Frank Nebeker Interview No. 7, July 14, 2005

Oral History of FRANK Q. NEBEKER
July 14, 2005
This interview is being conducted on behalf of the Oral History Project 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 July 14, 2005. This is the seventh interview. It was sealed until November 2024.
Mr. Allen: Let’s begin. It is July 14, 2005. This is the continuation of the oral history of Frank Q. Nebeker, Judge Nebeker and today, Judge Nebeker has decided to provide his recollections and reflections on the events involving the redesignation of Judge Newman back in I guess 1979?
Judge Nebeker: 1980.
Mr. Allen: 1980, and this tape and the transcript of this tape at Judge Nebeker’s request will be sealed during the lives in being. Is that a fair statement of your wishes?
Judge Nebeker: Yes.
Mr. Allen: Okay. Judge, I think this is all a subject that you know quite a little bit about and I know relatively little. Why don’t’ I just say that’s the subject. It involves Judge Newman’s redesignation as Chief Judge. You and several other judges were involved in a controversy regarding it that had some public exposure. I think after your deliberation to put this on the record, it’s best maybe if you just begin at what you think is a reasonable beginning and I’ll ask clarifying questions if I think they are necessary.
Judge Nebeker: All right. When I first went on the D.C. Court of Appeals, Andrew M. Hood was Chief Judge. He was a marvelous southern gentleman and he
finally was forced to retire in about 1976, perhaps a bit before that. In any event, he was succeeded by Judge Riley, Gerard D. Riley who had come on the Court after court reorganization when the Court had been increased in strength to nine judges. Judge Riley did not serve a complete four-year term because mandatory retirement set in and he likewise then became a senior judge. And at that point –
Mr. Allen: The rule is that the Chief cannot be in senior status. Is that right?
Judge Nebeker: As a chief, that’s correct. He must step down as chief and then becomes a Senior Judge equivalent to Associate.
Mr. Allen: And that’s the mandatory retirement rule and that comes at age –
Judge Nebeker: It’s 74 now. It was 70 back then. It was elevated or increased from 70 to 74 during Carl Moultrie’s Chief Judgeship, I think because of a desire to have him stay on as Chief Judge beyond the age of 70. In any event, in the meantime, Judge Newman had been a trial court judge, and he was appointed to the D.C. Court of Appeals from the Superior Court and within a very few days, the Commission on Judicial Disability and Tenure designated him as Chief Judge to fill the Chief Judge vacancy created by Judge Riley’s retirement.
Mr. Allen: And this process is one that’s solely within the control of that Commission?
Judge Nebeker: Yes. What was interesting, of course, is that he was nominated by the President, had almost an immediate hearing before the Senate District Affairs Committee, and as I said, he took his oath of office immediately and
within three or four days, he was Chief Judge, having been designated by the Commission. So one can see the orchestration that went into this. In any event, thus began a tempestuous eight years with him as Chief Judge. He very soon exhibited a pattern of behavior whereby he would turn an argument by counsel, an oral argument by counsel, into an argument with counsel. That went on for three and a half years. Every time he was on the bench, and of course every time he was on the bench being Chief, he would sit center chair. There came a time when his four-year tenure was coming to a close and I had been active with the Appellate Judges’ Seminar Series and I was away at a seminar in the latter part of 1979. When I came back, Judges Gallagher, Harris and Kern came to me and announced that they had decided they were going to oppose Newman’s redesignation by the Commission.
Mr. Allen: To clarify timing. You said this began an eight-year tempestuous period. This is the end of that eight years?
Judge Nebeker: No. This was the end of the first four years.
Mr. Allen: End of the first four years, okay. And that was late 1979, so he would have come on in 1975 or 76.
Judge Nebeker: 1976. he came on in ’76 and was due to be redesignated if they wanted to redesignate him in 1980, so this all began about 1979. His pattern of conduct we had observed for the past three years was something that caused us great concern. So we wrote to the Commission Chairman. I can’t now
recall who that was. I do know that Judge Harold Greene was on the Commission and a man named Lucie and John Hechinger was on the Commission. In any event, we wrote to the Chairman of that Commission asking that we have an audience with them in order to present our case for refusing to designate. In the meantime, some way or another, there was a Post reporter who caught wind of this. His name was Ben Wiser. He was a young reporter for the Post and his assignment was the courts – the U.S. Courthouse and the District Courthouses. He started publishing some articles in the Post about this schism within the court. I might add that when those three judges came to me and announced what they were going to do, I joined them immediately and we wanted to know if some of the other judges on the Court would join. And it turned out that for various reasons, mostly political, we were the only four. Well, Ben Wiser, in one of his columns, referred to us as the Gang of Four, apropos if you will recall the Gang of –
Mr. Allen: I think it was the Gang of Four during the Great Revolution in China in 1948 or whatever it was.
Judge Nebeker: Yes. In any event, Ben wrote these articles and he had gone to Brown University with Newman and he started out being very critical of the Gang of Four, but as time went on, he did a complete 180-degree switch in the tone of his articles. What we did when we were granted an audience with the Commission is, we each prepared a written statement. We went in, the four of us together, and each read our statements individually and they were
quite similar and yet quite individual. When we were through reading these statements, there were questions, and we had brought with us a number, probably eight, ten or twelve tape recordings of oral arguments to establish our case for non-judiciousness during that portion of the Court’s functioning, that is the oral arguments. And that wasn’t the only reason that we opposed his redesignation. Basically, he took the approach, at least we felt, that the Associate Judges worked for the Chief Judge. That he was not first among equals. It was a very difficult period in the Court. It polarized on judicial philosophy as well as on behavioral matters, and we explained all this to the Commission, and I’m sure they have their official records of these written statements that we made and so forth. We asked them to listen to the tapes, any one of them. They could just pick one at random if they want to and listen to the tapes. Well, they were kind of reluctant to spend that much time, but they ultimately did listen to the tapes, and we – a few of the tapes, and we said we rest our case. At that point, John Hechinger became rather hostile to us. He accused us of selecting and secretly recording these oral arguments in order to get at Newman. We explained that we record every oral argument. They are at liberty to go and listen to any of them that they want, but we brought these in as examples. Well, he had to back down on that.
In the meantime, Wiser was continuing to write articles about this. I don’t know for sure his sources of information, but it became thus a public expose´, if you will, or a public dispute. The Commission itself finally met.
Mr. Allen: How many members were there on the Commission?
Judge Nebeker: There were seven. And I mentioned that there was Harold Greene on it. He was U.S. District Court Judge at this point and the statute required, provided, for one U.S. District Court Judge on the Commission. I might add that a guy named William Borders was also a member of this Commission. Mr. Borders did not attend the session or sessions when we were there presenting our case to the other members of the Commission. My recollection is that we met with him individually at a later time, he being the only person present from the Commission. And he was quite indifferent to anything that we had to say. I do recall one instance in which Judge Harris was talking to John Hechinger and I believe Stan Harris asked Hechinger after having listened to this series of tape recordings, whether Hechinger would want Newman to be representing him. And Hechinger’s response was, “Well, that’s different. We’re talking Superior Court and the D.C. Court system.” Exactly what he meant I don’t know, but I think it was they’re not as important as I am. At least that’s the inference that I drew.
Mr. Allen: Somehow that the Superior Court was less important than the Federal Court?
Judge Nebeker: No, that the District of Columbia (?) courts were less important with respect to judiciousness than the District Courts, or representing clients. But in any event, they met ultimately because they had to make this decision. And the decision was made 4 to 3, to redesignate him. Bill Borders’ casting the tie-breaking vote. What was interesting – and this was told to me by Harold Greene later – Harold was a master politician and strategist. He read the Commission pretty well, and he figured that they would by about a 4 to 3 vote redesignate him. So Harold came to that meeting with a statement prepared in his pocket, and when he saw that things were going to be in favor of Newman’s redesignation, he pulled this paper out and proposed that that be the letter that they send informing everybody that they’ve redesignated Newman as Chief Judge. That letter is – I don’t have a copy of it, but that letter is a public record. And it, in effect, acknowledged that he had behaved in an injudicious fashion and that he had brought about great disharmony within the Court, and that they were fully expecting that in light of what he had told them when they met with him, that he would change his ways and they would monitor him to make sure that he changed his ways. In short, it was damnation almost by faint praise. He was put on probation, which didn’t do a bit of good. He served out the remaining four years with somewhat the same behavioral pattern. Indeed, we had a conference right in this very conference room where we are recording this oral history, on an en banc case, and he, as usual, would tend to interrupt when another judge had
something to say about the case. As a result, for some of the other judges, this became sort of a way of doing things. The other judges were, once in a while, interrupting, and Judge Gallagher interrupted Newman. Newman reprimanded him for having interrupted him and Gallagher made the comment, “Well, that’s the pot calling the kettle black.” And with that, Newman banged down on the table and said, “This conference is adjourned,” and got up and stormed out. The other judges began looking at one another and decided, well, they started standing up, and I said, “Just a minute. I came here to conference this case, and so long as one other judge stays here, I will conference this case. The Chief Judge cannot adjourn this Court’s conference.” And believe it or not, they all sat back down and we conferenced the case for about another half, three-quarters of an hour. Then we went to lunch. And when we came back from lunch, Newman was back. He’d come back and was chairing the conference. And we ultimately agreed on how to decide the case and who was going to dissent and what-not. But, that’s basically the story behind his behavior. He and I have always been, other than that, very good friends. I respect his legal ability, always have respected his legal ability. And he told my wife one time at a party, and I was kind of proud of that, because I have a lot of respect for Ted’s ability, he said, “There’s one thing about Frank that I know. He’ll never blind-side me. He’ll always be up front with whatever it is he has to say.” And I was always that way. I’d go to him and tell him, “Ted, we’re
going to do this.” And in fact, we did that. The four of us did. We went to Ted and told him we were going to publicly oppose – or officially oppose – his redesignation.
Mr. Allen: You didn’t seek publicity for it I take it.
Judge Nebeker: No.
Mr. Allen: Your approach to the Commission was without any attempt to make it public. What happened was that there was a court news reporter who got on to it and began to make it a story?
Judge Nebeker: Yes, and as I say, Newman knew we were going to oppose him, and I know that his friend, Bill Borders, was on the Commission. We knew that, that he was on the Commission at the time and that they had been very friendly. Incidentally, it’s the same Bill Borders who was ultimately convicted in the bribery matter of Judge Hasting, now Congressman Hasting from Georgia, I believe it is. Borders has now got an active effort to be readmitted to the Bar. He was disbarred for the conviction, and I think he’s even got Ken Starr representing him, if I’m not mistaken. He went to the Supreme Court a couple of times and he hasn’t been successful in getting back into our Bar yet. I don’t know before whom it’s pending, but it is pending before a division of this Court right now. It may be pending before the en banc court, but of course, being a senior judge I’m not privy to that.
Mr. Allen: Did Mr. Wiser from The Post ever interview any of you?
Judge Nebeker: Yes. He did. I think, well, I know that the interviews that I had with him were off the record, for background information and off the record. He adhered to that. I just don’t – I assume that he interviewed the other four, but I’m not positive of that.
Mr. Allen: So, in 1979-80, Judge Newman was redesignated for another four years.
Judge Nebeker: That’s correct, with this admonition and in effect, sort of a probationary caveat.
Mr. Allen: And then, at the end of that four years, he had reached the age of retirement, or what happened then?
Judge Nebeker: Well, I don’t know for sure what happened. They went ahead and designated Bill Pryor as Chief Judge.
Mr. Allen: In 1984?
Judge Nebeker: In 1984, so I really believe that they knew that they ought not to redesignate him for a third term. They would interview each judge, the Commission would interview each judge on this redesignation or designation situation to get their views, and I know that we were interviewed, and we all said Bill Pryor is really the guy you ought to put on the Chief Judge’s chair, and they did. Newman reverted to being an Associate Judge and then subsequently he took senior status.
Mr. Allen: And continues.
Judge Nebeker: He does. He continues to.
Mr. Allen: I’d like to ask a question if you don’t mind about your remark about polarizing over judicial philosophy. This is a court, I think, those of us who are familiar with all the courts in the District of Columbia would know this, like all the others, is drawn from the bar and the bench and the city and I guess in some situations from elsewhere, it is true for some of the courts, but differences in judicial philosophy are almost a hallmark of the courts here. It’s rare that we’ve ever had courts that are made up of mostly liberals or mostly conservatives or mostly Democrats or mostly Republicans. Almost inevitably we are going to have a mixture of both. Is that a true statement?
Judge Nebeker: That’s a true statement with respect to the Court back then.
Mr. Allen: Would you say it ceased to be?
Judge Nebeker: Yes.
Mr. Allen: Um.
Judge Nebeker: I’ve been away from the Court, as the earlier oral history will reflect, when I retired in 1987, I then went to Office of Government Ethics and then to the Chief Judgeship of the Veteran’s Court, so I was gone for about 13 years. While I kept up on the opinions of the Court, because I had the Clerk send me the slip opinions, I was not privy to the changes that were taking place within the Court, the new personnel that were coming on, save for one thing. I would come over once in a while and have lunch at the judge’s dining room with the appellate court judges at their table. As a result, I got to know them a little bit; they got to know me a little bit. I observed that the
Court was not as contentious, because it would show at the table. Always did at the table, and when I came back in 2000, I discovered a completely different tribunal than what I had left. It’s a very collegial court. Nobody with an agenda, which I find very refreshing, and there isn’t the – if you will – liberal and conservative division within the courts. Sure, we all have our judicial philosophies, but each respects the judicial philosophy of the other.
Mr. Allen: Well, but I think maybe that’s what I was getting at. During the period when Judge Newman was Chief, you still had divisions. Is it your sense that – or perhaps they were even more pronounced – is it your sense that his conduct as Chief made that potential problem worse, or made it into a problem in other ways?
Judge Nebeker: I think it did. You see, he’d lobby with judges he felt he could lobby with, and many of them were quite susceptible to it. So when it came right down to it, there was a period of time there where Stan Harris and I were really the only conservative members of the court. The others would pretty well gone with Newman and he’d go around and lobby individually the judges to decide the case his way. This is the way he wanted it decided and he would do that. He tried it with me and found out it didn’t work. And he tried it with Stan Harris and found out it didn’t work, so we were not a part of the lobbying effort after that. It tended to bring judges into his mode of legal reasoning and his philosophy and as a result, the Court was somewhat pretty well split. Now, some of the judges were centrists. Without naming names,
I’ll say some of the judges who were centrists and sometimes would join Newman and sometimes not, have become totally different in their judicial philosophy in the last ten, fifteen years, and I think – then the new judges that have come on the Court have just made the Court a totally different and much more pleasant milieu in which to work, than it had been before.
Mr. Allen: You attribute that to just changing personalities of different people.
Judge Nebeker: I do. I do. And look — we’ve talked about the circuit court during the Bazelon era from 1954 on while he was Chief Judge after that. There was a tremendous philosophical division on that court. Bazelon on one side, Warren Burger on the other. And you’re absolutely right. That kind of polarization is not uncommon here in the District of Columbia.
Mr. Allen: Well, I think most of us who practice here – you know, have a great interest if you’re in the D.C. Circuit, who’s going to be on your panel, because there are certain cases where you can predict a different approach perhaps if you have one panel rather than another. Because right now it is pretty evenly divided between, I think most people would say, between identifiable liberals and identified conservatives.
Judge Nebeker: Well, I recall that there was one particularly unfortunate lawyer who worked for – Do you remember the name of the firm where Lou Robbins worked? It’s his only firm.
Mr. Allen: I’m sorry, I don’t.
Judge Nebeker: Boy, I can’t remember it now either. In any event, this young man was just raw meat to Newman. Every time he came in to argue a zoning matter before Newman, Newman would just excoriate him unmercifully. Spin around and turn his back to the lectern if he didn’t like what this young man was arguing. The young man has now of course left the Corporation Counsel or the Attorney General’s Office as it is now known, and is doing zoning work in private practice, a very good lawyer, retained him I think to help us with the Cosmos Club on occasion. It was on one of those instances during the second four-year term where I was sitting to the right of Newman, who was Center Chair, and he was again arguing with a bellicose voice, and just as hostile as could be, and I had thought long and hard about this before because I had been exposed to it so long, and I thought through it what I would do if it happened again. So I followed through with what I planned. Because he was in one of those tirades, I stood, picked up my papers, and it has been reported that I said something that I didn’t say, but what I did say because I had thought it out beforehand, was “Excuse me, counsel, I cannot let my continued presence at this oral argument give the appearance that I condone the performance of the Chief Judge”, and I turned and walked out. I walked into Stan Harris’s Chambers and told him what I’d done. And then I walked back to my Chambers, and Judge Kern was a neighbor, right across the corridor, and I went in and told Judge Kern what I had done, and I still had my robe on, I didn’t even stop to take my robe off
in the Robing Room, and within I’d say 20 minutes, I was back in my Chambers and the phone rang. There must have been a court reporter in that courtroom; I just don’t remember the courtroom that crowded, or that there were that many people in the courtroom, but there had to have been a court reporter there because how else within that short period of time would they know that I had walked off the bench because of his behavior? Well, there was a little passage of time and I received a telephone call from Hank Schulke, who was counsel, and still is counsel, to the Commission, and they wanted me to come and appear, and I thought “Oh, wait a minute now, maybe I need counsel” because they didn’t tell me anything except they wanted me to appear. And so I called my good friend Jude O’Donnell and told him what the situation is and he says “you hang on, I’ll check it out.” Jude called me back in a while; I guess he called Hank Schulke, and Jude called back and said “no, you don’t have anything to worry about, they’re not trying to bring charges against you or anything, they just want to know what’s going on.” So, I went over and I appeared before that Commission, and as I remember, the Chairperson was a pediatrician by the name of Betty Cato, and I appeared and she wanted to know, couldn’t the two of us get along for the remainder of his four years – this was probably a year-and-a-half remaining in his four-year-term – and my response to her was “Yes.” I had explained that I respected his legal ability, he’s one of the better lawyers I’ve ever known, but, I said, if he’ll behave as a gentleman, I’ll get along
with him just fine. And whatever happened as a result, I don’t remember. Obviously the Commission didn’t take public disciplinary action him, they took no action against him as far as I know, but they did look into it after my episode of walking off the bench.
Mr. Allen: Was there a change in demeanor after that?
Judge Nebeker: Not really. He’s still very verbose, even sitting as a senior judge. He will occupy counsel’s time, asking questions in a rather harsh and loud voice. Let me put it this way: I haven’t sat with him. I sometimes walk past the courtroom in the corridor and I can hear his voice, or I can hear it from the library if I’m in the library. But I’m sitting with him for the first time on the 21st of this month, since way back in 1987 or before. We just happen to be on a summary calendar case because they’re putting two senior judges and one active judge on some of these summary calendar cases that are being heard during the summer to get the calendar moving. So, I’ll be with Ted for the first time in a long, long time. But we get along pretty well. I think there’s a mutual respect.
Mr. Allen: Well, that sounds like a good outcome.
Judge Nebeker: It is.
Mr. Allen: Perhaps an unfortunate period, but not one that has resulted in a long-term bitterness.
Judge Nebeker: No, there’s no hatred, no bitterness at all. We greet one another and sometimes we have lunch together down at the judge’s dining room table.
Even to this day, the judges, they’re not going to tell Ted not to come, but he does occupy everybody’s conversation when he’s there at the table. And we all recognize it; we don’t engage in that sort of thing anymore. We’re older and wiser I suppose.
Mr. Allen: Was there anything more, that you would like to say about this?
Judge Nebeker: No, I don’t think so. I think that pretty well covers my recollection of what happened. I will add this much: I do know that there was a definite effort on the Wisconsin Supreme Court to dethrone Shirley Abrahamson, and that likewise was not successful. Those judges that opposed her there did so publicly because it was an elected position, and they didn’t handle it very well, and she did succeed herself in an election. That was just in the last I’d say ten years or so. That’s the only other instance that I know of where there has been an effort within the court to unthrone a chief justice.
Mr. Allen: During the actual period when the controversy was going on and there were articles in the paper, and you were identified as one of the “gang of four” that was approaching the Commission and opposing his redesignation, you must have encountered each other off the bench during that period. Were you able to be civil to each other?
Judge Nebeker: Oh yes. In the handling of cases, conferring about cases and so forth, we were very able to do that. There was bitterness of course, and friction, but there was no eruption, or harsh words, or anything like that during that period of time. We were doing what we were doing; he was doing what he
was doing. I will tell you this one funny anecdote about it. Another one of the seminars that I attended when I was chair of the Education Committee was down in Savannah. And my wife went to one of these silversmith shops on the river there, and she had four stickpins made with the Roman numeral IV. And surprisingly she said let’s have a party for the judges. So we had a party at our house for the judges. She made the presentation to them all with the stickpin with just the Roman numeral IV on it, in silver, and I still have mine; Stan Harris can’t find his; and I don’t think Kern can find his; and I don’t know about Gallagher. I’m sure his wife knows where it is, but we were careful not to wear the stickpin at certain social events.
Mr. Allen: I can imagine. I think that’s an interesting recollection. I think it’s important that you put your recollection of it on the record. I don’t think it’s that shocking a description, but I think I respect your sense of wanting to seal it during your life time and his.
Judge Nebeker: I think it would be a good idea. It’s sort of an unpleasant spot on the history of the Court, perhaps fault can be shared by all sides, I don’t know. But I’ve just never witnessed the kind of courtroom performance of appellate judges that we were subjected to for eight years.
Mr. Allen: If you don’t have any more, I think that will conclude this.
Judge Nebeker: Yes. Close this episode.