Arthur Randolph Text of Interview: March 15, 2002

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ORAL HISTORY OF JUDGE ARTHUR RAYMOND RANDOLPH, JR.
First Session, Friday, March 15, 2002
Mr. Prettyman: This is E. Barrett Prettyman, Jr. and I’m beginning the oral history
of Judge Arthur Raymond Randolph, Jr. of the D.C. Circuit Court of Appeals on Friday, March
15, 2002. Judge, let’s start at the beginning. Where were you born?
Judge Randolph: Riverside, New Jersey.
Mr. Prettyman: Do you remember your grandparents on your mother’s side?
Judge Randolph: Only my grandmother.
Mr. Prettyman: How old were you when she passed away? Do you remember? I
mean, were you in early childhood or was that later?
Judge Randolph: I was in college.
Mr. Prettyman: So you actually got to know her pretty well.
Judge Randolph: I knew her pretty well.
Mr. Prettyman: Was she a housewife or was she engaged in work?
Judge Randolph: Well, when I knew her she was not working. She raised a family
of five children by herself, lived in Merchantville, New Jersey.
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Mr. Prettyman: Nearby, so you got to see her.
Judge Randolph: We were there constantly – weekend visits of family, and my
grandmother was very fond of Saturday night fights with arranged betting –
Mr. Prettyman: Not within the family?
Judge Randolph: Laughing No, no, on television. I remember the family always
used to sit around – They were also very fond of games. We played numerous kinds of games.
There were cards, there were board games. As a child, it was wonderful to go over to grandma’s
house and participate.
Mr. Prettyman: What about your grandparents on your father’s side, did you know
them?
Judge Randolph: My grandmother only; my father’s father passed away when he was
very young. My father contracted scarlet fever and my grandfather took care of him and got the
disease himself and died.
Mr. Prettyman: Really.
Judge Randolph: Yeah. So my grandmother on my father’s side also raised a family
of four by herself. Is that right? – Three.
Mr. Prettyman: That’s barely getting –
Judge Randolph: I knew a bit more about my family on my father’s side than I did on
my mother’s side. My great-grandfather was a businessman in Philadelphia who had a very
exotic business, among others, and he was noted for bone-carving and ivory-carving. He used to
go to Africa and pick up tusks of elephants. One of the things I was very fond of when I visited
my mother’s house was to play with this scrimshawed walrus tusk which my cousin now has and
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I’ve been trying to get from him for years. And so there was a great deal of ivory in the family.
His property was located – the business that he had, which was a multistory building in
Philadelphia – was on land now that is part of the Betsy Ross National Park because it was right
next to Betsy Ross’ house and I recall when my daughter went up on a school trip from National
Cathedral School, I called the National Park Service and said that my daughter was coming up
and would the Ranger that’s showing them through the Betsy Ross House and the Park mention
that the land they’re standing on was donated by the Randolph family to the National Park. My
daughter was just thrilled.
Mr. Prettyman: Of course she was, that’s great. Now that was your
great-grandfather. What did your grandfather do?
Judge Randolph: My grandfather, I believe, was an electrical engineer.
Mr. Prettyman: And your other grandfather, the one who died young.
Judge Randolph: I don’t know anything about him.
Mr. Prettyman: Oh, interesting. What kind of relationship did you have with your
parents growing up? Did you have brothers and sisters?
Judge Randolph: I had two brothers.
Mr. Prettyman: And were you a very close family?
Judge Randolph: I was a very outdoors person, hunting and fishing. We lived next
to Big Timber Creek and a lot of marshland and farmland. As a matter of fact, our house was
close to the largest dairy farm in New Jersey. I thought it was the largest. It was a huge dairy
farm – Abbott’s Dairies – and that was my playground when I was a kid. And the thing that I
liked to do was just romp the fields.
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Mr. Prettyman: By yourself? With friends?
Judge Randolph: With friends. My youngest brother was born when I was 11 so
there was a great gap and my other brother was not an outdoors type person – not that kind of
person.
Mr. Prettyman: Was he older or younger?
Judge Randolph: Younger.
Mr. Prettyman: Younger, so you both were younger?
Judge Randolph: Right.
Mr. Prettyman: So the implication is that you did not spend a lot of family time
because you were outdoors so much. [Laughing]
Judge Randolph: Well, we did spend a lot of family time. Every evening was a
family dinner where my mother and father used to talk about politics and events of the day, and
so on and so forth, and that was, I think, a very important thing. And difficult in this day and age
when both parents are working and children are off doing one activity or another, but
nevertheless we managed to do that and that was very helpful. And, of course, we had these
horrible trips where we’d pile into the car and go up to Watkins Glen or the Thousand Islands or
someplace in Virginia to visit my father’s sister who was a missionary. So occasionally they’d be
in the country and be in some rural place in Appalachia and we had to go down and visit them,
and they were just terrible trips. (Laughing)
Mr. Prettyman: What did your father do?
Judge Randolph: My father was a very interesting fellow. He – as I understand the
story – he did very well in high school and got a scholarship to Oberlin College for public
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speaking, of all things. And the depression hit and my grandmother was raising children without
– she had no job as far as I know – there was some family money that kept her going, I guess, but
he found it necessary to go to work and gave up the scholarship, which he talked about
occasionally with us, and became a professional photographer for a while and couldn’t make a
living and then when the war broke out, he went to work in a –
Mr. Prettyman: This would have been WWII?
Judge Randolph: Yes. He went to work in a shipyard and became a rather skilled
machinist. He did that for most of his life. He wound up toward the end of his life in the office
of Owens Corning Fiberglass. He was also very active in union affairs and was president of the
local union. I think the first job I ever had was doing dues checkoffs. I remember sitting at the
dining room table and literally checking off each person’s name to make sure that they had paid
their union dues for the month.
Mr. Prettyman: This is not when you were with General Motors, was it?
Judge Randolph: No, this is long before. I think I must have been 11 years old.
Mr. Prettyman: Oh my goodness – yeah, yeah. (Laughing) Did your mother work?
Judge Randolph: She did. She worked in a dress shop for a while selling basically
for weddings and things like that, but not for a long time – 10 years.
Mr. Prettyman: Right. So it was a close-knit family?
Judge Randolph: Yes.
Mr. Prettyman: And where did you grow up? You were born in Riverside. Did
you stay there during your childhood?
Judge Randolph: No, we never lived in Riverside. We lived in a town called
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Palmyra, New Jersey, for a while, which is where my grandmother and my great-uncle lived, and
then moved in 1950 to what was then a very small rural town called Glendora. It’s now a
bedroom community for Philadelphia, but at that time it was very, very rural and we were one of
three houses that had been constructed in the early or the late 1940’s that were up on a rise on a
hill that overlooked all this farm country. So it was interesting.
Mr. Prettyman: And you had your own room?
Judge Randolph: Yes.
Mr. Prettyman: And where did you go to high school?
Judge Randolph: I was a member of the first graduating class of a high school called
Triton Regional High School.
Mr. Prettyman: And when did you graduate?
Judge Randolph: The year was 1961.
Mr. Prettyman: And what did you tend to focus on in high school – sports or the
newspaper or yearbook or what?
Judge Randolph: Sports and girls.
Mr. Prettyman: Sports and girls, not in that order. (Laughing)
Judge Randolph: I had a varsity letter in track. At that time it was a fairly large high
school, but I was the fastest sprinter in my high school and I had a varsity letter in football and a
varsity letter in wrestling.
Mr. Prettyman: Oh. Now, after high school I’ve seen one reference to your being a
General Motors factory worker and another that during the summer of ’66 you were a labor
relations representative. Will you straighten that out for us? Was one of these a summer job and
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another was a regular job?
Judge Randolph: It’s interesting how your life is filled with all kinds of chance things
that happen and if I can back up a little bit. My last year in high school I was very successful in
wrestling and given the fact that my family had very little money, I needed to get financial
assistance if I wanted to go to college. So I thought I would use the wrestling to get a scholarship
and, in fact, had one, I thought, at Columbia University. And I sent my application in and it was
accepted, but I never got the papers for the scholarship. The coach had come down and knew the
wrestling coach of my high school. And I kept waiting and waiting and waiting and he had
promised me a $1,600 scholarship which would enable me to attend Columbia. Finally, I called
him, getting nervous as it was May, as I remember, and still hadn’t gotten the papers. And I
called him on the telephone. And this is a conversation that I will never forget. I couldn’t afford
to go to Columbia without that $1,600 a year scholarship. And he said, “Wait a minute now. I
did offer you a $1,600 scholarship but I just haven’t completed the paperwork and you will get it.
But it is $400 a year. Not $1,600 a year.” I panicked and as a result of that I wound up going at
the last minute to Drexel in Philadelphia, figuring that I could commute, which I did for five
years. And got a scholarship for wrestling and then managed to get a loan. So that is how I
wound up at Drexel.
But even then I couldn’t afford it so they had a coop plan where you work for six months
and then go to school six months. But it takes you five years to graduate. I enrolled in the coop
plan and wound up as a management trainee at General Motors outside of West Trenton, New
Jersey. And the first year I was there General Motors was running full tilt and this was the
branch that made all of the hardware: outside door handles, trim and all that. What happened is
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that they were running 24 hours a day and some of the foremen on the assembly line took sick –
they were under great stress – so here I was at 19 years old, a warm body, and the foreman of the
outside door handle line at General Motors got ill and they put me in charge of 40 people on the
assembly line, most of them were women. It was a fascinating experience. And the reason I
wound up in labor relations the next time I came back was because – this would have been a year
later – because you did your six months, and then you went to Drexel and then you came back;
why I wound up there was because on the assembly line I watched these people and it really was
a conveyor belt and somebody would put a spring on and someone would put a lubricant on and
somebody would stamp it, and the next person would do this and that, all the way down until it
reached the end of the line. As the foreman I walked around watching this and I thought, Gee
what a boring existence. What I will do is rotate the people from one position to another. Of
course I didn’t consult with them at all. I just announced it. And I set a record at the plant for
getting the most grievances filed against me in the shortest period of time. I immediately had 40
grievances filed. (Laughing) I would have thought they would have loved that. Well, that is
what I thought. Then we had a meeting because I thought we had better meet about this. They
all explained to me that if I thought that putting a spring on was more fun than dipping the spring
into the lubricant or stamping the handle, I was out of my mind. There was not a single job on
that line that gives any kind of reward except the only pleasure that they get is being able to do
these jobs without thinking, so that they can gossip about who is going out with whom, and who
is making this across the line. And I had destroyed their existence because now they have to
think all the time on these stupid spring-loaded things that are coming down the line. And so I
said, “Okay, everybody back to their original position.” (Laughing). Then I got the award for
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settling the most grievances in the shortest period of time. They were all happy. The line ran on
something like 90-95% efficiency for the rest of the time. So when I came back to work the
following summer, they said, “Listen, you have some experience with labor relations. Why don’t
you come to work in the Labor Relations Department,” which is what I did.
Mr. Prettyman: So you weren’t a foreman any more?
Judge Randolph: I was not a foreman.
Mr. Prettyman: You were working in labor relations, so you did both?
Judge Randolph: This is what got me into law school. That is how I wound up being
interested in law school, because at the time retired Justice Whittaker of the Supreme Court was
the Chief Arbitrator at General Motors and there was a common law of plant by plant and within
the entire company about various matters and I was given the duty of investigating grievances. I
would look up what Justice Whitaker had said and what arbitrators had said. And I would
interview people and take down what they had to say, and so on. And I said I really enjoy this.
Mr. Prettyman: Did you work with Justice Whitaker?
Judge Randolph: Oh, no. I don’t know where he was. He may not have been in too
good a shape in those days, actually. When he left the Court – this is ’63. I can remember this
because I was on an assembly line – ’63 I was a foreman – February. That is right. I was 19 and
that is the year that John F. Kennedy was assassinated. I was on the assembly line. I remember
when the word came. Everything stopped.
Mr. Prettyman: What did you major in at Drexel?
Judge Randolph: I started out in business administration, which I absolutely hated
and dropped out after three months. Then I didn’t know exactly what I wanted to do so I began
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taking courses that would enable me to get a degree in either chemical, electrical or mechanical
engineering. So I took basic engineering, thermodynamics, calculus, chemistry and organic
chemistry.
Mr. Prettyman: Did you intend at that stage to be an engineer?
Judge Randolph: I wasn’t sure. I almost wished to become a physics major, which I
could have done without too much trouble. Maybe a few extra credits in the summer. But I
wasn’t really quite sure. I think I wanted to be an engineer but I wasn’t really sure about that.
And then I saw what some of the engineers were doing at the General Motors plant and I wasn’t
happy that I would be doing that sort of thing. Then I came back and decided to go to law school
after I switched to economics and did something we used to call econometrics, but now people
call economics forecasting, using the mathematical background that I had to plug it into
economics. I wound up with a Bachelor of Science in, I think they called it Commerce and
Engineering, with a major in economics, a very odd degree.
Mr. Prettyman: I understand that you were on the dean’s list every year?
Judge Randolph: I am not sure about that. I can’t remember. If I said that at an
earlier point in my life, it was probably more accurate. (Laughing)
Mr. Prettyman: But you did well, in any event.
Judge Randolph: I did fairly well.
Mr. Prettyman: At what point after you came back from your experience in labor
relations did you think for the first time, gosh, I might like to go to law school, what year would
that have been – ’64 or ’65?
Judge Randolph: Yes, ’64 or ’65. I also read a book that influenced me. Curious, it
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was an oral history of Felix Frankfurter. It was called Felix Frankfurter Reminisces. I may still
have it. It was in paperback. When I recall reading it, it was the oral history done at Columbia
by Felix Frankfurter. I read parts of that.
Mr. Prettyman: I would like to take a look at it.
Judge Randolph: So we won’t forget it, I will go get it. [Leaves and returns]
Mr. Prettyman: As far back as you can remember, has anyone in your family ever
been lawyers up to the time that you went to law school?
Judge Randolph: I don’t know.
Mr. Prettyman: You don’t remember anybody. Your brothers, father or
grandparents were not? So, you graduated from Drexel in ’66?
Judge Randolph: Yes.
Mr. Prettyman: Did you apply to several law schools or just one?
Judge Randolph: I applied to two. I applied to Villanova and Penn. And the reason
I did that was, once again, the money question. I was told by General Motors that they would
keep a summer job for me even when I was in law school
Mr. Prettyman: Oh. Was that in labor relations?
Judge Randolph: Yes, in labor relations. So I figured I wanted to stick close to
home. I was accepted at both, and the moment of truth came for me because Villanova offered
me a full scholarship, including books, tuition, housing expenses. Penn offered me a $1,000
loan. I can recall trying to decide which I should do. I took a look at the figures and somehow or
another I decided I would go to Penn. (Laughing).
Mr. Prettyman: You have described your first year at Penn as “intimidating.” What
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did you mean by that?
Judge Randolph: Well, I considered myself a poor boy from a rural background
without any kind of great intellectual training, particularly having been an engineer and then
having gotten into law school. Some of my classmates would stand up and talk for 30 minutes
about the history of the Court of the Exchequer Chamber, of which I knew nothing in the
beginning. I thought, Oh my goodness, I am out of my league here. It was an intimidating
experience.
Mr. Prettyman: You had to learn a whole new language. How large was your
class?
Judge Randolph: About 180.
Mr. Prettyman: Were you first in your class all three years?
Judge Randolph: I was.
Mr. Prettyman: You won a number of scholarship prizes.
Judge Randolph: I wound up after the first year getting a full scholarship, books,
tuition.
Mr. Prettyman: That must have eased your mind.
Judge Randolph: I had no idea that such a thing was available. It shocked me. I
remember after the first year I became good friends with a fellow whose in-laws had a house in
Maine and we were going to drive up there for a week or so. And we were packing and went
back to the law school and one of the professors, Professor Schwarz, had posted what he had
considered the two best exams in criminal law, and Peter Gross (who later became General
Counsel of Home Box Office) and I were reading these exams and I thought, Oh my goodness,
Crain Co. v. W estinghouse Air Brake Co., 419 F.2d 787 (2d Cir. 1969), cert. denied, 400 U.S. 1
822 (1970).
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I’m done. Look, I said, this guy is citing cases and cases, and then I got about halfway through
and I realized it was my paper. Talk about out-of-body experience. (Laughing)
Mr. Prettyman: During the summer of ’67 you were research assistant to Professor
Robert Gorman. Would you tell us a little about that? What did he teach and what did you do
for him?
Judge Randolph: He taught contracts the first year and he also taught labor law. But
he was putting together a book on copyright and I just did basic research for him, pulling cases
together, material on copyright. None of which I remember.
Mr. Prettyman: Were you paid for that?
Judge Randolph: I was.
Mr. Prettyman: During the next summer of ’68 you were a law clerk at Sullivan &
Cromwell in New York. What did you do with them?
Judge Randolph: I did legal research memos and things of that sort. Worked on one
very large case which was called Crain Company v. Westinghouse Air Brake. [ ] 1
Mr. Prettyman: Antitrust?
Judge Randolph: It was a securities case. Once again, because of no money, I
commuted daily from Philadelphia to New York City, which was a nightmare, on trains that
weren’t air-conditioned and would always break down at Princeton. My day was very, very long.
Up at the crack at dawn and not home until –
Mr. Prettyman: Would you come back at night?
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Judge Randolph: I did it daily and another reason was, I think, the law review was
behind and I was working on that on the train. But I proceeded to do work on the train and I took
the file in Crain Company v. Westinghouse Air Brake which hadn’t been filed yet. I think it was
a 16B case, but I am not really sure. And I had to stand, as I usually did, because I couldn’t get a
seat usually from New York to Princeton. And I had my briefcase between my legs. When the
people exited in Trenton, I reached down and my briefcase was stolen.
Mr. Prettyman: Oh my God.
Judge Randolph: Here I had lost the case file. And the train took off. What I did
was when I arrived in Philadelphia I hopped in my car and drove back to Trenton with a
flashlight and all through the night I figured that anyone who opened that briefcase up was going
to find something that was not worth anything to them and they would throw it away. I didn’t
find the briefcase. Never found it. Then I drove back to get the train to go back to New York
again. But the partners were very nice about it. I explained what had happened and fortunately
they had duplicates. But I lost a good many original copies.
Mr. Prettyman: And a good night’s sleep.
Judge Randolph: It was just awful.
Mr. Prettyman: It is like the Hemingway novel – gone. You graduated from law
school summa cum laude and you became managing editor of the law review in your last year.
Was that enjoyable work?
Judge Randolph: It was. The law review was well behind the March issue, which
would be published in January of the following year, and so a fellow named Loftus Becker and I
wound up putting together not very good material but enough to fill the pages up. Our major
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accomplishment was that we caught up so we published – I don’t know what they were
publishing, six to nine issues – but we did one and a half times that within the period of time that
we were on the Review.
Mr. Prettyman: What were your politics during college and law school? The same
as they are today? I mean were you a conservative Republican or were they different in those
days?
Judge Randolph: I think they were different. I think I was more Democrat than
Republican. I think I voted for LBJ rather than Barry Goldwater, as an example. But I don’t
think I was very ideological at that time. I was more inward looking.
Mr. Prettyman: Was your family a Democratic family?
Judge Randolph: Very much.
Mr. Prettyman: And your brothers?
Judge Randolph: Democrats.
Mr. Prettyman: When did you begin to get a different view?
Judge Randolph: In law school.
Mr. Prettyman: Because of the law?
Judge Randolph: I don’t know why. I began finding myself more in line with the
Republican viewpoint than with the Democratic. I think that one of the reasons was that I didn’t
look very fondly on many of the Warren Court decisions. [CHANGES TAPE] It was a
long-standing joke of mine and several of my classmates at law school that in our law school
class of 180 or so, there were only three Republicans, and now they are all federal judges.
[Laughter] Jay Waldman and Stewart Dalzell are both district judges, one in Boston and the
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other in Philadelphia
Mr. Prettyman: At any time during your college or law school career were you
involved in anybody’s campaigns? Did you go out and work for anybody?
Judge Randolph: My father ran for office. I don’t even remember what it was. It
was a local office.
Mr. Prettyman: A city office or a statewide office?
Judge Randolph: It was a township office. I went door-to-door with pamphlets and
passed them out. And he didn’t win. [Laughter] I don’t know what the lesson of that was.
Mr. Prettyman: Did you date much in college or law school?
Judge Randolph: I was married in law school. We got married in 1966.
Mr. Prettyman: What year of law school would that have been?
Judge Randolph: I got married right before I went to law school. I got married right
after I graduated from college and right before I went to law school in the summer of 1966.
Mr. Prettyman: Tell us how you met your wife.
Judge Randolph: At a wedding. This was my first wife. We met at a wedding and it
turned out we had mutual friends and started dating and I think we were dating three years.
Mr. Prettyman: Instant attraction?
Judge Randolph: Yes.
Mr. Prettyman: So you knew her before the end of college.
Judge Randolph: I am not sure if it was three years of dating, maybe two.
Mr. Prettyman: After law school, did you take both the California and the D.C. bar
exams?
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Judge Randolph: I took only California.
Mr. Prettyman: Now why did you take California?
Judge Randolph: Well, between law school and working, O’Melveny & Myers made
me an offer I couldn’t refuse, which was to come out and work with them at an associate salary.
Mr. Prettyman: Had you worked with them during the summer?
Judge Randolph: No. And they moved all my furniture and stored it. They moved it
to New York and stored it for me. Then, as I recall, I got a month off with pay if I would agree to
take the California bar.
Mr. Prettyman: So they wanted you to work in California rather than in New York.
Judge Randolph: I don’t know if they had a New York office at that time. So they
said, that is the deal and we will pay for your bar review course and classes and everything else.
So I accepted [thinking] I am not going to take the bar review courses – just get the material and
have a good time and study just from the material – which is what I did.
Mr. Prettyman: But then you did take the California bar?
Judge Randolph: Yes.
Mr. Prettyman: You then became a member of the D.C. bar as a result of being a
member of the California member. Waived in?
Judge Randolph: Yes.
Mr. Prettyman: During the summer after law school you became an associate at
O’Melveny in L.A. What kind of work did you do with them?
Judge Randolph: I did some labor relations work. I think it was CBS they were
representing. I am not quite sure. I don’t remember what else.
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Mr. Prettyman: Did you plan at that stage on being in California indefinitely?
Judge Randolph: I decided at the end of that summer that it would be impossible for
me to live in California because the distractions were so great. I still loved the outdoors. I liked
to play golf. I liked to fish. I liked to swim and to surf. And all the rest of it. I thought I’d turn
to mush if I moved there. I don’t think I would have enough self-control to resist all of these
other temptations and so I decided that I just couldn’t possibly do it.
Mr. Prettyman: Were you living near the ocean?
Judge Randolph: Fairly close We were living in West L.A. but you are not very far
no matter where you live in L.A. You can get there for surfing. And I played golf and tennis and
swam. So I had a great time. I thought this is not the kind of life I want.
Mr. Prettyman: Tell us how you became Judge Friendly’s law clerk on the 2nd
Circuit.
Judge Randolph: Paul Mishkin, who is a professor now at Berkeley, told me that
Henry Friendly had said to him and to Tony Amsterdam that if they both recommended a fellow,
he would hire him at some point. So they both recommended me and I got hired.
Mr. Prettyman: Now was that because you were really looking to get out of L.A. or
did this come clearly out of the blue to you?
Judge Randolph: No. I interviewed in the fall of my third year of law school before I
even accepted the position at O’Melveny & Myers. So I was interviewing for a clerkship. I
applied to Judge Friendly and Judge McGowan. I also applied to Judge Leventhal and I think I
applied to Justice White and Justice Stewart. That was it. And I was fortunate enough to get the
Friendly position.
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Mr. Prettyman: How did you know Tony Amsterdam?
Judge Randolph: He was a professor at Penn. I took him for criminal procedure.
Mr. Prettyman: You liked as well as respected Judge Friendly?
Judge Randolph: I did very much.
Mr. Prettyman: He became a hero of yours.
Judge Randolph: Yes.
Mr. Prettyman: To what extent did his judicial philosophy vary from yours, to the
extent that you had one at that stage, but I mean philosophy of the law, if you will.
Judge Randolph: Well, I liked to think not very much. I think he is the most brilliant
person I have ever encountered in my life and I think he was approaching genius if not a genius.
As far as his analytical abilities, I can’t possibly compare. As far as his philosophy of judging, I
think I try to evaluate each case as it came and he tried to render an impartial decision. I don’t
think he was predisposed in any case that I saw. He struggled through a good many opinions that
he wrote. Sometimes even to the extent of not knowing exactly even after a conference how he
was going to come out and he would just start writing and he would work his way through it.
And that happened occasionally to me, although not as often as I think it happened to Friendly.
As you can call it conservative, or whatever, but I don’t know that I ever thought of his judicial
philosophy in any particular way other than in trying to get the thing right. And not reaching out
in a way that the Warren Court did. He was very critical of that.
Mr. Prettyman: To what degree did you disagree with him on individual cases? In other
words, that you were aware at the time that you would have voted differently if you had been a
judge?
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Judge Randolph: Well, there were two cases that I disagreed with him on.
One of them – let me back up. Friendly drafted all of his own opinions. He did it on a
yellow pad or a white pad, depending on his whim at that particular minute. And I never saw
him spend more than a day writing an opinion, even if the opinion in print was 40 pages. That
experience is one that other law clerks – at least in his prime – also experienced. He would close
his door and just start writing and he would get it typed up into triple-spaced legal paper. And
sometimes he would not show it to a law clerk for three or four days. He’d put it in a file he
called “The Cooler” because he might have further thoughts and reconsider.
Mr. Prettyman: What Harry Truman should have done. [Laughter]
Judge Randolph: But over the Christmas holiday he went on a trip and then stayed at
home for a while and I was working on a particular opinion and I just thoroughly disagreed with
his disposition of the case. And so he called me. He used to get nervous if he didn’t have
anything to work on. So he asked, “Where is that such and such opinion? Are you finished with
that yet?” And what I had done was written another opinion coming out the entire opposite way.
He said, “Bring that up.” I thought, “Oh my goodness, this is the end of my career as a law
clerk.” He was very gruff. So I went up to his apartment on Park Avenue and he said, “Do you
have it?” I said, “Not exactly.” I thought he was wrong and so I drafted another opinion. He
said, “Give it to me,” and I did, then said, “Goodbye.” A few days later after the holiday was
over, he came storming into the chambers and threw my draft down on my desk and wrote across
the top (which I still have): “I yield.”
Mr. Prettyman: Really? What area of the law was that in? Criminal?
United States v. Devonian Gas & Oil Co., 424 F.2d 464 (2 Cir. 1970). 2 nd
21
Judge Randolph: No. I can’t remember. The case was Devonian [ ] and something. 2
It dealt with natural gas and Indians and complicated statutory interpretations, and so on.
Mr. Prettyman: Interesting that you would depart from him on a complicated case
like that.
Judge Randolph: I don’t recall the details. I just remember, “I yield.”
Mr. Prettyman: Well what about the other case?
Judge Randolph: Well, there is a tale about the other case.
At the time I was clerking it was the height of the Vietnam war protests. There was a riot
in New York at Pace College which was not very far from Foley Square, and I went out at
lunchtime and was walking around and I heard all of this commotion. I walked down to see what
was going on and there were a lot of people around and students and construction workers, I
believe, were the ones who were rioting. They had pipes in their hands and they were starting to
beat people and kids. I went down there and I saw some kid get hit with a pipe and I made the
mistake of wading in and promptly got smashed across the face with a pipe I thought I was going
to lose my eye. Constance Baker Motley was a district judge and an action was filed in the
Southern District of New York against the police commissioner, claiming that the police had just
stood by while these riots were going on instead of joining other police to protect people. I didn’t
know this until after but it was a temporary restraining order that she entered – a TRO – because
it was the next day. It was an emergency appeal, and Friendly took it and wrote the opinion and
did not show it to his law clerk who was sitting in the chambers with a great big patch over his
eye wondering if he was only going to have one eye for the rest of his life. I didn’t agree with the
Belknap v. Leary, 314 F. Supp. 574 (S.D.N.Y.), vacated, 427 F.2d 496, 498 (2d Cir. 1970). 3
22
opinion for reasons that had nothing to do with the merits; I thought he totally stretched the law
because TROs are not appealable.
Mr. Prettyman: He upheld the TRO?
Judge Randolph: No, he struck it down. He accepted the appeal and then reversed.
And made up some sort of doctrine which baffled me. I taught injunctions for a number of years
at Georgetown and I would bring this case up without telling the students the background that I
just told you. And ask them to please explain this distinction that Friendly had made in this
particular case.
Mr. Prettyman: I think that would be interesting if you could find it there.
Judge Randolph: Here it is. Belknap v. Leary, 427 F.2d 496. [ ] This was at the end 3
of my tenure on May 27. Plaintiff asked Judge Motley in the district court, without notice to the
defendants, for an order to restrain the police commissioner for failing to afford protection
against physical harm that legally constituted demonstrations on the Memorial Day weekend.
The Second Circuit issued an opinion: “We are met at the outset with a question of our appellate
jurisdiction. The order is not a final decision under 28 U.S.C.§ 1291, and the grant or denial of a
temporary restraining order is generally not appealable. However, . . . unlike most temporary
restraining orders, the one here under appeal is essentially affirmative. We regard it as a
mandatory injunction, appealable under 28 U.S.C§ 1292 (a)(1), even though it is of short
duration . . .” So this is mandatory and the other is prohibitive which is a distinction that used to
prevail in England in the 17th century. There is no prohibitive injunction, which can’t be
reframed in mandatory terms.
23
Mr. Prettyman: Describe your typical working day with the Judge.
Judge Randolph: I arrived shortly before he did. He always arrived promptly at 9:30
a.m. and he rarely went to lunch. He would take cheese, crackers and a drink called “Snappy
Tom” at lunchtime and read law reviews or work on a law review article and then he would leave
at 5:30 p.m. And then my co-clerk, a fellow named Monty Gray, a marvelous fellow, and I
would break out the Go board which is a Japanese game that has little white and black disks on a
matrix. And we would start playing Go. That was a typical day. Sometimes we would have
absolutely no interaction with Judge Friendly because he would close the door and write. And he
would be writing law review articles, or he would be writing opinions if he had opinions to do.
And unless he had something to discuss with you, there would be no interaction. So that would
be a typical day.
Mr. Prettyman: Now, when you got a draft, would you then go fill in the cites and
add law review citations or whatever, treatises or whatever? But you wouldn’t revamp very
much.
Judge Randolph: Well, sometimes we did. I think both of us, Monty Gray and I,
rewrote things. We thought they could be framed better. We changed sentence structure. We’d
do additional research. If we saw problems in the case, we would write a memo to him about it.
Mr. Prettyman: Did you ever do bench memos?
Judge Randolph: No.
Mr. Prettyman: Did you sit in on any oral arguments?
Judge Randolph: Very rarely. The quality of attorneys who were arguing in the 2nd
Circuit, which I thought was very poor – and I didn’t think it was a productive use of my time to
24
go attend the oral argument. Occasionally, I would go if it were a case that I knew the attorney’s
name. Simon Rifkind argued, and I thought he was marvelous so I went to watch him. And a
few others. But by and large, I wouldn’t go to the oral arguments. What would happen is that
they had a very different system in the 2nd Circuit than now. If they were cases that I was
working on, I would robe the judge. We would go into the robing room and the tradition there at
the time was the law clerk would take the robe and put it on the judge so you would listen to the
banter and discussion among the judges before they went out. Then I would leave and go back to
the chambers. But after the oral argument there was not an immediate conference like we have
now. The judges would go back to their chambers and each one would write a memo about how
they thought the case should be disposed of.
Mr. Prettyman: They did not meet right away?
Judge Randolph: Correct. Then about a week later they would have a conference
after the memoranda had circulated. What would happen in our chambers is that after the
argument I would talk to Judge Friendly about the case and then, as I recall, the law clerks did a
good bit of the memo writing and then he would edit that. By and large, we did those memos, the
post-argument memoranda to other chambers. And then he would have his conference and come
back. If the opinion was assigned to him he would immediately start working on it.
I don’t know if I have told this in that interview I did with Jeff Cole but –
Mr. Prettyman: Well, don’t hesitate to repeat because this is going to be for an
entirely different audience.
Judge Randolph: Several weeks into my clerkship I went back after oral argument
and into his chambers and Judge Friendly asked me what I thought about a particular case and it
U.S. v. McGee, 426 F.2d 691 (1970), affirmed, 402 U.S. 479 (1971). 4
25
was a case involving exhaustion of administrative remedies in the selective service prosecution.
The fellow was a divinity student. He looked like he qualified for conscientious objector status
but he hadn’t raised the claim before Selective Service, and they prosecuted. And he was
sentenced to a fairly stiff jail sentence. Judge Friendly asked me what I thought about the case,
and I told him in these exact words: “I am biased against application of exhaustion doctrine in a
criminal case which leads to a conviction when it’s clear as a bell this guy was a conscientious
objector. And I thought it was much too harsh.” And he said, “Harsh, I don’t care about harsh. I
don’t care about your biases. What’s the law? That is what you should be telling me.” Anyway,
he assigned the opinion to Wilfred Feinberg and some time went by, I think it was the following
spring, and they were going to affirm the conviction. And Judge Feinberg wrote a memo and
came back and said that he was struggling and that he had decided that he could not vote to
affirm the conviction because application of the exhaustion doctrine in this case was too harsh.
[Laughter] So I took the memo into Judge Friendly. I was feeling redeemed. He picked up the
opinion and wrote it affirming and Feinberg dissented. And the beginning of the Feinberg
dissent was that this application of the exhaustion doctrine is much too harsh. The Supreme
Court took the case [ ] and Justice Marshall sustained the exhaustion doctrine in the criminal 4
case. I went off to the Solicitor General’s office and at some point I got a call from Henry
Friendly and he said, “Do you remember that such and such case?” Of course I remembered. I
said, “Yes.” He said, “Well, after we affirmed, the petition for certiorari was granted and the
case went back and there was an application for resentencing which was denied by the district
judge. Now the case is up here on appeal for sentencing review. You know we have this long-
26
standing doctrine that we don’t review sentences that are within the maximum.” That was the
law. You don’t review sentences. I said, “Well, Judge, what do you want me to do about it.” He
said, “The sentence is really harsh. Why don’t you tell Erwin Griswold of our conversation
because if I can’t figure out something, I may have to make inroads into the nonreviewability
doctrine of sentences. Maybe Erwin has some ideas.” Of course I went and told Griswold and
then within a day the U.S. Parole Commission convened in Erwin Griswold’s office and this
fellow was released.
Mr. Prettyman: What an interesting story. The harshness doctrine.