Alan Rosenthal Interview No. 9, July 25, 2011

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ORAL HISTORY OF
ALAN ROSENTHAL
Ninth Interview – July 25, 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, July 25, 2011. This is the ninth
interview.
MS. FEIGIN: Alan, good morning.
MR. ROSENTHAL: Good morning.
MS. FEIGIN: We have, I believe, covered your career, but not your personal life, and I’d
like to know about you, what you’ve done extracurricular, your family,
some of the more personal details, if you would care to share them with
us.
MR. ROSENTHAL: I’d be delighted to, Judy. Perhaps I might start with some of what I think
of as extracurricular activities. I actually on two separate occasions taught
courses in law schools. In the spring of 1982 and again in 1983, I taught a
seminar in, of all things, nuclear law, at the University of Pennsylvania
Law School in Philadelphia. It was taught on a Tuesday afternoon,
between 4:00 and 6:00, and I would catch the train at Union Station here
in Washington around noon, I would get to the 30th Street Station in
Philadelphia around 2:00, and it was just a short walk, probably
10 minutes, from the railroad station to the law school, where I would first
have office hours. Then the class, as I say, went from 4:00 to 6:00, and I
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would be back home by 9:00 or shortly thereafter.
Each semester there were approximately 16 in my class. The first
semester – this was the one in the spring of 1982 – the first day of class, a
gentleman came in, I took a look at him, and I estimated his age at being
somewhere between 55 and 60, and it was difficult for me to conclude that
he was a regular undergraduate law student. Well, we took a 10-minute
break midway through the two-hour session, and I asked him to stay for a
minute, and I gently inquired as to whether he was in fact a student in the
class. He said yes, he was Edward Shils, and sure enough, his name was
on the roster. It turned out that Dr. Shils was a chaired professor in the
Wharton School who had decided that he was going to come over to the
law school and take an occasional course that might be of some interest to
him. He was not going to be a degree candidate. I said, “Well I assume
therefore that you’re just auditing the class.” He said, “Not on your life. I
intend to do a paper at the conclusion of the class.” Which he did, and the
paper was perhaps a little more economics than it was law, but I can tell
you it was of much higher quality than anything I got from the regular
undergraduate law students, and he obtained one of the few “A’s” that I
gave out in that class.
I might say that while I enjoyed the experience, two years were
enough of this business of commuting up to Philadelphia once each week,
and in one respect, it was a rather discouraging experience, and that is all
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my students obviously were either in the second year or the third year, and
this was in the spring of the year. The third-year students all had jobs
already lined up, and for the most part, their interest in putting a lot of
time and effort into the course was minimal. Now the second-year
students, of course, were not as yet the possessors of permanent
employment, but they had been led to believe, which at that time was
probably correct, even though it’s certainly not at the present, that
attending a consensus top-10 law school assured them of employment
post-graduation, no matter what their grades might be. Indeed, most of
them seemed to think that employers would come to the law school on
their knees begging the third-year students to come to their law firms. So
I found, quite frankly, that a good number of the students that I had did not
put into the coursework the amount of effort that I would have preferred.
Well we now move on a number of years to the year 1991-92, and
I was induced to teach a section of the legal method course at the
Washington College of Law of American University. This was the nutsand-bolts first-year course, learning the tools of legal research, preparing
in the fall semester memoranda, in the spring semester doing an appellate
brief and an appellate argument.
My problem with these students was what to me at least was a
substantial attitudinal deficiency. This materialized when at the end of the
first semester the students were called upon to provide evaluations of the
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course and of the professor. I had 16 students, and 13 of the evaluations
struck the same note: Much, much too much work for a two-credit course.
“Why are we being required in this course to do much more work than
we’ve had to do in any of our black-letter 3- or 4-credit courses?”
I can tell you that that irritated me no end, and, at the beginning of
the second semester some time after the first of the year, I said to the class,
“You’re now going to be subjected to a 5-minute monologue. This applies
to 13 of you, not to the other three, but unfortunately the people to whom
this does not apply are going to have to listen to it.” And I made no bones
about the fact that I thought that that was a very poor attitude towards the
study and eventually the practice of law. I suggested to them that if they
thought that upon graduation their major problem, or burden, was going to
be carrying big paychecks to the bank, they were sadly mistaken. In any
case, they just sat there, obviously in silence, and listened to this and there
was no response at all. And we moved forward from there.
I would also note that one significant difference between these
students and the Pennsylvania students was that whereas the Pennsylvania
students were, as I indicated a few minutes ago, arrogant, these students
were not. Indeed, I think that they recognized that they were at a law
school that did not have as much prestige as some others and that
employment might be an issue if they did not do sensationally well, and
most of them had incurred as undergraduates substantial educational
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indebtedness, and now the law school indebtedness was going to be piled
on, so this was a pretty nervous lot.
I kept track of two of the students, both of whom were among the
three who had not given me this course evaluation that I found
unsatisfactory. I’m happy to say that both of them did well through the
three years of law school and both obtained employment post-graduation
with very blue-ribbon law firms.
The one thing that I would just add with regard to that experience
is that one of the three whose course evaluations I found acceptable,
indeed one of the two who I tracked down the road, had graduated summa
cum laude from Kenyon College, which is a very solid institution. He
graduated summa cum laude or alternatively it may have been junior Phi
Beta Kappa. In any event, he graduated from Kenyon with an absolutely
superb academic record, and here he was at a law school of somewhat less
prestige. I inquired as to what had brought him to American, and he said
what brought him to American was that he had done relatively poorly on
the law school admission test and he discovered to his dismay that most of
the more selective law schools had a LSAT floor that if you didn’t get on
the LSAT a grade above a certain point, they wouldn’t take you no matter
what your academic record was. I found that rather surprising, as well as
in my view irrational. In any case, those were my two excursions into the
world of academia.
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MS. FEIGIN: What is your general view of the LSAT?
MR. ROSENTHAL: Well I have no idea the extent to which the LSAT overall is a good
measure of the likelihood of success in law school. It isn’t intended to be,
and certainly is not, an indication of how successful one is going to be in
practice, and that’s why it has always surprised me when I got a résumé
from an applicant for a position in one of the agencies for which I worked
that contained a specific reference to his or her LSAT score. I would
remind them during the course of the interview that, at least insofar as I
was concerned, that was totally irrelevant. But these were actually very
good scores, which is why they thought fit to put them on the résumé
[laughter].
MS. FEIGIN: So you only spent one year at AU?
MR. ROSENTHAL: One year at AU. I didn’t find that an interesting or worthwhile experience
so I just did it one year. I did have, I might say, a third-year student
assistant who took care of indoctrinating the students into the tools of legal
research, particularly how to use the so-called Bluebook which is given
slavish observance in many quarters, although I would have to say that at
the Department of Justice not that much attention is paid to the fine points
of citation that were contained in this Bluebook. I discovered that when I
came on board, because, according to the Bluebook, the federal Court of
Appeals citation is, in the case of the District of Columbia circuit, “D.C.
Cir.” For the Solicitor General, who controls the citation forms employed
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in the Department, it is “DC CA.” So when some of my law clerks correct
what I write to change the citations to the Bluebook form, I remind them
of the fact that they may think that the Bluebook is the necessary last
word, but that’s not an opinion that has been shared by a large number of
Solicitors General. I have to assume, I’ve been out of the Department of
Justice for a very, very long time, but I have to assume that they still cite
in the Department, in some respects at least, in a manner different from
that dictated by the Bluebook, which after all is simply a publication of the
Harvard Law School, that is subscribed to by I think Yale, Columbia, and
Pennsylvania. The University of Chicago, I think, has a competing
citation book, but I don’t know who uses it outside of the University of
Chicago Law Review.
MS. FEIGIN: When you were teaching legal research, this was pre-Westlaw days? So
people were doing research the old fashioned way using Shepards?
[Laughter]
MR. ROSENTHAL: Oh yes, this was clearly before the days of Lexis. No, you did it the book
way. You went to the library and pulled the books off the shelves, rather
than doing the research on the computer.
MS. FEIGIN: We should probably clarify for generations down the road what Shepards
is.
MR. ROSENTHAL: Shepards was a vehicle for determining whether a particular court
decision had subsequently been reversed or modified or critiqued in some
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fashion. There’s nothing more embarrassing than to rely heavily in one’s
brief on a particular case, Jones v. Smith, for example, and then to be
informed, either by your adversary or, what’s even worse, by the court,
that “Counsel, that decision was overruled several years later.” So
Shepards was a very valuable tool, and, of, course now you can
Shepardize on the computer.
MS. FEIGIN: In addition to your teaching, do you want to tell us about some of your
non-legal activities.
MR. ROSENTHAL: I had two main enterprises outside of the vocational area. One of them
was the Cedar Lane Unitarian Universalist Church which I became
affiliated with in 1959 and still am a member there, albeit not that active
given the fact that we now live at a distance of 12 miles or so from the
church. But over the course of the period between 1959 and, let’s say
1993 or 1994, I served on the board of trustees for a total of eight years
and was its chairman for one year. In addition, there were very few areas
of church activity that I was not heavily involved in at one time or another.
I chaired the Denominational Affairs Committee, I chaired the
Religious Education Committee, I was on the Social Action Committee
for two years and served as its treasurer. I was engaged in most of the
activities that the church offered apart from two. One of them was I did
nothing that involved the use of the kitchen. I stayed away from that
entirely. In addition to that, for good and sufficient reason, I had nothing
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to do with the music program. I don’t know whether I’m tone deaf
exactly, but certainly I would not have been a welcome member of what
has always been in that church an excellent choir. I’m sure that the music
directors over the years have been very happy that I have stayed away
from that. The church, up until the time that we moved here, that’s just a
little over a year ago, has occupied a very, very significant part of my life.
The way we got there was interesting. I think I may have noted in
my first session that I grew up essentially without any involvement with a
religious institution. A little Ethical Culture, but that was the extent of it,
at least post my biological mother’s death. I think I may have mentioned
that I had gone to an Episcopal Sunday school when I was very, very
young. In any case, we came to Washington, and when our first child was
born in 1954, we decided to look around for a church. One of the things
that draws people to churches or to synagogues or to other religious
institutions is providing some kind of religious instruction to kids. It’s
amazing how many people turn up at our church, Cedar Lane, when they
have kids reaching the age that religious education becomes something of
interest. In any case, we started out attending, but did not join, a
Presbyterian church in our area. Well, it became clear for reasons that are
not important that that church was running into some problems, and so we
abandoned that. But in, I think it was about 1958, one of our neighbors
asked us to join him and his wife in attending the local Unitarian church.
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It was then just Unitarian, the Unitarian and Universalist associations a
few years later merged, and so the church is now Unitarian Universalist.
Then it was simply a Unitarian church, and we accepted his invitation to
visit the establishment, and here it is umpteen centuries later we’re
members. So that’s how we got involved with the church in the first
instance.
MS. FEIGIN: Before we leave the church, to just clarify, or give a little more detail, you
taught Sunday school I believe?
MR. ROSENTHAL: I taught Sunday school for six years, between 1960 and 1966. This was a
class of 4th graders. The members of that class this year turn 60, so it
gives you some idea as to how long ago they were 9-year-olds in the first
year that I taught. It was an interesting experience. I had never taught
before, anything, and certainly not 9-year-olds, and the then director of
religious education said to me, “Alan, just remember boys will be boys.”
That was all of the instruction or guidance that I received before the first
class [laughter].
Well, in that class there were five boys among the 15 in the class
altogether, five boys who, let’s put it this way, were bent on being as
disruptive as they could possibly be. And at the end of the first class, I
asked them to stay for a minute or two, and I tried to politely but
forcefully get across the point that I found their conduct unacceptable.
“Well,” they said in injured tones, “we have been together since
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kindergarten, and no teacher has ever before said that our behavior was
not acceptable.” [Laughter] They didn’t put it quite in those terms, but
that was the message. I said, “Well, number one, gentlemen, I don’t
believe it [laughter]. And, number two, it’s entirely unimportant what
your teachers in prior years tolerated. I am not tolerating what took place
today.” Well there was a modest reformation in the balance of the
semester. I wondered, however, whether those boys were going to end up
in Alcatraz [laughter], but I was only able to track one of them because his
mother remained a member of the church for many, many years thereafter,
and this gentleman ended up as a professor at the University of Chicago,
so I guess I have to say that there was a conduct modification somewhere
down the road [laughter].
MS. FEIGIN: What is it that drew you to this church? What was the appeal of this
organization, since you obviously tried others?
MR. ROSENTHAL: I think it was the fact that it totally lacks a doctrine to which members
have to subscribe. The principal tenet of Unitarian Universalism is that it
is up to everyone to determine for him or herself where truth lies to the
extent that truth can be ascertained, and to formulate his or her own value
system. In most of the other religious institutions that we might have
looked over, there is a doctrine to which one is expected to adhere, so it
was essentially that, and it was a good fit for us. Helen taught in the
church school for something like 38 years, most of it the Bible, and she
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just retired fairly recently from teaching in the school of religion.
Moving on to my second principal avocation, it was the North
Chevy Chase Swimming Pool, and more particularly, its swim team,
which competes in the Montgomery County swim league each summer. It
involves a division of six pools and there are five dual meets, a dual meet
against each one of the other pools, plus two meets that involve all six
teams in the division. The divisions are seeded depending upon the
performance of the team the prior year, and they go from an A division
down to an O division. This involves now about close to 90 community
pools all located in this county.
In any event, my son Richard, when we joined the pool, was
9 years old and joined the team and swam on it for a number of years.
Kids age out when they’re 18. That’s the last year that they can compete.
And Richard competed for a number of years, and then down the road, my
youngest son, James, competed on the team from age 7 to age 18 and was
a very accomplished swimmer. So I became heavily involved in the
activities of the swim team and occupied various deck positions, place
judge, timer, stroke and turn judge, and eventually I became a certified
referee, and I refereed both the so-called “A” meets which were on
Saturday morning and which involved the better swimmers, and the “B”
leagues which were on Wednesday nights and involved the not-soaccomplished swimmers. I refereed meets for something like 30 years,
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and the last summer in which I refereed meets – they were “B” meets –
was 2009 when I was approaching my 83rd birthday, and I’m fairly
confident that I was the oldest certified referee still operating at that time.
In addition to being involved with the swim team, I was also
involved with the administration of the pool. I served on its board of
directors for a total of 20 years, off and on. You could serve six-year
terms and then you had to be off the board for a year, and then you could
come back on. I was president of the pool for two years, 1974 to 1976.
So this was really a major part of my non-working life.
MS. FEIGIN: Are you yourself a swimmer?
MR. ROSENTHAL: No, not particularly. I can swim, but I never was involved in it
competitively. My form, in virtually every stroke, is dreadful [laughter]. I
would get disqualified in a minute in the breaststroke and probably as well
in the butterfly − although I never really tried the butterfly. That’s a pretty
difficult stroke, so no. But you don’t have to be. It’s interesting that there
was at one time for many years a head coach of the West Point swim team
who was regarded as one of the absolutely top college swim coaches of his
era, and he couldn’t swim a stroke himself. And, of course, coaching, you
don’t normally get into the water with the swimmers. That’s different
than when you’re teaching swimming, then frequently you get into the
water with the swimmer to assist in teaching the particular strokes and
whatever. The coaching is generally done on the deck, so the fact that this
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West Point coach couldn’t swim did not at all interfere with his ability to
do his job.
So, in any event, those were my two principal activities. In
addition to that, over the years I did a number of other things over a much
shorter time span. When my older two kids were in elementary school, I
served both as the president of the elementary school PTA and at a
different time, as the chairman of the principal’s advisory committee.
MS. FEIGIN: This was public school?
MR. ROSENTHAL: Public school. This was public elementary school. My four kids went
through Montgomery County public schools kindergarten through
12th grade. None of them attended as much as a minute of private school.
In addition to that, at one point my oldest son became a Cub Scout
and I was pressured, and I use that word advisedly, into becoming the
chairman of this particular Cub Scout pack, and it was an extraordinarily
onerous duty, given that the principal function was to recruit women – and
in those days they were all women – to serve as the den mothers, and I tell
you it took all of my powers of persuasion, which unfortunately are rather
limited, to get these women to do this [laughter].
A carpool mate of mine – these were still Justice Department days
– was a Mormon, and I recounted to him one day the difficulties that I was
having in recruiting these den mothers. He laughed and said, “Well you
know,” he said, “my kids, at least one of them, is in a Cub Scout pack, and
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the chairman has no difficulty at all in recruiting den mothers.” It seems
that this pack was sponsored by the Mormon church, and all that the
chairman had to do was to say to Mrs. X, Mrs. Y, Mrs. Z: “You are the
den mothers,” and this was accepted by them as part of their
responsibilities as members of that church. So I thought to myself, well is
there any possibility of converting my pack into one under Mormon
sponsorship [laughter], and I immediately came to the conclusion that no,
that was not possible, and I would just therefore have to continue to try to
persuade these ladies to assume this duty. Well happily none of my other
three ever saw fit to become involved in either scouts, or in the case of my
daughter, Brownies or Girl Scouts. So I never again was called upon to do
anything in that particular sphere. I can’t say that my exposure to the Cub
Scouts was one of the more pleasant aspects of my avocational life.
Another activity that I engaged in took place some time I think in
the early 1970s, although I don’t remember the precise year. A chapter of
the American Civil Liberties Union was formed in Montgomery County,
my county here, and I ran for and was elected to a position on its inaugural
board of directors. The board had 15 members. Well I found that
experience quite acceptable until the teachers in the county went out on
strike, I might say in violation of Maryland law, and the union officials, to
avoid getting served with process in a lawsuit designed to produce an
injunction requiring the termination of the strike, all crossed the river into
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Virginia and were holed up in some motel there for some time.
I thought the strike was absolutely outrageous. I am a firm
believer in obeying the law in general, and more particularly in public
servants respecting their obligation to refrain from illegal activity. There
was a meeting of the board of directors to discuss what position the board
was going to take with regard to the strike. I was quite frankly appalled to
find that all 14 of my colleagues on the board were prepared to issue a
statement, which in fact was issued over my dissent, to the effect that the
strike represented an appropriate exercise of a civil right. That was shortly
before my term expired, and it had left such a bad taste in my mouth that I
did not run for reelection. To this day, I regard that statement as shameful.
But again, I guess I’m really not able to say that everybody else on that
board necessarily was totally out to lunch.
Still another activity that I engaged in beyond my work life was
service for two terms on the Montgomery County Board of Education’s
Ethics Panel. My two colleagues were the chairman, who was a man, and
a woman. The duties of the panel were basically twofold. First, annually
the panel members were called upon to review the financial disclosure
statements that had to be submitted by the members of the Board of
Education, by the superintendent of schools, by all of the assistant
superintendents, and by a few other ranking officials, such as the director
of purchasing. The object of this exercise was to determine whether, on
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the basis of the securities that were owned by these individuals and their
other outside associations, there were any conflict of interest problems.
And actually those financial disclosure statements were a mere shadow of
what federal employees such as myself were required on a certain level to
submit each year, and they actually provided much too little information in
terms of the financial assets and associations of the people submitting
these forms. So I thought that was essentially a worthless enterprise.
The other function was to entertain from the employees of the
school system any inquiries that they might wish to make regarding
whether they could engage in this activity or that activity consistent with
the ethics code that governed their employment. Well, the problem with
that was that the existence of this panel was artfully concealed from most
of the employees [laughter]. It was not advertised. Oh, there might have
been a passing mention of its existence in some school publication. The
consequence of this is that I think in the six years that I served on that
panel, two three-year terms, the panel might have gotten as many as five
inquiries as to whether a certain activity could or could not be engaged in
consistent, again, with the ethics code that governs school employees. So
the short of it was that at the end of the six years, being entirely
unsuccessful in my endeavor to get the powers that-were in the school
system to advertise more broadly the existence of the panel and its
functions, I advised the Board of Education that I did not want to stand for
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a third term.
So the fact of it is that neither my term on the Montgomery County
ACLU Board nor my time on the Ethics Panel was particularly meaningful
to me in sharp contrast to my many, many years of involvement with both
the Cedar Lane Unitarian Universalist Church and the North Chevy Chase
Swimming Pool Association. So that’s about it insofar as extracurricular
activities are concerned.
MS. FEIGIN: Tell us a bit about your family.
MR. ROSENTHAL: Well, my family starts, of course, with my wife, Helen, who grew up in
Paterson, New Jersey, went to Wellesley College, and then on to the Yale
Law School. And her first year at Yale, which was 1950-1951, was my
third year, and in that third year, as I probably noted early on, I served as a
legal research instructor, and lo and behold, Helen ended up in my class.
Needless to say, I did not date her through that semester, but was very
attracted to her, and we started to date shortly after the semester was over.
I might say she got a “B” in my class [laughter]. I think she did a lot
better in her black-letter law courses than she did in that. In any case, we
dated through the spring, and late in the spring became engaged. Well, I
was headed to Washington for a clerkship, and at that time, my plan was at
the end of the year’s clerkship to return to New York, so Helen transferred
from Yale to Columbia, and she was there for the fall semester, 1951 into
1952. Well during the course of that semester, I informed her that I
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changed my mind. I was planning to stay in Washington. So what does
she do, she then transfers to George Washington. So she went to three law
schools, and I have to say that her time at GW was immensely successful.
She graduated second in her class, and even though she was getting a late
start, made the Law Review.
MS. FEIGIN: She accepted it, unlike you? [Laughter]
MR. ROSENTHAL: Yes, she accepted it, and she wrote a very solid piece for the Law Review
which was published on a case that dealt with the desegregation of the
restaurants in the District of Columbia. It involved the Thompson
Restaurant, which was a cafeteria-type operation. A suit was brought
against it based upon an 1880 or 1870-something statute that everybody
had overlooked that precluded racial segregation in public accommodation
establishments such as, of course, the Thompson Restaurant. In any case,
she had a very distinguished record at George Washington, a very solid
record, and I might say at Yale and Columbia before that. Coming out of
law school in 1953, jobs were almost as difficult in the legal profession for
entry-level lawyers as they are today.
MS. FEIGIN: And especially for women I presume.
MR. ROSENTHAL: And especially for women. So she opened her own law office with a
classmate, or maybe two classmates of hers, and they practiced law
briefly. Well then a year after she graduated, her oldest son was born, and
that brought her law practice to an end. She has not practiced law since,
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and she devoted the following years to bringing up our three sons and
daughter, and I have to say that this was done in an era where most men,
or at least many men, I think it is probably most men, myself included, did
not do the share of housework that is expected of men today, and I think I
can say that my sons are all fully into what is the current expectation. So I
have to say that Helen is entitled to 99% of the credit for what turned out
to be the very successful upbringing of our four children.
The oldest, Ted, Edward is his name, called Ted, named after
Helen’s brother, went to Carleton College and in the senior year at
Carleton, he was apparently torn between going on and getting a PhD in
history which was his college major or instead going to law school. Well,
in December of that year there was an article in The New York Times about
the meeting of the academic historians, and at that meeting, so the article
said, there were about 120 history PhDs, most of them from very
prestigious graduate schools, who had lined up in quest of a position that
had opened up at the East Nowhere Junction University [laughter], and
Ted reached the conclusion that maybe the law was the better course to
follow. So he applied to and was accepted at Columbia, was a managing
editor of the Columbia Law Review. Post-graduation, he had a clerkship
for one year with the then Chief Judge of the Court of Claims Daniel
Friedman, who just died a week or two ago. Ted spoke at his memorial
service.
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After the clerkship, Ted returned to New York, went to work for
what has been known in more recent years as Fried, Frank, Harris, Shriver
and Jacobson, for which he had been a summer associate both after his
first and second years. Ted remained with Fried Frank from 1980 until he
left the firm in 2002 to go to Pittsburgh where he is currently the deputy
general counsel for corporate matters at PNC Financial Group, which is a
large regional bank that now has banks here in the Washington area.
His first years with Fried Frank were in New York. Shortly after
he became a partner in 1986, the firm opened a Los Angeles office, and he
was detailed to it for what was supposed to be 11 months. Well in the
course of those 11 months, he met Nadine, who was a native of the Valley
out there, and that was the end of any interest in returning to New York.
They were eventually married, and they lived in Santa Monica first and
then in the Bel Air section of Los Angeles until they moved to Pittsburgh
in 2002.
For her part, Nadine attended the California State University at
Northridge and for a period of time worked as a trust officer at the Wells
Fargo Bank. She now is heavily engaged in maintaining a cooking blog
that features a number of delicious recipes. I congratulate her on making
such a good adjustment to Pittsburgh winters after spending almost her
entire life in California.
They have two children, a son Charles – Charlie – who followed
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his father to Carleton College, where he’s now a junior, and a daughter
Kate who is now attending a private school in Pittsburgh. I think that she
is a rising junior, if I’m correct, and an avid tennis player. She apparently
spends all her waking hours that are not in school playing tennis, and I’m
sure that that’s going to be her interest as an athletic activity when she gets
to college. For his part, Charlie has been a Quiz Bowl whiz in both high
school and college and has also been involved in the campaigns of
candidates for political office.
My daughter Susan is not married. She followed her mother to
Wellesley College. After teaching for a few years at a private school in
the county here, she went to the University of North Carolina-Chapel Hill
where she got a doctorate in psychology. The first two years after she
obtained her degree, she did a post-doctoral fellowship at Yale
University’s Child Study Center, and then she went to Cincinnati to the
Children’s Hospital there, where she was an adolescent psychologist for a
period of 12 or 13 years. During that period, she came under the wing of
the then director of infectious diseases at Cincinnati Children’s, Dr. Larry
Stanberry. He moved to the University of Texas Medical Branch in
Galveston, where he became head of the Children’s Hospital, part of that
medical branch, and induced Susan to follow him to Texas where she
became the director of the Adolescent Medicine branch of the Children’s
Hospital. At one point, there was reason to believe that she was one of
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only two non-physicians heading up an adolescent medicine branch at a
major children’s hospital. Well she remained at the University of Texas
medical branch for seven years or so, during which she survived several
hurricanes, the last of which devastated Galveston Island, absolutely
wrecked her office, but her house managed to survive with minimal
damage. In any case, Dr. Stanberry moved on to New York to become
head of the Children’s Hospital that’s part of Columbia University’s
Medical School.
MS. FEIGIN: Physicians and Surgeons?
MR. ROSENTHAL: Physicians and Surgeons. And the hospital at one time was known as New
York Presbyterian. I think it may have changed its name. In any event,
Susan has now followed him to New York. She did this about two years
ago, where she is the vice chair of the Department of Pediatrics at the
College of Physicians and Surgeons, and is in charge of faculty
development. I think for somebody who has not a medical degree that
represents quite a significant accomplishment.
My son Richard went to Haverford College, majored in the
Classics, and for two years after graduating from Haverford he taught
Latin at the Maret School in downtown D.C. or semi-downtown D.C. I
guess is more accurate. He determined there was probably not a financial
future in teaching in a private school, so he entered the University of
Michigan Law School, from which he graduated in 1988. He then had a
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one-year clerkship with John Eldridge, a judge on the Maryland Court of
Appeals, the court of highest resort in the state of Maryland. Following
that, he joined the law firm of Covington & Burling where he was an
associate in their tax practice. While in law school he met his later-tobecome wife Audrey, and Audrey, upon graduation from the Law School
two years after Richard, first became law clerk to Harold Greene, a federal
District Court judge in D.C. and then law clerk to the then Chief Justice of
the United States, Justice Rehnquist. After the clerkship, she joined
Hogan & Hartson in their litigation practice.
Their first child, Andrew – or Andy – was born in 1994, and at that
point, Richard and Audrey decided that they were not going to go the
nanny route or the daycare route, that one of them was going to stay home
and become the principal caregiver of Andy and any future children they
might have. Well the election was that Richard would assume that role,
and so he left Covington & Burling. Some years later, when Andy and his
brother Eric, who was born a few years later, reached the age where he
could be out of the home for a good period of time during the day, he
became a professional swim coach, and he coaches year-round for the
Curl-Burke Swim Club, which is one of the two principal year-round
programs in this area, and coaches in the summer at the Tallyho
Community Pool team on which both of his boys swim.
Andy is now entering his senior year of high school, is an
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accomplished distance swimmer, and is being recruited by a number of
NCAA Division III programs, principally in the northeast, in
New England and in New York State, so we’re going to see how that turns
out this fall.
Eric, the younger boy, is entering the 9th grade in the International
Baccalaureate program at the Richard Montgomery High School, and his
forte is the cello. He has become quite an accomplished cellist, and
indeed now is occasionally asked to play at church services at the Cedar
Lane Church. He swims, but he’s not the competitive swimmer that his
brother is.
Now, their mother, Audrey, left Hogan & Hartson shortly after the
Obama administration came into existence to accept a political position as
an Associate General Counsel in the Department of Homeland Security, so
that’s where she has been for the last approximately two years.
Obviously, how long she will be there may be influenced by the outcome
of the 2012 elections [laughter], although I don’t know whether if
President Obama is reelected she plans to stay there for a second term, but
in the meantime she is certainly enjoying it, and finding it, I might add, a
considerable challenge.
MS. FEIGIN: Before we leave Audrey, could you tell us the story of her getting the
clerkship with Justice Rehnquist and the one thing he was interested in?
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MR. ROSENTHAL: Yes. Apparently what you do these days, and I know that you have a son
who was a Supreme Court law clerk, and I assume it was the same thing
with him, but at least with Audrey, it was a matter that you applied to all
nine justices and you see what comes out of it. In that case, what came out
of it was an invitation from Chief Justice Rehnquist, so she turns up for
the interview and she doesn’t know what to expect. There’s absolutely no
inquiry at all into her political beliefs. As it turned out, both of her fellow
clerks – Rehnquist only kept three clerks even though he was authorized
five – both of her co-clerks were very conservative, but she wasn’t asked
about that at all. What he wanted to know was how good was her tennis
game [laughter]? And this was a matter of critical importance to Chief
Justice Rehnquist because during the good weather he and his three clerks
would go down to some public tennis court, I think down at Haines Point
somewhere, in the middle of the day and play tennis.
It seems that even though Audrey’s game was respectable, he
always had one of the two men clerks as his partner [laughter]. I will say
this, that she found her year with the Chief Justice very rewarding, I mean
she liked him very much, and he was extremely considerate because one
of the things that she said to him was that she would prefer not to work on
abortion cases because she knew that her thinking on those cases and his
was miles apart. That was really a matter of conscience for her. He was
perfectly agreeable to that. So that was a very good year for her.
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So now I think we can move on to the youngest son, James. James
came into this world ten years after his next-oldest sibling Richard, and his
single interest outside of the school environment was swimming, and he
took up with the summer community pool team at the age of 7. Not that
long after he moved into a year-round club program and became a pretty
competent butterflyer, and indeed in the last two years in the summer
league, when he was 17 and 18, he won the butterfly in the All-Star meet
in that summer league.
He went on to Pomona College where he swam as his one extracurricular activity, made the Division III nationals all four years, and in his
senior year finished third in the 200 Butterfly and sixth in the 100
Butterfly. Now this is Division III. He wasn’t headed for the Olympics or
anything, but nonetheless he did very well in that enterprise.
He then went out to the University of Michigan Law School where
he graduated magna and was a Note Editor on the Law Review.
Notwithstanding those accomplishments, he was turned down by every
district judge, federal district judge, in this area, Northern Virginia,
District of Columbia, or Maryland. He got interviews only with one of the
judges in Maryland, who came from Montgomery County and would
interview any applicant that came from this county, and one of the judges
across the river. To this day, I have no idea why that was the case.
Beyond that, he had an application with the Civil Division at Justice. In
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my day someone with his credentials would have been taken under the
Justice Honors Program in a minute, but he survived the first cut and then
was turned down. But everything worked out well for him in the long run.
He went to work for Arnold & Porter. He was a summer associate
the prior year with the D.C. office of Latham & Watkins which is a
Los Angeles-based firm. They invited him back, but he decided to go to
Arnold & Porter because he thought that, in the Washington area at least,
Arnold & Porter had a broader, more diversified, litigation practice. Well
that turned out to be an ironic conclusion, given the fact that James’s
entire 15-year career at Arnold & Porter has been devoted to one client –
Phillip Morris, in the product liability area.
Interestingly, a week before he reported to Arnold & Porter, he
received a phone call from someone there who said, “We’re thinking of
assigning you to the litigation practice involving tobacco,” which was
Phillip Morris, of course. They said, “If you have a problem with that,
we’ll assign you elsewhere,” and they made it clear that that would not
prejudice him. He said he had no problem working on tobacco litigation,
and so that’s what he’s done for the last 15 years. His association,
however, with Arnold & Porter, is about to come to an end, because in
September, or thereabouts, he is moving in-house with the Altrea Group,
which is the parent of Phillip Morris as well as of a smokeless tobacco
company and a Washington state-based state winery. So he’s going with
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them in the capacity of vice president and associate general counsel.
His wife Amy he met at Arnold & Porter in the Phillip Morris
practice group. She was raised in North Carolina. She went to the
University of North Carolina–Chapel Hill and then to the Georgetown
Law School. She at some point decided that she wanted a little better
quality of life so she left Arnold & Porter and went to Verizon
Communications as an Assistant General Counsel. Well, she was there for
a year or two and they had their one and only child, Brannick. She took
maternity leave, went back to Verizon, but a few months after the return
decided that she wanted to be the full-time caregiver for her son, and so
she retired from Verizon, and that’s what she’s doing now. Brannick will
turn 4 next month, in August.
So that’s basically the story. I can say I think without being overly
prideful, if that’s a term, that my kids have worked out extremely well.
They gave us no problems of any serious consequence when they were
growing up, and they all four have had very successful adult careers. The
grandkids, all five of them, are flourishing in whatever they’re engaged in
now, so all I can say is that I have been extraordinarily fortunate, and, as I
indicated at the very beginning of this discussion, I give Helen almost the
entire credit for how well our kids have turned out. She was the one that
really managed the upbringing. So that’s basically the family story.
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MS. FEIGIN: It’s a wonderful story. And, of course, I noticed you have a lot of lawyers
in this family, so I’d like to close by asking you what advice you’d give to
a young lawyer starting out today? You’ve had a varied long career and
seen your kids go through a lot of different things.
MR. ROSENTHAL: This is a dreadful time, the worst certainly in the 60 years that I’ve been
associated with the law, for obtaining legal employment out of law school.
The recession that has been in place for two or three years now has had a
significant toll on law firms. In addition to that, the nature of the practice
has changed. No longer are most corporations willing to pay $300 an hour
for the services of a first-year law associate. They’re much more cost
conscious, and this is having an impact on the firms as well. I would say
this to begin with. I do not think that anyone should go to law school
unless they have a clear understanding as to what the practice of the law
involves and they have a strong desire to be part of the practice. I’m
talking now about people who are thinking in terms of law school as an
entry into the practice of law rather than using a law degree in some
business enterprise. So that’s the first thing. I think that you ought to
know what the practice of law is about, and you ought to be convinced in
your own mind that this is something that you really want to do, not
something that’s just going to occupy a couple of years of your life. And I
say that because you have to bear in mind that there is an enormous
investment, both in time and money, in going to law school these days.
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It’s three years of your life, or four if you go at night, and the cost now
exceeds $150,000. This is an enormous investment.
Secondly, it’s extremely important that if you’re going to law
school, you go to the most prestigious school you can get into. I use the
term “prestigious” rather than “best” because I don’t think there’s a
necessary correlation between prestige and actual quality. Now in that
connection, what you want to do is due diligence on all of the claims that
are made by law schools on their websites and this has become an
enormous issue today given that a lot of law schools are misrepresenting
the career opportunities that are available to their graduates. What many
of them are doing is presenting a figure as to the number of their graduates
that are employed six months after graduation without noting that the
figure that they provide – 96%, 95%, whatever – includes not only those
working for prominent law firms, but also those who are waiting on the
tables of customers who are coming from those law firms or are driving
the taxi cabs to take the partners to and from their offices. And this has
become a scandal, and it’s actually led to a lawsuit against one of the
schools that allegedly have been engaging in this practice. So I think it’s
important that before you enter law school you know that this is what you
really want to do and that you are realistic as to what is going to be the
outcome of the three years, and that includes, again, as I say, doing due
diligence on the claims that are being made by the law schools as to what
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is going to be at the end of the rainbow if the individual attends their
school.
If I had my way, I would eliminate about 25% of the existing law
schools. Unfortunately, not only is that not happening, but there are new
law schools being created every year.
Now, once the individual graduates, I think my principal point to
them would be that the most important, in my judgment, requirement, in
terms of a successful legal practice is paying the closest attention to the
smallest detail in everything that you do. At the Department of Justice I
had lawyers working for me during the latter stages of my time there, I’ve
had law clerks throughout my career at AEC, NRC, and the GAO, and
what I have found that separated the good ones from the bad ones – and
they all had very impressive academic records in law school or they
wouldn’t have been employed where I was – was the extent to which they
exercised the utmost care, paid the closest possible attention to every
detail in the course of whatever they were doing at the time, even if they
thought that that particular assignment was of minor significance. Now,
there are other things that I might say. This has been a long session, but I
think that that, to my way of thinking, is the principal advice that I would
give to someone coming out of school.
Now, the only thing I would say about the law school time itself is,
particularly in the first year, make it your sole occupation. The advice that
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I was given when I entered the law school by a graduate of that school
who had endorsed my application was “Forget about everything else, at
least in your first semester. Make the law school your single focus.” And
I did that, and the whole first semester I only left New Haven for one
abbreviated weekend, and it had the results that I had hoped for.
MS. FEIGIN: And for a final closing question, can I ask you what would you tell people
is the secret to finding satisfaction in their career in law? What you seem
to have found, is that fair to say?
MR. ROSENTHAL: Yes. Well I think I have found satisfaction because I was doing something
that I really enjoy doing. I think that’s the name of the game. When my
son Ted started out with the New York law firm, Fried Frank, and was
working around the clock, had he not enjoyed what he was doing, I think
that would have become impossible. But he was doing mergers and
acquisitions, and he loved it.
In my case, I early decided that what I wanted to be was an
appellate lawyer, and I had the opportunity first to have a clerkship on an
appellate court and then to move on into what was regarded generally at
that time as the best appellate operation in the government short of the
Solicitor General’s Office, and I think that was it. I think it’s a truism that
whether one can work long hours acceptedly hinges upon whether the
person enjoys what he or she is doing, and I think I was very lucky in that.
I was lucky all the way along the line. I decided at the age of 12, for what
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reason God only knows, that I wanted to be a lawyer. I never deviated
from that. So all of these folks that have, “What am I going to do?,” that
have these terrible anxieties over making career decisions, I never had
that, and fortunately, as I say, all of the breaks worked well for me.
MS. FEIGIN: Well one of the biggest breaks for me was to be able to work with you and
have this opportunity to take your oral history.
MR. ROSENTHAL: I’d like to conclude if I might, by saying how grateful I am, in the first
instance to you, for having number one suggested this, and number two,
made all of these long treks. This is the ninth one, out from the Dupont
Circle area where you live to this distant region [laughter]. And also, of
course, thanks to the Historical Society of the District of Columbia Circuit
which is willing to sponsor it. I don’t have the slightest doubt that this is
going to be of interest to at least some of my descendants, and indeed I
had given some thought at one point to possibly doing something by way
of an informal memoir, and this has taken the place of it. So again, I’m
very grateful to you and the Society for providing me with this
opportunity. At that point, I think we can probably conclude this, the
ninth and final session.
MS. FEIGIN: Thank you.