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Oral History of
HONORABLE FRANK Q. NEBEKER
Sixth Interview
November 23, 2004
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 the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on November 23, 2004. This is the sixth interview.
Mr. Allen: This is the continuation of the oral history of Frank Nebeker. We are well
into his judicial career on the D.C. Court of Appeals. Last time, we talked
about health care cases and the no-cite rule, and today Judge Nebeker is
going to dedicate most of the time to the Willie Lee Stewart case. Judge
Nebeker?
Judge Nebeker: Willie Lee Stewart had quite a series of episodes beginning in 1953 through
almost ten years. He was charged with and convicted of killing a grocery
store proprietor, small mom-and-pop shop in 1953. He was convicted and
sentenced to death by Judge Schweinhaut. On appeal in 1954, a panel of the
D.C. Circuit comprised of Judges Bazelon, Edgerton and Washington,
reversed the conviction on the thesis that the instructions to the jury with
respect to mental disease and mental disorder were confusing and
particularly that the instruction that a psychopath was not an insane person.
That was found to be error. Besides that, the court said that Willie Lee
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Stewart should be tried under the just-announced rule of Durham v. United
States —
Mr. Allen: May I stop and ask a clarifying question so that the people reading this and
never hearing it will understand.
Judge Nebeker: Sure.
Mr. Allen: At this time, a trial court was then U.S. District Court?
Judge Nebeker: Yes.
Mr. Allen: Because that would be where a felony of that magnitude would have been
tried?
Judge Nebeker: That is correct.
Mr. Allen: And so there would be, of course, a direct appeal to the D.C. Circuit?
Judge Nebeker: As a matter of right, there was a direct appeal to the D.C. Circuit. The D.C.
court system was misdemeanor and limited civil jurisdiction with an appeal
certiorari-type appeal from the D.C. Court of Appeals or then known as the
Municipal Court of Appeals to the D.C. Circuit. The court of general
jurisdiction was the federal District Court in addition to its federal
jurisdiction.
Mr. Allen: So this was before general jurisdiction was conferred on the D.C. Superior
Court for crimes?
Judge Nebeker: Yes.
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Mr. Allen: There is still a choice even now whether to go federal with some crimes that
are committed in D.C. if there is federal jurisdiction for them, but otherwise,
it’s the D.C. Superior Court and its appellate court for –
Judge Nebeker: For offenses that are in the D.C. Code, as distinguished from the U.S. Code,
they are prosecuted here in the D.C. court system. My understanding is if
there is a combination of 18 U.S. Code federal criminal code violations and
D.C. Code they can be joined and tried in the federal District Court. I don’t
know that that happens very often. Back at this time, the U.S. District Court
had all the common law felony offenses. The only thing that was tried in
the local courts were petty offenses. It grew a little later on to being
misdemeanors as well.
Mr. Allen: So, what you have just described is the holding on the first appeal that
occurred —
Judge Nebeker: Now for posterity, for ease of research, the citation to that case, and I should
have the others – I do – is 94 U.S. App. D.C. at 293. So, the case was
remanded for retrial and he was again convicted and sentenced to death, this
time before Burnita Matthews. By this time the court had decided that it
would automatically go en banc to begin with, rather than have it reviewed
by a panel and then go through the petition for rehearing en banc because I
think the consensus was they knew they were going to go en banc in any
capital case before they could affirm it. By 1957, the en banc court
entertained the second appeal and found the basis to reverse on the basis
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plain error because the prosecutor argued his own personal views as to
credibility, such as, “I think Dr. Williams is mistaken.” Dr. Williams was a
defense psychiatrist. As I said, the court, five-to-four, found it to be plain
error because there had been no objection to the closing argument of the
prosecutor.
Mr. Allen: And had the prosecutor simply said, “Dr. Williams is mistaken,” it would
not have raised —
Judge Nebeker: That’s a little closer, but it still had the flavor of, I know something that’s
not in evidence, and that’s the basis upon which you don’t let a prosecutor
argue in such a fashion that he implies or that the jury might infer that he
knows something that they don’t know. That’s why the argument is better: I
submit you could find that this doctor is mistaken based upon the evidence
in this case. All right, it was remanded, then, for a third trial and by 1960,
the appeal was back to the Court of Appeals en banc and that cite is 101
U.S. App. D.C. at 51. In this one, the prosecutor in cross-examining
Stewart, asked him, “This is the first time you have taken the stand, isn’t it
Willie?” Stewart had not taken the stand in the two previous trials, but he
took the stand in this particular case and the Court of Appeals affirmed that
conviction by a vote of five-to-four. Interestingly enough, Judge Burger
voted to reverse. The petition was granted in the Supreme Court. At 366
U.S. 1., the Supreme Court reversed that conviction on the rationale that the
jury was now told that he had been tried before and convicted, not that he
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had failed to take the stand before. That was not the sin; the sin was that he
had been tried and convicted before and so Willie Lee Stewart had to be
tried again.
Mr. Allen: This would be the fourth time?
Judge Nebeker: This would be the fourth time and he was convicted by capital verdict again.
Mr. Allen: What year are we by the fourth appeal?
Judge Nebeker: The fourth appeal is 1963. And at this juncture I was Chief of the Appellate
Division. I remember assigning a very competent young man by the name
of Gerald A. Messerman to write the government’s brief. An attorney by
the name of Robert Martin had written a brief for Stewart; he was courtappointed, and it was a 65-page brief raising numerous issues. Five issues
with subdivisions – no, by gosh, nine issues with subdivisions in some of
them. The government’s brief addressing each one of them was filed and it
was an extremely lengthy brief as well. As the argument date became close,
Gerry Messerman and I conferred and we concluded that given the history
of this case and the fact that it was now capital verdict in 1963 and the
capital verdicts were beginning to be disfavored and certainly by the D.C.
Circuit, we in all probability could not sustain this conviction, though
neither of us at this point can remember which of the myriad issues raised
was the one likely to capture the attention of the en banc court, but we had
no confidence that we could sustain the conviction. As a result, I went to
U.S. Attorney David Acheson, who just before this fourth trial had refused
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to take second degree murder as a plea, and I informed him of our view that
we could not sustain this conviction and that the system, the criminal justice
system, would really have a black eye if this was yet to be tried for a fifth
time. Under the circumstances I suggested that I go with Mr. Martin to
Chief Judge Bazelon and urge that we would accept a plea to second degree
murder if the court would remand the record to the trial court for purposes
of taking the plea. I was concerned that if the court remanded the case,
there might be the possibility of double jeopardy clouding this issue and this
matter even further. With the authority of the U.S. Attorney I went to Judge
Bazelon and made the proposal. He was genuinely surprised that the
government would take this kind of a position, but I explained to him that
we really felt that the handwriting on the wall would be such that there
would be yet another reversal of this man’s conviction. I asked him if he
would go to the full court with the proposal and then inform us whether the
argument was going to go forward or whether they would remand the
record. Shortly thereafter I received a communication that the court was in
agreement that it would remand the case. My chore then was to go to the
trial judge, Alexander Holtzoff, and convince him to take the plea. That
was not an easy task. For anyone who knows Judge Holtzoff knows that he
was at the time a very demanding and a very strict but brilliant U.S. District
Judge. I can recall going into his chambers with this proposal and though he
was a man of very short stature, when he would begin to be upset, would
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bounce up and down a little bit in his chair, and he indeed began to bounce
up and down in his chair with this proposal.
Mr. Allen: This is a great image to try and visualize.
Judge Nebeker: He used to do that on the bench as well when he was upset with counsel. As
I say, he was a very demanding man. You did not cross your legs at counsel
table; you did not put a briefcase on counsel table, you kept it on the floor;
when you addressed the judge, you addressed him from the lectern and you
did not communicate with opposing counsel.
Mr. Allen: Those rules are often – at least they are expected to be observed in most
good court rooms.
Judge Nebeker: That’s true, but I’ll tell you, it was almost a capital offense if you violated
one of those rules with Alexander Holtzoff. In any event, eventually he
agreed – and he also agreed that he would order Stewart to be examined by
a St. Elizabeth’s psychiatrist to ensure that Stewart would not try to vacate
this plea or collaterally attack his conviction on it based on incompetence to
enter the plea of guilty. So, Judge Holtzoff appointed a psychiatrist by the
name of Jim Ryan who had been on the staff at St. Elizabeth’s Hospital
during that time. Incidentally, Ryan had also put himself through
Georgetown Law School in about two and a half years, so he was a forensic
psychiatrist. Well, Ryan examined Stewart a week before the plea and
concluded and reported that he deemed him to be competent to enter the
plea. We then had him examine Stewart the very morning of the plea and
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he came to the courtroom and announced to Judge Holtzoff and the rest of
us that he deemed Stewart competent to enter his plea of guilty. Then
Stewart was brought out. The tension in that courtroom almost crackled as
we waited to see if Stewart would, in the words of Shakespeare, “speak the
speech trippingly on the tongue.” He went through Rule 11 with Judge
Holtzoff. He answered all the questions the way he should in order to enter
the plea of guilty. Judge Holtzoff accepted the plea of guilty and sentenced
Stewart to life in prison and, as I recall, added orally to the sentence that he
should not be paroled without the express consent of Judge Holtzoff. Well,
of course, that was not a legally enforceable condition, but nonetheless I
guess it made the Judge feel better. I have attempted in the meantime to
locate Stewart, assuming he was about 20 years old at the time. That would
make him —
Mr. Allen: Twenty in 1953?
Judge Nebeker: Twenty in 1953. That would make him in his 70s now, but the Bureau of
Prisons doesn’t have any record, and I don’t have his prison numbers or
whatever, so I have been unable to determine whether Stewart is alive or
dead at this point.
Mr. Allen: It must have been a fair challenge for his lawyers to get him up to the point
of accepting this plea of —
Judge Nebeker: I’m sure it was. Mr. Martin was a very competent and capable man. I did
call him a few months ago in Florida to see if he could remember anything
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about what the best issue was – the one that we thought he would win and
we would lose on – and I must report that Mr. Martin is not in the best of
mental or physical health at this point and he really couldn’t recall. In fact,
he didn’t recall representing Stewart until I refreshed his memory quite
deeply before he could recall that but he could recall nothing of the case.
Well of course at that juncture, we filed a motion in the Court of Appeals to
dismiss the appeal with prejudice because Stewart had entered the plea of
guilty, as the Court of Appeals’ order permitted him to do. If he had not
entered the plea of guilty, then the record would have been returned to the
circuit court where oral argument and appellate review would have
continued in ordinary course, thus avoiding any possibility that a double
jeopardy plea could be made at sometime in the future. And we’ve heard
nothing further from Stewart. To my knowledge, he never filed a 2255
petition, collaterally attacking his plea of guilty. He never filed a motion to
withdraw his plea of guilty, and I do know that when I first proposed this
disposition to Mr. Martin, he told me that Willie Lee Stewart was so afraid
of the death penalty that he was perfectly willing to enter a plea to second
degree murder. So that’s the end of the Willie Lee Stewart saga.
Mr. Allen: Four trials?
Judge Nebeker: Four trials, three appeals, three reversals and a fourth very likely. Stewart
was absolutely convinced, according to Mr. Martin, that if he was retried a
fifth time, he would be sentenced to death again and he wanted to avoid that
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at all cost, and so that’s the reason he was willing to enter a plea. As I say,
he had offered to enter a plea earlier, and the U.S. Attorney refused it. The
joint appendix of that record reflects that the prosecutor, Alfred Hantman
and David Acheson personally appeared in court and rejected the plea offer
to second degree murder. He was then tried, and when the record on appeal
was put together, Acheson changed his mind and was willing to accept the
plea.
Mr. Allen: That was mainly the work of you and the lawyer working for you, Gerry
Messerman? —
Judge Nebeker: Gerry Messerman, yes.
Mr. Allen: — convincing him that this was a case that still had this destiny about it if
you had taken it up —
Judge Nebeker: With a capital verdict, the judgment of conviction was a snake pit, and we
were fairly confident that we could not sustain it; realized it at that time the
composition of the Court of Appeals was pretty much five to four or even
six to three on occasions, favoring the appellant in criminal prosecutions
and particularly a capital verdict.
Mr. Allen: Well, this case had Judge Burger, a fairly well known conservative,
although careful middle-of-the-road, I’d think, on figuring these kinds of
issues, voting for reversal at one point when the case went up and then the
Supreme Court sent it back, so it certainly was replete with issues that were
thorny.
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Judge Nebeker: It was indeed, and as I say, there were many issues. I don’t know that it
would pay for this history to go into those myriad issues that were raised on
appeal. Incidentally, I can tell you this. One issue that was raised was the
exclusion of blacks from the jury by the prosecutor. Now, of course, that
was way back then and that issue could have been won that we felt we
couldn’t win before that court. And of course, it’s finally the day of
peremptory challenges excluding on the basis of gender or race had yet to
come but, as we all know, it did come in just the last few years. Yes, that
was one of the issues that we were afraid of. I’m confident that we would
wind up with a lot of convictions being set aside because there had been
systematic exclusion through peremptory challenges based on race. So we
were concerned more, I think, as much about Willie Lee Stewart’s
conviction but also about potential for a retrospective effect of such a rule
should the circuit court adopt it.
Mr. Allen: Well, that was quite a saga.
Judge Nebeker: Indeed it was.
Mr. Allen: The Willie Lee Stewart case was a reminiscence about a case that ended
while you were back in the U.S. Attorney’s Office. You have suggested
now that we take up one more case that you think is worth describing from
your career when you were on the Court of Appeals, and that’s Neuman v.
Neuman, 377 A.2d 393 (1977).
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Judge Nebeker: Yes, it’s an interesting anecdote really, you’ll see, the reader will see, I
think, why. Neuman v. Neuman was a divorce and a child custody case.
Incidentally, it’s N-E-U-M-A-N, and it was a hard-fought divorce, bitter,
and, of course, in those situations the transcript gets rather expensive. So,
the female, I’ve forgotten her first name, appealed and filed an application
under 28 U.S.C. § 1915, the forma pauperis statute – to proceed in forma
pauperis, because she said she couldn’t afford the transcript and I know it
was a substantial transcript. We ultimately got it. Her husband filed an
opposition to the motion. An interesting question of standing, isn’t it?
Mr. Allen: Yes.
Judge Nebeker: But in any event, he informed the court that he didn’t believe that she was
incapable or unable to afford the costs. He gave as an example a
Thanksgiving telephone conversation with their daughter who was visiting
the mother in New York and in her office overlooking Madison Avenue
where the Thanksgiving Day parade was being conducted, and observed that
she was relatively affluent in some business up there with that kind of office
space.
Mr. Allen: This is the daughter or the wife?
Judge Nebeker: Well, this was the husband who opposed, citing this anecdote, or example of
why her affidavit of indigency was false.
Mr. Allen: Because the daughter had an office on Madison Avenue?
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Judge Nebeker: No, the former wife had it and was there with the daughter and he had a
telephone conversation with the daughter on Thanksgiving. She described
where they were watching the parade. So based upon that pleading, the
Clerk of the Court, Al Stevas, got a telephone call from the former wife’s
counsel and was informed that they were going to dismiss the appeal, and
that the motion was in the mail. Somehow or another, the husband’s lawyer
learned of this and called his client and advised him that the appeal was to
be dismissed and that he was free to marry another woman he was interested
in marrying. So, Mr. Neuman proceeds to marry the second woman.
Mr. Allen: No order had been – but the appeal?
Judge Nebeker: No order had been entered but the motion was in the mail. Well it was
about eight to ten days before that motion arrived in the Clerk’s Office and
when we got it, it was apparent all he was dismissing was the application to
appeal in forma pauperis.
Mr. Allen: It wasn’t dismissing the appeal.
Judge Nebeker: It wasn’t dismissing the appeal.
Mr. Allen: So there was no final order of divorce.
Judge Nebeker: And so this Mr. Neuman was out there I guess committing bigamy at this
point. Of course, nothing was made of it, but the transcript was ultimately
prepared and we approached the case on the merits. But in learning about
the motion to dismiss, we discovered from Mrs. Neuman’s lawyer that she
was a Professor of Law at Catholic University and that her certificate of
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service said that she had put the motion in the U.S. Mail, but, in fact, had
deposited it with the campus mail and the campus mail took extra days
before it was placed in the U.S. Mail. The opinion of the court reflects that
we, based upon counsel’s fault or erroneous certificate of service, had
caused considerable prejudice to Mr. Neuman and, accordingly, the court
refused to address the merits of the issues respecting the validity of the
divorce. We did not, however, impose that sanction with respect to the
issues of custody and we went ahead and ruled on the merits of those and
we affirmed them. But it’s an interesting twist to ordinary appellate
litigation. I often use this case as an example to teach the appellate
advocacy seminars that I taught at American University what it means to
certify that you have put a pleading in the U.S. Mail, you better mean you
put it in the U.S. Mail and not in some other alternative method. As a
further anecdote to this lesson, when I was Chief Judge of the U.S. Court of
Appeals for Veterans Claims, there would be instances in which the Board
of Veterans Appeals would put their decision in the Department of Veterans
Affairs mailing system, and it would languish there for a number of days,
particularly during a holiday season or over a weekend; it would languish
there before it was ultimately placed with the U.S. Postal Service, and of
course, the time to note an appeal from an adverse board decision was
running and we ran across a number of cases in which this delay while it
was in the VA mailing system had caused the veteran to note his appeal in
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an untimely fashion because he didn’t get notice of it until after it was
delivered and by that time the time had expired or nearly expired in which
he could file a notice of appeal. Calling upon Neuman v. Neuman, I think I
wrote the decision for the Veterans Court that required VA to deposit their
numerous mailings to veterans benefits applicants directly in the U.S. Mail
and not in the Department of Veterans Affairs mail.
Mr. Allen: I think probably issues of getting things filed on time causes more anxiety
among lawyers than almost anything else.
Judge Nebeker: Indeed they do. Indeed, now this is just an aside; I have never done it yet,
but when I was teaching appellate advocacy I wanted to give them a
question where – and this is strictly one that I conjured in my imagination –
a lawyer goes to church and picks up a church calendar that has been
misprinted. He takes it to his office, and he uses that calendar to calculate
due dates. Now the misprint in the calendar has made him late on a notice
of appeal. What redress would the client have against the church or its
printer of the calendar? (Laughs)
Mr. Allen: That’s a great class joke. Some say yes and some say no.
Judge Nebeker: (Laughing) Some say yes and some say no. In any event, shall move on?
Mr. Allen: Move on to Office of Government Ethics or wherever you want to go next.
Judge Nebeker: We don’t necessarily segue to it, but there are just two things I’d like to
mention about my period there. When I had retired from the D.C. Court of
Appeals in 1987, I intended to return as a senior judge. While vacationing
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that summer, I received a telephone call from a friend – as a matter of fact,
his name was Richard in the White House. He was Assistant Counsel to
the President – wanting to know if I would be interested in being the
Director of the Office of Government Ethics because that director had or
was about to – no, he had resigned and there was an acting director at the
time, a former colleague of mine in the U.S. Attorney’s Office by the name
of Bob Campbell. Well, I came up and was interviewed by the Director of
the Office of Personnel and the Director of Personnel was in the White
House itself. I was later interviewed by Constance Horner, the Director of
OPM, who incidentally I became quite friendly with and indeed sponsored
her membership in the Cosmos Club here in Washington, D.C. In any
event, I was offered the job and I accepted and I remember when I accepted
to the Director of Personnel of the White House, I said, “But I have one
request.” And he said, oh, in a tone of voice, “Oh no, what is it now?” And
I said, “Well, my mother is 86 years of age; she is out in Utah and I would
love to be able to introduce her to the President.” His response was, “Oh,
that can be arranged definitely.” So, I sent mother a ticket and she flew to
Washington and we took her into the White House at the appointed time and
were ushered into the Cabinet Room while we were waiting; the President
was in the Oval Office. My mother was so awestruck by the idea of being
in the Cabinet Room and walking around and seeing the pamphlets, notetaking paper on the table, I think she even snatched one. But then we were
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ushered into the Oval Office and I can recall saying to President Reagan,
“Mr. President, it is my honor to introduce my mother, a congenital
Republican.” And he took a double take at that and within a matter of a
breath said, “Well, I can’t lay claim to that,” recalling of course that he had
at one time been a member of the Screen Actors Guild and a member of the
Democratic Party. In any event, that’s a digression.
Mr. Allen: It’s a fine one.
Judge Nebeker: I then took over the Office of Government Ethics and, thanks to their staff,
was able to get up-to-speed fairly soon. That was one of the most
competent staffs I have ever worked with. They were very dedicated people
and they knew their business. They were wonderful lawyers. There came a
time when the Congress had passed an act called, “The Post Employment
Act of 1988,” and I had gone to the House Committee, Government Affairs
Committee, to testify on that act. I zeroed in on the provision that forbids
government employees from accepting honoraria for speeches given on their
own time, not on government time. It primarily affects scientists and
doctors who were in NIH and elsewhere in the federal government who
were academics of one kind or another and were in demand and could
indeed augment their income substantially by a speaking tour. The member
of the Committee that came out to hear my testimony, it turns out, was a
former justice on the New Hampshire Supreme Court and a very close
friend, and when I testified that I didn’t think that particular prohibition was
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constitutional, in a friendly way he scoffed. Nonetheless, they passed the
statute and the President signed it into law and we now know that the case
ultimately wound up in the Supreme Court and they reversed that particular
provision on the ground that it indeed did violate the First Amendment right
of those people who were speaking on their own time and not on the
government’s time.
Mr. Allen: Some of you were —
Judge Nebeker: Apparently so. The other —
Mr. Allen: The member of Congress, the former New Hampshire Supreme Court Judge
was who?
Judge Nebeker: We will fill in that name later when I proofread this stuff, I’ll get it.
[Charles Douglas] In any event, the other episode while I was at the Office
of Government Ethics that’s worth noting is when the Congress was under
pressure to adopt ethical standards for their employees and members,
similar to the ones that were applicable to the Executive Branch. The House
cobbled together a bill that purported to do that, and convinced the Senate to
pass it and then the usual comes from the Office of Management and Budget
for all executive agencies to express a view whether the President should
veto the bill or sign it into law. I had been living with those things since I
was Chief of the Appellate Division in the United States Attorney’s Office
because the Department of Justice would buck an awful lot of that
legislation over to me and I’d have to draft the memo for the Department. I
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always knew that the OMB wanted these things the next day. There was
very, very little short time schedule on it, so in any event, I put together,
along with the help of my staff, a message recommending disapproval of
that bill. When I got into reading the bill itself, the black-letter headings,
the bold-faced headings of the various sections were quite laudatory but all
they did is express a purpose. When you got to the actual substance of the
legislation it had none whatsoever. I was appalled, and so I edited my
message to the President that “when one reads the substance of the bill, one
can recognize the disingenuousness of the exercise.” A few days later, I
received a telephone call from someone at the White House – I can’t recall
now who – saying that the President wanted to know if I had any objections
to him attaching my recommendation to his veto. Of course, I said it would
be all right, not that I could have said no and been very effective, I’m sure.
But in any event, a few days later, I get a telephone call from the sponsor of
this bill in the House who was as irate as I had ever heard a man being, took
particular umbrage at the fact that I would say that it was a disingenuous
exercise. This sponsor had apparently cashed a number of “chips” with his
colleagues in order to get them to vote for this thing, and he was quite upset
that it had been vetoed at my recommendation. There might have been
another recommendation, too, I don’t know. But in any event, my choice of
words offended him and my only response to him was, “Barney, I’ve been
in the business of calling them as I see them since 1969 and that’s the way I
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saw this exercise.” That sponsor was Congressman Barney Frank from
Massachusetts. End of saga.
Mr. Allen: Interesting story. The result then left them without a statutory code of ethics
for Congress and its staff.
Judge Nebeker: That is correct and the President’s veto message urged that they put together
one that was acceptable. I think they’ve done that now; at least – I haven’t
followed it that closely – they do have ethics committees. We hear about
that all the time in the newspapers, and there must be some standards they
go by, but whether they were enacted law requiring the signature of the
President, is probably very doubtful. I don’t think they have to have had the
signature of a President.
Mr. Allen: Well, they can adopt their own rules.
Judge Nebeker: They can adopt their own rules.
Mr. Allen: To make it federal law or to put, for example, civil or criminal sanctions in
it, they’d need to enact.
Judge Nebeker: I am not aware now of whether they have done that.
Mr. Allen: But at the time, it was such a weak version that it didn’t appear to you to be
worth signing.
Judge Nebeker: It had virtually no substance to it whatsoever.
Mr. Allen: Interesting episode. Anything more on OGE that you think is worth
discussing today.
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Judge Nebeker: No, I don’t think so. I got a call while I was there, again from I think it
might have been Dick Hauser again wanting to know if I would be
interested in being the Chief Judge of the Court of Veterans Appeals. I
didn’t even know it existed; I said, “Well let me go check it out.” I went
into the little law library we had there and read Title V and when I saw that
the court could have three to seven members and that they would be paid –
that is the associate judges would be paid at the rate of the U.S. District
Court and the Chief Judge would be paid at the U.S. Court of Appeals
salary, I decided I could accept that job. I went through a confirmation
process with Senator Cranston from California who took a very dim view of
my having been a member of the Lawyers Club of Washington and of the
Cosmos Club because neither admitted women. And I finally received a
letter from Cranston saying that he would not report me to the floor for
confirmation unless I resign from the Cosmos Club. I wrote back and said
to him that I was working from within to have the Club admit women and
that we were on the verge of it. This was in April and the meeting for the
Club was scheduled for May, at which the bylaw change would be proposed
and I had earlier been conducting symposia with the Club members
convincing the Club members that it was the right thing to do to amend the
bylaw to admit women, and also, that if we continued to fight it as a matter
of law we weren’t going to win it. We had the Rotary Club case out of the
Supreme Court staring us in the face and we knew, at least I knew, that its
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time had come and we should do so gracefully. Well, when I refused to
resign from the Club, I sent this letter telling Cranston that I was working
from within and that I believed that was better than using the iron heel of the
chancellor, I think that was the way I put it to him. He backed off and held
my confirmation hearing and was very cordial about the whole thing but he
said to me, “Now if they don’t adopt this bylaw change, I expect you will
resign from the Club.” I never had to make that promise good because I
was very confident that women would be admitted and indeed they were by
a unanimous vote of the Club membership. The most well-attended meeting
the Club had ever had. The same happened, incidentally, with the Lawyers
Club of Washington, only not with a big fanfare.
Mr. Allen: Okay. This is Side B and we have just been talking about the Cosmos Club.
Judge Nebeker: And the confirmation hearings.
Mr. Allen: The confirmation hearings for the Veterans Affairs Court.
Judge Nebeker: I don’t know what possessed me to do it, but during that hearing when
Senator Cranston wanted me to promise to resign from the Cosmos Club if
it did not admit women in the next weeks, he then asked me why does the
Cosmos Club not admit women. And my response – and it even surprised
me – I just looked at him and said, “Because of men of your age, Sir.”
Mr. Allen: (Laughing) That’s wonderful.
Judge Nebeker: (Laughing). And it was true. It was the older men that wanted the status
quo and they didn’t want to be forced into having women admitted to the
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Club. But when push came to shove and when a vote was called, many who
stood in opposition at the meeting during the floor discussion, nonetheless
voted in favor of it. And one of the greatest things I’ve ever seen him do
was when Walter Washington was there, silence fell and he stood, was
recognized by Tedson Meyers who was the President of the Club at the
time, and I don’t recall his exact words at all, but it was so succinct and so
short; it was we all know – it was something to the effect that, We all know
what’s right, now let’s get about and do it. I really think it had an effect on
all the members there because the vote was called upon and the records
reflect it was unanimous.
Mr. Allen: And he was probably as popular a man in the District as there was.
Judge Nebeker: Oh, yes, without a doubt he was and respected by the Club members as well.
Mr. Allen: Right. Well, that’s a great story.
Judge Nebeker: And I guess that perhaps would sum it up unless we decide to have a special
session a little later on.
Mr. Allen: Well, I’m sure that you are going to have some recollections of things at
OGE and at the VA and perhaps the Court of Appeals that we are going to
want to go back over. It is now just about 11:00 a.m. on November 23 and
should we end for today?
Judge Nebeker: Yes.