Alan S. Rosenthal Interview No. 4, May 9, 2011

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ORAL HISTORY OF
ALAN ROSENTHAL
Fourth Interview – May 9, 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 the
King Farm subdivision in Rockville, Maryland, on Monday, May 9, 2011. This is the fourth
interview.
MS. FEIGIN: Good morning.
MR. ROSENTHAL: Good morning, Judy.
MS. FEIGIN: So Alan, we had barely scratched the surface of your career at DOJ, but
before we get into all the details of it, I just want to get a sense of it. Can
you give us an idea of how many arguments you did while you were in the
Appellate Section?
MR. ROSENTHAL: I was in the Appellate Section exactly twenty years, almost to the day, and
my estimate is that I argued something in the order of 225 cases in that
period of time, nine of them in the Supreme Court, the balance in all of the
Courts of Appeals, the Court of Customs and Patent Appeals, and I had I
think five arguments in state courts of last resort. So the bulk of my
arguments obviously were in the federal courts of appeals.
MS. FEIGIN: And I guess we should just say for those who may not know the timing of
this, there was no Eleventh Circuit Court of Appeals then, correct?
MR. ROSENTHAL: No. There was the District of Columbia Circuit and ten other circuits. It
was after I left that they broke up the then Fifth Circuit, and now what was
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the Fifth Circuit is partially in the Fifth Circuit and partially in the new
Eleventh Circuit.
MS. FEIGIN: Given that vast number of arguments, which is really quite extraordinary,
can you recall your first?
MR. ROSENTHAL: I recall it very well. It was in a Federal Tort Claims Act case in the
Second Circuit in New York City, and it being my debut so to speak, my
family, specifically, my parents and sister, all of whom lived in New York,
came down to listen to my maiden voyage in appellate advocacy
[laughter]. The panel in the case included the two Hands – Learned Hand
and Augustus Hand, his cousin, plus Jerome Frank. I knew Jerome Frank
because he taught a course in the Yale Law School in fact-finding. It was
a seminar in the afternoon. He came up from New York once a week to
New Haven to offer it. It was a fairly small class, so he got to know the
students in it, including myself. So that was a rather formidable panel.
The case, as I say, involved the Federal Tort Claims Act, which in
many respects applied state law. It had certain, however, statutory
exclusions from its operation, but we had won the case on state law
grounds in the District Court up in Plattsburg, New York, I think it was,
way upstate. The Section Chief told me that, in arguing this case, he
wanted me to focus my attention on an issue of statutory construction.
This despite the fact that, as just noted, we had won the case on the basis
of New York State law which was imported into the Tort Act. So I said
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well, okay, I would do that. Obviously as a neophyte I was to going to
follow the orders of my Section Chief. So I stood up before the court and
I started to argue the statutory construction point. I got through about one
sentence, and Learned Hand interrupted and said, “Well, Mr. Rosenthal,
was that the ground of decision in the District Court?” I said, “No, the
District Court had decided the case in the government’s favor on a state
law ground.” He said, “I assume that you’re abandoning that ground.” I
said, “Well, no, Your Honor.” He said, “I suggest that you get right to it.”
So I think I got maybe six additional sentences out of my mouth when all
of a sudden Judge Hand says, “Jones v. Smith,” or something like that.
MS. FEIGIN: This is still Learned Hand?
MR. ROSENTHAL: Learned Hand. Augustus seemed to be asleep during most of the
argument [laughter]. “Jones v. Smith.” And I’m thinking my goodness, is
that a case that I somehow overlooked? At this point, I hear the rustling of
papers behind me, and it suddenly occurs to me that Jones v. Smith was
the next case [laughter]. So my oral argument in that case consumed I
might say probably no more than four minutes [laughter]. Well, all I can
say is my sister thought, gee, this is a great job you’ve got [laughter]. You
come up from Washington, you’ve got the whole day in New York.
Actually I’d flown up the night before. And all of this is for four minutes
or thereabouts of work. So I had to assure her that this was not likely to be
my experience throughout my career as an appellate lawyer [laughter], and
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obviously it wasn’t, but that was it.
I was somewhat surprised at this abrupt end because as a law clerk
the prior year for a judge on the District of Columbia Circuit, I sat in on a
number of the arguments, and when the court thought they had heard
enough, they would say to the lawyer, “Well Mr. Jones or Ms. Jones, I
think we’ve heard enough.” It wasn’t simply abruptly calling the next
case [laughter]. But that was the way Learned Hand apparently operated.
Another story about Learned Hand was he took great interest in
making certain that the margins on the briefs that were submitted to the
court were of the appropriate length. Indeed, I did see him during the
argument that immediately preceded mine – mine was not the first case on
– I saw him sort of looking, measuring the margins on the briefs before
him [laughter]. So that seemed to be one of his idiosyncrasies.
That was a very interesting way of embarking upon my career as
an appellate advocate [laughter]. For his part, Jerome Frank I think
recognized me; he simply smiled. But that was it.
The only other amusing thing about that experience was my
opponent, who came from the northern reaches of New York State. This
might well have been his first appearance in the Court of Appeals, I don’t
know, but as we were leaving the courtroom together he said to me, “Well
Mr. Rosenthal, we’ll just have to see how it comes out.” Now bearing in
mind, I was the appellee, and it was just four minutes or so of argument,
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there was little doubt in my mind as to how it was going to come out, and
indeed, within a matter of a few weeks, a very brief decision came out
which affirmed on state law grounds the District Court decision. So the
statutory construction argument that my Section Chief wanted me to
address never got decided.
MS. FEIGIN: When you talk about his telling you what to do, how did you prepare for
these arguments? Were there moot courts?
MR. ROSENTHAL: Absolutely. There were always moot courts, and the moot courts were
particularly thorough in the instance of the Supreme Court arguments. For
the Court of Appeals arguments, there might be two other members of the
section in addition to either the Section Chief or Assistant Section Chief
sitting on the moot court. In the case of the Supreme Court arguments,
there were generally at least five or six, and the endeavor, of course, was
to raise every question that the Supreme Court Justices could possibly
have in mind. Needless to say, I did not have one Supreme Court
argument in which there were not several questions posed to me that had
not been anticipated by the individuals conducting the moot court
[laughter].
MS. FEIGIN: Having argued in all the circuits, can you give us a thumbnail description
of the differences among the circuits?
MR. ROSENTHAL: There were enormous differences. In that day and age, in the Fifth Circuit
based in New Orleans, but they also sat in other locations – in Florida,
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Alabama, and Texas – it was rare that you got out more than “May it
please the Court,” before the judges were on you, and they were
thoroughly prepared. I was amazed and actually welcomed that because it
seemed to me that the principal virtue of an appellate argument from the
standpoint of the lawyers presenting it, is that it provides, or should
provide, an opportunity for the advocate to learn what is troubling the
court, if anything, and to provide an opportunity to endeavor at least to
satisfy the court that its concern regarding some aspect of the advocate’s
position is not substantial.
Now in contrast to the Fifth Circuit which was, as I say, invariably
prepared, the Tenth Circuit was never prepared [laughter]. The Tenth
Circuit was a court that was based in Denver and covered several
additional states like Oklahoma and New Mexico and Wyoming. I may
have missed a state or two. When the clerk of the court called the case
name, let’s say United States v. Jones, those judges apparently did not
know at that point whether it was, for example, a Mann Act criminal
prosecution or a Federal Tort Claims Act case. As far as I could see, none
of them had picked up a brief or had their law clerks brief them on what
the nature of the issues were. It was, I must say, extremely frustrating to
have to start at Square One and to provide a total education as to what the
case was all about.
The Eighth Circuit, however, was even more frustrating. The
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Eighth Circuit was St. Louis-based. I had, I would say in the 1950s and
1960s, probably eight cases in that circuit. I went out from Washington to
St. Louis on those eight occasions or so to present arguments. In the total
of eight cases, I was given a total of three questions [laughter], and those
three questions all related to whether something was or was not in the
record of the District Court proceeding. In those days the Eighth Circuit
allotted an hour for oral argument.
MS. FEIGIN: Each side?
MR. ROSENTHAL: Each side. Today you’re lucky I think to get more than 15 minutes a side
in most cases. They never interrupted you. They sat there taking copious
notes, and you just went on for as much of the hour as you saw fit to
devote to your case. Now, I thought to myself after several of these
experiences, “What am I doing taking the time to go all the way out from
Washington to St. Louis; why don’t I simply send a tape of my oral
argument?” [Laughter]
One occasion was particularly frustrating. This was a case which
involved the question of the appropriate rail tariff rate for shipments of
government materials. The railroad was claiming that a particular
provision of the tariff applied. The government was claiming that a
different tariff provision applied, which, of course, called for a lower rate.
In the District Court, the government prevailed. So in the Court of
Appeals, I needless to say argued that the District Court was clearly right
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in applying tariff provision X, and the railroad lawyer argued that the
District Court was clearly wrong, that tariff provision Z applied. Down
comes the decision of the Eighth Circuit several weeks later. By a 2 to 1
vote, the court held that the question was one of reasonableness of rates
and therefore within the primary jurisdiction of the Interstate Commerce
Commission, that it was not simply a matter of tariff construction.
Therefore the matter was remanded to the District Court with instructions
to send it to the Interstate Commerce Commission to determine the issue
of reasonableness. During the course of the argument, not once was there
a suggestion on the part of any one of the three judges that there might be
a reasonableness issue involved which would put the matter in the primary
jurisdiction of the ICC. So this was extremely frustrating [laughter].
Another occasion in the Eighth Circuit, this was an appeal from the
District Court in Minneapolis, District of Minnesota, the issue being
whether the Federal Reserve System was unconstitutional [laughter], with
the consequence that the Federal Reserve notes that were being issued
were all about as good as counterfeit money. Needless to say, this was a
frivolous suit to begin with, and an even more frivolous appeal from a
decision of the District Court to the effect that obviously the Federal
Reserve System was constitutional. Yet the Eighth Circuit allowed this
rabble-rouser, if I may put it that way, from Minneapolis to orate for a full
hour on the subject of the unconstitutionality of the Federal Reserve
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System. The court didn’t say a word, just let him talk. At the end of the
hour, I got up and I said if the court had no questions [laughter], I would
submit on our brief. The court had none; they never had any questions,
but on this occasion they particularly had no questions [laughter]. And
that brought the argument to the end.
When I left the courtroom, in the vestibule, the lobby outside of it,
opposing counsel was getting the adulation of a large number of adherents
of his view who had come down from Minneapolis to hear the argument,
and they were saying to him, “You did a magnificent job” and “It was
obvious that you had done a magnificent job because the government had
no response.” [Laughter]
There was a good deal of difference in the way the various circuits
conducted their business. I will make reference to only one other circuit,
which was the Fourth. The Fourth Circuit at that time had only three
judges. John Parker was the Chief Judge and had been on the court for a
long time. In fact, I think in 1930, he was a Hoover nominee to the
Supreme Court, and his nomination was rejected by the Senate. He was
not confirmed because, as I recall it, he had rendered a decision on the
Court of Appeals that had been extremely unpopular politically. If I recall
correctly, it dealt with yellow-dog contracts or something of that order. In
any event, Parker was the Chief Judge. The other two judges were
Morris Soper, who came from Baltimore, and Armistead Dobie,
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previously the dean of the University of Virginia Law School who came
from Charlottesville. That’s all there were, just those three judges. They
sat on virtually all cases except when a district judge was brought up to sit
on a particular week by designation. They were an interesting trio.
They had one practice which I thought was very good. I think it’s
still being followed in the Fourth Circuit, but I don’t think it’s been
adopted by any other Court of Appeals. After each argument they would
come down off the bench and shake the hands of counsel and exchange a
few words. Well, I had one encounter with that practice that made me a
bit nervous in advance. I had argued a test case. It involved an issue,
again, of which tariff applied to government rail shipments. This was a
test case covering a very large number of other cases. We lost in the
District Court and appealed to the Fourth Circuit and we lost in the Fourth
Circuit. What we then did was to take another one of these cases where
the facts were a little bit different and we ran it up the pole again, and
when I got to the Court of Appeals, Parker said, “Well Mr. Rosenthal,
haven’t we heard you on this before, and didn’t we reject your position?”
“Well yes, Your Honor, but we think that this case is a little bit different
factually.” Well, we lost it again, in an opinion that said in effect we’ve
already decided this issue previously, why are you bothering us with it
again. This time we took it to the Supreme Court. The Supreme Court
reversed the Fourth Circuit, remanded it to the Fourth Circuit for further
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consideration. So I appear again. Well, Parker was absolutely livid
[laughter]. He accused me of having mousetrapped the court and all of
this kind of thing. It was a very, very unpleasant time. I think it was
probably 45 minutes or so – I think the Fourth Circuit allowed 45 minutes
a side, and he had me up there for the full 45 minutes. And finally the
argument was over, and, of course, they’re going to come down off the
bench, and what kind of reception am I going to get? Well, he greets me,
“Mr. Rosenthal, it is always a pleasure to see you again.” [Laughter] That
was a very interesting court.
Now there is an interesting sidelight to Armistead Dobie. As I
said, he was the dean of the University of Virginia Law School, and before
getting on the Fourth Circuit, he was a district judge in the Western
District of Virginia, and Roosevelt promoted him to the Fourth Circuit,
and supposedly this was a matter of gratitude for the fact that he hadn’t
thrown one of Roosevelt’s sons out of the law school for misconduct
[laughter]. Whether that’s true or not, I don’t know. In any case, one of
my Fourth Circuit arguments, the argument ahead of mine, involved a case
where a woman was suing her former husband for having maliciously had
her incarcerated in a mental institution where she had remained for two
weeks or so before she got herself out. Well, the jury in that case − this
was a diversity of jurisdiction case − had awarded her a very large sum of
money. On the appeal taken by the former husband, the main point that
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his lawyer was making was that the award was grossly excessive, and it
was obvious that he was making considerable headway with the judges on
that issue of the excessiveness of the damage award. Well this was
appreciated by the lawyer for the wife, and when he stood up, he opened
his argument by saying, “Your Honors, I can appreciate the fact that you
might think that this award was very generous, but you should take into
consideration that any amount of time spent in a mental institution, no
matter how short, places a blot on one’s reputation that is never
removable.” “Well,” says Judge Armistead Dobie, “for your information,
I spent several weeks myself in a mental institution [laughter], and
whatever blot there may have been put on my reputation, I think was
removed when I was appointed to the federal bench.” This poor lawyer
[laughter]. That shows what comes of not making a close enough study of
the background of the judges before whom you are going to appear. I
learned later that Dobie had had a mental breakdown at some point in his
early career and he had indeed spent some time in a sanitarium.
MS. FEIGIN: When you say that shows the problem of not studying enough about the
judges, how did you prepare these arguments? Did you study the
backgrounds?
MR. ROSENTHAL: Oh no, but I was fortunate enough never to have encountered that kind of
a response [laughter].
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MS. FEIGIN: You’ve given a snapshot of several circuits, but this is an oral history for
the D.C. court, so I’d like you to, if you could, give us a sense of the D.C.
Circuit as it was when you argued, and that is different from being a law
clerk.
MR. ROSENTHAL: I think I might have mentioned this when I was talking about my year as a
law clerk there, but for many years it had nine judges, four conservatives,
four liberals, and Judge Prettyman who was sort of in the middle. I argued
a number of cases obviously in the D.C. Circuit, and with many of them, I
wanted a conservative bench, and unlike today where apparently you
know in advance who’s going to be sitting on a particular case − I
understand that is now the practice in the District of Columbia Circuit, to
reveal that in advance – in those days you didn’t know who was going to
be sitting until the curtains parted. Well the official word was that the
judges were assigned by lot, that the Chief Judge of the court had nothing
to do with who was assigned and what the clerk would do was find out
what judges would be available to sit at a particular time, and then there
would be a by lot assignment of those judges.
During a good part of my time arguing before the District of
Columbia Circuit, David Bazelon was the Chief Judge, and lo and behold,
maybe this was all by lot, but on the cases where it really mattered
whether a majority of the panel were conservatives or liberals, when those
curtains parted, I saw two liberal judges and a conservative judge, and this
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was almost invariably the case. Well one day when I was coming up
there, I said to the clerk, Nate Paulson at the time, “Nate, you know who’s
assigned to this panel, I don’t, but,” I said, “I will bet you $10 right now
that when the curtains part, I’ll see two liberals up there.” Needless to say,
he did not take the bet, and needless to say, when the curtains parted, yes,
there were two liberals up there. In the cases that I had in that court where
it really didn’t make a difference what might be the particular persuasion
of the participating judges, then I might get two conservatives or I might
get two liberals, or I might get three conservatives or even three liberals.
MS. FEIGIN: In your time there as a clerk, did you have a sense of any of that going on?
MR. ROSENTHAL: No I did not, because the Chief Judge was Harold Stephens at that time
who was one of the conservatives. It was only subsequently, mainly in the
Bazelon days.
On another subject, when I appeared before it, I found the judges
of that court invariably well prepared. I would have expected that because
certainly in my time as a law clerk, all the judges got at the very least
briefing from their law clerks before they got on the bench even if they
hadn’t taken the time to read the briefs themselves in advance of the
argument.
It was a little stressful appearing before Henry Edgerton. He did
not disqualify himself in cases in which I was involved, but he made it
abundantly clear that I was getting no favors [laughter] from him based
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upon my previous service as his law clerk. I found the D.C. Circuit to be a
perfectly acceptable court to appear before.
MS. FEIGIN: You say you made the bet with the clerk before the panel appeared. Can
you tell us about your relationship with clerks of court?
MR. ROSENTHAL: I made a concerted endeavor to become acquainted with, and if possible to
obtain the a friendship of, the clerks of all of the courts of appeals and the
Court of Customs and Patent Appeals. I found it inured to my benefit.
For example, when I had an argument coming up in the Court of Appeals
for the Ninth Circuit and the argument was almost certainly going to be
heard in San Francisco as opposed to Los Angeles or Seattle, I would
usually want to have the argument on a Tuesday so I would go out the
prior Friday night, visit friends of mine over the weekend, and Monday, of
course, would be the travel day. So when an oral argument was coming
up in that circuit and I thought I was going to San Francisco, I would call
the clerk and I would say if at all possible, would you put the argument
down for a Tuesday, and almost always that was very possible, and almost
always that happened.
I had an acquaintance, a man named Melvin Welles. Mel was a
lawyer with the National Labor Relations Board who argued dozens of
appeals every year. He was an avid rooter of the New York Yankees and
took pride in the fact that, over the course of 15 years or so, he never once
missed a game when the New York Yankees were playing the then
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Washington Senators in Washington. He would, at the beginning of the
year, get the schedule and determine when the Yankees would be playing
at Griffith stadium in D.C. He would then look over his list of cases and
decide what cases might come up for argument when the Yankees were in
D.C. And what did he do? He would call the clerks and say please do not
set an oral argument for, and he would list the particular days, and it was
my understanding that these clerks were all very accommodating, with the
consequence that Mel Welles never missed a Yankee game [laughter].
MS. FEIGIN: And they understood that was the reason?
MR. ROSENTHAL: I don’t know whether he gave them that as the reason or not. He may well
have. In any event, his request that they not be set to coincide with a
Yankee game here was always met. Now in my case, in addition to the
courtesy that was extended to me by the Ninth Circuit clerk, with my older
three kids, I took them with me short of their fifth birthday when they
could travel on the train for nothing − nobody could ever accuse me of
being a spendthrift [laughter] − I would take them on the train to an oral
argument, in two cases to Cincinnati and one case to Chicago. In all of
these three occasions, while I was in the courtroom, my kid was in the
clerk’s office being entertained by the clerk’s office staff.
MS. FEIGIN: Really? How nice.
MR. ROSENTHAL: That was the kind of thing that went on in those days. They couldn’t have
been nicer. I recall with my daughter, who I took to the Sixth Circuit in
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Cincinnati, when I went back to the clerk’s office after the argument to
pick her up, she was busily drawing pictures and they were putting the
court seal on them [laughter]. So that was just something that I found that
was very helpful. I found, without exception, that the court clerks in those
days were extraordinarily accommodating.
MS. FEIGIN: Tell me about the Mel Richter argument in the Fourth Circuit.
MR. ROSENTHAL: That was unbelievable. Mel had a very complicated case. I don’t now
recall what the specific issue was, but it had a voluminous record of
several thousand pages. It was set for argument on a particular day in the
Fourth Circuit in Richmond, the headquarters, and four or five days before
the argument, Mel’s mother died in Springfield, Massachusetts. Well Mel
was a moderately observant Jew, but even had he not been so, obviously
there would have been a period of at least a week when he would have
been up in Springfield on the occasion of his mother’s death. When Mel
reported this to the Section Chief and said he was about to leave for
Massachusetts, the Section Chief got on the telephone with the then clerk
of the Fourth Circuit and said that obviously the argument should be
postponed. The clerk’s response was, “You’ll have to take this up with
Judge Parker, but I can tell you that when my wife died, I was back at
work the next day.” Unbelievable. In any case, the next thing that
happens is the Section Chief calls Judge Parker down in Charlotte, North
Carolina, which was where he was based, and explains the situation.
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Parker said, “Well you’ll just have to get somebody else to argue the
case.” The Section Chief at the time, Sam Slade, said, “Judge Parker, this
case has a voluminous record, a number of complex issues, it would just
be impossible for somebody else to come adequately prepared to present
this argument in the space of a few days.” “Well,” Parker said, “in that
circumstance, I’m afraid Mr. Richter will have to do his mourning in
court. We don’t postpone arguments. Once they are set for a particular
day, they are held on that day.”
When Sam got off the telephone, I understand that he was
apoplectic. In any case, he went down to the front office and reported this
to the Assistant Attorney General in charge of the Division who said “I
will call Parker myself.” About half an hour later, the Assistant Attorney
General – I don’t recall whether this was Warren Burger or whether it was
his successor after Burger went on the Court of Appeals − but in any case,
a half an hour or so later, the Assistant Attorney General called Sam Slade
and said, “Judge Parker has reluctantly agreed to postpone the argument.”
Then what do you think Parker did? He set it down for a Saturday for a
special session. Now fortunately Mel was not that religious that this
presented a problem for him, but there was obviously an element of malice
involved in that.
MS. FEIGIN: Wow.
Speaking of Warren Burger being head of the Civil Division, since he
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went on to the D.C. Circuit and then renown as Chief Justice, did you have
a lot of interactions with him? Can you tell us something about him?
MR. ROSENTHAL: I had a modest amount of interaction with him. Fortunately the Assistant
Attorneys General in my time did not involve themselves to any great
extent in the doings of the Appellate Section, so my dealings with him
were relatively modest. I have, however, a great Burger story. When
Burger was nominated, we’re now talking about the spring of 1956,
nominated for a seat on the District of Columbia Circuit, his nomination
was assigned to a subcommittee of Senate Judiciary, chaired by then
Senator Joseph O’Mahoney of the state of Wyoming. Well the
nomination is no sooner assigned to his committee, the subcommittee,
than five former lawyers in the Civil Division informed Senator
O’Mahoney that they are prepared to testify that Warren Burger is antiCatholic war veteran. And how do they know this? Well it seems that all
five of them had been lawyers in what was then called the Claims Division
when Burger arrived on the scene as Assistant Attorney General in early
1953, and one of his first acts had been to fire all five of these gentlemen.
What better proof could there be that he was anti-Catholic war veteran?
They were all Catholic, all war veterans. Well Senator O’Mahoney thinks
that he’s really got an issue there, but the Senate, it was a presidential
election year – the Senate recesses for the year before it gets to Burger’s
nomination, whereupon Eisenhower gives him a recess appointment.
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We’re now in January of 1957. Eisenhower has been duly
reelected, up goes Burger’s name again, and O’Mahoney is scheduling
hearings, and he gets a message from J. Howard McGrath. J. Howard
McGrath had been Attorney General during the Truman administration.
He was not Attorney General at the end of it. But he also at one point was
a United States Senator from Rhode Island. J. Howard McGrath said that
he has heard about this claim being made by these five former Justice
Department lawyers and he wanted O’Mahoney to know that if they were
allowed to testify, he, J. Howard McGrath, will appear before the
committee and testify that, when he was Attorney General, he had tried to
fire all five of them and had been blocked from doing so by their patron
who was a senator from Massachusetts. Somehow this whole
Irish Catholic war veteran matter got dropped, and as we know, Burger
was then confirmed and eventually, of course, ended up as Chief Justice of
the United States. That’s the main story I have about Warren Burger.
The only other thing I might mention about Burger is in those
days, the Divisions each had one political assistant to the Assistant
Attorney General in the Division. Today I understand in the Civil
Division there are a number of political deputies to the Assistant AG, but
there was just one in those days. Well Burger comes on board and in the
position of the political deputy was a career employee and Burger was
perfectly satisfied with him. But the Republicans are coming in after
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twenty years of Democratic rule and there are some people up on the Hill
that learned of the fact that there is a Democratic holdover occupying this
political position and they sent word to the Attorney General, that was
passed on to Burger, that he had to get a political deputy of Republican
stripes. Burger said, “Well, okay, supply one. I’m not going to be very
active in the search for a replacement,” and the Attorney General, who
was Herbert Brownell at the time and came from the New York legal
establishment, came up with a gentleman who was an associate at the time
at Cravath, Swaine & Moore and was not going to be made partner. Of
course, the Cravath firm was noted for the fact that it was a good
employment agency for its associates who were not going to be made
partner. Apparently somebody at Cravath had served this guy up to
Brownell, and Brownell passed him on to Burger, and Burger took him.
Well he turned out to be an absolute disaster, but he occupied that position
for the entire eight years of the Eisenhower administration.
So Burger wasn’t that much really of a political animal in terms of
the Division. I think he ran it quite competently on a non-partisan basis.
But actually the Civil Division, unlike, for example, Antitrust or Civil
Rights, was really not very much affected by changes of administration.
That’s because what the Civil Division really didn’t have very much of a
policy flavor to it. We were regarded as the country’s largest general law
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practice, and there wasn’t really the same kind of policy issues coming up
that would arise in, particularly, Civil Rights or Antitrust.
MS. FEIGIN: Were there any McCarthy Era cases?
MR. ROSENTHAL: Definitely. The most notorious of them all was a case called Peters
against Hobby, and this involved Dr. Peters who was a consultant to the
then Department of Health, Education & Welfare, and he had passed the
security inquiry of an outfit within HEW.
The Civil Service Commission had its own security operation, and
it flunked Dr. Peters on grounds that were outrageous. Well, Peters took it
to court, and it eventually ended up in the Supreme Court, and that case, as
a number of others of its ilk, was within the purview of the Appellate
Section for the drafting of the brief in the Supreme Court. I had told the
Section Chief at the very outset that there were very few things that I was
not prepared to work on as a matter of conscience, but that line of cases
was one of them. Fortunately there was then a lawyer on the staff who
relished working on cases like Peters v. Hobby, so he had no reluctance at
all in taking on those assignments. Now the interesting thing about the
Peters case was the Solicitor General at that time was Simon Sobeloff who
had formerly been the Chief Judge of the Court of Appeals of Maryland,
the highest court in Maryland. Soboloff informed the Attorney General
that he would not sign the brief in support of what had been done to
Dr. Peters. As a consequence, the brief that was filed in the Court bore the
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signature of the Attorney General and, I think, that of the Assistant
Attorney General Office of Legal Counsel, but the Solicitor General’s
name was conspicuously absent. You can rest assured that that was
something that was not lost on the Supreme Court justices. Well, Sobeloff
paid a price for that independence. He was very anxious to get a seat on
the District of Columbia Circuit. He was very close, I might say, to
Judge Bazelon, who was then the Chief Judge of the court. The
Eisenhower administration was very anxious to get rid of him, but there
was no way that it was going to put him on the D.C. Circuit given the
nature of the cases that come before that circuit, so what it did was
dumped him on the Fourth Circuit. Being from Maryland, of course, that
was an equally appropriate place to put him, so he had to settle for the
Fourth Circuit, when he really wanted to be on the D.C. Circuit.
MS. FEIGIN: Was there any problem in saying I won’t handle a certain kind of case?
Was that acceptable?
MR. ROSENTHAL: I don’t think there were many occasions in which anybody in the Civil
Division Appellate Section ever requested not to be assigned a particular
type of case. I’m certain that several of my colleagues in the section were
very, very relieved when Ben Forman indicated not only a willingness, but
I think a desire, to handle that kind of case. Now whether they had
indicated to the Section Chief that they would not be willing to handle that
kind of case, I don’t know.
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MS. FEIGIN: What cases – there may be more than we can do today – but what were
your appellate cases? We’ll get to your Supreme Court cases next time.
Of your appellate cases, what stands out for you?
MR. ROSENTHAL: It’s hard to say. I had a wide variety of experiences that led me to
remember some of my arguments more than others. One that I
particularly recall, not that this was a terribly significant case. It was a
Federal Tort Claims Act case, again in the Fourth Circuit. What had
happened in that case was a young man, a merchant seaman, his vessel
had docked at some port in Alaska, where in order to get into town, you
had to go through a military reservation, and he had gone through the
reservation into this town and he was returning to his ship, again through
the reservation, and he was carrying a package. He was stopped at the
sentry gate and was asked what was in the package, and instead of
disclosing that it was laundry, which it turned out to have been, he took off
and ran into the reservation, and when he wouldn’t respond to a warning
shot, he was shot and killed. His parents, I guess it was, brought a suit and
lost in the District Court and took this appeal to the Fourth Circuit. Well
the lawyer for the plaintiff/appellant made what I thought was the dreadful
mistake of bringing his client, the mother of the deceased, to the oral
argument. During my entire argument, in the background were sobs. My
point, of course, was that this young man had brought this on himself by
his reckless conduct, not stopping and disclosing to the sentry what was in
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this package he had. I found that very disconcerting. But it’s very hard to
say. My arguments obviously covered a very wide range of topics.
The great attraction, from my standpoint, of Civil Appellate, was
that the number of different issues that we dealt with was enormous. It
covered virtually every area of civil litigation apart from tax or civil rights,
or things that were assigned to the other more specialized Divisions. That
was really the appeal of the Section. So it’s fairly hard right off hand to
think of what, on the appellate level, really stood out. There were many
very good experiences and there were many very frustrating ones,
particularly when I encountered what I thought to be a very dense judge. I
thought a judge was dense when he didn’t both see and agree with my
position, needless to say [laughter]. The quality, I would have to say, of
the Court of Appeals judges that I encountered over a twenty-year span,
varied widely, trying to view them objectively. And I guess that is to be
expected. Virtually all of these judges got on the courts of appeals
because of political connections, and it is very understandable therefore,
that they are going to be of varying quality.
MS. FEIGIN: Who stands out at the top of the range?
MR. ROSENTHAL: Well I would have to tell you that two of the Court of Appeals judges for
whom I had the highest regard were the two judges that supposedly were
the finalists when President Ford had a Supreme Court appointment,
namely John Paul Stevens, who actually was appointed to the Supreme
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Court, who was a Seventh Circuit judge at the time, and Arlen Adams,
who was a judge on the Third Circuit. I appeared before both of them
more than once. I might say before Stevens, in one of the most important
cases I had and I lost, but I think I lost justifiably. I felt those two were
outstanding.
There were a number of other excellent judges. On the District of
Columbia Circuit, I thought Judge Bazelon was first-rate and I thought
Judge Washington was first-rate. I thought Judge Fahy was as well,
although quite frankly I think he stayed on the court beyond the time when
he probably should have retired. Needless to say I had the highest regard
for my employer, Henry Edgerton.
MS. FEIGIN: What made you say these are the outstanding judges? Was it the level of
preparedness, the kinds of questions they asked? What was it that make
them stand out in your mind?
MR. ROSENTHAL: I thought that it was a combination of their level of preparation, their
objectivity, their analytic skills being brought to bear on the issues at hand,
and also I put into the mix the matter of courtesy. I have always thought
that one of the cardinal sins that can be committed by one in an
adjudicatory capacity is to be overbearing and rude because obviously the
lawyers appearing before the judge cannot respond in kind.
One story, I don’t know whether it’s apocryphal or not, involved
actually the District of Columbia Circuit, although I don’t know what
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judge it was, but this judge had supposedly given a lawyer an extremely
hard time, not letting him get a word out without being all over him, and
finally, so the story went, the lawyer said to him, “Well, Judge X, I’ll
concede your vote if you’ll allow me to address my argument to your two
colleagues.” Now again, that’s told as a true story. Whether it’s
apocryphal or not, I really don’t know. But I think that’s a very important
ingredient. One of my colleagues in the Appellate Section went out to
deliver an argument in the Tenth Circuit before Judge Murrah and
Judge Murrah said to her, “I see that you are here from Washington.” He
added, “I have to tell you that I have yet to hear a single argument
presented by a government lawyer coming from Washington that was
worth a damn.”
I never encountered that, but what I did encounter was a judge in
the Fifth Circuit, his name was Ben Cameron from Mississippi, and the
story went that Judge Cameron never decided a case in favor of the
government unless it was either a criminal case or involved some AfricanAmerican being done in. He was an absolute horror. Well I had an
argument before a panel in the Fifth Circuit on which Cameron was
sitting, and we were the appellee and we were clearly right. It was a case
in which there was little doubt that we were going to prevail. Well my
opponent presented his topside argument, as appellant. As I stood up,
Cameron left the room; he left the bench. I thought well maybe he has an
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urgent call of nature [laughter]. In any case, the second that I sat down,
and my opponent got up to deliver rebuttal, Judge Cameron reappeared.
He was clearly delivering a message.
MS. FEIGIN: I know one other thing that is really important to you is the crafting of
words. You’re a master at it. And I know you value it. Among the judges
before whom you appeared, are there any that you look back upon as
being particular word craftsmen of note?
MR. ROSENTHAL: I would say there’s one outstanding judge in that regard, and his opinions
were a delight to read, and that was John R. Brown, who was on the Fifth
Circuit; indeed for a number of years was the Chief Judge of the Fifth
Circuit. One of the things I never knew, of course, was the extent to
which these opinions were being written by the judge or being written by
his or her law clerk. I did see with some of these judges a considerable
difference in their writing style from one year to another [laughter] which
led me suspect that they might be relying quite heavily on their law clerks
to draft their opinions.
MS. FEIGIN: Do you have any thoughts about that as a practice?
MR. ROSENTHAL: I don’t have any problem with that. I think I do have a problem if the law
clerks are deciding the cases, but if the judges want to rely on their clerks
to draft their opinions, that does not give me heartburn.
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MS. FEIGIN: Well why don’t we end on a note where you don’t have heartburn
[laughter], and we will continue again next time. And thank you again for
a fascinating session.
MR. ROSENTHAL: Thank you.