Abner Mikva Text of Interview Only (June 11, 1996)

INTERVIEW NO. 2
This is the second iJl.t?rview of the Oral History of former Chief Judge Abner J. Mikva as
part of the Oral History Project of the D.C. Circuit Historical Society. It is being held at his
home, 442 New Jersey Avenue, S.E., Washington, D.C., on Tuesday, June 11, 1996. The tape
and any transcripts made from the tape are confidential and governed by the wishes of the Judge
which ultimately will be made in the form of a written donative instrument.
Mr. Pollak: Ab, is there anything that you would add to what we did last time, which was
your forbearers, childhood, college, law school?
Judge Mikva: Well, I think the only thing I would add is that I had the good fortune of
having a very good marriage. My wife and I were and have remained interested in the same
things. She, as I indicated before, encouraged me to go to law school. We’re both interested
politically. Indeed, the first political job in the family was the one she had working for a
congressional candidate on the south side of Chicago, who I don’t think was successful; but she
actually got me involved politically. She was working through the Steelworkers Union for a
candidate. During my last year of law school, we survived on her salary of $50 a week as a paid
secretary for the American Civil Liberties Union. So I had a scholarship to the University of
Chicago from the ACLU that they didn’t know about. Throughout our married life, she has been
both supportive of and sensitive to the things I wanted to do, both politically and in the law. In
the early years, she was home raising children; but then, as they got older, she went back to
school and got her masters degree in teaching and became a school teacher for many years. I
think that’s a big part of what gave me both the stimulation and the freedom to do some of the
things that I was able to do politically.
Mr. Pollak: What did you do in the summers of your law school years?
Judge Mikva: The first summer, we went out to California where my parents had moved.
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We drove out in a car that we rented to deliver there, and then I drove a cab. My wife worked for
an insurance company. T4? ?econd summer I seem to remember we stayed in Chicago. Again, I
was driving a cab, by that time in Chicago, fairly regularly. I think by that time I had gotten more
of a full-time job as a cab driver. She was working on her thesis. They were, in neither instance,
jobs involving the law. The idea of summer clerkships or internships just was not that widely
known, besides which we needed the money.
Mr. Pollak: There weren’t real paying jobs available in the law then?
Judge Mikva: Not really. If there were, I certainly didn’t know about them I don’t think
there were any.
Mr. Pollak: And your economics during your law school time were at the margin?
Judge Mik:va: They sure were. We were living on a GI Bill that paid my tuition and my
books. Tuition, I recall, was all of $600 a year; but the GI Bill paid it all and paid for all my
books, and gave me a living allowance of $115 a month. Zoe’s parents paid for her tuition and
her books and we were able to get by with that $115 plus a little bit of supplementary.
Mr. Pollak: When did your first child arrive in relation to law school?
Judge Mikva: I was out of law school and had finished my clerkship. We had just come
back to Chicago to start practicing, and Mary was born in January 1953, a little over a year out of
law school.
Mr. Pollak: Am I right that upon leaving law school you undertook a clerkship with a
Justice on the Supreme Court?
Judge Mikva: Yes. The University of Chicago had not had any Supreme Court
clerkships for a long, long time. I might add that at that time most Supreme Court clerkships
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were directly from law school. There were some who did a kind of apprenticeship through the
Court of Appeals, but most .Court of Appeals judges did not have more than one clerk, if that
many. District judges didn’t have any clerks. State court judges didn’t have any clerks; or, if they
did, they weren’t very satisfactory. One of the part-time jobs I had while I was in my third year of
law school was working for a state court appellate judge, Ulysses S. Schwartz, a very well known
judge in Chicago, who paid me $5 an hour out of his own pocket because the clerk that was
assigned to him was a patronage clerk who was pretty much a drunk and didn’t get to work very
often. U.S. paid me $5 an hour to do research for him and to help him do his opinions. It was
fascinating work.
Mr. Pollak: But you were also editor-in-chief of the Law Review, weren’t you, at the
same time? How did you do it all?
Judge Mik:va: It’s amazing the amount of energy you develop when you need it. I was
also driving a cab weekends during that period, too, because my GI Bill ran out in the third year.
So it was the money that I got from driving a cab and from work that I did for Judge Schwartz
plus what Zoe was making that kept us going.
Mr. Pollak: Before turning to the clerkship, I’d be interested in your evaluation,
particularly as they may have influenced you as a judge, your evaluation of your training in the
classes at the law school, your training and your experience on the Law Review, and who your
mentors were among the faculty.
Judge Mik:va: Well, the classes were incredibly good. I had been the product of a good
public school education in Milwaukee and the University of Wisconsin, but mostly I understood
the education process having to do with remembering things. My memory was very good and I
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was always able to give it back to the teachers the way they wanted it, the way they’d given it to
me.
I was dismayed when I came to the University of Chicago to find out that rote was not a
very big thing, that they expected you to think about things and, indeed, there was a premium for
challenging some of the things you read in books; sometimes the professors tolerated your
disagreeing with them, but not too often. It was a superb group of teachers. Harry Kalven was
on the faculty and Malcolm Sharp, who taught me more free market economics in his contracts
class than I guess I’d ever learned before. Edward Levi was teaching. His course was called
Elements of Law. Walter Blum taught taxation. It was a super faculty. They were all the young
people that had come back to the University of Chicago to teach at about the same time after
World War II. They were full of energy. They were full of enthusiasm, and they were great
teachers. They remained my mentors really during most of my public life. Edward Levi had
become dean of the law school, and he was determined to bring Chicago back to its earlier glory
as far as being a national law school. He thought one of the ways of doing this was to get the
students back into the clerk stream again. He literally camped on Justice Minton’s doorstep until
Minton agreed to talce a clerk from Chicago, and it was me. Harry Kalven has continued to be
my source of all wisdom on the First Amendment and a lot of other constitutional matters.
Mr. Pollalc: He taught you constitutional law?
Judge Mikva: Constitutional law. It was mostly Bill of Rights law. William Winslow
Crosskey was the constitutional law professor who was a very brilliant and erratic scholar. I
loved learning constitutional law from him, but I must confess, when I got out of law school, I
had to relearn it because what he had to say about the Constitution wasn’t the accepted dogma of
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what the Constitution means. He really felt that the Constitution was written by people who
believed in the strong feder:? _government. He came out of the New Deal, and, so far as he was
concerned, the old Van Devanter court were doing a monstrous job of interpreting the
Constitution. He did some incredible original research to show that the Constitution was not the
kind of rigid anti-government document that the Van Devanter court said it was. Professor
Crosskey was adamant that the Constitution was intended to provide broad federal powers. He
did incredible research, scholarly research, that created a kind of bizarre reputation for him For
example, he had research to show that the watermark on the paper on which Madison’s notes,
which are always used as a basis for finding out what really went on at the Constitutional
Convention, was 1820. He insisted that Madison redid his notes long after the convention to suit
the needs of the time; that as what Madison was involved in, rather than having made an
accurate, contemporaneous record of what went on at the convention. He was not a great fan of
Thomas Jefferson, who· he thought ducked out of the convention by going to Paris. As I say, it
was a fascinating intellectual endeavor. This has always caused me to think a lot about sources
of constitutional history and to realize how dubious they all are because it was in fact a closed
convention, and there weren’t any real records taken. On the other hand, in terms of being able to
use constitutional law as a tool in my legal practice and later on in my judicial work, I have had
to rely on other sources; and Harry Kalven was one of those.
Mr. Pollak: What significance do you attribute to your experience on the Law Review
and as editor-in-chief?
Judge Mikva: It taught me first of all how to edit. I think it was my first real supervisory
responsibility of professionals. Somewhere in my early career, I supervised people in repetitive
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tasks, but this was the first time that I had a responsibility for supervising people who were
basically my peers. I learn?p that you don’t order a peer to do something. You find out ways of
persuading them that that’s the right way to go. I think it gave me whatever managerial style I
have and taught me how to deal with people, not to try to crack whips, to let people march in
lock step because they like to do it. I think it enhanced my writing ability. I still have a problem
with the way law school narrows peoples’ writing ability. There is such a premium on a word
meaning a single thing, on using the word precisely or exactly, that it squeezes all the juice out of
writing style.
Mr. Pollak: You sound like Fred Rodell.
Judge Mikva: Well, I was a great admirer of his. I wrote a follow-up article to his
“Goodbye to Law Reviews,” which I wrote, “Goodbye Footnotes,” in which I cited him at great
length. I think it’s true that legal writing puts this premium on not using colorful adjectives and
not using descriptive phrases, as much as it favors precise phrases. The result is that legal
writing is very dull. When I got to legal opinion writing and legal opinions later on, I used to
insist that no matter how many different variations and permeations a draft went through between
the clerks, I would write the peroration, and I insisted that people who came out of those good
law schools couldn’t possibly know how to write a good opening to an opinion.
Mr. Pollak: Ab, were there classmates of yours with whom you’ve stayed in touch who
have had an influence on you or whose careers are significant to you?
Judge Mikva: Yes, Bob Bork was a classmate. In fact, we had the same constitutional
law professor. I used to tease him when we served on the court here that it was incredible that
the two of us could have heard the same man interpreting the same Constitution and come out
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with such different views on what the Constitution meant. He used to respond or remind me that
that year be was spending ?_lot of time at Jimmy’s, which was a local watering hole on the south
side of Chicago and that he used my notes for constitutional law; and I used to insist that he read
them upside down. Patsy Mink, who is now a Congresswoman, she was then Patsy Takemoto,
she was one of the three women in that class, and we were friends then and we were friends over
the years. When I came to Congress, she was already there and we stayed friends. Ramsey Clark
was a classmate of mine. He came in at the end of his first year, but he graduated with us. We’ve
been friends over the years. Who else? There were several Washington lawyers who were
classmates. Howard Adler, an antitrust lawyer here in Washington, was a classmate; and we’ve
remained good friends. Abe Krash was another.
Mr. Pollak: Did you think you learned in law school from your classmates from the
debates that you had either in class or out of class, or did you not have time to devote to that with
the other things you were doing?
Judge Mikva: No, there was a lot of that. In fact, that was what was so exciting about the
University of Chicago. I had never been exposed to that before, not at the University of
Wisconsin. At Washington University where I went to school, you went to hear the lecture and
you memorized all the significant dates that the professor gave you in the lecture or that were in
the book, and that was it. Nobody ever talked about the classes. Nobody ever talked about what
they were doing. As soon as the class was over, you went out to do whatever else you were
doing. The idea of this intellectual ferment in Chicago where students who cared passionately
about what they were learning and disagreed with each other about what the case meant and what
the professor meant and that this would be carried on not only in class but out of class and at
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parties and on weekends was just a great eye opener. I loved that process. Of course, all the
professors used the Socrati? method and so nothing was ever given to you in black and white. It
was always, “What do you think?” The really good professors had this marvelous way of teasing
out all variations. It occurred to me when I took the Bar exam with the incredibly good education
I had that, even though I did not learn a lot of black letter law at law school, when it came to
taking the Bar exam, I knew how to think about these questions. With the smattering of black
letter law that I picked up in Bar Review, I was able to analyze the questions and get back enough
of an answer that I think I passed. I remember feeling, when people were coming out, saying,
well, I did terrible on the Bar exam, how awful it was, I didn’t feel at all uncomfortable about it.
I felt I had done well on it. I would have been shocked if I hadn’t passed.
Mr. Pollak: Tell about your clerkship on the Supreme Court. Did you start in the
summer?
Judge Mikva: Dean Levi had told me that he was going to push my name. There were
several of us who had applied, about three or four students in the class and most on the Law
Review. He said he was going to push my name because he thought my experience as editor of
the Law Review was something that would stand me in good stead if I got a clerkship. I gathered
he wrote a private note to Justice Minton. In any event, I got a handwritten note from Justice
Minton that he would like to interview me. This was in November of 1950. It was my very first
trip to Washington. I hadn’t been in this city before. In the service, I had been down south and
out west but I had never really been in the eastern part of the country at all, not east of Chicago. I
remember Zoe and I flew in. It was very exciting. I was as nervous as all get out. I felt very
uncomfortable about it. Justice Minton was not very gregarious. That was not his style ever,
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though when he was in the Senate, he was much more outgoing than when he got on the Court.
He had never taken a University of Chicago clerk before. All his clerks had come from Indiana
or Northwestern, which is where he had taken them when he had been on the Court of Appeals
for the Seventh Circuit. I can’t remember what the questions were, but I know I was so
embarrassed. It was awesome just walking into that courthouse and sitting and marching into his
chambers and sitting there and feeling like I was interviewing for my whole life career in that ten
or fifteen minutes. I went out of there thinking well, it was a good ride but that’s as far as it’s
going. I think this had to be later than November. I think it may have even been over the
Christmas holidays because I think I got the original letter from him in November and went in
sometime in December. Then in January I remember getting this handwritten note from him
saying, I have decided to take you on as one of my clerks and you will hear from me; be prepared
to start late this summer. I was on cloud nine and a half. I thought about that a lot since. I didn’t
apply until well into the middle of my third year. I wasn’t accepted until the second half of my
final year in law school, and that was plenty of time to worry about being a clerk and plenty of
time for the hiring process to take place. This business of getting it moving so early into the
second year, which is when the judges now choose their clerks, it’s bad for the clerks, it’s bad for
the judges, it’s bad for the law schools. I don’t know why they’re doing it. I tried when I was on
the Court of Appeals to slow it down and move it back to at least the beginning of the third year.
One of the problems with hiring clerks that early is that, when you are asking professors at the
beginning of the second year about these clerks, they don’t even know who you are talking about,
especially in the larger schools like Harvard and Stanford. They don’t know who these people
are.
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Mr. Pollak: It doesn’t serve the judges as well as later?
Judge Mikva: Not -?t all. But this stampede developed. There is nothing worse than a
bunch of judges charging down on a hiring hall. You can’t stop them
Mr. Pollak: Did you have one co-clerk?
Judge M.ikva: I had one co-clerk. His name was Ray Gray who was from Indiana and
practiced for many years with a big law firm in Indianapolis. A couple of years ago, he retired to
a small town in Indiana where he practices what he calls gentlemanly law with one of his
daughters who is in the firm It was an exciting group of clerks. Among the people I clerked
with were Bill Rehnquist who clerked for Justice Jackson, Newt Minow, Howard Trienens who
clerked for Chief Justice Vinson, Abe Chayes who clerked for Justice Frankfurter, Vincent
McCusick who clerked for Justice Frankfurter.
Mr. Pollak: Any women clerks?
Judge Mikva: None. Frankfurter had the first woman clerk, and I don’t think it was until
some time later; our group was completely male. It was a male society then. The clerks were
male, the judges were male. The clerks were all male and white, the judges were all male and
white. The bar was pretty much male and white. There was one woman lawyer who used to
argue for the Labor Board, Ruth Wygand ( does that name ring a bell?) who was a prominent
appellate lawyer, government lawyer, here in Washington at the time. I think that was the only
woman I ever saw argue.
Mr. Pollak: I see. Bea Rosenberg didn’t argue from the Department of Justice in the
criminal side?
Judge Mikva: I don’t remember her. She may have but I don’t remember her. The only
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name I remember is Ruth Wygand who used to argue some Labor Board cases. Then it was true
of the private bar as well. Q?t of my class of 150, there were three women. There were maybe
three or four blacks, several orientals, Patsy Takemoto was a two-fer. She was an oriental
woman. When she finished law school, she wore out several pair of shoes trying to find a job in
Detroit and Chicago and New York and San Francisco and Los Angeles; and she felt she was
thrice blessed. She was Japanese, she was a woman, and she had gone to what was then known
as that left-wing University of Chicago Law School. She literally, because she had no
alternative, went back to Hawaii to hang out a shingle, and now she’s having a political career.
Mr. Pollak: So what did you do with your clerkship? What did you find that you actually
did?
Judge Milcva: It was an exciting clerkship. Just being there was exciting. You felt like
you were the center of the universe and, especially for somebody who led as insular a life as I
had, this was incredibly exciting, to be involved with all these important cases and to be in
Washington. Washington was and is an exciting place to be. The clerks were absolutely, I think,
person for person, it was the most brilliant group of people I had ever been around at any given
time. If there is a meritocracy in this country, it has to be the way clerks are chosen. Nobody, no
matter how political their background or how unusual their management style, no judge will take
anyone but the very best clerks he or she can get. The result is you just bring out these really
bright people. They were all energetic and enthusiastic and full of ideas and full of enthusiasm
for their task. I came in July or August in the summer of ’51. I had just finished taking the bar
exam and came to Washington. For the first few weeks, Zoe and I stayed in Newt Minow’s
apartment. He had an apartment in Park Fairfax, and he and his wife were out on vacation, and
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we stayed there until we found a place in Park Fairfax. I read cert. briefs and found my way
around the courthouse and did the bench memos. The Judge liked the cert memos relatively
short. There was something at that time that we all used to hoot at and that I realized was
something that made a lot of sense. It was called the “Eisenhower memo.” President Eisenhower
insisted that he didn’t want to read anything that was more than one page long and, if it was
something that they wanted his decision on, they had to keep it to one page. We thought, “how
ridiculous.” There are some things you can’t boil down to one page. Well, that may be, but it is
true that when you are dealing with somebody who has an awful lot of paper to digest, shortness
is very, very important. Justice Minton made it clear that he wanted cert memos to be as brief as
they could be and give him everything he needed to know. So we would try to boil them down to
reasonable length He always wanted a recommendation from us as to whether we thought cert.
should be granted or cert. should be denied. I can’t ever recall his disagreeing with us when we
said cert. should be denied, but he frequently disagreed with us if we thought cert. should be
granted. He had many disagreements with us on the merits. He was very personable. One of the
things that he and Justice Frankfurter agreed on the most is that the Court should take as few
cases as possible. I don’t remember what the phrase was. It was something like, “You shouldn’t
mess around with the law unless you really have to.” There was something called, we used to
call it the “dead list.” I think it has a different name now, but the Chief Justice and his clerks
would read the cert. briefs early; and they would circulate a list, usually two or three weeks
before conference, in which the Chief Justice would say the following cases will not be discussed
in conference unless some Justice objects. And our standing instructions were that, if it was on
the dead list, our Judge didn’t want to see a cert. memo. I think on one or two occasions, we may
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have pushed the envelope when we thought that the Chief Justice was wrong, but very, very
seldom There were other_?’ll:5tices who did. For instance, Justice Douglas and Justice Black
both would frequently object to the “don’t discuss list” and, of course, any single Justice could
put it on the discuss list at the time of the weekly conference.
Mr. Pollak: Did he read the briefs for cert.?
Judge Mikva: No. Only on those in which cert. was actually granted. Let me put it this
way. Only on those where we recommended that cert. be granted and where conversation in the
judges dining room led him to think that there was going to be a likelihood of granting cert.
Sure, he read the petition for cert. in the Steel Seizure case. It was obviously an important case.
But other than that, he did not want to read the petitions or the cert. briefs.
Saturday mornings were always very exciting. The drill was that one of us had to be on
duty Saturday. Usually it was so exciting that both of us would come in on our own, but we
could take turns. As far as the judge was concerned, he wanted to have one of us there on
Saturday because every once in a while a message would come out — we use to call it a “no
case;” they would be discussing something in conference or sometimes from the bench he’d send
out these ”no case” memos. He’d say, ”Isn’t there a case on so and so?” And there was no
computer, there was no finding service. We would start tearing the books off the shelf looking
for the case that he remembered but he couldn’t remember the name of it or couldn’t remember
the year or whatever and, it seemed to me more of the time than not, we would have to send back
a memo saying, “Judge, there is no case.” So we used to call it “no case.” I loved it.
Mr. Pollak: What went on Saturday morning that he was doing, that the Justice was
doing?
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Judge Mikva: That’s when the conferences were.
Mr. Pollak: On Sa?day.
Judge Mik:va: On Saturday mornmgs, the conferences, and Monday mornmgs were
opinion days. And that was rigid. Occasionally, they had extra opinion days, maybe,
occasionally, extra conferences; but traditionally, Saturday morning was conference day. We’d
be there at 9:00 and the Court would work till noon, sometimes later, in identifying cases that
they were going to grant cert. on, and the cases that had been heard would be decided and
assigned. There were only the nine Justices in the conference. I think that’s still the way it is.
Minton, as the junior Justice, which he was then, would be the one who answered the door. Our
standing instructions were that we were never to knock at the door unless somebody in his family
said it was an emergency or unless he had asked for us to give him something. Other than that,
we should never be responsible for the knock at the door. But it was very exciting because the
clerks would all hang around. We didn’t have a lot to do. We were kind of waiting for what was
going to come out of conference, and we’d speculate about what they were going to do on this
case or that case, if they were going to grant cert or affirm or reverse. Then the conference would
break up. Sometimes right after the conference, but usually on the following Monday, he would
go over, not in any detail, the results of conference. In fact, I remember changing this with my
clerks when I became a judge. I would try to have my meeting with my clerks right after
conference, and I would insist they stay until I came back, even if they had to eat lunch at their
desks, because I found it was useful for them and for me to unload everything that went on in
conference while it was still fresh in my mind. All he said was what was going to be the ratio
decidendi of the case. He would usually do it, as I recall, on Mondays. He would tell us what he
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thought we needed to know. He would say the Chief assigned the opinion on so and so and on so
and so. I think we got eve?-ybody but Hugo and Bill, but this is the way I want the opinion to
look. Then he would go into some detail on what he’d want. Usually, we would do the first
draft. Very occasionally, he would do the first draft. I never had any problem about whose
opinion it was because you knew damn sure by the time it was through that it was his. There
were occasions where he was very unhappy with our drafts; this was the height of the McCarthy
era, and both clerks tried to carry out his wishes but sometimes he was just so determined to get
to a particular result. I remember on one opinion – it was a teacher’s oath case – Feiner v.
New York, I wrote the first draft. Clearly he was going to uphold the oath and the teacher
remained fired. I wrote it the way I thought he told me to write it, and he looked at it and came
back in the room and said, “God damn left-wing University of Chicago, I don’t know what they
teach you there. 1
1
And he handed it to my co-clerk who was way to the left of me. I was a
moderate compared to Ray. And so Ray took a stab at it and later the Judge said, 11I don’t know
what the hell is going on at the law schools these days. I don’t know what they teach you. 11 And
he sat down with his secretary and they wrote the opinion. It was pretty rough Frankfurter’s
clerks were mimicking the judge, saying unpleasant things about it and other judges were saying
it just didn’t hold together. And it got worked over some by other judges. He didn’t want us
working on it anymore. It finally came down, I think it was 5 to 4 or 6 to 3. It was not one of the
clearest expositions.
Mr. Pollak: But it was, he wrote for the majority?
Judge Mikva: He wrote for the majority and kept the majority on it and it remains a
major precedent as to why loyalty oaths were upheld at the time. But I still don’t remember what
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he was unhappy about. I obviously didn’t handle the speech argument that caused the dissent.
Outside of a few eruptions_ijke that, he was always very pleasant. He was not a hard task master.
He would usually come in about 9:30, 10:00 o’clock when the Court wasn’t sitting. What is now
the Army/Navy Country Club was then the Fairfax daily fee course, and Newt Minow, Howard
Trienens and I used to get out there at the crack of dawn and rush though 18 holes and be in on
time before our judges came in.
Mr. Pollak: Really, during the week?
Judge Mikva: During the week. We’d get out there at 6:00. Play 2, 2-1/2 hours and be
downtown, showered and all set to go by 9:00 o’clock. It was great, great fun.
Mr. Pollak: What were the major cases of your teITII, and do you have observations you’d
like to record about the other Justices?
Judge Mikva: Probably the major case was Youngstown Sheet and Tube, the Steel
Seizure case. It remains incredibly important. It has incredibly important precedential value. I
am amazed at how often it is still referred to in the important constitutional cases. It probably,
more than any other case, plumbed that very fuzzy spot between Presidential powers and the
limits on congressional powers. I saw myself using it when I was White House Counsel deciding
what the President could or could not do by Executive Order. The majority opinion probably
was one of Justice Jackson’s most brilliant intellectual and writing expositions. He was the best
writer on that Court. He was one of the best writers of all time. He got into that one. He sensed
what the historical dilemma was about: when the President’s role as Commander-in-Chief has to
trump the powers of Congress, and when Congress prevails. He parsed it out beautifully, and he
wrote about it beautifully. Justice Minton’s role, and it was not particularly strong, was to join in
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Chief Justice Vinson’s dissent with Tom Clark, the three of them. I think they were the three
dissenters. They were thr?e: Truman appointees who felt that their personal loyalty should
prevail. I was kind of shocked. It never occurred to me such an important case would have any,
would in any way be perceived to be a test of the Justices’ loyalty to Truman. I could see if there
is a loyalty to the Executive Branch or loyalty to the Congress, but Vinson and Minton and I
think Clark felt that this was important to show that they were loyal to their appointer.
Mr. Pollak: Explain why loyalty to Truman would call for a dissent from the majority?
Judge Mikva: Because Truman had seized the steel mills. The steel strike was very, very
crippling to the economy. It was causing a great deal of difficulty. Truman had used the fact that
the Korean War wasn’t technically at an end as giving him the war power to seize the mills to
carry forward necessary wartime military concerns. Jackson in the majority opinion said, no,
technically we’re still in a state of war. But, the fact of the matter is that the President is seeking
to do something that specifically Congress has said can’t be done except through more
complicated labor laws that called for a cooling off period, Presidential boards, and so on, and
wouldn’t have provided the speedy result that Truman wanted. Vinson wrote an opinion which
we argued a lot about because his clerks were Howard Trienens and Newton Minow; and since
we were also on the dissenting side, we had some input on that. We argued a lot about it. I must
confess that history has not treated that dissenting opinion as kindly as I thought about it at the
time. At the time, I thought a reasonable case could be made for Truman’s point of view.
Selfishly, I wanted the result that Truman caused because I was worried that the strike would
resume, which it did, and harm the country, which fortunately it didn’t. But at the time I thought
that the dissenting opinion was good. In retrospect, I don’t think so. It’s only one of the many
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things that does not appear to me now as it appeared to appear to me then. The case brought out
a lot of the differences in thy Justices and how they reacted. I think five of the Justices had
served in the legislative branch of government. Vinson had served in the House of
Representatives, I think; Minton had been a Senator; Black had been a Senator. Who else was
there?
Mr. Pollak: Frankfurter, Jackson.
Judge Mikva: Jackson had been Attorney General. Frankfurter probably had the least
public office experience of anybody on the Court but he, of course, had been involved with
government since he had gotten out of law school. Harold Burton was a Senator. Burton may
have been the third dissenter. It may not have been Clark. I’m not sure. It may have been the
three senators who were all dissenters, even though it was a test of strength between congressional
power and presidential power and they were with the President. But you had these people
who had this heavy dose of legislative experience.
Mr. Pollak: Another was Reed.
Judge Mikva: Who I think had been Solicitor General and again in the legislature back in
Kentucky. Maybe he’d been in Congress, I’m not sure. But they clearly were people who had
been involved in government in high positions, many of them if not most of them in the
legislative arena. I just think it made all the difference in the world in terms of the way they
reacted to these cases that had heavy political consequences. They were never blindsided by the
importance of that kind of a case. They all knew that Youngstown Sheet and Tube was an
important case. It was going to have consequences not only in the immediate future, but forever.
I was always dismayed when I saw how the Court was almost blindsided in Roe v. Wade, when
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Justice Black:mun sat down and meticulously went through what I considered to be a very good
intellectual analysis of why_ ?e case had to come out the way it did and why it was necessary
under constitutional precedents, but he seemed totally unaware of the political consequences that
would follow that decision. Anybody that had been on the state legislature as I had could have
told him; but on the Court that handed down Roe v. Wade, I think that only Justice Stewart had
had previous political office; and Sandra Day O’Connor was on the Court and she had had two
terms in the Arizona state legislature; but none of the others had ever been involved in the
political arena: not Black:mun, not Brennan, not Burger. They were shocked at the outcry that
came from that decision. I was really shocked that they came down with that decision. I thought
they had been ducking it for so long that they would continue to duck it. i\nd that we were going
to have to wait until the political process did it. I was pleasantly surprised to find that the Court
took it on. When you talk to Justice Black:mun today, he’s almost wondrous about how deep the
feelings were against him
Mr. Pollak: Well, an interesting strand that I hope your oral history will reflect is that you
have this long legislative experience behind your judgeship and very, very rarely today do we
have people on … go ahead, you were speaking about the absence of legislators on the Bench
Judge Mikva: Up to the turn of this century, the quite regular source of federal judges
and state judges was the legislative branch When you go back to look over the history of the
federal and the state judiciary, you find many of them, indeed, maybe most of them in earlier
years, having come from their state legislatures, from the Congress. It was a traditional route to
follow. You were elected to Congress, served a few years, become a judge; get elected to the
legislature, serve a few years and you become a judge. That changed around the turn of the
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century as part of our democratizing and getting rid of the political patronage that supposedly
permeated the judiciary. It went way too far. The dates are not quite as crisp as I’m making it
sound, but this is something that happened at the beginning of the 20th century. The agitation for
it started after the Civil War, that we had to make our judges more democratic and so we started
electing our state judges. I still remember reading an essay when I was in law school about how
in New York they had gone from appointed judges who had been deemed too autocratic to judges
who were more common. The judge now sat on the same level as the lawyers and without a
robe. Compare the kind of justice that was distributed by those elected, common judges
compared to the old common law judges who, whatever their aristocratic prejudices, at least
knew the law and were sound in their legal opinions. The same thing happened, kept going on,
during the 20th century, particularly when there were these efforts being made to get rid of
patronage in the selection of judges to the point where the federal judges, instead of being
predominantly peppered with people who had served in the legislative branch, became very, very
much the opposite. When I went on the bench in 1979, in the previous ten years, only two
people, including me, had gone to the federal bench who had had congressional experience: Bill
Hungate who became District judge in Missouri who served with me and I, were the only two
appointees in that entire ten-year period who had had any legislative experience.
Mr. Pollak: Subsequently, George MacKinnon.
Judge Mikva: George MacKinnon had gone on previously, but in that ten-year period.
Mr. Pollak: He’s another who occurs to me, but I can’t think of many others.
Judge Mikva: There weren’t many, Judge Buckley, but he came after me. But between
’69 and 79, there were two who had served in the Congress who became federal judges. There
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have been more since then, though again, not a lot. It is still not considered a great jumping off
place from which to becon;i? a judge.
Mr. Pollak: That significant democrat from Arkansas or one of the Oklahoma House
member who went on the Bench?
Judge Mikva: Again, that was before me. That was in the ’60s. I’m trying to remember
his name. I know who you mean. It was from, I think it was from Oklahoma, but it was in the
early ’60s. Between ’69 and ’79, there were two people. I think that, unfortunately, the federal
judiciary has paid a price for that. Now again, the arguments that the reformers make are, well,
you know, if Congress becomes the place that Presidents look to pick as judges, between being
members of a fraternity/sorority, they’ll get confirmed too easily, and Presidents will start paying
off political debts by appointing members of Congress who vote the right way on some important
legislation. Some of that is true, though I am a witness to the fact that being a member of the
fraternity doesn’t necessarily guarantee you easy confirmation. I had one heck of a fight getting
confirmed. The final vote was 58 to 31 because the National Rifle Association got on that case.
I don’t think that it’s political patronage when judges are selected from the legislative ranks, and I
think it’s an important piece of experience that a judge ought to have. When I went on the Court
of Appeals here, and this was in 1979, until I left in 1994, I probably read more congressional
records on the bench than I did when I was a member of Congress because most of the cases we
had involved interpretation of federal statutes that the Congress had passed. Knowing the
process by which those statutes get on the books and knowing what goes on in the congressional
chambers, is a big advantage to being able to interpret the laws as a judge. Unfortunately, that is
not what the wise people who promote the selection process think, and we continue to have very
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few federal judges come from the ranks of Congress. I think that’s unfortunate.
Mr. Pollak: You ?e:re speaking about the major cases in your term with Justice Minton
and you mentioned Steel Seizure. Maybe there are others that you want to mention?
Judge Mikva: There’s at least one other, and that was Rochin, the stomach pump case.
Justice Frankfurter had this reputation among the clerks, including his own, of talking the talk
but not walking the walk. He just, that was not the phrase we used but a more contemporary
phrase. He had this great reputation of being this liberal law professor who defended Sacco and
Vanzetti and had done all these other important civil liberties cases, but when he got onto the
Court, he just always found a reason not to come out on the side of civil liberties. In all the
loyalty oath cases and in all of the other similar cases, Frankfurter was just not on the side of the
civil liberty. We were surprised when Rochin came out the way it did because we counted at
most three votes: Jackson, Black and Douglas, I think, were the only three that we thought were
going to overturn that conviction. We were shocked that not only did Frankfurter overturn it but
wrote the opinion. The wags said, well, we were shocked and he was even more shocked. You
recall the measuring stick he used was one that was not very helpful: if it shocked the conscience
of the society to decide when to use force beyond restraints.
Mr. Pollak: It was a Fourth Amendment case?
Judge Mikva: It was a Fourth Amendment case. They had pumped this man’s stomach to
find drugs or whatever it was, contraband, that they were using as evidence. Frankfurter said that
went beyond the conscience of society to allow stomach pumping to get the evidence.
Mr. Pollak: I wonder how the law has evolved since then?
Judge Mikva: Well, again, not all the big cases end up making a big difference. I’ve
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thought about that many times. There are a few cases that really make a difference. As I
indicated before, Youngstown Sheet & Tube was one that continues to be an important pillar in
our separation of powers jurisprudence. Miranda has made an incredible difference, both in the
law and in the practice, the way criminal law is and the way the criminal process is carried out.
Miranda is as big, partly because it was a simple rule to administer. The police are told, “Look,
read them their rights.” It doesn’t say you have to read them at so many beats per meter. It
doesn’t say you have to read them in a loud, clear voice. It doesn’t say you have to read them
when the sun is shining or within 20 minutes, it just says, “read them their rights.” And so the
result is the policeman can carry that little idiot card in his hat and, whenever they arrest
somebody, they pull it out and say, ”you have the right to remain silent, you have the right to a
lawyer, etc.” It has performed the purpose it was intended to perform Cases like Rochin are
much too difficult. We used to tease when I was on the court about the worthy container
exception to when you could search the car and when you couldn’t search the car. You ask the
cop on the beat who’s busy trying to protect the public and his own neck besides to administer
complicated rules that lawyers can disagree about, that judges can disagree about; and it just
doesn’t work. And Rochin is one of those cases in which the standard is just too fuzzy for
anyone really to understand.
Mr. Pollak: Any other case that you think worthy of mention?
Judge Mikva: Those are the two that stand out. There were others. I think I mentioned
Feiner v. New York, but those were the two criminal that I really remember.
Mr. Pollak: Another case taught you a lesson?
Judge Mikva: Another case that taught me a lesson that I have never forgotten is that
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Congress is first among equals. The case is Wunderlich v. United States; and you probably
haven’t heard of it and I wi).! tell you why. The case involved a contract that had been let by the
Army during the Korean War; under the statute (it actually came out of the old Truman
Commission/Committee in World War II) the Anny was free to renegotiate these contracts if
they thought that the profits were excessive. The case came up challenging the constitutionality
of that statute and that provision. Minton was assigned to write the majority opinion. As I
indicated before, he allowed us to do the first draft. This was one where either I was listening
better than I otherwise did or he was more articulate, but the draft I sent in to him came back
word-for-word the way I wrote it; and in 341 U.S., there is an opinion, Wunderlich v.
United States, upholding the right of the Army to renegotiate this contract for excessive profits,
written by me. But that’s not the story. The story is that within three months, Congress passed a
statute overruling the case. That’s when I learned who really is first among equals.
Mr. Pollak: Do you have any other comments you wanted to make about the Justices?
You remarked briefly on Jackson and on Frankfurter, and you’ve spoken some about Minton.
You haven’t really spoken about the others.
Judge Mikva: Well, the two heroes for most of us liberal clerks at the time were Black
and Douglas. And they could not have been more unlike each other. Black was gregarious and
outspoken and very charming; and when he’d hire his clerks, one of them had to play tennis
because Black was a tennis player. He kind of got a commitment out of his clerks that they
would go back to the South and practice law because he felt that it was important that the South
understand what the Supreme Court was doing. By that time he had become very unpopular in
the South – a native Alabamian, liberal on civil rights. Black and Douglas did concur most of the
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time – they saw things pretty much the same way – but they could not have been more unlike
each other. Douglas was tNs very shy professor who literally just could not relate to people the
way Black did. Douglas’ chambers were right next to Minton’s chambers; and every morning on
the way in, I would pass Justice Douglas going to his chambers – we were on the same time sync.
So I would say, “good morning Mr. Justice,” and he would look straight ahead and never even
say hello. I thought about that many years later when I was trying to fight back Gerald Ford’s
efforts to impeach Justice Douglas, and my effort sure wasn’t based on any personal relationship
because there wasn’t one. He was just a very cold cookie. There is a story that happened a year
before I was there, maybe the year I was there, but it’s a story that is often told. There was a practice
of inviting one of the Justices down to the clerks’ dining room to talk to them about matters.
The clerks had their own dining room, so they were free to talk about the cases without
somebody overhearing them The practice is that the clerks go through the regular cafeteria, get
their trays and take them to the clerks’ dining room The Justices normally eat in an upstairs
dining room where they’re served by their messengers. Well, one time, whoever was inviting the
Justices invited both Black and Douglas to come down the same week. Black frequently ate in
the cafeteria with his clerks, and so, when it came time for this lunch where he was supposed to
talk to the clerks, he went through the cafeteria with his clerks and came into the clerks’ dining
room with all these clerks around chattering like magpies. And there was Justice Douglas sitting
there, being served by his messenger who had brought his tray, his lunch, down from the upstairs
dining room Black looked at him and called out, “Well Bill, how’s the man of the people
today?” Justice Reed was probably the least known of the Justices. Everyone respected him but
he was getting on in years. Justice Clark was very pleasant, very nice, but no one could really
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quite figure out where he came from He had not been known as a great legal scholar; he clearly
had some loyalty to Presid?μt Truman, but that was not always visible in the way he voted; and
his reign as Attorney General had not been that outstanding. Justice Jackson was admired by a
lot of people but, again, people didn’t quite know how to figure out where he would land on the
ideological landscape. His writing was always brilliant. I thought Jackson was the best writer on
the bench of all the Justices when I was there. I think that covers it all.
Mr. Pollak: Burton?
Judge Mikva: Burton was a very pleasant, quiet kind of a person. His greatest claim to
fame was that he had sat on the other side of Harry Truman when they were in the Senate.
Minton had sat on one side, and Burton sat on the other side, and Truman took care of his
lawyers. Burton was not well perceived by the clerks. I think that was all: Reed, Burton,
Frankfurter. Frankfurter was as advertised. He was this bouncy law professor, always poking
hard questions at the lawyers and at clerks and whomever else he could get his hands on; but he
very much disappointed those of us who expected him to be a Holmes or Cardozo, with that kind
of zeal for civil liberties.
Mr. Pollak: Did any of the Justices in performing their roles as Justices, as you observed
them, have an influence on you as you sort of scoped out the way you would perform your role as
a judge when you came some 28 years later to go on the bench?
Judge Mikva: Well, I think I learned some things not to do from Justice Frankfurter. For
instance, he was always writing memos to judges about what they should do in their opinions and
then not joining them I remember my boss complained several times and other Justices’ clerks
complained at how Frankfurter would encourage judges to make changes in their opinions and
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then wouldn’t join in the opinion anyway. I realized that, if you’re not going to play the game,
don’t try and make the rules: J took that very seriously when I got on the court. If I wasn’t
prepared to join in an opinion, I would not make comments on what I thought about the opinion
and what changes I thought it needed. If I was going to join in, then I would suggest changes. In
fact, we developed a phrase on my court called, “Talce it or leave it,” which meant I would go
with the opinion anyway, but I would like you to think about such and such a change which you
could leave alone if you want to.
Mr. Pollalc: This was on the Court of Appeals?
Judge Mikva: Yes. I think part of that came about because I saw the resentment that
Frankfurter’s practices used to generate among his colleagues. Of course, I missed a great
opportunity not being a clerk while Chief Justice Warren and Justice Brennan were there, but I
saw how important personal collegiality was through the way Justice Black behaved.
Unfortunately, it was after Nuremberg. Black and Jackson had had this big feud about
Nuremberg, and Jackson came back insisting that Black was conducting a vendetta against him.
So a little bit of the collegiality that there apparently used to be with Black was gone. Even so,
Black would spend time coming into other Justices’ chambers and shmooze with them Tom
Clark did some of that, too; and I found it, I guess I wasn’t really surprised, but it was reassuring
to know that even at an exalted level like the Supreme Court of the United States, it’s inhabited
by human beings and that human contact is the important thing.
Mr. Pollalc: Everyone’s always interested in the hours you kept, the law clerks keep.
You’ve said that you found time to play golf. Were the hours inordinate mostly?
Judge Mikva: Not by law school standards and not by law practice standards. We would
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normally, except on those few days we were playing golf, normally we’d be in by 8:30 or so and,
you never left till the Judg? _left. That was just sort of understood. He came in later, so he
usually wouldn’t leave till around 6:00. Occasionally, he would stay later. Occasionally, he
would go earlier. That’s what you had to do. Because there weren’t computers, I frequently was
able to do work at home and if the Judge left, I would get home in time for dinner and do some
work at home at night. Saturday was considered a work day. Sunday, pretty much, not. I’d say
that I worked harder in law school and harder as a young lawyer than I did at the court. I worked
harder as a law clerk than most law clerks do these days. Part of it is the difference in the work
habits, and Saturday is no longer considered a work day. I guess that’s true in the law practice as
well.
Mr. Pollak: Right, it was a work day when I began practice.
Judge Mil<:va: It was just a regular day. And now it isn’t. I wonder how these lawyers
pull in 2200, 2300 chargeable hours if Saturday isn’t a work day.
Mr. Pollak: I have no explanation for that or for some lawyers who could even charge
more hours than that.
Judge Mikva: I learned something about myself. While I can pull all-nighters when I
have to, and I used to sometimes when I had an opinion that was due that was coming hard. I
learned that my efficiency dropped after midnight horrendously. If there was ever an option, I’d
be much better off quitting and getting up early and starting over again than trying to keep myself
awake with coffee and churn away all night. From midnight on, for every minute of production,
there were 5, 10 minutes of daydreaming and wishing I were elsewhere.
Mr. Pollak: Do you have anything else to say about either collegiality on the Supreme
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Court or acrimony on the Supreme Court, the Court that you observed then as a clerk or on the
Court as it’s come along siJ;i?e? I don’t mean to make the question too global.
Judge Mik:va: The Court was pretty collegial. There was this tiff between Black and
Jackson that had gone on for some time. Notwithstanding Douglas’ shyness and his loner ways,
everybody reached out to befriend him; Minton, for instance, went out of his way to chat with
Douglas and walk ann in arm with him The Chief Justice, Fred Vinson, was very gregarious
and would tell war stories, and he was always running around from chamber to chamber. There
was a lot of collegiality and there was a lot of collegiality among the clerks. Perhaps the only
kind of loner was Bill Rehnquist because he perceived himself to be much more conservative
than all the rest of us, but he would have lunch with us in our dining room He would come in
sometimes a few minutes late, would listen to all of us who had staked out our positions, and
then stake one out as far to the right of the last one that he could. He played poker with us. We
had a floating poker game that Howard Trienens and Hans Linde were in, and I was in, the Chief
was in. They used to love to see the Chief come to the game. He was single at the time. He
used to love to draw to inside straights. They always knew they could do well if Relmquist
would show up at the game. I’d say the collegiality level was high. There were several other
things that impressed me. One is that we clerks took ourselves very seriously and thought we
were absolutely at the center of the universe. But it never occurred to us that our job was to try to
really influence our judges. We were trying to present things that would catch their eye, but
never to the point of saying this is the way you must come down. There was the story of one of
Reed’s clerk’s who felt so passionately about something, he said to Justice Reed, please Justice
Reed. I feel very strongly about this. I hope you’ll vote to grant cert. And Justice Reed
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supposedly said, well, if you feel that strongly, I will. Now, Rehnquist picked up that story in an
expose that he wrote for L<Jp? magazine some years later; but I never heard the story until I read
about it. There certainly was not a lot of that going around. We thought of ourselves there as
minions of very important personages. We weren’t there for our judgment. We were there for all
the help we could provide with whatever expertise that we had from law school. We weren’t
censors for our judges. It has bothered me over the years, especially when at the end of my
tenure on the Court of Appeals, that I would see these law clerks come in with an agenda; and I
find it a most disturbing change. I hope that it is temporary. I hope it disappears. Because I can’t
think of anything worse than having law students, no matter how bright they are, no matter how
enthusiastic, committed and dedicated they are, making the judgments that are supposed to be
made by judges who have been around the horn.
Mr. Pollak: Do you want to explain your reference? Are there young people who take
clerkships in your observation and then seek to bring upon the judge their scale of justice?
Judge Mikva: There is a nasty story that I sadly think is true about a clerk for one of the
Supreme Court Justices who helped him on an opinion which was kind of surprising. Everyone
assumed that the Court was going to cut back on Miranda and carve out a larger good faith
exception to the Miranda right. This Justice wrote the opinion which rejected that approach and
kept Miranda pretty much the way it is. The clerk who worked on that opinion was a part of the
Federalist Society network, which has a large group of clerks up at the Supreme Court now.
Whether they get hired from the Federalist Society or simply all happen to be Federalist Society
members when they get up there is not completely relevant, but supposedly they do maintain a
close social network when they end up as clerks. Supposedly, this clerk, after working on this
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opinion for the Justice, went to a party, and he was “shunned” by the other Federalist clerks at
this party. I mean, literally ?hunned. They turned their backs on him when he walked into the
room Thereafter, one of them explained to him that it was well known that his Justice was kind
of weak on that issue and it was his job to shore him up and to see to it that he didn’t write this
wishy-washy opinion. I found that horrendous, just horrendous. I have talked to other Justices
up there and judges who have refrained from using some of the Federalist Society apparatuses
and certain feeders in the way of law professors because they feel that their clerks are coming
with too much of an agenda and that’s not their role. I don’t think anything is more debilitating of
the relationship and nothing could damage the institution of clerkships more than clerks with
agendas. As far as I’m concerned, one of the reasons the federal judiciary works as well as it
does is because of the unique institution of clerks. This idea of bringing, of each judge having,
three or four new law school graduates every year whose enthusiasm for the law is unabashed but
who have a proper irreverence for the status quo and the status quo ante is what keeps the judicial
process working as well as it does. But I think that if judges start to feel that they have to protect
themselves from clerks with their own agendas, we will start losing the institutions we have.
Mr. Pollak: Your clerkship’s drawing to an end and what now? What did you consider
and how did you make your judgments and where did you go and what did you hope?
Judge Mikva: I heard Arthur Goldberg argue the Steel Seizure case, which I considered
the best argument I heard that year and maybe the best argument ever. John W. Davis was
arguing for the steel companies. John W. Davis was very long in the tooth and his voice was
soft, and he just couldn’t rise to the occasion. I forget who was arguing for the government; it
must have been the Solicitor General but it wasn’t particularly inspiring. Goldberg was great. He
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handled the questions so well. He was so confident of what he was saying. He was 35 or 40
years old, at ease up there .?t the lectern. I said to myself, I’d love to go work for this man. So,
after the case was decided, I asked for an interview and he said yes. The only other thing I was
thinking about was that Adlai Stevenson was then Governor of Illinois and there was some talk
about maybe his running for President. More important, he was just a great governor. It had
been the Democratic Machine that put him up and Paul Douglas for Senate back in 1948 and he’d
been a superb governor, and the idea of going to work for him was very appealing to me. Newt
Minow had already gotten ajob with.him. Howard Trienens and Dan Walker who had been a
clerk about the same time had also gotten jobs with him Howard Trienens was either going to
go to work for him or was given an offer, and I just thought that would be a great place to go to
work. Unfortunately for me, or fortunately for me, the Chicago Tribune at the time was owned
by Col. McCormick; he decided to take out after Governor Stevenson for putting in this elite
palace guard, hiring all these bright young Supreme Court law clerks to really make government
in his image. Also, though I don’t think he had to do that with the law clerks, but Governor
Stevenson had been charged with and was guilty of supplementing some of his employees’ public
salaries. He had brought people in from higher-paying teaching positions and lawyer positions
and in order to allow them to work for the government, he had supplemented their government
pay with a private salary. An argument can be made that that’s a bad practice, but clearly his
motives were good and his intentions were good; but the Tribune got on his case on that. They
didn’t have to supplement our salaries so far as the clerks were concerned. But that was part of
this general drumbeat that Stevenson was surrounding himself with elitists, intellectual elitists. I
interviewed with Carl McGowan, who was then his aide-de-camp, and Carl said, well, you know,
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we have a great deal of respect for Supreme Court law clerks, but we can’t take you on to the
governor’s office. There’s jl}-st too much heat on him What we can do is put you on with
somebody named Joe Pois who is the Director of Finance who is very close to the governor and
you’ll get a chance to work with the governor some but you’ll be on Joy Pois’ payroll. And that
was my other offer when I went to interview Arthur Goldberg. Goldberg and I hit it off right
away. We found that we had similar backgrounds, and I always had been interested in labor law,
which is what he was doing. I thought, well, if he offers me a job to work in Washington at his
Washington firm, I’ll take that over Stevenson’s job because it’s not really Stevenson. But he
didn’t make it that easy. He offered me a job but only in the Chicago firm because they didn’t
need anybody in the Washington firm, and I’d get to do some labor law but not all labor law. He
said, ”I hope you’ll come with us.” I said, ”well, Mr. Goldberg, I am considering this offer to go
to work for the state,” and he asked me to describe it. He said, “Oh, you don’t want to do that,”
with a broad wave of his hand. ”In the first place, if you’re not going to work in the Governor’s
office, you’ll never see Stevenson. You’ll see more of Stevenson if you come to work with me.
At least I’ll take you with me when we go to the steelworkers’ conferences where the Governor
will be. You’ll get to meet him now. You’ll be just some lowly nothing if you go to work over
there in the Finance office.” And he said, “Besides which, they’re not going to be able to
supplement your salary at all. They probably aren’t even going to pay you what you made as a
clerk.” He said, ”We can certainly do better than that.” He said, ”How much are you getting
paid now as a clerk?” In those days, clerks were more than competitive with the private practice.
I said, ”I’m getting $5,200, sir.” All the blood drained from his face. He said, ”That’s more than
one of our partners is making.” But, at that point, he was stuck with his offer. I got $5,200 and
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the partner, Milt Shadur, got a raise. Anyway, I was persuaded, charmed, cajoled by Arthur to
come to work in the Chicago office; and I never had any regrets. Oh, I shouldn’t say I never had
any regrets. The early years of practice, and I guess it’s not too different today than it was then,
there were ups and downs. There were some days that were very exciting. There were other
days that were as boring as all get out. Here I had been involved in all these important cases all
these exciting constitutional issues and the drama between the Executive Branch fighting the
Legislative Branch and the drama of those loyalty oath cases and those criminal cases. My first
chore at the firm was to find out where the Municipal Court of Chicago was located and to file
some silly pleadings to make some rich client richer. It was very troublesome to digest.
Mr. Pollak: Maybe it would be helpful to have you structure these years. You came off
the clerkship in the summer of ’52, and that means that you spent then 27 years before you went
on the bench, 26 years, and why don’t, if you would, why don’t you lay in to this record the
blocks of what you did in that period and then we can go through each block to the extent that it
Judge Mikva: It was 27 years, from ’52 to ’79. Well, the first block was the practice of
law. From fall of ’52 until late ’55, I primarily practiced law. I had a short leave of absence to
work on the jury project at the University of Chicago, which was in Wichita, Kansas. They had a
study team there. But other than that, I was mainly practicing law, considerable labor law, some
constitutional law on which we prided ourselves, one of the few law firms in the country that
practiced constitutional law for a living. We had these censorship cases and other First
Amendment cases. Also, I did a lot of what is now called street law. Local 65 of the
Steelworkers had 15,000 members. Every Thursday night I had to go to the Steelworkers’ Hall
on Commercial Avenue and sit and listen to their legal problems. This was before the days of
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Legal Aid. I would listen to their problems, to their wives and their sons and their daughters and
their school teachers and?- the other neighborhood people that had problems.
Mr. Pollak: Well, I think at least I’d like to offer you the chance to go back and speak
more about those three years.
Judge Mikva: Then in ’55, I started running for the state legislature. The important
election was the primary, which was in the spring of ’56. So, from the fall of ’55 until 1966, that
ten-year period, I was involved with the legislature. It began with running for it; meanwhile I
was still practicing, the practice was a good one, becoming more demanding. The fall of ’65, I
started my first campaign for Congress, which I lost in ’66. And I continued to practice that time
full time but really spending a lot of time getting ready for the next race, which was in ’68. So
that from ’65 until the fall of ’68, I theoretically was practicing law; and in ’68 I was elected to
Congress. I served there for four years, two terms. I was gerrymandered out of my district, was
defeated in my new district.
Mr. Pollak: In ’72?
Judge Mikva: ’72. I spent two years practicing law and teaching with another law firm
Mr. Pollak: D’Ancona?
Judge Mikva: Right. I began gearing up for my next race, which I determined I was
going to do. In fact, at that point, an inquiry was discretely made, would I be interested in a
judgeship? Chuck Percy was looking for a Democrat to nominate to the District Court, but I
turned it off very early because I really wanted to have another time in Congress. So in ‘7 4, I was
reelected to the Congress and I stayed there till ’79, when I was appointed to the Bench. I was on
the Bench until ’91, when I became Chief Judge. In ’94 I was asked to become White House
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Counsel.
Mr. Pollak: Well, l?,t’s then go back to those first three years, ’52 to ’55, practicing with,
what was the name of the Chicago firm?
Judge Mikva: It started out it was Goldberg, Devoe and Brussel. Abraham Brussel
became a Cook County judge later on. Milt Shadur was the other partner when I came there. It
was a five-person firm I was the second associate. Shortly thereafter Milt became a partner — in
’56. I became a partner when Judge Brussel went to the Bench Most of the time that I practiced,
it was Goldberg, Devoe, Shadur and Mikva.
Mr. Pollak: I guess that was the period in which some or all of your children were born?
What would you remark on in connection with that part of your career?
Jude Mikva: Well, they were exciting years. Let me say that the practice of law then, and
I’m afraid that it’s even more so today, every day, isn’t a day at the beach Well, there are good
days and there are bad days. There are days when you say, boy, what a smart move it was for me
to become a lawyer. And there were other days when you say, why did I do so this to myself.
And there are great victories and great defeats and great stimulations and great absences of
stimulation.
Mr. Pollak: Were you briefing complex cases? Were you arguing cases?
Judge Mikva: In a five-person firm, the lowliest person on the totem pole does
everything. I actually argued a Court of Appeals case in the Seventh Circuit within six months of
the time I got there. I was also defending garnishment claims against some of our steelworkers
and standing up in municipal court arguing with the judge who may or may not have passed the
Bar exam against some skin-flint lawyer who’s trying to squeeze the last drop of blood out of
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him, the steelworker. And it was just a potpourri of experiences. Some of them were incredibly
important to me later on when I became a judge, and it gave me a feel about how some of these
cases come down to people.
Mr. Pollak: Why don’t you just explain that in a little more detail. Maybe, then you have
to go to lunch
Judge Mikva: One of them I remember was the terrible block that the law frequently puts
in front of people that makes it impossible for them to vindicate their rights, to vindicate their
position, that makes the parties unequal. We had a law in Illinois at that time called confession
of judgment law. It’s still extant in some parts of the country, though I think there are some
federal cases that have pretty much pulled the teeth on it. Under the confession of judgment law,
coupled with the garnishment law, if somebody bought furniture on time and didn’t pay for it, the
furniture company could go in, confess judgment against the buyer without bis ever knowing
about it, and then on the basis of that confessed judgment, garnishee bis wages. The
garnishment, of course, totally blocked the payment of wages by the employer, so that the first
thing that employee knew about the claim was that when he went to get bis paycheck, the
employer would say, ”I can’t pay you because there is a ‘brick’ on your check, somebody put a
brick on your check.” If they couldn’t find a lawyer, they were dead, because they’d have to go to
the furniture company and make whatever possible settlement they could. Frequently, not only
paying everything they owed in full, but attorney’s fees and late fees and you name it. Just huge
amounts of money — or else they would never get their paycheck.