29
ORAL HISTORY OF
ALAN ROSENTHAL
Second Interview – March 21, 2011
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewee is Alan Rosenthal and
the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in
King Farm in Rockville, Maryland, on Monday, March 21, 2011. This is the second interview.
MS. FEIGIN: Good morning.
MR. ROSENTHAL: Good morning.
MS. FEIGIN: When we left you at the last session, you had just found out that you were
going to go to Maxwell Field in Alabama to do personnel work, I believe.
MR. ROSENTHAL: To go to personnel school. After that, I was sent first to Love Field,
Texas, and then I went to Langley Field, Virginia, which is where I spent
the balance of my undistinguished military career [laughter]. There really
was nothing during those eight or nine months at Langley that’s worthy of
any kind of note. I was basically assigned to the task of determining
where returning pilots would be assigned throughout the United States as
no longer fliers but as officers in the Army Airways Communications
System. They served as control tower officers and the like. I was
discharged ––
MS. FEIGIN: Before we get to your discharge, let’s back up a bit. Can you comment a
little bit about what it was like to be in Alabama at that time. We’re
talking about a segregated era.
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MR. ROSENTHAL: It was extraordinarily disconcerting in fact. At Maxwell, as indeed at the
other bases that I served on at one point or another below the MasonDixon Line, two things were very apparent. First of all, the AfricanAmerican airmen were assigned at these bases to what were
euphemistically referred to as engineering squadrons. What they did in
point of fact was simply maintain the grounds. Beyond that, they were
segregated across the board. They were segregated in the mess hall, they
were segregated in the movie theaters on base, and essentially they were
segregated in all other aspects of life. The beer garden, the PX, everything
else. It was disgraceful. This was the way the Army Air Force operated at
that time. Indeed, throughout my two years plus in the Army Air Force,
the only time I was in a nonsegregated environment was at the separation
center at Ft. Meade, Maryland. The barracks at Ft. Meade, the separation
center, were integrated. Up to that time, there was strict segregation in all
aspects of my military service. It was really a disgrace. As you know,
there were the Tuskegee Airmen, but they were a totally segregated unit.
But where I was, the only black airmen were engaged in, as I say,
maintaining the grounds and similarly menial undertakings.
MS. FEIGIN: So you never met them?
MR. ROSENTHAL: I had no contact with them at all. In the movie theaters, they were
relegated to sit in the very back of the theatre. I had no contact with any
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of the black soldiers at any of the installations that I was at during
something over two years of military service.
MS. FEIGIN: After you left the military?
MR. ROSENTHAL: I returned immediately to the University of Pennsylvania. I will have to
say this for the Army Air Force, it was probably the only consideration
that I really got in my service time, but they let me out a month early in
order to allow me to start the semester at Penn. In those days, the
semester began at the very end of September, unlike today when most
colleges go from the middle of August and end the semester before
Christmas. In those days, at least at the University of Pennsylvania, as
well as I think most schools elsewhere, the semester began late in
September and ran through January. So you spent your Christmas
vacation essentially writing papers, and now when they get to the
Christmas vacation, the semester is over and they can really enjoy
themselves which was not the case for me.
MS. FEIGIN: What year was this?
MR. ROSENTHAL: I returned to the University of Pennsylvania at the end of September in the
year 1946. And I returned as an upper sophomore because, as I think I
noted in our last session, the Army sent me to the University of Buffalo
for two semesters. So while I left Pennsylvania in the middle of my
freshman year having just one semester, I returned as a second-half
sophomore. And that’s actually very interesting. That enabled me to
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graduate from college in June of 1948. Had there been no war, had I not
been in the military service at all, that’s exactly when I would have
graduated. I managed to do that by first accelerating in high school one
semester. I graduated in February of 1944 instead of June 1944. The
Army sent me to college, again, for two semesters. Then when I returned,
I did a summer session in 1947, and I took the maximum number of
courses that I could every semester, and I graduated in June 1948 with the
absolute minimum number of credits [laughter]. But that was interesting.
I was in the military service over two years, yet I graduated from college
precisely when I would have graduated but for the war.
MS. FEIGIN: Was campus very different when the war was over?
MR. ROSENTHAL: It was considerably different. Among other things, in the pre-war days at
least, there was a lot of hazing that went on with freshmen. They were
required to wear beanies and there were all kinds of demands made upon
them [laughter]. Let me tell you that in the post-war era, that went by the
board. There was no way that a returning veteran who had spent four or
five years in the military service, much of it in combat, was going to be
told by some 18-year-old upperclassman that he had to wear a beanie
[laughter]. It was quite different.
I think what you saw also was the GI Bill of Rights that enabled a
large number of these returning veterans to go to college, and particularly
to an Ivy League institution. A lot of them could not possibly have
33
afforded a college education without the benefit of the GI bill. And the
thing about it was that they were for the most part very, very serious
students. When you think of Joe College and all of that, these were older
men – there were some women veterans as well – but principally men.
They took their studies extremely seriously.
MS. FEIGIN: Were you on the GI bill as well?
MR. ROSENTHAL: Absolutely. My father paid for my first semester of college before I went
into the military. I do not think that from that point on, though my college
education and my law school education were both at Ivy League
universities – the University of Pennsylvania for college and Yale
University for law school – my father contributed as much as $2,500, even
though that might be today $40,000.
The GI bill covered most of my educational expenses, both tuition,
my room and board, and books. My father gave me some spending
money, but in large measure, the GI bill covered it through the second
year of law school. Now the third year of law school, tuition at that time,
this is the academic year 1950-51, the tuition at the Yale Law School was
the princely sum of $750. I had a position as a legal research instructor as
a third-year student. The compensation for that position was $750. It paid
for my tuition. Tuition is now $40,000. I don’t know whether they still
use students to teach legal research in their third year, but you can rest
assured they’re not getting paid $40,000 [laughter]. In other words,
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they’re not getting paid the equivalent of tuition, as I did. My father could
well afford to have paid for my college and legal education, but I’m sure
he appreciated the fact that he was relieved from doing much of that.
Again, for many of my classmates in, both college and law school, the GI
bill was a savior.
MS. FEIGIN: Tell me a little more about college. What did you major in?
MR. ROSENTHAL: I had planned to major in political science. My father put substantial
pressure on me to major in economics. He felt political science was
essentially a worthless major, particularly for somebody who was headed
to law school. He felt very strongly that all young people should have a
fundamental grounding in economics. Well in those days, I think more so
perhaps than today, children were more prepared to follow their parents’
wishes [laughter]. At least in my case, I decided I would indulge him and
so I was an economics major.
MS. FEIGIN: You say especially because you were going to go to law school. How
early in life did you realize that was where you were headed?
MR. ROSENTHAL: I think from birth. [Laughter] I’m only being partially facetious. As far
back as I can recall, that is what I wanted to do. I didn’t go through the
agonizing period that many children do in their teens wondering what they
might do and changing their mind periodically. No, I never wanted to be a
fireman or a policeman or any of those things. As far back as I can recall,
what I wanted to do was to study law. I have to say that that was probably
35
a good early decision and something that I stuck with because I think I’ve
been a reasonably decent lawyer, but I also think I would have been
perfectly terrible at anything else [laughter]. So I think as it has turned
out, it was a very wise decision for me to have made early on [laughter].
MS. FEIGIN: What was it that intrigued you about the law? What was it that you
wanted to do?
MR. ROSENTHAL: I have no idea. I couldn’t tell you [laughter]. As far back as I can
remember, this is what I wanted to do, and what pushed me in that
direction, I have not the slightest idea. But that’s the way it was. So when
I was in college, there was no question about what I was going to do and
that was to apply to law school.
MS. FEIGIN: Were any teachers in college particular mentors to you?
MR. ROSENTHAL: Not that I can remember. I actually had very, very little contact with
professors outside the classroom, I guess by choice. There weren’t any, I
have to say, that I felt particularly moved to have contact with outside of
the classroom [laughter].
MS. FEIGIN: Can you talk a little about what college was like in that era? Did people
dress to go to school?
MR. ROSENTHAL: I don’t recall there being a formal dress code, but they certainly, on the
whole, dressed a lot more formally than kids seem to do these days
[laughter]. I wore a jacket. I guess a good deal of the time I wore a tie as
well, and dress slacks. I didn’t wear a suit.
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MS. FEIGIN: Were women in dresses or skirts?
MR. ROSENTHAL: Absolutely. The attire in that era was certainly much more presentable
than what one sees generally today [laughter]. I think the faculty were
better dressed than I understand the faculty are at a lot of these schools
today [laughter].
MS. FEIGIN: Speaking of how women dressed and the faculty, I’m curious, were there
many women in the classes and were there many women on the faculty?
MR. ROSENTHAL: The University of Pennsylvania at that time had a separate college for
women, a liberal arts college, and as far as I can recall, women were not
admitted to the Wharton School, which is the business school, at all. I had
women in some of my classes. I was in the College of Liberal Arts and
Sciences, called The College, which granted BA and BS degrees. The
women, as I say, went to a separate college called, appropriately enough,
The College for Women. The baseline courses I think for the most part
they took separately from the men who were in The College, but to the
more advanced courses, the women were admitted. Those courses were
offered generally in the men’s college that the women were admitted to.
So I did not have women as a rule in the basic courses, the elementary
courses, the 101s, but I did have women in the advanced courses, with one
notable exception. There was a very venerable professor of English
named William Page Harbeson who I think had taught there for 30 or 35
years. He was at least in his 60s. William Page Harbeson would not
37
allow women in his class, and that was because he had a habit of telling
off-color jokes, and he was sufficiently old-school that he didn’t want to
tell them in the presence of women, yet he was not prepared not to tell
them at all [laughter]. So Professor Harbeson did not allow women in his
classes. My impression is he was an exception.
MS. FEIGIN: Was there any protest about that?
MR. ROSENTHAL: Not at all. I don’t think that the women at the University of Pennsylvania
in that era were nearly as prone to challenging the administration on
matters such as that [laughter]. No, they just didn’t have the benefit of
Professor Harbeson, who was an excellent professor, but he had that one
idiosyncratic approach to co-ed education.
MS. FEIGIN: Were there women on the faculty?
MR. ROSENTHAL: I’m sure there were at The College for Women [laughter], but I think I can
state with a degree of confidence that I did not have a woman professor or
instructor. Interestingly enough, at Pennsylvania, a lot of the courses were
set up for three credits with three hours of instruction, with one lecture, in
an enormous room with the professor up front, and then two so-called quiz
sections that were taught by a graduate student. So what you’d have is
probably 300 people in the lecture hall, and then out of that would come
maybe ten sections of thirty students which would meet with a graduate
student. I don’t recall any of the graduate students that had these sections
being women. That was quite a different era. There were many fewer
38
women students at the university. It’s not like it is today where in many of
these institutions the women outnumber the men.
MS. FEIGIN: So you graduated in 1948. How did you go about applying to law school?
MR. ROSENTHAL: I guess that I was unduly egotistical. I applied to just two law schools,
Yale and Harvard, and was happily accepted at both. But in those days, in
all fairness, it was considerably easier to get into those law schools than it
is today. There is not a doubt in my mind that, given the record I had at
Pennsylvania and my LSAT score, that today if I applied to Yale with the
same GPA, the same LSAT score, the admissions director would say,
“Why is this lunatic applying here? [Laughter] The University of North
Dakota would be a better bet [laughter].”
Interestingly enough, if I may move forward then come back, years
after I graduated, down here in Washington, there was a meeting of the
Yale Law School Alumni Association of D.C., and the newly anointed
dean came down to address us. The gathering included a number of very
senior partners of law firms here, as well as some judges, and the dean
reeled off the statistics on the class that had just gotten admitted. He
looked around the room and said, “As you see, ladies and gentlemen, there
are very few of you who would get into the law school today.” [Laughter]
I thought that was undoubtedly a correct statement. At the same time, if
the law school was looking for money [laughter], that wasn’t a very politic
thing to have said. In any case, I was accepted at both, and I opted for
39
Yale on the basis of what I had been told – that life at Yale was a lot more
pleasant than it was at Harvard.
MS. FEIGIN: How so?
MR. ROSENTHAL: The faculty were much more congenial, the attitude was not as it
apparently was at Harvard when you came in there, “look to the right of
you, look to the left of you, one of the three of you ain’t going to be here
next year.” The dean of the Yale Law School at the time, Wesley Sturges,
when he met with the incoming students, he said to them, “You have
probably now accomplished the most difficult task that you will face in
your lifetime, and that’s getting into this law school.” [Laughter] It was
just a more pleasant environment. I don’t think that the academic side of
it was any less rigorous than it was at Harvard. After the first semester, I
actually enjoyed life up there.
MS. FEIGIN: Tell me about the class, the size, the diversity.
MR. ROSENTHAL: We were the largest class I think ever to go through the Yale Law School.
This was a post-war class. We had 210 in the class. Of the 210, 12 were
women. So you can see the difference between that era and the current
era. Among those women was Patricia Wald, later the Chief Judge of the
federal Court of Appeals for the District of Columbia Circuit, as well as
Rita Davidson who was the first woman judge on the Maryland Court of
Appeals. So we had some very distinguished women out of the very small
group of 12. The class was relatively large by Yale standards, although
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again, compared to Harvard which had over 500, it was relatively small.
The first semester courses were required. After that, everything was an
elective, with the exception of the second half of Property and Moot
Court, which were in the second semester of your first year. Beyond that,
everything was an elective, and there were many electives that were far
removed from the so-called black-letter classes like Corporations and
Taxation and the like, so that one could almost go through three years
there, after the first semester, without taking any of the standard courses.
MS. FEIGIN: Can you give me some examples?
MR. ROSENTHAL: They had Arbitration, they had a course in jurisprudence, and they had
several others, I don’t recall. This has been true of Yale right down to the
current time. I interviewed in the 1980s a Yale graduate for a clerkship on
the NRC panel on which I then served. I was looking at his résumé and he
had taken a course in Tragic Choices [laughter]. I did ask him at the time
what that was about. I don’t recall his response. There were several of
them of that stripe. So if you weren’t really interested in the usual
curriculum of corporation and tax, bankruptcy, and domestic relations, you
could avoid them.
MS. FEIGIN: I would ask you also about the faculty. Were there women? Was it
diverse in other ways?
MR. ROSENTHAL: The faculty did not have a woman on it. The faculty was diverse to some
extent in political beliefs. There were a couple, believe it or not,
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moderately conservative Republicans as well as a number of left-wingers.
Thomas Emerson was familiarly referred to as “Tommy the Commie” and
Fred Rodell was known as “Fred the Red” [laughter]. All male. A
substantial percentage of the faculty were of a very liberal persuasion, but
there were a couple of exceptions. Several of the professors were known
also for their ability to consume alcohol in large quantities and still be able
to meet their classes, although one of them who had an 8:00 a.m. Evidence
class seemed to have to hold onto the rostrum after what seemed to have
been a night of pretty heavy drinking [laughter].
MS. FEIGIN: I asked you about women in your class. What about diversity in other
areas? Was there ethnic diversity?
MR. ROSENTHAL: There were a couple of African-Americans, but not many. My class, two
or three. I don’t recall an Hispanic, and I don’t recall an Asian. The class
consisted of essentially male Caucasians with 12 women. I can’t recall
whether there were any blacks among the women. There were some in
classes below me. I think in the class immediately behind me and the
class two years behind me, which my wife was in, there was a black
woman, at least one. But the composition of that law school in terms of
gender, diversity, and racial diversity, a completely different breed of cat
from what’s true today.
MS. FEIGIN: Did everybody live in a dorm?
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MR. ROSENTHAL: We had married students. There was a dorm in which a large percentage
of the students who were not married lived. A number of students were
older, veterans, married, and they, of course, lived off campus.
MS. FEIGIN: Where did you live?
MR. ROSENTHAL: The summer that I graduated from college, I went abroad for the whole
summer, and during my time abroad, the material came in about applying
for rooms in the dorm, and somehow that didn’t get handled properly, so
the upshot of it was I lived off campus the first semester. But then there
were several people that at mid-year graduated or left the dorm. I was
able then to get into the dorm. So for my last 2 1/2 years, I lived in the
dorm.
MS. FEIGIN: Before we get a little bit more into law school, let me go back to your
summer abroad. Was that by yourself?
MR. ROSENTHAL: I travelled with the son of another executive of the company that my father
worked for. It was nice because my father was, I may have mentioned this
in our last session, an executive of a company that did a lot of importing.
They had a very close relationship with the American Export Line, and so
my travelling companion and I went abroad on the MacAllister Victory,
which was a World War II victory ship that had been carting during the
war various goods to war zones. After the war, the American Export Line
purchased this ship, maybe others, so I went over gratis, as guest of the
American Export Line and came back at the end of the summer on one of
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their regular ships, their regular fleet, not a converted war vessel, and on
that ship we had the owner’s cabin, which was very nice. Going over, we
were in the rear of the ship where gunners had apparently been housed
when it was being used as a cargo vessel for war purposes [laughter]. So
we had a very nice summer. We landed in Italy and did Switzerland,
France, Spain and Portugal. We did not get up to the British Isles. This
was eight weeks, a very leisurely time.
MS. FEIGIN: Did you see a lot of the war ravaged areas?
MR. ROSENTHAL: No. I don’t think we saw any. In Italy, we were in Naples and Milan and
Venice, and I don’t recall seeing any. Of course, in Switzerland there
wouldn’t have been any. In France, we were in Paris, Marseilles, and
various places in between the two, and I don’t recall any war ravage there.
And I didn’t see anything in either Portugal or Spain, which again were
out of the war.
MS. FEIGIN: How were American treated in Europe at that time?
MR. ROSENTHAL: It was interesting. My most interesting experience was in Spain. Franco
was still the dictator of Spain, and what we found was that Americans
were treated very cordially, but for the most part, the Spanish were very
guarded in what they would say about the government. One of the
interesting things that did happen was we were on a train going from one
point of Spain to another, and on this train was an American young
woman from Rye, New York, who had been over there for the summer.
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She was studying in Madrid or someplace. She told us a wonderful story
about how arrangements were made for an interview session between
Franco and a group of American students, including herself. During the
course of the interview, Franco asked the students how they liked their
time in Spain, and they politely said they were having a good time. The
next day there’s a big article in the Madrid newspaper on this meeting
between Franco and the students, and this young lady to whom we were
talking discovered to her great dismay that the article contained the
following: Miss So-and-So, a millionairess from Rye, New York
[laughter], was asked by the Generalissimo how she liked Spain, to which,
according to the article, she responded, she loved it and she wished she
could spend the rest of her life in Spain. And, the article continued, she
really regretted all the lies that were being said about the Franco
administration in the American press.
I think she was probably about 19 years old and she becomes
extremely alarmed. Are they going to expatriate her? [Laughter] We
didn’t have a Consulate, or an Embassy in Spain in those days. We had a
chargé d affairs. She goes down there to report that this is all a lie, that
she said none of this, and the guy in the chargé d’affairs office said don’t
worry about it, we run into this all the time.
The one thing I did find was that the Swiss were not nearly as
cordial, particularly the shopkeepers, as were the people, the natives in the
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other countries, Italy, France, Spain and Portugal. We were left with the
impression that what they were really interested in was our money
[laughter], much more so than in the other countries.
MS. FEIGIN: Back to law school. Did you take a bunch of these wild and liberal
courses?
MR. ROSENTHAL: No. I did take the Arbitration and Admiralty courses, which I guess could
be described as being sort of out of the mainstream of the black-letter
courses. But I also took Corporations, Tax, and Domestic Relations, all of
the standard courses.
MS. FEIGIN: You mentioned some of the women in the class who went on to fame, but
I suspect some of the men did as well.
MR. ROSENTHAL: Burke Marshall is probably very well-known and was also in the class.
MS. FEIGIN: For the historical record, you might say who he is.
MR. ROSENTHAL: Burke Marshall later on was, among other things, the head of the Civil
Rights Division in the Department of Justice where he was very, very
involved in the civil rights issues of the 1960s. Also, interestingly enough,
in my class was the father of Supreme Court Justice Elena Kagan, as well
as the father of the gentleman who is now the CEO of Time Warner. So
we had some people who sired very prominent citizens indeed [laughter].
MS. FEIGIN: Despite your protests that you would not have gotten in today, I gather you
graduated at the top of your class.
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MR. ROSENTHAL: At the end of the first semester, I was number one in my class, and I
attributed that to advice that I had gotten from a lawyer named Sam Harris
who was a partner at Fried, Frank, Harris, Shriver and Jacobson, a very
prominent law firm. He was the Harris. He was a Yale Law graduate
himself. My father knew him, and Sam was very kind to send a letter of
recommendation on my behalf to the law school, and therefore he had
some interest in how I did at the school [laughter]. He took me to lunch
about a week or two before I reported to the law school, and he gave me
the following piece of advice. He said the most significant part of your
law school career is going to be that first semester. Because in those days,
unlike today, grading was not anonymous. Your name was on the blue
book. So Sam said it’s very important that you do well that first semester
because if you convey the impression of being a top student, that’s going
to carry a lot of weight for the balance of your law school career
[laughter].
I took that to heart, and in my first semester of law school, I left
New Haven only once the entire semester and that was to spend a
weekend at an uncle’s place in Pound Ridge. He had come up for the
Yale/Dartmouth game, he was a Dartmouth graduate, and I had gone back
with him. I went back with him Saturday afternoon and I returned Sunday
afternoon. On second thought, I guess I went home for Thanksgiving, a
day or two. Apart from that, I made law school a 7-day, 24-hour a day
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proposition, and it paid off. After that, I relaxed a bit, and my recollection
is I was fourth in my class at the time of graduation.
One of the things that was interesting was the Yale Law Journal.
In contrast to the Harvard Law Review, you didn’t get on automatically on
the basis of grades. At the end of the first semester, a certain percentage
of the top of the class by grade was invited to “compete” for the Law
Journal, and an additional group was invited, based upon grades, at the
end of the second semester. Well I didn’t like the concept of competing,
particularly because there were aspects of that that seemed to me to be
hazing, and beyond that, the decision as to whether you were then tapped
to become a member of the Law Journal was based upon the evaluation
made by third-year students. So I elected not to compete, which created
quite a stir because in those days the class rankings were made public. It
was known that I was first in the class, and I was informed that I simply
could not refuse it, that it made a mockery of the competition. I said I
didn’t see anything in the booklet containing the rules and regulations
governing the Yale Law School that required anybody to compete, and I
said I’m not going to do it. And I didn’t do it.
Well when this word got down to a lawyer friend of my father,
who was a partner in a moderately prominent New York law firm, he said
Alan is just out of his mind [laughter]. We would never consider hiring a
lawyer out of school who had not been on the Law Review or Law
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Journal. And when my father reported that to me, my response was I had
no intention of considering his firm in any case, so I didn’t regard that as a
big loss [laughter].
The only price I paid for that, turned out it was no price at all, was
that there was a very, very structured system set up with regard to judicial
clerkships. There was one Supreme Court Justice at the time who always
took a Yale law clerk, and that was Tom Clark, and there were three
judges on the Second Circuit that always took Yale law graduates. At the
time, it was Charles Clark who had been a former dean of the law school,
Thomas Swan, who I think also had been a dean, and Jerome Frank, who
taught a course at the law school on the side. The person who was in
charge of placement had a session in which certain people were invited to
attend it for the allocation of these clerkships [laughter], because for the
most part they took whoever was recommended. Well, if you weren’t on
the Law Journal, you weren’t invited to this session. It didn’t make any
difference what your class standing might have been. So I wasn’t invited
and therefore the Frank clerkship and the Charlie Clark clerkship, and the
Tom Swan clerkship and other clerkships were out of bounds, at least to
the extent that the school wouldn’t recommend me. I could have applied
for any of these clerkships but it would have been without the law school’s
recommendation. I wasn’t terribly interested in those clerkships anyway.
What I was interested in was a clerkship with a judge on the
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District of Columbia Circuit at the time named Henry Edgerton, who I had
read a great deal about. He was an extraordinarily able liberal judge, and I
decided that I would apply for his clerkship. The woman who ran the
Yale clerkship program said, “Well you’re free to do that Alan, but I have
to tell you, it’s an entire waste of time.” I said, “Well why is that?” She
said, “Well, he’s a Harvard law graduate, he has taught at George
Washington and Cornell; his clerks have all come from those schools, and
there’s no way obviously he’s going to consider a Yale graduate.” So I
said, “Thank you very much for that but nothing ventured, nothing gained.
I’m going to apply anyway.” And I did.
I was invited to come down for an interview, which I did, and the
judge talked to me for a while and then turned me over to his then one law
clerk. In those days the Court of Appeals judges had a single law clerk,
now they have four or something like that, and then he took me to lunch.
After lunch, he asked me to talk to the clerk for a while, he had something
to do, but that he would be seeing me again before I left. I’m in chatting
with the clerk when the judge’s bailiff comes in. This was a very elderly
African-American, and he says to me, “Congratulations,” and I said, “For
what?” He said, “I understand from the judge you’re it.” [Laughter]
Well, half an hour or so later, the judge reappears, I go back with him into
his office, and in fact he does offer me the clerkship, which I accepted on
the spot.
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MS. FEIGIN: Did he ask you why you weren’t on the Law Journal?
MR. ROSENTHAL: Never came up. Subsequently, not on that occasion, but subsequently
after I started working for him, I told him what I had been told by the
placement director, and he laughed and said, “It’s true, I never had a Yale
law clerk before you, but that might be because no one has ever applied”
[laughter]. And actually my immediate successor was also out of Yale.
That was funny.
MS. FEIGIN: Had you applied to any other judges?
MR. ROSENTHAL: No, I hadn’t applied to any other judges. There’s one other sort of
amusing story regarding my search for employment. I interviewed with a
number of law firms on the campus, and several of them invited me down
to New York – they were New York firms – for further interviews. One of
them was a firm called Dwight, Royal something, and I went down for this
further interview, and a partner is interviewing me, and he’s extremely
interested in where I live, what my father does, and it seemed to me all the
questions really were going to my background [laughter]. I finished
interviewing with that firm, and I saw another firm the same morning. I
then went back to the family apartment and my mother said to me, “You
just got a phone call from Mr. So-and-So” – one of the lawyers I had seen
down at Dwight, Royal – “and he wants you to call him.” So I called him,
and he said, “One of our major clients is 20th Century Fox, and they have
an office around Columbus Circle, and we would very much like you to go
51
right down there to meet them. I said, “Sorry Mr. So-and-So but I’m
committed to be back in New Haven later this afternoon, and to make that
commitment, I have to leave in the next half hour or so I’m afraid I can’t
do it.” “Well,” he said, “that’s too bad, maybe another time.” I’m just
walking out the door and the phone rings again. It’s the same gentleman
offering me a job. Well, of course at that point I told him that I had a
clerkship application pending. When I called back subsequently to tell
him I was accepting a clerkship, he said, “When the clerkship is finished,
we would certainly like you to come work with us.”
Well what do you think I discovered subsequently? They were
interested in me on the assumption, based upon my name, that I was
Jewish and apparently they were getting a lot of heat from 20th Century
Fox, the client which had in its management essentially Jews at the time,
they were getting a lot of heat because there were not many, if any, Jews
in the firm. I looked like a wonderful candidate. I had gone to an Ivy
League school, the University of Pennsylvania, my father was an
executive, I lived on Park Avenue, and thus I was, from their standpoint, a
fine candidate. The same morning that I interviewed, one of my
classmates interviewed with that firm. He was an Articles editor on the
Yale Law Journal. He did not get an offer, although also Jewish, and why
was that? Well he had gone to the City College of New York and his
father had some relatively menial occupation, and they lived in the Bronx,
52
so that was that.
In those days, unlike today, there was an enormous amount of
discrimination on the basis of religion in law firms. There were Jewish
law firms, and there were not Jewish law firms, and I have to say that
some of the Jewish law firms in that era took advantage of the fact that it
was very difficult for Jewish graduates of the Harvard, Yale, Columbia,
stripe to get jobs in the Cravaths, et cetera, of the time. Therefore these
Jewish firms had a pay scale that was lower than that of the so-called
gentile firms because they could take advantage of the fact that the Jewish
graduates of these law schools had to turn to them among the mega law
firms.
MS. FEIGIN: Do you remember what the pay scales were in those days?
MR. ROSENTHAL: Yes. You’ll be interested in this. I went to work as a GS7, for Judge
Edgerton. I was paid the princely sum of $4,205 a year. What do you
think the Cravath salary was? Among the New York law firms, Cravath
was the salary setter at the time – it had just raised its amount to $4,000.
In other words, I was getting paid as a GS7 more than the Cravaths.
Obviously today it’s a quite different situation [laughter].
MS. FEIGIN: Do you know what the Jewish firms were paying?
MR. ROSENTHAL: They were paying less. I think $3,600 or something like that. It was a
disgrace. They were taking advantage of, again, the fact that the Cravaths
and the Winthrop Stimsons and Cadwalader, the rest of those firms, were
53
essentially not taking Jews. Now there is a sideline, and this is an
interesting story. There was a fellow in the class ahead of me named
Edward Benjamin, and Edward Benjamin’s ambition in his law school
career was not only to get accepted by Cravath, Swaine & Moore, which
maybe had some Jewish associates, but never had a Jewish partner, unless
there might have been one or two from one of the Warburgs, Rothschilds,
that crowd [laughter]. In any event, Benjamin was bound and determined
to not only get hired by Cravath but to become a partner and he managed
to get hired by Cravath, and he managed to become a partner. A year after
he became a partner, he was flying back from a business engagement in
Chicago, his plane ended up in the East River, and he was killed. He left a
very wealthy widow. But he was an exception. Basically, the firms did
not hire Jews at that time.
MS. FEIGIN: Or women?
MR. ROSENTHAL: Women? [Laughter] You know the story about Sandra Day O’Connor
who comes out at the top of her class at Stanford and is offered some legal
secretary positions hither and yon. Most of the women in my class I think
ended up in the government, which, of course, was much less
discriminatory.
MS. FEIGIN: Between law school and the clerkship, was there anything?
MR. ROSENTHAL: I spent the summer working in a lab in my father’s plant to pass the time.
What I did do before I started with the judge was I got married. That was
54
a very significant event in my life [laughter]. I got married on my father’s
54th birthday as a matter of fact. My wife Helen was at the Yale Law
School two years behind me. She entered in the fall of 1950, and I
mentioned before that I taught legal research in my third year. She was
one of my students. We didn’t date during that time, but after the semester
was over – that was just a one-semester proposition –we then started to
date and we got married in early September of that year.
MS. FEIGIN: So that was right after you had graduated?
MR. ROSENTHAL: Yes. At that time, I thought I was going to come down for the year with
the judge in Washington and then return to New York. So for that reason,
Helen transferred to Columbia. Well, during the fall of that year, I
decided I was not going to go back to New York, I was going to stay in
Washington, and I hoped to get a job in the Department of Justice. So
Helen made another move, and she transferred from Columbia to George
Washington, which is, in fact, where she got her degree. She was I think
something like second in her class at GW, and was on the Law Review. I
think she got on it automatically, I don’t think it was a matter of
competition.
MS. FEIGIN: When you say you thought you’d be going back to New York, you thought
you’d be going back to New York to do what?
MR. ROSENTHAL: Well, if I had gone back, I would not have gone to the Dwight, Royal law
firm. After I heard about the basis upon which they were interested in me,
55
that certainly was off the table. It very possibly would have been with the
law firm that Sam Harris was with, Fried, Frank, Harris, Shriver,
Jacobson, although it was under a different name at that time. Ironically,
that’s the firm that my son, my oldest son, Ted, went to, many years later.
Obviously. I wasn’t certain about it, but when I came to Washington at
that point, it was with the anticipation that I would be returning to New
York.
MS. FEIGIN: How did you find out that the reason the firm wanted you was because of
your background?
MR. ROSENTHAL: I actually learned that from one of my classmates who ended up at that
firm, and he found that out. That was a very bad business but not
surprising in that era. After all, how many instances are there of there
being token blacks, so I could have been, in this case, the token Jew.
MS. FEIGIN: Tell us a little more about Helen and her background before we get to the
clerkship.
MR. ROSENTHAL: She grew up in Paterson, New Jersey, across the river from New York.
Her father was a manufacturer of chemicals used in the dye industry. I
think for a while she had gone to a public elementary school in Paterson
but ended up in a very small private girls school in Passaic, which is a
nearby community. She went from there to Wellesley College where she
majored in economics. The year that she graduated from Wellesley, that
was 1950, was the first year that the Harvard Law School admitted
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women, and indeed at least one of her Wellesley classmates ended up at
Harvard, but she had the good sense to go to Yale instead [laughter]. So
that’s her background. She has a brother who went both to Yale College
and Yale Law School.
MS. FEIGIN: So you had a commuting marriage the first year?
MR. ROSENTHAL: Through the first semester. Yes. Some weekends I went to New York,
some weekends she came to Washington, but she was actually at
Columbia only one semester as it became quite clear to me fairly early in
the fall that I was going to try to stay in D.C.
The year with the judge was an enormous educational experience.
One of the things that he made perfectly clear very early in my year with
him was never use ten words where one word will suffice. About midyear, with that firmly in mind, I was assigned to draft an opinion in a fairly
complex case involving riparian rights on the Anacostia River. I set about
with that in mind his admonition, and I sweated over that decision and I
boiled it and I boiled it and finally I got it down to about 19 pages, which I
was absolutely certain was the irreducible minimum. I sent the opinion in
to the judge confident that what I got back was going to be at least the
19 pages that went in. What came back was about 16 pages [laughter]. I
said, no, no, he’s obviously left out something essential, but I went over it
with great care, and no, I could not find anything that he had cut out that
was essential. So I felt very, very deflated at that time [laughter]. He was
57
a magnificent judge and a magnificent human being, and I look back upon
my year with Henry Edgerton as definitely one of the high points in my
now 60 years or so legal career.
MS. FEIGIN: Tell me about how the office ran. Was it common procedure for you to do
the first drafts?
MR. ROSENTHAL: Yes, in most cases. The office just consisted, again, of the judge, his
secretary, his bailiff, and yours truly, his one and only law clerk, so there
was just the four of us. For the most part when he was assigned an
opinion, I was called upon to prepare a first draft, and he did a lot of
editing on it, but as I say, this was an enormous learning experience. So
the fact that I was excluded from the meeting of would-be law clerks up in
New Haven didn’t prove to my disadvantage at all.
MS. FEIGIN: Do you remember any particular case that stands out in your mind that you
worked on?
MR. ROSENTHAL: No. I would have to say that none of them was earthshaking. Some of the
years he had cases involving civil rights issues and that kind of thing. My
year was pretty mundane. There were a couple of things that happened
during the year, though, that were interesting. One of them was that the
District of Columbia still had the death penalty in those days, and on
several occasions on the eve of execution, there would be another petition
for a stay. Whenever I heard that one was in the making – we would sort
of get advance word that this guy was scheduled for execution the
58
following day and that there would likely come up in the afternoon or
early evening a stay request – I would encourage the judge to head for
home because these things were so heart-wrenching. I can’t think of
anything that is more difficult for a judge to face than to deal with one of
these eleventh hour stay of execution requests.
During the year that I was with the judge, the Steel Seizure case
came through the court. As a matter of history, in early 1952 President
Truman seized the steel industry and there was an immediate attack upon
the seizure in the courts. The case reached the Court of Appeals for the
District of Columbia Circuit, our court, which sat en banc to consider it.
MS. FEIGIN: From the get-go it was en banc?
MR. ROSENTHAL: Yes. It was on an emergency basis. All nine judges participated. The
four liberals, the four conservatives, and Barrett Prettyman who was in the
middle, Henry Edgerton being one of the liberals. Well who appears to
argue the case on the government side, the Solicitor of General of the
United States, Philip Perlman, who comes up with the then Assistant
Attorney General of the Civil Division, Holmes Baldridge. Perlman
absolutely infuriated the court. “Well judges, I am Solicitor General, and I
normally do not appear except in the Supreme Court, but I am making a
special exception on this occasion, and dignifying this court with my
presence, so what I suggest you judges do is just sit up there and listen to
me.” It was almost that crass. The judges were livid, absolutely livid.
59
U.S. Steel was represented by a Cravath, Swaine & Moore partner named
Bruce Bromley, who had been previously a judge on the New York Court
of Appeals, and Bromley paraded into the courtroom followed by a retinue
of junior partners and associates, and he looked around I think for the red
carpet, which wasn’t there [laughter]. Bethlehem Steel, on the other hand,
was represented by a lawyer named Howard Westwood, who was
relatively junior, certainly compared to Bruce Bromley, a partner in
Covington & Burling here in Washington. Well, Bromley’s argument was
totally pomposity. He was making no headway at all. Obviously he had
been briefed by his retinue but was very ineffectual. On the other hand,
Howard Westwood, who didn’t have his reputation and all of that,
delivered a very solid argument on behalf of his company, his client. Well
as it turns out the D.C. Circuit didn’t pass on the case at all, it went
immediately up to the Supreme Court which decided the case eventually
against Harry Truman in favor of the steel companies. I can remember to
this day Philip Perlman, just sit back there and listen to me, I am the
Solicitor General [laughter]. But that case was the most notable one that
came through the court during my year there. Again, the three-judge panel
cases that Edgerton sat on, none of them, regrettably, was something that
was memorable.
MS. FEIGIN: Did you have a personal relationship with the judge?
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MR. ROSENTHAL: Oh yes. A relationship that extended well beyond the conclusion of my
clerkship. I had lunch with him fairly regularly, I’d say probably every
two to three months. It was a very close relationship. He had a very close
relationship actually with all his ex-clerks.
MS. FEIGIN: This might be a good time to stop, unless there’s something you want to
add about this period.
MR. ROSENTHAL: No, I don’t think that there’s anything particular about this period. As I
said before, the court was sort of split. It had four liberals, in addition to
Henry Edgerton and David Bazelon, there was George Washington, who
was apparently a descendant, a collateral descendant, of the president, and
Charles Fahy. Those were the four. On the conservative side were Chief
Judge Harold Stephens, Wilbur K. Miller, James Proctor, and Bennett
Champ Clark. Bennett Champ Clark was formerly a senator from
Missouri who was appointed to the court by Harry Truman, and Clark was
a very interesting fellow. He was very, very outspoken in his decisions.
He sat on one case where somebody was sentenced to death. The majority
overturned the conviction on some procedural ground. Clark wrote a
dissent, and the first line of the dissent was something to this effect: This
bloody-handed murderer will die a natural death before he suffers the
penalty he so richly deserves [laughter], and the dissent went on from
there. But he was quite a character. In the middle of the nine judges was
61
Barrett Prettyman who sometimes sided with the liberals and sometimes
sided with conservatives.
MS. FEIGIN: Were the relationships among them acrimonious?
MR. ROSENTHAL: It was somewhat acrimonious as far as I could see only with respect to
Judge Clark. Judge Clark unfortunately had an alcohol problem as well as
a number of medical issues, some of which might have been tied to his
alcohol problem. In any event, he had a habit of not turning up in the
robing room at five minutes of nine, when the court would convene at
9:00, and frequently the word would have to be sent down to his office,
when is he coming up? He would then stagger up, frequently on the arm
of his bailiff, and this did not sit too well with his brethren, and there was
some acrimony. Other than that, my impression was that my judge got
along very well with the other conservative members of the court at that
time.
MS. FEIGIN: Did you interact with the other judges as well?
MR. ROSENTHAL: Only to a very limited extent. We law clerks were not invited into the
meetings where the judges decided how they were coming out on a
particular case, and so we were never involved with the other judges in
that context, so I had relatively limited contact with the other judges.
Judge Bazelon’s law clerk never could make a luncheon engagement any
earlier than ten minutes to twelve. He never knew when the judge was
going to want him to have lunch with him. I would occasionally have
62
lunch with my judge, but I was always free at any point to make a
luncheon engagement. It was never a matter of having to wait until ten
minutes to twelve to see whether the judge wanted to have lunch with me.
MS. FEIGIN: We’ll break now and pick up at this point next week. I want to thank you
so much yet again.
