Warner Gardner Text of Interview Only (February 4, 1997)

INTERVIEW NO. 2
(February 4, 1997)
1934-1936
Mr. Gardner, in the last interview we talked about your
clerkship with Justice Stone. Do you have any further
observations you’d like to add about the Supreme Court or
the workings of the Court.
I do not remember exactly what I said in our last
interview but I am quite dissatisfied with the basic
operation of the Court. Much too little attention seems
to be directed to what I think is their major job of
settling the law and doing so in terms that can be
understood by the Bar and by the lower courts. Much too
much attention is directed to maintaining an individual
point of view, to debates among the Justices. I would
guess that probably a dozen cases a year become so
fragmented that there is no way they can be understood
except by virtue of charting with some care the positions
of each of half a dozen contributors to the decision.
A considerable cause of that unfortunate state of
affairs seems to me to be a surfeit of law clerks. There
was a day when one law clerk was all that a Justice
needed. Now they have four — causing opinions too
often to end up much like a learned article — a
display of erudition that is impressive but not
particularly helpful in the main job of the Court which
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•
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
is articulating an intelligible body of law. I think too
it may be that the fractured nature of the opinions and
the insistence of most of the Justices in having their
precise view spread out for posterity rests, oddly
enough, on the law clerk structure. If a position is
researched in depth, discussed in depth and the Justice’s
office is committed to that position, I think it is
harder psychologically to say “all right, all right, my
colleague’s opinion is not going to destroy the republic
and I might as well go along with it.” But if you have
to justify a conference position not hammered out by a
team of law clerks, go back and tell them that the large
amount of research that they did you tossed overboard, it
must be somewhat diff icult.
Thank you very much. After working for a year in the
Supreme Court, I believe y ou then worked in the Solicitor
General’s Office.
I did for a little over six years.
And how did you come to obtain a job in the Solicitor
General’s Office?
I was held in reasonably high regard by Adolph Berle who
taught corporate law at Colwnbia, and he was also working
in one capacity or another in what was known informally
as Roosevelt’s “brain trust.” When Solicitor General
Reed was nominated to replace a wildly incompetent
Solicitor General, Berle recommended to Reed that he
get me to join the group he was forming. Those days
were not quite so sensitive to the appearance of
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
absence of conflict and complete purity as we are now.
I’m told that now it is not considered proper for a law
clerk to go directly into the Solicitor General Office
because who knows there might be some case in common
between his service in the Court and the work in the
Solicitor General’s Office. In those cruder frontier
days, it was assumed that people were honest and you
didn’t have to worry about that. Then if there was an
overlap somehow you’d stay out of it. In any event there
was no formal bar at that time.
So Reed offered me a job and I, having only a couple
of months before decided that I wanted to teach law
rather than teach economics, accepted his offer. This
was work so attractive that I put aside teaching law for
awhile as I did for about 50 years.
But your intention when you went to the Solicitor
General’s Office was ultimately to teach law?
Yes.
When you went into the Solicitor General’s Office how
many attorneys worked there other than the Solicitor
General?
Mr. Gardner: . The core staff who did the work consisted of Paul Freund
and Charlie Wyzanski, Alger Hiss, Charles Horsky, and me.
There were two more or less peripheral participants.
One was a man named Marvin Smith who worked on run-ofthe-
mill criminal cases and had been there for many
years and then a man named Hudson who was rather
older than any of us. He was a brother of Manley
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Hudson, the international law man. He had been hired by
Solicitor General Biggs as his principal attorney. I
think that he was incompetent, or rather I saw nothing to
indicate that he ought to be called exceptionally
competent. He left after about a year, having
participated very slightly in work of the office.
Solicitor General Biggs preceded Stanley Reed.
He did, yes.
Now what about Jerome Frank, was he in this office at
that time?
No, he never was. He was General Counsel of the
Agricultural Adjustment Administration and did a
spectacular job in recruiting able attorneys. His staff
over there — just a random selection of those that I
knew were my partner, Shea, Abe Fortas, Lee Pressman, and
Alger Hiss. They are only a sample. They aren’t the
whole lot, but he had a remarkably able staff over there.
Then he went directly to New York, maybe directly to the
Court of Appeals, I’m not sure.
I’d like to go back to Paul Freund, Alger Hiss, Charles
wyzanski and Charles Horsky, which is quite a staff.
I thought it was.
Could you describe each one of them for me as you
remember them then, and also as you came to know them
later?
Starting with Freund who was the senior. He was, of
course, a vecy thoughtful, very able, non assertive
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lawyer who was always a gentlemen. He was almost
exclusively on special projects — not the routine work
of the office. He and Jerome Frank worked together on
the Agricultural Adjustment Act briefs. They started
with a draft from Jerome Frank’s office and then going on
to the Solicitor General’s office. I recall being in
Paul’s office one day when he looked at a Jerome Frank
footnote and in the footnote, there was a passage that
was underlined and in the underlined passage, was a
passage that was capitalized. Paul looked at that and
said, “Wouldn’t you think that’s important enough for the
text”? ( laughter)
Paul then as ever since invoked universal
admiration. He was also the only person I have ever
known, God knows including myself, who you could see
leaning back in the chair with his eyes closed and you
were confident that he was thinking and not asleep.
Wyzanski came over from the Labor Department working on
the National Labor Relations Board cases primarily. He
had an extraordinary ability, along with a phenomenal
memory, to think nearly like a machine and less like a
person who has human passions than anyone I ever really
encountered. I remember one case — I happened to be
down there — it was an Indian case and then as now the
Justices have a game they like to play, “if you’re right
counsel, why not this or why not that?” and lead you
down a path to another disaster. Somebody asked
Wyzanski, “If your position is correct, Mr. Wyzanski,
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Mr. Schultz:
Mr. Gardner:
why not?? (I forget the why not). For about 60 seconds,
he thought and said, “You’re right your Honor.” He sat
down. and that was the end of his argument. I don’t think
he would do that for a private client. (laughter) It
would be funny.
Did you lose the case?
Oh, of course, he gave up the case without 60 seconds
thought because he examined the hypothetical and it was
perfect without any flaws. I’ve never been too close to
him after the Solicitor General’s Office. He had no
emotion, but he did have a considerable vanity. He wrote
a ten or a twenty page, not exactly a memoir, but
something close to it, which he sent to Judge Weinfeld
with copies to a good number of friends. He said that
Reed was so impressed when he heard him make a Supreme
Court argument without notes that Reed invited him to
present the cases on the constitutionality of the
National Labor Relations Act instead of Reed himself.
In an exercise in mild malice, I took the trouble of
pulling out the Supreme Court Reports to ensure that my
recollection was right. The main case was argued by Reed
together with Warren Madden, the Chairman of the Labor
Board. Reed argued the secondary case alone. Two less
important cases were divided between Wyanski and the
General Counsel of the Labor Board. Wyzanski was in
charge of the briefs but his role in the oral argument
was markedly less than what he recollected.
Alger Hiss was likeable, and very able. So far as his
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Mr. Schultz:
Mr. Gardner:
politics were concerned, Joe Fanelli, who was working in
the office for a while, I thought correctly summarized
the case. Hiss he said was a little to the right of
Grover Cleveland. My judgment of his character was clear
that he could never be engaged in disloyal espionage.
Yet as his trial went on, I could never believe on the
evidence that he was an honest man. What the full truth
may be, I don’t, to this day, know. The business of
covering for somebody seemed more probable than anything
else, however improbable.
The business of what?
That he was being a gallant cover for maybe his wife,
maybe somebody else, is the only way I can reconcile my
judgment of his character with my judgment of the facts
of the trial, because they were kind of contradictory.
The first year we were there, Horsky and I, we arrived
about the same time, our work was supposed to be reviewed
by our seniors (every senior still being in his 20’s)
As Freund was busy thinking large thoughts, it meant
either Wyzanski or Alger. My office was next to Hiss,
one door down. I don’t know about Horsky but as far as I
was concerned, I could tell when Alger had left his
office to go to the library or the men’s room, or God
know where. At that point, I’d pop out to have my work
reviewed and discover, as he wasn’t there, it must be
reviewed by Wyzanski which was much more satisfactory in
the sense that t-Jyzanski would immediately say he was
wrong, when he was, without a long and prolonged ba ttle.
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Mr. Schultz:
Mr. Gardner:
By the first winter, or spring maybe , I concluded there
wasn’t any real need for anyone to review our work. So I
induced Horsky to join me in simply going ahead and
sending our work on to the Solicitor General or the
printer, whatever the case may be, and nobody complained,
so that indignity didn’t last too long.
Horsky has been, if not my closest, almost my closest
friend for 50 years and he is a completely satisfactory
man, to whom I am greatly indebted. Among other things,
when I went abroad for the Army, I left a pregnant wife
as a house guest with the Horskys, where she lived for a
couple of years until I came back. I have never
adequately repaid that courtesy.
You talked a little bit about how briefs were written and
either were reviewed or not reviewed. Could you talk a
few minutes about the other workings of the Office? How
were decisions made about what position to take on cases
and that sort of issue?
It was the exceptional case in which there was occasion
to specifically address what position to take, putting
aside the authorization of appeals. One of the curious
aspects of the Office was that all government appeals had
to be authorized there. Inevitably there were policy
decisions to be taken, but they were usually easy ones.
Most cases on the merits in the Supreme Court require
some degree of policy decision which was exclusively
the responsibility of the Solicitor General. We would
make recommendations, we’d discuss it and so on, but
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Mr. Schultz:
Mr. Gardner:
it was his decision. On most days I never undertook to
trouble the Solicitor General with the appeal
authorization.
One issue that I treasure,–I may treasure it so
much that I may be repeating myself. The Post Office,
which at that time was by and large a agency, directed
by Catholic politicians, undertook to ban from the mail a
magazine called The Nudist. The District Court enjoined
the banning. I said they couldn’t appeal it and there
arose a storm. They demanded a personal audience with
the Solicitor General, Francis Biddle, and about eight
portly gentlemen armed with law books marched over and we
sat down for a conference. They handed him a copy of the
magazine and said “this is what your young man says the
mails have to carry.” Biddle carefully examined each
page as he turned through the magazine. Everybody sat in
silence awaiting the final judgment. He finally got to
the back cover and he put it down and he said, “Pretty
little girls, aren’t they?” I don’t believe the Post
Office ever again undertook to take an issue to the
Solicitor General.
What was the work load like? How hectic was the pace?
I would say the Office was overworked, except that the
summer time was very slack. The Court wasn’t in session
and there was no routine flow of cases. It seems to me
that when the Court was in session there would be one or
two nights a week when you hadn’t completed your work
and had to stay at it. t•Je had very good relationships
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with the Printing Office. I guess I participated in
petty corruption. Each Christmas I used to take a bottle
of & good scotch down to the night superintendent. If we
got a brief there before midnight, we’d have it on our
desks in the morning printed or in proof, whichever was
needed.
The Solicitor General’s review varied according to
the Solicitor General, and, to a degree, according to his
schedule. The amount of review that we, the working
lawyers, gave to drafts that came up from the divisions
depended entirely on the individual division. Now to
illustrate the latter first, the Antitrust Division
through my time had first-rate lawyers. Everybody was
very good. Beyond that, their records were enormous and
there is a presumption in favor of accepting their
mastery of a ten-volume record. We took as our
responsibility, with every division other than Antitrust,
that we were responsible for the record as well as the
brief except in very rare exceptions. But with
Antitrust, we tended to take the record on faith, then
simply to go at the law, and even then to go at the brief
more as a literary editing job than a legal research job.
At the other extreme were two divisions, the
Criminal Division and the Lands Division and in each
case our practice would be to read over the brief more
or less rapidly and then to pull out a yellow pad and
start from scratch. It was almost never anything that
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we could use. When Carl MacFarland came to the Lands
Division, he largely changed their condition. He was
like• a corporate slave driver, though he came out of, I
guess, the University of Virginia as a law school
professor. He brought a great deal of order to the
division and he brought in some capable brief writers.
The Claims Division was very well run by my frequent
antagonist and later partner, Frank Shea.
In general, I would suppose, a brief on the merits
would be assigned to one of the attorneys in the
Solicitor General’s office where three days to a week
would be devoted to review, revision, etc. And then,
what happened after that depended on the Solicitor
General and his degree of confidence and the degree of
competing concerns. Reed would go over every brief on
the merits — often in consultation with the attorney and
we would discuss it. I remember his once saying, “Why
don’t you sit down and stop that God Damn whistling.” I
was waiting for him to make up his mind. It didn’t seem
to me that he needed as long as it took. Less important
briefs, such as those in opposition or petitions, I
believe would go through his office, but didn’t get much
of his attention.
Jackson and Biddle delegated a great deal more
responsibility. If it was a case that Jackson was going
to argue, he would get into it throughly, and the brief
and record would go to him. Apart from his cases, only
the most important ones which I thought needed his
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•
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
participation would come to him. By and large, the great
part of the work was left to the staff.
If it was not a case for the Solicitor General, the
attorneys would have to go over the record and on their
own write or revise the draft brief from the Division or
agency. When I was First Assistant I would review, at
least, in a perfunctory way, all briefs except tax briefs
which would go to Arnold Raum. I think it was only when
more difficult Solicitors General later came along that
the work of the staff attorney was invariably reviewed.
I understand that Erwin Griswold wouldn’t let a postcard
go out of the office without his going over it in person.
He was a very good Solicitor General but I would not like
to work under so close a review.
I’m not so sure, but I rather believe that Archie Cox
also reviewed everything personally. As to the others, I
don’t know.
Did you typically work long hours, nights and weekends?
I typically worked from about 10 until 6 or 7:00 p.m. If
we were behind on a brief, I would work into the night as
long as necessary and so too for weekends. There wasn’t
any typical pattern one way or another.
And you worked for, I think, four Solicitor Generals:
Reed, Jackson, Biddle and Fahy. Is that correct?
Yes, but only briefly for Fahy. He and I were plainly
not going to be happy companions.
I wanted to ask you to describe each one of them as a
supervisor, as a lawyer and as Solicitor General.
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Mr. Gardner:
Mr. Schultz?
Mr. Gardner:
It would be pretty presumptuous of me. The sinner can
pass judgment on the saints, but it would be worthless.
I can edit it out.
Reed was enormously better than J. Crawford Biggs of whom
Stone once said, “he was not fit to argue a cow case,
unless the cow was sick.” Reed was a good competent, not
brilliant, not quick attorney, but solid, and I was happy
enough to be working for him.
He was succeeded by Jackson who was a brilliant advocate,
remarkably deft in his touch and with remarkable
instincts about what to emphasize and not to emphasize.
There was an important case that he was going to
argue and I more or less abandoned any feeling of
responsibility for mastering the record. I knew he would
do it and do it as well or better than I possibly could.
This produced an unfortunate result. The case involved
the validity of Dennison Dam, a major source for the
Southwest Power business. It was attacked as an
unconstitutional exercise of federal power and was
justified chiefly on grounds of the general welfare
clause, which was a fairly anemic reed to lean on in
those days. I went to the argument and remember waiting
and walking up and down the aisle on the edges of the
court room with Jackson. He said it was a consolation
that I always knew the record perfectly, since he hadn’t
looked at it. I told him that I didn’t look at it
either, since it was a consolation for me that he was
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
going to. So, we went in. The angels took care to look
out for him. He didn’t get a single question on the
record during an hour of argument.
Biddle was an absolutely delightful man, quite the
most charming person I have ever worked for. He was not
a particularly good advocate. He too left the brief
writing to me and how he prepared himself for his own
oral arguments, I have no idea. I didn’t participate in
it; I’m not sure what he did. But he was a man of superb
poise, confidence, and graciousness. In terms of living
a pleasant life, I’d rather have him than any Solicitor
General that I worked for, but not as an advocate. He
had no interest in reading the briefs. When we had a
policy problem, his judgments were fairly good. Of those
three Solicitor Generals, I would put him at the bottom
in terms of legal skills and ability, and at the top in
terms of personality.
What happened to him?
He became Attorney General and then Truman removed him
and, God help us, put in Tom Clark who was a much
inferior selection. I had just come back from the War
and made a courtesy call on Biddle. Oh, I’ve told you
this, I’m sure at our last meeting. The lovely
circumstances of his resignation as Attorney General,
didn’t I?
No.
Well, if it were anybody but Biddle, I wouldn’t believe a
word of this tale.
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Oh, you told us this at lunch, but go ahead.
The appointment secretary, Matt Connolly, phoned Biddle
to say the President would like his resignation. Biddle
said he was a cabinet member and would not resign on a
clerk’s call, but would be happy to honor the President’s
own request. Truman called him to the White House and
they had a very pleasant chat, including Biddle’s resignation.
Then, Biddle said “As I was leaving, I leaned
over and patted him on the shoulder and said, ‘Now,
Harry, that wasn’t so bad, was it?'” As I say, I believe
it was absolutely true but had it been anyone else, I
wouldn’t believe a word. He then was Chief Justice of
the Nuremberg Tribunal where, oddly enough, in Nuremberg,
he was an exceedingly successful Chief Justice. There,
the principal job was keeping the British, the French and
the Russians, and ourselves on a tolerable speaking
acquaintance at least, and not having the whole thing
blow up, and for that Biddle was superb. He knew the
issues well enough and he was a thoroughly charming
person and he kept everyone contented.
Again, oddly enough, Jackson did a remarkably bad job as
a prosecutor. Perhaps remarkably bad is too strong a
word. He had turmoil in the prosecuting staff, according
to those who were there, and his judgment was said to be
erratic. I wasn’t there.
Did Jackson go on to be Attorney General and to the
Supreme Court and then left the Court temporarily, to be
prosecutor?
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l
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Temporarily, which a good many on the Court felt was
improper and I would agree with them. My own relations
with· the prosecution were fortunate. When V.E. day came,
I burned all of my files, despite the lesser need for
security, and went off with a companion for a three-day
trip to Munich and Bechtesgarten because I couldn’t get
out of Heidelberg, our headquarters. When I came back to
London, I learned that Jackson had been searching for me
everywhere. So I went into hiding. I had two telephone
numbers, one so that any unidentified caller was to be
told that I had gone to an unknown destination, and
another which I had given to the transport people, meant
that I was to be run down no matter where I was. I
survived about a week in London before I was able to get
a flight back home successtully and then got on a small
plane from London to go to Prestwick, then used for
trans-Atlantic flights. Everybody who traveled in those
days, of course, was in uniform, and I sat down and then
noticed that a civilian had come in and sat down next to
me. I didn’t pay any attention to him until I wondered
what a civilian would be doing traveling on a military
airplane at this point. I looked around after awhile and
it was Jackson.
He found you.
I was caught. Actually, it was good that I was caught.
I told him that I wanted to go home. I had been away for
almost two years. He canceled his requisition for
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Mr. Schultz:
Mr. Gardner:
me; this probably would not have happened if I had not
been apprehended by him.
Fahy and I didn’t get along at all. He was able,
and widely respected and I’m not sure that I did not bear
much of the blame for our difficulties. They were
principally two: (1) Fahy was a really solemn man and
didn’t easily accept levity. (2) I had been accustomed to
running the office. He was Acting Solicitor General for
about three months, waiting his nomination, which was
held up a very long time because, I was told on pretty
good authority, Roosevelt had told Tommy Corcoran that he
would appoint him as the next Solicitor General, and had
promised Felix Frankfurter that he would never appoint
Tommy Corcoran, so he solved that by making no
appointment. It was my great, and on the whole
irritating, concern that Fahy, during the three months he
was Acting Solicitor General, thought he was the
Solicitor General, and I thought he was only an Acting
Solicitor General who was undertaking to reexamine things
that had been settled by his predecessors. I didn’t at
all like working with him, so I left. He was able and
certainly conscientious, but not my cup of tea.
During those years and during your year clerking on the
Court, you must have seen a large number of arguments.
Who do you recall as being a great advocate — Supreme
Court advocate — of those times?
The best, I think, was George Wharton Pepper. He was a
good lawyer and also a remarkably capable theatrical
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Mr. Schultz:
Mr. Gardner:
actor, and exploited the combination of legal ability and
dramatic ability. I once had a case down there and he
argued the one before me. Ordinarily, you are filled
with impatience to get that fellow out of the way and let
the Court get down to important business — your own
case. Pepper had a case involving a patent on a washing
machine — the case before me. He held my attention
riveted throughout his presentation of the patent issue.
That’s a magical feat. And I’d put Bob Jackson, I’d put
Bob next to him. Nothing like the theatrics but a very
able mind, with sound judgment and a good manner. The
third was a thoroughly distasteful man, Fritz Wiener.
Could you spell that?
Wiener. W-I-E-N-E-R. There had been an enormous case
involving the Northern Pacific Railroad and land grants
going back around for a hundred years with about sixty
subordinate issues. Someone, probably Biggs, had hired a
man thought to be outstanding at the Boston Bar who made
the most God-awful hash out of an argument that ever
occurred. The Court just gave up since they couldn’t
decide it at all, and set the case for reargument. Reed
or Jackson and I, with some apprehension, decided to try
Fritz Wiener, then a senior but not top attorney in one
of the divisions. He got on top of that vast collection
of issues and made the case perfectly plain. He
presented the case without a single note for two hours
and won the case hands-down. And, that’s the only
Wiener argument I had myself seen, but I understand
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I
Mr. Schultz:
Mr. Gardner:
there were others. He was always very good.
He happened to be quite offensive personally.
Nobody could put up with him. Frankfurter and I had at
least a two-year battle about Wiener. He kept insisting
that Fritz ought to be brought up to the Solicitor
General’s Office, and I kept saying that in that office
he’d have to do more than write a brief and make an
argument. He couldn’t possibly get along with the
divisions and agencies that he would have to deal with.
I don’t know, but I think he may have been brought up to
the S.G. ‘s Office after I left. It didn’t occur to me at
the time — it certainly does now — how grossly improper
it was for Felix to be trying to dictate who should work
in the S.G.’s office to present arguments to him.
Do you recall any other interactions with Justice
Frankfurter, involving cases or similar kinds of issues?
Not involving cases; involving people, yes. He had been
meddling in that area almost all of his adult life. I
had at least two long sessions with him when we
differed about an issue or person and a good many phone
calls over the years. I was never a Frankfurter man. I
never went to Harvard. He viewed me simply as one of the
people he wanted to keep abreast to ensure that they
followed his advice. He told me, I think accurately,
that I was getting near the end of my service, adding
that I wasn’t meant for private practice. I should
concentrate on teaching. And I thought,
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
damn, he is probably right. I still think he was
probably right. I survived the world of private practice
rather well only because of a few strokes of good
fortune. I could otherwise have spent half a lifetime in
a frustrated condition. Getting clients is terribly
important in the private practice of law. I am not
naturally gifted in that area and managed only by good
fortune to do well.
Did you ever see John w. Davis?
Never did.
Are there any other memorable arguments or incidents that
you remember doing arguments on?
Wait. I remember seeing John W. Davis argue when I was a
clerk. This was in the Gold Clause cases. Clerks then
didn’t work in the Supreme Court building. So it was
kind of a special occasion to hear arguments.
Because the Court was in the Senate.
The clerks worked where the Justices lived. I went down
and listened to that argument. I don’t remember much
about Davis in particular. But another man who was
representing Bankers’ Trust was a typical New York lawyer
of prominence. He had a plump stomach, white hair, and
white piping on his vest. He made a dramatic gesture and
out popped his false teeth. He caught the teeth at knee
level and put them back in his mouth and continued
without diminution in aplomb or the slightest deviation
in his argument.
Reed fainted at the end of an argument?
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•
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
In the Agric ultural Adjustment arguments.
What argument?
Agriculture Adjustment Act argument. Reed had been
working too hard pr eparing it and the strain of the
argument plus the fact that it wasn’t going terribly well
proved too much and he fainted.
What happened then?
It was near the end, and he was carried out. The Court
decided against him.
Did you have any particular strategies or habits or do
you have any observations on brief writing or arguments
or preparing for argument?
No, I didn’t. Indeed, when Bob Stern was in the
Solicitor General’s Office for a long time and undertook
afterward to write a case book or a text book, I refused
to help him. I always thought it was silly, that one
couldn’t write a case book on that subject. In the first
place, the basic requirement is natural wit and
intelligence which you”re not going to get out of a case
book. Second, the most desirable means of preparation
depends entirely on the man and whatever mechanics he
finds useful. And, indeed, all the time I presented, I
suppose, maybe a hundred oral arguments before Courts or
agency tribunals but never developed a standard method of
preparation. One thing I did not like was the
presentation of a practice or “moot co urt” argument to my
colleagues, which I always refused to do.
You never participated in a moot court before your
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arguments?
No, because chiefly, I think, because I started out in
the S.G. •s Office and there wasn’t time to develop an
argument, try it out, refurbish it, and then present it.
The idea of the moot court argument was completely alien
to me. The way I rationalized it was in part because a
successful argument depends to a large degree upon a
steady flow of adrenalin that keeps you on your toes.
That adrenalin flow is a little hard to get in a moot
court. Only late in life did I adopt the practice of
dispensing with notes. Of course, I never read an
argument. It’s the surest way to lose a case but, most
of the time, I had notes in front of me, chiefly outlined
notes, in case of need. Following the example of a very
young partner who put a case in the Supreme Court without
a note before him, I thought I’d try it and I did. You
make it a very severe sacrifice of absolute orderliness
and your phrasing is inelegant. But you’re probably not
going to be able to make a polished argument anyway
because the Supreme Court now views oral argument as a
time for them to talk, rather than to listen. The
apparent spontaneity of a noteless argument keeps the
attention of the Court really better than trying to cause
the Justices to go down a carefully thought-out path.
I think it all comes down to there just isn’t
anything useful to be said in the way of general rules
beyond the obvious. Don’t try to be funny. Prepare
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your argument with an eye to flexibility. Don”t
interrupt the Justices talking to you — a bad habit I
have never wholly overcome. Chief Justice Hughes had the
same bad habit, which produced a startling result in one
case. I was arguing a case in which the state court had
enjoined the local regional manager of the Bureau of Land
Management. The ranchers sought to enjoin the collection
of minimal fees for grazing cattle on public lands. I
worked very hard on the merits and had it in pretty good
shape but also worked on the suit against the United
States which was the same as always — very uncertain.
The day before the argument, I suddenly wondered,
now is there authority for state courts to enjoin a
federal official proceeding to enforce a federal regulation
under a federal statute. It seemed to me to be a
nice question. I spent the evening before the argument
hunting for authority one way or the other and couldn’t
find it. I presented the point anyway and was going to,
I thought, alert the Justices of the issue and win their
hearts and affection by commendable candor.
I had a sentence worked out that I started to use.
The sentence was, “I have not found any case to support
or to contradict this point. It is true I did not start
looking until last night.” I thought that might give
them a warm feeling for an honest lad. Hughes
interrupted me in the middle of the sentence. He said,
“Mr. Gardner, the Court is satisfied that, if you cannot
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find any case, there is none.” Well, I could have said,
“Your Honor, you ought to let me finish the sentence in
which case I would have told you that I have barely
started looking.” But to my shame I just remained quiet.
By the grace of the good God if there was such a case, it
didn’t turn up.
You said you probably argued about 100 cases in one place
or another. Do you know how many before the Supreme
Court?
I counted once. I had about 25 when I was at the
Solicitor General’s office and only about four in private
practice.
That’s a lot. And what were the most significant cases
that you worked on when you were at the Solicitor
General’s office?
It’s easiest and it’s simplest to explain the cases I did
not work on. My second year there was the year that the
New Deal crisis was approaching with the Agriculture
Adjustment Act, the National Labor Relations Act, and the
Social Security Act, all under challenge before the
Supreme Court. Those were divided among the senior
attorneys in the office. Horsky and I were just
completing our first year. Reed said one of us would
serve as an assistant in that work and the other would
carry on the routine work in the Solicitor General’s
Office, getting the briefs written and the arguments
prepared. And, I much preferred unsupervised work on
unimportant cases to being an assistant in important
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cases, so I leapt greedily for the routine, and didn’t
work on any of those constitutional Goliaths.
Are ·there any cases for arguments that stand out in your
mind?
No, no one is prominent in my mind. You’re now talking
about my arguments?
Your arguments or briefs that you wrote.
One brief which I wrote was in a case called The United
States v. Wood, which involved the constitutionality of
government employees sitting on juries in the District of
Columbia criminal case. The Court some years before had
held this to violate due process and the obstacles in the
United States Attorney’s Office were very great. Too
many potential jurors were government employees. I had
the summer to work on it, the first full summer I was in
the S.G. ‘s Office, and I did a very thorough job. I went
back to the Year Books and I got cases in which, in those
days the jury did not have quite the same impartiality as
we try to ascribe to it now. In any event, there were
early records of the King’s servants and the sheriffs’
employees sitting on the jury. My opponent, a man named
Hughes, a rather prominent criminal lawyer here, said he
had just completed a draft and was most uncertain about
the Year Book cases. He was going out of town and he
wanted to send his brief to me and I was to revise it as
necessary and then send it to the printer.
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Your opponent?
My opponent, yes. The case showed a certain lack of
mistrust by the local bar. It was also that case which
Brian McMahon argued. He was an awfully nice fellow
heading the Criminal Division, to whom the concept of
reliance upon a Year Book case was of grave concern. He
took a room at the Hay Adams and we spent two days there
going over the case. At the argument, the Chief Justice
got rather fed up asking him questions and waiting for
him to ask me, and at the end was asking Mr. Gardner
directly. I think the free use of Year Book cases made a
lasting impression on several of the Justices there.
Brandeis, for example, asked me to tea and inquired about
my research techniques, and all of this I found really
gratifying.
I gather you had a excellent reputation with the Court
for doing thorough research.
Yes, I did and also all along I had a fairly good
standing with the Justice Divisions and the agencies, who
were reasonably comfortable with me. That was a lovely
job.
Did you like oral argument?
Oh yes.
In your book, you mention an incident with Thurman Arnold
which I thought was worth recording.
Thurman had moved from being the head of the Tax Division
where he was wildly out of place. He headed the
Antitrust Division succeeding Bob Jackson where he
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was beautifully attuned to the work. Along with a very
vigorous pursuit of traditional antitrust defendants, he
went.after the labor unions for many aspects of their
work that seemed to violate the antitrust laws. He lost
one case in the Supreme Court but didn’t give up. He
wanted to try it another way, but he lost in the Court of
Appeals and then encountered two obstacles: One, he
tried to file a cert petition while Solicitor General
Jackson was out of town.
The second misadventure was, at that time, I, and
almost everybody else I knew, believed in almost any kind
of dispute — the labor union was right and the employers
were wrong. There was a very heavy presumption in favor
of the labor movement. In any event, I refused to
authorize any petition for certiorari. Thurman hit the
ceiling and devoted some weeks to an attempt to get me
discharged on the stated grounds that I had too much
authority and too few years and too little judgment.
Many years later, we came together at some point. I said
he certainly ought to know that I now thought he was
right in that labor dispute. He said, ffWell, you ought
to know that I would not have had the fun of trying to
get you fired if I had thought there was any chance of
doing it.”
Did you get to know him in later years.
No, I knew him better when he was head of the Tax
Division because, before Arnold Raum came to the office,
I was the one who usually worked with the Tax Division.
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Thurman had one very large and important case involving
the reorganization of two oil companies. John w. Davis
was his opponent. It was a very complex tax problem and
I worked hard and long trying to get it into Thurman’s
head. He wasn’t the man to go from Section 1900(17) (h)
to the Third Section of Chapter 14 and then to Section 64
and on through that maze of technicalities on oral
argument. He made a respectable opening argument. He
opened his reply with a wonderful beginning for a man who
did not really understand his opponent. He said, “My
opponent has spent an hour throwing feathers to the sky
and I would like to catch a few before they hit the
ground.”
Was he an effective advocate?
He held your attention.
He was a character?
He was more than a character. Bob Jackson once said in
some book or some place that he was half cowboy and half
philosopher, but mostly cowboy. He was very forceful,
independent, an innovative thinker, and an admirable
writer. He was self-confident and he was very
extroverted.
He went from the Antitrust Division to the D.C. Circuit?
Yes.
For a short period?
Very short. He found working in private practice less
restrictive.
And did you know Judge Bazelon, at that time?
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No, not at that time, I knew him later.
You knew him later.
I kn·ew him well enough so that he wouldn’t speak to me.
I have to ask you, why is that?
My partner, and then my primary assistant, Bob Basseches,
had been his clerk and, when Bazelon had served for 25
years on the bench, Basseches persuaded me to write a
commemorative piece for one of the local law reviews.
After, in my draft paper, I’d done the routine recitation
of how great a man he was and summoned up the routine
illustrative cases, I thought I had earned a chance to
say my own piece. And so I undertook to suggest that the
Court of Appeals here in the District was doing an
entirely too close a review of the agencies in areas the
Court didn’t understand. There wasn’t any effective
appeal from its mistakes because, by and large, the
agencies had work they had to get done and couldn’t spend
two years trying to get Supreme Court reversal.
This was in the late ’70s?
Yes. But, in any event, I indicated considerable, mild
dissatisfaction and then did worse. Carl McGowan was a
fairly close friend (his wife, Jodie, is now my wife) who
had just finished a long re-examination of a Power
Commission case, composing a 75-page opinion which he
ended up complaining of labors the agencies had cast
upon him. In order to tease McGowan and to suggest that
he had brought those labors on himself I quoted a couple
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of paragraph s from his opinion. But Bazelon didn’t like
the criticism of the Court, I gather, and then he
misunderstood my long quote from McGowan with which I
ended the article. “He writes about me and ends up with
a long quote about McGowan,” he told some cocktail
parties. For some years he wouldn’t speak to me when we
chanced to meet. Until one Thanksgiving we went out to
Basseches’ home for Thanksgiving dinner and Bazelon and
his wife were there. Bazelon, by that time, had slipped
rather badly; he had Alzheimer’s and he was delighted to
see a familiar face and thought that as the face was
familiar, so we were good friends. My wife, observing
his friendliness, said, “He’s sick, he’s sicker than he
knows.”
How many years later was that?
Oh, about five years later, I guess. So, yes, I knew him
but there was not much mutual admiration.
Now Carl McGowan you mention and he later was on the D.C.
Circuit as well.
Oh yes.
Talk to me about him.
He was, I would put him, probably in the same group of
judges that I have most admired who were learned enough
but also had strong instincts for practicalities. Stone
and the younger Harlan, and Powell from the Supreme
Court, and Byron White also. Carl McGowan had that same
capacity, and in his cases it was particularly important
because during his ?ays on the Court, the Court of
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Appeals had gone thro u gh three ideological stations: One,
it started out in a conservat ive if not reactionary
position; it then shifted over to dominance by the
Bazelon and Leventhal liberalism, and has now swung back
to a divided, but essentially conservative, Court again.
Carl was there during throughout these changes and was a
wonderfully important member of the Court. He was a
balancing force, not alienated from nor allied with
either side. He’d make people see both sides. I’m
certain he was one of the greater of the Circuit Judges,
along with Learned Hand and Henry Friendly. He was about
the top.
What about Judge Leventhal, how did you know him?
I knew him quite well, actually, he was second after me
as a Stone law clerk, and immediately after Torn Harris.
The three of us knew each other pretty well. For about a
year or so he worked for me in the Solicitor General’s
Office when I was Principal Assistant there and we’ve
been more or less friendly throughout the years since
then.
What was your opinion of him as Judge?
He lacks nothing in terms of brilliance or literary
skills. But I think he was sometimes rather lacking in
good sense. On occasion, he like Scalia, was unable to
look at the results his decision would produce in the
real world.
Would you have predicted that about Leventhal from what
you knew of him when he \•1as young?
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Not really, because he had, in terms of Leventhal
himself, he had a highly practical behavior. He helped
found a very good law firm and then became General
Counsel of the Democratic National Committee.
We’ll stop there.