E. Barrett Prettyman Text of Interview (June 6, 1996)

Mr. Kapp: This interview is being conducted on behalf of the Oral
History Project of the District of Columbia Circuit Court. The interviewee is
E. Barrett Prettyman, Jr. The interviewer is Robert H. Kapp. The interview took
place at the offices of Hogan & Hartson L.L.P. on June 6, 1996.
Mr. Kapp: Barrett, you wanted to talk a bit further about the
hitchhiking trip which we covered during our last interview.
Mr. Prettyman: Well, only to the extent that I did keep a diary of that
trip, a fairly detailed one, and it shows on the last page where 1 summarized
everything that the trip took me 34 days. I must have traveled close to or even over
6,000 miles. I spent a total of $154.05, which is an average of $4.53 a day, and that
would have been for everything. [Laughter] I hitchhiked on 187 cars and 35
trucks, for a total of 222 vehicles.
Mr. Kapp: Think you’d like to take that trip again do you?
Mr. Prettyman: Never again. [Laughter} But I’m glad I did it once.
{Laughter}
Mr. Kapp: Can you tell us where it was that you went to college?
Mr. Prettyman: I went to Yale University, although I had been
preregistered at Williams when I got out of the Service; eve1ything was set for
Williams. I even had my roommate assigned, but I suddenly found that the colleges
and universities were somewhat short of students because the war was still going on,
so I could get into Yale and I did.
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Mr. Kapp: Can you describe the process by which you made your
college selection?
Mr. Prettyman: It was very simple. I had aspired to one of the large
ones — you know, Harvard, Yale, Princeton, whatever — but had assumed that I
could never get in because my grades in high school were so scattered, a lot of A’s
and F’s. [Laughter] But as I say, when I got out of the Service and was set to go to
Williams, it wasn’t that I had anything against Williams, which was a wonderful
college, but I just thought I might be better off in a larger university. When I
suddenly found that X ale would accept students because of the war situation who
might not previously have been able to get in [Laughter], I just switched because I
thought it would be better for me.
Mr. Kapp: When is it that you entered Yale?
Mr. Prettyman: 1945.
Mr. Kapp: And did you benefit from the GI Bill on that?
Mr. Prettyman: Definitely.
Mr. Kapp: I wonder if you would just talk a bit·about your memories
of your college experience.
Mr. Prettyman: I was in a strange frame of mind after the war. And I
am very ashamed of the fact that I really did not take advantage of Yale. Whatever I
didn’t get out of Yale was entirely my own fault and not Yale’s. There were plenty
of things to do, wonderful things, such as the Yale Daily News and so fo1th, which l
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did not do, and my only explanation is that until Law School I never really caught
fire at all. I did not have a deep and abiding interest in learning everything there was
to know about the earth. And I looked on Yale as a kind of a benefit of still being
alive, and I intended to have some good times. Which I did. I loved my senior
thesis, which was on the election of 1916 between Hughes and Wilson, and I got a
very high grade on that. I loved some of the English courses which involved
writing. But I didn’t love a lot of the rest of it. I joined Phi Gamma Delta fraternity.
I lived at Davenport College with my roommates. There were four of us in the suite.
We played a lot ofpool [Laughter], drank a lot of beer, went to a lot of women’s’
colleges, and all around had a great time. But I honestly can’t say that I was one of
Yale’s finest products.
Mr. Kapp: How would you describe the course of studies that you
followed at Yale?
Mr. Prettyman: It was certainly not geared to the Sciences, which I
did not feel very confident in. I can’t remember all my courses, but I took courses in
anything involving Literature. I majored in History but took a lot of both English
and American History courses. I took Psychology. I took Sociology and an
occasional Science course. I may have taken Math but I really have no clear
recollection except in History, where I obviously had to do a lot of work to make
sure I got through with my main studies.
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Mr. Kapp: Did you do much in the way of writing while you were at
Yale?
Mr. Prettyman: Yes and no. I did my thesis, did a lot of research for
that and spent a lot of time writing that. In my English courses we would write what
really amounted to themes. Some stories, but nothing that was published, strictly for
course requirements.
Mr. Kapp: Did you have any particular favorite authors at that time?
Mr. Prettyman: I read a lot and I used to even keep a list of those, but
there was nothing ve1y dramatic there. I tended not to read the Golden Age authors,
Greeks and so forth. I tended to read the more modern stuff, just exactly what you
would expect — Hemingway, Steinbeck, Faulkner and people like that. And in that
regard, I would pick up and read most anything that I could find. But I think all of
the names you would know. They were never authors that I had found on my own
or that passed in the night very quickly. I’m sorry I don’t have that list but it was
quite interesting.
I was also into jazz and Rock and Roll. We had a number of jazz
greats come to our fraternity house, and I would often hitchhike to New York City.
So I saw and heard Billy Holiday, Sidney Bechet, Gene Kmpa and Ziggy Elman
knocking out “Sing, Sing, Sing” with Benny Goodman, Bill Haley, Lester Young,
Helen O’Connell, the Dorseys, Frank Sinatra, and lots of other wonderful musicians
and singers.
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Mr. Kapp: Well I know that you’ve continued to have literary
interests. That you’ve been active in PEN/Faulkner and I think you were President
of PEN/Faulkner. Have your reading interests changed any since your days at
Yale?
Mr. Prettyman: I think they’ve become slightly more sophisticated. I
read some authors, like Cormac McCarthy, who is more difficult perhaps than some
of the ones I was reading early on. And I think I can understand better some of the
earlier ones — Mark Twain, for example — than I could then. But the thing I like
the best is good writ?g, and that’s always been important, more imp01tant to me
than the stmy line. There’s a ve1y popular author today whom I cannot pick up and
read two pages of because the writing is so bad, but he’s ve1y popular because he
has an entertaining story. So for me, what gets me excited, what really galvanizes
me, what makes me want to plunge ahead, is the beauty of the writing, and on that I
can be brought to tears — something that is extremely well thought out and
executed.
Mr. Kapp: Well Cormac McCarthy is certainly someone who meets
that description. Are there other people that you would think of in this connection?
Mr. Prettyman: Well, I always liked Katherine Ann Porter’s material,
and of course got to know her later. And I would put Eudora Welty in the same
category as someone who if you read quickly would appear on the surlace to write
rather simply and construct a story that’s easily understandable, but who under the
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surface I have found in taking courses on her had all kinds of deep allusions and
conflicts and turmoils going on that you don’t catch right away. And that I like too;
I like things that are not as self evident as they appear at first glance, or second or
third glance. But you know, the whole subject of whom I like and dislike is rather
complex in itself because I stumble upon things that occasionally intrigue me. I am
just now reading “Snow Falling on Cedars,” which has a good sto1y and is well
written but is not, I think, in the genius category in terms of writing.
Mr. Kapp: What about extra curricular activities while you were at
Yale? Were there any others than drinking and chasing women? [Laughter}
Mr. Prettyman: Well, I can tell you one experience that will perhaps
highlight the kind of things I was up to and that horrified my parents. My
roommates and I, with the connivance of a few other people in om fraternity, went
to a store and had a record made which we both sang on and talked into. And the
record was a destruction of the Princeton football team, ve1y scatological, and
described how the team was going to be utterly smashed on the following weekend
by Yale, and really had some pretty bad things to say about them. We went in
several cars down to Princeton, arriving about 10 PM at night. We had a map and
were able to find the Princeton radio station on campus. We went in and beat up
the crew that was running the radio station, and tied them up and put om record on.
We had figured that it would take quite a while for the Princetonians to react,
giving us plenty of time to get out of there. [Laughter J But in fact they reacted
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instantaneously and poured out of the dorms and caught us in there, and the only
thing that saved us was that both the campus police and the city police got there
very, very quickly and towed us off to the pokey, where we stayed for a few hours
until everything was straightened out. In the meantime, we had painted blue Y s all
over the streets and statues, so it took us a while to get out. But we got back to
New Haven in the morning, and Red Smith wrote a story about it, which although it
was in the New York Herald Tribune my family got wind of and wondered why, if
I was getting such poor grades in certain subjects, I had time for foolishness like
this. But we took gre?t delight in that, and we thought it was well worth our time
and effort. I.remember that, and I do {Laughter] remember some patties at Brown
and Wellesley and a number of other places, but as I say the real interest I had in
college was in getting through the four years, passing with reasonably good grades,
enjoying my senior thesis, and getting out, because I knew that nothing I was doing
there was really going to prepare me for whatever it was I wanted to do — which at
that time I wasn’t sure about.
Mr. Kapp: Did you come into contact with any ·teachers while you
were at Yale who had any particular influence on you do you think?
Mr. Prettyman: You know I really can’t say that I did. My first real
teacher who meant anything to me was Mr. Ferdinand Ruge, who was at St. Albans
and who I thought he was the meanest man who ever lived, and in many ways I
hated him, but I quickly realized after I got out of school that he had been of
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monumental importance to me, because he forced me to come in on Saturdays and
rewrite sentences, sentences, sentences. He taught me grammar, he taught me the
feel of writing, how to make things simple. He was a big, big influence in my life.
My Father was another important influence and you could say another important
teacher, because he did teach me at every step the importance of writing simply and
carefully and clearly. The next teacher whom I remember very well was not really
technically a teacher either, and that was a man on the Providence Journal where I
went right after college. A fellow named Joe Kelly. I joined the state staff of the
Providence Journal, ?hich means that instead of working in Providence I worked in
Woonsocket and Newport and Pawtucket. Joe Kelly was the manager of the
\Voonsocket office. He was just as tough as nails, and in the morning when I would
get there and be thrilled to see a story with my by-line, he’d come in and walk by
my desk and say, “Dangling participle in the third paragraph, Prettyman” [Laughter]
and bring me right back to reality. Is it all right to discuss that next?
Mr. Kapp: Sure.
Mr. Prettyman: Although I only stayed two years on the Providence
Journal, it was a thrilling experience for me and really, really got me going. In those
days there was no union, and so your hours could be very peculiar? you could
actually work eight hours and then immediately start another eight how- shift, and
I sometimes did that. Not only that, but you took yow- own pictures much of the
time on the state staff. That is, I would go around to cover a story and carry a
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camera with me, and if I could get some good pictures and the story was good, I
might even get a by-line for both, and especially if they were on the front page; you
couldn’t do any better that that, I mean that was a great thrill. You learned to be
imaginative, to think up your own stories. One Labor Day weekend when there was ,
absolutely nothing going on in town, I hired a little two-seater plane, flew over the
city, hung off the side, and took pictures of the empty town just to show it was
empty. [Laughter] And once there was a monastery there where the monks spoke
only to themselves, they didn’t speak to any outsiders, and I think perhaps they were
not supposed to spe? at all. This beautiful place caught on fire and vi1tually burned
to the ground. I was one of the first people there. I had a little recorder with me,
and I was actually able to speak to a few of the monks who were totally distraught
and in tears and so forth, and that tape went onto the radio station. Things like that
were happening all the time, and so it was just a wonderful experience.
The State Attorney General had declared that there was no mafia in
Rhode Island and that the state police had diligently sought to discover where a few
gambling operations were going on but had been unable to do so, and they were
convinced that there was virtually none of that going on in the state. So the
Providence Journal sent me (I grew a beard) {Laughter}, and they sent me into
Newport because they suspected that the center of the illegal enterprise was there.
So I stayed in some really horrible room and just sat around for a while and then
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began to ask questions. And finally I discovered that right in the harbor area there
was a walk-up, a building that didn’t appear to have any identification on it or
anything, and one night a fellow whom I’m gotten to know was going there to
gamble, and so I followed him up the steps. And he rang and they looked out the
peephole just like in.the 1920s, recognized him, assumed I was with him,and let us
both in. There was gambling all over the room. Every kind. And finally a door
opened and a fellow came out and asked who wanted to throw the number for the
day.
I imme?iately said I’d do it, and there were three big cubes, and I
threw them out on the table and that became the number for Rhode Island for the
day. \\Tell, I could hardly wait to get back to a phone somewhere and call in this
story. [Laughter} And this old hard-headed editor back in Providence said, “Well,
Prettyman, that’s pretty effective but we want to make sure we get this straight. I’m
going to send a witness up there and you do it again.” [Laughter} So I had to, and
I really don’t know how we worked it out the second time, but I got us both in, and
this time I knew the fellow was coming out the door so I was standing waiting and
when he asked who wanted to throw the number, I said I did. 1 threw it again, and
in the meantime we had placed bets all over Newp011, horse bets, the numbers,
every kind of bet you could think of in all of these little drug stores and shoe shine
shops and everywhere, we had numbers all over the place, so after I threw the
winning number, we went around cashing in our bets. Well, that st01y was page
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one with huge headlines, and you know the Attorney General was running
backwards all over the state, they were calling for grand juries, they had
investigating teams, and so forth. Rhode Island being what it is, it took them
probably at least six months to a year to recover from that and get back to normal.
[Laughter]
Mr. Kapp: Did you have a by-line on the story?
Mr. Prettyman: Yes, I did indeed. Not eve1ything was as interesting
as that, of course, but when you do those kinds of things, pruticularly when you ‘re
young, it’s just very exciting. And I loved newspaper work. The problem was that I
was thinking seriously of getting married, and I really was not making any money at
all. As I say, it was non-union at that time and eve1ybody wanted the job, so they
could pay very low wages, and I, you know, was eating spaghetti three times a day,
and I just figured I had to do better. So in consultation with my Father, we decided
that if I became a constitutional expert I could go back to the paper and demand
twice as much [Laughter] — not that they would give it to me. So with that little
gambit in mind, I decided to take one year at Virginia Law. I ·entered law school
with the idea that I was going to stay for a year and then go back to the paper.
Mr. Kapp: Can we just go back a little bit here? Although that sounds
like a pretty adroit gambit by your father I must say. How was it that you happened
to select the job in journalism in the first instance?
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Mr. Prettyman: I didn’t know what I wanted to do except to write. I
thought it would be a lot of fun to be a newspaper reporter and to progress up the
ladder in that game. I didn’t know a lot about newspapers, but it seemed to be
challenging, it seemed to have something different going on, and youngsters have
such a fear of being bored that that appealed to me a lot. I selected the Providence
Journal because I wanted to stay in the East. I didn’t think I could get a job at
something like The Times or The Post. I really had no background at all. I had not
even been on the Yale Daily News. And the Journal had a wonderful reputation as a
well-run newspaper, effective management. I didn’t want to go to a little tiny town,
because I was concerned that nothing would happen. So this seemed to be a good
choice. Big city — which I didn’t end up in, of course — but a state staff that was all
over the state, a well-run, a well-written paper. I thought it was pretty exciting, and
not that far away from home. So I could get home if I wanted to or had to.
Mr. Kapp: At that time, were you thinking about journalism as a
career?
Mr. Prettyman: Yes. Which is interesting because my Father took the
same route. He began as a reporter down in a small town in Virginia, Hopewell,
covered that when the whole town burned down, and went to law school afterwards.
I mean I didn’t deliberately follow in his steps, but, as it turns out, I really did; as it
happened, I followed the same route he did.
-4 lMr.
Kapp: When you decided to go to law school for a year as you
have just described, did you consider law schools other than Virginia or were you
focused on Virginia from the start?
Mr. Prettyman: No. I thought about it, but I didn’t apply to other law
schools, I don’t think. But I thought about other law schools. The reason I went to
Virginia was that it had a good reputation, it was a good school, to begin with. I
thought I had a better chance of making my mark as a big fish in a little pond than as
a little fish in a big pond. I thought that even if I could get into Harvard — I don’t
know if I could have, or Yale, or whatever — I could sink to the middle at least
[Laughter] and never be heard from again. Whereas if I went to a good school but
one that was not as prominent and had smaller classes, I had a better chan?e of
making my mark. And whether I was going there for a year or three years, the one
thing I definitely wanted to do was to make my mark in law school. I really wanted
to be the best I could be. And that was the first time, as I mentioned before, that I
ever really caught fire. I suppose you could say I caught fire on the Jomnal for that
kind of limited work, and I am proud of the work I did there, but in te1ms of my
ultimate career — at the point where I would work at night, I’d work on weekends,
and every other time — law school was where I really got motivated.
Mr. Kapp: Well, you said that you started out with a view to just
spending a year in law school and then retmning to joumalism. Can you tell me
how your thinking evolved during that first year?
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Mr. Prettyman: It only took about a week. By the end of the first
week or two I knew I was stuck. [Laughter] I wasn’t going any place else. I got
into the law very quickly. I found that I had gotten through osmosis from my Father
and his friends so much that some of my classmates did not have, the language, the
nature of the endeavor, the problem solving, I sort of took to naturally, even though I
was having trouble with some of the more technical aspects of the law — I wasn’t
real hot on real property and some of those subjects. That was a technical difficulty.
The tougher concepts I was having trouble with, but the basic run-of-the-mill law
problems, the way a lawyer thinks, I found were easier for me. I had picked up so
much before I had even given law school a thought from just growing up with my
Father that I fell right into that, and I began enjoying it immediately.
Mr. Kapp: If you looked back on your law school years, are there
particular courses and interests within law school that made a particular impression
upon you?
Mr. Prettyman: Well, I loved constitutional law. I loved any of the
courses that required writing themes or papers rather than answering yes or no
questions. I got as quickly as I could onto the Law Review and became the Decisions
Editor there, and I loved that because it was strict and it was hard and it taught you
to be absolutely correct in every respect, and that is something I have kept with me
and tried to teach youngsters today — the importance of accuracy and how
judges, once they find that you misquote or mis-cite, lose confidence in your
argument. Many judges go further than that and lose confidence in you, but
certainly I got to understand on Law Review that before the judge even gets to your
thought or your underlying argument, you have got to be absolutely accurate and
correct in every respect, you’ve got to check quotes three, four times over. And I
picked that up partly in my newspaper work, where Joe Kelly particularly would
never let me get away with anything, but also in my Law Review work where that
was taught to you.
Mr. Kapp: You haven’t talked about your interest in tax courses.
Mr. Prettyman: {Laughter] That’s a ve1y good example of the types
of cow·ses I tried to stay away from. [Laughter] I think I had to take half a te1m of
federal taxes, but I can guarantee you I got very little out of it. [Laughter]
Mr. Kapp: Can you talk about some of your professors at law school?
Were there any who, in your mind, had a major influence on you or who you think
of as mentors?
Mr. Prettyman: I had a very high view of my professors on the
whole — not every one — but I particularly liked Hardy Dillard, who went on to an
international court later and whom I played in the Libel Show for two years running.
I thought he had a unique style of teaching where he was a combination of funny
and serious and droll and witty. You listened and you learned. He taught
contracts. I loved torts and I’m trying to remember, I’ve forgotten his name for the
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moment, the fellow who taught that. But it was not so much the individual
professors for me as it was the courses. As you say, I just simply knew I was never
going to be a tax man, I just don’t think that way. I admire tremendously people like
yourself who do like it. But different subjects are for different people, as you well
know, and I knew that I was not going to be a tax man. So I could have a poor
teacher in an exciting course and I would really enjoy it. I could have a very fine
teacher in a tax course, let’s say, and I would not get a lot out of it. So I’m afraid I
didn’t concentrate too much on the teachers. Certainly the Law Review work was
wonderful, exciting, 3!1d ve1y, very hard. I was also into moot cowt, and I moved
up to the finals in moot court, largely because of my partner. We won the moot
court competition in law school, and that was fun.
Another subject that was going to be ve1y imp011ant in my life, but I
didn’t realize it at the time, was that I got to know Bobby Kennedy, who was in law
school two classes ahead of me. Bobby was the head of the Legal Forum. He was
in charge of bringing the speakers down to the University, and if you knew Bobby
you won’t be surprised by the fact that he was interested in selecting not only the
person who would follow him as President of the Forum the next year but the
person who would follow the year after that. [Laughter} He landed on me for some
reason as the person who should be the head of the forum two years hence, so he
included me in everything, in every aspect of it. I mean I would not only go to the
lectures and help arrange them, but then I’d go out to his house afterwards to meet
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with the speakers. And we had an enormous range of speakers — from Ralph
Bunche, who became quite famous because he refused to speak to a segregated
audience, to Joe McCarthy, to Bill Douglas, and all kinds of people like that. And
I myself was responsible for bringing down Justice Jackson and Justice
Frankfurter. It was quite interesting when Justice Jackson came down. He was
exhausted, it was toward the end of the Term as I remember it, and he assumed he
was going to have to go into a series of meetings before his talk. I said, “Now
you’re not doing anything for about two hours, I’m putting you to bed,” and he
was so grateful and h? took like a two-hour nap and felt wonde1ful. Gave a ve1y
fine talk. Justice Frankfurter taught me something else ve1y important. He came
down on a very, ve1y hot day. His wife was not bedridden at that time. We held a
reception out on the lawn and I’ll never forget him walking up over the lawn, very
short man with his tall wife well above his height, and he was proud as a peacock
that he had her on his arm, it was really quite touching. And he came and enjoyed
the reception, and then we went into an old hall that is no longer used, but it was a
round room with murals on the wall and very little air, and it was crowded to the
rafters with people. I’m sure it violated the fire marshall’s restrictions, there were
so many people there, sitting, standing against the wall, eve1ything. And Justice
Frankfurter gave a talk entitled “Chief Justices I Have Known”. He had one little
inch-by-inch clipping in his hand from a newspaper, and other than that he had no
notes. And he began talking and he went all the way back to Melville Fuller and
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talked about each Chief Justice he had known, except the current one, who I guess
would have been Vinson (whom he hated, incidentally). He spoke without a note,
he spoke for over an hour, and I heard people when they were leaving saying,
“That is the worst single talk I have ever heard in my entire life.” [Laughter] But
what had happened was that it was so hot that people were uncomfortable from the
very first word, they were not listening to him, they were not paying any attention
to him. Fortunately, we recorded his talk and when we had it typed and read it, it
was absolutely outstanding. It was subsequently published in the Virginia Law
Review and then republished in a book, and it has since been republished all over
the place. Most people assume he must have read it, because eve1y sentence was
correct, it came in paragraphs. He just talked, talked about how he’d remembered
these various people. It’s a wonderful, wonderful speech. But what I learned from
it was that the circumstances have to be right. You can have a wonderful speech
in a terrible atmosphere, and people won’t listen or won’t like it. And you can
have a fairly bad speech in a wonderful atmosphere, and people might well like it.
Anyway, the experiences with Bobby, as I say, came to mean·a lot to me.
Mr. Kapp: Can I just step back here? I’m interested in how it is that
at that stage in your life that you had access to Justices Frankfurter and Jackson.
Mr. Prettyman: Well I never knew but I assumed that it was because
of my Father. I mean, he didn’t ask them, I asked them. But they knew the name,
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and they had known and I think had respected my Father, and I think they did it
probably as a courtesy.
Mr. Kapp: You just wrote them?
Mr. Prettyman: Yes.
Mr. Kapp: That’s very interesting.
Mr. Prettyman: Because I don’t think either one wanted to come
down but, no, I’ve always assumed that many of the things that have happened to
me have not necessarily been because of my Father but ce11ainly have had
something to do with _him. When we had Bill Douglas down, it was pretty much
as you would expect. I mean, Justice Douglas gave the talk that was typically him
and included everything from the environment to the Court and eve1ything else. It
was not too unusual.
As for Joe McCaithy, we were right in the middle of the McCaithy
period, and that was extremely well attended. Eve1ybody was curious and he held up
a paper, I forgot how many Communists were allegedly on it at the time, but you
know it was kind of his rabble-rousing speech. And then we went back to Bobby’s
house and I have never experienced anything like this before. In effect, I saw the
upcoming destruction of a man before it ever occurred. What happened was that he
sat on a three-person couch, and there was a woman sitting right next to him,
probably the wife of a student, and then I think a man at the other end of the couch.
He was drinking and all of us from the F arum were ai·ound the floor in a crowded
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room, a small room. And he started off, he was just full of himself and was kind of
witty, and he began drinking and as he began drinking, the students very diffidently
at first began asking him questions, and some of these began to get pretty pointed and
they would not let him get away with his standard answers. They probed more and
more, and he drank more and more, and then he began patting the knee of the young
lady sitting beside him and she was getting very uncomf01table. I’m not sure he even
knew he was doing it, and then he began to drink more heavily and then he sort of
started to go to pieces, and the questions got more pointed and he couldn’t answer
them. And it then began to get so embarrassing that people would drift out, and at
the end he was sitting there with just a few people, almost in tears, chunk, out of
control. Within the course of an hour and a half I had seen this man who had started
totally on top of everything and full of himself destroyed. It was kind of a composite
of what would happen to the rest of his life. Very, very unusual.
Mr. Kapp: Can you expand any further on your law school
experience?
Mr. Prettyman: Well, I don’t know that I can except to say that I
really had my heait in it then. I worked very hard on my own Law Review Note,
which was a labor relations Note. It won the prize that yeai· as the best Note. It’s
funny: I did it in labor relations because I thought I might want to be a labor
lawyer, and I have practiced now for over forty years and to my recollection have
never had a labor case. {Laughter] But I enjoyed that at the time, worked ve1y,
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very hard on it. I worked very hard on the Law Review, I worked on moot court, I
worked hard on my classes, although my grades again were kind of all over the
place. I did a lot better in certain courses, like Constitutional Law, than in others. I
was married now — I had married Evelyn Savage in 1950, while still at the Journal –
– and we were living· in Charlottesville in a second floor set of rooms in a lady’s
house. Evelyn had gotten hepatitis almost immediately after we were married. In
fact, she may have had it when we got married. And she would mn out of energy
almost immediately, early in the day. So I ended up getting virtually all of om
meals. I became a CO(!k early on. So there were a lot of things that we did together,
but there were a lot of things that she would have done if she had had the strength,
but couldn’t. I guess what I’m tiying to say is that I didn’t lead a frivolous life back
in law school; you know, I was doing eve1ything all the time. It really was not
easy, but it was alleviated to some extent by the fact that I liked almost everything I
was doing. I am trying to think if there are any other things that I devoted myself
to. I was a student representative to some national student organization (I can’t
remember what it was), so I’d go off and give a speech occasionally. There were
intennittent things like that. But mostly it was conceno·ation on the s01t of things I
was trying to achieve.
Mr. Kapp: You were staiting to talk about Bobby Kennedy and your
relationship at law school and some of the influences that he’s had on you. Would
you like to expand on that a bit?
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My relation with Bobby, we got along fine. I didn’t pay that much
attention to him. He was obviously not as well known at that time. I liked him, but
it never occurred to me that we would be friends later. I think it was one of those
things where we respected each other more than being close, personal, sociable
friends. We were usually together in connection with the Legal Forum or
something else having to do with law school activities rather than just socializing.
Mr. Kapp: Were there any friends that you made at law school who,
in your mind, have had an influence on you or with whom you maintained a
relationship in your later years?
Mr. Prettyman: Yes. I don’t know that they had that much influence,
but I certainly admired them and have stayed friends. One I can think of is Bob
Doumar, who is now a Federal District Judge down in Virginia, and we were close
then and are close now, although we obviously don’t get to see each other that
much. Another is George Blow, a name partner in a local firm here. Another was
George Revercomb, who became a judge here in DC and whom I did see socially
until he died a few years ago. Then there were the rest of the people from my law
school class, almost all of whom I really knew, whom I’ve seen either at reunions
or they’re occasionally through town or I’m occasionally through their towns. I
find that in my high school class and my law school class, we were all quite close,
in varying degrees, of cow·se, but I knew them, whereas I knew very few people at
Yale. My roommates, of course, I knew well and stay in touch with them today.
-5 lAnd
some of my friends from the fraternity. But really I was not a joiner in
college, and I did not know that many people. If I went back to a reunion today at
Yale, which I have not done for many years, I would not know more than 15-20
people. Entirely different from high school and law school.
Mr. Kapp: Was Judge Stanley Harris at the law school when you
were there?
Mr. Prettyman: Yes, yes, of course, of course. I feel very badly that I
left him out because he turned out to be the most important of the bunch.
[LaughterJ Yes, St? was there and we were friends and when we graduated he
came directly to Hogan & Hartson, while I was clerking, and he was ultimately
responsible for me coming to this firm. So he turned out to be ve1y important in my
life.
Mr. Kapp: When you were in law school, did you have aspirations to
a career in appellate advocacy or had that not been formulated yet?
Mr. Prettyman: No, that didn’t come until much later. I had
aspirations to go with a good firm, not necessarily a large fnm;-but a good fnm, to
be the best lawyer in the firm, to rise to the top, and one day to leave the firm.
That’s essentially what I wanted to do. I never gave 20 minutes wo1th of thought to
going directly into business or going into business at any time. I never gave serious
thought to teaching. I did back in the early days give thought to judging, but I
knew from my Father and from Justice Frankfurter and others that you don’t set
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your heart on being a judge; it will tear you up. That just might come if you did
the work well.
Mr. Kapp: Did you in those years, in your law school years, have any
sense of particular public responsibility as a lawyer?
Mr. Prettyman: Yes, among the many, many, many things my Father
taught me was just that. That is, you gave back. I was almost like a member of the
Kennedy family in that respect, and I was taught that you have many
responsibilities. You have to give back, whether it is doing what we now think of as
pro bono work, co?unity services work, or whether it is being in the government
or whatever, you definitely cannot just go off and make money. It’s interesting that
my Father even when he had his own law firm had never had an interest in money.
It just never meant anything to him one way or the other. He thought that he had
enough to be able to go to the beach, and he’d have an occasional trip, and he really
did not aspire to very much more. And unfortunately I got that from him.
[Laughter] I’ve never thought much about it either. Very easily satisfied may be
the way to put it. But no, I was not thinking about public advocacy, and when I first
came to the firm I was into antitrust, so I mean I had no paiticular ai·ea that I was
fascinated by. But I was quite malleable about the law in those days, in the sense
that I think if I’d gotten that union case I thought I was going to get, I’d have been
happy there. Or doing like Stan Harris did and get into communications law. I
thought I could be happy in most everything, except, with all due respect, tax law
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and a few others [Laughter). Or strictly corporate work. It wasn’t so much that I
didn’t like it; I just was not sure I was good at it.
Mr. Kapp: A generous sentiment.
Mr. Prettyman: I like to think that if I’d really put my head to it and
found that that was what I was going to do, I could have done it. But I was never
forced to do that.
Mr. Kapp: If you could put your head back to where it was during
your law school years, would you say that by that time you had developed any
particular kind of poli_tical or social philosophy or point of view?
Mr. Prettyman: My family was Democratic, they were Democrats
going all the way back, at least to the Wilson Administration. As I mentioned, my
Grandfather was Chaplain of the Senate. And I grew up being taught that Franklin
Roosevelt was a great man, although not without his faults. That Hany Truman
was a great President. He did appoint my Father to the bench, after all. And I think
I was more liberal than my Father. My Father in today’s terms would probably be
an O’Connor or a Kennedy– moderate but perhaps slightly to the right. He was
thought of as at the middle of his court and in today’s te1ms perhaps a bit more
conservative than I was then and am now. I have tended to be, while not in any
sense extreme left wing, I always think of myself as a liberal on most social issues
and I was that way even during college, because one of my roommates was Sewell
Avery’s grandson, and just about the most conservative person you have ever
-54-
seen in your life. And I can remember after the Truman election of 1948, having to
wake him and tell him that Truman had won, and I thought I had a heart attack on
my hands. So I mean even then I was rooting for Truman, and it came to me very
naturally. I’ve had some of my conservative friends tell me it all happened to them
in a flash, that they were affected by a parade here or a sentence there, or whatever,
but it was never that way with me. I just over time felt that some people were more
fortunate than others and that the fortunate ones owed something in varying degrees
to the unfortunate ones. And further, that there are explanations for a lot of really
terrible conduct, whi?h does not mean that I forgive eve1ything, it doesn’t mean that
there aren’t bad people. It doesn’t mean that there aren’t people who should be
locked away for the sake of themselves and others. But in representing criminal
defendants over the years, I have found that when you first meet them you are
horrified at the alleged crimes, and part of you immediately wants to leap to
judgment. But that when you get to know them, you are not sw-prised that they
committed crimes; you’re surprised they didn’t commit them sooner than they did
and more crimes than they did. Because you look at their circumstances and how
they grew up, and I put myself in those circumstances, and if someone wanted to
prove to me that I could grow up like some of these people and not tum out to be a
criminal, I’d never believe it. So that’s s01t of the way I’ve looked at things for an
awfully long time. Of cow-se, I don’t know quite where I got the original idea but it
came to me very naturally and over time.
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Mr. Kapp: Well, you said that if your Father had been sitting on
today’s Supreme Court that you would have expected to him to have a judicial
philosophy that was similar to that of Justice O’Connor’s and Justice Kennedy’s. If
you yourself were sitting on the Court today, where do you think you would find
yourself standing?
Mr. Prettyman: Well, he’s not on the Court today, but the one who
would come closest would be Bill Brennan, without question. There are very few
cases where I would not have voted the same way as Brennan did. I can’t tell you
on today’s Court, it’s .a little bit more difficult. I don’t know enough yet about
Ginsburg and Breyer. Stephens usually votes the way 1 would, but he doesn’t
exactly think the way I do. And he certainly dissents in a lot of cases that I would
not bother dissenting in. It also depends on the issue. If it’s First Amendment, I
might be a Kennedy, who is very strong in that regard. But if it’s a criminal case, I
would not be a Kennedy or an O’Connor. I would have been a Brennan, and on
today’s Court I might vote more closely with Souter. It just depends on the nature
of the case. I don’t say this about Brennan because he happened to vote for my side
in 13 out of the 18 times I argued before him. I simply tend to see things the same
way he did, including in regard to the death penalty.
Mr. Kapp: I think it might be a good time to talk about your Father
here if we can. Could you describe what you view to be the high points of his
career?
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Mr. Prettyman: Yes. One would be the day in 1945 when he was
appointed to the Court of Appeals, no question about it. He had been working
himself to death with his own law firm, Hewes, Prettyman and Awalt, keeping
terrible hours, worrying about absolutely everything — are we spending too much on
coffee? — the whole.business that comes with a small film. He was aging in front of
our eyes, and all of a sudden “Tommy the Cork” Corcoran convinced Truman, who
was new in office, that he had to appoint someone to the D.C. Circuit who would be
well respected and admired, and so one of Truman’s first federal appointments — if
not his first — was m? Father. He did not know Truman, but Tnnnan followed
Corcoran’s advice and appointed him. And it was so funny because my Father came
home, and we were going to have a family consultation — my sister and myself and
my Mother. And he seriously put it to us as to whether he should accept because of
that big cut in salary. And we just all laughed [Laughter} because, first of all, our
advice was going to mean absolutely nothing. We knew that he wanted this. And
secondly, we thought and it turned out to be true that it would save his life. That
even though he worked hard, he would get up at the same time every day, he would
go in at the same time every morning. He would have a controlled life where the
messenger would take care of certain things, the secretruy would take cru·e of
certain things, the law clerks would too, and he would come home at about the same
time each night. And, indeed, he suddenly became a younger man. Moreover, it
was what he was born to do. I mean, if ever a job was made for a person, that one
-57-
.
was made for my Father. It’s so interesting that Judge Tamm who was a District
Court judge here for many years and perhaps the best we’ve ever had — he was a
wonderful District Court judge — was finally persuaded to join the Court of Appeals.
And after he’d been on there about a year he came to my Father and said, “This is
the most damn fool thing I ever did in my life,” [Laughter} because he was born to
be a District Court judge. My Father, on the other hand, had no interest in that, and
he told me he would be terrible at it. But he loved the Court of Appeals, he loved
the arguments, he loved the writing, he loved the administrative side of it. When he
became Chief Judge, ?e did all kinds of innovative things down at the court. And so
he was a very, very happy man and perhaps I should tell you here
Mr. Kapp: Go ahead —
Mr. Prettyman: Towards the end of his career, the very end, while he
was still on the bench, he became concerned that he would be incapacitated without
knowing it, that he would go over the edge toward confusion or whatever, and that
would ruin his career, which he was very proud of. And so he came to me and said,
“You’ve got to do me a favor, and I don’t want to know how you do it. I want you
to assure me that you will find out at that point in time when I should no longer be
on this bench, and when you tell me that it’s time for me to leave, I will leave.” So
I went to two members of his court, unbeknownst to him, and I told them what he
had told me, and I told them I was going to count on them to let me know. And one
day I got a call from one of those judges, and he said, “I was sitting with your
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Father on a case today, and while nobody else noticed this, for a moment I thought
he became confused between two of the cases that we were hearing.” 1 went to my
Father that night and said, “It’s time to leave.” He resigned the next day. Never
asked me a question about it.
Mr. Kapp: He was what age at that point?
Mr. Prettyman: Late 70’s.
Mr. Kapp: You feel comfortable about telling us who the two judges
were that you reposed confidence in?
Mr. Pre!t)’Illan: I think not, because they told me in confidence, and I
told them I would keep the confidence, so I see no reason why I should break that
today, even though both are gone.
Mr. Kapp: I wonder if maybe we could go backward here for a
moment and see what you remember about your Father’s career. He had a period
of time in private practice. Do you have memories of that?
Mr. Prettyman: Well, he started out in a little town in Virginia,
Hopewell, and as I have mentioned, he was a newspaper reporter. He went to
Georgetown Law, and then he went back to Hopewell and I think continued to do
some newspaper work along with his so-called law practice in order to be able to
eat, because his law practice was over a store and he had one other guy with him,
and they had virtually no clients except people who wandered in off the street. So
it was pretty slim pickings. Then he knew Franklin Roosevelt, I guess just through
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party activities. And he became eventually, I guess you’d call him the head of the
Law Section of the Internal Revenue Service?
Mr. Kapp: The General Counsel of the Bureau of Internal Revenue I
think.
Mr. Prettyman: I’m not exactly sure that was it. But in any event.
Then he got fired from that job in a big dispute over the gold standard with thenSecretary
of the Treasury Morgenthau, and Morgenthau won that battle, my Father
got fired, and as a kind of palliative, Roosevelt made him Corporation Counsel of
the District. And when he was through with that, he started his own fmn, Hewes,
Prettyman & Awalt, with Tom.my Hewes, who was actually a Connecticut lawyer
who sort of commuted, and Floyd Awalt, who I think had been with my Father at
the Internal Revenue Service. It was largely a tax practice, not entirely a tax
practice, but largely a tax practice, and that’s what he was doing, plus teaching tax
law at Georgetown, when he was appointed to the court in 1945.
Mr. Kapp: Was the position at the old Bureau of Internal Revenue a
political appointment?
Mr. Prettyman: It was by those standards.
Mr. Kapp: And who appointed him to that?
Mr. Prettyman: I think it was Roosevelt.
Mr. Kapp: Yeah. And when he finished up as Corporation Counsel,
he returned to private practice again did he?
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Mr. Prettyman: No, he started that firm. He had not been at that firm
before. He’d been practicing down in Virginia before, and then they started Hewes,
Prettyman & Awalt, which was on Connecticut A venue right across the street from
where Hogan & Hartson was located before we came to this address. He used to
have this very funny firm, I mean it was very informal and almost English in style.
It was three stories of a very thin, small building, and every afternoon at 3 o’clock
they would stop for tea, and it didn’t make any difference what you were doing,
whether you were in conference with a client or anything else, everything came to a
halt. Everybody cam? to one floor, and they had tea and then they’d go back to
their client meetings again. [Laughter]
Mr. Kapp: Your Father also served, did he not, as President of the
Bar here in the District?
Mr. Prettyman: Yes, the voluntary Bar Association. He was also
President of the Washington Board of Trade, President of the Georgetown
University Law Alumni Club of Washington, and President of the Civitan Club.
One thing that I forgot to mention that he did because it came before his appointment
and during his stint with his law firm, he was the hearing officer for conscientious
objectors for D.C. He worked out of the Office of the Attorney General and was a
kind of judge for those who were claiming conscientious objector status, and he
would rule on whether they had to serve or not. Later, dming his judgeship, he
established the Administrative Conference, which has only recently come to an
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end. He’s thought of as the father of that, and he also had special assignments from
at least three Presidents. He was the Chairman of the President’s Conference on
Administrative Procedure, Chairman of the Board of Inquiry into the Francis Gary
Powers’ U-2 case, Chairman of a Committee on Veterans’ Hospitals, and also
Chairman of the President’s Commission on Narcotics and Drug Abuse, so he was
engaged in a number of special assignments for various Presidents.
Mr. Kapp: Not bad for a tax lawyer I would think. [Laughter]
Mr. Prettyman: Amazing. [Laughter]
Mr. Kapp: Can you tell me what you remember about his interests, his
friends, things of that sort?
Mr. Prettyman: He loved involvement in neighborhood plays, and he
became the director of a group out in Montgomery County that put on plays. And I
understand he was very strict, while at the same time being ve1y funny. l saw a few
of those plays but I never saw him doing the directing beforehand. A tough
taskmaster. He loved that. He had a lot of friends, and many of them were not
lawyers. He liked singing groups, what do you call them —
Mr. Kapp: Barber shops?
Mr. Prettyman: That’s the group. He also loved to work with his
hands. He had a lot of tools, and he made things. One of the great memories of my
childhood was Christmas. He would close off the basement for at least a week
ahead of Christmas, and he’d be down there in secret, and we’d have no idea what
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he was doing. And Christmas morning the first one awake woke the rest of us, it
could be 5 o’clock. We went downstairs by height, the smallest person first, working
up to the tallest, and of course that could change over the years. We then had one
look at the basement, which I can’t even describe. Every year it was different, but it
was emblazoned in all kinds of crazy things. One year we had everything upside
down, including the Christmas tree, and it would just be startling and so exciting you
could hardly stand it. You were allowed to open one present, and then we’d go
upstairs for a very brief breakfast. Then we’d go to church and come back and have
a full breakfast, and f?ally [Laughter] we could go down and attack everything in
the basement. But I can’t tell you how exciting it was, and I catTied this on with my
own children later. Precisely the same thing. Because it was the most exciting thing
in my youth to build up to Christmas over 7 to 10 days and then to know it was going
to be so impressive, it was just going to hit you right in the head with that first
glance. That’s the kind of thing he did.
He loved to fish, and he once took me on a trip to Canada, where we
had Indian guides and went all around trout and salmon fishing. We would also fish
from the surf in Ocean City. My family went every summer to Ocean City. They
would go and stay at different places. One time they’d be at a hotel, another time
they’d rent a house, another time they’d rent a small apartment. They finally ended
up at a motel staying in the same room every summer. And to show you some
of the things he did when he worked with his hands — I’ve seen this since but I
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had never seen it before — he built a huge chess table that was almost as big as this
table we’re sitting at. Huge. And then the pieces would be several feet high, and you
would move them with a long stick with a curve at the end of it, so that everybody
could see, and you’d move these pieces back and forth. It was very impressive. He .
just thought that up. But as you can see, I was then and am still a great admirer of
my Father, thought he was an extraordinary man. And my Mother too, who was this
wonderful, loving, funny, funny woman. I never had a bad feeling about my family.
Mr. Kapp: Were there particular areas of conversation that you tended
to have with your Fa$er as you were growing up and then as you became an adult?
Can you describe those?
Mr. Prettyman: Yes, a lot of politics. Dinners would be almost
entirely politics. Not participatory. He wouldn’t be involved directly, but from the
edge. Or cases, not that he was presently working on but after they’d come down,
he’d love to talk about cases that he had either worked on as a lawyer or decided as a
judge. He once swore me in as his special clerk. I’m sure it was probably illegal,
[LaughterJ but he swore me in as his special clerk on one case. And I think it was a
communist case, I’m not sure. But I worked with him like a law clerk on that one
case. Otherwise, we never discussed pending matters at all. I may have mentioned
to you but at one point when I was clerking on the Supreme Court, my sister was
working for the CIA, and my father was on the Court of Appeals. There’d be these
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long silences at the table, [Laughter] and my mother would say,”Well, if you can’t
talk of anything else, pass me the salt”. [Laughter} But, he was very conscientious in
that respect, and he had such a sense of responsibility that I think I learned that too,
that your personal integrity, your sense of responsibility are all important, and if you
made an ethical mistake or misjudgment, even if only you knew it, that was very bad,
because your integrity, inwardly and outwardly, was extremely important.
Mr. Kapp: If you had to describe his contributions to the Circuit, both
as an associate judge and as the chief judge, what would you say about that?
Mr. Prettyman: First of all, I think the kind of judge he was and the
way his brethren respected him were important. That is, they knew he did not come
to cases with an agenda. The case would come in, and he’d look at it, and he’d judge
it fairly, depending on how he saw it. Whether he was right or wrong, it did not
come out one way because the union name was on the outside cover, or General
Motors was on the cover — all that had absolutely no impact on him whatever.
Justice Burton used to be like that, Harold Burton, on the Supreme Cowt. We once
had a vote among the law clerks, and the hypothetical was this: only one Justice on
the Court makes up all nine. Which Justice would you choose if your life was at
stake? You can assume you were guilty or not guilty; you can assume anything you
want. Which Justice would you choose? And the vast maj01ity of us chose Burton,
because we thought he would be the fairest, regardless of any biases; he would look
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at it evenhandedly, wanting to do justice and be fair. I think of my Father pretty
much the same way. So I think that accounted for a lot, and he wrote well. As Chief
Judge, he immersed himself in everything. He had diagrams and statistics, and he’d
go before Congress and argue for the court. I think he was the one who was
responsible for getting a juvenile court started, even though it wasn’t under his direct
aegis, because he believed they needed it, and he engaged in other things outside his
immediate domain because he believed they needed doing. I think he really began
the theory that a chief judge should not just be another judge but someone wonying
about the court and it? personnel and its finances and where it was going — does it
need facilities and all the rest of it? He took great interest, for example, in what was
going to go in front of the courthouse, you know, the obelisks, for example. He
worried about all of that.
Mr. Kapp: Are there any particular cases that come to mind on which
he sat that made a particular impression?
Mr. Prettyman: Well I honestly would have to go back and look,
because there were so many of them. I’m terrible at remembering case names. There
were any number that I thought were interesting and impressive, but it’s not as if any
one case stands out. Except perhaps for one, and that was because he was so
disappointed when the Supreme Court reversed it. A health official came to
somebody’s house and intruded into it, almost forced himself in, and my father
wrote a very, very strong opinion, claiming that no health official had a right to
-66-
enter someone’s home without permission, no matter what business he was on. And
that was reversed, I think in an opinion written by Douglas in the Supreme Court.
And at one point I came to my Father and I said, “I don’t know whether you realize
this or not, but in many of your opinions your-home-is-your-castle is a thesis that
shines through. I mean, you’ve done this time and again.” And he was taken aback;
he just hadn’t realized it. Then he thought about it and he said, “Well, now that I
think about it, I see clearly that when we grew up we never owned a home. My
Father was a Methodist minister, and we were always in somebody else’s home, or in
a parsonage.” He said, “I remember one summer we went away for a week or two
and came back and the parishioners had come in and changed the furniture all
around, put things upstairs that were downstairs. We had no say about it.” He said,
“When I got our first home, it wasn’t much but it was the greatest thing I had ever
owned and nobody was going to come in there.” [Laughter}
Mr. Kapp: How did he react to reversals generally?
Mr. Prettyman: I never heard him raise much of a fuss about it except
in that one case, which I remember very well. He thought Douglas and the whole
Court was absolutely dead wrong, and he was very concerned about what it meant for
the Constitution. But usually he would just not pay much attention — I mean, he
knew that honest men can look at the same thing and come out differently, and he
knew that under our system the Supreme Court has the last say. In fact, he banked
on that. I remember his first death penalty case. He was up late at night,
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wonying about it, but then he finally said, “Thank God there’s a Supreme Court.”
But no, I think he thought that it was just one of those differences of opinion.
Sometimes he clearly thought they were wrong, but you know, that was their job. I
don’t remember him railing against them as if they were engaged in one set of duties.
and he in another. He looked at it much more as if honest people just disagreed.
Mr. Kapp: Were there any colleagues on the D.C. Circuit bench with
whom he was particularly close?
Mr. Prettyman: Well, it’s interesting. His brethren on that court
ranged from Bazelon Jo Burger. But there didn’t seem to be any paiticular buddy.
He, for example, joined Bazelon very wholeheartedly in the Durham insanity cases
changing the standard that would have to be applied in criminal cases.
Mr. Kapp: Yeah —
Mr. Prettyman: That was Bazelon’s baby, but my Father was one of
the first to join him, and join him wholeheartedly. On the other hand, he often voted
with Miller, who was extremely conservative, and Burger, who was a little less so but
still conservative. He enjoyed Danaher, he liked Washington: ·He admired Fahy,
Leventhal and McGowan. I don’t know of anybody on there whom he really
disliked. He certainly disagreed often with Bazelon because he thought that in some
cases he just went too far. But I think he really got along with most of them. I
don’t remember anybody who was his enemy, or for whom he really had no respect.
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He perhaps thought that someone like Miller was, how shall I say it? You could tell
so easily which way he was going to go on a case once you knew what the case was
about [Laughter} or even who the parties were [Laughter], and he would be critical
of that. But that certainly didn’t affect him personally.
Mr. Kapp: Do you have any understanding of who the outstanding
judicial figures were in his mind?
Mr. Prettyman: Well, I know he deeply admired Charles Evans
Hughes. I think that he also admired Brandeis. In more modern times, he thought
Jackson was wonderfyl. On the so-called Roosevelt Court, although he knew and
liked Douglas, he didn’t think like Douglas did — and actually I think the same can be
said of Black. I’m really trying to think of anybody on that cou11 whom he would
have felt particularly close to except Jackson. Maybe Frankfwter to some extent. I’d
have to think about that.
Mr. Kapp: Were there judges on the D.C. Circuit with whom he more
frequently than not tended to ally himself?
Mr. Prettyman: No, it wasn’t a matter of alliance so much as it was
subject matter. If it was a criminal case, he might be in Burger’s camp more often
than Bazelon’s. If it was a First Amendment case, he might be in Bazelon’s corner.
It just really depended upon the subject matter.
Mr. Kapp: What about lawyers? Were there any that in his mind he
viewed as outstanding lawyers, outstanding appellate advocates?
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Mr. Prettyman: I know he greatly admired Ed Williams, even in those
early days. But to be honest, I can’t remember his coming home and saying ah,
we’ve just had this wonderful argument today and this particular person’s always
good. I’m sure he did, but I just don’t remember it. He had so many friends across
the legal community, and some of them — I can think of a couple of names but I
won’t mention them — may not have really been top notch lawyers, but he
nevertheless really liked them and enjoyed them. Now you have to remember that he
chose his law clerks, not because of their great intellect — and I ce1tainly don’t mean
to imply that they were in any way deficient — but because of their judgment, their
common sense, and their ability to understand and get along with him. So the fact
that some lawyer, judge or clerk was brilliant was not for him the dete1mining factor
in whether they deserved his admiration or whether they would be friends.
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Mr. Kapp: The following is a continuing interview which was
conducted on behalf of the Oral History Project of the District of Columbia Circuit
Court. The interviewee is E. Barrett Prettyman, Jr. The interviewer is Robert H.
Kapp. The interview took place at the offices of Hogan & Hartson L.L.P. on June 6,
1996. This is a seco·nd tape in a series.
Mr. Prettyman: I was just talking about my Father’s law clerks, and I
was saying that they obviously had to be smart but he was much more interested in
kids whom he could get along with, who could talk his language, whom he wouldn’t
have to fight with every day about everything — not necessarily who believed exactly
as he did, but who would not be engaged in an ongoing feud of some kind. He
wanted people with whom he was amenable and could be on very friendly terms
with. One of his law clerks, for example, was Dick Loos, and his father Carl Loos
had been my Father’s friend for probably 20-30 years. So he knew Dick Loos, he
knew where he came from, he knew the kind of thinking he did, he knew he could get
along with him, and that was his choice. There was one funny interview I have heard
told in various ways, but the reason I know that the way I am about to desc1ibe it is
accurate is because my Father himself told it to me. He had an applicant from
Virginia named John Warner. And the interview had been going on for about 15
minutes when my Father said, “You know, I have to tell you, Mr. Warner, that
you have a good record, but it’s certainly no better than those of easily a dozen
other people I’ve interviewed. Why should you have this job?” And John
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apparently leaned over the table and pointed his finger at my Father and said, “I’ll tell
you why. Because I have read every opinion you’ve ever written, I’ve read every
article you’ve ever written, I’ve read every speech you’ve ever given. I know you
better than anybody but Mrs. Prettyman.” {Laughter} And he got the job. John, of •
course, is Senator Warner now, and he’s always felt that my Father was responsible
for his whole career, because without that jump-start at that particular stage as a law
clerk, he might not have achieved anything else that he has done. So I know he has
been particularly appreciative of his getting that job.
Mr. Kaep: If you had to describe your Father’s approach to the judicial
function, what would you say?
Mr. Prettyman: Ve1y, very professional. Tough job that you have a
duty to give everything to. You just give it yom ve1y best. You decide as best you
can with what brains God gave you, and you write so that everybody including the
layman will understand what you say, why you did it, even if they don’t agree with
you. It’s your duty to bring justice to as many situations as you can, while
recognizing that in certain areas Congress has control and Congress may not have
done the just thing. To play the law as you see it and as you find it, rather than as
you’d like to make it. Not to let go of, or let slip by, a situation that is obviously and
totally unfair, but to play it even-handedly and straight down the middle. l mean, I
don’t know any other way to describe it. He was very professional about his outlook
and about his work, I thought .
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Mr. Kapp: Would you say that he was non-ideological?
Mr. Prettyman: Largely so. There were some things that really got
under his skin. Unpreparedness was one of them [Laughter} But where government
was obtuse sometimes, or unforgiving, where it should have used common sense, he
•
was very much of a pragmatic, practical, common-sense kind of a person. He knew
that there were rules that sometimes had to be broken. It infuriated him when
somebody went straight ahead in the face of all common sense and did something
really stupid, mean, unkind. He was not ideological as a judge. 1 think he was
ideological as a perso!l. But as I’ve said before, I don’t really think that he came to
the table with an agenda of things that had to be accomplished. That’s not how he
thought of the job.
Mr. Kapp: In today’s terms, would you think of him as a centrist?
Mr. Prettyman: Yes.
Mr. Kapp: You would?
Mr. Prettyman: Yes, that’s why I said he was probably closer to an
O’Connor or a Kennedy on most issues, because they are the center of that Court
now and that’s probably about where he’d be.
Mr. Kapp: Anything else on the subject of your Father that you’d like
to say?
Mr. Prettyman: Well, I took pride in the fact that he took so much
pride in me. He would not gush over things, but he made it ve1y clear that
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whenever something nice happened to me, it pleased him too. He followed my
career until his death ve1y, very closely, and I would not hear it from him but I would
hear from others that he had commented on how well a job I had done here or there
or the fact that he was so proud that I had accomplished something. And I like that. J
felt the same toward him whenever he did something special — I was always very
proud. Somebody asked me once wasn’t it a burden to have had a father who was
like that? And I just laughed. I mean it never occurred to me to think of it that way.
Not only was he no burden, but he helped me tremendously in ways that l ‘m sure I
don’t even know abol!t in every respect. I’m proud of the fact that sometimes when
good things happened to me, at least in part it was because of him, even when I
didn’t know about it, although of course I had to take it from there and make of it
what I could. He could not clerk for me, even if he was instn1mental (and I don’t
know that he was) in getting me that first clerkship. After getting the job, I ce1tainly
had to perform. But I never thought of that as a burden. I just thought that that was a
marvelous dividend I got that I’m very proud of.
Mr. Kapp: What about the business of having to live up to the
reputation of such a distinguished father?
Mr. Prettyman: Well again, I think that is true. I’m sure that that is in
the back of my mind all the time. But I haven’t thought of that as a burden. I
thought of that as something to aspire to, and I don’t for a moment think that I have
in any way come anywhere close to being my Father’s equal. But I am proud
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of the fact that I haven’t totally screwed up, either. I’ve done some things on my own
that I’m proud of, and his record has always been something to aspire to, so that you
want to be better, to be like your Dad. I think a lot of people feel like that. If I had
wholly crashed, like the son of another judge I know, I think that could become a
terrible burden. Aspiring to something and then failing miserably. So even if you
don’t come anywhere near equaling your Father, the fact that you’ve still got that
model out there so that you can constantly work till the very end to come close to that
goal, gosh I think that’s a great way to live.
This concludes the interview held on June 6, 1996.