INTERVIEW NO. 3
(June 5, 1997)
Mr. Gardner I want to start by asking you about your role
in President Roosevelt’s famous court packing plan. I
understand that in October of 1936 you were assigned to
do research on how President Roosevelt could control or
change the Supreme Court. I’d like to start by asking
you who asked you to write this paper and what you
remember about that conversation.
The first person that I dealt with of course was
Solicitor General Reed. He was, however, relaying what I
imagine what was a general request from the Attorney
General Cummings. I would imagine that Attorney General
Cummings asked him for the loan of an attorney in his
office who would be able to conduct the research for him.
I had not known Cummings at that time. I had been in the
Solicitor General’s office for about a year and a quarter
and I was more dispensable than some of the older
attorneys so I was assigned to Cummings and spent
probably the next three months working for him on the
court plan. I cannot recall the extent to which that was
an exclusive assignment or done in the nooks and crannies
of minor routine work in the office, but I’m sure that my
assigned briefs received less than usual attention.
Do you remember what questions he asked you to research?
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They weren’t very specific but they were very important.
He said if the President were re-elected, as seemed
highly probable then, he wanted to move immediately to do
what he could — short of a constitutional amendment
to rescue the New Deal program from the apparently
intransigent majority on the Supreme Court and I was to
explore the issue and see what could be done.
And what were the avenues that you looked into, the
possible ways the President could control the Supreme
Well, there was first the congressional power over the
jurisdiction of the lower courts. There was the power to
control the appellate process in a way that I cannot at
the moment recall. There were suggestions to require a
super majority on the Court to invalidate legislation.
Suggestions to . I believe my memory is just not up
to retrieving the particular issues and the reasoning
backing them – there were about half a dozen all told. I
would have to take a very hasty look at the paper which I
Mr. Gardner, can you tell me in general, what conclusions
you reached after doing this research?
I reached the conclusion that no step taken by the
Congress could effectively immunize legislation from
constitutional review by the Court and that the only way
feasibly to control what seemed to us at the time, and
still seems to me, a devastating determination on the
part of the Court to invalidate any legislation that
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upset the traditional common law relationships between
people, was that to use a power which had been abundantly
exercised in the past — which was to increase the number
of justices on the Supreme Court, which lay within the
power of Congress. And in the first half of the
nineteenth century, and maybe throughout the nineteenth
century, the Court membership had gone up and down
according to political needs at the time and it seemed
that was the only effective way that would not leave the
whole program at the mercy of the majority of the Court.
We added the attraction, the attraction as defined in the
first draft, my draft, we had the arrangement that the
Court would shrink back to nine and that actually, in
fact, would become a nine-man court composed of people
I was 27 at the time and it seemed to me obvious
that senility set in no later than the 70th year. At the
age of 87 I don’t subscribe to that view quite as
heartily as I did then. The attraction of the plan to me
was that I thought that a nine-man court was about the
maximum number for efficient operation. I just wanted a
different nine. And the notion that you would appoint an
additional judge for everyone over 70 would be a strong
incentive to retire at that age.
Do you remember how many there were over 70 at the time?
I believe there were 4 or 5. I believe that one of the
more arrogant statements of youth was one that I made
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when I got back from Europe after the War and visited
then Chief Justice Stone and had the temerity to enter in
my diary that he “seemed in admirable health though 73.”
That was ’46 so he would have been about 62 or 63 at the
time of the court-packing episode. So I would gather
from that that nobody was over 70 except for the 5 men
who constituted the majority.!’ In clearing out the
ancient relics we would clear out all the undesirables.
So President Roosevelt would get about five new
appointments to the Court?
And then when the over-70 man retired he would not be
replaced. In effect it would drive out everybody as they
reached their 70th birthday and that seemed to be a good
It’s a clever idea — did you come up with it?
I came up with the refinement, shortly abandoned by
Cummings, that no successor would be appointed when the
Justice stayed on after 70. But I wasn’t the first one
on the basic principle, because McReynolds, the_ Attorney
General during the Wilson Administration, suggested that
same device for the district court judges. That I did
not discover and did not know. Apparently, it was the
discovery of a man who was doing research for a
book published by Cummings and MacFarland who was an
assistant attorney general. It came to my attention
?/ Mr. Gardner overlooked Justice Brandeis.
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after the bill had been drafted and while they were
trying to justify, preparing to justify it to the
Congress. And it seemed to everybody a perfectly
wonderful exercise in irony that the device had been
first advocated by McReynolds.
Mr. Schultz.:· After you wrote the paper, what happened to the idea?
The history went through several stages. Early in
December I finished the paper and then Cummings told me
to go draft a bill on this. I drafted a bill that I was
quite satisfied with and as far as I could tell Cummings
was too. That was then given limited exposure within the
government, the President and his then assistant, Jimmy
Roosevelt, and I suppose ranking people in the Department
of Justice, certainly Reed, and certainly Jackson and
Once the ubiquitous Tommy Corcoran and Ben Cohen
came over I remember meeting them in Cummings’ office.
However, it’s developed a long and continuing controversy
between Joe Rauh and me. Joe was very close to them and
said that they were horrified and thoroughly opposed. I,
to the contrary, saw no indication of this during our
conference with Cummings.
Now, who are Corcoran and Cohen?
Corcoran and Cohen were, in effect, presidential
assistants. I think they were not on the White House
payroll but they were in constant attendance on the
President and his thinking and they contributed a great
deal to the innovative thought of the whole New Deal
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program. They had sort of a roving commission and
whatever particular area became subject to the
concentrated governmental attention they would generally
get mixed into it. Corcoran was a Irishman. He was
essentially a lobbyist. Cohen was essentially a thinker.
They made a very effective pair who probably did a lot
more good than they did harm.
And where was Joe Rauh at that time that he .
He was Ben Cohen’s assistant. He was very close to
Oh. And was he at the meeting?
Oh no. So it was just a matter of recollection and
either his recollection or mine is reliable.
But it’s also of different conversations – you recalling
that meeting, and he’s recalling conversations?
One theory would be that I am recalling a conversation
which was directed to essentially my bill and
justification that the Court was being tyrannical and had
to be curbed and as I am about to indicate shortly after
I had drafted the matter — a couple of weeks or so -Cummings’
justification shifted to what I thought was an
unsupportable and sleazy ground. He urged that the old
men were too feeble to do their work and they needed
help. If I had been older, I would have stopped at that
point but I was only 27, and also I shared their
objectives completely. I thought they had to do
something about the Court. I did not like in any way the
plainly false justification that the men were too
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old to do their work and needed help. As I say if I had
been a few years older I would have said alright that’s
your- job, not mine, and I would have stopped working on
it. But I didn’t, I continued doing what I was told.
Now did you meet with the President on the subject?
I did and Cummings was a strange man. I don’t know
anyone else who would allow a largely unknown 27 year old
kid to go to visit the White House and explain his
department’s position to the President on this bill. I
think it was because we were doing it in such a limited,
secretive way. There weren’t many people he could send
if he wasn’t himself able to go.
So, you went without him?
You were the representative for the Justice Department?
Yes. Which as I say is perfectly extraordinary. I
wasn’t wholly alone — I met Sam Rosenrnan who was
effectively the White House counsel — they didn’t have
those positions in those days. Rosenrnan and I went up to
Can I just stop you? Can you just tell me about Sam
The only time I knew him was that morning when we
together went up and talked with the President about this
bill. He was obviously an able man. This was not the
time that the President was told about the plan.
Cummings had told and talked to the President before.
All I was doing was answering questions that the
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President had about it and explaining the detail. I had
not been sent over with the mission of remaking the
United States Government, but only that of explaining
detail. But it did seem, and even more now, an
extraordinary act of faith in a youngster, or else
cynical indifference, whichever you might think of it.
Anyhow, it was for me quite an experience.
So tell me about the meeting with Roosevelt.
At some point, probably that morning, the White House
said that they had some questions and wanted them
answered. I imagine it was inconvenient or possibly even
impossible for Cummings himself to go. There wasn’t in
December of ’36 really anyone else I expect that he could
send to answer questions. Reed was aware of it but
keeping himself as distant from the project as he could.
Because he had to argue before the Court.
He was essentially a conservative man.
He wasn’t crazy about the idea?
He didn’t oppose it but he wanted to keep his hands clean
– I think that’s a slight overstatement but I imagine
earlier that morning that Cummings must have told him the
White House wanted to ask some questions on the bill, so
they agreed to send me over to answer questions. I must
have reported to him when I came back but there wasn’t
any very elaborate report – just that we had an hour or
so of questions answered and discussed.
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Was that the only time you met with the President?
The only time that I did — we’re now talking about the
bill- obviously not semi-social occasions and so on in the
White House. It was the only time I met with the
President. Another time I went over to have lunch with
Jimmy Roosevelt who was then the President’s aide and he
and one or two other people of whose name I have no
recollection. And again it was only an explanatory luncheon
meeting. I can’t recall what we said other than
the fact that the lunch was held.
Do you remember anything about your impressions of
President Roosevelt from that meeting?
Well, the President was obviously a very intelligent man.
He had no trouble with understanding problems and was
obviously a very courageous man and an able man.
Was he in his wheelchair?
He was in bed.
He was in bed.
He did not like to get out of bed was my understanding.
He was more comfortable in bed than strapped in his
wheelchair. And his mornings were quite often such that
he could do his work in bed and this was one of those
Sometime in December Cummings got seduced into this
sleazy idea of coming to the rescue of overworked old
men. I don’t know where that came from and have always
suspected that it came from Carl MacFarland. He was
close to Cummings.
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Now who is Carl MacFarland?
He was initially a professor at the University of
Virginia and may have come directly from the University,
that I don”t know, into the Department to run the Lands
Division — the Lands Division had a collection of
largely incompetent attorneys. It was not one of the
smarter outfits in the Department. MacFarland was a very
good, effective administrator. He added two or three
very able people to spice up the Lands Division and put
in regular management controls, which I would find highly
offensive if I were subjected to them, but they worked.
He had charts on the walls showing what had to be done
and who was doing it, how nearly complete they were. His
office was like a computer having little bar charts that
they’re 24 percent, 63 percent , and so through their
tasks. But he was very effective head of the Division.
I didn’t like him chiefly because he was a ruler by the
book and not a thoughtful man at all. He went on to
become President of that Mormon university.
Yeah. He was a very good President.
So you think he came up with the idea that the
Court was overworked?
I think he was the one and I believe he”s probably the
only one who could capture Cumming”s allegiance for a
dubious proposition. However, I remain exceedingly fond
of Cummings. We worked together very closely on his
eulogy for Cardozo, a particularly difficult literary
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job since the dead man wrote so beautifully. It turned
out exceedingly well. He had a very sensitive ear for
the English language. We remained reasonably close while
I was in the Department but on the change in that bill I
did not like him.
Did you ever talk to him about your disagreement?
Yes. But not in a admonitory or rebellious tone. I said
I didn’t like it and didn’t think it would be persuasive.
I didn’t say I didn’t think it was honest. But I’m not
too pleased with how readily I gave in. I think largely
it was because I was on the team and Cummings was
captain; it would have been disloyal to walk away.
So tell me what happened to the proposal. I guess
it was submitted to Congress?
It was submitted to Congress in early February of 1937.
Cummings presented to the Senate Committee his bill to
relieve old men. The next day, Bob Jackson, whom I did
not then know at all well, spoke; he was head of the
Antitrust Division, and I was only later to work with him
very closely. Jackson, to his credit, urged enactment
strictly on the ground that the Justices had abused their
power. He offered no talk at all about overworked old
men who needed assistance.
Now this was in Congressional testimony?
Congressional testimony. The contrast looking back on it
is remarkable. Chief Justice Hughes organized a very
effective counter fire to the plea of overworked old
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men. To the best of my recollection that Senator
Robinson, I think of Arkansas, who may have been the
Majority Leader in the Senate, at least if not that he
was a very powerful figure — I’m afraid that there was a
side deal somewhere between him and the White House by
which if this bill gets through he would be put on the
Court. He was not my notion of who ought to be on the
Court. And then he died. And it was in this misfortune
that the final important support in the Senate
In the course of this debate the Sumner Retirement bill
was enacted. It permitted retirement from Supreme Court
service but continues authority to serve on lower federal
courts. This is thought to give constitutional
protection instead of only legislative protection to
continuing the judge’s salary for his life. It’s been on
balance a good idea because it has stimulated retirement
— people who otherwise would hang on. Van Devanter
retired almost immediately after that bill was enacted
and was replaced by Black. It apparently speeded up the
retirement process with other Justices as well.
Mr. Schultz: · So, before this bill they could retire at full
salary but there was a risk that salaries would be
Mr. Gardner: Yes. I can’t remember the terms in the existing statute
but what this bill did was offer constitutional as well
as legislative protection of their salaries.
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How could it offer constitutional protection?
The Judge retires from regular, active service but
remains available. Thus, the retired Justices still do
sit on the courts of appeals.
So that was the only direct benefit that came out as a
whole exercise. The indirect benefits were I think
rather considerable. And while it was not the sole cause
it was at least a major factor in the complete shift of
the court’s reaction toward the constitutionality of
What do you think accounts for the public reaction
to the proposal – you know the hue and outcry?
It was an attack on the revered tradition and as such not
at all welcome. Part of it, of course, was that at all
stages of the New Deal there was a very heavy minority
reaction against it — political, republican and economic
distaste for much of the New Deal and that substrata
opposition was of course opposed to throwing mud on the
white marble walls of a very important institution. What
caused the reaction in legal circles, I don’t really
Charlie Wyzanski, for example, who was in the
Solicitor General’s office, was in violent opposition and
claimed he tried to resign but was talked out of it by
maybe Frankfurter or maybe some other Justice on the
Court. I don’t know quite how to explain the lawyers’
opposition other than the fear that if you start
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politicizing or tampering with the Court there”s no end
to it. I can’t explain it other than a fear, perhaps a
legitimate fear, that it represented a political threat
to the integrity and independence of the judiciary.
a reasonable position.
Did you ever talk to Justice Stone about the court
Yes. I had a feeling that I ought to confess my
activities there. He was, of course, somewhat divided.
He had both in his dissenting opinions and more
vigorously in private conversation, said the Court was
simply building up trouble for itself by being hostile or
unsympathetic toward any new legislation. And to a
degree he felt vindicated by the court-packing proposal,
but also he was, of course, quite strongly opposed to it.
And I felt that I should go by and confess that I had
something to do with it. He and I were not exactly close
but remained in reasonably frequent contact with each
other. So I told him about it and all he did was laugh
and say, “Well, you’re very young,” which I certainly did
not view as a compliment.
What’s your view of the proposal today?
My view is that at the time it was necessary and the
country could not have survived a major economic
depression and dislocation where a third of the country
was out of work and they couldn’t pull out of that, it
did not seem to me then, and it does not seem to me now,
without a whole lot of ?egislation which was enacted
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then and eventually upheld. Of course, it was the War,
and not the New Deal tampering with the economy that
finally got the economy on solid ground again. But even
now I do not believe that a responsible government could
have avoided seeking a remedy for a Court that struck
down every remedial device that was tried because it
violated somebody’s contract. And, as I say, I believe
the court-packing effort was at least partially
responsible, if not largely responsible, for the change
in attitude of the Court. Actually someone, Stevens or
White, in a more or less recent opinion, has indicated
their view that the Court changed its posture because of
it. So on whole I”m glad we did it.
I think that’s what most historians have said too.
Civil Service reform — what was your role there?
My role was I had worked with Solicitor General Reed for
the two or three years that he was in that office before
being appointed to the Court. Ther8 was widespread
dissatisfaction with the Civil Service Commission
insofar as it related to lawyers. It was worse than
useless in finding able lawyers. And, too, it was
counterproductive beyond measure. Within the Civil
Service you could hire a new lawyer only from a Civil
Service list. They were unimpressive examinations
producing an undistinguished list which in any case was
largely dominated by those with veteran’s preference.
You would have a choice among I think the top three on
the list. In consequence the Civil Service system was
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bypassed – almost every recent appointee in Justice, for
example, was a special assistant to the Attorney General,
outside of Civil Service, which was what my title was at
Because of the wide dissatisfaction the White House
created a commission to study the problem. Reed was made
chairman. On it were Frankfurter and Jackson and Murphy,
a high official of the Civil Service Commission and two
or three distinguished private citizens: a General Wood
who was head of Montgomery Ward, and a very able lawyer
who was general counsel of the Pennsylvania Railroad and
had a fairly public role, whose name I now forget, and
one or two others. It was a very high grade commission.
Reed wanted help and persuaded Solicitor General Biddle
to let me go for a few months and I served as, I think my
title was Assistant to the Chairman, or it may have been
Executive Secretary. The other title was held by Oscar
Cox, a very able lawyer who had been with Sullivan &
Cromwell and was then general counsel of the Treasury
Department. It was a pretty good group. And I had
probably the best office in the Supreme Court building an
enormous corner office on the first floor.
We studied and ended up with a system by which
lawyers would be a special group within the Civil
Service Commission. The mechanics I don’t recall
completely. But they’d be examined throughout the
country. There would be a nationwide true/false
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mechanical examination and eligibility for appointment
was the top quarter or top fifth. There would be that
nationwide test and then a particular appointment would
be made only after examinations or discussion with a
panel of lawyers. The other detail I don’t remember, but
it worked remarkably well. An able student in an obscure
law school in the far West would be brought to the
attention of people in Washington by his score and the
comment of the reviewing committee. Instead of going
only to Harvard, Yale and Columbia, as was customary, the
whole country was opened up to appointment, which was
beneficial to the agencies and obviously to the
applicants. The system worked so well the Congress could
not tolerate it. There was no play in it, no room for a
congressional intervention in the hiring process. And
after two years it was scuttled. It worked so well,
chiefly because Herb Wechsler was its first executive
director, or executive secretary, I don’t remember what
the title was. He was the first director and was then
succeeded by Ralph Fuchs who also did an admirable job.
Who selected or commissioned the director?
Either the Attorney General or the Solicitor General.
They had asked me to do it and I wouldn’t. I urged
Wechsler and Wechsler didn’t want to do it any more than
I did. He felt it would be better if he was able to say
that Columbia wouldn’t extend his leave so he
unfortunately couldn’t consider the position. With full
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confidence he wrote off to the Dean of Columbia and said
he had been asked to do the work but he thought he should
come. back to Columbia. They replied that it’s such an
important job, you simply ought to do it. We’ll extend
your leave. And so he had entrapped himself thoroughly.
But he didn’t sulk, instead he did a brilliant job of
Now what was the Advisory Committee on Lawyers?
You know I believe that the whole commission had the
missions beyond the lawyers – they didn’t do much, or
attempt to do much in the non-lawyer area. I think the
Advisory Committee on Lawyers that has a familiar sound –
would be either a subcommittee of the Commission or an
outside group that was created to give their ideas on
government. I just can”t remember.
It”s not important. Now, tell me the
circumstances under which you left the Solicitor
I had been spoiled under two Solicitors General, Jackson
and Biddle. They didn’t have a great deal of interest in
the day to day work of the office – not much interest in
going over briefs and so on. And so I had a very happy,
contented life directing the regular flow of work in the
office. Jackson would carefully prepare his own cases
but Jackson just didn’t interfere with the less important
work at the office unless I had a problem and took it to
him in which case he was always very helpful. Much the
same arrangement p?evailed under Biddle, though he was
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not quite so helpful when I took problems to him. Under
either man, I was thoroughly spoiled. We also had a nice
degree of cooperation in several things that I was
interested in, such as the intergovernmental tax immunity
which the Treasury had sold us and on which we were
pursuing with substantial success.
This was tax immunity for the states?
Intergovernmental tax immunity, which we effectively
eliminated as far as constitutional law was concerned,
but not so far as the Congress was concerned. I got
along pretty well with the divisions in the Department
and pretty well with the agencies. It was a fairly
Charlie Fahy was the Assistant Solicitor General,
but that position in those days had nothing, beyond its
title, to do with the work of Solicitor General’s office.
The office was in effect the predecessor to the Office of
Legal Counsel. There was a long period of delay between
Biddle’s appointment as Attorney General and the appointment
of the Solicitor General — a three month period.
Charlie Fahy and I were not destined to like each other
very much anyway. He was an able man but also very
sincere and quite humorless.
On one of our major policy issues, intergovernmental
tax immunity, his views were perhaps heavily influenced
by or maybe accidently were much the same as Frank
Shea’s who was never in favor of giving up anything
of value to the government. But that wasn’t much of
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a problem with me, or with the Solicitors General and the
Attorneys General who were in harmony with the Treasury
Depa?tment and sought the major goal of abolishing the
tax haven of state bond interest. Fahy felt otherwise.
I was pretty strongly of the view that Fahy was in no
position to overrule the positions taken by prior
Solicitors General and Attorneys General, at least until
he was a full Solicitor General.
Then we differed on other issues and I was offensive
to him in that I didn’t adequately recognize his
authority, which was clear, because he was acting
Solicitor General, and was sitting in that office. And,
too, he was offensive to me because he didn’t recognize
what might be called my common law authority of four
years’ standing. We just didn’t get along. Washington
in those days was lovely — all you had to do was think
about moving from where you were, and maybe tell one or
two people at the most. And very few weeks would go by
without several people asking if I might want to move on.
I ended up taking Jerry Reilly’s place at the Labor
Department as Solicitor. I had no great enthusiasm for
the job but I did not want to continue the position of
perpetual conflict with Charlie Fahy and that proved to
be a mistake.
Why was it a mistake?
Francis Perkins had been substantially battered and
weakened by the Congress. She was afraid to do anything
that might produce criticism and that’s not a very
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endearing atmosphere to be in. And, again, while the
Department had a fairly important role in the war
busipess, it developed that the chief function of the
Perkins Administration was to persuade the labor leaders
to be helpful and to avoid anything that looked like a
sanction. In result, I sometimes feared that the Labor
Department was a detriment to the war effort. I lasted
there only nine months.
Do you have any other recollections of Francis
Yes. Some of them are very favorable. She was
intelligent and she was an exceedingly effective
advocate. She compared favorably with most of the highly
regarded lawyers that I had worked for. For example, she
had to appear on some issue before a Senate committee.
She was out of town, and took a train scheduled to arrive
in Washington in the early morning, but it was delayed
and got into station about half an hour before she had to
appear before the Congressional committee. I went down
and met her at the train and gave her the underlying
papers and talked to her during that half hour that was
spent largely in transit. She made a brilliant
presentation of a complex issue. Indeed, her advocacy
was consistently of the highest quality. Her trouble was
simply that she had no remaining backbone after being
attacked by the Congress for so many years.
How was she attacked?
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By denunciation and by denial of appropriations and
legislative support, sometimes by Republicans, sometimes
by others. There was always a heavy resistance to
anything which could be called socialistic in legislation
or activity, and her Labor Department was necessarily in
this battlefield. She was responsible, for example, for
inaugurating the social security program, which was by no
means popular and was heavily fought. As these
controversies multiplied over the years, she seemed to
have come to believe that it was good government to avoid
So, you left Labor and went to the Department of
the Interior. Tell me how that came about.
Well, as I say, Washington was then a very small town, at
least as far as lawyers were concerned. If you were
thought to be available, people would know about it and a
variety of alternatives were likely to be presented. One
arose when the long-time solicitor of the Interior
Department, Nathan Morgold was appointed to a local
court. He had been the Solicitor of the Interior
Department from ’33 and this time was ’43, so for ten
years I guess.
INTERVIEW NO. 3