John Pratt Oral History Transcript of Interviews (1)

INTERVIEW WITH JUDGE PRATT
JAS: Judge, do you remember your grandparents?
JUDGE: I remember two grandmothers.
grandfather.
I don’t remember either
JAS:
JUDGE:
Mayflower
When did your forbears come to this country?
Well, way back. Two of them came over on the
I don’t mention them, but you asked me the
Mayflower is a very big ship, you know. But, two of them Degory
Priest and Steven Hopkins were ancestors. Of course, they landed
on the south shore of Massachusetts.
JAS: Your father was in the military, was he not?
JUDGE: My father was a Marine officer.
JAS: You were a military child, so to speak?
JUDGE: Yes.
JAS: What circumstances brought you to Washington?
JUDGE: My father was first stationed here from 1919 to 1921.
JAS: Where did you live when he was stationed here?
– 1 –
JUDGE: Well, we lived on what is now Reno Road — at the
corner of what is now Van Ness Street. Then it was then known as
Spring land Lane. It was right next to the Bureau of Standards
where they were testing Liberty motors that late summer of 1918-19.
It was all woods between Connecticut Avenue and Tenleytown which is
on Wisconsin Avenue. We walked through the woods to the parochial
school. As far as Connecticut Avenue was concerned, there were no
buildings except for a store or so at the corner of what is now
Albemarle Street, until you got to Chevy Chase Circle. There were
woods on both sides and there were no apartment houses or anything
else there in 1920.
JAS: Were you an only child?
JUDGE: No, I was the oldest of six.
JAS: Are your brothers and sisters living?
JUDGE:
youngest.
oldest.
JAS:
All of them are living except one
There were three boys and three girls.
What do your brothers do?
sister,
I was
the
the
JUDGE: Well, one is a retired Captain of the Navy, and
another is a retired Rear Admiral in the Navy. And my uncle was
– 2 –
Chief of Naval Operations. William Veazie Pratt. The ship on the
wall (pointing) was named after him — one of those destroyers.
JAS: Would you sketch in your education. As I recall i t is
a pretty good education.
JUDGE: Well, all of my education, I think, is due to my
mother’s interest in seeing that I was educated. I was in
parochial school as I told you at Tenleytown. Then we moved to
Boston — and while we were there I went to the Boston Latin School
for two years, the 7th and 8th grades.
JAS: Boston Latin has a very distinguished alumni.
JUDGE: Yes, it’s the oldest public school — oldest private
or public school in the United States. It was founded in 1635.
JAS: I think Gerry Reilly went there.
JUDGE: Reilly went to Latin School, Benjamin Franklin,
Charles Sumner, Edward Everett Hale, many others, not to mention
the late Joe Kennedy. Admission was by competitive exam. Theodore
White also went to Boston Latin. He won the Boston Newsboy
Scholarship to Harvard College.
JAS: Did you know him?
– 3 –
JUDGE: No, but I met him. And as a matter of fact, when Jim
Rowe was nominated to the Harvard Board of Overseers. Ted White
was the Chairman of the Nominating Committee and he asked me if I
had any suggestions.
elected.
I suggested Rowe.
JAS: Boston Latin, then what?
Jim was nominated and
JUDGE: Boston Latin school to the 8th grade. We came down
here to Washington in the Fall of 1923. I entered Gonzaga as a
Sophomore because I had had Latin. They didn’t realize that I was
a complete blank in everything else. I was enrolled as a Sophomore,
was there two months when I was yanked out and sent to the U.S.
Senate as a page. It was assumed that I was going to go to school
at night. I tried that for one week at E merson Institute but I
couldn’t stand it physically so I did no schooling that year. When
the year was over, in other words, after I had served as a page
between the first of December and June of 1924 I went back to
Gonzaga in September of 1924. They assumed I had been going to
school so they put me in the Junior year. Actually I entered
Junior year with neither first year or second year credits. That
was very difficult because we were studying second year Greek. I
hadn’t even had Greek grammar. But I hustled and managed to
graduate, the youngest in my class.
JAS: Did you participate in athletics?
– 4 –
man.
JUDGE: No, I was only 15 years old.
JAS: Hugh Lynch told me that you were a very good racquet
JUDGE: Well, I won the local Club and City championship one
time. My brothers were good athletes. One brother was quarterback
of the Navy football team for a couple of years and was captain of
baseball and the other one also played on the Navy baseball team.
But I missed out on that because of my age.
JAS: After graduating from Gonzaga where did you go?
JUDGE: I went to Georgetown College.
JUDGE: I was there two years when my father was ordered to
Haiti. That’s the area that is now in contention. My father had
charge of the Southern half of the island. My mother at this time
decided that I should stay in the U.S. and go to Harvard. So she
wrote the Director of Admissions, a man named Pennypacker — a
former headmaster of the Boston Latin School. Mr. Pennypacker
admitted me as a provisional junior.
I went up there completely alone and not knowing anyone else.
I lived in one of the dorms. I was 17 when I got there. When the
November grades issued, my first marks were two C’s and two D’s.
– 5 –
At Georgetown I’d been getting all A’s and B’s. This was quite a
shock and then I got a letter from the Dean saying that if I didn’t
improve I was going to be put on probation. With my family in
Haiti, I was a pretty sick duck, I can tell you.
the rhythm and the rest is sort of history.
But I got into
’31.
JAS: I know you graduated at a very young age.
JUDGE: I graduated in 1930. I was 19½.
JAS: Then what happened?
JUDGE: I took a year off and went to law school in Fall of
JAS: Harvard Law School?
JUDGE: Yes.
JAS: Who were contemporaries that we might know?
JUDGE: At the law school — Charlie Horsky was one of several
very smart guys in our class. Kenneth Davis wrote Davis on
Administrative Law — Dick Demuth was another one. He was with
World Bank. I saw him the other day. And David Reisman. I was i n
a study group with Reisman m y first year. There were five of us.
– 6 –
Three passed, two flunked. Reisman led the class. He didn’t plan
to go to Law School when he got through college. He got a Magna
and a Phi Beta in chemistry and was thinking about going to medical
school. At the last minute he decided to go to law school and in
fact he registered late. He just ”spread eagled” the class and he
got a fantastic 88, the highest grade in years.
JAS: When did you graduate from Harvard Law School?
JUDGE: 1934.
JAS: What did you do next?
JUDGE: Well I came down here and started to work for George
Morris, helping him with a book on taxation. Jobs were very scarce
as you — well this was a little ahead of your time — but they
were scarce at that time. I was paid $1500 a year which was more
than most people received when just out of law school.
JAS: Where was his office?
JUDGE: 905 American Security Building. Next to the American
Security Bank. South of Union Trust.
JAS: Who were the leaders of the bar at that time?
JUDGE: Well, Regis Noel was the one that immediately comes to
– 7 –
mind. He sort of led a revolt against the establishment — the Bar
Association.
JAS:
come later?
Was William Leahy active in those days? Or did that
JUDGE: Well, he was also a great trial lawyer. He and Frank
Hogan were the two great trial lawyers. And in fact I think — I
know – – I have seen them both in action.
impressive fellows.
And they were very
JAS:
lawyer?
How would you describe William Leahy as a trial
JUDGE: Well, in order to understand him you’ve got to
understand his background. He’s an Irish Catholic. He went to
Holy Cross and I think maybe Georgetown Law School — I’m not sure
about that. But he was always well prepared, somewhat flamboyant.
I think he was very much his own man. He was kind of a stocky
fellow with a big round head. A man named Hughes, Colonel Hughes,
was his scholar in residence. I suppose he fed the stuff to Bill
Leahy and Bill Leahy was the one that presented it when he was in
court.
JAS: I saw him once in Court, near the end of his life —
I think it was the last case he tried — defending a criminal case.
– 8 –
I was told that the fee was $75,000 cash.
JUDGE: That was a lot of money then.
JAS: It was found in his safe deposit box after he died.
He just put it in there. What was your practice with Mr. Morris?
JUDGE: He was entirely a tax man. My job was to do research
for Morris’ book on corporate taxation. He had three associates -everybody
was an associate in that office — he was the boss. They
were all very good tax men. Later on they acquired Albert Beitel,
an excellent lawyer, who had formerly been with the Civil
Aeronautics Board. I was kind of a jack-of-all-trades and master
of none. After the book ran out, the off ice was retained to
represent the Brotherhood of Locomotive Firemen and Enginemen and
the Brotherhood of Locomotive Engineers in an Interstate Commerce
proceeding against 725 Class I railroads. The Unions claimed that
the larger steam locomotives should be equipped with mechanical
stokers. What was happening was that during the Depression,
engineers who had been firemen were being demoted back to firemen.
Because of their age, they suffered physical disadvantages leading
to accumulated fatigue. It was also much safer having them on the
left side of the locomotive looking out rather than down on deck of
these locomotives shoveling coal. It was a very protracted case.
Around the clock literally, Saturdays, Sundays and nights. About
6 or 7 months and about 600 witnesses. The transcript was some
– 9 –
25,000 pages long. I don’t know how many exhibits. And we got a
favorable decision out of the trial examiner when nobody knew,
except us, that he had been a former member of the Firemen’s
Brotherhood. That case went to the Sixth Circuit Court of Appeals
in Cleveland. My only job was to run the projector in the court in
Cleveland, to show that one couldn’t see anything if you are
sitting upon the left seat box with the train either going to the
right or slightly to the right I don’t know whether this is
worth pointing out but Florence Allen, the first woman Court of
Appeals judge in the United States, served on the three-judge
panel.
JAS: Who were your close friends in those days?
JUDGE: Well, when I came down here I lived with Brunson
MacChesney, who had just graduated from Michigan Law School. He
was Jim Landis’ law clerk. Landis was one of the first
Commissioners of the SEC and was later the Dean of the Harvard Law
School. We lived on Eye Street in an apartment house and I think
along about January we moved into a house on Q Street in Georgetown
with Dave Shaw and Gary Van Arkel. Shaw and Van Arkel were both a
year ahead of me at the law school. Both worked at the Labor
Relations Board. Van Arkel then later became General Counsel to
the Board and resigned when the Taft-Hartley Act was passed in
1948. Van Arkel and Henry Kaiser then became partners. We all
were together until the summer of ’37 when I moved in with Oliver
– 10 –
Gasch, Phil Herrick and Jimmy Mann at the Gasch House on P Street.
I was there until I got married the next year.
JAS: What were your hobbies in those days?
JUDGE: I played a lot of squash. I didn’t play much golf.
That’s exercise I suppose. I did a fair amount of reading.
JAS: Where did you play squash?
JUDGE: University Club. My father had joined the Racquet
Club in the early 20’s so my brothers and I could have a place to
swim. Well of course the Racquet Club went bust in the early ’30s
and its building was acquired by the University Club.
JAS: Where was the Racquet Club?
JUDGE: Right there where the University Club is now, on 16th
Street next to the Soviet Embassy. It went bust and the University
Club moved in from their spot at 15th and Eye Streets. John L.
Lewis and the United Mine Workers moved into what was formerly the
University Club. And in those days the dues were $4.53 a month.
There was no initiation fee.
JAS: Who were the good squash players in those days?
– 11 –
JUDGE: Well, Marshall Exnicious and Jimmy Gibson were the two
that stand out. Both of them won the Club championship a number of
times. I beat Exnicious finally and when I beat him he quit. He
was a rather dashing fell ow around town. I don’t know if you
remember him. He wore a derby hat and I think carried a cane.
JAS: Did he have a beautiful daughter?
JUDGE: Yes he did.
JUDGE: Well Marshall really put on the dog, style wise.
JAS: What did he do?
JUDGE: He was a stockbroker. And I’m trying to think of
others — Frank Pace, later Secretary of the Army, also played a
lot of squash. Rowland Evans was another. Evans is a real
racquet man. We once played at the Merion Cricket Club in
Philadelphia, having a team sent up there. Rowly pointed out the
Merion Cricket Club building and said his grandfather had done the
architecture many years before. He was awfully good.
JAS: Were you playing any tennis in those days?
JUDGE: Yes. I played tennis. I didn’t belong to any club.
I played at St. Albans.
– 12 –
JAS: Did you ever play Hugh Lynch?
JUDGE: I played against Hugh Lynch. Hugh Lynch was and
probably still is damned good. Hugh Lynch could return balls all
day long.
JAS: Hugh went to Princeton on a baseball scholarship. He
was playing shortstop on his high school team. Then they converted
him to tennis and he became captain of the tennis team.
JUDGE: I think his son may have been captain also.
JAS: Yes. That’s right.
JUDGE: What’s his son doing now?
JAS: Well, Hugh, Jr., Hugh, III — he teaches at St.
Albans. I played a lot of paddle tennis with Hugh and a little
tennis.
JUDGE: Where do you play paddle tennis?
JAS: I’ve got a court next to my house.
JUDGE: Did you build it?
– 13 –
JAS: Yes. It’s gone through various phases but it’s in
pretty good shape now. John Lynham has played on my court. Do you
know John Lynham?
JUDGE: Do you mean Charlie Lynham’s son?
JAS: Yes. He’s a very good athlete.
JUDGE: He’s a recent member of the Lawyer’s Club.
JAS: Yes. He’s a very good athlete.
JUDGE: My wife has played bridge with his mother.
JAS: Then what happened to your career as a lawyer?
JUDGE: Then we had — oh miscellaneous things. I had a lot
of zoning cases. I didn’t have any tax cases — but anything in
the office that nobody else in the office did not want to do, I
got. I represented the City of Indianapolis and its local utility
due to the fact that my mother and Will Thompson’s wife were
classmates at school in Indiana. Will Thompson at that time was
perhaps the finest appellate lawyer in the Middle West. He sent me
a lot of matters in which I represented the City before the Power
Commission as well as other things, none of which were very
important. However, he and his partner, Pat Smith, always made it
– 14 –
a point that I was paid well. It was a very worthwhile
association. And of course the war came along and I was out o f the
practice.
JAS: When did you go into the service?
JUDGE: The fall of 1942.
JAS: Did you go into the Marine Corps as a pilot?
JUDGE: No, I went in as what’s known as AVS — Aviation
Volunteer Specialist. Known as the metallic marines — silver in
the hair, gold in the mouth and lead in the ass. We had an
interesting group. Francis Goldolphin, later dean at Princeton,
was one of our group. Ted Lyons, the White Sox pitcher, and Ernie
Nevers of Stanford were also in our group. These were people who
were normally older but let in under this special program.
Supposedly we were to be the intelligence off ice rs attached to
aviation units. Later, they opened up a new program called “close
air support.” Our class was split in half, the first half going to
Tarawa in the Gilbert Islands and the other half of which I was a
member went to Kwajalein in the Marshalls.
JAS: How long were you in the service?
JUDGE: I was retired in ’46. I got hurt in ’44 and had a
– 15 –
very close call.
JAS: Where was that?
JUDGE: An air strip at Tacloban on the Island of Leyte.
JAS: You were struck by an airplane propeller.
JUDGE: That’s a model of the airplane there.
Vought plane.
JAS: Was it anybody’s fault?
It’s an F4U
JUDGE: No, it really wasn’t anybody’s fault. Our planes had
been covering the western approaches to Leyte and had been shot up
very badly. We had no maintenance at that time because we had left
very suddenly from a little island called Emirau. This was because
Admiral Halsey had taken off chasing the Japanese fleet and left
the Leyte landing exposed. So we had a group of 82 F4U’s and we
flew them first to Hollandia, then to Peleliu and finally to Leyte.
On this particular occasion the Navy was to make its next landing,
after Leyte, on the island of Mindoro. They needed cover for their
convoy as it went down through Surigao Straits south of Leyte and
as it passed Cebu and Negros, two islands held by the Japs. We
provided that air cover. On this particular occasion, it was the
13th of December, 1944, I, as group Intelligence Officer of Marine
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Air Group 12, briefed these several planes from our group as they
were about to take off. It was about 4:00 a.m. I went out to
watch the take offs and sat in my jeep which was about 50 feet off
the runway. The planes took off from right to left in front of me.
A fellow named Joe Watson was the Squadron Intelligence Officer for
Squadron 313 and was sitting beside me. He yelled. I looked to my
right and I could see this plane — it was just off the deck but
the pilot hadn’t retracted his wheels. He was barreling right at
me so I threw myself in the seat that Joe had just vacated and I
got nicked on the ear. You can see that slight scar. A revolution
of a prop took my arm off clean and I’ve got a scar here where the
prop hit me on my left side. This left a hole in my left ilium
about as big as a fifty cent piece. The pilot was killed as well
as about six others who were assembled near the control tower. The
torque of the plane which badly needed maintenance had sort of
pulled it off the direction of the runway. The squadron commander
of the lead plane was flown by a fellow named Olson. I remember
very well because I saw him spin into the water at the end of the
runway just before I was hit.
JAS: How long was your recovery from that accident?
JUDGE: Well, I went to the only Harvard medical unit in the
Pacific which was on the island of Biak in Dutch New Guinea. This
was an interesting experience, although I would not like to repeat
it. I was the only Marine patient I knew of as well as the only
– 17 –
one who had a Harvard connection. We had about 300 patients under
canvas with sand decks. I was at Biak for about 3 months and then
flown to the Navy Hospital at Mare Island, California, then to the
Naval Hospital in Philadelphia, then out here to Bethesda where I
had a plastic operation on my left side as well as a few others.
I was finally retired in May of ’46 but I was left with an osteo
infection that flared up every 8 or 10 months for about 11 years.
When I could feel these things coming on, I admitted myself to the
hospital and they’d clear up and after a while I could almost stay
home without medication. In the beginning these abscesses were
very painful but after a while they were not too bad. The Admiral
in charge of orthopedics at Bethesda, a person named Kruez, told me
that he thought it would be a mistake to curet the area, that the
infection eventually would burn out if I could stand it. I said
“fine.” Kruez later become the commanding officer of the Naval
Hospital at Oakland, California and was succeeded by an officer
named Miller — Captain. I remember Miller came in to see me one
day while I was making one of my periodic visits. He called in to
say “Captain, I have bad news for you.” I said, “What’s that?” He
said, “We’ve got to go in and curet that area.” I said , “That’s
not what Capt. Kruez said.” Miller then said, “if you were an
enlisted man, I would order it.” I said, “Well I’m not an enlisted
man. How about letting me have the pictures.” Previously, I had
asked “How long is this going to lay me up?” He said, “Oh, about
six months.” To make a long story short, I took 2 tons of X-rays
to an orthopedist friend of mine, Tom Wheeldon, that I was going to
– 18 –
see in Richmond. He put them up on a slide and said, “I could not
be paid to curet that area.” About a year later I had to make
another visit to Bethesda and when I told Miller of what Wheeldon
said, he responded, “You were right.”
JAS: That’s a close call, isn’t it?
JUDGE: Sure, yes. But it’s a very interesting example of what
might have happened.
JAS:
JUDGE:
Goldolphin.
Did you make lasting friendships in the service?
Yes, I did in the Marine Corps. I mentioned
We used to visit the Goldophins in Princeton
regularly. A second one, Holt McAloney, after Dartmouth was with
Time Magazine. We often visited the McAloneys in Sarasota,
Florida. He died recently. A third one was Stuart Janney whom
you’ve probably heard of. He won the Maryland Hunt Cup two or
three times. Stuart had gone to Princeton and was on Harvard Law
Review. He practiced with Venable, Baetjer in Baltimore. Stuart’s
father had been a partner of Governor Richie. All of these were
attractive persons. None had entered the service because of the
draft. All were volunteers.
JAS: When you were discharged from the service what did you
do?
– 19 –
JUDGE: Went back to the Morris law firm.
JAS: Okay. Who was there?
JUDGE: The same people. Well we got another person named
David Fegan.
JAS: Was the office still in the same place?
JUDGE: The same place. They were having a shortage of space
so they put me across the hall in a spare room that Jimmy Murphy
had. Do you remember Jimmy Murphy?
JAS: I don’t remember him.
JUDGE: Jimmy did all kinds of things for John Cross who
represented National Airlines for a while.
JAS: How did your practice develop after you came back?
JUDGE: Well, as you’d expect, it took a little bit of time
but one big matter we had was an administrative case before the
Food and Drug Administration involving standards of identity for
white bread. In this case our office represented the Shortening
Institute, the chief members of which were Swift & Co. and Procter
& Gamble — the makers of natural fats. The proceeding involved
– 20 –
the contents to be approved for white bread and particularly
concerned a very bitter argument about substances known as bread
softeners. They are synthetics manufactured by two or three
outfits but mostly by the Atlas Powder Company. Swift & Co. and
Procter & Gamble were the leading members of the Shortening
Institute.
JAS: What governmental agency was interested?
JUDGE: The Food and Drug Administration.
JAS: Describe the case.
JUDGE: This was a long proceeding in which Bakers was pretty
well torn apart but they basically did like the stuff. The
Shortening Institute which I was representing appeared on behalf of
the makers of natural fats. This antagonized the bakers
association. They called upon the president of Swift & Co., John
Holmes, and suggested that I be removed and also that Neil Huff,
the company lawyer for Swift, be fired. We had three lawyers.
Neil Huff, myself and Potter Stewart. The case lasted about 18
months and that’s where I first met Stewart who represented
Procter. I decided early on that he was not only a fellow that was
born with a silver spoon in his mouth, but he was also very smart.
I wouldn’t have predicted that he would soon be appointed to the
Sixth Circuit Court of Appeals. The appointment to the Supreme
– 21 –
Court came not long thereafter.
JAS: His father was on the Supreme Court, wasn’t he?
JUDGE: The Supreme Court of Ohio. I think his father was a
former mayor. And Potter was on the city council of Cincinnati at
the same time that his firm represented Procter.
JAS: Who was the best business getter you ever met in the
practice of law?
JUDGE: That’s a good question.
JAS: That question was asked of Judge Lombard in an oral
history and he said that Wild Bill Donovan got business every place
he went.
JUDGE:
about that.
I’ve heard that about Donovan. I’d have to think
JAS: Certain people have a knack of attracting business.
JUDGE: And some people who are very able …
JAS: Can’t get any work.
– 22 –
JUDGE: Dave Pine was a perfectly good example. Dave Pine was
a star — if he’d stayed in the practice.
JAS: You know, I think that was true also of Leo Rover who
was a U.S. Attorney here, went into practice, then went on to the
D.C. Court of Appeals.
JUDGE: I think that’d be true of Leo.
JAS:
anything else.
Yes, but when he tried to practice he didn’t get
And certain people with no ability whatsoever
attract a lot of business.
JAS:
either.
JUDGE:
I don’t think Phil Herrick got a lot of business
Phil didn’t get as much business as he should have.
Phil was a very solid fellow all along. I knew him very well. I
was sorry to see him go. He was a thoroughly decent fellow.
JAS: I knew Phil. Phil was a good tennis player, too.
JUDGE: I used to play with Phil.
JAS: His son is an expert tennis player.
– 23 –
JUDGE: I suppose his son Chico still plays.
JAS: Yes. His son taught tennis.
JUDGE: That’s out at Congressional.
JAS: Yes. That’s an interesting idea of who can get
business and who can’t. Some of these people who have big careers
in the government get paid large salaries by law firms and then
they don’t bring in any business.
JUDGE: There’s another thing, too.
firms — take Covington, for example.
Take some of these big
Some are rainmakers like
Dean Acheson and John Lord O’Brian and so on. Most of the younger
people coming along, so far as I can see, they didn’t generate the
business themselves but they know how to do the work. Now Gerry
Gesell, for example, was sort of a right-hand man for John Lord
O’ Brian, as the result of which he worked on a lot of Dupont
matters as well as those of General Motors, and important cases
generated by these two companies.
JAS: Dupont was a big client of his.
JUDGE: Yes, but John Lord O’ Brian was the rainmaker in
connection with that. And I don’t know how he got it except for
the fact that he knew important Wall Street firms which were very
– 24 –
prominent in financial circles — came from New York, and then
moved from New York to Washington. Did you know him?
JAS: I didn’t know him but I’ve taken a number of
depositions in the John Lord O’Brian suite at Covington & Burling.
There’s a lot of memorabilia on the walls.
JUDGE: He was a wonderful man. I was walking down the street
with him one day and I said I’d just finished reading a biography
by Merlo Pusey of Charles Evans Hughes. I pointed out that there
appeared from Pusey’s biography to be little connection between
Hughes and Henry Stimson. Although they seemed to have much in
common. Both were Republicans, they were both lawyers, they both
lived at about the same time and they were both in politics, more
or less. But other than that there didn’t seem to be much between
them. Mr. O’Brian agreed and went on to say that of course Hughes
was a most imposing person who scared the hell out of most people
but he said there was a third person who lived during this same
period who was the greatest of the three. And I said “who was
that?” Mr. O’Brian replied “Elihu Root”.” I replied, “I’ve got a
Law club shingle out on the wall. Root’s signature is on the
bottom badly faded.” The other thing I mentioned to Mr. O’Brian
concerned his being responsible for resurrecting the Harvard
Divinity School. President Conant had no interest in the Divinity
School. He wanted any spare money to go to the School of
Education. And he was perfectly willing to let the Divinity School
– 25 –
die. But Mr. O’Brian and Grenville Clark went to him one day and
said they’d like to do something about the Divinity School and
they’d like to try and see whether some money could be raised.
Conant said “Go ahead.” O’ Brian and Clark reportedly had a
successful sampling. Conant didn’t believe it. He said “Do it
again. ” They came back with the same successful response as a
result of which Conant reluctantly let them go ahead. The Harvard
Divinity School is now probably the best school of its kind in the
United States. They’ve got more Catholics enrolled in the Harvard
Divinity School than in any Catholic institution of its kind.
JAS:
influence.
JUDGE:
That’s pretty remarkable.
It is a corrupting influence.
O’Brian, “Why do you suppose Conant felt
That’s a corrupting
And I said to Mr.
that way about the
Divinity School?” and he said “Well I spoke to him once and he said
except for weddings and funerals neither he nor his parents had
ever been in a church in their lives.” “Thereby said Mr. O’Brian
to me, showing himself to be a complete illiterate in the oldest of
the humanities.”
JAS: I was reading around Frankfurter’s diaries some years
ago and he made a notation that he had a meeting with Hughes and
Hughes was quite old. And what struck him was whenever Hughes
mentioned something that could be verified in any way he would
– 26 –
always go to his books and he thought that pretty remarkable. When
people get old they ignore looking things up. But he said Hughes
wouldn’t let anything go unless he was certain about it. Fritz
Weiner had a good story about Hughes that Hughes’ son — well, ah,
Fritz told the story to me — and I’ve heard it from other people
that Hoover promised Hughes a spot on the Supreme Court but he
wanted to give it to somebody else. And he was told by an advisor
to just call up Hughes, offer it to him and he’ll turn it down
because his son is in the Solicitor’s Office. So Hoover called up
Hughes who accepted it immediately. And then was Chief Justice on
the Supreme Court.
JUDGE: He was Chief Justice after Taft. I ‘ 11 t e 11 you a
story about Taft.
23rd and Wyoming
I was delivering the Evening Star one day — at
Avenue Taft was out front of his house
conversing with John Hayes Hammond, the mining engineer. Hammond
owned what is now the French Embassy. They were talking and
Hammond called me over and introduced me to the Chief Justice.
Hammond said to Taft, “This young fellow and his brothers are the
best paper boys in Washington and I’ve written the Evening Star
about them.” Taft responded “Yes, I know. In times of inclement
weather they always put the paper under the mat.”
JAS: That’s pretty good. When was your birthday?
JUDGE: November 17.
– 27 –
JAS: Was this a birthday card from Fritz?
JUDGE: No. I’ll tell you what it was. Fritz got into a row
with Joe Fanelli.
JAS: I know of that.
JUDGE: Fritz had resurrected some clippings from a June 1957
Washington Daily News. The headline stated “U.S. lawyer
investigated about fee” or something or other. Foe Fanelli had
gotten off the Board of Immigration Appeals and was in private
practice.
JAS: Joe Fanelli.
JUDGE: Joe Fanelli, yes. And he’d gone into private practice
and was charged by somebody for sponsoring a private bill to get an
immigrant into this country. You know the story about Joe wanting
to join the local Bar Association. Fritz formally objected and
Charlie Horsky finally mediated. Fritz sent on these clippings and
said he’d like to know whether so-and-so is still alive.
JAS: No, Joe is still alive.
JUDGE: I called Horsky up and he said he died within the four
years. And was practicing up until he died.
– 28 –
JAS: Yes. He had. Fanelli had the last Hoffa case before
the Supreme Court of the United States where conversations between
Hoffa and a government plant were recorded. And the claim was that
Hoffa was discussing his legal affairs with this plant and the
argument was that it was a flat out case of improper government
conduct and Fanelli was certain that he would prevail in the Court
of Appeals but the opinion was written by Fortas, as I recall it,
confirming the conviction and that was about the end of Joe
Fanelli. They affirmed the conviction of Hoffa and Hoffa went to
jail.
JUDGE: I had the last appearance of Hoffa in any court. He
was represented by Leonard Boudin. He asked that the commutation
of sentence coupled with a provision that kept Hoffa out of union
politics be declared unconstitutional.
JUDGE: Anyway, Boudin showed up and said he wanted to file a
motion for summary judgment. I asked, “How much time do you need?”
He replied “I’ll file it tomorrow.”
evidently been working on it for
It totaled 110 pages. He had
some time. I came back to
chambers where I had a law clerk named Mike Ruane, an Irish boy
whose father had been a bartender up in Hazelton, Pennsylvania. I
said “Mike, I don’t know what you’re doing at the moment but this
is something you’ve really got to handle. I don’t care how much
time you take but go back to the Year Books and the origin of the
pardoning power, 11 which is what Boudin had done. We decided
– 29 –
against him. There was an appeal to the Court of Appeals and Hoffa
didn’t show. And that was the end of the case. He was the only
one in the courtroom when Boudin argued the case.
JUDGE: Boudin’ s son who was down here for a while was a
remarkable fellow too.
JAS: Different.
JUDGE: Completely different.
JAS: He’s on the First Circuit now.
JUDGE: I don’t know who I suppose Kennedy
responsible for it but
was
JAS: No. Judge Gesell told me that Michael Boudin got
tired of practicing at Covington and took a job in the antitrust
division. Then someone in the White House asked him to write up
opinions about judicial candidates. His evaluations were so
intriguing that they decided to make him a judge. Did you know him
when he was sitting — Michael?
JUDGE: Yes, but not well. When I took senior status, Boudin
got some of my cases, I had to take them all back when he quit.
– 30 –
JAS: You know, he just quit.
JUDGE: He did. I think people around here were a little bit
angry.
JAS: I went in to see him one day and asked him how it was
going. He said I just don’t like it at all. The things that I
would like to work on I don’t have time to work on and the criminal
cases he found very oppressive. He had no background in criminal
law.
JUDGE: He didn’t like trying cases. That was part of his
problem. He just couldn’t make decisions. A little bit like
Spottswood. But a very charming fellow. He came in to see me the
first time he was here and also the time he left. I think Judge
Gesell probably saw more of him than anybody else.
JAS: I think the big influences on Michael were Hugh Cox
and Henry Friendly.
JUDGE: I knew both of them. Speaking of Henry Friendly, I
remember — never forget one time when his nomination for the
Second Circuit was being held up because of the pending
confirmation of Milton Kronheim, Jr. Judge Friendly said, “I’m a
little bit fed up having to wait around for action because of an
appointment to one of your local courts.”
– 31 –
JAS: Was that Truman who made that appointment?
JUDGE: It was Truman. And evidently Mr. Kronheim, Jr. had
gotten next to Harry and …
JAS: Did you know Mr. Kronheim, Jr. at all?
JUDGE: Never met him. I’d seen him play baseball.
JAS: He told this story that I’m going to tell you now. He
told it many times.
Kronheim. And he
He said he wanted to be an athlete, Mr.
liked to get involved with people who were
athletes. He went up to the arcade market where there was a gym
and boxed John Sirica. Sirica gave him a black eye and he went
home and his wife said, “Where did you get that black eye?” He
said, “Well, I was boxing Johnny Sirica” and she said, “If I’ve
told you once I’ve told you a hundred times, stay away from those
wops. ” He told that story in front of Sirica many times, who
enjoyed hearing it.
How is it that you received an appointment to the bench?
JUDGE: Well, right after Kennedy was shot, within a couple of
months I think January 1964, Jim Rowe, my classmate at Harvard,
called up to have lunch. We had lunch at the Ritz Carlton there in
the dining room. He said, “Have you ever thought about going on
– 32 –
the District Court?” I said, “I’ve never thought about it.” He
said, “Well, Lyndon Johnson is going to have some appointments” and
he said, “I can put you in line.” And I didn’t hear anything more
of it. Then in ’68, about four years later, Gasch called me up and
said that what’s his name, Bob Ash, you know the fellow who
represented the ABA Judicial Selection Committee — was talking to
him about Sidney Sachs. He said, “Look, if you want to be on this
court you’d better get your horses running. ” And so I called
either Rowe or Corcoran and within ten days I got a call from
Warren Christopher, the Deputy Attorney General. He gave me a form
to fill out which was about as complicated as the worst kind of a
corporate tax return and one that would take you back to before you
were born. He called me again to come down there and I came and he
said, “Mr. Pratt you’ve got a lot of friends. I’ve got a letter
here from Steve Ailes.” He said. “I think things are in good
shape.” The next I heard was when I got a call from Barefoot
Sanders or from Larry Temple, Lyndon Johnson’s lawyer, asking that
I meet with them in an office on the west side of the White House,
which turned out to be the day of the rioting because of Martin
Luther King’s murder.
JAS: ’68?
JUDGE: ’68. April 6. I remember going down there. There
were soldiers stationed every fifty yards in front of the White
House, and smoke could be seen to the East. I was checked out by
– 33 –
Sanders and Temple which took about five minutes time. When I was
finally appointed by Lyndon Johnson shortly thereafter (and I got
this from two sources) the President said to Ramsey Clark, “I’ve
been trying to fill this job on the District Court for over a year
and when I ask my friend Rowe for some suggestions, he always comes
up with the name of a fellow by the name of Pratt — says he’s a
law and order fellow. I guess that’s why you don’t like him. 11
This is the Attorney General to whom he was speaking. I don’t
know the exact reason for the delay but I’m sure Clark had
something to do with that. I think Bazelon also had something to
do with it. I know Bazelon tried to stop Gasch. That’s about it.
JAS:
the ’60s?
handling?
JUDGE:
What was the state of your practice at that time — in
From 1960 to 1968? What type of cases were you
I mentioned these two administrative cases – – the
bread case was
Administration
in
to
the
the
’50s and went from the
Third Circuit Court
Food and Drug
of Appeals.
Incidentally, in that case opposing us were members of the firm of
Wilmer, Cutler. Before the case reached the Third Circuit, I had
an unusual experience. Going through the voluminous file I found
a couple of ex ?arte communications from Mr. Cox with the firm of
Wilmer, Cutler addressed to Mr. Ewing, who was the Commissioner of
Food & Drug, asking that the administrative finding in our favor be
reversed. We didn’t have a chance to even know it existed since we
– 34 –
had not received copies and we had no chance to respond. When I
recently told Lou Oberdorfer about that, I think he was shocked and
surprised. Anyway, we went to the Third Circuit and Bill Hastle
affirmed the decision we had gotten from the trial examiner who was
a fellow named Irv Levenson.
JAS:
dates.
You know, your memory is remarkable for names and
JUDGE: Mostly trivial.
JAS: No, you’ve got a remarkable memory. Did you ever
involve yourself in any debating or anything like that?
JUDGE: No, I never have. One thing I did do was right after
I got to Washington. I took a public speaking course from a fellow
named Granville Jacobs. In the public speaking course were twenty
or thirty people who met once a week for dinner and then we’d pair
off for various things. One of our leading members was Larry
Gichner.
JAS: You know, Larry was kind of mashuga, to use a Yiddish
expression. You know, Larry’s kind of mixed up upstairs.
JUDGE: Oh yes, sure. He was an expert in pornography,
particularly ancient erotica. He was collecting this stuff that I
– 35 –
think Inspector Blick of the Vice Squad read one time. As the
result of a court proceeding, he was forced to keep a list of the
people who came to see his collection. Gasch told me that this
happened when he was United States Attorney. The first name on the
list was that of Judge Bazelon!
JAS: I got to know Gichner pretty well. Gichner wanted to
be treated as an intellectual person and there wasn’t much depth to
the man, unfortunately. You know, he lived a very long, happy
life. He just died within the last couple of years.
JUDGE: He outlived Henry, his cousin, didn’t he?
JAS: He outlived everybody.
JUDGE: Henry was a good ball player.
catcher at Cornell.
I think he was the
JAS: Really? I didn’t know that. Whose place did you take
on the bench?
JUDGE: Judge Holtzoff. I have the Jewish seat. That’s what
Sachs said. “You’ve got the Jewish seat. 11
JAS: One of these days I’ll tell you one of the reasons why
Sachs wasn’t appointed. It’s too long a story here. But anyway,
– 36 –
did you know Judge Holtzoff?
JUDGE: Not all that well. I had appeared before him, not too
many times. I didn’t get down here very much. I was not a trial
lawyer as I made perfectly plain in everything I said.
JAS: He had very strong friendships with Judge Keech and
Judge McGuire, I believe.
JUDGE: Particularly McGuire. Keech was right here (pointing)
and McGuire was a couple of doors down.
JAS: Did you know Judge Keech very well?
JUDGE: I think quite well. I was very fond of him.
JAS: From what I knew of him, he had no faults. He did his
job, was responsible.
JUDGE: Exactly. I had the feeling he didn’t have a blemish.
JAS : And he had a great sense of humor.
condescending. Tough as hell.
He wasn’t
JUDGE: When he was leaving I said to him, “Richard, what are
you doing to us? You’re moving.”
– 37 –
JAS: He told me that the reason he stopped altogether — he
said he’d seen people around the courthouse who had lost their
marbles. And he was not going to put himself in that category. I
had some talks with him close to when he died. He was very clearminded
up to the very end. I think his secretary, Ms. Bunton,
thought he was going to marry her. But he didn’t.
TAPE 2
JAS: Judge Holtzoff was a track man at Columbia.
JUDGE: Yes, he was. And I think he grew up on the East Side,
I’m not sure.
JAS: He thought he was a very worldly person. And he
certainly wasn’t. Some lawyers could do no wrong before him.
Charlie Ford could get anything he wanted.
JUDGE: And Laughlin too.
JAS: Laughlin could get anything he wanted.
JUDGE: Laughlin was a complete fraud.
JAS: Well, you went on the bench around 1968?
– 38 –
JUDGE: That’s right.
JAS: What did you find most enjoyable about being a Judge
when you first went on the bench?
JUDGE: I think complete independence for one thing. Another
thing is not having to have to bill people.
JAS: Didn’t have to worry about getting business.
JUDGE: No, I didn’t care about that. One thing I didn’t like
about the practice was having to send out bills. The first man who
complained about the bill I said, “Okay, you write your own.”
JAS: Who was your first law clerk?
JUDGE: Dan Hurley who was very recently confirmed as Federal
Judge in the Middle District of Florida.
JAS: That’s wonderful.
JUDGE: Dan went to GW — a night school fellow. Full of
charm. He came from Fitchburg, Mass. I think he may well have
been an ex-seminarian, I’m not sure. I never knew why he went to
Florida, but he did. And he and Paul Friedman were together and
Paul started working for Roger Robb, having previously worked for
– 39 –
Aubrey Robinson. There was a vacancy with Robb and Dan was called
by Robb’s chambers. Dan went up and he was Robb’s second law
clerk. He held it for a while until he elected to protest the
Vietnam War in front of the White House. He had asked Robb about
it. Roger said, “If you want to do it, go ahead but just don’t
come back.” That was the end of Dan’s clerkship with Judge Robb.
JAS: How did you meet Judge Robb?
JUDGE: Well, I knew him through Judge Gasch. Robb was a good
friend when I got appointed. When he learned of it, he called up
Jim Eastland, his client. Jim said, “Well get Senator Hruska and
somebody else and we’ll set it down for a hearing.” The hearing
lasted every bit of about 5 minutes. John Powell showed up from
the Bar Association and Phil Herrick came down, God bless him.
Eastland alone presided with his fat belly sticking out and a cigar
in his mouth. It was very informal. This was before Abe Fortas
ran into trouble and they weren’t looking us over very carefully.
JAS: I went down there a number of times when I was
president of the Bar and Jiggs Donoghue and I went together to a
number of meetings and I said to Jiggs once — “You’ve been down
here dozens of times. Does it help you with these judges?” And he
said, “No Jake, they turn on you.”
JUDGE: There was a good man.
– 40 –
JAS: Jiggs was a wonderful man.
JUDGE: A damn good Commissioner.
JAS: Jiggs said during the Watergate days that if Nixon had
walked blindfolded down Fifth Street he’d have gotten better legal
advice than he got from Mitchell, Haldeman & Ehrlichman.
JUDGE: That’s true.
JAS: What have you liked most about judging, as you’ve
gotten more used to it?
JUDGE: Well, as I indicated before, the matter of being
independent appealed to me. Another thing that appealed to me very
much, even before I became a senior, was that I could pretty much
set my own pace in terms of the speed at which I proceeded. I
deliberately did not overbook. On the other hand I didn’t have to
continue cases very often. My trick, perfectly frankly, as far as
I was able to do it, was get the parties to pretty much agree on
the facts and the issues and then dispose of the case on the papers
or after an oral argument.
JAS: How does oral argument strike you? Is it valuable?
JUDGE: In close cases I think it can be very valuable but I
– 41 –
think if the issues are one-sided I think it’s a waste of time.
JAS: I heard Judge Robb speak at a judicial conference
about oral argument and he said a lot of people were dispensing
with it. But he was of the opinion that if you’re going to kill a
man’s case you ought to look him in the eye at some point in the
proceeding.
JUDGE: There is something in that. Also if it’s a close
case, including a case where there’s a lot of sympathy on the one
hand, but probably the law is on the other — I just got through
with one. I took over from Judge Harris a case involving a woman
who was a widow of an army colonel who had committed suicide while
he was under investigation for fraudulent vouchers and a few things
like that. And she had a well-meaning lawyer who was not familiar
with trying cases and they went to great length — we had a trial
even though I was pretty well satisfied with what the issues were.
I nevertheless asked for findings of fact and conclusions of law
not to exceed 18 or 20 pages. I was glad to have done it even
though — I would have concluded the matter summarily if I hadn’t
had sympathy for this woman in what I thought was a rather shoddy
way she’d been treated by the military in her time of grief.
JAS: Who are some of the interesting lawyers that come to
mind? Good and bad.
– 42 –
JUDGE: I think the best – – I thought about it as I was
looking at the — I showed you that thing of Leonard Boudin — that
fellow is about as good a lawyer as I’ve ever had.
JUDGE: Patrick Mccartan, head man at Jones, Day in Cleveland.
Also from Notre Dame and former law clerk of Sherman Minton. He
stopped by to see me some time ago. I had previously had him in a
very interesting case involving the Federal Trade Commission going
after Exxon in connection with their acquiring the Reliance
Electric Company. They were doing it because Reliance possessed
certain technology Exxon thought was the wave of the future. We
had protracted litigation, “hold separate” orders and a few things
like that. Finally Exxon decided that the invention that they
required was not all that great. They ditched the whole thing and
that was the end of it. The thing that particularly impressed me
was the way Mccartan squared off against Mr. Gillespie, the top man
from Davis, Polk. Mr. Gillespie came marching in, with his spear
carriers, about five of them.
JAS: You know who loves spear carriers, Lawrence Walsh.
Oh, he loved spear carriers.
JUDGE: Oh, you mean MacKinnon’s appointee.
JAS: Yes.
– 43 –
JUDGE: In any event, he came in and I remember at one stage
in the game he said, “Your honor please, this is one of the most
unfair things I ever saw.” I said, “Mr. Gillespie, don’t you
remember that President Kennedy said that all the world is unfair?”
Well, Mccartan got a big bang out of it.
JAS: How long did that case take?
JUDGE: Well, we had two or three hearings. It extended over
a period of time. He’s now, of course, managing director of Jones,
Day. And he had to put to bed that $43 million settlement that
they made. I don’t know what the facts were but they had evidently
given some bum advice to someone.
JAS: Did Judge MacKinnon discuss the Walsh appointment with
you?
JUDGE: No, but he stands up for it all the time. A lot of
these people he appoints — he didn’t do this with me — but a lot
of these people he appoints he kind of checks around, what do you
think about so-and-so. He probably called you.
JAS: He did. I had an experience with Walsh which was
unpleasant and I thought that if I told him about it he might think
it was sort of sour grapes or something or other. So, I didn’t
mention it. But Walsh is a strange, strange kind of a guy.
– 44 –
JUDGE: I remember him one time speaking to one of Howard
Markey’s patent law conferences. Howard was a great advertisement
for the profession. Walsh had been with Davis, Polk and in 1954
was appointed a U.S. District Judge by President Eisenhower.
Later, he went to the Justice Department as Deputy Attorney
General, then back to Davis, Polk.
JUDGE: President of the ABA at one time too. A fellow with
an interesting background. You know, he was born in Canada. He’s
about two months younger than I. You know, George is very solid on
Canadians. I guess Walsh came in to see MacKinnon within the last
two or three weeks and MacKinnon sent Walsh up to see Judge
Sentelle. They didn’t get into any detail. It only lasted about
five minutes. Incidentally, there is a great judge.
JUDGE: He’s got a lot of sense.
JAS: He’s a pretty damn good after-dinner speaker, too.
JUDGE: Oh, he is? His father worked in a mill. That’s his
background.
JAS: What other cases do you remember as a Judge?
JUDGE: My cases?
– 45 –
JAS: Yes.
JUDGE: Well, I had — not a court case at all — although it
eventually ended up in a libel suit — but I represented a Marine
Colonel named Frank Schwable who was in an airplane that was shot
down by the North Koreans at the time of the Korean War. They had
him in captivity for I guess about six months and after extreme
pressure was forced to make a so-called “germ warfare confession.”
He came back to the U.S. eventually and of course they said, “If
you’re a Marine you don’t do that.” He was court martialed. They
had the proceeding over at Henderson Hall an Admiral and two
Generals as the general court martial. I got hold of a fellow -I’ve
forgotten his name, but he was a Dutch psychiatrist — who had
been worked over by the Nazis before he finally got loose. He
testified that no matter how strong you are, if people like the
Nazis have six months to work you over, one of three things will
happen. Either you cave in, you go insane, or you die. I said,
“Does that apply to anybody in this courtroom, doctor?” “Yes it
does.” Well, I had a lot of that kind of testimony.
JAS: That has a lot of emotion.
JUDGE: Yes, it sure did. And I got an Army General who was
in command of some large unit over there who himself had violated
the Geneva Convention. And these people were really subdued when
a number of former prisoners testified as to their treatment.
– 46 –
Another person whose name came up was Minzenty, the Hungarian
Cardinal who had made the same kind of incriminating confession as
Schwable.
JAS: As a judge, do you get many opportunities to correct
an injustice in various cases?
JUDGE: If I can bend the rules in connection with some of
these criminal sentences I’ll do it every time. And because of the
guidelines, I’m tempted to get rid of these cases if I can
reasonably do so by sustaining a motion to suppress.
JAS: What do you think of the guidelines?
JUDGE: What do I think? I, along with most Federal trial
judges, think they are atrocious. I also believe laws authorizing
mandatory minimum sentences should be repealed. The disparity in
sentences for cocaine crack and cocaine powder is an example. You
probably read the story in the Sunday Post. Judge Hogan has
written extensively on that. Another thing is the disparity
between the sentences in drug cases and other trials. In drug
cases, you mostly have some young black with no prior record and he
gets slapped with a mandatory minimum of five to ten years or even
more. And there’s not a damn thing one can do.
JAS: Have you ever lost your temper on the bench? I’ve
– 47 –
never seen you out of control.
JUDGE: I try not to be but I’ve chewed people out once in a
while. I think the people who get my dander up are — I’ll give
you a pretty good example, it happened the other day. As long as
I’ve been here which is 25 years, we have these personal injury
cases. And frequently there’s been an expert medical witness by
the name of Jeffrey Goltz. He’s never shown up as a witness. And
I found out the other day that a particular plaintiff had a civil
case before Lamberth which was transferred to me. And one of the
last things Lamberth did was permit the plaintiff to substitute Dr.
Smith for Dr. Goltz as an expert witness. And I read Sporkin’s
memorandum in another personal injury case as to what Goltz had
done in misrepresenting his credentials. I said to counsel for the
plaintiff, “Well Lamberth may have given you permission to
substitute Smith for Goltz but I’m not going to follow that. I
said I’ve seen what this fellow’s done in other cases and I’m not
going to permit him to testify to anything.” And they settled the
case.
JAS: Do lawyers disturb you on the bench? You seem to be
invulnerable to what goes on.
JUDGE: Well, maybe I’m half asleep. I really never had a
real problem. If so, I’m not aware of it. There’s a public
defender named Mike Wallace who is a good lawyer. Gasch can’t
– 48 –
stand him. Wallace supposedly rolls his eyes when Gasch rules
against him. The jury can see all this. My first experience with
Wallace was that he kept arguing after I ruled. I finally said,
“Mr. Wallace, I’m holding you in contempt. Now pay attention.” He
came up to the Clerk in tears and asked what would happen. I asked
the Clerk what she told him. She said, “If you’d behaved maybe at
the end of the trial things will be alright.” Well, that’s exactly
what happened. Wallace asked to be relieved of the contempt, which
I did. I’ve done that a few times.
JAS: Would you
controlled, calm person?
on inside of a person.
say that you
You seem to be.
are by disposition a
Nobody knows what goes
JUDGE: I don ‘ t know . I have trouble keeping my temper
sometimes. But one thing I’ve tried to follow is if in doubt,
don’t say it.
JAS: Well, that’s a hard thing to learn.
JUDGE: I’m probably accused of being pro-government in
criminal cases which I freely admit. But I don’t know about the
rest. A judge can’t want to be liked. That is a mistake for a
Judge.
JAS: You can’t do that and be a judge.
– 49 –
JAS: What do you learn over a 25-year period as a judge?
Anything in particular in the way people act, something about human
nature? Are you a better judge of human nature now than you were?
JUDGE: I think I am. I think probably much better. I think
I’m a little more — I’m a little more understanding of human
beings than I was when I first came down here.
JAS: The difficult life it is for most people?
JUDGE: Precisely. I think that I am more inclined to give
people the benefit of the doubt. The things that really upset me
more than anything else are where there’s been overreaching on the
part of a lawyer who abuses the discovery rules by papering some
poor person to death. That happens, as you know. And before the
civil rules changed in 1938 we didn’t have that kind of thing.
JAS: Did you know Judge Tamm very well?
JUDGE: I knew him very well. He was very fond of me, I found
out. I didn’t realize it.
JAS: He was an interesting man, wasn’t he?
JUDGE: He was. You know I got appointed to a couple of
Judicial Conference committees, particularly the chairmanship of
– 50 –
the Committee on Judicial Ethics, now more properly named the
Committee on Financial Disclosure. I had this for five years when
the Chief Justice decided he ought to cut me off, which I agreed
was a pretty good idea. But he was a very strange fellow, Tamm.
He never talked about J. Edgar Hoover except if he were referring
to him he always referred to him as “the Director.” He knew where
the bodies were hid. I heard him once say Frank Rizzo was on the
take from the Mafia. Not the kind of thing that is public
knowledge. Another thing he told me, he said one time he went to
Adolph Berle, an Assistant Secretary of State in ’42 or ’43, and
told him about Alger Hiss. Now this was five years before Hiss was
indicted.
JAS: Judge Tamm told me at one of the Lawyers Club affairs
that Hoover was mentioned by Walter Winchell as being sweet on
Ginger Rogers’ mother, Lila. He said Hoover was upset so he just
couldn’t control himself. He got very upset being in Winchell’s
column and he cut his relationship with Winchell which had been
close. I remember when Tamm was first appointed. I think it was
about ’47 or ’48.
JUDGE: The Bar Association president foolishly put that
nomination to a vote and it was three to one against the
nomination.
JAS: Well something interesting about that. The only
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lawyer who testified for Tamm was Alvin Newmeyer, Sr. Mr. Newmeyer
was asked to go down there by Hoover. Hoover had asked Mr.
Kronheim to get Mr. Newmeyer to go down there and testify on behalf
of Tamm who had not then been admitted to the D.C. Bar. He was a
member of the Montana Bar. Frank Waldrop told me that Hoover was
enraged when Tamm got the appointment. Waldrop knew Tamm well.
And Hoover tried to block the appointment and Tamm got the support
of the Archbishop of Chicago — which closed the issue.
JUDGE: Cardinal Mundelein was very close to Roosevelt.
JAS: Yes, that was the end of it. Then Hoover came over to
Tamm’s side after that.
JAS: Tamm was a self-disciplinarian.
JUDGE: Tamm was as prepared a man as comes to this place. He
prepared for the Judgeship by reading all of the appellate reports.
JAS: What other personalties over your career would you
comment on? Did you ever have any cases with Ed Williams?
JUDGE: Yes, I had one with Ed Williams, which grew out of the
Schwable case. I brought a libel suit against Newsweek Magazine.
It concerned certain remarks made by the Marine Corps Commandant
about Schwable concerning his “confession.” They were clearly
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libelous. I don’t know whether they did Schwable any actual
injury. Ed filed a motion to dismiss which Holtzoff decided my
way. Then one day Williams called me up and said I think we ought
to settle this case. We had lunch at the Metropolitan Club. As a
result the case was settled but not for very much.
JAS: Did he ever try any cases in front of you?
JUDGE: No, I never had a case with Ed. I had· an interesting
one with Paul Connolly, Ed’s partner, and Joe Rauh. Paul
represented United Mine Workers, and Joe represented Joe Yablonski.
Yablonski sued Tony Boyle as well as the Mine Workers Journal.
Boyle allegedly had used the Journal to promote his candidacy for
the presidency of the Mine Workers Union.
JAS: It’s an interesting case.
JUDGE: Paul Connolly represented Tony Boyle two months before
Yablonski and his wife were found dead, murdered. I tell people,
“You know, if you’re playing baseball and you bat .500 that’s a
hell of a good average.” I said, “I couldn’t help but bat .500 in
that case.” I decided in Rauh’s favor and against Connolly.
JAS: Paul Connolly is a very impressive lawyer.
JUDGE: Well, I didn’t like him. I think it is because he
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didn’t pay any attention to me until I came on the bench, and then
he overdid it.
JAS: He had a problem with condescending.
JUDGE: He did. I played golf with him one time and I got to
measure the man — playing in a foursome at the Chevy Chase — at
15th hole. When we reached the 15th green someone asked, “What’d
you get, Paul?” and he said 11 6. 11 I was watching the guy all the
way and he took at least 8.
JAS: That’s pretty good evidence.
JUDGE: Pretty good evidence. This was a diversion about Ed
Williams. We thought we’d settle the case at that luncheon. But
nothing seemed to happen. So I called Pat Sullivan, Newsweek’s New
York lawyer, and told him what the story was. He said, “I’ll take
your word for it” and he sent me the check. Thereafter, I never
completely trusted Ed. I am perfectly willing to concede he was as
able as any I ‘ve ever seen and I never saw him unprepared.
Sullivan incidentally supported the U.S. Olympic Committee in 1980
when I upheld Carter’s order denying U.S. participation in the
games that year in Moscow.
JAS:
worthwhile?
What do you think of the jury system?
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Is it
JUDGE: I think it is in certain kinds of cases.
JAS: I have my doubts now.
JUDGE: I’ve got my doubts too. There are cases some jurors
just plain cannot grasp, especially civil cases where there are a
lot of documents — I try to get the lawyers ahead of time to
select from the panel those jurors that they would like to see on
a jury. I will then select those jurors first and then the
remaining ones in the order that they are listed.
JAS: But in the main I think the idea of a jury in any case
that has any complication is a myth. And I think in big cities now
juries are affected by race so strongly …
JAS: What did you make of George Hart?
JUDGE: I was very fond of George Hart. I think he’s the best
chief judge that I’ve ever served with. He’d make decisions. He
was a great fellow. He used to handle the pro se cases and
gradually farmed them out to me. In the early days of pro? there
was no problem with dismissals because of lack of merit. Shortly
toward the end of George’s tenure, the Court of Appeals started
sending some of these back on the grounds that a case could not be
dismissed in the posture the case was. In other words, lack of
jurisdiction appearing on the face of the complaint was an
– 55 –
affirmative defense which had to be affirmatively pleaded. We
worked out a system whereby we would issue a rule to show cause why
a case should not be dismissed. This avoided the business of
having the marshal run all over the country serving people. But
some of these people upstairs don’t realize this.
JAS: Did you get to know Judge Gesell very well?
JUDGE: Yes, I think I probably knew Judge Gesell as well as
anybody on the Court.
JAS: What did you make of him?
JUDGE: Well, he was a very complex as well as able fellow.
There was a certain arrogance about him that annoyed some people.
He was also a very brave fellow. He told me that last fall, over
a year ago, about three months before he died, and before he came
down with what eventually killed him, that he’d had a prostrate
operation during the North trial.
about it. Did it over a weekend.
I don’t think he told anybody
JUDGE: I inherited Roy Smith, my bailiff, from Gesell. I’m
very glad to have him although I don’t have too much for him to do.
JAS: He is the famous son of a famous father.
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JUDGE: Oh yes.
JAS: That doesn’t happen too often.
JUDGE: His father was the pediatrician back when our children
were growing up — prior to Spock.
JUDGE: I was very fond of George Revercomb.
JAS: He was a remarkable man, too.
JUDGE: I miss him. He was a partisan, right wing Republican.
But a completely fair and modest fellow. He really liked food.
His father was a Senator from West Virginia. I think he died his
second term. But George went to Princeton in about the class of
1950 and then to Virginia Law School. He’s a wonderful, wonderful
person.
JAS: Has Ken Mundy appeared before you?
JUDGE: He’s an excellent man.
JAS: You know what comes through from him, I think, I’ve
tried cases with him — representing co-defendants
niceness comes out of that man.
comes through very nicely.
Nothing mean in Ken.
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a genuine
And that
JUDGE: That’s right. I think Ed Brown is a good man, too.
JAS: He’s very good. Yes. He’s a well-trained lawyer. He
was in the Department of Justice — dignified man, Ed is.
JAS: You were the first one to have women law clerks?
JUDGE: I think I’ve had more than any of the male judges and
so when they come to talk to me about sex discrimination I take
pleasure in mentioning that I have four daughters.
JAS: Well, you had this case — sexual harassment case.
JUDGE: I had one, yes. The Broderick case made a lot of
noise.
JAS: You held for the plaintiff, didn’t you?
JUDGE: Yes, I told the parties to agree on the remedy. They
gave her a hell of a lot more than I would have. Yes, over
$400,000 in attorney’s fees, $700,000 for an investigation of the
practices at the SEC. I appointed David Tatel to handle that.
$700,000 to H&H on that one. The plaintiff also to have unlimited
psychiatric treatment and to be able to shop around the SEC for any
job she could get. She got everything. She was a neurotic woman,
but I felt that she shouldn’t be subjected to the kind of treatment
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these good ole boys were according her.
JAS: I think William Howard Taft said that the best job in
the world was being a federal district court judge.
JUDGE: I think it is. I think most people would prefer to
sit where we are instead of on the Court of Appeals.
JUDGE: I think Ed Tamm very much wanted the Court of Appeals.
I think as a matter of prestige, probably.
JAS: What have some of your other law clerks done? Do you
keep in touch with them as some judges do?
JUDGE: Yes, we have a party every year. And I ran into one
of them at church just last Sunday. I don’t know what her husband
does but they’re both partners. She’s a partner with Arnold &
Porter. I’m very fond of a number of my former clerks. Most of
them I think have been very satisfactory. And the girls have been
fine.
JAS: When you pick a turkey, what misled you?
JUDGE: I’ve never been in the habit of having a friend — a
boy’s father, for example, get in touch with me. They know me and
so on. I discourage that.
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JAS: Why do you discourage that?
JUDGE: Well, I know a lawyer uptown named Eugene Stewart
a very good lawyer. I had litigation with him once. He called to
say that a son of a friend of his was applying for a clerkship and
said, “I’d like to come down and talk to you about him. 11 I said,
“You don’t have to do that, I’ll take your word for it. 11 Well
that, plus the fact that the boy was a very good talker, I hired
him. He did not work out. He is now making a lot of money in the
cellular phone business.
JAS:
well.
How would you describe Judge Robb? You knew him very
JUDGE: He was a complex person. A person who does not lend
his friendship easily. He had a lot of New England reserve about
him. His father, Charles Robb, a native of Vermont, was appointed
Assistant Attorney General by Theodore Roosevelt in 1906. I think
of Roger as a person of excellent character and completely fair and
unbiased. Being a judge is probably the epitome of what he wanted
to be. I think he wanted to be like his father. As a judge I
liked the way he wrote; he was terse, very much to the point, and
called them as he saw them. He was not result-oriented like some
of these people upstairs are. I had great admiration for Roger.
I think he suffered a lot in his life. His wife treated him badly.
He got TB and moved down to Charlottesville. She never called him.
– 60 –
Finally when he got over that she wanted to make up.
JAS: He married his English teacher from Western High
School.
JUDGE: Yes, later. Irene. And prior to that he married
Lillian, I think her name was. She had previously been secretary
to Nelson Eddy.
JAS: What are your interests off the bench? Anything in
particular you’d like to talk about?
JUDGE: I like to read current politics mostly. We do a fair
amount of traveling. Recently we came up the inland waterway from
Jacksonville to Charleston. Our previous trips — we were twice to
Europe, the Middle East, Russia, and several others — the best
being from Lisbon along the French coast and south of England, the
west coast of Ireland, the Ornkeys to Bergen, Norway. Our U.S.
trips include Alaska, the Mississippi River from Memphis to New
Orleans and the Columbia River from Portland to Idaho.
JAS: How old were you when you when your father died?
JUDGE: He died in 1965. I think I must have been about 55,
something like that.
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JAS: Were you close with your father?
JUDGE: Yes, closer in the later years. I think he thought I
was kind of a smart ass.
JAS: Were you?
JUDGE: I was.
JAS: The reason I said were you, my father thought the same
thing about me — and he was right.
JUDGE: I know I irritated him. I used to wear a Browder
button, when Browder was the Communist candidate for the Presidency
in 1932. You probably don’t remember this but there was a trial in
Honolulu involving a murder of a Hawaiian by a naval officer named
Massie.
JAS: Was that Clarence Darrow’s case? I think Clarence
Darrow represented Massie.
JUDGE: Yes it was. There was a much publicized trial.
JAS: First degree murder?
JUDGE: Yes. And while the trial was in progress, I voiced
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the opinion that Massie should be found guilty of murder. My father
immediately reacted and said, “What do you mean by that? Don’t you
know about the unwritten law?” I said, “I never heard of the
unwritten law in my criminal law class.”
stages I got to be very close to him.
I think in the latter
JAS: Are you close with your brothers?
JUDGE: Yes. I am.
is quite different. I
Their attitude on most things of course
don’ t think they are as interested in
current affairs as I am and they’re politically very conservative.
JUDGE: Thank you very much, Mr. Stein, for your patience and
understanding.