Warner Gardner Text of Interview Only (January 8, 1997)

ORAL HISTORY INTERVIEW
OF
WARNER W. GARDNER
INTERVIEW NO. 1
(January 8, 1997)
1909-1934
I’d like to start, Mr. Gardner, by asking you to tell us
when and where you were born.
I was born on September 25, 1909, in Richmond, Indiana.
My parents were married immediately upon my father’s
graduation from Earlham in Richmond and settled down in
that town for a year or two.
Who were your parents?
My father was Frank Gardner whose father in turn was a
farmer in Indiana. My mother was Camilla Winslow whose
family had been somewhat scattered; basically, Alabama
or Louisiana, who also attended Earlham.
And were you named for anyone?
I was named for my grandfather, the Indiana farmer.
And he was a drummer boy in the Union Army?
That is what he was.
What do you know about your grandfather?
Little or nothing. I visited his farm, which was a
typical, small 80-acre corn and hog farm in Indiana,
perhaps four or five times when I was a child. He died
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when I was 12 years old, which I know because I had to
take a journey from Westtown School to Indianapolis all
on my own. I felt very adult and adventuresome and
arrived to discover my grandfather had been kicked by a
mule and had died while I was en route.
What about your parents? Can you tell me about them?
Very little. My father was an entrepreneur of variable
success. A few years of quite satisfactory prosperity
and many more of completely impoverished living. Ups and
downs were typical. Somehow they got me educated.
How about your mother?
Just the other day I thought that I had done her
inadequate justice in my recollections. I remember at
the age of six when we were living in Louisville I stole
a part of my friend’s chemistry set, carried it home and
told my mother unconvincingly that I’d been given it.
She soon got the truth out of me, said I must take it
back. I said I would and I would slip it back and he
would never know it was gone. She said that wouldn’t do
at all. I had to take it back and tell him I stole it
and I was sorry. So I marched down the street, weeping
with this stolen chemistry set. It was the kindest
thing, which I consider a remarkably good thing for her
to have done.
On the other hand, during a prosperous period I came
up from boarding school to go home over the weekend and
my mother took me to a play called “Green Pastures,” an
admirable musical comedy, with black characters which
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I still remember with a great deal of pleasure. I
remember also my mother complained that there was a
large number of blacks in the orchestra who watched this
play. But I was an intolerant 20-odd-year-old at the
time and I thought that was an outrageous statement to
make. Going to see a black play and complaining that
the orchestra was sprinkled with black people. All
told, I think she was a very good woman but I wasn’t too
much aware of it at the time. I left home at the age of
about eleven for all practical purposes.
Did you have siblings?
I had one brother who still lives with a variety of
unfortunate illnesses. Lost a leg to cancer. He’d been
in the State Department, Civil Service not Foreign
Service. He was there since World War II.
Is he older or younger?
He is younger.
By how much?
Six years.
And his name?
James.
Where did your family live as you were growing up?
I had to answer that question on admissions to the New
York Bar. It took me almost half a day to make an
incomplete enumeration. I can’t begin to do it. I was
born in Indiana, my father moved for a year or two to
Louisville then to Indianapolis, then to New York, New
Rochelle. In tne summers we lived in various places on
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the Sound. :•d say I started out in Indiana and then
lived in or near New York until I came down to
Wash_ington for nine months in 1934. I haven’t left
since. It’s a long, long nine months!
What recollections do you have of your childhood?
Remarkably little. It wasn’t overly happy nor was it
unhappy. I remember that I was the best skater on Field
Avenue in New Rochelle. Roller skater. Which wasn’t too
great an achievement since it was only one block long. I
remember attempting a variety of children’s games. I’ve
never been notably coordinated. I’ve not distinguished
myself in that regard. I remember being given the choice
between piano lessons and dancing school, choosing the
latter because it was only an hour or two a week as
opposed to daily practice at the piano. And there,
dressed up in patent leather shoes and white gloves, I
ended up dancing with little fat girls. I just disliked
it so much that I’ve been saddled ever since with an
inability to dance at all. I can go on and on with
trivia, but nothing of consequence.
What about your early schooling? What are your
recollections of that?
My recollection is that I was I think a fairly good
student. In the New Rochelle public schools I went from
first to third grade, missing second grade, and from
sixth to eighth grade missing seventh grade. The
consequence of which my education has been exceedingly
spotty. The rules of giarnrnar I have never gotten in my
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head. I write and read by ear rather than any notion of
the grammatical technicalities taught in the seventh
grade. What I lost in second grade, I don’t know. I do
recall that in the eighth grade, most of which I spent
in New Rochelle, I had a music teacher who was a stupid
woman who arranged people in a row according to the
pitch of their voices. But I was a year or two younger
than everybody else in the class. I hadn’t begun to
lose my baby voice. And so there were boys at one end,
then all the girls, and then me down at the other end.
Needless to say I was humiliated beyond description.
And so I am unable to sing nor do I have any musical
interest, consequently. So I can say I was ruined by my
education in two respects.
And then you said when you were eleven you went to
boarding school?
My father had prospered a year or two after the first
World War. We were living very comfortably in a large
house, large yard and so on. And connected in a way that
I didn’t understand then or now with the price of sugar,
he encountered financial catastrophe. Had to give up the
fancy house in which we were living and the question was
what to do with me. One of my mother’s Earlham friends
recommended very strongly Westtown School as a place to
deposit a child.
What was the name of the school? Westtown?
Westtown School. Yes. And so I was packed off there in
the spring at the age of eleven and in the eighth grade.
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I did not really have a home complete with parents after
that. Vacations I enjoyed with them in the early years,
but we never settled down living as a family after that.
Where did you spend summers?
Oh, it varied. One summer, I think probably the first,
at a lake in Northern New York called Lake Bonaparte, in
a cottage owned by a business friend of my father’s, and
then several years at Lake Wauramaug in Connecticut. And
for several years my parents would rent a house in the
Greenwich area or other Connecticut towns on the Sound.
Those were in general the years of comparative prosperity.
For the first two or three years after we left New
Rochelle, my father pursued an elusive goal in the North
Georgia Mountains. The first mint in the United States
was at Dahlonega. The mines and the miners — the mines
closed when the miners left in a rush for San Francisco
in California in 1849.
The mint closed about a year after that. But there was
gold around and my father, being a man of incredible
optimism, pursued it for two or three years, prospecting
with a small crew of three or four men. It was to have
been my last year in Westtown and he was unable to send
me back. So I spent that year in Dahlonega with my
parents and with the mining crew. At the age of 14 you
don’t have much tolerance for your parents, and I spent a
month or so living with the mining crew on location,
growing somewhat accustomed to mice rattling around in a
straw mattress and more than accustomed to canned
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peaches, which was their most cherished dessert. It
didn’t do me any harm, probably was good for me. But I
ende? up still the youngest person in my class back at
Westtown and still badly in need of some maturity which
I didn’t have, though probably more than if I hadn’t
taken that year out.
What recollections do you have of boarding school?
Obviously I have a lot, but of no particular consequence.
Again, I was not aware of being particularly happy or
being unhappy. I was not an athlete and I was always the
youngest in the class. But I wasn’t inordinately worried
by any deficiency at the time. I was a fairly good
student.
Did you have a particular academic interest? Particular
professors who made an impact on you?
No. Oddly, not. I nevertheless liked Westtown
sufficiently so three of my four children went there, as
did my brother, as did his son. And a grandchild went
there and another one is about to start next year, so it
was obviously not a poor experience.
How did you make the decision to go to Swarthmore?
In those days there wasn’t any difficulty about getting
into a college that you wanted that I know of. And
Swarthmore was, I think about 15 miles down the railroad
from Westtown on the way to Philadelphia. So I got on
the train there and went to Swarthmore and talked to
people for a few hours and came back.
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So as far as there was any other motivation it was
because Westtown and George School were the two Quaker
schopls in Pennsylvania; Haverford and Swarthmore were
the two Quaker colleges in Pennsylvania. There had been
a schism in Quaker religion early in the 19th Century
and the portion called “Hicksites” broke away. They
were more modern in thought. They did not consider that
dancing and music were sinful. They even had paid
ministers, all sorts of trappings of the world which the
orthodox didn’t have. Westtown is orthodox as is
Haverford, and its graduates went either to Haverford or
Bryn Mawr; George School graduates went to Swarthmore. I
went to Swarthmore instead of Haverford. I think as the
first graduate from Westtown in 10 or 20 years to have
done it; it happens a little more regularly now. This
represented a very modified protest, not protest
sufficient to break away from Quaker education but at
least to get a little bit out of the established line.
And as I think I indicated in the little piece that you
read, I was quite happy to go to Swarthmore.
Why don’t you tell me about that; talk a little bit about
Swarthmore.
I can talk most readily about my academic career. I
started out to be an engineer and joined the engineering
course. They had a modern (then modern) principle of
sequential instruction. You first went to shop. There
you made yourself a drawing board, a mechanical drawing
board. When that was done, you went to mechanical
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drawing. When that was done, you went to survey. By the
time the class had gotten to survey I was still in shop.
I co_ncluded I wasn’t meant to be an engineer.
So I marched into the dean’s office a little before
Thanksgiving and said I wanted a change but I was not
sure what I wanted to change to. My father, so far as he
had a profession, was an amateur or close to amateur
chemist. So I thought, alright, I’ll be a chemist. So I
was a chemist for 2 or 3 years and I was a very good
theoretical chemist. I believe that on a standard
organic chemistry examination which the University of
Manchester produced, which is highly regarded, I got the
highest score in the United States or something like
that.
But I also managed to break a large number of the
instruments which were required for laboratory work. And
organic chemistry instruments were a lot more intricate
than the beakers and test tubes of ordinary chemistry.
They had coils and pipes within spheres, and all sorts of
things; they were a beauty to observe. And a disaster to
drop.
My chemistry breakage bills ran up and I thought,
well, I didn’t want to be a chemist anyway. Among other
things, it required a mathematical education which I did
not care for and really did not master from calculus on.
I had to really learn by memory and that’s an awfully
hard thing, learning calculus by memory.
Swarthmore had an honors program under which you
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didn’t go to class for the last two years, but worked on
your own except for a weekly hour with a tutor, based
larg?ly on the Oxford-Cambridge model, I think. When I
was in junior year, I was an honor student in chemistry
with a minor in philosophy, which is a somewhat odd
mixture that they allowed me. That was because my
philosophy teacher, a man named Bland Blanshard, I much
liked and I think he was the first person that I can
recall that thought that I had a capacity for thought and
I got along reasonably well with him. After my junior
year I was fed up with chemistry so I thought I would be
an economist. Well I hadn’t ever taken any economics.
Why did you decide to be an economist?
I didn’t have any better idea. I knew I didn’t want to
be a chemist. I knew I didn’t want to be an engineer.
So I went to Columbia during the summer and took one
course in economics which is most notable for the fact
that the moral standing of the summer school students, at
least, at Columbia was very doubtful as was their
ability. I remember the final examination. I ·didn’t
like my fellow classmates and I had a spotty sense of
honor then; some deficiencies here and there, but I
didn’t like cheating in examinations. So I regret to
say that, as we sat there writing in pencil our
examinations, I’d write a wrong answer and wait until my
neighbors had copied it down and then erase it and put in
the right answer. I felt like an avenging angel and
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most enjoyed it.
But then that was just the start of my troubles. I
went.back to Swarthmore, having decided to be an
economist, so I’d be an economist in the honors program.
They said you can’t do that, you haven’t had any
economics. I said I sure did, I had a class at Columbia
and besides that, obviously an honors student should be
able to vary his st udies. Well, we argued back and forth
and finally compromised: I would take two courses in
economics and be on my own for the other half or twothirds
of the time.
Well, you get around the adult world only by paying
their costs. They had a great deal of pleasure I think
and I don’t believe it was an accident. They ended up by
prescribing two courses in economics, one of which
started at 8:00 in the morning on Monday, Wednesday and
Friday; the other at 8:00 in the morning on Tuesdays,
Thursdays and Saturdays. I thus had much spare time and
wrote a long, long thesis. I think it holds up pretty
well, though I can’t bring myself to read it. It
demonstrated to my satisfaction that the Federal Reserve
System, by jiggling interest rates, could control
business cycles, which I believe is rather more widely
accepted now than it was then. You know, a long paper.
And got second prize in the what was then called the
Hart, Schaffner & Marx national competition. A girl at
Reed College in Oregon got first prize. I felt on the
whole that I’d justified my initial position at the
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beginning of the year, and that I was fit to do honors
work in economics.
That. was your junior year?
That was my senior year. My junior year I was in
chemistry and philosophy.
I see, so you switched after your junior year.
Yes. At Swarthmore the Phi Beta Kappa elections come at
the end of the senior year, not any time before. And at
that time I unfortunately was expelled. It was the
second time at Swarthmore. I was expelled this time
because Swathmore, in those lovely bygone days forbade
cars at college, and I had a car from September on parked
outside my room in the dormitory. Nobody had done
anything.
And you weren’t supposed to have a car.
No. But just before graduation, in that lovely week when
you’ve taken your exams for graduation next week, which
you’ve looked forward to for four years, and have no
responsibility whatever, I was driving a young lady of
whom I was rather fond through the campus going
somewhere. I looked up from our conversation and saw a
pedestrian in front of me and jammed on the brakes.
Unfortunately it was the dean of the college and I
stopped before I hit his shin but not before I hit the
crease on his trouser leg. That led to an expulsion
until graduation day.
I had been making a little beer in the dormitory
with a fellow accomplice. We did it back in the
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basement in between the trunks. Sometimes it worked out
very well, sometimes very poorly, sometimes the bottles
expl_oded. But shortly before that disastrous trip
through the campus we had taken the current brew up the
fire escape, at about 2:00 in the morning, each with a
case or two of beer. I had stored it in my closet, and
locked the closet. But then I was told I had to go home
until graduation morning.
This was during one of my parents’ period of
prosperity and they lived in an East Side apartment house
in New York with an unlisted phone. And I was there and
I was told the Dean of Swarthmore wanted to talk to me.
I thought, “Oh my God, the beer bottles have exploded.”
I could see a rivulet of beer pouring out of the closet
in the dormitories. And I thought on the whole I’d
rather explain that in person than over the telephone, so
I wouldn’t take it. So finally the dean, an imaginative
man, went to a friend of mine and got her to say that I
could come back to Swarthmore a few days early.
The reason was that they had elected me to Phi Beta
Kappa. But one professor, a spoilsport, said “How can
you do that, elect him to Phi Beta Kappa and certify as
to his good character and he’s expelled?” But they
solved it by saying I could come back on what was called
Phi Beta Kappa Day, a couple of days before graduation
at which point came the actual induction. So they
thought they could designate me with bad character but
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that I’d be cured and have good character by the day of
election. So I came back. That is a brief summary of
the ups and downs of my education.
Now what happened with the beer?
It didn’t explode. It was all there.
good, but there it was.
And there was a Phi Beta Kappa dinner?
It wasn’t any
No. President Aydelotte and his wife had an engaging
custom of asking the senior class, graduating class, to
dinner. They did it in the form of a formal invitation
requesting the honor of your presence, and so on. And I
replied with some care, even consulting an etiquette
book, explaining that Mr. Warner Gardner regretted that
he could not accept the kind invitation and so on and so
on, because the President had forbidden Mr. Gardner to
set foot on campus. There came back, in due course, a
letter, a reply from the Aydelottes. They, too,
regretted the unfortunate circumstances, but would I
please give them the honor of corning to lunch on the
following Sunday. So, there was gathered at the “Phi
Beta Kappa lunch” the commencement speaker, the Phi Beta
Kappa speaker, the Chairman of the Board of Trustees, and
one expelled student. I was so out of my depth there, so
nervous, I recall vividly when the butler passed
biscuits I took one by the top, and as I pulled it over
the tray the bottom half fell, turning slowly over,
until it landed butter-side-down on the carpet. Well,
the butler picked it up and offered me another and
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I was so flustered by then that again I picked it up
also by the top but that one landed butter-side-up, not
down ..
What graduate school options did you consider?
I had rather intended to go to the Harvard Business
School; I think I’d gone as far as making application.
The Lord took care of me and stripped my father of his
funds. There was no way that he could send me to
business school. I don’t know what I did that summer. I
wasn’t employed. I know that I had no particular plans.
I was just playing with my thoughts.
And toward the end of August a young lady whom I’d known
at Swarthmore I’d not pursued because it was obvious at
the outset that I was doomed because all sorts of
glamorous people were in hot pursuit of her, including
Jim Michner (a class ahead of me at Swarthmore). In any
event, she had married a man by the name of Tom Holland
who was an economist, somewhat older, who was teaching at
Rutgers. Rutgers had instituted a fellowship/
scholarship for graduate students in economics Which paid
$100 per month. Now, in 1930 that was a pretty good sum.
Not magnificent, but enough to be comfortable.
The position having not been filled, I expressed a
very lively interest in it and was appointed to it. And
that year I don’t think I was taking on any classes. I
was assigned the study of building and loan liquidity,
so-called, which was very limited and they were all in
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terrible trouble. It was a state affair in those days.
New Jersey institutions were all on the verge of
bankruptcy and I spent the year working on a proposal for
a common fund of liquid assets.
That would be the early 1930s?
It would be 1930-31 and, in the course of that year, I
read and was much impressed by a book by John R. Commons
at the University of Wisconsin in which he tried to weave
together economics and law. I thought, “aha,” here is a
field that had real attraction and real potentiality. I
ended up with an MA at the end of that year. Instead of
going on for a Ph.D. in economics, I thought I’d go to
law school, study law and try to weave the two
disciplines together into a meaningful structure.
The story that one could tell about my life is that
it is a series of completely accidental good fortunes.
The next one that occurred was an instructor in the
Rutgers Economics Department by the name of Hurlbert.
Hurlbert?
Hurlbert. He was worried about the severe depression
prevailing at the time and he had a cure for it. His
cure was to stand on his head on Wall Street for as long
as he could, so he proceeded to do that. Well, that did
not endear him to the faculty or the Chairman of the
Economics Department, and he was relieved of his
teaching duties. I was there so they loaded his classes
onto me which I was to teach for the remaining school
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year. The New Jersey College for Women was also in the
same town, New Brunswick, and my first class was over
there. And, by mishap, the course had just reached
Ricardo’s views of the almost certain devastation because
of the growth in population; that inevitably led on to
ways of restricting population — birth control and the
like. I was a pink-faced 19-year-old or 20-year-old
talking to this class. I think there was about 40 of
them, every one of them knew more about population
control than I did.
In consequence of Hurlbert, I was able to go to law
school. I was hired by either Rutgers or NYU for parttime
teaching, for all but one semester of the three
years of law study. This was not because they were
overwhelmed by my talent, but because I had one great
advantage by being available and making no demands and
having no expectations for the future beyond the semester
or the year. During the fall semester of my second year,
I was unemployed. That was fairly rough in terms of
money. Columbia gave me tuition, books and rent but I
had to have a little cash for living. If it hadn’t been
for Hurlbert I wouldn’t have had any.
How did you decide to go to Columbia and what was the
application process?
I decided to go to Columbia because there it was, at
hand. And the application process consisted of taking
some sort of an examination, which I took, paying no
attention to it. My first year, I did not do at all
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well – C’s and B’s. I didn’t much like the courses I was
taking. I didn’t like my fellow students. They behaved,
it s.eemed to me, in an abominable way — arriving with
green, red, purple, and black pens and scribbling in
leather notebooks, followed by a mad dash to the professor’s
desk at the end of the lecture in the hope that
they could make an impression on him that might be
useful. There was intense competition throughout.
At the beginning of my second year, a week before
maybe, the Dean, Young B. Smith, called me in and said my
marks were not really good enough to renew the
scholarship they had given me, but that it would cost
more to revise their entrance examination, on which I
obviously did well. So they would give me another
chance. They renewed, on that cost-saving basis, the aid
they were giving me. I then took courses that I liked
and ended up on top of the class with A’s in everything.
Did you work harder in your later years? To what do you
attribute this change in your academic performance?
Partially the courses which I liked. I think it was
chiefly that. It was stupid of me to dislike the firstyear
courses because, if I wanted to do anything in the
nether world between law and economics, the first year
compulsory courses of property, trusts, and contracts and
were fertile ground for any imaginative weaving that I
was going to do. The second year included interesting
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things — trade regulation, constitutional law, public
utilities and things that I was interested in here and
now.
And there are a number of professors at Columbia at that
time who were still very well known: Karl Llewellyn,
Herbert Wechsler, Walter Gelhorn? — maybe there were
others?
One other, I’d add Hale, his first name I forget.
Herbert Wechsler and Walter Gelhorn were reasonably close
friends throughout my life. During my third year in
Columbia, I was teaching half-time at NYU and also doing
half-time for an odd sort of operation called the
Legislative Drafting Research Fund. I ended up with two
half-time jobs in addition to law school. That’s because
I had been wholly unemployed, with no income on September
1, my dates are a little arbitrary, and, in two days, I
had New York University offer me a job and said “yes.”
The Legislative Drafting Fund, either the same day or the
next day offered me a job, which I also took, so I ended
up very busy.
The Legislative Drafting Fund was actually across
the hall from Walter Gelhorn’s office and we ran into
each other with fair regularity. I ended up spending
my weekends, which were my only time off with that
schedule. I had to work from morning to midnight on
weekdays. Weekends, I took Sundays off and spent
Sundays with Walter and Kitty Gelhorn very satisfactorily
and have been very fond of them ever
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since.
I took a course with Wechsler, but I wasn’t very
clos? to him until he came down to work in the Solicitor
General’s Office when I was there. I got rather close to
him then and when he was conducting brilliantly the
experiment on Civil Service Commission for Lawy-ers. I’ve
been quite close to him ever since. We generally have
had dinner together when the American Law Institute meets
in Washington. But last year, about the week before, I
ended up in the hospital and Herb Wechsler was also in
the hospital. Neither of us could make it, but as usual
we have high hopes of doing it again this year. Hale was
not as impressive a man, with nothing like the national
standing of Wechsler and Gelhorn, but he taught courses
that I was particularly interested in and was a very
thoughtful and decent person.
Tell me about Llewellyn.
I thought he was a showman, and he added mightily to my
disaffection with the Law School in my first year because
he was in charge of indoctrinating or something.or other
of incoming students, and put on a dramatic show. We had
to eat law, think law, live law. He did all sorts of
dramatic things and made the whole process of legal
education seem a little like a group of circus clowns
performing in a theater. I tried one semester on sales
with him in my third year. After the second or third
session, he announced we would please hand in the class
notes we had taken. He wanted to read them.
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Well, I found that distasteful, in part, because I didn’t
have any class notes and, in part, because I thought it
was an insult to the students to make that request. So,
I told him I had not been subjected to that close a
scrutiny since I lived in the Stone House in Westtown,
where they put the little children not big enough to go
into the dormitory in charge of Teacher Jesse. She would
inspect us before we went up to meals in the big
building, to ensure that our hair was combed and our ears
were cleaned. I hadn’t been subjected to that close a
scrutiny at any time since, and I wasn’t going to, so I
quit.
What do you mean, you quit?
Well, I just quit.
You quit the class?
Yes.
What course was it?
Sales/contracts.
was it the first year?
No, third year. By the third year, I had sufficient
mastery of the institution.
Right. Did you generally not take notes as a student?
No, I generally did, but I was not going to get myself
a fancy notebook with five or six colored pens. So I
took notes in the margins of the case books. My writing
is no good anyv.,ay, and when you’re writing in a small
margin of a case book, you don’t end up with very
legible writing, but it had a good result. Before the
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Mr. Schultz:
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Mr. Gardner:
examination, I would sit down for about a day or maybe
two days per case book and try to piece out what I had
written and put it together in a form of connected
typewritten notes. I may have ended up with a better
understanding of what had been said to us than the people
who were so seriously putting it down.
Why is that?
Because it came together …
The text?
The annotated text was studied consecutively over a day’s
time or two days’ time, looking at nothing but that area.
It worked pretty well. It also served symbolically to
indicate my distaste for my fellows who so avidly copied
all things down. I remember one course when I was living
with a friend in a broken-down apartment in the Village
on Barrow Street, and I needed a place to type so I
turned over what I thought was an empty refrigerator to
be used as a desk. Unfortunately, there was a bottle of
olive oil left in that refrigerator and when it was
turned over it produced a permeating smell of olive oil
and for years I could not think of trade regulation
without smelling olive oil.
What were the goals of your fellow students in law
school? What did they intend to do after law school?
They intended to get rich on Wall Street — period.
So they didn’t have the goal of going into the Roosevelt
Administration?
I think few, if any, of them did. You know when I was
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Mr. Gardner:
Mr. Schultz:
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put up to Stone along with one other man as possible
clerk.
This is Justice Stone, when you refer to being a clerk?
Yes, Gelhorn and a professor named Dowling had control of
that operation. They made the recommendation to Justice
Stone. He would interview two or three people and make a
selection. I wasn’t on the Law Review after my first
year marks and by no means was among the elite. The Law
Review people hated me after Stone had selected me and I
was in the middle of guerilla warfare with anyone on the
Law Review for having invaded their territory.
Is that right?
The man that also went down to see Stone and was not
selected graciously said that he thought it was right and
proper — a good thing — because he had a very good job
on Wall Street and I had no prospects.
Because you weren’t on Law Review?
Yes.
Did many in your class come down to Washington?
There is one man who may have ended up in the Office of
Senate Parliamentarian, a drafting office. I never got
that too straight. I think that of the entire class, I
was the only one who came down to Washington. Later on,
more of them did.
Justice Douglas, was he at Columbia then or was he
Chairman of the Security Exchange Commission?
– 23 –
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
He was not at Columbia while I was there. He may have
been at Yale.
Oh, he may have been at Yale, all right.
He was at Columbia and then he went to Yale. Then he
came down here. I don’t know if he was Chairman of the
SEC or someplace else.
Mr. Schultz·:·· And then he went on the Court in the late 30′ s or
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
sometime after you clerked for Stone? So you came down
to Washington to Clerk for Justice Stone in about 1934?
1934, yes.
Why don’t you tell me a little bit about Justice Stone.
What was his background? How did he become a Justice of
the Supreme Court?
I don’t know about him prior to his days at Columbia, but
he started teaching at Columbia early in the — I just
don’t know. He was Dean of Columbia until about 1920.
My dates are very approximate. During that time, or part
of that time, he a1so practiced law with a New York firm
I think it was Sullivan and Cromwell — and was quite
well-to-do which was not the ordinary lot of the law
school Dean. Coolidge was President and there’d been the
Teapot Dome Scandals which included the then Attorney
General Daugherty. Coolidge wanted to clean up the
Department and asked Stone down as Attorney General.
After one or two years as Attorney General, he was
nominated to the Supreme Court. That was 1924 where he
was until he made Chief Justice in 1940. He died in
1946.
– 24 –
I had and have a great respect for him as a good solid
thinker, completely dispassionate without regard to or as
close to being without regard to his own interests as any
man can be. A vivid illustration of that is that when
the Gold Clause cases came to Court, which is during the
year I was working for him, his frugal New England soul
was shocked that the should issue bonds promising
payment in gold and then reneging. He was shocked and
deeply distressed. He had a very strong sense of
identity with his government. He said he’d never buy
another United States Bond. I think he sold off whatever
he had. He probably would have done that anyway when the
case was corning up to the Court. And despite that very
strong emotional distaste, he was the only Justice who
held that repudiation was an exercise of the power to
regulate currency which resided in the Congress. He
permitted them to do it.
I’ve known only a few Justices at all closely. I’d
be willing to venture that nobody other than Carl McGowan
and John Harlan, the younger, of the Judges that I’ve
known, would have a similar capacity to put their
personal beliefs aside. Powell I did not know, but I,
for many years, have been reading the opinions of the
court and for the last 20-odd years, more than that, 40
years, I guess, the ideological cast of the Justices
have been such that one was almost certain of the
outcome when you saw who was writing the opinion, and
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
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Mr. Gardner:
saw the question itself.
But not Stone?
Not Stone, and to a degree, not Harlan or Powell. And
Souter seems an uncommitted man.
You moved to Washington to clerk for Justice Stone,
expecting to be here nine months? What did you expect to
do after that?
I didn’t have the vaguest feeling. Oh, somewhere, I
thought for the first two years, I was going to teach
economics when I got through. The third year I decided
law was much better than economics.
You planned to practice law?
No, I didn’t. I planned to teach law if anything.
To teach law?
I did.?’t plan very well. I’ve never been very good at
advanced planning but I thought I’d end up teaching
either economics or law and did nothing about it.
Indeed, I was fairly sure I wasn’t going to remake the
intellectual world because my senior year, with Hale, a
seminar course, I did a fairly extensive job of getting
back into John R. Commons in his how-do-you-call-it Legal
Foundations of Capitalism. I decided he really didn’t
know what he was talking about and I wasn’t much
interested in it anymore. So having reshaped my life
again, I concluded that economics was a bad idea. I
really expected that I would teach law, but I did not
give it much thought. I don’t know why.
In those days they didn’t have a formalized notion of
– 26 –
integrity, such that a Supreme Court clerk now cannot go
into the Solicitor General’s Office. That would be a
conf·lict because, who knows, there might be some case
hanging over from their days working for the Court -Goddamn
nonsense. Roosevelt had started off with a
Solicitor General of striking incompetence. Stone once
remarked that he wasn’t fit to try a cow case before a
justice of the peace, that is, unless the cow was sick.
In any event, he was so bad that even the White House
realized that they had to do something about it and they
selected Stanley Reed, a good and capable fellow, who was
general counsel of Reconstruction Finance Corporation.
He was moving into the Solicitor General’s Office
about the summer of 1935. Adolph Berle, I had one course
with him and for whom I had written one long paper at
Columbia was instrumental in my going there. I had
really impressed him in only one way. He was
teaching at Columbia. He was on LaGuardia’s policy
council and on Roosevelt’s brain trust. The three of
them together kept him reasonably busy. In the seminar
he was teaching that year, he would hold his head in his
hand gathering himself together before we started in. I
was teaching at night school at NYU and we happened
to be on this same subway, about 6:00 or so, going
down town. He took time enough off his major worries,
to inquire about what I was doing and I gave him a
thumbnail sketch of my commitments. He said, “My, you
– 27 –
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are as busy as I am.” In any case, because I was as busy
as he was, I think I may have written a fairly decent
paper for him too, he was always reasonably fond of me.
He told Reed that he ought to get me into the new
Solicitor General’s Office. So Reed asked me and I said,
“Yes.”
This is after you clerked for Stone?
It was spring at the time and I was still clerking for
Stone.
Now, let’s go back to when you came to clerk for Justice
Stone. Howard Westwood was your predecessor?
He was, yes.
And he trained you for a day or two?
He spent about one-half a day giving me a vague idea of
what I should do. And I don’t complain. I did no better
with my successor. And I don’t think training is much
use anyway. It’s largely a matter of chemistry and
natural wit and so on.
What’s your recollection of how Westwood had done?
With Stone?
Yes.
Very well, so far as I know.
would you describe how you worked with Justice Stone?
It’s my imprecise recollection, that of the ever present
petitions for certiorari, which were numerous even then,
that he read only a fraction of the sizeable flow. They
would be distributed — the petitions, the record and
response — all in a pile held together with a rubber
– 28 –
Mr. Schultz:
Mr. Gardner:
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band, and I would go through it and write up a little
memorandum, not a full size, maybe six by eight instead
of eight by nine paper, attempting to summarize it,
occasionally getting into a second page, but rarely. If
my recommendation raised any doubt, and maybe it’s one
time in ten or one time in twenty, he’d look at the
briefs and records himself. In general, he’d read the
memorandum and make up his mind in a total of about three
minutes. And, in contrast to the present custom, for I
am sure the Justices are now “prepared” i.e., given
questions to ask by their clerks before they go on to
oral argument. He would take that certiorari memorandum
with him and glance over it, not reading the brief, or
anything else.
This was before argument?
Oral argument, yes.
Oh, I thought you were just talking about cert.
petitions.
Well the cert. petition memos he’d carry on to oral
argument. I was talking about both.
So, for an oral argument, you would read the briefs?
No, I wouldn’t. Nobody would read the briefs. He would
have the certiorari memorandum; he’d have a notion of
what the case was about; he’d listen very closely to oral
argument; and, on that basis he would generally make up
his mind. If a case was assigned to him, then he’d get
into it very carefully and write the opinion. To
determine his votes; he’d sometimes look at the brief
– 29 –
•
or a record, whatever seemed to have struck his interest,
but rarely. His votes on the merits reflected the
initial memorandum, a very broad outline of the case plus
oral argument, plus the discussion in conference.
He would get into a study of the record only if the
opinion was assigned to him. If assigned, his practice
was fairly uniform. He would spend a fair amount of time
— a day or two — in the brief and record, formulating
his thoughts, and then he’d dictate an initial draft of
his opinion with a profusion of “[cases).” That was my
job, the first of my jobs, to fill in those brackets.
My second job came after I had added the cases that
followed out of my research, which was nothing very
extensive or revolutionary. Stone would take that and
produce a second draft, at which time I started a
literary examination. Stone was not a graceful writer
and his opinions required a fair amount of attention to
produce what I thought was a reasonably well written
opinion. I, in contrast to others who had written about
their days as clerks, did not sit down and engage in long
discussions with Stone about the merits of the case and
did not shape his thinking in any way. I have some
doubts as to the recollection of the people who explain
bow long they labored together to develop a Stone
opinion.
Putting those doubts aside, we had next to no
prolonged or close discussion about the usual case. I
– 30 –
Mr. Schultz:
Mr. Gardner:
went to him once on a tax case for help because two
recent Holmes opinions were directly contradictory. One
dictn•• t conform to the other, and I said, “so what do I do
now?” He said, “The old man in his later years didn’t
pay much attention to authority, not even his own, so
just pick out whichever one you want and cite it.” And
then one other case, a conflict of laws case, happened to
be almost a replica of a lot of work that I’d done for a
term paper on conflicts of laws the year before and so he
let me write the initial draft, which he largely
accepted. That case was more mine than his but it was
the only one. Well there was another, a little tiny
banking case, as dull as dishwater, Stone couldn”t bring
himself to get into, nor could I. But he had the
authority so he told me to work out a draft. Beyond
that, I contributed nothing to the process of adjudication.
After he dictated the draft, did he then edit it and
rewrite it?
No, then he’d wait for me to come back with the completed
research and then produce a second draft. I can’t
remember whether he’d sit down and dictate it or study it
and write it out. I would then do some literary editing
which he would read over and then circulate a printed
copy. But we always got the assigned opinions out in a
sense of being completed and circulated to the other
Justices within the two week interval between arguments.
Nothing was ever held over.
– 31 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Were you the only clerk or were there others?
Oh no, there’s only one clerk.
And,· how would you compare the Supreme Court today to
when you were there?
Adversely. Not in terms of ability. The clerks have
above-average ability, with some outstanding people. In
terms of habit and tradition, I think there has been a
great deterioration since my day. I say my day, I mean
the day that I happened to join briefly in the work of
the Court. The opinions then were not replicas of Law
Review articles. There wasn’t an attempt to paint an
exhaustive picture of the law. The dissents and
concurrences were comparatively rare and there were none
of the monstrosities that we now get on occasion, where
several Justices pick and choose paragraphs and sections
of the main opinion, where they agree, and where they
disagree.
Nobody can understand the damn opinion, unless you
take a piece of paper and construct a chart. This sort
of judging is disgraceful since their job is not to
vindicate the judge’s learning, intelligence and so on,
but rather to straighten out the law which the fragmented
opinions don’t do. The lower court judges and the
practicing lawyers are often ill-served by the complex
opinions which come out.
I remember about ten years ago, Chief Justice Burger was
promoting an intermediate court to save them from the
burdens that they had. I don’t doubt the burdens they
– 32 –
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were working a lot harder than the Justices were when I
was around. But what they were working on was the
development of separate positions, their concurrences or
dissents. Burger supported the additional court on
grounds that I thought were dishonest. He emphasized
that in Chief Justice Warren”s first year, they had only
84 signed opinions in the Court, while today we have 120.
Warren’s first year was the lowest year in the history of
the modern Court in turning opinions out. They had spent
most of their time on Brown v. Board of Education and all
of the political, intellectual and legal problems in
connection with that. Back in the 30’s, instead of 120
that Burger was complaining about and saying there ought
to be another court, they were doing 150 opinions a year
without working too hard.
What were the working hours?
I only know Stone’s. This was the last year before the
new Courthouse opened and the Justices worked in their
homes, so I can speak only to my year with Stone.
And the Court was in the Capitol?
Yes, the old Senate room and the Senate Chambers. Stone
started work, I think about 8:00 or 8:30. I didn’t
know. I didn’t get there until about 9:00. At about
6:00 we would stop and we would go out for a little walk
and that was the end of the day. He may have worked
longer on weekends. I didn’t work either nights or
weekends, not because of indolence, not because there
wasn’t some work to be done, but chiefly because Stone’s
– 33 –
chambers were in his home. He had built a house and
there was a large room for his chambers in which he and
his Clerk and secretary worked. He’d push a button on
the wall and the bookcase would swing away permitting
entry into the house. At the day’s end, the outside door
was locked. And the only way you could get into the work
area after hours was through the house, which I didn’t
care to do, and I expect that he didn’t care to have me
do. On Saturdays the Justices did work. They then had
their conferences on Saturdays. I guess everyone worked
on Saturdays before the war, but I don’t think Stone, as
a rule — maybe never — work ed on Sunday. I don’t think
he worked nights. He got his work done, as I say, within
the two-week interval. We never had — when I say never,
I’m probably exaggerating, but it muse be rare — the
opinion writing ?pill over.
The current Court produces more opinions with, I
suppose now, something like 100 cases a year than the
Hughes Court did with 150 cases. The current Justices
work a good deal harder and turn out more opinions and
complete more research. More than half of the Court’s
current effort is devoted to dissents and concurrences,
which adds confusion to the legal world. I’m speaking
now of the Supreme Court, not the Courts of Appeals,
which by and large, are much harder pressed than the
Supreme Court, yet in one way or another get their work
done. Simply, they don’t have time for the luxury of
– 34 –
I
Mr. Schultz:
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Mr. Schultz:
Mr. Gardner:
dissents and special concurrences. You asked me a
simple question and I gave you an interminable answer.
No, it’s a fascinating answer.
Oh, I should add when Burger told us by this little
sleight-of-hand trick? how overworked the Court was,
choosing with such care, only Warren’s first year as a
basis of comparison, I was sufficiently infuriated that I
spent about ten or twenty pages documenting the Court’s
output with detailed comparison of his terms with 1934.
I didn’t think I wanted to send it off to ask somebody
please to publish it. And, I didn’t want it to drop
silently into a well so I sent a copy to the Chief
Justice and to each Associate Justice saying I wasn’t
publishing it but it was something I wanted to contribute
to the present controversy,
Somebody published it, didn’t they?
No. Out of the Court of nine and, I think, one retired
Justice, I had two responses, Powell and Stevens, each of
whom sent back a many-page, thoughtful and gracious
comment, in essence agreeing with me. But from Burger,
as the chief offender, and the others, not a word.
Mr. Schultz: · What was Washington like in 1934? How did it compare as
Mr. Gardner:
a city from Washington today?
There weren’t so many cars, there weren’t so many
buildings. It was also a much smaller, compact town, or
so it seemed. There was a enclave or a ghetto, if you
want so to view it, of bright young men who came down to
– 35 –
Mr. Schultz:
Mr. Gardner:
be New Deal lawyers. By and large the group was fairly
compact; almost everybody in it knew almost everybody
else·. I’m sure I exaggerate but unrelated to your
daytime occupation, social evenings were generally in the
same group. Somehow it was like a small town. We would
expect to see two or three people we knew if we went to
the theatre or to a restaurant. It was both smaller and
on the whole a friendly town, if you were white. If you
were black, it was quite a hostile environment. You were
not allowed in restaurants; theaters maybe, I’m not sure.
As the area got bigger and more crowded, there wasn’t
anything like the rapport that was around in the New Deal
days. It came again, during the Kennedy days, but it
didn’t go that far. The cause may have been only the
eloquence of Sorenson, but the attraction of Washington
was substantial then. In New Deal days, the excitement
was in Washington. The feeling of doing something useful
was in Washington, and, in addition, the government pay
in the early 30’s was higher than on Wall Street.
Oh, is that right?
Yes, when I came down and worked for Stone my salary was
a lot higher because he spent more of his appropriated
allowance on his clerk and less on his secretary. But, I
can remember with some vividness, Stone paid me $3,600,
The government rate was $2,600 a year and the Wall Street
rate was $2,200. Those happy days have vanished, I
think.
– 36 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Did you walk a lot? How did you get around? You said
there weren’t as many cars?
I would walk from my home to Stone”s which was less than
a mile. I had a beat-up car then. After that, just as a
matter of course, I think, everybody had cars and drove
to work.
Do you have any particular memories of segregation?
Oh yes, I have a very vivid memory in one respect. When
I left the Justice Department, I went over to the Labor
Department as a Solicitor, which was the only job I’ve
ever had in my life that I didn’t like. My chief trouble
was Frances Perkins. She had been kicked around by the
Congress for almost a decade, and ended up entirely too
timid to do her job. In any event, I had a great
difficulty with personnel. It was the beginning of the
war years and lawyers were leaving the Labor Department
in sizeable numbers, either joining the Armed Forces or
being lured away by more exciting work in war agencies.
And, by the same token, I was having difficulty
recruiting others. One day there walked in, it seemed to
me, an ideal solution — a young lady who had been on the
University of Colorado Law Review, and was obviously
intelligent, obviously attractive; I hired her
immediately. As a theoretical matter, the employment
papers had to be signed by the Secretary and, if I had
known that it was a controversial problem, I might
have talked to her. But I knew she wanted to hire
– 37 –
Mr. Schultz:
black people. I knew that she wanted to hire a woman,
and I thought, “Ha, this will please her, it is two for
one.·” It didn’t please her and we had stormy sessions
about how she was afraid — as I said the recruit was
attractive that a white lawyer might take her out to
dinner and be seen by a Congressman. She was afraid that
the white ladies wouldn’t like it. She undertook to
explain to me anatomical differences between men and
women in the toilet arrangements. Oh, and, beyond that,
she was antisemitic. I had to justify Jewish appointrnents.
I once asked sent a formal memorandum asking
if there could not be a momentary breach in the
antisemitic policies of the Department so that I could
hire a good lawyer or two. But I didn’t quit
immediately, like a man of true principle would have
done. In those days, all you had to do was tell a
passerby on the street you weren’t particularly happy,
and people would be around in a week or two or a month or
two suggesting alternatives.
three months before I left.
It took me about two or
And I left to become
Solicitor of the Interior Department, under Harold Ickes,
who differed from Miss Perkins dramatically, and was not
in any way intimidated by the Congress or anyone else. A
different story to be sure.
You said that there was an esprit de corp, and a lot of
socializing by young lawyers and others who came to
Washington to work on the New Deal. Why don’t you tell
me just who some of these people were?
– 38 –
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
The list starts with the Solicitor General’s Office.
Paul Freund, Charlie Wyzanski, Alger Hiss, Charlie
Horsky, and me. There was Hugh Cox. And Ben Cohen and
Tommy Corcoran, of course. There were other outstanding
players, such as Jim Rowe.
Where was Joe Rauh?
I don’t know where he was essentially, where he was on
the payroll. He was actually an assistant to Ben Cohen
much of the time. There was another 20 or 30 of us.
This is probably a good stopping point.
Good.