23
Interview of James F. Davey
Session #2 – May 29, 2008
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is James F. Davey. The interviewer is
Steven P. Hollman. This interview was conducted by telephone on May 29, 2008, commencing
at 4:00 p.m.
Mr. Hollman: Greetings.
Mr. Davey: Hi, Steve, good to talk to you again.
Mr. Hollman: It’s nice to speak to you. I have regards for you from the current clerk, Nancy
Mayer-Whittington, with whom I met this morning.
Mr. Davey: Oh, is that the first time you met her?
Mr. Hollman: I think I had met her before, but the first time I actually sat down and had a
conversation with her.
Mr. Davey: Oh, great! She’s a wonderful lady.
Mr. Hollman: She is terrific, and she was extremely helpful. And I actual went away with
what’s marked a “History File” on Watergate, which is fascinating reading.
Mr. Davey: Oh, well you know, after I talked to you last time, you thought that Nancy might
have some stuff, and I said I didn’t think so, but I guess we did leave her some
stuff.
Mr. Hollman: A lot of it is correspondence with National Archives about material that was sent
over to the Archives, but it includes, for example, the Exhibit List from the trial
which itself is fascinating reading.
Mr. Davey: Yeah — you can get — not bogged down, but it’s some pretty interesting stuff
went on those days. Well I’m glad you met her. Of all the things I achieved in 20
years as the Clerk of that Court, I consider my greatest achievement getting the
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court to promote somebody from the Clerk staff rather than going outside like
they had to do for me, and — I shouldn’t say it was an achievement, but it was a
goal that I had for a number of years. And for them to pick a female non-lawyer
represented a complete change in the thinking that had been prevalent ‘til I got
there. You had to be a white male lawyer to be clerk of a district court. That’s no
longer true, and it’s to the court’s benefit. I don’t know if anybody’s done a
history for her, but she has achieved wonders there. She started as a Grade 4 or 5
Deputy Jury Clerk.
Mr. Hollman: She said it was Grade 4, and she asked me to remind you that Greg Hughes was
hired at the same time, and that she was hired as a Grade 4 but he came in as a
Grade 5, and she had to take the typing test and he didn’t.
Mr. Davey: [Laughter]
Mr. Hollman: So she wondered whether the fact that he played softball with you had anything to
do with that.
Mr. Davey: I tell you what, if he didn’t play softball he wouldn’t be there. Funny story about
Greg is that he and I played softball on a team, and he was looking for work, and I
found him a temporary job. My recollection is he started as a temp in the data
processing, and as soon as he got the job he quit the team. And I said, “Greg,
what’s going on?” And he said, “Well, I don’t like to have to do too much.
Before, I had to play softball. Now I have to work.” [Laughter] He’s a different
sort, Greg Hughes.
Mr. Hollman Nancy, you know, I asked her about women in the Clerk’s office, and she said,
actually, the office itself was predominately women largely because a lot of the
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work was clerical work, and so it required people who could type, and you would
never ask a man if he could type.
Mr. Davey: That’s right. Well you know, while we’re thinking about it, the court was built in
the early ‘50s — wasn’t Truman president? I think that was the case. In any
event, the men’s room for the Clerk’s office was much larger than the ladies’
room, much larger. And some years later, we hired a gal, we then had progressed
from just Deputy Clerks to different kinds of jobs, and she was an administrative
assistant. And after she got feeling comfortable she says, “Why is the men’s
room larger than the ladies’ room when you got many more female employees?”
So I said, “Well, how do you know that’s true?” [Laughter]
And in any event, we ended up switching them, with a few minor
modifications. I said yeah, it makes sense. Yes, those jobs historically went to
females, and the days when they wore white gloves preceded my tenure, but at
one point they did, to accept papers.
By the way, you had asked if there was anybody that you could contact,
and I didn’t have anybody other than Nancy. I don’t know if she mentioned Bob
Lowney. You might just jot his name down. He’s the head of the Clerks
Division in the Administrative Office of the U.S. Courts now. And he worked for
us at one point. And the one time Nancy and I didn’t agree on a personnel matter
when we were filling the job of the head of the computer section, she wanted Bob
Lowney, and I went with somebody in the Jury office that had more years of
service. So Bob was disappointed, and he ended up going to work in another
court, but then he ended up going up the ladder there and is now the head of the
Clerks Division there. I remember that one of our innovations was to have a
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management retreat away from the courthouse, and I had a beach house down in
North Carolina and arranged to have my senior management staff go down, but
we didn’t have any males, so I brought Bob along to clean our act up a bit, and
you might think of talking to Bob. He might have some perspectives on this.
Mr. Hollman: She also suggested Judge Tom Jackson.
Mr. Davey: Who?
Mr. Hollman: Judge Jackson, who I think spoke at your retirement party.
Mr. Davey: Oh yes he did. He was the judge that controlled our use, we had a fund that we
got from charging admission to the bar and the use of the funds had to be for the
benefit of the bench and the bar. And gradually, thanks to Judge Jackson, we got
to do some good things with that money. You know, TVs for the jury lounge, and
I think we ended up even using it to give awards to employees. I’m not sure of
that, but yeah, he was a pleasure to work with and we made sure that we used the
money, but never so it could, to the detriment of the court, you know, liquor and
the like. Yeah, he’d be good.
Mr. Hollman: Well she said he was one the most approachable of the Federal District Court
Judges.
Mr. Davey: He was, no question about it.
Mr. Hollman: And she also credited you with professionalizing the Clerk’s office.
Mr. Davey: And rightly so. [Laughter] No, that’s true. If you saw the study, I’m sure you
did, what we were looking at when we were making the study back in the late
‘60s is a far cry from what you’d see there today. And it took a while to get there.
Mr. Hollman: I asked what the major changes were, and she said when she arrived, you were
still using typewriters, so the computerization of the courthouse, and she said you
27
started with the mainframe system and also housed the computer system for the
entire country.
Mr. Davey: Yes, yes, she remembers well. We had a small — that was one of my first steps,
to set up a small data processing outfit, and they would keypunch data into cards
about cases. This is once we went to the individual calendar system. And we had
a private firm pick those keypunch cards up at night and run ‘em for us. Yes, in
fact we were one of the first courts – this is now two or three or four years after
we started, maybe even longer — to convert. We could spend a whole session on
the implementing data processing in the court because it made some major
changes. Today, for example, Nancy’s achieved, since I’ve been gone, electronic
filing of documents. You know, they don’t need to file a piece of paper. Can you
believe that?
Mr. Hollman: Yes, she said no need for the white gloves any more, because no one even comes
to the Clerk’s office anymore.
Mr. Davey: Yes, yes. It’s just amazing. But if you think about it, the courts are just
processing information, and the goal was to get as much information to as many
people as possible with as little effort as possible, rather than relying strictly on
paper. Yes, it was a natural place to have data processing, and it just, we had a
hard time just getting rid of the typewriters, getting rid of the manual typewriters.
The first step was to get electric typewriters, and I was told that that was going to
be a big mistake because what are we going to do when the power goes out?
That’s why we’re saving some of these manual typewriters. We never did have a
power outage.
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Mr. Hollman: She described docket sheets that were kept in tubs by year. And she said very
often we would come to inspect a docket sheet for a case and find that it had gone
missing and assumed that was because one of the judges’ law clerks had come
down to borrow it at night.
Mr. Davey: Well, the tubs were a great innovation, because prior to the tubs, here’s what
happened: an attorney would file a document, say an answer to a complaint. A
counter clerk sitting at the counter would take that document and write on a piece
of paper “Answer filed in case number such and such,” and she’d just sit at the
counter all day and take these documents in and then the sheets that she prepared
summarizing the information on the document that she had handled would be
given to another deputy who would then go over to the shelf where all the docket
sheets were in post binders. And I always said that even though we always had
female docket clerks, you didn’t want to mess with them because after lifting
those docket books all day, they were strong. But they would have to take the
docket book apart, find the right sheet, type the entry, put the sheet back in, close
up the binder, put it back on the shelf. And I came in with the idea of taking them
out of the binders, putting them in tubs and dividing the work up by last digits.
That way you could equalize the workload over time. You know, if Mary had
digits one and two, and Sue had digits three and four, over time those cases would
even out in workload. Of course, when you’d have a big one, we had to get into a
different system when we had class action cases.
In any event, Bob Stearns, who was the Clerk — I was appointed — I got
to back up a bit. I worked on the study, and then after the study finished in ’69,
we were all looking for work. And low and behold, the District Court called me
29
up and asked if I would be interested in an interviewing for the job of Chief
Deputy, and I was very surprised because I had been very critical of the court. I
don’t know if you read the, you probably read some of those reports. And it
would mean I would be going to work for the Clerk who I had indicated, really,
even though he was a professional in the old sense of the word — high integrity,
hard worker and all — he was not a manager. And consequently, the court’s
business wasn’t getting managed well. I would be reporting to him.
So they worked out a special arrangement so I could report directly to the
Chief Judge in case I had problems with the Clerk. And I didn’t have to use that
route too often, but in any event, he warned me, the old Clerk warned me that the
worst thing that could happen is if you lose a docket sheet. That’s the only record
we have of the case. And you put them in these tubs, and, you know, they’re
going to get lost. But for the sake of efficiency we put them in the tubs, and I also
pointed out, I don’t have the statute at hand, that it wouldn’t mean the end of the
world if we lost one of those sheets because there’s a provision for recreating it,
you know, with the attorneys’ help, it’s in the statutes. So we went on, and you
could move those tubs around, roll them around if Mary didn’t show up, push
them over to Sue’s desk.
But I’ll never forget the lady that was head of dockets. The old-timers
were really conflicted because they had loyalty to Bob Stearns, for the most part,
the old timer. And this new kid — I was only in my mid-thirties coming in —
trying to get them to make all these major changes, caused some problems. And
when I divided the work up by digits and put the dockets in tubs, Miriam Jenkins
— Miriam Jenkins was her name — when she retired she raised horses, and she
30
named a horse after me — the whole horse not just the rear of the horse.
[Laughter] She invited me up to West Virginia, you know Charleston, for Jim
Davey’s maiden race. Fact I’ve got it up here. The son of a gun won! [Laughter]
That was something. Then another thing, the last time I told you I was at Pearl
Harbor December 7th, Jim Davey won a race on December 7 . Unbelievable! th
But we’ve digressed.
In any event, Miriam had some doubts about this tub business. And there
was one male deputy out of the five docket clerks, four females and one male.
And she’d come into me, and she says, “you know Reuben” — his name was
Reuben, I forget his last name — “he’s not getting a fair share of the work. I
don’t know what about — there’s something about his cases; he just gets easy
cases all the time.”
Well it turned out that Reuben was more efficient, and he didn’t talk as
much as the females. But I couldn’t convince Miriam of this. But I had an
opportunity when one of the females retired or got another job or whatever. I
thought, I’ll tell you what I’m going to do. I’ll just switch Rueben to her digits
and wait for Miriam. And sure enough, a few months go by. Miriam comes in
and says, “Jim you’re not going to believe this. You know, Reuben’s getting the
easy cases again.” [Laughter] Whatever.
Mr. Hollman: Now was Reuben involved in the pinochle games that I heard about down in the
basement?
Mr. Davey: Oh, Reuben was not, no Reuben wasn’t, but the file clerks surely were. That’s
where we kept old cases. And man, when somebody came in looking for an old
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case, that was prime time for the file people: “I’ll go get it.” [Laugher] Oh,
yeah, that’s the old days.
Mr. Hollman: I heard that you engendered some dissatisfaction when you terminated the
pinochle game.
Mr. Davey: I engendered dissatisfaction with a number of things, Steve, and I’ll give you one
example. The people in the Clerk’s office worked from 8:00 to 4:30 with an hour
for lunch, and they got paid for eight hours. And I said, “That’s not right. That
you’re working seven and one-half hours.” They said you just can’t eat lunch in
half an hour. So I was, we were, I should say we because I didn’t do anything on
my own. I mean, I would get the ideas and, you know, you need people to
implement them. We were one of the first to implement a flextime system. And
under this system that I proposed, was that you could come in within certain
hours, you didn’t have to be there from 8:00 to 4:30. You could come in at 7:30
one day; you could come in at quarter of eight the next, whatever, but during peak
staffing periods, it was up to the supervisor to be sure that there were “X” amount
of bodies when you had the most work. And then as long as that core period was
covered by the minimum needed, then you had a lot of flexibility. But when you
went to lunch you signed out, the clock stopped, you were on your own. And
when you finished lunch, you came back and you signed in. And I personally
followed the same thing: sign in, sign out.
Well lo and behold, once they were lunching on their own time, most of
them did it in half an hour. But I submitted that proposal for the flextime to
different divisions, the Courtroom Division, the Dockets Division, the Jury
Division and the Data Processing Division, and told them if you want to, vote on
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it. And everybody voted it down because it was a proposal coming from
management, except data processing. And data processing took it up and loved it.
I mean, you know, if you had a doctor’s appointment, you didn’t have to take sick
leave, you know, just as long as you made your 80 hours in a two-week period.
We were very flexible, although as years went on, Nancy got me even more
flexible. Nine-day work week, working at home, we were one of the first to
experiment with that. Family leave — if the kids were sick, you could take sick
leave.
In any event, after a few months of the data processing, the grumbling
started, these people are being selected for special treatment. I said, “Wait a
minute; we had a vote.” [Laughter] So eventually the whole office went to it,
and I think Nancy still has some of that. But well, we digressed, I thought we
were going to talk about the study.
Mr. Hollman: I have one more question before we get there, and that is, was there any sort of
dress code at the Clerk’s office when you arrived?
Mr. Davey: Yes, Bob Stearns got very upset with me. He wore a jacket and a tie every day,
and I wore a jacket and tie every day. But I took my jacket off when I was at my
desk. And he came in one day and let me know that that wasn’t right. I had to
wear my jacket all the time. And I said, “Bob I appreciate it when I’m out
mingling with the troops, but I work best with my jacket off.” And the way we
compromised, I closed my door. Yes, guys had to have ties, and then we, if I
remember, the files division complaining because of the heat and whatever, that
they didn’t want to wear ties. And I was pretty strict on that.
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And they said, well over at the Court of General Sections, they don’t have
to wear ties.
And somehow, I think Judge Hart was the Chief Judge, and one of them
went around my back to Judge Hart. And Judge Hart said, “Well, Neil,” or
whatever the guy’s name was, “if you don’t want to wear a tie, you can go to
work in the Court of General Sessions.” And that was the end of that.
That was in the early ‘70s, and then I recall we just had to have a good
dress shirt and pants. And I forget the code for women, but yes, there was a dress
code, and it came under fire from time to time.
Mr. Hollman: Nancy told me that you very politely and yet very firmly made it known to Bob
Stearns that you would not be wearing your jacket at your desk.
Mr. Davey: She told you that?
Mr. Hollman: Yes, she did.
Mr. Davey: She remembered that, then. He was a gentleman. But he was just symptomatic
— his attitude towards his work was totally professional, you know, you serve the
judges. Whatever the judges want, they get. And I remember asking him during
the study, how many civil cases do you get in a year, Bob? And what kind are
they, and how many do you terminate? I was coming in from the outside, just
trying to figure out what their workload was. He says, “What difference does it
make how many cases we have or what kind they are? We’re here five days a
week, eight hours a day, and there’s more work than we can handle. That’s all
you need to know.” And he was very sincere about that. And that explains how I
got into the court system with that study of the, you know, in the late ‘60s, the
backlogs that all of the courts were experiencing. It was not so much a function
The Committee on the Administration of Justice of the Judicial Council of the District of 5
Columbia Circuit, created by the Judicial Council on March 15, 1966, and consisting of lawyers
in active practice in the District of Columbia, undertook in 1968 to assemble a staff consisting of
eight men and women to make a thorough, impartial and objective study of the management of
the five courts of the District of Columbia and related agencies, with a view to developing
recommendations for the improvement of the administration of justice. The Committee was
chaired by Newell W. Ellison and included Stephen Ailes, Edmund D. Campbell, Frederick H.
Evans, Thomas A. Flannery, Alexander B. Hawes, Barrington D. Parker, John H. Pickering,
James Francis Reilly, Daniel A. Rezneck, Samuel Spencer and John J. Wilson. The May 1970
Report of the Committee on Administration of Justice was published as part of the “Court
Management Study,” a Report of the Senate Committee on the District of Columbia, 91 Cong., st
2d Sess., Part 1, May 1970. The project staff that undertook the Court Management Study
included James F. Davey, whose responsibilities focused on the U. S. District Court civil case
flow and administrative management and the U.S. Attorney’s office. A summary of the staff
report is included at pp. 41-54 of Part 2 of the Senate Committee Report. The portion of the
detailed reports covering the United States District Court is included at pp. 1-103 of Part 2 of the
Senate Committee Report.
34
of workload. It was a function of how you dealt with that workload, either as a
judge and/or as a non-judicial person. And you just needed systems in place and
people with proper training. And you saw what happened. The courts thought
they needed more judges and more supporting personnel. And it turned out they
didn’t need more of either, and they ended up getting rid of their backlogs once
they changed their systems.
Mr. Hollman: Let’s talk about the recommendations that arose from the Court Management
Study and D.C. court reform as a result of that study. First, tell me again how 5
you were selected to participate in the Court Management Study.
Mr. Davey: Okay. You know, there was this effort to reform the D.C. court system, which
had a significant case backlog — [End of TAPE 1, Side A; begin TAPE 1, Side B]
— and they weren’t making much progress, so they concluded that they needed
an outside management look at the D.C. court system. That includes the U.S.
Court of Appeals, U.S. District Court, Court of General Sessions, the local Court
of Appeals, the Family Court and so on.
35
So they got money from — I think Ford Foundation was the biggest one.
But ironically Russell Sage Foundation put up $30,000, and my mother had gone
to Russell Sage. And they set up a committee of lawyers, Committee on the
Administration of Justice — Newell Ellison from Covington & Burling happened
to chair it during our period, and it was through that committee that they worked
to get a management group. And the management group would be reporting to
this group of high-priced attorneys — Newell Ellison, John Pickering — a lot of
the lawyers on the committee ended up being federal court judges — Judge
Gesell, Judge Flannery, Judge Pratt — all of them — Judge June Green, I think
— came out of that committee.
Well, what they did, then, is they advertised, and they got a director for
the study. Dave Saari, he was a court administrator out in Portland, Maine — not
Portland, Oregon. And then it was his job to, in turn, hire staff. And so there was
an ad in the paper one day in the Washington Post, or a story about it. And I
thought that, well, you know, with my ten years of internal auditing experience
with Agriculture where I was working, plus the fact that I had gotten a law degree
at night, that would be a good use of both, you know, my work experience and my
education. So I applied to be one of the staff members, and Dave interviewed me,
and I got hired along with several other people. They’re listed in that book. But
the key people were Harvey Solomon and Maureen McPeak, myself and Dave,
and then we had some others that did little bits and pieces, but at the risk of
forgetting somebody, it was the four of us.
And eventually it turned out — so then this was this inter-disciplinary
group that was going to study this court system. None of us had ever worked
36
together. We came from different disciplines. It was interesting getting this ball
rolling, to say the least. You can appreciate that. Different personalities and
whatever. I felt — I was one of the most comfortable because there was, you
know, I had just spent ten years going into organizations, looking at how they
were operating and trying to come up with better ways of doing things. So I had a
pretty easy transition. Harvey and Maureen had no real problems either. She had
been a court analyst before, and Harvey — I know he was Kennedy School of
Government, a bright guy. So we all hit it off, and most of the staff got along
well.
And the only real problems that developed ultimately was Dave Saari, the
director, just couldn’t put all of the pieces together when we came to write the
final report, and he also had come in and — he had prior court experience, and he
tried to impose what he did in Oregon into D.C. And some of it worked, and
some of it didn’t. But he didn’t take the time to analyze what was really going on
in the court in an objective way. And I’m being a little bit critical of him. I’ll say
this, he was excellent at selecting people. He had good people. And I will also
say this, and I wrote down, Harvey, one of the best things that came out of the
study was Harvey Solomon and Maureen McPeak got married. Harvey and
Maureen really did most of the work on a final report, and Dave just wasn’t up to
the task. But I’ve got Harvey’s and Maureen’s phone number, Steve, if you
wanted to follow through and get their perspective on the study.
Mr. Hollman: Sure.
Mr. Davey: They live out in Colorado. They both went on to outstanding careers in court
administration, Maureen as an individual consultant and Harvey headed up the
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Institute for Court Management. So in any event, we did the study, and as you
can see from the two reports, even before the study, the Committee for the
Administration of Justice had already concluded the two major, well, two of the
major things that were — maybe they hit on all of them. One was that the courts
had master calendar systems where the Bar controlled the calendar rather than the
court, and the other thing was that they had leased the — I guess both courts — I
stayed with the District Court — but both courts, there was a need for a court
executive that would look over the non-judicial operations of the courts and bring
in professional management, develop training programs, bring in data processing,
and consolidate some functions. In the District Court they had the office of
Pretrial Examiner, they had the Assignment Commissioner’s office, they had the
Clerk’s office — all of them playing some role at some time in the processing of
cases but none of them talking to one another for the most part. It was just paper
swirling around, and the Bar determined it. It was up to the attorneys to decide
when they were ready to go to trial, rather than the court. And as you might
imagine, attorneys don’t always want to go down and get that thing done — let’s
put it off until next week. It was just chaotic. I mean it was just huge files where
you had case continued, case continued, motion heard, motion denied, set up
pretrial, reschedule. You know, it was unbelievable. But it wasn’t atypical. That
was the way most courts operated, but some federal courts — I forget which ones,
one or two — had started — I want to thank Judge Murrah, who was head of the
Federal Judicial Center that was created in ’68 for bringing the idea of the
individual calendar. And then there was a judge out of Chicago. I’m sorry. If I
had documents to refresh my recollection, you know, I could be more specific,
38
but I do know that at the time we were making our study, other federal courts, a
couple of them, had gone to the individual calendar, and it seemed to be exactly
what the District Court needed.
And there had not been any district court executives established in the
federal system, but some of the big state courts had gone that way. So the
Committee on Administration of Justice had preconceived ideas that these things
would help, and they were right. And then our study flushed out the details and
then found a number of other things. Oh, there are so many things. The lawyers
would manipulate who they got before. I’ll just give you an example. Judge
Bryant, God rest his soul, he was one of the best human beings I ever had the
pleasure to know. But he was a lenient sentencer. And when he rotated into —
you know, he didn’t have cases assigned to him. They just had different
compartments. You’d be the sentencing judge for two or three months or you’d
be the long motions judge for two or three months in civil and a short motions
judge and then the trial judge. And then you’d rotate the assignments. But the
cases wouldn’t rotate. So the criminal defense attorneys would love it when
Judge Bryant was the sentencing judge because they had a better chance of
getting an easier sentence. And then he wouldn’t be the only judge that they’d try
to get.
I didn’t start the criminal calendar. It was Dave Saari who did that.
You’d go in there on sentencing day and there would be three or four deputy
clerks processing files. I mean it was just chaos in the courtroom. Well, this —
and they would — Friday was sentencing day. And I mean the place would just
be flooded with prisoners, and it was chaotic. And I remember the marshals
39
saying, we need more buses, we don’t have enough buses to bring all of these
guys and gals down here, mostly guys. And I said, well, I wonder if the court
would just, you know, not hold all of the sentences on one day. Maybe if you had
some on Tuesday and some on Thursday you wouldn’t need more buses.
Eventually, with the individual calendar, that’s what happened. But it was
just totally inefficient, and I — my side of the study was the civil calendar of the
District Court and the administration of the District Court. And I remember they
had an office of Pretrial Examiner that pretried all of the cases. And I found that
this was the backlog. And I also found that Judge McGuire who, when I got
there, was a senior judge, but he had set up the office of Pretrial Examiner with
help of Congress. He testified before Congress to get authority to have this thing
back in the late ‘50s. And then I proved that after they put that thing in, even
though cases declined, the workload declined, their backlogs increased after
putting the Pretrial Examiner’s office in. So Judge McGuire and I did not get off
on the right foot. In fact, I remember I had a couple of tough moments with him.
He was only a senior judge but he still — he was a specialist in patent law, and he
really didn’t like me for suggesting that they abolish this program that he gotten
authorized. But he was a good Irishman. But one of our problems was that we
didn’t have enough court reporters for the senior judges, and they couldn’t always
get them on the bench when they wanted to go on the bench. So he had this
patent case one day, and he had a roomful of attorneys in his chambers. And he
called me up, and these attorneys had come in from New York, and he says
something like this: Gentlemen, this is our Clerk, Mr. Davey, and he’s the one
40
responsible for us not being able to be out in the courtroom right now because
he’s unable to get us a court reporter.
About that time, Judge Hart, he was my third chief — my first was
Curran, my second was Sirica, my third was Judge Hart. Judge Hart called — I
loved that man dearly. I would see him four or five times a day for a total of four
or five minutes. Whenever something came across his desk, he dealt with it. And
I’d get a call, get up here. But I loved working for him because he was so
doggoned decisive, you know?
In any event, I’m in Judge McGuire’s chambers with all of these
attorneys, and the call comes through, Judge Hart wants to see me. I said,
“You’re supposed to be on the bench. You had a criminal trial; I brought some
jurors in for you.” Remind me to tell you about jurors, Steve.
I said well — he said, “I got a guilty plea.”
And I said, “Well, then you don’t need your reporter.” And he said, “Of
course not.”
And I said, “Can I let Judge McGuire have him?”
“Of course.”
So I hung up the phone, and I said, “Gentlemen, we’ll be ready to go in
about five minutes.” But eventually — I’ll never forget, Judge McGuire, a few
years down the road, we had gotten through some tough times, he said, “You
know, Jim, we started down opposite sides of the road, but we ended up walking
down the road together.” And that meant a lot to me.
But in any event, the study showed massive delays and lack of
management, and recommended that the court adopt an individual calendar
41
system for civil and criminal cases and get a court executive. The court at that
time was split, and one of the things that I learned early in the process, and this I
learned from Judge Gesell — he was on the personnel committee that interviewed
me. And Judge AubreyRobinson chaired it, and Judge Gesell was on it, and
Judge Jones, another one of my favorites, was on it. And they interviewed me
and some other candidates.
Bob Stearns — let’s see, I came in October of ’69, and Bob Stearns retired
the following year. And so I think I was appointed in either November or
December of 1970. But during the interview, Judge Gesell said, “Mr. Davey, if
you are appointed Clerk, you are inheriting a racist organization, and we’re going
to want you to do something about it, and we don’t want quality to suffer.” And I
began to understand the difference between a judge and a clerk. And the funny
thing about the racist organization — the judges were authorized when I got
there —
Mr. Hollman: To have bailiffs?
Mr. Davey: They had bailiffs, right.
Mr. Hollman: And they desperately needed the bailiffs, I’m guessing?
Mr. Davey: What was that, Steve?
Mr. Hollman: They desperately needed those bailiffs?
Mr. Davey: Yes. I mean we had —
Mr. Hollman: Until they found out that they could have law clerks, additional law clerks
instead, and then they didn’t need the bailiffs quite so much I understand?
42
Mr. Davey: There you go. But being very thoughtful people and not wanting to turn the
bailiffs out onto the street, they called the Clerk’s office up and said, “Mr.
Stearns, find a job for my bailiff.”
So most of the lower-level employees in the Clerk’s office were in the file
slots, and they were former bailiffs. And I’ll never forget one time — I got two
stories about this. The first story is that Judge Jones, wonderful judge and one
that would really — he had a reputation, you know, for being the best prepared
judge of all — and he’d go through these thick files, and man, we had a lot of
misfilings. No doubt about it. He called me up one day and he showed me this
file, and he says, “Jim, you’ve got to do something about this. You know, we just
can’t go on this way.”
And I said, “Yeah, if I could find somebody other than former bailiffs like
yours — ” [Laughter]
And he looked at me, and he says, “Oh, you got me.” [Laughter]
Another story about Judge Jones, it was in his era — let’s see, he came
after Hart. Let’s see. It was Chief Judge Curran, Chief Judge Sirica, Chief Judge
Hart, Chief Judge Jones, Chief Judge Bryant, Chief Judge Smith, who would have
liked to have me fired, and then Chief Judge Robinson. So this was in the late
‘70s when we finally got some computer printouts of cases. And I made sure that
the data was correct, and I had his cases listed by case number order. I had them
by date filed. Any way you wanted to look at them. And I brought these
computer printouts up to him, and I was showing him, and he says, “Jim, let me
tell you something.” He says, “I practiced law for X number of years and I’ve
been a judge for X number of years and I’ve never read a computer printout and I
43
ain’t gonna start now.” So much for showing my chief. He said, “That’s good
stuff for Clerk’s office, though.”
I’ll never forget — well, to back up a bit. So, the thrust of the study, the
two main thrusts, are go into an individual calendar, court take control, get it
away from the bar, and also get some modern management in there. But the
judges have to make the decision. The Chief Judge has no more power than any
other judge when it comes to voting on something, so when they voted for the
individual calendar in ’69 the vote was 8-7, which meant there were a lot of the
judges hoping this thing would fail. It’s like anything else, Steve. You just don’t
go in and waive a wand and everybody says, oh my God, why didn’t I see this?
This is so clear; this is what we have to do.
Mr. Hollman: Well, did case assignments change with court reform and the manner in which
cases were assigned to particular judges?
Mr. Davey: That was part of the court reform, yes.
Mr. Hollman: And so what was the old system, and how did it change?
Mr. Davey: Where was the old system?
Mr. Hollman: Yes, how were cases assigned before the reform?
Mr. Davey: They weren’t assigned. For example, in the civil, a civil case would be filed, and
no judge would be assigned until a motion was filed, and then they’d go to the —
if it was a long motion, you know, long in the sense that it would take more than
45 minutes to hear it, it went on the long motions calendar, and whatever judge
was sitting on long motions that month would hear that. Okay? And then we go
back in the file room where the bailiffs would misfile and/or play pinochle — I
mean, that’s an exaggeration, but I mean it’s not too far. So then there’d be a
44
short motion, and then the judge on the short motion calendar would hear it. And
then there’d be a certificate of readiness would be filed, and they’d call the ready
calendar. But there could be eight or nine different judges on one case, and
finally when it was set for — they’d have either a jury trial or a non-jury trial.
And if it was set for a jury trial and Judges Jones and Hart and Bryant were in
there, one of those three would get the non-jury trial, and if it was a jury trial,
whoever was sitting — they’d rotate their assignments, the judges, every three to
six months. So a judge was never associated with a case, you know, until it was
terminated. But on the individual calendar system, as soon as that case was filed,
well, for example, that’s Judge Gesell’s, and it’s his baby, and we’d notify him,
Hey, Judge Gesell, you’ve got a case and this is it. And then he would take
control of it, and he was the best. Did I answer your question about the master
system?
Mr. Hollman: Yes. So didn’t the judges feel like they were getting more control over their
dockets when you went to an individual case calendar?
Mr. Davey: Oh, yes. But the concept — the mindset was it’s not the court’s duty to move
cases along. We’re here to serve the Bar. All right? And when the Bar is ready,
we’re here. But that had to change to, okay, it’s the Bar’s business until the case
is filed. And when the case is filed, it becomes the court’s business. And once
it’s the court’s business, the judge is going to tell you how long you have to file
your motions, how long for discovery, when we’re going to set a pretrial date and
so on.
So they did the criminal calendar in ’69, and that went fairly easy. I’d
have to refresh my recollection again but I think the U.S. Attorney assigns a
45
couple of attorneys to each judge. But in the civil side — one of my first jobs
was to develop a plan for converting because after they did the criminal calendar,
the judges said, okay — I think it was an 8-7 vote again — let’s do civil, and
we’re going to do that in May of 1970. We had about 4,000 pending civil cases,
and we got 15 active judges that we were going to randomly assign these to, and
we don’t have a real good information system. We did have something that we
got from the Administrative Office of the U.S. Courts. What I tried to do was
phase it in, but they said we’re all going on May 15 , 1970, and I gave all of the th
judges, on May 1 or whenever it was, all of the judges these computer printouts of
what I thought were their pending cases. And they all wanted all of their files all
at the same time. It was chaos!
Actually, it wasn’t that bad but it was bad. The courtroom deputies, I had
reorganized so that we had consolidated the Assignment Commissioner’s office
— it used to be a separate office — and we made people calendar clerks that
would help the courtroom deputies, and we’d have a courtroom deputy and a
calendar clerk for each judge. Actually, we’d have one calendar clerk for two
judges. And between the two of them, the courtroom deputy and the calendar
clerk, they’d try to find the files. That got things going. So that was very trying
days for the courtroom deputies who didn’t really want the individual assignment
system. It put more responsibility on them, but I also got them some pay raises
for — that they now were going to manage, help their judge manage their
calendar.
So Judge Gesell was the only one that kept his bailiff and only had one
law clerk. And throughout his tenure he had the most current calendar of any of
46
the judges using one law clerk rather than two and using his very basic principles
of calendar control, you know, get the attorneys in quick, try to resolve, identify
what the real issues are, see what can be settled, what can’t be, and then the
complicated ones, you set different times. Every time you set a hearing, you keep
it. You don’t continue it. And you set a firm trial date early, and you hold it.
And ninety percent of the — no matter what you do with civil cases, ninety
percent of them settle before trial. I don’t know if that’s still true, but the idea
was setting a firm trial date and sticking to it.
[End TAPE 1; Begin TAPE 2, Side A]
Mr. Hollman: This is tape 2 from session number 2 on May 29 shortly after 5:00. Go right th
ahead.
Mr. Davey: So different judges worked at different cases and I think Judge Penn as I recall
was — the lawyers finally went to the Court of Appeals to take cases away from
him or whatever. I don’t know how that ever came out, but lawyers were
reluctant to do something with the judge even though, you know, that judge was
denying them justice by denying them speedy trial. So that was one of the flaws
in the individual calendar system, but overall, it worked much better for litigants
and the Bar and it’s fully adopted, it eventually was adopted by all the Federal
Courts.
Mr. Hollman: Talk if you will about the transfer of jurisdictions from the Federal District Court
to the Court of General Sessions.
Mr. Davey: Oh there was, let’s see, the big thing was that the U.S. District Court on the civil
side would have matters normally heard in a state court if the amount involved
was alleged to be $10,000 or more, and attorneys who wanted to come to the
47
District Court just alleged $10,000, whether it was true or not, and part of the
shifting of the jurisdiction was to get rid of all the cases that would be local in
nature on the civil side; and on the criminal side, shift the state felonies that the
District Court was handling to the Court of General Sessions so it would be like a
pure state-federal system in any other state. But up until that court
reorganization, there wasn’t enough trust in the local court to let them have felony
jurisdiction or big civil cases.
And part of the reorganization was to create more judges in the Court of
General Sessions, I believe, and pay them more so that they could attract higher
quality people. And that was phased, that jurisdiction issue was phased in over a
period of years, and we also had mental health jurisdiction that we shifted over to
the Court of General Sessions and register of wills. But the big thing, and I would
have to go back and see what the timeline was for shifting the jurisdiction, but I
think by the mid ‘70s we were no longer a mixed jurisdiction. We were purely a
federal court except for anything that was pending at the time. Does that answer
your question?
Mr. Hollman: Yes. I noticed in the report that the proposal was for a more limited transfer of
jurisdiction. Was there any controversy over that point?
Mr. Davey: I know that what prevailed was the point of getting rid of all what would be
purely state matter, getting rid of it, and we did get rid of all that. We didn’t keep
anything that was strictly local. I don’t recall the issue. Maybe they didn’t want
to give them too much at one time.
Mr. Hollman: I think that’s the sense I got from reading the report, and I wondered whether
Home Rule issues played into that debate?
48
Mr. Davey: Harvey, give Harvey a call.
Mr. Hollman: What about the proposal for a judicial nominating commission and the statement
that politics frequently was playing too great a part in the selection of judges?
Mr. Davey: I didn’t get involved in that much, Steve, and that wasn’t my angle of the study.
And I don’t have a specific recollection of that.
Mr. Hollman: Okay, well let me ask this then because this sort of segues into what I had to
spend a good deal of the next session talking about, which is Watergate, and that’s
politics at the courthouse.
Mr. Davey: Politics in the courthouse. What I learned very early is that there isn’t one center
of power in the courthouse. It’s every judge is a center of power, and then you
have their secretaries who are also centers of power. Doris Brown for Judge
Gesell was a good example of that. So you’d best be aware that in a court of
fifteen judges there’s about thirty different people — fifteen judges and fifteen
secretaries — that all think they’re number one. And I don’t necessarily mean
that in a negative way; it’s just the reality. You know, if I’m a secretary to a
federal judge who is appointed for life, I start to take on some of that, and these
judges can get very independent.
I’ll give you one example. Chief Judge Bazelon, who was the Chief Judge
of the Court of Appeals, very highly respected, calls me one day and he says:
“Mr. Davey, we have a case up here in the Court of Appeals that is already to go,
but we can’t hear it because we don’t have the trial transcript, and we need that.
It’s one of Judge Gasch’s cases.”
And I said, “Well let me see what I can do.”
49
Judge Gasch was the judge of all the judges that thought his job was to be
on the bench. Other judges would handle many of their matters off the bench,
you know, settle and the like, but Judge Gasch said, “I’m a trial judge and that’s
what I’m gonna do is I’m going to try cases.”
Unfortunately, that created a heavy workload for his court reporters, and
prior to my coming there, court reporters were assigned to individual judges
rather than put into a pool and rotated to keep their workloads relatively easy, not
easy, but equal and alike. So Dwayne Dushane was Judge Gasch’s court reporter,
and he couldn’t get out of court to do his transcripts. And many of these reporters
didn’t have a typist. They would not only take, the reporter would not only take
the — record the official preceding in court, they’d transcribe it, because their
notes were not readable by anybody else. And Dwayne was one of those guys,
and so I — he had a tremendous backlog — so I went up to Judge Gasch, and
Judge Gasch and I got along okay but there wasn’t any real warmth there, or
kidding or whatever. It was just kind of businesslike with Judge Gasch. But I
never had any real problems with him.
So I said, “Judge Gasch, Judge Bazelon told me about this case that they
gotta hear but they can’t hear because they can’t get the trial transcript. And I tell
you, I know Dwayne is — you know, you’re in the middle of a trial, but I have a
competent court reporter that I can put in your courtroom and let Dwayne out so
he can type this transcript up.
And Judge Gasch looks at me, and he says “Mr. Davey, you go tell Judge
Bazelon that I have a lifetime appointment, and he can go to hell.” I tell you, it
was just as clear as that.
50
And I thought a minute, and I said, “Judge Gasch, since you have a
lifetime appointment, and Judge Bazelon has a lifetime appointment, and I don’t,
would you mind communicating with Judge Bazelon?” He kind of laughed at
that. And you know, I don’t really remember how we resolved it. I think we
finally — I don’t think Gasch ever accepted another reporter, but I think Dwayne
eventually got the transcript out. But that is just one example of how independent
these people were.
Another good example was when on the Watergate case — at some point
we need to talk about jury utilization, too. We did an awful lot in there. Nancy
was a big part of that. Saved millions of dollars throughout the judiciary with the
help of Judge Hart on the civil side and Judge Robinson on the criminal side. Just
wasting jury money. But I asked Judge Sirica in the pretrial phases of Watergate,
“Is there any other day than Monday that we can start this case, because all the
judges like to try to start the jury cases on Monday and it just, it’s a load on
Monday without Watergate. And then with Watergate, it’s really, it’s not
impossible, but boy, it really would be nice if we set that for some other day.”
He says, “I always go to trial on Monday.”
So we set out, he asked the attorneys, this is in the pretrial stages, whether
they would object to a juror questionnaire going out in advance to screen out
potential jurors and get background on jurors, and he got the agreement of all the
lawyers except John Wilson, that cagey old guy. He was representing Haldeman.
And he says, “I reserve the right to object later.” And so that we went forward,
and we went through all the screening process, and then two weeks before the
51
trial is scheduled to start, John Wilson objects to the array of jurors, call it pretrial
publicity or whatever.
So he thinks he’s got himself two or three more months, so Judge Sirica
looks at me, and he says, “Mr. Davey, how long will it take you to get a new
jury?”
I said, “Well, if we don’t send a questionnaire out, I can have them here in
two weeks.
And Wilson looks at me, and he said, “What do you mean you can have
them here in two weeks? You can’t do that.”
And I said, “Yeah; that’s one of the first things we automated.” And
before, the Clerk had to sign every, the law said you had to sign every summons
that went out, and I said well, that’s just not, we can’t do that. And so we got it
out. But I thought, there’s my chance to get the case started on other than
Monday.
And I made another pitch to Judge Sirica. I say, “Okay, now, can we start
this on Tuesday or Wednesday?”
“But Mr. Davey, I told you, we always go on Monday.”
So they did the paper that it was gonna be scheduled on Monday, and I got
a call from Judge Gesell, and he said, “Davey, don’t forget. You work for 15
judges, not just one. And I’ve got a case scheduled for that day, and I want my
jurors.” Judge Gesell got his jurors, and Judge Gasch got his jurors, and Judge
Sirica got his jurors, and we went —
Mr. Hollman: And Judge Bazelon got his transcript, so everyone ended happy.
52
Mr. Davey: Yes but we’re talking about the centers of power, and there were times when —
you know, I served at the pleasure of the court, and so my objective was to keep
at least eight of them happy at all times, and if I had more than eight unhappy,
that I’d try to keep them out of the same room. And I did come close to getting
fired over — I’ll tell you this final story for today, okay? Judge Pratt made an
inappropriate comment at the conclusion of some criminal case that his reporter,
one of my best, duly recorded because it was part of the record. That’s his job.
Judge Pratt calls the reporter in and asked him to change the transcript.
The reporter doesn’t do it. Can’t do it.
Judge Pratt calls me up and says he wants me to fire the reporter. Now I
don’t know any of this background, and I said, “Judge Pratt, he’s one of our better
reporters, and I haven’t had any complaints.”
He said he’s spending too much time out of court. The reporters can make
more money taking depositions than they could taking trial testimony, so by this
time, we had evolved that — had a situation where we had no time standards for
the reporters. But they had to, if they were not going to be in court, they had to
provide a competent substitute. And that’s what Dwayne had been doing. And so
there was no problem, and so there wasn’t any real basis for firing him, and I told
Judge Pratt that.
And I said, “Judge, I can’t fire him on that basis.”
So then it turns out that Judge Smith, who really didn’t care too much for
me because he and Harold Greene are former Chief Judges of the local court and
they come over and they’re just judges, and I didn’t get Judge Smith’s courtroom
deputy a parking spot because we had a system based on user service and grade
53
and he didn’t qualify. And Judge Smith thought that since he was a former Chief
Judge of the local court, he was entitled to some — his courtroom deputy was
entitled to some special whatever, and I said, “I’m sorry, Judge, but that’s not the
system we have.”
And he said, “You know, Davey, if you were over in the local court, you’d
be fired.”
So I said, “Well, I’m sorry. I don’t mean any disrespect.”
But Judge Bryant was the Chief Judge at the time, and while I’m there,
Judge Smith calls. He said, “Hey Bill, I got a problem here. Can Davey and I
come over?”
And, sure, so Davey and Judge Smith go over to Bryant’s chambers and
Smith lays it all out, his side, that he’s the only judge whose courtroom deputy
doesn’t have a parking spot, and Davey’s being insubordinate, whatever, and then
he leaves without ever hearing from my side, and he assumes that Bill Bryant’s
gonna rule in his favor.
And I told Judge Bryant, and he said, “You know, what you’re doing
makes sense, but you need to tweak it a bit. But you’re not gonna have to give
Judge Smith’s courtroom deputy one.” And I’ve respected him so much for that.
Not too many judges when they’re in a pissing match between the clerk and the
judge is gonna rule in the clerk’s favor. But, so this is bothering Smith, and Pratt
is a buddy of Smith, and I’d never had any problem with Pratt. Pratt was a
wonderful judge, and we had a good relationship. This thing twisted everything.
So, Chief Judge Bryant goes out west to a Judicial Conference Committee. Judge
Smith is the Acting Chief. He calls a special meeting of the all the judges, sits me
54
down next to Judge Pratt, and his purpose is to get me to fire this reporter. And
before Judge Bryant left, I had clued him in. I said, “Hey, I got an issue going
here with Judge Pratt and I’m just telling you.” I wasn’t asking him to make any
decision. I said this is where we are.
So Judge Smith laid it out and has me explain, Judge Pratt explain, and I
said, “Hey, look, I’ve already talked with Judge Bryant about this, he’s on the
coast, he’s informed.” And Aubrey saved me. What I didn’t know was that
Judge Pratt had called the reporter in a second time, and the second time the
reporter went in, he was wired. And I didn’t know this at this time, but Aubrey
apparently — I don’t know whether they knew this. I guess they did and
whatever. But Aubrey came to my rescue and said, Hey, this is going nowhere.
Let’s wait for Judge Bryant. But then when I fully found out the full extent of the
problem — and in the interim I had been able to get some senior judges to take
Judge Pratt’s reporter, you know, so he would have work — but then, when I
learned and they learned that the reporter had — Denny Bossert was the guy’s
name — had wired himself when he went into Judge Pratt’s chambers, the senior
judges said you can’t send him to my court anymore, and so none of the judges
would take him.
So I called Denny in, and I said, “Hey, Denny, I don’t know what your
legal rights are, but the fact of the matter is, even though you are an outstanding
reporter, I can’t use you. No judge will take you, and I’m between a rock and a
hard place. So I’m gonna give you two weeks to resign or I’m gonna have to fire
you. Boy, those were two long weeks and the last day or the day before the last
day, Denny comes in and offers his resignation. Boy did I breath a sigh of relief.
55
But that was probably the most uncomfortable I ever felt with my judges and just
was an unfortunate event. And I give Judge Gesell credit. He called me up, he
said, Jim, or Davey, or whatever he used to call me. He called me a lot. He was
so ticked at me one day, he says, “You know, Davey, you’re lower than an
appellate court judge. You gave my jury to a junior judge.” He was ticked! But
he gave me advice. He said make sure you make detailed notes. This thing won’t
go away. So I appreciated that. I was relieved the day that I retired, I could
throw that file away.
I’ll tell you one more. I’ll be late for poker here but whatever. There was
a time Judge Hart was Chief Judge, he calls me up — so this had to be before, I
think he left in ’75, or stepped down in ’75 — “Hey, they’re talking in the
courtroom about you, got all these homosexuals working for you. You gotta do
something about it.”
And I’m thinking to myself, okay, one of the homosexuals I have working
for me is Judge Hart’s courtroom deputy, and if I listen to him, Hart would have,
whatever. So we weren’t that far along in our treatment of human beings
humanely, but I knew enough to know that it didn’t matter to me whether they
were homosexual or not as long as they were doing their job that’s all, that was
my only business unless there was some allegation of inappropriate behavior on
the job.
And so, I told Judge Hart that, I said, you know, Judge, just as I explained
to you. He said, “I’ll get you some allegations.” I went down to my office. An
hour later he had me back up and I could see, no that was a different situation,
I’m getting that confused.
56
In any event, Joe and Jim were seen in a darkened courtroom, this was the
specific allegation. And I had hired both Joe and Jim. So I said to Judge Hart,
you know, if I investigated and found nothing, you know, they’re going to say
that’s a whitewash. You need to find somebody else to conduct any investigation.
And he understood that. And on my way out I said, you know, I know how things
go around here. I sure hope they don’t think I’m homosexual.
And he says, “Well, now that you mention it — ”
And Steve, my heart dropped. I, this is ’75; I had been working my tail
off there for five, six years, and whatever. I said “What?!” I was dumbfounded.
He says, “Yeah, they’ve been talking about you going skiing with guys.”
I said, “Judge Hart, my wife and my two children and I went skiing a couple years
ago out in Pennsylvania. We had a terrible experience. It was icy, and they had
rope tows, and it was a lousy day, and they decided they never cared if they never
skied again. But I kept it up. And I could either go skiing by myself, or I could
find some girls, or I could go with some guys. And who does Judge Corcoran
golf with on Saturdays?”
Mr. Hollman: Did he at least laugh?
Mr. Davey: Yes. I don’t remember. But I got out of it, and they never did find anybody to
investigate. Those were my two, probably had some others, but I loved Judge
Hart. In fact, I’m looking at a picture of him here on my wall. It says: “To Jim
Davey — Working with you as Chief Judge was a ball. We can both be proud of
the accomplishments. Chief Judge Hart.” That was — he’s smoking his pipe
with his arthritic hand. He was great!
Mr. Hollman: Well, he’s certainly right about there being a lot to be proud of.
57
Mr. Hollman: This is May 29, 2008 at 5:27, and this ends tape # 3, and thank you very much
again for so many enlightening and entertaining stories.
Mr. Davey: Well thank you, Steve, I appreciate you’re doing it. It’s kind of interesting to
look back, and I kept some stuff, but I threw away most of my inflammatory stuff,
memos that I got from various judges that were irritating. And just as well that I
got rid of them. [Laughter]
[End of TAPE 2 for May 29 session] th
