Bob Jordan:
I John and I have had a chance to chat a little bit
before we turned the recorder on and the approach we are going to
follow here today is that I am just going to turn it over to John
who has reminisced back over his experiences and he’s going to
tell us about the things that he thinks would be of interest. I
may have a question or two from time to time but by and large
it’s going to be John. John, we very much appreciate your
willingness to participate in this project and I’m looking
forward to hearing what you have to say.
John P ickerina
Thank you Bob. I am delighted to be interviewed in
connection with this project which I think is a very worthwhile
endeavor of the courts of the – federal courts of the District of
Columbia to get some of the anecdotes and some of the stories
from some of the people who had a part, sometimes large,
sometimes small, in connection with it. My experience with the
District of Columbia courts goes back to 1947 when I settled in
Washington after service in World War 11. My senior partner,
Richard Wilmer, had been practicing in Washington from roughly
1918 after service in World War I1 and some — World War I rather
— some of the anecdotes that I am going to say have been
reenforced to some extent by my memory of some of the things that
Dick Wilmer had to say about various members of the U.S. District
Court and the United States Court of Appeals. I want to start
off talking primarily about district judges whom I knew, many of
whom are deceased. I would like to begin with what was a big
chunk and one of the most interesting things in my professional
career, the so-called steel seizure case where President Truman
made an attempt to get the steel mills back in operation during a
strike by seizing them by Executive Order. This was in 1952
during the Korean War and I start with what I refer to as Judge
David Pine, the careful, and John Wilson, the knowledgeable
The steel companies had advance notice that the
President intended to issue his Executive Order and they had all
prepared papers ready for filing to get a TRO and eventually a
preliminary injunction when the Executive Order was issued. The
Executive Order was issued around ten o’clock in the evening and
by midnight John Wilson of Whiteford, Carmody, Hart & Wilson, and
Edmund Jones of Hogan & Hartson were knocking on the door of
Judge Bastian asking for a TRO. Judge Bastian told them to go
file their papers and bring it on for the next morning. So
Bastian, when they appeared before him the next morning, said he
had some steel stock, as I recall, and recused himself and the
case went to Alexander Holtzoff. There was an argument on the
TRO for most of the day, one day in April, no air conditioning in
the District Court building at that time, the windows were open.
At the conclusion of the argument Alexander Holtzoff missed his
chance to be famous, saying he denied the temporary restraining
order because an old case, an attempted suit by the State of
Mississippi against President Andrew Johnson, indicated that the
President was immune from suit. The steel suit was against the
Secretary of Commerce, Mr. Sawyer, who was put in charge of the
mills, not President Truman, and that was about the last time
. that the Mississippi case was mentioned in connection with the
The matter was dormant for a week or two, but papers
for a preliminary injunction had been filed. In those days the
District Court was under a so-called master calendar system and
if you knew what judges were coming up when in motions and so on,
you could play the game a little bit and John Wilson was a master
at that. The minute he saw that David Pine was in motions he
brought on the Youngstown preliminary injunction. That’s why the
case is known as Youngstown Sheet and Tube against Secretary of
Commerce Sawyer. We all appeared before Judge Pine and he
immediately, being the careful judge that he was, said that he
had checked and his wife had a 100 shares or so of Bethlehem
Steel. Did the government or the steel companies think that was
any reason why he should recuse himself. Oh no, no-no, please,
please go ahead, your Honor. So there was a long argument, with
papers filed, extensive memoranda, a long argument before Pine.
John Wilson represented Youngstown. In the course of his
argument he was constantly referring to the great constitutional
decisions of Mr. Justice McReynolds. Now several of us had had
the opportunity to be Supreme Court law clerks during the last
ten years or so before this argument and Justice McReynolds was
basically a dirty word — an illiberal, cantankerous, irascible
old fellow — and we just cringed as Wilson was going on about
this case or that – what Justice McReynolds said in this or in
dissent in that. John Wilson knew what we didn’t know. He and
David Pine had been assistant attorneys – – U.S. Attorneys – – and
Wilson knew that David Pine had been, when McReynolds was
Attorney General in the Wilson Administration, David Pine had
been his Secretary and as McReynolds would call it, Clark, and
sure enough the Pine opinion holding that the seizure was illegal
relied on some of the McReynolds’ decisions.
There was another interesting anecdote in that case and
that was in the middle of the oral argument when Theodore Keindl
for U.S. Steel was arguing, Pine said, “Now if I find this
seizure illegal what should I do on the preliminary injunction?”
And Keindl responded that you just — all we’re seeking at this
moment is an injunction to restrain the government in possession
from changing the terms and conditions of employment and Judge
Pine said, Mr. Keindl, what about the steel companies changing
the prices? There was a pause and Judge Pine said, Mr. Keindl
you seem to have lost your voice. Keindl then said yes, yes,
yes, and prices. That’s all we’re asking for at this stage. And
Judge Pine says, well now if I find this illegal, shouldn’t I
give perhaps greater relief, at which point Bruce Bromley of the
Cravath firm was on his feet in a shot and said, that’s not —
that’s not Bethlehem Steel’s position, your Honor. If you find
this illegal you should give Bethlehem back its plants. We want
“the whole h0g.I’ And everyone else stood up and agreed and when
Pine issued his opinion and a preliminary injunction enjoining
the seizure and directing that the mills be returned to their
owners, he carefully refrained from giving that relief to U.S.
Steel saying, that company verbally limited its motion to one for
a preliminary injunction to restrain defendants from making any
changes in the terms and conditions of employment. “1 am
unwilling to issue that because of its stultifying implications.
I could not consistently issue such an injunction which would
contemplate a possible basis for the validity of defendants’ acts
in view of my opinions expressed.” Well that meant that U.S.
Steel then had to go back and file a formal motion to amend its
oral position and that was done and that relief was granted and
eventually of course the Supreme Court sustained Judge Pine.
That anecdote was very useful to me as a relatively
young lawyer in saying, know something about your Judge. John
Wilson was a master at that. I am a little hesitant to mention
one thing but — I think John Wilson was my source for this – –
but I might as well indicate that there was, as is usually the
case on any bench, a rather wide level of experience and ability
and David Pine was heard to say that his colleague, Judge Burnita
Shelton Matthews, was not the dumbest lawyer in the District —
her brother was.
I’d like to turn now to another seizure case, not one
that I was involved in but which was very useful – – or labor case
rather – – very useful in connection with the steel seizure case.
And that was the proceeding by the United States against the
United Mine Workers and John L. Lewis in 1946 at the tag end of
the War to stop the coal mine strike under the Norris — under
the Taft-Hartley Act. That case came before a district judge by
the name of T. Alan Goldsborough who would proudly proclaim that
he was the only federal judge who had ever been certified to be
sane. Held had at one point on the Eastern Shore from where he
came – – he had been hospitalized for a brief period. I don’t
recall the circumstances, but upon his release he was given a
certificate of sanity which he used to great effect. And there
may be some reason for that because I’d like to refer to his
opinion in the coal strike case that was delivered orally and
reported at 70 F. Supp. 42. He began the opinion by saying —
this is a marvelous bit of legislative history: “It happens that
the court was a member of Congress at the time the Norris
LaGuardia Act became law and during the debates and consideration
of it Mr. LaGuardia and I were legislatively always very close.
I think I am correct in saying that I supported every measure
that he was interested in – I mean primarily interested in – and
that he supported every measure that I was primarily interested
in. He directed his activities principally toward the labor
movement in what he considered the public interest. And mine
were directed toward the currency. As I have said before, I am
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sure he always supported me and as far as I can remember I always
supported him. So I am sure I am fully familiar with the Norris
LaGuardia Act and its purposes and the reasons for it.” He goes
on to conclude from this personal legislative history that the
Norris LaGuardia Act did not prevent the government from seeking
an injunction against the strike and he got the attention of the
mine workers and their President, Mr. Lewis, by putting a $10,000
fine on Mr. Lewis and a $3.5 million fine on the United Mine
Workers, an unprecedented sum in those days. Both the U.S. and
the mine workers appealed to the Supreme Court which sustained
Judge Goldsborough ordering the $10,000 fine against Lewis, but
modifying the $3.5 million fine against the Union. The Supreme
Court cut that to $700,000 with the proviso that the full amount
would be due, the remaining $2,800,000, unless the mine workers
complied with the order – the injunction order – within five
days. The Union did comply and the strike was over.
Let me get back now to Alexander Holtzoff whom I have
mentioned before. I think it’s fair to say “Holtzoff the
irascib1e.I’ He was an extremely good judge in many civil cases
but he had a reputation of being a very bad judge in criminal
trials. As a matter of fact there was sort of a saying that was
going around, particularly if you had an appointed case, which
was quite frequent in those days where the Court of Appeals would
appoint a member of the private Bar to handle an appeal of a
conviction. If this came from Holtzoff, you did not have to do a
great deal more than simply say, this is a criminal trial before
Judge Holtzoff in which the defendant was convicted. I see that
Mr. Jordan as a former Assistant U.S. Attorney has some
recollections along the same line. It was said of Holtzoff by
one of his colleagues in the Department of Justice — Holtzoff
had been known by the way as J. Edgar Hoover’s lawyer — anytime
that Hoover had any question he did not go widely in the
Department, he went to Holtzoff who by and large accommodated the
result that Mr. Hoover wanted. But Fritz Weiner who was in the
Solicitor General’s office said that Alex may be wrong but he was
never in doubt. Anyone who argued before Holtzoff had to be
prepared for two things. One, he had to know that Holtzoff was a
bit hard of hearing and was very proud – he didn’t want people to
know it so you had to really speak up. And second, the first
paragraph of your opening argument better tell him what the case
was about and what your position was because he was very quick
and got right to it. He frequently dictated his opinions from
the Bench and they were in almost flawless English and reasoning
even though sometimes the result was not what one wanted. We
were in a case for Schine Chain Theatres. That was a chain of
theaters operated on the Eastern Shore of Maryland which had been
charged with antitrust violations and of using certain muscle in
the kinds of film that they got and so on. It was a private
antitrust action. J. Meyer Schine who was the owner was the
father of David Schine of Roy Cohn & David Schine fame.I We
for Schine wanted the case moved from the District of Columbia to
Delaware. The private plaintiffs wanted it either kept in the
District of Columbia or moved to the Southern District of New
York, and Holtzoff confounded all of us by ordering the case
removed to Buffalo, the home office of Schine. No one wanted to
go to Buffalo and as he was making his ruling the attorney – – I
recall, I think was Abraham Myers for the plaintiffs. The
attorney started to interrupt and Holtzoff got furious at the
interruption and having no gavel he seized his pince-nez off of
his nose and began to bang those on the bench — saying the court
is delivering its opinion — sit down, and finally that was done.
I have one other anecdote abut Holtzoff; it was a rather bizarre
case. There was a former assistant English professor at the
Naval Academy who was writing the script for a comic strip based
on the feats, the exploits, of Congressional Medal of Honor
winners. This was during the Korean War to sell war bonds. The
Advertising Council had prepared, free of charge, ads which were
carried in a number of publications including Life that featured
a Medal of Honor winner and a little blurb about what that Medal
of Honor winner had done and it wound up saying he did his part,
now you do yours. Buy U.S. War Bonds. And Life and other
publications — in those days I think a full page ad in Life cost
something like $40,000 and they were donating it free – – and also
The reference is to the Army-McCarthy hearings in which Cohn
and Schine played a significant part.
– 10 –
the Leat herneck magazine, the magazine of the Marine Corps, were
carrying stories about Marine Corp winners. Mr. Curtis, the
former assistant English professor, thought this was a theft of
his idea and he brought suit against Time and the Leat herneck.
The suit was handled by Judge Holtzoff and I was assisting
principal counsel for u, who was Harold Medina Jr., son of the
distinguished New York lawyer and judge, both on the Southern
District bench and then eventually on the bench of the Second
Circuit. When I introduced young Medina Jr. to the judge, he
graciously accepted him into the case and counsel on the other
side was so inept that when he tried to put in his exhibits and
so on he didn’t know how to go about it. Medina was up
instantly, submitting the exhibits and generally in effect he was
trying both sides of the case. I was waiting for Holtzoff just
to eat him up and spit him out because if I had tried anything
like that I’m sure I would have gotten into real trouble. This
was around the time of my experience in the steel seizure case.
I did not realize that Judge Holtzoff had been a classmate and a
great admirer of Harold Medina Jr.Is father at Columbia Law
School. Holtzoff delivered — it was a silly lawsuit anyway —
Holtzoff delivered an oral opinion from the Bench, and the Court
of Appeals affirmed on the basis of the able opinion below.
close about Holtzoff by saying he was very good in the civil
cases and he had great difficulty with some of the criminal
cases. I see Mr. Jordan, Bob – – you have probably a recollection
at this point.
So I
– 11 –
Bob Jordan:
I just wondered John if you ever had an experience in the
criminal cases — as I recall Holtzoff was the only district
judge I had ever seen that would have the Court of Appeals
reverse a criminal case, send it back and instruct that it be
tried by a different district judge.
John Pickerinu:
Oh yes, oh yes. I thank you €or that because that ties
in with this anecdote about all you had to do was in effect to
say this is an appeal from a criminal trial presided over by
Judge Holtzoff. No, that’s quite right and it was too bad. I
don’t know — in those days we didn’t have the individual
calendar system and 1’11 come to that later. We had a master
calendar system and you never knew what district judge you were
going to get.
I’d like to turn now to Judge Luther Youngdahl who was
known as the head knocker. His reputation for settling cases was
fearsome. But I had an instance before him that if I had not had
an out-of-town lawyer there with me, they would have concluded
that I was the most incompetent representative on God’s green
earth. This was an unfair competition case. Life magazine, back
in the days of its heyday, had that big block LIFE in red and
white. There was a television repair outfit here in town that
was running trucks around with a direct steal of that LIFE mark
– 12 –
just on the trucks. So on behalf of IJEE; we brought suit to
enjoin infringement of the LIFE trademark. We go to a pretrial
hearing before Judge Goldsborough – – not Judge Goldsborough —
Judge Youngdahl — and fortunately as I say I had a New York
lawyer with me because otherwise the story would not be believed
– – we get in and before we started really on pretrial, Judge
Youngdahl looked and me and said Mr. Pickering, how much are you
prepared to pay to settle this case? I said your Honor, we’re the
plaintiffs. This is a direct steal. Oh, he says, I understand
that they came on this LIFE because their phone number is you
dial is LIFE TV. Now how much are you prepared to settle the
case for? I said we’re not prepared to settle any of the suit.
‘IWell now look, don’t you think if I issue an injunction, that
you ought to buy up the stationery of this company. They would
be put to some expense to have all this and to get their trucks
repainted. How much would that cost?” he asked the defendant.
The defendant sort of flabbergasted said, oh a few thousand
dollars. Well, after a little huddled conference we agreed to
buy the letterheads and to get the trucks repainted because we
knew that we were in deep trouble if Youngdahl was going to get
that case on trial. He didn’t want to waste time with something
like that and he was really helping out the little fellow. But
it really was one of the most incredible experiences I have ever
had and I think others have had something along the same line.
End of tape 1 side A
– 13 –
I next come to Judge James Kirkland who I will refer to
as sort of the unready. Kirkland had the proceeding of his life
in the so-called oil cartel case which was brought toward the
latter part of the Truman administration. The Federal Trade
Commission had issued a long detailed report about a so-called
cartel in the petroleum industry worldwide and they had started
this proceeding against the major U.S. oil companies on whom they
could get service. One of those companies was the old Anglo
Iranian Oil Company, now the British Petroleum Corporation which
at that point as I recall had entered into a relationship with
Standard Oil of Ohio which they eventually took over. British
Petroleum was – – majority ownership was in the British Crown —
the British government. Various of the companies were moving to
dismiss. It was an enormous proceeding with the leaders of the
Washington and New York bars involved in the case. British
Petroleum was represented by a leading New York lawyer, a
wonderful gentleman by the name of Bethuel Webster, who was the
head of the firm of Webster, Sheffield & Cristie. Beth Webster
was under explicit directions from His Majesty’s government not
to claim sovereign immunity but to interpose a so-called bar
order which His Majesty’s government had issued against British
Petroleum complying with the subpoenas that had been issued in
the case. It was then that I first knew what redtape really was.
This bar order was exemplified by the Right Honorable Anthony
Eden, His Majesty’s principal Secretary of State for Foreign
– 14 –
Affairs, and certified as genuine by the Department of State of
the United States. It had more red ribbons and seals on it than
any document I’ve ever seen before or since. And as it was
handed to Judge Kirkland, he says, “Yes Mr. Webster I understand
the British Government is claiming sovereign immunity.” Oh no,
Your Honor, no we’re not. No, we’re not claiming sovereign
immunity. We are simply claiming that the British Government can
prevent one of its subjects from complying with the subpoena in
this Court.” ‘!Oh, I understand. Case dismissed as to British
Petroleum on grounds of sovereign immunity.” And poor Webster
was just absolutely undone. The case was eventually transferred
to New York without much more involvement of Judge Kirkland and
it was a very black day €or the bar of the District of Columbia
when that case went off to New York.
Some judges are great in some ways. Some have
greatness thrust upon them and some rise to a particular occasion
in a way that would not have been expected. ?ad that I think is
true of the late Judge John Sirica, who became a national hero in
his steadfast determination to get to the bottom of the Watergate
case. He was offended, his sense of propriety, and so on, and
while he has been criticized as having broken some rules and some
rights of defendants, that did not disturb him very much. I had
several experiences before Judge Sirica and I often found that he
was evenhanded; sometimes he would give me relief to which I was
not entitled and sometimes he would deny relief to which I was
– 15 –
entitled. But my principal experience with him was in the
Watergate burglars’ trial before the criminal trial of the
Watergate principals, John Dean and others. This was the trial
of the burglars who had broken in, Liddy and the others. In the
course of that trial the Los Angeles Times printed a series of
articles based on the so-called Baldwin tapes. Baldwin was the
listener in the Howard Johnson Motel room hooked up to the bugs
that had been put in the headquarters of the Democratic National
Committee and he was the one who alerted the burglars to the fact
that something was wrong and they were able to get out. I can’t
remember the details, but the Baldwin tapes came into the
possession of the Los Angeles Times. Sirica in connection with
the criminal trial granted the defense motion to subpoena the
tapes. We were consulted by the Los Angeles Times. The tapes
were turned over to us and were put in our then office safe and
we filed a motion to quash on the grounds of First Amendment
privilege, freedom of the press, and so on. There was almost a
full day’s argument before Sirica on the point and at the
conclusion of which he said, I order you — I’ve forgotten the
name of the then Bureau Chief of the L.A. Times, Jack Nelson who
is now the Bureau Chief was also there. I order you Mr. so and
so to turn over the tapes. Your Honor, I respectfully refuse to
turn over the tapes. Mr. Marshal, seize that man, at which point
the head of the Bureau was taken down to one of the holding
cellblocks in the basement. My principal function was to try to
keep both Clerks’ offices open so we could get an immediate
– 16 –
appeal from the Sirica ruling up to the Court of Appeals. And we
were able, this was late in the day, around 4:30-5:00, we were
able to get the Bureau Chief released that evening. That was a
rather harrowing experience for him. He had not expected, he was
not prepared, he had no toothbrush with him or anything, but we
had an emergency hearing then the next morning. We drew a dream
panel, so we thought, in free speech. Judges Leventhal and
Bazelon – – I’m not sure, the third one may have been Fahy or
Edgerton, 1’11 come to this composition later. And my partner
Roger Wollenberg gets up to argue and suddenly we had a very
hostile panel. It had rapidly developed that this panel was more
interested in fair trials for the defendant than they were in the
free speech rights of the Los Angeles Times, at which point that
very sound and sage judge Harold Leventhal leaned forward and
said Mr. Wollenberg, has anybody checked with Mr. Baldwin as to
whether he has any objection to release of the tapes? No, Your
Honor. Well, why don’t we recess for a few minutes and you try
to reach Mr. Baldwin. The recess was taken, we got ahold of Mr.
Baldwin, he said, “1 don’t care.” The tapes were turned over to
the defense and thus a great constitutional case in the making
never got anywhere. But that is just an example of Sirica’s
determination to both be fair and at the same time be tough.
I’d like to sort of wind up this District Court
experience with a couple of instances and then talk a little bit
about the composition, the changes in the Court of Appeals, and
– 17 –
so on, but before I do that, again, a little Leventhal story.
Leventhal had a great sense of humor as well as a lot of
practical common sense. I was arguing a Food & Drug case in
front of him one day when I referred to the work of an FDA
scientist Livingston which we were criticizing. I knew the
minute I had said the name, what was coming. Judge Leventhal
leaned forward and says, Mr. Pickering, Dr. Livingston I presume.
I resisted, resisted, saying yes, Mr. Stanley. I didnlt. I said
yes, yes, Dr. Livingston. Fortunately the case came out for our
client but it was a delight to argue before a panel on which
Judge Leventhal sat simply because of his ready wit. He often
gave the lie to “sober as a judge”, in the sense that it was
always stimulating.
I’d like to refer to one of my real heroes on the – –
over time — on the District of Columbia bench. Former Chief
Judge, Aubrey Robinson, who really I think did great things as
the leader of the District Court and also because of his
understanding, his compassion, and so on. But again, like
Leventhal, Judge Robinson has a great sense of humor and I saw it
displayed beautifully during an argument in which the government
was seeking a Taft-Hartley injunction against a coal mine strike
that occurred in the Carter Administration. The government came
in to argue for the injunction, and to stress the seriousness of
the situation the argument was begun by the Attorney General,
Judge Griffin Bell, who really had not had much time to review
– 18 –
anything and he was just there sort of like, I don’t mean this in
any derogatory sense, but he was sort of like the acrobats to
warm up the crowd before the main event came on – – that was the
lawyer from the Civil Division who was prepared to really answer
questions and so on. Judge Robinson couldn’t resist. He threw a
hypothetical at Judge Bell which had nothing to do with much of
anything. It really was, it was almost impossible to follow. He
obviously had made it up just to have a bit of fun and Judge Bell
took him seriously and tried his best to try to answer the
matter. Well, after a long argument, the Judge said well let’s
work out an order between the government, the Union and the coal
companies and we all went trooping into the jury room. He
presided, and we really hammered out an acceptable order, in the
course of which I had the opportunity in an aside to say, why did
you do that? And he said I was just seeing what the reaction
would be.
Another great Chief Judge of the U.S. District Court
was the late Bolitha Laws. I think — I didn’t have the
privilege of appearing before him, but he was a Chief Judge who
could run a master calendar program. Really things went along
while he was the Chief Judge — was good as I’ve said before.
There was a certain amount of room for maneuver as to when
various judges were coming into the motions calendar or others
but Judge Laws did keep it moving. One of the great experiences
I had was in 1966 when, being a relatively young lawyer, I was
– 19 –
named to the Committee on the Administration of Justice which was
appointed by the U.S. Court of Appeals. Its initial Chair was
Judge Gesell while he was still with Covington & Burling and
after he became a judge the Chairmanship was taken over by Newel1
Ellison, a semi-retired Covington partner who had run the
Covington firm for a number of years, a very, very able,
dedicated man. That Committee ran the first management survey
that had ever been conducted of courts. Really, major courts.
We were given a $200,000 grant by the Ford Foundation following
an appropriation of $200,000 from Congress which was arranged by
Senator Joseph Tydings, the son of the former Senator Millard
Tydings. The first thing we had to do was to get a staff
together. There were very few people who in those days were
experienced in court management which we now take for granted.
But we did get a first-rate staff put together and we had a
distinguished advisory committee that included such people as
Professor–the name will come to me — Maurice Rosenberg at
Columbia, Ed McConnell who went on to become the long-time
Chairman of the National Center for State Courts, Geof Hazard of
the Yale faculty and others, In the course of our study we
became convinced that the individual– that the master calendar
system was not working satisfactorily. Each of us had had some
horror stories – – I remember one libel case in which I was before
six of the then nine judges in the — on the District Court in
connection with various discovery motions, and it was a very
wasteful experience. So we were all convinced, we people as a
– 20 –
nine-person committee, which included John Wilson, Steve Ailes,
Ed Campbell, Dan Rezneck, myself, Ed Williams was an original
member, and eventually people went on to become judges as the
composition changed, Gesell, Pratt, June Green, had all been on
the — that committee before their appointment to the bench. We
wanted — reached the conclusion there should be an individual
calendar system. Our staff says there is no empirical evidence
one way or the other, you can successfully run a master calendar
system. We said yes, Judge Bolitha Laws had — as Chief Judge
had run one, but it’s not working here now and we ought to have
— we’re going to recommend an individual calendar, and we
overruled the staff. A delegation of us, as memory serves me,
Newell Ellison as the Chair, John Wilson, Ed Campbell and Steve
Ailes and I went to call on then Chief Judge George Hart. We
presented our proposal to him. While he said well that makes a
great deal of sense, but I really, I don’t think that we’re quite
ready for that. Well we discussed it further and Newell Ellison
got quite frank on why he thought that this should be done and
Hart was resistant. I will never forget Newell, who was about
five feet five, looked like a cherub, drew himself up to about
six feet, red as a turkey gobbler, and says well, Chief Judge, if
you’re not prepared to listen to what advice we are giving, we
have other things to do, we will go back uptown at which point
Chief Judge Hart said, “Now Newell, now Newell, now Newell,” and
the result was the experimental program under Judges Gasch,
Gesell and Aubrey Robinson where they were given the right to run
– 21 –
on an experimental basis the individual calendar system, and it
proved so successful that all the Court is now on the individual
calendar system in that way.
I’d like to add one additional little sort of anecdote
which can show sometimes the failure to be aware and the fact
that judges are very human people and so on. It’s an anecdote
that comes out of the Adam Clayton Powell case where Congressman
Powell had been, I can never remember whether it was expelled or
excluded from the House but he brought suit against the Speaker
and the other leaders of the House to regain his seat. I was one
of the number of lawyers, headed by Bruce Bromley of Cravath who
defended the House. We won the case before Judge Hart, whom I
referred to before, and in a long argument in the ceremonial
courtroom before Judges — Circuit Judges McGowan, Leventhal and
Burger, we won again. Burger wrote the lead opinion with
Leventhal and McGowan writing their own concurrences. The
Supreme Court reversed eight to none. The day of that reversal,
and I have heard this and I think it’s authentic, the day of that
reversal Judge Burger who had then been appointed by Nixon to be
the Chief Justice was paying a courtesy call following the
announcement of the opinions that day to Chief Justice Warren,
who without any recollection or thought that they had just
reversed Burger’s whole decision, said something, and I don’t
have the exact words, said something about we really had to
correct a rather wrong or silly whatever decision from your
– 22 –
court–without any awareness that Chief Justice-to-be Burger was
intimately involved in connection with that decision.
Let me turn now to something that has always been a
fact, a problem, here in the federal courts in the District of
Columbia. At the time when I started here in 1947, many of the
judges both on the District Bench and on the Court of Appeals had
been primarily local lawyers. Some who had been Congressmen,
like Alan Goldsborough, who I have referred to–there were others
who came out of the District U.S. Attorney’s Office, or out of
private practice, and it was more local even though they had
national cases. It was more of a locally oriented bench I think,
a lot of the – – I often wondered why Dick Wilmer my late senior
partner — knew so many judges. He had grown up with them in
Washington. We have had a lot of changes. We now have gone to
more national, more diverse courts, and we have also seen how
various administrations have influenced the courts, but before I
get to that there is one thing I would like to say and that is in
my lifetime here I have seen the courts go from white male only
to having minorities, having blacks and having women on the
Bench. There were one or two women, I think, on what we referred
to as the old Municipal Court, now the Superior Court of the
District of Columbia, but there were none on the federal courts.
I remember a very poignant anecdote, that then Chief Judge
Bryant, again a very, very fine judge, leader of the court, told
me. I had visited him in connection with some responsibility I
– 23 –
had for the District of Columbia Bar. He had just concluded the
trial of John Jenrette, who was part of the Arab sting that had
netted a number of congressmen, including Senator Harrison
Williams of New Jersey.
it reminded him of his start — when he got out of law school – –
at this time it seems hard to believe that a person of his
ability — because there were no jobs for him in the law – – ran
an elevator for awhile and eventually joined a — one of the
small black law firms here. But he said he used to spend late
afternoons in what was referred to as the “Fifth Street” bar. In
contrast to the IlUptown Bar,” they were the experienced criminal,
not criminal lawyers, but defendant lawyers, lawyers defending
persons accused of crime. They hung around the courts and
included legendary people like John J. Laughlin and Charles Ford.
Judge Bryant said you could listen to those fellows; they would
be consoling themselves after hours over a cup of coffee or
something stronger, saying what did my client expect — they had
everything on him except a movie. Then Judge Bryant burst into
laughter and said, “And now, in the case I have just concluded,
they had the movie.’l
We got to chatting and Judge Bryant said
Also once in the middle of the Watergate trial of the
principals, I asked John Wilson how things were going and he
said, have you ever tried to cross-examine a tape? That sort of
summed up the difficulties of defending when you had the Nixon
tapes to contend with.
– 24 –
Let me get back now to what has been I think a matter
of some concern to the Bar. That is the fact that in making
appointments to the local federal courts, a preference is often
given to people from outside the District of Columbia Bar – – in
some cases they have been absolutely marvelous appointments and
others less distinguished. But we do have a lot of distinguished
lawyers here in the District of Columbia who feel somewhat
slighted on occasion. Also, you see the enormous swings in the
so-called liberal and conservative wings of the courts. You had
during the Truman administration a number of changes in the
courts some of which were liberal appointments, some of which
were middle, some of which were conservative, but these labels
are sometimes no great use in trying to reflect a judge’s
philosophy or how he or she might decide in a particular case.
Nevertheless lawyers like to try to read the tea leaves. For a
long time panels in the U.S. Court of Appeals were not named in
advance; you didn’t know anything about them until you appeared
in argument.
End of tape 1, side B
Well, as I was saying, or was about to say, one of the things
which fortunately has changed is the fact that in the 40s, 50s
and into the 60s, we had no public defender service here.
Consequently the U.S. Court of Appeals appointed lawyers to
– 25 –
represent persons who had been convicted below who could not
afford counsel for appeal. Sometimes you had landmark cases like
the Durham case in which Abe Fortas had argued successfully for a
revised standard of the insanity defense and there were other
noted lawyers who appeared by appointment of the court. But
since you never knew who was going to be your panel, you did not
have any ability to try to shape your argument to what you
thought might appeal to one or another panel member. It would
always be a case of a distinct shock if you had been appointed to
represent a defendant who had been convicted below and you would
get a panel consisting of Bennett Champ Clark, Wilbur K. Miller
and John Danaher. You might just as well have quit. You were
not going to do very well on a new theory of search and seizure
or anything of that nature urging an expansion of defendant’s
rights. By the same token, if you were representing a large
corporation, and challenging an administrative order, woe unto
you if coming out of the velvet curtains would be a panel
consisting of Judge Edgerton, Judge Fahy and Judge Bazelon.
Sometimes you would get a mixed group, and as Bob Jordan has
reminded me, you would then try to argue to the so-called neutral
in hoping for a favorable result. There was a lot of feeling on
the part of the bar that these panels were often rigged depending
on the case by Chief Judge Bazelon. That was not so. Our
Committee on the Administration of Justice, that ran the
management study, interviewed extensively and determined that
panels were selected by the roll of poker dice by the Clerk.
– 26 –
Sometimes they would come up one way and sometimes another but
there was absolutely no rigging. In a public report we were able
to say that there was none of that although it was hard to
believe when — depending on the type of case that you had – – the
panel seemed picked to do you in.
Bob Jordan:
John, before you move on can I ask you one question
about that?
John Pickerins:
Bob Jordan:
John, you — you had the sitting judges of the Circuit
but you also have the practice of judges sitting by designation
and, rumor had it, or you know some of the people thought, that
the Chief Judge had more involvement in the selection of the
judges sitting by designation from out of the jurisdiction and
that in that case there might be more of an argument for the
panels being affected, and I do recall that at one point in time
a judge from Texas who was fairly liberal whose last name was
Justice showed up on a fair number of criminal appeals, search
and seizure type cases, I just wondered if your group ever looked
into that.
– 27 –
John Pickerina:
Yes, not on the Committee on the Administration of
Justice, but another committee I was privileged to Chair for six
years for the Court of Appeals — the committee is still
functioning — the Advisory Committee on Procedures that the
court established in 1976 pursuant to the recommendations of the
Hruska Committee report. We urged at that time and the court
adopted it, that the panels be announced in advance.
now regularly done.
judges sitting by designation. But that was primarily with
respect to members of the U.S. District Court here in the
District of Columbia sitting by designation. We thought they
should not review their colleagues’ decisions. The defense
always was, or the court’s explanation always was, that they were
short-handed, as they often were and that they needed to get
additional help. 1 recall one judge who sat like, you recall the
judge from Texas, there was a judge named Wilkin who I think was
somewhere in the midwest, who frequently sat on patent cases and
one would begin to wonder. However as I recall, recommendations
can be made, but it is the Chief Justice of the United States who
approves a designation.
because of the shortage of funds in the federal judiciary to pay
travel and lodging and that sort of thing. I haven’t really
looked at this recently, but I know that the practice of using
visiting judges from out of the District of Columbia has been
sharply curtailed because of that. Designation to sit on the
And that is
We also expressed concern about the use of
Very few have been approved recently
– 20 –
D.C. Circuit was looked on as – – by many judges as a great
privilege to come here — have a nice visit in Washington, sit
with some good judges, good colleagues and so on. Erwin Griswold
has written, I forgot where, a criticism of using visiting judges
of any kind, simply because it destroys the collegiality of the
court to use someone who is not acquainted with the — all the
nuances and the other members of the court and the bar of the
court. So I think that use of visiting judges doesn’t happen
very frequently and I think that the thought that they were being
rigged is probably wrong in view of the fact that the Chief
Justice had to approve any requests.
As I said, the thing that troubled us on the original
committee on advisory procedures, the Advisory Committee on
Procedures, a committee which still continues, and still troubles
it, is the practice of using our own U.S. district judges to sit
on the District of Columbia Circuit. Our concern there has been
the possible reluctance of a district judge sitting on the Court
of Appeals and passing on the work of one of his or her fellow
district judges. We have written reports, we have criticized the
practice but the court’s answer is we need the person power, so
on, so there is — that is that.
We have certainly had the swings in the court as being
liberal or conservative. The highlight I guess of my experience
of the liberal court were some of the holdovers from previous
– 29 –
appointments. I refer primarily to Judges Fahy and Edgerton and
then to Johnson and – – Kennedy and Johnson appointments — of – –
I should add of course to the previous group Bazelon who was a
Truman appointee and then the Kennedy and Johnson appointments of
Judges Skelly Wright, Carl McGowan, Harold Leventhal, and
Spottswood Robinson. And then a switch came in the Nixon
appointments of Judges MacKinnon, Robb and Wilkey and it came to
a somewhat more balanced court and then the liberal wing — the
so-called liberal wing — went into the ascendancy again with the
Carter appointments of Ruth Ginsburg, Pat Wald, Harry Edwards and
Abner Mikva, and now it’s gone back with the appointments of the
Reagan and Bush administrations where if you want to try a
headcount, you’ve got something like three on the liberal wing
and maybe one or two in the center, and six or so on the
conservative side. But undoubtedly there will be changes again
in the future. But by and large aside from – – I think it’s more
of a feeling of the bar – – they think “Gee whiz, certain panels
are out to do you in.” My experience basically has been that the
judges have tried to be fair but all of us are to some extent a
product of our experience and so on. Certainly an Alexander
Holtzoff who had worked for J. Edgar Hoover and the Department of
Justice had one view of criminal law as contrasted with somebody
who had been a defense attorney and had seen things from a
different perspective, but we have been, I think, quite fortunate
here in the District of Columbia in the caliber by and large of
the appointments that have been made. There have been some that
30 –
have been just simply political. There have been others that
were done for political purposes that worked out extremely well.
Here I refer to the well-known Judge J. Skelly Wright, who
courageously enforced school desegregation in Louisiana, and had
no chance to be named to the then Fifth Circuit, but he was named
by President Kennedy to the District of Columbia Circuit where he
served with distinction many, many years, including a stint as
Chief Judge. Also Carl McGowan, a distinguished lawyer and law
teacher in Illinois, and a former special assistant to Governor
Adlai Stevenson. For some reason or other then Senator Paul
Douglas was opposed to appointing McGowan to the Seventh Circuit,
so he again was appointed by President Johnson — President
Kennedy rather — to the D.C. Circuit and where he — like Judge
Skelly Wright — he really was one of the great stars of the
bench here, a lawyer and a judge completely respected by the bar
for his ability and his fairness. There remains a real problem,
I know the people who followed me in the Presidency of the
District of Columbia Bar like Paul Friedman and others have tried
to impress on the appointing authorities the desirability of not
lightly passing over people we have here in the District of
Columbia Bar but that I am sure will remain a problem well into
the future. There is some basis because certainly our U.S. Court
of Appeals is rightly known as the second most important court in
the federal system.
Bob Jo rdan :
– 31 –
John, you talked about the judges coming in from
outside and about how your partner Wilmer knew so many judges.
would observe, like your comments, that I think, I go out into
the boondocks in my practice and one of the things I observe out
there is that the lawyers and the judges know each other much
John Picke rina :
Oh, yes–
Bob Jordan:
And it seemed to me that the combination of the
increase in the number of lawyers in Washington and the – –
coupled with the number of judges who didn’t have local ties that
the character of the bench bar relationship has probably not
changed as much in my time, although I’ve seen it, but you’ve
been there longer and have probably seen more of that period of
change and I’d like your reflections on that.
John P ickerins :
Well, I think that is very right, Bob. It is. In the
first place it is a function of numbers. When I started here I
think there were only about six or seven U.S. District Judges and
I think five or six on the Court of Appeals. Now you have
fifteen or so district judges and you have what is it, twelve —
– 32 –
Bob Jordan:
Twelve, I think – –
an enormous growth in the bar and you have the fact there is not
really a bar of federal courts here in the District of Columbia.
There are local lawyers here who are hardly ever in the federal
courts. There are many lawyers outside of Washington who have a
considerable practice here. Sometimes in association with some
Washington lawyers. I previously referred to the fact that two
of the most exciting professional experiences I have had – – the
steel seizure case and the Adam Clayton Powell case – – lead
counsel that I was associated with was Bruce Bromley of the
Cravath firm. I’ve heard judges, particularly on the U.S. Court
of Appeals, complain that there is not a bar of their Court to
which they can easily identify, simply because some of the major
administrative matters in which they deal came to involve a lot
of non-District of Columbia lawyers. The creation of the
Advisory Committee on Procedures was aimed at trying to get a
little better exchange between bench and bar, and at the Judicial
Conference, but there still is not that kind of familiarity.
Like you, there are some — in particularly some of the most
sparsely populated states — a federal district judge is known to
everybody and they push grocery carts together and —
– 33 –
John Pickerinu:
— Exactly. Or are members of either the Rotary or the
Kiwanis and so on, and there is — and there is a familiarity;
you know what lawyers you can count on and what you may have to
unfortunately be a little concerned about.
is just a function of – – and I’m afraid — of size and
dispersion. I remember, and I’m sure that Chief Justice Burger
would not mind my saying this, but I have heard him say on
occasion that there was a much better level of performance in the
U.S. Court of Appeals for the D.C. Circuit than he found in the
Supreme Court of the United States. There–while there are many
highly professional practitioners there, particularly the
Solicitor General’s Office which presents the Government’s cases,
there are a number of people who have one case in their lifetime
just through a fluke; they have absolutely no idea what the
Supreme Court is about–
And it’s too bad; it
Bob Jordan:
Some of them are Attorneys General who want their —
the limelight of being there or —
John Pickerina:
– 34 –
Yes, yes– the Attorneys General have recognized the
need for which they had not before. They now have an
organization which helps moot court assistant AGs who are coming
to argue —
Bob Jordan:
One of my former partners, Stewart Baker, was very much
involved in trying to get that thing going.
John Pickerincr:
Yes, it’s a very useful thing. We had a former
associate who was for several years Assistant Attorney General of
Maine and he would use our offices to get moot court. Even worse
than the oral arguments, are of course the petitions for
certiorari, which were often filed by people who think that the
Supreme Court’s only function is to correct an error below or to
at least look to see whether there has been an error below and
the – – In 1941 to ’43 I was privileged to serve as law clerk to
Justice Frank Murphy. I sit back and remember some of those
petitions which had absolutely no reason for being filed. And
I’m sure that just with the passage of time and the growth of the
country and the courts, litigation has gotten to be even worse of
a problem but it would be nice to have the — part of the close
relationships, not in any sense of the old boy or old girl
network, but just in the fact that there is a common bond that we
are officers of the court and that we owe something to the court
– 35 –
system and in the same way that the court system has some
obligation to listen to the bar which is what I think has been
something that the courts of the District of Columbia — I really
don’t want to single out but since we’re talking about the
federal courts — the federal courts have really been quite good
in first the establishment of this — Committee on the
Administration of Justice which ran this management study. At
the time that we did that, the court system consisted here of the
Juvenile Court, the Court of General Sessions which had limited
jurisdiction, as I recall up to $lO,OOO, had no equity
Bob Jordan :
– – Misdemeanor criminal jurisdiction?
John Pickerins: –
— Misdemeanor criminal jurisdiction prosecuted by the
United States Attorney which is still a bone of contention here
in the District of Columbia, and you had a D.C., a District of
Columbia Court of Appeals, a three-judge bench from which appeals
lay by leave to the United States Court of Appeals for the
District of Columbia Circuit. As a result of the management
studies that we ran, although we recommended going somewhat
slower and doing it in stages, Congress in 1972 created the
present court system. The Juvenile Court was merged into the
General Sessions Court into a family branch. It was – – the court
– 36 –
was renamed Superior Court. The District of Columbia Court of
Appeals was constituted as in effect the highest court of the
District, the District being treated as a state for that purpose
and appeals review. Now review of the D.C. Court of Appeals can
only be had in the Supreme Court of the United States. No longer
do the federal courts in the District of Columbia sit over the
District of Columbia court system and the Superior Court now has
general civil and criminal jurisdiction felonies, District
felonies, but again the felonies are handled by the U.S. Attorney
— I think the misdemeanors or some of the misdemeanors are
handled by and prosecuted by the Corporation Counsel’s Office.
Mainly though the sort of incommoding the sidewalk–
regulatory misdemeanors, not common law crimes – –
John Pickerins:
Yeh, really minor, small beer as you would say. And
the U.S. Attorney and of course one of the great conflicts going
on at the moment is the tension between the U.S. District Court
bench and the U.S. Attorneys Office over where to bring the drug
cases. And that again reminds me of an enormous change. When I
started practice here, the federal district court was not only a
federal district court but it also had District of Columbia
jurisdiction there over $10,000 and equitable jurisdiction, if
you had a lawsuit over specific performance. The District of
– 37 –
Columbia U.S. District Court appointed the School Board when I
was here. That led to a rather – – Judge Skelly Wright who was
rescued from Louisiana, literally, where they had had crosses
burned on their lawn and many threats of violence — had to have
a U.S. Marshal live in while the turmoil of desegregation was
going on. What happens to the poor judge – – he comes up here.
The first case he gets assigned is a — sitting as a District
Judge — was the suit of Julius Hobson against the D.C. School
Board. All the other federal district judges had had to recuse
themselves because they had appointed the School Board. So Judge
Wright goes from the frying pan into the fire which was quite an
initiation for him coming up here. So you had that enormous
change where the grist of the criminal cases were handled in the
federal courts and as I have said the bar was called on — was
quite regularly. Major firms just had to line up to accept these
appointments to represent people convicted below, often the
lawyers who handled the trial for one reason or another could not
continue, or would not, with the appointment. That has all
changed to the extent – – the fact that the U.S. Courts – – to the
extent that the U.S. Attorney chooses — have much less in the
way of local crime but with the enormous impact of the drug cases
we see our civil docket sliding. Many of the changes we
recommended in the late 60s which were adopted in ’72 were
intended to enable the courts to get current. And they by and
large did. But now we see the great problems in trying
– 38 –
particularly on the civil side and the real problems of the
courts trying to function. And again it’s
— I have a — I recall a marvelous story of Newell Ellison when
he was chairing the Committee on the Administration of Justice.
This was in the early days of the Nixon Administration which like
many an administration featured law and order. We’re going to do
this – – we’re going to do that. We’re going to put more cops on
the beat. And Newel1 at one of our meetings said, you know – –
what organization – – what factory — what business – – would be so
stupid as to put more salesmen on the road without any concern or
planning for the ability of the factory to produce – – to process
the orders. Substitute for salesmen police; substitute €or
factory the court and prison system. And we’re still doing the
same stupid thing.
John, thank you so much for your time. It’s been very
entertaining and educational for me and I’m sure it will be €or
everyone who has a chance to benefit from this session.
I feel very privileged to be a part of it because I think that
— as they say over the archives–“the past is prologue,” and I
think that — again, a compliment is due to the federal courts.
They undertook to get this project started.