Bernard I. Nordlinger Text of Interview Only

The following is the transcript of an interview of Bernard
I. Nordlinger, Of Counsel to the firm of King & Nordlinger,
conducted for the Oral History Project of the Historical Society
of the District Columbia Circuit by Daniel Ernst, Associate
Professor of Law at the Georgetown University Law Center. The
interview took place in Mr. Nordlinger’s law offices on January
23 and 30, 1992.
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Part I
January 23, 1992
I think I want to start where you started on your
resume, which is the fact that you are a third –
generation Washingtonian. And I wonder if you
could describe how your family came to Washington
originally and talk about your parents and
grandparents and what difference it made to your
legal career to perceive yourself as a native
Washingtonian.
Well both my mother and father were born in
Washington, D.C. My father was born in Georgetown
and my mother was born in southwest Washington.
My grandfather, also of the name of Bernard
Nordlinger, whose history has been written up in
several of the articles in the historical society
of Washington publications (some of which I wrote
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and some of which others wrote) 1
, was an
immigrant in the early 1850’s, coming in to
Savannah from middle Europe. I have his passport.
There’s been a lot of genealogical research done
in this area. He settled in the hills behind
Macon, Georgia, and when the Civil War started he
was swept up into the Confederate army. While in
the army he came north and was in one of the
valley campaigns, wounded, brought into the
District of Columbia. cured of his wounds and
sent down to Camp Parole just outside of
Annapolis, which is now Parole, but nobody
exchanged for him, so when the war was over he
just marched up to Georgetown and settled there.
My mother’s father, whose name was George Stern,
was an immigrant from middle Europe into
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Philadelphia, and when the Civil War came along
[he] was swept up into the Union forces. He
became a Marine for the Union army, and I never
found out why he came to the District of Columbia,
because there is a dearth of material. (The
Nordlinger family is quite large; the Stern family
was not.) And in any case he settled in southwest
Washington and then had a stall at the Center
Market and what not. My mother was born in 1872
in southwest Washington. My father in .1868 in
Georgetown. As a boy he told me stories about the
massacre of CUster at the Little Big Horn which
was in 1876, when he was eight years old and he
told me stories about the Hayes – Tilden election
which was also 1876, and various events of the
assassinations of our two presidents, Garfield and
McKinley, who were both presidents in my parents’
time. And the events that occurred here and all
those things. Now, neither side of the family
were well to do. My father was a shoe merchant
and had a shoe store in Georgetown at 3130 M
Street. Actually, his father had the s?9re at
3102 M Street, and in 1893 due to the largesse of
his brother, who was quite well to do and had a
clothing store on the other side of M Street,
built a store for them at 3130, so they moved up
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there. That was in 1893. We sold that building
in 1990, having had it almost a hundred years. So
the whole character of Georgetown had changed
completely from the time my father was born and
then when I was born, because of the difference in
what has happened to the District of Columbia, the
difference in our political life, and economic
life of the country.
My father afterwards became a rather?
prosperous neighborhood merchant until the
Depression started. The Depression started for
little people much before 1932, so by the time I
was ready to graduate from college in the year
1929 my father was in terrible condition,
financially. He was a wonderful man, but he lost
practically all of his money by then. By the time
we really hit it when the banks closed in 1933 he
was virtually wiped out. And fortunately I was
beginning to earn money then. My brother who was
a practicing physician was unable to make any
substantial amount of money.
Was your brother older than you?
Yes. My brother is still living. He’ll be 95 in
April. I’ll be 83. He’ll be 95.
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Do you imagine that but for the Depression there
would have been any pressure or expectation for
you to go into the family business?
Well there were pressures for me to go into the
family business anyway, but I resisted them
because I resented the life, and I didn’t like it.
I shouldn’t go into my own personal life, but my
family background is quite similar. There is a
retail store in my grandfather’s generation and
there was one person who left the family store,
and became a lawyer, and one person who stayed
with the family store and it was a very tough
choice for both.
My father and I at that period were not getting
along at all. Because he did not want me to do
what I did. He wanted me to stay in the store and
work in the store and not get a job and go to
school at night. But of course I couldn’t stand
it, I had some abilities, and I didn’t want to do
it, so I didn’t do it.
Where did you live when you were growing up? ? •. ?
We lived at 3113 N Street, just a block up from
the store. And that was a house in which my
grandfather and grandmother lived. It was one of
these row houses with huge ceilings, high
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ceilings, and fireplaces in every room,– lots of
rooms, 9, 10 rooms — a three-story house. My
father and mother lived there their entire life,
and when I was married in 1935 my wife moved in
the house with us, too. But my father died in
1947. Meanwhile my wife and I moved out, and then
my mother moved out, and we sold the house about
1960, just before the high rise in prices. We
missed it. We didn’t miss it though on the sale
of the store, so we got it all back. The life
that I found as a young man in Georgetown was that
Georgetown was a virtual slum. It was largely
populated by either blue collar whites or low
income blacks with some sprinkling of old families
that had huge homes. But when Mr. Roosevelt came
in, that’s Franklin, in 1933, he brought with him
the so-called braintrusters who had large and open
minds and intellectual horizons unlimited. They
saw the so-called “charm” of the area. They moved
in and restored many of the houses, and it became
very beautiful just like Alexandria. Today
Georgetown is a charming place. I’ve always
wanted to live there. I’ve had two wives — my
first wife died — neither one of them would live
in Georgetown.
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You know that’s very helpful, because you hear
about Frankfurter and everyone coming in and
setting up shop in Georgetown. For me it sounds
like the fashionable thing for guys graduated from
Harvard to do — go to Georgetown. And here it
was a shrewd place for them to get housing.
Yes, because it was cheap. The little red house
on R Street is today a mansion. That’s where
Tommy the Cork and Ben Cohen and Rex Treadwell,
Tugwell, and others lived, in a home once occupied
by General Grant, I understand. Maybe it was;
maybe it wasn’t. But that house today is a
mansion on R Street, and it was just a shambles
when they moved into it.
Who would patronize the store then?
My father’s store? That’s a very interesting
question. The C&O Canal was an active waterway
between CUmberland and Washington. The staff that
worked on those canal boats were issued scrip,
money, and they used that money among the
Georgetown merchants. Just like legal tender, it
was redeemed by the canal. I have some 9f. that
scrip framed in my apartment. And that was one
source. That was a built-in source of trade.
Then there was really very little access to
northern Virginia, which was largely a rural area
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and agricultural in emphasis. Most of those
people shopped in Georgetown. Tenleytown was a
rural area. Bethesda was a rural area. So rural
you cannot believe it. All of these people
shopped at Georgetown. Tenleytown at Wisconsin
Avenue and Western Avenue was the country. There
was an interurban railway, one line, that ran from
Georgetown north to Rockville. It was single
track. They had a switch arrangement so when the
little train was going north, it would hit a red
light at a switch; it went off on the switch. The
motorman turned the switch to green, so the other
train could come through, and when it went
through, he went on till he came to the next
switch. That was the only way to get back and
forth, unless you wanted to ride a horse and
buggy. Automobiles in my youth were just not
used.
And this would be into the Twenties?
Well, by the Twenties automobiles were commencing.
But the interurban line was still there. By 1933
— I’m not sure of the dates; I have a history of
the transit system in this area, which was written
by my neighbor across the street on N Street,
named William King. He was the third William King
(but no relation to this King). I just don’t
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remember the date, but this was a wholly different
society in which we lived. Georgetown was
separate; there was only one bridge. That was, I
think, the M Street bridge; there was no
Pennsylvania Avenue bridge. Or was it the
Pennsylvania Avenue bridge and no M Street bridge?
I think it was M Street because if you go past
28th and M you can see that the first floor entry
of the stores are below street level, below
pavement.
I’ll look at that.
It’s very interesting. As you go East on M
Street, cross the M Street bridge, the whole city
– if I’m correct in my recollection of the census
figures — when I grew up the city of Washington
(well, nqt really the city of Washington). I
think it is important to clarify my reference to
the City of Washington as distinct from the
District of Columbia by referring to a small
handbook that was published about 1938 by a
commercial firm describing the subdivision of
lands in the District of Columbia. It is so
important to understand the territorial aspects of
the District of Columbia and I am using the book
to point out concisely that the District of
Columbia consisted of a ten mile square or 100
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square miles in area on both sides of the Potomac
River including the present territory of the
District of Columbia and what is now Arlington
County, formerly Alexandria County, Virginia and
Alexandria City, Virginia, the latter an
incorporated municipality separate from the
county. After 1846 when about 40 square miles was
ceded back to the State of Virginia what was left
in the District of Columbia consisted of three
districts, one known as “Washington City” between
Boundary Street, now Florida Avenue on the north,
the Potomac River on the south, the Eastern
Branch, now Anacostia River on the east and Rock
Creek on the west. The second of the three
districts was “Washington County,” comprising the
more thinly settled suburbs, and “Washington
Agricultural,” composed mostly of farm land.
Georgetown was a separate corporation. This left
an imprint on our law not easy to understand
because some tax assessments in the District of
Columbia become liens on real estate if they are
in Washington City and not liens on real estate if
they are in Washington County or Washington
Agricultural, such as costs of tapping water and
sewer, which are lies in the Washington City but
not liens in the other two districcs within the
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District of Columbia until tapped. This would
take some doing to brief but it is a fact and
title companies recognize this among other aspects
of their title work in running title chains. This
is too big a problem to describe now but it exists
and lawyers today never think about it anymore
because they leave it to the title companies,
themselves subject to so much immaturity and lack
of experience that they make mistakes too: Every
now and then the court finds about one and then
somebody suffers and this is all because nobody
has time to go into the interesting aspects of
history to find out why things are now as they
are. Too bad we didn;t cede the whole business.
I don’t know about that, now.
I don’t think that will be a problem. Where were
you educated before George Washington?
I went to the public schools in Georgetown. I
started at the CUrtis School, where my father had
also gone. In fact, I have a certificate of
scholarship framed hanging on my wall, given to
him June 1, 1875 for excellence in scho??rship at
the Peabody School, which was its name then.
These names like Peabody, Corcoran, and Riggs, all
of these great benefactors were names I grew up
with as the leading citizens of the area. CUrtis,
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Hyde and Addison were three grammar schools. Then
I went to Western High School. Then I went to
George Washington University, and then I went to
George Washington Law School, then I went to
Georgetown Law School.
Was religious training a large part of your
childhood?
I would say it was an influential part. Being
Jewish at that time was quite different than being
Jewish now. I know I’ve said this before, and
some of the people who are my contemporaries and
some older have differed with it. But I felt
considerable discrimination being a Jew when I was
growing up. Not in vicious terms, although they
used to chase me home from grade school. One time
some citizen saved my life, with the three Jewish
boys in that whole area that were in that school
back-to-back, fighting all the kids, but that was
just one event. It stands out because it was one
event. There wasn’t any really harmful antisemitism.
It was just that you were blocked out
of this and blocked out of that. To drive along
the road going South, for instance
was courting my first wife in 1934
even when I
to drive
down Route 17 and see an advertisement for the
Chamberlain Hotel in Old Point Comfort, Virginia
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“Gentiles Only.” King was married to a very
wealthy woman, one of the leading Jewish families
in the country if not the world, whose father was
Emile Berliner, the inventor of the loose contact
diaphragm telephone and the flat disc record
player and the radio microphone and all these
things. He was a genius, and he was very wealthy,
and she was wealthy and accustomed to living at a
very fine level. She and Milton wanted to go to
Nassau (This was before World War II) with Donald
Richberg and his wife. They were friends with
Donald Richberg, who was part of what we called
the double martini club. He was a friend of
Milton 1 s. He was twenty-five years older than I,
as was Milton King, that is, Louise Berliner’s
husband. They made inquiry at the hotel in Nassau
for reservations for Mr. and Mrs. Donald Richberg
and Mr. and Mrs. Milton King. The reservation was
accepted for Mr. and Mrs. King but not for Mr. and
Mrs. Richberg, because they were Jewish. Well
that was exactly the reverse, the Richbergs
weren’t Jews. On another occasion Loui??.bought a
house in Spring.Valley, which originally was an
area where Jews couldn’t buy a house (Jews, Arabs,
Greeks, Italians and so on). She had a contract
for the house, which she obtained because she
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didn’t look particularly Jewish. Finally however
they refused to perform it. I know in my own
experience in 1939 I was having a hard time buying
a house. I lived over in east Chevy Chase, in a
little house, and I wanted a bigger one because my
second child was on the way. I signed a contract
with a man named Phillips to buy a house at 36th &
Appleton Street, an area that I knew was
controlled by the Chevy Chase Land Company that
wouldn’t sell to Jewish people. So I told the
real estate agent that I didn’t think I could buy
the house, because I was Jewish. He said,
Absolutely not; there was no restriction at all.
So I signed the contract, and the builder signed
it. I called up everybody, and we were overjoyed,
and then a lawyer who was in Washington here that
I knew was a good friend of — in fact, he was
associated with — a Jewish lawyer, called me up.
He wanted to see me. (Ed Shelton was his name).
He said that Phillips couldn’t deliver the house
because the Chevy Chase Land Company wouldn’t let
him. He said, How much damages do you wa??? I
said, Well, what do you want me to do? And he
laughed, and he said, I want you to tear up the
contract. I said, Well, let me see the contract.
He showed it to me, and I tore it up, and I said,
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You tell the Chevy Chase Land Company that all
Jews don’t have horns. Later on they tried to
hire me.
The land company.
Yes. And in some cases that they had, and I told
them I would be very glad to take the case, but my
fee was so and so, and they wouldn’t pay it, and I
really had hiked it.
My grandfather actually did work for Ford; legal
work for Ford until the pogrom and then he was
fired. To this day we can’t buy Fords.
My father would never buy a Ford. But you said
until the what?
There was a moment when Ford starting reviewing
carefully who was doing his legal work and had
sort of a purge of Jews who were doing clerical
work for him.
He had done something, I forget what it was, to a
man named Sapiro and it became a great national
case and he also financed a peace ship. He was a
vicious anti-Semite at one time in his life and my
father would never have a Ford. I have .?ince
bought Fords. I own stock in Ford Motor Company
and represented one of the original owners of the
Ford Motor Company for some years who had borrowed
$25,000 from his father, who was a minister, to go
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in with Henry Ford’s third and last invention, the
one that was successful, the Ford motor car. His
name was Anderson and it was Anderson, a few
others, ten in all, and Ford.
Now I know there is a synagogue actually over by
Georgetown. Was that the synagogue for
Washington?
No, that’s a relatively new synagogue. That was
built in my time. That’s for orthodox people.
Today Herman Wouk, who lives in Georgetown, is a
member of it; Herman Wouk is an orthodox Jew.
The synagogue in the city of Washington that was
the first one here was the Washington Hebrew
Congregation. The first “minyan” for which was
held in 1852. I’ve written a history of that
congregation. And that’s the oldest one. About
twenty years later, in 1872, around about that
time, there was a revolt because the synagogue
called Beth Elohim was becoming too reformed, so
some split off and formed Adas Israel
Congregation, which was more conservative. And of
course today there are something like thi!ty-seven
or thirty-nine different Jewish congregations in
the greater metropolitan area. But the original,
the first one, was the Washington Hebrew
Congregation.
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Were you raised in the reform tradition?
Yes, in the Washington Hebrew Congregation. And
my grandfather Bernard Nordlinger, when he went to
Georgetown founded a ·1ittle reform congregation
called the Mt. Sinai Society, which was not
successful. There weren’t enough Jewish people,
so they merged with the Washington Hebrew
Congregation. It’s a long family relationship and
I’m still a member and so is all my family.
I haven’t really described the city, I’ve gotten
pushed off onto this anti-Semitism business. It’s
been my theory that just as the greatest religious
philosophy of the western world was created out of
the suffering of the Jews under the Romans, namely
Christianity, so this present great crusade
largely worldwide against bigotry and intolerance
has developed out of the suffering of the Jews
under the Germans. After the discovery of the
horrors of the Holocaust, bigotry and intolerance
is just abhorred by most educated, fine people.
So the problem of being a Jew today is, I would
say, virtually dissipated. It still remains
socially in some areas.
I think that’s a terrific point. I think what I
would like to do is examine it again in the
context of your later legal career. One of the
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things I want to talk to you particularly about is
your representation of the Ethical Cultural
Society.2
Oh really, you know about that?
Just turned up in a Lexis search, so I want to
talk about that. That may be another vehicle for
discussing how important religion was to your
practice.
That’s very interesting. I had been a minor
member of the group headed by a lady named Edmonia
P. Whitehead, who had some educational experience
as a teacher and who started a settlement house in
Georgetown called Georgetown Children’s House.
She needed some young men on the board to keep the
books and a lawyer who could incorporate the
group, so I accepted. She was a friend of my
father’s, who was rea?ly an unofficial mayor of
Georgetown. He wasn’t too wealthy, but he was
extremely well thought of and a man of marvelous
character. You have to mature before you realize
what great people your parents were. But in any
case he had suggested me, and I went in with that
group, and the house was founded. It has become a
very important settlement house for children of
2 Washington Ethical Society v. District of Columbia,
249 F.2d 127 (D.C. Cir. 1957)
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working parents. It’s there, and it has the
Georgetown garden house tour every year and all
that sort of thing. One of the members of that
group was a judge at the tax court named Opper, a
member of the Washington Ethical Society. I
didn’t know whether or not he was a Jew. He
.looked as if he could have been, but he was
certainly not a practicing Jew, nor was he
affiliated with any Jewish causes that I knew of.
But he came to me one day and he said that the tax
assessor had refused exemption to the property
they owned because it wasn’t a religious group,
because they didn’t believe in God. So he asked
me if I would take that case. Of course I would
take any honorable case from anybody. I wasn’t
that well to do that I was distinguish
You know, the things I’ve done in my life to make
a living are incredible. I would like to leave
this for a minute and go back and tell you one of
the early cases that I took, against a cobbler, a
man who had actually had nails in his mouth and
hammered them in the sole of the shoe whiie he was
working. The debt was 28 dollars and some cents,
and his place was at 26th and Pennsylvania, and
our office was at the Southern Building, 15th and
H, but when somebody wrote me to collect this
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bill, I walked over there. I walked over there,
and he was a honorable man. I knew who he was,
his name was Lomedico. He said he didn’t have the
money to pay it all, but he would pay it $5.00 a
month. I said, okay, and I took the first $5.00
and walked back, and I got 25% or a $1.25. And I
did it the next month, walked over and walked
back, so this shows that I wasn’t too selective in
what kind of cases I took. He paid it, too, but I
had to walk back and forth over there all that
time. It was months.
So I took the [Washington Ethical Society] case,
and it was an intriguing exercise in history. I
tried it before Jo Morgan, Jo V. Morgan, Sr., who
was the member sole of the D.C. Tax Court. He was
a good friend and a good lawyer but he didn’t
agree with the fact that the Ethical Society could
be considered a religious society. He gave me
every latitude that he could [to build a
record.] [END OF TAPE].
It was a real good record, and he gave me, as I
said every latitude, so I filed an appeal. The
national society became intensely interested,
because it had national importance in terms of
their relationship with other taxing authorities.
So somebody from the group called me from the
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national group, and said they would like to have
John Lord O’Brian, who was with Covington and
Burling, take over the case on appeal. I said,
Most assuredly. If you don’t mind my saying, I
said to the man, we call him Lord John O’Brian.
He’s a man of tremendous stature and can
undoubtedly do a great deal better. So they went
to see him, and to my astonishment Charlie Horsky,
who was then his junior, called me up and 0said
they wanted to talk with me about the record and
the briefs that I had written and all that. So we
did, and they asked me to work with them on a
brief, Mr. O’Brian, who was a wonderful person,
asked me if I wanted some time to argue. And I
said, Well, Mr. O’Brian, I don’t claim to have
your stature or reputation he had been
Solicitor General, for Lord’s sake! He said, No,
I want your name on this. He said I think you did
a wonderful job at the trial and you should have
won the case at the trial level. So I did. His
grasp of that case the first session I had with
him was one of the most marvelous things I. ever
saw. He had read the record, and he knew it, and
he didn’t have any notes. He talked to me more
than a half hour about what was in the record, and
he had every bloody thing just exactly right. He
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was wonderful. So he was arguing that case and I
think Prettyman was on that panel, I may be wrong.
I think Prettyman was. Prettyman, Fahy, Burger.
Okay, I knew Judge Fahy, and I just knew Judge
Burger by saying hello, because you knew the
judges then. You don’t know them all now; there
are too·many. Prettyman had been my professor at
Georgetown University, and I knew him to have just
a great mind. He was a wonderful man. He was
great to me when I took his course, too. So when
Mr. O’Brian came in and he started arguing. When
his time was up, because he was saving us
something like fifteen minutes for rebuttal for
me, or something like that he said, Your Honors,
I’ve saved some time for Mr. Nordlinger. Judge
Prettyman said to him, Well, Mr. O’Brian, if you
need a longer time, you finish your argument, and
we’ll allow Mr. Nordlinger fifteen minutes by
virtue of an extension of time, if my colleagues
don’t mind. So he finished up. I didn’t take
fifteen minutes; there wasn’t much for me to say.
I said the little bit that I could to get my name
in the record, I guess. It was really quite a
wonderful case, but they didn’t decide it the way
I wanted it. I remembered that Fontaine Bradley
(not his brother, Fred Bradley, who was at Hogan
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and Hartson, but Fontaine, whom I knew better)
called me up after the argument and said, You got
a winner. He was at Covington. When the decision
came down they didn’t decide this on the basis of
the Ethical Society being a religious society.
They decided it was the intention of the Congress
to afford the exemption to societies or groups
like this. I think this was largely as Mr.
O’Brian or Charlie Horsky told me, because of a
case I had cited to Jo Morgan, and which they used
in the brief. It was a case that came up from the
territory of Cuba or Puerto Rico in which the
religious exemption was held by the U.S. Supreme
Court to be based on the economic benefits to
society in people being taught a proper moral
code. By keeping society in order. Now Charlie
said, How did you ever find that case? (I
remember because Yale Kamisar was working on that
case, too. He became a law professor at Michigan
but when he subsequently was lecturing at a CLE
program that I attended, and I went up afterwards
and said, Do you remember the case? He s?id, I
never will forget it.) So that was a great case.
I’m very proud of that case.
And you wanted the case to go off on religion?
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NORDLINGER: I didn’t argue on the basis of what the Congress
intended by the adoption of that statute, and
neither did Mr. O’Brian. But the court did
because that was an easy way out. They didn’t
have to fly in the face of all — We were still
at that time in the habit of not overturning
bureaucratic decisions. There was a great deal of
willingness to accept the public administrator as
a careful and compassionate judge. DespiEe the
fact that I had a great professor at George Washington
University who was hard to follow he was
not popular, but he was brilliant. His name was
James Forrester Davidson and he later wrote a book
with Justice Frankfurter called Frankfurter and
Davidson on Administrative Law. 3 He required us
back in 1930 to read two books one was called?
New Despotism by Lord Hewart of Burey, describing
the British bureaucracy as being horrible and
growing like a mushroom, destroying all British
liberties. 4 The other was Our Wonderland of
Bureaucracy. written by James M. Beck, who had
been Solicitor General and who had the same view
3
4
Felix Frankfurter and James Forrester Davidson, Cases
and Materials on Administrative Law. 2d ed. (Chicago,
1935)
Baron Gordon Hewart, The New Despotism (London, 1929)
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5
of our bureaucracy in the United States. 5 Now
this was in 1930, mind you, and, by golly, they
are all correct, of course. Today government, in
the words of Justice Scalia whom I heard talk one
day. I went up afterwards, and I said, I studied
constitutional law, and I have been interested in
constitutional law and argued constitutional law
cases, but I never heard anything like this. He
said, No, these are things you don’t hear: And he
went off on the point of the merger of our
tripartite governmental functions in bureaucracy
and that the executive, legislative and judicial
functions of our society, which are so carefully
delineated by the Constitution, are ignored by
bureaucracy, because it combines the rule making
function which is legislative, the investigatory,
and enforcement function, which is executive, and
the judicial, which is the decision making
function. He says, This is the structure of
government. The tripartite system is being
destroyed by merger in so many of our
institutions, like the Internal Revenue _S?rvice,
like labor law and so on. (I can’t remember them
James M. Beck, our Wonderland of Bureaucracy; A study
of the Growth of Bureaucracy in the Federal Government.
and Its Destructive Effect Upon the constitution (New
York, 1932)
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all because I’m not that great a constitutional
scholar.) But he said the structure of government
is far more important than worrying about whether
or not a statute is constitutional because of the
merger of the functions. What government does
under the statutes, the difference between
legislative and interpretative regulations is
unimportant, but what the institution is doing
about maintaining the structure of government so
that you are free of the investigatory function
when you enter into the judicial area [is
important.] He’s a great man, Justice [Scalia].
He may not be exactly what everybody likes, but
he 1 s a wonderful person.
There’s no doubt that Justice Scalia is very
acute. I didn’t actually have him when I was at
Chicago, but he was on the faculty when I was
there. Many of my colleagues at Georgetown
dissent from his positions. What I find
interesting about your observations and where I
think I want to go for a minute is back to college
at GW.
Anti-Semitism was terrible. The Jewish
fraternities and sororities were not admitted to
the inter fraternity or inter sorority council.
And totally ignored by the school. And so were
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the Jewish students ignored by the fraternities
and sororities.
And the fraternities and sororities were a large
part of your social life?
I didn’t have any social life in college.
Well, let’s go into that. You graduated at age
twenty so it seems like you started college pretty
early. Did you perceive yourself as being younger
than the rest of the student body?
My high school career and my college career were
socially aborted by virtue of my youth. And until
I got into law school, where I was old enough to
begin to move on an equal plane of maturity with
students there, I didn’t really make any friends
at school. That isn’t quite true;, I did make some
good friends at Western High School, but looking
back on it I could see now that they were young as
well. Oliver Gasch and Roger Robb were one year
ahead of me, and I felt very close to them. They
were young people, too, but these were fine
people. Philip Rarick and a few others. Most of
the people who went to Western High Schq?l came
from other parts of the city than Georgetown. It
was more or less a school at which the career army
and career navy people sent their children. They
were all pointed towards college educations,
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military careers. That’s why one of the cheers at
Western High School was, “English, Latin, German,
Greek, we’re the boys across the creek, rah, rah,
rah, Western!” Well, no other schools had
emphasis on English, Latin, German and Greek, so
this was pointing toward college. It was a very
small school because the population of Georgetown
was small, and there weren’t too many people
willing to send their children across town to go
there. Now where do you want me to go back to?
Well, we said that you went to college sort of
against the wishes of your father.
No, I didn’t go to college against the wishes
To law school?
I went to college at night my last year and got a
job. And I went to law school at night while
working. He didn’t want me to do that. He wanted
me to work in the store.
When you were in college, you were working during
the day.
Yes, the last year. Well, the last semes?er,
because I applied in December of 1928 at the firm
of Newmeyer and King for an office boy. Milton
King, as it happened, was leaving Newmeyer and was
setting up an office of his own. He didn’t have
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anybody or anything much, so he hired me to come
to work when he opened the office. He opened his
office, the following February, and in January I
changed from day to night.
You said that when you went to law school you felt
suddenly you were on an equal footing with
everyone else. Was part of that having gotten a
degree with distinction from GW and knowing that
you eventually . . .
No, I don’t think so.
Was it the experience of working?
No, I was at night and the students at night were
serious, and, as I say, I was approaching a level
of maturity that was more on an equal plane with
them than I had been. When I went to high school
I was in short pants, knickerbockers with black
stockings, and I was small anyway. My last year
at GW they did let me play on the basketball team,
even though I was small. Today I couldn’t be
water boy. I wasn’t very much good; these boys
were much bigger and older. In any event, they
did let me play on that team.
How did you find the office-boy position with
King. Did he do work for your father?
No. King, I don’t know how to describe him; I
would rather not try. He was great to me. He
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created an obligation in my mind that I’ve never
outlived because he let me do whatever I wanted to
do. He had, for instance, a case, when I first
went to work there, involving the representation
of a lady named Lorraine Horner, a woman of some
stature whose husband, Stanley Horner, had a Buick
agency. They were divorced. She wasn’t a person
of great character. She was addicted to
narcotics, and she was indicted for forging the
name of a doctor named Mazarin C. Dolman on
prescriptions. And Milton – I called him Mr. King
then – Milton told me he wanted me to come down to
court. When I reported to the office, Milton — I
called him Mr. King then – Milton told me he
wanted me to come down to court to watch the jury.
My job during that trial was to sit right behind
the bar which separated the spectators from the
lawyers and watch the expressions on the jurors’
faces. Well, that wasn’t much of a job because
most of them were asleep. They went to sleep.
Well, that was a great case, because he had
associated with him a lawyer — Milton didn’t do
too much in crimes — named Jack Burnett, who was
in the very well known criminal law firm of
O’Shea, Burnett and Goldstein. They were criminal
lawyers, police court lawyers. You don’t know
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what that is; I’ll have to explain to you.
That’s what I did, too, when I was admitted. And
I have some terrific stories about some of those
judges. I don’t know how long you want to talk.
Well, the issue in this case turned out to be
whether or not the prescription was dated. It was
not dated. The three prescriptions which were the
basis of the indictment; forgery and uttering, had
not been dated. Dr. Dolman’s name had been signed
by Lorraine, but they weren’t dated, and-since the
regulations require the pharmacist to act on a
dated and signed prescription, the document itself
was not in a legal form sufficient to operate to
the prejudice of another. Accordingly they could
not form the basis of a valid prosecution for
forgery or uttering. The judge, who was Walter L.
McCoy — I could tell you some great stories about
him too — granted a directed verdict for the
defendant. And when I took the bar three years
later (because I took and passed it before I
graduated) one of the questions in criminal law
was that particular case. Mr. Leahy was.the
examiner, and he had known about it because it was
a topic of great discussion, how Judge McCoy had
gone off on it. I hit that one right between the
eyes.
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Yes, I would hope so. That’s terrific. So it was
the experience of working for King that suggested
that to you that you would like to become a
lawyer?
No, no, no. I always wanted to be a lawyer. I
just had never had anything else in mind. It’s
something like the story that I like to tell about
the lady who was shopping at Hecht’s, a Jewish
lady who had two little boys. They were funning
around making a lot of problems for the clerks,
and the clerk didn’t know what to do. Finally she
said to the lady, My goodness, you have two lovely
boys, but aren’t they energetic? How old are
they? And the lady says, The doctor’s five and
the lawyer’s three. So my mother wanted my
brother to be a doctor, and she wanted me to be a
lawyer. That’s all I’ve ever wanted to be.
That’s wonderful.
And then you asked me about King. This was the
first job when I went out. You can see how
fabulously interesting this would be to somebody
who didn’t know anything about law or tri?ls. I
had been in the Supreme Court to listen to some of
those arguments and all that, but this was life,
this was not just some rarified intellectual
discussion, this was really life, and living, and
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people laughing, and objections, and all that. It
was just great. And in everything he did, if it
were possible to bring me into it, he would. If
he were having a conference with a client and
wanted some investigation to be done, he would
bring me in and let me listen and make notes so
that I could know better what I was supposed to
do. I remember in one instance when he had a case
involving the right of a man to take possession of
a piece of property he had bought that was being
occupied by a tenant at sufferance who just
wouldn’t get out. I was so interested in this
thing I went into the library and looked up the
question of what rights the landlord had to take
possession without legal procedure, and I found
some substantial authority at that time would
permit it. Now, of course, it’s forcible entry
and detainer. It’s terrible. So I wrote up a
little bit of this and gave it to him. “Oh, that
was absolutely great,” [he said], but he was
afraid to take the chance because I wasn’t a
lawyer then. Now at that time, even if _you
weren’t a lawyer, you could appear in a municipal
court and ask for a continuance of a case. In the
landlord and tenant court you could do the whole
bit. Of course, municipal court, mind you, at
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that time had a jurisdiction of $1,000. It was
really a collection of justices of the peace.
Everything else went to the district court.
Yes, it wasn’t the district court then, it was the
Supreme Court of the District of Columbia. And in
the Municipal Court the maximum jurisdiction was
$1,000. Cases under $500 were class B cases.
Class A cases were over $500. If you wanted to
sue for more than $500, it cost $10.00; if it was
under $500 you only had to pay $2.00. Service was
fifty cents, a dollar in A cases. So I actually
tried cases before I was a lawyer, in the
municipal court, landlord and tenant cases. You
couldn’t do that any more.
No, not like that, by any stretch of the
imagination.
Of course, they adopted rules that required
everybody to appear by lawyers (except cases in
proper person) and of course the jurisdiction of
the court was increased. It became more important
in a larger society when people didn’t know each
other any more today like they did before. It
still was pretty simple then. It wasn’t until
after World War II that our metropolitan area just
became so complex and mushroomed into three to
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four million people. What they now call the
metropolitan statistical area.
My guess is that your working for King during the
day meant that you would have had a fairly
instrumental approach to your legal education.
Absolutely.
And so that if one was looking for your formative
experiences as a lawyer .
I got a lot of on-the-job training. And I was not
subjected at that time to the fine minds I
understood would have been available had I been in
a different atmosphere in some of the Ivy League
schools, or what not.
But you had an impression of this person Davidson,
the person who was Frankfurter’s co-author . . .
Yes, but I learned that later. At the time he was
a terrible bore. And when you went to night
school you learned how to put your hand on your
forehead and have your pencil — They had chairs
like this where you put notebook and your pencil,
and you could put your other arm over your
forehead and hold your pencil as if you ?ere
taking notes, and go to sleep. Everybody did it,
including me. He was a terrible bore. He had no
understanding. He talked almost like an
Englishman; he was Canadian and his education had
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been wonderful. I guess he had gone to Harvard
and maybe Oxford, too, I don’t know. He was a
wonderful person, we came to know later.
What I found interesting about him was his antibureaucratic
convictions. Some people, I think,
going into the legal profession in the early
thirties looked at the expansion of the federal
government with a sigh of relief: there were going
to be some jobs for lawyers now. (I guess I’m
extrapolating from Howard Boyd, who went-to work
in the Attorney General’s office right away.) But
you didn’t see a job in government as a
possibility for you.
Never considered it.
You never considered it, with the job with Mr.
King.
He didn’t have any money, but as soon as I passed
the bar, he said to me, apropos of a cartoon.
Bernard I can’t give you a raise (by then I was
making $10.00 or $15.00 a week). I can’t give you
a raise, but I’ll give you an interest in the
business. So we formed the firm of King ?nd
Nordlinger. My first task as a member of the firm
was to go the bank, because I was keeping the
books. I knew all about the office; there wasn’t
anybody in the office, really, but him and me and
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a secretary. Ed Curran was in the office at that
time, but he was getting ready to leave, wasn’t
making enough money to suit himself. We all
stayed friends. I guess you know about Judge
CUrran; he became chief judge of the United States
District Court, after long service on the bench.
But we knew CUrran was leaving, so I went over the
bank, and I said to the man at the Security Bank,
Mr. West, Milton has just made me a partner, so I
came over to sign his note. Well, he almost fell
off his chair! The note was $2,500, and I signed
it on the back — endorsed it — and the next note
we signed together. That’s the way it was, and
that’s all it cost him. In later years, when our
practice expanded and we did become involved in
really important things, he never changed his
attitude; he let me run the firm. He didn’t care
about a law firm. I developed the firm to the
point in where we had an office in Maryland and an
office in Virginia and an office here. After I
stepped out of active management, when I was 72
years old, the boys who took over manage.ment of
the firm weren’t interested, either. And the firm
is now in the process of shrinking and trying to
take care of the work we have, instead of doing
like so many of the other law firms have done,
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expanded really tremendously. That is probably my
fault, because I didn’t have enough early training
to have the depth of vision, the business
horizons, to do what could have been done. Like
Arent, Fox, for instance. Those two boys, Stanley
Posner and Henry Fox, were two young boys in a
one-room office of a man named Jesse Miller.
(This Posner later died). These men had
remarkable sagacity, and knew how to get — and
knew how to get and were willing to take the risk
of promising huge salaries to — people who
graduated from good schools and who could make
positions for themselves. They took men from
government departments who already had built-in
reputations, like Harry Plotkin and Earl Kintner.
We never did that and I would say it’s my fault.
Well, let’s look at the practice in the Thirties
and when you went into the Navy at some point. I
take it with King you had a wide open practice.
Correct.
And it was not geared toward the agencies or
anything like that . . . b ecause that didn’t even
really start until later in the thirties and early
forties. I don’t know the time of Arent, Fox. I
know that Frank Hogan apparently said right in the
late thirties or early forties, you know, we have
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to start hiring people who have been in
government, who have done tax, who have done FCC
work. I take it your firm stayed in the thirties
and forties a Washington-oriented, diverse,
primarily civil practice while these other changes
were going on in some of the firms.
And criminal practice.
And criminal practice. Okay. One thing we could
talk about is the kinds of cases you had in the
thirties and forties, if there are any
particularly memorable ones. We could talk about
the division of labor between you and King.
King was a rainmaker. He attracted a bunch of
people I couldn’t have approached. Because of his
wife’s great wealth, he moved in an area I wasn’t
able to move in. Some of the great cases, well,
most of the great cases I can think of, came after
World War II. I learned a lot in the Navy, and I
was able to give some impetus to growth, but
nothing like what you said Mr. Hogan did. Mr.
Hogan furthermore could afford it. There weren’t
too many people who could afford to. We had the
opportunities. Young men that I knew in the
agencies would ask to come in with us. In fact,
when I got out of the Navy I knew Dick Nixon. I
got out ahead of him because I had two children.
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I was older and got out of the Navy based on
points, length of service, dependents, all that
sort of thing. So I got out ahead, and he came to
see me in my office in the Southern Building while
he was still in uniform to ask me if I could take
him in my office. And I told him to go back to
Whittier, California, where his family was. This
is an interesting story. He had seen an
advertisement that the Whittier, California
Republican party wanted a white Protestant veteran
of World War II to run against Jerry Voorhees for
the Congress, and please send a picture. He had
sent in his picture, and they wrote him and told
them they wanted to have an interview but he would
have to pay his own fare. If he was accepted as a
candidate they would refund him the fare. So some
friends of him put up the $360 for a roundtrip
fare, and he went for the interview, and the rest
is history. And he paid the $360 back. This was
an incredible experience. Imagine in your
lifetime having someone who became president of
the United States ask you for a job! It just is
unbelievable. I have turned down people for jobs
who became great in business, but never anybody
like that.
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And the difference was (and I should know Hogan’s
biography more) he had personal wealth in part
because of the fees he was receiving?
Totally because of the fees he earned. He was
penniless when he started practicing law in the
District. I know some stories I would stake my
word on it are true, but which I don’t think we
should take the time to tell about, but he was one
of the greatest men I ever knew. You’re telling
me something I didn’t know when you tell me there
was a time when he said to some of the men around
him, It’s time that we engage some others. When I
knew the firm it was Hogan, Donovan, Jones, and
then Mr. Hartson went in there and then Duke
Guider married Mr. Hogan’s daughter and it became
Hogan, Donovan, Jones, Hartson and Guider [END OF
TAPE]
When Mr. Hogan died they changed the name to Hogan
and Hartson. It has become one of the great firms
in the world I guess. The story is and I feel
it’s true because Lester Cohen told me — when
Lester was a student at Georgetown Univ?rsity.
Mr. Hogan was supposed to have called up the
school to ask them to send a young Jewish student
for him to hire in his office, night school
student. So they sent Lester Cohen to see him.
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Lester didn’t ask me, but he asked another man by
the name of Coleman Stein, who was just eighty
years old this coming weekend, whether or not he
should take the job, and who was this man Hogan?
Of course, he did take the job, and he became one
of the great partners in the firm. There is a
room in.the Hogan office now called the Cohen
room; some of the rooms are named for some of the
partners. He went into the radio and
communications end of the business.
What I just did was pick out from the bottom
drawer something I had forgotten totally. It is
my attempt to write up a trial docket. I see one
of the earliest dates on here is 1939, 1940.
These are the cases I had been personally involved
in, and it runs all the way up to 1968, when I
quit, because we had a better docket form by then.
That’s quite useful. How much of that was civil?
I do want to know about your criminal cases, or
any case you’ve got there that you consider
notable. I also would like to hear about, if you
could, your principal clients. I take it most of
them would come into Mr. King’s initial contact.
Well, the important ones, yes. [The important ones
would be] the ones that involved a lot of money.
But I got a quite a lot of work because I was
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visible and not expensive. Some of the people I
represented in those days, shortly after I was
admitted to the bar, I kept as clients throughout
my entire practice. Right now I’m serving as
testamentary trustee, running two shopping
centers, which are owned free and clear under the
will of one of the men I represented, because he
didn’t have any money at the time, and he was
looking for the least expensive lawyer he -could
find. I’m a testamentary trustee for the family
of another men who left a huge fortune. I was a
testamentary trustee for a lawyer who befriended
me because he knew I needed it, and he made me his
executor and trustee, and so did George Marshall,
but I met him through Milton, these other people.
Well, you said you were visible.
In the courts.
In the courts.
Jurors in cases I had tried, whether I won or
lost, would sometimes come to me and ask me to
take a case, because I was there. Obviously the
cases were people’s cases and not huge cqrporate
cases. The police court was a fertile area for
practice, and the municipal court was a fertile
area, and that’s where I went in the beginning.
Although right after I passed the bar Milton asked
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me to try a case in what’s now the District Court
before Judge Proctor. It involved a suit by Lowry
Coe, a lawyer who had more stature than I did. He
was trying to get a judgment for a deficiency
after a second trust foreclosure sale against our
client, who didn’t have any money. So I tried the
case, just like that. Of course I lost it.
Cases in the police court, I take it, were the
bread and butter of a starting lawyer, because
they were court appointed?
No, oh no. Court appointed? No, indeed. You got
somebody in the corridor who looked confused, and
you say, Are you looking for a lawyer? That’s
what happened. And you grew out of that when you
grew out of the economic necessity of getting fees
of $5.00 or $10.00, which usually was your fee, if
you could get the collateral back. I’m being
entirely frank now, and I don’t know how many
people around Washington practicing law know about
things like this, but [that’s what] they did.
It’s not very professional. I didn’t do it much
because I soon got out of the economic necessity
of doing it. I can’t remember specifically any
that I did, but I don’t doubt that I did do it.
I’m trying to find a page here that isn’t torn.
Here’s jury trials. My goodness, here’s one
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that’s remarkable. Here’s a great case 1939-40,
Mccann against the District of Columbia. I tried
that against the District of Columbia. That was a
fire engine case. That was before Judge T. Alan
Goldsborough.
I just know the name.
He’s the one who levied the fines against John
Lewis for contempt. I went down there to hear it.
He was kind of a nut; he had been in an
institution once in his lifetime, but that didn’t
make any difference in those days. Nobody had
hearings like they do now.
Were there any particular judges in the Thirties
and Forties who were grand judges who really put
you through your paces if you tried a case before
them?
I’m sure there were. You are going back now to
1939. In 1939, I would say I wasn’t too active in
federal court. The judges I regarded with such awe
were the judges who were sitting when I first
came, like Stafford, Siddons, Bailey, men like
that. Then later on we have a whole difJerent
attitude toward practicing law, everything changed
after World War II, everything. Everything
changed after 1938 as a matter of fact.
Why that date?
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The adoption of the Federal Rules.
Going to rule pleading made that much difference?
Until 1938 if you filed a demurrer to a
declaration all you said was, Comes now the
defendant and demurs to the declaration on the
ground that it is bad in substance, and you signed
your name, and that’s all. It took a year to get
that heard. Odd and even, when the two judges who
sat on Fridays only to hear those motions, you
didn’t have any idea what the other fellow was
talking about. It was just a ground for the most
awful delay. Now, if the court overruled your
demurrer then judgment was entered, so you took a
terrible chance to file a general demurrer. If
you filed a special demurrer, you had to say, For
the following reasons, so forth and so forth. No
authorities. The other fellow didn’t have any
idea what you were doing. It still took a year.
This was totally eliminated when you had to file
points and authorities, totally eliminated and the
other side had to file points and authority in
opposition.
I see how that changes the character of a case
dramatically, but how does it end up changing the
character of the . . . ?
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NORDLINGER: That’s only one small aspect. There was a lot of
Latin junk! You used Chitty; you pleaded the
absque hoc, you made profert and craved oyers; you
moved to strike a negative pregnant; you did a lot
of things that was just so much junk. It was a
lore all of itself. Now, the attitude toward the
skills of common-law pleading and all of the
mysterious aspects of trying to file for writ of
retorno habendo were eliminated. The lawyers had
to say what they were talking about, so that
everybody understood it, including the lawyers
themselves. These rules did away with the
distinction between law and equity. Now I was
talking about law cases. You moved to dismiss a
bill in equity for multifariousness or duplicity.
All those things, and all the rules of sworn
answers in equity and all that sort of thing
decrees pro confesso that whole business was swept
away. It was totally different, and lawyers
changed. Lawyers changed completely in their
attitude toward the bar. Discovery commenced
which has made some lawyers just litigat.ors who
never try cases. The abuses in discovery are
frightful. Of course, by this time the city was
growing, the metropolitan area was expanding, and,
as you put it (and I had not had it quite pointed
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out to me so succinctly before, as old as I am, as
you did) the growth in administrative law occurred
in the late Thirties and early Forties, about the
same time as the adoption of the Federal Rules. I
hadn’t really thought about that, but that’s true,
because of the inventions that occurred. All of
the industries developed that we had no idea of
prior to that, so everything mushroomed, and we
were just a bigger society. You began to-really
look at the fellow when he said he would extend
the time for pleading for thirty days. You had to
look at him to be sure he was an honest man and
wouldn’t go down there and get a default.
You feel you had more contact with other counsel
after the Rules?
Oh, absolutely. It became so big, and,
furthermore, you began to travel. I got involved
in trying cases for the National Football League.
I became trial counsel for the National Football
League and I tried that great antitrust case filed
against them in Philadelphia. 6 I was the chief
trial counsel, young as I was. So this was a whole
different thing. It just wasn’t the same any
more.
6 United States v. National Football League,_116 F. Supp.
319 (E.D. Pa. 1953)
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Did you personally have a hard time making the
switch? Did you say, Thank God, or did you say, I
have all this learning that’s useless now.
I wasn’t aware of it. I didn’t pay any attention
to it. My task was two-fold. I don’t know
honestly which was more important. I believe that
vanity was probably the overwhelming motive of my
attempts to establish a position at the bar.
Although I may be romantic about that — chat’s
not romantic — I may be in error, because I
needed the money. I had an economic necessity to
make a livelihood for myself and my children. My
parents had nothing. I was helping support them.
At that time I was helping others in my family
too. God knows some didn’t have anything at all.
I was the only one who was making any money, so
this was important. Nevertheless, despite the
importance of that money, I always wanted to be a
recognized lawyer of ability and position. Now
this is vanity, because you shouldn’t really care
about that. As long as you do honestly what is
the best thing for your client, that is -?upposed
to be all there is to it. But there is a lot more
to it. So these two things drove me pretty
strongly.
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So your attempt to gain stature was through your
work? What about active participation within the
bar association?
Oh, yes. I always wanted to be president of the
bar association.
We talked about possible prejudice in a variety of
aspects of life. Did you find the bar to be more
or less open?
I found the bar to be open professionally in the
bar association but closed socially at that time.
The Barristers, no Jews.
The Barrister is the social adjunct to the
The Barristers Society is a group of local lawyers
who never had a Jewish member until sometime a
few years ago when they started taking Jews. The
Lawyers’ Club of Washington — not the one on 8th
Street — I was the first Jewish lawyer ever taken
into the Lawyers’ Club. That you shouldn’t say
with pride, although I do because afterwards there
have been other Jewish lawyers taken in. These
are all adjuncts. The Vinson Club which was which
is now gone –. [It was called that] because
Chief Justice Vinson and then his successors all
the way through Warren Burger each year invited a
group of lawyers to the Supreme Court, where they
had a big formal dinner. There was never any
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anti-Semitism in that. But that was a high social
honor. So far as I know there was never any antisemitism.
When I was invited to those dinners, I
could look around and see other Jewish lawyers,
but, like I say, this went out pretty much after
World War II. It changed. But as far the bar
association itself, maybe friendships based on
social contacts that were largely free of Jewish
participants may have had some effect, but I
wouldn’t know that, and I would say I never found
anybody in the bar association or the bar as a
whole to be anti-Semitic in attitude, even in the
early days. There were some anti-Semites but I
don’t think they exercised that attitude towards
lawyers. Now, there were some Jewish lawyers who
were pretty odd people, and they were objects of
derision not only among non-Jews but among Jews as
well, but I don’t think that to be anti-Semitism
at all. I am really very proud of the bar here in
saying, so far as I know, there has never been the
same kind of anti-Semitism, even early on, except
in those special societies as was exercieed
elsewhere. Now the Barristers like the Chevy
Chase Club never took any Jewish people, but they
do now.
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What early committee work did you do? Is there
anything we should be discussing about your early
I don’t think so. I was on so many committees,
just about all of them, except special committees
on patents and radio and communications. I never
did any of those things, but [I did serve on] the
regular committees related to the courts. I think
the most difficult one was the Committee on
Administration of Justice. I’m very proud of my
part in that. At that time there was a young man
named Donald Santarelli in the Department of
Justice who had an edict from high government
officials to have the District of Columbia
Judicial Reform Act passed. That was a total
change. This is what changed our bar markedly, as
well, when the old Superior Court, formerly the
Municipal Court, known for a while as the D.C.
Court of General Sessions, was changed to its
present unlimited plenary jurisdiction.
Help me with this. Is this the early 1970’s
change, or is this an earlier change?
I think this is in the Seventies. It seems to me
it is. Yes. Absolutely. Because when I was
president of the Bar Association, the president of
the new D.C. Bar was Barrett Prettyman. We had
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the Bar Association of which I was president put
up the money to get the D.C. Bar started. In
order to do that, when we put up the money, I went
down to the Court of Appeals in the District of
Columbia and got an order in which the advance was
created as a first lien on all the collection of
the dues of the D.C. Bar. We wouldn’t put up the
money without being certain that we would get it
back. So this was in the early Seventies; the
D.C. Judicial Reform Act. I was chairman at that
time it was put up to the bar association to
decide whether the bar association wanted this
act. I was chairman of the Judicial
Administration Committee and we had a huge
meeting, several thousand lawyers. I was pro.
There was a lawyer who has since disappeared. He
was of Irish ancestry, Tim something or other,
very charming and attractive man, great talker,
and he opposed. And the bar voted, not
overwhelmingly, against the Judicial
Administration Committee recommendation. As a
result of that I was asked to head up th,e
Committee of Judicial Administration of the
American Bar Association, which I refused,
{although) maybe I should have accepted.
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This was before you were president of the D.C.
Bar.
Yes. I had had this great criminal case, Judge
Bill Jones. It was a capital case, first degree
murder, and he had been chairman of the Judicial
Administration Committee. When the case was over
he asked me if I would take on the chairmanship,
and that’s when I told him no. I told him I
didn’t think I had sufficient stature. Most of
the members of that committee were judges, some of
them served on circuit courts of appeals
certainly men of, I felt, and still do, far more
stature than I. I said nobody is going to pay any
attention to me. I just think this is kind of
foolish. You are totally wrong, he said. I said,
well, okay, but I won’t do it, and I didn’t. That
was a great case, the Naples case. That was a
criminal case, first degree murder.
And that’s late Sixties?
Yes, that was the late sixties, also when I had
done so much with Santarelli for the D.C. Reform
Act.
So you have always done some significant criminal
law?
Everything. I’ve done whatever case came to me.
Well, that Naples case was appoint?d by the court.
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The way I was appointed to that was my wife and I
had dinner with Judge Matt McGuire and his wife,
Eleanor. He was a great wine guy. I’m a whiskey
guy, but I drank wine that night. We had a
wonderful time, and two days later I got an
appointment to the Naples case. This was before
the Criminal Justice Act. And I took six months
out of my life for that case without anybody
paying me anything.
I take it this was something that would have been
possible for you to decline. Is that right?
Oh no. You could, but it would have been
unprofessional. The Supreme Court said so when
the Court-appointed lawyer in the Scottsboro case
wanted to refuse.
Just looking at the reported cases, there were
some other court-appointed cases in the Fifties
that show up, a rape case, the Mason case, which
got overturned, and a grand larceny case.7 I take
it all these were cases that you felt obligated to
take.
Yes, yes.
And I imagine a rape case that went off on appeal
must have been another, great time-consuming . . .
7 Mason v. United States, 193 F.2d 23 (D.C. Cir. 1951};
Tribby v. United States, 244 F.2d 772 (D.C. Cir. 1957}
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No, that wasn’t. I didn’t try that case. That was
tried by a lawyer whom I thought had done a lousy
job. Judge Fahy decided that case in the Court of
Appeals on the basis that the man had been denied
a chance to testify on his own behalf, contrary to
the provisions of the federal statute, rather than
based on the ground I had put in the brief,
constitutional failure to have effective
assistance of counsel. He didn’t want to say it
was unconstitutional. He dug up the federal
statute. I didn’t even put it in my brief. I
didn’t know there was such a statute. But he
found it. That was Judge Curran’s decision below.
When it came down Ed called me up, and he said,
Buck that’s my nickname — congratulations! I
said, For what? He said, He just reversed me. I
said, Well I haven’t seen it yet.
That’s admirable to have that kind of relationship
between the bench and the bar. I know that in the
case of Curran you have a personal relationship,
but I can’t imagine that happening today.
He taught me to genuflect so I could be groomsman
at his wedding, at the Catholic University.
That’s wonderful.
All these great things, I’m sure they happen
nowadays, but I’m not aware of it. – The young men
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in our office have no relationships at all like
that, nothing like that.
I think today it would be odd to find someone who
had as significant trial experience as you have
and also quite substantial office practice. I say
this about your office practice strictly from your
authorship of the Business Corporation Act, if
nothing else.
That was a bar association activity. George Monk,
Roger Nelson, and myself, and a man named Milton
Hartley, an employee of the COURT Corporation
System, worked on this for years. We wrote the
Act based on the Illinois act, which was an ABA
model statute that had been changed some in
Illinois. We changed it a little bit. When World
War II came along a new man was introduced into
the activities, named Philipson, and he got
Gesell, now a judge, who had some contacts with
Senator Townsend of Delaware {maybe that’s not the
name, but the Delaware senator), who was blocking
this, because he felt it would interfere with the
business done by the corporations in De?aware if
we liberalized our D.C. corporation law. Gesell
was chairman of the committee when the law was
passed, {I think I was in the Navy at that time)
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but we wrote it, George Monk, Roger Nelson, Milton
Hartley and I.
You mentioned the obstructions of the Delaware
congressman. What about local businessmen? Were
they interested in this at all?
No, really, this was mostly the bar, mostly the
bar. We needed this corporation law because it
was so difficult to incorporate in the District,
and it was getting to be expensive to do out-oftown
corporations. I did them.
So that is what most people did? They would
incorporate out of town? Was there any
significant dissent or objections to the new act?
Did you have to put up with any opposition from
within the bar?
No, it was rather abstruse. I mean, people really
didn’t care; it was a matter of custom. You went
to Delaware or New Jersey or some place. Under
District law you had to have all the stock
subscribed for, which was impossible.
This is another example where the federal
oversight of the District is pretty significant.
If you could have something as important as a new
incorporation act being held up by the objections
of the Delaware senator . . . Did you make any
conscious . . .
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NORDLINGER:
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You noticed I remained silent there.
Obviously. You basically liked the oversight?
I feel that our government was far less expensive
in total cost and far more responsive to the needs
of the citizens of the District before we were
subjected to local politics. I think what has
happened to our city is disgraceful. But that’s
not relevant to the practice of law.
Well, let’s see. It is practicing law if you
think it has a consequence for the administration
of justice?
I’m not sure it has any effect on the
administration of justice. I think violence in
our cities is nationwide and that nothing that we
can do in specie can do much about it. You have
heard people talk about the need for education,
the need for social work, greater opportunities.
All of those things are true, but there is so much
of it, crime, poverty and disease that I’m not
intelligent enough to know what to say about it.
I’m talking about cost of city government. I’m
talking about administrative delays, the
bureaucracy that confronts it. And it may be that
this lady Sharon Kelly may have some effect on
this.
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That aspect is something you can tie to your
practice. Certainly anything involved in real
estate . .,now, I take it, that remains a
substantial.
Oh yes, that remains a substantial part of our
practice.
I don•t·want to leave the Corporation Act too
quickly. Was there any conscious innovations that
you think are important that you made to t-he
Illinois act when you wrote the District act? Do
you think it was pretty straightforward?
Yes, it was. We tried to write into it something
that wasn’t there before, to deprive parties not
participating in the oppressive aspect of usury
of the opportunity of using it as a defense in
corporate obligations. We went a little way, but
later on there was an amendment that went the
whole way to make defense of usury not open to
corporations. Since then the usury laws have
changed considerably, due to the fact that we had
such a huge amount of inflation, and the interest
rates went up so high. The federal government
passed some legislation, which was national in
scope, that made it appropriate to charge what the
federal banks could charge.
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I saw some place you had American Security as a
client. Did this provision grow out of your
practice at all? Did you see that defense raised
in some cases and
Yes, but that didn’t grow out of my banking
experience. I had been connected with financial
institutions ever since I can remember. In fact I
was president of Citizens Savings and Loan
Association, which became Citizens Federal Savings
and Loan Association, and then merged with
Interstate Federal Savings and Loan Association,
which went out of existence when it merged with
Perpetual, which has now gone out of business. I
had also been a director of the Union Trust
Company, a director of Union First and then First
American — No, I guess I resigned from Union
First when the Federal Trade Commission held that
dual service as a banking director and a director
of a savings and loan was a violation of the
Clayton Act. I resigned. Then they changed the
rule, and I felt I had given up a rather lucrative
source of income. However, we are still._doing a
little work for First American. I’m not doing it,
the firm is.
Let’s get back to one of my favorite things. And
I think this is probably the greatest change that
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has occurred in the practice of law in the
District of Columbia. I may be wrong and others
may differ. When I came to work for Milton this
book, the size of a Gideon Bible, was the D.C.
Code. And this was the copy of the rules of the
Supreme Court of the District of Columbia in 1932.
This is all we had, except the decided cases. Here
are the rules of the police court in 1927, which
were still the rules when I came. This is the
standard probate work, here’s his name on it.
I’ve got one, but I took this one out of the
library because I want to show it to you. This is
the work on how to probate a will, administration,
caveats, written by men named William Taylor and
David Baer. David Baer’s grandson is now a
partner in the firm. His name is Luchs, Roger
Luchs. His mother was Barbara Ann Baer, who
married Wally Luchs, formerly a member of the
firm, now deceased. Now you can see by looking at
the size of this Gideon Bible, and the size of
this small folder of rules what’s happened. There
were no comments on the D.C. statutes except this
book, the size of an ordinary novel, Mooer’s
Annotations to the District of Columbia Code. And
this one is 1932. Now the next change came in the
1929 code so called, but that wasn•-t available for
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several years. This was a compendium done by the
United States to bring the statutes up to the date
after the 1901 act, which had enacted the Code.
It has in it a lot of things that aren’t law: old
English statutes, Maryland statutes that had never
been repealed, and so on. Now, since then our
Code has become about 14 volumes and comments are,
fourteen or eighteen volumes. When I first came
into Milton’s office the job was to read this
Gideon Bible from cover to cover, and I did it two
or three times. The job was to read the decisions
of what’s now the United States Court of Appeals
of the District of Columbia. There were about,
how many? Thirty, forty volumes; you didn’t read
everything, because there were patent cases, but
you went through them, and found out what was in
them, and you kept your own book on decisions
elsewhere. Now, there is no resemblance to the
knowledge that was then available. The lawyers
would meet at lunch and talk — all kind of
lawyers; they never do that anymore, anywhere
in the restaurants around 15th & H or down, around
the courthouse. They never do it any more. So
nobody exchanges any information at all.
There are number of ways to take this point. You
started by mentioning that you haven’t done
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anything scholarly or written anything. I take it
that one of the things you liked about the law was
this intellectual engagement?
I suppose. I suppose.
What do you miss not having lawyers talking about
cases?
You lack information. You lack an ability to know
aspects of problems of which you were not aware in
your own thinking and your own study. You learn
from other people, and you have no source of
learning at all except in your own office. And
now a little office with two or three lawyers is
not able to produce any kind of discussions like
that; everybody is too busy. Here in this office,
where there are about ten people, everybody is too
busy to talk. It’s all a question of computer
time, and records, and all that sort of stuff.
The young lawyers have got to produce so much
money and all that business, so sure it’s
different. Before, we would go to court and walk
back from the courthouse to 15th & H, take a walk
along F Street. Nobody ever thinks about that
[today]. You take a subway, or you take a cab.
Nobody does that. If we knew about a case, like
when Mr. Hogan was trying a case, I went down
there to listen, sat in the courtroom and
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listened. Nobody thinks of doing that. I tell
the paralegal who goes to school at night, Mike
McMenamin, I said, Mike, the next time you go down
to court, stop in one of those courtrooms and
listen to what’s going on. He said, Oh, Mr.
Nordlinger, I don’t have time to do that, and he
doesn’t. Because the man he’s working with wants
to know what did you do there, what did you do
there.
It’s pulling teeth to get even our students who
are there during the day to go to the courts, and
we 1 re within walking distance to all the courts. I
can see how that is something you regret. And you
find the bar association can’t be a substitute for
that.
I find that the bar association of the District of
Columbia is no longer the center of activities of
lawyers. The D.C. bar, unified with required
membership, is too big. The D.C. Bar is a
senseless organization, because its membership
consists of lawyers in California, Connecticut,
Texas and Michigan who never come to the.District
and never have anything to do with the District.
The cadre of lawyers who practice here also
practice in Maryland and Virginia. Now if they
belonged to the Bar Association of the District of
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Columbia, and the bar association of Virginia, and
the bar association of Arlington County, the city
of Alexandria and Montgomery County and the city
of Rockville, they would go broke, so they have to
belong to the D.C. Bar. They have no desire to
participate in the bar association activities,
none whatever. Half the people in this office
don’t belong. We probably have a membership in
the bar association of the District of Columbia of
maybe four or five thousand, six thousand. The
unified bar has all these forty or fifty thousand
people, and they brag about it, but they are not
really members. They just have to pay dues, but
they are not really members. This centralized
system of looking at older and more successful
lawyers and wanting to be like them has been
eliminated from the lawyers’ thoughts. When I was
young and coming along I had great ambitions to be
like so many lawyers. Well of course the truth is
you can’t be like anybody; you have to be like
yourself. But you do have to have ideals, ideals
of practice, ideals of conduct, and if you have
none you’re lost. I believe the bar today has
none, except what is codified in the code of
professional responsibility, and that’s really not
meaningful in everyday life. There was a book —
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now you’re asking me to talk I’m going to talk
written by a man named Robert Ruark who was a
reporter for the Washington Star, now out of
existence, called Something Qf. Value, which was
about the Mau Mau uprising in Africa, the point of
which was that when the white men went to southern
Africa and subdued the Negro tribes they took away
from the Negroes their belief in their ancient
gods and in the ancient mores of their ancient
society, leaving them nothing of value to which
they could subscribe, because they couldn’t
believe in the white man’s religions, whatever
they were. A white god coming to earth, or
whatever. They didn’t picture religion that way,
so they needed something of value and had nothing.
Their ancient religion had been eliminated, and
now they have nothing. That is what caused the
violence. He may be right or he may be wrong, Mr.
Ruark, but I feel it is perfectly true that?
bar today needs something of value to which to
subscribe in terms of personal action and personal
conduct. and it has nothing.
And it can’t be just rules or even just general
faith; it has to be faith personified.
Absolutely. It’s more than a rule of conduct.
It’s an ideal of looking at a lawyer and saying:
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If I could be like that! Look at what he said to
the judge! Look how he handled that! Nowadays if
a young man sees an old man do something he
doesn’t want to do it the same way. He wants to
change it, whatever is there is not good. It must
be changed. What’s new is better than what was
there. Sometimes it is, but simply because it’s
new shouldn’t be the reason for changing it. It
should be considered carefully. [That’s cruel
with the social or human aspect, the ability at
the bar to mingle, even with the judges. The Bar
Association of the District of Columbia used to
have an annual outing, and all the judges came,
and they would mingle with the lawyers. It was
always a bar that acknowledged the bench was
distinguished from the bar, but always with a
desire on both sides to know each other better.
The judges would drink with you, and they would
watch the ballgames, or play golf, whatever. Some
of them would even play baseball. That’s all
gone. The annual dinner of the bar association
was the great event of the year. We would have a
thousand or fifteen hundred — I can show you a
picture when I was president of the bar
association and we had fifteen hundred people.
Last year was one of the biggest dfnners, the
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unified bar ever had; only 600 people attended,
many of them were invitees. The annual dinner in
honor of the bench was the great event of the
year. The law firms would get rooms upstairs, and
when the dinner was over you would go upstairs and
get drunk. Well, it isn’t good to get drunk, but
very few people got drunk, a few rummies did but
most of the people circulated around [talking]
with each other, and the judges did too.
The judicial conference is too structured to have
that effect?
The judicial conference is too small. There are
only about two, three hundred [participants], if
that many. That’s wonderful. The judicial
conference is a great experience, but it’s
limited. The best thing about the judicial
conference is the lawyers and the judges are
talking with each other on a level not separated
in any way except mentally by the bench and the
bar. But today there is an ethical rule against
taking a case unless you feel totally qualified to
handle it. Well, this is British, not A,merican.
In America, lawyers have somebody (a client} ask
them to help, the lawyer tried, and he looked it
up, and he did the best he could. He talked with
older lawyers, sometimes who would help him, who
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were delighted to help, great men like Robert M.
Miller, one of the great tax lawyers. I had a tax
case one time, I didn’t know what to do with it.
It was so big and so cumbersome. So I went up to
his office; it was in our building. He was a
wonderful man. Miller and Chevalier is the name
of his firm. I went to see him, I had an
appointment. I said, Mr. Miller, I would like to
ask you to become associated with our firm in this
case. I am at loss to know whether or not I’m
doing correctly. Well, he said tell me what
you’re doing. So I told him; it took about an
hour. He said, I think you’re doing fine. You
don’t need anybody to be associated with you;
you’re doing just right. You just keep on doing
it that way, and everything will be fine. Nice
man. I said, Thank you, sir. I would like to
have a bill, and I’ll see that it’s paid. He
said, I wouldn’t think of it. He said, I’m glad
to help, and we shook hands, and I started out the
door. I was so grateful to him. As I got to the
door he said, Bernard, just a minute. I said,
What? He said, I want to tell you that the way
you’re learning the estate tax laws is like
learning to play a violin on a Stradivarius. So
that doesn’t happen any more. If r-were a young
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lawyer in our firm (virtually unknown), I couldn’t
go to see — let’s say, well, who’s at the top of
the heap? Doris Blazek, who is the head of the
estate tax planning division in Covington and
Burling, or John Bixler at Miller and Chevalier
and talk to them that way. [END OF TAPE]
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Part II
January 30, 1992
Mr. Nordlinger, I would like to start today by
going back to biography and talking about your
reactions to the outbreak of World War II and what
lawyers generally thought in Washington at the
time. When it broke did you anticipate having to
go in service?
Yes, when Roosevelt required mobilization·before
war was declared I went down to the Department of
Commerce Auditorium, I think it was, where the
national drawing was held, where Secretary of War
Stimson drew out the first numbers from a huge
glass bowl. The numbers had been assigned to the
people who were registered throughout the nation.
Those were millions of numbers, of course, and had
no relationship to the identity of the person who
had registered. It was just the number that was
important because the same number was in various
jurisdictions. It was a question of organizing
mobilization for service. I had two children at
the time — this was done in ’39 or ’40 — and I
had two children and was married and also was
helping support my parents and nobody ever thought
I would ever have to do any service. Moreover, I
was thirty years old in 1939. I was born in 1909.
Who would think a thirty-year-old father with two
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children would ever be called for military
training? However, when war broke out things
resulted in a tremendous feeling of personal
involvement on the part of not only of citizens as
a whole but the bar and everyone else. And when
you saw uniforms all around you, you felt like you
were not doing your part. Now nobody wants to
give up a personal opportunity, but you
nevertheless have an inner feeling of sort of
guilt of not participating. However, when I
observed Secretary Stimson draw those numbers my
number was the seventh drawn in the entire United
States. Accordingly, I was number one in my draft
board for assignment to be called up when fathers
were to be reached. Well even that didn’t mean
that I was about to be drafted, but war and the
entire mobilization of the country proceeded under
propaganda that is hard in peace time to
understand. I guess you’ve seen it in other times
and other places. But never like World War II.
People just invited soldiers and sailors and the
military to come to their houses, total.?trangers,
for meals. It was just a very difficult time.
And I was getting terribly uncomfortable. I was
doing extremely well financially in the relative
sense, and I paid off my mortgage on my house in
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the summer of 1942, and I was feeling terribly
guilty. I didn’t owe anybody any money, and I had
a good law practice, which I didn’t want to leave,
and my wife and two children, which I didn’t want
to leave. Here I was, torn by a knowledge of
obligation to my family, my mother, my father, who
were aged people, and so I didn’t do anything. I
was suspended between desire to participate and
desire not to participate. Fear of personal harm
didn’t enter into it — among the lawyers either.
Lawyers would talk about it at lunch: Are you
going to do anything? It was a terribly feverish
period of time for ordinary people. I had the
knowledge that my family had always been in
national wars from the time of immigration in the
1850s. Everybody had taken a turn, and some had
lost their lives, and some had been seriously
wounded, but everybody did his job. Therefore I
was feeling that maybe I wasn’t doing mine. One
day on my way to court, I walked out of the
Southern Building, and Herbert Bingham, a local
lawyer, older than I, the chairman of my ?raft
board stopped me, and he said, Look, if you don’t
get yourself a commission somewhere you’re going
to be drafted in a month or two. I said, What!
He said, that’s right. You’re numoer one. Which
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NORDLINGER:
I knew I meant number one in the draft board,
because I was number seven drawn nationally. So
on my way back from court I stopped by the Office
of Naval Officer Procurement. I didn’t say
anything to anybody. My wife and I had talked
about it; I was fearful of what my parents would
do. I walked in there, and I took my clothes off
and took an examination. I won’t go into what
happened after that except to say that thfs was in
December of 1942, and I was accepted and
commissioned in the Navy and reported for duty in
April of 1943. And I had a non-heroic experience.
I had the satisfaction of doing what I was told
and doing my part. But this was such a huge
thing, and I didn’t have very good eyes, I didn’t
get into combat, and I did a lawyer’s job, and I
did my part. There was no influence used of any
kind. Whatever came along I did, and I feel
gratified that I did it. I learned a lot about
people. I learned a lot about wars, I learned a
lot about everything.
Were you stationed here?
Part-time, but I was also stationed all over
different places in the United States, and I had
some duty on some of these ships. But all in all
I didn’t suffer any great personal harm. Of
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course I lost a lot of money, and I’m glad I did,
because that’s as close to heroism as I got. The
rest of the lawyers that I knew were doing the
same things. Some became heroes, and I admired
them tremendously for what they had done.
Any specific examples?
NORDLINGER: Well yes, Fred Ballard was in the Navy. He was a
friend of mine and in about the same kind of
position I was in. We both had been accepted in
the intelligence service for service aboard
aircraft carriers, and he got caught in one that
was torpedoed off Savo Island. He had to jump off
the stern of the Yorktown, and I felt that he had
really had a bad time when the ship was sinking.
And another one Murry Preston had a torpedo boat
and got the Congressional Medal of Honor for
having gone into one of those places between
Guadalcanal and the Philippines and picked up some
downed airmen under heavy fire from the Japanese,
and I admired him no end. As a matter of fact
there is a man here8 now who was an aviator, he’s
still here. He was a hero, Robert B. Fra?k, in
the China, India, Burma theater. There’s a Marine
officer who has just retired from Hogan & Hartson,
Jack Ross, who got the silver star for service in
8 In the firm of King and Nordlinger.
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the Marines in Guadalcanal. Those people were few
and far between, because the lawyer who had
practiced and who was mature I’m not talking
about the young lawyers, because they were barely
known. But after all, in 1943 I was eleven years
a lawyer, and three years before that deep in the
middle of the practice here in the much more
simplified manner in which the practice was
carried on then, so I was pretty experienced when
I went into the Navy. With respect to the bar as
a whole, I think my experience was pretty
indicative in general of what other lawyers of my
age group did. And everybody felt satisfied that
at least we had done it. And we came back and
picked up again as best we could and went on.
Any lasting influences? You mentioned gaining
personal insight in . . .
Yes, lasting insight in terms of personal
education, broadened horizons. There were two
kinds of broadened horizons, one social and one
intellectual. The social experience I had with
people that I had never had anything to do with
before, because my life here had been largely in
the District. In going into other communities and
other places I met people the existence of whom I
had no knowledge of at all. Also the Navy
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personnel came from all over, and I got to be
close friends with people that I never would have
known. So those were social horizons that were
increased. Intellectually, I was finally put into
a termination program in which I negotiated
settlements of termination, claims resulting from
the War.Powers Act. I went to school at the
Pentagon for about — oh, not very long, a few
months — to learn some basic accounting and some
military service rules regarding application
because I had some accounting in college, not
much, but some. So I had a lot of experience
negotiating settlements and contracts involving
large sums of money. I learned about
manufacturing procedures, I learned how to read a
balance sheet and to understand a profit-and-loss
statement. I learned a lot about finance, and
this was an intellectual experience that I never
could have had, had that not happened.
It seems you had developing that sort 0£ expertise
on your mind before the idea of your war service,
because you went and got a master’s degree in tax
at Georgetown. Did you think in the early ’40s
that this was something you had to work on to
develop your practice?
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NORDLINGER: Not what I’ve just referred to. What I did in
terms of further education at Georgetown was to
try to learn more about the academic aspects of
the rules of taxation, because we were doing
probate work and needed to employ people who had
some expertise in estate-tax work and gift-tax
work. You see, the gift tax was not imposed until
1932, and we had no training in law school at all
in this. There could have been some training in
taxation, that I could have had in undergraduate
school at George Washington, if I had thought
about it, but I didn’t think about it, because our
practice just did not involve that, and the estate
taxes were not heavy, anyway. However, I did a
little work in that field even then by writing a
law review article on “Applicability of Federal
Estate Taxes to Tenancies by the Entirety Created
Prior to 1916.” This was in 1 Geo.Wash.L.Rev. of
which I was one of the founding members. At the
end of two years of law school at night I was
number one in my class so Professor Chesterfield
Oppenheim asked me to be one of the first .groups.
The reorganization of our government, the huge
expansion of government, the preparation for war,
the furnishings of war materials to abroad caused
us to have an enormous increase in the tax rates.
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Taxes became a heavy impetus to economic progress,
and if you didn’t know about taxes you were lost
in a probate case of any size, and we were
beginning to get some pretty big ones. So I
needed the training, and that’s why I went back
for taxes, but I had no idea that ultimately I
would get into what I did. I finally got into
mergers and acquisitions on a huge scale because
of what I had learned when I was in the service
about balance sheets and interpretations and all
that sort of thing. I became a banker, I became
president of a savings and loan association and
handled a merger with a big one and went on the
executive committee and was general counsel for a
big one. I went on a bank board, and then I got
to be chairman of the trust audit committee of the
bank board and became fairly proficient in the
rules of the comptroller in trusts, which is
something nobody knows about unless you’re
involved in something like that. Now all of this
was based on a number of things. First of all, a
general experience in the Navy. Second, ?pme
knowledge of taxation and what I learned in those
courses. I had some superior opportunities to
learn from men on that faculty, and this was
generally known at the bar. With deference to the
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NORDLINGER:
great reputation of Georgetown University, the
best undergraduate law school in this area at the
time I came along was generally considered to be
George Washington. The post-graduate law school
was supposed to be Georgetown. Men on that
faculty were enormously able people. Barrett
Prettyman, Judge Prettyman, who was one of my
Professors. In the Court of Appeals later, I had
an argument on in the Snow9 tax case (the biggest
District of Columbia tax case ever decided here up
to that time} — Well, I guess that’s not
important to the history of the circuit-court.
Well, let’s talk about that.
I’ll come back to that. In the argument I
proposed two reasons why the decision of the tax
court was erroneous. When I got started on the
first one, Prettyman interrupted and said, What’s
the matter with that? Why do you need anything
else, and I said, Well, your honor, I’ve learned
not to argue with judges or law-school professors,
because if you do you’re a dead loser, so I quit
and sat down. Well, he had a great ming.. He was
a wonderful man — a terrible golfer, but a
wonderful man. I know his son Barrett very well.
He was my opposite number when I was president of
9 Snow v. D.C., 361 F.2d 523 (D.C. Cir. 1966}
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the bar association and helped furnish the funds
for the organization of the unified bar. He was
the first president-elect of the unified bar, so
we had to work closely together, and we got to be
very good friends, and he knew about my
friendship, really my high regard, for his father
and we have stayed friends. He told me at a
dinner we went to last Friday night that he had
just finished arguing his nineteenth case•in the
Supreme Court. He was the law clerk for Justice
Jackson, I think, at the time of Brown v. Board of
Education and Bolling v. Shar:pe. So now to get
back — Shall I go on? How am I doing?
You’re doing swell. I am interested in how you
picked up your practice when you came back from
the war and also how you expanded it into all
these new enterprises.
I became an antitrust trial expert for several
reasons. One was the football business.
Antitrust suits were flying just all the time, and
I was doing a lot of that. In addition to that,
my immediate superior in this navy termination
group was a man named Pickett L. Warren, an
electrical engineer, a high-type man, a wonderful
person. We got to be very good friends. Later he
wanted to acquire his total interest in his
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company, which was Royal Electric Manufacturing
Company, and I helped him with it. It was quite a
task of corporate reorganization, based on
acquisition of the shares of a corporation by the
surplus of the corporation managed to be created
by virtue of revaluation. Now this goes back to
my thesis when I was in Georgetown Law School, the
title of which was “Federal Income Tax Aspects of
Transactions by a Corporation in the Share of Its
Own Capital Stock. 10″ That’s what I did for Pick.
He was transported, and, of course, he had
expanded his company. I became general counsel.
He wanted me to go on the board, but I wouldn’t,
because he was in Chicago, and I was here.
And you felt you would have to be traveling too
much and be too far away from control of your
practice?
NORDLINGER: My practice was here, my home was here, but if
something important came up he would call me and I
would go out there or he would come here or
something. But to go on the board of the company
with regular monthly meetings and to focus.on his
financial problems and all that — I didn’t want
10 Bernard I. Nordlinger,”Federal Income Tax Aspects of
Dealings by a Corporation in Its Own Stock” (LL.M.
thesis, Georgetown Law School, 1942}, Special
Collections, Edward Bennett Williams Library,
Georgetown University Law Center.
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to do it. I didn’t want to do it for two reasons.
First, it would take me away a lot, and, second, I
didn’t want to charge him the money that it would
have cost. He was building himself. Well, that
company was a member of what was known as the
Electrical Manufacturers Association — that’s
not the.correct term, but it’s something like that
— which had a meeting in Philadelphia in
connection with the award of contracts by·various
companies on public bidding. Of course I didn’t
know anything about this until all of a sudden the
so-called Philadelphia antitrust indictments came
down. Well, Royal Electric was not named as a
defendant, but it was named as a co-conspirator.
Because all of those companies eventually settled
by pleading guilty or nolo contendere or
something, law suits were then filed against them
and the conspirators too. Royal had twenty-six
law suits filed against it in federal courts from
California to New York. There were six in the
southern district in New York, and I picked up all
those cases to defend. Pick was absolutely at a
loss, because here he was faced with serious
charges running into hundreds of millions of
dollars, and his credit was shut off by his banks,
and he didn’t know what to do. He couldn’t pay
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lawyers the huge amounts that would have to be
paid. Even at that time it was a lot, but today it
would be many millions. Then it would have been
many hundreds of thousands, and that was equally
impossible for a man like that. So I did it, and
that’s when I found out so much about the New York
bar. I had no office in New York. I had no close
connections in New York that I could impose on by
using their office. The federal rules require
that you have an office in the district in which
you appear or associate yourself with someone
there. I didn’t even want to associate myself in
New York law offices. God, it would have been so
terribly expensive. So I prepared motions to
dismiss, and I went up to New York in the offices
of several of these law firms, great ones, like
Sullivan & Cromwell and Hughes, Hubbard & Reed and
other firms that were involved, including the
Handler firm. To each plaintiff’s lawyer I said,
look here’s my motion to dismiss. We would like
for you to look it over. I don’t expect you’ll
agree with it, but if you think it’s a g?od
judicial position, and one which has at least a
50/50 chance of being sustained, and if you think
after argument of the motion the court might grant
this, I would like you to let me use your office
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address as the place where papers can be served.
Every damn one of them said okay, because it was a
good motion. I knew what I was doing, and every
one of those motions was granted. Now, the same
thing happened in the western district of
Tennessee. Cleveland — Tennessee — never heard
of it! The ninth circuit, out there in
California. I did that everywhere, and every one
of those motions was granted, although several
were not, but before I had to get lawyers, they
disappeared because the principal defendants
settled. There was one in Puerto Rico that was
settled by General Electric, and I didn’t have to
do anything about that before the motions were
granted.
In preparing this motion did you work or consult
at all with the attorneys for the defendants or
the other co-conspirators?
Oh no. I wouldn’t; no indeed I didn’t. Because
they were all guilty. I mean most of them were
guilty, and I would say there was a considerable
degree of guilt that could have been attributed to
Royal for just having gone to the bloody meetings,
because they knew what they were about. The
reason why I felt they were innocent was that they
never submitted bids to any of these places. The
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contracts were too large for them to do by
themselves, and they weren’t important enough to
associate with General Electric, my goodness, or
Westinghouse, so they really never did anything
except_show a willingness to participate. They
knew about what was going on, and they would have
been delighted to make some money out of it,
except they never did. Where was the overt act
alleged? The agreement to participate in”the
conspiracy, but so far as I could find there was
never any overt act or actual commission of any
particular thing that could be considered to be a
furtherance of that conspiracy, and on that theory
I got them all out. I got rid of them. This was
on interrogatories, and all the rest of the stuff.
So it was a good job. After that was done, I got
into some other antitrust cases, and I won here on
reversal against the firm which was then Mayer,
Mayer, Austrian & Platt in Chicago, which has now
become Mayer, Brown and Platt, I think. This is a
huge firm, and I brought a suit against the
National Automobile Dealers Association for the
old automobile blue book, which was, I forget the
name of it, it wasn’t called the blue book.11
11 National Used Car Market Report v. National Automobile
Dealers Association, 200 F.2d 359 (D.C. Cir. 1952)
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Who was your client?
The blue book. I sued the NADA, the National
Automobile Dealers Association, which was a
tremendously powerful company, and the other
organization was the National Automobile something
or other. The NADA published a yellow book in
competition with the blue book, and they joined
their requirement for membership with a
subscription to the yellow book. You had·to
belong to the NADA if you were an automobile
dealer; too much common information was passed
around. By adoption of the rule that the member
had to subscribe to the yellow book, they in
effect made it unnecessary for the members to buy
the blue book, so the blue book sued them for the
monopolistic act of requirement of a tying
contract, which was then the word of art. {It is
not so popular any more but it’s still a valid
antitrust claim.) And I brought a suit against
NADA here in the District, and that Chicago firm
represented the NADA, and they got a motion to
dismiss granted on my complaint before Judge
Bastian, who was then sitting in District Court
before his promotion to Circuit Court of Appeals,
and I appealed. Judge Edgerton wrote the opinion,
I think. I ‘m not sure about that, -but I think it
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was he. It was a pretty learned opinion. Leo
Tierney was the lawyer from Chicago that argued
that, and they had a specious pseudo-intellectual
point that Judge Bastian swallowed hook, line, and
sinker, because he didn’t know anything about
antitrust, and therefore the other fellow was more
likely to be right than I was. It was that [I had
made] no allegation of any fact from which it
could be determined that the public interest was
in any manner affected by the tying contract of
the NADA. Well, of course, the very violation of
antitrust law is a damage to the public, so this
was simply specious, and the Court of Appeals said
so in its opinion and reversed it. After it was
reversed, I got it settled. Well, that was an
important case at the time. It may not be so
important now. But it effectively eliminated the
need for allegation of public injury in an
antitrust complaint beyond a clear violation of
the antitrust law. The allegation of damage
sustained was a matter of proof and had to be
established at trial, but it followed from a
violation of the antitrust law that the public had
been damaged. You didn’t need to say that
automobiles cost more, because that’s something
you can’t prove.
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Now, we’ve talked about some antitrust cases that
you got dismissed and one you settled.
Well, I tried one. I tried several. I tried the
one in Philadelphia.12 I tried one in Baltimore
when I can’t remember who sued, but it was
(through Semmes Bowen & Semmes) and Bill MacMillen
was my adversary. He had represented Whittaker
Chambers against Alger Hiss in the Pumpkin Papers
Case. He was legendary at the Baltimore bar, and
he thought he was going to tear me to pieces,
which he might very well have done, but he didn’t,
and we got to be good friends.
Nowadays you think of antitrust cases as requiring
enormous amounts of staff and many attorneys.
Exactly, and that’s when I stopped it. Not by
choice but by very economic necessity. In the
football case in Philadelphia the depositions that
were necessary for trial were just all over the
country, and we had to have a staff, and they
didn’t have a staff, so we had to get other
lawyers to take these depositions and do all these
things. The enormous fee that I earned in that
case — by the time all of the other lawyers who
participated in preparation were paid and those
who attended the trial were paid and I got the
12 United States v. NFL, 116 F.Supp. 319 (E.D. Pa. 1953)
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NORDLINGER:
money for our firm and then I got my share of it
— this was a joke. Of course I had a lot of fun.
I made a little speech after the decree came down
that the work was hard and onerous and the pay was
personally woefully inadequate, but as far as the
fun was concerned, it was impossible to describe
the exhilaration. Everybody roared, because these
football fellows are really fun-loving guys, and I
did have a good time.
What was the good time? It was being a giant
killer?
No, no, but in preparing the witnesses for
examination. I went up to Philadelphia and lived
up there for two or three months before the trial,
having all these men come in from all over the
country who were going to be witnesses. And all
the great names in football. And it was just a
lot of fun, and they liked to drink, and of
course, you worked late at night, but after you
finished, I liked to drink too, and I had a big
suite, and it was just a load of fun. But I
didn’t have any home life; I didn’t hav?_any life
here; it practically ruined my practice. So then
the next thing that happened, Bert Bell, who was
the commissioner of the National Football League,
died, just about the time that the Radovich case
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had been decided in the league’s favor in the
ninth circuit. 13 Just after certiorari had been
granted and Bert Bell engaged me with Marshall
Leahy to take charge of that case, when it was to
be argued in the Supreme Court. Marshall Leahy
was the lawyer for the owner of the San Francisco
team and
You were selected because of the Philadelphia
case?
NORDLINGER: I was the chief trial counsel for the National
Football League. So we argued that case. Bert
died before the decision came down and Rozelle was
elected. Marshall Leahy, who has since died, then
set out to try to be commissioner of the National
Football League to succeed Bert Bell before the
Rozelle election. Now this was a hot and heavy
summer, a series of intrigues. Leahy called me
from San Francisco and asked me to ask George
Marshall to support him for commissioner, because
he missed it by one vote. George Marshall had
voted for somebody else. So Marshall was a man
you were put upon to ask any favor of, because the
chances of him doing you a favor were not too
good. And I just said, Okay, I’ll see what I can
do. And I talked to Milton King about it, and he
13 Radovich v. NFL, 352 U.S. 445 (1957)
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said, Stay away from it. All you’ll do is get
Marshall angry at you, so I suggest what you do is
just keep quiet. Well I did what he suggested. I
kept quiet. It sounded like good sense to me.
But Rozelle was elected. Leahy called me up and
he said, You didn’t get Marshall to vote for me.
I said, Well, I’m sorry about it, Marshall. He
said, I understand you didn’t even ask him. I
said, Well, let me explain it to you this-way. I
did what I could, and I did what I thought would
help you most, because whatever I would have done
I felt maybe would have been misunderstood, and I
thought you had a better chance if I keep quiet.
He never believed me. I wasn’t opposed to Leahy
making it, but he never believed me. Then the
League got sued for antitrust violation by the
American Football League in Baltimore. And the
League decided I do not know what part Leahy
had in this — the league decided to hire
Covington and Burling as its counsel for that
case, because of the necessity of just what you
said, of huge staff to run the case. I wpuld have
loved to have had that case. There was a League
meeting out in I think San Francisco, or Los
Angeles, somewhere, and I went to it for Marshall,
for George Marshall, who was the owner of the
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team. There was a lawyers• meeting at which Gerry
(Gerhard) Gesell, who was then with the firm of
Covington and Burling, had been selected by that
firm with Hamilton Carothers to run the defense.
And at the meeting of counsel he asked me ahead of
time. Marshall Leahy called me up and said, Stay
loose; you’re going to get in this case. I know
he didn’t have anything to do with me getting in
the case, but by God I won that Philadelphia case
for him. I knew that was a pretty good
recommendation. So sure enough, Gesell asked me
to come in with him and defend. He said, I want
you to understand I’m in charge. I said, I don’t
care who is in charge. The best thing for the
League is to win the case. Whatever I can do to
help I’ll be glad to do it. So then we went into
the League meeting and George Marshall was there
but he had delegated me to vote for the Redskins,
because I was secretary. So a discussion of the
possibility of government intervention — Well, I
guess I better not get into — An issue came up
that George Marshall felt should, he didn’t want
to accept, and he wanted me to object to it. So
he was, I thought, right, and I got up and
objected, which was contrary to what Rozelle (who
by now had been elected) wanted done. And they
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NORDLINGER:
came to a vote after a heated debate and the other
fellows won. What Rozelle wanted to get done was
done.
Wait, this is post-Radovich, and there was a
question of trying to get an exemption for
football comparable to baseball?
This was post-Radovich. It had nothing to do with
government intervention at all. It had nothing to
do with the reserve clause or control of the
players. It had to do only with action taken to
keep the American Football League out of various
places in competition with the National Football
League. You remember when that was formed. Well,
maybe you don’t. But the American Football
Conference was a separate competing conference to
the National Football League. Eventually they
merged. But at that time the American Football
League was just started, and they were finding all
sorts of difficulties. The Hunts were back of it,
and Barron Hilton was back of it, and lots of big
money and the United States was behind the
American Football Conference. They wer? going to
last because they could get the financing. So
this suit had been filed, and this had been
discussed before the meeting convened, and I was
so to speak hired to cooperate with Covington &
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NORDLINGER:
Burling on this issue. Defense of the League
against the claim for damages of the American
Football League. After the general meeting and
the debate in which I engaged unsuccessfully
contrary to what Rozelle wanted, they decided they
didn’t need my help. In retrospect, I imagine I
had been asked simply as a courtesy, because I had
been involved in the other case. So from then on,
I didn’t do anything for the National Football
League. I was no longer chief trial counsel. I
was never fired. I was just never hired any more,
which is the way high-class people do things.
There’s no dispute about it; you just aren’t
asked. So I took it. I really feel I could not
have kept on at that level without expanding the
office to a point which I didn’t want to.
Furthermore I’m not sure I knew how to do it, and
that’s why our office didn’t get bigger. I built
it up to about fifteen people, but I think I never
had the ability to know how to do it.
Was it just ability? I mean you were somewhat
apologetic about this when we touched on it last
time, but I could imagine not wanting to grow for
a variety of reasons.
I truthfully believe the reason our firm didn’t
get bigger was that I didn’t know how to handle
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it, but it’s been a good life anyway. The average
experience of lawyers in this circuit has been
more like mine than it has been like Covington
Burling or Wilmer, cutler and all that. When I
first came around (I don’t know whether I
mentioned it or not) Dick Wilmer was a sole
practitioner. He was doing work for DeCorsdorf,
Swaine and Wood in New York as their local man.
Wilmer, Cutler & Pickering developed in later
years after Dick Wilmer died, and, I think, they
just kept the name. Mr. Cutler probably kept the
name because of his affection for his predecessor.
And Steptoe & Johnson was nonexistent. Louie
Johnson had been Secretary of Defense, I think,
under Truman (maybe not, but I think he had), and
he started a little office here out of West
Virginia. I never knew who Steptoe was; maybe it
was his mentor back wherever he came from. I know
he took a man named Myron Cowan, who had been an
examiner at the Court of Claims and was an expert
in insurance tax. Shortly after Cowan went there
he got some huge insurance case, and got.something
like a $30 million fee for winning it, (I don’t
know the details). That may be an exaggeration.
If it were $300,000 it was a lot of money then, so
in any case Steptoe & Johnson just developed like
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a mushroom, and Hogan & Hartson did too. I think
I discussed that firm. Let’s see we discussed
Covington and Hogan & Hartson. What are some of
the other big local firms.
Well, I think the point is made.
The point is made. Most of the lawyers were
rather ordinary, small operations. Quite a number
of practitioners soloed and quite a few had just
two or three in an office. The voluntary’bar
association was 6,000 or 8,000 lawyers when I was
elected president, and today it’s pretty nearly
the same. The unified bar, however, is a
different kettle of fish. Now we’re talking about
the history of the local bar and my own experience
broadening abilities derived in part from war
experience, in part from scholastic experience, in
part from just plain opportunity and on-the-job
training, in the banking end. Oh, the last
antitrust case I tried was a tremendously
interesting one. And that was when I was about
seventy-two or seventy-three years old, eight to
ten years ago. That was a case in Salisb?ry,
Maryland, which I filed for this firm. We had
Maryland bar members who were on the papers for a
group who had started a factory for the canning of
clams. Now this doesn’t sound like much of a
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business, but it’s a whopper. Think of clam
chowder, sold all over the United States. Where
do the clams come from? Do you know?
No, I presume the Chesapeake Bay?
No, they come from the deep sea. The clams are so
big. (I’m making a circle of a diameter of almost
a foot.) They are either benthic or littoral.
They are either fastened to the bottom or close to
the bottom and stay near a certain place.· They
are captured by fleets of ships b?ought in and
shelled and then sliced. The fried clams you get
at Howard Johnson or elsewhere are the sliced big
clams; they are not the little clams. They are
not the soft clams or the long?·necked clams. They
are not the hard clams like the Chesapeake clams
or the Pacific clams. These are sliced pieces of
these great big clams. It wouldn’t be economical
to try to handle these little bitty things, and
that’s why clam chowder has become so popular,
because the ingenuity of American industry has
managed economically to capture and can all those
pieces of clams. Well, the leading cann?r on the
East coast was called American Original in
Seaford, Delaware, but they had canneries all up
and down the coast, and ours was down here in
Salisbury, Maryland. They just brought a suit of
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millions of dollars before the cannery I
represented even got to produce one thing. The
machinery hadn’t been installed, and they alleged
all of these millions and millions of dollars in
damages — like $50 million, $100 million, all
that sort of stuff. It was just the wildest
allegation of equitable right to an injunction to
protect trade secrets, because the men who were in
charge of the proposed new cannery had been
employed by American Original. Well, this was an
effort to continue a monopoly because American
Original had a virtual monopoly in the clam
business on the East coast. Sounds ridiculous, but
they did from New York to Florida. Despite all
those ships you’d think could go off of Long
Island. This was an enormous business. So I
worked up an antitrust suit against American
Original in which I used the institution of this
suit as the act in furtherance of their violation
of the Sherman Act to create a monopoly to
maintain a monopoly [END OF TAPE].
We missed just a little bit.
It’s not important. In working up this material,
I had to handle literally thousands of documents.
One of the last cases I had anything to do with,
because it was just about that time I stopped
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trying cases. It was too much of a burden. I was
at the level that what I was doing required so
much intense concentration and so much reading,
and so much preparation that it wasn’t much fun
any more, and you get awfully tired. It’s a
physical test. If you’re a judge it’s hard
enough. You have to sit and listen and stay awake,
but if you are a lawyer and have to do all these
things yourself it requires a great deal of
physical strength, and I felt I was losing it. I
was saying white when I meant black, and I
couldn’t remember what I had said at the beginning
of a sentence if it were a long one by the time I
got to the end of it, so I thought it was time to
stop trying cases, and I did. I hope I didn’t
make a mistake, but we’ll never know that, because
once you stop you can’t get going again. No, that
was the end of my antitrust experience. Those
cases ended up by being settled.
Was it tough to juggle this antitrust work with
your work for the banks and your office work?
No, but it was a lot of work. It was hard-·work
and I was doing a great deal of work for the bar
in addition. Even after I had finished my term as
president, I did quite a lot, particularly in this
administration of justice field. I don’t remember
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whether I mentioned it before but Judge Jones,
Bill Jones, also a good friend, had asked me to
become chairman of the Judicial Administration
Commission, a committee of the American Bar
Association. I think I did mention that. So I
wouldn’t do it.
I wouldn’t mind talking about your work for the
D.C. bar, in particular, when you were president.
Did you have any goals or a vision of what you
wanted to do during your term?
Yes, I did, beyond the normal ones of increasing
activity and all that sort of thing. When I was
elected president, I was elected first presidentelect,
the year before. I knew nothing of any
preparation for the organization or institution of
a “unified” bar which was an “integrated” bar
throughout the United States. (When it was
introduced to us here it was a “unified” bar, not
to make it unfavorable in name or title to any
particular group.) So when I walked in after the
election to a meeting of the board, one of the men
was the outgoing president two terms preceding
that. (You see the custom then was, when you’re
president you serve as a board member for two
years.) And this particular man had been the
president two years before I was elected
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president-elect. He was going off the board, but
he was at that dinner, and he said to me, “I want
to congratulate you. It was a great victory,”
because there were two people running against me,
and I had more votes than both of them put
together. And one of them was a pretty wellconnected
man and a fine person. I thought it was
complimentary. I was gratified, and I will always
be gratified at the personal compliment as well as
the opportunity to serve. He said,
Congratulations, it was a great victory, but he
also said, You may be the last president the bar
association will ever have. I said, What are you
talking about? He said, The court wants to have a
unified bar and they are going to establish one
and Al Brault is the chairman of the committee. I
said, Well, the bar association hasn’t acted on
this, and he said, Yes, they did about fifteen
years ago. I said Oh, my God but there wasn’t
more than three or four hundred people there at
that meeting! Nobody knew anything about that old
meeting in modern times. He said, That is what
the court is going to do under this new act. I
couldn’t believe it. Fred Vinson was the
chairman, president of the bar association when I
was president-elect, so I walked over to Fred, and
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I said, What’s this I hear about a unified bar?
He said, Oh yes, we’re going to have a unified
bar. I said, How can that be? Nobody knew
anything about it. He said, Well, they had a
meeting of the bar association some time ago, and
the court wants them to do it. Well, there it
was. I said, I want to do something about this.
So he said, Well, you can do as you please. I
knew Andy Hood who was the chief judge of 0the
District of Columbia Court of Appeals, who had the
authority to lay down these rules. I went to see
him, and he said, Look, I can’t do anything about
this. We have a committee and Austin Fickling, a
judge, is the chairman, a very brilliant man. You
should talk to him. He said, I’ll have to wait
until I get a committee report. So I went to talk
with him, but after the discussion with Judge
Fickling it was evident we would not easily change
the mind of the chairman of the committee that was
determining whether or not this unified bar would
be successful. So I had two alternatives. One
was to cooperate with the court, which was part of
the function of the bar association, and the other
was to do what I could for the bar association,
and so I pursued both courses with all the energy
I could muster. First of all, I had Fred Vinson
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appoint a committee on changing the rules for
affiliation of other bar associations, and when
the board agreed to consider this I undertook a
lot of meetings with the chairpersons of the other
voluntary bars — ladies, blacks, communications
law, all of these groups — to try to get them to
agree to become part of the bar association in a
separate section and have representatives on the
board, and I was eminently unsuccessful on all
counts. Nobody wanted to do it, although I
thought for a time we would be successful with the
Washington Bar Association and with the women’s
bar. It turned out I was wrong.
They were advocates for unification?
I can’t answer that, but they were not willing to
give up their autonomy to become sections of the
bar association of the District of Columbia, even
though they would have maintained an autonomy that
would have been as gratifying as a separate
organization. Separately none of them are as
important as they would be if they were part of a
much larger group, particularly when th??r
identity as sections would be maintained. So I
was working steadfastly on that issue. Second, I
was writing material for publication in the
Washington Law Reporter and other places for the
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bar generally to read, as was Barrett Prettyman,
because I was working with Barrett to try to get
the practicing bar of the District of Columbia (as
distinguished from the members of the bar of the
District of Columbia) to accept this judgment of
the court. It was going to be a final judgment.
There was nothing you could do about it, so you
might just as well live in peace and cooperate and
try to help the court, the function of the
voluntary bar [being] to carry out the wishes of
the court as long as they were honorable. And
they were. I had meetings with the judges
separately and all that sort of thing, but I
couldn’t get anywhere with it. It then took a lot
of ingenuity to finance the organization of that
group, and, as I mentioned before, I was able to
get the Court of Appeals to sign the order making
all funds advanced by the bar association of the
District of Columbia to the group representing the
committee (that’s Al Brault’s group) as a first
lien on all the dues collected. And we got that
money back. That wasn’t an easy thing to do, but
it was done. So I would say I had a busy two-year
period as president-elect and president, and it
worked. [It worked] in this: that the voluntary
bar has survived. Without cooperation with the
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unified bar, it would not have survived. I’m
confident of that. As long as it has survived it
may continue in its corporate form with changes in
the unified bar which in some manner will result
in what I’m trying to do now. I’ve just started
on this. I’m about to embark on a program to try
to convince some of the present leaders in both
groups to agree to a merger by virtue of changing
the rules of the unified bar to exempt from dues
except in a minimal amount otherwise assessed on
practicing lawyers in the District. Now I haven’t
said that very clearly, but what I mean is that if
the unified bar taxes local lawyers for membership
on a realistic basis, and taxes those who get no
benefit from those rules, who never come here, who
never practice here and don’t have anything to do
here, but want the membership in the bar for some
purpose to satisfy vanity or professional stature,
charge them smaller amounts, there will be less
money to be spent by the unified bar, which is now
just overblown in its pompous activities and
trappings of grandeur. They are getting_$BS a
throw from 40,000 people or 60,000 people. I read
their statement, and it’s absurd. They don’t need
that kind of money. It’s absolutely ridiculous.
Now they want to get a $125.00 ceiling for all
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these people. Nothing at all to have a better
office, better hearing rooms and all that. The
functions to be carried on by a unified bar or by
the court or by the bar in some form is twofold.
First, to maintain records of who are practicing
with addresses, office and home, and second, to
enforce discipline. Now you don’t need all that
money for those purposes. The unified bar
maintains (and I hope somebody with some common
sense gets to read this section of this history)
what’s called a lawyer referral service, in which
people who need lawyers call up the unified bar
(the voluntary bar is doing it too, but the
unified bar . . . ) and ask, What are the names of
some lawyers they could hire? The records of the
lawyer referral service indicate that 20,000
clients were served. Now that statement may not
be accurate, but it’s some huge amount. Serving a
client means answering a telephone. With all the
experience I have had in local philanthropy (I was
chairman of what they called then Community Chest,
now the United Way, and I was chairman of .the
Jewish Social Service Agency once I knew about
social service records) I knew what social
service people do about creating records. If I
call you today, I’m a client, and ir I call you
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tomorrow and say, What was that telephone number
you gave me? I’m another client. If I call you
the next day and say, I saw him, but I don’t like
him. Who else have you got? I’m another client.
So I’ve called you three times, and I haven’t done
anything yet, nor have you, but that’s three
clients. So when Jim Bierbower was chairman of
the unified bar, he was up to his neck with all
the pomposity that was confronting him, and he
asked me to become the chairman of a committee to
investigate the lawyer referral service. I had
been talking to him about this theory anyway, so I
accepted with alacrity. And I had a committee of
two or three people, and we went down there to the
office, and I walked in and said, I’m chairman of
the committee to investigate this. The guy in
charge of it (whoever he was) said, I’m not going
to show you any records. I said, Why not? He
said, They’re confidential. I said, That’s
ridiculous. If John Doe calls you to get referred
to a lawyer the fact that he called you to get a
lawyer isn’t confidential. Well, he s?id, it is
because every record of every social service
worker is confidential. I said, That’s true. He
said, We’re not going to show them to you. I
said, All right. So I reported this to Jim, and
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he asked me to write him a letter about it so he
could have the board act, and I did, but nothing
came of it because the board would not direct this
fellow to open up the records. And that was
because the board at the time knew what was going
on. This was an attack on the veracity of their
reports, because they had influenced so many
judges in the belief that the unified bar was
serving the public so admirably. Well the lawyer
referral service is a joke. That doesn’t serve
the public. It is only a good dramatic statement
that you’re serving the public because somebody
can call up.
And real public service is drafting legislation or
giving more specific or concrete legal advice on
problems? What would count as real public service
by a bar association?
I think an element of real public service is
maintaining an office where people can get
information about who to see, but that’s a small
part of it. I don’t mean to say that you
shouldn’t do it, because I think you shou?d, but
you shouldn’t overemphasize its importance. The
real public service of a bar is to maintain (this
sounds silly) a camaraderie between the bench and
the bar, so that there is a better -interplay of
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what is fair and right and just. As a result of
this, all of the things that you mentioned before
naturally develop: an attitude toward the need for
legislation, an attitude to support or oppose
legislation, the codification of rules, better
understanding and enforcement of the rules, better
understanding and enforcement of the rules of
professional responsibility, which today in my
opinion are ridiculous. Maintaining a committee
of lawyers to issue opinions, ethics committee
opinions, to govern the conduct of a practicing
lawyer — I think it’s absurd. These opinions are
the basis of prosecution by bar counsel if they
are not followed. This is a terrible thing to
give to my neighbor here, the right to sit on a
committee and say that I shouldn’t take a law case
because somebody called me on the phone on the
other side once and said, What shall I do, and I
said, Well, I think you better do so and so. To
say there’s a conflict because I talked to them!
It’s terrible. All right.
So you see the voluntary bar being much better at
developing camaraderie.
I see the voluntary bar being a much better organ
for the social programs, social in the sense of
serving society, for programs that serve society
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better in the District of Columbia than the
unified bar possibly can. And I think the unified
bar has no place in an effort to do this. If it’s
necessary to have a huge organization of those
admitted to the bar here for recordkeeping and for
enforcement, then there is a place for that
service. However, if you stop and think [about
it, you’ll see that] if a lawyer in Oregon steals
a client’s money, the place for original
prosecution is in Oregon, not the District of
Columbia, so all the District of Columbia has to
do is to enforce similar restrictions. When I was
chairman of a grievance committee of the United
States District Court and we had the authority to
do this, we didn’t have all these problems. There
is another case there that is important in the
history of the District of Columbia. I hope I can
talk about this case with some degree of ability
to refrain from making any statements that will be
misconstrued. Some years ago when Judge Stanley
Harris was on the District of Columbia Court of
Appeals, before his appointment to the District
Court bench, he called me and asked me if I would
take an appointment as amicus curiae to brief and
argue the Kgu case. A lady who had been
disbarred for participation in a use of the mails
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to defraud case was seeking reinstatement. The
hearing committee of the unified bar had reported
to the Court of Appeals that they favored her
readmission. Our statutes in the District of
Columbia said that if you are convicted of a
felony involving moral turpitude, you shall
thereafter have your name stricken from the rolls
of the court. He wanted to know whether I would
take the position of arguing as amicus curiae that
meant you could never get readmitted. I-said,
Absolutely. I don’t see how a lawyer can handle a
client’s funds if he’s a blankety blank thief or
felon. So he said okay. So I filed a brief, one
of the best briefs I have ever produced, and
argued it before the full court en bane. They
ruled that once convicted of a felony involving
moral turpitude you could never be readmitted to
the bar, which was in conformity with rules
elsewhere under similarly worded statutes. I just
finished reading a case a few days ago, decided
just within the last couple of weeks by en bane
decision of the Court of Appeals, that y9u can be
readmitted and that the statute that says you
shall have your name stricken and thereafter shall
not be admitted as a number of the bar, didn’t
mean that. It meant something else. And they
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interpreted it to mean that you can be readmitted
under proper conditions. That’s a complete
change, and it would seem to be wrong to the
uninitiated. However it’s not wrong anymore; it’s
right, because this is the rule of the Court of
Appeals, and this governs our life here. Felons
can now be readmitted! They are not going to
readmit many felons I concede that.
Nevertheless, there is a complete change in the
law, and that is a case in which I did participate
in the history of this circuit by having an
interpretation.
I wonder if we could go to another subject that’s
at the intersection of your bar association work
and the history of the circuit. And that is the
debate within the bar association about the
District Court Reform and Criminal Procedure
Reform Act of 1970, which we touched on last time.
D.C. Court Reform ?ct, okay.
One thing you’ll have to help me clear- up. When
were you the chair, I take it, of a committee on
judicial administration? I had seen a report, a
Ellison report . .
That’s a different committee, I think.
Okay, he’s on the judicial council.
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That is correct. The Ellison report and later the
Gesell report; Gesell succeeded Ellison. It was a
committee of the Judicial Conference. The
Judicial Administration Committee of the bar
association was the one of which I was chairman
when we had the big debate at the bar association
meeting. The other one was limited debate at the
Judicial Conference where only members
participated.
I see.
When you have a debate on a committee report at
the Judicial Conference only the members of the
conference may participate.
So that was at the Conference, I see.
And the Conference is limited. They only have
about 300 members, and they are not always all
there.
Were you there? You’re a member of the Judicial
Conference?
I have been.
Did you participate in both debates?
At the Judicial Administration Committee ot the
bar association I debated the lawyer whose name I
remembered when I was lying in bed after I talked
to you last time, but whose name I have now again
forgotten. He was a good guy; I don’t remember
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what’s happened to him. As I say, he was
successful in persuading the bar association not
to support that bill, and I was in favor of it.
At the Judicial Conference I don’t know whether I
spoke or not, but probabilities are [that I did]
because I remember the scene. It was debated when
Gesell was the chairman; I think not when Ellison
was the chairman. It was debated largely by
judges because by then it was a fairly certain
event to occur. A young lawyer, Donald
Santarelli, had done a magnificent job, I think.
One section of that bill in respect to the
treatment of juveniles. I didn’t know how to take
a position on. In order to write the report
{which I did}, I had a farm at that time down in
Virginia, and I asked Milton Kronheim, Jr., who
was then a sitting judge, if he would come down
to the farm with me over the weekend and tell me
about the things that he thought should be done to
improve the treatment of juveniles, because he had
a lot of experience in the Police Court sitting.
So he did, and I made a lot of careful notes and
put all those things that he suggested into a form
which Donald Santarelli incorporated into that
bill, and they are there. I felt that was a
wonderful thing for Milton Kronheim to have done,
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because he was the one that suggested those
provisions. I didn’t know enough about the
procedure in respect to the treatment of criminal
juveniles at that time to do it, so I got some
information to help me do it.
I guess just to spell out the point: this sounds
like a concrete example of the kind of camaraderie
or communication between the bar and the bench
that you see a voluntary bar association being
able to perform.
Absolutely. Moreover, there is an intense
interest of local lawyers like myself (and you can
call me a local lawyer despite whatever national
experience I may have had) to make the District of
Columbia a better place in which to live. It’s a
good place to live now, but it can be much better,
because lately the horrible use of drugs and the
crime statistics are frightful, but that’s going
on everywhere. This trip I just took out west!
It’s just terrible in San Francisco, and it’s
awful in Denver. So it isn’t something that is
indigenous here. New York is a hazard; Cp,.icago,
Detroit, all these places. Well, back to the
history of the bar.
There was testimony in Congress in October of
1969, by a person named Russ O’Donohue, who gave
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some objections to the Court Reform Act. He
appeared with George Monk before a House hearing
on the Court Reform Act.14
What was the position that George Monk took?
The vote had already come down 95 to 111 against,
and I think Monk was trying to take the position
that the 200 or so people who were there probably
didn’t represent the larger wishes of the bar
association. He sounds like he (like you)”
considered the bill as basically a done deal. It
was going to go through. He sounded like he was
caught between this negative vote and a sense
Which negative vote is this? At the bar
association?
Yes.
When the bar association voted?
Right.
I knew Ross very well. I don’t remember either one
of them taking part in any debate.
No, the debate I’m referring to was not a debate
at the bar association meeting. Monk and
O’Donohue appeared before Congress, and this was
O’Donohue explaining as he understood it the
objections to the Court Reform Act. The only
14 House Committee on the District of Columpia, Anti-Crime
Proposals, 91st Cong., 1st Sess. (1969), pp.168-99.
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reason I’m going into it, is to throw out some of
the objections that he gave at that time, and see
why you weren’t persuaded by them or what
reactions you had to them.
All right.
It seemed to me that the biggest concern that he
articulated, was that the caliber of the judges
would go down if they were not going to be article
III judges sitting in the District of Columbia.
He felt that the administration of justice was
terrific as it was in the District. You could get
the best of the bar to be handling all kinds of
cases in the District of Columbia, and he felt you
wouldn’t get the same caliber of men, because they
wouldn’t have the same security of tenure, and it
wouldn’t be as prestigious a position. He also
made theoretical argument about how it’s wrong to
analogize the District of Columbia to a state,
because of the fact that they aren’t two
sovereignties but, after saying that, his greatest
concern seemed to be the caliber of the judges
might go down. He also had some sort of concern
about greater susceptibility to local pressures on
judges if there was a two-tiered system. And those
were the reasons he gave. Does that correspond
roughly with your understanding of the opposition
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to the Court Reform Act or were the objections
made to particular provisions? Did people hate
the juvenile justice provisions?
My recollection (which is fairly dim at this
point) is that the bar is a very conservative
group, and any change that is radical is
undesirable. To fail to support that reform act
would have been so stupid. If you look at the
figures of the numbers of cases decided in our
local superior court: the huge numbers of landlord
and tenant cases, the huge numbers of small claims
cases, the huge numbers of civil cases which are
not class 1 cases, which are less money. If you
retained only limited jurisdiction in the superior
court without plenary jurisdiction, you could only
get idiots to serve as judges. Then if you thrust
all of the cases in class 1 jurisdiction civil and
all of those felonies local in nature into the
federal court, the court couldn’t exist. The
federal judges wanted out. My friends on the
federal bench started with Judge Tamm, who got the
divorce jurisdiction out of the federal court.
That was the first step because they would have to
decide on whether some poor guy was going to have
to pay $20 a week or $25 a week. That’s not much
of a job for a federal judge. And -so those cases
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came out of the Federal District Court first. The
other basis of creating a plenary jurisdiction
local court, which was a superior court, was the
complex nature of our environment, with the huge
volume of litigation that couldn’t be handled.
And I can’t say that anybody had sufficient
foresight to predict the increase in the number of
federal statutes, the number of federal crimes,
and the number of federal cases to be heard. That
has happened. The federal court wouldn’t be able
to exist. You couldn’t do it.
The complaint was just starting then that the new
reforms of criminal procedure was dramatically
slowing down the pace of criminal trials already.
Okay, let me get to a point on this. I took part
in this myself. The first Judicial Conference
that I attended, the first time I was a member,
appointed by the court, and have been successfully
ever since I think. I was unable to attend
several times, because of other things). This was
immediately after the election of Kennedy, which
was what year, 1963?
That’s when he would have taken office, no ’60.
1960. All right.
He would have taken office in 1961, I guess.
I beg your pardon.
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I believe he would have taken office in 1961.
Would have taken office in ’61. Well, all right;
let’s say it was ’61, because the Judicial
Conference was following his inauguration. That’s
right because I remember. How long did he serve
before his assassination?
Either ’63 or ’64?
’63 I think.
Your membership of the conference started.in ’62.
My membership in the conference started in the
same year in which he was inaugurated. He had
just appointed Bobby Kennedy as the Attorney
General. The judicial conference at that time was
not nearly so swell as they have become — going
to Williamsburg and Cherry Hill and Hershey and
all that. We had a one-day conference at the
Mayflower Hotel; that’s all it was. And there
weren’t too many members then. But Bobby Kennedy
came down there, and I wouldn’t have been sitting
in the front rows, unless there had been a very
few people because I would have been too retiring
to do that. It was an intimate meeting, and he
stood up at the front, and I wasn’t much farther
from him than this, maybe a little. He said, The
President has some messages he’s asked me to give
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you, and one of them is that the President is
intensely interested in seeing the criminal
justice system improve. He wants every man
accused of crime to have a lawyer. Now this
sounds ridiculous because you can’t believe
anymore that every man accused of crime doesn’t
have a lawyer, but at that time he didn’t. If the
man pleaded not guilty, the court appointed a
lawyer for him, and you served without
compensation of any kind. Even after the Criminal
Justice Act was signed and became law, if I was
appointed I wouldn’t take the money; it was so
little it was insulting.
How did the bar react to Kennedy?
Oh, they laughed at him. Excuse me, I shouldn’t
say they laughed at him. All I can say is that
quite a number of Republicans did, including me.
So I would say the Democrats who elected him were
enthused with his liberal spirit. I don’t believe
our country can survive with the emphasis on legal
representation that has been created unless we
tinge it with some degree of realizatio? that our
commercial life couldn’t survive if everybody that
got a bill had to have a lawyer before he decided
whether or not to pay it. I said this to George
Hart, who was chief judge of the United States
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District Court. He was a Republican, too. I’m
opposed to the belief that every man that is
accused of crime should have a lawyer. If he
knows he’s guilty he ought to plead guilty and be
finished with it. He said, I’m disappointed to
hear you talk that way. I used to take this guy
downtown every morning. He was a compatriot of
mine. He was on the bench. I said now look, how
could Woodies survive if everybody that bought a
suit had to have a lawyer when he got a bill to
pay it. Well, he said, it isn’t the same thing.
I said, No, it isn’t, but the principle is the
same in terms of clogging the courts. I predicted
it and it has happened: a lot of young lawyers get
a man they know is guilty, and he says he’s
guilty, and they say, Well I can get you off.
Well, that’s not the job of a public defender.
It’s not the job of a man appointed to represent a
criminal to get him off. The job is to see that
he gets a fair hearing if you’re going to have to
have a lawyer. The lawyer should see that he gets
a fair hearing, a fair opportunity to exp?ain the
circumstances under which the crime was committed,
so that justice can be meted out to him with
common sense and compassion. But not to get him
off. This is a shyster’s view. Now that’s why I
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won’t contribute to legal aid, and that’s part of
the history of my life. I will not contribute to
legal aid. I have been subpoenaed to appear in
cases by a legal aid lawyer, who subpoenaed me
because I was secretary of a corporation that was
renting apartments in a huge apartment house to
some tenant. He had a landlord and tenant case.
And I have been subpoenaed to bring the records.
And I’ll tell you this is an abomination!” It’s
absolutely awful the things that are going on in
the name of legal representation of the poor.
And you feel that your own practice, you know,
your work court-appointed work for criminal
defendants was consistent with what you just
described as the proper role as a defense counsel?
Absolutely, absolutely. When I represented John
Naples, this man who had stuck a saber in the
belly of a lady and ripped her from her belly
button to her Adam’s apple, I didn’t say he wasn’t
guilty. I said he wasn’t guilty of first degree
murder. I said he did it but he was insane, and I
proved he was insane. I proved he was a.:ri- .·
epileptic and all the rest of it. And while the
United States Attorney Freddie Smithson was asking
the jury to bring in a verdict of guilty with a
recommendation of the death penalty to get this
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man out of society, my argument was we don’t
destroy lepers. So they compromised and brought
in a verdict of second degree, but at least they
didn’t kill the poor man. I wasn’t trying to get
him acquitted without guilt. The man did it. The
same thing when I had a case of a man who had been
convicted of rape. This is the Mason case. I
don’t know whether you found that one.
I did find that one.15
NORDLINGER: Well, I still want to talk about myself too much
in that way, because I don’t think that’s very
helpful. But what is helpful, I think, is for
somebody to realize how we have blown our sympathy
for the underprivileged in this cycle of crime,
poverty, and disease to a point at which we can’t
handle it. There has to be a stop at some place
and in some way. I don’t know how to do it. I
don’t have a mind large enough to envision some
sensible answer, but there is somewhere some man
with a mind big enough to work it out. I don’t
know how to do it, and I’ve had a lot of
experience, I don’t know what to suggest. It
seems to me the way to stop it is to, well, not
make it profitable. Not appoint people to the
bench who have been the head of the legal defender
15 Mason v. United States, 193 F.2d 23 (D.C. Cir. 1951)
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system and not make it great reward for all that
sort of thing.
Maybe we should talk about the bench and your
relations with it. I have been struck at the
number of times you have been able to mention
having rather informal contacts with judges in a
social setting, which I know isn’t common now.
I’d like to give you an opportunity to discuss
anything from memorable arguments to just”how
your relationship with a person changes when he
becomes a judge. Hart, I guess, when he went
from . . .
Well, naturally, it does change. When a man is on
the bench, although he’s the same person and your
same old boyhood friend, nevertheless he’s
occupying on the federal bench a position of
enormous power. On our superior court bench it is
a position of somewhat less power because it’s not
a lifetime appointment, as you pointed out, but a
position nevertheless of enormous public
importance, and I think you owe a great deal of
respect to the position, something that _ypung
lawyers don’t agree with. I believe in respect
for law and regulation, and if you think it’s not
a good law or a good regulation, then you’re
supposed to try within the habits of our
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constitutional system to change it. Not so. First
of all, you’ve got to be willing to emulate people
that you think have great ability, and you’ve got
to be willing to accept rules and regulations.
Now how do you develop that sense? Well, the
answers to that are sociologically so broad that
you can’t cover it all. It’s family, it’s father
and mother, schooling, association. It’s some
degree of personal success at whatever it”is
you’re trying to do, becaus? if you’re a·
disappointed person and have never been able to
make it, everything is all wrong, so you have to
be at least creature comforted. I don’t know all
the answers, but one answer is, if you know the
people and can be friendly with them, that’s the
first step. I thought when Kennedy talked with
Khrushchev that was a reason to speak to anybody.
You don’t stop speaking to anybody. If he could
go to Vienna and talk with Khrushchev — I wasn’t
a supporter of our martyred President, either, but
he did some great things, and that was one of
them, I think. So there are legal societies,
legal clubs. You ask me about anti-Semitism
before, and you mentioned today about black [END
OF TAPE]
Okay.
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NORDLINGER: I had felt very little personal anti-Semitism in
the bar, only part of a larger anti-Semitic
feeling. Many of the groups I belong to now I
would not have been elected to. To most of them I
was either the first Jew or among the first. I
have seen in this only a abandonment of antiSemitism
but an abandonment of prejudice against
blacks, even in the most posh group to which I
belong. It has an annual dinner for the members
and their spouses at the Chevy Chase Club. There
are black members who come with their black wives,
and I think this is a wonderful exercise in
professional democracy, and it’s because we’ve got
some great black judges. We truly have some great
black judges, men of enormous capacity
intellectually, and we have some lawyers at this
bar of enormous capacity. It’s a different bar
than it was when I was young, because in general
the lawyers are better educated. They have better
academic backgrounds and better law backgrounds.
The prejudice against blacks that existed was
reflected in the by-law of the voluntary_bar
association restricting membership to white males
is totally changed, because now whites and blacks,
men and women, are admitted to the voluntary bar
association without any more distinction than is
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true of the unified bar. You pass the test and
are admitted to the bar. You become a member of
the voluntary association if you want to. You
become a member of the unified bar because you are
required to. So I would say that although
individual anti-black feelings exist in some
lawyers; (among the lawyers as it exists among the
population of the United States; it hasn’t been
eradicated; no one would take that position), I
think it’s becoming less and less. Just as antisemitism
became so unpopular, so horribly
unpopular due to the Holocaust. Although it still
exists, too, to some extent. Now I don’t know
what I can say about opposition to blacks when I
came to the bar, or the position of blacks when I
came to the bar. But first of all there weren’t
very many black lawyers. And to my knowledge very
few, if any, female black lawyers. I can tell you
a story indicative of the general attitude towards
blacks, and it’s a shame, it’s a joke, so I don’t
know whether I ought to put it in there or not,
because in a sense it’s insulting. There was a
great black lawyer here by the name of Gaskins
whom everyone respected. He was a colleague of
Claudius Houston, the father of Charles Houston.
Charlie Houston was the great lawyer who worked on
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the Brown case. Mr. Gaskins (and I called him Mr.
Gaskins, because he was a respected gentleman) was
largely a criminal lawyer in the police court,
which at that time I largely was too. And there
was another black lawyer, George Hayes, much
younger than Mr. Gaskins, a very good lawyer,
generally liked, and a fine, respected, gentleman.
There was a judge sitting in the police court, a
nice man but rather elderly, and he didn’c really
function with too much brilliance, rather the
contrary. Lots of stories can be told about him,
and I can tell a lot myself. He was generally
well liked, but he was an object of derision in
much of what he did. He was sitting in the
particular morning to which I have reference. On
the preceding night Mr. Gaskins, after finishing a
trial, had dropped dead on the steps of the police
court, which was then on C Street, just west of
Fifth, where the Recorder of Deeds office now is.
It was an older building, and it was the Police
Court building. He dropped dead suddenly. George
Hayes on the following morning appeared .in that
Judge’s court, and he said, Your honor, I have the
sad duty of suggesting to the court the death of
one of our beloved brothers, Francis Gaskins. (I
may be wrong about that first name.) He said, He
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was an ornament to the bar, a man of great
distinction who served the poor mostly and the
rich when he could, which was not too often. He
conducted himself with dignity, often scholarly
brilliance, always with deference to the bench,
and courtesy to his brethren at the bar. We lost
a great ·friend and a great lawyer. And so on, and
so on. Accordingly, your honor, he said, I move
that when the court suspends business for·the day,
that it indicate in its minutes that it does so in
honor of our beloved departed brother. The Judge
looks down at him and says, Motion overruled.
Clerk, call the next case. Now this is supposed
to be the truth. I didn’t hear it, but I believe
the source from which I obtained that information.
That indicates how little the Judge was paying
attention to George Hayes. He thought it was just
another routine motion and hadn’t even listened to
him.
Which you attribute more to the judge, Hayes, or?
I attribute that to the judge, his lack of
interest in proceedings in general, and in what
George Hayes had to say in particular. Now that
is an illustration of I don’t know exactly what.
Another occasion illustrative of this man’s
attitude: The Police Court was really awfully
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noisy in the morning. The well of the court was
full of lawyers approaching the clerk — Call my
case first, and give me that information. I want
to look at it. If you could get the information
and walk out with it that was the end of the case.
At this particular time the Department of Justice
was investigating the Police Court because there
was a lot of alleged corruption, not organized by
the participation of the bench, ?ut a great
deal of corruption alleged to be going on,
sometimes bondsmen, sometimes clerks. On this
particular morning, I heard this Judge rap on the
bench and he says, Gentlemen! Gentlemen! You’re
making so much noise! He says 1 It’s terrible; you
know the Department of Justice is investigating
this court, and he said, You’re making so much
noise in the well of the court I’ve just sentenced
a man to 30 days, and I couldn’t hear a word of
the evidence. I heard that, I heard it!
Goodness.
Now this is my favorite story and this is the end,
I think, unless you want me to talk som?_more at a
different time. Oliver Gasch was assistant
corporation counsel trying cases in the Police
Court at the same time that I was trying cases for
the defense. He was for the prosecution. On this
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particular day he was representing the government
in a prosecution for, I think, breach of the
peace. A man had been arrested in his store
because a policeman had tried to charge him with
violation of an ordinance for putting chicken
coops out front. The man had protested that he’d
take care of it in a minute, and the policeman had
yanked him out of his store on a Saturday morning,
when he was busy. He shrieked and hollered so,
they charged him with breach of the peace,
hollering in a store. While you can’t be guilty
of breach of the peace on your own premises, you
can be guilty of disorderly conduct, but not
breach of the peace. So I had all these books,
and it took us a long time to try the case. It
was more than a day, and that wasn’t often in the
Police Court. Now I was arguing for the acquittal
of the defendant, because according to the
authorities (and I read them and all) he couldn’t
be guilty of the crime charged. Of course, Gasch
was arguing that he could, and that the man did
not behave himself, resisted arrest (but he wasn’t
charged with that), and all sorts of things. So
finally at the conclusion of our arguments the
Judge said, Gentlemen, this has been a great
pleasure to try this case. Obvious?y both of
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you have prepared this quite well. He said, It
isn’t often that I have this kind of attention
given to the routine cases I hear, and he said, I
want to congratulate you, Mr. Gasch, on the
argument that you’ve made, and he said, Mr.
Nordlinger, you have made a truly brilliant
argument, and he says, As a result of it, I’m so
convinced of your client’s innocence I’ll find him
guilty and take his personal bond not to repeat
the offense. In other words, he got back his $15.
You see that was the same as an acquittal in the
Police Court!
Well, perhaps with that we’ll stop, and I’ll thank
you very much.
Well it’s been nice meeting with you, and if
there’s anything more after you review this that I
can contribute, I’ll be glad to follow whatever
suggestions you have. [END OF TAPE]