(January 26, 1998)
Today is January 26, 1998. We are in Mr. Gardner’s home,
and we are going to continue discussing private law
practice. Mr. Gardner, let me start by asking you about
your work with the Administrative Conference of the
United States during the 1970’s and 1980’s. Maybe you
could begin by explaining what the Administrative
Conference is and what your participation was.
The Administrative Conference, pursuant to a statute,
enacted I believe in 1966, was supposed to be sort of a
convention of government lawyers, professors, and
attorneys in private practice. For about two years
President Johnson did nothing about it, but finally
appointed a director and a governing council. The
council included Walter Gelhorn, who was in effect the
guiding light of its work throughout its nearly 20 year
existence. I was made a member, members being private
practitioners rather than government officials who were
so-called public members. Private attorney members were
appointed for a two year term and I was appointed to and
then made Chairman of the Committee on Informal Action
which was a fascinating subject. I was reappointed for a
number of terms and resigned about 1978. In a year or
two later I came back as a senior member. I was allowed
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to listen and to talk, but not to vote.
Informal action, as you know, occupies most of the
‘s activities. I created the fact that 90 percent of
what the did, it did by informal action. I once stated
that in a small article on the Administrative Conference
and then Paul Verkuil quoted me for that 90 percent
figure and Ken Davis then quoted Verkuil for the 90
percent figure and I ended up quoting them both.
was by then an incontestable fact.
So it
On the Committee was Ken Davis. I thought surely
he’d been asked to be Chairman but said no. He was the
outstanding expert on informal action and was well aware
of that. I was Chairman. We had at least an eight year
quarrel over two basic propositions. He wanted to
eliminate all discretion, in particular prosecutorial
discretion, and I was violently opposed to that since I
considered that a prosecutor’s discretion was one of the
most important foundations of a sensible government
concerned with civil liberties.
I had an aspiration that with sufficient work and
sufficient talent one could produce an informal procedure
act equivalent to the Administrative Procedure Act as a
way of crystallizing at least the basic standards that
ought to apply and Ken thought that was silly. We had an
eight year contest over each of those. Neither of us
winning, except that nobody ever undertook the
formidable task of drafting an informal procedure act.
Roger Crampton as Chairman gathered a number of
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outstanding professors and we had a weekend “retreat” or
meeting to discuss it. The professors in general agreed
that. it was a job that should be tried but none wanted to
do it himself.
By and large I think the conference gave a pretty
large amount of good but nothing spectacular. In my
committee we discovered the most useful thing to do was
approach a particular agency and study it carefully with
a competent man and provide particularized
recommendations. One example being the SEC no-action
letters. They were SEC advices responsive to inquiries
of what was legal or not legal and they were not made
public. Only the person who made the inquiry got the
answer except if you were one of half a dozen large New
York firms. They pooled all of their answers and they
had a library which no one else in the country had. In
any event, we got the SEC to make them public as a
routine matter, which I considered probably a good thing.
And so it went in our Committee. We accomplished very
little in general solutions, but a modest amount of good
in particular instances. About the same thing occurred
in the other Committees. The Congress was never
interested in the work of the Conference and
eventually about three or four years ago eliminated its
funding. One Congressman, his name I forget, had been
trying to accomplish that for two or three years on the
express ground that the Conference was useful
initially in teaching people how to draft
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
regulations, but now that they knew, they didn’t need a
Conference to teach them how.
-The Conference at first had some very good Chairmen.
The first Chairman was Jerry Williams, who was not
notable. He was Dean of the Texas Law School and is now
on the Fifth Circuit. Then there was Roger Crampton who
was at the University of Michigan. I can”t remember
whether he was Dean or not.
He was Dean of Cornell at some point, I believe.
After his Administrative Conference job he went off to
Cornell as a Dean and I think he’s now given up the
Deanship and is teaching there. He was admirable. Then
Nino Scalia who was also very good. I believe he was a
Nixon appointee. He had been in the government in a
fairly obscure position. He was very good but I didn’t
find him as enterprising as Crampton had been.
Can I interrupt to ask you, what did you mean you didn’t
find him as enterprising as Roger Crampton?
Crampton had ambitions for the Conference. Taking up
projects and taking a very active interest in them.
Scalia was more hesitant about adopting new programs or
objectives than was Crampton. I think he was obviously
able and I liked him very much and I can’t at this point
explain in any detail why I thought that Crampton was
better in the job. The Chairmen who followed Scalia were
not very inspiring. For one example: the annual
meeting had been accustomed to having the Attorney
General or someone of comparable repute address the
– 15.9 –
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
meeting. Loren Smith, when he was Chairman, decided to
reach to the truly upper strata and he had speak to us
the judge on the radio or television program, People’s
Court or something.
Judge Wapner or somebody like that?
That’s the fellow. It was insanity rising to the highest
possible levels. When I came back I forget who was
Chairman. I was assigned to some committee chaired by
the General Counsel to the Commerce Department. I forget
his name, but he was a first class bureaucrat. He had an
assistant who came to meetings with him and did all the
work, thus requiring no thinking of his own.
What significant impact do you think it had, if any?
A vague and hard to measure impact in forcing the General
Counsel of the departments and agencies to take a little
walk with you and consider the impact of their work on
the affected people. In general, get their eyes
appropriately focused beyond the immediate programs to
which they were committed. I think it was useful and
good in that sense, but I also think it had no lasting
impact. Probably, we”re about where we would have been
Mr. Gardner, I want to change the subject and ask you now
about a case you handled in the late 1960s called
Fortnightly, which I guess was ultimately argued in the
Supreme Court.
I didn’t handle the case. It was a very important case
for the broadcasting industry relating to whether or not
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the cable industry could pick up broadcast programs and
carry it on without copyright or royalty obligation to
the broadcaster. One of the usual counsel for the
broadcasting people, Vernon Wilkinson by name, felt that
they ought to get before the Court a brief written by
someone who didn’t know anything about the technicalities
on the assumption that ignorance would permit him to
communicate more effectively with the Court than could
one with expertise. So, as I had plenty of ignorance
they came to me. The National Association of
Broadcasters asked me to write a major amicus curiae
brief. I don”t believe amicus briefs are very
influential but in this case I thought it might well be
because of the challenging subject.
The broadcast interests were on the sidelines. The
parties were a cable station and the American Association
of Copyrighters. I can’t remember the exact name. They
had Louie Nizer who was a self-proclaimed outstanding
attorney. The problem was that he had won in the
District Court, Southern District of New York, and he’d
won in the Court of Appeals, and the broadcast industry
was feeling fairly confident. I was not so confident and
thought that they would lose in the Supreme Court if they
didn’t make some very considerable concessions and seek a
lesser goal. I forget what the smaller objective was
that I was seeking. In any event, the broadcast
systems reacted violently to the suggestion that the
National Association of Broadcasters should ask
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for a smaller pie than they already had, because they
could see otherwise nothing but disaster. I went up to
New York with a couple of assistants and from 10:00 a.m.
until 8:00 p.m. had a quarrel with the General Counsel of
the three Associations. At 8:00 p.m., I finally got up
and said that the only thing I knew about the television
industry was how to turn the damned box off, and that we
were going home.
I modified our position quite a bit, probably too
much, and only later did I discover that the broadcasters
who were our client were really independent of the
networks. ABC, CBS, and so on sounded awfully important
from the outside, but the broadcasters were not all that
impressed by them. In fact, I probably could have had my
·way completely had I realized the power st:ructure more
clearly. I was out of sorts by then and I did not go
down and listen to the argument, but my assistants did
and they said that Nizer, who had just finished writing a
large book explaining how to be a brilliant lawyer, read
his argument to the Supreme Court, which is the surest
way in the world to put the Justices to sleep or
virtually to sleep and to destroy all their interest. He
did a wretched job and the broadcast industry lost the
entire issue and the cable industry ended up without any
obligation to the broadcast industry for picking up the
broadcasts and carrying them on.
I think it has been at least twenty years since
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Mr. Schultz:
then; I have not been approached by anyone in the
broadcast industry or the television industry to do
anything. I’ve been persona non grata for many decades
and I’ve have concluded when you’re dealing with the
television industry the image is a lot more important
than the fact. I was prepared to give up what they’d
thought they had won in the lower courts, and my
disloyalty was made worse when it later developed that I
was right. In any event, it was an entertaining
Do you think that’s often true in law practice that the
client cares as much or more about your just being on the
client’s side than about the quality of the legal
Mr. Gardner:· Well, one I think obviously is a factor, but I think what
Mr. Schultz:
is more important if the lawyer can somehow make himself
even a minor celebrity. If he becomes famous his
professional career in private practice is pretty well
assured. Some very able lawyers who are not well known
continue obscure in the public’s eyes. A lot of terrible
lawyers who are well-known … I’m not going to go any
farther in that direction. We both could find
Well speaking of high-profile situations, let’s talk a
few minutes about Anita Hill. That issue arose near the
end of your career. Can you tell us how you came to be
part of Anita Hill’s legal team.
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Mr. Gardner: I have been a friend of John Frank for many, many years.
He is a slightly younger lawyer. I worked with him when
he w?s in the government. I tried to have him hired for
the Solicitor General’s office when that was my concern.
And he went out to Phoenix because he had or was thought
to have bad lungs, I think. And from being a bright very
liberal youngster he’d become, I think, the most
prominent attorney in practice in Arizona and was very
good and has combined to an unusual degree his liberal
activities with corporate representation.
He’s a trying man sometimes but anyhow we’d known
each other for years. He was active in opposing the Bork
nomination, active and reasonably effective. When Anita
Hill stumbled into these hearings unexpectedly and on
very short notice she was advised initially by one or the
other or both of two lady law professors here in the
District who in turn recommended that she approach John
Frank to get his help. And he immediately agreed.
I think the hearing was to start on a Thursday and
this was on a Tuesday and by the end of Tuesday he got to
thinking that his Bork activities would be prejudicial to
Anita in this hearing if he took a prominent part. So he
set about to find someone to serve as a stalking horse,
preferably an establishment lawyer in Washington who
could add a note of respectability. He tried one very
prominent lawyer, I think with a reputation for
liberal causes, and he said, oh yes, he’d like to but he
was a little busy at the time and couldn’t.
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His partner told me later that he regretted that he did
bow out. So then, Tuesday night, John tried me and I
said., sure I’d help. And, on Wednesday noon, I guess, I
joined Frank and Anita and the two lady law professors
I’m a little hazy on their names which is why I’m being
obscure; my memory is not as good as it ought to be, and
also Charles Ogletree the very energetic black attorney,
who had just gone up to Harvard to teach. He was very
able and very frenetic, on a deadline all the time. John
Frank has some tendencies in that direction.
It was not at all clear to me what I was supposed to
do and it wasn’t at all clear to anyone what they were
supposed do to. There was very considerable
disorganization. It was not clear at least to me or
anyone else, whether Frank or Ogletree was in charge.
They didn’t differ but they dashed about conducting their
own enterprises and there was not a great deal of
I went over Anita’s statement. The establishment
attorney who didn’t want to be seen in public and I each
objected to her graphic and precise account of
disagreeable things like pubic hairs on the coke can that
had been told to her by Thomas. We thought she ought to
be more polite about it and use vague terms. But she had
her view and no one can say it was wrong. Since she was
telling what Thomas had said, she thought she ought to
say exactly what it was. It gave her considerable
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discomfort but not enough to convince her that she ought
to soften the account .
. I decided that the only thing that I could see that
I could do usefully, because I was not her principal
advisor by any means, was simply to listen to the
opposing testimony and, if anything developed to try to
do something about that. The opposing testimony, I
thought, was unreliable and distasteful, but what could I
do about it? I had no client on the stand, and I
couldn’t interrupt the testimony of the Thomas advocates,
particularly since when Anita wasn’t present I had been
moved out of the central location into the general
audience by the staff of the Coromittee.
The pro-Thomas testimony was uncontested by the
Democratic Senators. Neither that nor the
disorganization, lack of clear program on Anita’s side,
seemed to me at the time to be disastrous. She was a
splendid witness, evidently sincere, calm and collected.
I haven’t seen more than two or three witnesses in my
many years that I found as satisfactory as she was and
the Committee, I think, had much that feeling. The
Democratic side was warm and outspoken in complimenting
her and the Republicans to a degree joined in.
Then they started back with Thomas. We were badly
outdone in timing the witnesses. I was so innocent of
public relations, that I didn’t realize at the time, and
wasn’t in control anyway, the Republican side of the
Committee had maneuvered it so that Thomas had all the
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
evening hours, the television hours. At the start of the
hearing, Anita had been scheduled to go first and the
Comm?ttee asked if it would be alright if Thomas went
first. Well, I was the only one around that the lady
professors could ask because Frank and Ogletree were
tearing off on their own projects and again in my
innocence I thought that”s good, we’ll find out what he’s
going to say. I didn’t realize that we were being led
into a trap. Thomas testified first, then Anita, then
Thomas testified again rebutting Anita in the evening
hours, and that’s where the nonsense about the technical
lynching of a poor black man was paraded.
When people are in a repetitive sitting situation, for
reasons that are not clear to me, they general1y tend to
go back to the seat they had the first time they were
there. The first time we sat down Ogletree was
immediately back of Anita. Frank was in the back row,
his objective being to keep out of the public attention.
So I sat one seat removed in the row behind Anita. The
television cameras were set up in a corner of the room so
as they got a picture of Anita they couldn’t help but get
a picture of a white-haired, broken down, white honky
over her shoulder, and it made a pretty good aesthetic
So it sounds like she took the lead in her testimony.
She didn’t take directions as to what she would say at
all. All the Republicans, and Specter oddly enough in
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
particular, would accuse her of going back and being
instructed by lawyers how to perjure herself, or how to
avoid it in the next session. She, in fact, during the
recess period went off with her priest, her minister or
whatever he was, in a room by herself and didn’t have any
contact with the lawyers. I never had any doubt as to
the honesty and the sincerity of her testimony. I’ve not
been too happy with her subsequent career, but to a
degree she is perhaps naturally exploiting her experience
and the prominence that it brought her. She had the
misfortune of having Senator Boren become the President
of University of Oklahoma. He was one of the Senators
who voted to confirm Thomas.
Other than the timing of her testimony is there anything
you would have wanted done differently in hindsight?
There certainly is. Biden was so much a neutral, and so
anxious to show everyone, particularly the Republicans
that he was completely impartial, that he, in effect,
allowed the Republicans to dominate the hearing. And
then on the Democratic side, there were a lot of nice
gentlemanly people, ineffective as compared to the
effective, unscrupulous attacks of Hatch and tall fellow
from Wyoming.
Simpson and Specter. The one effective man on the
Democratic side had chained himself into silence. It
was Kennedy, and the hearing came just after he had taken
his nephew out on that trip to Miami, no I guess
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it was a Palm Beach bar, and the Smith episode was very
prominently in the press then. Only once did Kennedy get
so impatient that he burst into speech. Had he been able
to talk throughout the hearing it could have gone in a
different direction.
Then Biden, for example, agreed that it was a very
difficult area and that no one could ask Thomas about
anything other than what had happened when he was
actually at the office. Well, we didn’t have the Clinton
atmosphere then and no one expected that Thomas would be
engaged in lewd contact in the office. In any event, all
the supporting material of conduct outside of the office
was irrelevant under the Biden rule. And then there was
strong supporting testimony from another girl who had
been fired. Because she had been fired, Frank, I chink,
or Ogletree, I don”t remember which, did not want to call
her. And she would have been a good witness indicating
roughly comparable experiences. That was a mistake; I
don”t know of any other mistakes.
It was a disorganized thing. There were four other
witnesses designed to support Anita Hill. Not major but
minor ones. Ogletree thought it was good to call the
hearing closed at about 2:00 a.m. Monday morning as I did
indeed myself and so we agreed not to have Anita come
back, not to call on her witnesses and not to try to
squeeze them in under Biden”s time bar, which was
probably a mistake. We weren”t as far ahead as we
thought we were. In any case, it wasn’t the hearing; it
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
was the fact, oddly enough, that the black vote was
terribly important to a group of eight or ten of the
Senators who voted for Thomas and the black community was
supporting Thomas, so the hearing itself would have made
no difference.
Ultimately, it was one or two votes, I think, that
determined it.
The final vote was 52 to 48.
Right, my recollection is here there was at least one
Senator that could have gone the other way if it would
have made the difference. It was very close.
But, I like to say that when I win a case, I have one or
two people watching and when I lose one I have 20
That I think wraps up the specifics of Shea & Gardner.
I’d like to just give you the opportunity to reflect on
private practice in Washington and to compare private
practice to your service in the government.
Well, first the comparison is easy. The variety of
issues, the excitement, the feeling what you’re doing
makes a major difference, all line up on the side of
government service, as you know. Your basic trouble with
government service is as you advance through the ranks,
you pretty soon get to a point where the political
foundations are of first importance. I went in to the
government service being a nonpartisan, belonging to
neither party, and stayed in that condition despite
occasional embarrassment when I got into the
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Senate confirmation stage. It was evident that I
couldn’t continue there. Krug, who was Secretary of
Interior at the time I left, very sincerely but I think
naively, urged that I was in a position of a nonpartisan
Assistant Secretary pretty well acquainted with the
working of the Interior who should stay on whoever
controlled the White House. And it might have been an
opportunity to create something somewhat equivalent to
the British permanent Undersecretary. But I was
confident he was completely wrong in that. Being both
young and an easterner and having already offended two or
three of the western Senators there wasn’t any future in
the Interior Department secretariat.
My major government service, both in time and
perhaps importance, was in the Solicitor General’s Office
which is about the best job a lawyer can have in the
United States. But it was a real wrench to come into
private practice where you were in a sense engaged in
matters of no apparent consequence. But it was a wrench
more or less easily overcome. Any occupation that
requires a lot of work, full attention, is interesting
and rewarding in itself; whether it is a big or a little
Private practice in recent years has become somewhat
distasteful, I think. The practice of law has become a
business, a merchandising business, rather than a
profession. I overstate slightly but only slightly in
that aspect of the law practice I have not the slightest
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Mr. Schultz:
Mr. Gardner:
talent and I don’t think I’ve ever known, and don’t know
now, how to ask somebody to hire me as a lawyer or how to
go about that. Our firm has been among those less
infected by the drive for business development, but we’re
unquestionably infected by it now. So too are many
excellent firms which used to find adequate income
flowing effortlessly to austere, superior polished
people. It’s reasonably evident now that business
developing is critical to most large law firms which
require constant fuel to drive the engines. Even though
it is not possible to escape the business development
aspect, I don’t like it, and I doubt that many of the
people of other firms like it.
What advice would you give somebody coming out of law
school today and looking forward to a career?
Fortunately, I’m not asked to give that advice, but if
they were in a small community with established family
and social connections, and liking the life, then by all
means do a small town practice and not get caught up in a
large law firm. We have lost from Shea & Gardner over
the years probably a score of highly talented young men
and women. They go into government service and stay
there and I think by and large are happy and probably
happier than they would be in private practice. When you
happened to hit a good agency, the SEC used to be,
whether it still is don’t know, and if you”re content
with the prospect of staying put in a mid-level position
and not advancing c?rtainly not to division head level,
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and I think these days there’s a political requirement
even at section head level, you can have a good stressfree.
life. There are highly capable men in Justice who
have spent their lives litigating. But again that’s
risky because a bad superior can play hell over them. So
I don’t know.
A large law firm in the first place requires at this
point, I think, eight years as the usual period before
you’re considered for partnership, which is outrageous.
At Charlie Horsky’s funeral the other day my mind went
back to when he and I were in the Solicitor General’s
office together. He and I were the juniors and Paul
Freund, Alger Hiss and Charlie Wyzanski were the seniors,
and they conducted probably the most important litigation
the government’s had in this century. Not one of them
was 30, and not one of them could now be considered at
his age for partnership at Covington or at Shea &
Gardner. Things have not improved.
After that long apprenticeship you end up in a large
firm with a fairly narrow practice area. Most large
firms have a litigation section; if you end up there
you’re a little better off, the work area is somewhat
broader. By and large compartmentalization is not that
I have myself been very lucky. As a general
proposition, teaching or government service would
probably be more satisfactory for me than private
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practice. I have in fact been happy in private practice,
and happier than I’d have been if I’d tried to stay in
the government, and probably happier than if I’d
undertaken to teach, but I had a lot of underlying and
perhaps undeserved good fortune.