Charles A. Horsky, Esq.
Covington & Burling
April 23, 1992
First Session of the Interview of
Charles A. Horsky, Esq.,
for the Oral History Project,
District of Columbia Circuit Historical Society
QUESTION: Charlie, I would like to start out with just a little personal background
information for this interview. You were born in Montana, is that right?
ANSWER: That’s right.
QUESTION: And where did you grow up there?
ANSWER: I grew up in Helena, the capital city in Montana. I was born in 1910, and
I lived there until 1927.
QUESTION: Did that take you all the way through high school?
ANSWER: That took me through high school.
QUESTION: If you grew up in Helena, Montana, are you viewed as a city boy or a
country boy in Montana?
ANSWER: A city boy in Montana. That’s a big city. It had 12,000 people.
QUESTION: Did it stay pretty much that size all the time you were growing up?
ANSWER: Yeah, just about.
QUESTION: With a town of 12,000 did that actually mean you lived in a city setting or
did a lot of people actually live on farms or ranches in Helena?
ANSWER: Nope — I lived in a city setting. We had a house right in the middle of
town, and I considered myself a city boy. There were people that came
in, particularly to high school from farms around, but I was not one of
QUESTION: What did your father do?
ANSWER: My father was a lawyer. From 1920 until he retired 32 years later, he
was a state district judge in Helena. He was an elected judge — you had
to be elected every four years — and he was elected eight times and finally
decided to retire at the end of eight terms.
QUESTION: How many state district judges did you have in Helena?
ANSWER: Just two.
QUESTION: And you said you spent your first 17 years growing up in Helena? Did
you go to high school there?
ANSWER: Yeah — Helena High School.
QUESTION: Did you have any plans or thoughts about becoming a lawyer while you
were still in high school?
I don’t know whether I can honestly answer that question or not — I
suppose that I did simply because my father was a lawyer. I had the
impression that was a good career and I probably would follow it,
although I certainly didn’t have any fm plans about being a lawyer.
QUESTION: How many lawyers were there in a town like Helena at that time?
ANSWER: Oh — I don’t know. I suppose maybe 20 — something like that. Not very
many. Not as many as there are in Covington & Burling by any means.
Probably aren’t that many now. Helena now has gone up to 25,000. It
has more lawyers per population than most places because it’s the capital
city as Washington has a lot of lawyers.
QUESTION: Can you recall honestly how you did decide to become a lawyer?
ANSWER: I certainly can’t put a precise date on it. When I went to college I
majored in political science, and political science required doing quite a
lot of reading of Supreme Court cases and things of that sort; and I suppose
that solidified my intention to become a lawyer. But when I actually made
up my mind — I don’t know. At one time when I was in college, I got
very much interested in geology, particularly historic archeology. I
damned near turned into a geologist, but my geology professor said,
“Look, you don’t want to be a geologist — forget it!” So I forgot it.
QUESTION: Why did he tell you that?
QUESTION: Do you know why the geology professor told you that?
ANSWER: I don’t know. He said that, “You’re not built to be a geologist.”
QUESTION: What college did you go to?
QUESTION: How did you decide you wanted to go there?
University of Washington in Seattle.
Well, that I was — I didn’t decide really. When I graduated from high
school, like everybody else I suppose, I expected to go to the University of
Montana which was in Missoula not very far away. It was inexpensive
and it was there. But shortly after I graduated my father received a letter
from a cousin of his in Seattle who said that if his son, Charlie, me,
wanted to come to the University of Washington, he could offer me a job
parking cars in the garage that he owned there, and he would be happy to
get me settled and take care of me to get me oriented to Seattle. Well that
sounded like a pretty good idea because that was a job, and I didn’t have a
job in Missoula. So I accepted and I went to the University of
Washington. That was the first time that I had been outside of Montana,
but I had a roommate who came from Helena who went to the University
of Washington to study aeronautical engineering. We went together and
we roomed together most of the time we were in college. So I had
somebody to help me get oriented — it wasn’t too bad.
QUESTION: Did you aqtually park cars?
ANSWER: I actually parked cars for four years for 50 cents an hour straight time. I
was a night mechanic and cashier, and I worked from 6 o’clock until
midnight every day and a little longer on weekends and made enough to
support myself. College wasn’t very expensive in those days. My tuition
I think was $27.50 a quarter or something like that and my father helped
me a little bit although I didn’t impose on him too much; and toward the
end of my career there I began to give teaching sessions.
QUESTION: What were you teaching?
ANSWER: Teaching political science — we had a big course. You get a lot of people
who would like a refresher course before an exam, and for $1.00 a head I
gave them a summary of what they ought to know for the exam coming
up. And I made quite a lot of money doing that. But I supported myself
QUESTION: You actually – you worked everyday of the week and weekends?
ANSWER: I worked almost everyday of the week – yeah!
QUESTION: When did you have time to study?
ANSWER: Oh — I didn’t have to study very much, really. The courses weren’t that
difficult. I had no difficulty in getting A’s in everything with minimum
study, and I could study a little bit at the garage. I sat in the cashier’s
cage and I had a book, and we weren’t that busy except when the movie
was out and we had to get rid of all the cars.
QUESTION: Were those silent movies then or were there talking movies by then?
ANSWER: Oh no! I think talking movies came in the late 20s or 30s. I remembered
Al Jolson was one of the first ones that I remembered seeing in Seattle.
So they were beginning in any event.
QUESTION: Were there any extracurricular activities that you were involved in that
were useful for your later legal career?
No, I don’t think so. Most of my non-garage and nonschool activities
were minimal. I went to a dance once in awhile on weekends, and I got
mixed up a little in university politics like electing president of the student
body and things of that sort, but not very much so. I lived in a
dormitory, I was not a member of a fraternity. My job was to organize a
dormitory in support of a particular candidate.
QUESTION: Did your candidate win?
ANSWER: My candidate won and he happened to be a man, a curious guy, a fellow
named Marion Zioncheck. He became president of the student body and
later after I got back to Washington he became a Congressman from
Washington. And he was the greatest nut that ever was a Congressman —
he really was, I think almost insane. He finally committed suicide here, but
he was the talk of the town for a while –just absolutely crazy. He wasn’t
quite as bad as that during school, but he turned out badly.
QUESTION: Well then you — ?
ANSWER: I went to Harvard.
QUESTION: You went to Harvard for law school. How did you settle on Harvard —
that’s a pretty big leap from Seattle to Cambridge?
Well, as I said it was, again, pretty accidental the same way I got to
QUESTION: Did you park cars, there?
ANSWER: I didn’t park cars at Harvard, no. But during the latter part of my senior
year, I was having a chat with my favorite political science professor. I
don’t remember his name at the moment, and he asked me what I was
going to do, and I said that I was going to law school. He said, “That’s
fine, I think that’s the right thing to do. ” He said, “Where are you going
to go?” I said I’m going to go here, I guess, I’m here and I’ve a job,
why shouldn’t I go here? He said, “Well, there are better law schools than
this — why don’t you go to Harvard?” I said, Well, I don’t know, how do
you get to Harvard anyway? He said, “I’m a graduate, I’ll get you the
papers, and you can fill them out and see whether you make it.” So I
said, fine. So he got me the application blanks. I don’t remember what
they looked like, but they were sheets of paper. And I filled them out,
sent them in and got a letter back saying you’re accepted — come to
Harvard in the fall. That’s how I got to Harvard. I didn’t even know
how far Harvard was when he told me, but I drove back with a friend of
QUESTION: You drove across the country?
ANSWER: Drove across the country.
QUESTION: How long did that take you?
ANSWER: Oh, we had an old Ford. A man that graduated from Stanford had some
connections in Helena with a banker there. In some fashion or other he
got acquainted with the fact that we were both going back to Harvard.
We got together and left from Helena in a Model-A Ford with no real idea
where we were going to go to Harvard in Cambridge, but we were going
to go to Cambridge. So we cruised across the country with no great
trouble. It took about a week. I roomed with that man during all of the
time that I was in law school – a fellow named Ray Lindman, who finally
wound up as a municipal bond lawyer in O’Melveny-Myers in Los
Angeles. He’s dead now. We had a good trip. We got to Cambridge
and finally found ourselves a room in the boarding house where we lived.
For the first year we lived in the boarding house, and then we got into a
dormitory my second and third years.
QUESTION: What were your expectations about what you would get out of a legal
ANSWER: Well, you make it sound as if I had some, and I didn’t. What I expected
was that I would get a legal education and become a lawyer, but I didn’t
know anything more about it than that. I had really, I don’t want to over
emphasize it, but most all of this was so fortuitous. If1 had had a plan to
do something, I would have expectations of what the plan would result in
but I never had any plans – these things just happened. I expected to get a
good legal education. I expected Harvard was a good law school.
QUESTION: Let me rephrase the question differently, what were your impressions
during that first year about the kind of legal education that you were
getting at Harvard, the sort of students you were meeting and associating
with and the faculty members?
ANSWER: I can’t honestly answer that. I don’t think I had any impressions. I
enjoyed law school — I know that. I didn’t find it terribly difficult. My
roommate, Lindman, happened to be in a different section than I was. He
took contracts from Williston and I took contracts from Gardner, and we
argued to beat hell about which professor was right about which cases
which made it very easy to remember the cases later. It was a good way
to sort of fix it in your mind because you’d argued the hell out of it at
night with your roommate.
QUESTION: Did you have any sort of, I don’t know if I should say, “chip on your
shoulder” because you had come all the way from the far west and gone to
the University of Washington that somehow people wouldn’t be respectful
of your intellectual ability and training as they might if you had gone to
Princeton or some place like that?
ANSWER: I never got that impression, no. Whether it was true or not, I don’t know,
but it never came through to me in that sense. I got along with everybody
very nicely and as I said, I enjoyed it very much.
QUESTION: Do you remember what year you graduated from Harvard Law School?
QUESTION: Did you come to Washington, D.C. after that?
ANSWER: No, after law school I was one of the people that Felix Frankfurter
assigned around to various judges. I was assigned to Augustus Hand in
New York. Another man that I knew — I was the president of the Law
Review — the Treasurer of the Law Review by the name Art Dougan was
assigned to Learned Hand, and so we came down to New York together.
QUESTION: Augustus Hand and Learned Hand?
ANSWER: Augustus Hand and Learned Hand were cousins. They both were on the
2d Circuit, along with Tom Swan, Harry Chase and Judge Manton, I can’t
remember his first name. Anyway, that’s how I got to New York. New
York turned out to be a rather difficult place to find a place to live.
QUESTION: Why was that?
ANSWER: Well — we weren’t making very much money.
QUESTION: Was it in the middle of the Depression?
ANSWER: It was 1934 and the depression was still pretty much with us. The salary
of the law clerks then was $2100 a year, but Roosevelt had gone on a
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binge of cutting the budget for everything; and he cut the budget for law
clerks. So I actually got $1800 a year. So we cruised around New York
looking at apartment rooms. My sister, who had just graduated from the
University of Montana, was coming to New York with a friend of hers for
the experience so the four of us living in the East for a year were
looking for a place to live. And we finally found a house owned by
another law school classmate a man named Jack Dooling, who later
became a district judge in the Eastern District. His family rented us the
top floor of their house out in Brooklyn. So the four of us lived out in
Brooklyn. My sister worked for W.T. Grant & Co., and the other girl
worked as a secretary for some law fm. Dougan and I worked on the 2d
Circuit — we came to work together.
QUESTION: You said Frankfurter had assigned you?
ANSWER: Frankfurter, at that time, had the assignment rights for a number of
judges, particularly the Hands and some of the people on the Supreme
QUESTION: Was Frankfurter teaching then?
ANSWER: He was teaching then, yeah! I thought it was a good thing to do, and I
enjoyed the clerkship very much. Gus was a wonderful man to work for,
and actually Gus Hand and Learned Hand and Tom Swan sort of clubbed
together. Harry Chase was another one of the judges, but he lived up in
Vermont somewhere and only came down for argument so we almost
never saw him. And Manton, who later was kicked out for bribery, was a
sort of a loner anyway, and we never even associated with his law clerk
very much. The judges didn’t like Manton so Hand, Hand and Swan were
a team and their law clerks were sort of a team. So I was really a law
clerk for basically Gus, but I worked for Learned and I worked for Swan.
It was a great year. The court wasn’t too busy, and when we got a patent
case assigned to Gus, he would put it on the table and say we’ll work on
that this summer, there is no hurry about that one. In the summertime, he
asked me to go live with him for the summer — so I went up to
Elizabethtswn where he lived in northern New York. And I lived with
Gus Hand and his wife and their two grandchildren whom they were
babysitting for most of the summer. I stayed until the first of August —
and we worked on the patent cases.
QUESTION: I forgot to ask you. What did you do during your summers when you
were at the University of Washington?
Worked in the garage. I did take one quick trip back to Montana. I got a
ride back and I went back for about two weeks, but I spent most of the
time in Seattle.
QUESTION: What about at Harvard? What did you do during the summer there?
ANSWER: At Harvard, I worked for Warren Seavey on restatements. I read cases
for him and abstracted cases for him. I worked for Joe Beal getting up a
bibliography for his conflict of laws treatise –just general work around
the law school.
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QUESTION: Did you intend to stay in Cambridge?
ANSWER: I intended to stay in Cambridge — it was just too far to go back to
Montana. However, at the end of my first year, Lindman and I drove
back again, and I did spend the summer in Montana at-the end of my first
year. At the end of the second year, I had about two weeks when I went
to Europe. I got an advance from Seavey on my work that I would do
when I got back and bought a ship ticket to Europe. Ken Davis, the great
administrative law guy, and I went on a shoestring to Europe and cruised
around England and France and Germany and had a ball, I came back and
worked like hell to pay off my debt to Seavey at $1.00 an hour – that was
a little bit easier. But anyway, other than that, I worked in the
QUESTION: What kind of things did you do while you were in Europe?
ANSWER: Just wandered around.
QUESTION: That’s the best thing to do in your twenties, isn’t it?
ANSWER: Yeah! Just looking at things. We didn’t have any money to buy anything.
QUESTION: I know the feeling well. Were the clerkships then just for one year?
ANSWER: Yeah! Yeah!
QUESTION: You spent a year in New York, made your $1800 and what next?
ANSWER: Well, another one of these purely fortuitous operations. Gus called me in
one day toward the end of the term and said, “What are you going to do
now?” And I said “I’ve got several offers here in New York — I guess
I’ll take a job either with Cravath or Sullivan & Cromwell — I’ve got
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offers from both of them, which one would you suggest?” He said “Well,
I have another idea. I got a call from Stanley Reed who has just been
appointed Solicitor General, and he’s got several vacancies in his office
and you might find that an interesting job. I’ I said, “Well, what’s the
Solicitor General? What does he do?” Gus sort of sighed and said,
“Well, he’s the man that takes care of the Supreme Court work of the
Government. He writes the briefs and makes the arguments and so on. I
said, “Well, that’s sounds interesting.” So Gus called up Stanley Reed
and made me an appointment. So I got in my Model-A Ford and I drove
down to Washington and saw Stanley Reed. He said, “Fine, I’ll be glad
to have you aboard. When can you start?” I said, “I’ve got to work for
Gus until August, but as soon as that’s over, I can come down.” He said,
“Alright, August the 1st.” So on August 1, 1935 I arrived in Washington
in the SG’s office. Again, it was just as fortuitous as that. Gus just
happened to have a chat with Stanley Reed.
QUESTION: You mentioned before that you had found reading Supreme Court cases
interesting when you were studying political science. Had you developed
some career plan where you thought you wanted to be a Supreme Court
No. I had no idea of that. Obviously working as a clerk on the Court of
Appeals you have to deal with Supreme Court cases, and I learned quite a
bit about Supreme Court law just in the course of a year’s work. But I had
no — no I didn’t have any idea about working for the Supreme Court at
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all. I literally didn’t know what the Solicitor General did. That particular
term had not come to my attention, and I was very lucky.
QUESTION: Seems like the Solicitor General’s office may have been lucky too. What
sort of town was Washington in the mid-1930s when you came?
ANSWER: Well, it was still segregated. I knew a girl out in Bowie before Bowie
became a redevelopment district. She was from an old line family. I was
asked to come out to visit, and I got on a train but I got on the wrong car.
I got on the car with black people, and I got frowned at. I didn’t get kicked
out, but I felt very uncomfortable. I didn’t realize there was such
a thing. I lived in a place out on Wisconsin Avenue in a rooming house,
and segregation just didn’t happen to hit me. I really didn’t become
aware of it for some time, I guess. I have been reading Alsop’s
autobiography, and he was describing the Washington that he visited about
that same time in the middle thirties. And it is apparent that there were
several Washingtons — his Washington was a diplomatic “hoytie-toytie”
Washington — big names, big money, big houses which he describes in
great detail. I didn’t even know they existed. By the same token, I’ve
been rereading a book called the “Secret City” written by Constance
McLaughlin Green who was the sister of Jim McLaughlin, the professor at
Harvard Law School. She was a historian, and she wrote this book after
she had written a history of Washington, D.C. as a sort of a supplement
describing the black community which existed here with its own elite and
its own weddings and social events and big parties and big houses and
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everything else — again, which I didn’t know existed. I suppose, unless
you were forced to face up to some of these things, they just didn’t
impinge on your consciousness. Besides which I worked like a dog in the
SG’s office. It was a busy place. It was the time when the “New Deal”
was being litigated. I worked on the briefs on the National Labor
Relations Act cases. I worked on the briefs on the TVA. I worked on the
briefs on the Social Security cases, and the office was relatively small. It
was much smaller than it is now, and I thought nothing of working 14
hours a day – seven days a week.
QUESTION: Do you remember just how about how many lawyers were in the office?
ANSWER: Yeah! They were Paul Freund, Alger Hiss, Warner Gardner, Charlie
Horsky, Marvin Smith and Leroy Jackson. And each of us was assigned a
particular sort of area to be responsible for. Mine was the labor relations
area. Paul Freund had the TVA. Alger had the Agricultural Adjustment
QUESTION: Is this the Paul Freund who taught at Harvard who was a professor who
ANSWER: Yeah! Who just died.
QUESTION: Was this Alger the famous Alger Hiss?
ANSWER: This was the famous Alger Hiss. Marvin Smith handled the criminal
cases and Jackson handled the tax cases. We all chipped in, but basically
Reed made sort of a general assignment so when cases came up from
downstairs or from other agencies with requests to file a petition for
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certiorari or requests to appeal, they would go to particular people based
on their general assignment. As I said, it was damned hard work; and I
worked very hard and everybody else that I knew did. These were the
days when we were all enthusiastic for we were making the world better,
by God! Everybody that I knew, practically or most of them lawyers,
were either doing the same thing as in the SG’s office or somewhere else.
When you went to a cocktail party, you talked about what you were doing
to make the world better, and you didn’t really have any opportunity to
think about what kind of a city Washington was. You lived there, but
your work, at least my work, was so all-consuming that I really didn’t — I
can’t really answer your question what did I think about Washington.
QUESTION: There are some Covington associates who might say that things haven’t
changed too much since they came to Washington and started working
with the fm.
Well, I hope that they won’t work as hard as I did. I worked all night
several times, really.
QUESTION: How long did you stay at the Solicitor General’s office?
ANSWER: I was there for two years from ’35 to ’37 of August, basically. And then
I came here, Covington. So after I had been here about six months, I got
a call from the new Solicitor General, Bob Jackson, whom I met when he
was in charge of the Tax Division at Justice, and I got to know him that
way. He said, “I need somebody in the office. If you want to come
back, this time you will be eligible to argue the cases.” When I was there
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before, I had not been a member of the bar long enough. You had to be a
member of the bar for three years to be a member of the Supreme Court
bar, so the best that I could do was to sign my name to briefs, but I
couldn’t argue. But he said, “If you wanted to come back, I could give
you some arguments.” So I asked Mr. Burling if I could come back and
he said, “Hell yes, go ahead — get the experience. ”
QUESTION: He encouraged that sort of thing?
ANSWER: Oh yes! Very much so. He said, “You’ll be a fool if you don’t do it.” I
said, “Can1 come back here afterward?” He said, “Of course!”
QUESTION: What was the connection that got you over to Covington? Was that
You know — that’s one of the things that baffles me. I have no
recollection whatever as to how I made contact with Covington. I really
don’t remember a thing about it.
QUESTION: I can’t ask you any thing that might refresh your recollection?
ANSWER: No! I’m sure not. Somebody, it could have been Graham Claytor — it
could have been anybody. I suppose he must have suggested why don’t I
come over and talk to people at Covington. People had asked me that many
times, and I just literally can’t remember what the connection was.
I know I got here, but I haven’t any idea how I did it.
QUESTION: There is no question that you are here. So you went back to the Solicitor
I went back, and I argued several cases and stayed for a year and then
came back here.
What sort of work did you start at in Covington when you came back
from the Solicitor General?
Covington had a rule; I think it was a rule, at least it seemed to be a rule
that everybody that came had to spend at least a year working on taxes.
The general rationale for that rule, as far as I can understand it, was that
taxes was so important to everything that you do, whatever the kind of
case you are handling, you have got to know something about the tax
consequences of the things — you had to have some smattering of tax law.
So I worked on taxes with Paul Shorb, Marion Warmhout. Uncle Ned
had a big tax case for somebody I think it was Dupont, and I spent the
first year working on tax cases. I don’t really remember what I did the
second year. Particularly, when I got back to Covington I then considered
myself an expert on appellate practice so I probably worked on Supreme
Court cases, but I don’t remember particularly what they were. I don’t
have any real records on particular cases that I worked on during the
several years after I got back.
What was the arrangement for the time period for becoming a partner?
I don’t know if there was one, Tom. If there was one I became a partner,
I think, in 1939, and I had been there only about three years at that time.
Gerry Gesell came from the SEC, and he became a partner when he joined
the firm. So it was pretty loose at that time. Certainly wasn’t any six
years or eight years or anything like that; and I don’t know when that rule
developed, but it certainly wasn’t enforced when I first started.
QUESTION: After you became a partner, and you settled into your practice, was it
mainly an appellate practice?
Mainly an appellate practice. I only tried, I think, two cases in my life in
a court. I’ve tried a few administrative proceedings, but I am not a trial
lawyer and never have been. Most of my work – a great deal of it in the
Supreme Court. I go through my record of briefs a bunch of bound
volumes out by my wall there. Most of them are Supreme Court briefs.
QUESTION: Were there any cases that you had either in the District Court or the D.C.
Circuit Court of Appeals for the District of Columbia?
Well generally speaking, the work that I did when I came back was mostly
Supreme Court work, and I had very few, in fact during my whole legal
career I had very few trial cases. I never tried a case in the U.S. District
Court here that I can remember, and I tried very few cases anywhere else
except for administrative proceedings, I had some of those. But, as I
said, most of my work was appellate work and that’s what I considered to
be my area of expertise. However, back in the ’40s working with other
lawyers in the fm, I did participate in a couple of cases of some interest.
QUESTION: These would have been cases before the Court of Appeals?
ANSWER: These were cases that reached the Court of Appeals although they started
in the District Court. The first one was a case called Berrien v. Pollitzer
which was a case seeking an injunction against the National Women’s
Party for refusing to let one of its members use the National Clubhouse
which is that building down by the Senate Office Building. The National
Women’s Party had developed a split, and the insurgents had tried to take
over the Party machinery. They had been rebuffed, and the noninsurgents
had taken revenge by banning them from using the Clubhouse. So Mrs.
Berrien, who was an elderly lady — I would guess in her late 60’s or early
70’s — a buxom lady, a nice lady — outraged at the fact that she could not
get into the house came to me and asked if we would get an injunction
against the Women’s Party.
QUESTION: Do you know how she found her way to you?
ANSWER: Nope — I don’t. I suppose I may — no, I don’t know.
QUESTION: Can you think of some reason why women insurgents would have first
thought of you who were in need of legal advice?
Well to be honest, I don’t know whether she came to me or whether she
came to Covington and was assigned to me, but at least I got the job; and
I enlisted Spencer Gordon, one of our senior partners, an outstanding trial
lawyer to help try the case with me. He did most of the trial work, and
we tried to get an injunction in the District Court. Judge Curran refused
to grant an injunction on the grounds that there was not enough of a
property interest to warrant judicial interference. We appealed it to the
U.S. Court of Appeals, and Curran was reversed and we got the
injunction and Mrs , Berrien got to use the house.
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QUESTION: Who was the judge who wrote up that opinion?
ANSWER: That was written by Judge Edgerton with Judge Clark and Judge W. K.
Miller. Another case something like that involved the American
Association of University Women (“AAUW”). This case I worked with
Mr. O’Brian, although I did more of the trial work in this case and Mr.
O’Brian argued the appeal.
QUESTION: Was this John Lord O’Brian?
ANSWER: John Lord O’Brian another one of the senior partners in the office. The
AAUW moved to expel the Washington branch of AAUW on the ground
that it refused admission to a black lady otherwise qualified. The AAUW
National thought that was so inconsistent with its policies that after trying
to negotiate with the branch to change its mind, it finally decided it
would give it an ultimatum and terminate the branch if it didn’t change.
The branch didn’t change but brought the injunction suit. And we
represented the AAUW National in their defense of that action. We lost.
We lost in the lower court and we lost in the Court of Appeals. Judge
Clark wrote the opinion with W.K. Miller and Prettyman basically on the
ground that they wouldn’t interfere with the internal operations of AAUW
That was a disappointment. Another relatively early case which did not
involve the District Court was the Washington Ethical Society case.
QUESTION: What is the Washington Ethical Society?
ANSWER: What it is is what the case was about. It is an organization formed in
New York about 1900 — somewhere along in there. I can explain more
– 21 –
by what the case was about; that will tell you what the Washington Ethical
Society was about. It had a building in Washington where it conducted
Sunday services, and the District of Columbia finally got around to saying
that it isn’t a religion and therefore it’s not tax exempt. And they assessed
a tax on the property that the Society used for its services. The Society
appealed to the Board of Tax Appeals in the District which turned out to
be one man, and he wrote a very elaborate opinion which held it was not
a religion because the members of the Society were not required to believe
in God. It, was something like Unitarians but not quite Unitarians. You
could believe in God, but you didn’t have to. The question I briefed over
the course of a summer is what is a religion and is the Ethical Society a
religion? Well, it had a lot of the characteristics of a religion: it had
Sunday services; it had Sunday school for kids; the minister was
authorized to perform weddings and funerals; but its creed was that there
is a high morality that transcends everything else, and it isn’t necessary to
have a supreme deity to be a good person. If you wanted to have supreme
deity, fine, but you don’t have to. And I wrote a brief about 30-pages
trying to define what religion was. Not an easy job I can tell you. Then
it was set for argument, and I decided that the best way to get a decision
for my client, the Ethical Society, was to get somebody other than me to
argue the case. So I asked Mr. O’Brian, John Lord O’Brian, then an
elderly man, one of our senior partners, but also sort of the godfather of
the Harvard Divinity School. He was very active in the Episcopal church
– 22 –
and he was the kind of a person that you couldn’t really challenge as being
a radical, and he argued the case. It was argued before a court ……..
QUESTION: As we turned over the tape, I think you were just about to talk about the
judges who heard the case.
Yeah, the judges that heard the case included Charlie Fahy who was a
very ardent Catholic and whose daughters both became nuns, and really
was about as Catholic as you could get. The opinion by the Board of Tax
Appeals was, as the man who wrote admitted, mostly composed by people
at Catholic University who were adamant that if you didn’t believe in God
or didn’t require belief in God, you couldn’t be a religion. So Mr.
O’Brian argued the case, he sparred with Mr. Fahy for 30 minutes —
wonderful argument about religion and God and all these things with Mr.
O’Brian being just as religious as Mr. Fahy but on the other side. The
court finally ruled that they didn’t know whether it was a religion or not,
but it was religious enough to get a tax exemption. The footnote to that,
which is very interesting, it was a pro bono case, but we had some
expenses in printing the brief. The Ethical Society asked if they could use
the brief, and I said sure — it’s your brief after all. So they reprinted a
lot of copies and sold it for a dollar apiece around the country because it
was a pretty good exposition of what the Ethical Society stood for, and
they made enough money to be able to pay my expenses and make a little of
their own. It now has a big building which you may know about. It’s on
the corner of 16th Street and Kalmia Road, and it’s a good
– 23 –
organization — it’s really a great organization, and I really enjoyed that.
Another case that was interesting which I handled pretty much by myself
was a little bit later in the ’60s. Montana Power Co. against the Federal
QUESTION: Did Montana Power come to you because you were a son of Montana?
ANSWER: Yeah! I think I got it because I was from Montana. I’m sure they came
to me because I was from Montana, and I knew some of the people in
Montana Power from Montana. So they knew who I was. Anyway it
involved relicensing of a power dam out in Montana at the bottom end of
Flathead Lake which the Montana Power Company had leased for 30
years from the Indians. That part of the lake is owned by a tribe of
Indians. It’s part of a reservation so the Power Company has to get
permission and lease the property from the Indians, and the lease was
about to expire, and the Indians wanted more rent. They wanted a hell of
a lot more rent actually. After thirty years you probably would expect to
pay more, but they wanted an exorbitant amount. The contract had a
provision for arbitration and the Federal Power Commission said, “No,
we aren’t going to pay attention to that — we are going to set the rent
ourselves. I’ And they proceeded to do so. So we brought an action to
compel arbitration. It was an appeal from the Power Commission to the
Court of Appeals. I argued the case in ’69 before Justice Burger, Justice
Tamm and Harold Leventhal, and I got a 2-1 decision in my favor that it
ought to be sent to arbitration. Burger and Tamm were on my side, but
– 24 –
Leventhal dissented. The Power Commission asked for a hearing en banc
and unhappily for me between the time of the decision and the time that
the en banc decision was made, Justice Burger became the Chief Justice of
the Supreme Court of the United States and had left the Court of Appeals.
So the en banc hearing was authorized by a 4-3 vote. If Burger had been
there, it would have been the other way around. It would have been a 4-3
in my favor, and there wouldn’t have been an en banc hearing. But the en
banc hearing was granted, and the decision by the original panel was
reversed. ,We tried to take it up to the Supreme Court, and we didn’t
make it. But that was a bitterly fought deal. The Power Company finally
paid the rent that the Federal Power Commission wanted, and since that
time we have represented Montana Power in a lot of proceedings — not
only another relicensing of that same dam but in other dams. Nick Fels
has taken it over and has represented them in a lot of other cases. But
that was a real disappointment, and I worked like a dog and if Burger
hadn’t been appointed, I would have won the case.
QUESTION: Were there other cases that you recall handling before the Court of
Yeah! There were a few others. Let’s see — in the late ’70s I did quite a
lot of work for Southern Railroad and Central of Georgia Railroad. I did
a lot of work on the appellate level, but I also handled some other cases.
There was a case brought by a man named Victor Altman who owned
some of the preferred stock and was persuaded that the Central of Georgia
– 25 –
Railroad was phony-ing up the books to avoid paying dividends on the
preferred stock. It had to have a certain amount of earnings before the
preferred stock got anything. He was sure they had misled everybody,
and he brought a lot of actions. In the middle of all these actions the
Central of Georgia and two other railroads wanted to become a merged
railroad, which would eliminate the preferred stock and pay x dollars per
share for it. He tried to stop that, and he went through a series of
proceedings before the ICC and then the District Court — all of which 1
participated in, and he lost them all. Mostly we got summary judgments.
Finally, they did pay one dividend which he claimed he had forced them
to pay, and he managed to persuade the District Court that it was his
doing that got the dividend paid and therefore he was entitled to an
attorney’s fee. And we had one hell of a row about his attorney’s fee.
He wanted $300,000 with a multiple because he was doing it on a
contingent basis. He was representing himself all the way through. And I
QUESTION: Do you remember who the District Court judge was?
ANSWER: No, I don’t remember who it was. He finally got a judgment for
$40,000, and we argued that he wasn’t entitled to anything; and we lost
that before the Court of Appeals with McGowan sort of dissenting.
MacKinnon and Bazelon said he’s entitled to something. That went on for
almost 7 years. That whole litigation was all about the things that
– 26 –
happened resulting from his minor ownership of a few shares of preferred
stock in Central of Georgia Railroad.
There is another case in the early ’70s in which the Central of Georgia wanted
to terminate a passenger train — the “Nancy Hanks” — which ran from
some place to some place. I can’t remember. The National Association
of Railroad Passengers brought an action to enjoin the termination on the
ground that they hadn’t gone through the proper machinery under the
Amtrak statute, and I litigated that for the Central of Georgia in the early
’70s. We argued it in the Court of Appeals, and the Court of Appeals
said that the National Association of Railroad Passengers had a right under
the Amtrak statute to bring an action. It wasn’t confined to the Attorney
General to litigate whether the statute was properly complied with.
QUESTION: Is that pertaining to whether there was a private right of action?
ANSWER: The private right of action. Bazelon, Skelly Wright and Wilkey. We got
certiorari in the Supreme Court, and they reversed. I argued that case in
the Supreme Court as well, and the Supreme Court said there is no private
right of action to enjoin the termination of the train.
I had a few other cases in the U.S. Court of Appeals here. They were not
particularly significant cases. One in the 1950’s — the News Printing
Company against the National Labor Relations Board was a typical
attempt to overturn a National Relations Board order, which we lost. We
got one dissenting vote from Judge Miller. Judge Prettyman wrote the
opinion. I had a three-judge court case with Judge Robinson, Judge Bryant
– 27 –
and Judge Smith — American Waterways Operators against the Southern
QUESTION: Were you representing Southern Railroad?
ANSWER: Representing Southern Railroad again. We won that, and it was affirmed
in the Supreme Court. I think that’s about all the cases I had in the Court
of Appeals. I have a lot of cases on the shelves in my office from the 5th
Circuit and the 4th Circuit and the 9th Circuit and the 6th Circuit and all
around; and, as I said, an awful lot have been in the Supreme Court. I
was sort of the Solicitor General’s office for the Southern Railroad. They
would either lose a case or win a case in the Court of Appeals somewhere
and then want to know whether to take certiorari or have somebody
defend an application that was made by somebody else. I would give
them a judgment as to whether to apply for certiorari — trying to use the
kind of a judgment that I would use in the SG’s office. Don’t take it if
it’s hopeless. Don’t waste the court’s time and get yourself a bad
reputation. But if you got a good one — go ahead and try, and I did that
for quite a number of years with reasonable satisfaction from Southern,
but they didn’t by and large produce Courts of Appeals cases for me to
handle. They have their network of local counsel that handle cases
through the Court of Appeals and it was only when it got to the Supreme
Court that they came to me. So most of the work that I did for Southern
was Supreme Court work and we had quite a lot of those cases which I
worked on with various people in the office. Some successfully and some
– 28 –
unsuccessfully. But that all terminated when Southern was merged with
Norfolk and Western, and they got different counsel. I don’t think we do
a substantial amount of work for Norfolk and Western any more.
– 29 –
Charles A. Horsky, Esq.
Covington & Burling
September 28, 1994
Second Session of the Interview of
Charles A. Horsky, Esq.,
for the Oral History Project,
District of Columbia Circuit Historical Society
You had a conversation with Tom Williamson 2 1/2 years ago and
in that conversation you covered your youth, growing up in
Montana, your college days, your law school days, your early days
with the S.G’s office, your coming to Covington, generally your
work at Covington and very generally some of the appellate cases
that you handled here in D.C. I thought today, there is so much to
cover that it’s whatever suits your pleasure as to where we start.
It doesn’t matter.
I thought maybe if we could start where you left off and talk a
little bit more about cases before the court and then move into
discussion of your observation of the courts here in D.C. and how
they have changed and grown over the years.
Why don’t we start with the cases here and elsewhere. Here and
the Supreme Court.
When I talked to Tom, all the cases that I discussed were
numbered in the D.C. Circuit. I’ve had a smattering of cases in
other circuits over the years. Some were interesting and some
weren’t. I had a couple of cases in the Court of Claims. For a
long time we represented the National Custom Service Association,
and they had a whole lot of cases involving claims for overtime.
Some of them were trials but I argued a couple of their cases. One
of them was Meyer v. Morgenthau, Jr., another was DiBenedetto
v. Morgenthau, Jr. The cases, and there were others, were
generally handled by Amy Ruth Mahin, one of the early women
lawyers in the office. She argued some on appeal, and I handled
some. Some were in the Court of Claims, and some in the District
Court here. I also had a couple of interesting cases in other
circuits. One of them involved the issue as to whether or not a
claim of conscientious objection to war could be based on
something other than a regular religious belief. There had been
quite a number of litigations in various circuits about people who
had a deep-seated ethical reluctance about the war but were not
affiliated necessarily with a church or some other organization like
that. I had such a case for a man named Reel, who was not a
member of any church, but claimed exemption from military
service on the ground of his conscientious objection. His claim
was denied, and I appealed to the Second Circuit. Actually I never
had to argue the case because Mr. Reel had served enough time in
a non-combat position pending his appeal that he became eligible
for a discharge.
– 31 –
That whole issue has an interesting history. Because a strong
dissent in a case in the Ninth Circuit made Congress worried that
such objections might soon win court approval, a law was passed
requiring that a conscientious objector believe in a “Supreme
Being. ‘I That law came before the Supreme Court in a case like
Mr. Reel’s, and the Court nonetheless upheld the claim to
exemption. The law was later repealed. I now teach all about that
in my course at the Virginia Law School on Freedom of Religion.
AnQther case I had in the Second Circuit was Dick v. Marr, which
I tried as well as argued on appeal. We had represented the AB
Dick Company for a good many years and some of the
representations were in connection with allegations concerning
antitrust violations involving the mimeograph process. We worked
out a consent decree. But the Department of Justice lawyers found
in Mr. Dick’s office what they called a secret vault with secret
papers. These papers they said showed that the Dick Company had
obtained patent protection for its “dry” stencil by fraud. A “dry”
stencil was a great improvement; it did not have to be wetted
before you typed on it. They brought an action against the AB
Dick Company in New York for fraud on the patent office.
It was the Department of Justice that challenged the AB Dick
– 32 –
We tried the case before Judge Harold Medina. It was a very
nerve-wracking experience, because I had in my possession a file
drawer of correspondence between Mr. Dick and Archie Cox, Sr.,
his lawyer, which detailed all the litigation maneuvers Cox had
employed in getting the patent. I claimed that these pages were
privileged, but I had to be sure my representations to Judge
Medina were consistent with the correspondence, lest the Court
finally rule against my claim of privilege. It was not easy — trying
a case in two venues, one open and one secret. I finally broke out
in a rash from the strain. In the end, I never had to produce the
Another interesting bit involved the length of the trial.
Government counsel and I persuaded Judge Medina to take the case
by assuring him that it would take only two days to try. In the
event, it took much longer. The government began with an
opening statement based on its documents. His opening statement
lasted for 8 and 1/2 days.
Ms. Bruce: That’s absurd.
Mr. Horsky: Judge Medina kept interrupting him and argued all the points. I
chipped in my nickel’s worth and it just went on and on and on.
The whole case was really played out in the course of his opening
statement. Judge Medina never really chided us for taking so
much time because he must have used at least two-thirds of the
– 33 –
time himself. We finally got around to trying it and we prevailed.
Medina was quite complimentary.
Was it a civil matter or was it criminal fraud?
What I think it was to have the patent annulled.. I don’t think it
was a criminal matter.
So it was a civil matter. Was it a jury trial?
No, no jury.
The case was appealed to the Second Circuit, but I argued it before
thwe judges from other circuits because all the judges on the
Second Circuit had known Mr. Cox, and disqualified themselves.
Judge Medina was affirmed, and certiorari was denied. When I
told the Dick Company that the case was over, I think they
immediately burned all the Cox correspondence.
I also had on appeal in the Eighth Circuit — two in the Eighth
Circuit — one of them Tommy Austern got me into. He asked me
if I would brief an appeal by American Can Company against The
Bruces Juices Corporation, an antitrust case. I don’t remember the
details of it at all, except that it was known as the Bruces Juices
case. The argument was very unpleasant. I don’t know that I’ve
ever had one that I liked less. The judges of that circuit at that
time had a rule that they should not interrupt counsel. I suppose
they would interrupt if they didn’t understand what you said but
not to ask you any questions. And I got up and talked my allotted
– 34 –
40 minutes or whatever it was and then sat down. I might have
just as well have sent them a typewritten transcript. It was
Ms. Bruce: In that sort of a setting you have no idea what is troubling to them,
or of concern to them or what they want to hear about beyond the
You have no idea, they just sit there and look at you, and that’s the
end of it.
Oathe other end of that spectrum, when I was in the Department
of Justice, the second time, I got some cases to argue in the Court
of Appeals and I argued a couple of Labor Board cases in the
Fourth Circuit. There, not only are the Justices very much aware
of what you’re talking about and ask you lots of questions but at
the end of each argument they all file down off the bench, come
down and shake hands and chat with you and have a little social
session for about 15 minutes. Then they file back up on the bench
and hear the next case. I think it was a wonderful idea. I don’t
know whether they still do that.
It sounds very civilized.
It’s very nice. The other case I had in the Eighth Circuit was a
case for David Dubinsky and the International Ladies Garment
Workers’ Union, which we represented for quite a long time. The
Donnelly Garment Company of Kansas City represented by former
– 35 –
Senator Reed brought an action against Dubinsky and the ILGWU
for an injunction against a strike on the grounds that there had been
violence by the Union organizers. We defended that case. I
helped try it and we won in the trial court and Iargued it on
appeal again in the Eighth Circuit which affirmed.
Do the same rules apply where you would just make the argument
with no interruption?
No, at that time, as I remember we did have some interruptions. It
was a different panel from the first one, from the Bruces Juices
case. I don’t remember very much about that case, but I’m pretty
sure that it was not quite so dull.
The AB Dick case, the trial and then the appeal, what years were
those cases in, if you can recall.
Mr. Horsky: 1952. Roughly in that area. And the Donnelly case was in 1945.
Bruces Juices was about 1950. That about exhausts my
recollection of cases which I argued in courts of appeals. I can go
on to Supreme Court cases if you want.
Ms. Bruce: Yes.
Mr. Horsky: Well, I start out with two cases that I argued when Mr. Justice
Jackson said that I could come back to the Solicitor General’s
Office after having been away for a year because I would then be
eligible to argue cases in the Supreme Court. He assigned me to
two cases, neither of them of any great significance. One is called
– 36 –
United States against Powers, 307 U.S. 214 — a minor tax case
which I argued vigorously and lost — this other one was United
States against Bentelson and Peterson Engineering Company, also a
tax case, which I think I won although I’m not sure I can
remember whether I did. But neither of them were of any real
When was the Powers case? Do you remember when the other
The Bentelson and Peterson case was 306 U.S. 276. Both were
argued in 1938. In 1939 I got one that was a little bit more
significant. National Labor Relations Board against Sands
Manufacturing Company. That was a case which unfortunately
suffered from its timing. The Supreme Court originally vigorously
sustained the constitutionality of the National Labor Relations Act,
but later began to get second thoughts about how it was being
enforced and it refused to enforce a lot of the awards the Board
handed down. We appealed the denial of enforcement by a Court
of Appeals and the Supreme Court affirmed. I lost that case, I
know, I don’t even think there was a dissenting vote. Well, those
are my three Supreme Court cases which resulted from my coming
back to the SG’s office. At least it broke the ice for me.
Back in Covington & Burling in 1941, I was assigned by the court
to defend a man named Forrest Holiday involving a rather arcane
– 37 –
aspect of habeas corpus law. Let me see if I can remember what it
was. Oh yes, deciding whether or not in a habeas corpus case a
federal court was authorized to refer to a magistrate to determine
whether a hearing should be had on the questions involved. The
magistrate recommended against a hearing, the court agreed.
When we got to the Supreme Court I managed to persuade it that
the law said the District Court was to decide on the hearing, not a
magistrate. I don’t have a citation for that but it’s somewhere
along the early 1940’s, ’41, ’42.
The next case I’m really sort of proud of. I think chronologically,
although I’m not sure of the dates of all of these, was Hecht
Company against Bowles. He was Administrator of the Price
Control System. The Hecht Company had been charged with
violating the price controls and an injunction had been sought
against them for the violation. The statute in effect said that if
there has been a violation, an injunction shall issue. Well, the fact
was that the Hecht Company had just broken its neck to try to
comply. They had appointed a man to supervise the compliance
with the price controls to be sure that the price that they sold it at
was no higher than the base price at the time that the controls went
into effect. And they had established an elaborate system within
each department to be sure that this was done. They really had
sought to be a bellwether in how to comply with the price control
– 38 –
— but they made mistakes. Admittedly made mistakes. However,
we resisted the injunction on the ground, basically, that it was
unnecessary. We had a trial before Judge Letts in the District
Court. I put on witnesses to explain the mistakes and how they
happened. We went through every one. God-awful boring stuff
like what should have been the price on this mattress and what it
should have been on this teapot or on this pair of shoelaces. You
know, just on and on and on. There were probably 25 or 30
mistakes that may have been made. Some resulted in refunds when
the store found out about the mistakes. Some we explained even
though the government had not discovered them. But anyway,
when we got all the way through, Judge Letts decided that he
didn’t see any point granting an injunction. Hechts was doing
everything that it possibly could and an injunction wouldn’t make it
do anything more. So he refused to issue an injunction and
decided in our favor. Well, the government appealed that.
Let me interrupt you one minute and stop the tape. It just got to
Mr. Horsky: Judge Letts decided not to issue an injunction. But the government
appealed at the Court of Appeals here. I argued that case at the
Court of Appeals. I don’t remember who the court was although I
can pick it up.
– 39 –
When was this, approximately?
This was approximately 1944, ’45, somewhere in there. We got
reversed, 2-to-1 decision. Well the Hecht Company said we
worked a hell of a lot of time on this. Why don’t we take the
injunction, it doesn’t make any difference. And I said, “I know we
are right. We ought not to accept an injunction in this case. Let
me take a petition for certiorari. It isn’t going to cost you very
much. If we get it we will win. If we don’t get it, why that’s the
injqnction. ” So the Hecht Company finally came around and said
all right go ahead and petition for certiorari. So it was granted.
And I argued that case. It was the only case I’ve ever argued, I’m
sure, where I sat down knowing I had won. I got more favorable
questions from the bench than you could believe. Everybody was
on my side. When the case was over, the government attorney, I
can’t remember who it was, came up and congratulated me on the
case. And we got a nine-to-nothing decision reversing the Court of
Appeals. It required the court to say that when the statute stated
that if there has been a violation, the injunction shall issue, it
didn’t really mean “shall issue.” It meant that the Court was
supposed to use its own discretion. And the Hecht Company had
demonstrated that an injunction would have been absolutely futile
and simply punitive and of no real value to the government or
– 40 –
anybody else. That was a very satisfactory argument, I must say
I should think so.
Then I come to the next case, which was, I think, also interesting.
It was a minor case called Sam Fox Publishing Company against
the United States. The United States was trying to reign in some
of the very autocratic practices of ASAC, the American Society of
Authors and Composers, who control the copyrights of all musical
compositions, and had brought an antitrust case against ASAC.
And a group of minor publishers in music, Sam Fox being one of
them, tried to intervene on the ground that the government wasn’t
adequately representing the interests of the various small
publishers. The trial court denied the petition for intervention and
we did get certiorari. But the Supreme Court, after my eloquent
argument, decided that the government was adequately taking care
of the minor people and that they didn’t deserve to intervene if the
District Court didn’t want them in. So we lost it. That was
sometime along about 1945, ’46.
My next case was really interesting — Griffin against Illinois. That
was another one where I was appointed as counsel by the Supreme
Court. Griffin had been convicted of a crime and wanted to appeal
but he couldn’t appeal because he couldn’t raise enough money to
print the transcript. And under the rules in Ohio, you could not
– 41 –
appeal unless you supplied the Court with a transcript of the
proceedings below it. He claimed that this rule was
unconstitutional because it deprived him of his right to appeal,
while people who had money could — an unfair advantage. I was
assigned the case to brief and argue. I spent quite a lot of time
trying to find out just how he would have fared around the world.
There is no constitutional right to an appeal in the United States in
a criminal case. I found that out early on in Supreme Court cases
on that. So we couldn’t base it on that. But almost nowhere in the
civilized world could I find a case in which an appeal depended on
whether you had enough money to appeal and to supply the
necessary papers. And I argued vigorously in the Court that this
was unconstitutional discrimination. One of the arguments that
seemed to me to be persuasive, well, I think was persuasive in the
Court was the result of my examination of the results of criminal
appeals in Illinois over a 10-year period. It showed that in seventy
percent of the cases the trial court was reversed. So appeal was
not a futile business at all. The trial courts were not by any means
Ms. Bruce: Apparently not.
Mr. Horsky: Mr. Griffin’s appeal at least had a reasonable chance of being a
valid complaint. So the Court ruled it unconstitutional.
Ms. Bruce: And that’s a famous case. I’m sure I can find it.
– 42 –
This has a table of cases. Did I say Ohio?
You said Ohio but I think it’s Griffin against Illinois, isn’t it?
It’s Griffin against Illinois.
Ms. Bruce: Right.
Mr. Horsky: That was in 1956, 351 U.S. 12. If a person can’t afford a
transcript, the State’s got to give him a free transcript. In 1944, I
think it was, I argued Korematsu against the United States.
Korematsu was one of the Japanese exclusion cases.
Right. And how did you come to be involved in the Korematsu
1944, 322 U.S. 214. I have for sometime been active in the
American Civil Liberties Union. In fact, one of the things I did
was to start the branch in the District. That’s another story. But
in connection with the ACLU I got to know pretty well the lawyers
in the Northern California branch of the ACLU and I acted with
them in a number of cases for the Japanese. Korematsu was one
of the cases that arose in the Northern California branch and I had
it only in the Supreme Court. I didn’t handle any other forum.
Korematsu was a young, intelligent Japanese-American citizen who
refused on grounds of principle to report for internment. He was
arrested and because he refused to report for internment he was
convicted and he wound up in one of the internment camps. The
United States tried to avoid calling it a concentration camp, but it
– 43 –
was damn near that. Anyway, he appealed and finally got it to the
Supreme Court and I was asked to brief and argue it along with
the lawyer from California whose name was A.L. Wirin, a very
active civil liberties lawyer in California. I had, I think, 20
minutes to argue. And I think it was the best argument I ever
made. It did not prevail but I really put my heart into that one. I
thought we were dead right.
You were dead right.
Wq were dead right as it finally turned out. One of the things that
made it very difficult was that the government’s case basically
relied on the fact that all Japanese were not to be trusted. And that
things had been happening in California that suggested that we
have to just move all the Japanese out of California. There was a
report written by the commanding general of the Pacific Coast
command named DeWitt. The DeWitt report outlined a lot of
things about why it was necessary to remove the Japs. And some
of them I knew were false — well, I had every reason to believe
were false. For example, DeWitt said there were suspicious lights
moving about on the Coast, which he said probably seemed to be
signals to submarines lurking along the shore. And I had found
out to my satisfaction that the lights were Japanese kids or maybe
not even Japanese but kids going to outdoor toilets at night with a
flashlight. Really, and other things like that. In addition to that,
the whole idea of the Japanese exclusion was an anathema to a lot
of people in the Department of Justice, including, among others,
Jack Burling, Uncle Ned’s son.
Ms. Bruce: Did you say he was Ned’s son?
Mr. Horsky: Uncle Ned’s son. Eddie Burling’s brother.
Ms. Bruce: Right.
Mr. Horsky: The elder brother. He was not a well person when he died a long
time ago. Anyway, he talked to me on the QT more or less. He
told me things about the DeWitt Report that I was sure were true
and showed that the DeWitt Report was false. Well, he had caused
enough fuss in the Department of Justice about the DeWitt Report
that the brief of the government in a very, very wishy-washy
fashion sort of disavowed it but not quite. They used it. But they
didn’t really say it was all true but they didn’t say that it wasn’t
true either. It caused an enormous amount of controversy between
the Department of Justice people, like Jack Burling and Charles
Fahy, who was Solicitor General. The Pentagon wanted to stand
up for General DeWitt and insisted on using the Report. As I said,
the compromise was a wishy-washy kind of a footnote. Well, in
the argument, I did not quite say that I thought Charles Fahy, who
argued the case for the government, was misleading the court. But
I came as close to it as I could without actually saying it, close
enough so that Mr . Fahy didn’t speak to me for years and years
– 45 –
afterwards. But as you know, by a 6-to-3 vote, the court said that
military necessities were paramount. The final answer was given
within the last two years. Mr. Korematsu had brought an action
-coram – nobis to review his conviction. A District Court in
California made elaborate findings after a full trial and found that
the United States had misled the Supreme Court. It set aside the
conviction and the government did not appeal. So, I feel a little bit
vindicated about what I truly thought was a terrible decision.
At the same time, there was an argument which I did not
participate in but which I helped brief called Endo against the
United States. It also arose in California. She was represented by
the ACLU. Miss Endo, a Japanese-American who had been
cleared through the machinery of the relocation authorities to
determine that she was not a traitor or any danger to anybody
asked to therefore be released from the detention camp. And they
said, “You can’t leave.” And she said why. They said it was for
her own good. You might be assaulted or something when you get
out. She insisted. She brought a habeas corpus. The Supreme
Court really chastised Charlie Fahy on that one. I remember the
Chief Justice practically giving Mr. Fahy a lecture on what
business is it of the government telling people where they can live.
She was released. That was a unanimous decision. But Korematsu
– 46 –
really bothered me. I should have won it. I just didn’t have the
nerve, perhaps, or enough information to really tie it down.
Ms. Bruce: Well, but given the times, I think, maybe you are being too hard
on yourself. Given the climate. It was definitely a wrongly
decided opinion but even had you brought all the evidence or
information to the court. . . .
One thing I didn’t know was; something that came out later was
that the Naval security apparatus had investigated all of these
things and had given all the Japanese a clean bill of health. None
of the allegations in the DeWitt Report, not one of them was true.
The Navy had cleared them completely. I didn’t know that.
Another case which is in the same general character, which I also
lost was — it slipped my mind. I’ll think of it as I go along.
Ms. Bruce: Okay.
Mr. Horsky: The case involved a Mexican-American man who had been born in
the United States and gone back to Mexico from time to time.
And on one occasion while in Mexico he had voted in one of the
Mexican elections. And under the 1952 Act, whatever the name of
it was, you forfeited your citizenship if you voted in a foreign
Ms. Bruce: You can’t remember it [Perez v. Brownell, 356 U.S. 44 (1958)l.
Ms. Bruce: It’s okay.
Mr. Horsky: I’ll carry on anyway.
– 47 –
As a result, when he came back to the United States they arrested
him and said you have lost your citizenship and he was to be
deported. We got certiorari on that. I argued that case.
Was that another ACLU case?
Another ACLU case. And again I thought I was dead right. It
seemed to me outrageous that the person who voted in a foreign
election but nothing more particularly because as a dual citizen,
U.S. and Mexican because his parents were Mexican, he was
required by Mexican law to vote if he was in Mexico at election
time. It was a violation of law not to vote in the election. And I
discovered there were a lot of really silly cases under this statute
like the one where a woman had been deprived of her citizenship
because she was in Canada for a visit and they had a referendum as
to whether the grocery store should be allowed to sell wine and she
cast a ballot in favor of the grocery store selling wine and she lost
Oh, my heavens.
Well, she could get it back. I mean she had to reapply and go
through the motions of being naturalized. But there are a lot of
cases like that where I thought it was absurd. But I lost the case 5
to 4 with Brennan, who’s a Catholic voting against me. About two
weeks after this after the decision I read in the paper that the Pope
– 48 –
died and that the College of Cardinals was gathering from all over
the world to elect a Pope and that if the law applied to them, all of
the Catholic Cardinals in this country were going to lose their
citizenship. They didn’t of course. I knew damn well that if I had
cited that I would have gotten Brennan for sure. It made me
physically sick. I lost the case because I didn’t make the right
Wasn’t it Solicitor General Jackson who said that whenever he
makes an argument there are always three arguments: the one that
he crafts so carefully before the oral argument; the clumsily
delivered argument that he gives; and then the argument that he
thinks of at some point in the middle of the night when he’s sound
asleep after his oral argument.
Well, I normally don’t do that but this one. . . .
Well, I can understand.
Anyway, because of the decision the law got quite a lot of
publicity. Someone else thought of the Cardinals and the upshot
was that Congress passed a special exemption for the Cardinals.
That statute was very harsh — a very restrictive statute passed in
1952 under which you could lose your citizenship in a vast variety
Again, that was a reflection of the times, it’s McCarthyism.
Later section by section it was declared unconstitutional.
– 49 –
Did there ever come a time, though, when that section was
repealed by law, or is it still? I’ve never heard of it.
Most of it was declared unconstitutional, and none of it remains
today. In the meantime, between all of these interesting cases I
had a couple of minor ones which were not really very important.
I argued one for the Southern Railway. The National Association
of Railway Passengers. And I argued one for the United States
Smelting and Refining Company.
Excuse me, this is the good tape recorder that stops so that’s
Well, it’s 4 o’clock
Well, if you can go to 4:30 because we started at 2:30 that would
be two hours — why don’t we do that?
The case I was mentioning was U.S. v. U.S. Sm eltin? and
Refining Companv, which was an ICC case in which U.S.
Smelting had a very minor role but they had ten minutes to argue
and I argued for ten and I don’t remember about what. I don’t
even remember how it came out. But I had some other interesting
cases. One was Regional Rail Reorganization Act case. This is
the culmination of the Penn Central reorganization in which the
government proposed as a solution for the rail problems in the East
to create Conrail and Amtrak but to pay Perm Central for the
properties that it took only in some collateral fashion. I don’t
– 50 –
remember exactly what it was. Clearly, not full value. And that
issue came up to the Supreme Court. I was asked to argue against
the plan in favor of sending it back for a better solution. We had
devised an argument based around the Tucker Act — that if the
government took your property you were entitled to go to the
Court of Claims for redemption for the full value of it. The issue
really was whether we could insist on the Tucker Act being a
remedy. If it was a remedy then the government could go ahead
and do whatever they wanted to and we could sue in the Court of
Claims to get our money. The question was whether the court
would go that far. I prepared a long argument and finally managed
to persuade the court that we did have a Tucker Act remedy. On
the basis of that the plan was radically revised and the government
finally paid Penn Central a vast amount of money for the property
which was taken, which became part of Conrail.
And you represented Penn Central?
I represented Penn Central. I had been in charge of the Penn
Central reorganization team from Covington & Burling for the
whole period of the reorganization. Early on in the reorganization
the trustees included Willard Wirts, one of three trustees. He was
a former Professor of Law at Northwestern and former Secretary
of Labor and I had known him both as a law professor and as a
Secretary of Labor. He got to the point where he thought house
– 51 –
counsel of Penn Central was not adequate to take care of the
trustee problems because they were in a sense fully occupied
dealing with railroad problems and didn’t have any time for the
special bankruptcy problems. He asked could I come up and see if
I could help. I came up and obviously they needed help. I got a
couple of other people to help me and more people kept helping me and
more problems came up and eventually we had a very large
Penn Central team.
When was this, was this in the OS? I mean this was not that long
This was quite recently, yes.
May be in the ’80s actually.
I don’t remember the date of the case, ’75 or ’76 somewhere
around there, not very long ago. Ultimately, we had 35 or 40
people here at Covington working on the Penn Central case. I
don’t know whether this interests you or not but we were being
paid on a quarterly basis. The court and the ICC, which was sort
of sheparding the bills, insisted on having details on what we did
each quarter so I composed the regular and very elaborate bills to
what we were doing, and I suggested the amount of the fees, which
were quite large. At the end of the whole business, at somebody’s
request, I took all those bills and wrote the history of Covington &
Burling’s work for Penn Central Reorganization; how we helped
– 52 –
them out. There are copies of it floating around if you would like
to have one.
Ms. Bruce: I will.
Mr. Horsky: 1’11 pick one up for you somewhere. I don’t know exactly where
they are. Anyway in the cases in the Supreme Court which was
the crux of the final reorganization we finally persuaded the court
to give us a type of remedy on the basis of which the government
finally settled in what was called the valuation case. Ed
Zimmerman had it here in the office with a lot of other lawyers.
Another case was an interesting one. In some fashion I’d gotten
involved in the nuclear power business representing companies that
were trying to build nuclear reactors and having great trouble
getting permission over the objections of the environmentalists and
antinuclear people and so on. One case that finally went to the
Supreme Court, which I argued, was called Vermont Yankee
Nuclear Power Company v. The National Resources Defense
Council, which was an environmental group. Vermont Yankee had
gotten pretty well along with its plan but had all kinds of road
blocks put in the way by way of you have to prove this and you
have to prove that to be able to operate — and they finally got the
Atomic Energy Commission to grant them a license. The Court of
Appeals had set it aside on the ground they hadn’t gone through all
of the hoops, they ought to go back and do some more work. And
– 53 –
we appealed that on the theory that there had to be finality at some
Yes, and the Supreme Court agreed. It affirmed the Atomic
Energy Commission grant of a license to operate and Vermont
Yankee went ahead and built the plant. Apparently, that was
somewhat of a surprise to the administrative law crowd. I
remember one of my classmates in law school, Ken Davis, who
wrote the Treatise on Administrative Law.
Isn’t he the same Ken Davis who you went traipsing through
He called me up after the decision and said you ought to be
ashamed of yourself persuading a court to do what you just did.
That’s so inconsistent with basic principals of administrative law
and it’s really outrageous. You ought to apologize to the bar.
And I said well after all when you have a client and you want to
win. I won.
Well, that pretty near exhausts my Supreme Court practice. It’s
been interesting. I got to know a lot of the Justices and it’s great
fun to argue before the Supreme Court, really.
– 54 –
How has the argument changed over the years as the time allotted
Time allotted is actually different. In the early days you got an
hour each side. You argued for an hour. Now, you get thirty
minutes and you’re lucky if you get to talk for fifteen of your
thirty minutes because of the questions. Otherwise, it hasn’t
changed an awful lot. There were on the court justices who would
ask questions and some that didn’t. Some of them were questions
that the justice used to try to argue the cases by getting you to
argue back and forth with him. Other Justices would get irritated
and they’d ask questions trying to shut the first justice up. The
whole thing really got kind of frantic after a bit. But by in large it
was good. I remember one occasion in one of these earlier cases,
I think it was the Power’s case, I was arguing some arcane
question about tax law. I stated my position and Hughes, who was
Chief Justice, said I understand that what you are saying is this and
he stated it in a way which was obvious I was going to lose and I
said well no that isn’t quite right let me try it again. And I tried to
say it a little differently and he said well let me see if I can do it.
He stated it again in his way. Again, I would lose. And I said no
that’s not quite right. He said well all right have it your own way
and I lost. But Justices are uniformly courteous. They appreciate
a good argument I am sure and they probably don’t get very many
– 55 –
because so many of the cases in the court are argued by people
who have been there only once so if they get a case in the Supreme
Court by God they are going to argue it themselves and not let
somebody else take their cases. The result is that a lot of the cases
are not well argued. The government has an enormous advantage
in that respect because the Solicitor General and his staff have
cases all the time and they do a good job. They also have the
advantage of being able to pick and choose the kind of cases they
want to take up there and if they really want to take a case by
certiorari, they usually get it. It’s because of the government’s
ability to chose their cases, so their score on certiori must be at
least 50% where ordinary people maybe get 3, 4, or 5 % .
Do you think that lawyers who practice before the Circuit Court of
Appeals. . .
Find it different than the Supreme Court?
Do they really — is that enough of a preparation for arguing in the
Supreme Court. Is it really different, significantly different?
No, not really. When you’re standing up there with nine people
looking at you critically sometimes caustically it’s quite different
than an argument before a three judge court or a single court. I
suppose even before a state Supreme Court. A lot of lawyers are
what you might call novices trying to do their best. I’ve seen some
almost just collapse and not be able to say anything, being
– 56 –
overwhelmed by the court, but some of them are good. I don’t
mean to minimize, but I suspect the general caliber of Supreme
Court oral arguments is not terribly high and never has been.
But isn’t there a Supreme Court bar — lawyers who do or have
practiced enough before the Supreme Court that they are
recognized? Take yourself, for example, as someone who would
be — a client would be well-advised to seek you out for an oral
argument? Although, there is an argument to be made that the trial
level lawyer can often times make the best appellate lawyer in a
case because that lawyer is so familiar with the facts that he/she
can state their facts in such a compelling way that there’s almost no
need to argue the law.
Well, I’m sure in the early days of the Supreme Court way back in
the 1800s there was definitely a Supreme Court bar. But as you
get on toward the present time there are so many lawyers. Even
with a lawyer who has argued a dozen cases in the Supreme Court
and many who have argued at least a half dozen you have difficulty
making a Supreme Court bar out of it. I don’t think there really is
a Supreme Court bar in that sense that is recognized as such.
There may be lawyers whose reputation is high enough so that
people come to them to take cases in the Supreme Court. I
suppose John W. Davis was such a person. George Wharton
Pepper was probably such a person. There probably are others
– 57 –
that we can think of that would be in that same category. By and
large there isn’t a Supreme Court bar except on the government
Ms. Bruce: Well, I think now might be a good breaking point and maybe next
time we could take up the pro bono or the professional work that
you’ve done over the years and then move into the White House
years and then discuss your efforts specifically on the active bar
with respect to court reform, and then to hone in on the courts
themselves in the District of Columbia from what your experience
was with them in Court reform. How does that sound?
In the meantime I’ll think of my other case. That was one of my
most interesting cases and I can’t remember what it was.
Ms. Bruce: The facts certainly sound interesting. It’ll come to you. If you’re
like me you drive with a note pad on the seat next to you in the car
because things come to you. Not often enough at red lights, usually
as you’re driving.
Are you really sure that all of this is really what you want?
Yes, I’m absolutely positive.
– 58 –
Charles A. Horsky, Esq.
Covington & Burling
September 29, 1994
Third Session of the Interview of
Charles A. Horsky, Esq.,
for the Oral History Project,
District of Columbia Circuit Historical Society
Ms. Bruce: In your years of practice here in Washington you came to know
Mr. Horsky: Actually the kind of practice I had didn’t involve the kinds of 1
people that you are talking about, really.
Ms. Bruce: Well, but in your years of practice here in Washington you came
to know many people who today are regarded as leaders of the
Bar, who were leaders of the Bar. Maybe not in Bar association
terminology but just meaning the lights within the Bar, famous
lawyers in Washington. Famous personalities in Washington.
Mr. Horsky: [Inaudible.]
Ms. Bruce: Let’s talk about when you first came to Washington to practice
law. When you first came to the Department of Justice what was
Washington like back then?
Well when I first came to Washington in 1935, the New Deal was
in everybody’s mind. I worked in the Solicitor General’s office
which was at the cutting edge, if you want to call it. It was the
constitutionality of what made the New Deal. In that office we
worried about the constitutionality of the National Labor Relations
– 59 –
Act, Tennessee Valley Act, Social Security Act, Agricultural
Adjustment Act. And I had almost no contact outside of the
Department of Justice with any of the rest of the legal
establishment in Washington. But in the government area, it was
an era of which everybody was assured that they were on the right
track and that they were saving the world. And they should give
their very best efforts to that end. It was an era in which when
lawyers got together they didn’t talk about the baseball games or
thcfootball games. They talked about what were you doing in
your cases and how were you coming along with the problems.
Most of the obstacles to getting such programs up and running
successfully was a very heavy period when everybody worked
without regard to the clock. I recall several times when I worked
all night into the next day getting a brief out in time. Or in
conferences with lawyers about what’s going on in the cases which
I was responsible for in the SG’s office. But for those years in the
Department of Justice, I was persuaded like everybody else that I
was here saving the world and I was going to do my damnedest to
get it saved. It was the time when the Supreme Court having
declared the NIRA unconstitutional and a few other taxes
unconstitutional began to turn around. Justice Roberts was the
swingman and he began to vote our way and he miraculously got
the National Labor Relations Act declared constitutional and the
– 60 –
TVA Act declared constitutional. It got the Social Security Act
declared constitutional. We were all really very excited about the
efforts we were making and the success we were having. But it
was the kind of environment in which your relationship with the
rest of the world including the rest of the District of Columbia and
certainly the rest of the District of Columbia Bar were either zero
or very minimal. Your focus was on the job that you were doing
and that was it. I’ve been asked many times about the integration
of the District — segregation of the District. And I have to confess
that it never impinged on my consciousness really. I drove to
work and drove home where I was living.
Where were you living back at the time in the thirties?
I was living in a boarding house out on Wisconsin Avenue. And
later in 1936 when I was married we moved into a small house that
I rented in Georgetown. And the only real recollection I have of
race relations was that in those days Georgetown was a very
integrated community. In the same block in which I lived there
were several Negro families. That never occurred to me that there
was anything startling about that. That was the way it was. For
that period I can’t tell you anything about the rest of the Bar. I
can only tell you about the dedication of government workers both
in the Department of Justice and in the other agencies like the
National Labor Relations Board and the TVA and Social Security
– 61 –
Administrations which were all in the same kind of like euphoric
mood that I was. And it was wonderful. I never had a better time
in my life. I probably never worked harder in my life than I did in
When I first came to Covington, I guess I had had some experience
with the other people in the Bar but I don’t remember any. I
worked basically with Paul Shorb on tax matters; I worked with
Mr. Burling on a couple of tax cases that he had; and I got to
haw the people in this office. But again, I had almost no contact
with the outside Bar. And I never have had really a great deal of
contact outside of Covington. As my worth in the Firm developed,
I began to see a little bit of lawyers outside my immediate
colleagues of Covington but I don’t recall any of it in particular
being important or significant. I am sure I had cases against
people, or at least people on the other side of the problems I was
working on. But I have no recollection of them and I don’t even
remember who they were.
When you came to Covington there was a time when you went
back to the Solicitor General’s office.
I went back to the Solicitor General’s office.
And what years were those that you went back?
Well I started with the SG’s office on August 1, 1935 having
finished a year’s clerkship with Judge Hand in New York. And I
– 62 –
stayed there for two years until about the fall of 1937. I don’t
remember if it was August 1 or not but it was about that time.
And I stayed at Covington for a year and then as I probably said
earlier in this operation, I got a call from Bob Jackson who was
then Solicitor General offering me a job in the office again and
when I would be eligible to argue cases in the Supreme Court.
And I asked Mr. Burling if I should take it and he said, of course.
So, I went back for a year. I was there from 1937 to the fall of
1938. And then I came back and I have been at Covington with
the various excursions ever since that time.
Ms. Bruce: Well why don’t we talk about the excursions. I know of one. I
see some of the photographs on your wall reflecting your service
with President Lyndon Johnson.
Well the first excursion was in connection with the Nuremberg
trial. This was in the 1940’s. I read in the newspapers that Bob
Jackson had been appointed chief prosecutor. The whole idea of
the Nuremberg trial sounded very interesting, so I went to his
office to see if I could help out, you know, do something in
connection with it. And he said sure, he’d be glad to have me and
he gave me some drafts of the indictment and of the charter of the
international tribunal which he was working on. He asked me to
look them over and see if I had any suggestions or ideas about
them. So I took them home and scribbled some notes in the
– 63 –
margins. I came back in a couple of days. But at the same time I
began to worry about the fact that they were all marked top secret
and here I was carting them around in my briefcase. I told the
Justice that I thought this was going to get both-of us into trouble.
I’d like to do it and I’d like to be helpful but I didn’t want to get
accused of violating the security arrangements. So he said, “Well
that’s all right, we’ll fix it up — I’ll put you on Bob Patterson’s
payroll in the Defense Department, ” which is where his office was
located, his Nuremberg office. I mulled that over for a little while
and checked it out here at the office and discovered that if I was
put on Bob Patterson’s payroll I not only would disqualify myself
from the kind of work I was doing at Covington, obviously, but I
would also disqualify a lot of other people in the office from doing
work on defense matters. So I told the Justice that wouldn’t work. So
he said, “Well, I’m sorry, I’d love to have you aboard but I don’t
see how we’re going to do it and keep you happy at Covington at
the same time.” So, I left his office. When I came out there was
a man in his office reception room named Sydney Kramer who was
an officer in the Coast Guard, a friend that I had known for
sometime. And I chatted with him about my problem. “Well,” he
said, “there’s a very easy answer to that. The Coast Guard has an
organization called the Temporary Reserves. They patrol the
harbors and they are not paid but they volunteer. While they are
– 64 –
acting as Coast Guard people and patrolling the harbors they put on
uniforms and they are members of the Armed Forces with all the
perks that entails. And then they take off their uniforms and go
back to being bankers or longshoremen or whatever. They are just
citizens again. Why don’t you join the Temporary Reserves?” So
I went in to see the Justice and went back into his office and said,
“I think we’ve got an answer. I can join the Temporary Reserves
with the Coast Guard.” And he listened to my explanation and Syd
Kramer’s explanation and said, “That’s fine. I’ll call up the
Commandant of the Coast Guard. He called up and said I’d like to
have Mr. Horsky join the reserves and I’d like to have him as my
representative in Washington. So give him some kind of a rank so
that he can really deal with people. ” So I went over to the Coast
Guard office which then was where the new building is now being
built for the International Trade and Cultural Center. It was in the
old Southern Railroad Building which was the headquarters of the
Coast Guard. And I discovered that in order to be eligible you
have to be able to breath in and out and that was about all. I
qualified and I was sworn in as a Lieutenant Commander, 2%
stripes. Not quite enough to get scrapple on the visor of my cap
but a good rank. So I went out and purchased a uniform, two
uniforms, a dress uniform and a regular uniform and became a
member of the Temporary Reserves. And I got an office for
– 65 –
myself over at the Pentagon and I functioned as a reservist for the
duration of the Nuremberg trial. My job was the Washington
representative of Justice Jackson and to do whatever could be done
for him in this part of the world, while he was over in Nuremberg.
And I had a staff of two assistants and two secretaries and we
arranged for witnesses, we arranged for getting additional lawyers,
I kept the Justice abreast of the press coverage of the trial and how
it is playing with the United States and I sent him daily reports and
on about four or five occasions I took over the information on the
witnesses myself just to see how things were going so I would be
more intelligent about what was going on. And all in all I had a
useful and very successful kind of an operation. There were two
parts of this work that I remember very distinctly. One was to get
an affidavit from Ambassador Messerschmidt, who had been
Consul General in Austria at the time of the Anschlutz when
Germany took over Austria. He was then Ambassador to Mexico.
I was asked to go down to Mexico and get an affidavit from Mr.
Messerschmidt about what happened in connection with the
Anschlutz. Mr. Messerschmidt was a former school teacher and
very little man, only about 5 feet tall. He had written reports from
Austria to the State Department about what was going on in great
detail, almost every day he would sit down and talk to his secretary
for an hour and send that off to the State Department.
– 66 –
This was during the war he did this?
This was during the time when Germany was just taking over
Austria. Before the war was on. That was called the annexation
or absorption of Austria by Germany. So I went over to the State
Department and I spent about two weeks running through
Messerschmidt dispatches trying to learn as much as I could. I
took some of his dispatches through with me down to Mexico City.
There I sat down with the Ambassador and went through day by
day, how things were going in Austria on the basis of his
recollection. We developed an affidavit that was about 75 pages
long. It was shipped off to Nuremberg and was introduced at the
trial later on. I had been a member of the Coast Guard by that
time, about three weeks, four weeks, something like that. Green
as possible as far as the military was concerned — I didn’t even
know when to salute, when not to salute and how I was supposed
to act. When I went down there I went into the Ambassador’s
office. His secretary said she could fix me up with some place to
stay and she did, at a hotel. Then I ran into the Naval Attache.
He said “what are you doing here?” and I said “I’m down here
interviewing the Ambassador. It He said, “DO you have the
clearance to do that? You’re supposed to come and see me. I’
Ms. Bruce: Report to the Attachk?
– 67 –
Mr. Horsky: I said, “Well, I didn’t know that. And he said, “Well, how long
have you been a member of the Coast Guard anyway?” And I
said, “About two weeks”. He said, “Oh, my God, well, I won’t
put it in your file that you violated a regulation, but next time that
you come for God’s sake come in and report to me. And I’ll take
care of getting you a hotel and all the rest of it. ‘I That was my
first unfortunate dealing with the military. Anyway I got the
affidavit and enjoyed my conversations with the Ambassador. We
worked very hard getting him to give me an idea of what to say
and then writing it up in the evening and going over it with him in
the morning, and then spent part of the afternoon getting part
ready. We worked for a period of about ten days. All this was on
government pay and allowances, I didn’t have to pay for it.
That was one interesting part of the assignment. The other one
was even more interesting. One day I was sitting in my office at
the Pentagon and a man named Bostaert came in and asked to see
me. He said “I’m curious to know how you’re working out the
arrangements of this trial for taking care of the various languages
that are going to be involved. You got a Russian judge, a French
judge, two English speakers and a lot of German defendants and
German lawyers and you’ll probably have witnesses that speak
other languages. How are you going to do it.” I said, “Well, I
don’t really know. I suppose we’ll just have to have somebody
– 68 –
interpret as we go along.” He said, “Oh, God that’s going to be
awful, too. How are you going to have a person interpreting the
Russians, the French and the Germans?” He said “You know,
we’ve had some experience, I’ve had some experience with what
you might call simultaneous translation. I can rig it up with
headphones. When somebody speaks in any language the
interpreter translates it into other languages as they go along. It’s
never been done with more than one different language but I’m
sure its not technically impossible, four or five or six and I think
you at least ought to consider it. I’ And I said “I sure will consider
it because I see your point as to how difficult it would be
otherwise.” So I got on the telephone with the Justice and I said,
“I don’t know what arrangements you’re thinking about to deal
with the language problems, I just had a suggestion from Colonel
Bostaert” . . . it wasn’t Colonel it was Professor Bostaert . . . “as
to how we might do it through a system of simultaneous translation
with a wire hook-up to everybody with their own language. At
least don’t make any other arrangements until we’ve tried it out.”
So I got a hold of Bostaert and we rigged up a test case at the
Pentagon. We brought in a lot of wires and headphones and
interpreters and we had a session in the Pentagon with four or five
people talking different languages simultaneously through the
listeners’ earphones. It was awful crude but it did work. He said
– 69 –
well I think we’ve shown that it can work and it’s just now a
matter of getting the different interpreters that are going to be
necessary to make this thing happen. So I shipped him off to
Nuremberg and he talked to the Justice. America was really
handling all of the physical arrangements in Nuremberg. The
other countries — England, France and the Soviet Union — were
content to let Uncle Sam take care of all that, including fixing up
the court room, rejuvenating the building that it was housed in and
so on. So we got IBM to contribute the necessary machinery,
wires and switches and it worked. It was a very interesting
system. There was a room with a glass front where the
interpreters sat so they could see what was going on. They could
see who was talking, who was about to talk. One man in that
galleria was responsible for translating everything for the English
language circuit. Whether it was spoken in French or Russian or
whatever, he had to put it into English. Another one was
responsible for the French language, and another one was
responsible for German language, another one responsible for the
Russian language. Prof. Bostaert was finally made a Colonel in
the U.S. Army and he came over permanently from the United
States to get adequate people to do this.
I guess you need, like you say someone responsible for Russian
language, it would be someone who would be able to take the
– 70 –
Russian language and interpret to German, or someone who could
take Russian and interpret it to English. So you would need maybe
ten Russian translators for ten different languages, right?
Mr. Horsky: Well, what they really wanted was a man who would be able to
take any of the languages that were likely to be spoken and make
them into Russian or French or English or you would just have to
have one man.
Not just somebody who is bi-lingual, but who is multilingual.
One man for each circuit. Every seat in the court room including
the defendants, judges, prosecutors had headphones and a switch
on which he could choose to hear his own language, English,
French, German or Russian. Everything that was said in the court
room came over in your language.
I’m sure he has had the League of Nations or later the United
Nations have that type of. . .
I think they did. Well, I was there the first day they used it.
There was a button in front of everybody. Particularly in front of
the judges, they had buttons. If the translation wasn’t working one
could push the button and everything in the court room would stop
until they got the interpretation going again. And the first day the
red button was pushed an awful lot of times. The interpreter
would get behind or they would get confused or something like
that. But later on in the trial it was like a charm-nobody ever
– 71 –
thought about the problems with the interpreter. They sat up there,
did their job and we listened to what was going on and kept what
was going on in English.
That was a valuable . . .
And I think we made the trial possible with it, otherwise I don’t
know how it would have been possible to do it because we had a
Russian judge, interrupting a German who was being crossexamined by an Englishman. You know, the interpreters could see
wlqit was going on so they knew what to expect. I mean the
interpreters were really superb. They really did a marvelous job.
I had an occasion later to experience their skill, when I went over
to help General Taylor in the subsequent trials of some of the
Germans, the lesser lifes, whom the United States prosecuted after
the Nuremberg trial was over. I was over there for a couple of
months helping General Taylor. I was examining a German
witness and I had an interpreter, one of the regular ones who was
still around after the Nuremberg main trial. I was waging a pretty
vigorous examination. I had my earphones so I could understand
his answers, and he had his to understand my questions. I looked
up at the interpreter once and he was reading a comic book.
Interpretation was automatic as far as he was concerned. He didn’t
even have to think. He was enjoying the comic book while I was
doing this rather vigorous examination. The interpreters were very
– 72 –
wonderful people and they were good. Anyway that was another
thing that I managed to accomplish in that office.
Okay now we are all set, so we were asked —
Well in the final analysis — when the trial was over, Justice
Jackson asked me to go with him to the final episode of the
Nuremberg trial — the sentencing of the defendants. I did so. I
listened while the court imposed sentences on all of the defendants,
and acquitted some of them. Then General Taylor, who I say was
one of Jackson’s principal assistants, asked me if I would help with
the cases he was going to try. As a result, I stayed on in the Coast
Guard for another period. I was in Nuremberg for about a month
as a trial lawyer in the Subsequent Proceedings — cases in which
the U.S. tried a number of lower-level Nazis for war crimes —
doctors, lawyers, judges. I enjoyed that very much. Most of these
lower level people were just as guilty as the big ones. I.G.
Farben, for example, was one of the defendants. And that was —
that was my first excursion out of Covington. It didn’t take me out
very much, and I still carried on practice here. I spent a good deal
of time at the Pentagon in my other office. Nobody in the office
seemed to object, everybody thought I was having a good time, and
What was — what was your second excursion?
– 73 –
Mr. Horsky: My second excursion was to — the White House. I came home one
evening from a party at about 1O:OO o’clock and the phone was
ringing as I walked in the door. I picked it up and it was Phil
Graham on the telephone, he was the editor of the Washington Post
and an old friend of mine from way back and he said that “I’ve
just been talking to the President about the District of Columbia
and we need somebody to help him do something for the District
and I recommended they appoint you,” and I said, “My God!
What does that mean, going over to the White House? “and he
said, “Yes it does . . . and be his advisor on the District. ‘I So I
said, “Well, thank you Phil. I’ll think about it and talk to the
people here at the office about whether I can get away or not. But
I probably can do it for a year or so, without too much trouble.”
And I came back and I talked to Dean Acheson, he said oh don’t
do it — all those Irish fellows over there would never work with
you. However, I thought this was just too good a chance to pass
up so I called Phil back and I said “I’m glad to help, where do we
start.” And he said, well talk to Bobby Kennedy, he’s Attorney
General and he’ll straighten it all out. I told him that I had to go
to Wisconsin to make a speech. I can’t remember what about.
When I was in Chicago on my way back to D.C. I put in a call to
Robert Kennedy at the Department of Justice and got some
secretary and said, “I’m supposed to call the Attorney General, my
– 74 –
name is Horsky, about a job in the White House. She said, well
the Attorney General is busy but I will make a date for you, if you
want. So we made a date for me to go down and see him. When
we met I explained what had happened and we had a good
conversation. At the outset I said that there was one thing I think I
better tell you about: I’m probably on the FBI’s undesirables list.
I have been representing people the FBI doesn’t like, people that
have been guilty of contempt of Congress. I one time circulated a
petition or started to circulate a petition to have a Congressional
investigation of the FBI for tapping lawyers’ telephones. When
this petition became public, J. Edgar Hoover went into action and
gave to a friendly reporter my F.B.I. file. The Star condemned the
petition as outrageous and listed all of my contacts with the
American Society — American Soviet Friendship Society and my
representation of people who had been accused under the Loyalty
program. And, I said, “You know, I don’t want to embarrass the
President by getting over there and having a big hooray about
getting this subversive person on his staff. ‘I Bobby said “Well,
I’ve — I’ve known something about that and I’ve got your file from
the FBI and I looked it over and I think it’s fine. I’m all for you,
go ahead. ” So I took the job and I went over to the White House
and got myself an office staff.
– 75 –
Mr. Horsky: This was 1962, and I took my vacation in Montana as I usually do
in August. I started about the first of September in the White
House in ’62. I was assigned an office in the Executive Office
Building, a beautiful office on the first floor overlooking the White
House grounds. I shared it with — I shared a bathroom with
Esther Peterson, she had the office on the other side of the
bathroom and we got to be good friends. I had a secretary from
the White House and I took Eunice Graham, my secretary here,
with me and she got established and I stayed over there as advisor
to the President until the spring of 1967. I originally planned to
stay maybe a year, maybe two years. But I just couldn’t ever get
permission from the Presidents to leave. Kennedy wouldn’t let me
go and when LBJ came in I submitted my resignation along, as
everybody else did. It was customary and he called me and said,
“I don’t want you to leave, I need you.” “Well I’ve been here
quite a long time. It He said, “Stay a while longer, it won’t hurt. I’
And I finally was able to persuade him to let me go in 1967, only
because he said, “If you can find somebody else like yourself, who
knows about the District, who will come over and take your place;
then okay, you can leave.” So I finally — managed to round up
Steve Pollak, he said he would be willing to do it. He came in
and succeeded me for about a year before the office was finally
abolished. But that was a five-year absence from the office.
– 76 –
Ms. Bruce: And what — if you could describe that position for me — I mean
this would pre-date any sort of home rule in the District of
Mr. Horsky: Oh yes, yes.
With that — we still had a Commissioner form of government.
Well I think I can best explain it by my first conversation with Jack
Kennedy. He said, “Well, you know I’ve been in this town for
quite a long time and in the White House for a year and I don’t
know a damn thing about the District really, except that it exists
and what I really need is somebody who will tell me what to do.
The District is being run by the District Committee of the House
which was a collection of Southern Democrats, headed by a man
named John McMillan of South Carolina, who kept getting
reelected regularly by telling his constituents that he kept those
“damn riggers” in Washington under control, which he did. The
idea was that if the President would take some responsibility for
the District it would improve things here a little bit. So the
President said what I want you to do is do what you think ought to
be done in my name and whatever you do I will back you up. Just
go ahead and do it, keep me posted as to what you’re doing so I
will know what’s going on, but don’t come and ask me what to do,
that’s what you’re supposed to do. You know — in fact what I was
— was the President’s voice in District management. This was not
– 77 –
terribly popular with the Commissioners. Walter Tobriner who
was the President of the three-man Board of Commissioners at the
time, was a friend of mine and I had known the other
commissioners in connection with the work I’d done even around
the District on a pro bono basis. Walter felt that he wasn’t going
to be really the top man now anymore as far as the executive
branch is concerned anyway and why the hell did the District need
a White House lawyer? He said I am perfectly competent to run
the,District. But we had a couple of meetings and I persuaded
them — that I wasn’t there to tell him what to do — I was there to
help him do what he wanted to do, and really that’s fine. I knew
he had things that he liked to see accomplished in the District and
couldn’t get permission from the District Committee to do, he
couldn’t get money to do, I said I think I can be helpful. So he
finally, said well alright, if that’s the way it’s going to work that’s
fine we’ll get along. So I established a relationship with the
Commissioner and then I went to work.
The first thing I did was to address the problem of the federal
payment which over the years the committee had kept at a certainly
low rate. Theoretically the federal payment is to reimburse the
District for the loss of tax revenues.
Because of the federal land here?
– 78 –
Mr. Horsky: Because of all the federal — they’re losing because of exemptions
that the Federal government gives to Embassies and church
organizations and libraries and God knows what all. And it had
been at a very low level. So I got busy with the bureau of the
budget and we worked out a budget for the District which
anticipated a much larger federal payment. Then I asked the
President if he would be willing to sign a budget message for the
District. Until that time the District budget was simply an annex
to the Federal budget and nobody paid any attention to it, really on
the Hill. So I wrote a budget message, a damn good budget
message. It explained the needs of the District and why we were
spending this money, and set out a variety of other things that
ought to be done. All this caused quite a big sensation on the Hill
and we did get the Federal payment raised very substantially, I
came to know about Senator John McMillan. I tried to make peace
with him, I went up to his office a couple of times and made an
appointment to come and see him to explain what I was doing and
that I needed his help. And each time I got to his office I was told
that my appointment had been cancelled. I never did see him the
whole time I was in the White House. Well that isn’t quite true, I
saw him once. But he did not like to have the President interfering
with his —
Ms. Bruce: — Plantation.
– 79 –
That’s how it’s often been described.
Well — the fact is that an appropriations committee cannot
appropriate money unless it’s authorized and the House District
Committee was the one that made the authorizations, so that
Committee really had fiscal power, and McMillan, and he used it
to the limits. The real problem was his real aversion to have
anything good happen in the district because it was black.
Another thing I did right at the beginning — I suggested that since
the President customarily met with the heads of the various
appropriations committees to talk about agriculture and defense he
should meet with the heads of the committees for the District. The
President agreed to the meeting, and this is the one time I met
John McMillan. John McMillan came over as the Head of the
District Committee, Senator Byrd who was then Head of the
District Appropriations Subcommittee in the Senate Appropriations
Committee came over and some other Senators I can’t remember —
Senator Bible — more of them came and we had a picture taken
in the White House of me and the President and the four Heads of
the Committee. I thought this was going to be a good meeting and
I handed the President in advance a little check list of what to talk
about, but it turned out that Senator Byrd had just gotten word that
the District was misusing its welfare program and of all kinds of
– 80 –
abuses in the welfare program and he wanted it stopped and we
didn’t talk about anything else. (laughing) Senator Byrd was
insistent that was the — that was the thing that had to be taken care
of and nothing else. It’s important to talk about. Anyway we had
The budget message contained one thing, which I had known about
for a long time and thought about for awhile, which was the lack in
the District of Columbia of a college or university. I put in the
budget message the suggestion that one of the things that ought to
be considered was the creation of the University of the District of
Columbia, because the District was the only place, really under the
American flag, which all of the possessions and territories, where a
person can graduate from high school and have nothing left for him
by way of higher education except a Teacher’s College, which had
been in existence for quite a long time. That institution was too
busy turning out teachers for the District of Columbia Schools to
do anything else. So I suggested we ought to do something about
it, and I put that in the budget message and the President signed it.
I went over to Ken O’Donnell who sort of ran the President’s
office and said I need some money for a committee that would
study the problem of the District of Columbia University. He said,
how much do you need? I said probably about 50 or 60 thousand
dollars. He said well alright, you got it and go ahead. So I dug
– 81 –
around and I got a committee appointed with really substantially
prominent educators not from the District, Chicago, New York, St.
Louis, Kansas City and one — Agnes Meyer — from the District,
and a good man from a college in New York as its Executive
Director or whatever you want to call it. We ran a study to see
why — why the District should have a university and how to do it
and we prepared a Report. It’s called a report to the
President, and it recommended the creation of a Federal City
College. Senator Morse introduced the appropriation bill in the
Senate, which passed it. In the House Ancker Nelson, a
representative from Minnesota, which had a two-year technical
school, said he wanted one in the District. So the final legislation
provided for a Federal City College and a Washington Technical
Institute. That was a little bit difficult also because it seemed to
supplant Teachers College, and Paul Cook who was the President
of Teachers College, was quite upset about the fact that there was
going to be another institution which could really be superior and
above his and he took a little calming down. I told him we still
support the Teachers College but we need something better than
that. When I left the White House in 1967 the bill had just finally
cleared and much to my surprise I was notified by the President
that I was appointed to the Board of Higher Education which was
created by the legislation to bring the college into existence. It was
– 82 –
a very high-powered board, a lot of people who were substantial
citizens. We had a meeting, at the meeting I got appointed to be
Chairman and I started off trying to figure out how to create a
college and I had a marvelous time. It was a new experience,
being handed a piece of paper saying that there shall be a college,
and making a college out of it.
Well the first thing I had to have some money, get a secretary and
place to operate so I went to the D.C. Board of Education and I
said I’m sure that Congress is going to appropriate some money for
this but they haven’t yet. I’d like to get started, could you lend me
$100,000 and they said we’ll lend you $100,0oO. So I got my
money, I hired a secretary and we started in. All of us on the
Board undertook to learn how you do this by going to New York
and other places to find out how you start. We finally found a
man out in Oregon who had created a couple of colleges out there,
a white man who we made President. That’s a real long story I
won’t go into it but the important thing was that we finally got the
thing started. We had a little problem with the Technical Institute
Board because they were also getting started and we were
both competing for a location. One of the things that I
thought was a possible location was the old Bureau of Standards
site on Connecticut Avenue which was then being vacated by the
Bureau of Standards. They were moving out into Maryland and
– 83 –
the buildings were just stranded there vacant and I thought that
would be ideal but that was under the jurisdiction of the
Department of Commerce and they were not enthusiastic about
giving it up. So I went over and saw Secretary-Hodges. I assured
him that our use was only going to be temporary, we just need
some place to get started and we won’t be there for more than a
few years and anytime that you want it back you can have it back.
He said well I’m not enthusiastic but O.K.
Is @is where the University of the District of Columbia is now
Yes. The upshot was that both the Technical Institute’s Board and
my Board — we finally found two places — the other one was the
old temporary building down on E Street which is now a home for
the homeless. It was then vacant. So we had two places one
downtown and one quite a long way out. Our Board finally
decided that we would rather be downtown. We expected a lot of
part-time students. It would be much easier to get down to E
Street than it would be to get way out Connecticut Avenue. So we
agreed we’d take the downtown building. Much later, when the
University of the District of Columbia finally was created merging
Federal City College with both the Technical Institute and the
Teachers College it located on the Bureau of Standards site.
– 84 –
Ms. Bruce: And the University of the District of Columbia is the successor to
Federal City College?
Mr. Horsky: Well, carrying the story along quite a long ways finally after I left
the Board of Higher Education after a lot of preliminary work had
been done while I was there we arranged for a merger with Federal
City College with the Teachers College so at least there wouldn’t
be three organizations. Then some years later the University of the
District of Columbia was created by another act of Congress which
merged the Technical Institute and the University into one
institution. It is now the University of D.C. so there is now just
one school instead of three. But they stayed at that location. We
stayed down on I guess E Street until quite late. We finally got
another place over on H Street, an office building we rented and
the College moved around from time-to-time and then they finally
located on Connecticut Avenue. But that was fun.
I should think so.
It was a lot more fun before we had any students. It was only a
matter of hiring faculty and we relied on the President to tell us
how many faculty and that we needed a librarian and a library, of
all of the details of a university which we didn’t know anything
about, but he did. He did a good job and we got the thing going
finally and offered open enrollment, very inexpensive. The theory
was that anybody could come and if they persevered they could
– 85 –
graduate, may not be in four years, maybe it would take ten
years, as long as they were willing by working part-time or
whenever they could carry on. The enrollment turned out to be
entirely black, almost entirely black. There was great tension
.between a white President for a black institution. We finally
changed the President while I was there, while I was on the Board
to a Black man. That was the period when Black studies were all
This was in the OS? Would it be up to the ’70s at this point, the
Yes, this was in the ’70s. Black students were insisting on having
a Black physics and Black mathematics, and Black everything.
They wanted to have a completely Black oriented institution. The
new President managed to calm that down. We got over that. It
was pretty hectic for a little while. In fact, I had police escorts to
get home from my Board meetings.
When did you go off the Board?
I went off the Board after about five years. I was Chairman for
three years, and succeeded by a Black man.
– 86 –
Charles A. Horsky, Esq.
Covington & Burling
October 6, 1994
Fourth Session of the Interview of
Charles A. Horsky, Esq.,
for the Oral History Project,
District of Columbia Circuit Historical Society
Ms. Bruce: When we stopped last time we were discussing . . . we talked a
little bit about your White House days and we talked about the
foFation of Federal City College. Then we were going to go
back to the White House days a little more, a little more detail
about what you did in the White House and the position you were
in. I thought maybe we could start there and then move into a
discussion about the judiciary . . . , personalities basically and then
discuss the report that you made on the courts, the court
reform. . .
Mr. Horsky: With respect to the White House, I had a free hand, pretty much.
Neither Kennedy nor Johnson was inclined to tell me what to do,
but inclined to have me tell them what to do. So I operated on sort
of a free-wheeling basis and involved myself in anything that
seemed to be going on. At that time there were several items of
concern in the District. One of them was the proposal to build a
subway. This had been talked about over the years a good many
times. It had come down to a situation where it was about to
happen if all of the hurdles could be overcome. One of the hurdles
– 87 –
was to get an agreement among the District, Virginia, Maryland
and Congress on an interstate compact which would govern the
operations of the subway because it would extend both into
Maryland and Virginia and the compact had to have the approval
of Congress. If you think it’s easy to get an agreement between
two states on something, it is astronomically more difficult to get
an agreement among three jurisdictions and then to get Congress to
approve it as well. But with a lot of maneuvering and a lot of
negotiations back and forth they finally arrived at the compact
which now governs the subway and for that matter, buses and
taxicabs across the state line. The Washington Metropolitan Area
Transit Authority. That was one of the hurdles. The next hurdle
was to overcome the objections of the man that ran the street car
system who regarded it obviously as a threat to his system.
That was 0. Roy Chalk?
That was 0. Roy Chalk. And 0. Roy Chalk was really quite
energetic in his opposition. He would call me at home at night and
berate me for supporting the subway which he thought was a
boondoggle and whatnot and completely unnecessary and too
expensive but we finally got rid of that. The labor unions,
startlingly enough, were also opposed too on the ground, I guess,
that it would take away the jobs they had in the street car system.
There was opposition from the labor counsel here in the District.
– 88 –
Then there was a problem of reconciling it with the Highway
Department. Darwin Stolzenbach, who was an old friend with
whom I had run on a ticket for County Councilman of
Montgomery County in 1948, had been named the director of the
subway project and he was not, to say the least, a very diplomatic
man and he gloried in pointing out that if the subway was going to
be built, there wouldn’t have to be built all these highways. That
made the Highway Department particularly unhappy and in a sense
in opposition to the subway because it would destroy some of their
pet projects, as indeed it would. Well Darwin prepared a report
for the President on the project of building the subway and he had
in it all of his elaborate arguments about what great savings there
would be because of the elimination of the need for superhighways
in and around the District. I had the job of trying to edit them out
to the point where they wouldn’t at least be inflammatory —
wouldn’t rub [the Highway Department’s] noses in the fact that
they weren’t going to have these highways. Darwin and I had
quite a lot of very difficult sessions, but we finally got a report to
the President that was not too bad and the subway finally went
forward. I remember going down to a ground breaking ceremony
of what is now the Judiciary Square station and all these people
who had been bitterly opposed to the subway now cheering it on
because it was going to happen anyway and they wanted to be in
– 89 –
on the celebration. That was a substantial part of the job that I had
for quite a long time. In addition to that, and as part of a corollary
to that, I got mixed up in the District’s highway program. The
District at that time, as you know, had three commissioners, one of
them being an engineer commissioner. It was customary, almost
mandatory, that the engineer commissioner make his reputation as
a commissioner by doing something, building something. The then
current engineer commissioner was no exception. There was a
master plan for D.C. highways which included two things that
were highly controversial. One of them was a bridge across the
Potomac at the Three Sisters Islands, a series of three little islands
about a half mile up stream from the current Key Bridge. The
other was a proposed inner loop which was going to circle the
District, basically along what is now Military Road and was going
to go under the Tidal Basin and pretty close to the back end of the
White House and more importantly was going to require the
demolition of the Anderson House which is the home of the Society
of the Cincinnati. Well, it was obvious there was quite a lot of
opposition to it and I was trying to keep the President from getting
involved, but at the same time I was quite clear myself that a lot of
this highway construction wasn’t really essential and if the subway
were built it would be superfluous or almost superfluous. Anyway,
a tunnel under the Tidal Basin, running in back of the White House
– 90 –
and out through Massachusetts and Florida Avenue would seem to
me to be giving too much to the highway people. There was a
motto by the anti-highway people that they wanted to have a
balanced transportation system, but the balance was between
asphalt and concrete. Well, I arranged for having further studies
done about the highway projects and the studies by disinterested
experts poured cold water on some of the projects and the upshot
was that the highways weren’t built. The inner loop still does not
exist and the Three Sisters Bridge does not exist, thank goodness.
I leaned pretty heavily in that direction without trying to get the
White House too committed during the controversy, but I did my
best to try to put cold water on the projects. There was a fairly
good highway program which I did support and the engineer
commissioner finally came away happy with his achievements,
particularly in improving K Street with underpasses and things like
I am trying to think of other significant things that happened. One
rather interesting one was the building of the Watergate Complex.
I don’t know whether I mentioned this before or not. When the
plans were first announced there was some opposition because it
required — well let me go back. The idea was to have an arts
center for Washington and the first debate was where it should be
located. The preferred location was down on the Potomac where it
– 91 –
is now and where the federal government already owned a
considerable swatch of land and would have to condemn only a
very small bit. But part of what it would have to condemn was a
very popular restaurant and that caused some trouble. The other
proposed location was to split it into three parts, have three
theaters spaced along Pennsylvania Avenue as a part of the plan to
improve Pennsylvania Avenue. The difficulty with that was it
would require condemnation of land along the avenue of the
District by the federal government and that would be expensive,
very expensive. Anyway, the argument, pro and con, went back
and forth, back and forth. President Kennedy got interested
himself in this and the week before he took his fatal trip to Texas
we had a presentation by what was then called the Pennsylvania
Avenue Commission headed by a man by the name of Nathaniel
Owings, he’s an architect from California of Skidmore, Owings
and Merrill. It proposed that the center be built down on the
Potomac and the President at that meeting approved that. So we
got that settled and the plans for the center went forward on that
basis. Of course, after Kennedy was assassinated it became The
Kennedy Center rather than The Washington Center for the Arts
but it came perilously close to being built on Pennsylvania Avenue
in three pieces.
Ms. Bruce: We might not be here.
– 92 –
Mr. Horsky: We might not be here, that’s right. Which reminds me of another
project which was going on at that time, which was the rebuilding
of Pennsylvania Avenue. Again as everybody knows when
President Kennedy took his inaugural ride up Pennsylvania Avenue
after he had been sworn in he was appalled, so it is said, and I
think it’s probably true, by the kind of buildings that line our major
national thoroughfare, if you can call Pennsylvania Avenue that,
which I think it probably is. Second-hand shops, boarded up
buildings and generally decrepit construction all the way along. So
he appointed a committee to do something about it. Nat Owings
was the chairman, the man I previously mentioned, Pat Moynihan
was on it — he was then in the Labor Department — and a series of
other distinguished architects and city planners comprised the
commission. Well, I got involved with that to some extent,
working with them on what Pennsylvania Avenue would look like.
I didn’t have much to do with the final result of the study, but I
helped chauffeur it through the White House machinery, which
took a little doing to get money to print up the report and things of
that sort. It was a very elaborate report, containing particularly a
history of Pennsylvania Avenue written by Pat Moynihan which
was very interesting and very suggestive of what the Avenue might
have been and could be and was not at the time. The report
recommended a huge square which would have required tearing
– 93 –
down the National Press Building right there by the Treasury
Department to be called National Square. Much bigger than the
one that is there now which is called Freedom Plaza. That drew
objections from a great many people. Moreover, the problem was
that this was all a White House initiative and Congress felt it
occupied one end of Pennsylvania Avenue and ought to have
something to say about it and they therefore refused to do any
active work in connection with the plan pending some review of it
or legislation. Well, we got legislation introduced authorizing the
commission to proceed but in Congress, not Congress’ fault, there
was a great deal of controversy as to who should run the program.
Should it be the Interior Department or should it be the National
Park Service and they squabbled about it and the result was that
Congress never did anything about it. I remember talking to
President Johnson from time to time whenever he was entertaining
people from Congress and asking him to please put in a good word
for the Pennsylvania Avenue plan when you are talking to them.
He’d say, I will, and I’d see him later and he said, I did, but still
nothing happened. Anyway we never got any action from
Congress until very much later, long after I left the White House.
After I did leave I kept in touch with Nat Owings who was still the
chairman of this commission and we had a little bitty office over in
the Commerce Department where Nat and I would conspire to try
– 94 –
to get things done and we finally did get the Pennsylvania Avenue
authority created and Congressional approval and Congressional
support and Congressional funding to do the job. It isn’t quite
what Pat Moynihan and Nat Owings’ book recommended but that
was the initial push to get the thing started.
Ms. Bruce: Had they, in their proposal, recommended refurbishing of the
Willard? Wasn’t there some controversy over the Willard for
awhile, there was some talk of tearing it down.
Mr. Horsky: There was some talk about two buildings. One was the Willard,
which everyone said ought to be saved but nobody knew quite how
to save it, and the other was the Old Post Office Building, which a
good many people thought was an eyesore and it didn’t fit in with
the rest of the architecture on Pennsylvania Avenue. In general it
was antiquated and outmoded and inefficient and all the rest of it.
Well, Nat Owings was determined to save the Old Post Office
Building and fought all out and finally arranged to have the Post
Office Building refurbished. Legislation was passed which I had
nothing to do with, which authorized the government to rent part of
its buildings for commercial purposes which made it possible to
have the kind of operation that now goes on both there and in the
Union Station. The Willard was a problem because it was sort of a
white elephant. Finally they worked out the deal with a hotel chain
which bought it and refurbished it and it survived. These were the
– 95 –
sorts of things. Well another thing I was going to mention in
connection with the Watergate which was built or at least begun,
during Kennedy’s administration. There was a story in Jack
Anderson’s column — a nationally syndicated muckraking column,
I suppose you’d call it — that the arrangements had all been made
to have the Pope live at the Watergate. A suite of rooms was
being prepared for the Pope. Why the Pope would want to live at
the Watergate, I don’t know, but anyway the basis for the rumor
was that the engineering fm that won one of the contracts to build
Watergate was an Italian engineering firm in which the Vatican has
a 30 percent stock interest. This was the Vatican connection and
this resulted in the Pope living in Watergate. As a result of
Anderson’s column letters began to flood into the White House,
asking President Kennedy as a good Catholic to stop this. This
was not the way to have the Pope come to Washington. It was
outrageous to think about the Pope coming to Washington and he
as a Catholic ought to be able to do something about it. Well,
after the flood started, the White House, in general, decided their
regular answering machinery was not going to cope with it so they
shipped it all over to me. I got stacks of letter about so deep every
morning for quite a long time. I created a series of answers. I
think I had about’eight different replies depending on the tone of
the letter and whether or not it was scurrilous or reasonable. I’d
– 96 –
take my letters home and my wife and I would sit on the living
room floor with this batch of letters and sort them into which
answer applies to this letter and I’d take them down the next
morning and give them to Eunice, my secretary from here who
went over to the White House with me and another man who was
my other secretary and they’d be busily typing off these letters.
Well the President was kind of irritated about it but he said you
take care of it, I don’t want to have anything to do with it. So as
faras I know, he never signed a single letter to any of these people
but I did, I signed all kinds of letters explaining that the Pope
wasn’t going to live in Washington and this was all nonsense.
That was the kind of jobs that I had while I was there. I don’t
think there are many other significant things besides working on
getting Federal City College started that I can remember.
When you came back into private practice, was it a bit of a let
down having been at the White House and been in the thick of
Well, I suppose it was a let down although I kept fairly actively
involved in things of the District for quite awhile. Two things
happened to me immediately after that. The President appointed
me to two positions as I left. One was the chairman of the board
of higher education, which was going to run Federal City College,
and I think I’ve talked to you about that and the other was to the
– 97 –
Woodrow Wilson Center for Scholars which had been created by
statute. For a long time there had been some efforts to get some
kind of memorial for Woodrow Wilson and there’d been a
Woodrow Wilson Commission which had been in existence for
about 20 years without ever coming to any conclusions about
anything. Nat Owings again, being one of these guys that like to
get his fingers in every pie, thought this was the way to get
something moving on Pennsylvania Avenue. Why don’t we have a
building for scholars on Pennsylvania Avenue dedicated to
Woodrow Wilson. So he energized the Woodrow Wilson
Commission. I think energized is exactly the right word. He got
them to issue a report recommending that there should be a Center
for Scholars based on a similar organization in Italy with which
Nat had some kind of connection, which I’m not sure about. The
idea being that it would bring scholars to Washington, not just to
give them a stipend but give them a place to live, a place to work
and a congenial atmosphere with other scholars with the hopes that
the interaction between their scholarly work and the political life of
the District would produce some interesting things. But it required
a building, a place where they could live. Nat’s idea was to have
it basically down in the area around the Archives Building so he
pushed very hard for a Center for Scholars. Well we got the
report from the Woodrow Wilson Commission and we gave it to
– 98 –
President Johnson and he approved the idea, not necessarily where
the building was going to be but that being a monument to
Woodrow Wilson. So the …
[interrupted by phone call]
As it finally panned out the building wasn’t built on Pennsylvania
Avenue but we got Dillon Ripley, who was director of the
Smithsonian to agree to let us use the top floor of the old castle as
a center for the Woodrow Wilson Center where it has been since.
But anyway I was appointed to that board by the President and I
spent quite a lot of time working on its problems. Hubert
Humphrey was the first chairman of the board and we had the
problem of how to organize it and who was to be the first director,
and so on. I spent three years on that board and enjoying myself
working on that. The Board of Higher Education kept me a lot
busier than the Woodrow Wilson Center. That was almost a full
time job. In any event, I didn’t feel let down particularly coming
out of the White House, I had enjoyed it very much, it was a fun
job, it was an interesting job, it seemed to me a worthwhile job
and I flatter myself that I think I left the District in a little better
condition than when I took the job. In any event, I tried.
Where do you think we go from there?
– 99 –
Well, when you came back from the White House job it sounds as
if a good deal of time was devoted to the other commission work,
establishing the Federal City College and working on the Woodrow
Wilson Center for Scholars, but you also resumed your practice,
and we discussed some of the cases that you handled during that
time period. When was it that you came to be involved with the
courts here and the question of court reform? How was it reached
out to you in 1983?
The way I got involved with the courts and court reform was
somewhat later. I had been for quite a long time a member of the
Washington Housing Association which was an organization
founded by Eleanor Roosevelt basically trying to get rid of alley
dwellings in the District — these little squares down near the
Capitol, inside the houses that were facing on the street were really
slum conditions, alleys in which a lot of people lived under very
bad conditions. The Housing Association was formed partly to get
rid of those and also to promote public housing. I’m digressing
because I think it makes sense. I got interested in the Housing
Association in a very curious way. I had had almost no
connection with the District except as a place to come and work
during the time I’d been here, I knew where the District Building
was, but that was about it. But, one day I was reading a
newspaper and I discovered that the community chest, as it was
then called, had refused to fund the Washington Housing
Association on the ground that public housing was too
controversial, and they didn’t want to get into it. Well, I had
learned enough about public housing and what not just from
reading the paper and I though that was a pretty shortsighted view
for the community chest. So I decided that I would remedy that as
far as I could by sending my contribution directly to the Housing
Association. Well, in those days it wasn’t a very big contribution.
I suppose it was $250 or something like that which I would
normally give to the community chest in those days, and it turned
out to be one of the largest contributions that the Housing
Association got. So I was promptly elected a member of the Board
of Directors and very shortly after that was elected President. So I
became knowledgeable through that association because it was
working on not only public housing but zoning matters and various
other physical aspects of the District’s development. I began to
learn something about the District and I got acquainted with people
in the District Building and it was on the basis of knowledge I think
I gained through the Housing Association that I was suggested by
Phillip Graham to work in the White House.
So when was it that, do you remember approximately the year that
you got involved in the Washington Housing Commission?
Mr. Horsky: Yeah. I started back in 1955.
– 101 –
And I stayed as Chairman of it until 1962 when I went to the
White House. The Association still exists now as Washington
Planning and Housing Association. But it’s a good organization.
Anyway that got me generally concerned with District matters.
Partly as a result of that I was elected to the Board of Directors of
the D.C. Bar which was created as a compulsory bar for the
District along about the ’70s I guess.
In the early O OS?
I served a couple of terms I think on the Board of Governors.
During one session of the Board somebody suggested that the tenth
anniversary of the reorganization of the District of Columbia
Courts was coming up. About ten years before Mr. Ellison — of
Covington & Burling — had chaired a committee which studied the
D . C. court system and recommended, in effect the present D. C .
court system, one Superior Court and one Court of Appeals rather
than a whole series of independent lower courts which had existed
before. The Ellison Commission is about ten years old and
somebody said the Bar should see how the new organization of the
courts is working. Well, let’s appoint a committee to make a
study. Who should we get to be on the committee? Well, the
chairman — at that time I can’t remember who it was — said we
– 102 –
ought to have somebody that really doesn’t have any axes to grind.
“Charlie, have you ever had a case in the District of Columbia
Court?” I said no, I never had a case. “You’re an ideal man to do
it then because you’ve got no background, no prejudices, you can
look at it even-handedly, and we’ll appoint a committee, and you can
be the chairman. ” I said, well, all right. So I was made chairman
of the committee, and at that time only three other people were
appointed. I don’t remember who they were. And we had a
meeting and we decided that that was silly. If we were really
going to investigate, to recommend or evaluate the court system, it
was going to take a lot more than the spare time of three people,
four people. So with the permission of the Chairman of the D.C.
Board, I enlarged the committee as you know from the report, the
final report, and created a rather substantial committee. I also got
funds from the Meyer Foundation and from the Ford Foundation
which I went up to New York to appeal to and enough money to
hire an executive director, Mr. Harrihan, Sam Harrihan, who had
been working in the District of Columbia government and knew
quite a lot about it — not about the judiciary — but at least he knew
his way around in the District. He’d been working on the proposal
to build a park out on the Anacostia River, whch never came to
fruition. But he was available and he was selected and he turned
out to be the exactly right man. So we started and we created
– 103 –
subcommittees of this large committee of mine for each of the
different kinds of courts, as you can tell from the report. There’s
one for the Probate Court, and the Tax Court, and the Court of
Appeals, and the Landlord and Tenant Court, &d so on. And each
of them was assigned the job of evaluating how the new system
was working as compared to the old system, which meant that in
most cases there was a description of the previous courts and a
description of the present court and a series of recommendations.
And the recommendations were very carefully crafted. Before they
got any publicity at all, they had to be approved by the full
subcommittee and submitted to me and Sam Harrihan for a general
inspection, not approval. And then before they got any farther,
they were circulated to the court in draft so the judges would have
a chance to talk, and also to the public so that the members of the
bar that practiced in that court would have a chance at it. We had
hearings and comments and letters written and what not. And by
the time all of the machinery had been exhausted, we had a report
which at least had the benefit of input from almost every source
that you could imagine. Not that everybody agreed with
everything in it. But at least everybody had a chance to talk about
it, have their say. And we did this committee by committee by
committee as we went along. Some of them were fairly easy to
make recommendations about, some of them didn’t need many
– 104 –
recommendations. Some of them were very difficult. The
landlord and tenant court is a perfect example of one that is an
abomination but nobody knows how to change it. It handles
thousands of cases a year in the most outlandish fashion. That’s
just the way it is. Well, anyway, we got all these reports together.
And I had been friendly for a long time with Senator Mathias of
Maryland. Notwithstanding the fact that he’s a Republican and I
am a Democrat. I have got to know him, and advised him from
the to time on judicial appointments. I asked him if he would be
willing to make our report a Senate document, which would mean
that we would have copies of it and it would look like something.
You know, more than just a bunch of mimeograph sheets that
somebody put together. And he said he would. So that the result
is you’ve got that nice big fat volume which contains all of our
reports. It was a job that took almost four years. And an awful
lot of people worked on it much harder than I did. I sort of kept
my finger on what was going on. I’d push Sam and Sam would
push the other people to get the things done. And I’d occasionally
intervene or mediate when the going got kind of rough on
something or other. By and large the work was done by Sam and
the multitude of people that served on those subcommittees. And
if I do say so myself, it was a good job. It really explored the
– 105 –
workings of the courts and made some quite sensible suggestions as
to how to carry it into effect.
One of the great problems of anything like that is carrying through
afterwards, getting something done. The court, I suspected,
impressed more or less by the fact that the thing was a Senate
document recognized that it was a real report. They could pick it
up in their hands and it looked so official. Soon after it was
printed, the court appointed a committee of three judges to evaluate
the\recommendations. And they went through it. Some of the
recommendations required judicial actions, some required congressional actions, some required District action. They went through
and they said, yes or no to every recommendation that concerned
the courts — concerned the court acting. And they adopted a great
many of them. They thought they were sensible and feasible and
they recommended that the court do it and they did. The D.C. Bar
tried to do its part. It appointed a committee which John Pickering
headed. It was called the Implementation Committee. And it
worked on getting these through both the Congress and the D.C.
Council. Recommendations were made for action by both of them.
And that Committee functioned for about five or six years and
managed to get a number of other recommendations adopted by the
Council and by the Congress. In addition to that, Sam Harrihan
had bugged me relentlessly to create, or help him create, or take
– 106 –
part in creating an organization based on the Vera Foundation in
New York. An organization of judges, citizens, lawyers and
generalists who would try to improve the court system in general.
And after the report was in and after we had gone through the
immediate problems of getting the judges to look at it and getting
the D.C. Bar involved with John Pickering, we finally did create
the Council for Court Excellence. We had a terrible time picking
a name for it and I’m not sure that’s the best name in the world but
at least it’s pretty good. We had some preliminary meetings and a
preliminary board of directors. We made Sam the Executive
Director of that. And that has functioned now for about 12 years.
Its initial impetus was to work toward implementing the things that
our report had recommended. But it soon began to branch out into
other areas and concentrate more on particular items in the court
system and in educating the public about the court system which is
one of the things that is in its charter as important as anything else.
Letting the public know how the courts work, where they are, how
they operate. And as you know, the Council has put out pamphlets
on how to proceed in Probate, how to proceed in Bankruptcy, how
to do this and that, in both English and Spanish. And a fairly large
book describing the court systems of the District, Maryland and
Virginia, in some detail, so that you know what these courts are
and what jurisdiction they have. In other words, it was a good
– 107 –
organization. I was chairman of it for quite a long time and after
about seven or eight years I decided it was time for somebody else
to take it on and I persuaded Mack Mathias to take on the
chairmanship. And he held it for six years, I think. Then he
thought it was time for him to quit and we got Ken Starr to take it
on. Ken Starr is now the Chairman of the Board. And it has been
a quite successful organization. It operates entirely on donated
funds and foundation grants. And as with all such organizations,
its finances are never in very good shape but it’s managed to
survive and pay Sam and pay rent and its miscellaneous other
charges. That operation did bring me into contact with the courts
and with the judges, more than I had ever had before. This was a
study of the District of Columbia courts, not the federal courts.
And I had come to know the chief judge and some of the other
judges, not any intimate way at all but at least to be able to say
hello to them and know who they were which I’d never had before.
I have still never appeared in the District of Columbia court. No,
I take that back. I moved an admission in the D.C. Court of
Appeals once. And won. But that’s the only time I’ve ever
appeared in the District of Columbia Court. But I did know some
of the federal judges. Maybe I could say a word about that.
Yeah. I thought maybe first, I’d want to ask you a few questions
about the study itself.
– 108 –
In the — it was the Board of Governors that appointed you and the
others to perform the study?
I had a sense from the Report that you did receive a great deal of
cooperation from the local courts when you did your study.
And I’m wondering, I couldn’t tell it from the report. But how
involved, if it all, was the chief judge of the courts in
recommending people to serve on the committees? Or were they —
responded to your request?
No. The courts had nothing to do with appointments.
What we tried to do with respect to the Committees or the
Subcommittees really, which the totality of which comprised the
full Committee, which rarely met en banc. What we tried to do in
picking the Subcommittee was to get practitioners who had
practiced in that particular court or in that area of the court system
so that they would know something about how the system actually
worked. As far as I can remember, we never got a suggestion
from the chief judge or anybody else as to whom we should put on
the Committee. We did have complete cooperation from the court
after they found out how we were doing it — that we were going to
– 109 –
show them what we were doing and ask for their comments and
criticisms and suggestions and be sure that we weren’t making any
mistakes. So they were quite willing to cooperate in talking about
the court system and what they thought might be done. Or what
they thought about our suggestions for change. Chief Judge
Moultrie was completely cooperative, although I think that he
would have been happier if we had never had done it. We made
the best of it and we got along fine.
Let me, let me just stop for a minute. This fire alarm has been
going for a while now. Let me see what’s going on out here. You
There is a fire alarm that’s on.
It’s been on for a little while and I keep thinking it’s — well it
appears they’ve turned the alarm off. So we must be safe for the
Until they turn it on again.
Until they turn it on again.
Where were we?
We were talking about how the court was sort of reluctant partner
in this undertaking. They didn’t appoint people or actively involve
themselves in it other than respond to requests.
– 110 –
Mr. Horsky: Well no, when we got a draft of the report on say the Probate
Ms. Bruce: Right.
Mr. Horsky: They would review it, make the suggestions, criticisms, further
ideas. They would say that this is wrong, this isn’t the way it
really works, you know. And we would argue those things out. I
did not try to sit as an ex officio member of each of the
subcommittees. I thought that was unnecessary and really unwise.
I thought each of these subcommittees was competent to do the job.
What we did was after a subcommittee report was in a sense
finalized, we submitted it to the total committee and we circulated
it to members of all the subcommittees for their comments so that
we could say with accuracy that this is a report by the whole
committee, prepared by the subcommittee but that the full
committee has endorsed it. It worked, it worked, very well.
And you have through the Council for Court Excellence and also
through the Pickering Committee seen many of the proposals that
were made by your Committee actually adopted by the courts.
What were some of the principal proposals that you are most proud
of to see in changes?
I’d have to say that I can’t answer that question. It’s too far back.
Ms. Bruce: Okay.
– 111 –
I don’t remember that any of them stood out that way. If I re-read
the report I probably could refresh my recollection but I
don’t have any at the moment. Really I don’t.
Well it’s been now 11 or 12 years since the report was issued.
And as I think I told you, not during the course of our interview
but at other times during breaks in the interview, that the D.C. Bar
Board of Governors is now considering establishing another
commission or responding to Chief Judge Hamilton’s request to
establish a commission to evaluate the courts. Do you think such
an exercise is worthwhile? It seem that your exercise followed a
decade after the initial court organization.
Well there’s a bit more justification for what we did than there is
now because court reorganization had really changed the courts
drastically. There’s no longer a juvenile court. The whole court
system was thoroughly remodeled and the D .C. Court of Appeals
became a court of final jurisdiction, reviewable only by certiorari
rather than by the U.S. Court of Appeals. It changed the tone of
the courts because as I’d like to say, for all practical purposes we
now have home rule for the District of Columbia Courts. The only
exception is that they are all appointed by the President. But
there’s a Judicial Nominating Commission as you know which
cabins the President’s discretion a little bit. And which has —
– 112 –
When the tape stopped we were talking about the Judicial
Nominating Commission, and how, to a certain extent, the
Commission limits the President’s discretion.
Apart from that part, D.C. courts really do have home rule. With
no supervision from the Federal courts which they used to feel
subject to. So when we made the study ten years after that
reorganization there was a real basis for asking how good is the
new system that Ellison’s Committee created. If you do it now
after twenty years, you don’t have quite the same benchmark as a
basis of comparison, you can still talk about I suppose what
recommendations our committee made that had not yet been
implemented or some of it had been implemented, it’s really not
quite the same. I don’t want to pour cold water on the idea, it is a
little different than it was ten years ago.
Alright, I can see that. You’re not doing a comparison of the old
system before the Ellison Commission, I guess they have in mind
more of a Future’s Commission. What are our problems now in
the courts, public perception and delivery of justice and how can
we fix it and looking ahead 20 years from now where do we want
the courts to be.
That’s partly what the Council for Court Excellence is trying to do.
We took up one sort of issue at a time. We had a problem with
– 113 –
the jury system. We plugged along until we finally got the court to
adopt the one day, one trial system. We saw the problems of the
Small Claims Court and the tremendous concentration of small
claims in the regular Superior Court and it took five years and
three Congresses to get the jurisdictional limit raised from $750 to
$2,500 or whatever it is. And it’s been raised again with beneficial
results both for the Small Claims Court and for the Superior Court
because it takes a lot of cases out of the Superior Court docket.
Amin there is a problem in Small Claims Court about
corporations. They had to hire an attorney. A corporation can’t
come in by itself, couldn’t. We got an amendment to the rules
which permits corporations to come in by one of their principal
officers and defend which makes them much more receptive to
using, tolerate a Small Claims Court, for their controversy. We
are working now on the Probate Court. Trying to get a uniform
probate code which has been adopted in about a dozen, about 20
states which will radically change the way estates are probated by
making it possible to have almost no probate supervision of small
estates. We don’t have to go through all of the auditing and
inventory or whatnot that the estate is under a certain amount of,
number of dollars and if everybody consents. The problem is that
would throw about 85% of the people that are presently working
with Probate Division out of work. Obviously, there is
considerable opposition to it, both from the people in Probate and I
think probably from the Chief Judge who is a little unhappy about
losing all of his members. But the bill has been introduced in the
City Council and its going up for hearings. Unfortunately, its
sponsor is Mr. Nathanson who was defeated for re-election in the
primaries. So you now have to find a new sponsor for the
legislation, but I think it will pass ultimately. It’s one of those
things like “one day-one trial”, takes a long time to get people
edqcated to understand how much better it would be if you do it a
different way. Things of that sort the D.C. Bar can legitimately
investigate, there are probably a multitude of others that I don’t
know about. Both in the criminal practice and the civil side. So I
wouldn’t say that you shouldn’t do it, but I don’t think, it’s just not
the same as it was ten years ago.
Over the course of working first with the Committee that was set
up by the Horsky Commission as well as later on, you got to know
in a sense some of the judges in the court and I would just like to
ask you now about personalities either in the District Court, the
bench, the judges you got to know and U.S. Court of Appeals,
either through your cases or just the professional contacts or in a
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Well, my first intimate contact with a federal judge was with Bill
Bryant back in 1961. Before I went to the White House. Walter
Tobriner was Chairman of the D.C. Commissioners.
What was his name please?
T-o-b-r-i-n-e-r. Walter. Was a lawyer and was somewhat
disturbed by the prevalence in the District of what they called
arrests for investigation. If there was a hubbub somewhere in the
District, the police would just round up everybody and arrest them.
Not charge them with anything but arrest them for investigation.
Walter thought this was probably a bad idea but he didn’t quite
know what to do about it. So he appointed a committee with me
as Chairman to explore the problem of arrests for investigation.
Two other members of the committee were Bill Bryant and Roger
Robb. Roger Robb at that time was not on the Court of Appeals,
as he subsequently was. He was a practicing lawyer and he was
Counsel for the police department. He represented policeman
when they were accused in various misconducts. So we decided to
really do a job and I got a small grant from the Meyer Foundation
to hire some students and to print a report. The students analyzed
documents which were supplied by the police department. They
were willing to cooperate. Each arrest for investigation produced a
single document, a report of the arrest for investigation, when it
took place, where it took place, something of the circumstances,
what happened to the man arrested, how long he was held and so
on. For reasons which I’m not quite clear about the police
department meticulously kept all these records. So we got the
records for five years back and the students analyzed them to see
what the results were of the arrest for investigation, and it turned
out that they were practically zilch. Most of the people were held
for awhile and then discharged. And nothing ever happened
afterward. It was just a means of conveniently getting people off
the,streets. So we wrote a report dated July 1962 explaining our
work and containing a lot of statistics about how long people were
retained and what happened to them and so on, Appendix A, B, C,
and D and so on. You can have that. I got multiple copies of it.
Ms. Bruce: Oh that’s great.
Mr. Horsky: Well, we got the report all drafted and we recommended that they
abolish the arrest for investigation as both unconstitutional and
unnecessary. We wondered about how we were going to get Roger
Robb to agree to it. Bill Bryant and I had several long
conversations as to how to do it. We finally decided that the best
way to do it, was to just do it. We showed him the report and
asked him if he would agree and much to our surprise and pleasure
he said “Sure, I’ll agree.” So we had a unanimous report and
Walter Tobriner immediately abolished arrests for investigation.
They’re patently unconstitutional. They probably were not quite so
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patent in those days but they certainly are now. You don’t have
any probable cause, anyway it’s a very learned discussion of the
law in that report as well.
That must have been a very gratifying result, though.
It was, it was. I was pleased, very pleased and so was Walter
Tobriner. One of the things that made him a little bit less
antagonistic when I was appointed by the White House, the next
year. But I got to know Bill Bryant quite well and admired him
very much. He’s a very solid sensible citizen. He’s rather soft
spoken, but he has a marvelous gift for telling stories which I
enjoy. He teaches classes at Howard Law School and he’s adored
out there. He’s a good judge. I’ve never sat in his courtroom. I
never watched him perform but he has a reputation for being one
of the better judges and he is now senior judge and still sitting.
The other judge that I got to know quite well is Charlie Fahy. He
sat on the Court of Appeals. I got to know him back in the New
Deal days when he was General Counsel of the National Labor
Relations Board and I was in charge for the Solicitor General more
or less of the Supreme Court litigation involving the Board and we
had a number of conversations. We got along very well until the
case involving the Japanese internment camps and I virtually
accused him of deceiving the court, which he was, and our
friendship chilled considerably after, but we still said hello to each
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other but we were never really friends after that. But I admire
Charlie Fahy. He was a good, solid judge. He was very quiet,
almost a mouse-like voice. The story was that he talked just loud
enough for a majority of the Supreme Court to hear when he was
Solicitor General and that’s probably just about right. But he was
diligent, hard working, conscientious and I don’t know what went
wrong in the Korematsu case. Political pressures I guess were just
too much for him. But I’m sure he knew he was doing something
that he shouldn’t be doing but he did. Anyway that didn’t keep
him from becoming a judge and as far as I know he was a very
good judge. The judge I knew best of course was Gerry Gesell,
who was a partner here in the office a long time ago.
Do you know what led Judge Gesell to seek the bench?
I can tell you pretty much yes. One morning I came in to work,
this was in the Union Trust Building. My office was next to Gerry
and there was a connecting door between the two. And I came in
and sat down. About 1O:OO Gerry came in and said do you know
what’s happened. I said, “No, I don’t know what’s happened.” “I
just got a call from the President.” And, I said, “Gee, what did
the President want?” He said, “He wants me to be a district
judge.” And, I said, “Well that’s wonderful, what did you tell
him?” “Well, it went through my mind that I had better check this
out with my partners and see if I can arrange for the cases I’ve got
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and I better talk to my wife and so I said, ‘Yes, I’ll take it.'” It
came out of the blue as far as I know. He just had a chance and
he said, “yes.” And he loved it. He didn’t want to be, I think if
he had been offered a job on the Court of Appeals, he’d have
thought a lot harder before he took it. He turned down I think,
now this is rumor, I think he turned down some appointments to
the Court of Appeals as not wanting them really. But as a trial
judge, he was superb. He got the Devitt Award as you know. I
was one of the ones that nominated him, I put it all in a book about
the Watergate trials and whatnot. He deserved it, the Devitt
Award, I don’t know a lot about that. I knew Gerry, we had lots
of conversations as next door neighbors in the law fm. What he
was doing, what I was doing. He was a first class trial lawyer.
He tried a lot of cases for the DuPont Company and other anti-trust
cases. The other lawyer I really knew something about was Harold
Leventhal. He served on the D.C. Court of Appeals, U.S. Court
of Appeals. I had run into Harold while he was a law clerk for
Justice Stone back in those days and we sort of kept in touch and
we went to parties together and I saw him occasionally, he was
what I would call a good friend, although not an intimate friend.
He was a good appellate judge although his opinions tended to be
tremendously long opinions. He would dot every i and cross every
t and every argument that was presented and sometimes would
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create arguments of his own and then answer them so he would be
sure to cover all the bases. And he wrote very learned, very good
opinions but terribly long ones. I guess he was a liberal judge in
the sense that he would probably side more often with a defendant
in a criminal case than most judges would, but he was a good
Ms. Bruce: I was fortunate to have three arguments before him.
Mr. Horsky: Really.
Ms. Bruce: In the U.S. Court of Appeals, I believe it was three of the panels
and I always looked forward to it. You know I represented the
U.S. I represented the Government. He always asked the most
searching questions. He was always the best informed on the
panel. It just made it a lively intellectual experience.
He was a real good judge. He died very young too, unfortunately.
One of the things that I had little bit of help with. He had an
adopted son and I had tried to help work out the adoption. So I
got to know him a little bit in reference to that. I knew
Spottswood Robinson a little bit. Mainly because we journeyed
down to the Williamsburg Judicial Conferences together about a half a
dozen times. I got to know him and his wife Marian quite well,
the long conversations en route. He was another one of these
people who believed that every case that was cited had to be
mentioned in the opinion or it wasn’t a complete opinion and he
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was dreadfully slow. I suppose he had the reputation I think of
being the slowest man on the court, but it wasn’t because he was
lazy, it was because he was conscientious. He couldn’t do
anything without comprehensive review of the whole works. Well
I got to know some of the other judges in various places. I was a
member for six years of the Committee on the Judiciary of the
ABA. And that committee had jurisdiction over not only the
Federal appointments in the District but also as it turned out over
the?judicial reorganization by the Ellison Committee of the District
Courts as well, so far as the Federal courts are concerned. I was
the one in the District that was supposed to run a check on the
nominees after the Department of Justice had sort of come to at
least a tentative decision as to who they wanted and as a result of
that I personally interviewed quite a number of present sitting
judges. I’ll have to get a list of them to refresh my recollection.
But I remember the present Chief Judge.
Garrett Penn, John Garrett Penn.
John Garrett Penn who was then in the Department of Justice. I
remember interviewing him.
Norma Holloway Johnson.
I don’t remember her.
Joyce Green? Harold Greene? When were you on this ABA
Committee, was that in the ’80s then?
– 122 –
I can’t remember exactly, I . . .
Was it after you did the report, the Horsky Commission?
Yeah, I think so.
Right. Then you probably would have interviewed people like
Judge Jackson and Judge Hogan.
Yeah, that’s right.
That group of people and even Royce Lamberth.
The appointments were also to the Court of Customs and Patent
Gosh, they keep you busy.
Well, it was fun, there weren’t that many really and the job was to
get what I would call a peer evaluation from the judges before
whom the person had appeared and from the counsel who had
either been in cases with him or against him or who knew
something about him. It was a telephone job for the most part
except you would have to personally interview the nominee at the
end of the whole system. Ask him about any derogatory
information that you had found and then you prepared a
preliminary report to the Chairman of the Committee. The
Committee consisted of one person for each of the circuits. This
was the circuit. And after the chairman got it, he would circulate
it to the entire committee for any additional comments and a vote
on the proposed recommendation and then he would give it to the
– 123 –
Department of Justice. It was a real good job. You didn’t have to
do it for the ABA bureaucracy. You operated as a committee and
that was it. Lawrence Walsh was Chairman much of the time that
I was on the committee. I admired Judge Walsh, got along nicely.
The more interesting part of it was when we had the Supreme
And during Nixon’s time we had some time pretty terrible
nominations which, – – –
Didn’t one of them, who was it that you evaluated as being
mediocre or – – –
There were some you couldn’t even call mediocre. On a Supreme
Court nomination, we had a rule that we would only report either
qualified or not qualified.
For the regular courts we had well qualified, very well qualified,
qualified, not qualified, variations. For the Supreme Court we
thought that was silly, so we just had up or down and each member
of the committee all over the country was supposed to collect
information that anybody had on a nominee. And some of them
were so unknown, didn’t know them at all. But they were pretty
hectic days when Nixon was trying to put people on the court. I
think just to embarrass the court really. And we tried very hard to
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keep him from doing it. We were reasonably successful. That
was an interesting job. That was the best job I ever had with the
ABA. So I got to know some of the judges. Not well. Just got to
be on an acquaintance basis. I don’t remember -any others that I
really say I could call friends. Aubrey Robinson I did get to know
pretty well because we served on the Meyer Foundation Board of
Directors together for quite a long time. And I came to know
Aubrey not as a judge but as a human being, really rather as a man
who had a deep sense of responsibility for the District of
Columbia, who knew a great deal about it, how it worked. The
people who were important and unimportant and was not afraid to
express his opinions on such matters. We would have some quite
vigorous debates in the Board of Directors about whether we
should grant some money to this organization or that organization.
Aubrey had . . .
I’ll let you continue the tape is still running.
Had one point of view and so did the some of the rest of us had a
different one. And I don’t know anything about Aubrey as a judge
at all, but as a human being he’s great.
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Charles A. Horsky, Esq.