Alan S. Rosenthal Interview No. 3, April 20, 2011

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ORAL HISTORY OF
ALAN ROSENTHAL
Third Interview – April 20, 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, Rockville, Maryland, on Wednesday, April 20, 2011. This is the third interview.
MS. FEIGIN: Good morning.
MR. ROSENTHAL: Good morning, Judy.
MS. FEIGIN: So, Alan, when we left off, you were in the midst of your clerkship.
MR. ROSENTHAL: Yes, well there are just a few additional items that might be of possible
interest. The first is that in my time all of the judges were white males, all
of the law clerks were white males, all of the secretaries were white
females, and all of what they called the messengers − these were
individuals who served the judges in rather a menial capacity − were
African-Americans, so that in each class, everybody was of the same
gender and race.
The messenger that Judge Edgerton, for whom I worked had, was a
man in his middle 60s named William, and William was quite diligent at
doing the various chores that were assigned to him, such as making certain
that the water pitchers were filled at the beginning of the day, but he
wasn’t terribly bright. One of the things that he did was to declare on his
income tax return an aunt who in point of fact was not a dependent, and
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the Internal Revenue Service at some point came up with this fact and
summoned William to their offices to have a chat about it. William
returned and he was in a state of terror. Apparently the agent or whoever
it was that interviewed him told him that if he did not come up
immediately with the total amount that was owing in terms of taxes,
penalties, interest, and all of that, he was going to be crushing rock in a
federal penitentiary for some years. He was absolutely terrified. Well,
when he told this to the judge, the judge, who was very fond of William,
was not too pleased with this kind of treatment. I was delegated to go over
to the Revenue Service and to make it clear that they were to immediately
correct the erroneous impression that William had as to what could be
done to him. My first words when I got over to talk to the agent were, “I
am the law clerk to Circuit Judge Henry W. Edgerton, and I’m here at his
direction.” Needless to say, in very short order it was agreed that William
would be told that there was no threat of imprisonment and that
arrangements would be made to have him repay the money that he owed
the Revenue Service in very small increments. But that I think was a
stratagem that the IRS employed quite frequently then in dealing with
people like William who were essentially ignorant.
Another aspect of my clerkship that might be of interest is that I’ve
always thought, and still think, that the value of a clerkship as an
educational experience is totally dependent upon the quality of the judge
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for whom you’re clerking and the manner in which the judge uses his
clerk. That brings to mind the story of Judge Wilbur K. Miller, one of the
D.C. Circuit judges at the time. Judge Miller came from Kentucky, and in
selecting his clerks, he had only one requirement, well actually two: that
they come from Kentucky and that they be very amiable, they be very
good companions. And this was important because Judge Miller did not
use his clerk for anything apart from companionship.
For eleven months of my clerkship, the District of Columbia
Circuit was still in a building on the corner of 5th and E Streets, the
building which today I think is the Court of Military Appeals. It was only
the Court of Appeals in that building and indeed the building was not large
enough to accommodate nine judges. So the junior judges at that point
had their chambers elsewhere. Of course, they would come to the building
at 5th and E for oral arguments. In September, the courthouse that’s now
occupied by both the Court of Appeals and the District Court, at 3rd and
John Marshall Place or something like that, was completed, so the Court
of Appeals moved into it. In any event, in the old building at 5th and E,
the judges’ chambers consisted of, among other things, a very large room
for the judge and a considerably smaller room but nonetheless spacious
enough, for the law clerk. In Judge Miller’s chambers, the judge occupied
the law clerk room, and the law clerk occupied the much more spacious
room that was allotted to the judge [laughter]. Why he did that I don’t
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know, but the story was that the judge preferred to work in somewhat
more confined quarters. But here was the law clerk sitting in this
enormous room doing essentially nothing, and I would have to say that I
do not think in the year that I was there I saw the Miller clerk in the library
even once. Now one of the things that he did do was in the summertime
during the baseball season. We had a daily pool and the clerk, since he
had nothing else to do with his time, was assigned to run the pool, which
he did quite efficiently. At the end of his year, my recollection is that the
clerk went back to Kentucky, I think he went to Frankfurt, to work as an
Assistant Attorney General of Kentucky, and I’m sure that they were
impressed down there with the fact that he had been a law clerk for a
judge on the federal Court of Appeals for a year [laughter], and what they
didn’t know is that in terms of it being an educational experience, it was
nothing at all.
MS. FEIGIN: Just to remind everybody, what was the year?
MR. ROSENTHAL: I started the clerkship in the fall of 1951 and concluded the clerkship at the
end of September of 1952. Now, as I mentioned before, in my year there
were no women or African-American law clerks. To my knowledge, in
the District of Columbia Circuit at least, there had been no women or
African-American clerks before my time. After my time, two years after I
concluded my clerkship, in other words, beginning in the fall of 1953,
Judge Edgerton took a woman clerk. I think she was the first one, and he
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kept her for five years, and indeed she only gave up the clerkship when
she had a child. As a side point, this woman now resides in the same
retirement community in which I live. And then a few years thereafter the
same judge, Henry Edgerton, took what I think was the first AfricanAmerican law clerk employed in that court.
You have to remember that Washington at that time was a pretty
southern community, and it was during the period of, I think it was 1950-
1951, that the District of Columbia Circuit rendered a decision in what
was known as the Thompson Restaurant case which dusted off a D.C. law
going back to the 1870s, I think, which had been essentially ignored and
which precluded racial discrimination in places of public accommodations
such as restaurants. And indeed until that decision came down, most of
the restaurants in the District of Columbia were segregated. In fact, when
I lived here in the 1940s, the only restaurants in and about D.C. that were
integrated were those at Union Station and the Washington National
Airport. The Thompson Restaurant case did open up things. I have to say
that when William, the judge’s messenger, heard about this decision, he
was most disapproving. He was most disapproving because in his view,
Negroes should not go where they’re not wanted. He was an AfricanAmerican definitely of the old school. So those are essentially my
additional recollections of the clerkship which concluded for me at the end
of September.
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I’ll add one more thing. In those days, the court did not sit in the
months of July, August, or September, at all. The judges were required to
be “on call” for one of those three months. The other two months they
could do what they pleased, and in point of fact Henry Edgerton, my
judge, left town for two months of the three, and it left me with relatively
little to do, and even on the month that he was on call, that just meant that
if there was some kind of emergency matter that came before the court he
had to be available to sit on it. I would have to say that the dockets of the
courts of appeals in those days were a lot slimmer than today so that the
judges were able to indulge in that kind of vacation schedule.
MS. FEIGIN: Do you think that was also partly because it was pre-air conditioning era
and so it was uncomfortable?
MR. ROSENTHAL: I don’t know whether that was a factor. Certainly it was plenty hot in D.C.
Although my recollection is, now that you raise the matter, that we were
air conditioned, so I don’t think that could have been it. I think it was
simply that their docket was such that this kind of vacation schedule was
permissible, which I doubt it would be today. The Supreme Court justices
still go off for a couple months [laughter], but as I understand it, their
docket is not that weighty these days either.
MS. FEIGIN: Less than it used to be. By the way, just to make this clear, I assume when
you say there were no blacks and there were no women, that would
include any other minorities, no Asians, no Hispanics, others?
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MR. ROSENTHAL: That’s right. I don’t think the Hispanics were that much of a factor in the
population of the District of Columbia as Hispanics are today.
MS. FEIGIN: You finished your clerkship. When did you take the bar exam?
MR. ROSENTHAL: I took the bar exam in New York in July of 1951. This was early July.
This was, incidentally, before the multistate examination. In those days,
the New York bar was in two parts over two days. The first part dealt
with substantive issues, seven hours I think, and the following day there
were five hours devoted to procedural matters and evidence. Now, I took
the New York bar even though I was headed in the fall to a clerkship
down here because it was my intention to return to New York at the end of
the clerkship. In other words, when I applied for Judge Edgerton’s
clerkship, it was not because of the location of the clerkship, it was
because of the judge. That determination was sufficiently firm that when I
became engaged to Helen in the spring of 1951, and we decided to get
married before I started the clerkship, she transferred from Yale not to a
District of Columbia law school but to Columbia, and so that’s where she
started in the fall. We had at that point a commuter marriage, and she was
in New York attending Columbia, and I was in D.C. on my clerkship.
Well I got into the clerkship I think about a month, we’re now talking
about October of 1951, when I decided that I really didn’t want to return
to New York after all, that what I wanted to do was to both stay in
Washington and if possible get a job in the Department of Justice, and my
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eye was particularly on what was then known as the Supreme Court
Section of the then Claims Division. The Supreme Court designation was
a misnomer because while the lawyers in that section did indeed draft
pleadings for filing in the Supreme Court, the vast majority of its work
was in connection with the Courts of Appeals.
MS. FEIGIN: Before we get to DOJ, let me ask you one question about the bar exam. In
those days, were there these big bar review courses? How did people
prepare for the bar?
MR. ROSENTHAL: There were indeed bar review courses, and the one in New York City that
I took, and virtually all of my classmates who were taking the New York
bar took, might have been under the auspices of the Practicing Law
Institute or some like organization. The class met at the then Stuyvesant
High school in downtown Manhattan five nights a week, Monday through
Friday, and again on Saturday morning. There were a couple of
enterprising gentlemen who decided that they could make some money by
having – this was the prior year – a professional stenographer attend the
cram course and take verbatim notes on the lectures. What they then did
was had the notes transcribed, mimeographed, and in my year, they were
sold to us. And every one, I think, of my classmates joined me in
purchasing them. Because this way, we didn’t need to sit there taking
notes. I could put the mimeograph thing before me, and if there was any
kind of change, I would just make a note. The advantage of this was that I
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did not get writer’s cramp. Well, the existence of these notes came to the
attention of the man who ran the cram course, and he accosted the
entrepreneurs who were still law students themselves and told them that, if
they did not, not only cease and desist but offer to give everybody their
money back, he would personally see to it that they were never admitted to
the bar, and he made the point that this was a violation of copyright,
et cetera, etc. And he reported all of this to us and he took the high road
and he said this was being done for our benefit because there had been
some changes in the law and we would not be aware of them, because we
were relying on these notes from the prior year. Well, of course, that was
nonsense because what we did was, again, we had the purchased material
before us as the lecture proceeded, and if there was some kind of change,
we would note it. In any event, that brought this to a screeching halt while
under compulsion the entrepreneurs offered to return our money. I can
say that to my knowledge nobody asked them to do that. As far as we
were concerned we had gotten what had been promised and what was of
considerable value. And the other thing was, we didn’t have to study from
a lot of scrawled notes taken in class. We had this very nice printed
verbatim account of the lectures, even though from the prior year. Indeed,
it wasn’t very much changed from year to year. Most of those transcribed
lecture notes from the prior year still were totally valid.
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MS. FEIGIN: Do you remember how you learned you passed the bar? In my day it was
in the newspaper.
MR. ROSENTHAL: As it happened, the results were coming out a few days after Helen and I
were married on the 8th of September of 1951, and I was aware of that
fact. We were going to be on our honeymoon so I told my father only to
contact me if I passed [laughter]. Well I knew that he would contact me
either way. I got a phone call from him that it had appeared in The New
York Times and, yes, that was the way he learned about it and then he
passed it on to me.
Now the one thing about the New York bar was, as I say, it was in
two parts and you could pass one and flunk the other, and in that
circumstance, you only had to take over the part that you had failed.
Happily, I did get by both parts.
The New York University Law School, located then, as now, at
Washington Square, but in a different building, was fairly close to the
Stuyvesant High School, which was where the bar review course was
taking place. The NYU Law School made its library available to all
persons who were studying for the bar and taking the cram course,
whether or not they had gone to NYU, and so I had gone down every
morning about 9:00 and spent the day in that library and then went on
around 4:30, 5:00 to Stuyvesant for the cram course. Now a number of the
students that were doing the same thing that I was doing, utilizing the
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NYU library, were graduates of what were euphemistically referred to as
three-year cram courses [laughter]. I won’t identify the schools, but I
think you probably have some idea what I have in mind. Well, I would
take a 10-minute break to go out into the lobby for a cigarette – I was still
a smoker in those days – and out there would be students from these
schools arguing over whether it was Section 126 of the New York Practice
Act or Section 294 that covered this, that, or the other thing, and I must
say I found that a little intimidating, given the fact that the Yale Law
School did not have a course specifically devoted to the New York
Practice Act. But in any case, the bar exam was something that one had to
get through.
They gave it in New York City, in Manhattan, in three locations,
and one of them was a big auditorium, un-air conditioned. The second
one was in a much smaller facility, also un-air conditioned, and the third
was in a nice air conditioned building. You were arbitrarily assigned to
one or another of the three locations, and I got the intermediate one, but I
felt that they didn’t provide an even playing field [laughter]. In July it was
very hot.
MS. FEIGIN: So getting back to your interest in the Supreme Court Section. How had
you learned about the section?
MR. ROSENTHAL: I assume I learned about it at an early stage in my clerkship. There were
lawyers that were arguing appeals before the District of Columbia Circuit
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that came out of that Supreme Court Section, Claims Division. I imagine
that’s the way I learned about it. In any case, I went over in the late fall,
maybe early winter, to talk to the then chief of the section, a man named
Paul Sweeney, and subsequently he indicated to me that he had a place for
me in the section, subject, of course, to my passing the security/loyalty
investigation.
MS. FEIGIN: And we’re in the McCarthy era now?
MR. ROSENTHAL: This was definitely the McCarthy era, and in any case, things went on and
I submitted whatever I was required to submit in connection with the
security/loyalty investigation, and I thought everything was proceeding
smoothly. I had a reporting date of I think it was October 1, 1952, my
clerkship officially terminating on September 30.
MS. FEIGIN: No break?
MR. ROSENTHAL: No break, although I had a considerable break during the summer because,
as I indicated, the judge had a considerable amount of time off and there
wasn’t that much for me to do, so I cannot say that I was going to move
from the one position to the other in a state of total exhaustion. In any
case, I’m assuming everything is in order when, on or about
September 10, maybe three weeks before I’m due to report for duty, I
receive a phone call from Mr. Sweeney who tells me that the Assistant
Attorney General of the Division, a man named Holmes Baldridge, wanted
to see me. “What about?” Well he didn’t know, or more accurately he
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wouldn’t tell me because he probably did know.
In any case, at the appointed date and time, I appear in the office of
Assistant Attorney General Baldridge of the then Claims Division. In his
office with him is a gentleman who he introduces as on the staff of the
Deputy Attorney General. “Well,” says, Mr. Baldridge, “I’m afraid,
Mr. Rosenthal, that there have been some questions that have arisen in the
course of your security investigation.” I said, “Okay, what might they
be?” “Well,” he said, “I think I’ll allow Mr. X, representative from the
Deputy Attorney General’s Office, to go into that matter.” I don’t recall
this man’s name. In any event, he said, “Well for one thing, we have
discovered that in 1940 your father was a member of the National Citizens
Political Action Committee in which, it is our understanding, there were
Communists.” I said, “Well, I can assure you that, while that well may
have been true, my father certainly was not a Communist; indeed, he was
a capitalist.” “Well we’re not saying that he was a Communist, but there
were Communists in that organization and that gives us some pause.”
Then the gentleman goes on, “In 1942 your father was a member of” – and
he identified some other organization, the name of which currently
escapes me, – “it too had Communists in it and that is also a matter of
concern to us.” I was dumbfounded. I said, “Well, gentlemen, for one
thing, I thought that I am the applicant for this position, not my father. For
a second, I find this very strange because in 1945, as a member of the
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United States Army Air Force, I had a top secret clearance that allowed
me to attend the cryptographic technicians school.”
At this point the gentleman from the Deputy Attorney General’s
Office starts leafing through this stack of papers before him which I
assumed consisted of the FBI report on the investigation, and he’s looking
through these papers in stony silence. After about a minute, I said, “Do I
assume correctly that that fact is not to be found in any of the papers that
you have before you?” A long pause. He didn’t say a thing. I said, “I
assume that the answer to that question is there is nothing in those papers
that disclosed the top secret clearance that I had obtained several years
after my father’s membership in these organizations that you find
troublesome.” I then stood up and said, “Gentleman, this interview is
terminated. I’m sorry but I’m not going to sit here any longer and listen to
this kind of questioning.” Obviously the FBI was much more interested in
what my father belonged to than in what I had done and what I had
obtained by way of a security clearance.
I walked out, and I went back to the Section Chief’s office. I said,
“Well Mr. Sweeney, this is what happened.” I explained it to him and I
said obviously we are not going to be colleagues, and I left the building. I
went back and I reported this to Judge Edgerton who was livid. He called
in Judge Bazelon with whom he was very close and asked me to tell
Judge Bazelon what had transpired, which I did, and Judge Bazelon said
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he’d be very happy to intervene. I said, “No I don’t want you to. I don’t
want you to be involved in this at all. We’ll just see how it plays out.”
Two days later, I get a phone call from Paul Sweeney, “You’ve been
cleared, so we’ll expect to see you here on October first.”
I suspect what happened is they were so concerned that if they
turned me down that I would go public with this whole thing about what
was in the FBI report and what was not, and it was so embarrassing that
they decided that the better course was simply to clear me. When I tell
this story to people who didn’t live at the time, at least not as adults, and
thus were not cognizant of the impact of Joseph McCarthy, they just don’t
believe something like this could happen. But it did. And one of the
things that was interesting was what Sweeney told me later. He said,
“You know there have been several people the last couple of years that I
have wanted to take on here and I’ve been told, ‘no dice,’ that they just
haven’t passed their security test. And I’ve never been given an
explanation beyond that. Nor have any of them been given, as you were,
the opportunity to meet with the Assistant Attorney General and the
Deputy Attorney General’s representative.” I found this experience
incredible.
MS. FEIGIN: How do you explain your being invited to meet with them?
MR. ROSENTHAL: I don’t know. It may be that they thought – again, this was my father that
they were pinpointing, not me, and again, they were not claiming that he
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actually was a Communist, a claim which would have been farcical. They
might have felt that in that circumstance they had to bring me in. I don’t
know. But the other thing I think that should be kept in mind is we’re not
talking here about a Republican administration. These were the dying
days of the Truman administration. That Assistant Attorney General was
a Democrat; the guy coming from the Deputy Attorney General’s Office I
think was probably political and therefore also was a Democrat, so this
couldn’t be put on the shoulders of Joe McCarthy’s Republican Party.
MS. FEIGIN: So, you get accepted. Tell me about the section that you walked into.
What was it like?
MR. ROSENTHAL: I walked into the section and the total number of members of the section,
including me, was twelve.
MS. FEIGIN: Including the supervisors, everybody?
MR. ROSENTHAL: Everybody. Twelve bodies.
MS. FEIGIN: Including secretaries?
MR. ROSENTHAL: No. Twelve lawyers. The Section Chief was Paul Sweeney, the Assistant
Section Chief was Sam Slade, and ten Indians of various levels of
seniority. With the exception of Sweeney, a Georgetown graduate, and a
fellow that came in just before I did, John Laughlin, who was a GW Law
graduate but was coming in off a clerkship with a judge on the Tenth
Circuit, everybody else – in other words, 10 of the 12 – were either
Harvard, Yale, or Columbia, so that there was definitely a bias in hiring in
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favor of graduates of those three schools. To my knowledge, however,
none of the ten, apart from John Laughlin, who came in with me off the
Tenth Circuit clerkship, none of them had had clerkships with an appellate
judge. I think only John and myself. But there were twelve of us. The
section was colloquially referred to as Sweeney’s Synagogue in that the
majority of the lawyers in the section were Jews [laughter].
MS. FEIGIN: And Sweeney was not?
MR. ROSENTHAL: Sweeney was not. Sam Slade was not, but there were a number of them
that were. Now one of the things that I found somewhat interesting when
I arrived on the scene, or I learned very shortly thereafter, was the two
most senior nonsupervisory lawyers shared an office. At that point the
only persons that had their own offices were the Chief and the Assistant
Chief, of which there was just one at that point, and everybody else, men –
they were all men, I might say.
MS. FEIGIN: All white males?
MR. ROSENTHAL: All white males. Previously there had been a woman lawyer in the section
and she apparently didn’t stay very long. Paul Sweeney said he was never
going to have another woman lawyer because apparently he and she did
not get along at all, so he definitely was discriminating against women
lawyers at the point I came in. I hadn’t been there very long when I
discovered that the two most senior line lawyers who shared this office
didn’t speak to one another. Their secretary also was in the office with
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them, and one time I was in that office talking to one of them. The other
one had been out of the office. He returned, and the lawyer to whom I was
speaking said to the secretary, “Dorothy, will you tell Mr. X that so-and-so
had called.” They literally did not speak. And I thought to myself what
am I getting into here? I mean these are the two most senior staff lawyers
acting as children. I’m thinking am I really in kindergarten?
MS. FEIGIN: Can you tell us, because I think people down the road will have no
context, what a secretary did for lawyers in those days.
MR. ROSENTHAL: Well, those were the days, number one, before word processors, and
number two, before lawyers were expected to type their own stuff. The
lawyers wrote out their drafts on yellow pads and the secretaries typed
them up. Now, today, with the word processor, in drafting anything,
you’re continually making changes because the changes can be put in very
readily. In those days what was typed up was done on a typewriter with
carbon paper, and let me tell you, you prepared a draft and that was it
because you did not go to the secretary, who had just typed it using four,
five, six carbon sheets, and say, “Well, Dorothy, I’m afraid there will have
to be some changes made here.” You just didn’t do it. I am not certain
that the products were any worse than when they were dispatched to the
courts or, if they were memoranda, to the Solicitor General’s Office, than
they are today when people slave over them and make all these changes.
In any case, that was a completely different world.
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MS. FEIGIN: And the secretaries were all women?
MR. ROSENTHAL: They were all women, and they were all white. The Administrative
Section of the Division was headed by a woman who had a Georgia accent
you could have cut with a knife, and she had total control over who was
employed as a secretary in the Division, and it was clearly a matter of no
African-American need apply because her thesis was that if one AfricanAmerican secretary were employed, thirty white secretaries would resign
in protest. That, of course, was nonsense, but she had that control, and it
was some years thereafter before an African-American was employed in
the Division as a secretary, and surprise, surprise, to my knowledge, not a
single one of the white secretaries resigned in protest.
You have to bear in mind that the whole Department at that point
was segregated basically. There were only white lawyers roaming the
halls. The only blacks that I saw in my early years there were the
messengers or people who occupied equally menial positions. There were
no black lawyers, no black secretaries. As a practical matter, the Justice
cafeteria was segregated. Not legally segregated. I didn’t often eat in that
cafeteria because it was down in the basement of the building and it
wasn’t very attractive, but on the few occasions that I did turn up there, I
observed that the black employees – and again, these were essentially
menials – were off eating in one area. There was a time before that when
the Justice Department cafeteria I think was officially segregated. This
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was a southern town, and the southern mores still were in play to a very
large extent.
MS. FEIGIN: Tell me about the work of the section.
MR. ROSENTHAL: The section’s work consisted of the drafting of Supreme Court briefs on
the merits, Supreme Court petitions for certiorari, and Supreme Court
briefs in opposition. It consisted of writing briefs for filing in the Courts
of Appeals, occasionally in a state court of last resort, and it consisted of
writing of memoranda recommending for or against appeal in cases which
the Division had lost in the District Court and for or against certiorari in
cases in which the Division had lost in the Court of Appeals. The major
portion of the work, I would say probably 75%, related to Court of
Appeals briefing and appeal memoranda on cases lost in the District
Court. The Supreme Court work was not that significant a part overall of
the section’s operations with the consequence that when the Eisenhower
administration came in, in early 1953, one of the first things that happened
was that the name of the Division was changed from Claims to Civil and
the name of the section was changed from Supreme Court to Appellate.
MS. FEIGIN: Did anything change substantively in what you did?
MR. ROSENTHAL: Not a thing. It was purely a name change. I think it more accurately
reflected what the Division did on the one hand and what the section did
more particularly. My first assignment when I arrived was to write a
memorandum recommending against appeal in some case. The second
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assignment I got was to draft a brief in a case in which we were amicus
curiae in the Supreme Court and invited by the Court to file an amicus
brief. It was a case that involved maritime rights in connection with a ship
that had gone down off the Australian coast during World War II. What I
found was that it was necessary in connection with preparing the draft to
go up into the stacks in the Department of Justice library and pull down
some reports from the Queen’s Bench, in other words, English reports of
the 1800s because in this case there was a lot of the law involved that was
derived from the British admiralty law, and I think I was lucky not to have
come down with some serious lung disease like the coal miners get
[laughter]. I can assure you that these books that I was taking off of the
shelves had not been looked at previously probably for a hundred years, if
then. When the term stack dust was invented, they had in mind these
books.
MS. FEIGIN: I think we should say for people reading this history that this was way
before the era of Westlaw. Everything was done in the library.
MR. ROSENTHAL: Oh yes. All of the research was done going to the books. At that point
Westlaw, Lexis, all of those things I don’t think were even a figment of
anybody’s imagination. This was just like the matter of typing the briefs.
This was an era where there was no computerized anything, either
processors or research tools such as Westlaw and Lexis. I have to say that,
in the years as a drafter of briefs, I spent a considerable amount of time in
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the library. Fortunately, the Department library was very complete. I
never had a need to go to the Library of Congress looking for something.
MS. FEIGIN: Just to explain how the Department was set up, when you say you drafted
briefs on the merits for the Supreme Court, there still was a Solicitor
General’s Office.
MR. ROSENTHAL: Yes there was. Just to give some perspective, the Civil Division itself had
in it seven or eight sections. All of the sections but Appellate operated on
the trial level. There was a Torts section, there was a Court of Claims
section that represented the government in suits brought against it in the
Court of Claims. There was a Frauds section, there was a General
Litigation section, there were all these trial-level sections. The Appellate
Section was superimposed on top of them. When a case was lost in a
District Court, the section in the Civil Division that had responsibility for
that case, and it might have been tried by the Assistant U.S. Attorney, but
there would be some lawyer in the Trial Section who had supervisory
responsibility for the case, would transfer it to the Appellate Section. The
Appellate Section then would write a memorandum recommending for or
against appeal after obtaining the recommendation of the agency whose
case it was. If a case was won at the trial level and an appeal was taken by
the opposing party, then that case came to our section. Memoranda
recommending for or against appeal or for or against seeking
Supreme Court review in cases lost in the courts of appeals, would go to
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the SG’s office and the Solicitor General would make the ultimate
determination as to whether an appeal should be taken or certiorari should
be sought. The Solicitor General’s Office at that time I might say was
considerably smaller than it is today. I don’t think they had more than 10,
12 lawyers, if that number. It was just like the Civil Division Appellate
Section which had 12 when I came to it, and today has 60 or thereabouts.
When it came to matters where either the Solicitor General had
authorized an appeal from a decision against us in the District Court or an
appeal was taken by the adversary from a decision that was in the
government’s favor in the District Court, we would decide whether we
would handle the appeal ourselves or would farm it out to the
United States Attorneys. At that time, we almost invariably handled the
appeal ourselves if we were the appellant, if it was our appeal. If it was an
appeal taken against us, we would then decide whether the issues were
sufficiently significant to warrant our keeping the case or instead farming
it out to the United States Attorney’s office for handling.
We did run into a problem with the U.S. Attorney’s Office in the
Southern District of New York. They were of the impression that there
were no lawyers in the entire United States government that were of equal
quality to the Assistant United States Attorneys in the Southern District of
New York and therefore it was their belief that there was no circumstance
in which an appeal in a case that originated in the Southern District of
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New York should not be handled by them. So we were in constant battle
with them over that.
MS. FEIGIN: Who resolved those battles?
MR. ROSENTHAL: They were resolved by us in the final analysis. However, I had a case in
the Second Circuit that involved the doctrine, which might no longer
apply, that a government employee or former government employee who
was complaining of having been unlawfully fired had to bring the suit
challenging the firing in the District of Columbia. This was because it had
been held that the Civil Service Commission was an indispensable party to
such a suit and obviously the Civil Service Commission is located in D.C.
This was a case in which an employee, I think he was in the
Veterans Administration located in New York City, was discharged and he
brought suit in the federal District Court in Manhattan; in other words, the
Southern District of New York, challenging that removal. Well, the
United States Attorney’s Office refused to file a motion to dismiss the
complaint for the failure to have joined an indispensable party because it
believed that that rule was rubbish. That a prior employee should be
entitled to bring a suit challenging his or her removal where she or he
lives. Somebody in Washington, in the appropriate trial section in the
Division, filed the motion which was granted. Then the ex-employee filed
a notice of appeal to the Second Circuit which has jurisdiction over the
Southern District of New York, and we said to the U.S. Attorney’s Office
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in New York, the Southern District, “You handle this.” They said, “We
won’t” [laughter]. This was exactly the reverse of their usual demand to
be allowed to handle the appeal. They didn’t believe in this rule, they
thought it was outrageous; they weren’t going to defend it. Okay, so it
was briefed in the Appellate Section. I go up to New York to argue the
appeal. Presiding on the Second Circuit panel was J. Edward Lumbard,
who formerly had been the United States Attorney for the Southern
District of New York. Lumbard says to me, “Mr. Rosenthal, what are you
doing here?” I said, “Your Honor, I’m here to argue this appeal.” “Well,”
he said, “will you tell me why this appeal is not being argued by lawyers
in the Southern District of New York?” I said, “I’d be happy to tell you.
We offered it to them and they refused to take it” [laughter]. Lumbard
was speechless at that point, and I thought that that was a modest bit of
revenge that we got. This was a continual hassle. But in the final
analysis, we had the final word, and if the United States Attorney himself
or herself complained, I’m happy to say that our Assistant Attorney
General, no matter who it was at the time, would back us up, so
complaints from the U.S. Attorney to the Assistant Attorney General
invariably proved unavailing.
MS. FEIGIN: I just want to make this clear. When the office drafted briefs on the merits
for the Supreme Court, that was a draft for the Solicitor General’s Office,
right?
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MR. ROSENTHAL: Yes, the draft would be sent to the Solicitor General’s Office where one of
the staff members there, Assistants to the Solicitor General they were
known as, would go over the brief, would make revisions, and there would
then sometimes be some kind of discussion between that Solicitor
General’s Office member and the member of the Appellate Section who
had drafted the brief as to the changes. Sometimes they were just made
and the brief was filed. But there was something considerably different in
that era from the era today and that is, as I will go into in greater detail at
later stages of my recitation of my DOJ career, I had a total of nine
Supreme Court arguments. These were assigned to me by the Solicitor
General. Today, a lawyer on the Appellate Staff, as they call it today – it
was the Appellate Section – his or her chances of getting a Supreme Court
argument are about the same as that person’s chances of being on the
moon. This shift occurred just before I left the Department in 1972, and
this was due in large measure to an enlargement of the staff of the
Solicitor General’s Office, and obviously the lawyers who join the
Solicitor General’s Office reasonably expect to have a number of Supreme
Court arguments. So in order to accommodate the much larger staff of
that office today, and indeed over the last thirty years or so, the Appellate
Section lawyers are frozen out. They just don’t get it.
MS. FEIGIN: Might it also have something to do with the fact that now the number of
Supreme Court arguments is diminished?
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MR. ROSENTHAL: I think that’s a factor also; there are fewer of them. I had my first
argument in the fall of 1956, and the last of the nine I think was in 1969,
three years before I left. I was getting them routinely. Now, when the
arguments came to an end, as I say, that was shortly before I left the
Division, I said to the then First Assistant to the Solicitor General,
Dan Friedman, I said, “You know, Dan, if we’re not getting any oral
arguments, I don’t see why we should be writing any briefs.” It seemed to
me that if these arguments were going to be presented by nothing other
than SG staff members, that those are the folks that ought to be writing the
briefs. Needless to say, that suggestion did not receive a very favorable
reaction [laughter]. Obviously over the years we had a very close
relationship with the Solicitor General’s Office and the staff members
there in connection with, again, the memoranda on appeal or on certiorari
and also with respect to the petitions for cert, briefs in opposition, and
briefs on the merits that are drafted in the Division and then sent up to the
SG’s office for further review and filing.
MS. FEIGIN: Let me ask you a couple of questions about things that I think were
different then from the way they are now at DOJ. At the time when you
began, the FBI was in the same building.
MR. ROSENTHAL: Yes it was. I saw J. Edgar Hoover frequently in the elevator. I was on the
third floor and if I got on the elevator and J. Edgar Hoover was already in
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it, the elevator immediately went up to the fifth floor. It did not stop on
any intermediate floors [laughter].
MS. FEIGIN: How did that happen? You weren’t allowed to press the button?
MR. ROSENTHAL I don’t remember how that happened, but it did. Director Hoover never
suffered the indignity of having an elevator stop at a floor before it
reached his floor.
MS. FEIGIN: The FBI lab was there as well, is that correct?
MR. ROSENTHAL: I think so, and the firing range I think also was there.
MS. FEIGIN: Did you have any interaction, aside from the ride on the elevator, with the
FBI?
MR. ROSENTHAL: Oh absolutely. I had one particularly notable experience. This was when
Ramsey Clark was the Attorney General, so I guess that was sometime in
the 1960s. I was called upon to represent two FBI agents who were sued
personally in a state court in Nevada for allegedly having bugged the hotel
suites of some gangsters down in Vegas, and the defense that we were
putting up was that they could not be sued for anything done in their
official capacities. We filed a petition for a writ of mandamus in the
Nevada Supreme Court seeking to get that court, on the basis of that
principle, to get the state trial court to throw the suit out. A day or two
before I’m making my first appearance in the Supreme Court of Nevada
on this mandamus petition, an Assistant Director of the FBI shows up at
my door. “Mr. Rosenthal, it is my understanding that you are going to be
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going to Carson City in two days to appear before the Supreme Court of
Nevada in this matter.” I said, “Yes, Sir.” “Well,” he said, “the Director
wants you to file a motion to disqualify Mr. Justice X.” I said, “He does?
On what ground?” “Mr. Justice X is in league with these gangsters who
are the plaintiffs in this suit. Indeed, they have provided him at no cost
with a swimming pool.” I said, “Well that’s very interesting, but what
authority do you have for that proposition?” Well it turned out, of course,
a confidential informant. So I said, “There’s absolutely no way in which I
am going to seek to disqualify a justice of that court on the basis of the
statement of a confidential informant.” “You don’t understand,
Mr. Rosenthal, the Director wants that” [laughter]. I said, “Well, the
Director might want it, but he’s not getting it from me. He can go to the
Attorney General if he wishes, and if the Attorney General decides that
that’s to be done, I suppose it will be done, but it’s not going to be done by
me. I value my license to practice law too greatly.” He huffed and he
puffed and he left. Well, that was, I think, basically my only contact with
the higher levels of the FBI during my time there.
MS. FEIGIN: I assume the motion was never filed.
MR. ROSENTHAL: Absolutely not. What did happen, though, was this was a matter in which
the Attorney General, Ramsey Clark, took a personal interest, and so I got
a call from his office the day before I was due to go out to Nevada in
which I was told that the Attorney General was having second thoughts
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about the position that we were going to advance in the court. So I said,
“It’s a little late in the game for second thoughts. Not only have we filed
papers setting forth this position that these agents could not be sued
personally because these were acts within the course of the performance of
their official duties, but I’m scheduled to go out in 24 hours and argue this
position.” “Well,” he said, “perhaps you’d better come up and see
Mr. Clark.” So I go up to see him and he’s having some very substantial
doubts as to whether we should continue with this position. He wanted to
sleep on it overnight. I said, “I will be leaving at 5:00 tomorrow afternoon
for Reno and I obviously have to know before then what you want me to
do.” He said, “Come back tomorrow.” So I went back to his office and
literally at 1:30 that afternoon I didn’t know what he was going to decide
should be done. I kept telling him you have to reach a decision. Finally at
3:00 or so, which was about an hour before I was leaving for the airport,
he said, “Okay, go ahead.” This case was the only matter in my twenty
years in DOJ that I had any direct involvement with the FBI, and the only
occasion in which I had any direct dealings with an Attorney General. I
obviously had plenty of dealings with the Solicitors General over the
years.
MS. FEIGIN: This might be a good place to stop. We’ll pick up on more of your cases
and your career at DOJ. Thank you again for a very interesting session.