– 42 –
This interview is being conducted on behalf of the Oral History Project of the District of
Columbia Circuit. The interviewee is David Ginsburg. The interviewer if Jeffrey F. Liss. This
session took place on the 15th day of July 1998 at 10:40 a.m.
Mr. Liss: David, where we left off last time was in the Nazi war camps and I
thought what we might turn to today is your return to the U.S. and your entry into private
practice. So if you could bring us up to that point I would appreciate it.
Mr. Ginsburg: The latter part of 1945, I was still in Berlin, I had attended the
Potsdam Conference, comprised of the four powers, England, France, the Russians and
ourselves. The basic problem was how to govern Germany after the war. There were other
problems. I worked with General Clay and the others in the group through the rest of that year.
In the spring, I went to Paris, for the Paris Peace Conference on behalf of General Clay as an
observer, and reported back to him. By that time I had been so-called civilianized, and began to
make plans to leave the Army. The war with Japan was still going on and the military was
moving east, but I had been in the army now for nearly four years and it was time to go home.
In mid-1946 I returned to the United States. My father had died; I took my mother for a
vacation and then came back to Washington. I visited her in Huntington, preparing for our
vacation in Virginia Beach, and we spent two or three weeks at the beach. I took her back to
Huntington and returned to Washington.
What was I to do? I had no records, no books, no lists of contacts. I knew very few
people here in the city, I had been in government since 1935. So I concluded that I should find
out where I wanted to live for the rest of my life. I had some money saved up during the wartime
years. I visited New York and talked with some of the firms there, but I didn’t want to practice
in New York. I went to Philadelphia and was interviewed by some firms there; I liked
– 43 –
Philadelphia. I went on to Chicago, to Denver, visited L.A. and then San Francisco. I liked San
Francisco very much but I felt that a stranger, particularly a Jewish stranger, coming to San
Francisco would have a very tough time. I returned to Washington a bit depressed. While
walking along Connecticut Avenue, just a few blocks from where we are sitting, I came by 1147
Connecticut Avenue: a real estate man was standing outside, whom I knew; he was smoking. I
stopped to talk and he asked what I was doing. I said, “Trying to decide what to do.” He said, “I
have some offices for rent. Why don’t you go up and look at them. Five offices, $90.00 a
month.” They were attractive, but five offices? I decided to take a shot at opening alone, and
that’s what I did. I bought a desk, a U.S. Code and a dictionary. I had a phone installed and then
concentrated on mailing an announcement. In those days, a law office announcement consisted
of one’s name, the fact that you are opening an office, its address and telephone number. That
was it. I had no prepared lists and simply tried to recall names. I didn’t know where anyone
whom I had known before the war would be. So I mailed perhaps thirty or forty notices, mostly
to relatives. Meanwhile I decided to write a law review article or two to test my research
capabilities and to record the conclusions of our wartime economic stabilization effort.
Mr. Liss: Was the notion that you would write these as a way of drawing
attention to yourself and the practice and getting started?
Mr. Ginsburg: Yes. The first article I wrote was about the Office of Price
Administration and the work that we had done. In fact, although not as a consequence of any
article, my very first client was McGregor Sportswear. The company was being prosecuted for
violating some price regulations; I took the case. After the Office of Price Administration had
closed its doors, leftover cases were sent to the Justice Department. We negotiated with the
– 44 –
Justice Department and resolved the lawsuit. One client led to another and I represented them
myself for awhile, with no problem. Mostly I was dealing with areas of the law that were almost
foreign to me–the enforcement aspects of price regulations. Often they threatened to be costly
for the client, but it proved possible to work things out. I tried to do so on a fair basis, console
the client if he had to pay, and congratulate him if he didn’t.
Mr. Liss: Was there an established administrative law structure for these hearings
the way we have today?
Mr. Ginsburg: Lawsuits were pending everywhere. McGregor’s was in New
Jersey; others were around the country. I remember two in Oklahoma. I had had regional and
district offices throughout the country. They had, of course, turned over all of their pending
matters to the Justice Department, and they were all there. These were troublesome, but not
greatly complex or at least didn’t seem to be at the time. Some cases we had to try.
Mr. Liss: This would have been before federal judges?
Mr. Ginsburg: Yes, and that gave me some useful trial experience. When you are
doing that alone, it’s not easy.
Mr. Liss: I bet.
Mr. Ginsburg: That continued for a while. About eight or ten months later,
perhaps somewhat longer, I remember going across the street to Fan and Bill’s restaurant for
lunch where Duke Zeibert was the maitre’d’. I was having lunch alone until a close friend came
by with whom, and others, I had shared a house before the war. It was Harold Leventhal, still in
uniform; he had just left the Coast Guard and had yet to settle down. He asked what I was doing.
I told him, and pointed to the office across the street. Harold asked, “Do you have any room?” I
– 45 –
said “Sure, come over.” We joined forces immediately as partners.
Mr. Liss: Was there a partnership agreement? I bet not.
Mr. Ginsburg: Nothing in writing. We simply agreed on income shares and
draws. Harold and I never had any other agreements. That was the beginning of our firm. When
Harold joined it was already toward or nearly the end of 046. In 047, I had a call from the State
Department, that General Clay wanted to meet with me. He was joining Secretary of State
George Marshall for a trip to Moscow to consider what was to be done and how, with Germany,
and how to deal with the problem of German assets in Austria. Germany had, of course, merged
Austria into the greater Reich and had built plants and facilities of all sorts throughout Austria, to
safeguard them and in anticipation of war with Russia. They had belonged to Germany. Who
was to get them? The Russians? The United States? To be divided? We didn’t even know what
they comprised. Would I go to Moscow? I spoke with another friend, Ben Cohen, who was also
in the State Department and going to Moscow.
Mr. Liss: This would be as an unpaid advisor on the trip?
Mr. Ginsburg: It was theoretically paid but I have no recollection of what the
compensation was, if any. It may not have been paid, I don’t recall. But, it would take me away
from the office for awhile. I needed Harold’s consent which he gave immediately. I went off in
January for a few days in Moscow; not much of anything could be decided about Germany. By
that time Stalin must have had his own plans well in mind. But, they agreed on convening within
Vienna a committee of experts to identify the assets and to work out what was to be done with
them. I was asked to serve as the U.S. head of the Committee of Experts and as the deputy to the
former head of the Finance Division in Berlin, Joseph Dodge, who would serve as U.S.
– 46 –
Chairman of the Austrian Treaty Commission (to establish Austria as a separate state). Mr.
Dodge was head of the Detroit Bank in Detroit, Michigan and had headed the Finance Division
in Berlin. Moscow was followed by meetings in Washington at the State Department and
elsewhere to obtain the background for the work ahead. In early spring I left the office, went to
Vienna, and established myself there in the Bristol Hotel. We had offices at the Embassy and I
spent most of the year negotiating with the Russians, the French, and the British about German
assets in Austria.
Mr. Liss: Was post-war Vienna rather grim?
Mr. Ginsburg: The city closely resembled The Third Man moving picture: cold,
wet weather, hunger, poverty, misery, blackness, very little heat, very little power available,
much destruction. But we had work to do and we did it day after day, sometimes working
through nights and all of that. We came to know Foreign Minister Gruber of Austria; we worked
closely with him, and obtained a good deal of help from him and his associates. We negotiated
until late summer and, in the fall, in London, there was what turned out to be the last meeting of
the Council of Foreign Ministers. It was attended by Secretary Marshall, Ernest Bevin for
Britain, Bidault for France, and Molotov for Russia. We had meetings each morning with the
Secretary before the four-party meetings began. I learned a little more about foreign affairs. This
was a time when France was threatened, de Gaulle was the President of France, and there was
fear that communists might take over the country. The Secretary sent George Kennan, John
Foster Dulles and others to France. Dulles and I shared an office. I had known his sister,
Eleanor, in Vienna where she was stationed at our Embassy. There was fear that the Russians
would move forward. At one point, our forces were alerted. The alert was essentially designed
– 47 –
to notify the Russians that a forward move would be rash. Nothing untoward happened, although
tension and difficulty continued between the allies and the Soviet Union. When I attended the
Paris Peace Conference in early 046, I remember a speech by Molotov that frightened me. We are
talking now about the beginnings of the Cold War, menacing, direct, hostile.
Mr. Liss: What was the gist of it?
Mr. Ginsburg: At that time the Allies were dealing with the re-establishment of
the states of Eastern Europe, restoring Poland, Hungary and Czechoslovakia to the international
community. We were also dealing with lost assets, impoverishment and destruction. We were
seeking to restore the independence of the Eastern European nations. The Soviets were, of
course, seeking to maintain their control, occupation and hegemony. I remember leaving Paris
and later reporting that this was not an ordinary speech dealing with a common problem. This
was a verbal attack, and should be viewed as such. Other better qualified people were dealing
with all these matters; I was merely an onlooker. At the end of ’47, after nearly a year abroad,
beginning in Moscow, Vienna, and then London, around Thanksgiving, I returned home by the
Queen Mary. We traveled by boat then, for the most part, and I returned finally to the office.
Mr. Liss: I am curious when you spoke about travel, just going back for a second,
when you visited firms in Philadelphia, New York, Denver, San Francisco how did you travel on
those trips?
Mr. Ginsburg: Railroad.
Mr. Liss: Railroad all the way?
Mr. Ginsburg: All the way. I used only the railroad and had researched the
major firms; in each city I would call two or three of the firms for appointments. All were
– 48 –
courteous and friendly but, ultimately, I set up alone.
Mr. Liss: I interrupted you, I’m sorry.
Mr. Ginsburg: So, in Washington, I returned to practice again with Harold
Mr. Liss: Had the firm maintained its existence in the interim?
Mr. Ginsburg: Yes. Harold was doing fine. It’s not that we had any great practice
by a long shot. But we could both live on what we were earning. Harold married. We added
people. Harold also taught at Yale. I concentrated on work at the office. And a diverse practice
There was no specialization of any kind. We handled everything that came in the office,
from divorces to small corporate mergers, litigation, accident cases, wills and estates and appellate
work. We represented an early entry into what became the field of electronics, a company called
Melpar in Virginia. I began to learn something of the work of these companies with our own
military in Dayton, and occasionally visited there. Melpar produced materials for the military:
Navy, Army, Air Force. Melpar taught me the importance of what ultimately came to Northern
Virginia. The firm grew; Harold and I had agreed that we would not grow larger than ten lawyers,
and we didn’t. At one point there may have been eleven or twelve, but the idea was to remain
small so that an experienced lawyer would deal with a client, counsel with the client, negotiate if
necessary on the client’s behalf; file suit if unavoidable and try the case. If appealed, he took it to
appeal; if warranted he’d try to go to the Supreme Court. If I had a problem and wanted to talk
about it, I would talk with Leventhal and, similarly, he with me. One time I had to file a brief
within a period of a day or two and needed help. Harold dropped what he was doing and worked
– 49 –
with me. He lay on a couch similar to the one in front of us; I was writing, he was talking; I
would intervene, he would respond and, between us, we had a draft brief by morning. It was that
kind of practice, extremely close. We took no one as an associate unless we were in close
agreement. Our first two associates were women: Harriet Margolies, wife of a former colleague,
Dan Margolies, and Nancy Wechsler, wife of a journalist, James Wechsler. Nancy was the
daughter of a prominent New York lawyer. There weren’t many women in law school, even then.
In the early ’30’s, there were none at the Harvard Law School.
Mr. Liss: We are now talking the early fifties?
Mr. Ginsburg: The late 040s, 049, 050, 051. Both women were able and both
extraordinarily helpful to us. The firm grew and we were soon eight or ten lawyers, and we all
practiced the same way. Both Harold and I became somewhat involved with politics: Harold
with the Democratic National Committee, and I largely with Hubert Humphrey. In 048, I was in
Philadelphia when Hubert first came to notice. When the Southern Democrats walked out, he
made a great speech on civil liberties. It’s on my mind because I saw a film about this episode
last night on public television. It was a happy period. I saw a great deal of the Rauhs; Joe and
his wife, Olie, were friends from law school. Life was pleasant. I enjoyed the work. We were
not on an assembly line dealing with a portion of a product. We were, in fact, dealing with the
whole—dealing with an entire case, not simply an aspect.
Mr. Liss: What was the basis for your fees in those days? Was it time based or
flat fee?
Mr. Ginsburg: Time. I don’t recall what we were charging then, but it was $50 or
$75 an hour or something of that sort. If a client wanted to negotiate or couldn’t pay, we made
– 50 –
other arrangements.
Mr. Liss: With all the pressure today that so many lawyers feel for producing
billable hours, how were you able to avoid that pressure in those days?
Mr. Ginsburg: I don’t recall that we ever discussed billable hours. We were
simply concerned with whether there was enough money in the bank to pay the bills and to keep
us going. Harold and I both followed what was happening on the books. We had a bookkeeper,
who told us what we had and what we needed and that’s what we tried to get. It was a much
simpler way of life; we didn’t have big rents or big salaries to pay. Of course we knew
something about the larger firms, but we didn’t seek to emulate them. Ignorance was bliss then.
We didn’t know about many things that perhaps we should have known. We didn’t try to prepare
for the future or to insure that each associate would produce 2,000 billable hours or whatever it
was. These were not our concerns. The hard question in hiring was whether he or she was a
good lawyer, whether we could trust them with our clients. The complexities of today–the sums
that are needed, the time limitations that exist, the general counsels of the corporations with
whom we have to deal, their problems in relation to their CEOs, whether their budgets have been
increased or decreased….these were matters that didn’t affect us. Many lawyers in Washington
and elsewhere had to deal with these; we didn’t. It was the nature of our practice. We
represented corporations and others but always on particular problems. We organized
corporations and help set them up and we had to learn as we practiced; these are not matters that
are taught in law school; they are learned from books, guidance and experience after law school.
That was a quite wonderful period. We were just beginning, the practice was growing; we were
acquiring a small staff; there was difficulty finding secretarial help. We did our own typing
– 51 –
whenever necessary. We used none of the equipment we have today, computers, copying
machines, or whatever. We used carbon paper for copies. We had telephones but no fax
machines. I look back with nostalgia but I am sure there were miseries, too. Time lessens pain
and exaggerates pleasure, but I deeply regret the change that we’ve had in the practice of the law.
It isn’t so much the burden of setting up an office or obtaining clients, it’s the nature of the
practice. We don’t have lawyer generalists anymore; we have specialists. Lawyers become
specialists in communications or in civil aviation, healthcare or whatever, and that’s what they
deal with. If I ask my older son to deal with a problem other than immigration, he’ll tell me that
he works only on immigration. I regret that. I think it’s less rewarding and lessens the utility of a
lawyer to the client. I know that today general counsels and others within larger corporations
seek specialists, someone who has lived his life dealing with 501(c)(3), or 604.2 but we didn’t
practice in that way then, at least not in our office. Every lawyer had to move out and deal with
whatever problems came into the office, and then do the research necessary to enable him to cope
with the problem.
Politics was almost an avocation. However, I don’t mean it in the sense of lobbying for
legislation. On the Hill, I came to know Johnson very early. Before that, I had come to know
Humphrey and visited him when he was Mayor of Minneapolis. I believed very early that he
would become a candidate for the presidency, and I thought that ultimately he would achieve the
presidency. He was a brilliant politician. Years later, in 1960, he was running against Kennedy
in West Virginia. There are 60 counties in that state, my state. I took time from the office, and
visited each of those 60 county seats; when I returned, I reassured him that, knowing my state
and its prejudices, there was no possibility that a Catholic could be nominated. Humphrey could
– 52 –
win the state, I said, and I urged him to run in West Virginia. Others gave him the same advice,
but I felt that I really knew. I was totally wrong. Money made a difference, Kennedy got the
nomination and support of West Virginia. Years later, this time in 068, I represented Humphrey
on the Platform Committee, concentrating on the Vietnam plank. ’68 in Chicago was difficult.
Leadership elements of the youth of the country had gravitated there, in the parks, sleeping
everywhere; it was a profanation of the city. On behalf of Humphrey, I negotiated with
representatives of Senator McCarthy, President Johnson and others a week before the convention
to get agreement on a plank. And finally we developed a draft. I was having dinner with Henry
Brandon on the Sunday night just before the convention that began the next day. Henry was then
a representative, I think, of The Sunday Times (London). A messenger brought word that the
chairman of the platform committee wanted to talk to me. He was later killed in a plane accident
in Alaska.
Mr. Liss: Boggs?
Mr. Ginsburg: Boggs, Hale Boggs.
Mr. Liss: Right.
Mr. Ginsburg: I immediately left to see Hale Boggs who opened by saying that he
was not going to remain in the position of being against either his President or his nominee, and
he wanted to clarify the situation before the convention considered the platform the following
day. If this couldn’t be done, he would resign. He telephoned President Johnson who was in
Texas; a young man answered but one could hear the President’s voice in the background. By
this time, you remember he had, on January 31 , announced that he wouldn’t run. We reviewed, st
word by word, the draft that I had so laboriously worked out with others and all but a few
– 53 –
changes were accepted, although grudgingly. LBJ made clear that if agreement couldn’t be
achieved, no one should be surprised if he came to the convention. I then went to Hubert’s suite
in the hotel, explained the situation in detail and recommended that he call Secretary of State
Rusk, discuss it with him and see what could be done. I had already talked with Mac Bundy and
Bill Bundy and many others involved with the issue. We had together worked out what I had
brought to the President, but it wasn’t to be. Humphrey’s suite on the top floor of the hotel was
partying and noisy; Hubert himself was alone in the bedroom; it was solitary and painful.
Mr. Liss: Had the personal relationship between Johnson and Humphrey
deteriorated badly by this point?
Mr. Ginsburg: I don’t think there was much of a personal working relationship at
all then. It was simply a question whether or not Humphrey would capitulate. He neither
capitulated nor did he agree. So, it came down to a debate at the convention between the forces
of HHH and those of Sen. McCarthy. A half dozen were to speak briefly on each side; we had to
write six speeches for Humphrey’s views and others prepared six speeches on Gene McCarthy’s
side. Humphrey was nominated. But the party was disemboweled. As a consequence, Nixon
was elected with all the problems he brought with him. The practice of the law with which we
are concerned here became for that period a secondary effort. Work went on; Harold was fully
involved with the Democratic National Committee; by ’68 he was on the bench.
Mr. Liss: When did he, as far as you know, first express an inclination to try to go
on the bench?
Mr. Ginsburg: Harold was a lawyer who, with a tort case, would first resort to
Corpus Juris and begin research with the origin of torts. He was an historian of every problem
– 54 –
that he dealt with. It was wonderful. A lawyer with his depth and skills in the office was a major
asset. But on the other hand, he had trouble finishing a case. I always thought—I never
discussed it with him before he raised it—he’d make a marvelous judge: careful, precise, exact,
studious, rational, hard-working, and responsible. At the time of the 064 convention in Atlantic
City, I remember first talking with him about the bench. There was an opening on the Court of
Appeals for the District; he thought that he would like to try for the opportunity. I agreed and
offered to help. He was by that time General Counsel of the Democratic National Committee
and he had to cope with all sorts of problems in the 064 convention. A southern rebellion forced
the Convention to decide which of two groups shall be seated from Mississippi. Harold had to
reconcile or find means to decide this and other difficult matters. He did a marvelous job that
was widely recognized. A number of others and I spoke openly with the President about Harold;
the nomination was supported and cleared by the Attorney General. There was some questioning
at the congressional hearing, but Harold was prepared and responsive.
Mr. Liss: Knowing Judge Leventhal as I did later on, and knowing what a
wonderful judge he was, it is hard to imagine what anyone would have questioned?
Mr. Ginsburg: I think he was charged, indirectly, with being “too liberal.” I don’t
recall the specific questions, but I remember talking with Harold about how to deal with this
particular issue if it came up; and it did come up. He handled it all well, and ultimately was
confirmed without problems. He went on the bench in ’65 and that’s when Mike Feldman joined
the firm. Mike had been with Kennedy as a lawyer in the White House, and, ultimately, served
the President as counsel for a period after Ted Sorensen left. Feldman was the number two
lawyer and ultimately became number one. Later he was uncomfortable in the Johnson
– 55 –
Administration as Johnson was uncomfortable with most, if not all, of the Kennedy people.
Bundy went to the Ford Foundation, Mike came here, and stepped into Harold’s shoes.
Mike was a different kind of lawyer, able and wonderful in terms of the contacts that he
had. Harold stepped out, and Mike came in; later we differed about growth since he felt it would
be unwise to try to hold the firm to a small, elite group. I recognized that with the clients he
might be able to reach, we would need more than a few, so I agreed that we would grow as
necessary and let it be at that. But I wanted to grow slowly, and he a little faster; we ultimately
grew to something like a hundred lawyers. Meanwhile, I argued a number of cases before the
Supreme Court, that was fun.
Mr. Liss: In what type of cases?
Mr. Ginsburg: One was given to me by the Supreme Court itself. There was a
problem in a West Virginia case; Frankfurter was on the Court and I’m quite sure arranged it.
The state had taken certain actions that were clearly, I thought, in violation of the law. The
question was how to remedy it. A lawsuit had been brought against the state, that had reached
the Supreme Court. The acting Attorney General of the State was a personal friend. After I got
into the case, and concluded the Supreme Court would reverse, I explained it to the W.Va.
Attorney General, and he decided to confess error. That case ended without argument.
Frankfurter was much amused and I enjoyed the effort.
In another case, I represented Henry Kissinger who had given his papers to the Library of
Congress. He’s an historian who kept copies of almost everything, including transcripts of
telephone conversations. The Reporters Committee for Freedom of the Press wanted access to
all of his papers, including the transcripts. When you say it so boldly to me it seems grotesque.
– 56 –
Who would be ready, via the transcripts, simply to open up his life to the media? The originals
of all state papers in Kissinger’s collection are with the State Department; he gave only copies to
the Library of Congress. The Reporters Committee filed a lawsuit; we defended in the District
I had advised that we would probably lose in the District and in the Court of Appeals, but
that we’d probably win in the Supreme Court. We lost in the District Court, and in the Court of
Appeals, and prevailed in the Supreme Court; access to the collection was denied. I had
concluded that 6 or 7 judges would regard this as an unlawful invasion of privacy. These are
mostly papers that the State Department will eventually revise and may publish as part of the
series of Foreign Affairs volumes of the United States. The State Department has the original
records (although not the transcripts of telephone conversations). The Department historians
produce and publish the foreign affairs history of the country. Happily, the Court came down
with a favorable decision.
Mr. Liss: Was doing Supreme Court cases something you set out to do, or did
they just come your way?
Mr. Ginsburg: Just came my way. This was the reward for practicing law. I had
a good many cases in the District Court and several in Courts of Appeal throughout the country.
I had a few cases in the Supreme Court. Not as many as I would have liked or enjoyed having,
but enough for a satisfying taste. These were the cases that gave one the most satisfaction to
work on. When you’re up before the Court, a prepared speech has little use. One has to deal with
the concerns of any of the nine judges, and respond to their questions in the course of a half an
hour. In that same half hour you must also try to reach what you yourself think are the critical
– 57 –
aspects of the case. Often that isn’t easy. The Court, at times, is a barrier to oral presentation. A
lawyer’s skill is demonstrated by his ability to weave into his replies what’s critical to the case so
that all critical elements get before the nine justices.
Mr. Liss: Focusing for a minute on the judges in this Circuit, on the Circuit
Court, in the District Court, are there any who come to mind as judges who, over the years,
particularly impressed you either positively, or not so positively?
Mr. Ginsburg: Chief Justice Burger. When Burger was on the Court of Appeals,
Harold was there. So, occasionally, I would lunch with Harold and Judge Burger would
sometimes join us. As a human being, I enjoyed him although I thought later that his interests
were primarily focused on the administration of the courts, not the judicial function. Nor did I
think he was able to hold the Court together as Chief Justice of the U.S. Supreme Court.
Douglas would occasionally say something about what was going on but not very much.
Douglas was never free—at least with me—with details about Court matters. The Court was
sharply divided at that time; now there’s considerably less attention given to the reasons why a
case is taken for review. Some of the Nine Old Men did better in this regard than some of our
younger justices do today. To be a good, not a great, but even a good, Justice on the Supreme
Court, takes much work. It takes a willingness not only to write, but to rewrite, and rewrite and
rewrite, and an obligation to explain why a case is being rejected that is at least as clear as why a
case is being accepted. This is to insure acceptance within the judicial community as well as the
public, represented by the media. There is an art to writing an opinion; it encompasses aspects of
drama as well as judicial tradition. Specificity is important as well as beauty in the choice of
language. All this can only emerge from a personality dedicated to the Court. When you’re
– 58 –
there, it must be viewed as a retreat. You’re focused on what comes before you. Yes, I know the
argument that one must be part of the world in order to deal with problems that come from the
world. But, in my view, significant public life, for a Justice, cannot be outside the Court. I doubt
that many there accept that view today. It’s not so much the need for reverence as awareness of
the importance and continuing significance of the decision and its acceptance by the parties and
the public. I read with sadness the books that tell us that law clerks are now drafting many
opinions. They should be free to speak for themselves; the Justices should speak for themselves
and do so cogently, eloquently and persuasively.
Mr. Liss: Would you apply these same values to the Circuit Court, the Courts of
Mr. Ginsburg: I don’t follow the Courts of Appeal with the same care that I
follow the Supreme Court. But there are some judges on the Courts of Appeal, not only in this
circuit, but throughout the country, who strike me as having great quality, originality and
independence. Reading their opinions one knows that a mind is truly at work on the problems
they identify. One may disagree with outcomes, but appreciate that someone has honestly
wrestled with the issues, thought through them, has digested and laid out the facts and with an
open mind has collated and presented the relevant law.
Mr. Liss: Who impresses you that way here?
Mr. Ginsburg: I’d rather not talk about that. I don’t think it’s a secret; those who
read, know. I doubt that a judicial appointment these days is as meaningful as it ought to be or,
indeed, as meaningful as it was some years back.
Mr. Liss: Do you mean to criticize the Senate in that observation?
– 59 –
Mr. Ginsburg: I had some experience there. I served for a brief period, either in
049 or 050 as the administrative assistant of Senator Matthew M. Neely of West Virginia. He
called one day and said that he would like to see me; he had an opening on his staff for an
administrative assistant; the United Mine Workers were aware about it and unless he filled the
post quickly, he would be under pressure to fill it with a UMW nominee. He didn’t want that
outcome. Would I take the job? I explained that I was in private practice and had to continue
work. He replied, “We’ll just make it so many hours a week and we’ll try to accommodate your
needs.” I took it for a year or so and each morning I would work with him and his problems, in
his office. That didn’t last, as I say, very long, but I came to know something of what goes on in
the Senate. I saw how a responsible senator worked and how he operated. The New Deal was
predicated on the assumption, I think a correct assumption, that many of the state legislatures,
were essentially corrupt. Members had been bought by corporations, institutions, individuals,
unions, others. Senator Neely faced that problem in the State of West Virginia. The UMW was
then an immensely powerful union headed by John L. Lewis. Neely wanted some independence
from their claims. He was seriously concerned with their problems but he needed breathing
room. The Federal Government of the New Deal effectively superseded the states in many
respects for problems that the states could not contend with because of the Depression, because
of corruption or for other reasons. Now we are returning to the states powers that for years have
been exercised by the federal government. In some matters that seems to me wise and correct; in
other matters, absurd. So, we’re still involved with the problems of federalism. The federal/state
relationship is an extraordinarily important one in our society and in our culture.
To politicize the issue is, I think, a mistake; it isn’t either/or. There are some things that
– 60 –
only the federal government can get done. Poverty in this country and the misery of the inner
city cannot be overcome solely with local resources. Health, education, social welfare—local
resources are insufficient to deal with them. There are many other issues that the states and the
municipalities can deal with more effectively than the federal government. The need for racial
equality requires support from both; some progress has been made, thanks mostly to LBJ; more is
When Johnson, as President, was in the White House, he called one day—this was about
mid-’65, maybe a little earlier. I had known him earlier but came to know him better when I was
in OPA as General Counsel, in ’41, ’42. Anyway, in ’65 he described a problem that existed with
the price of copper in Chile, what was to be done? The Chileans were going to increase the price
of copper and that could aggravate inflationary forces here—we were in the early stages of the
Vietnam war, taxes hadn’t been increased, and there was at least a threat of inflation. If the price
of Chilean copper was increased, the price of ours would follow. My feeling was that we should
send someone to the Chileans with resources in hand, explain our problem and seek to make it
advantageous for them to help us. He sent Harriman and it worked out well.
In the Fall of ’67, my children, my wife and I were on the West Coast. We were going
down the Salmon River. I got a call from the White House that there had been riots; this was at
the end of August. The President wanted to see me. One of the senators from Oregon and I
came back together. In Washington, I went to the White House immediately. By that time I had
read the papers. Black riots had broken out. There had been riots earlier in Watts in Los
Angeles. There had been recent riots in DC and elsewhere. Riots had broken out, too, in France,
but the problems of France were different.
– 61 –
In many small and some large communities in the U.S., where there had been black
rioting, police were uninstructed, uninformed and basically incapable of riot control. The danger
was that the police would freely use guns.
This was the Civil Rights period. Martin Luther King was leading and making sense.
The Black community was responding but the response was unguided, lacking local leadership.
When I first came into the Oval Office, the President described what the problems were, what he
wanted done. He was going to set up a commission. He wanted me to serve as the Executive
Director of the commission. At one point, he slammed his hand on the desk and said, “You can’t
tell me that somebody didn’t press a button and have all these cities, these communities erupt.
How could they all happen at about the same time?” The fear, of course, was that there was
communist involvement of some sort. That didn’t seem right to me then, and we later concluded
that it wasn’t true. Television and radio simply communicated facts across an area, and so in
New Jersey and in Michigan, Chicago and elsewhere, the black community listened and moved
into the streets. It was August, hot and humid, virtually no air conditioning in inner city areas.
Almost every riot began with a controversy between the police and a member of the community.
We investigated and brought in the CIA, the FBI and everybody else, to try to determine what
had happened. The conclusion? A spontaneous eruption as a consequence of the weather, bad
police/community relations and a lot of other things—certainly including the misery of living in
poverty. So I took another year off, in ’67, ’68. I left the office to serve as a dollar a year person
for work on the report and with the commission.
Mr. Liss: Literally, that’s the dollar a year program as in World War II?
Mr. Ginsburg: That’s right.
– 62 –
Mr. Liss: I didn’t realize it was still around in the ’60s.
Mr. Ginsburg: Well, that was the arrangement I made for that year and left
practice. There was one outburst at the end of August, early September of ’67. And then when
Robert Kennedy and Dr. Martin Luther King were killed in the spring, riots broke out again.
These were more serious. We were in the middle of the investigation at that time, and we could
see the trouble coming. I traveled Washington, at times with the Mayor and others, going from
place to place. We would try to find someone within the local community to tell us what was
happening, identify who could provide guidance and access to the rioters. In some areas
governors declared martial law. There were soldiers on the streets of Washington, and
elsewhere, with guns. It was difficult, and to some extent dangerous, but we avoided trouble.
Mr. Liss: Was the commission of one mind in the end product?
Mr. Ginsburg: In the end product, the answer is yes. There were marginal
differences among the members, but basically they agreed on the report. At one point there was a
threat that they might not agree, that there would be written statements of disagreement. This
was avoided. The critical observation in the report was that we were moving toward two
societies, one Black, one White, separate and unequal. Separately, everyone could accept, but
unequal? What do we mean by “equality?” Equality of opportunity?
Mr. Liss: I’m curious. How was the commission report actually written? Were
you, as the executive director the principal draftsman?
Mr. Ginsburg: The report was drafted by many people. We had groups dealing
with particular subjects, one group dealing with the facts, what happened. The President had
asked in his Executive Order, what happened? Why did it happen? How can we prevent it from
– 63 –
happening again? These were our three big issues. What happened? Why did it happen? And
how can we prevent it from happening again? The report was published at the end of March of
’68, just weeks before the President had said he would not run again. In the report, I had insisted,
and the Commission agreed, that we would tell the full story. It took about a million words.
We built up to about 200 people, and many worked on the report. I had an absolutely first
rate deputy, Victor Palmieri. The names of all the others are in the report.
The conclusions of the report, I believe, remain essentially valid. The notion that you can
deal with inner-city poverty and decay by developing local resources and nurturing energetic
leaders, I believe, is absurd. Conditions in the inner city have worsened. From the inner-city
we’ve lost many able Blacks who have moved to the suburbs. The inner-city now is more
miserable, and more dangerous than it was in 1968. This is apart from the fact that the inner-city
has been infiltrated, I don’t mean that in any invidious sense, by poor Hispanics—Latinos—who
have immigrated to the U.S. in massive numbers. Plus large numbers of illegals. Plus a
substantial number of Asians. For many Blacks midway up the ladder, the situation today is
better than it was in ’68. For others, it is worse. So that, much in the report about the training of
police and about the nature of police community relationships, remains relevant and important.
During preparation of the report, we arranged to have the FBI invite chiefs of police,
mayors and others to attend conferences for training, for exposure to problems that they might
have to face and attitudes that they would have to inculcate in their organizations in order to deal
with possible disorders.
I remember a meeting in Cincinnati with local Black leaders. The mayor of New York
was with us and two or three other members of the Commission. We were to meet in the
– 64 –
basement of a church. The church had a passageway leading to the basement from the outside
that descended by a grade to a basement door. At the church, men were standing, lined up on
either side of the passageway through which we walked into the church. As we passed, they spit
on us. It was frightening, but we were not harmed. Ultimately the meeting was peaceful, and I
think we did some good.
We gave the facts in the report, all that we could turn up. We checked data in ways well
beyond the efforts of lawyers checking for due diligence. We felt that if we understated or
overstated, victims and communities would know.
I sent the manuscript of the report to a private publisher on a Thursday. It was available
for sale in ten cities on Monday. It was later published, of course, by the government and others.
It was used as a basis for teaching in many universities throughout the country and is still being
Before this I had had no contact with the Black/White problem. I knew, of course, that
we had serious problems. I had been a founding member of Americans for Democratic Action, a
liberal group established essentially to separate those who supported the Soviets and the
communist viewpoint from liberals within our own country. We carefully limited membership to
noncommunists. And, of course, the communist group as well as ADA clearly supported the
Black position—ADA because of equity and decency, the others I suppose largely because it
might broaden their base of political support.
LBJ and the Johnson Administration, I think, will ultimately be remembered, by
historians, less for what happened in Vietnam and more for the civil rights revolution and the
concern for ordinary people that characterized the Administration. Today, acid, political acid,
– 65 –
has eaten into the political system to the point where people are less interested in what’s right,
and far more in obtaining or retaining power. Money has become the mother’s milk of politics.
That’s bad; for a country of our size, 260-270 million people, it’s not a rational way to govern,
not a way that governance can be accomplished and public interests served.
I think that’s enough for today.
This concludes the interview held on July 15, 1998.