Aubrey Robinson Jr Text of Interview Only

THE HONORABLE
AUBREY E. ROBINSON, JR.
U.S. District Court for the District of Columbia
Oral History Project
The Historical Society of the District of Columbia Circuit
Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
The Honorable Aubrey E. Robinson, Jr.
U.S. District Court for the District of Columbia
Interviews conducted by:
William F. Causey, Esquire
January 11 and January 20, 1992
TABLE OF CONTENTS
Preface ……………………………………………………. i
Oral History Agreements
Honorable Aubrey E. Robinson, Jr. ………………………….. ii
William F. Causey, Esq. ………………………………….. iv
Biographical Sketches
Honorable Aubrey E. Robinson, Jr. ………………………….. vi
William F. Causey, Esq. ………………………………….. x
Oral History Transcript of Interviews on January 11 and January 20, 1992 ……. 1
Index …………………………………………………… A1
NOTE
The following pages record interviews conducted on the dates indicated. The
interviews were electronically recorded, and the transcription was subsequently
reviewed and edited by the interviewee.
The contents hereof and all literary rights pertaining hereto are governed by, and are
subject to, the Oral History Agreements included herewith.
© 1996 Historical Society of the District of Columbia Circuit.
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of
Columbia Circuit is to preserve the recollections of the judges who sat on the U.S.
Courts of the District of Columbia Circuit, and judges’ spouses, lawyers and court
staff who played important roles in the history of the Circuit. The Project began in
1991. Most interviews were conducted by volunteers who are members of the Bar of
the District of Columbia.
Copies of the transcripts of these interviews, a copy of the transcript on 3.5″ diskette
(in WordPerfect format), and additional documents as available – some of which may
have been prepared in conjunction with the oral history – are housed in the Judges’
Library in the United States Courthouse, 333 Constitution Avenue, N.W.,
Washington, D.C. Inquiries may be made of the Circuit Librarian as to whether the
transcript and diskette are available at other locations.
Such original audio tapes of the interviews as exist as well as the original 3.5″
diskettes of the transcripts are in the custody of the Circuit Executive of the U. S.
Courts for the District of Columbia Circuit.
i
TAPE I, Side 1
Oral History Project
Historical Society for the D.C. Circuit
C.J. Aubrey Robinson, Jr.
– 1 –
My name is William Causey. Today’s date is January 11, 1992. I am
recording this interview with Chief Judge Aubrey Robinson of the United States District
Court for the District of Columbia in his Chambers. This interview is being taken as part
of a program for the Oral History Project for the Historical Society of the District of
Columbia Circuit.
Q: Good morning Judge Robinson.
A: Good morning Mr. Causey.
Q: Let me begin by thanking you for sharing your time to participate
in this interesting and valuable program. What I would like to do is just start with some
background questions about your childhood and then we’ll get into questions about your
legal experience and your experience here on the Court. Judge, when were you born?
A: I was born March 30, 1922.
Q: And, where were you born?
A: In Madison, New Jersey.
Q: Did you live most of your childhood in New Jersey?
A: I did. I remained a resident of Madison up through college, and
law school as a matter of fact.
Q: Do you remember the names of the schools you went to in New
Jersey?
– 2 –
A: Yes, I do. As a matter of fact, the Elementary School at which I
attended grades one through five was diagonally across the street from my home. That
was the Central Avenue Public School of Madison, New Jersey. In the Sixth Grade I
went across town to a school called Green Avenue School. It was a special group of
advanced students that attended that particular class. From there we went into what we
then had and called a Junior High School. And the Junior High School encompassed
grades seven and eight. It was comparable to what is now called a Middle School, I
guess. And that was located as an annex to the only High School building then in the
town, and it was located on Main Street about six blocks south of the geographical center
of the town. From the Junior High School which was part of the High School complex I
went into the High School. I finished High School in 1939, and went to Cornell
University.
Q: Do you remember any teachers that you had in grade school or high
school that influenced you in the early years?
A: Oh yes. I remember several extremely well. Perhaps the most
influential teacher that I had was in High School. She was the English teacher. Her name
was Helen Jane Brewster. She was a spinster. Very stylish. Very articulate. I guess the
epitome of what one would call a “school marm.” A delightful person. I developed a
very close relationship with her. Because in addition to taking English from her for three
years, she was also the advisor and supervisor of the Student Council, of which I was the
President during my Senior year in High School. And, she was a very good teacher, an
– 3 –
excellent teacher as well as a good friend. And, we corresponded for many years. I
visited with her, of course, when I returned home during college and even law school.
When I went into the Military Service I corresponded with her. She is now deceased. I
don’t remember when she passed. I think that she perhaps was the most influential
teacher that I had.
Q: When you were young growing up did you know you wanted to be
a lawyer?
A: No, not at that time. I didn’t really determine to study law until I
was in I guess my Junior year, third year of High School. We had a debate society. I had
been selected by the school to represent it at our Memorial Day celebrations to give a
speech. It was a tradition that on Memorial Day a student would deliver the Gettysburg
Address. The town assembled. And, I was selected to do that. It was thought that I had
some ability to articulate and after discussions with my teachers, my family and my own
decision, I decided I would study law. I knew when I went to college that that was what I
was going to do. I had contemplated for some time the possibility of studying medicine,
but I determined that I didn’t think I wanted to go through the years of drudgery because I
didn’t have that gut feeling that medicine was what I was really inclined toward.
Q: Who were your parents and what did they do?
A: My father’s name was, as my own (I’m a Jr.), Aubrey E. Robinson.
– 4 –
He was a doctor of veterinary medicine. He was born in Harrisburg, Pennsylvania. Lived
there and went to school there until he went to the University of Pennsylvania in
Philadelphia for one year for pre-veterinary training and then went to the Veterinary
College at Cornell University. After he graduated from college he married and
immediately came to Madison. My recollection is that that was in 1921. And he
established a veterinary practice and maintained that practice until his terminal illness
forced retirement and ultimately he died in Madison.
Q: What year was that?
A: He died in 1963. My Mother was born and raised also in
Harrisburg, Pennsylvania. Her maiden name was Anna Mabel Jackson. She lived in
Harrisburg and ultimately the family moved to Washington, D.C. And as a matter of fact
it was while she was in Washington that she met my Father. Because during his
schooling he had to work to put himself through school and he worked on the
Pennsylvania Railroad and one of the runs that he had was to Washington. It was at that
time while here on a layover, whatever, that he met my Mother. She had gone to, had her
schooling through what was then called “normal school” in Pennsylvania and for a short
time taught school on the Eastern Shore of Maryland in Salisbury, Maryland, I believe it
was. After my Mother and Father married, they left this part of the country and went to
Madison, where they resided, where the family home was until she passed in last October
at the age of 92.
Q: Do you have any brothers or sisters?
– 5 –
A: Yes. I had, there were four of us. Four children, of whom I was
the eldest. I had a brother, Charles R. Robinson, who is fifteen months younger than
myself. I had another brother, Spencer Monroe Robinson, who was three years younger
than myself, and then my sister, Gloria Elaine Robinson, now Lowery, Lowery being her
married name, who was eight years younger than myself. My brother Charles also
attended Madison Public Schools, went to Cornell University and studied veterinary
medicine. After he finished veterinary medicine he went to Tuskegee, Alabama and there
taught in the newly established Veterinary College at Tuskegee Institute in Tuskegee,
Alabama. I think he was there about six years. He then returned to Madison, New Jersey
and took over my Father’s veterinary practice because of my Father’s declining health and
he practiced, maintained a veterinary practice in Madison until his retirement in 1989.
My younger brother, Spencer, also went to Cornell University, but he studied aeronautical
engineering and after he finished the engineering school he taught for one year at the
Cornell Aeronautical Lab in Buffalo, New York and then went to McDonnell Douglas in
California as an aeronautical engineer. He was a forerunner of the aeronautical engineers
involved in the space program. And, as a matter of fact, he headed the team of designers
in connection with McDonnell Douglas’ work on space exploration and space capsules.
Q: What year would that have been?
– 6 –
A: He would have been with McDonnell Douglas starting in about
19__, oh, I left out a period. It would have been after the war. Let me back up. I forgot
that after he finished aeronautical engineering, or was it before? Well, he went into the
Air Force and trained as a fighter pilot. He did not see active service as a pilot because
the war ended. And it was after the war ended that he went to California with McDonnell
Douglas. And he developed quite a reputation at McDonnell and in the industry for his
work in connection with the space program. Unfortunately, he was killed in an
automobile accident on a California freeway almost at the peak of his career.
Q: Do you remember what year that was?
A: I don’t remember the exact year. But, I’ll have, it’s been. I cannot
remember. It’s been quite awhile ago. He was still a young man.
Q: What about your sister?
A: My sister went to Williams Smith College. She finished the
Madison Public School System. Went to Williams Smith College in upstate New York
and after finishing college she worked for awhile in New York City and then moved to
California. Worked as a buyer in a retail establishment in Los Angeles and then decided
that she wanted to go into education and she became a public school teacher in the school
system of Pasadena, California. She married, had no children. She retired from the
Pasadena School System last year, and still lives in Pasadena.
– 7 –
Q: Going back to memories while you were in school as a teenager,
did you play any sports in high school?
A: Oh, yes. My principal sport was track. I was a member of the high
school track team for three years and enjoyed it very much. I ran the sprints and the
hurdles and did some broad jumping. That’s the only interscholastic sport that I
participated in high school.
Q: Did you have any close friends in high school who you still see
today?
A: None that I still see. I had a lot of close friends, but I don’t think
there is anyone that I see with any degree of regularity, although, no I don’t think there is.
Q: Do you know if there was anybody else from your high school that
became a judge?
A: No there was not. I know that.
Q: So you’re the only one from your high school class that became a
judge.
A: Yes. I’ll take that back. I believe one of my classmates became a
city judge in Morristown, New Jersey. I have not had any contact with him in these many
years. But it’s my recollection that I had read that he had become a city judge in
Morristown, New Jersey. His father was a lawyer and was active politically in the area
and I heard and read that he himself was. My classmate, whose name was Stephen,
– 8 –
Stephen Barrett, became a lawyer and I understood that he became a municipal judge. I
don’t know when and I don’t know the exact name of the court on which he sat.
Q: Do you think you were a good student in high school?
A: Oh, I know I was.
Q: You got received grades?
A: Oh, yes. I did. Yes. That’s why I had no difficulty in getting into
Cornell University based on my grades and extracurricular activities. I think that had
something to do with it too, because in addition to my participation as a member of the
track teams through the years, I also was very active musically. I played both the violin
and the clarinet. I played the violin starting at age ten or eleven and of course kept it up
by participating in the school orchestra. I played the clarinet starting at about age twelve
and played it in the high school band. Played the clarinet in the ROTC band at Cornell
while I was there as an undergraduate. Haven’t played much of either the violin or the
clarinet since I left college or law school. I did play some informally while I was in the
military service but that was just for my own pleasure.
Q: You graduated in 1939 from high school. Did you go right into
college?
A: Went right into college.
Q: So you started college in the Fall of ’39?
A: The Fall of ’39.
Q: Now, of course the war came in late 1941. Did you finish school?
– 9 –
A: No. What happened was that I had enrolled in the combined
arts/law program which meant that if I maintained decent grades as a student in the
college of arts and sciences at the end of my third year at the college I could enter law
school, and at the end of the first year of law school, if successfully completed, I could
get my then they called it AB degree. I did that and I had just finished my first year of
law school when the war broke out and I left for military service in March of what was it
’42, I guess.
Q: What branch of the service were you in?
A: I received my basic training in the antiaircraft/artillery at Camp
Wallace, Texas, and after basic training I was transferred to a field artillery outfit in
Tennessee and stayed with that outfit until it was reconfigured and some of them, one part
of the outfit was sent to Arizona and I was sent with the other part to Camp Gordon,
Georgia. And in Camp Gordon, Georgia, trained with that outfit and then went into an
engineer, combat engineer battalion. That was in Alabama. That battalion got ready to
go overseas and was shipped to Vancouver, Washington. About that time the atom bomb
had been dropped and they halted our sailing for the South Pacific because so many of the
men in the outfit had had prior experience overseas. They had accumulated sufficient
points. The Army had made a determination that they weren’t sending those people back
if they had. I got caught up in that. I didn’t, I hadn’t had overseas service. But while they
were going through all that shuffling, I stayed at Vancouver until they decided that they
– 10 –
were going to disband that outfit. It was not going to go overseas and I was transferred
from combat engineers to a quartermaster outfit in California.
Q: That would have been 1945?
A: Somewhere along in there, yes. And, I stayed with that
quartermaster outfit until I had accumulated by virtue of service sufficient points to
qualify for discharge. So I made application right away. Came back from Fort Ord,
California was where I was stationed and came back to Fort Dix, New Jersey where I had
gone into the Army and was mustered out. I got out of the Army just in time to go
straight back to law school. Because the Dean had written to all of us and said that as
soon as we got out of the service we, or we could come right straight back to school.
Q: So if I understand the chronology from what you describe, you
were in the service for about three years?
A: About three years. That’s correct. Just about three years. None of
it overseas, all of it territorial. Oh I forget, there were some interim stations. I had been
stationed awhile in Texas. I had gone from Texas to Tennessee to Georgia to Alabama to
Mississippi, Vancouver, Washington and California and back to New Jersey to get
mustered out.
Q: Do you stay in touch today with anybody that you met during the
service?
A: Yes. As a matter of fact I just talked to this one couple. My, the
G2 of our battalion when I was in the field artillery, the Major in charge, the Major who
– 11 –
was the G2, Major Steve Davis, one of the officers, one of my commanding officers,
returned after the war to Washington. And, when I came down here we bumped into each
other and he and his family and mine remained friends ever since. As a matter of fact he
had a daughter who was a friend of one of our daughters. They’re about the same age and
they hung out occasionally together. Another one of the officers who was in one of the,
one of the line officers in one of the line battalions was then a Lieutenant, I don’t know
what his rank was when he came out of the service but he was an officer in the Industrial
Bank here. When I came back, when I came to Washington I did all my banking with the
Industrial Bank, so I see him.
Q: Who is that person?
A: That is Mervin O. Parker. Mervin O. Parker is now retired from
the Bank. But Mervin O. Parker was another person I met in the service and because of
my coming back to Washington and my business with the Bank when I was in law
practice. So I have seen him. I see him frequently over the years. Those are the two,
those are two that I remember. I have run into others, but the bulk of the group that I
served with were men from other portions of the country.
Q: Many people will say that they had experiences in the service that
lasted their entire life. Did you have any experience or did you learn anything in the
service that you have carried with you to this day?
A: Yes. I started learning from the day I went in to Camp Dix which
was the rallying point, you know where they gathered all the soldiers to tell them where
– 12 –
they were going to be assigned. It was my first experience in being exposed to a large
number of people who came from very different and very diverse backgrounds. And
getting, and having to have daily contact with, to work with, and in some cases and
eventually give leadership to these people, as I think one of them was a, one of the most
fascinating experiences I have had. In some of these stations that I was assigned to,
especially those in the deep South. I had never been south of Washington, D.C. until I
went into the service. And, to go from Washington to Texas to Tennessee to Georgia to
Alabama to Mississippi was a very enlightening experience in lots of ways for me. And
to meet just any number of men who came from all kinds of backgrounds and to have to
work with and to understand how despite their lack of formal education so many of them
could adapt to military training, that is that they could learn. You could take a man who
had known nothing but the south end of a northbound mule and bring him into an outfit
and put him through training and ninety percent of the time you could turn him into a
reliable person in a particular area where he was needed. You could make good gunners
out of them. They could take apart machines and put them back together again. They
made excellent people to work with. I know all of them. But there was always a
possibility that they could do their job and I was never in an outfit where they didn’t do
their job. We went out and had something to do and they’d get it done.
Q: Most of us understand a much better appreciation today of what the
racial barriers were like in the ’30s and ’40s. What experiences did you have in that
– 13 –
regard when you were in school and when you were in the service? When you were
growing up in New Jersey did you experience any racial barriers that were roadblocks or
problems for you and did that change when you went into the service?
A: Well, let me say that the part of New Jersey in which I was raised
did not have legal segregation in public education facilities, but in many respects it was
de facto. Our own public school system was not segregated. The population, the black
population of Madison, which was a small town and still is a small town, Madison’s
population then was less than 9,000 as I recall and I was in the school system then. The
black population may have numbered 400. At any given time therefore, there were not a
large number of black students who were my classmates.
Q: So was roughly about ten percent?
A: Roughly ten percent of the population, yes. I experienced in the
public school systems little or no overt discrimination. There were subtle things that
went on but my parents were very attentive and very sensitive to that situation and they
brooked no foolishness from the administrators or from the teachers. I enjoyed a very
good relationship with students with whom I went to school and became fast friends with
lots of them. We shared lots of things. In and out of each other’s homes, trips together
where it was possible. In college, Cornell University then on the Ithaca campus there
may have been as many as 9,000 students. It was a large place. There were very few
black students in Cornell University when I was there. Throughout the entire University
of 9,000 my recollection is that during my years there, prior to the war at least, there
– 14 –
never was more than 25 students who were black. That included graduate, undergraduate,
men and women. Very small population. But as far as the University itself is concerned,
I never had any difficulties with the administration in terms of anything suggesting it was
racially biased or prejudiced. Individual situations that you ran into with students and
teachers you just dealt with. So my experience in that regard was, as far as the University
is concerned, I don’t have any negative impact. The same was true in law school.
Q: Was your experience different in the service?
A: Well, it was very different. In law school interestingly enough, you
began to see a degree of subtle, well one thing for example that I was incensed about is
that I could not belong to the legal fraternity in the law school. Though neither could at
that time the Jewish students, and we protested that rather strenuously.
Q: So this would have been 1941?
A: 1941. In the Army it was entirely different of course. I went into a
segregated Army and I never served with any other kind. And, that was a brutal
experience. I have not been segregated like that before in my life and that, I spent most of
my time on the Post for that reason. I spent little time visiting around. Although some
areas, it was much better when I got to California than it was when I was in Mississippi or
Georgia or Alabama. Although when I was in Georgia, Atlanta was not too far away and
I made friends at Morehouse College, Clark, Spelman Colleges used to be institutions
within that University complex so if I left the Post and went to Atlanta I went straight,
spent my time with them.
– 15 –
Q: Well, when you returned to law school in 1945, how do you think
you were a different person from when you left Cornell in 1941?
A: Oh, I was in a bigger hurry to get things done. We felt we had lost
things and just buckled right down. As a matter of fact, I went, once I got back out of the
service I went right straight through summer and, I came back in March is my
recollection. I went through that semester, went through, studied through the summer
until I got my, finished my work and got my degree. There was no fooling. When I came
back out of the service and came back to law school, it was an entirely different
atmosphere throughout the entire law school. I was joined by dozens of others who,
coming back at various stages of completing their education and all of us were a much
more mature group in approaching our studies. We had no time to waste. We felt we had
to catch up. We felt we were lucky to be able to complete our military service and get on
with what we wanted to do. The classes were larger but it worked out because with a
more mature student body you had less foolishness. Everybody was pretty much in the
same boat.
Q: What year did you graduate from law school?
A: I graduated from law school in ’47.
– 16 –
Q: While you were in law school did you entertain the thought of
becoming a judge?
A: No. I never entertained that thought. I had no thoughts of that at
all.
Q: Did you want to practice law when you graduated, or go into
government service?
A: No. I knew that I wanted to practice law, that I wanted to go into
private practice. I was not interested in government service. I had wanted very much to
remain in New Jersey. As a matter of fact, one of the things that impelled me to study
law was an experience I had while I was in high school. In high school they had what
was then called, and my guess is it still is, the “Hi Y Club.” It’s a relationship between
the YMCA and the high school situation. And among the things that the “Hi Y”
movement did was to annually have a weekend at the State Capitol. We conducted
elections statewide throughout the state. Elections comparable to, for all the offices then
held by the state senators and by the delegates, members of the house, and I was elected
from my territory as one of the senators to represent, quote senators. And, we went to
Trenton and for two days conducted mock legislative sessions. We introduced
legislation, debated legislation at committee meetings and voted on legislation. Well, that
experience just suggested to me that I wanted to get in local, that is New Jersey politics.
One of the thoughts that I had in mind throughout my law school was to eventually go
– 17 –
back to New Jersey and practice law, get involved in local politics, see if I couldn’t
become New Jersey’s first black state senator.
Q: What prevented you from doing that?
A: The major obstacle was the fact that New Jersey’s Bar requirements
insisted upon a one year clerkship with a practicing lawyer before you were eligible to
take the New Jersey Bar Exam. My recollection is that at the time that I finished law
school there may have been as many as ten black lawyers practicing in the state of New
Jersey and I couldn’t find one who was in a position to offer me a clerkship. Through the
intervention of one of my professors, I did discover that there was a law firm in Newark,
Hannoch & Lasser, that was willing to give me a clerkship. They had never given a black
a clerkship but they were willing to take a chance. But I had married before I finished
law school. The clerkship would have entailed the munificent sum of $25.00 a week. I
could not see how I could manage on $25.00 a week and I did not think that New Jersey
offered at that time what I had anticipated would be a decent climate in which to practice
law.
Q: This was 1947?
A: Yes. So, while I was at Cornell I had an occasion to meet Belford
V. Lawson, who was then a practicing lawyer here in Washington, D.C., and he talked
with me and he said, “Well, if you want to practice law, and you don’t want to go to New
Jersey, when you finish law school come and you can practice in my office.” And, I
determined that that is what I would do.
– 18 –
Q: Were you married at the time?
A: I was married. My wife was then teaching at Tennessee State
College in Nashville, Tennessee. She continued to teach there while I came here to
Washington and first spent my time studying for the District of Columbia Bar. I took the
D.C. Bar Examination, passed it and then began to work in the law office of Belford
Lawson.
Q: So you took the D.C. Bar in 1947?
A: Yes.
Q: Where was Mr. Lawson’s office located?
A: At 2001 Eleventh Street, right across the street from the Industrial
Bank. And we were on that corner for a long time.
Q: Was it just the two of you?
A: No. There was Lawson, there was his wife, who was a lawyer,
Marjorie Mackenzie. And, there was another lawyer by the name of George Windsor.
There was Lawson, Mackenzie and Windsor when I entered the office. His wife left the
active practice and took some additional studies, as a matter of fact I think she repeated
and took a law degree at Columbia and never came back to the office. George Windsor
left the office and went for awhile into government service and then resumed private
practice with George Hayes’ office, Cobb, Howard & Hayes on F Street.
– 19 –
Q: Before I ask you some questions about your experiences in your
early career of law practice, let me go back to law school for a moment. I know that you
have taught in law school. Do you think that your legal education adequately prepared
you for the practice of law?
A: I don’t, in one sense, no. Because one could not leave law school,
take a Bar Examination and go out and hang up his or her shingle in my view and do
anything but stumble and bumble. And, I’m not so sure that you can even do that today.
But certainly the law school classes as they were structured were much more the
conventional approach to legal education. We took the standard subjects. There were no
clinical subjects available. The nearest thing to clinic might have been some of the
seminars that I took. Small discussion-type classes. But, in terms of being well-versed in
legal theory and covering the basic spectrum of what is expected, it was good. But, in
terms of being able to go out and practice, no, which is why so many of the students
became affiliated and associated with law firms as young associates and they learned.
They were good students. I declined to go to New York to work in a law firm. The offer,
I had an offer through one of my professors.
– 20 –
TAPE I, Side 2
Oral History Project
Historical Society for the D.C. Circuit
C.J. Aubrey Robinson, Jr.
Arthur John Keeffe taught at Cornell University Law School while I was there. He
became a very good friend and mentor. When he found out that I had nobody in
particular in mind toward the end of my law school graduation, he thought that I should
venture to New York. At that time it was unheard of for a firm in New York to have a
black as an associate. He had had some experiences that indicated he could arrange that
with one of the large firms in New York. I got an offer but I declined to go because I
didn’t think I wanted to be stuck on the 45th floor of some building in some back office
working myself to death for peanuts in an atmosphere that I wasn’t welcome. I don’t think
I would have tolerated. He was disappointed, of course, but I appreciated his efforts and
told him, “No, I’ll do it my way.” Arthur John Keeffe taught at Cornell for a while, then
taught in the South. Wound up his teaching career here at Catholic University. He died
not too long ago. But he was a person who took an interest in what I wanted to do and I
appreciated his interest. When I went on the Juvenile Court bench, he called me up and
told me that I must have lost my mind. That it was the worst thing I could ever have
done. And he ranted and raved. Well, I exaggerate this. But, I said, “Alright, I know
how you feel about it Art. It’s something I think I would like to do.”
Q: What year would that have been?
– 21 –
A: That would have been in 1965, and I didn’t stay there but fourteen
months.
Q: So you came to Washington to start your legal career in 1947, and
there were four of you in that office? Four lawyers? Describe your early practice. What
kind of cases were you handling and did you enjoy it?
A: It was sort of a general, basically civil practice. We did a
reasonable amount of court work. We had some small businesses that we represented. I
was initially just as most young people are, I guess, the “go for.” I did all kinds of things.
Drafted pleadings, filed pleadings, motions. Among the people we represented, we
represented one of the local unions. It got involved in a series of confrontations as a
result of which a lot of the union members were, had criminal charges filed against them
and I helped in some of the defense of those cases. I tried some of those cases. I was
particularly interested in the area of probate law. And to the extent we represented small
estates, I did a lot of that. I enjoyed that. And when I left Lawson’s office I hooked up
with Frank Reeves, or at first it was Charles T. Duncan and I then just decided to leave
and establish our own little partnership. We then hooked up with Frank Reeves. The
three of us practiced law for several years.
Q: What year would that have been, Judge?
A: Charlie Duncan and I started our partnership in 1953. We hooked
up a year later with Frank Reeves and the three of us had fun in practicing law until 1961.
– 22 –
In 1961 we formed the relationship and the partnership with, let’s see there was Frank
Reeves, myself, Harvey Rosenberg, Dan Sherry and Al Hamlin. And when we did that
we moved our offices downtown to 13th and H Streets. We practiced at that location,
with that same group, until 1964 and then eventually Frank Reeves left. He entered into
politics actively, and left. We took on Aaron M. Levine. And the group stayed together
for a short while and was then completely disbanded in about 1965. Levine established
his own practice. Dan Sherry established his private practice in Maryland. Al Hamlin
returned to the federal government. Harvey Rosenberg went to Texas. I don’t know what
became of him. He had some difficulties with the Texas Bar, I understand. I don’t know
the details. I lost all contact.
Q: Let me ask you some questions about your early years in practice.
You said you had an interest in probate law and you represented a union. Can you
describe in a little more detail the type of practice you had in the early ’60s? Do you have
any memorable cases, or clients, or particular experiences that have stayed with you over
the years?
A: Arising out of the practice?
Q: Yes.
A: Well, I think one of the most interesting clients that I personally
had; arranged a number of relatively small matters but were significant to her was that I
represented a woman who had inherited from her parents and grandparents who were
– 23 –
slaves a very valuable and strategically located piece of property near Dulles Airport.
And I worked with her in connection with the importuning she underwent. Speculators
were trying to get that property away from her because it had become so valuable. And
she had had in her own life in terms of her husband some personal difficulties. He had
had some accidents, illnesses. She was struggling to maintain her residence here in the
city. She had to get the property straightened out to keep her going. Worked with her
and her husband. I liked the one-on-one relationship. And I remember her very clearly.
She is now deceased. She was an older person. We had a very interesting bit of
litigation. When they were developing; some of the big developers in Northern Virginia
bought a tract of land that had been owned by blacks for years and years and years. And
they; we represented those folks in litigation to, which was basically I guess you would
say an action to, defend title because the developer just took it upon himself to try to run
roughshod over them and took land that they had not contracted with him to buy. He was
just determined he was going to get it any way that he could. And it was an interesting
sociological test because our clients were black; their lawyers were black and white; and
it was in a court which everybody except the janitor was white. It was a jury trial. We
were in trial, oh, I don’t know for how many weeks. And it raised; we got some
satisfaction – we got a lot of satisfaction. It was an interesting observation that that jury
gave what was then a fairly decent award.
Q: What court was that in?
– 24 –
A: It was in a Virginia State court. At that time it raised some interest
because of the circumstances that I just described but it was very interesting. We had to
commute everyday, back and forth to the courthouse. We insisted that we were going to
use the same facilities that everybody else used in the courthouse. It caused consternation
but no disturbances.
Q: Do you remember your very first trial?
A: I’m afraid I do not. I don’t know whether it was a civil case or a
criminal case. It may well have been a criminal case. At that time we had no criminal
justice act. There was no compensation paid to lawyers. If you were a member of the Bar
of the court you could expect to be called up and assigned a criminal case and that was
the end of it. You took the responsibility and maybe you got thanked and maybe you
didn’t.
Q: Do you think we should go back to those days?
A: No. Absolutely not.
Q: Do you remember your first appearance in the United States
District Court for the District of Columbia?
A: I can’t say it was my first appearance, but I can remember an early
appearance that I had in a divorce case. At that time the District Court had divorce
jurisdiction. That’s another area of the law in which we did some work in private
practice. But I can remember a divorce case that I was – and it was an uncontested
divorce case in which I represented the plaintiff and had an experience before Judge
– 25 –
Alexander Holtzoff. That was in the building over on Indiana Avenue. And I can
remember his rather brusque way of dealing with me because I did not have what he
thought was an appropriate proof of the conviction of the – my client’s husband – of the
defendant. At that time conviction with two years sentence was a ground for divorce, as I
remember – something like that. And we had a colloquy. He ran up one side of me and
down the other. And I can remember that I succeeded in getting the divorce but I
remember that very distinctly. And I don’t remember any protracted trials. I don’t
remember who we tried those union cases before.
Q: During your practice in the early ’60s, other than Judge Holtzoff,
do you remember any judges that you were before where the case or the experience has
stayed with you?
A: Yes. I tried a civil case. We represented a landowner. The owner
of an apartment building in which a guest of a tenant had fallen down the stairs and was
killed. And, of course, the decedent’s family filed an action. And I represented along
with; I represented the owners of the building, along with the managers of the building.
And I remember how dramatic it was that we tried the case before Judge Luther
Youngdahl and he was rather put out that we would not settle the case. But the demand
then was, in our view, excessive. Although the exposure was large, it was not anything
like it would be in this day and age. First of all the decedent was black. And the juries as
they were then were composed were not going to go out of their way to compensate for
the life of a black person.
– 26 –
Q: That case was in the District of Columbia?
A: Yes. Right upstairs on the 6th floor.
Q: Of the courthouse where we are now?
A: Right where we are right now. And I can remember how relieved I
was and my clients were when the jury’s verdict came back for the defendant, whom we
represented. But I remember that experience very, very well.
Q: Do you think that verdict was the result of the excellent defense
that you provided or do you think that there were other factors?
A: I think that there were other factors.
Q: Did that trouble you at the time?
A: No. I think the other factor is that we happened to highlight just
the thing that the jury; well, if you want to put it that way, yes. I, what I remember was
that in my cross-examination of the principal witness who witnessed this accident. The
man fell from the top of the stairs down the flight of stairs. The principal witness had
testified that the man was shaking hands with someone he was departing the apartment on
the second floor; and that he backed out of the door and backed; and started to; and never
turned around to go down the stairs, and that he fell with his back to the stairs. And I
remember that in my summation that I had had the reporter give me a transcript of exactly
what he had said. And I remember that in my summation I said, “Now, ladies and
gentlemen lest your memory needs to be refreshed this is exactly what you heard from the
principal witness in this accident.” And I read the transcript. I thought I did a pretty good
– 27 –
job. So in that sense yes, but it was not an open and shut; the interesting thing about it is
that the plaintiff was represented by a former congressman from Mississippi and he just
knew that he was going to walk all over these black lawyers.
Q: And he didn’t?
A: And he didn’t.
Q: During your early years in practice, what were your work habits as
a lawyer?
A: A regular day and a regular week. I rarely worked on weekends,
and never on Sunday. I had a client who had a very successful business and I can
remember very vividly one day I was going to court with him in connection with a matter.
We represented him. (I was very young then.) I was driving him in my car. And he said,
he wanted to know more about me. He knew the other people in the office much better
than me. And he said, “Well, you know I have been around awhile. I’ve built a very good
business. But let me tell you I know you are ambitious and you want to work hard and
you want to build a law practice and make money. But I also understand that you have a
wife and you have two children.” I said, “Yes, I do.” He said, “Well, let me tell you.
You establish your office hours during the week when you are going to be there and be
there. Do not stay there all night and don’t be there all weekend.” And he said, “The
clients that are worth having will come during the regular business day. And you can take
care of their affairs.” And he said, “More importantly, it will give you time to
– 28 –
discharge your obligation to your family.” He said, “And I have six children. And that’s
what I have done with respect to every one. I’m here; our office hours are 8:00 o’clock
and we close at 5:00 o’clock. And all of us have been in this situation as you well know,
and some of them have worked with me all these years.” I thought that made a lot of
sense to me. One, because I was very interested in some other extra-curricular activities.
Shortly after I came to Washington I identified myself with one of the churches in the
area through a friend of my Father’s. My Father had gone to Cornell as I indicated to you.
While there he had met a woman who was a schoolteacher from Washington. She was
there working on an advanced degree is my recollection. They maintained a friendship
and when she found out that I was in Washington she says, “Well, you must come with
me to my church some Sunday. We’ll come and pick you up.” And I say, “Fine.” They
were very fine people, both of them, she and her husband. He was an administrator in the
D. C. Public School System then and she was one of the senior teachers. Very highly
respected. And he was a Latin scholar too, by the way. And quite a professorial type.
They were fine people. But anyhow, as a result of that contact through my Father, I
established contact and became a member, and a very active member of the Plymouth
Congregational Church; then located at Seventeenth and R, not located at Missouri
Avenue and Riggs Road, or North Capitol and Riggs Road – where that intersects. But I
became very involved in church matters; and stayed involved all through my law practice.
Up until about the time I came on the bench. I held office in
– 29 –
the church. I was a trustee, Chairman of the Trustee Board. I sang, believe it or not, in
the church choir for about ten years. I chaired their campaign to establish funds to
relocate the church. I spent a lot of time on church affairs. All through the connection
with this couple who my Father had known back in the ’20s.
Q: Do you think the advice that was given to you when you were a
young practicing lawyer was good advice for young lawyers today?
A: Well, I don’t know because I haven’t practiced law in the present
atmosphere. I doubt that it would work, because I don’t know that many of them;
although I have had some interesting clerks: I had a law clerk who had an interesting
experience, and that’s the way he determined what he was going to do – even though he’s
now a partner in a well established law firm. He just told them that, “These are my hours.
I’ve got a family.” And they told him he couldn’t do it. The partners finally said, “Let
him try.” And now they think they’ve invented the idea. But it can be done but you have
to just be determined that that’s the way that you’re going to do it. So that’s what I did.
Now there’s a price to pay for it, I guess. I never ate high off the hog, but I can tell you
that I participated actively in the raising of my family and I also found the time and
energy to participate in some of the community affairs which you see listed on my
resume.
Q: Did you do any appellate work when you were practicing law?
A: No.
– 30 –
Q: None at all? Did you ever argue an appellate case?
A: I doubt. I doubt. I may have argued an appellate case but I have no
specific recollection. I don’t think so. I may have sat; well, I sat in on the argument and
participated actively in the briefing of a case in the Supreme Court of the United States.
Q: Do you remember the case?
A: Yes. I remember the case. Henderson v. The Southern Railway.
We have a friend and client who was Legislative Assistant to Congressman Dawson, I
believe. His duties required him to travel and he was headed on Southern Railway
through the South and they wouldn’t feed him in the dining car. He was incensed. And
he came back and we undertook that litigation and the litigation went to the Supreme
Court.
Q: Do you remember the year?
A: Yes. I believe it was 1949. Belford Lawson argued the case. We
won the case and as a result the practices on interstate railways had to change. And the
railways in interstate commerce could not fail to refuse to serve any black dining car
passenger who presented himself or herself. Now this was obviously years before the
Civil Rights Act. But it was under the Interstate Commerce clause.
– 31 –
Q: Do you know off hand whether the Henderson case was cited in
Brown v. Board of Education?
A: Oh no, it would not be, I think. I don’t think it was cited in
Brown v. Board of Education.
Q: But it certainly would have been one of the building blocks leading
to Brown, would it not?
A: Well, a building block in the sense that there were any number of
pieces of litigation that were trying to chip away in every direction that they could. And
we determined that we thought we had the best out if we focused on those specific
provisions of the Interstate Commerce Act.
Q: Judge, you were in private practice for eighteen years, is that right?
A: Something like that, yes.
Q: 1947 to 1965?
A: Yes.
Q: You went on the bench in 1965?
A: ’65.
Q: During your eighteen years of practice, how did the practice of law
change? Not necessarily your personal practice with the firms that you were with, but the
practice in general. Did you notice any changes over the years?
– 32 –
A: Well, I think the principal way in which the practice changed was
the increasing size of the Bar. With greater frequency you had contact with lawyers that
you just didn’t know. When I first started practicing the lawyers who were practicing in
whatever court – black or white – was a smaller group, and you knew many of them. But
as the legal population increased and litigation increased it would be with less frequency
that you had contact with somebody that you had previously dealt with. I think that that’s
probably one impression that I have; that I experienced.
Q: One of the complaints that we hear today in the practice is that it
seems to be losing the sense of civility. It seems that aggressive and zealous
representation of a client has in some cases gone to the extreme and that we don’t act as
professional as perhaps we used to in earlier times. Can you describe for me what the
level of civility was in practice when you were practicing? And do you think it’s different
today from what it was then?
A: I think the level of civility was fairly high except in isolated
incidents. You always had lawyers who, for want of a better term at the moment I would
call, abrasive. Some by just personality. One in particular, whose name I will not
mention or repeat, was the most abrasive person I think you’d ever meet in life. But he
was that way; he would have been abrasive if he would have been a scientist. It was a
personality thing as over against a professional thing. I think. Although coupled with the
adversary process it just accentuated his abrasiveness. And there would be isolated
instances of that. As far as what goes on today, or has been going on the last 25 years I
– 33 –
can only reflect on it from the other side because I’ve not participated in it. I do believe
that lawyers are far less congenial. I think the aggressiveness that we anticipate has gone
beyond normal standards of civility in many instances. Zealous representation of a client,
I think has exceeded the limits that are accepted professionally. They may be limits that
can be viewed as good business, if one considers law a business – as many lawyers
obviously do now – but they would not be accepted in good, hard professional
circumstances. And I think one can represent a client zealously, without being abrasive,
and unbending and unyielding as I sense so many are. Where winning at all costs is the
absolutely sine qua non. It’s the very essence; and that every defeat is a major defeat.
Q: You mentioned law as a business. When you were in the private
practice of law did you actively participate in the management of your firms?
A: Yes. But we didn’t have managing partners; yes, but we did it
more collectively in the sense that we were smaller groups to deal with. But we had to
participate because we had to assure that we were having enough revenue and that cases
were moving in some rational fashion so that we could exist. But the size of the
organizations in which I participated, legal firms, partnerships doesn’t begin to
approximate with what’s going on now.
Q: What was the largest number of people that you practiced with at
any one time?
A: Five.
– 34 –
Q: Five?
A: With some associates. We’d always had two or three younger. So
I would say that the largest aggregation I can remember we had were, we had some there
may have been; one time there were eight of us. Five were actually partners and three
with whom we had arrangements with in specific pieces of litigation that was ongoing.
Q: So that wasn’t in the days of managing partners?
A: No, it was not. That’s why I say we would call an office meeting
and sit around every week and talk about what was going on and where we were
financially; what had to be done; what personnel problems we had; and how we could
keep things moving. No, that’s why I say it doesn’t begin to approximate what seems to
be almost standard now. Unless a person is a sole practitioner. And even sole
practitioners now have staffs to enable them to be sole practitioners.
Q: Did you participate in any Bar activities when you were practicing?
A: I was active for awhile with the Washington Bar Association. And
that was the time, of course, when the District of Columbia Bar Association would not
accept blacks. As a matter of fact, one of the interesting experiences I had was that I
could not understand why in this courthouse the Bar Association was allowed to have a
library from which it could exclude blacks, and did. And I could not understand why as
long as that existed I didn’t have the right, as did every black lawyer, to be a member of
– 35 –
that Bar Association since it not only maintained the library but did so out of relationship
with the court; that it was the avenue and contact between the court and many of the
things that went on in the practice of law.
Q: Do you remember what year that changed?
A: I don’t remember the change. I don’t remember the year of change.
But I know I filed a lawsuit. That lawsuit was settled and dismissed because at that time
the president and generally Bar officials talked with me and said they were going to make
changes. They did make changes. They opened up the library and then there came a time
when there was additional pressure as far as the Bar Association itself was concerned – to
open up its membership – and, I don’t know when they did.
Q: You were the named plaintiff in that suit?
A: Yes. And I don’t remember the year.
Q: Were you the only plaintiff?
A: My recollection is that I was.
Q: Did you represent yourself?
A: No. I was represented by, of all people, James Laughlin. Laughlin
was an iconoclast. I guess that is what you would call him. He was an active practitioner
in this court. But this one thing seemed to incense him. He was discussing it with
Lawson and they said we’ve got to find somebody who will bell this cat. And I said, “I’ll
bell it.” So I said, “I don’t care, I just think it’s wrong.” So I submitted my name to be
– 36 –
used. When it hit the fan, I don’t know what consternation it caused here. But things
began to change. And I don’t know the chronology of change.
Q: So the resolution of that suit was a settlement that resulted in the
Bar library becoming available to blacks?
A: Well, I don’t know whether it was quite that. There was a firm
commitment that there would be a change. I don’t think I insisted to see the change.
Because I made it clear that I wasn’t interested in litigating for any thing other than to see
that there was movement. And talking with the people, they indicated there would be.
And there was a commitment; changes were effected. I do not have a recollection of
what the sequence of specific events were.
Q: Other than perhaps the case we just talked about, can you
remember a case that you participated in during your private practice that you think had
the most influence on changing social policy in the city? Is there one particular case that
stands out?
A: That changed social policy in the city? No, I don’t think so.
Q: How about any case that resulted in a significant judicial decision
that changed judicial policy?
A: I don’t know that I participated in anything that was significant in
changing any particular policy. No, I can’t claim any fame like that.
Q: What did you enjoy the most and least about private practice? And
do you miss it today in any respect?
– 37 –
A: Well, I’ve been out of it so long, I guess. I miss it only because it
was an experience that I enjoyed. Basically, I enjoyed private practice because the nature
of things that I did meant that I had a one-on-one relationship with the client – in a
situation in which the client would rely on my, had to rely upon, me as an individual as
over against a team; where I could develop a personal relationship that would give me the
information and everything else that I needed. I guess it was the one-on-one contact and
the satisfaction of knowing sometimes – many times – that the resolution was a fair
resolution. It was a resolution that did not destroy; that was never vindictive.
Q: What did you like least about private practice?
A: The uncertainty of income. I couldn’t have stayed in private
practice if my wife hadn’t taught school. She knew that I liked it. She liked what she was
doing. She was an excellent teacher; and had decent jobs in the District of Columbia
Public School System. She liked her job; I liked mine. But because of the certainty of
her job we knew there would be at least a floor on our income. But, I never made any
money in private practice.
Q: Let me ask you just a few personal questions about your life at this
point in your career. What year did you get married?
A: I got married in 1947.
Q: You have two children, is that correct?
A: I have two girls.
– 38 –
Q: What are their names, and when were they born?
A: Let’s see. I have; there’s the elder daughter, is Paula Elaine. And
Paula Elaine was born in 1949. And then I have, the youngest daughter is Cheryl Louise.
Paula is now Paula Collins, her married name. Then I have Cheryl Louise the younger
daughter – unmarried – who was born in, let’s see, five years later in ’54.
Q: Where did you live when you came to Washington?
A: When I first came to Washington I lived in the home of a friend of
my parents. And his mother, a very fine person, lived on Thirteenth Street, N.W. And I
stayed with her until I found accommodations – on Quebec Place, N.W. We lived on
Quebec for a brief period of time and then I moved to – finally found an apartment, which
was very difficult to get because then the real estate market was strictly segregated. You
lived in very well-defined areas in the District of Columbia if you were black. And, lived
there for awhile and then moved to a very nice apartment on R Street, N.W. – Sixteenth
and R – lived there until we bought a home on Seventeenth Place, N.E. Lived there for a
number of years until we moved to Sycamore Street, N.W. and then from Sycamore I
moved to where we’re living now in Unicorn Lane.
Q: Who are the one or two closest professional associates in your
career as a private lawyer?
A: Who are lawyers? I’ve maintained the longest professional
relationship I guess with; well, Aaron Levine, for example. From the time he came in as
a young lawyer I’ve maintained a steady relationship with him professionally and socially.
– 39 –
I have – Charlie Duncan. Those are the two who come to mind immediately over the
years.
Q: Now during your years in private practice, were you active
politically or was your practice your primary activity?
A: There are no politics here unless you come here with a political
background, I think. People who are politicians in Washington don’t become politicians
after they get to Washington. They’re politicians before they ever came here. So that I
participated in – once we got some partial right to – you know the early seeds of home
rule, I went out and campaigned when, you remember – what was it in the ’50s that we
had elected, began to elect the Commissioners. I was not involved in any political
activity; there was just no politics to be active in. You couldn’t vote for a damned thing.
And by the time we could vote, home rule and all that kind of business, I was on the
bench and circumscribed.
– 40 –
TAPE II, Side 1
Oral History Project
Historical Society for the D.C. Circuit
C.J. Aubrey Robinson, Jr.
This is the continuation of the Oral History Interview with Chief Judge
Aubrey Robinson. My name is William Causey. We are doing this for the Oral History
Project for the Historical Society for the District of Columbia Circuit. We are taping this
interview with Judge Robinson in his Chambers on January 11, 1992.
Q: Judge, if I may continue, looking back on your experiences as a
young person going through school, your service in the military, and in your early career
as a private practitioner here in Washington, was there any one particular book that was
influential for you that you remember?
A: I can’t remember any single book. I can say that from an early age I
was an avid reader. We had a separate children’s library as part of the public library of
the town of Madison. And, from about the age of ten I think I read every book in that
library other than books for children younger than the age of ten. I always was involved
in reading. I enjoyed it. I continued that even through high school. I enjoyed not only
the reading in connection with the assignments but there was always reading material at
home. One of the things that our parents insisted upon was that in addition to whatever
books we had for our schoolwork there was always other reading material. Current
magazines, always at least one daily newspaper and on snowy days, rainy days, cold days
– 41 –
when we couldn’t be out engaging in the games and play of children or teenagers, we
would stay home and read.
Q: You told me earlier when you were a young person you played the
violin and the clarinet. Did you continue to play those instruments when you were a
young man?
A: No. I pretty much gave up the violin by the time I went to college.
And I continued with the clarinet through college and perhaps through my military
service. Not in the military band. I played in the ROTC band at Cornell University for
the entire time I was an undergraduate there. As a matter of fact, for one year I was
assistant student director of that band. Among the things that I did in high school when I
was coming along, I was the student director of both the orchestra and the band in the
absence of the band director or orchestra leader. We would have regular school programs
and it was my responsibility to see that the groups were assembled, determine what they
were to play and direct them. And, I did that through high school and, as I say, for one
year in college I was the student, assistant student leader of the ROTC band. We were
required to take ROTC for one year. As undergraduates at Cornell, I elected to take my
ROTC in the band, and did so. Played with it, traveled with it. We went to some football
games, all of the home games of course. Some of the away games. They would take us
on, I think it was one major trip per year. I remember going to Harvard. I remember
going to Dartmouth to play Dartmouth. I remember going with the band to the University
– 42 –
of Pennsylvania. The Penn/Cornell game was a traditional game for years. I remember
playing at that.
Q: Did Cornell have a good football team at that time?
A: The year I came was the year that Brud Holland graduated. And, if
you remember, Brud Holland played on a good football team. It was ivy league champ.
That year we played Ohio State. They beat us in Ohio. They came to Ithaca and we beat
them, which was a major accomplishment for an ivy league team then. Because Ohio
State and the big ten was still in its heyday. It was a good football team then, yes. It had
its up’s and down’s later on, of course. But at that particular time, it was a good team.
And, as a matter of fact, I got a particular kick out of Cornell football because my brother,
Charles, played on the team, up until the time he went into the service. And, he was a
good football player. At that time many of the players played both ways. He played
defensive back as well as halfback on the offense. He was on the same team and at the
same time that Sam Pierce was on the team. Sam came to Cornell with a football
scholarship from Glen Cove, Long Island, because he was an accomplished high school
player. My brother was a walk-on. He had played and captained, no, he didn’t captain,
but he had played, yes, he had captained his final year. He had played high school
football and was a good high school football player. And he decided he wanted to work,
wanted to play college ball, and did. And, I got a real charge out of it. As did my Father.
Our Father had not played college football; he had played high school football. As a
– 43 –
matter of fact, played guard. But at that time you didn’t have to be 6′ 8″ and 300 pounds
to play football in the line, and he was a solidly built, but short person.
Q: Again, focusing on the period of your adolescence, your experience
in the military, and in your years of private practice, is there one or two historical events
that you remember the most that you think were the most influential for you? Events that
maybe changed your life, or the direction of your life the most?
A: I don’t know that it focused so much on any single event as it did
on the totality of the experiences that I had in each of those periods. I thought that I had a
very fine high school experience, public school experience. My public school experience
overall was very good. It was a very good public school. We had excellent teachers. I
think I came out of public school well rounded. I enjoyed the experiences that I had in
public school. And about a relationship that you talk about continuing, the Principal of
the high school that I attended up through my graduation is still living. He is a vigorous,
active man in his late 80’s. But I see him every time that I go back to New Jersey and he
keeps in touch with me. He knew my whole family very well. He was an unusual person.
He came to the high school from the mid-west. He came from Minnesota as a matter of
fact. And, brought a different, fresh view about education. Many of us didn’t understand
his approach but he was a kind, gentle, fair, vigorous person who commanded the respect
of people. And he was a good friend. And of course he knew my parents, he knew all of
us and has followed all of his students. Some of us with greater particularity than others.
I can remember when I went back to receive a honorary degree from Drew University,
– 44 –
how enthusiastic he was. He was right there in the audience. He sat right behind my
parents during the ceremony. He was, he along with Helen Jane Brewster whom I have
already mentioned were very fine individuals so that my high school experience, I
thought, was excellent. As for my college experience, I thought that the College of Arts
and Sciences at Cornell then and now was an excellent school. I thought I was wellrounded, I did not enjoy it in the sense because I had to work all the way through college
and, because I worked, it was very difficult to participate in some of the things I would
have liked to have participated in. I did, however, manage to get on the debate team
while I was an undergraduate. I managed to work and do that. I also managed to work
and earn my letter in track, that was a great deal of satisfaction to me. I, for awhile,
played on the University tennis team, but I didn’t, couldn’t carry that out. But I had to
work the entire time that I was an undergraduate. And I had to do that because when I
graduated from high school, through the help of Laura Parks, one of my teachers, and her
husband, a professor at New York University, I was awarded a four-year, full tuition
scholarship to New York University. I chose to decline this scholarship because I much
preferred going to Cornell. There was some consternation as far as my Mother was
concerned because she thought that it would have made much more sense for me to do so.
But my commitment was that if I did not go to New York University then I
– 45 –
would work to compensate for the loss of the scholarship, so that’s why I worked. I don’t
complain about that commitment because that was what they permitted me to do. What I
wanted to do.
Q: Why did you choose Cornell?
A: Oh, because my Father was an alumnus of Cornell and when I was
twelve and my younger brother Charles was eleven, he put us in the car and drove us up
to Cornell one Spring day to spend the weekend and show us around to see where he had
gone to school; to meet some of the people who might still be around that he knew and
once you take a twelve year old kid and bring him up to Ithaca on a fine day and stand
him up on that hill and look over the lake and see the campus which was then very
different than it is now, more open space – it was green, it was beautiful – I just thought it
was fantastic. And, I thought that’s it.
A: So, your Father went there. You went there. Your brother
followed you there a year later. Is there anybody in your family that goes to Cornell now?
A: No. My nephew went to Cornell. As I say, my wife went to
Cornell. My sister-in-law, the widow of my deceased brother, was at Cornell – as were
her family. Both of her parents went there. But there is no one now in Cornell. I am
hoping that my granddaughter will want to go. I’ve got to take her up and show her
around next year. But, I don’t know whether she will go. Neither one of my daughters
wanted to go to Cornell.
– 46 –
Q: And you’ve kept close ties with Cornell? I believe you were
recently on the Board of Trustees?
A: Yes. For a long time when I was in practice I didn’t do a whole lot.
I bounced around once in a while with the Cornell Club here, but I wasn’t very active as
an alumnus. And then there came a time when they asked me to offer myself as a
candidate for alumni trustee. I said, “It’s alright with me.” I ran, was not elected. They
came back that we still want you to be a trustee, and I said, “alright,” without any
particular objection. My name was submitted. This time I was elected for a five year
term as alumni trustee. Then at the end of that five year term, the Board itself has the
right to elect trustees, I was elected for four years as a Board elected trustee. So, I served
nine years as a trustee. At the end of the nine years, which was up last year, they made
me trustee emeritus. So, I am a trustee emeritus of Cornell University.
Q: Judge, let me now ask you some questions about your experience
on the federal bench. You were nominated to the court in 1965 by President Johnson?
A: No, nominated to this court in ’66. The President was then
nominating for all courts in the District of Columbia, and still does, but I was nominated
specifically to sit on Juvenile Court in 1965. And that was to fill the vacancy, oddly
enough, that was created by Marjorie Mackenzie Lawson who was on the Juvenile Court.
She resigned from the court and I filled her vacancy by Presidential appointment. And
– 47 –
she’s the same Marjorie Mackenzie that I started out practicing with; and her husband
when I came to Washington.
Q: And that was in 1965?
A: 1965.
Q: And you were nominated by President Johnson?
A: Yes.
Q: What do you think were the professional and political factors that
led to your appointment to the Juvenile Court?
A: I don’t know. Except that at that time the President had as his
advisor on District of Columbia Affairs, among others, Charles Horsky. Now, I had met
Charles Horsky along the way in connection with a variety of things that I was doing and
I don’t know with particularity which one. I think that one of the things that may have
caught the attention of somebody was that for a number of years I had been on the Public
Welfare Advisory Board. That was a citizens advisory board that concerns itself with
trying to help the District with some of the problems that were going on. One of the areas
of that concern obviously was the whole area of juveniles. How the system was
impacting on them and that kind of business. And, I was active with that group. We used
to meet right down the street here as a matter of fact in the building that is now torn down
where the Canadian Embassy now stands. I can’t remember now who else was on that
– 48 –
group but it was considered a fairly representative and diverse group of very fine people.
Q: How did you come to sit on that Board?
A: I don’t know how it happened. I had been doing a lot of things. It
was a Board appointed by the Commissioners is my recollection. And, I don’t know how
it happened but somebody. I don’t know who it was that said, “Hey, what about this guy
Robinson?” But, I did work with that group. But the group that I worked with the
longest and most intensely was the Family and Child Services Agency, formerly situated
at Thirteenth and L. Did I say Thirteenth?
Q: Thirteenth and L.
A: No. It was Eleventh and L, and now located on L Street between
Ninth and Tenth. But, that was a Board that was very active; it was the largest private
casework agency then, I believe, in the District of Columbia. And somehow or other, I
was asked to serve on that Board, and did. I served with them for a number of years.
That was a Board, again, that was rather large and it contained among its membership
some people who were well-known and very active in the Washington community.
Q: How did you first hear that President Johnson had nominated you
to sit on the Juvenile Court?
– 49 –
A: On the Juvenile Court? I don’t know. I imagine it was a call from
the Department of Justice. There wasn’t any big hullabaloo about it. I was quite pleased.
I don’t know how I first learned.
Q: Were you surprised when you were contacted?
A: No, I wasn’t surprised when I was contacted about that because I
had let it be known that I would be interested. And my recollection is that it was
somebody from the local Democratic Committee, Group, that was looking around trying
to submit names to the White House and they came to me and said, “You’ve been
plowing around with some of these things around town and you’re a lawyer, and blah,
blah, blah, would you be interested in being considered?” I said, “I would not decline it.
Yes, I would be interested.”
Q: Now, do you remember the date that you began service on the
Juvenile Court?
A: The exact date? I don’t remember the exact date, no.
Q: But it was 1965?
A: 1965.
Q: And you sat on that court for approximately one year?
A: Yes. Fourteen months to be exact.
Q: What are your recollections of your experience on the Juvenile
Court?
– 50 –
A: Unending work. I don’t think I have ever in any single period of
time, like a year, dealt with so many individuals and individual files and individual cases.
Again, because it was the opportunity for one-on-one in most of these cases felt that it
was worth my effort. Because I thought that sometimes I was getting across to some of
these kids and their parents and their guardians about their problems. We had a good
social work staff and I had good rapport with them. I appreciated and understood their
approach to trying to deal with these problems. I felt then as I strongly feel now that you
have to understand something about the environment from which these kids come and the
way they’re raised, and what their parents go through before you can begin to do anything
with the problems that develop. And, that we ought to make all the effort we can to see
what we can get out of them that’s good and not just toss them on a heap because they’ve
done all kinds of things that are illegal.
Q: Do you think that your service as a Juvenile judge better prepared
you for your service on the District Court?
A: Well, I think this. Yes, because we had many, of course, hearings
and it is an adversary process. So I had in court experience; we had jury trials. So I
knew before I ever came over here how to impanel juries, how to handle juries, how to
charge juries. It was a collegial body in theory at least in the sense we had two other
judges on the court. So I had the experience of working with other judges and because it
was a small court I knew how important the administration of the court was, as well as
the work of the court. I could sense that; although the Chief Judge, who was Morris
– 51 –
Miller, he administered the court. We didn’t divide the responsibility up. To a large
extent we had many discussions. At least he and I did about policy matters; about
changes, that kind of thing. So I had a sense from that experience about some of the
things that go along with being a judge. Having to recruit. Work with your own personal
staff. Although all that I had was a secretary.
Q: Where did the Juvenile Court sit in 1965?
A: The court sat in the Juvenile Court Building, which is a special
building over here on Indiana Avenue. It was built as the Juvenile Court Building, had
three courtrooms.
Q: Do you remember who swore you in?
A: I was sworn in by, I believe, I think the Chief Judge swore me in,
Morris Miller.
Q: Now, how did you learn that you were being nominated to serve on
the District Court?
A: I was in trial in the Juvenile Court and about 10:00 in the morning,
in the midst of the trial, my secretary sent word that I had somebody in Chambers that had
to see me right away. I sent word back that I was in the midst of a hearing. They would
have to wait. The word came back saying that, “Judge, you are advised strongly to recess
the trial and come to Chambers.” The message was being relayed by Doris. Doris was
my secretary while I was on the Juvenile Court.
Q: Doris is now your wife, correct?
– 52 –
A: That’s right. So I told the lawyers, “I apologize, I have a matter
that I have to take care of in Chambers. I’ll get back to you as soon as I can.” And I said,
“I’ll take a short recess.” The courtroom had a little; there’s the courtroom, there’s a little
hallway and then you walk into my Chambers. And when I left the Chambers, got into
the little hallway, who’s standing right up alongside just talking casually with my
secretary is Ernie Friesen from the Department of Justice. I had met Ernie, I don’t know
how, but I had met Ernie. I knew him, I know him well. He said, “Hi, Judge.” I said,
“Hi, Ernie, what’s the problem?” He says, “Come on in, close the door.” And he says,
“I’m here to advise you that tomorrow morning at 9:30 the President of the United States,
my boss, is going to nominate you for the United States District Court for the District of
Columbia.” I said, “Ernie, I’m in the midst of a trial, I don’t have time, and I’m in no
mood for jokes.” He said, “Judge, I’m not joking.” I damned near flipped backwards in
my chair. And he reached into his pocket and pulled out a sheaf of papers. He says, “I
want you to sit down and fill these papers out for me and I will send a messenger back at
1:30 to pick them up.” I leafed through it. There were 19 pages on both sides of
questions. Wanting to know all kinds of things; kinds of cases; how much of this and
how much of that; dated information. I said, “Ernie, there’s no way that I can have all this
by 1:30.” I said, “Some of the information you want is in the law, in the files of the
partners of the law firm that I left a year or so ago. Others is at home, and I don’t know,
some is here.”
– 53 –
He says, “Well Judge, I’ll tell what you do.” Now he says, “Can you trust your
secretary?” I said, “I certainly can.” “Well, first of all, this must not go beyond you and
your secretary.” He says, “You can take your wife into confidence tonight, but if the old
man hears that this has gotten out, he’s going to raise hell.”
Q: The old man, meaning President Johnson?
A: Yes. I said, “Ernie, I understand.” I said, “Ernie, I can assure you
that not a soul will know beyond my secretary and myself.” So, he says, “Alright, I’ll see
ya at 1:30. My messenger will be here at 1:30.”
I went back in the courtroom and told the lawyers that I was very sorry; that I cannot
continue this hearing. I expect it will be able to continue at 2:00 this afternoon, so I am
recessing it until 2:00. Mumble. Mumble. Mumble. I said, “I apologize.” I came back
in, took off my robe, called my secretary in and told her what was going on. I said now
here’s what we’ve got to do. The only way I know to do it in the time we have left is you
put the papers in the typewriter and I’ll stand behind you and dictate as best I can. So I
started. So now I think I’m going to need these files; get these files out. So that’s how I
got that 19 page questionnaire. The messenger came at 1:30 and it was still in the
typewriter because I was still making telephone calls; just casually, you know, by the way
do you remember so and so? Or trying to find stuff in the file that might refresh my
recollection; calling on my own recollection. And the messenger came promptly at 1:30.
The stuff was still in the typewriter, I had three pages to go. I told the messenger, “I’m
sorry. You’re going to have to wait.” Mumble. Mumble. Mumble. I got it out of the
– 54 –
typewriter; hardly; there was no proofreading; there was no verification. It was just the
best I could do from memory and from what files I had to respond to those questions. So
I, at a quarter of I guess we got it out of the typewriter. I signed it, put it in the envelope
and gave it to the messenger. I don’t remember whether I ate lunch or not, but I know I
stumbled back into the courtroom about 2:00 and went through the rest of the day.
Q: And you were nominated the next morning?
A: The next morning at 9:30. I go back and resumed, because the trial
went that afternoon and it went back in the court about 9:00 the next morning because I
was trying to make up some time that I had lost. And in the midst of the trial that
morning, about 20 minutes of 10, you hear this BUZZ all through the courthouse and
people start coming in. I know what’s going on. Nobody down here, the court reporter
doesn’t know; the court deputy doesn’t know. Doris knows. Here comes the Chief Judge,
“What is this I hear? Why didn’t you tell me? We didn’t know.” I said, “Chick.” We
called him Chick. “I was sworn to secrecy.” “You knew all about this?” I said, “Chick, I
didn’t know a darned thing until yesterday.” So he says, “Oh, I don’t know.” Orman
Ketcham was the other judge. He came in. “Why didn’t you? Congratulations! Blah!
Blah! Blah!” And it was just buzz, buzz, buzz. So, that’s how it went. Then at 9:30, of
course, the President did announce it at 9:30.
Q: Were you the only person who was nominated that day?
A: For this Court?
– 55 –
Q: For this Court.
A: No. Jack Smith was.
Q: At the same time?
A: At the same time. Jack Smith came over here. I came over here.
The same day. Because I know that the next day we had to all meet and go to the Justice
Department and Jack; Harold Greene was nominated to be the Chief Judge of the
Superior Court, and he went with us; and there were some other people that went with us
to the Justice Department. We had to meet with the folks down there. We also had to go
to the White House. We were supposed to meet with the President but he got tied up.
We met with some other people at the White House.
Q: Had you ever met President Johnson before you were appointed to
the Court?
A: Before that? I think not. I don’t know. I can only speculate and
believe that because I had had the experience on the Juvenile Court that was known to
people who were working with the Justice Department in getting these names together.
And in particular the advisor to the President on District affairs. That’s how my name
came up.
Q: How old were you when you were nominated for the District
Court?
A: I was 42.
– 56 –
Q: To your knowledge, had there ever been a younger member
appointed to the court at that time?
A: Oh, I don’t know. No, I don’t know about that. I don’t know the
ages of the other appointees.
Q: How many judges sat on the District Court in ’69?
A: There were a dozen of us then.
Q: Including yourself?
A: Yes. That was the complement. I think the vacancy that I believe
that I took was created by; I always assumed it was, Matt McGuire.
Q: Do you have any specific recollections of your confirmation
process?
A: Yes. The first thing you know you have to do is you have to go
down and meet with the Senate Staff. And I went down and had a brief meeting one day
and then a couple days later they said come on back; there’s some more stuff we want to
talk with you about. They were very informal. Neither meeting was lengthy.
Q: I believe Senator Eastland was Chairman of the Judiciary
Committee. Was that correct?
A: Yes. And, it was his; it was the staff of his committee with whom I
met. On two occasions is my recollection. And then, I don’t know, there may have been
additional information and data that had to be furnished. I have no recollection of having
to dig through a lot of stuff. Then the next thing I know there were; there was word that
– 57 –
the hearings were set for; I would have to go back and pull out the file as to the exact date
that I went down. And, I went down to the hearing and only the Chairman was there.
There were several of us who had hearings that day. There weren’t a handful of people
there. I remember it with particularity; somebody was being; somebody was there, not
from our court I don’t think; or was it? No. It wasn’t Jack. I don’t think we had a hearing
the same day. Who had an objection, but it was obviously a person, a stumped litigant.
Q: There was an objection to your confirmation?
A: Not for my confirmation. For somebody else’s. I can’t remember
who. By that time there was just a handful of us there, and when I get called and go up I
had with me at that time as my principle the one I remember was George E.C. Hayes.
George Hayes was a black practicing lawyer around town who had an excellent reputation
with the lawyers. A good lawyer. Well known to this Court. Spent a lot of time. All the
judges of this Court knew him very well. And he was highly respected in the community.
He went with me to the hearing.
Q: Did he present you to the Committee?
A: Yes. That’s my recollection. I have copies of the hearing
somewhere. And, he made a statement. I don’t remember being asked anything. I may
have been asked some relatively benign questions. And, the Chairman says, “Well, looks
alright to me.”
Q: The confirmation process is certainly different today.
– 58 –
A: It was very different. Very brief. Very informal. I was on pins
and needles, not knowing what to anticipate except that being related to me as to what
could occur. There would be opportunities for questioning. I didn’t know how many
committee members would be there. I didn’t know; the committee staff is supposed to
advise you in advance if there are any particular areas of inquiry. I had gotten no such
advice from the committee staff. So, I didn’t know what to expect. Didn’t know who
would be there to say anything one way or the other. Other than the persons who came
with me.
Q: If you remember, what was the period of time between the date you
learned you were being nominated and your swearing in?
A: A couple of weeks.
Q: And who swore you in for the Court?
A: Bill Bryant.
Q: Was he the Chief Judge at that time?
A: No, but I asked him to do it. I knew him. He was on the court. I
had known him for years and years.
Q: So you requested that Judge Bryant swear you in, and he did so?
A: Yes. That’s my recollection. You know; I believe I’m right.
Q: Judge, this may be an appropriate time for us to recess.
A: Yes.
– 59 –
For the record, let me just indicate that this is the Oral History Interview
with Chief Judge Aubrey Robinson. It is January 11, 1992 and we’re going to recess the
interview to continue at a later date. Thank you Judge.
– 60 –
TAPE II, Side 2
Oral History Project
Historical Society for the D.C. Circuit
C.J. Aubrey Robinson, Jr.
My name is William Causey. This is January 20, 1992 and we are
continuing our Oral History Interview with Chief Judge Aubrey Robinson in his
Chambers. Judge, good morning.
Good morning, Mr. Causey.
Thank you for agreeing to give us more of your time to continue and
hopefully complete our Oral History Interview with you today.
You’re quite welcome.
Q: When we left off we were talking about your nomination and
appointment to the Court. Can you give me the date that you first became a sitting judge
on the United States District Court for the District of Columbia?
A: My commission reads November 3, 1966, and I was sworn in, I
think, about the 16th of the month.
Q: Do you recall some of your earliest experiences as a judge on the
District Court?
A: Yes. It was the practice at that time that when a new judge came
on he was advised to spend some time arranging for his staff and getting his Chambers in
order; getting the books that you wanted; and we were allowed, oh, roughly two or three
weeks to do that. And it was also customary that a new judge, no matter where he came
– 61 –
from, was assigned non-jury cases to start with. So the first cases that I tried were nonjury cases. And, I think I stayed in that non-jury assignment about six months.
Q: Do you remember where your Chambers were located?
A: Yes. My Chambers were 2309 on the second floor, on the rear of
the building. They were Chambers that had been inhabited by Judge Spottswood
Robinson. He was elevated to the Court of Appeals at the same time that I came on the
District Court. And I took the Chambers that he had occupied as a district judge and he,
of course, took Chambers on the fifth floor.
Q: Do you remember your first case?
A: Yes. My first case was a case involving a suit against the District
of Columbia Government. It had to do with an alleged drainage problem that was
causing damage to some property in southeast Washington. And allegedly the damage
was caused by negligent action of the District of Columbia Government. And it, the kind
of damage involved was with flooding of residents’ home and they were seeking to
recover damage from the District of Columbia.
Q: You’re referring to a book. Is that your bench book that you keep?
A: For a number of years, I don’t know exactly how long, I kept my
trial notes in a large, permanently bound volume. And every time I went on the bench, I
would have this book. And it was in this book that I kept my trial notes, of all the matters
– 62 –
that I either tried or motions that I heard. I don’t remember when I discontinued that, but I
have those books starting with November 28, 1966. That’s the date of that first hearing.
First trial. And I have them going up through approximately 1975.
Q: Do you have a vivid recollection of some of the early lawyers that
came before you when you first came on the bench?
A: No, I don’t have a vivid recollection of them. If I were to go
through this book, of course, I could tell you who they were because the names of the
litigants and the lawyers who represented them are all noted here, but no I don’t have any
particular recollections that go back 25 years.
Q: What are your recollections of your association with your fellow
judges during the first few years and how was it different, if any, from today?
A: Well, I received a very cordial welcome. Among those that I guess
I remember most vividly, were Judges Curran and McGuire; both of them were very
outgoing people personally and Judge McGuire was taking senior status and he took it
upon himself to chat with me from time to time; give me advice; and I developed a very
friendly, easy relationship with him. And the same was true with Judge Curran. He was
then the Chief Judge of the Court at that time. But some of the other judges were not as
accessible to me. Not for any particular reason; but they were busy people and they were
just different personalities. Judge Holtzoff was very formal; and he was also in his
– 63 –
declining years and I had very little contact with him. Among the judges that I did have a
lot of early associations with were Judge Gesell who came on the Court not too long after
I did; Judge Oliver Gasch who was already here; Judge William Bryant who was here;
and, of course, there was Judge Hart and Judge Corcoran. Those are the ones that I
remember. We had committees, etc. that we worked on and they were very active in the
affairs of the Court.
Q: During the first several years you were on the Court, did the judges
meet regularly, either formally or informally?
A: Yes. Originally the schedule of meetings was left to the judgment
of the Chief Judge.
Q: Who was the Chief Judge when you came on the Court?
A: My recollection is that it was Judge Curran. But not too long after
I came on the Court it was decided to have a regular scheduled monthly executive session
of the court. And it was then scheduled, my recollection is, on the second Monday in
each month. And from time to time we did have special meetings called to deal with
particular problems in the interim. And that I think started in about 1968 and ever since
then it has been customary and it has been our practice to have monthly meetings of the
Court in executive session. Except for the summer months. And it has never been our
practice to hold meetings in July and August. Sometimes we did not hold them in
September until late in the month because very frequently in the early days there wasn’t
much activity until after Labor Day.
– 64 –
Q: How long would these monthly sessions last, and generally, what
things would you talk about?
A: The sessions would usually last about an hour. And we talked
about a variety of things. We talked about problems arranging for the disposition of the
cases, calendaring problems. We talked about how we were going to deal with the juries.
We talked about the supervision of the jury commission and the membership of the jury
commission. In those early days we also had a responsibility to appoint members to the
District of Columbia Public School Board. And occasionally those sessions would take
up our time. We talked about changes that needed to be made in connection with the
admissions standard of the Bar of the District of Columbia. In those early days we also
had a lot of discussion about law students and court programs and actually we had some
court rule changes that permitted those programs to operate. Those were the kinds of
things. Relationship with the Court of Appeals. We dealt with the perennial of parking.
Just the general things in the total operation of the Court. Rule changes were always a
subject of discussion, as things came along.
Q: Lawyers who regularly practice in the District Court know that
some, if not most, of your colleagues get together at lunch time. Was that a practice back
in the late ’60s when you first came on the Court as well?
A: Yes it was. As a matter of fact the judges’ dining room, when I
first came on the Court, was frequented in the outer part of it by the secretaries to the
court, the judges of the Court of Appeals had a table where they used to eat in that larger
– 65 –
outer room and there were some members of the Court of Appeals who met there
regularly. Judges who wished to entertain guests, which was rather frequently, did so at
the tables. And we had an arrangement then where we required the people who ran the
cafeteria to provide a person to serve the food that was brought up from the cafeteria.
And then of course, there was the private dining room. And that was in existence where
judges only could go and sit and have lunch.
Q: During your early years on the Court, did judges of the District
Court eat lunch and mingle with the judges of the Court of Appeals on a daily basis?
A: There were several judges of the Court of Appeals who ate with us
regularly. One who was for years a regular attendant at the luncheon table was Circuit
Judge Edward Tamm. He was there every day. Another person who, when he was on the
Circuit Court of Appeals, met with us very frequently was now retired Chief Justice
Warren Burger. When he was a member of the Court of Appeals I have vivid
recollections of many discussions, informal, that we had at the luncheon table when he
was present.
Q: Were these opportunities to meet and talk to Court of Appeals
judges on an informal basis? And was it beneficial to you as a trial judge?
A: Well, we tried very hard to make it a relaxed social occasion, rather
than a working business occasion, working business lunch. Of course, cases and
incidents involving cases would come up from time to time but most of us felt rather
strongly that it was much more important that we be able to relax and just get to know
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each other as individuals. And just discuss a variety of things that did not involve the
cases. We weren’t always successful. It was not our aim to do any more than provide a
place, that was convenient, where we could get a lunch and where we would have the
opportunity to get to know our own colleagues better as well as those in the Court of
Appeals who chose to have lunch with us.
Q: Again talking about your early years as a District Court judge, were
there, for lack of a better expression, certain rules of the game that you had to follow as a
freshman judge? Some do’s and don’t’s that you had to adhere to during these first few
years?
A: Well, there was a tradition for example, that the newest judge on
the Court was the secretary for the executive session. And would take and distribute the
executive session minutes. Because for a number of years, nobody was permitted to be at
those meetings except judges, unless there was a special person invited from the outside
who had some specific information. But in terms of our deliberation and discussion they
were completely within the members of the court. Until Judge Gesell came on the Court,
I was the secretary of the executive session for quite some time. And that meant, as I say,
taking the notes, having my own personal secretary type them up and see that they got
distributed properly. One other tradition that we had was that in the dining room during
the luncheon recesses when we were sitting around the table, the youngest, the newest
judge in terms of tenure was expected to see that everybody had his or her coffee.
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Q: Is that a practice that still exists?
A: It does not. But those were two things that one I guess was
administrative, the other was just a way they operated. A new judge was not expected to
have a whole lot to say but not excluded in participating in the meetings and discussions.
Seniority was king of the hill.
Q: How much time went by before you felt comfortable that you could
comment and contribute freely as an equal colleague?
A: I would say about two years. By that time I had gotten to know the
people. I had gotten to understand some of the things that were going on in the operation
of the court. I had been on the bench long enough to handle a fairly decent range of case
responsibility. Motions, assignments and that kind of thing.
Q: What do you recall as being the easiest thing and the hardest thing
to learn as a new District Court judge?
A: Well, I think the easiest thing for me was just to try a case. And
the most difficult, was to develop an understanding of what it took to set priorities. The
kind of work it took off the bench to get the cases lined up for trial, motions disposed of –
that kind of thing.
Q: You had worn judicial robes for a short period of time.
A: Yes.
Q: Did you find that a benefit?
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A: It was, yes, because, for example, I had handled juries so it was not
a new experience. I had dealt with lawyers in the courtroom setting so that was not a new
experience. It was a matter of embarking upon it in a different context, different kind of
cases, but it was a continuation of what I had had some opportunity to do in the Juvenile
Court.
Q: Do you recall the first time when you were reversed by the Court of
Appeals?
A: No, not the first time. There have been so many. No, I don’t.
Q: As a new judge did that concern you? Were you worried about
that?
A: No. Each court has its own responsibilities. No. I felt and still
feel that if that is your concern then you can’t get your work done.
Q: Do some District Court judges who do have that concern?
A: I suspect so by the way they react to reversal. Some of them go
apoplectic when they’re reversed. I never felt that that was necessary. I tried to learn
from every reversal that I got and see what the mistake was and try not to repeat it. They
have the right to, an obligation to review the cases. There have been times when they
reviewed my work and the case has gone on to the Supreme Court and the Supreme Court
has sustained my position. That’s happened I think twice during my tenure. That, of
course, is very satisfying.
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Q: During your first years on the bench, what size staff did you have
and how did you go about selecting your staff?
A: We had a secretary and a law clerk. That was it. In the courtroom,
the Clerk’s Office assigned us a courtroom deputy and the court reporters group assigned
us a court reporter, who spent most of his or her time just recording our work. My
secretary came with me from Juvenile Court. I had hired her when I was on that bench
and she came over here with me. And that was the complement we had when I came on
the court.
Q: What is your staff size today?
A: My staff size is one secretary, one law clerk, a clerk and a bailiff. I
do not use a court reporter except on unusual occasions because I use electronic recording
and have for several years in my courtroom. So, therefore, in addition to the courtroom
deputy who’s in the courtroom, I have an operator trained to operate the electronic
recording machine.
Q: So your staff size is about the same today as it was 25 years ago?
A: Yes. I am entitled now, of course as the Chief Judge to have
additional staff people. I have, in fact, a second secretary. But that second secretary I
have basically assigned as a secretary to my administrative assistant. So, in addition to
my Chamber staff, I have Mrs. Hall who is the Administrative Assistant. And my second
secretary is in fact her secretary. I use the second secretary as a substitute when my
secretary is unavailable for some reason. But that is the complement that we’ve had.
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Now the normal complement now for a District Judge is a secretary and two law clerks.
And if I chose not to have a clerk bailiff, I could have two law clerks. But I choose to
have a bailiff and the one law clerk.
Q: Judge, let me ask you some questions about the performance of
your duties as a District Court Judge. And as we go through these items if you could tell
me how they may have changed over the years. Can you describe for me briefly how you
see your job? What is your job? We know how it’s defined in the U.S. Code and what
we expect as lawyers, but from your perspective over the past 25 years, how do you see
your job and has it changed over the years?
A: I think the job of a United States District Court judge is to dispose
of the litigation for which he or she is responsible as fairly and expeditiously as is
reasonable, consistent with all the things that he or she is involved in.
Q: So is it solely a function of dispute resolution?
A: That is the whole idea of litigation. The court system exists
because people have problems. They either have problems with each other that they can’t
resolve; or, think they can’t resolve. Or they have problems with the government. That
basically is what it’s all about.
Q: So, you see it as resolving individual disputes as opposed to the
resolution of societal problems through the eyes of individual people?
A: Well, with the advent of or proliferation of class actions of course,
there are a lot of people who seize that as a vehicle for solving a myriad of problems that
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involve groups of people. Sometimes very large groups of people. But I don’t envision
the court system as existing for that purpose. I envision the court system basically as
solving the individual problems of people, businesses, institutions.
Q: Are you conscious of your role as a participant in either resolving
or deciding social, economic, political issues as well?
A: You only deal with them in the context of specific litigation. The
law is applied at a given time. We don’t reach out and ask people to bring us some social
problem we want to solve because we think we can do it.
Q: But when cases are brought to you that raise social, economic or
political questions, are you conscious of your role?
A: Oh, you have to be. Well the role is in resolving the problem. You
know that in the problem is an impact. In these areas you’re dealing with social problems
of individuals, or groups. You’re dealing with economic problems of an individual or
groups. You’re conscious of that because sometimes that’s why they instituted the
litigation. Most times that’s why they instituted the litigation. So you’re conscious of it.
Q: Is it hard for you to divorce your own personal economic, social or
political philosophies when deciding cases? We all know judges read the newspapers.
Judges watch the news. Do you have to be conscious of separating your personal feelings
from the cases that you decide?
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A: You have to be aware of what your feelings are and what your
positions are, yes. And in the particular situation, you have to; I believe that you have to
take concrete steps. You have to think very carefully about separating out what’s in the
litigation as over against what’s in your own mind and experience. But you can’t block
out what has been the totality of your experience. As a matter of fact, part of that
experience had gotten us on the court in the first place. Because absent some kind of a
background, there wouldn’t have been any qualifications for it. That was all in the
mixture. And it’s perfectly evident. Now, as courts change it’s very important.
Q: Do you think that the consideration of political, social or economic
philosophies has become more important in the judicial selection process? Or less
important?
A: I don’t know that it’s become more important. It’s just become
focused differently as to what the criteria are. I think it’s always been a consideration.
And a major consideration.
Q: For example, we’ve read reports during the past ten years of people
who were being considered for federal judgeships who were questioned about their social,
economic and political philosophies. The phrase that the press uses is “litmus test.”
When you came on the District Court, were you specifically asked questions about your
background?
– 73 –
A: No, not in that connection. Not about how I thought; well not my
political bent or any economic theories that I had or any social theories that I had. No, I
never was.
Q: Do you think that that’s a bad trend?
A: Oh, I certainly do.
Q: What do you think has caused that trend?
A: The trend has been caused because the proliferation of cases that
have been thrown into the federal system which has given the federal judicial system
more power to affect things going on in the country than it was ever anticipated that it
would have. And with the exercise of that power, it has become perfectly apparent to
many people that to change the direction in which that power is exercised means
changing the people who exercise the power.
Q: Again, going back to discussing your feelings about your job and
the role of the District Court judge, do you think that the job has changed over the past 25
years in any significant way from when you first came on the court? Is there something
that you are doing now that you did not do when you first came on the court? How has
the job changed over 25 years? And I don’t necessarily mean your role as Chief Judge
and the administrative duties that come with that; I want to stay with the issue of judging.
I’ll ask you some questions in awhile about your administrative functions. But just in the
role of judging, has it changed significantly over 25 years?
– 74 –
A: I think it has in the sense that when I first came on the court there
were a large number of cases in a pool and, through the Assignment Commissioner’s
Office you sat and waited until you got an assignment and then discharged it. In the early
stages of my tenure, I do not have a recollection if there was any serious consideration
given to the techniques that were available, or should be made available, to expedite,
accelerate, the disposition of the cases. I don’t think that there was nearly the present
emphasis. I have no sense that there was nearly the emphasis on judges controlling
litigation. As a matter of fact my recollections are very different. A considerable group
of my colleagues believe that it was not a judge’s function to get a case ready for trial.
That the case should be gotten ready by the lawyers involved in the case. And when they
said they were ready they would try the case or decide the motion. There was no effort,
as I can recall, to stimulate the lawyers into expediting matters. And being considerate
about the time that they were utilizing.
Q: But we have ten times the litigation now. Is it possible or is it
desirable to let lawyers continue to control the court’s docket with the increasing case
load?
A: Absolutely not. That was the tradition of the Bar and the tradition
of the court when I came on. Many of the judges who were on this court when I came on
the court came out of the leading law firms in the city; or came out of responsible
positions in the Department of Justice where they determined the pace at which things
moved. And that was the tradition of the practicing Bar. Obviously it was the press of
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the increasing case load; increasing litigation that began to focus the attention of lawyers
and of the judges on a new role and new responsibility that judges had to be willing to
assume. Namely, looking at court rules, looking at their own individual ways that they
handle their cases, and working with the lawyers to change the ways in which the Bar
operated. And early on we had judges who were also very active in the American Bar
Association. And through the Bar Association, the practicing Bar was beginning to get
interested in these things. And as a matter of fact one of the stalwarts of this court that I
didn’t mention before when I came on was William B. Jones who was very active in the
Bar Association – the American Bar Association. He was in the forefront when the
Judicial Administration Division of the American Bar Association was created. So they
began to focus the attention of lawyers and judges on case management and began to
focus to some extent on court management.
Q: Has the quality of lawyering changed over the past 25 years as you
see it from the bench?
A: It has in this court because we have a far greater number of lawyers
to deal with. Lawyers who meet the qualifications for membership of the Bar of this
court and who litigate here. We really have to think about it in two stages. When we first
came on the court of course we had not had the Court Reorganization Act of 1970 which
realigned the District Court vis a vis the then Court of General Sessions and constituted
the reorganization of the Superior Court in the District of Columbia. And we still were
– 76 –
responsible for probate. We still were responsible for conservatorships. And it wasn’t
until then that we got rid of divorce jurisdiction. And there was a lot of miscellaneous
things that were involved in that practice. And you saw a wide variety of lawyers. Many
of whom were not engaged in the kind of litigation that came along later. The criminal
cases, we had the felony jurisdiction of the common law crimes. And, of course, we had
then as we have now the problem as a court dealing with adequate representation of the
criminal defendants who could not afford to retain counsel. For a long period of time,
just through the Assignment Office of the court, just pick up the phone and call a lawyer
downtown and say you’re assigning him or her a criminal case. Mostly “him” because
there weren’t that many women lawyers practicing. And, certainly there were not that
many women lawyers who were doing criminal defense work. Then there came a time
when the Criminal Justice Act came along and that gave us the first opportunity to
structure and set up some rational system for the appointment of defense counsel in
criminal cases and allow for some compensation. Prior to that time when we were just
assigning lawyers to cases, what happened very frequently was you’d get assigned a
criminal case and then they’d keep a record of that and then if a probate matter came
along or conservatorship came along, or something like that, they would give you that so
out of that you could make a little bit of money to compensate for the fact that you had
donated your services in the criminal case. It went along like that for quite some time.
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Q: What do you as a trial judge look for from lawyers who appear
before you? What are the qualities of a good trial lawyer in your court?
A: First of all a good trial lawyer knows his or her case. They have
developed the facts. They marshall the evidence to sustain their theory of the case or their
theory of the prosecution or defense of a claim. They know courtroom procedure. Basic
courtroom procedure – which is the cart and which is the horse – which comes
first. A good trial lawyer has also the ability to understand people that he has to deal with
in the context of a particular case. First of all, a good trial lawyer ought to know
something about the judge before whom the case is being tried. What are the judge’s “no,
no’s,” idiosyncracies, level of patience, if you will. What is the judge’s judicial temper in
fact in a courtroom situation. How does it change? What makes it change? How can
you eliminate changes that adversely affect you and obviously your client? The second
thing a good trial lawyer knows is in a jury case he has some sense of understanding what
makes jurors tick; especially when they are randomly selected from a very diverse
population. How to be clear. How to be direct without being condescending. How to
walk that chalk line between establishing a record in the fashion that the trial judge
understands so that the application of the legal principles are made more easily and at the
same time, establish a record that the jury understands. The development of the case.
What you’re really contending. So a good trial judge is really a person who understands
people and knows how to deal with people in the context of adversarial litigation.
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Q: Good trial judge or good trial lawyer?
A: Trial lawyer. Also, a good trial lawyer knows how to be firm and
fair when it comes to dealing with his adversary.
Q: Now with all these qualities that you’ve just described, over the
years what percent of the trials that you’ve handled do you think reflect that kind of
lawyering?
A: About 40, I’d say.
Q: As a trial judge, what is more difficult for you to handle – a lawyer
who overtries a case or undertries a case?
A: I think the more difficult case is a lawyer who undertries in the
sense that you know by the way he or she is proceeding that either they are not prepared
or they are not marshalling the evidence to do justification to the client’s position. Yet,
there is very little you can do about it. You can’t be their mentor in the context of
litigation.
Q: You don’t feel compelled to play a more active role?
A: From time to time I would, I have felt compelled to do that.
Certainly in some of the criminal cases. And I have had occasion to bring lawyers to the
bench and make some suggestions to them, and make some suggestions that maybe they
need to take a recess and think about what they’re doing, what they haven’t done, what
they need to do. And if they think about it and come back and continue then there is
nothing I can do about that. There have been times when there, during the course of an
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examination of a witness, when I think that the lawyer is not focusing on what the
witness’ testimony really could bring to the case, I will ask first.
Q: In describing your beliefs as to the qualities of a good trial lawyer,
the word that certainly comes across to me is “preparation.”
A: Yes.
Q: Do you think that the pre-trial process as we have it now
adequately serves the function of preparing cases for trial and preparing lawyers for trial?
And, how has the pre-trial process changed over the past 25 years?
A: The pre-trial process has expanded greatly over the last 25 years
and has been more and more subject to the control of the court. Early pre-trial was left
pretty much up to the lawyers. They would start their discovery at the pace they
determined, or negotiated between themselves. And, as I indicated, for the most part we
just let them go. When they said they were ready we would deal with it.
– 80 –
TAPE III, Side 1
Oral History Project
Historical Society for the D.C. Circuit
C.J. Aubrey Robinson, Jr.
This is the continuation of the Oral History Interview with Chief Judge
Aubrey Robinson on January 20, 1992.
Q: Judge, to repeat, how has the pre-trial process changed over the
years and do you think the pre-trial process has improved the quality of civil trials in the
court?
A: Well, the pre-trial process has become much more complicated.
Much more under the control of the court. Both as a result of rule changes in the Federal
Rules of Procedure as well as local rules of court and the idiosyncracies of individual trial
judges driven by rising case loads. To say that pre-trial necessarily because it is involved
or extended would result in better trials I think is not borne out by the facts. Pre-trials that
are well thought out – that is, lawyers who think about what they need to do and do what
they need to do within reasonable limitations are in a position to try a better case than
lawyers who believe that they need to have discovery that is unending, when they have so
much material to deal with that they find it impossible to focus that material in a fashion
to really throw out the many many things that are not relevant – not helpful in the case –
even if they are technically relevant means that many times we get lawyers who have
done extended discovery but never focused it in a usable fashion. That enables the trier
of fact to understand what the case is all about and how the trier of fact is to approach it.
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And that’s especially true with jury cases. I have a feeling that many of these cases;
there’s such an overwhelming mass of evidence that is sought to be introduced – and
often is introduced – that is technically within the rules of evidence but introduced in
such volume and in such a fashion that very frequently the triers of the fact don’t have the
slightest idea as to how to deal with that.
Q: Well, in civil cases, do we have too much discovery today?
A: Yes, absolutely. Yes.
Q: What can we do to alleviate that problem?
A: Well I’m not so sure what we might do. I have to go back and
rethink what existed under the discovery rules when I first, when I was in practice and
when I first came on the bench. And, that is, there had to be some suggestion that the
discovery was relevant to the issues in the case. We threw out any irrelevancy with
respect to discovery. Now it’s everything you’ve got.
Q: What do you think has caused that trend?
A: One, when you have a deep pocket and it takes a long time there’s
compensation for it. There has been, until recently, little thought given to the expense
that is involved in discovery when that discovery has been undertaken in a blunderbuss
fashion. That’s one aspect of it. Another aspect of it is that so many lawyers are so
sensitive to malpractice actions and so sensitive to criticism from their colleagues; and
even from the court, that out of an abundance of caution they will over discover just as
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they over try a case. There are trial lawyers – in many areas – who are being made to
“run scared.”
Q: Do we have too many expert witnesses in civil litigation today?
A: There seems to be quite a concern about how many there are out
here and what it takes really to be an expert. And, if somebody has two or three
experiences in some area and has gone to college they seem to be able to qualify them as
experts. I suspect that you might say that there’s too many. But I don’t know what is
going to come of the concerns being expressed throughout the trial Bar about the number
of the various kinds of experts. We’ve always had a certain category of people who by
virtue of their training and experience we looked upon as being helpful in certain types of
litigation. But now you can get an expert on reading the daily newspaper.
Q: We’ve talked about possibly too many experts in civil trials and too
much discovery. To what extent, if any, do you think the bench has contributed to that
trend or is the bench really trying to respond to that trend?
A: I think the bench has gone along with what the lawyers thought that
they wanted as the changes were made in the rules of procedure. The American Bar
Association in particular is a powerful influence on what happens with procedures,
especially in the federal courts. And, as the trends develop judges will respond to them.
And there again, judges bring their own trial experience with them in the court. Some of
them have the trial experience, training in trial preparation. Extensive discovery was just
– 83 –
par for the course. That’s the way their firms operated. That’s the way as individual
practitioners they operated. So I don’t think the bench – at least the federal bench – is
ever in a position of real leadership as to what happens. They’re responding to the
pressures of the hundreds of thousands of lawyers and, of course, the people on the Hill,
many of them are lawyers. And the pressures of their constituencies as they grapple with
laws and rule changes. But, we tend, by the very nature of what we do, to be responsive.
We don’t seek out litigation or litigants. We respond to what is brought to us. And I
think the same thing is true with respect to how cases are prepared and how they’re tried.
We respond to changes. And then there’s been a revolutionary approach to legal
education. And the advent of the clinics. And the advent of trial practice courses. And
the advent of focusing more and more law graduates on the litigation of cases as soon as
they can get out of law school. We just have an entirely different attitude on the part of
the broad legal profession.
Q: Do you think it is desirable or necessary for a District Court judge
to have been a trial lawyer?
A: I would almost have to say not necessary but it certainly is
desirable. I think some experience, understanding of what goes on on the other side of
the bench is crucial, to a good trial judge.
Q: Equally so, do you think it is desirable or necessary for an
Appellate Court judge to have been a District Court judge?
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A: Highly desirable. I’ve known some who presumably have made
out fairly well without District Court experience. But, it is highly desirable. Principally
because what the appellate judge has to work with is a whole record. And in my
judgment, there can be no real understanding of that record merely by reading the printed
word. Assuming the accuracy of the printed word, the context in which the testimony
develops, the context in which the ruling was made, the whole, the landscape of that case
is important. I think a good appellate judge has to be able to conjure up image mentally
to have a real understanding of the impact of a ruling. For example, as to whether or not
it’s over the line. Whether it is in fact reversible error. Whether there has been a rational
exercise in discretion, where that discretion is left to the trial judge.
Q: Have there been times in your career when you have been reviewed
by the Court of Appeals and you have felt after reading the Appellate Court decision that
the Appellate judges did not have a real appreciation of your role and function?
A: I have felt that, yes, on occasion. But never to the point that I
didn’t have some understanding of how they arrived at their conclusion. What I have
been saying is that I don’t think the conclusion would have been the same with respect to
some panels if there had been a realistic appraisal based on some experience as to what
goes on in a trial in court. But don’t forget we’ve had any number of appellate judges who
have had trial experiences, District Court judges, and who were very good trial lawyers
– 85 –
before they ever came on the bench. I think that that is a progression. It is very healthy. I
think it adds a lot more to each bench to have experience as a trial lawyer before you
become a trial judge; and experience as a trial judge before you become a Circuit judge.
Q: What is your approach to trying a case? How do you prepare for
trial and do you try and read as much of the record that you have, the pre-trial record
before you? Conversely, do you prefer to go in a trial cold, so that you can see how much
you learn about the case from the lawyers? Is there a particular approach that you take to
preparing for trial?
A: Every case that has been assigned to me, and every motion that is
assigned to me; I read everything in my file before I ever go into the courtroom.
Q: Do you think that is the practice of most or all of your colleagues?
A: I have no way of knowing. I just don’t know. For me that’s the
only way that I can; one, intelligently spend the time of the lawyers if it’s a motion where
I can focus on what I need to focus on in terms of questioning and where I can really hear
them articulate their views of the laws as applied to what they contend are the facts.
That’s my approach to motions. The same is true with the trial of a case. I don’t see how
I can really make the kinds of instantaneous rulings that have to be made on evidence, for
example, without understanding the context in which a witness’ testimony is offered.
And how relevant it is to what I understand to be the principal issues that are going to
have to be presented to a jury. So my own practice has been never go in cold on
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anything. I hold my own pre-trials, for the most part. Rarely have I ever let somebody
pre-trial a case. I read every complaint, every answer, every motion, every response to a
motion and every reply to every case for which I am responsible. I read the memoranda
just like the law clerks do.
Q: Do you find pleadings and papers more or less helpful to you in
making decisions?
A: What, the memoranda of law?
Q: The quality of the papers from lawyers.
A: Many of them. Most of it is very helpful, very good. That’s
especially true with the better lawyers because they don’t waste time with junk. They
focus. Some of the best memoranda of law I’ve ever had have only been ten or fifteen
pages long. These are how they are applied to the situation we have. That’s what I try to
instill in my law clerks; is if they write memos to me don’t write a whole lot. Tell me
what; outline what the facts are, what the legal issue is, what is the law that applies to
that. And most of the bench memos that I get from my law clerks are relatively brief.
Q: We’ve been hearing quite a bit lately of the criticism of the jury
system. For example, some commentators say the modern day jury is not able to
comprehend some of the complex litigation that we have in our courts. Others criticize
the jury process for injecting too much emotion into a case and jurors are not able to
follow instructions from the trial judge and decide cases based on the law. During your
– 87 –
experience on the bench, what has been your perception of the jury process? And how
good or bad has it worked in the cases that you have tried?
A: By and large it’s worked well. But I have had the distinct
impression from time to time that the jury did not understand basically what the case was
all about.
Q: Is that the fault of the lawyers or you as the trial judge?
A: I guess it’s a combination. I guess it’s a combination. If you are
willing to take on the lawyers you can focus it for them. If you hope that the lawyers do it
and you try to guide them and let them do it you’re more apt to run into a situation in
which you don’t feel confident that a jury understands what is going on. Then sometimes
it depends upon the jury. Juries differ widely. And there are cases that have an emotional
appeal that it’s very difficult for the lawyers to overcome as that case is being presented.
Q: Can you think of cases that you’ve tried over the past 25 years
where the jury has reached, in your opinion, an incorrect result?
A: Yes. Yes.
Q: How compelled or constrained are you as the trial judge to act on
that?
A: I am not constrained to act on it. I act on it and put it to the
appellate court. It’s difficult sometimes, I have directed verdicts; I’ve set aside verdicts
that I’ve thought the evidence was enough to go to the jury and I thought my instructions
were proper; hoping that the jury would follow them rather closely. Surprisingly enough
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there are a number of instances in which that happens. Where the jury came down where
I thought they ought to come down.
Q: Have you had cases where you think the jury is simply incapable of
understanding the complexity of the case and that it would be inappropriate to decide that
particular dispute with a jury?
A: I can’t think of any at the moment. I’m not saying that there might
not be some. I haven’t focused on that. No, I can’t think of any. I’ve had some cases that
I was glad that we didn’t have to go to a jury.
Q: Because of the complexity of the case?
A: Oh, yes.
Q: What has been your practice in instructing juries? Do you permit
them to take notes? Do you tape record your instructions and give the tape to the jury?
Do you print your instructions and give them a copy of the instructions?
A: My practice has been to give them orally. And except when we
had condemnation jurisdiction, I have never had a jury to take notes. Although there have
been times when I’ve had jurors request to take notes. But I never thought that it was
necessary for jurors to take notes. All the evidence relative to the case – the physical
evidence – they’re going to be able to sit down and talk about in their deliberation. I’m
not so sure that there are enough people on the average jury who could take accurate
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notes that would not make one or two of them substitute court reporters so they thought.
Q: In the same vein, do you think lawyers and doctors should be
excluded from jury panels for fear that they will dominate or control a jury?
A: No. It depends upon what kind of case it is. We’ve had lawyers
serve fairly frequently. I’ve not had a feeling that happens; I have had no sense from
anything that I know about the deliberations – and I know very little – but there’s been no
suggestion that they walked in and dominated. Many of the lawyers are lawyers by
profession but they’re not trial lawyers. They may be tax lawyers. You know there may
be lawyers who don’t practice law, but they have the ability to utilize their training and
understand the law. If they attempted to dominate, I suspect on the present day juries,
some of those jurors would take care of them very quickly. I just have that feeling.
Although there again, it’s no way that I can tell because I’ve never sat in on a jury.
Q: Getting back to the issue of instructions. Some commentators have
said that the whole problem today with the jury trial process is that we expect jurors to
understand and follow the court’s instructions when they hear it one time when the
lawyers might fight for days over what the instructions should say. Do you think we need
a new look at the whole issue of jury instructions and how to deal with jury instructions?
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A: I have on occasion given a jury written copies of my instructions if
I thought it was a complicated issue of law, yes. I think you can’t expect something that’s
out of their realm completely. So with the word processors being what they are you can
give them a copy of your instructions. Although many times I don’t give them a copy of
what we call boilerplate stuff. Just a copy of those portions of the instructions that have
to do with definitions of the legal principles that they have to apply. I have never given a
jury a tape recording of my instructions. If they know that all they have to do is wait and
sooner or later there is going to be something all laid out for them in writing, I don’t know
what will focus their attention on the oral instructions. And I don’t read instructions, as
such, as much as try to give the instructions in a fashion for them to understand. Many of
my instructions, especially when I get technical things the Court of Appeals has said have
to be worded in a certain way, I just paraphrase, rephrase. I try to be fairly
extemporaneous without being inaccurate. It’s a theory that I have. Of course, it’s much
easier to do in a routine criminal case than it is in some civil cases. Although in a routine
civil case it’s not difficult to just sit and look the jury in the eye, have an outline of your
instructions, sit there and explain what the law is and what are the areas of testimony that
they have to focus on, the issues that they have to resolve. More and more, in both
criminal and civil cases, I have written verdicts. And the form of the verdict depends
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upon the kind of case that I have. But more and more I give them written verdicts so that
they will approach a verdict step-by-step; where there are multiple parties for example . I
try to set out the verdict form so they will focus on what comes first. Where they have to
go, depending on how they answer the first question and then how next to proceed.
Q: When you first came on the bench federal juries were composed of
twelve people.
A: That is the civil jury.
Q: Correct. And, of course, now we have six. Do you think that was
a good change? As a trial judge do you prefer to have six or twelve?
A: Well I prefer to have six.
Q: Why is that?
A: Six people are easier to deal with than twelve. I don’t think it takes
twelve people to decide a malpractice action. I don’t think we need twelve people on a
criminal jury except constitutionally it’s required. I don’t think it takes twelve people.
That’s just some number that has been used historically. I’ve seen no verdict from a six
person jury that I thought would have been any different if we would have twelve or
fifteen or twenty people. I think six people can sit and discuss the evidence rationally. I
think they can, I don’t know. Then this is the question of logistics. When we have
nineteen or twenty judges on the trial court, and get six, seven or eight of them starting a
trial on the same day, to just get the number of jurors you need, logistically, begins to
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create problems. I think we can reduce that with civil juries that I see – of six – are just
as good as twelve.
Q: Well, that raises a question that I know some lawyers have raised
and that is that in the modern world we are tailoring our judicial system to respond to
administrative problems. And, that we are losing the ability to dispense justice because
of that. To what extent do you think that is the case? Does that criticism come from
within the bench as well?
A: Oh, yes. But when you say dispense justice it depends on how you
define justice.
Q: Let me give an example. Some lawyers will say that a jury of
twelve brings approximately 150 years of collective judgment and experience to a case as
opposed to a jury of six – which would bring half that amount – and that the whole
purpose of the jury system is to encourage and permit a group of citizens to make
judgments in cases instead of leaving that power to some government or judicial
authority. Isn’t that an example of the traditional system of justice bending to
contemporary administrative problems and that a movement to juries of six in civil cases
has removed the benefit that the jury process brings to civil litigation?
A: Well I don’t think so because I don’t think the assumption is a valid
one to start with. Namely, it’s 120 years of experience. You have no way of knowing
what that experience is like when you look at the pool from which you draw juries.
You’re making an assumption. But that’s a philosophical argument. The fact of the
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matter is with 250,000,000 people in this country we have to accommodate through a
judicial system that wasn’t established to deal with 250,000,000 people. Something has
got to give.
Q: Let me ask you some questions about some of the cases you’ve
tried in your career. Do you have a present recollection of your most difficult cases over
the years? And, can you tell us something about those cases? I’ll let you define what
difficult means. Hardest to decide. Most difficult to try from a judicial or administrative
perspective. Most difficult decision that you had to reach. However you want to define
difficult. What have been some of the most difficult cases you’ve had over the years?
A: One case that I found difficult because it was so protracted and
because it required some unusual security arrangements was that involving a criminal
narcotics conspiracy in which some of the defendants were New York members of the
Mafia charged along with one or more of the drug kingpins of the District of Columbia.
And that was my first major criminal case. And it was difficult because of the number of
charges that were involved. The number of defendants. We tried ten people at one time.
Some of whom had two lawyers. One of the defendants had been convicted in federal
court with jury tampering several years before the trial of this case. We had sequestered
juries. We had to utilize the ceremonial courtroom because there were so many lawyers
and defendants that I needed the room. And keeping all of that going for an extended
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period of time was quite an experience. One other case that I found particularly difficult.
One because of the number of defendants involved and the number of charges to the
indictment was the so-called Black Hebrew case. Which again was a protracted case with
a sequestered jury. What made the case most difficult for me, aside from the number of
counsel involved, and the number of defendants and the number of witnesses, was the
fact that midway through the trial the defendants all discharged their lawyers and went
pro se. That created quite a problem. And adjusting to that change; having the jury
adjust to it and trying to keep control on the actions of the pro se defendants in such a
fashion that I did not unduly prejudice either the government’s case or their case was an
interesting experience. Along that same line another very difficult case, although it
involved just a relevantly small number of charges was the case of a defendant who was
tried for stealing valued manuscripts and documents from the Library of Congress and
from Archives; who had been convicted in Massachusetts for theft of manuscripts and
artworks; and he too retained counsel then dismissed counsel. And midway through the
trial insisted upon representing himself. And he was one of the most difficult people in
the courtroom that I’ve ever had.
Q: Disruptive you mean?
A: Yes, he was disruptive because he obeyed no instruction as to how
he could conduct the case that he was giving. Even though I required his dismissed
counsel to sit there and be his advisor if he needed advice with respect to procedure and
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law. But he was and is an articulate egomaniac. It was just an extremely difficult case.
Q: What are your recollections of the Watergate years? This
courthouse and this court played a significant role in that historical event. What are your
recollections of those years?
A: My recollections of the Watergate years is that there was a lot of
activity around here but I was involved in very little of it. Judge Sirica was in charge. He
determined that he was going to try the principle cases. Or it was his idea, and obviously
the idea of some of the others that the general business of the court had to go on and there
would be just a few judges involved in the Watergate business. So I did not have any real
involvement in any of that. Except that we used to talk about it all the time at the
luncheon table. About all of the things that were going on. Read about it in the
newspapers. Saw the people coming in and out.
Q: What were some of the concerns expressed by your colleagues
about Watergate and those years?
A: I guess one of the biggest concerns they had was how can you try
those cases with the Press being all over the place. It was a fair trial problem many of
them were concerned about because the newspapers; well all the media were very much
interested in everything that went on; and the presence of the media and that kind of
business was a matter of concern that we talked about.
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Q: Of course, one of the things that Watergate dealt with was a very
distinct clash between the judicial branch and the executive branch of government. Did
you and your colleagues as members of the judicial branch feel that strain and was it a
conscious factor in how decisions were made in this courthouse?
A: I suspect it was. We probably discussed it. I have no specific
recollection of any – we did not have any formal conferences about it. The cases were
individually assigned. But I do know that the judges to whom the cases were assigned
consulted with each other and, yes there was a full awareness of the tensions between the
executive branch and the judicial branch arising out of the very nature of the litigation.
But there was also no hesitancy on the part of any of the judges to shirk their
responsibility of dealing with it. We had ideas individually, I guess; they may have
differed from the judges to whom the case was assigned but it was like any other opinion
you have with what’s going on.
Q: You mentioned that one of the concerns was how to deal with the
press during Watergate. Your position on cameras in the courtroom is well known. Do
you think the court and the country at large would have been better served if the
Watergate proceedings had been televised?
A: I think so.
Q: Why do you think there is still such resistance in the judiciary to
cameras in the courtroom?
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A: Because of mistrial. Because the court has no control over what is
televised; how much of it is televised; has no control over the editorializing and the TV
media has a much greater impact on people’s minds than do newspapers. Now
newspapers don’t print everything that goes on in the court. They interpret witnesses
testimony or if ill-quoted in their stories. But that impact nationwide doesn’t begin to
match the impact of televising portions of the trial, select portions. Like a documentary,
for example, which can be accurate or it can be so “hoked” up that you don’t know what’s
really going on. I think that’s the thing that bothers the average trial judge. And with the
amount of litigation that’s going on there’s no way that we could expect extensive
coverage. Certainly you’re not going to get commercial people to invest their money in
televising these things. Secondly, the public television stations – the length of some of
these trials – it’s impossible. So, you’re only going to get the sensational Smith-type
legislation or this Leggett thing that’s going on over here in Montgomery County. Well
we can’t do anything about it in the state system. That’s what they want, that’s what they
get. But in the federal system we don’t think that we’re ready for that. Who’s going to
decide on any given day how much of the CNN news ought to be focused on a case in
New York or California or Florida where they’re trying mega narcotics cases. The
Eastern District of New York. Okay, what do you flip to? New York, you give ’em 3
minutes, 10 minutes; then you switch down to Florida – 5 minutes; California up to
Chicago here to Washington. I don’t know. And, then our courtrooms are not equipped
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to pay for all this. And a lot of judges just don’t, they had no expectation, anticipation of
it. No warning, should I say? A lot of lawyers the same.
Q: Would you approach your job as a trial judge differently if your
trials were being televised?
A: Oh, I suspect I would. Although I can’t say because I’ve never had
a televised trial. But I know just being in front of a camera that you go before a camera
your tie has got to be such a way, right shirt on, and you have to give an appearance of X,
Y or Z. I can’t think of anybody who wouldn’t react a little differently. No, you’d
probably get used to it and after a while, you know, wouldn’t pay any attention to it.
Q: As a judge on this court for 25 years you have come to know and
work with many U.S. Attorneys. What should be the relationship between the court and
the Office of the U.S. Attorney? And has it changed over the years since you’ve been on
the bench?
A: Well it has changed since I’ve been on the bench because it was
always, I thought, an easy going relationship. In other words, the U.S. Attorneys that I
was familiar with when I first came on the court – first of all they were in the building –
the U.S. Attorney’s Office was right here. From the U.S. Attorney on down, all the
assistants were right here. They took up a considerable portion of the building itself.
And I guess that made for more frequent contact.
Q: For the better, you’re suggesting?
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A: Not necessarily for the better, except that I guess if you see people
and have a chance to have contact you have a better understanding of what kind of people
they are. Maybe in that sense, yes.
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TAPE III, Side 2
Oral History Project
Historical Society for the D.C. Circuit
C.J. Aubrey Robinson, Jr.
And if there were policy decisions that were made, the executive branch makes its own
policy decision as does the judicial. The role of the United States Attorney with respect
to decisions made in his office and by the Department of Justice is one of interpreting
where they’re going and how they want to work to discharge their responsibility. I think
the thing that has happened is that more recently it’s become a combative thing where this
grim determination that there’s only one way and that’s the way it’s going to be done and
not much effort to consider the long haul or the real impact of the procedure. One thing
of course that has made a difference on this court is that we have several former U.S.
Attorneys who are members of the court. There has always been somebody who came
out of the U.S. Attorney’s Office and if they weren’t the United States Attorney they were
some of his better assistants. So over the years there has been an understanding of the
job, having been in the office. So far as I know I don’t have any recollection of there
being any conflict as such until fairly recently.
Q: Has the quality of lawyering by the Assistant U.S. Attorneys
improved over the years?
A: When the Office of the United States Attorney was able to
maintain a cadre of experienced lawyers I think it was at its peak. By that I mean these
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were not assistants who were there just for the minimum 3 years requirement; but those
who had some view of making a career in the prosecutor’s office. That has changed and
we don’t have very many people that I view as career types. So that means that there have
been a large number of well trained, that is they were well schooled in law school, people
in the U.S. Attorney’s Office who work hard but just have for the most part not
accumulated the experience that begins to compare with a seasoned veteran that some of
us dealt with for years in that Office. But intellectually they’re all very capable. They’re
all very hard working and rarely do I hear adverse comments. I’ve not run into an
Assistant U.S. Attorney that I’ve thought was inept or just had no business discharging
that responsibility. For a variety of reasons they have to switch around and sometimes
they’re not as well prepared as one would want them to be, but that’s an exception rather
than the rule.
Q: During your tenure on the court the Federal Public Defender’s
Office was created. Do you think that that Office has improved the quality of
representation of criminal defendants in your court and do you think it has changed the
level of criminal justice that is dispensed by the U.S. District Court?
A: I think it has. I think it has had a significant impact on the way that
the criminal justice attorney, that is the attorneys on the criminal justice list, practice in
defense of their clients. That office itself has some extremely capable people and the
quality of their work, I have found to be very good. They have operated the way that any
good, private defense firm would operate. And with rare exception they’re on a par with
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the average privately retained defense lawyer from any of the major law firms. Now of
course we do have privately retained defense lawyers who, for a variety of reasons, are
good but I think the court has benefitted; I think the community has benefitted. I think
that the people they represent have been well represented and the tensions that exist
between a court and a good criminal defense Bar are healthy tensions. They will litigate
what some judges would rather not have litigated. They have no hesitation to appeal
things as they think they need an appellate determination in light of what’s going on in the
Court of Appeals, in light of what is happening with the sentencing format and they are
positioned to do just that.
Q: You came on the court in 1966, which was the year Miranda v.
Arizona was decided. In your 25 years as a trial judge what criminal trial decisions from
the Supreme Court have most affected the criminal justice process in this courthouse?
A: I don’t know that there’s any one. But, the whole area of search and
seizure I think as the court has worked through that has had the greatest impact on
criminal procedures – and that as you well know has gone up and down. It looks like it
continues in the direction it’s going, anything goes.
Q: On that point, has there been too much of a seesaw approach to
how the criminal justice system works during your tenure on the bench?
A: I don’t know that one can say too much. But that’s the way life is
structured. Life never runs on a smooth, even pace. Anything – there are ups and downs,
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and cycles and especially when you’re dealing with changing economics, changing social
problems, changing populations, changing institutions. So there’s going to be ups and
downs. As you look back over the history of our federal judicial system it has been the
same way.
Q: But if the foundation of the judicial process is stability, do you
think we’ve had stability in the last 25 years?
A: Who says it’s stability? I disagree with your premise that the
foundation is stability. If we had stability who’s going to stabilize it at what level and
maintain it there? We had stability with Plessy v. Ferguson for example. It wasn’t any
question about it but there are changes. You can stabilize things. You can draw hard
lines and you can maintain armies to keep those lines. But that’s not what it’s all about.
How can you stabilize anything as vast as the application of a law to the problems that are
multiplying with 250,000,000 people when you have as many ingenious lawyers out here
as we have? If law was a stable thing one wouldn’t even have to go to a first rate law
school, you could go to a trade school.
Q: Well, your answer leads me to my next question, which is whether
society is moving so fast in today’s world that the law can’t keep pace?
A: Law never did keep up with society. There has always been a lag.
And there has to be a lag. It’s built in to be a lag. Now I’m talking about law as judges
made law. And even in the legislatures in the country. The legislatures are never out in
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front. Always lagging behind. They’ve got to get the feel, a consensus. They’ve got to
protect their own sinecures.
Q: Do you think the gap is widening?
A: Between what and what?
Q: Between modern techno-society and the ability of the law either
through the legislatures or through the courts to keep up with society.
A: I don’t know whether the gap is widening. I suspect it may be. But
I don’t know.
Q: Do you remember the date that you became Chief Judge of this
court?
A: I don’t remember the exact date.
Q: Spring of 1982?
A: Yes.
Q: How has the role of the Chief Judge of this court changed over the
years?
A: Well I think that the role has always related itself directly to the
personality of the Chief Judge. And what a particular Chief Judge did was more
dependent upon that judge’s view of the role of a Chief Judge. And we’ve had some who
felt that it was more than a passive role and was a leadership role. And we have had
others who thought there was not the need nor the desirability for a Chief Judge to
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involve himself in many of the things that go on in the operation of the court. It should
be done by staff people. Possibly delegated to other judges. Or, not done at all.
Q: How do you regard the role?
A: I feel the role has an active leadership responsibility.
Q: If you could cite one thing that you would have done differently as
Chief Judge, looking back now over the past 10 years, what would the one thing be?
A: I would have undertaken to restructure the relationship between the
court reporters and the court.
Q: How so?
A: The court reporters have operated in this court fairly independently
of the usual scheme of management, independent of the Clerk’s Office. They have been
responsible only to the judges of the court through their organization of court reporters. I
would have, I think, on reflection taken more decisive steps to bring that whole operation
under the control of one of the paid staff of the court.
Q: Chief Justice Warren once said that the Chief Justice is first among
equals on the Supreme Court. Is that true for the Chief Judge of this court as well?
A: Oh yes. There’s no authority that I have that’s any greater than the
authority of any other judge. Except as in some areas they delegate to me; or have
delegated in the past. There’s nothing that lays out any more authority for a Chief Judge.
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Q: In looking back over your 10 years of experience as Chief Judge,
are there certain areas where you wish you had more authority to deal with your
colleagues? What would those areas be?
A: No, I don’t think that I need any more authority because even if you
have legal authority or authority that’s mandated by some controlling structure you can’t
really exercise it except by your ability to deal with the people over whom it’s to be
exercised. So that I don’t think that I needed any more authority. I think it would have
created unnecessary tensions; it would have isolated me in a fashion that would not have
been healthy. So that having to understand where the various members of the court,
whether support staff, are coming from, what their problems are and having to position
yourself at all times to keep informed and discuss and persuade I think is a healthy
exercise.
Q: You just used a word that I was going to ask you about. Do you
feel that you have been isolated as Chief Judge from your colleagues and from the judicial
process?
A: No, because I’ve been here. I’m here. By here I mean the
courthouse. I have frequent contact either by telephone or in person with most of the
members of the bench. I eat lunch with them almost every day. Work with them. No I
don’t feel isolated. I’m as isolated as I want to be on a given day if I’ve got too much to
do. They will come in. My colleagues will call or drop by. I don’t feel isolated – any
more isolated than any trial judge feels isolated.
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Q: Judge, there’s one area I do want to ask you about and that is the
increasing role that women have played in the legal profession in this city and in litigating
before this court. When you first came on the bench there were not many women
litigating cases in this court. And I believe there had been only one woman who was a
member of this court.
A: Burnita Shelton Matthews.
Q: Correct. How has all that changed over the years and what impact
do you think that growth of women in the law has made on the judicial process and your
colleagues?
A: Well, it didn’t happen suddenly. It was a gradual increase. As the
law schools began admitting more women and graduating more women. More and more
women seemed to be attracted to the law so that they could not be ignored. And not only
were they attracted to the law but more and more women were gaining positions of
prominence and activity in organized bars. And, more and more were being appointed to
the bench. This court is a different place because Judge Matthews was succeeded by the
two judges Green and Norma Holloway Johnson. Women bring a totality of an
experience that’s different in some respects than men’s experience, generally. And,
certainly certain types of men. It takes all of that leveling, I think, to assist the males on
the bench to really understand part of society that’s out here. And what their view is and
how they react to things that sometimes men never think of the way that women think of.
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Q: Do you think the approach to trying cases has changed with the
increase of women litigating cases?
A: Because of women? No, I don’t think so. Women litigate just like
men. Some are good some are bad. Some men are good some are bad, depending upon
their training and their particular skills. I don’t think that we’ve accommodated ourselves
to anything but getting used to the idea. Now I can remember very vividly that we had a
lot of chauvinistic attitudes on this court – even in the support staff – about the “place of
women” and fun was made of women who were lawyers. If they happened to come up
short they came up short because they were a woman not because they just were up short.
But then more and more of the very able lawyers who came to court were women. And
more and more you see when you sit around and have informal discussions about the
shortcomings of people you can focus people’s attention beyond their race, beyond their
sex and talk about it in terms of their performance. And more and more you can discuss
why it is, or why you think it may be that they’re very good, average, come up short. But
we tend to, everybody does, generalize you know out of one or two experiences. Just like
the hiring of law clerks. It was unheard of when I came on the court for there to be
woman law clerks. They didn’t get the applications so they weren’t in the schools.
Women began to be hired as law clerks here because obviously Judges Green and Green
are going to reach out and try to make up for the fact that women have not been here, and
Judge Johnson. But I don’t think that any of them have said they will, no they don’t. You
look back over who they’ve hired over the years – men, women, black, white – but that’s
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only because the pool has gotten to the point now to include women. No, they measure
up; they pull their oar. But the biggest problem that we have basically male/female is that
the residue of chauvinism that exists and that is a direct correlation of the age of some of
us.
Q: And you believe some of that still exists?
A: I know it still exists. I know it. Just like racism still exists. For
the same reason. Just some of us who don’t outgrow some things and never will.
Q: This city has had its fair share if not abundance of notable and
famous trial lawyers. Can you share with us your recollections of some of the more
famous trial lawyers who have appeared before you over the years?
A: I think one of the best grown defense lawyers who has appeared
before me when he was in his heyday before he got into difficulty was John Shorter.
When it comes to having some of those things I talked about – the ability to zero in on
what was important, the ability to relate to a jury, be able to sympathize and to know his
case. John Shorter I think was one of the best. Nothing flamboyant about him. It was
unfortunate that he was ultimately disbarred. But in terms of ability he will always stick
in my mind as being a very good defense lawyer. I remember very clearly the ability of
Shorter – and hooked up with Albert Krieger. Albert Krieger is now representing
John Gotti in the Eastern District of New York in a multi-count conspiracy involving
organized crime. Al Krieger has specialized in organized crime cases for 25 or 30 years
but he was a fantastic lawyer. Hard fighting. But he impressed me as knowing exactly
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what he was doing and never out of place. He gave his client everything that his client
was entitled to. He knew the law. The two of them were representing different
defendants in a case. He came to me later on and said John Shorter was as fine a defense
lawyer as he ever worked with.
Q: Let me mention some names if I can and tell me if you have
specific recollections of these people. William Bittman?
A: Yes, Bittman has appeared. I have some recollection but not a
clear one. I don’t remember trying any cases with him. Bittman was in the Justice
Department wasn’t he, and then in the U.S. Attorney’s Office? Or am I thinking of
someone else?
Q: I think he was largely in private practice.
A: Well, no, then I don’t have a recollection.
Q: How about Lloyd Cutler?
A: Lloyd Cutler has appeared before me from time to time. He never
tried any cases but he has argued before me. Well, he is obviously a very good lawyer. I
don’t remember the specific instances and I suspect that it has been within the last 10
years. But he’s just a very suave, smooth “lawyer’s” lawyer.
Q: Jake Stein?
A: Oh, yes. Jake’s a good lawyer. I can’t remember how many cases
Jake may have tried before me. But I know that he’s appeared before me over the years.
Always knew his case well. He was a good lawyer.
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Q: Edward Bennett Williams?
A: I don’t remember Edward Bennett ever being before me. He may
have been on some motions. I know I never tried any of his cases.
Q: Earl Silbert?
A: Oh, yes. I knew him when he was the United States Attorney, of
course. He did some arguing of matters. Earl is quiet, intelligent and he never gets
offbase and my experience with him is that he zeros right in on what has to be done. I’ve
always had a very good impression of his legal ability and my relationships with him have
always been very pleasant, very easy going.
Q: How about Joe Rauh?
A: Joe, I think, back in the early years when I was on the bench Joe
may have argued some motions before me. I don’t remember trying any cases in which he
was the lawyer. Joe is, you know, talk, talk, talk; a lot of – he’s a good lawyer – he can
aggravate you at times because he’s so persistent. Saying the same thing two or three
different times. But I’ve known Joe before I went on this bench. Local political figure.
Q: Judge can you think of any cases that you have decided during your
career that you think will have more lasting impact than other cases?
A: Yes, I think one case is this, it’s already had as far as the District of
Columbia’s concerned and that is the case involving St. Elizabeth’s Hospital.
Q: Do you remember the name of that case?
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A: It’s now called Dixon v. Sullivan – it’s a class action involving the
hospitalization of mentally ill. I principally decided that we couldn’t warehouse people
because of mental illness. They were entitled to the greatest amount of freedom
consistent with what was determined to be their mental ability. Now that has had a
tremendous impact because of what it would take to implement that decision. Congress
determined to give the St. Elizabeth’s Hospital to the District of Columbia government
and the District of Columbia government I think appropriated money to do it and review
all the patients’ status – the status of all patients at St. Elizabeth’s – and providing for care
in the community or the kind of facility that the various kinds of patients needed. That
community network has never been constructed. We’ve been working with it since 1974
or ‘5.
Q: Are there other cases you can think of that you have handled that
you believe had a lasting impact on society?
A: Yes. I think that Laffey v. Northwest Airlines case did just that
because that was one of the early sex discrimination cases. And it changed a whole
pattern of hiring and promotion in the airline industry once it was determined that they
were treating those stewardesses one way and men that were doing the same damned
thing another way; for no reason other than the fact that they were men and women. And
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I think that had quite an impact on the whole hiring process. Another case similar to that
was a case that we had with the Drug Enforcement Administration, which involved racial
discrimination against black agents.
Q: Do you remember the name of that case?
A: Yes. There was another very interesting case that I tried. United
States v. Kember, et al, in which the Church of Scientology and some of the top people in
the Church of Scientology were charged and convicted of stealing government documents
out of this courthouse and out of the Department of Justice. It was a very interesting
piece of litigation. The case that I was talking about was Segar, involving the Drug
Enforcement Administration. That was back in 1974. And of course the case that I find
extremely interesting was the Korean Airline case where the Russians shot down that
Korean Airline plane that invaded their Soviet airspace and killed 269 people.
Q: What was the issue before you in that case?
A: The issue before me on that case was liability. Who was
responsible for the shootdown. It was a private action and these plaintiffs all over the
country had sued everybody. They sued the U.S. government, they sued the Boeing air
people, they sued the people who made the guidance system, they sued Korean Airlines. I
disposed of the government as a defendant. Disposed of Boeing. Disposed of the
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Litton Industries who made the guidance system and disposed of – what did I say,
government?
Q: You said government, Boeing, Litton.
A: And that left KAL. And the suit against KAL was tried. We took
just the issue of liability. And that went to the Supreme Court. Our Court of Appeals
sustained the liability issue under the Warsaw Pact which had to do with international
aircraft liability. I put to the jury the question of punitive damages. The defendant KAL
appealed and there was a cross-appeal because of something that the plaintiffs wanted me
to do that I refused to do. Our Court of Appeals sustained the liability issue as to the
Korean Airline and reversed the issue of punitive damages. It then went to the Supreme
Court and the Supreme Court denied cert. So those cases are in the process of being
transferred back to the district from which they came because it was a multidistrict case
that I received because there were 32 cases originally filed here right away and all the
cases across the country were sent here. But since all the people had died we had the
plaintiffs select five lawyers as plaintiffs’ committee who would try the liability issue for
all the plaintiffs. Now the liability issue has been determined the cases will have to go
back. Except there are now 23 left here. So I will have to have 23 civil damage claims
for damage claims for each of the decedents. Some of them may settle. But that’s what
I’ve got to arrange.
Q: Are there other decisions over your career that you believe had a
significant impact on the judicial process?
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A: On the judicial process?
Q: On the litigants, or on society in general.
A: I was just a journeyman judge, that’s all.
Q: What do you believe is the best point in a lawyer’s career to
become a judge?
A: About mid-40’s. I think at that age you have the energy, the zeal,
the drive to get in and go to work. And if you come on the bench too late I don’t think
you have all the drive and zip that it takes to jump into this work.
Q: There was an article in The Washington Post this morning about
the increasing number of federal judges who are leaving the bench for various reasons.
What are your thoughts about that trend and has the job of being a federal judge become
harder over the years?
A: I think it has become harder. It becomes harder for some as you
grow older. That’s just the point I was making. The pace at which we had to litigate in
1968 is entirely different from the pace we had to build up to and at which we now
litigate. They closed the court on Memorial Day and you came back Labor Day.
Q: Was that good or bad?
A: Well, I don’t know if that was good or bad but at least you. . . Well
it was bad I guess because I guess that’s one of the reasons that they never paid them
anything. They figured they weren’t doing enough work. But the pace is entirely
different. I think the job is more difficult because the cases are more difficult. And that’s
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understandable because we have new and different problems everyday that people believe
that the court system ought to address. Or that Congress extends jurisdiction to this court.
You must remember, every session of Congress you can depend upon them grinding out
laws that ultimately will result in litigation in a federal court. There were no
environmental cases when I came on the bench. There were no freedom of information
cases where you build up large files, arguing over paper.
Q: Of course, federal judges have life tenure under the Constitution.
Is that a good thing?
A: I think so by and large.
Q: During your career as a judge, have you had an experience where it
has been a good thing that you’ve had life tenure?
A: I suspect so. But I can’t think of any particular. I just think that.
Would I have done something differently if I didn’t have life tenure is what you’re really
asking?
Q: What if you were to be held accountable in some other way, such
as an electoral process as some state judges are, or some kind of review process?
A: Well we have an informal review process in terms of what the Bar
thinks of us and what the other courts say. So that’s an on-going thing. You develop a
reputation whether you like it or not. So that’s some kind of a review. Because the press,
as you have seen recently, can be very hard in its review of the way you do what you do.
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Q: Do you and your colleagues take review of your job by the Bar and
press seriously? And, does it impact on your decision making?
A: I don’t know that it impacts on decision making as much as it may
impact on the way you do your work – not the particular decision, no. How you go about
your work. I suspect that that has a real impact. No. You have to understand that
everything you do in a criminal case, I’m sorry, in a case – somebody wins and somebody
loses, unless the case is dismissed. And, even then somebody might win and somebody
might lose.
Q: You are about to take senior status as a federal judge. At this point
in time, what do you think is the most difficult problem facing this court?
A: How to deal with the criminal case load. It’s rising. And how to
find time with that rising caseload, to do something with the civil calendar. Especially in
the face of what I anticipate is going to be a rather hard hitting report from the Civil
Justice Reform Act. I think there will be an expectation that we will have the time and
energy to severely reduce the amount of time it takes for some of these civil cases to be
disposed of. And the expectation at the same time will be try all these criminal cases. I
think there’s tension building up here. The practicing Bar by and large is not interested in
criminal litigation that goes on in this court. The practicing Bar is most vocal about –
they want to know, what about my civil case; what about my tort case, my antitrust case,
my whatever. They want it disposed of.
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Q: Are you unhappy about the fact that the law requires you to step
down now as Chief Judge?
A: No, I think it’s a good idea.
Q: Why is that?
A: Because I might be tempted to stay and I don’t think I should stay.
This way, you know. There’s no maybe. I don’t have to make any decision about it. I
don’t have to wrestle with it. You know when it’s going to be. You can be prepared for
it. Nothing can ever change that. All that you have to do is live. And if you don’t live, it
doesn’t make any difference anyhow. No, I think that age may even be stretching it.
Although some of us age differently than others. But I think that the change is good. It
will be good for me personally, my family. But I think it will also be good for the court.
Q: It’s interesting that you mention that in your answer because my
next questions deal with some very personal questions about your experience and your
life today. Do you feel that your personal friendships have been affected by your tenure
as a judge?
A: Some have, yes. More in the earlier stages than later. Now people
have sort of gotten used to the idea – after 25 years.
Q: Do you feel you have to treat personal friends differently when you
are a judge?
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A: Rarely. Sometimes I’ve had to remind them that there are things
that they were suggesting I could help them out with and I could not. But that’s a rarity.
No.
Q: Are you able to cultivate new friendships as a judge while you are
on the court?
A: Yes.
Q: Since becoming a federal judge, who have been some of your
closest friends?
A: I imagine Carl Rowan and his wife. Charlie Ireland and Evelyn.
Charlie is now deceased. He was my personal physician and very close friend. Aaron
Levine, my former law partner.
– 120 –
TAPE IV, Side 1
Oral History Project
Historical Society for the D.C. Circuit
C.J. Aubrey Robinson, Jr.
This is the continuation of the Oral History Interview with Chief Judge
Aubrey Robinson. Today’s date is January 20, 1992. Judge, I think where we left off I
was asking you who were some of your personal friends – that have become personal
friends while you have been on the bench – and you were listing a number of individuals.
A: Oh, Bill Bryant all the way. He was a personal friend. I knew Bill
and Astaire before I came on the bench. Charles T. Duncan, always been a friend.
Q: What have been some of your outside activities? Are you able to
have another life besides being a federal judge?
A: Well, I have. One of the things that I have done is to serve on the
Board of Trustees at Cornell University for nine years; and I am Trustee Emeritus now. I
have served on the Board of Directors of the Federal Judicial Center – that’s a four year
term. I have served on the Judicial Conference of the United States and of course that’s
been since I’ve been the Chief Judge; and been on the Executive Committee of that
Conference; and on several of the Conference committees. What is the question?
Q: Outside affiliations?
– 121 –
A: I remained on the Board of Directors of the Eugene and Agnes
Meyer Foundation. I was on that Board for about 12 years. I was on the Board of
Directors of the Family Association of America.
Q: Do you wish that you could have had more outside activities or did
it take too much of your time?
A: No. I didn’t need any more because you see you have to find time
for your court work, the outside activities and your family. And I had a wife and two
children so I wanted to spend time with them. And then I enjoy playing golf. I enjoy
travel. I enjoy playing tennis. So that I tried to find time to do a reasonable amount of
the things that I enjoy.
Q: Judge, I have just one or two more questions. If the President of
the United States were to come to you and say, “what should I look for in nominating
someone to be a federal judge; what qualities should I look for; what things should I
avoid?” What would you tell him?
A: Look for somebody who obviously has a good formal education.
Who’s had the kind of experience in public or private life that leads him to have some
sensitivity and understanding about how people live in this world, in these United States.
And I think the person should be somebody who likes people as people; can get along
with people; who is not doctrinaire and rigid in thought; who is willing to accept new
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ideas; explore new thoughts. I think that that’s the kind of thing that I would suggest to
the President.
Q: And should we appoint federal judges in a different way than we
do today? Or do you think the process that we use is appropriate, adequate and best
serves the judiciary and the public at large?
A: Now I don’t see why there couldn’t be devised some kind of a
federal nominating commission in which there could be the political input as well as the
executive. Through the executive there could be a congressional input, or there could be
input from public people who would consider all of the qualifications.
Q: Doesn’t the ABA process handle that by and large?
A: I think it does. But I’m not so sure it does in a fashion that satisfies
me, that all the things that need to be considered are brought to the attention of the
executive.
Q: And my final question. Looking back over the past 25 years of
your judicial career, how has your judicial, social and political philosophy changed – if at
all – as a result of your experience as a federal judge?
A: That’s a difficult question for me to answer. I think fundamentally
it hasn’t changed as much as it has had to accommodate itself – my philosophies and
experiences have had to accommodate themselves to a wider range of problems the
longer I’ve been on the bench. Basically, I think about how the political structure should
operate the same way I thought before. I think I still have the same desire to try to
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understand how people have to live out there and what the impact of their living has to do
with the problems that I see. We try to resolve them in the judicial process. I think I’m
probably less inclined to believe that things can go on at a pace that somebody else
determines. I’m more inclined to believe that there has to be action. I don’t know how
else to say that. I don’t think I’ve changed that much. As a matter of fact I don’t think
really many of us really change. Because as I indicated if the people who are being
considered for many of these positions were expected to change they never would be
nominated.
Q: Judge, thank you very much. On behalf of the Historical Society
for the District of Columbia Circuit, this has been a very valuable experience and we very
much appreciate time from your busy schedule to contribute to this project.
A: Mr. Causey, you are quite welcome and I hope that I have made
some contribution that will benefit the whole project.
Thank you, Judge.