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ORAL HISTORY OF MORTON HOLLANDER
Fourth Interview
October 9, 2007
This is the fourth interview of Morton Hollander as part of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewer is Judith S. Feigin. The
interview took place at Mr. Hollander’s home in Northwest Washington on October 9, 2007.
Ms. Feigin: Mr. Hollander. Great to see you again. When we left off you were still one
of six line attorneys in Mr. Sweeney’s office. That morphed into a big
appellate section with you at the head. I’d like to get a little understanding
of how that came about and when that came about.
Mr. Hollander: I joined the staff in ‘48 and there were, as you say, six attorneys in the
office. Oscar Davis was the lead attorney. He was getting most of the
worthwhile Supreme Court cases to argue even before he went upstairs to
the SG’s office. And a guy by the name of Morton Liftin, he was another
very, very good attorney. But nobody could run a close second to Davis
and everybody conceded that. When the SG’s office needed someone in a
rush, they would get Oscar on the phone immediately. And that’s where he
wound up of course. He preceded Dan Friedman as deputy solicitor general
in the Solicitor General’s Office.
There was Mel Richter. He was pushing for me to join Sweeney.
He was very much upset when I told him that Sweeney said there was no
chance for me to move over for a year from where I then was, at the Interior
Department, after I had been at the Office of Price Administration at the
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beginning of the war. I remember the names I think of some of the others
but they never made any real impression on me.
Ms. Feigin: How did the office come to grow and when did you come to lead it?
Mr. Hollander: The big spurt came in 1953 when Eisenhower appointed Warren Burger as
the head of the Claims Division. I think I probably said this before, maybe
a couple of times. Burger was very frustrated by the fact that the division
he had just been named to head was the Claims Division. So he righted
that immediately, re-characterizing it as the Civil Division.
Ms. Feigin: Mr. Sweeney was still the head at that point?
Mr. Hollander: Oh yes, Sweeney was there so far as I know for years. Not only was it not
known as the Civil Division appellate staff, it was known as the Supreme
Court section of the Claims Division. That was the official name when
Sweeney headed it up, and also when it was headed by his predecessor
Lloyd Kreeger. Lloyd had worked very closely with Sweeney and Sweeney
had learned a lot from Lloyd. But at that time I don’t think there were more
than four people, at the most five, in that Supreme Court section.
Sweeney at the beginning had the notion that the Supreme Court
section of the Claims Division responsibilities should be limited to cases in
the United States Supreme Court. He did not want us to waste our time on
court of appeals cases.
Ms. Feigin: So who handled the court of appeals cases?
Mr. Hollander: They were shipped out to the field U.S. Attorneys’ offices. Sometimes if
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an especially interesting or difficult case came along Sweeney would assign
one of the members of the Supreme Court staff of the Claims Division to
work with the assistant U.S. Attorney who was on the case.
Ms. Feigin: Is that how you got Feres?
Mr. Hollander: No. I was a full-fledged member of the Supreme Court section. I was never
assigned to handle any case that was actually authorized to be handled by
the U.S. Attorney’s Office. Sweeney did the authorization. Sweeney used
to make the decision, but it was invariably in favor of the U.S. Attorney, for
the U.S. Attorney’s Office to handle the more important appellate cases.
Most of the times he deferred to the U.S. Attorney’s Office. He resolved
all doubts in favor of letting the field attorneys handle the more important
appellate cases and never let them participate at all in helping on the
Supreme Court litigation.
That did change dramatically in ‘53 because Burger could not
understand why, if we had the nucleus of an outfit that’s ready to do initial
brief writing for the Supreme Court – and by that time, because of the lack
of an adequate number of attorneys in the Solicitor General’s Office we
were shipped many more Supreme Court briefing and oral argument
assignments than the people on the appellate staff wanted to handle. The
workload was too heavy.
I don’t think that when Burger was in office that we had more than
26 or 27 attorneys doing both court of appeals work and Supreme Court
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work, including the oral arguments. I think now they probably have about
sixty attorneys. It was reaching the point, even before I left, which was in
‘78 or ‘79, I felt that the section just couldn’t keep up with its work.
Ms. Feigin: When did you take over the section?
Mr. Hollander: In the beginning of 1960.
Ms. Feigin: Did Mr. Sweeney retire?
Mr. Hollander: Yes. Actually, he was appointed as a commissioner of the Federal Power
Commission. That was one field where he had quite a few Supreme Court
cases under his belt. He and Mel Richter actually – Mel Richter used to do
the brief writing for him and he would argue the Supreme Court cases. In
between Sweeney’s heading up the outfit, and January of 1960, for about a
six- or seven-month period, a guy by the name of Sam Slade, S-l-a-d-e,
headed up the outfit. He was really a brilliant attorney. He quit the staff
for Schnader Harrison Segal & Lewis, one of the biggest firms in
Philadelphia.
Ms. Feigin: Had he been on the staff?
Mr. Hollander: Yes, he’d been on the staff for about two or three years. And there’s one
lawyer I remember in private practice in Philadelphia. His name is Bernie
Segal. Slade hit it off well with this Bernie Segal, and from the very first
time that Slade argued a case against Segal in the Supreme Court, Segal
told Slade that he wanted him to join his staff. It took him about another
year or year and a half to decide. It’s a very well-known and very large
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Philadelphia firm.
Ms. Feigin: So he left and they chose you?
Mr. Hollander: Yes, he left. George Cochran Doub was then assistant AG. There really
wasn’t much talk about it at the time. Doub called me and asked me if I’d
like to take Sam’s job. Obviously I jumped at it.
Ms. Feigin: How did you change the section? What did you do that might have been
different from your predecessors?
Mr. Hollander: I went over far more carefully. Slade took over the head job in the middle
of ‘59 so he didn’t last long at it. I had the premonition that he was going
to accept Segal’s pleas and move over as soon as it was convenient for him.
He actually married Sandra, an attorney in our office.
Ms. Feigin: So you lost two people?
Mr. Hollander: Yes, but it wasn’t too difficult with Sandra’s departure. A very nice girl.
She did very, very good work, but her departure did not leave a dent in the
personnel makeup.
Ms. Feigin: So when you took over, how did you change it?
Mr. Hollander: The first thing I did was to go over a lot more carefully those cases that we
were still going to assign to the U.S. Attorney’s Office on appeal. And also
I did start to offer to make some of our attorneys available for big cases that
had been assigned to the U.S. Attorneys offices to give them backup that
they really needed. Those were the two principal areas.
Ms. Feigin: But it evolved, because ultimately it wasn’t just backup your section was
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doing. So how did that come about?
Mr. Hollander: There were some problems with that, too, because some of the U.S.
Attorneys offices were highly independent (laughs). I don’t know how
many times I was reminded by the United States Attorney’s Office in the
Southern District of New York and in the Eastern District of New York in
Brooklyn. They always would start parading the fact that one of their
foremost assistants was named Felix Frankfurter and they thought that that
was enough (Feigin laughs). But it worked out. There were some bitter
conflicts as to some of the cases, like Feres for example.
I had lost a Feres-type case in the Tenth Circuit, the Griggs case. It
would have been a natural for me to try to get the conflict with Feres which
was still before the Second Circuit. The U.S. Attorney, Fiske I think his
name was, F-i-s-k-e, and a delegation from the U.S. Attorney’s Office,
didn’t even try to see me. They just marched right on up to Byron White
and said that’s a big mistake. They started with this Felix Frankfurter bit
and this supposedly was the first time we had grabbed an important case
bound for the Supreme Court.
Byron White was at that time deputy attorney general. He was
really running the department while Bobby Kennedy was attorney general.
Bobby Kennedy, the story is, would not have taken the job because of his
lack of experience in litigation, unless his brother made him the number
one man and Byron White the number two man in the AG’s office.
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Morgenthau, Jr., the former Secretary of Treasury’s son, was U.S.
Attorney at that time in the Southern District of New York. He then went
on, and had a long career, as the New York State district attorney after he
lost – .
Ms.Feigin: He may still be.
Mr. Hollander: It’s possible.
Ms. Feigin: I think he is.
Mr. Hollander: He lost; he was running for governor on the Democratic ticket. Anyway, I
forget what remarks were exchanged between Byron White and the U.S.
Attorney from New York who were up there to make sure that they went
back with a reassignment to them of the Feres case (laughs). In retrospect, I
wish they had handled it and lost it (both laugh). Seriously. In fact, I was
just looking yesterday at the Oxford Companion to the Supreme Court.
They have some nasty things to say about the Feres opinion. Not only that,
the fact that Congress never really got along, over the years. Feres came
down in the late 40s. There were some feeble attempts to get a legislative
reversal of the Supreme Court decision. But the Pentagon was happy with it
and nobody else important enough seemed to care. But there were some
nasty remarks exchanged between Byron White and Morgenthau, including
an admonition to Morgenthau by Byron White. I forget how he put it. It
wasn’t very pleasant.
These two really were giants, Morgenthau and White. White was
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powerful. White ran the Justice Department. It was not unusual for
anybody who had a real problem to bypass Kennedy and run to White, as did
the U.S. Attorney’s Office at that time.
Ms. Feigin: As an aside about Kennedy, can you tell me the story about his paychecks?
Mr. Hollander: I was in a carpool with a guy named Jack Dabit(sp?), who used to live a
couple of miles from here. I was fortunate enough to have a parking space
in the basement right near the elevator bank near my office. That figures
prominently in Justice Department jurisprudence (both laugh).
I remember there was a judge out in the Tenth Circuit, I forget his
name, a real nut. He started a proceeding before the Judicial Council for the
Circuit. The Judicial Council handles all administrative details and
problems confronting the court of appeals for that Judicial Council or the
district courts within that particular court of appeals area. This judge, this is
while the Murrah building was being constructed, he had a parking space
right next to the front entrance in the parking area at the new Murrah
building. He actually filed a proceeding before the Judicial Council
claiming that some new chief judge who had just come in had reassigned the
parking spaces (both laugh). We got involved in it for some reason.
Ms. Feigin: Really? The appellate section had to handle it?
Mr. Hollander: Yes. I think this guy wanted a writ of mandamus to prevent this new chief
judge from reassigning the parking spaces. Of course you know the terrible
finish for the building and the area when they used all of those thousands of
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pounds of what they called fertilizer, FGAN, fertilizer grade ammonium
nitrate.
I came across fertilizer grade ammonium nitrate when I was working
on Texas City, the Dalehite case. The Grandcamp, one of France’s largest
cargo ships, was loading up under the Marshall Plan with thousands of fiftypound bags of this bagged fertilizer grade ammonium nitrate, the same kind
you would use to fertilize flower beds. Used in the proper quantities, and
stored properly, it is very beneficial. But they stored all this stuff destined to
be used as fertilizer under the Marshall Plan in Europe, which had recently
been devastated by World War II. When they started to use that stuff and
stack them in the holds and hatches of the ship, they, according to the
plaintiffs in the case, improperly stored them in the hatches of the ship
without affording sufficient area for some space between the bags. As a
result of which, the bags started to explode and leveled not only the ship and
the docks, but they were about three blocks away from one of Dupont
Chemical’s huge factories. So they wiped out practically the whole city with
that explosion. The estimated damages, not the value of the ship, but the
estimated damages in the way of deaths and personal injuries, exceeded
$275 million.
Ms. Feigin: In those days!
Mr. Hollander: Yes. That was a terrible disaster.
Ms. Feigin: Did you work on that case?
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Mr. Hollander: Yes. Everybody in the section at that time worked on the case. Everybody’s
name is in the Supreme Court Reporter. Covington & Burling handled the
case for the plaintiffs. Sweeney also hired – the first time I had known of –
an outside lawyer. He hired Eberhard Deutsch, who was a famous admiralty
lawyer in New Orleans, to handle the case for the government before the
Supreme Court.
Howard Westwood was at Covington & Burling. Eberhard Deutsch
was a very good New Orleans lawyer. Both he and Westwood argued the
case on behalf of the claimants before the United States Supreme Court.
They lost the case in the Court of Appeals for the Fifth Circuit. But I think
under Deutsch’s prodding, and the help of this guy Morton Liftin, whom I
referred to before, they were able to get a reversal. That case by far, it
makes the Feres litigation look silly. It really does. They were very
important principles.
What Sweeney had done, under Liftin’s and Eberhard Deutsch’s
recommendations, was assign a different issue – there were about seven
main issues in the case – I was assigned a relatively important, probably less
controversial issue than the others on the staff were. The part of the case I
dealt with was that under the terms of the Federal Tort Claims Act, no
theory of absolute liability for engaging in businesses involving extrahazardous instrumentality – that’s what we labeled this particular disaster as
resulting from – is available under the Tort Claims Act. I had had a couple
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of victories on that issue in the federal appellate courts and the Supreme
Court, really without analyzing it properly, went along with the government
on that issue. And on a much more important issue, if the government – and
this is crazy (laughs), how loosely Congress can fashion legislation that
results in billions of dollars of government giveaways – the main issue, and
the one that has really cost the government much more, is that if the
government is engaged in the discharge of a discretionary function and that
results in disaster or an accident, that the government cannot be held liable
for negligence in the exercise of the discretionary function.
So we were arguing, successfully, that was not my part of the case,
that Army personnel had the discretion to decide whether for 100 square feet
of fertilizer grade ammonium nitrate that’s being stored in the hatches of the
vessel, I think it was called Grandcamp, you would have to show that it was
negligent for them to assign such a large quota of cubic air space with each
50 or 100 bags of fertilizer grade ammonium. That too, of course, dates
back over fifty years, and nothing has been done to even amend the Tort
Claims Act.
Ms. Feigin: You disagree with that?
Mr. Hollander: Yes. They should change it. Not my part of the case (both laugh). I was
convinced that we were absolutely right. I remember talking about the
Dalehite decision with Simon Sobeloff who had initially been chief judge of
the Court of Appeals of Maryland and later was finally nominated to the
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Fourth Circuit Court of Appeals. He was really outraged. Judge Parker on
the Fourth Circuit Court of Appeals had no problem at all with the
government’s position that I was advocating, that it’s a theory of law based
on strict liability for engaging in extra-hazardous activity. Parker could see
no problem at all in excluding all of those torts from the coverage of the Tort
Claims Act. I remember Sobeloff commenting to me once that Parker was
just plain stupid in reaching that result.
Ms. Feigin: When you had those discussions with Sobeloff, those were after-argument
discussions –
Mr. Hollander: Yes. Jack Eldridge was one of the best guys we ever had on the appellate
staff. Before he joined the appellate staff, he had been Sobeloff’s law clerk
up in Annapolis. He also succeeded Sobeloff as not chief judge, but as one
of the associate judges on Sobeloff’s bench after Sobeloff left Annapolis. I
had been over there a few times, not as a guest of Sobeloff’s but as a guest
of Eldridge’s, and Sobeloff was there..
Ms. Feigin: To go back for a minute to the RFK story and the carpool and the paychecks.
Mr. Hollander: This guy Jack Dabit (sp?), who lives probably less than half a mile from here,
had been a member of our carpool – we had four of us in the carpool – for
about six or seven years. That covered the time that Robert Kennedy was
attorney general. For a couple of years, Dabit was actually sharing an office
with Kennedy. This was in his first incarnation. Before Robert Kennedy
became attorney general, he was a staff attorney in the Criminal Division, put
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there primarily by Joseph McCarthy, because Robert Kennedy, in his nonattorney general incarnation, detested Jimmy Hoffa. Robert Kennedy had
been working as a staff attorney at the Justice Department, trying to hunt
down Jimmy Hoffa and his cohorts.
Dabit shared an office with Robert, and Robert Kennedy finally
turned up becoming a father eleven times. Dabit had also by that time
become a father ten times. It really sent Dabit crazy when, waiting for the
minute that the secretary came around with the paychecks every second week,
and Robert Kennedy would never even open up his desk for months after the
checks came in (laughs).
Ms. Feigin: This was before direct deposit, obviously (both laugh).
Mr. Hollander: Yes, definitely. Dabit once asked him about it. Bobby Kennedy was very
genteel in his response. I think I would have been inclined to say, well that’s
my business, not yours, but Kennedy explained to him that he is the
beneficiary of two or three big trusts so that he doesn’t have to deposit a
check (Feigin laughs).
Ms. Feigin: Obviously you dealt with a lot of attorneys general and a lot of AAGs and
SGs and I wonder if we can go through some of them, the ones who stand out
in your mind. And you worked with a lot of incredible people in your
section.
Mr. Hollander: That’s true. People like Oscar Davis, Liftin, Dan Friedman, Mel Richter.
They really furnished me with the kind of help that I really needed. I think
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for the first six months at Justice, they were throwing so many things at me
that I felt at sea. All of those people really were very, very helpful.
Ms. Feigin: You dealt so much with the solicitors general, certainly in the early years.
You’ve talked a little bit about Sobeloff. But the others under whom you
served –
Mr. Hollander: Erwin Griswold was tops.
Ms. Feigin: Tell me why.
Mr. Hollander: First of all, if he called you up to his office, if he had some questions to ask,
the conversation would never last more than ten or fifteen minutes. He
would tell you just exactly what he wanted to find out and zero you in on
potential solutions to the questions that he himself had already formulated in
his own mind. He obviously was not looking for help. He was looking for
help in selecting what seemed to him to be the necessary option that
whomever he had called up would choose.
I’ve told you about going over to England in ‘79 when there was the
outbreak of the Khomeini revolution and his deposing the Shah. When I
went there, I was surprised to find that the ambassador to St. James was
Erwin Griswold. What also astounded me, I was wondering why he was so
knowledgeable about funds frozen by the United States Treasury Department
and all of the legal ramifications where the funds being frozen, as they were
by President Carter in 1979, whether those frozen funds, even though in the
possession of a branch bank of an American bank – Let me back up a little.
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Of the eight billion dollars seized by Carter, sixty percent of it, more than
half, were funds that Carter had seized while physically they were in Parisian
and London branches of American-owned banks.
The revolutionary party which had taken over got a number of law
firms, at least six of them, working on the case. Their theory was that
whatever is resting in branch banks of American corporations in vaults or
deposits in branch banks owned by the United States in Paris or London, their
theory was that the presidential executive power of Jimmy Carter had
absolutely nothing to do with the disposition of those assets. And actually
the case went up to the highest court in London and the highest court in Paris
and they never even resolved that question. Instead, what happened was that
the new government of Iran was eager to find some justification for it to
release the seventy-five hostages that they still had locked up. These
hostages were former employees at the United States Embassy in Teheran.
That question was never really resolved. Instead, what the Iranians offered,
because they knew that public pressure throughout the world was mounting
because here was three-and-a-half months after the revolution, after the
Ayatollah took over power, that the hostages were still languishing –
They weren’t in jail exactly; they were really living it up in the
embassy. They were having a good time. Many of them thought that, in
addition, they had solid lawsuits against the Iranian government.
Ms. Feigin: Hadn’t some of them been abused while they were in custody?
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Mr. Hollander: That’s exactly right. Some of them claimed that their conditions were
horrible but from the reports we were getting through the American Embassy
in London, it really wasn’t a bad life for them. They weren’t too eager to
come home. There were obviously some cases of mistreatment.
Ms. Feigin: How was Griswold –
Mr. Hollander: Griswold, I was shocked. I thought I had been briefing myself on the
question of extraterritorial seizure. A president of the United States seizing
and confiscating funds located overseas on the theory that the branch bank in
which they were located was a branch bank owned by the United States bank.
That was the Carter theory. The other theory, espoused by the Iranian
government – actually advocated by some Russian law firms on behalf of the
Iranian government – was that every state has sovereign jurisdiction over all
the materials and assets located physically in that jurisdiction. It went to the
two highest courts in both England and France.
Toward the end of that negotiating period for the release of our
hostages, Iran made steps to try to negotiate a break in the logjam, to work
out some compromise arrangement so far as the return of the bank deposits
owned by the American banks and the return of the hostages. What the
Iranian government finally said, you return to us sixty cents on all the dollars
you’ve frozen, and we in turn will guarantee that every single one of the
hostages will be returned to the United States the day Reagan becomes
president. That sort of broke that logjam.
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To come to Griswold: Griswold in the interim, after he left the
department and before he became ambassador, not only had been dean at
Harvard Law School, but had specialized in courses involving the issue as to
whether or not there can be extraterritorial vesting of other assets frozen by
any country where the asset itself is physically located in another sovereign’s
jurisdiction. So it was a pleasure. I really had unnecessarily done work
(Feigin laughs). This guy knew everything about it! It was amazing.
Ms. Feigin: And of course he knew you independently –
Mr. Hollander: He didn’t really know me. I didn’t have too many opportunities to be
speaking with Griswold. I had been called up to his office about four or five
times. In these conversations where he would outline the problem and the
potentially optional solutions. Nice guy, very nice guy.
Ms. Feigin: Looking at the list of SGs you worked under, you’ve spoken about Sobeloff,
and you worked under Rankin, Griswold, Marshall, Cox, Bork and McCree,
is there anything you would want to remember about them?
Mr. Hollander: What I remember about Marshall – I was up in his office a couple of times
when he made it clear to me that he does not like to hear anybody refer to
blacks as other than Negroes. He just wants them known as Negroes. That’s
what they are; that’s what they always have been. So far as he was
concerned, it was inappropriate. That was the period of time when people
were confused between browns and blacks. He said no need for any
difficulty on that; they’re Negroes! I don’t know if he reiterated views like
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that after he got on the bench but that’s what I remember about him.
Cox took a very close (indistinguishable) at our office’s work. In
fact, at one point, he misled me because he had a student while he had been
dean at Harvard. He called me up. He was the only one who ever personally
referred a Harvard student for employment in my office. I don’t think there
was any exception to that. Court of appeals judges like Sobeloff had done
that regularly. In fact, this guy John Eldridge, Sobeloff was apologizing that
the SG’s office had not latched onto Eldridge.
Cox called me with one recommendation. It was a ten-to-fifteenminute recommendation. It proved to be a disaster.
Ms. Feigin: That’s your major memory of Archibald Cox?
Mr. Hollander: Yes. That’s how I think of him..
Ms. Feigin: What about Bork, did you have any contact with him?
Mr. Hollander: Yes, I had some contact with him. Not really any worthwhile contact. I
thought some of his ideas were way out. I forget what the nature of the cases
were, but he seemed to imply that we were reaching for too much. It had to
do with grants-in-aid to the states from the federal Congress. I don’t
remember the specifics.
Ms. Feigin: And McCree, who was your last. Did you deal with him?
Mr. Hollander: Just superficially. I think he had been a former court of appeals judge.
Ms. Feigin: I think the Sixth Circuit.
Mr. Hollander: My contacts with the SG’s office were not numerous.
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Ms. Feigin: Next time maybe we can talk about some of the judges you did have contact
with. And the AAGs, because that’s where you did have significant contact.
We should save that for another time because there’s a lot of them.
Mr. Hollander: I did spend a lot of time. Douglas was our assistant AG I think in the 50s.
Ms. Feigin: I actually have a list. John Douglas, ‘63-‘66.
Mr. Hollander: That would put him there with Kennedy and Johnson. George Cochran Doub
is the guy who put me up for the appellate staff chief job. I never realized
there were so many AAGs. There’s a whole page full.
Ms. Feigin: There was a period when AAG was a real jumping-off point.
Mr. Hollander: Heading the list is Burger of course. He went on to become a judge on what I
still call Sirica’s court (Feigin laughs). William Orrick was a nice guy. He
later became a federal district judge and I think he’s passed away. He always
used to stop off and insist that I walk up the steps with him because his office
was on the same side of the building as mine was.
Ms. Feigin: Another thing we should discuss next time too is that you were there
obviously during the time of Nixon and Watergate and there’s a lot
connected with that. That would probably be useful to discuss as well.
Mr. Hollander: I look forward to it.