Stanley Temko Text of Interview Only

ORAL. HISTORY OF STANLEY L. TEMKO
Interview #1
Mr. Neuchterlein: This interview is being conducted on behalf of the Oral History
Project of the District of Columbia Circuit Court. The interviewee is Stanley L. Temko. The
interviewer is Jonathan Neuchterlein, Justice Department, Office of The Solicitor General. The
interview took place at the offices of Covington & Burling on the 16″ of September 1999.
Stanley, I guess I should start by just asking you where you are from, where you grew up,
what your family circumstances were like.
Mr. Temko: Well, I can go to that and how it ties into Washington. I grew up in a
town called Weehawken, New Jersey which, at that time, was a sort of a suburb opposite New
York. And you went to New York on a ferry from Weehawken to 42″d Street in Manhattan.
Now, if you go past Weehawken, it is pretty much all bridge and tunnel approaches to New York.
But I grew up in Weehawken, New Jersey, then I went to college at Columbia College in New
York and also went to law school at Columbia. So, after I graduated fsomhigh school in Jersey,
I spent, in effect, almost seven years living at Morningside Heights.
Mi. Neuchterlein: When did you first get the inkling that you might want to be a
lawyer?
Mr. Temko: I don’t think I ever got one of these really strong career choices. First
of all, when I fmally went to law school it was at a time when I knew I was probably going to go
in the service either right after I f~shed law school or before I did. And I guess I went to law
school to some degree by a process of elimination. I knew I didn’t want to be a doctor or an
engineer, and the two crafts or professions that appealed to me most were law or journalism and I
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opted for law, but I have always thought highly of journalists. In fact, I think the journalists are
every bit as smart as the top lawyers and they just don’t seem to be compensated the same way.
Mr. Neuchterlein: I see you were a inanaging editor at the Columbia newspaper.
Mr. Temko: In college, I was managing editor of the Daily Spectator, which was
a pretty good college paper and I liked newspaper work. But, as I say, I turned out going to law
school.
Mr. Neuchterlein: Now, were there any lawyers in your family?
Mr. Temko: One of my cousins and an uncle were lawyers, but my father was not
a lawyer. He had been in the shoe business.
Mr. Neuchterlein: How did he react to your decision to go to law school?
Mr. Temko: Oh they, my mother and father, would have been happy if I had gone
to med school, law school or any other choice. Law school was pretty much my choice and they
encouraged me in it. Somethg that is an aside on this. I have three children: two are lawyers
and one is ajoumalist, and my wife was a lawyer. Any number of people would just say, nothing
pejorative, just saying, well, I guess you encouraged all your children to go to law school and so
forth Nothing was farther from the truth. Just as no one told me I had to be a lawyer, we never
told the kids what they had to do and two of them decided to go to law school; one never went to
graduate school, he is the journalist. A story that is an aside is typical of this fellow. He called
from WiUlamstown. I guess he was ajunior or something and talked to my wife and said he
wasn’t even going to take the law school aptitude test cause he obviously would do so well that
there would be pressure on him to go to law school. At which point my wife hung up on him
Mr. Neuchterlein: That was appropriate. Well, you hear so many stories about
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the first year of law school, particularly in those times; how competitive it could be. What
memories stand out for you?
Mr. Temko: Well, actually you hear about law schools. I have always heard that
Harvard was very competitive and Columbia was always competitive. The general feeling we
had was that Yale seemed to be a more gentlemanly or ladylike place. In my first year, because I
entered in the fall of 1940, and for most of that year, our class was intact. So we had a full-sized
class and some very smart people in it. Bill Feinberg was in the class; any number of top-flight
people. By the tine of the second year, it thinned out a bit. I was there because I’d been in an
auto accident. It was sort of competitive, but I never thought it was something troublesome or
difficult and I made out very well. So I never really felt badly about the competitiveness of it.
Mr. Neuchterlein: You said that the law school class thinned out after the first
year was out because people got low grades?
Mr. Temko: No, no. Not so much low grades. In 1940 a few people were going
into inilitary service, such as people in the ROTC, but for most of the people in the class, it
wasn’t until Pearl Harbor in December 1941 that you had a real exodus.
Mr. Neuchterlein: But you knew the war was coining?
Mr. Temko: We knew the war was coming, so I entered in the fall of ’40 and
finished the first year in the spring of ’41. In 1941 people started leaving for the service. I had
been in an automobile accident. I wasn’t driving; I was just in the rear seat. I had a summer job
at some camp in ’39 and I wacked up one leg pretty badly. I knew it would heal in time, but as a
result of that I was deferred from going in the service and didn’t go into the service until late ’43
or early ’44. I was able, by accelerating my last year, to finish law school. A lot of the people
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who started with me came back after the war to f~sh, like Bill Feinberg, the Second Circuit
judge and Bill Colby, who later became CIA director. We had a lot of very able people there.
Mr. Neuchterlein: Did you become close with any professors while you were in
law school?
Mr. Temko: I was friendly with a number of professors. Everyone says that law
school is pretty impersonal and so forth, but Columbia had a group of really teaching professors.
They taught in the classes and the simple fact is that, if you really had done well and you were on
the law review and so forth, you frequently got to be fairly friendly with people.
Mi. Neuchterlein: I will note for the record that Stanley f~shed first in his class
in Columbia and was editor-iu-chief of the law review. That presumably helped you.
Mr. Temko: That helped. But let me say, for example, to get ahead of the game a
little. Well, let me go right on, but people, friends of mnine on the faculty, were instrumental in
my getting a Supreme Court clerkship. What happened, and to go ahead, Harlan Fiske Stone was
still the Chief Justice and he always took a Columbia clerk. We had other Columbia graduates
on the Court, but Douglas, for example, was not friendly to Columbia. So Stone was about the
only one who was locked into Columbia the way Freer always had his Harvard clerks and
so forth. So I was selected to be Stone’s clerk when I graduated; it would have been the end of
’43.
Mr. Neuchterlein: How many law clerks did each Justice have?
Mi. Temko: At that point, the Chief Justice, that was Stone, had two. The other
Justices had one. There has been proliferation in that sort of thing.
Mr. Neuchterlein: Yes, sir.
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Mr. Temko: But I knew that, while I was going to have a month or two, I
wouldn’t be able to finish the term with Stone and I told him that I was going into the Army. He
asked me if I could recommend a suitable clerk and I found Ed Friedmen, who had been editorin-chief of the Columbia Law Review a year or two earlier, and was classified 4F in the draft. He
became Stone’s clerk. Then, I was less sophisticated in those days than I would Like to think I am
now, Ijoined the Army. I was 2% years or so overseas and I never gave a thought to trying to
keep in contact with Stone. But I gather Walter Gelhorn or Herb Wechsler, both of whom were
Columbia professors and ex-Stone clerks and both of whom were friendly with me, kept in touch
for me. I got a letter while I was still in Europejust saying, “Dear Lieutenant Temko – I
understand you will be getting out of the Army and I would be delighted to have you clerk for me
starting this summer.” So that sounded fine.
Mi. Neuchterlein: R.S.V.P. regrets only?
Mr. Temko: So I got back in this country in January of ‘46 and I was going to
start with Stone in July, I worked for a few months in New York at Root Clark whch was a fm
I had worked for one summer. Lo and behold, the Chief Justice literally dropped dead on the
bench in April. So I figured that was the end of it. The idea of being a Supreme Court clerk
wasn’t going to be and I stayed at Root Clark, which had by then turned into Root Ballentine. I
was there for about a year at which point I got a call again from Walter Gellhorn saying that they
would like to get some. Columbia clerk back on the Court and Justice Wiley Rutledge was a
possibility. Rutledge, who didn’t have any binding obligation that he had to take someone from
Iowa, Indiana or any of the other schools that he taught at, agreed to consider a Columbia clerk
because he didn’t have to take one froin those schools unless there was some superstar. Gellhorn
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indicated, quite clearly, that Rutledge would be glad to take me. And that is how I ended up
clerking for Rutledge.
Mr. Neuchterlein: I am going to ask you some questions about what it was like to
clerk for hnq but I want to make sure we don’t skip over your wartime experience. I see that,
after graduating from Columbia in 1943, you went over to Europe and apparently began as a
private, which is to me counter-intuitive for someone who just finished first in his class at
Columbia Law School.
Mr. Temko: Well, let me say, even though I was deferred because of my knee, I
tried to get a commission in the Navy Reserve, but I was color-blind and rejected. By the time I
was in effect drafted, which was I guess late ’43 – I am a little vague on that – the only Officer’s
Candidate School which was open, and even that wasn’t very open, was infantry. In retrospect, I
was pretty lucky that it wasn’t open because most infantry lieutenants at that time were sent as
replacements in the Bulge and so forth. I couldn’t be commissioned in the JAG corps because
you had to be 28 to be – it may still be the rule – to be commissioned in the Judge Advocate
Corps. Generally you had to be 28, and in ’43 I was 23. So the thing that was open, it was sort of
funny, was something called the Army Specialized Training Corps. It took people who had fairly
good educational background and spoke, say, French or Genm and sent them to learn Russian
or Hungarian or some of the East European languages. I got into that and I was sent to Indiana
University where it was going on for a while, but I had been in school so long this sort of paled
on me. By a fairly intricate effort on his part, Bill Colby’s father, whom I knew fairly well and
was a regular Army officer, arranged to have me sent over to Europe. I was a PFC and assigned
to First Army headquarters where he was the deputy chief of G-5, the civil affairs-military
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government staff section. It was amusing at that time because I think you could be selected
h4r. Neuchterlein: How long did it take you to be elevated from private to
I sergeant?
individually to come from the United States to a European Command only if you were a rank of
major or above and I was a PFC. So what was done was they sent me on the way to Europe and,
I guess, let the First Army know where I would be and, luckily, they found me. So that’s how I
got there and I was in the First Army Headquarters and it was quite interesting. I got to be a
sergeant. Then I transferred, still as an enlisted man, to something called the branch office of the
Judge Advocate General.
I Mr. Neuchterlein: And then you had men under your command?
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Mr. Temko: Oh, let me say, I went through infantry basic training and all that
stuff, so I was probably, I think, a private, or maybe a corporal, but I think a private when I got to
First Army headquarters. And then I got promoted in a couple of months.
Mr. Temko: Not really there because I was in a headquarters. One of the people
in the unit I was in is now Senator Strom Thwman of South Carolina.
Mr. Neuchterlein: How old was he then?
Mr. Temko: Let’s see. He is 90 now. That was 50 odd years ago.
Mr. Neuchterlein: He was middle aged.
Mr. Teinko: He was a major. Even then he was working on a political career. I
had good work there. Let me say, that something in an Army headquarters is very much like
lawyers servicing corporations. They can talk a lot, but if someone has to put something down
on paper, they don’t have a hell of a lot of people that want to do it. I did all the stuff. I wrote up
people for medals and I had a good time. And, as a result of that sort of thing, I got to France on,
I guess, D plus 4 on Omaha Beach in Normandy. This was close enough to see the carnage, but
you wouldn’t get killed unless you were unlucky. After the First Army broke out from St. Lo,
there was little German opposition. I was in Paris the day it was liberated. I remained in Paris
for a month, then went on with the First Army. I was in Spa, Belgium, when the Ardennes
breakthrough by the Germans occurred.
Mr. Neuchterlein: Were you involved in Ardennes?
Mr. Temko: Only in a sid way, because I was not in an infantry unit. On one
day we were living in fairly good shape in Spa. In fact, it was pretty much like the present day
Spa. There was a casino and officers’ clubs. And the German attack came and First Army
headquarters retreated. The retreat was such a screwup. Broken-down trucks and traffic jams on
the roads. We didn’t have any good place to go so we went back to Spa. Next day, the place
where we were living was now a prisoner of war clearing place for a battalion. In other words, it
was a different war. Then, after the Ardennes straightened out, our unit went on to Aachen. But
then I got a call, I don’t know how that happened, someone must have mentioned me to the Judge
Advocate General for the European theater. He was a West Pointer who had gone to Columbia
Law School named General McNeil. A great man. And he had me requisitioned, so I went back
from the First Amy to Paris where I served as the law clerk for the Board of Review Number
One for the European theater. During the war, if a death sentence or a life sentence was imposed
in a court-martial, the case had to be reviewed by the Judge Advocate General who is in
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Washington. But, with all the activity in Europe, they established what was called the branch
office of the Judge Advocate General. So General McNeil, iu effect, acted as the Judge
Advocate General for anything in the European theater. And he had a number of very good,
experienced lawyers in his unit – people who later ran for the US. Senate and were prominent at
the bar. And I was a law clerk to them
Mr. Neuchterlein: So your docket was entirely cases of people who were
convicted of various offenses?
Mr. Temko: Major offenses. Like life imprisonment, or sentenced to death. But
every death penalty case, almost all of them were commuted, went to this board of review.
Mr. Neuchterlein: What sort of death penalty cases were there?
Mr. Temko: Well –
Mr. Neuchterlein: Desertion?
Mr. Temko: Some were desertion. There is a famous book that appeared, The
Execution of Private Slovak, or something. This was the one –
Mr. Neuchterlein: I think they made a poor TV movie about that.
Mr. Teinko: – poor kid who was executed for desertion “to be made an example.”
But most of the cases would be murders, rapes, a lot of murders, a lot of desertions where they
would say life, but usually they commute thein and send them back. But –
Mr. Neuchterlein: So, were the people representing these defendants actually
lawyers or were there some –
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Mr. Temko: Yes, but now –
Mr. Neuchterlein: See, the reason I ask that is because my father was in Europe
after the war and he is not a lawyer, never has been, and was assigned to represent an American
serviceman who was accused of rape. And, in fact, did represent this man.
Mr. Temko: In the Army?
Mr. Neuchterlein: In the Navy.
Mr. Temko: Court-martials. Let me say, the people who represent the defense
counsel are not required to be lawyers. I think more so maybe in the Navy than in the Army.
Sometimes they are not. But, this, of course, where I was, was at the appellate level and these
cases would come up on the record. Say a fellow committed a murder and was in the stockade.
He would be court-martialed at his unit or division level. If convicted, a sentence would be
imposed. It was then reviewed by the unit commander, and sent to the next level. The case
would go from the division to the corps; then from the corps to the commanding general of the
Army group. It would go to the judge advocate general for final review in this thing. So all of
the cases we had were reviewed on a record just the way you would have an appellate record in a
criminal case. Usually, if it was a serious case, the defense counsel would be lawyers. But they
didn’t have to be.
Mr. Neuchterlein: And you were a law clerk there for how long?
Mr. Temko: I was there for several months. I stdl couldn’t be commissioned in
the Judge Advocates Corps because I wasn’t 28. I had a chance to get a commission in what they
then called Military Government. And so I got a direct commission and went into Military
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Government. The frst assignment I had was in Frankfurt where I joined the unit that had the
responsibility for not only Frankfurt, but the whole surrounding area. I was assigned as junior
legal officer, but it turned out there was no senior legal officer. The I. G. Farben headquarters in
Frankfurt was an officer’s club and I was there one night and I ran into a Colonel Lovejoy. I don’t
know if you remember this, he was a Columbia University official, but also wrote the popular
Lovejoy’s College Guide. Are you too young for that?
Mr. Neuchterlein: I have seen those, yes
Mr. Teinko: The Lovejoy books were the definitive guide to colleges. Lovejoy
had been a hero in the first war and I had known him at Columbia mainly because, when I was a
senior in Columbia College, I received a prize called the Class of 1917 Rooin The class of ’17
had set up an award to give a deserving senior a very nice room in the dorm rent-free. So I had
the Class of ’17 Room and Lovejoy knew I had been an editor of the college daily, The Spectator.
He asked what was I doing. I said I was the junior legal officer at the Military Government office
and he said, well, you know, there was supposed to be a public relations officer in the Military
Goveiiunent office and the officer who had the job was being transferred to Berh. Lovejoy
asked if I would like to be the public relations officer. I said fine, so I transferred from being the
junior legal officer to the PR officer and, since the guy who had had it before me was a lieutenant
colonel, I inherited a Mercedes car and quite a few other perks. So I f~shed there as a public
relations officer.
Mr. Neuchterlein: Was that your last position in the Army before –
Mr. Temko: I returned to the U.S. in January 1946.
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Mr. Neuchterlein: And that was before Justice Stone died. Is that correct?
Mr. Temko: That’s right.
Mr. Neuchterlein: Okay. And then –
Mr. Temko: He died in April of ’46.
Mr. Neuchterlein: And then they anaged for you to clerk for Justice Rutledge?
Mr. Teinko: But not until the –
Mr. Neuchterlein: Oh, that’s right, you said you went back to your firrn
Mr. Temko: Went back to the firm So I clerked for Rutledge from ’47 to ’48.
Mr. Neuchterlein: Now, in those days, as I understand it, people usually did not
have a clerkship before they worked in the Supreme Court. I guess you were special in that you,
in fact, had had a clerkship. But, of course, these days you would normally clerk on the D.C.
Circuit.
Mr. Teinko: Well, I hadn’t had a real clerkship. I had only the Army thing. In
those days many of the Supreme Court clerks came right from law school. You didn’t have the
sort of baseball farm system that you served on a lower court and a good judge recommended
you to a Supreme Court Justice. Most of the fellows I hew when I clerked had not served on the
court of appeals. One thing was a bit different in my year. A number of the clerks were older
because they had been in the Army or the Navy, as I had been, and had lost 3,4, 5 years. But the
Harvard clerks, most of them I think came direct from Cambridge. A couple of them inay have
clerked in the Second Circuit.
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Mr. Neuchterlein: I suppose after you came back from the war in Europe, the
people who had come to the court straight from law school must have seemed pretty young.
Mr. Temko: Well, the fellows when I was there were mostly veterans. In other
words, there weren’t – there may have been a couple – but almost everyone in my bunch of clerks
had been in the Army or Navy. Each of the Justices had a right to two clerks and I guess the
Chief may have already gotten to three. My co-clerk was John Paul Stevens.
Mr. Neuchterlein: Oh! Uh-huh.
Mr. Temko: He is still a good friend.
Mr. Neuchterlein: So you met him at the Supreme Court?
Mr. Temko: At the Supreme Court.
Mr. Neuchterlein: What are your memories of now Justice Stevens?
Mr. Temko: Oh, just he was going to be something special. I think he is one of
the smartest and nicest people I have ever !mown. I’m biased, but to me he is the best Justice on
the present Court. I think the year after John and I left, I think Phd Tone was the next Rutledge
clerk. Do you know him?
Mr. Neuchterlein: I have heard his name, but I don’t know him
Mr. Temko: Well, Phil Tone was also on the Court of Appeals for the Seventh
Circuit and when John was appointed to the Supreme Court, both Stevens and Tone were
sponsored by Senator Percy. John had the fust call on it and so Tone didn’t make the Supreme
Court. There were about four or five finalists, two of whom were Stevens and Tone. And Tone
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stayed on the Seventh Circuit for a while but then just resigned.
Mr. Neuchterlein: Is he –
Mr. Temko: I think the other Rutledge clerk with Tone was Lou Pollack who was
on the Federal District Court in Pennsylvania.
Mr. Neuchterlein: And Pollack clerked for Rutledge too?
Mr. Temko: Yes.
Mi. Neuchterlein: And that was the year after you?
Mr. Temko: Yes.
Mr. Neuchterlein: I take it Stevens had been in the war, hadn’t he?
Mr. Temko: Yes, he was in the Navy.
Mr. Neuchterlein: A book has come out recently describing what it is like to be on
the Supreme Court now – what it is like to be a law clerk on the Supreme Court now?
Mr. Temko: It is a controversial book.
Mr. Neuchterlein: It was a very controversial book.
Mr. Temko: I haven’t read it.
Mr. Neuchterlein: And I am happy to say that I have played no part in providing
any background.
Mr. Teinko: When did you clerk?
Mr. Neuchterlein: 1991 and ’92.
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Mr. Temko: You were for?
Mr. Neuchterlein: Souter.
Mr. Temko: Souter. He was relatively new then, wasn’t he?
Mr. Neuchterlein: It was his second year on the Court.
Mr. Temko: Well, who was the fellow who wrote the book?
Mr. Neuchterlein: His name is Ed Lazarus.
Mr. Temko: Yes. He is considered a pretty smart man.
Mr. Neuchterlein: He clerked for Justice Blackmun in ’89.
Mr. Temko: I haven’t read the book, but I gather he has gotten everyone unhappy.
Mr. Neuchterlein: Well, he did – part of the reason – I am not sure that the book
is quite as inaccurate as people say. It may be quite accurate. I haven’t read the whole thing. I
think what upsets people is that it just divulges a lot of confidences. That is something that
hadn’t happened since The Bretheren was published. What was the job of a law clerk like in the
O OS? These days it’s widely understood that law clerks draft opinions, which may then be
heavily edited or redrafted by the Justices. But did you in fact get involved in the drafting of
opinions?
Mr. Temko: Oh, yes. I don’t think that the job would have changed that much
from the ’40s to now except that now there are many more clerks and there is more division of
work. Even in the ’40s there were big differences depending on which Justice you were working
for. The majority of clerks prepared draft opinions, which, depending on the Justice and the
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importance of the case, some would find their way, without a lot of revision, to be the fmal
opinion. Other drafts were pretty much scrapped and the Justice used little of the draft. But it
differed among Justices. Some wrote most of their opinions. Now, I could be wrong on this,
because he had excellent clerks, but I think Jackson penned a lot more of his own stuff and it was
very good. The biggest job for ahnost every clerk, was to prepare a memo on the cert. petitions.
We had two clerks so we split them in haK
Mr. Neuchterlein: How many cert petitions were there at that time?
Mr. Temko: I forgot, but there were plenty. I started in July and Justices had
different interests in how the cert. petitions were handled. One Justice, I forgot which one, said
the clerks memos should never be more than a page. Justice Rutledge, and also most of the other
Justices, wanted you to come out with a pretty direct recommendation. Grant. Deny. Put on a
dead list. This was hard work. In other words, you come in, you could have eleven to do in a
week or something and different things. I started reviewing the petitions in July or August over
the summer and I remember the first few petitions I worked on made me fear the task was
impossible. I felt these petitions are the toughest things to decide, and I didn’t really know where
I wanted to come out on these things. But I made definite recommendations. It turned out that
the two or three that were giving me the most trouble were about the hardest ones presented
during the term They gave a lot of trouble to the court because they were taken and they were
very close, difficult decisions. You then found out that a lot of the petitions could be handled
very easily.
Mr. Neuchterlein: Did the same criteria serve Rutledge then as are now applied?
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Mr. Temko: Yes.
Mi-. Neuchterlein: So the existence of the circuit conflict I suppose would be
important?
Mr. Temko: Well, circuit conflict was the same idea, although, as you know,
there are relatively few square conflicts. In other words, a lot of people come up and claim
conflicts, but the cases are often distinguishable. You still my want to take the case, but you
still needed four votes. I remember that I had heard that at some point there was a sort of a
noblesse oblige; if you had three hard votes to grant, someone would say, “Okay, I’ll give you the
fourth.” In our time you needed four votes. Sometimes you had a case that some of the Justices
thought was wrongly decided, but they didn‘t vote to grant certiorari because they thought their
views would lose. So they would just as soon leave the case in the circuit and not do anything.
But you needed four votes to grant.
Mr. Neuchterlein: That’s all the same as it is now.
Mr. Temko: Frankfurter never had his clerks prepare cert. memos. He reviewed
the petitions himself and I hear that John Paul Stevens doesn’t have cert. memos written. He
reportedly reviews the petitions himself
Mr. Neuchterlein: Yeah, I think he has his law clerks winnow through them He
is actually the only member of the Court who is not now in what is called the cert. pool.
Mr. Temko: Oh, you mean you –
Mr. Neuchterlein: Yeah. You see, even though the number of clerks has doubled
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since you were there, it is still considered too onerous for the clerks in any one chamhers to read
all of the petitions, so, it is actually eight chambers pool the 32 clerks among them to divide up
into 32 parts the petitions that come in.
Mr. Temko: But don’t some of your Justices still want you to review the petition
for them? For example, a Rehnquist clerk writes the memo. I could see that a couple of Justices
would not be completely happy with Rehnquist’s views, and would want the matter reviewed
independently.
Mr. Neuchterlein: Justice Souter never asked any of us to second guess the pool
writer. In some chambers that does happen, but it is usually on a case specific basis. It is usually
a case that the Justice perceives is close and then he asks his clerk to look at it.
Mr. Temko: Not only did most of the Justices, and I think it was everyone except
Frankfurter, require the cert. memos, but some of the Justices, including Rutledge and Burton,
wanted bench memos on the cases that were granted and were being heard on the merits. A
bench memo was to contain a pretty good analysis of contentions, some idea whether the case’s
precedents were being properly presented. That entailed a lot of work. And I remember in some
cases you would be fmalizing the memo and rushing it to the Justice about five minutes before
the curtains opened. A number of the Justices didn’t require bench memos, but several did. Do
they still have that now?
Mr. Neuchterlein: It depends on the chamhers again.
Ivir. Temko: That’s a lot of work.
Mr. Neuchterlein: It is a lot of work. Did they read the briefs before argument in
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those days?
Mr. Temko: The Justices?
Mr. Neuchterlein: Yes.
Mr. Temko: Justices?
Mr. Neuchterlein: Some did and some didn’t. I read somewhere that Justice
Frankfurter once made fun of somebody for actually reading all the briefs before argument.
Mr. Temko: Fraukfurter, you know, almost all the clerks, even those who were
far more liberal, almost all liked Frankfurter. I adored him He was so nice – you know, he went
out of his way to cultivate the clerks and made no bones about it that he proselytized you. He
was always telling me how can your Justice really take a certain position, but he was great fun.
Great fun and he was, of course, a great chum of our partner, Dean Acheson. I remember when I
was made a partner here, I received a very sweet note from Frankfurter. He was a real politician.
Mr. Neuchterlein: Other than Rutledge and Frankfurter, did you get to know any
of the other Justices on the Court?
Mr. Temko: Yes. The one I didn’t get to know at all really, and in those days
some said even his own clerks didn’t get to know hun, was Douglas. Even though he was a very
liberal man and he was considered, you know, for high political office – President, Vice
President – he was a pretty tough guy to get to know. Almost all the others were nice and
approachable, but, at least for me, it was your own Justice and Frankfurter who was sort of
walking the halls and looking for someone to discuss a case.
-19-
Mr. Neuchterlein: What are your memories of Rutledge? What sort of man was
he?
Mr. Temko: He was a lovely man. Judge Ferren recently asked me about him and
I couldn’t give him nearly as much detail as I thiuk he was looking for. Ferren was thinking of
writing a book about Rutledge.
Mr. Neuchterlein: Yeah, I have heard of him
Mr. Teinko: John Ferren. He is back now on the D.C. Court of Appeals. Ferren
took a leave of absence to serve as D.C. Corporation Counsel. He was thinking, and may still be,
of writing a book on Rutledge and he had obviously talked to all kinds of people about Rutledge.
Rutledge died of lung cancer when he was about 57 or 58. He smoked Old Golds froinmoi-g
’til night. And, as I say –
Mr. Neuchterlein: They were fdters?
Mr. Temko: What?
Mr. Neuchterlein: They were fdters?
Mr. Temko: No fdters. They were Old Golds. A very nice man. Quite able. I
mean not the sort of scintillating intellect that Frankfurter had, but a very sound man. He taught
at a number of law schools and then was on the Federal D.C. Circuit here. The story he told me
was that he had not met President Roosevelt when he was nominated to the Supreme Court, but
when he was brought in to meet Roosevelt, the President said to Rutledge, ‘Wiley, you have got
a lot of geography.” You see Rutledge had been dean or professor at about five different
-20-
midwestem law schools and, by appointing Rutledge, you were satisfying Iowa, Indiana, and SO
forth
Mr. Neuchterlein: You clerked on the Court, I guess, less than 10 years after the
famous switch in time. Did you get the sense that you were – that a sort of intellectual
revolution had just taken place on the Court?
Mr. Temko: No, the famous Court packing plan was already history. Rutledge,
Murphy, Douglas and Black, I guess, were the liberal wing of the Court. I would be glad – I
don’t think for this project – I would be glad to have lunch with you another time and talk to you
about the Supreme Court and Rutledge and so forth. He was a very nice man and it was just a
tragedy that he died so early. I don’t think he would have ever been though of as the leader of the
Court, but he was certainly a very sound jurist and a very right-thinking man.
Mi. Neuchterlein: So you f~shed your clerkship in 1948 and then what did you –
did you come straight to Covington or what?
Mr. Temko: No. At that point, my wife had been born in New York City and
grew up there and I had been working in New York. I was, in effect, on a leave-of-absence from
Root Ballantine. The firm expected me to return. Incidentally, the only Root Ballantine matters
that came up during my clerkship were a couple of cert petitions. The other clerk handled these.
I had assumed we were going to go back to New York right at the end of the term, probably in
June. My wife said that Washington is a pleasant place to live and let’s stay here. So I told Root
Ballantine that we liked Washington and were going to stay here.
Mr. Neuchterlein: In June of 1948?
-Ll-
Mr. Temko: Yes. I had never really wanted to practice in a small fm Of
course, Washington fmns were a lot smaller then, and the best and biggest firm in Washington
was Coviugton & Burling. So I visited Covington and was interviewed by our late partner,
Charlie Horsky, who asked where the devil had I been. Covington had hired seven people that
year, and Horsky said the firm could not hire another associate that year. Horsky offered his help
in getting me ajob in any number of places. I told him I would have liked to work at Covington,
but I thought I could take care of myself in finding a job elsewhere. The Economic Cooperation
Administration, which ran the Marshall Plan, had just gotten underway. The ECA General
Counsel was Alec Henderson, a Cravath partner on leave. I didn’t know hun, but a Columbia tax
professor named Roswell McGill was also a Cravath partner. And I knew him fairly well.
McGill called Henderson and I was hired. I had a wonderful time at ECA and was enjoying
myself immensely. Then I was called by Covington to come over. I said how about letting me
stay at ECA one more year and they gave me the same spiel that is so common, namely that there
was an opening now but the fmn doesn’t know what it will be doing in another year, and that I
should come then. So I came. And I have been at Covington ever since.
I Mr. Neuchterlein: Well, how old were you at the time?
Mr. Temko: When I came, I was young for all the stuff I had done. In 1948, I
was 28.
Mr. Neuchterlein: Washington obviously has a lot of law fm now and it’s a
very interesting place to practice law. I guess maybe I should begin by asking how big a law fm
Covington was in 1948. How may lawyers worked there then?
-22-
Mr. Temko: My guess would be about 70.
Mr. Neuchterlein: How many partners; about 35?
Mr. Temko: Less than that. No, at that point, I guess there were about 25
partners.
Mr. Neuchterlein: And it was the largest law firm in town at the time?
Mr. Temko: Yes.
Mr. Neuchterlein: What were some of the other prominent law firms?
Mr. Temko: hold Fortas and Porter was just starting. There were only about a
dozen lawyers there. I believe I could have had ajob there, but it was still a small fm I guess
Hogan and Hartson was well known. In retrospect, I doubt whether any other Washington firm
measured up to Covington.
Mr. Neuchterlein: What were the criteria that people used when they made
judgments like that?
Mi. Temko: What?
Mr. Neuchterlein: That Covington was the number one fa What did it excel
at?
Mr. Temko: Well, from my point of view, it had an outstanding reputation for
having a very good practice and getting very, very good people.
Mr. Neuchterlein: What sort of practice was it? Was it the kind of
regulatory/administrative evolved Washington-oriented practice then that I suppose it still is
-23-
now?
Mr. Teinko: Well, more things now. But it was centered, I guess, when the fm
was founded by Harry Covington and Mr. Burling the elder, it was to concentrate on regulatory
work with some emphasis on tax issues which were just rising to the fore. It was Washington
regulatory practice, with some appellate practice and trial practice, not only local but around the
U.S.
Mr. Neuchterlein: When was it founded?
Mr. Temko: 1919. And in the early days, it had very top people as the partners,
but a lot of the clerks were young men from the local law schools. As I remember, Paul Shorb, a
leading tax lawyer, attended a local law school. Some of the early partners started as law clerks.
As I understand it, Dean Acheson was the leader in suggesting that the fm look to the leading
law schools and, in particular, to law review editors and other outstanding students. I guess
Tommy Austeiii was one of the first hires reflecting this policy. In the ’40s as I recall, the firm
had either three or four presidents of the Harvard Law Review join as young associates. Charlie
Horsky, John Sapienza and Graham Claytor were Harvard Law Review presidents who came
during this time. The firm was getting very, very good people. And, as I say, it seemed clear to
me that Covington, when we decided to stay in Washington, was where I wanted to practice.
Mr. Neuchterlein: And you were attracted, I imagine, to the regulatory practice?
Mr. Temko: Oh, yes.
Mr. Neuchterlein: Forgive me for not knowing this, but when was the APA
-24-
Mr. Temko: I believe in the late ’30s.
Mr. Neuchterlein: I thought it was in the late – I thought it was right after the war.
Mr. Temko: Was it after the war or no? I just don’t remember. You were
obviously seeing a blossoming of government agencies, the work was getting more important.
And it was a regulatory practice. But there are other things around here. The fm did at that
point all of the libel work for The Washington Post; and they represented some of local
businesses. I thmk the major business practice from the start was national. One of Judge
Covington’s frst clients was DuF’ont, and so there was a national practice right from the start.
Mr. Neuchterlein: Well, tell me a little bit about your first couple of years here.
What sort of work did you do?
Mr. Temko: Well, this was the biggest firm, but it wasn’t the sort of situation that
you have today, where Covington and several other fm are much larger and you have increased
specialization. Now, for example, if you do broadcast work, you frequently do just that. When I
came to Covington, you could practice in a number of areas. That was one of the things I
enjoyed. I did a fair amount of antitrust work in those days because I did a lot of work for
Austem and he had many antitrust clients.
Mi. Neuchterlein: Was that litigation?
Ivir. Temko: I had litigated over the years. Let me interrupt myself here. The way
Covington operated, if you worked on a matter that involved advice, or negotiation, but later
evolved into litigation, you could try the case yourself. In other words, we didn’t have a corps of
barristers, or a litigation section. In the first few years, I had a few arguments in the courts of
-25-
appeals. I didn’t try any large cases. I was involved in important proceedings involving the
Department of Justice or the Federal Trade Commission that were settled in one way or another.
The longest trial I was involved in in those years, and it must have been in the mid-’50s, was the
Department of Justice antitrust case against the Swiss and American watch industries.
Mi. Teinko: That was up in New York and it was an extended trial. I have never,
in all my years of practice, had ajury case. I was never primarily a litigator. I tried matters in the
Federal District Courts, mainly for drug companies. But, as I say, still to this day, I haven’t had a
jury trial and I never spent the bulk of my time in trial matters. One of the things I enjoyed so
much was the wide variety of areas I covered. I was involved in all kinds of matters and issues.
As I said, I did a fair amount of antitrust work. I started fairly early to represent leading
pharmaceutical companies and that grew to be a major part of my practice. I
Mi. Neuchterlein: That was up in New York, wasn’t it?
I Mi. Neuchterlein: Who were some of the drug clients that you had?
Mi. Temko: Well, I myself worked for Lilly, Merck, Smith-Kline, Upjohn and
several other mjor pharmaceutical companies.
Mi. Neuchterlein: Did you help them with legislation, or did you work on court
cases?
Mi. Temko: The big drug companies had a pretty easy time of doing what they
wanted, until the time of the Kefauver hearings that led to the Drug Amendments of ’62. That
was the frst legislation dealing with proof of safety and efficacy. The industry had been beaten
up pretty badly in the hearings and in opposing the legislation. Our firm had done some drug
-26-
work – drug approval work involving the Food and Drug Adininstration – before then. Gerry
Gesell, who was one of our top litigators, was hired by all the leading companies, through the
Pharmaceutical Manufacturers Association, to challenge certain provisions of the 1962 Act. A
few of our challenges went to the Supreme Court. Gerry argued all of the issues, but I did the
major portion of the briefmg and got to know a number of lawyers and executives of these
companies. That led to my continuous involvement with several of the companies.
Mr. Neuchterlein: And what year was that?
Mr. Temko: This must have been the mid-’60s.
Mr. Neuchterlein: And by that point you had been a partner for about 10 years?
Mr. Temko: I was made a partner in 1955. So I had been a partner about 10
years.
Mr. Neuchterlein: So, you sort of gradually developed a specialty.
Mr. Temko: Yes. It was, in effect, as much a subject matter specialty because
they had antitrust cases, they had all kinds of problems, and I spend a major portion of my time
on their issues and they have always been excellent clients. They’re still good clients of the firrn
As I mentioned, I started at Covington in ’49 after I came from the Economic Cooperation
Administration. I worked on a variety of matters and then the Steel Seizure litigation came
along.
Mr. Neuchterlein: Well, I want to ask you about the Steel Seizure case.
Mr. Temko: That was a very interesting time, and an exciting case to be involved
-27-
in. Another important case was brought to the firm to seek Supreme Court review. That matter
involved the Texas City disaster. Unfortunately, while we prevailed in the Steel Seizure case, we
lost Texas City in a 4 to 3 vote. The Texas City decision has since been essentially overruled on
the discretionary act exemption that protects the government. I guess, at the time, holding the
government responsible for blowing up Texas City was too much for Chief Justice Vinson.
Also, around the OS, I became a paper pusher for Dean Acheson who had returned after serving
as Secretary of State. I reviewed papers that came to him and these were a series of matters
involving cert. petitions and other issues.
Mi. Neuchterlein: You say you were a paper pusher, you mean he assigned to you
tasks like briefs –
Mr. Teinko: When things came in to Acheson, I was sort of a screener. I
reviewed incoming requests for assistance and other papers. Before Acheson had gone off to be
Secretary of State, this function was performed by Graham Claytor. But, Graham Claytor, by the
time Dean Acheson came back to the firm, Graham was already an important lawyer in his own
right and this was work that would be a little below his station.
,
, Mr. Neuchterlein: But you managed Dean Acheson’s clients?
Mr. Temko: Let me say, there was a man who made his own decisions, but I got
to help on the cases that came to hin Beyond working with Acheson, I felt lucky in that my
practice continued to be varied and exciting. I recall that I had just finished briefmg, I believe,
the Texas City case, and I was home on a Saturday morning when Gerry Gesell called me from
the Washington Post offices. Gerry told me to pack a bag and come down to the Post. So I
I -28-
packed a bag and went to the Post offices. Everyone was there fromMr. Eugene Meyer on
down; the room was fded with executives and lawyers. This was when the Post was buying The
Times Herald from Colonel McCormack. Since there was a concern that the government might
seek to enjoin the purchase on antitrust grounds, the plan was to immediately dissolve The Times
Herald as soon as word came from Chicago, on an open telephone line, that Colonel McCormack
has signed the contract. The Times Herald would be dissolved and its printing presses would be
immediately shipped out of Washington. If the government brought any action, the presses
would be hard to find. It was something that could form the basis for a class B movie. Colonel
McCormack had agreed to sell The Times Herald to Meyer and The Washington Post.
McCormacks niece, Daisy McCormack, was extremely conservative and did not want him to sell
The Times Herald to Washington Post leftists. She was fighting to get her uncle to sell The
Times Herald to her, but she had divorced her husband and Colonel McConnack was down on
her. She was fighting to the last and I was sent out with a vice president of the Post company,
the executive who headed the Post’s broadcast interests, with the contract and a cashier’s check
for a million and a half dollars to –
Mr. Neuchterlein: You don’t want to lose that.
Mr. Temko: I should have gone off with the check. I remember we went to
Chicago overnight on the 20″ Century Limited. We were not supposed to talk to anyone on the
train. In the morning, even as I presented the contract to Colonel McCormack to sign, hs niece
had Dean Manion, the right-wing dean of the Notre Dame Law School, trying to convince
Colonel McCormack not to sell to the Post.
-29-
Mr. Neuchterlein: He is no relation to Daniel Manion is he?
Mr. Temko: I think it’s his father. I am not sure. But Daniel Manion is on the
Seventh Circuit, isn’t he?
Mr. Neuchterlein: Yes.
Mr. Temko: But this was, as I say, sort of a movie script. The plan went through
without a hitch. They started sending all The Times Herald presses out of town. Normally, I
guess the rule of thumb in a newspaper acquisition is that the acquiring paper initially would
keep about a third of the acquired paper’s circulation. Since The Times Herald had all the great
comics and a number of other features, the new merged Post started selling like mad. They had
to reverse the decision on the printing presses and retain them because they needed them to print
the increased circulation.
Mr. Neuchterlein: So, there were how many major papers at that time?
Mr. Temko: After The Times Herald disappeared, there was The Star.
Mr. Neuchterlein: Just The Star and the Post?
Mr. Temko: Yes.
Mr. Neuchterlein: And, before The Times Herald went, which was considered the
paper that you most likely have read?
Mr. Temko: I would have read the Post.
Mr. Neuchterlein: The Post?
Mi. Teinko: Yes.
-30-
Mr. Neuchterlek. How would you characterize the difference between the Post
and Times Herald in those days?
I Mr. Neuchterlein: Which were they?
Mr. Temko: Well, The Times Herald was sort of a Hearst paper. It had great
comics because it had the rights to all the King Feature comics. It was sort of jingoistic in its
editorial policy. The Post was a liberal paper and better written. Of course, it was not the New
York Times, but for that matter, it is still not the New York Times. The Star was a good paper, but
The Star, as I recall, was always an afternoon paper.
Mr. Neuchterlein: Yes.
Mr. Temko: I think I read both of them the Post and The Star.
Mr. Neuchterlein: I can remember when –
Mr. Teinko: After The Times Herald acquisition, I spent more than six months
working out The Times Herald contracts for the comics and the columnists. The antitrust laws
had gotten to the point that, if you had the King Feature comics, which was the best collection of
comics, YOU had to use them or make them available to other papers.
Mr. Temko: Oh, I didn’t read many of theiq but they had Barney Google, almost
all of the traditional big comics. If you didn’t mi or use them yourself, you couldn’t just suppress
them You had to make them available to other papers. The Star and the Post didn’t have any of
the King Features comics. I think the Post’s best strip was “Steve Canyon” and The Star’s best
one was Pogo. We had to figure out which of The Times Herald strips they wanted to use in the
-3 1-
Post and which ones would be made available to other papers. There was a similar task in
dealing with the columnists. The Times Herald had a couple of very reactionary columnists and
the Post had one of its own. There were other op-ed overlaps. We had to figure out whtch ones
the Post wanted to retain and which to terminate. It was an interesting 6 months. Phil Graham,
whom I came to know at this time, offered me a job, but I decided I wanted to stay at Covington.
Mr. Neuchterlein: So you had another opportunity to get back into journalism if
you –
Mr. Temko: Yes.
Mr. Neuchterlein: Did you think about that seriously?
Mr. Temko: Well, I think he wanted me to do legal or executive work. He wasn’t
thinking of makiug me an editor of the paper. We it was an interesting offer, I still wanted to
practice at the fm I’ve always had a varied practice. For many years, I guess, the bulk of my
work was with the pharmaceutical companies. Then I got involved in tobacco. It started with a
small association client that was brought to Tommy Austern, The Tobacco Institute. The
association was just being formed. One requirement for counsel to the Institute was that the fm
not be the regular counsel to any of the major cigarette companies. You could have done work
for them, but you couldn’t be the primary counsel. The work was mainly antitrust monitoring to
eiisure that they didn’t get into any antitrust difficulties. It started as a very small client. Austern
did it and Burke Marshall assisted.
Mr. Neuchterlein: Interesting –
Mr. Temko: And then Burke went down to be an Assistant Attorney General.
-32-
Mr. Neuchterleiu: Yes. He was a professor at Yale when I was a law student
there.
Mi. Temko: Did you take any of –
Mr. Neuchterlein: I didn’t take any of his courses, but he was very well regarded
as a professor.
Mr. Temko: Very nice guy. Very smart. And so, when he left, I took the thing
over. Austem was still the nominal poobah. I did some work for the Institute, and it was a minor
client. It then mushroomed and mushroomed into a major client, until a few months ago when it
had to be dissolved as part of the agreement between the states and the tobacco companies. A
large number of our lawyers worked on Institute matters. We still do a lot of work for the
tobacco companies.
-33-
ORAL HISTORY OF STANLEY L. TEMKO
Interview #2
Mr. Neuchterlein: This is John Neuchterlein and it is part two of my interview
with Stanley Teinko. Stanley spent his career at Covington & Burling and I am going to finish
up the interview that I began a couple of weeks ago. Stanley, we have talked a little bit
informally about the Steel Seizure case and it strikes me as a case that is rich in anecdotes about
how the lawyers prepared the case and how there was almost literally a race to courthouse. I was
wondering whether you could expand some on your memories of that.
Mr. Temko: It was a tremendously interesting case in many ways, quite aside
from its historic importance. From the time the case was filed until an actual final decision on
the merits in the Supreme Court, spanned 2 or 3 months as I recall. This must be almost an alltime record for that type of case, maybe not for a stay of a death penalty, but to have a major
piece of litigation go through three courts and an argument and a decision in the Supreme Court
in so short a time was quite remarkable. It was a period of intensive activity and some of it was
pretty funny. Our firm, Covington, represented U.S. Steel, along with Davis Polk. U.S. Steel
was represented by John W. Davis and Ted Kendall of Davis Polk, our Covington partner, John
Lord O’Brian, Governor Miller, the ex-governor of New York, Howard Westwood of our firm, a
couple of in-house lawyers, and so forth. The way I can illustrate the depth of representation, our
brief on the merits in the Supreme Court for U.S. Steel had, I think, seven or eight names on it. I
think my partner Westwood was the bottom name. I had written most of the brief and my name
was not on the brief. I am not complaining. One of the things about large fmlaw practice is in
-34-
your early years you write briefs and some seniors put their names on them Now a lot of people
do the work and put my name to it. In the Steel Seizure case, all of the major steel companies
were parties. Practically every towering figure at the U.S. bar was involved. Luther Day of
Cleveland, Bruce Bromley of Cravath, Mr. OBrian, and John W. Davis. The way it worked out,
all of the companies had their say. Many of the lawyers participated in oral argument before the
district court. Then, in the court of appeals on procedural matters, Westwood was allowed to
argue for the group. To avoid having a foul-up in the Supreme Court, and I think Westwood was
instrumental in suggesting this, it was agreed that Mi. Davis would argue for everyone. Since he
was fairly old and not in the best physical shape, the only qualifkation on that was that, when he
was arguing or just before he was supposed to argue, he had some physical problem that made it
impossible to argue, then Bruce Bromley was going to take his place. All the others agreed to
this. So it was agreed that Mi-. Davis would make the Supreme Court argument and he, in fact,
did so. I think a big surprise to students of the law, was that District Judge Pine went to the
merits. We went in hoping to get an injunction against any change in the wages and so forth. If
you followed conventional jurisprudence, the district court would never have gone to and decided
the merits of the controversy. But Pine went right to it. I have always thought that – one reason
he felt encouraged to hold the seizure illegal – he might have done it anyway because he was a
pretty strong-willed and tough judge – was the way the government briefed the case. There had
been the Sewell Avery case, involving the Sears executive, concemiug the executive war powers.
That case had gone to the court of appeals and the government briefs in the case contained all the
arguments on the merits on executive power. The Department of Justice lawyers, in writing their
brief for the district wurt in the Steel Seizure case, included the mjor part of the argument on
-35-
the merits from the Sewell Avery brief. In their position, I would have put in something on the
merits, but the brief was far more than just saying the government was right and no injunction
should be granted. They included pages upon pages of the argument from the Sears case that
could lead the district court to get to the merits, which it did. So, from then on it went right up to
the court of appeals and, I forgot, it was 5 to 4, I think, in the court of appeals, but all we wanted
__
Mr. Neuchterlein: It was heard on the bench initially?
Mr. Temko: What?
Mr. Neuchterlein: It was heard on bench?
Mr. Temko: Yes. All we wanted to do was to be sure that while the case was
going on that the labor agreement couldn’t be changed until it was resolved by the Supreme
Court. We were, in effect, the successful party in the court of appeals, and then, as you how,
under the Supreme Court Rules, the successful party could petition for certiorari. John Pickering,
who was working for Bethlehem, and I had been talking about this. Bromley, who was probably
the head guy in Washington at the time, said if Pickering and I think it is a good idea, go prepare
a cert. petition. Pickering and I went back to the Covington offices, which I think were still in
the Union Trust Building at 1.5& and H, and stayed up all night working on the cert. petition.
They had arranged for the barber shop at the Hotel Carlton to be open. Pickering and I went over
and got ourselves a shave. Then Bromley, Pickering and I went up to the Supreme Court to fde
the petition. We did surprise the government by fhg about an hour in advance of the
government. John Pickering may have said to me once that we met someone from the Solicitor
-36-
General’s office going up the Supreme Court stairs as we were coming down, but I don’t think it
was quite that close.
Mr. Neuchterlein: Well, we have a picture of you coming downstairs and I don’t
see anybody from –
Mr. Temko: Well, I’ll tell you the story on that. Bromley was the senior among
the seniors of all the people around at this point. He was a leading Cravath partner and he
represented Time-Life. There was a lot of coverage of the case in the papers and magazines.
Broinley must have said we were going to fde this petition and Time Life and the big newspapers
said they wanted to cover it with a photographer. Bromley, who didn’t have to do this, said to
Pickering and me that since you two guys wrote this petition, come up with me. Sure enough
there were pictures of us standing in front of the Supreme Court coming down the steps, and
pictures like the one on the wall appeared in the New York Herald Tribune. I don’t think there
was a picture in The New York Times. There were pictures on the front page of papers all across
the country because I got notes from fellows I hadn’t seen in years. It was just the thoughtfulness
of Bruce Bromley that included Pickerhg and me.
Mi. Neuchterlein: You got your picture in the press, but not your name on the
brief.
Mr. Temko: That is right.
Mr. Neuchterlein: So, was the reason you tried to fde frst that you thought it was
a strategic advantage to be able to fde a reply brief on the merits and then –
Mr. Teinko: You know, I don’t how whether we focused on that at that point, I
-37-
tl-Link the reason we fded was to keep up the mnomentum. We wanted this thing to go fast and we
were doing well.
Mr. Neuchterlein: Did you know the government was going to be fhg a cert
petition that same day?
Mr. Temko: We assumed that the government would be fhg a cert petition, but
I don’t remember at the point that we fded that we were thinking let’s get in there first because it
will give us the right to open and close. We may have, but the way that came to a head was that,
under the rules then, by being the petitioner, we did have the right to open and close and the
government, the Solicitor General, wrote and said this shouldn’t be. He said the government
should have that right. He was turned down. Later on, the Supreme Court rules were changed so
that it wasn’t who fded first, but who was the real petitioner.
Mi. Neuchterlein: Uh-huh.
Mr. Temko: But they wrote a letter –
Mr. Neuchterlein: To tell you the truth, I wasn’t aware that the prevailing party
could fde the cert. petition anyway.
Mr. Temko: Oh, you could do that
Mr. Neuchterlein: What do you say in a cert. petition when you are the prevailing
party that we expect the other side will challenge this?
Mr. Temko: I think we just, I have it around here someplace, what you do is say
this is a case that is clearly is likely to go to review, that it is clearly rightly decided, and that we
-38-
would like to have it expeditiously resolved. And it was going to the Supreme Court. The
government wasn’t going to give up on what had happened in the court of appeals. To the best of
my recollection, and I haven’t reviewed this stuff recently, Mr. Davis saved a little time for reply,
but didn’t use it because he was pretty happy with what had transpired. And, now the funny thing
was –
Mr. Neuchterlein: Of course, you did get the power of fhg a reply brief as a
result of applying first.
Mr. Temko: UhMr. Neuchterlein: I assume you did, unless you elected not to file on –
Mi. Temko: I don’t know whether we did or not. I amnot sure we did. I mean, it
went so fast.
Mr. Neuchterlein: That is funny. You know, I think the reply briefs are
everything. It is just sort of a foregone conclusion that you will file one now. I think that they
were much more optional in the past.
Mr. Temko: Well, the thing now is I guess they don’t hold up the circulation of
the papers.
Mr. Neuchterleiu: Right. They do hold up cert. petitions. Well, also for the reply
brief now. Believe it or not, they give the petitioner extra time to reply to –
Mi. Temko: Well, you know more about this than I do.
Mr. Neuchterlein: That’s a recent development.
-39-
Mr. Temko: But now, let me go on one other poiut. Westwood was in effect the
chief of staff in the Steel Seizure case. There were all these companies involved, and he came up
with the idea that Mr. Davis, who was sort of the king among kings of the appellate bar, should
argue in the Supreme Court. In preparation for the Supreme Court argument, a few of us went to
New York to work on papers and to be available to Mr. Davis for any questions lie had. Mr.
Davis worked by himself and had one of the younger Davis Polk lawyers run errands and pick up
books for hirn Every now and then he would lunch with us and ask a few questions. I forgot the
name of the case – there is a famous Supreme Court case in which the Supreme Court upheld the
right of the President to seize or to keep from having to sell Navy land on which oil had been
discovered. There were obviously oil riches and the govemnent wanted to keep the land. And
the goverrunent won that case.
Mr. Neuchterlein: Was that federal land?
Mr. Temko: Yes. I forgot the name of the case, but Mr. Davis had been Solicitor
General at the time and he had argued the case upholding the govemment power. We had a lot of
talent around the lunch table, and Mr. Davis was asking what should he say about the case.
There were all kinds of ideas about how to handle the case and everyone recognized it was a
problem for our side. Our position was that the executive branch had no inherent power and the
Supreme Court had certainly upheld the executive branch’s right to hold on to the Navy’s land.
There was a good deal of talk and Mr. Davis never really said whether a view expressed was a
good idea or not. Sure enough, at the argument, Justice Frankfurter asked Mr. Davis about the
case. Mr. Davis responding that he was sitting there as Solicitor General when the decision was
announced and he received a note from the bench. I forgot which Justice sent the note, but it
-40-
asked how a Jeffersonian democrat could have been the party to this. Frclllkfurter thought that
was very fiumy and Mr. Davis never received a follow-up question.
Mr. Neuchterlein: I wish I could get away with that.
Mr. Temko: Well, you have to –
Mr. Neuchterlein: Refusing to answer the hard questions.
Mr. Temko: Well, you have to know what you are doing and, of course, it helps
to be John W. Davis.
Mr. Neuchterlein: I am just curious, how had he accumulated the tremendous
reputation that he had then?
Mr. Temko: Well, he had been Solicitor General, he was a very polished oral
advocate; and he also had been the Democratic candidate for President. The Democratic Party
Convention, I have forgotten which one it was, either 1920 or 1924, was deadlocked and had
gone to 128 ballots. Davis was a compromise candidate.
Mr. Neuchterlein: He was the democratic candidate for President?
Mi. Temko: Yes. In 1920 or 1924.
Mr. Neuchterlein: Wow, I guess he was young then.
Mi. Temko: What?
Mr. Neuchterlein: He must have been pretty young then.
Mi-. Temko: I guess so, but he has been dead for some time. He was considered
-41-
right at the pinnacle of the American bar.
Mr. Neuchterlein: The Steel Seizure case came a few years before Brown v.
Board of Education?
Mr. Temko: Yes. Let me tell you one other thing about the Steel Seizure case,
which is an aside, but I’ll tell it to you anyhow because I mentioned it in a talk I recently made to
our fm We were coming back froin the argument in the district court. Almost all of the
ornaments of the American bar had argued. Charles Tuttle, who was then a senior partner at
Breed Abbott and Morgan, had been Solicitor General, and was a very important New York
lawyer. He was known as the Republican AI Smith. He argued for one of the companies. The
Covington & Burling offices were stiU at 15″ and H and Mr. O’Brian, Bruce Bromley,
Westwood, and I were walking to lunch. And Mr. O’Brian, who was a very proper, wonderful
gentleinan said, turning to Bromley, “You know Bruce, I have known Charlie Tuttle for more
than 40 years and I really think that is the best argument I ever heard him make. He was really
superb.” Bromley, not to be outdone, said he also had known Charlie Tuttle for a long time and
Bromley agreed with Mr. OBrian that Tuttle’s presentation was excellent. Then they turned to
Westwood and they asked, “Howard, did you know Mr. Tuttle?’ And Howard said, “Yes, he
was my father-in-law.” Which was true and which ended the conversation. That, as you know,
was more than 40 years ago, but every time I think of the incident I laugh at it because it just
stopped the conversation dead. Westwood had married Tuttle’s daughter, who had attended
Columbia Law School during the same period as Westwood, and they had been divorced, but
they had been married for several years. But, I just go on. What were you –
-42-
Mr. Neuchterlein: Well, I was going to make a little diversion of my own. John
W. Davis argued Brown v. Board of Education a few years later and I suppose in retrospect it
was a controversial assignment for him to have undertaken. Do you recall what the bar’s reaction
was?
Mr. Temko: Well, I think there was some controversy or views on it but he was
essentially a man of the south.
Mr. Neuchterlein: Where was he from?
MY. Temko: Oh, from Virginia, I think. And I think he went to Washington and
Lee.
Mr. Neuchterlein: But he chose to live in New York?
Mr. Temko: Yes. Oh, he came up there and he was the head of Davis Polk but he
was clearly a Virginia gentleman. Some people said that he should not have taken the
assignment, but I would not have been surprised fromhis background that he was going to do it.
Of course, in those days, even when you had some things where people would say, well, why
would you do that, you still had the argument that I think had more currency than it may have
today that you are only the lawyer, you’re not necessarily agreeing with every case you are
arguing.
Mr. Neuchterlein: Although, I mean some law fm, I guess, do sometimes, after
pressures are imposed upon them, decide not to represent a particular client.
Mr. Temko: There is more of that now and I think there are a number of instances
-43-
where law fm for one reason or another won’t represent particular clients. There were some
people who, as I recall at the time, said they wish that John W. Davis hadn’t taken the case
because he was at the pinnacle at the bar. I wasn’t surprised because, while he was at Davis Polk
up in New York, he had always been from Virginia. I think he had gone to Washington and Lee;
he may have been their most distinguished graduate. The closest I even got to himreally was
when we met in preparation for the Steel Seizure case. I heard hn argue a few times and he was
an exceptionally good oral advocate. A real gentlemen. But then I think we were talking about
going from there – are there pressures not to represent some people?
Mr. Neuchterlein: Right.
Mr. Temko: There are always some pressures and I think in some ways attitudes
have evolved from the time of Brown v. Board of Education. There always have been some
lawyers or law fm that just didn’t want to represent certain kinds of people or issues. The
traditional view – that you don’t tar the lawyer with the views or sins of the client – enabled the
lawyer, as long as he acted honorably, to represent almost any type of client on any issue. Whde
that is still the view held by many, firms think a lot more closely before they take on certain types
of causes. And I am not talking just about taking care of criminal defendants, but of politicized
causes, for example, resisting Holocaust reparations. In law partnerships now, which are larger
and more democratic, if there is something that a number of partners don’t like, they say so, and
firms in many instances won’t accept a client in that event. One thing, it isn’t just that there are
higher standards of morality, I think one of the factors is, If you take on a cause that really is
universally condemned in the law schools or condemned by a large group of law students, it can
run into your recruitment very badly. People say well I just don’t want to work for the firm that
-44-
represents “X’. As I recall, Ralph Nader picketed Wilmer Cutler one time on some auto
representation. They were out there walking back and forth and picketing Lloyd Cutler. There
have been recent instances – the various types of cases involving slave labor, the confiscation of
German-Jewish bank accounts, the stealing of German-Jewish art. There have been questions
raised about firms that have represented some of the Swiss banks and some of the German and
Swiss industrial combinations, even though they were regular clients of the firms.
Mr. Neuchterlein: Well, do you think it is a good development or a bad
development that law firms are starting to discriminate among the clients and causes that they
represent?
Mr. Temko: I guess in my own way, there are certain things that I would just as
soon the fm I am in didn’t represent. But they are few and far between. And I think there is
something to the point that if you start just leaving everything up to, pretty much, do we like
these people or not, then I think we can be in considerable trouble.
Mr. Neuchterlein: Why is that?
Mr. Temko: Because, while I have always been dubious of the concept of the
slippery slope – if you say you are going to represent “X’, but I don’t want you to represent “Y’ –
you wiU always have some people who are going to be against or not happy with one or more of
the type of clients that the fm has.
A4r. Neuchterlein: I guess this is a bigger problem with large law fuis than it
would be for small ones.
Mr. Temko: Oh, yes.
-45-
Mr. Neuchterlein: It is a lot easier for a five-lawyer practice to –
Mr. Temko: That’s right. A five-lawyer practice in a way has a little different
problem First of all, a lot of five-lawyer practices are people who don’t want to be in a megafinn and want to do a certain kind of work, so it wouldn’t be much of a problem for them
Although, one of the other aspects of that is some people say they don’t want to practice at a large
fnm, because they don’t want, in effect, to be a cog and not have any freedom But they don’t
recognize that d you are iu a sd finn of three, or five, or seven people, in many cases you will
be dependent, your whole practice will be dependent, on two or three clients and you’re a good
deal more circumscribed and have less freedom than a partner in one of the larger f-mns. In other
words –
Mr. Neuchterlein: Is that because you don’t have the resources to take on large
cases?
Mr. Temko: Not so much the resources, but that, iffor some reason you have a
falling out with a major client in a small firm, your practice can be half gone. Now, I don’t want
to go into detail of it, but at one point I was working with others for a major corporate client.
The client wasn’t taking our advice to the degree that we thought necessary. It was, of course, an
important client, but I was a young lawyer then and the partner in charge said well this is
ridiculous because we are doing the best we can in advising them and, if we can’t get through to
them, there is no reason to continue representation. So we just quit. Now a lot of firms wouldn’t
have done that.
Mr. Neuchterleirx Of course if the company is paying you for the advice that they
-46-
don’t take, then what is the disadvantage of continuing to advise them?
Mi-. Temko: Well, this was as much frustration and the partner in charge who was
a very bright individual concluded that even though they paid us for the advice, he didn’t want to
spend his time trying to figure out answers to questions, and having themnot followed. I have
been on cases throughout my career where we are asked for advice by a large organization and
we tell them here is something you can do, and absolutely no question can be raised about it, here
are some things that can raise legal questions but are possible solutions, and here are some things
that we certainly don’t think you ought to do because you would have to be very lucky not to get
into serious legal trouble. And, on some occasions, after you explain this all to the client, they go
right ahead and do the thing you tell themnot to. And the word I was given, when I sometimes
expressed frustration at this when I was a younger lawyer, was we do the best we can. If they are
foolish and don’t follow our advice, that’s their decision. But there was this one case I mentioned
– it was just too frustrating to continue and the head of our group said let’s knock this off and we
did.
Mi. Neuchterlein: Do you think that a lawyer has, I mean, I have heard some
people say that an important part of being a lawyer is a willingness to take on virtually any client
For a lawyer to be essentially view point neutral when asked to take on representation. Do you
think that is an important part of being a lawyer?
Mr. Temko: Well, this isn’t that simple. I am talking about mainly as a lawyer in
a big Washington fiq it could be in a big New York firm or other city that is in the business of
representing large corporate clients. Many of such clients, even though they are doing things that
-47-
are clearly legal, are doing things that some people personally don’t like. One thing, I represented
drug companies for the principal portion of my career and a lot of people think that drug
companies charge too much for their drugs. Now, I can see where some people would say that
you ought not represent drug companies, or environmental polluters or some such thiug. Usually
I adhere to the view that you shouldn’t inerge the lawyer with the client, and you ought to take the
representation. I can see that inroads are being made on that to some degree. On the question
should a lawyer in effect represent anyone, in other words that he is not the one who has
committed a misdeed, I still feel strongly that this policy should apply in pro bono work or in any
kind of representation of people who are under-served now and can’t get adequate representation.
I think the best traditions of the bar are served generally by representing anyone. I think this is
being modified to some degree. There are some extreme situations – representing, for example,
South African entities supporting apartheid or representation of banks involved in some of the
current controversies dealing with Holocaust reparations. I think more and more people are
questioning whether a firm wants to represent them or not.
Mi. Neuchterlein: You mentioned to me a few minutes ago that you were the
chairman of the management committee for a tune?
Mr. Temko: Yes, our firm had a five-person management committee which, in
effect, ran the fm But we changed a little bit recently because we just in the last week acquired
a New York fm and will probably put some of those people in some management positions.
For most of the time when I was a share-partner, our governing body was a management
committee of five partners. It was pretty much self-perpetuating with staggered terms and one
person’s term coining up every year. And the management committee itself would elect its
-48-
chairman. Now if, there was something –
Mr. Neuchterlein: How was the membership of the management committee
determined?
Mr. Temko: By a vote of the partnership. It was set up in a way that one person
came up for a vote each year and that would be someone nominated by the management
committee
approved.
As long as the management committee made a selection, it routinely would be
Mr. Neuchterlein: It was self-perpetuating.
Mr. Temko: And in the old days, some of us stayed on for protracted periods.
Mr. Neuchterlein: How long were you on?
Mr. Temko: I was on, I think, 11 years.
Mr. Neuchterlein: When did you begin?
Mr. Teinko: I am trying to think.
Mr. Neuchterlein: Was it in the OS?
Mr. Temko: You could no longer be on the management committee when you
reach your 6S” birthday. So, I amjust trying to figure something. I must have been on sometime
from the early ’70s until the inid-’80s.
Mr. Neuchterlein: And you were the chairman for a while?
Mr. Temko: I was chairman for about 3 or 4 years.
-49-
Mr. Neuchterlein: So, what was it like for you professionally to be on the
management committee after, I suppose, 20 years of being a lawyer in the firm? How did your
perspective on the fm’s practice change?
Mr. Temko: Not a lot. One thing that has changed, certainly through my time and
a little afterwards, most of the people on the management committee still carried on a pretty
heavy practice of their own. And we didn’t spend that much time in the management coinmittee
so that it was nice to be “one of the leaders of the finn,” but it didn’t interfere that much with
your practice. I think as the fm get bigger, and more complicated, you have to spend more and
more time on management committee matters.
Mr. Neuchterlein: Well, I suppose how much time you spend depends on a
number of variables including saliently whether compensation is discretionary with the
management committee.
Mr. Teinko: Well, many factors can affect the amount of time involved. I should
say at the outset that there really aren’t that inany important day-to-day decisions in a law firm.
That inay sound peculiar, but it is a fact. There are: (a) the election to partnership; (b) allocation
of shares or remuneration; and (c) which can be troublesome – the resolution of conflicts. We
have an exhaustive examination and review of the lawyers coming up for partnership. There is a
partnership advisory committee that interviews everyone and prepares extended analyses. It then
goes to the inanagement committee and then is voted on by the partners. Similarly with
remuneration, happily, fighting over money has never been a big deal at Covington. I guess it
started with Mr. Burling who took hardly any remuneration and we, over the years, had had very
-50-
few episodes with people saying they weren’t paid enough. So that falls into line.
Mr. Neuchterlein: Well, many Washington firms had a lock-step policy for a long
time and I think Wilmer still does.
Mr. Temko: Wilmer may have changed it
Mr. Neuchterlein: With some modifications, I think the –
Mr. Temko: Wilmer started that mainly because I think it followed the Cravath
traditions. The original Wilmer partners came from Cravath and Cravath may still be in a lockstep system. Covington was in modified lock-step for a while. In other words, we don’t inake
invidious comparisons for lawyers just a few years into the partnership. I think going in lockstep is now far less common than it used to be. I think even a place like Wilmer, I suspect, has
changed that a bit.
Mr. Neuchterlein: So it is largely merit based here?
Mr. Teinko: Yes, to some degree. It also goes on seniority to some degree, what
you are doing in your practice, your work on fm matters and your pro bono work.
Mr. Neuchterlein: I am going to ask Mr. Teinko now general questions about his
perception of how practicing law in Washington has changed since he was a young man and I
guess maybe I can begin by asking you how you think the relations with clients have changed
since the early days. You know, some lawyers claim that they are under much more pressure
from clients than they used to be. That clients are much less loyal to the law firms; that they
watch the bottoinliue much more than they used to. What’s your reaction to that?
-51-
Mr. Temko: I don’t think I would be much help on that but, let me see if I can
answer it this way. First of all, I amnot nearly as active a practitioner now. I do some things, but
there is no client at this point where I am responsible for talking to the chief executive officer.
Every now and then I will go to a meeting and I iind that the executives I dealt with are two or
three generations back and the whole company is run by people who weren’t even there when I
was actively practicing. I think inmany ways our practice is still the same. There will always be
Covington lawyers who will know the company’s top executives. Maybe there are more
instances where the top dog is more removed from the legal problems than they would have been
15 or 20 years ago. Companies, like the government and other institutions are layered more.
You can have a very heavy hitting senior vice president and general counsel who really may be,
for all intents and purposes, the guy who is calling all the legal shots. Some years back there
would be a general counsel, but frequently the chief executive officer would really be more
involved himself. I really don’t think our practice has changed that much in that respect. On this
question about being more interested in the bottom line, there clearly is some of that. An
interesting development is that a lot of companies use more than one or two law firms. Now
there is the other extreme, they don’t want to use 200 or 300 law fmm, but they want to pick
firms, and individual lawyers for assignments. If you go back 20 or 30 years ago, there would be
frequent examples where one of the bigger law firms was, in effect, the general counsel to a
major corporation. Examples were Inco and Sullivan Cromwell, Bethlehem Steel and Cravath.
Davis Polk had, you know, a number of such encompassing representations. The Chadbourne
firm was the counsel to American Tobacco. Today, even if you have a firm that has a very close
and satisfactory relationship with a corporation, you will fmd that the company may go out and
-52-
retain other firms for different things. Even aside from hiring people with certain specialties, a
company with major litigation in a certain court may decide it wants to get “X” even though he is
not in its regular law fm Companies now focus in more instances on who would be the best
guy to represent it in a particular court or before a particular judge or jury.
Mr. Neuchterlein: I recall that when I was in private practice I wondered whether
clients were really doing the right thing when they approached litigation that way because my
view is that the best lawyers are intellectually so flexible that they can learn a subject area very
quickly and represent the client as well if not better than someone who spends his whole career
focused only on that subject area. What is your reaction to that?
Mr. Temko: Certainly in an appellate argument, you ought to be able to bring
someone in who can master the case in a limited amount of time. I thiuk it is harder to bring in a
new fmn or lawyer in a major trial that evolves from years of discovery. I would think that in
my of these cases where they bring in another counsel, it is frequently more politics than law.
The thought that “X” would do better down in Atlanta, or “Y” should be well received in the
Second Circuit. If they bring new people in, it’s frequently the fact that they think somehow it
will give them a leg-up and I think in most cases they can do a good job. On the other hand, we
have had cases where the other side brought in a big name in the Supreme Court and he wasn’t
very well prepared. But to go back to what we were taking about before, I think there is more of
a pattern of fi~m having multiple representation.
Mr. Neuchterlein: So we were talking about the tendency of clients to pick
lawyers for more specialized tasks.
-53-
Mr. Teinko: Well, there is the reverse of that in some cases. Major corporations
which have all kinds of litigation throughout the country, particularly product liability, suddenly
sit down and say we have 240 different law firms representing us. This makes no sense at all and
we are going to sit down and take that list of 240 and get it down to about 15 firms, either
geographically or by subject. That has been done by a number of corporations. I am not as close
to it as I was, but we still pretty much represent people in the way we did, still pretty much
charge on the basis of time. I mean we will make special arrangements or some such thing, but
happily we‘ve never overloaded cases. We never had enough people, some of the New York
fmm, if you start something, have 10 people writing memos right off. It ims right up. So we
nonnally are pretty lean in the way we staff a case and I think usually we get paid for our time
and its usually been satisfactory.
MI. Neuchterlein: Do you find that your relationship with other law firms is now
more competitive than it used to be. The word on the street is that a particular law firm would
have a long tenn institutional client and that client would normally rely on that law fm to help
them But that now law firms tend to compete more for the business of that client. Do you find
that that’s true?
Mr. Temko: Well, 1 would say two things. One, there is no doubt that there are
lawyers out there who would be glad to take any business from anyone. That is going on. So,
sure we have people who are sort of competing against us and I think, particularly in the younger
groups, and younger to me is people up to say 45 or 50, there is a more entrepreneurial spirit.
Lawyers will see an article in a newspaper about a new case and ask whether we have contacts
with the companies involved. A relatively new development is “beauty contests” where a
-54-
company has a mjor problem and it will have three or four law firms make pitches for the
assignment. And we participate in some of those.
Mr. Neuchterlein: Now are you happy about that development?
Mr. Temko: I don’t think it comes down to whether you are happy or unhappy
because it’sjust a fact of life now. I would answer in this manner. That is the way life is now
and I think all firms have to be more entrepreneurial than they were. In the early days, and I have
been here in this firm 50 years, we always had rainmakers. You always have in any big law firm,
there will be some people who just attract business for a variety of reasons. And we had
rainmakers, but a large part of our business just came flowing to us: (a) because of the reputation
of some individuals in the group; and @) because Covington & Burling was the number one act
in Washington. A lot of business just came. Now some work still comes in that manner. We
still have clients that we had, gosh knows how long. There is no doubt, however, that a firm, in
many instances, has to go out and look for business. If all the younger partners simply rely on
some partners bringing assignments for them, a fm is going to go downhill. This is oldfashioned, but I do not like some recent developments. One, I don’t like the idea of law finns just
going out and merging, merging, and merging, picking up people all the time. That is, however,
a trend that appears here to stay. I am not personally enamoured with the other side of that coin
which are lawyers, some of whom are tremendously competent, who literally stay at a place for
one year and then move again. This is no exaggeration. It isn’t as though they stay at a fm for
10 years and then move. Now, a fellow can be in four fm in 5 years.
Mr. Neuchterlein: Just time for a little extra money.
-55-
Mi. Temko: Just a little extra money. They always have an euphemism involved
saying, I’m changing because the fum wasn’t as compatible as I anticipated or it tuned out in my
practice I ran into conflicts with some other things, but most of it is just to make more money.
Most big firm lawyers certainly make enough money in whatever fm they are that they should
be happy with their practice. I think there is now a view, I have heard it expressed sometimes,
saying why should investment bankers in New York inake more money than I do.
MI. Neuchterlein: Well, I think there really is not much you can do about that if
you [not decipherable].
Mr. Temko: As I say, I was never happy with expanding by simply picking up
firms all over and I didn’t like the concept of people changing firms so often. I think I am a
minority there and it’s a vanishing type of thing. Once I came to Covkgton I assumed I would
spend my professional career at Covington and most of my partners felt the same way. Just a few
weeks ago we actually acquired a 60-lawyer New York firm They dissolved the New York fuin
and, as of October 1, just the past couple of weeks, the partners in the firm became partners in
Covington and the associates in the fm became associates at Covington. And their firm, which
I think was called Howard, Smith and Levin, went out of existence. But we always thought that
in the next century we would need a presence in New York and the more we thought about it,
there wasn’t any easy way to just do it by either sending lawyers from Washington or getting
laterals from other places. This small New York fiin, which had a very good reputation, seemed
to like us and we liked them, so there we are.
MI. Neuchterlein: A lot of your comments point to a change in the style of legal
-56-
practice over the years and you mentioned a few minutes ago, the tendency of partners, perhaps
less so in Covington than other places, but in general the tendency of partners to, the willingness,
the increased willingness of partners to consider a move to other firms. What do you think has
contributed to that change in attitude?
Mr. Temko: I would think, one, that it just, the situation that has developed so
that these moves are more common and a lawyer who wants to move doesn’t have to suddenly
say, “Gee, I’m the only person who has ever gone and left the firm” But to me, it’s principally an
aspect of law becoming more of a business and less a profession.
Mr. Neuchterlein: Why is it more of a business now than it was?
Mr. Temko: Principally because they are more interested in money.
Mr. Neuchterlein: But is there a larger societal reason for that? Are there other
changes in the economy that would make lawyers more like businessmen today than they used to
be?
Mr. Temko: I think it has developed that way. Well, look at financial practice
and mergers and acquisitions. If you’re a lawyer in mergers and acquisitions you are working
next to the investment bankers in New York. You see some of the things they do, how much
money they make, how they jump ship and so forth all the time, and you sort of start doing it. I
don‘t –
Mr. Neuchterlelli: Well, why wasn’t, why didn’t that effect people back lli the ‘50s
and OS?
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Mr. Temko: I think just that law was more of a profession. But I realize that,
when you say that, it makes you sound that you’re saying they don’t cobble shoes the way they
used to. But, law practice has changed. Mauy people have said this and I think it is true, that law
is much more of a business and less of what, and people used to laugh at this, but we were in a
learned profession.
Mr. Neuchterlein: If you were 21 now, would you go to law school?
Mr. Teinko: I think that there would still be a good chance that I would because
of the same reasons that I went to law school in the frst place. I clearly was never going to go
into medicine; the last thing I wanted to see was blood in a hospital. The things that appealed to
me in those days would stiU appeal to me. One, I always had a thought of maybe going into
journalism, or, if I had the aptitude, which I don’t, I would have loved to have been an architect. I
know you don’t have to be Picasso to be an architect, but I didn’t have the talent. Journalism, I
might go for that, but I would probably go into law anyhow. It seems to me that, with a minority
of exceptions of people who are on all the talk shows, journalists, by and large, are as smart as
any group of people I know, but don’t get any of the recognition that you do if you are a
successful lawyer. Both financially and otherwise.
Mr. Neuchterlein: Well, what about the lucrative professions like investment
banking or venture capitalism?
Mr. Temko: I guess I might go into that. In the days that I graduated from college
aud law school, I was going in the Army in any event. But the concept of everyone desiring to be
a Harvard MBA wasn’t that big of a deal. There is the pull of being tied into the thrill of venture
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capital and the opportunity to make a pot full of money, but I would say that by and large that
being a lawyer to me would be just as or more satisfying. I have never regretted being a lawyer.
The only decision, in retrospect, that I might have done differently, would have been to spend
some more time in a government position. I had all kinds of chances to be a professor if I wanted
to and I didn’t want to. And I never sought to be ajudge. The one thing, in retrospect, about the
time the Kennedys came in, a lot of my contemporaries went into the government and I didn’t. I
had chances to go in then. I think if you go in at a decent level – I would have been about 40
years old, you can get to be an Assistant Attorney General or Assistant Secretary of Defense and
stay in for a few years and then go back into practice. Then when you are 55 you can either have
someone put your name in, or you put your name in yourself, to be a cabinet officer or some
other senior appointee. In retrospect, I might have gone into the government in mid-career for a
while. And then, I guess if you do, maybe you get the thought that you want to be a judge. I
never pursued that course and I have always been, as I say, happy practicing law. It is sort of
chauvinistic, but I have always thought Covington was a good place to practice law and I have
always had an interesting practice and good people to practice with I think the law has become
much more of a business. It is even somewhat more of a business in Covington although we
have managed to avoid most of this stuff, having people leave us and raiding other firms. But,
some of the D.C. fm, it sounds almost ridiculous when you talk about it, have procedures set
up to detenniue compensation where you have factors, how many hours you work, what you
brought in, how many people you are keeping working and so on.
Mr. Neuchterlein: My wife worked at a major Washington law fm where every
year there would be a meeting of the partners and people would basically humiliate themselves in
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front of the group, pleading for more money, or expressing their outrage that they weren’t
sufficiently appreciated and every year they would go through the same motions. There are
probably disadvantages in having a firm that is that democratic because I think that in that fmn
all the partners every year had to rat* the compensation decisions. And everybody knew what
everybody else was making, and –
Mi. Temko: Well, here, you know, the other extremes, there have been a couple
of New York fims where the only people who really knew the total compensation was either the
chairman of the firm or one other person, and the other partners literally never knew anything.
Now, that is one extreme. Here, we don’t have everyone come in and sing for their supper, but
we have, of course, the accountant’s report at the end of the year and anyone can get a copy of
that and see what is going on. But, I am happy to say that, over the years, we never really got
into a mode where it was sort of dog-eat-dog. And I think that is pretty good. As I say, I’d also
be happier if there weren’t these acquisitions leading to global law fm with 1,200 or more
lawyers, but I think that’s going to go on. You can’t do anything about it. But, the thing I enjoyed
particularly, retracing steps a bit, I guess when I started here, there were probably about 70
lawyers. And, while I guess even then tax lawyers were sort of specialized, you could do almost
anything you wanted. And, over the years, I participated in d different kinds of matters so it
was very interesting. Now it is harder to do that now. So, I guess it is the same thing that you
have in medicine where, while they want to go back to sort of a general practitioner or internist,
if you are going to do hip replacements, you really have to focus on hip replacements. You can’t
also just spend your time with a kid who has a cold. Here, if you really want to be at the cutting
edge of communications law, it is pretty hard to do everything else. But I did all kinds of things.
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I had a lot of variety.
Mr. Neuchterlein: As it turns out, I am the person in my office who is supposed to
be the expert in telecommunications.
Mr. Temko: Well, there you are.
Mr. Neuchterlein: But it is only ten percent of my portfolio. It is hard to do that.
Well, this is, this interview is supposed to be in part about the D.C. Circuit, I suppose, so I am
going to have –
Mr. Temko: That’s right, we haven’t done much on it.
Mr. Neuchterlein: We haven’t talked much about the D.C. Circuit, but you were
friends with a couple of D.C. Circuit judges, Judges Leventhal and McGowan.
Mr. Temko: Yes.
Mr. Neuchterlein: Both of them figure prominently in the history of the D.C.
Circuit and I wanted to ask you a little bit about your friendship with those two.
Mr. Temko: The Supreme Court Justice I clerked for – Wiley Rutledge – had
been on the D.C. Circuit.
Mr. Neuchterlein: How long was he on that court?
Mr. Temko: I think a couple of years. Just a couple of years. I don’t know
whether I mentioned the story to you, he had, when he was nominated to be Justice of the
Supreme Court, and I could be a little off on this, I think he told me he had never met President
Roosevelt before then. But Rutledge told me that, when he frst met Roosevelt, Roosevelt said,
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‘Wiley, you sure have a lot of geography.” Rutledge had been a dean or a professor at about four
or five mid-westem state law schools, Iowa, Iudiana and so forth, so that from a political point of
view his was an appointment you could make that was a lot of help politically. He enjoyed the
work on the court of appeals and, of course, his work on the Supreme Court was cut short. I
knew a couple of the others who had been on the court, but on the court of appeals the two judges
whom I hew the best were Carl McGowan and Harold Leventhal. I knew them mainly around
town and socially, although I think I had an argument before McGowan one time, happily it went
my way. Both of themhad gone to Columbia Law School and I got to how them that way, but
then I just, around towu, I saw both of them a good deal socially and I followed their work a bit.
I thought they were both outstanding judges. I was quite shocked when Harold died. He
certainly wrote some excellent opinions.
Mr. Neuchterlein: I remember, he died playing tennis, didn’t he?
Mr. Temko: He may have had an attack there. He played tennis. He was, I don’t
think he was 70 yet when he died. Carl was older than that, but I think he had cancer. And, as I
say, I didn’t really know them as a barrister before the court who appeared a good deal. They
were both quite intellectual.
Mr. Neuchterlein: Yeah, Leventhal is sometimes described as the father of
administrative law.
Mr. Temko: Well, some other people might take issue with that. I guess people
would say that Walter Gelhom could have been the father of administrative law. Even though he
was never ajudge. But, no, Leventhal wrote a lot of really important opinions on administrative
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review.
Mr. Neuchterlein: Was [not decipherable]?
Mr. Temko: Leventhal wrote a whole series of important decisions. Carl, who
might not have impressed someone offhand as being that intellectual, was also a serious student
of the law. Every now and then I would be talking with Judge McGowan and he would like to
discuss legal issues and what was going on.
Mr. Neuchterlein: Who appointed McGowan?
Mr. Temko: Gee, I don’t know. The thing I remember most is that McGowan was
very close to Adlai Stevenson. I think he was counsel to Stevenson when he was Governor of
Illinois. I don’t know who appointed Carl, but one of the funny things was he also –
Mr. Neuchterlein: Like Kennedy or Johnson?
Mr. Temko: Beg pardon?
Mr. Neuchterlein: I said it would be Kennedy or Johnson.
Mr. Temko: I guess. Carl was a pretty good friend of Dean Acheson and the fact
was Dean Acheson had rather serious misgivings about Mr. Stevenson and Carl tried to broker
the differences. Carl was a very nice guy. His wife is now married to Warner Garduer. You
bow Warner Gardner?
Mr. Neuchterlein: Is that the Gardner of Shea and Gardner?
Mr. Temko: Yes.
Mr. Neuchterlein: In fact, he came to give a talk to people in the S.G.’s office a
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couple of weeks ago.
Mr. Temko: Well, he was in the S.G.’s office for some time.
Ivlr. Neuchterlein: Right. He showed us a picture of the group of people who
were there during the New Deal era. Quite a few stars there.
Ivfr. Temko: Oh, yes.
Ivfr. Neuchterlein: And then one villain. I am blanking on his name. The person
accused of espionage in the Nixon –
Mr. Temko: Hiss?
Ivfr. Neuchterlein: Yeah, Alger Hiss was there. He was at the S.G.’s office during
that time.
Mr. Temko: I didn’t know he was in the S.G.’s office. I knew he was in the State
Department and so forth.
Mr. Neuchterlein: Notorious [not decipherable].
MI. Temko: His father was a partner of ours, Donald Hiss.
Mr. Neuchterlek: Huh.
Mr. Temko: And Donald Hiss had been, he was one of Holmes’s last clerks.
Mr. Neuchterlein: Uh-huh.
Mr. Temko: I never knew Alger Hiss at all; I knew Donnie pretty well.
Mr. Neuchterlek It must have been pretty hard on –
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MI. Teinko: Yes, but the firm stayed very, very, supportive and he kept practicing
here. I think, well, there is a quote that Dean Acheson said he was not going to turn his back on
Alger Hiss. But, no, sure it was hard on Domie. The stuff that is coming out in the papers
yesterday and today on the declasslfying the grand jury transcript of Nixon’s appearance. It
seems quite clear that Nixon was instrumental in a clever way in getting the grand jury to indict –
it was fascinating. I read all the books on the Hiss case at the time and –
MI. Neuchterlein: I think that, I mean with the release of some documents in the
Soviet archives that, I think that it is becoming increasingly apparent that he really was a spy.
Mr. Temko: Yes. But, now I don’t know many of the judges but, just as an
onlooker, it seem to me that the D.C. Circuit is increasingly divided, more so than it was in
some of the earlier incarnations. I should have mentioned Wald as well. I believe she has said
that despite their differences, it is really a congenial court. It sure doesn’t give you that
impression. And some of the judges seem to be almost intemperative iu the way they act.
Mr. Neuchterlein: Yeah, well that was the case when I clerked there, too. I
clerked there in ’90 and ‘9 1.
Mr. Temko: For whom was that?
Mr. Neuchterlein: Judge Williams. Stephen Williams.
Mr. Temko: Oh, now he is conservative.
Mr. Neuchterlein. He is a libertarian.
Mr. Temko: But he doesn’t seem to go off the deep end personally as much as
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some of them do like Silbennan. I would never say some of the things that they say. There were,
20 or 30 years ago, conservatives or liberals, but the court didn’t seem so polarized.
Mi. Neuchterlein: I think there is more partisan feehg generally in this city than
there used to be.
Mi. Temko: Oh, right now I would agree with you on that completely. The one
other thing, as I say, it is nice of you to interview me, but I amnot the person who can tell you
the ins and outs of the D.C. Circuit, although, as I say, I knew McGowan and Leventhal well and
I have known Wald for 30 some years, and how some of the others casually, and I think that in
aU my career, I probably had about two or three arguments in the circuit.
Mi. Neuchterlein: Uh-huh.
Mr. Temko: That’s about all. Not that I had thousands elsewhere, but it is
certainly an important court. On the practice of law, which we were talking about, and this is a
refrain that you get from a lot of older lawyers, I do feel that the practice of law has become less
professional, more of a business and, while it didn’t have to keep the mores of 1900, I think it
was a friendlier type of milieu for the practice of law 20 or 30 years ago.
Mr. Neuchterlein: So, if your grandchild were thinking of going to law school
next year, I guess I really had a two-part question. One is would you encourage him to do so and
the second part really is, if he becomes a lawyer, particularly in this city, what advice would you
have for him?
Mr. Temko: Well, I may not have the right answer for you here. I have to start
really with my own children. Both my wife and I never told our sons what they ought to do. The
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people would say, obviously, with both mother and father lawyers, the children were encouraged,
even told that they had to be lawyers. Nothing could be farther from the truth And I think two
of our sons went to law school because they weren’t quite sure what they wanted to do and they
decided they would go to law school. If a kid came, if a grandson, I guess my oldest grandson is
only about 14 or 15, but ifhe came to me and said that he was thinking of going to law school, I
would certainly say, ‘Well, you have got to make up your own mind, but I think it is a pretty
good thing to do.” That’s what I would say.
Mr. Neuchterleiu: And, ok, let’s say that –
Mr. Temko: If he then came to practice here, I’ll tell you there again, you have a
problem I never had a problem in the sense of where to practice in this sense. I never had any
desire at all of practicing in a small firm I wanted to practice in a big firm and just assumed I
would; and I started off briefly before the war, at what was then Root Clark in New York and
then down here I ended up at Covingtoii because it was not a giant fism, but it was the biggest
firm, and I think generally considered the best fmn here. I suspect that if I had a grandson who
was getting out of law school, there are a couple of things I would tell him to do. One, I think, if
you can, it is good to clerk for a judge. It is a useful thing, not so muchjust for the prestige, but I
think clerking gives you a wonderfully broad experience. You get a different type of learning,
depending whether you clerk at the trial level, or at the court of appeals or the Supreme Court,
but it’s an opportunity at any of those levels to get a far broader look at the law than you would
just going right into a fm or the government.
Mr. Neuchterlein: Uh-huh.
A
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Mr. Teinko: From the Supreme Court clerkship, I think the broadest view I ever
got of glJ aspects of the law was doing the cert. memos because you are going to get something of
everything there, be it patents, or – there is no part of the law that you don’t get to see. If you are
clerking for a district judge and he is one of the judges that lets you sit in the court a bit, you can
pick up an awful lot about trial stuff quicker than any place else. And, in a good court of appeals,
you get a pretty decent cross-section of cases. I believe that you ought to try to be a clerk. I
would still think that I would suggest going into a bigger law firm, although they are different
kinds of things now. First, of all, one of the funny things, if you are talkiug to someone who
wants to be in financial sort of things, you can go to Harvard Business School, but the investment
bankers are just as hot to hire people out of law schools as they are to hire people from Harvard
Business School.
Mr. Neuchterleiu: Why is that?
Mr. Temko: Because lawyers are smart, they can write, and whde they may not
have had Harvard Business case studies, they are pretty knowledgeable people. I think one of the
things that favors good young lawyers and why you can have lawyers get so much responsibility
is more and more people can’t write a literate sentence and usually a lawyer can put something
down on paper quicker and better than a lot of these people who come out of college. So they
just are a talented group.
Mr. Neuchterlein: I think that is true of Washington lawyers who practice in the
prestigious Washington firms. I must say that I see a lot of illiterate briefs.
Mr. Temko: Oh, yes. But what I am saying is, you don’t have to be the president
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of the Harvard Law Review, but if you have been on the Harvard Law Review or have a decent
academic record, you are probably able to do the work figuring out stuff for J. P. Morgan or
Morgan Stanley just as well as business school graduates. But, then there is some other career. I
think a number of very talented young lawyers want to go down to the district attorney’s office
pretty early and get 2 or 3 years where they are really trying cases. They clearly, even if they are
in a firm that has a great deal of litigation, will get more exposure to actual litigation in the U.S.
Attorney’s Office than they will in a fm And, we have it here, and in other fm, where people
work in the D.A.’s office for a few years and then go into practice with a pretty good head-start in
litigation. So there are all kinds of career openings. Another thing that is much broader, if you
are a young person who wants to travel or likes to be in a foreign country, you always had a few
fi~m that had small foreign offices. Now, a person says I want to practice law, but I would like
to get to the Far East, or South America, or to London or Paris or Brussels for a whde. There are
any number of fm that say fme. We can put you in London or elsewhere. So, there are all
kinds of career choices for young people. And I think it is still a pretty good profession. But
maybe that is because I am getting older.
Mi. Neuchterlein: [laughter] I think that is probably an appropriate note on
which to close.
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