here. Cardozo lived in an apartment house at
2101 Connecticut Avenue which was just a block from the
Brighton Hotel where this chap and I were staying and he
would be working there, in Cardozo’s apartment. Cardozo
had a big library in his apartment. Well, the net of it
was I asked Cardozo whether I could work over there.
Cardozo was here at the time. I asked him whether I could
work there until Stone got here and he said yes and the
result was that I became well acquainted with Cardozo, saw
a lot of him. He was a very sweet, wonderful guy and I
saw a lot of him, not only during that year that I was
with Stone, but also in future years.
What was the relationship between Stone and Cardozo?
They were very close. You see Hughes was then the
Chief Justice and Hughes was by no means a warm fellow or
one who encouraged exchange of ideas or what not and I had
– 7 –
the impression then — neither Cardozo nor Stone ever told
me this — but I had the impression that both Stone and
Cardozo were a little bit annoyed at there never being
much in the way of actual conferring and exchange of ideas
between the Justices under Hughes’ regime. But Stone and
Cardozo did exchange a great deal between them and they
were very close and were in agreement in most matters.
Well, in any event, when Stone got down here at the end of
September, of course then I began working in his home.
One wing of his home was a big library with, and his law
clerk was on, a desk on a balcony at the end of the
library. And, I had a very, very happy, very pleasant,
very fruitful year working there with Stone.
Were there any cases that you recall having worked on that were
of particular significance?
Well, no, not really. You see, this mind you was the
year 1933-34 and the great cases that were coming out of
the New Deal period didn’t come along for a couple of
years. There was one case, an interesting conflicts of
law case, Yarborough v. Yarborough. Stone was the
dissenter in the case and that was the only case really
where I was able to do much in the way of the writing of
an opinion. He practically let me write his dissent in
that case. In the other cases, in the main, I found that
he worked so fast he would have a draft of an opinion, the
– 8 –
case having been assigned to him to write the opinion on
Saturday afternoon after the Saturday midday conference.
By the time I’d get there on Monday morning, he would
typically have a draft of every opinion that he was
assigned. He worked very, very fast and it was hard for
me to try to keep up with him as far as his opinions were
concerned or to tell him what to say or how to vote or
anything like that. But in this Yarborough case, it was
interesting. He made it a point of, in effect, turning
over to me the writing of the opinion.
Why do you think he took a different position with that case
than with the other cases that he was working on?
I’ve no idea. I think he sensed that I was
interested and he was busy with the opinions which he
was writing for the Court and I think he just decided that
he’d give me some leeway. And, as a matter of fact, this
was fairly late in the term. Matter of fact, what I wrote
he did not really revise very much in the way of his
dissent. He revised it a little bit but it was
essentially just editing. And, of course, by that time,
this, as I say, this was late in the year, by that time, I
understood how his mind worked and what he had in view and
so on. But, well, I emphasize that because I know that a
lot of law clerks, later on, did a hell of a lot in the
way of writing opinions and so forth. But Stone was not
– 9 –
like that. I had a very, very difficult time keeping up,
keeping abreast of things with him.
Do you think he was unique among the Justices at that time in
having that view or did almost all of the Justices write all of
their own opinions with little input from the clerks?
No. I think he was not the only one but I think he
was one of the few where the law clerk really had very
little opportunity to do much on the opinion itself.
You stayed with Justice Stone for approximately one year?
Yeah. I had intended to practice out in the Midwest,
my thought was to go to Milwaukee, Wisconsin, which had a
socialist mayor and I’d been a very active socialist all
through college. In law school I’d organized the
student’s strike at one point and I wanted to bring on the
revolution and get rid of the capitalist system. The
socialist mayor in Milwaukee seemed to me to indicate that
that would be a pretty good place to go and live and maybe I
could start the revolution there and get the capitalist
system overthrown.
Did you wind up going to Milwaukee?
No.
What happened?
Well, what happened was that along about March or
April of 1934, toward the end of my year with Stone, I had
a call from Tommy Austern who was a lawyer with the firm
– 10 –
of Covington, Burling, Rublee, Acheson and Shorb. I had
met Tommy Austern but I didn’t know him well and I never
heard of his law firm. But he told me in this phone call,
the call may have been about the end of March, I should
interpolate something here. In those days, you didn’t get
jobs a year ahead of time the way you do now. You got
them at the very last minute and I didn’t even think of
looking for a job until around that time. Well, in any
case, about the end of March, Austern called me and told
me that there was one of the members of his firm, a man
named Acheson, wanted to see me. Well, I didn’t know, I
never heard of Acheson and I never heard of the firm. I
had met Austern just in passing but I thought well, maybe
I’ll just see this guy. The net of it was that I came
down to the Union Trust Building, 15th & H, 7th floor, and
went into the office of a man named Dean Acheson and he
immediately offered me a job to begin the following
September. And he asked me how much I received in pay.
Well, in those days, the law clerk, a Supreme Court law
clerk was paid what then was a very good salary, $300 a
month. And I told him that. He sort of gulped but he
said that they would pay me that amount. Their regular
pay was only a couple of hundred dollars more than the
regular starting pay in the big New York law firms. And
New York law firms in those days they would start a lawyer
– 11 –
at $1800 a year and Covington, I think they were starting
lawyers about $2000 a year to be just a little ahead of
New York in order to attract the . . .
So you were way ahead of the going New York rate at Covington?
That’s right. I was way ahead. And I was engaged to
be married the end of July and my wife was on the Law
Review at Columbia and she had been in the class behind
me, my proposed wife. And she would be getting out, being
graduated of course, in June and we were to be married, as
I say, the end of July and all of a sudden, as Acheson was
talking with me, I realized well, maybe I ought to have a
job instead of just aiming at going out to Milwaukee and
starting a revolution out there.
How did you come to have your socialist views? How did they
develop, was that from your family?
No, no, no, no. Not the family. My dad was a
conservative republican. No, my views were the result of
just, of seeing the world and observing all the injustice
that characterized the treatment of people who didn’t have
much in the way of advantage.
I think the earliest writing of yours that I was able to
uncover and I’m not sure if it was one of the ones that I sent
to you or not, but it was a book review that appeared in the
National Lawyers Guild Quarterly in the mid-’30s, actually the
late ’30s. The book reviewed was published in 1937. It was
– 12 –
called “Reconstruction: The Battle for Democracy” and one of
the things that I wondered about was whether or not you had
been a regular contributor to the National Lawyers Guild
publications or whether that was just a coincidence.
No. That was coincidence.
The National Lawyers Guild in the late ’30s though was a
socialist or at least very liberal left organization?
Yeah. Yeah. But I was never particularly active in
that and I don’t think that had started at that time. I
think the Lawyers Guild came along oh, a year or two
later. Well, anyway, here I was going to be married so I
figured well, maybe I ought to go ahead and take this job.
So by the end of the interview with Dean Acheson, I’d said
yes. And I told him I was to be married so that the idea
was that I would come to work, I was to be married in
July, we would have a honeymoon in August and so I would
come to work right after Labor Day in September.
Was that an acceptable arrangement for him?
That, he thought that would be alright. And that’s
the way it was.
What kind of a firm was Covington at that point?
It . . .
Was it a local general practice firm or was it . . .
No. Well, that’s a long story. I’ve written the
history of our law firm and it’s a large volume.
– 13 –
Right.
Covington, the firm at that time had about, oh, I’ve
forgotten the exact number, I think it was about 16 or 17
lawyers. It was, I think there was one other law firm in
Washington that may have been 2 or 3 lawyers larger. But
that was a firm that was engaged almost entirely in tax
practice. Covington had a national practice, a
significant amount of local stuff, but most of it was
national. But it was by no means confined to any
particular field.
When you say national, do you mean that the firm was already
representing clients on a nationwide basis?
Oh yeah. It had been started on. In 1919, it was
the first of January, 1919, the firm had been started.
Judge Covington and Mr. Burling joined together at that
time. The judge had resigned from the bench the previous
April. He had started his own individual practice in July
of 1918. Mr. Burling and he were good friends. Mr.
Burling had come here during the war and Mr. Burling saw
how interesting was the practice that the judge was
getting right at the beginning and he decided instead of
going back to Chicago where he had lived and built a
practice, he would stay here. And, from the beginning,
their idea was to concentrate on matters of national
import instead of just local affairs.
– 14 –
Where was Judge Covington a judge?
He had been the Chief Justice of the Supreme Court of
the District of Columbia. The Supreme Court of the
District of Columbia was, that was the court that, well,
it stemmed from the Civil War. Its jurisdiction embraced
the jurisdiction of the present United States District
Court, and the Superior Court. And as a matter of fact,
when I started practicing in 1934 here, it was still the
Supreme Court. The division of the court into two
branches, the Superior Court and the District Court, had
not yet occurred. And so the Judge was the Chief Justice
of the, of that court.
When you started at Covington in 1934, were there any
particular types of matters that you tended to specialize in or
did you get experience in the whole range of problems that a
young lawyer starting off would be exposed to?
No. What happened to me was that for several months
I was mainly just writing memoranda on one point or
another that one of the older lawyers needed. I do not
recall in those very beginning months, I don’t recall
anything in the way of anything other than writing
memoranda. And, as a matter of fact, I was pretty bored.
And I decided that I wouldn’t stay and I got a hold of the
chap who was second in command in the Solicitor General’s
office at the time.
– 15 –
Do you recall who that was?
Yeah, I never can remember any names anymore. He had
been Brandeis’ law clerk the year before I was with
Stone. He now is one of the most distinguished law
professors, and has been for some years, at Harvard, what
the hell is his name? He’s pretty much retired now. Oh,
…
Not Erwin Griswold?
No, no. That’s . . .
He was in the SG’s office earlier than that I think.
No, no. No, no. Well, anyway, he was, at that time,
he was second in command down in the Solicitor General’s
Office. The Solicitor General was Reed. I told him that
I was bored with private practice with the Covington firm
and they offered me a job right away. And they were a
little bit shocked at the amount that I was being paid.
Reed seemed to think that was too much to pay a lawyer,
but he suggested that maybe they would be able to pay me
that much and I was offered the job and I accepted. I’d
not told anybody back here at the firm. And I figured
that in a day or so I would tell them at the firm when I
was going to leave because I hadn’t yet worked out with
the Solicitor General exactly when I would leave.
However, about, I think it was actually maybe the
very next day after I’d had this session at the Solicitor
– 16 –
General’s office, I had a call from Spencer Gordon, who
was one of the partners, to attend a meeting that evening
at the firm. There was a case, he said, that was very
interesting and he was going to have to handle it and he
was going to need some help, and he wanted me there. The
case was being brought by a couple of lawyers from
Baltimore. They were coming over to have a session and
tell him what the case was about that evening. So, that
evening I came back to the office and Judge Covington was
there. Of course, anything that involved Maryland, the
judge was probably in charge of because he was famous in
Maryland.
And Judge Covington and Spencer Gordon and I from the
firm and two lawyers from Baltimore, one of the leading
firms in Baltimore, I’ve forgotten now the name of it,
they represented a electric utility company, a holding
company. One of the companies that it owned had a plant
in a little town in Oklahoma called Hominy, Oklahoma.
Their franchise there had expired and the town had refused
to renew it because the town was getting a grant from the
Public Works Administration to build a municipal power
plant but the private company was continuing to operate,
of course, until the municipal plant could be built. And
what these fellas had been trying to do, they’d filed
lawsuits out in Oklahoma and they’d been trying to figure
– 17 –
out some way of stopping, putting a stop to this proposed
construction of a municipal plant and require that their
own franchise be renewed by the town. But that hadn’t
been able to get anywhere. Nobody could figure out how to
do it. I think they’d actually filed suit in one or two
places which had been just thrown out. And so now they
were coming to Washington desperate, trying to figure out
whether there’s some way to sue the Public Works
Administration which was run by Harold Ickes, the
Secretary of Interior.
Is that how the case came to Washington to begin with? I was
going to ask you how a power plant problem in Hominy, Oklahoma
wends its way from Oklahoma to Baltimore to Washington.
Yeah.
So that Washington had already become a center of litigation, at
least against the government?
Well, if you were to sue the government, you had to
sue in Washington in those days. There was nothing that
would permit a lawsuit elsewhere. If you were going to
sue the Secretary of Interior, you had to sue the
Secretary. You had to, mind you. You couldn’t just sue
the United States Government, you had to sue individual
people and you had to sue the Secretary of Interior if you
wanted to stop him from doing something. And he was here
in Washington, so you had to bring the lawsuit here in
Washington.
– 18 –
You had to get personal jurisdiction?
Yeah, yeah. That was before the law had been
changed. Well, in any event, they wanted to sue Ickes and
prevent the money from being sent out there, to Hominy,
Oklahoma. They couldn’t figure out what else to do, but
they didn’t know what would be a basis for a lawsuit.
Judge Covington didn’t seem to know, Mr. Gordon didn’t
seem to know, but I knew. I had done a book note, a book
note for the Law Review the preceding year on Warren’s
Congress as Santa Claus which had just come out in, I think
it was published in 1931 or 1932, I’ve kind of forgotten.
And, of course, it was a popular sort of study of the
spending power. And, with all the cases that involved
disputes over the spending power, there was a considerable
amount of dispute on that subject prior to the Civil War
days. In later days, nobody could ever quite figure out
what limitations there might be on the power of Congress
to spend money. But back in the earlier days of the
country, there was a lot of dispute and Warren, in his
book, had been through all that and I’d done a book note
on it for the Columbia Law Review. So I had some ideas
and at that conference I told them that there were
limitations on the spending power of Congress and that
there were cases in the courts. Well, needless to say, I
had a very important mission right away and I quickly
forgot all about going to the Solicitor General’s office.
– 19 –
Had that meeting not been scheduled, presumably you would have
gone to the Solicitor General’s?
Oh, I would have gone to the Solicitor General,
yeah. So I told this friend of mine in the Solicitor
General’s office, forget it. I got something to do.
Well, our lawsuits against the Public Works Administration
were famous. I literally drafted the complaint and sought
an injunction. Of course, the matter was thrown out by
the Supreme Court of the District of Columbia as soon as
it was argued. I didn’t argue it, it was argued by
Spencer Gordon. But I had drafted the memoranda and so on.
Did that case lead to a flurry of cases challenging the
spending power of the government in various contexts other than
in the public works area?
Yeah, I’m about to tell you that.
Okay.
We were, I’ve forgotten exactly when the lawsuit was
filed but it must have been around the first of May and we
had to have a restraining order, of course, in order to
keep the money from being sent out there because if the
money once left here, then that mooted the case and then
these people, they would be stuck because they had no way
of suing out there and getting anywhere. So we had to
keep the money here to keep the case from becoming moot
and only here could we have this argument that Congress
– 20 –
could not spend money or the United States Government
couldn’t spend money for this purpose.
What was, if you recall, the theory? Why was it that Congress
couldn’t spend money?
Well, because it was a local matter. It wasn’t a
federal matter. It was a damn local light plant that they
were going to spend money on out there in Hominy,
Oklahoma. What the hell was national about that? You may
not think that was a good point but it was a hell of a
good point. And despite the fact that I was a left wing
socialist, I got a big bang out of making an argument like
that because it was completely contrary to all my, all my
sentiments and beliefs and it was very stimulating to have
to construct an argument for a capitalist electric utility
company, an enterprise that was very evil because it
exploited people and stole money from them by overcharging
them and otherwise. I got a big bang out of being able to
construct an argument in support of someone whom I hated.
Well, in any event, the, at the level of the Supreme Court
of the District of Columbia, our case was dismissed. The
government made the mistake of moving to dismiss instead
of simply opposing a motion for a, an injunctive order to
keep the money from being sent out there. That meant that
we could immediately appeal. Which we did. All this
happened in the course of, oh, hardly much, not much more
– 21 –
than a month. So, by late June we had papers filed in the
court of appeals with a request for an injunction pending
appeal.
And would that have been what is now the U.S. Circuit Court
here?
Yeah, yeah. The U.S. Court of Appeals had been
created along about 1890 and it’s been the same all along.
So appeals were taken from the Supreme Court of the District of
Columbia to the U.S. Court of Appeals?
Yeah, right. Well, we had to move very fast and
otherwise the money would be sent and that would moot the
case so we had to get, as I say, an injunction pending
appeal. I put together the papers but Spencer Gordon was
going off for his summer stay up in New England. Mr.
Burling was going to handle the matter instead of Spencer
Gordon. So I was working with Mr. Burling and I slapped
together papers seeking an injunction pending appeal so
that when we filed the appeal, we also filed the papers on
the injunction. The matter came up for hearing before the
court immediately after the 4th of July. I worked like
hell getting the papers done and so on and keeping Mr.
Burling posted. He and I went down to court, I coached
him to make sure that he knew how to argue the case. I
had been coaching him all along. He seemed to be
listening, paying attention to what I was teaching him.
– 22 –
We got into court, he got up and said very little except
to introduce me. I damn near died.
You had no idea that that was going to happen?
No I didn’t.
Was that the way things were done or was he unusual in that
regard?
Well I think that was pretty unusual. There were three
judges, three judges of the appellate court were sitting and
so I got up and I made a hell of a fine argument. And the
net of it was that they decided they would issue an
injunction pending appeal and, obviously, the appeal on
the merits couldn’t be heard until the fall. I did not
then realize as I later did that it really wasn’t my
argument that made the difference. The very fact that Mr.
Burling had appeared, that’s all that was necessary.
Because one or two of those judges knew Mr. Burling well,
they knew that he was a leading lawyer in this town and
they knew damn well he wouldn’t be coming down to the
court unless this was something of importance. But I was,
as far as I was concerned at the moment, I figured I was a
real bigshot. Well, in any event, at that point,
utilities from all over the country began rushing to us
because they’d been getting nowhere in efforts to stop the
Public Works Administration from financing municipal power
plants. And we ultimately had, and once we got the
– 23 –
injunction pending appeal in the Hominy case, it was clear
that we could get injunctions from the Supreme Court of
the District of Columbia and the Department acquiesced in
that. They realized that there was no point in just
trying to resist so, very quickly it developed that all
that was necessary for a utility to put a stop to,
temporarily, to a financing of a municipal venture was to
come to us and see me and I would have the papers drawn up
and we’d get injunctions.
Was there any other law firm in Washington that figured, this
is a good thing, why don’t we do this too? I mean, after all,
you had created the law in that area and it would have been
easy enough for another firm to follow your lead.
No. No, it was sort of understood by everybody that
all the utility companies, they’d come to us. We
ultimately had something over $400 million tied up in
temporary injunctions which for that time was an enormous
amount of money. Of course, ultimately the case got to
the Supreme Court. It was decided in 19–, I think it was
decided in 1937 by the Supreme Court, or maybe 1938, I
don’t know, I can’t remember. Ultimately, John W., not
John W. Davis, Newton Baker, was very much involved. Oh
lawyers came from all over the country, and I became
closely acquainted with them. Newton Baker and I became
good friends. I wanted to hear all about World War I. So
– 24 –
instead of talking about the lawsuit, he and I would talk
about World War I.
And who was Newton Baker again?
Newton Baker had been the Secretary of War in World
War I. My God! Don’t you know Baker, Hostetler?
Yes. That I didn’t know, a Cleveland competitor.
That was Newton Baker.
No, I didn’t know that.
He and I became real buddies. Of course I’d been
just a tiny kid in World War I and he got a big kick out
of telling me all about what. Well, the net of it was
that, of course, ultimately the case was decided and it
was decided against us, in favor of the government, which
I knew it would be that way all along.
How long did it take? We can check if you don’t know when it
was decided, but the money was tied up . . .
Oh, for 3 or 4 years.
Quite a long time?
Yeah. Oh yeah. So, and needless to say, utility
companies all over the country, a lot of them were able
during the time that there was a temporary injunction in
effect, a lot of them were able to persuade the
municipality to, not to go forward with it and so on. A
lot of things happened. But I knew from the beginning
that we wouldn’t win in the end. But what we did win was
– 25 –
the essential opportunity for these utility companies to
make deals. Well, anyway, so I was spending an awful lot
of time on that. Although I wasn’t working on that
exclusively. I was doing some other things too.
I’ve kind of forgotten what they were but about
mid-year of 1936 an aviation matter came up. And that got
referred to me.
In 1936, the aviation industry, although not in its infancy,
was certainly new, at least the commercial aviation industry.
How did that industry develop?
Well, the Air Transport Association had been formed
in January of 1936. It was a trade association of the
airlines. There were, my vague recollection is that at
that time there were, well I don’t know, fifteen or
sixteen domestic airlines and one foreign airline, I mean
international airline, Pan American. They had had no
trade association of their own prior to 1936; they had
been in an aviation organization but it embraced a lot of
aviation manufacturing and other activities. Of course,
no aviation activity in those days amounted to a great
deal but, in any event, as of January 1 of 1936, these
airlines decided they should have their own trade
association and set it up. Heading it, they got as the
president of the association a man named Edgar Gorrell.
He, as a young man, I think in World War I, he had been
– 26 –
only about 28 or 29 years old. He’d been one of the early
aviators and in World War I actually had been head of the
aviation of the Army. His picture incidentally is there on
my wall.
Which one is he?
He is the one just this side of Dean Acheson, you
see. Stone is above Dean Acheson and just this side of
Dean Acheson is Colonel Gorrell.
How do you spell his name?
G-O-R-R-E-L-L. Gorrell had been, actually, the top
aviation man in World War I. He had accompanied Pershing
to Europe and had been there at headquarters with Pershing
throughout the War doing all the planning and directing
and so on of the aviation activity. He had gone into the
automobile business after the War and had been very
prominent in that. He had been a West Pointer. He, very
fortunately, was one of the few people in the country who
sensed that a depression was coming. He liquidated his
investments on the very eve of the depression and put them
in, oh, I don’t know bonds or what not. In any case, the
result was that he was in very good shape because he had a
lot of liquid assets at the time of the depression and was
able then to reinvest on very advantageous terms. I
mention all that by way of indicating that he was, by
1936, he was a man who was comfortably fixed, was not
– 27 –
dependent on having a job with a company. He had been
famous, of course, in the aeronautics field, so when the
airlines decided they would have their own trade
association they went to him and asked him if he would
head it and he agreed to do it; and so he left the
automobile business and became head of the Air Transport
Association.
He had an uncle who was very much involved in the
Canners’ Association. That uncle had been one of the
earliest clients of the Covington law firm.
How did that happen, if you know?
Well, he lived in Baltimore, he knew Judge Covington
and he needed a Washington lawyer back in 1918 and ’19 and
came to the firm. It was one of the first clients of the
firm, and it is still.
One of the, one tends to think of “Washington lawyer” as a
fairly recent innovation, having developed in the last 30 or 40
years, something like that. But obviously from Covington’s
perspective, and your perspective, it’s a much older concept.
Well, no, Covington pioneered it, there isn’t any
doubt of that. But it was the concept of this firm from
its very beginning in 1919 and, there isn’t any question
but that the firm, at that time, when it was started, was
really unique in terms of its conception of what the
nature of its practice would be in the main. Although we
– 28 –
always had a lot of local practice and still do. But the
thrust was on the national level. Well, anyway, after
Gorrell, oh I think it was along about July of 1936, had a
legal problem and his uncle suggested that he come to
Covington. So he showed up, his headquarters were in
Chicago incidentally, so he showed up and whatever his
problem was and I’ve forgotten now what it was, it was
handled, and handled well, by Tommy Austern. Gorrell
obviously was impressed. So in about a month or six
weeks, he came back and he said what he really needed was
a regular lawyer as counsel to the Association because
there were constantly problems and, among other things, he
wanted to be able, or find some way, for the airlines to
enter into agreements that would prevent them from
wasteful competition because the airlines were in very bad
shape; it was impossible for them to make any money and
they were competing when they shouldn’t be, and they just
couldn’t get along properly. So he needed a lawyer to
give him some guidance on all these matters.
Well Tommy Austern, he came to Tommy Austern, Tommy
was real busy but Tommy got a hold of me and had Colonel
Gorrell sit down with me. So here I was, this was in
1936, I was 26 years old, and I’d been with the firm a
couple of years but I found this was kind of a fascinating
thing. And despite the fact that I had this very
– 29 –
interesting business going on with the Public Works
Administration, this airline stuff sounded even more fun
and, when Gorrell explained everything that he had in
mind, I pointed out to him that there was such a thing as
antitrust laws and that he couldn’t have these airlines
entering into agreements not to compete and so on. But I
said there is, in the steamship business, they’ve got a
provision whereby water carriers can enter into agreements
and, if approved by a government agency, they’re exempt
from the antitrust laws. It’s section 15 of the Shipping
Act. You need something like that. Well, Gorrell was a
very, very good guy and he quickly sensed that I knew what
I was talking about and he agreed that that’s what they
needed.
So, the question was how the hell do you get that
kind of legislation? Well, one thing we did was to go
have a session with Clarence Lea who was a Democrat, he
was Chairman of the House Interstate and Foreign Commerce
Committee. Gorrell knew him from World War I days when,
well, that’s a long story, but, and it’s kind of a
fascinating story, but I can’t just go on. What the hell,
I’ll never stop.
Well I’m enjoying it. Keep going.
Well, anyway, we went to Clarence Lea and Lea said
well, you can’t get legislation just exempting you from
– 30 –
the antitrust laws. It’s got to be part of something.
Well, the net of it was we decided what we really needed
was a, something like the Interstate Commerce Act
regulating the railroads. To have such an act that would
regulate the airlines but include in the act a provision
such as in the Shipping Act, providing for this exemption
from the antitrust laws for agreements between airlines
that were approved by the regulatory agency. That was
what it was decided we would do.
I’m sure he thought that was a great idea also.
No kidding. The entire history of the Civil
Aeronautics Act, and it was a long history of getting that
thing adopted, but we ultimately got it adopted in 1938,
but all the pulling and hauling and everything, it was all
as far as where the airlines were concerned, all that was
done was to get that section 15 in there. And nobody,
nobody ever, ever realized that that’s what, except the
airlines themselves, nobody on the Hill or elsewhere, they
never realized that the thing we were really interested in
was that. And we put on, Gorrell put on a tremendous act
and finally, in 1938, the legislation was adopted.
Did you accompany Gorrell to the hill?
Oh sure, sure, sure.
So that was . . .
Oh no, well I was right in the middle of the whole
thing, the drafting, and that’s a long, long story. The
– 31 –
legislative history of the Civil Aeronautics Act is quite
a story. It started as, at Congressman Lea’s suggestion,
it started as a proposal to amend the Interstate Commerce
Act. Such a proposal was actually introduced in 1937, was
a big battle about that. Oh, it, I could go on and on and
on about this. The net of it was that, ultimately, it was
decided, instead of an Interstate Commerce Commission, to
have a separate and new agency created, what was first
called the Civil Aeronautics Authority. It later became
the Civil Aeronautics Board and it had regulatory
jurisdiction, as well as a lot of other powers. But, from
the airlines’ standpoint, it was regulating the airlines.
But we had that provision for, if an airline agreement is
entered into that was approved by the Civil Aeronautics
Board, it was exempt from the antitrust laws.
Now, your involvement then with the airline industry began
then, but it continued throughout your career?
No, well, not really. I, from there, by 1938, all
that PWA stuff, all that had been done. I think that all
wound up in 1937. By 1938, obviously, I was up to my ears
in this aviation stuff and once the statute was adopted,
then there was a matter of setting up the Civil
Aeronautics Board and creating various industry agencies
that were called for. And the airlines were very small.
Airline lawyers were not experienced to any great extent
– 32 –
in anything in the way of regulation or anything of that
sort. I, as the lawyer for the Air Transport Association,
was sort of looked to by everybody as the leader and ever
so many of the problems of the airline industry would be
handled by the Association, which meant that I would be
doing the legal work and so on. So I was just busy as the
devil. And it was all very fascinating. And, of course,
from the firm’s standpoint, it was very desirable because
it meant that the firm was becoming more and more well
known all around the country. And the net of it was that
I was very much involved with that right up to World
War I, ah World War II.
World War II came along, I had a low draft number. I
probably would have been drafted by late ’42 or early ’43
had it not been that I was right in the middle, at that
time, of a very important project for the airlines which
involved negotiating with the government, means for the
government, for the military, the War Department, in
effect, to run the airlines without actually taking over
ownership. And we set that up, this was to avoid the kind
of thing that had happened in World War I where the
government actually took over the railroads. And this was
a much better arrangement. It was a contractual
arrangement. It was a contract which all the airlines
became parties to, with the government, which in effect
– 33 –
said anything the government orders, we will do and then
compensation will be worked out for carrying any
particular orders. Well, I was in the middle of doing
that when my time would have come up. So I got a
deferment from the draft on that account. In the
meantime, back in 1939 and 1940, I’d been divorced, I’d
been remarried to a lady who had a child so that I had a
family to support and, but that is not what actually
contributed to the deferment of my draft. The point was,
it was all this airline stuff that was going on. In any
case, we ultimately got all the airline business worked
out.
And what do you mean by that, the Civil Aeronautics Authority
was set up, the CAB was in place, . . .
Oh, that had already been. That was all done
earlier. No, this was in the War Department they set up
the Air Transport Command, the airlines had
representatives there, and what they did was, in the War
Department, actually with the Air Force ready to receive
any kind of an order that the Air Force wanted to give and
then we worked out channels thereupon for the order to be
transmitted through industry agencies and the airline
would immediately drop everything else it might be doing
and carry out the military order.
So that’s the system that was in place and all set up?
– 34 –
Yeah, we set it up. Well, in any event, all that
finally got set up and at that point there was no basis
for deferring the draft of me. However, I found by that
time, it turned out that anyone with dependents was not
being drafted. So here I was, I had escaped the draft by
this deferment and I was, my conscience would have hurt me
like hell if I had thereupon just taken advantage of the
deferment and escaped the draft entirely. So, even though
I was no longer liable to be drafted, what I did was to
enlist in the Marines. I wanted to be a Marine because my
then-wife’s cousin, of whom she and I had been fond, had
been a hero at, in the Marines, at Iwo Jima, he had been
killed and I decided I would be a Marine. So, I tried to
get a commission but that was turned down. I think
probably, I’ve never known, but I think that lots of
people were getting commissions and I never could quite
figure out why. I think probably it was because I had
been a Socialist and what-not.
In any event, I went to Parris Island, I went through
boot camp and it turned out that while I was in boot camp,
the Marines decided what the hell, all the drill
instructors who’d been there from the beginning of the
war, it was time for them to go to war. So anybody who
was then in boot camp who had been to college was picked
to be a drill instructor. So when I got through boot
– 35 –
camp, I was made a drill instructor. I was 34 years old,
which was an old man. Matter of fact, I think in my boot
platoon, I think I was, if not the oldest, the second
oldest in the platoon. I became a drill instructor and
that was really something. That was fascinating.
It’s quite a change from being a Washington lawyer to being a
drill instructor at Parris Island.
I was a drill instructor until the end of the year,
this is 1944. By the end of the year, the Marines decided
the war was about over; they made a big mistake and they
actually began to cut back. So I was about to be sent off
to fight the war instead of just instructing kids at
Parris Island. I found, however, and Colonel Gorrell had
a hand in this, I’m sure, I’m almost sure. In any
event, it’s a complicated story but I found that instead
of being sent to the Asian War theater, I was brought back
to Washington and I was put in a job down in the Navy
Department for a while, which was terrible; a stupid job
but I later discovered that I was, that was not the reason
I’d been brought back here. I’d been brought back here to
become Secretary to what was called, to be called the Air
Coordinating Committee. That was a new committee . . .
Was that within the war Department?
It was a sub-cabinet committee, State, War, Navy, Post
Office, CAB and Department of Commerce. The top officials
– 36 –
from all those agencies were members of the Air
Coordinating Committee that would coordinate all wartime
aviation activity. Anybody in the government.
Everything. And I was to be Secretary to that Committee.
What did being Secretary involve?
The people who were running things assumed that the
Secretary should build up a great big staff and have a
whole big agency and see that whatever the Committee
decided should be done by anybody was carried out. My
idea was that there should be no staff at all and I didn’t
have anything more than two ladies, one was my secretary,
stenographer, and the other was sort of my assistant. But
each of the agencies that was involved in the Committee
had a person designated as liaison with me. So the
Committee would meet, not once a week, but nearly once a
week, the Committee would meet and very important
decisions would be made. Then what I would do would be to
see that the decisions were executed. Not by the
Committee’s staff but by the several agencies of the
government that were involved.
What kind of issues came up before the Committee?
Oh, everything you can imagine, all kinds of things.
Moving airplanes from one place to another, getting
supplies for the military in some remote island in the
Pacific where the supplies were in the hands of somebody
– 37 –
back here and they had to be transported and, just
everything you can think of that would involve any kind of
non-military airplane. And if it was the military
airplane, obviously the military itself would be doing it,
I mean the particular military agency would be doing it,
but the Air Coordinating Committee, what it was doing was,
in the main, handling any kind of aviation matter that
went beyond the War Department.
So would this also have to do with coordinating or setting
rates, compensation for the airlines?
Compensation, yeah and rates, of course, would be set
by the civilian agency but if it was a matter of having to
work out compensation for some particular mission that was
done by an airline, then this Committee would be involved
in seeing that it was properly done.
Did that Committee supersede, during the war, the Civil
Aeronautics Board?
Oh no.
Or just work side by side?
No. No. They weren’t side by side. And as soon as
I, when the war was over, in September of 1945, I wanted
to get back to civilian life as soon as possible and it
was wonderful. They let me do it. This Committee
continued its work on for quite some time. But I left
that post by the end of September of 1945.
– 38 –
Did you come back to Covington?
Oh yeah. Sure. That Committee continued in, God I
don’t know whether it still exists or not, but it went on
and on for a long time. But instead a few weeks, maybe
even a few days after I left, they had a huge staff.
That’s the Washington way.
It was funny as hell, really. No kidding; it was
tremendous. We had done a great job. We just . . .
And the war was over . . .
Oh the Air Coordinating Committee went on for a long,
long time.
Did you pick up with aviation-related work when you came back
to the firm?
Oh, when I came back, in the meantime, when I left,
the Air Transport Association obviously then was without a
lawyer and what they had decided to do was to set up their
own legal department. Now, as a matter of fact, there was
one of our lawyers ultimately went with them and was one
of their legal staff. But they got a guy who became what
amounted to their head counsel and Stuart Tipton had been
prominently involved in the government on the aviation
side. I’d worked with him and so on and he, Colonel
Gorrell, persuaded him to come with the Association and he
set up a legal department so that all that was done as
soon as I left.
– 39 –
But you remained outside counsel to the Association?
No, no.
No?
No, this was done after I left.
Oh, I see.
No, as long as I was there, I was it.
Right.
And the firm was it. But it was only after I left
that all this was set up by the Association.
And when you came back after the war, did you pick up where you
left off?
No. When I came back after the war, I had been
approached, as a matter of fact just before I came back,
by American Airlines which was the largest airline of the
U.S. airlines. It was larger than Pan Am and larger than
any of them. And they wanted me to become their principal
lawyer and so, that’s what happened. And when I came
back, there was some talk about my going to New York.
Well, their headquarters were at first in Chicago and then
were moved to New York. There was talk about setting up
an office in New York and having me go there and I
refused. I wouldn’t, I was coming back to the firm. I
wasn’t going to their payroll, but I would be there, their
lawyer. And that’s what happened. That went on for, oh,
I don’t know, about 20 years. I was head over heels in
– 40 –
that aviation work. It was an enormous amount of law work
for airlines right after the war.
Did you begin to represent airlines other than American or only
American?
Only American. Oh you couldn’t because of . . .
Conflicts?
Conflicts of interest. We did do some work for
Penagra. That was, as a matter of fact, I had done
some work prior to the war with the Grace Lines. Grace
Lines owned half of Penagra, Pan American owned half and
Grace Lines owned half of Penagra, which operated from the
Canal Zone on down the west coast of South America.
Did you come into contact with Welch Pogue during those periods?
Well sure. He was Chairman of the CAB. Oh yeah.
Welch was representing Eastern, I think, for awhile.
No. No.
Pan Am. Do I have it wrong?
Well, after the, of course he was Chairman of the CAB.
Right.
Now after the war, they, Welch, the Pogue firm
represented, they did quite a lot of work for several
airlines from time to time. Eastern was one. Well, my
memory is fuzzy. But, of course, one of my very close
friends was Bob Oliver.
Right.
And he still is.
– 41 –
Was most of the airline work regulatory and legislative in
nature?
Yeah.
As opposed to much litigation?
No, there was regulatory. Now there was some
litigation involved in all that.
Were you yourself doing any litigation at that point or had you
given most of that up for others in the firm?
Well, no.
After your success in the initial argument . . .
No, I, from 1945, late 1945, when I got back and we
started this work for American, on to nearly the end of
1950, I did practically nothing except American Airlines
and that was, a lot of that was administrative agency
hearings, and so on. There was a certain amount of court
work but usually that was in the appellate court. I don’t
remember anything in a district court in the way of a
trial for American.
Were most of these matters involved with rates? Can you pigeon
hole it in any way?
Well yeah, it was regulatory when new routes . . .
Routes?
There was a lot more of fighting over routes than
there was over rates. There wasn’t much in the way of
rate regulation because the rate levels, there was a, you
– 42 –
see, competition was carefully controlled and, back in
those days the airlines were really on a pretty stable
level. They were expanding, growing rapidly, getting
along very well and with the kind of regulation provided
by the CAB, there was not much in the way of cutthroat
competition. Things were handled on a pretty healthy
basis and the, the net of it was that it was just
unnecessary to get involved much in the way of government
activity, notably on expanding of routes. The new route
cases. There was a hell of a lot of that and competitive
disputes about one thing and another and so on. But it
was a large order.
Was there anything that happened in 1950?
Yeah. Among other things, American had acquired an
interest in, along with a steamship company, in American
Overseas Airlines [”AOA”] operated from New York to
Europe. And this had been started right at the end of the
war. In the immediate post-war period, there were a hell
of a lot of regulatory problems in connection with AOA.
It was, of course, a competitor of Pan American and so
on. So I had a lot of that work to do as well as all the
tremendous amount of domestic airline problems.
In 1950, C.R. Smith decided that there was really no
very attractive future in international aviation. So . . .
– 43 –
And C.R. Smith was?
The head of American Airlines. So AOA was sold to
Pan Am and there was one hell of a battle about the sale
as to whether it would be okayed because it had to be
okayed by the government and there were a lot of arguments
against that.
Was American the principal shareholder in AOA?
Yeah, yeah it was 50/50. Well, the net of it was
that we were, we had to go to court, the president, Truman
was then president, the sale of AOA to Pan American was
approved. There was litigation; we had to go to court; we
won the litigation and so on. It was a big, a tremendous
case; it attracted a lot of attention and was quite a
famous case. And I won it. After that, I decided I’d had
a belly full of aviation and from there on, most of the
aviation work was done not by me but by others in the firm.
You’d just gotten tired of dealing with the issues or the
people or the . . .?
Yeah. I continued, obviously, I had to continue to
be involved to an extent but I mainly got off on other
things.
This is January 31, 1992, and I’m meeting again with Mr.
Westwood. We left off when we last met, Mr. Westwood, with
your having, as you put it, more or less having had a belly
full of aviation and moving on to other matters in your law
– 44 –
practice at Covington & Burling. I know that there were three
cases of particular significance that you were involved in, the
Steel Seizure case, the Texas City disaster case and the Perez
Jimenez case involving the extradition of the then-dictator of
Venezuela and I thought that perhaps we could talk about those
three cases this morning. Why don’t we start with the Steel
Seizure case? When did that arise, if you recall?
Well that, that arose in the spring of 1952. Truman,
Truman’s administration you see would come to an end in
the next year. There would be, as a matter of fact,
Eisenhower was elected in, you know in the fall of 1952.
So this was right toward the end of the Truman
administration. What had happened was that there had been
a great dispute going on between the management of steel
companies and the labor unions over wages. It finally
became evident that there was not going to be an agreement
and the labor unions were going to go on strike. What
Truman did, feeling that a strike of the steel industry
would be a very critical thing, what he did was to prepare
to take over the steel companies on the theory that the
labor unions would not strike against the United States
running the steel plants and, obviously, there had been some
overtures with the labor unions and so on on the subject.
Well, the likelihood would be that under the, during the
time of the federal government having control of the steel
– 45 –
companies, wages would be increased. This was not exactly
what management wanted to have happen because there would be
no way in the world, as a practical matter, for them to
get back to their previous wage levels and continue with
collective bargaining with the labor unions. They would
be faced with a fait accompli and it was perfectly obvious
that the labor unions were sort of playing footsie and
playing ball with the federal government in the takeover.
The net of it was that the steel companies figured that
they were going to have to somehow or other try to resort to
litigation to prevent the federal government, the
President, from taking over and running the steel industry.
U.S. Steel came to us, this was John W. Davis’ firm in New
York, obviously with the thought that we would be local
counsel, but that they would be really handling the matter.
And we had quite a meeting with them. Well, Mr. Davis had
been an old-time friend of our law firm and we’d, we’d known
the Davis firm from way back and our relations always have
been very cordial, but we made it fairly clear to them that
sure, we would, we would be delighted to jump into the case
with them but we were going to be very actively involved,
we weren’t going to be simply names with their doing all
the, all the work and so on.
Was there any resistance to that on their part?
– 46 –
No, no, not really. Now we’d had a very, very happy
relationship with that firm over many, many years and we
had worked together on a lot of things. Well, the net of
it was that as far as our work was concerned, I was pushed
in charge of that and working with the Davis firm and
ultimately, as I say, with, very closely with Mr. John W.
Davis. We began right away, this was on the eve of the
seizure, the seizure had not actually occurred yet, but
the effort was going to be to forestall it somehow or
other. Well, it’s a long and very complicated story. The
other steel companies all around the country, they too
were planning to get into litigation and as matters turned
out, although we were working hard on drafting the
necessary papers and so on, but as matters turned out,
there must have been at least a couple of steel companies
that actually filed suit here in the District of Columbia
to enjoin, in an effort to enjoin a seizure before we
did. Now that wasn’t because we were delaying, but we
were probably taking somewhat more pains with the drafting
of papers than one or two of the other steel companies
that got ahead of us on filing the lawsuits. As it turned
out, in the end that didn’t make any difference. In any
case, we soon got our lawsuit filed to enjoin the seizure
and a whole flock of other steel companies got their
lawsuits filed and the . .
– 47 –
Were they separate lawsuits or did they join in yours?
Oh, no, no. They were separate lawsuits. A whole
flock of them. I’ve forgotten how many, but a whole flock
of them. Ours was just for U.S. Steel. But, of course,
U.S. Steel was the most prominent and biggest of all the
steel companies so their position was very critical.
Well, the net of it was that an immediate restraint was
sought from the district court and the district judge,
well, there was a big argument before the district judge.
One of the lawyers, the New York lawyers from the Davis
firm participated in that argument. We did not. We were
busy, still busy because we knew that whatever happened in
that argument, that it would have to go to the Court of
Appeals right away and then would get on to the Supreme
Court right away because everybody realized that the case
was going to be fought to the Supreme Court and that it
had to be disposed of almost within a few weeks. Finally
disposed of. And it was to be a unique type of
litigation. Well, the district judge, in effect, decided
in favor of the steel companies. But the whole proceeding
before him was a kind of shadowboxing really. It didn’t
make any difference which way he decided.
Because it was going up anyway?
Oh sure, right. And then it had to get into the
Court of Appeals and the government moved very quickly to
– 48 –
get into the Court of Appeals, literally overnight. We,
by that time, were taking pretty much of a lead. I had,
with me I had two or three of our very best lawyers, Stan
Tempko and Paul Warnke, and we were literally spending 24
hours a day and I mean it, moving on this thing. And, as
I say, we were really taking the lead by then. All the
steel companies, and they were kind of, I don’t mean to
look down on the others, but we were, it was easy, easiest
to sort of coordinate through us and we were, we had been
doing rather more fully the research and that sort of
thing than had been done by the other local law firms
here. You see, with the matter coming on, with everything
happening almost overnight, it was next to impossible for
law firms out in the country at large, be they Cleveland
or New York, or Boston or whatnot. It had to be. Moves
immediately had to be taken by the law firms that were
right here in Washington and that inevitably put us sort
of in the lead. Well, in any event, the matter got into
the court of appeals and although, although the steel
companies had been successful in the lower court, the
court of appeals was not quite of the same sentiment.
Did you handle the argument in the court of appeals?
Well, yeah. You had to because the argument, in
effect, was really an argument having to do with a
temporary relief. The government was just going to go
– 49 –
right on. See, they could go on to the Supreme Court
directly. The question was whether there would be any
kind of an outstanding injunction while they went on to
the Supreme Court. Well, the net of it was that the court
of appeals, we had a big argument one day and then, and
the court of appeals, in effect, rejected our position.
But, this meant that they would be going right up to the
Supreme Court.
Did the government make any effort, immediately upon the
dissolution of the district court’s restraining order, to take
over the steel mills or was there an understanding that it was
going to be litigated?
Well, this was the big issue. On the day that the
matter was argued, this, I’ve forgotten how long after the
matter had been disposed of in the district court, it
could have been the next day, it was all very fast. The
first appearance in the court of appeals, when, at the end
of which the court decided against us, apparently it had
not been really focused on that if the seizure were not
held up, the case kind of became a moot, moot in a sense.
And what we did, at the end of the first day when the
court immediately announced that, deciding against us,
what we did then was to, the lawyers were all lined up
before the bench when the court called us back to announce
their decision . . .
– 50 –
That same day, the day that it was argued?
Yeah, oh yeah. It was argued in the morning and the
court had us back there about, oh I don’t know, about 3:00
in the afternoon.
Do you remember who was on that panel, which judges? It’s
obviously a matter of record, but I’m just curious.
Yeah. Well, Lord, I can’t remember names but they
were very important judges. No, this was a time when the
court of appeals had some real top flight judges, I’ll tell
you. Well, anyway, when the decision was announced, it
was, it seemed obvious that the court had not focused on
the fact that if the, that the case might actually get
mooted if the government went on with a seizure while the
matter was still pending before the Supreme Court. So
here were the lawyers lined up in front of the judges as
the, right after the announcement of the decision and I,
in effect, took the lead in saying well now, wait a minute
your honors, we gotta hold this darn thing lest it become
moot. Because it’s going to go to the Supreme Court right
away. I didn’t say it in so many words, but it was
perfectly obvious that I was getting across the idea that
this was just a waste of time. Well, the net of this was
that the, in very dramatic circumstances and I can’t give
you all the detail of it, but it was really like a movie.
The net of it was that the judges decided that they would
– 51 –
have a further proceeding the next day, not to review
their decision, but to see what, if anything, should be
done in the way of holding things up until the matter got
to the Supreme Court. Well, the next day I was the guy
who really did the argument for all the steel companies
because everything was, it was a great emergency and I and
my brethren worked, literally we worked right straight
through the night getting ready for the appeal because
that was what was going to be critical. The net of it was
that at the end of this argument the next day, what the
court decided to do was not to give us an injunction
pending appeal, which we were seeking, but to give us what
would amount to a temporary injunction. That is, they
would frame an order on the appeal from the district
court, they would so frame an order that the government
would not become free of restraint until, oh, I think it
was the following, about three or four days in the future,
I’ve forgotten just what the time element was.
So they were not going to permanently hold this . . . ?
Obviously they were giving us, intending to give us
an opportunity to get to the Supreme Court and let the
Supreme Court really decide what the hell was going to be
done. OK. So then it became perfectly clear that the
real big burden was going to be on us and our law firm
here . . .
– 52 –
And on you?
Yeah, and on me. And Paul Warnke and Stan Tempko.
And it was one other guy, gosh, I can’t remember his name
now, who was working with us, the four of us were working
on this thing and I’ll tell you, we got very, very little
sleep. But what we had to do, first of all, we had to get
a petition to the Supreme Court to review the case and
even though, even though we had been successful down in the
district court, there was nothing to prevent us, the
successful ones, from petitioning for direct review by the
Supreme Court instead, and skipping the court of appeals.
And why again would that have been the case?
Oh yeah, the Supreme Court would have an opportunity
as soon as an appeal was filed in the court of appeals,
the Supreme Court could grant direct review by it instead
of waiting for the court of appeals to review the matter.
And that’s what we were all, that’s what the government
wanted to do, you see, after losing the case in the
district court. And the, all this argument in the court
of appeals about injunction, that all would be only
temporary while the matter was getting on to the Supreme
Court. Well it was perfectly obvious that the government
assumed that they could get their papers, oh, maybe by the
end of the week, for Supreme Court review and they were
absolutely dumbfounded when, before they filed anything in
– 53 –
the Supreme Court, we had, on behalf of U.S. Steel, we had
papers filed in the Supreme Court seeking review, even
though we had been the successful ones in the district
court. But the point was, we also were seeking injunctive
relief pending appeal so that the matter wouldn’t be
mooted.
Right.
This caught the government completely by surprise.
They were amazed. And we had been able to do this because
literally we worked all night and we had damn good
papers. The reason we were doing it was tactical. We
figured that the most likely way of getting protection by
a temporary injunction pending appeal issued, or a
restraining order pending appeal, issued by the Supreme
Court itself would be by gearing up and getting things
filed and making it clear that there really was a great
emergency, etc. The net of it all was that we were
ultimately successful in that tactic and the net of it was
that the Supreme Court actually did, immediately, issue a
restraint on taking over the, against any seizure pending
the determination of the matter on the merits by the
Supreme Court. And they also set the case for virtually
immediate argument. I think the argument on the merits
was, oh, I’ve forgotten the exact timing, but maybe a
couple of weeks. So we had to brief the case and then get
– 54 –
to the argument, all, you know, in overnight periods.
Well now, what we did, I, with Stan Tempko and the other
guy, we actually went to New York City and worked directly
with Mr. Davis, at Davis, Polk there in New York City, on
the papers, the brief and so on to be filed in the Supreme
Court.
Was he going to do the oral argument in the Supreme Court?
Oh yeah, oh sure.
And that was understood?
Oh yeah, what the hell, John W. Davis. And they,
ultimately what happened was that all the steel companies,
in effect, bowed to him to have him do the argument except
for, there was one company that insisted that their
lawyer, Charles Tuttle, be, or participate in the
argument. Charles Tuttle, incidentally, had been my first
father-in-law. [Laughter] But he was no longer my
father-in-law by that time. But, in any event, it was
John W. Davis and the brief filed by U.S. Steel would be
the brief that would be the leading brief and that’s what
we were working on in New York. And we played, we played
a principal part in the writing of the brief, working
directly with Mr. Davis. There was one of the partners in
Davis, Polk also was involved, but nowhere near as much as
we were. And I found it extremely interesting because I’d
always been a Socialist and John W. Davis, of course, had
– 55 –
been the Democratic candidate for president in 1924,
which, that whole campaign year was, to me, sort of a
joke. That was the year of the third party, when Wheeler
and LaFouette. And I’d always tended to think of Mr.
Davis as kind of an instrument of the capitalist system.
[Laughter] But here I became really very well acquainted
with the guy and the guy was wonderful toward me. Here I
was very, very young compared to him. By that time he was
an old man and world famous but he treated me as an equal
and we had a great time there in New York working together
on this brief. And I, I may say that for me, not only did
my esteem for Mr. Davis go high, higher than a kite, but
it was a tremendously exciting experience. Well then,
ultimately, there was, of course, the argument before the
Supreme Court and the brief that we had done on behalf of
U.S. Steel was obviously the lead brief and the case was
won to the amazement of everybody.
Was it really to your amazement?
Well, we, by that time I suppose we had convinced
ourselves that we were going . . .
It is always the risk that any litigator has.
Oh sure.
But, when you started off, did you think that it was really
…
– 56 –
When we started off, we figured it was going to be
one hell of a fight and the chances much against us.
After all, here was the President of the United States and
how in the hell could a bunch of steel companies enjoin
the President of the United States from doing something
that he figured ought to be done.
But the constitutional questions were certainly very serious.
I haven’t read that case in many, many years, but thinking back
on it, it doesn’t strike one when you read the case as it
having been, constitutionally, an uphill battle.
No. No. That’s true and you know, you look at it as
surely, purely as an academic matter. But practically
speaking, politically speaking, the idea of in a great
economic emergency, which there was, . . .
And the sole emergency being that if the steel companies went
on strike, everything would stop all, or a lot of manufacturing
and so on.
Oh sure.
Do you recall whether the steel workers, the Union, actually
participated. I don’t recall, were they in the litigation?
Well, I, for the life of me, I don’t remember whether
they were a party to the, a party, yeah, they must have
been a party to the litigation. In any event, they
certainly were very much involved in the whole . . .
And that would have been, would that have been when Arthur
Goldberg was General Counsel to the Steelworkers?
– 57 –
Ah, yeah. I think, isn’t this ridiculous? I think
Goldberg was involved.
That would have been about his time there. I’m not really
certain, but that was quite an array of legal talent that was
brought to the matter.
Oh, this was, this was blue ribbon stuff, there’s no
doubt of that. But for me personally, the exciting thing
was to become so well acquainted with, and work so
intimately with John W. Davis and it, I was absolutely
amazed that one who had been in favor of maintaining the
exploitation of the masses by the capitalists’ society
should be such a nice guy. [Laughter] He was absolutely
wonderful toward me and he treated me, in every sense,
this wasn’t just a pose, as an equal and we, there in his
offices, we were preparing the brief, we would have
regular sessions, the two of us, there in his office with
two or three others sort of sitting around as though they
were audience, arguing back and forth exactly how the
argument should be developed and so on. And the guy was
marvelous. Well, that was a big case and that was won.
Did you continue to represent U.S. Steel after that on
Washington matters?
Well, oh yeah. We had done, I can’t remember whether
there were other U.S. Steel matters that came up after
that. U.S. Steel, their regular counsel, of course, was
– 58 –
Davis in New York and it’s very likely, because we had
done, over the years we had done a lot of work with Davis,
Polk. For them here in Washington and they for us in New
York.
I see.
See, in those days you didn’t yet have a lot of
Washington offices of law firms outside. Law firms
hadn’t, nothing like what has happened since where law
firms are spread around.
Right. You also were involved in the Texas City disaster case?
Yeah. Well that . . .
The disaster, as I recall, it was refinery explosion. Is that
right?
Well, it was, a tremendous amount of material was
being loaded on to a vessel in, this was explosive
material, down at the wharf in Galveston. Or in Texas.
Down in Texas City, down there at this wharf. And it
exploded and it, of course, was a tremendous, tremendously
damaging thing. Not only property but otherwise. It was
a huge, huge explosion. Almost incredible. Litigation
was begun. Practically every lawyer in Texas was involved
in it. We were not involved. Practically every lawyer in
Texas was involved.
This would have been personal injury litigation and the like?
– 59 –
Oh, a whole flock of things. And the matter went up
to the Fifth Circuit Court of Appeals.
Which matter would that have been, Mr. Westwood?
Well it was . . .
What were the federal questions or . . .
Yeah, it, I’m trying to, this is ridiculous. I’m
trying to think now. I’m trying to think what the basis
for the federal jurisdiction was, whether it was, it could
have been diversity.
Were you involved at the Fifth Circuit?
Oh no. No. We weren’t involved at all. But in any
event, the Texas lawyers, the plaintiffs’ lawyers had been
successful in the, in the district court level. They got
up to the Fifth Circuit and they lost. And that’s when
they came to us. And the matter was brought, as a matter
of fact, to Mr. O’Brian. Now Mr. O’Brian, you see, was
getting to be a pretty old man. He was 70 years old when
he came to our firm.
Really?
Yeah. He came in 1945 and he was, he was 70 years
old. But he was still very, very vigorous at that time.
Of course, this was, this Texas disaster case was in 1950,
I guess it was the fall of ’52 that, or late summer or
fall of ’52 that it came up. So Mr. O’Brian was, he was
still vigorous, but he was getting pretty old. I was the
– 60 –
guy who was assigned to work with him and work on the
briefing of the case and so on and help him get prepared
for argument.
Before the Supreme Court?
Yeah.
Who was the defendant in that . . . was it . . . I want to say
Mobil or one of the, one of the major oil companies, but I
can’t remember.
Hmm.
Well, in any case, that side of it we can easily fill in the
blanks on.
It’s perfectly silly the way I’m running into
blanks. I’m just getting too damn old to remember these
things. Well, in any event, we had to prepare a petition
for cert and that got dumped in my lap, which we did, and
cert was granted. Then there was the matter of briefing
and ultimately the argument. The Texas lawyers had, as I
say, nearly every lawyer of any consequence in the whole
state of Texas was involved in this case; but what the
Texas lawyers did was very sensible. They had wanted Mr.
O’Brian, they had very deliberately decided that they
wanted him to be handling the case in the Supreme Court
and what they had done was to, was to agree that a
particular lawyer would work with us and with Mr. O’Brian
instead of having a whole flock of lawyers trying to
– 61 –
work. And one of the leading partners in a leading firm
in Houston was picked for that. But there were also
involved in this case some admiralty issues, or at least
potentially involved and there had to be an admiralty
expert who would be with, helping with and available to
Mr. O’Brian in, and us, in working up the brief and
potentially in the argument. So, in addition to this
leading lawyer in Houston working with us, there was also
another lawyer in Houston who was one of the leading
admiralty lawyers in the country as a matter of fact but
certainly down in that part of the country, who was
likewise designated to work with us, or at least be
available on call in connection with any admiralty issues.
That lawyer was a guy named Brown, first name John. He
had grown up in the state of Nebraska. He’d somehow or other
gotten to Texas and had developed quite a practice there.
Ultimately, of course, he got to be on the court of
appeals for the Fifth Circuit. Ultimately he became Chief
Judge of the Fifth Circuit. Ultimately the son-of-a-bitch
was coming to visit me about every, every few months and
ultimately the son-of-a-bitch was here only about two weeks
ago.
Is that right?
We became very, very close friends.
As a result of that litigation?
Sure. That’s where it . . .
– 62 –
That’s where it began . . .
Oh yeah. We got very closely involved because they,
these two lawyers from Texas, including that guy,
practically had to live with us doing the brief because
there was a tremendous record; it was terribly important
to get the brief done in a way that would meet all of the
needs and the views and so on of all of these lawyers in
Texas. And, at the same time, would be a damn effective
brief.
And writing briefs by committee, the most difficult thing of
all to do?
And we were extremely successful and I may say the
Texas lawyers were very smart not to try to intrude but to
leave everything to these two guys they had picked to work
with us so that it turned out to be a very, very smooth
operation. And then the matter ultimately was argued.
Did Mr. O’Brian do the argument?
He did but I had to get into it.
In the argument?
Oh yeah.
How did that come about?
Well, he, Mr. O’Brian was getting very old and there
were parts, he and I had divided the argument. He was
going to deal with certain aspects and then I was to come
along and deal with the other aspects. As it turned out,
– 63 –
I had to, almost to take up my part of the time, I’ve
forgotten whether we each had a half-hour or each of us 15
minutes, whatever the, I don’t remember now. But, in any
event, it was darn near necessary for me to cover the
whole, the whole matter.
In your time?
In my time, yeah. But, in any case, the case was
ultimately decided. Every one of the good judges,
justices on the Supreme Court voted our way. The trouble
is,…
There weren’t enough of them?
[Laughter] There weren’t enough of them. Right.
I’ve forgotten now what the vote was. I think it was 4-3;
it seems to me there were two who did not participate. I’d
have to double check. I think that’s right. And we got,
we got the three best.
Well, there’s some solace in that isn’t there?
Oh yeah. But it really was very funny. Frankfurter,
let’s see, Black, Frankfurter, I think it was Black,
Frankfurter, I don’t know, I’d have to check it, but, and
Roberts I guess, maybe voted with us and then, and these
other idiots voted against us. It was, and, of course,
the opinion that the Court wrote was absolutely impossible
and . . .
Impossible to understand?
– 64 –
Oh yeah. Sure. And they haven’t adhered to it in
future years.
Do you recall what the major issue was in that case?
Well, the, what the hell were we arguing about
mostly? I guess the real basic issue was whether there
had been negligence of some kind. In other words, any
kind of culpable conduct in the loading of this stuff.
And, the opinion that was written in effect held that
there was not and in, and I’m about 99% sure that not
once, but several times since, there have been decisions
and opinions by, even by the Supreme Court itself, that
are just plainly inconsistent with what was dished out.
And it was perfectly obvious that the, the thing that was
wrong, the weakness in the plaintiffs’ case was that they
asked for too much money. And we told them that. When
the matter first came that the complaints and so on that
had been filed simply, for that day and age, asked for too
much money. And there is very little question but that
the Supreme Court was, the majority of the Supreme Court
was moved to decide the case as they did because there
would have been involved entirely too damn much payout.
A practical reason.
I don’t think there’s much question about that. And
I think lawyers at the time pretty much agreed that the
tactical mistake made by the Texas Bar was very serious
– 65 –
when they, when all the litigation was first being
evolved. They just were reaching for the moon.
That’s been a practice in Texas that’s continued unabated. Why
don’t we talk about the Venezuelan extradition. The extradition
of Perez Jimenez who was, as I understand it, the then-dictator
of Venezuela, is that right?
Well, he was not at that time. He had been.
I see.
Yeah. In the summer, in August of the year whatever
it was, I’ll have to doublecheck the year. On a Saturday,
I was working in the, in my office at the firm. Saturday
mornings in those days I found very important because
they, you could really get some work done at that time.
And there looked in on me Dean Acheson, he was working
also on that day and he told me that there was an
extradition case that was going to be coming from
Venezuela and he wanted to know whether I would handle
it. Well, I never heard of an extradition. I guess maybe
Dean Acheson had heard of extradition, but he didn’t know
anything about it. But I always figured that I could do
anything. I was not an aviation lawyer or any other kind
of specialist. I was a lawyer and lawyers are supposed to
be able to do anything that a client needs. So I said
sure, I’ll handle it.
– 66 –
The net of it was that the, I was soon meeting with
the Ambassador of Venezuela, the Venezuelan Ambassador.
The Embassy, incidentally, was just around the corner from
my home which . . .
Made it very convenient.
In the end that made it really very convenient
indeed. This was, yeah, this was in 1959. That’s right.
In August of 1959, yep. Well, to make a very involved
story somewhat simpler, it, I was advised by the
Venezuelan Ambassador that Perez Jimenez, who had been the
dictator of Venezuela, was living in Miami. That the
Venezuelan democratic government had, in effect,
overthrown Perez Jimenez and had installed what was a
genuine democracy down there and that proved to be quite
genuine. It was extraordinary. That they had found that
Perez Jimenez had committed various crimes. He had, in
effect, misappropriated money and stuck it in his own
pocket. He was also accused of causing the murder of
certain people and they, the democratic government of
Venezuela wanted to extradite him and get him down there
and try him on both the murder charges and also the
mal…, what they call malfeasance, misappropriation of
funds. Stealing.
Not to put too fine a point on it, but stealing.
– 67 –
So the Ambassador told me that the papers were coming
right away and all that, apparently all that was necessary
was that I just get them filed and, well, I didn’t know
anything about extradition and the firm didn’t know
anything about extradition.
Nor do I, yet. So you’re going to have to educate me a little
bit.
And Dean Acheson wasn’t involved. He was, he was
spending his time mostly working at his farm and otherwise
enjoying his post-active life. Which incidentally, after
the Truman administration, after his time as Secretary of
State, he came back to the firm and he was wonderful. He
was very helpful to us and he did a certain amount of
work. But, obviously, he attracted things and obviously
the extradition had come because of him. But it was all,
as it turned out, it was all turned over to me and Dean
had nothing to do with it from there on and I was
completely, utterly accepted by the Venezuelan Ambassador
and ultimately the Venezuelan Government.
Well, we, the papers got here. There was nervousness
about it and great secrecy because it was feared that if
word leaked out and Perez Jimenez heard that there was
going to be an effort to extradite him, he would flee. As
it was, he was installed in a residence down in Miami and
living a perfectly comfortable life and the Venezuelans
– 68 –
were very nervous; they wanted to be sure to get him
before he had an opportunity to get away. Well, the
papers got here. They were in Spanish. We had a hell of
a time. There was some English, but the English wasn’t
much. The net of it was, what I had to do was to put
together a team in a great hurry. We had to deal with the
Venezuelans, we had to explain to them how things were
done here, we had to get papers translated and everything
done in, under great pressure and in a great hurry. Well,
it’s a long, long story. On the face of it, I found I had
to do some looking into what extradition was and you read
the pertinent statutes and so on and it looks like, and
also even the, a certain amount of textual material and
even a certain amount of judicial decisions and on the
face of it, it’s like a preliminary hearing in a criminal
case. You don’t have to prove anything really. All you
have to do is just show that there’s reasonable,
reasonable cause to detain the alleged criminal for later
trial. And the, on the face of things, apparently, the
analogy to a preliminary hearing in a criminal case was an
exact analogy and that’s what I thought we were getting
into after I’d looked around a little bit over this first
weekend. So that didn’t look like anything terribly
complicated and the only problem was to get papers filed
in a great hurry before Perez Jimenez got wind of it and
– 69 –
decided to flee. Well, fortunately, it turned out that
despite the fact that the papers that came were, many of
them in Spanish, and that we had to fiddle around and get
something that would, that could be read. I did get down
to Miami in a hurry and we did, fortunately, we got a
lawyer there, a local lawyer who was really very, very
good and very helpful. I can’t now remember his name but
he was one of the leading lawyers in Miami and he worked
with me in great style, made things very easy for me and
didn’t try to take over in any way, just tried to ease my
way and help me in various ways.
The net of it was that we were able to get papers
filed.
They were filed in the U.S. District Court in Miami?
Yeah. Yeah. And we were able to get papers filed
and served very quickly. And were able also to have the
matter set for immediate hearing and what we wanted to do
was to get the district judge to, in effect, to put the
guy under restraint and then have an immediate hearing.
Which is the way extradition was handled apparently on the
basis of all the, all the statutes and treatises and other
things I had read, the whole darn thing would be disposed
of in a matter of maybe two or three days. The guy would,
if reasonable cause had been found, and we had a lot that
we figured showed reasonable cause . . .
– 70 –
Then off you would go?
I would be shipped off. So this would end my
interruption of my summer vacation. Well, of course, it
quickly developed and wasn’t going to be like that.
Who represented Perez Jimenez?
He, right away, immediately got a lawyer in Miami who
was a leading criminal [lawyer] there and a very able guy
and who . . .
Do you remember his name?
I can’t remember his name. I, no, I don’t remember.
In the report of the case, obviously, is his name. Well,
it’s silly. I just can’t remember him.
I think we’re going to run out of time on this tape so let me
just change tapes. There, I think we’re back on tape. When we
left the other tape, I’d asked you if you had recalled the
lawyer representing Perez Jimenez and you didn’t and we agreed
that we’d come up with his name perhaps when we saw the
reported decision. But, in any case, it did not, I gather,
turn out to be the three-day sojourn in Miami and then back to
summer vacation. It turned out to be something far more
complex than that?
Yes indeed, it did. Matter of fact, it was not, it
was, I think about a week longer than three years.
[Laughter] Well, I guess the fellow in Miami was pretty good
then.
– 71 –
Oh, he was. He was good. That was an extraordinary
experience.
How did that turn into three years and a week?
Well, in the first place, he immediately indicated
that, well, he got free on bond right away and, of course,
that made us very nervous because we figured what the
hell, he would skip out and run away and the Venezuelan
Government was extremely nervous about it. But I think
he, I think he was somewhat over-confident. I think he
figured that with this lawyer that he had there in Miami,
who was a very, very top flight lawyer, and probably with
his own background of experience that all you had to do
was, was slip money to people and everything would be done
the way you wanted it, I think he really did not think
that there was a very serious threat. I may be wrong in
my judgment.
It sounds plausible, for sure.
But, in any case, he didn’t flee and he did post a bond
and it was a substantial bond. But then, instead of
having an immediate hearing, it was indicated to, by his
counsel to the judge that some time would be necessary.
As soon as I realized that this was going to be a serious
proceeding, I had to focus on the fact that I couldn’t
read Spanish and that it was going to be necessary to have
witnesses, it was gonna be a real hearing, it was not
. . .
– 72 –
Not what you thought you were getting into.
I was amazed. Well, the net of it was that we got
ready to do a big job. One of the first things that was
necessary for me to focus on was that it would be like a
criminal proceeding.
Had you had any experience at all in criminal cases?
No. I had had some, but oh, I’d gotten assigned to
some criminal cases, but that hadn’t amounted to anything.
This was something for the American Civil Liberties Union
and some other things in my early, early career. I
suppose I ought to tell you something about those. Some of
those were, well the newspapers, newspapers carry great
pictures of me with my clients.
[Laughter] We’ll have to come back to that.
But, in any event, this thing was, I really had to
get ready for something that was going to be more than
just what I had assumed to be a normal criminal
preliminary hearing and right off the bat, there was the
problem of translation. I couldn’t rely on the
translations that would come from the Venezuelans
themselves because they were not expert in writing English
the way, in a way that was suitable for the reading of our
courts and so on here. Fortunately, I stumbled on to a
guy who was not many, not long out of law school who was,
had been an expert in, had concentrated, majored on
– 73 –
Spanish matters, had actually done some work in South
America and who was floating around the city of
Washington. He was a young man apparently not having a
regular job, but he was a lawyer, not having a regular job
and trying to make ends meet by translation. And I
grabbed him to do some translating. I saw immediately,
almost immediately, that this guy was a pretty smart
fellow. The net of it was that ultimately we hired him.
And he became very much involved in the Perez Jimenez case
and was enormously helpful.
Did he stay on with the firm after that case?
And he stayed on after that for quite some time. But
he ultimately decided that he wanted to move out on his
own and he did. And became, and he still is, a rather
prominent lawyer who, here in Washington.
Who is that?
Oh my God. He’s a good friend of mine.
Well, it’s just another blank we can fill in.
Isn’t that ridiculous?
Well, you got him to do the translating?
Yeah, and when I realized that he was also a good
lawyer, as I say, the thing to do was to hire the guy
because this was then a quick way for me to find out just
what an awful lot of the materials meant. It also turned out
that there was another young lawyer in the firm who had just
– 74 –
come with us and who had been Editor in Chief of a law
journal out at Stanford and had been a law clerk to one of
the justices of the Supreme Court, I’ve forgotten now
which one, and he had just come with us shortly before —
Bill Allen, who was absolutely tops, and I grabbed him.
And we really began to move on this thing. When we
finally, when we focused on the fact that we had hold of
something that was going to be a huge case of
international import, well, ultimately there were
proceedings in the, in the court, not only before the
district court but before the court of appeals for the
Fifth Circuit. We had hearings in Petersburg.
Petersburg, Virginia?
In, not Petersburg . . .
St. Petersburg?
St. Petersburg in Florida, hearings in New Orleans,
hearings in Miami. There was actually some incidental
litigation that came up in New York. This had to do with
efforts of some people to get his property, or get at his
property. I had, as a matter of fact, I had David Acheson
working on that. Because I was having to be in about six
places all at once and it, it evolved very quickly into
what turned out to be probably the biggest extradition
case that had ever, ever occurred.
– 75 –
Wouldn’t the, again, forgive me, I don’t know a thing about
extradition, but I would guess that most of the issues were
constitutional issues. Whether or not he was being given due
process before being shipped out of the country, or were there
factual questions?
Well, to a degree there were some factual questions.
His lawyers were awfully clever, they could make a great big
show out of nothing. And we had, we had to show that
there was some reason to accept the allegation of
corruption and the allegation of murder because you don’t
extradite just because you say there was.
Right. But did you have to bring people from Venezuela?
Yeah. We ultimately had to, had to put together an
evidentiary proceeding . . .
Almost like trying the murder or stealing cases?
Of course, it didn’t have to be as thorough as a
trial, but inevitably, it was a lot more thorough than
most criminal preliminary proceedings. And, ultimately,
in the long run, the judge did find that we had not proved
the likelihood sufficiently of murder. But he did hold
the guy was extraditable on the financial corruption
charges.
I wonder if that would mean that, after he was extradited, the
Venezuelan authorities were somehow precluded from trying him
for murder.
– 76 –
Oh yes. It meant . . .
How would U.S. courts monitor that?
Well, there’s no way, there’s no way they could
monitor that. The United States Government would have to
monitor that. But it, part of the treaty of, extradition
treaties provide that when a man is extradited, he can be
tried only on the charge for which he is extradited. He
can’t be, you can’t pull something else on him.
Right.
But this matter, of course, became internationally
famous and it led to all kinds of complications and
international notice and just endless proceedings. It
went on and on and on.
Did it become famous because of who was involved?
Yeah. Sure.
Were the legal issues also of great note?
Well, the legal issues . . .
This seems like an extraordinarily drawn-out . . .
Well, the legal issues were of great note in the
sense that the, what had happened in Venezuela in the way
of a revolution against Perez Jimenez and the overthrow of
a dictatorship and the ascendance into power of a true
democracy and then all that had happened since and it goes
on and on and on. This was headline stuff all over the
world and it, every time, every time anything in
– 77 –
connection with the case was even mentioned, there was
immediate interest and excitement and concentration. We
ultimately, well, ultimately, it, we got a favorable
decision at the district court level. Went to the court
of appeals and there was a big argument there.
Ultimately, we got a favorable decision there. Then he
went and sought certiorari of the Supreme Court and in,
there was a, this was, I can’t quite remember what time of
the year it was. In any event, there was a special, if he
were going to get in the Supreme Court, he had to get some
kind of injunctive order from the Court pending appeal or
pending action on his petition for certiorari.
Otherwise, as a result of the Fifth Circuit decision, he would
be off to Venezuela?
Yeah. Sure. The matter of some kind of restraining
order or injunction pending came up before Justice, the
labor . . .
Goldberg?
Goldberg. On a Saturday. I had been, Bill Allen and
I and, we’d been down in Miami, I had to fly up here on
Friday night and appear before Goldberg on a Saturday down
in chambers. Down at the Supreme Court building and his
lawyer was there. What Goldberg was doing was deciding
whether some kind of a restraint should be issued. And we
had quite a, quite a session with him and my argument was
– 78 –
against restraint and his lawyers, of course, were arguing
for a restraint.
What was your argument against restraint? I mean, you knew
that they were going to be appealing, that cert would be
granted or not and if it wasn’t that would be the end of it.
Well, my argument was that there was really no basis
for cert, that there wasn’t sufficient merit in his case
to, for the Supreme Court to bother with it.
So it was a likelihood of success on the merits argument and
that allowing him to stay in this country pending that was just
dragging out his time here and delaying the inevitable?
That’s right. Well, in the end, Goldberg agreed with
me and . . .
Did he write an opinion?
I don’t think he wrote, I, well . . .
Or would you just get an order?
I’m pretty sure it was just simply an order. And I
think, we spent the morning down there and I think he
issued the order along about the latter part of the
afternoon and then I had to fly back. God, I hadn’t had
any sleep. I had to fly back to Miami and well, we
figured that we were going to get the guy. We were
wrong. The State Department then got into the act. All
this had begun you see under Eisenhower.
And now you’re under Kennedy?
– 79 –
And now we’re under Kennedy. And for some crazy
reason, the Kennedy regime, the State Department regime
under Kennedy, got the idea that there just might not be a
fair trial in Venezuela. That there would be prejudice
against this poor devil. Well, I nearly died. The very
idea of the administration of John F. Kennedy, this great
left-wing liberal, suggesting [laughter] that this
right-wing criminal who had been dictator of Venezuela
should not be sent back to face justice. I couldn’t
believe it.
A little too much for you to take.
It was incredible.
And how did the State Department get involved? You’d already
had an order from the Supreme Court, you go back to Miami . . .
No. But you see, you see, extradition is not a court
order.
Oh, I see.
Extradition is still a climatic order. The State
Department, they don’t have to extradite, even if . . .
Even if there is a court order?
Oh yeah, sure. They don’t have to. And this thing
went on for months. In the meantime, the Venezuelan
Ambassador had changed and there was a new guy who turned
out to be awful good. The original ambassador was very,
very good but he was sort of an academic type, the old
– 80 –
school type. The new Ambassador, matter of fact, is
presently one of the leading lawyers in Caracas.
Is that right?
Yeah. I can’t remember his name but we became very,
very chummy and well, he and his wife liked me and they
entertained us and we entertained them. But, in any case,
we had, I think we got, my vague recollection is that we
got the decision, a favorable decision, from Goldberg
along about, oh, say January or February of 1962 or ’63 and
we didn’t get the guy actually extradited and put on an
airplane to ship back until I can’t remember whether it
was July or August. But it was exactly, exactly three
years from the time it had begun and it must have been, it
was, I think it was about six months after all the
litigation had been ended.
Before it really happened?
Before it really happened.
What happened to him in Venezuela? Do you know?
Oh, in Venezuela. He was, he was jailed and they
made up a special jail cell for him that was like an
apartment and he immediately had all kinds of lawyers
lined up, leading lawyers in Venezuela and it went on and
on and on down there for a long time. He was kept in jail
all that time but he had visitors and he ultimately,
ultimately there was a trial. Ultimately he was found
– 81 –
guilty and the, I think it was actually tried before the
Supreme Court of Venezuela. And he was found guilty and
sentenced to imprisonment for a length of time which
coincided precisely with the time we had had him in jail
here and the time he had been in jail down there.
I neglected to point out when we finally got the
extradition proceedings done before all the courts, then
we got him in jail and he was, so he was, all this time,
between the ending of the litigation in courts and the
time we actually got him extradited, while we were
fiddling around with the State Department, the guy was in
jail down there in Miami. [Laughter] It was incredible.
But, in any event, he got, after his trial in Venezuela,
he was found guilty and sentenced to a term of
imprisonment that coincided exactly. So he was
immediately released and immediately took, this had
obviously all been arranged, he immediately took off for
Spain and I think at one time after that, this was in
1962, ’59, ’60, yeah, 1962. At some time after that it
seems to me there was an attack on Venezuela from Peru and
I think, I think PJ, I think he was back there in Peru
while that was going on, thinking that it might work.
It might work and he’d be back in office?
I don’t know, he may still be alive. I’m not sure.
Was that the one and only extradition case you had?
– 82 –
That’s the one and only.
Didn’t start any extradition practice at Covington & Burling?
No. As a matter of fact, extradition is a rare, a
very rare proceeding and 99 percent of extradition is just a
routine formality. There, we did, of course, research
extensively. There had been a few Supreme Court cases on
dealing with extradition in one way or another. An
extradition from one state to another is a very different
matter. Extradition from one country to another, and it,
literally, what we were dealing with was an area that was
virtually without significant precedent. Actually,
extraditing a head of state, I don’t think anything of
that sort had ever been done. I don’t think it’s ever
been done to this day.
That’s probably so. I certainly don’t recall having . . .
Mind you, this was for an alleged crime committed
while he was head of state. I don’t think it’s ever been
done, I’m sure it’s never been done before and I don’t
think it’s been done up to now.
I think that you’re probably right. Mr. Westwood, in reading
some of the many articles that you wrote during your career,
one of the things that really stands out is your long-standing
commitment to legal aid. It seems that that was something that
you first became heavily involved in as early as the early
1950s and even before. I’d like to spend a little bit of time
– 83 –
talking about how you first came to have an interest in legal
aid and then how you came to be interested in making sure that
the concept of legal aid, and legal assistance for the indigent
in general, was one that the rest of us became aware of. I
know you were active in the ABA in that area, so why don’t you
start from the beginning. How did you first get involved with
legal aid?
Well, from the time I got to the firm initially, I
had hoped that I would get some experience actually in
trial work and I had obviously thought some about
overthrowing the capitalist system and I, not too long
after I had started I would go down to the court and put
my name in to be assigned to cases. I didn’t have to ask
anybody here at the firm, I just did. The firm was very,
very informal. We had no formality. I did things that I
never, never asked anybody about. I just did them. Of
course, I soon became very, very busy at the firm. I
earlier mentioned the PWA cases that I got involved with.
Well, that was a tremendously demanding thing and I got so
deeply involved in that and some other matters early on,
that I really had very little in the way of opportunity to
try to do anything in the way of assigned cases or
anything of that nature. But I also found, this was
somewhat disillusioning, that although now and then I
could get an assigned case, I would find that the guy was
– 84 –
really guilty as could be and it’d be much, I could get a
better deal for him by pleading him guilty than by
pleading innocent and then . . .
Going to trial?
Going to trial. And the fact of the matter is that I
went to some considerable trouble trying to get experience
in trying cases on a pro bono, or on an assigned basis
with next to no success. And I, I really oh, I had one or
two very dramatic episodes which got in the newspapers.
Big headline stuff.
Do you recall what those cases involved?
Yeah, well I’ve got, there’s a notable case, this is
in 19–, this came along in 1936. Some ladies were
picketing the auction of Franco, the brother of the guy,
the Franco, the dictator who was starting to overthrow the
democratic government in Spain and these ladies picketed
the auction.
What type of auction was it?
His household goods. He was getting back to Spain
and in order to participate in the Franco army, in the
Spanish Civil War, and he’d been assigned to the Spanish
Embassy over here. He was leaving here, leaving the
United States and he wanted to get rid of his stuff and
there was an auction of his household possessions. And
there were three ladies who picketed. They, their general
– 85 –
idea was don’t patronize this character, he’s an evil
man. Well, they were arrested for parading without a
license in violation of a regulation of the District of
Columbia Commissioners that required a license before you
could parade. And no one had ever suggested that a mere
picketing a place was a parade.
Right.
But it was now suggested and these people were
actually arrested and it was going to come up before a
police court. This was before there was a United States
District Court and a United States Superior, this was,
there was still the old Supreme Court of the District of
Columbia which was formed during the Civil War and
continued right up to recent years. And there was also a
police court. A police court was a court in a great big
building at the southwest corner of Judiciary Square on
9th Street, a huge building and there was a great big room
on the first floor of that building, it was a huge room,
that’s where the police court sat and there was a bench
down on one end of this room and these ladies were to be
tried before the police court for violation of a district
regulation and it, I can’t remember now whether, what was
really threatened in the way of punishment, but there was
an obvious legal issue as to whether picketing a place was
a parade and the American Civil Liberties Union defended
– 86 –
them and they got a hold of me and asked me to handle the
case. So I did. And the case was being prosecuted by the
Corporation Counsel’s office, just one of the lawyers on
the staff. I got moving on that case, the police court
judge was a very conservative old fellow. To him, I’m
sure, every communist was an evil person, but he was a
good lawyer and I was not talking communism, I was talking
law. And I was, I had a lot of points that I was making
and he took me seriously and pretty soon the courtroom
became filled and pretty soon the Corporation Counsel’s
boss came in and took over. [Laughter] It was the
funniest thing that ever happened.
I finally got, I give you my word, before noon of
that day, that room had become so full of spectators, many
of whom were lawyers, you know, who would hang around the
court getting, picking up cases. That room was so full
that I hardly had room to pace up and down in front of the
bench. Barely. And this judge was getting a great kick
out of it because all, no one could have been more
violently anti-communist than that judge. I’ve forgotten
his name now. He was a damned smart guy and he was taken
by the fact that I was not dishing out a lot of junk, but
I was making, I was making good, legal arguments and the
Corporation Counsel was going crazy. Back and forth we
would go. Well, the net of it was, when we got, the
– 87 –
evidentiary part of the proceeding had been nil. I mean
that was . . .
You mean it was conceded. Everyone knew what they had done.
Oh sure. But finally I pulled an argument. I had
found a decision of our Court of Appeals, it must have
been in the early days of our court, it must have been
around, I can’t remember now, it must have been as early
as about 1900. You see we had no court of appeals here
until about 1890 and I think this was a decision along
about 1900 to the effect that you do not take judicial
notice of regulations. The Corporation Counsel never had
approved regulations. Hell, they were all in pamphlets
and published and so on. And here was a parading
ordinance. There was a regulation, you gotta get
permission, a permit for a parade and there it was, all
printed up. But I was making, among other arguments, I
was making, waving this in the air. What is this? The
thing that they were charged, that my clients were charged
with violating is a piece of paper here. There’s no
crime, no crime is committed for violating a, viewing
something that is inconsistent with a piece of paper that
nobody ever heard of, what is it? The net of it was, the
judge agreed with me. And the Corporation Counsel damn
near died.
– 88 –
Because that presumably called into question the validity of
all of their pieces of paper regulations?
Oh sure. I’ve always meant that, I meant after that
to double check to see what the hell they ever did about
it, but I, I had it worked out very nicely. And needless
to say, there was a lot of stuff in the newspapers about
that, including pictures of me with my flying suit on.
Well, did that, did that pique or begin your interest in legal
aid and doing it?
No. I was, really, see this was in 1936 that this
happened and the aviation stuff was just beginning then
and I was still doing a lot of the . . .
PWI work?
PWA. That was going on and the aviation stuff was
starting and it, in just a few weeks after that, I got
literally so busy I couldn’t do anything except carry on
the work in the firm and it was very frustrating. But I,
by the time I got through everything in 1950 and by then I
quit full-time on aviation matters and began getting into
other things. I was still kept so busy in an effort to
get into things in addition, apart from the aviation, you
know, you don’t do that just between nine and five and, as I
said earlier, in those days we worked oftentimes seven days
a week and hell, the kind of hours people keep these days,
wasn’t anything like that in those days. But in 1955, the
– 89 –
spring of 1955, my daughter was in her first year in
college up at Skidmore . . .
That was the town that I grew up in.
Did you?
Yeah.
Yeah. She was in college there and they, this was
before it became co-ed, just ladies. And they had a
father’s day in the spring.
Happy Pappy’s Day it used to be called.
Yeah. Yeah. And I went up there with a couple of
other people who were driving and they offered to take me
along and so it was a convenient way. But one of the
people who was going was that lawyer, well-known lawyer
here in town. He knew me, of course, and he began,
somehow or other, telling me about the Legal Aid Society
here. Well I knew there was a Legal Aid Society but I’d
been too busy, I’d never paid any particular attention to
it. But, by the time that weekend was over, I had talked
to this fellow enough about the Legal Aid Society to get
real curious about it. The net of it all was that I got
myself involved in the Legal Aid Society and I was soon on
the Board, well, matter of fact, a lawyer of some
prominence from Covington & Burling, hell he got on the
Board at Legal Aid Society just by looking at ’em. And
the Legal Aid Society in those days had no money to speak
of.
– 90 –
What was it about what he had discussed with you that caused
you to become interested?
Well, he was telling me about the Legal Aid Society
and the kind of work they did and the need for more
support than they had, the way that it was, had to be very
conventionally operated, there was a full-time guy who was
the Director of the Legal Aid Society staff, such as it
was, who did it at a salary that was practically nil and
they just didn’t, had never had the support and attention
in the community that they merited. And that just stirred
my interest.
I see.
And it touched on the sort of thing that I’d always
kind of intended to get involved in, but had been, just
been too damn busy to do it and it made me feel guilty.
So when I, I began right away to look into it. And one
thing quickly led to another as soon, I mean, a partner of
some prominence by that time, I was of some prominence
locally, and a partner in any event of Covington &
Burling, my God, if, indicates some interest in the Legal
Aid Society, boy they, they really grabbed you. And,
literally, at that time, I’ve forgotten now, it’s, God, I
don’t know, there’s a story about it all somewhere or
other that I wrote up, I think the Legal Aid Society’s
total income at that time was something like, oh maybe
$10,000 a year or something of that sort.
– 91 –
I think that’s right.
Yeah. It was ridiculous. And so I, I got, got
moving on that and . . .
Actually, you had written an article for the ABA Journal in
April of 1965 and you noted that, by 1954 the Legal Aid Society
had an income of $14,000 annually.
Yeah. It was ridiculous. Really, it was
ridiculous. I was horrified. So, I then began the
screaming and yelling at Legal Aid. And we soon were able
to stir up interest on the part of the Bar Association.
The Bar Association theoretically had always supported the
Legal Aid Society, but they, hell they hadn’t done
anything to speak of and, fortunately, in the year 19__, I
guess it was 1955, yeah, yeah, I wrote him a letter
yesterday, Charlie Rhyne, was president of the Bar
Association and there was a vacancy on the Board of the
Bar Association, some guy had been elected and died or
something. Well, I never could have been elected to
anything, but Charlie Rhyne and I had, knew each other
well and had exchanged ideas on lots of things and Charlie
got a hold of me and appointed me to fill this vacancy. So
here I was, all of a sudden on the Board of the Bar
Association.
As well as the Legal Aid Society?
Yeah. I was just getting started. So what I did,
one of the first things I did on the Board of the Bar
– 92 –
Association, Charlie’s regime began, as I remember it, in
maybe the late spring or early summer. I guess nothing
much was done during the summer, but in the early fall, we
would have regular meetings and what I did right away was
to propose what amounted to a study of the Legal Aid
Society and the need for expanding and supporting and so
on of the Legal Aid Society. And that was done. And, as
a matter of fact, we, under Charlie’s leadership, we set
up a committee that made a really vigorous study of legal
aid and what was needed here in the District of Columbia.
The committee staff was headed by David Acheson. There
was part-time . . .
You mean David Acheson?
Yeah. One of our people here in the firm. And we
got, we got some money from the Meyer Foundation and there
was some money from some other outfit that may have been,
it may be in that article. In any event, we got money and
the result was that there could be, actually be hired a
staff to work under David Acheson, of young lawyers, some
of them later became of some prominence, digging into the
Legal Aid what went on here and what was needed and so on
and there was ultimately, oh, I don’t know, a couple of
years later, there was actually published a big Legal Aid
report, it’s one of the most important documents in the
history of Legal Aid in the United States. It’s about
– 93 –
that thick and maybe, probably there’s a copy of it up
there.
Legal Aid, at the time, was involved with both civil and
criminal cases, is that right?
No. Legal Aid was just civil. The Legal Aid
Society. Well, in the meantime, I was on the Board of the
Legal Aid Society and what we got going was actually
raising some money with the support of the Bar
Association. And we were also hoping to, I said the
support of the Bar Association, we found rather quickly we
could get more support from the Judicial Conference than
from the Bar Association. Once Charlie Rhyne had ceased
being President, he went on, you know he ultimately became
President of the American Bar Association.
Right.
I think he was the youngest person ever to be
President of the American Bar Association. But what we
soon found was, it was very difficult to get any kind of
really aggressive, vigorous support from the Bar
Association but we could from the Judicial Conference.
Prettyman was then the Chief, Justice of our Court of
Appeals and was, and ran the Judicial Conference and I
knew Prettyman well. We were both golfers at Burning Tree
and he knew me from my activities down at the court and so
on. And Prettyman was a person with a real sense of
– 94 –
public obligation and public service and, the net of it
was, that we very quickly were able, through the Judicial
Conference, to get, drum up support in the Bar generally.
And started fund raising. And we got, we were able to get
the income of the Bar Association, of the Legal Aid
Society, raised to well over $100,000 a year, which to
me seemed a fortune compared to what it had been.
Right.
Of course, of course, it . . .
And in fact it was a fortune compared to what it had been.
Well, yeah. But it was, it seemed to me to need a
lot more to enable the doing of much more than in fact
$100,000 would permit. In the meantime, there was this
effort at legislation, at setting up legislation of some
sort or another to . . .
This would be under the Kennedy Administration?
Well, yeah, yeah. But there was, but we actually, we
actually had, we actually had the Legal Aid Society here
going on a significantly expanded basis and, and there
was, under the Kennedy Administration, there had been the
United Planning Organization that had been set up locally
that some money from the Federal Government, I’ve
forgotten what the appropriation was. And all of a sudden
one day, I’d, we were getting some, we were getting some
support from that direction and I, my, I was getting the
– 95 –
office, my firm very much interested in the Legal Aid
Society; we were, I think by that time we actually had
assigned to the staff of the Legal Aid Society for
three-month stretches, a young lawyer from our firm that,
that was very unusual to do anything like that.
It was. It still is.
Yeah. And I think, I think a lot of this is told in
that article. Well, the point of the matter is that one
day, one June day, there called on me in my office a
lawyer from Philadelphia who said that they were having a,
he was very actively involved in the ABA, this was
Forhees(?) and he said they were having a meeting at the
United Planning Organization, at the, one of the agencies
that had been set up under Kennedy. In any event, the
whole matter of legal aid was up and they were talking
about having some, getting some kind of legislation for
federal appropriations for legal aid and . . .
How did that idea strike you?
Well, I thought that was fine. We, hell, we were
doing it here already. But I didn’t have any idea what
was going on nationally. I’d paid no attention whatever
and this guy, other people nationally didn’t know much
about what was going on in the District of Columbia. We
were just quietly going ahead and we got some money and we
were pushing ahead with our support of our Judicial
– 96 –
Conference. The net of it all was that I got curious and
got involved with what this meeting was all about and it
turned out that the Federal agency that had been headed by
Kennedy and, of course, ultimately the agency that was set
up by Lyndon Johnson was a very, very active, aggressive
crusading outfit and I got mixed up in it.
What do you mean you got mixed up in it? Were you opposed to
the kinds of cases that they were taking in?
No, no, no, no, no. They were, what they finally
decided to do was to set up a national organization to
promote legal aid and, but not legal aid in the
conventional, old-fashioned sense but aggressive legal aid
that would be law reform and, really, a two-fisted,
hard-fighting movement to improve the law for poor people.
How did you feel about that?
Well it was fine. It seemed to me perfectly fine.
Great. About time somebody began to get aggressive. And,
well, one thing led to another and finally money was
provided through, it was on a temporary basis from the,
from the Economic… I’ve forgotten.
Office of Economic Opportunity?
Something. And money went to the District of
Columbia and we had what was called a United Planning
Organization here, UPO, and they actually created a
neighborhood legal services project. So that here was the
– 97 –
Legal Aid Society, we were getting money from the Bar and
getting more increasing support and here was an NLSP,
Neighborhood Legal Services Project, with neighborhood
offices around, the Legal Aid Society had never had any
neighborhood offices.
Was that because you just couldn’t afford it?
No. They couldn’t afford it. I had been able, we had
one branch office; finally we’re able to get one branch
office which we set up out at Howard, at Howard Law School,
or Howard University, but that was sort of nominal. But in
any event, when, my thought had been when this NLSP was
set up, and I think in these articles I tell about how all
that came about, my thought had been that we would get the
Legal Aid Society and the Neighborhood Legal Services
Project in one merger, into one organization. It was
silly to have it two separate organizations. Well, I
worked toward that objective for a while and then all of a
sudden, and here I was on, had been brought onto the Board
of the NLSP, as well as being on the Board of the Legal
Aid Society and all of a sudden I was told by people very
much involved in NLSP that it was thought that there was a
conflict of interest between the Legal Aid Society and
these neighborhood legal services.
You were saying that there was a conflict of interest between
your being a member of the Board of both the Neighborhood
– 98 –
Legal Services Project and the Legal Aid Society. How did that
strike you?
Well, I thought that was silly but, but I, instead of
arguing about it, I figured well, all right, accept it.
But as between the two, I wanted to stay on the
Neighborhood Legal Services because it was a much more
aggressive movement than the Legal Aid Society and also
there was the obvious advantage of having available
federal money so that although the Legal Aid Society had
been better off financially than it had been initially, it
still was dependent on raising contributions, locally, and
it wasn’t anywhere. It was becoming evident to me that
that wasn’t anywhere near enough money and the only way,
really, to get Legal Aid established properly was to get
the benefit of significant amounts of federal money. So I
resigned from the Legal Aid Society Board and became very
actively involved in the Neighborhood Legal Services
Project.
Now was that the Neighborhood Legal Services Project locally,
or on the, on a national level through . . .
First locally. Locally. And we, well, it’s a long
story; some of the Court of Appeals judges had been
involved in helping getting this thing under way. Various
community agencies were, their support and interest were
elicited and, fortunately, there was a group, mainly of
– 99 –
black lawyers, who were very actively interested and I
think one reason for their very active interest was that
whereas Legal Aid Society had always been a kind of a
white man’s activity, this Neighborhood Legal Services
Project, I’m talking about the running of the thing, this
Neighborhood Legal Services Project, it was, it looked as
though blacks could really get involved and play a big
part in the running and guidance of the thing. I think
they just, they just had more confidence in it. And,
there’s something to be said for that point of view, the
Legal Aid Society had been a much more conventional kind
of old-fashioned legal aid operation with particularly
bringing to the fore such ideas as law reform whereas what
a number of people felt, and this was very true of some of
the black lawyers, what a number of people felt was that
more was needed than simply to defend, or some particular
interest of some poor person, in a particular piece of
litigation, that there should be efforts to improve the
law and improve the decision of cases and improve the
direction of the precedents we’re taking and so on and
so-called law reform.
You know, that’s a debate that has been going on forever as far
as legal services is concerned and one of the obvious questions
is, to me, is at the time that you were on the Board of the
Legal Aid Society and then you got off the Board of that to
– 100 –
stay on the Board of the more aggressive Neighborhood Legal
Services Project, you are becoming an ever more prominent
partner at Covington & Burling. Certainly some of the law
reform efforts that Neighborhood Legal Services was advocating,
were at least arguably contrary to the position that one or
several of your firm’s clients might have taken. How did that,
how did you reconcile that? Was that a conflict in your mind
and if so . . . how did you reconcile that?
No. We never worried about clients’ attitudes and,
to our doing, our do-gooding, it never bothered us a bit.
Did any clients come to you and say, look I . . .
I don’t remember any.
Or did any other lawyers in the firm?
Not that I know of. It may, there may have occurred
but I never heard of any, anything of the sort. I think,
I can’t help but believe that a lot of lawyers, and this
may be a reason incidentally that the Legal Aid Society
never really had amounted to a great deal, it may well be
that lawyers feared that if they got too aggressive that
they would lose clients.
I think that’s true.
Yeah, yeah. But that never, I think it’s fair to
say, and I was close to the running of the firm mind you,
I was right in the middle of things here for many, many
years, I wasn’t just out on the periphery. I was very
– 101 –
much involved in the firm administration and so on, and I
don’t remember anything to indicate that our very
aggressive interest in legal aid and providing legal help
to the indigent and seeking to reform the law in the
interest of the indigent, I don’t remember anything, ever,
of any consequence in the way of adverse client reaction
or losing clients on that account or anything of that
nature.
A hypothetical question — and I think I know the answer to it —
but if it had caused problems with clients, what do you think
you would have done?
I’d have said the hell with the client. And I mean
that. And I think that point of view would have had a great
deal of support from within the firm. I may say that in all
the things that I did over the years, from the time, from
the very beginning, and I did a lot of things, I always had
complete, utter sympathy and support from my brethren in the
law firm.
That speaks very highly, not only of you, but of course of your
firm.
Oh yeah. Yeah. God it was true. Judge Covington, now
mind you, a conservative like Judge Covington, I called
him comrade and he’d never bat an eyelash. [Laughter] I
thought about it in later years, I just couldn’t help but
laugh to myself. [More laughter] Oh, they were, the
– 102 –
Judge and Mr. Burling were wonderful. And they created a
set of ideas and attitudes and so on at the firm, at least
up until recent times, I don’t know what it is now, but
attitudes and values that the firm was faithful to, been
faithful to all these years.
How long did you stay on the Board of the Neighborhood Legal
Services?
Oh Lord. I’ve forgotten. I can’t remember. I was
on the Board for a long, long time.
When we first discussed this, I think that you had mentioned
that it was after the OEO legislation under Johnson came into
being that you began to kind of phase out, at least on the
national level, of legal services. Is that right?
You see, I got, I got drawn into what once, once I
got beyond just the local Legal Aid Society, I immediately
began having contacts with the National Legal Aid
Association and ultimately I was brought onto that Board
and ultimately I was made, in effect, their lobbyist here
in Washington to work on government problems that they
had and seeking to strengthen the support for the
National Legal Aid Association, NLADA it was called,
and I just got spread all over the place. Now, what all
this ultimately led up to was an absolutely fascinating
experience under the Nixon Administration. It became
apparent ultimately, LBJ had not, was not going to run for
– 103 –
re-election and the Republicans won the presidency and
Nixon became President and the problem of all of the
social services and so forth that had been set up in the
days of Lyndon Johnson became very severe and very tough.
We saw, we interested in legal aid had seen all along that
legal aid should be regarded as something different from
emergency government aid, government aid to meet an
emergency situation. It had nothing to do with the kind
of social reform and the meeting of the sort of temporary
emergencies that the Johnson Administration social
services groups had been so much involved in. Legal aid
shouldn’t be thought of in those terms. Legal aid should
be thought of as a permanent thing. In days of prosperity
there was still need for the legal aid operation. Because
there always would be some poor people who needed legal
help. And this was very fundamental and we began with the
National Legal Aid Association, we began to cultivate that
idea. And instead of being upset at the elimination of the
Lyndon Johnson kind of United Planning Organizations . . .
Office of Economic Opportunity.
All that. We didn’t much care provided we could get
legal aid separate and independent and indeed that would be
an improvement. And I was actually made a lobbyist for
the National Legal Aid and Defender Association. Their
– 104 –
lobbyist here in Washington to work to that end. Get
somehow or other a separate and independent recognition of
legal aid on a federal basis, with federal support. And I
got into it and I very vigorously, fortunately, mainly
through Burning Tree, there were some fairly important
Republican politicians that I knew, and knew well and I
respected them. Not because I necessarily agreed with
their ideas, but they were decent people and I could, I
could get access to them. And, as I say, I became a
lobbyist for the National Legal Aid and Defender
Association and despite the fact that here was Nixon in
the White House, and despite the fact that there were a
number of elements in the Nixon Administration who were
working to eliminate anything in the nature of federal
support for legal aid, I was able, quietly, to maneuver
and get introduced to the right kind of people and get on
the staff, the White House staff and I found some people
who really would listen.
Who were those people on the White House staff?
God, I’ve forgotten their names now. I remember one
guy, I can’t for the life of me, I can’t remember his
name. He was tremendously effective. He did a lot of the
drafting with me and I drafted measures. Isn’t that
awful, I can’t think of his name?
Well, that’s on the edit.
– 105 –
And then we, I also had effective access to . . .
Nixon had two main guys on his staff. Who the hell were
they?
Haldeman and Ehrlichman?
Yeah.
Who later became famous for other things.
I’ve forgotten now which was which. But in any
event, I had access to one of these two top guys and he
would listen. And we made a lot of headway. And this
was, this was not as a result of pulling strings or
anything of that nature. It was simply that I had been
able to get behind closed doors and although some of these
people knew I was a left-wing communist, we respected each
other, we knew each other and over long periods of time had
seen things happen. And I found myself able to, on an
independent basis, and I finally told the National Legal
Aid and Defender Association, literally, I finally told
them now, look, I’m no longer representing you. I’m not
your lobbyist anymore. I am solely Howard Westwood and
what I found was that on that basis I could get farther
with, in accomplishing the things that I wanted to
accomplish and really, it worked like a charm.
And the end result was the Legal Services Corporation?
And the end result was that. Now it took a lot of
doing, and ultimately, you see we got things through, I
– 106 –
was trying to think, we got the statute, see it wasn’t
until the Nixon Administration that we really started
working on getting the federal legislation on legal aid.
And we got the statute adopted in the House. Isn’t that
funny, I can’t remember now whether it was the House first
or the Senate first. But, well, I don’t know.
But that’s a matter of record.
Oh yeah. But the point of the matter is that it was
all spread over a period of pretty close, about a year,
and maybe even a little more than a year, and then at the
critical time, right at the end, after we’d finally gotten
things through both Houses, here was the imminence of
Nixon’s departure. But fortunately, in the White, then in
the White House was the ex-Secretary of War, he’s now
President of Burning Tree.
Well, that’s another name that’s easy to get because I don’t know
that one.
He’d been very prominent in Congress and then Nixon
made him Secretary of Defense.
McNamara? No, that was Kennedy.
Secretary of Defense.
Laird?
Laird. Mel Laird.
Right.
– 107 –
And Mel Laird quit at the end of Nixon’s first
administration but then before he got settled into, oh,
the Reader’s Digest and the later things that he was
doing, he was on a kind of a special basis helping the
White House as though, virtually as though he were on the
White House staff and some, and, of course, Mel Laird was
at Burning Tree. And I knew Mel Laird. And it turned out
that he got, that he was very interested in legal aid when
what was going on was explained to him, what this was all
about. And he knew damn well that there were right-wing,
dangerous people who would seek to sabotage anything of
that sort. And Mel Laird, God bless him, gave me real
help. And if it hadn’t been for Mel Laird, there never
would have been a, there would have been a veto by Nixon,
I’m convinced, of the federal legislation that set up the
National, the . . .
Legal Services Corporation?
The Legal Services Corporation. I’m sure that he
would have been persuaded to veto it. Mel Laird took care
of that. Nixon signed it and in about two days he was on
an airplane, he had resigned from the presidency.
[Laughter] Mind you, we did, we pulled this off in that
last critical period of the Nixon Administration.
Well, that was quite a victory.
It was really, and it never could have been done
unless I had been, divorced myself completely from all
– 108 –
these left-wing organizations and all the formal
organizations on legal aid and so on and had presented the
matter simply on its own merit, individually, to these
guys on and in connection with the White House with whom I
was able to get access.
That really was quite a victory. Why don’t we stop for today.
Mr. Westwood, it’s April 17, 1992. We’re back together after a
two-month or so hiatus and, again, I appreciate your taking the
time to spend with me and this project. We left off when we
last broke off at the point where you had described your
involvement in Legal Aid. That was in the period roughly in
the early to mid-1970s and, what I would like to focus on a
little bit this morning, if we could, is your practice after
that period of time.
Okay. It’s a little difficult because I find that my
memory has really gone to pieces and we’re talking now
about a time, it was about 20 years ago.
I must say that your comments that I’ve taped so far don’t
reflect a memory that has gone to pieces.
[Laughter] Well, maybe that’s because I was always
more interested in the things I was talking about than the
practice of law. [Laughter] After I got through the
– 109 –
crisis of Nixon having approved the measure instead of
vetoing it, I just gave up on legal aid. I’d been at it,
as I’ve probably said before, I’d been at it for, I don’t
know, 20 years or more and I’d been in it up to my ears in
all sorts of different ways and I just was kind of fed
up. Furthermore, I have been wanting to spend spare time
on writing about the Civil War, something I’d wanted for a
long time to do. I’d done some but I was terribly,
terribly interested in it and I wanted to do a lot more.
As I recall from our earlier sessions, you first came to have
your interest in that, was it in Boston?
Oh, it was way, way back. Oh yeah. Way back in very
early days and over the years of my law practice, it built
up gradually and as of 1974, it had gotten to the point
where it was just bursting. Well, in any case, I did
then, although I felt a little guilty, in effect, made up
my mind that I had had enough of legal aid and I was going
to spend what I could devote other than to the practice of
law to the Civil War. But there was still some law
practice. And one thing that I was very fortunate about
in this law firm is that I was in a position here where I
was consulted a good deal by other lawyers, younger ones,
and I’d had a great deal of involvement in firm management
and carrying out basic plans for, oh, organization of the
firm, organization even of the physical facilities and so
– 110 –
on. And that I found not only of some interest, but also
it was a sort of rewarding thing, or aspect, of being here
because it made me feel as though the firm I was working
for was in part my own creation and I don’t want to
exaggerate that. There were others who were, obviously
Mr. Ellison was far more important than I. But I had
always been given an opportunity here to, in a quiet way,
to involve myself in basic decisions as to the way the
firm should be organized and run and so on. That doesn’t
mean I was deciding, but I was participating in the
deciding in a way which, to me, was very satisfying.
What were some of the more significant decisions that you can
recall?
Well the, of course there was one absolutely basic.
When Mr. Ellison died, I mean when he got old, and he
wasn’t old until about 90, up to that point the firm had
been run virtually as a dictatorship; not on the face of
things but practically speaking. Whatever Mr. Burling
wanted to do was done because we knew the man was wise and
absolutely completely unselfish and knew a lot more about
how to do things than any of the rest of us. But when, as
he grew older, on into his 80s, right after the War, he
began shifting responsibility to Newell Ellison. I don’t
know whether I’m repeating what I’ve said before or not,
but it was peculiar because, you see, in 1950, Paul Shorb
– 111 –
died in early July, Spencer Gordon died in early
September; Dean Acheson was soon, well let’s see, I’ve
forgotten now whether Dean was here at the time or, but
Dean had almost ended his real practice of law, you see,
before World War II, when he went on just before World War
II, he went into the State Department and he was back
after the State Department sojourn for only a year before
he was made Secretary of State and by the time he ceased
being Secretary of State, he was getting pretty far
along. So that Newell Ellison was in a peculiar position;
he was just, he was the one man from that generation that
succeeded Judge Covington and Mr. Burling who had been
practicing right along and who knew the firm and so on.
And furthermore, he had great tact, or a knack, of being
able to give people the impression they were participating
in decisions, but at the same time decide things by himself
in the right way. [Laughter] The guy was, he was very
good.
That is a great knack.
And, ultimately, the firm governing went through, oh
various forms, there was to be, we had, at one time we
actually had some partners’ meetings and it was
ridiculous. You know, you get more than four or five people
in a room and everybody starts making speeches to each
other. It was absurd. And what we, the first thing we
– 112 –
did was to, instead of having full partner meetings on
occasion, we had what was called an Executive Committee.
And it wasn’t supposed to be very big but it was too big.
It was about, oh I think about a dozen or more. And that,
that actually functioned during Mr. Ellison’s regime as
the head of the firm. But, its functioning was kind of
funny because, literally, even with cutting down the
number of people who would be, we’d meet about once a
month or maybe sometimes once a week for lunch on a
Monday. Even 12 people sitting around a luncheon table,
nobody can speak without making a speech.
That’s a particular problem with lawyers.
Oh sure. But with great skill, Mr. Ellison would be
able to maneuver around and ultimately do the thing that
he’d thought was right. And I was very close to him and I
helped him a lot on some of the firm problems. And that
took, it not only took a certain amount of time, but it
took, as far as I was concerned, a lot of interest. But,
ultimately, as I say, Mr. Ellison began to decline and he
got old and we never, it was apparent, to me at least and
I think probably to some of my brethren, that anything
like having a ten- or a dozen- or 15-men Executive Committee
running the firm was absurd. And with Mr. Ellison having
been unique in that he was the only one really of his
generation who was involved in things. He could get away
– 113 –
with what amounted to a dictatorship in the form of
democracy and everybody got along fine. But if, once Mr.
Ellison passed out of the picture, then we get down to
people who ain’t by themselves and there’s several of
them. And the possibility of a dictatorship such as we’d
had with Mr. Burling and then a democratic dictatorship
such as we had with Mr. Ellison, that was disappearing.
The danger was that in the running of the firm, we’d have
a bunch of people sitting around every week or every month
making speeches at each other and nothing would ever get
done. So I got the idea that maybe what we ought to have is
a new kind of setup and I began talking about. The net of
it all was that there evolved a five-man management
committee that had absolute dictatorial power and it, each
member of the committee has a five-year term and they’re
staggered so that there’s a new, a term ends each year.
In fact, over the years, there’s been a kind of tradition
that once on the committee, one does not succeed himself.
Now that’s not been adhered to absolutely but generally.
The result is that we have had, let’s see, the firm
agreement setting up the Management Committee, well it was
a long time ago, must have been about 1975, around there.
The result is that over these years, a lot of the partners
have had a good deal of experience in connection with the
management problems.
– 114 –
How were people selected for the Management Committee, by vote?
By vote of all the partners.
By vote of all the partners?
Yeah. And it had just really worked out very, very,
very well and then the Management Committee themselves,
the five of them, they choose their Chairman and the
result is that the Chairman of the Committee is, in
effect, the head of the firm.
Is that a position that rotates every year or it just depends?
Well, I’ve kind of forgotten. I think theoretically
they have an annual election. Well, for example, after
Mr. Ellison, Mr. Ellison was on this Management Committee
for one year and then off he went and lived out his life.
Tommy Austern became the head of the five-man Management
Committee. Tommy, who is a very prominent lawyer and had
been very much involved in the firm from about, he came
about 1931 and was a superb person. Completely unselfish in
firm decisions and so on and he just automatically became
Chairman and the other four members of the Committee would
meet with him regularly and they would exchange ideas and
instead of making speeches, there was real, genuine
consultation and the thing just worked like a charm and
has continued to work perfectly, wonderfully. I’ve always
figured that one of my, perhaps my biggest contribution to
this firm, was, well I don’t know that I dreamed it up
– 115 –
completely, but I’m the guy who really gave the push and
it went through, to my amazement. I thought there would
be a lot of opposition but there wasn’t. I really wonder if
there is another law firm in the world that is run as
smoothly as this one. And the smoothness has been a
consequence of this five-man Management Committee. We
have full meetings of partners, oh, maybe once a year and
we have Monday lunches, every Monday. And frequently, the
Chairman of the Management Committee, about once a month,
on such occasions, he’ll make a report to the partners
telling them what’s been decided and what’s going on. But
we don’t, we don’t do the kind of partners’ meetings that
other law firms do.
Nor do we and I’m glad because I was a partner at a firm that
did have those kinds of meetings and they’re endless and
basically useless.
Oh, absolutely.
You, of course, did serve on the Management Committee?
Yeah, I was on it for, I can’t remember now whether
it was two or three years. Of course, the original
members, although the terms were five years, the original
members, one had to be for just one year, one for two
years, and so on. This must have been done around 1971 or
1972. I’d have to check it. But the point is that I was
getting, I felt, old and I was opposed to the older people
– 116 –
hanging on and, although there was a lot of pressure to
have me hang on to the Management Committee position
longer, I just refused to do it. And I think that helped,
maybe, establish a kind of tradition in the firm that it
isn’t the old men who are going to run the place, it’s the
guys who really count. And it’s worked out real well.
Well, I got off on . . . .
Well, that certainly is a significant decision that you were
involved in . . .
Well, in the meantime, as I said, having put legal aid
behind me, there were a number of things in the law
practice. We were doing some very important work for
Westinghouse which required a lot of attention and this
was government contract work of one kind or another and
very, very important; and there were other things that I
was involved in that were of importance that had to be
carried on. But I just very deliberately aimed at
knocking off the law practice and cutting way back and I
would say that from about the age of 65, I was 65 you see
in the year 1975. From about that age, I was really
stepping down kind of rapidly in the law practice and
spending more of my time on other things. Notably on the
Civil War. In the new firm agreement that we had set up,
it was provided that there would be, in a partner’s take
from the firm, there would be a step-down from the year in
– 117 –
which he was 65 down to the year in which he was 70, a
step-down in his compensation. And then there would be
a floor at the age of 70 which would be, in effect,
continual and so I figured with that step-down I could
sort of justify maybe . . .
A comparable step-down [laughter].
A step-down a little in the practice of law.
Did you have, obviously you had planned to do this and had you
planned to pass off your clients to people you had worked with
closely and others in the firm?
Oh sure. Let’s see, that happened very naturally.
What you always did was to build up younger guys and kind
of push them to the floor and then recede into the
background so that the matter of transition was never any
particular problem. But I had a lot of fun.
When you began to work, presumably almost full-time on the
Civil War, did you still, was that at a point where you had
stepped down to the point of having stepped virtually out of
practice or were you still, for a while, overlapping?
Well, for a while it would be back and forth. But by
the time I was 69 or 70, there was, I was really finding
good excuses for spending minimal time on any actual law
practice. And by that time, any time I would be spending
would be essentially consultation with one of my brethren
trying to give him the benefit of some background that I
– 118 –
knew about or something of that sort. I very deliberately
tried to avoid getting into situations where I would have
to do travel out of town on client’s work or appearances
in court or anything of that nature. And it worked.
So that by 1979 or 1980, you were really a full-time Civil War
historian?
Yeah.
Why don’t you tell me a little bit about how that works?
Well, this evolved, as I say, way, way back there at
the beginning. I stumbled on to Stonewall Jackson and I
became a Confederate and then later I stumbled on to U.S.
Grant and that unedged me. But I’d always found it pretty
fascinating and by . . .
Did you find it fascinating as a matter of military history or
social history or political history?
Both, the whole expanse. Because it was a unique
war. There’s really never been another war anything like
it anywhere in the world and it has such tremendous social
involvements and implications. Tremendous economic
aspects and the military aspects, of course, particularly
for that day were damn near completely unique. The idea
of having a warfare going on over such a vast expanse.
You look at Napoleon for goodness sake, he wasn’t fighting
over any such vast expanse. He was going from here to
there. But here, the north/south conflict and the
– 119 –
Prussian War coming right, just a few years after our
Civil War wasn’t anywhere near as extensive as our Civil
War. It was a very important military event. So from
every aspect, I found it absolutely fascinating. And it
happened that my interest got particularly sparked by my
hearing about the Civil War Roundtable. I just stumbled
onto that. I hadn’t heard anything about that.
What is the Civil War Roundtable?
This is an organization. I joined it in 1955. It
was started locally here along about 1953, I’d say. It’s
a group of people who are interested in the Civil War and
who meet once a month. They have a dinner together. And
then one of them, or some outsider, will give a paper.
The first meeting will be in September and then each month
after that through May. And then they’ll suspend during
the summer. Here in the District of Columbia there is
such a Roundtable. The original Civil War Roundtable was
in Chicago and it had been formed I think around maybe the
mid-40s. Washington was one of the early ones though. By
now, there must be a couple of hundred roundtables all
around the country, from coast to coast; big cities and
little cities. They are not connected with each other.
They all have the same name, but there’s no affiliation.
But they all do the same thing — meet once a month and
talk about the Civil War or things related to the Civil
– 120 –
War, maybe reconstruction or what was leading up to the
Civil War or what not. And I just stumbled onto this
thing. Someone told me about it and asked me to come to a
meeting and after having gone to a meeting, I figured
“Geez, I’d like to join this place.” From there on, I was
really stimulated because it gave me a forum. Here it was
possible to deliver a paper and if it is possible to
deliver a paper, that kind of gives incentive to the
researching and so on. In a sense, even more than simply
seeking to have an article. After all, articles, you
can’t turn them out necessarily quite as you will. But
giving a paper to a bunch of people who have no choice but
to sit and listen, you can do just exactly what you
please. [Laughter]
Well, in any case, when I originally joined the
Roundtable, it was a very, very small group and it was
delightful and they were good people. I don’t think we,
in those days, I don’t think we had more than about 15 who
would attend each meeting and the result was that there
was an intimacy and a seriousness. This was no showoff.
Do you still participate?
Oh, yeah. Yeah.
How big a group is it now?
Oh, well, of course, it peaked during the Centennial,
the Civil War Centennial. I think the peak was, I think
we had something like 600 or 800 members.
– 121 –
Oh, really.
And there would be as many as 300 who would come to a
particular meeting. Today, it’s slacked off. The same
thing happened all around the country. It slacked off
right after the War and today the Roundtable here has, I
think about 150 members and there will be 60 people,
sometimes a little more, sometimes a little less.
Was there any peak in interest after the PBS series that was so
widely acclaimed and several books . . .
Not particularly. No.
Did you happen to see that series on PBS?
I watched a little of it.
What did you think of what you saw?
It was alright.
Just alright?
Yeah, it was alright. It wasn’t, I mean, after all,
if you know a hell of a lot about it [laughter],
there’s no particular reason to sit there staring at the
tube.
Right, and you’re not so easily impressed as some of the rest
of us were by the way it was put together.
But in any event, I began having, of course, the
beginning years, when I first began going to the
Roundtable, I was still damn busy practicing law and so
on, didn’t have too much time. But pretty soon, I began
getting to the point where I’d cook up papers and, in the
– 122 –
meantime, I was also trying to write articles and I was
beginning to have some success.
Articles on the war?
Yeah. And the, I guess along about, I’d have to
check dates, I just don’t remember. Along about, I think
my first paper must have, to the local group, must have
been given about 1960 or ’61 or ’62, somewhere around
there. But in a relatively short time, just a few years,
I was doing one a year and then it turned out that I could
be most certain that I wouldn’t be interfering with any
engagement out-of-town or whatnot that I might have, if I
would give the opening paper each year at the September
meeting. I could pretty well count on always being here
in September. So, I’ve forgotten the year now, it was 17
or 18 years ago, I began giving the opening paper and
continued that through last year. I’m not quitting that.
I’m just too old, decrepit and run down to maintain.
As I keep telling you, that’s not the way you strike me.
It’s been a lot of fun and the people, my brethren in
the Roundtable, they’re now “sisteren” too, we finally
ceased being for men only a few years ago, now there’s
some women around. But they’ve been awfully good to me
and they have responded very, very well to a lot of the
things that I’ve dished out. Well, not only was there the
local Roundtable, but I began also to be invited to give
– 123 –
papers to other roundtables, in Chicago, in Milwaukee, in
St. Louis, in Cincinnati, no not Cincinnati, in Cleveland
and Fredericksburg, Harpers Ferry, Carlisle. I never could,
around quite a bit.
You said you were interested in the whole expanse of the Civil
War, did your papers cover the whole expanse as well,
political, social, military?
Yeah. Oh, yeah. I never . . .
You never got pigeonholed?
No. Now most of it, obviously, does involve military
because that, to the average audience, that’s the fact
that is the most interesting. But I didn’t confine myself
to that.
I know one of your recent collections has to do with the black
soldier in the Civil War. How did you happen to develop your
interest in that?
Well, you can’t get much involved in the Civil War
without getting god damn interested in blacks. That’s
what the War almost became all about. In a very short
time, the north was fighting for the Union for three
months and then began to figure, well, we better end
slavery. [Laughter] But I don’t know that there’s any
particular thing that elicited my special interest in
blacks. But if you get, if you begin digging into the
Civil War, you’re hitting blacks real soon. And it was a
terribly important aspect.
– 124 –
How about the black soldier?
Yeah.
Equally?
Oh, sure. See, the blacks, actually it was a
Confederate, free blacks in Louisiana were in the
Louisiana State Militia under the Confederates and when
they . . .
One of the many things I didn’t know about the Civil War.
This was the original, the first blacks in the Union
Army were blacks who had been in the Confederate State
Militia in Louisiana.
That’s interesting. That wasn’t the famous Massachusetts
regiment that was . . . ?
No, the Massachusetts regiment was by no means the
first. The first blacks authorized by the Union were in
South Carolina, at Beaufort. They, however, they did not
begin to be organized until October. In the meantime, in
New Orleans, in August of 1862, Ben Butler was in command,
couldn’t get any reinforcements from the North. He was
isolated there; he had to have more men and he had been
turning down one of his officers who wanted to make
blacks, slaves and so on, make them Union soldiers and
he’d been turning them down because the North wasn’t doing
it at the time. But then you saw that there were a lot of
free blacks around and that they’d been in the Confederate
militia. So he began organizing. They actually called
– 125 –
them the Louisiana Native Guard. The first black unit
that was in the Union Army was with the first Louisiana
Native Guard which was organized and Butler brought them
into the service in September of 1862.
And when was the Massachusetts regiment?
Not until oh, about February or March, 1863.
And so it was quite a bit after that?
Oh, yeah. But it, I really have had a lot of fun and
in the meantime, not only was I giving these papers
around, but I was really trying to turn out articles and,
with some success. I’ve had 30, yeah, at least 30 and
maybe 31, I’ve kind of lost track, articles published and
these are not popular, crappy things. These are the, all
these articles are really, really good pieces of research
and writing and they’re in the Civil War History which is
one of the leading history journals in the country; it’s
done out of Kent State, South Carolina Magazine which is
done in the University down there, Mississippi, Louisiana,
Texas, oh, I don’t know, some others. And then there’s
the popular magazine called Civil War Times which is not
annotated, but the stuff is very good and I’ve had several
articles there; in Illinois, the State Journal of
Illinois and it’s given me a big kick.
I’ll bet.
And, see my, those are my papers and articles up
there.
– 126 –
Yeah, it really is an amazing body of work that you’ve been
able to put together.
Yeah. It’s been a lot of fun. Right now, I’m in a
state of crisis because my health, something went bad last
fall and I’ve been having a lot of trouble and I just have
not had the drive and the strength to keep at it. And it
may be that I’ve reached an end. I don’t know.
Well, hopefully, it’ll return and you can keep adding to that
body of work that you’ve put together. Let me ask you this,
with all of the time that you’ve spent, as you put it once
before, fighting the Civil War since you began the step down
from practice at Covington & Burling, have you had any time to
reflect on the current state of the practice of law as you see
it?
Well, actually, not very much. I wrote a history of
the firm which was published in 1986, I guess, yeah. And
it essentially was the history of the firm from the
beginning up through 1985. In working on that history, I
got in touch with people and got sort of a feel for the
way things were going.
How did you feel about the way things were going then?
I was sort of surprised at the extent to which,
seemingly, in other law firms, there was a preoccupation
with making them kind of business enterprises, it seemed
to me. Now I, I think one of the things that makes me
– 127 –
rather proud of this firm is that that sort of thing has
been minimal here. We are not as different today from
what we were 50 years ago in the nature of the activities,
except for having too damn many people around. We’re not
as different as a lot of other law firms are. And when I
was working on the firm manual, I talked to a lot of
people, a lot of lawyers, friends, people that I knew and
I could talk to them confidentially and they became very,
very candid telling me about what was going on in their
own firms and knowing that I would respect the confidence
and I was amazed at the extent to which, in many firms
that I’d always regarded as fine firms and maybe nearly as
good as Covington & Burling, not quite, but nearly. I was
surprised at the extent to which, in recent years, there’s
been a preoccupation to making them sort of business
enterprises and, I don’t know, trying to make a lot of
money or something. And it, to me, is just disturbing
because, and I will say this, that one of the great things
about this law firm is from way back at the beginning,
making money was not the thing that was driving and the
thing that was driving was the desire to have an
interesting kind of activity and sure, we’d be rewarded,
but there was just, we were never making decisions on the
basis of how much money would be involved. And, look for
example, at the way we alone have maintained lawyers,
full-time, in the legal services office.
– 128 –
That’s true and one of the few firms that has. After so many
years in practice, is there anything that you look back on, any
one thing that you look back on and say this was my crowning
achievement or this is something that if I had it to do all
over again, I would do it very differently? Is there anything
that you can point to that fits into one or both of those
categories?
Well, I suppose that I regard as my greatest
achievement the extradition of Perez Jimenez. That was so
unusual and remains so.
And that was a great story.
It took a lot of doing. There were other things that
I did in the way of law practice that I enjoyed
tremendously. I just had an awful good time from the very
beginning. It was just great fun as far as I was
concerned to practice law. And I was so fortunate in
being exposed to interesting stuff. After all, that
aviation stuff in those early days, that was damn
interesting and it continued that way, right up to the
end. I don’t know that there’s anything in the way of a
particular achievement or anything of that sort that I,
that in my memory I become occupied with. It was, I just
feel an enormous obligation to Judge Covington and Mr.
Burling and Newell Ellison and the others who set this
thing afloat and then to all the people who have come
– 129 –
along in more recent times and have kept it, kept that
paddle wheel just turning to beat the devil.
Well, I’m certain a lot of those people owe a considerable
obligation to you and . . .
Not much.
Well, I think so and I think also that the D.C. Circuit
Historical Society owes a debt of gratitude to you for being
willing to take the time to spend with me in these interviews.
They’ve turned out to be, from what I initially thought would
be a couple of hours, to probably seven or eight or nine hours
and it is a lot of time and I appreciate your giving it up and
thank you very much.
Well, thank you.
– A1 –
INDEX
Acheson, David Campion, 74, 92
Acheson, Dean Gooderham, 10-12, 26, 65, 67, 111
Air Coordinating Committee, 35-38
Air Transport Association, 25-33, 38-39
Air Transport Command, 32-33
Airlines and antitrust, 28-31
Allen, James S., 11-12
Allen, William H., 74, 77
American Airlines, 39-43
American Bar Association, 83, 91, 93, 95
American Civil Liberties Union, 72, 85-86
American Overseas Airlines, 42-43
Austern, H. Thomas (Tommy), 9-10, 28, 114
Baker, Newton Diehl, 23-24
Black, Hugo L., 63
Brandeis, Louis D., 15
Brown, John Robert, 61-62
Burling, Edward B., 13, 21-22, 102, 110-111, 113, 128
see also Covington & Burling
Burning Tree Country Club, 93, 104, 106, 107
Cardozo, Benjamin N., 5-7
Cedar Falls, Iowa, 1
Civil Aeronautics Safety Regulation Act, June 23, 1938, c. 601, 52 Stat. 973, 29-31
Civil Aeronautics Board, 31, 35-36, 37, 40-42
Civil War, U.S., 109, 118-125
see also under Westwood, Howard C.
Civil War History, 125
Civil War Times, 125
Columbia Law Review, 1933, Booknote on Congress as Santa Claus; or National Donations and
the General Welfare Clause of the Constitution, by Charles Warren, 18
Columbia University Law School, 3-5, 11
Commerce Department, U.S., 35-36
Congress as Santa Claus; or National Donations and the General Welfare Clause of the
Constitution, by Charles Warren, 18
Corporation Counsel, District of Columbia, 86-88
– A2 –
Covington, J. Harry, 13-14, 16, 27, 101-102, 111, 128
see also Covington & Burling
Covington & Burling:
Covington & Burling, 1919-1984 (1986), 12, 126
History of the firm, 12-13, 27-28
Management of the firm:
attorney workload, 88
Executive Committee, 111-113
Management Committee, 113-116
Philosophy of the firm, 126-127
“Washington lawyer,” concept of, 27-28
see also under Westwood, Howard C., Legal career
Dalehite v. United States, 346 U.S. 15 (1953) (Texas City disaster case):
background, 58-59
issues in, 61, 64-65
petition for cert in U.S. Supreme Court:
preparation of brief, 60-62
oral argument, 62-63
decision, 63-64
tactical mistakes, 64-65
Texas lawyers, 58, 60-62, 64-65
Davis, John W., 45-46, 54-55, 57-58
District of Columbia, Office of the Corporation Counsel, 86-88
District of Columbia Bar, 91-94, 97
HCW on board of, 91-92
District of Columbia Police Court:
Franco picketing case, 84-88
Eastern Airlines, 40
Eisenhower, Dwight D., 44, 78
Ellison, Newell W., 110-114, 128
Ehrlichman, John D., 105
Forhees, 95
Franco picketing case, 84-88
Frankfurter, Felix, 63
Goldberg, Arthur J., 56-57, 77-80
Gordon, Spencer, 16-19, 21, 111
Gorrell, Edgar S., 25-30, 35, 38
Grace Lines, 40
Grant, Ulysses S., 118
Haldeman, Harry R. (Bob), 105
– A3 –
Hominy cases (Alabama Power Co. v. Ickes, 302 U.S. 464 (1938)):
background, 16-18
decision, 24-25
injunction pending appeal, 21-23
spending power of Federal government, limitations on, 18-20
in U.S. Court of Appeals for the District of Columbia Circuit, 21-22
in U.S. Supreme Court, 23
Howard University, 97
Hughes, Charles E., 6-7
Ickes, Harold L., 17-18
Interstate and Foreign Commerce Committee, U.S. Congress, 29
Interstate Commerce Act, February 4, 1887, c. 104, 24 Stat. 379, 30, 31
Interstate Commerce Commission, 31
Iowa, 1
Jackson, Thomas Jonathan (Stonewall), 118
John Burroughs School, Saint Louis, 2
Johnson, Lyndon Baines, 96, 102-103
Judicial Conference of the District of Columbia Circuit, 93-94, 96
Justice Department, U.S.:
Solicitor General’s Office, 14-15, 18-19
Reed, Stanley, 15
Kennedy, John F., 78-79, 94-96
Laird, Melvin R., 106-107
Lea, Clarence Frederick, 29-31
Legal Aid Society, 89-102
Legal principles:
Spending power of Federal government, limitations on, 18-20
Extradition, relationship between the Courts and the U.S. State Department, 79
Legal Services Corporation, 105-108
Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962); cert. den., 373 U.S. 914 (1963)
(Perez Jimenez case):
Background (extradition request from Venezuelan Ambassador), 65-67, 76, 82
Burden of proof, 75
Extradition:
relationship between Courts and U.S. State Department, 79
requirements for, 68-69
treaty requirements, 76
Fame of case, 76-77
Length of case, 70-71, 80
Outcome of case in Venezuela, 80-81
– A4 –
Secrecy, need for, 67, 68-69
Significance of case, 82
State Department, involvement of, 78-79
Translating, need for, 68-69, 71-73
in U.S. Court of Appeals for the Fifth Circuit, 77
in U.S. District Court for the Southern District of Florida:
decision, 75, 77
extradition papers, filing of, 67-69
hearings, at multiple locations, 74-75
in U.S. Supreme Court:
decision, 80
petition for certiorari, 77
restraining order, 77-78
Marine Corps, U.S., 34-35
Miami, Florida, 65-82
Milwaukee, Wisconsin, 9, 11
Minnesota, 1
National Lawyers Guild, 11-12
National Lawyers Guild Quarterly, 11-12
National Legal Aid and Defender Association (NLADA), 102-105
Navy Department, U.S., 35-36
Nebraska, 1-2
Neighborhood Legal Services Project, 96-102
New Orleans, Louisiana, 74
New York, New York, 45, 47, 54-55, 57-58, 74
Nixon, Richard Milhous, 102-103, 104-108
O’Brian, John Lord, 59-63
Oliver, Bob, 40
Pan American Airlines, 25, 39, 42, 43
Parris Island, South Carolina, 34-35
Penagra Airlines, 40
Perez Jimenez case, 44, 65-82
see also Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962); cert. den., 373 U.S. 914 (1963)
Perez Jimenez, Marcos, 44, 65-82
see also Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962); cert. den., 373 U.S. 914 (1963)
Pershing, John Joseph, 26
Peru, 81
Pogue, L. Welch, 40
Police Court, District of Columbia:
Franco picketing case, 84-88
– A5 –
Post Office, U.S., 35-36
Prettyman, E. Barrett, 93-94
Public Works Administration, U.S., 16-25, 29, 31, 83, 88
Reconstruction: The Battle for Democracy, 1865-1876, by James S. Allen, 11-12
Reed, Stanley, 15
Rhyne, Charles S., 91-93
Roberts, Owen J., 63
Saint Louis, Missouri, 2
Saint Petersburg, Florida, 74
Shipping Act, Sept. 7, 1916, c. 451, 39 Stat. 728, 29-30
Shorb, Paul E., 110-111
Skidmore College, 89
Smith, Cyrus Rowlett, 42-43
Socialism, 9, 11-12, 20, 34, 54
Solicitor General’s Office, 14-15, 18-19
Reed, Stanley, 15
South Carolina Magazine, 125
State Department, U.S., 35-36
Acheson, Dean Gooderham, 10-12, 26, 65, 67, 111
State Journal of Illinois, 125
Steel Seizure case (Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952)), 44-57
Sterling, Nebraska, 1-2
Stone, Harlan F., 4-9, 26
Superior Court of the District of Columbia, 14
Supreme Court of the District of Columbia, 14
Hominy cases (Alabama Power Co. v. Ickes, 302 U.S. 464 (1938)), 16-25
Covington, J. Harry, 13-14, 16, 27, 101-102, 111, 128
Supreme Court, U.S.:
Dalehite v. United States, 346 U.S. 15 (1953) (Texas City disaster case), 44, 58-65
Hominy cases (Alabama Power Co. v. Ickes, 302 U.S. 464 (1938)), 16-25
Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962); cert. den., 373 U.S. 914 (1963)
(Perez Jimenez case), 44, 65-82
Justice Cardozo and Justice Stone, relationship between, 6-7
Justices:
Black, Hugo L., 63
Brandeis, Louis D., 15
Cardozo, Benjamin N., 5-7
Frankfurter, Felix, 63
Goldberg, Arthur J., 56-57, 77-80
Hughes, Charles E., 6-7
– A6 –
Roberts, Owen J., 63
Stone, Harlan F., 4-9, 26
Yarborough v. Yarborough, 290 U.S. 202 (1933), 7-8
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Steel Seizure case), 44-57
Swarthmore College, 2-3
Tecumseh, Nebraska, 1-2
Tempko, Stanley L., 48, 52, 54
Texas City disaster case (Dalehite v. United States, 346 U.S. 15 (1953)), 44, 58-65
Tipton, Stuart Guy, 38
Truman, Harry S., 43-45, 56
Tuttle, Charles H., 54
U.S. Army, 26, 33
U.S. Court of Appeals for the District of Columbia Circuit:
Hominy cases (Alabama Power Co. v. Ickes, 302 U.S. 464 (1938)), 16-25
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Steel Seizure case), 44-57
U.S. Court of Appeals for the Fifth Circuit:
Brown, John Robert, 61-62
Dalehite v. United States, 346 U.S. 15 (1953) (Texas City disaster case), 44, 58-65
Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962); cert. den., 373 U.S. 914 (1963)
(Perez Jimenez case), 44, 65-82
U.S. District Court for the District of Columbia, 14
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Steel Seizure case), 44-57
U.S. District Court for the Southern District of Florida:
Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962); cert. den., 373 U.S. 914 (1963)
(Perez Jimenez case), 44, 65-82
U.S. Steel, 57-58
see also Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Steel Seizure case)
Venezuela, 65-82
see also Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962); cert. den., 373 U.S. 914 (1963)
(Perez Jimenez case)
War Department, 35-37
Warnke, Paul C., 48, 52
Warren, Charles, 18
“Washington lawyer,” concept of, 27-28
Westinghouse, 116
– A7 –
Westwood, Howard C.
Civil War, U.S.:
black soldiers in, 123-125
Civil War Roundtable, 119-123
development of interest in, 109, 118-119
published articles, 125
Early life and education:
Columbia University Law School, 3-4
decides on legal career, 3
early childhood and family background, 1-2
secondary education, 2
Swarthmore College, 2-3
Family, 11-12, 33, 89
Legal career:
clerk to Justice Harlan F. Stone, U.S. Supreme Court:
Justice Cardozo, relationship with, 6
office space, 5-7
role as, 7-9
salary, 10
selected as, 4-5
Yarborough v. Yarborough, 290 U.S. 202 (1933), 7-8
at Covington & Burling, post-war:
Dalehite v. United States, 346 U.S. 15 (1953) (Texas City disaster case), 58-65
firm management:
Executive Committee, 111-113
Management Committee, 113-116
creation of, 113-115
service on, 115-116
legal aid, commitment to:
District of Columbia Bar, 91-94, 97
on board of, 91-92
federal legislation for legal aid, 94-96
firm and client reaction to pro bono work, 99-102
Legal Aid Society, 89-98, 99, 100
American Bar Association report on, 92-93
on board of, 89-98
branch offices, 97
conflict of interest with Neighborhood Legal Services Project, 97-98
funding for, 93-94
Judicial Conference of the District of Columbia Circuit, support for, 93-96
– A8 –
Legal Services Corporation, 105-108
lobbying for creation of, 105-109
National Legal Aid and Defender Association (NLADA):
on board of, 102
lobbyist for, 102-105
need for, 103
Neighborhood Legal Services Project, 96-102
on board of, 97-99, 102
development of, 98-99
“retirement” from, 108-109, 116
Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962); cert. den., 373 U.S. 914 (1963)
(Perez Jimenez case), 44, 65-82
represents American Airlines, 39-43
retirement from practice of law, 116-118
returns to firm, 39
role in firm after leaving legal aid, 109-110
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Steel Seizure case),
44-57
at Covington & Burling, pre-war:
Air Transport Association, counsel to, 28-33, 38-39
Air Transport Command, creation of, 32-33
Civil Aeronautics Safety Regulation Act, June 23, 1938, c. 601, 52 Stat. 973:
drafting of, 29-31
legislative history, 31
Civil Aeronautics Board, 31, 37, 40
early experience, 14
hired, 9-12
Hominy cases (Alabama Power Co. v. Ickes, 302 U.S. 464 (1938)), 16-25
pro bono work:
American Civil Liberties Union, work with, 85-86
court-appointed, 83-88
Franco picketing case, 84-88
winning argument, 87
Solicitor General’s office, offer from, 14-15, 18-19
Political views, 9, 11, 20
Practice of law, reflections on, 20, 128-129
greatest achievement, 128
– A9 –
Publications:
Columbia Law Review, 1933, Booknote on Congress as Santa Claus; or National Donations and the General Welfare Clause of the Constitution, by Charles Warren, 18
ABA Journal, Volume 51, April 1965, “Legal Aid on the March in the Nation’s Capital,”
91, 95
Civil War, miscellaneous articles on, 125
Covington & Burling, 1919-1984 (1986), 12, 126
National Lawyers Guild Quarterly, book review of Reconstruction: The Battle for
Democracy, 1865-1876, by James S. Allen, 11-12
World War II military service:
Air Coordinating Committee, Secretary to, 35-38
draft deferment, 32-34
in Marines, 34-35
Wisconsin, 9, 11
Yarborough v. Yarborough, 290 U.S. 202 (1933), 7-8
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Steel Seizure case):
background, 44-46
constitutional issues, 56
motion for injunction:
in U.S. Court of Appeals for the District of Columbia Circuit, 47-51
further proceedings, 51
in U.S. District Court for the District of Columbia, 46-47
in U.S. Supreme Court:
restraining order, 52-53
preparing brief, 54-55, 57
– B1 –
APPENDIX
The following pages consist of a portion of an interview with Howard
Westwood conducted by his partner, Theodore Garrett, on May 31, 1979. The purpose of
the interview was to prepare materials for use in a history of Covington & Burling which
Howard later wrote in 1984.
This portion of the interview provides an active participant’s recollection of
the Steel Seizure case, one of the most important cases decided by the courts of the D.C.
Circuit. Accordingly, it should be included in Westwood’s contribution to the Oral
History Project.
– B2 –
‘ The Steel Seizure Cas a
During the Korean War (this was in 1952) there had
been a significant amount of iaflation which created wage
demands by labor unions and there was a particularly dramatic
situation in the steel industry. The steel industry’s contracts
with the labor unions came to an end at the end of 1951.
Negotiations for new contracts had begun quite late in 1951,
maybe not until around the 1st of December, they went on
beyond the termination date, and ultimately there was a wage
stabilization board recommendation as to how the dispute ought
to be resolved.
as a part of the governmental activity in the field designed
to help curb the inflationary trends.
made on the 20th of March of 1952 but the steel companies
rejected it.
Early in April, I think the date was April 3rd, after the
rejection by the steel companies, the steel union announced
that there would be a strike to begin at 12:Ol a.m. on April
9.
This wage stabilization board had been created
Its recommendation was
Apparently, labor was willing to go along on it.
I have forgotten what day of the week April 9 was.
The Taft-Hartley Act, of course, had been adopted
sometime before.
an emergency if there were a threatened strike, and then for a
so – called cooling off period there was to be no strike.
It gave the President the power to declare
The
– B3 –
government could enforce the no-strike provision during that
period by bringing suit against the labor unions to enjoin a
strike. During that cooling off period the idea was that the
President would designate a fact-finding commission, etc. It
woule make a report before the end of the cooling off period.
It was the theory that public opinion then would require the
parties to the dispute to abide by the report or if it were a
situation which involved a great national emergency, then
presumably Congress would have an opportunity to step in and
legislate.
The Taft-Hartley Act had created a great deal of
opposition on the part of the unions. Anything that curbed
their right to strike was, of course, regarded by the unions
as very bad.
Taft-Hartley Act.
the steel dispute that he was not going to resort to the
procedures set up under the Taft-Hartley Act. So here was a
threatened strike, one that was very critical to the economy
and to the nation and theoretically, at least, or at least
allegedly, would have an impact on our national military
posture in connection with the Korean War.
panies, probably thinking that because of the impact on our
military strength of a strike, felt that their bargaining
position would be strengthened if there were a threatened
strike, that that would result in public opinion being marshalled
against the position of the labor unions. Obviously, from the
President Truman was very much opposed to the
It was fairly evident from the beginning of
The steel com-
– B4 –
very beginning ad then all through the litigation, the thing
that was uppermost in the minds of the steel companies, and no
doubt in the minds of the labor unions, was sheer tactics io
their wage dispute — what would most conduce to strengthening
the position of one side or the other in the eyes of the
general public.
When the strike was called, the steel companies
decided that they would seek somehow or another to protect
themselves by litigation. There had been a feeling all along,
and some indication all along, that the President would actually
seize the steel companies, take them over in the event there
were a strike, and would not follow the Taft-Hartley Act. He
would just resort to some kind of alleged inherent power on
the part of the President as Commander-in-Chief of the Armed
Forces to take over an industxy and then forbid a strike if
our national defense posture were seriously threatened. It
was also reasonably clear that if the President seized the
steel companies, the labor unions would not strike – not
necessarily that they agreed that the President had the power
to take over, but rather because they felt reasonably sure
that, if the President did take over the steel companies, he
or his agents then would make a wage deal with the steel
unions that would be rather to their liking. That then would
improve their bargaining position in the future because whatever
the President had done would be a floor from which they could
further bargain with the steel companies. The threat that
– B5 –
that sort of thing might occur was, of course, .from the steel
companies’ standpoint, very serious because it meant that
their bargaining position for the future would be correspondingly weakened if the President took over and raised
wages.
ready for litigation.
So the steel companies had their lawyers begin getting
We were not in on the matter. We were not the
lawyers for any of the steel companies and we had heard nothing
about this whole controversy except that any member of the
public reading the newspapers would know something about it.
Davis Polk represented U.S. Steel. U.S. Steel, of
course, was the lead steel company.
happy relationships with Davis Polk for many, many years.
This was the result to a considerable extent of Judge Covington.
We would use Davis Polk in New York, and Davis Polk would use
us in Washington.
branches down here by and large.
litigation in the District of Columbia, they had to have local
counsel They came to us without any real advance warning.
Obviously it was their thought that we would be local counsel,
and that they would be doing all the briefing and arguing and
all the work. I am not sure whom they originally approached.
I think maybe the top management in U.S. Steel may have called
Tommy Austern.
on the papers as local counsel. Mr. O’BrianIs reputation was,
of course, glittering. He was unquestionably the dean of the
Our firm had had very
In those days New York firms didn’t have
For Davis Polk to conduct a
What they had in mind was getting Mr. OfBrian
– B6 –
American Bar, arid to have him on the papers as local counsel
would be very good.
Mr. O’Brian might be available and Austern indicated that he
probably would be.
I think they called Austsrn to see if
The end of it was that a meeting was set up for, I
think, the 8th of April, the day before the strike was actually
to begin. That’s my best recollection, although it is possible
it was a little earlier than that. Mr. OIBrian, of course,
would need some help, and I was asked to help him. Mr. O’Brian
and I met with the Davis Polk lawyers on that first day. I am
pretty sure that I had already decided that it would be necessary to have a lot of help and I had Paul Warnke and Stan
Temko and another one of our then associates, a chap named
Chuck Barber, sit in on the meeting.
We never did in our firm take to the idea of being
local counsel in a matter and although it was reasonably
apparent that the Davis Polk people thought we would just be
putting our names on papers, we made it clear to them that, if
we were going to be on the case, we were really going to be in
it.
we were going to be actively involved in working out the
strategy, the theory of the case, the papers, and so forth. I
must say that the Davis Polk people were very good about it.
There was no effort to put us on the shelf and keep us in a
subordinate position at all.
That didn’t mean that we would supersede Davis Polk but
– B7 –
What we did at that first meeting was to recognize
that a hell of a lot of work had to be done in a very great
hurry, because with the strike about to occur the President’s
seizure was imminent. So it was quite apparent that litigation
would be essential.
President. As soon as he entered his executive order taking
over the steel plants, the labor unions let it be known that
they wouldn’t strike.
And of course there was a seizure by the
In his order taking over the plants, the President
designated his Secretary of Commerce, Mr. Sawyer, as the
person who would be running the show.
all intents and purposes nominal. The management of the steel
companies was not superseded. In fact, the take over merely
amounted to an order saying that they were taken over by the
United States but provided that all of the people in the steel
companies’ staff, management and labor, would stay on the job
subject to such orders as Mr. Sawyer, on behalf of the President,
might issue.
affecting wages and hours. As a matter of fact, there were
statements by Sawyer that indicated that he had no immediate
intention of affecting wages and hours, and it was the idea
that there would continue to be negotiations between management
and union on the wagehour issues with Sawyer sitting on the
sidelines hoping that somehow everything would work out.
The take over was to
At the beginning, there was no order at all
However, the taking over by the President made it
unrealistic to expect that there would be any voluntary agreement.
– B8-
On the one hand; the labor unions wanted to get the benefit of
Sawyer’s intervention aud to force his hand so ”hat he would
have to take some wage and hour action which would be to their
benefit.
agreement. On the other hand, the steel companies weren’t
about to enter into an agreement with the compulsion of the
President of the United States.
the beginning figured that what they really faced was not only
a take over =- which didn’t do anyone any particular damage =-
but in the very near future a very damaging action by Sawyer,
that is increasing the wages and in effect acceding to various
of the Union demands.
So the labor unions did cot want to enter into an
So the steel companies from
It was obvious that I would have to take the lead in
the work that we did at Covington & Burling.
well along in years and couldn’t be expected to devote the
time and energy to the basic work of research and drafting of
the papers and so on. What I did was to divide the work that
would have to be done among the three guys I mentioned.
Warnke was to proceed with the necessary research and brainwork
and legwork and muscle work on the procedural aspects of the
problem; Temko was assigned the substantive aspects; and Chuck
Barber was given quite a number of missions having to do with
liaison with the Davis Polk lawyers and so forth.
Mr. O’Brian was
We didn’t start our work from a clean slate by any
means because the Davis Polk people had done some very excellent
research work and had some drafts of papers.
of further work had to be done very, very promptly.
But an awful lot
– B9 –
In the meantime, other of the steel companies had
been busy and as soon as the seizure occurred a couple of them
went into action – but not U.S. Steel.
papers ready and we didn’t want to be out in front.
we wanted to try to be sure of how the case ought to be presented before we filed anything. But a couple of the companies
very immediately went at night to Judge Bastian of the District
Court to seek a restraining order against the seizure. One
was Youngstown, represented by John Wilson of our Bar here.
The other was Republic, represented by Bruce Bromley of the
New York Bar.
act that night.
next day = Holtzoff was sitting in Motions Court.
We didn’t have our
Moreover
They went to Judge Bastian, but he refused to
They were told to go to Judge Holtzoff the
They did go to Holtzoff and sought a temporary
restraining order.
denied the temporary restraining order.
memorandum opinion or make any findings in his order of denial
but there was significant colloquy in the argument before him.
What he said was, IILook here, the mere seizure of the plants
is not immediately injurious because nothing is happening.
You are operating just the way you always have -= the same
wages, hours and everything else == and I don’t see that there
is any occasion for a temporary restraining order unless some
kind of injury is threatened, so no temporary restraining
order. If
After quite a lot of argument, Holtzoff
He didn’t write a
Nonetheless, of course, bills of complaint were
filed seeking preliminary injunctions and we had our complaint
ready to file fairly soon after Holtzoff’s order. I have
forgotten now how many complaints were filed, but every steel
company was involved.
that began to be filed in the District Court.
assigned to Judge Pine.
about the old PWA cases I referred both to Holtzoff, who was
then in the Department of Justice, and to Pine, who was then
in the Office of United States Attorney.
cant to the Steel Case; it is just interesting that I had had
rather intimate contacts with both those gentlemen early on.
The case was assigned to Judge Pine. There was
,
It was an enormous bundle of papers
The case got
You might remember that in my talking
That is not signifistill real uncertainty about how to present the matter with
any hope of getting immediate injunctive relief as long as
Sawyer was not taking any action. As I have said, Sawyer was
saying things that indicated that he didn’t contemplate taking
any action, that he was going to rely on a continuation of the
bargaining between management and labor.
shop were very worried that in that posture there was not a
prayer of getting a preliminary injunction.
And we here in the
I must say that at that point nobody among the steel
companies’ lawyers had any remote idea that anything would be
faced up to by Pine except the matter of preliminary injunction.
action in the District Court either at that stage or in the
Nobody had any idea that there would be any final
– E11 –
near future. The whole question was — are we going to
preliminary injunction or not? We wanted a preliminary
tion pending a trial on the merits, in order to protect
get a
injuncourselves.
We figured that a trial on the merits, while it would be
expedited, certainly would not occur for a number of weeks.
But the government committed a tactical blunder.
They could have waited for a substantial period under the
rules before filing any responsive pleading.
almost immediately filed a motion to dismiss.
and the other steel companies were assuming that the only real
issue would be that of a preliminary injunction, the filing of
this motion to dismiss at least set the stage — although we
couldn’t believe that this would really happen == for ruling
on the motion to dismiss and in effect finally deciding the
case. Well, I think it was on Sunday, which would be about
April 20, Sawyer finally began making statements that indicated
that he was going to make a change of some kind in wages.
that point, the matter of an injunction became of critical
importance and we figured, as did the other lawyers, that the
point made by Holtzoff could be got around because now there
was threatened (on the basis of Sawyer’s statement) an immediate injury, that is an increase in wages and otherwise taking
action injurious to the management. well, argument was set
for Thursday, April 24th.
Thursday, April 24th, and Friday, April 25th.
Instead they
So whereas we
At
Actually the argument ran both on
– B12 –
I haven’t double checked this, and my memory is
fuzzy, but I think that tec.hnically the only thing before
Pine, even though a Motion to Dismiss had been filed, the only
thing technically before him wss the Motion for Preliminary
Injunction. The government, however, made a mistake; they
filed a great long brief.
the argument.
taking over the case; it wasn’t left to the local U.S. attorney –
had dug out papers that had been used during World War I1 in
connection with the Montgomery Ward seizure, which was a very
dramatic event and at that time there had been a lot of briefing
of the power of the President to take over a plant. They had
all that learning and all those papers in their files and I
guess they couldn’t resist the temptation to file a deathless
document that would assert the unlimited inherent power of the
Executive as the Commander-in-Chief to do whatever he wanted
to do.
the preliminary injunction issue fairly thoroughly in one
part, its burden was on the merits of the case, that is, is
there or is there not inherent power in the Executive to take
over?
They filed it several days before
The Department of Justice lawyers – they were
So the paper they filed, although it was addressed to
Thus we had the benefit of the government having
filed their brief and we got busy.
working like hell on this thing all along. We got busy with
their brief in hand and were able to put our brief on behalf
of U.S. Steel in final shape with the benefit of the government’s
Of course we had been
– B13 –
document.
by all odds the most thorough, both on the preliminary injunction issue and on the nerits responsive to the government’s
argument.
prepared in so short a time. The credit for it is due very
largely to the extraordinary ability of Stan Temko and Paul
Warnke.
I said, Davis Polk had done some excellent work.
closely with the Davis Polk people in putting this brief
together, but it was a Temko-Warnke job in the main that
produced our document.
Bruce Bromley on down == Bruce Bromley was a very distin –
guished lawyer =- recognized the merit of our document and, in
the argument that did occur before Pine, it was our document
that was referred to not only by us but by other lawyers as
the definitive statement of the position of the steel companies.
All the steel companies filed briefs but ours was
It was a pretty doggone good job for having to be
They aren’t entitled to all of the credit because, as
We worked
The other lawyers in the case from
Before the argument we had a strategy session. We
in Covington were not to participate in the argument for U.S.
Steel.
the important Davis Polk partners and very much involved in
the work on the case.
lawyers for all the steel companies.
the chairmanship of such a meeting, and gradually I sort of
assumed that position.
John Wilson, who represented Youngstown and who is a very able
lawyer and was highly regarded and respected by the other
The person arguing would be Ted Kiendl, who was one of
We had a strategy session with the
Somebody has to assume
I had very good relationships with
– B14 –
lawyers. The lawyers from New York, Pittsburgh and elsewhere
would sort of defer to the local lawyer anyway. So, it was
kind of a natural thing that in sessions among the lawyers to
discuss how things would be worked out, a local lawyer would
become a facto chairman of the meeting and I was it. I
don’t want to exaggerate that. That doesn’t mean that I was
deciding things at all; it was simply to have things done in
an orderly way.
It was decided that the lead-off argument would be
by Ted Kiendl for U.S. Steel and then the other lawyers would
follow along with Bruce Bromley, obviously, taking an important
part, and John Wilson taking an important part. John Wilson’s
important position in the matter was recognized because Wilson
and Pine knew each other well. Wilson at one time had been in
the U.S. Attorney’s Office and we all knew that there was a
high mutual regard between those two people.
I think every single one of the steel companies that
had filed suit appeared at the argument before Pine.
course, there was a desire on the part of everybody to get
into the act but Ted Kiendl it was agreed would lead- off.
Of
Pine was a very diligent judge; and it was quite
apparent, when the argument began, that he had read the papers
that had been filed, despite their voluminous nature, and had
read them rather carefully — even including the U.S. Steel
paper, which had been filed at the last minute.
One point in the strategy session ahead of time that
had been agreed to by all the lawyers was that what we were
really after was a preliminary injunction not enjoining the
seizure but enjoining any alteration in labor conditions.
Holtzoff’s position had influenced us and in any event it
seemed as a matter of solid legal analysis that,
extraordinary remedy of a preliminary injunction, the best we
could hope for would be a hold up on a change in labor conditions.
We couldn’t get a preliminary injunction against the seizure
itself because that was the whole case.
any of us at the strategy session that Judge Pine on such
short notice would walk up to ruling on the Motion to Dismiss
or in any event would entertain an argument in support of a
preliminary injunction of the seizure itself.
argument, when he took off, was couched in terms of seeking
only an injunction against a change in labor conditions.
Although our papers had sought a preliminary injunction against
the seizure, Kiendl went so far, on being questioned by Pine,
as in effect to amend our papers so that our prayer would be
limited to a preliminary injunction only against a change in
labor conditions.
for the
It never occurred to
So Kiendl’s
Almost immediately Judge Pine reacted very negatively
to that position.
you are not seeking a preliminary injunction against the
seizure, that you are perfectly content to let the government
hold on to the steel companies because you know that there
He said, in effect, “DO I understand that
– B16 –
will be no strike? The labor unions won’t strike against the
government. You want to get the benefit of the government’s
holding the steel companies because then you know that there
will be no strike.
government from giving any benefits to the labor unions by
making a change in labor conditions. Is that what you are
saying?I1 And Kiendl, of course, said, I1Yes.” Well, it was
very apparent that Pine didn’t like that one bit.
All you want to do is to prevent the
It was also apparent that Pine was not very happy
about the argument of the government that there was some kind
of inherent power in the Executive to seize property — particu –
larly in view of the fact that in the Taft-Hartley Act Congress
had sought to make provision for dealing with a labor dispute
that involved a national emergency.
Even though early on, the judge during Kiendlls own
argument had telegraphed the fact that he was disposed to walk
right up to the basic merits of the case, he, Kiendl, didn’t
retreat from his position. He was very firm. However, when
Kiendl finished and the other lawyers began arguing — and
particularly this was true in the case of John Wilson — they
got the point.
case and working hard on what they sensed to be Judge Pine’s
disposition not only to go to the merits but to go to the
merits in a way favorable to the position of the steel companies.
That doesn’t mean that they repudiated Kiendl’s position but
none of them would take the position that they, were amending
They really began leaping to the merits of the
– B17 –
their papers so as to pray only for the kind of injunction
that Kiendl prayed for in his oral amendment.
It was particulariy clear during John Wilson’s
argument what the bent. of Pine’s mind was. Wilson knew Pine
like his own brother. I don’t mean that Pine favored Wilson
in any sense, but when Wilson was before him, there obviously
was a rapprochement and an understanding on both sides of the
bar as to what it was all about.
ment’s turn arrived it was pretty clear to everybody in the
courtroom that Pine was disposed to go to the basic merits of
So by the time the governthe case and to rule on the motion to dismiss.
then came along and walked right up to the merits.
obviously very confident. I don’t know why because everything
that had happened up to that point did not such suggest that
the government was going to win before Pine.
The government
They were
The argument was concluded on Friday and Pine took
the matter under advisement. He indicated that he was going
to decide very promptly but he didn’t decide it from the
bench. In the meantime, we were nemous as could be, of
course, as to what Sawyer might do. We thought any minute
that Sawyer would be hauling off with some kind of order
changing the labor conditions. But he didn’t. I don’t know
exactly why he didn’t.
about the Steel Case =- a superb book -0 really does not
explain why Sawyer didn’t immediately take action. I can only
guess, that Sawyer was never really happy about this seizure.
The book written a year or so ago
– B18 –
I think he felt – that it was not particularly good government
for the President to be seizing plants without regard to any
statutory authority and in defiance of the procedure set up in
the Taft-Hartley Act. I think he was dragging his feet and
the White House was reluctant to give him peremptory orders.
In any event, there was no change in the labor conditions over
that weekend.
On Tuesday, Pine issued his decision. A memorandum
opinion was passed out. It overruled the
government’s motion to dismiss and issued a preliminary injunction as I recall it. I’d have to go back and check the papers
for just exactly what it was, but I think he overruled the
motion to dismiss and issued a preliminary injunction against
the seizure.
papers orally, they weren’t going to get any injunction because
it would be stultifying to let U.S. Steel have the benefit of
a government seizure which meant no strike, practically speaking,
and at the same time, keep the government from taking any
action benefiting the employees. But Pine said, “If you want
to amend your papers, 1’11 issue an injunction for you, also.”
By that time, of course, I was the guy representing U.S.
Steel, because Kiendl and company were in New York and all of
this had happened on very short notice.
sweet secretaries, AM Steel, with the typewriter in the
Courthouse corridor down there, I did an amendment of our
papers, withdrawing the oral amendment which Kiendl had made
during his argument. So we got an injunction, also.
We read it quickly.
He said that since U.S. Steel had amended its
1
So with one of our
– B19 –
Then the government made its next blunder. They
decided that they would 50 directly to the Supreme Court and
skip the Court of Appeals.
order.
Appeals, you can petition directly to the Supreme Court, if
you want.
power to grant it. So on Wednesday morning, the government
first asked Pine for a stay of the injunction pending their
appeal to the Court of Appeals, and indicated that, as soon as
they filed their appeal, they would petition for certiorari.
Pine, of course, denied the stay. By that afternoon, we were
in the Court of Appeals. Argument occurred that afternoon in
the Court of Appeals on the government’s motion for a stay
pending a petition for certiorari.
all night and had papers filed, as did the other steel companies,
opposing a stay.
of a stay, the government was still overconfident.
forgotten now whether the Solicitor General, Mr. Perlman, was
present at that argument. I think he was. Yes, I think the
argument that afternoon, the principal argument, was made by
Mr. Baldridge of the Department of Justice, and I think Perlman
made a reply argument after the argument by the steel company
lawyers.
That was a blunder of the first
As you know, once the record is filed in the Court of
They don’t have to grant it, but they have the
Of course, we had worked
In the argument that afternoon on the matter
I have
Things were happening so fast Mr. OIBrian couldn’t
possibly have kept up with it. So I was the guy. But we had
had another strategy session of the lawyers on Tuesday night,
– B20 –
knowing that this is what the government was going to do.
First I should say that before Pine the only local lawyer who
had been really involved significantly in the actual argument
was John Wilson.
and I think some lawyers from other cities.
session that Tuesday night when we were deciding how things
were to be handled on Wednesday in the Court of Appeals, which
we knew would be coming, I moved in very firmly and I just
laid down the law to such New York lawyers as then were there,
and Bruce Bromley was there, and, Cod bless him, he was great.
I laid down the law and said, the guy who is to take the lead
and make the principal argument in our Court of Appeals should
be John Wilson. John Wilson is highly regarded; he is a local
lawyer, and we don’t want you foreigners in here screwing
things up.
There were all of these New York lawyers,
At the strategy
Everybody took that in good spirit and it was agreed
that John Wilson would lead- off.
Bromley would not be involved.
the argument in the Court of Appeals, and some of the other
lawyers were, too.
argument went pretty well.
only in some of the colloquy. I just got in the act a little
bit on some of the questions and answers back and forth between
the bench and the lawyers.
I didn’t mean that Bruce
He was importantly involved in
But John Wilson took the lead and the
I participated in the argument
The argument went pretty well and it really looked
good. Chief Judge Stevens, it seemed, was with us. Judge
– B21 –
Edgerton, everyone knew, would be against us. But it looked
5s though we were going to get a majority.
doing, gf course, was to argue against a stay; and the burden
of the argument was if there werz a stay, then immediately
Sawyer would change labor conditions, the fat would be in the
fire, and we would be irreparably injured and we couldn’t
possibly ever cure that injury.
Wnat we were
The Court took the matter under advisement and was
out for some little time. I think the argument went on until
about 6:OO and then, I think, the court came back around 7:00,
or something of the sort. I have forgotten the exact times of
day.
that if there were a stay issued, it should be on condition
that there be no change in the labor conditions.
made that point all the way through, but the burden of argument
was against issuing any stay as had been agreed among all the
lawyers. 1 may say, one of the lawyers then prominently
involved in the argument was another highly respected local
lawyer; that was Nubble Jones, of Hogan & Hartson. We were
getting a local flavor in the Court of Appeals, except for
Bruce Bromley. There was very little in the way of alien
lawyers being involved.
both of whom were very highly regarded; their prestige much
greater than mine.
strategy session, and it was agreed that, if the unthinkable
happened and a stay were issued with no condition, I was to
In the course of the argument, the point had been made
John Wilson
It was John Wilson and Nubble Jones,
But while the Court was out, we had another
– B22 –
speak up immediately and press hard the question of having a
condition attached to the stay.
The Court let it be known that they were ready to
announce their decisicn, and so the Court came in, all nine of
them. The lawyers were sitting at the desks in front of the
Court. I think it was 7:OO or 7:30 by this time. Very preemptorily Stevens said that Judge Edgerton would announce the
decision of the Court since he, Stevens, was in the minority.
And Judge Edgerton simply announced that a stay would issue,
and right away Stevens adjourned the session. Of course, on
adjournment, the lawyers stand. I will never forget. I was
standing next to Nubbie Jones, and Nubbie Jones, out of the
corner of his mouth, growled, Why don’t you speak up?” I was
paralyzed. All I could do was sort of gurgle. It was stagefright; it was something; it was paralysis; and I didn’t do
what I was supposed to do. However, fortunately Stevens, the
Chief Judge, didn’t leave the bench immediately, as all the
other judges did. The other judges literally ran out. It was
as though someone had a gun at their heads. The decision had
been 5 to 4 against us. We had lost Prettyman. Prettyman was
the swing guy. Stevens didn’t go quite so fast and in a
moment I was able to recover from the paralysis. So then I
began to say to Stevens, now, wait a minute, there is another
point here which apparently the Court has not addressed, and
that is the matter of attaching a condition to the stay.
about that? Stevens then sent for Judge Edgerton and Judge
What
– B23 –
Edgerton came back, and here were Stevens and Edgerton on the
bench and all the lawyers.
Then we had quite a little discussion. I was saying,
then in effect, damn it, we had asked that, if there were a
stay, there be a condition, and the Court hadn’t addressed
that.
question. They said nothing about it in Edgerton’s announcement
from the bench. It was quite obvious they had forgotten all
about it in their in camera discussions. They just ignored
It was apparent that the Court had not addressed that
it. There was considerable discussion. Perlman, of course,
was eager to get away, he was all ready to run right out of
the courtroom, because if you win, you don’t hang around. But
he couldn’t quite get away.
The net of it was that Stevens finally said, with
Edgerton agreeing, that, if we wanted to, we could, at 9:00 in
the morning or 9:30, I have forgotten, file an application for
a condition to be attached to the stay. So off we went and
worked all night on the papers for a condition to the stay.
By that time we at C&B were really in the saddle; you couldn’t
fool around with other lawyers. There wasn’t time. So it was
Temko, Warnke, and Westwood working right through the night on
an application for a condition to be attached to the stay. We
filed the papers then by 9:30 in the morning.
The Court, however, did not convene at 9:30. I
don’t think they came in until about 10:30. Obviously they
had been studying the papers that were filed. I have forgotten
– B24 –
whether the government filed papers in opposition.
have, because they were working hard,
and the session began at 10:30.
on the condition for a stay.
lead in the argument, because I was the only one, obviously,
thoroughly prepared on this thing.
argument Prettyman pressed Perlman for an agreement that there
would be no change in the labor conditions until the Supreme
Court had an opportunity to really pass on the question.
Perlman resisted.
this point we will get Prettyman and it will be 5 to 4 in our
favor.
They may
too. The court came in
We had a full scala argummt
By this time I was taking the
In the course of that
That led us to think that, by golly, on
Of course, in the beginning all that we had wanted
was to prevent a change in labor conditions, the position that
Kiendl initially had taken. So if we could get that, hell, we
would have won the case.
argument on this matter of a condition went pretty well.
Finally, right at the tail end, Perlman grudgingly agreed that
there would be no change in labor conditions until his petition
for certiorari was filed.
condition that a petition for certiorari be filed by Friday,
which by then was the next day.
that he could file a petition for cert. the next morning at
9:00 and change labor conditions at 9:30, so we were still
mighty scared. We didn’t feel that met Prettyman’s point,
it didn’t. So we still felt pretty confident when the Court,
And we were pretty confident; the
The court’s stay had been-issued on
But Perlman’s agreement neant
and
– B25 –
at the end of that argument, took the matter under advisement.
We figured we would get Prettyman. However, the Court came
back in due course, 5 to 4 against us on the matter of attaching
the condition we requested.
So we had another night’s work. We had decided the
steel companies would get on file immediately their petitions
for certiorari, and we figured we would beat the government to
it even though we were the prevailing party in the District
Court. We could, of course, petition the Supreme Court for
certiorari. So we worked like the devil. I don’t remember
whether there was just a single set of papers filed on the
petition for cert. just for U.S. Steel, and other companies
filed their own, or whether several companies joined in the
single paper. I would have to go back and look at the files
on that.
Anyway first thing Friday morning our petition for
certiorari was filed. The government was surprised. They
never dreamed we would do that.
dramatize our interest, and we wanted to get this matter of a
condition before the Supreme Court in a hurry so that the
Justices would begin thinking about this point, which was the
key point as far as we were concerned.
in our papers was the need for the attachment of some kind of
a condition that would prevent a change in labor conditions
until the Supreme Court had time to review Pine’s decision.
The reason we did that was to
Very strongly emphasized
– 826 –
The rules of the Supreme Court at that time, incidentally, provided that if both parties petitioned for cert. the
plaintiff in the lower court would have the opening argument.
I mention that as kind of amusing, because Perlman was very
much upset about that. Ultimately, when cert. was granted he
wrote to the Chief Justice urging that the real moving party
was the government. We were defending the action below, he
said, and the government ought to have the opening and closing.
But the Court’s rules were clear. Actually, there had been
another case in the fairly recent past where the situation had
been reversed, where the government had won below, had been a
petitioner, and it had had the lead-off argument. That case
was referred to by the Chief Justice in refusing Perlman’s
request. The rule in the Supreme Court, by the way, since
then has been changed.
In any event, our petition for cert. was filed. The
government’s petition for cert. was filed quite a bit later.
On Friday we again worked all night on a reply to the government’s
petition and had our reply on file first thing Saturday morning.
In those days, the Court heard argument on Friday and had
conference on Saturday.
When Pine issued the injunction, the labor union
called a strike. The injunction, of course, was an injunction
against the seizure itself.
its stay, the labor union called off the strike. Someone
approached them; I don’t know who; the White House, somebody;
When the Court of Appeals issued
– B27 –
they called offthe strike.
called toge”cher the steel companies management and the labor
union and really put the heat on them to try to come to an
agreement on labor conditions.
was just about to be made.
on them. But that afternoon, the Supreme Court announced its
decision to grant cert. and issued an order that there should
be no change in labor conditions pending its review. Immediately, negotiations at the white House came to an end, because
all of a sudden the steel companies proved not to be willing
to resolve the matter by agreement.
Then on Saturday the White House
It looked as though an agreement
Truman was really putting the heat
The Supreme Court specified that the case would be
argued a week from the following Monday. This was Saturday.
That meant that the case had to be briefed, the record had to
be filed, everything, in real short order. It had been agreed
that in the Supreme Court John W. Davis would argue on behalf
of all the steel companies, except that Charles Tuttle (who
was the father of my first wife) insisted on participating in
the argument, also. I have forgotten now which steel company
he represented. And Tuttle separately briefed the case. I
don’t now remember whether the brief on behalf of U.S. Steel
was joined in by the other companies or not.
memory is so vague. But certainly U.S. Steel’s brief was to
be the most important one, particularly since Mr. Davis was to
have the principal argument. The question was how to get all
this done. The record had to be printed, and briefs had to be
prepared and printed, all this in a week.
I
I’m sorry my
– B28 –
Obvicusly, we had tc be involved, although the Davis
Polk people had done a iot of work. We had been very close to
this thing. The net of it was that I, with Stan Temko and
Paul Warnke, went to New Xork right away to work with Mr. Davis
and with one of the other partners in Davis Polk, 2orter
Chandler, a very, very able guy. We just moved up to the
Davis Polk shop in New York to work with Mr. Davis and to
prepare the brief with Porter Chandler. Chuck Barber, in the
meantime, would stay down here. He was an enormous help in
all the mechanics, because all kinds of mechanics had to be
worked out during that week.
That was, for me, a very interesting experience. I
regarded Mr. Davis as the minion of the capitalist class. He
had been the presidential nominee of the Democratic Party in
1924 after the famous Madison Square Convention, which was the
longest convention in all history. The great struggle that
. had occurred between McAdoo and A1 Smith at that Convention
was finally terminated with the nomination of John W. Davis as
a dark horse.
Virginia. His nomination had meant the triumph of the conservative forces in the Democratic Party and, in my view in later
years, the nomination of Mr. Davis had represented the ascendency
in our society of the forces of reaction. Here the Democrats
had nominated Davis, Republicans had nominated Coolidge, and
it had been left to insurgents to form the Progressive Party,
the nominees of which were, for President, Bob LaFollette and
Davis had been a lawyer at that time in West
– B29 –
for Vice President, Burt Wheeler. Up to that week in New York
I had thought of Mr. Davis as kind of a stuffed animal, simply
the puppet of the capitalist class.
I came to have a very different feeling about Mr. Davis
during that week. He was absolutely magnificent. He was
quite old by that time. We, Stan Temko and Paul Warnke and I,
would work like the devil there in the Davis Polk library.
Their library wasn’t as good as ours, but we worked like the
devil in their library. And each day, and maybe more than
once each day, we would meet with Mr. Davis to talk out how
best to frame the arguments, and so on. Davis couldn’t have
been more magnificent. Here were the three of us from Covington
who were relatively kids, but he treated us as equals. His
entire manner and approach were absolutely magnificent. It
was, for me, a very stimulating experience, and I may say, a
very enlightening experience, to find that the person I had
regarded as the minion of the capitalist class was really
quite a guy. This was a great experience for me, and I came
to have enormous admiration for the man, which was confirmed
later when I heard him argue this case in the Supreme Court.
Somehow or another, we got it all done, and the
brief was filed, and the case was argued on the following
Monday. As you know, the case was decided on the second of
June, which was exactly one month after the petitions for
cert. had been filed, and was less than eight weeks after the
litigation began. The case was decided by the Supreme Court
– B30 –
in favor of the steel companies, holdicg that – well, it is
not quite clear what the holding was.
opinion.
don’t know what the case stands for as a precedent today.
Every Justice wrote an
There was not a real agreement in the reasoning; I
Although even scholars tend to cite the case in support of the’
broad proposition that the Commander-in-Chief has no inherent
power of the sort asserted, I am not sure that that was what
was decided by the majority of the Justices. It may be that
most of them decided simply that, in view of the Taft-Hartley
Act, such inherent power as the Chief Executive had had been
superseded.
A couple of years ago there was a superb book on the
Steel Case that was written by a gal named Marcus, I think the
name was. I did a review of that’book, which is in the University of Chicago Law Review, in which I brought out quite a
number of things which I have just touched on here today, and
also corrected two or three omissions or mistakes in that
book.
that I did not know about, because Mrs. Marcus had access to a
lot of papers such as diaries of Justices and judges, and so
on. As I remember that book it indicated that when certiorari
was granted Mr. Justice Burton, in his diary, said that he
thought that what should have been done by Pine was not to
decide the matter on the merits but to do exactly what Kiendl
had asked, and that is, simply issue a preliminary injunction
against change in labor conditions.
But a couple of things were brought out in that book
A very interesting obser-
– B31 –
vation, I don’t’think that there is any question but that, as
a legal matter, our instincts at the beginning had been right.
But, as a matter of human psychology with Pine, we were wrong.
In any event Burton’s reaction when this whole matter came
before the Supreme Court is a confirmation of our original
decision, and in a way of Kiendl’s stubbornly adhering to that
position.
The government made a fatal mistake in seeking cert.
immediately, rather than going to the Court of Appeals. Look
at what happened. The Court of Appeals refused the condition.
I have very little doubt but that our Court of Appeals at that
time would have decided that the President had inherent power
to do what he did, and in any event, they would not have
decided that for some time.
Supreme Court did. It would have been expedited, no doubt,
but 1’11 bet they would have sat on that case. Two, three,
four months would have gone by before they finally disposed of
it. In the meantime, with the government having changed the
labor conditions, it is my judgment that the steel companies
would have had to give way; they weren’t going to sit around
forever and let the government run the plants. They would
have had to come to terms, and I don’t think the case would
have ever reached the Supreme Court. The case would have
become mooted, I think, in the end.
They’wouldn’t have done what the
Mr. Baldridge, who was the lawyer for the Department
of Justice and running the show for the government until they
– B32 –
got into the Court of Appeals with Pezlman, was severely
criticized by a 1st cf people for his tactics before Pine and
for having a motion to dismiss and emphasizing the merits, and
so on; but I think the criticism of Baldridge himself is
unwarranted. I think that there was a naive overconfidence in
the White House. I think they were calling the shots, and
that’s rather confirmed in Mrs. Marcusf book.
without really comprehending the matter as a legal problem,
the White House was just overconfident and took the view,
“Damn it, we are going to assert the moon,” and gave Baldridge
to understand from the beginning that matts the way it was to
be.
I think that,
So much for the steel case.