James L. Buckley Complete Oral History-c

HONORABLE JAMES L. BUCKLEY
Oral History Project .
The Historical Society of the District of Columbia Circuit
Oral History Project
The Historical Society of the
District of Columbia Circuit
United States Courts
District of Columbia Circuit
HONORABLE JAMES L. BUCKLEY
Interviews conducted by:
Wendy White, Esquire
August 14, 1995, September 7, 1995,
October 30,1995, November 29,1995 and January 15, 1996
TABLE OF CONTENTS
Preface …………………………………………………………. i
Oral History Agreements
Honorable James L. Buckley. ……………………………………. ii-iii
Wendy White, Esquire ………………………………………… ix-v
Biographical Sketches
Honorable James L. Buckley. ………………………………… vi
… Wendy White, Esquire ………………………………….. mi-ix
Oral History Transcript of Interviews on
August14,1995 …………………………………………. 1
September7,1995 ………………………………………. 45
October30,1995 ……………………………………….. 97
November29,1995 …………………………………….. 142
January15,1996 ………………………………………. 201
Appendix A (Refections on the Oath of Ofice) ………………………. 240
Index …………………………………………………….. A1
NOTE
The following pages record interviews conducted on the dates indicated. The interviews
were electronically recorded, and the transcription was subsequently reviewed and edited
by the interviewee.
The contents hereof and all literary rights pertaining hereto are governed by, and are
subject to, the Oral History Agreements included herewith.
0 1998 Historical Society of the District of Columbia Circuit.
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges who sat on the U.S. Courts of the
District of Columbia Circuit, and judges’ spouses, lawyers and court staff who played
important roles in the history of the Circuit. The Project began in 1991. Most interviews
were conducted by volunteers who are members of the Bar of the District of Columbia.
Copies of the transcripts of these and additional documents as available – some of which
may have been prepared in conjunction with the oral history – are housed in the Judges’
Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C. Inquiries may be made of the Circuit Librarian as to whether the
transcripts are available at other locations.
Such original audio tapes of the interviews as exist, as well as the original 3.5″ diskettes of
the transcripts (in Wordperfect format) are in the custody of the Circuit Executive ofthe U.S.
Courts for the District of Columbia Circuit.
Interviewee Form 1
erviewee Oral ustom Aareemeng
1. In consideration of the recording and preservation of
my oral history memoir by the Historical Society of the District
of Columbia Circuit, Washington, D.C., and its employees and
agents (hereinafter “the Society”), I, TmCS L. ‘B~&w
except as otherwise provided herein, do hereby grant andk’onvey ‘
to the Society and its successors and assigns all of my rights,
title, and interest in the tape recordings and transcripts of
interviews of me as described in Schedule A hereto, including
literary rights and copyrights.
transcripts are subject to the same restrictions, herein
provided.
and their content as a resource for any book, pamphlet, article
or other writing of which I am an author or co-author.
contained herein, to duplicate, edit, publish, or permit the use
of said tape recordings and transcripts in any manner that the
Society considers appropriate, and I waive any claims I may have
or acquire to any royalties from such use.
All copies of the tapes and
2. I reserve the right to use the tapes and transcripts
3. I authorize the Society, subject to any exceptions
before me this
My Commission expires L
ACCEPTED this 3M< day”of 1.32 04-
Gribbon, President of the Historical Society of the District of
Columbia Circuit. 4
, 19ykby Daniel M.
Li &dL(Ly
Daniel M. Gribbon
Schedule A
Tape recording(s) and transcript resulting from 5
(number )
interviews of James L. Bucklev on the following
dates :
(Interviewee)
August 14, 1995 2 tapes 36 pages
September 7, 1995 2 tapes 41 pages
October 30, 1995 2 tapes 33 pages
November 29, 1995 2 tapes 44 pages
January 15, 1996 2 tapes 28 pages
The transcripts of the six interviews are contained on one
diskette.
Historical Society of the District of Columbia Circuit
Interviewer Oral History Aqreement
1. Having agreed to conduct an oral history interview with
James L. Buckley for the Historical Society of the District
of Columbia Circuit, Washington, D.C., I, Wendy S. White , do
hereby grant and convey to the Society and its successors and
assigns, all of my right, title, and interest in the tape
recordings and transcripts of interviews, including the diskette
containing the transcripts, as described in Schedule A hereto,
including literary rights and copyrights.
2. I authorize the Society to duplicate, edit, publish, or
permit the use of said tape recordings, transcripts and diskette
in any manner that the Society considers appropriate, and I waive
any claims I may have or acquire to any royalties from such use.
3. I agree that I will make no use of the interview or the
information contained therein unless and until I receive
permission from the Society.
Sign&ure of Interviewer Date ‘
SWORN TO AND SUBSCRIBED before me this 174 day of
A November ,1998.
ACCEPTED this *3,&(rday of c-5cd?1.$%9 ?$ by Daniel M.
Gribbon, President of the Historical Society of the District of
Columbia Circuit.
Tape recording(s) and transcript resulting from 2r
(number)
interviews conducted by
on the following dates:A’
Uefl&y sa dNml &q.
( interviewer)
August 14, 1995 — 36 pages
September 7, 1995 — 41 pages — 33 pages
— 44 pages
October 30, ‘1995
November 29, 1995
January 15, 1996 — 28 pages
The transcripts of the 5 interviews are contained on one
diskette.
Identify specifically for each interview, the date thereof
and (1) the number of tapes being conveyed, and (2) the number of
pages of the transcript of that interview.
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Born in
Buckley
EDUCATION:
JAMES L. BUCKLEY
United States Court of Appeals
Third Street and Constitution Avenue, N.W.
Washington, DC 20001
(202) 21 6-71 10
New York City, March 9, 1923; son of William F. and Aloise (Steiner)
ale College, B.A., Oct. 1943; Yale Law School, LL.B., June 1949
MILITARY SERVICE: U.S. Navy, 1943-46; discharged with rank of Lt. (i.g.) USNR
Married in 1953 to Ann Frances Cooley; five sons and a daughter
OCCUPATION:
1949-53
1953-57
1957-70
1971 -77
1977-78
1978-80
1 981 -82
1982-85
1985-
Associate, Wiggin & Dana, New Haven, CT
Associate, Reasoner & Davis, Washington, DC
Vice President, The Catawba Corporation, New York City
United States Senator from New York
Investment firm of Donaldson, Lufkin & Jenrette, Inc., New York City
Business Consultant, New York City and Sharon, CT
Under Secretary for Security Assistance, United States Department of
State, Washington, DC
President, Radio Free Europe/Radio Liberty, Munich, West Germany
Circuit Judge, U.S. Court of Appeals for the D.C. Circuit
MISCELLANEOUS:
Author, If Men Were Angels: A View from the Senafe, G.P. Putnam’s Sons, 1975
Radio Commentator, Westinghouse Group and National Public Radio, 1 977-80
Co-Chairman, U.S. delegation to the United Nations Conference on the EnvironChairman, U.S. delegation to the United Nations Conference on Population, Mexico,
ment, Nairobi, Kenya, 1982
City, 1984
s ‘
AWARDS: 1973 – Federal Bar Council (NYC) Buckner Award
1976 – LL.D. (Hon.) St. John’s University (NYC)
1978 – LL.D. (Hon.) Sacred Heart University (Bridgeport, CT)
1982 – United Nations Environment Programme Award for Outstanding
Envi ron mental Leaders hip
,
I
I
I
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WENDY S. WHITE
Home Add ress and Telephone
7011 Meadow Lane
Chevy Chase, Md. 20815
(301) 656-7723
Business A ddress and Telephon e
Shea & Gardner
1800 Massachusetts Ave., N . W.
Washington, D.C. 20036
(202) 828-2000
EMPLOYMENT
Shea & Gardner, Washington D.C., Administrative Partner (1992 – 1996); Partner
(1982-present); Associate, Shea & Gardner (1975 – 1982).
Associate Counsel to the President of the United States (February 1996-March 1997).
My responsibilities were varied, including various Congressional investigations; immigration,
labor and education issues; Campaign Finance Reform legislation, Hatch Act inquiries, and
ethics-related matters.
Areas of Expertise. During my approximately 22 years of practice, I have specialized in
trial and appellate litigation, labor law, employment-related counseling and litigation, and
product liability cases. I have written briefs and/or argued cases in the United States Courts of
Appeals for the Second, Third, Fourth, Sixth, Eleventh, and District of Columbia Circuits and
have prepared briefs in the United States Supreme Court. I have also litigated in numerous
state trial and appellate courts.
Representations. Matters I have litigated or worked on include:
(1) Since 1976, I have represented the United Mine Workers of America Health
and Retirement Funds in labor and antitrust litigation involving the ” purchase-of-coal clause”
of Article XX(d) of the National Bituminous Coal Wage Agreement, and other provisions of
the collective bargaining agreement; litigation involving the Coal Act; employment and
personnel matters relating to Funds ‘. employees, and other miscellaneous issues.
(2) Since approximately 1980, I have represented Cassiar Mining Corporation, a
Canadian asbestos mining corporation, in personal injury cases arising from occupational
exposure to asbestos. This representation has required litigating cases nationwide in state and
federal trial courts and in the various courts of appeals. I have also handled litigation for
Cassiar involving alleged property damage resulting from the use of asbestos in building
products, including major class action litigation that is still pending.
(3) I have represented a consortium of asbestos manufacturers known as the
Center for Claims Resolution (“CCR”), in connection with a nationwide class action and
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prepared briefs in connection with constitutional, product liability, and ethics issues relating to
the tort litigation.
(4) I have represented the American Council on Education, various colleges and
universities, and faculty members in connection with employment and personnel issues.
(5) I have represented the Domestic and Foreign Missionary Society of the
Protestant Episcopal Church in connection with various employment issues and in supervising
an investigation into embezzlement of Church funds by the former Treasurer.
(6) I have represented the National Hockey League Players Association in
connection with collective bargaining, pension, insurance, arbitration, and other legal issues.
(7) I serve as ethics counsel to the American Psychological Association in
connection with proceedings relating to complaints filed against APA members.
(8) I have represented the Women’s College Coalition in advising them with
respect to constitutional issues relating to their single sex admissions policies, in assisting the
Coalition in preparing appellate briefs in cases challenging these policies, and in other matters
relating to the operation of the organization.
(9) I served as a special master in a product liability suit involving the Red Cross
and as a mediator in a tort suit against Planned Parenthood.
PROFESSIONALLY RELATED ACT1 VITIES AND MEMBE RSHIPS
(1) I have spoken on various employment issues at the Conference of the National
Association of Teacher Attorneys.
(2) For the past six years, I have been a program speaker at the Stetson College
Conference on Higher Education on topics related to personnel and employment issues.
(3) I was on the faculty ‘of a trial advocacy course in Boulder, Colorado offered to
attorneys working for the Environmental Protection Agency.
(4) I am a member of The American Law Institute.
EDUCATION
J.D. magna cum laude, 1975, University of Pennsylvania Law School,
Philadelphia, Pennsylvania.
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-3-
— Order of the Coif
— Editor, University of Pennsvlv ania Law Review
B.A. magna cum laude, 1972, Goucher College, Towson Maryland. Field of
Concentration: Philosophy.
— Phi Beta Kappa
— 1970-7 1 : Undergraduate studies at the London School of Economics, London,
England.
PERSO NAL INFORMATIO N
Born December 4, 1950, in Terre Haute, Indiana.
Married August 20, 1972, to Lawrence White, employed as the University
Counsel for Georgetown University. Two children: Miriam Wheeler White (born
July 3, 1981) and Andrew Fisher White (born July 3, 1984).
November 1998
– ix-
The Honorable James L. Buckley
Oral History
Date of Interview: August 14, 1995
Today is August 14, 1995. This is Wendy White from Shea &
Gardner, and I’m here with Judge James L. Buckley of the United
States Court of Appeals for the District of Columbia Circuit. We are
here as part of the D.C. Oral History Project, and this is our first
session.
and I hope that this machine will record our words today.
to get the other machine to work for the next time. I start with the
only question that sounds like a deposition question, which is, why
don’t you tell us your full name and where you live.
We are starting at about 2:15 p.m. Eastern Daylight Time;
I’ll try
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BUCKLEY: OK. James Lane Buckley. My address is 4980 Quebec
Street N.W. in the District of Columbia. I actually
live in these chambers.
This is where you spend all your time?
Yes.
Well, I haven’t had any trouble finding you here.
What’s your date of birth?
March 9, 1923.
You are married?
Married.
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And your wife’s name is Ann?
Ann
What was her maiden name?
Ann Frances Cooley.
And you have six children.
Right
And what are their names?
The oldest is Peter; next is James (we call him Jay);
Priscilla; William (we call him Bill); David; and
Andrew (Andy).
We are going to talk in a little bit about your wife
and your family; but to begin I would like to go back
in time and start, if you will, by talking about your
grandparents — either what you know of them or knew
about them and where they were from. Let’s find out
more about them. Do you want to start with your
paternal grandparents?
OK. My grandfather was named John Buckley and his
wife, Mary Ann, formerly Mary Ann Langford. They grew
up in a rural area of Canada and emigrated to Texas
shortly after their marriage. My grandfather
apparently had asthma, and somebody persuaded him that
Texas was where to go for relief. My grandparents
moved at first to a place called Washington-on-theBrazos, which is the site of the Texas Declaration of
Independence. I think the town has since disappeared.
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My father was born there.
very dry, tiny town in south Texas — San Diego, which
is the seat of Duval County.
grandfather had all the virtues except that of making
money. But he ended up as the successful (after a
year and a half in the courts) reform candidate for
sheriff of Duval County and remained the sheriff, I
think, until he died.
was born.
About what year was it when he came to Texas?
My father was born in ’81 so he probably came to Texas
in 1880.
What was he doing in Canada?
He grew up there — his family were farmers.
What part of Canada — eastern or western?
The Province of Ontario, near Hamilton.
His wife Mary Ann was also from Hamilton?
Not from Hamilton, but from some town nearby.
And did they get married young or old or who knows?
Somebody knows. I have a cousin who has taken an
interest in these things, and if it is of critical
importance to you, I could probably find out.
So they got married and they decided to leave Canada
for health reasons.
left?
After that they moved to a
Apparently my
He died about 20 years before I
Do you think that’s why they
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Apparently my grandfather had very bad allergy
problems, and the gene has passed on for many
generations.
Is it in this chambers?
Yes, but I’m grateful for it; otherwise I would not be
an American citizen.
Did you know your grandparents?
I knew my grandmother slightly. The last time I saw
her was when I was six. She lived in Texas; we lived
in Connecticut. We visited her at Christmas. My
grandfather died in 1903.
And how about your mother’s parents — where did they
come from?
My grandfather was born in New Orleans, my grandmother
was born in Port Gibson, Mississippi.
I didn’t know you had all these southern roots.
Although I was born in New York City and grew up in
New England, I am culturally southern.
We will talk about that when we get to your political
career. I did not know you had these southern roots.
What was your mother’s father’s name?
Aloysius Steiner.
And her mother, your grandmother?
Maiden name was Wassem.
And her first name was?
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Marie Louise.
What did Aloysius Steiner do in New Orleans?
He was the comptroller of what was this country’s
largest wholesaler of sugar refining equipment.
You know, when you live in Washington and everybody
practices law, it’s really wonderful to hear about
people who do real things that matter in this world.
Was this a family business?
No. I knew that he was a comptroller, but I only
learned the nature of the business when I went to New
Orleans about five years ago to visit the last
survivor of my parents’ generation, an uncle who had
just turned 80; and he told me. For whatever reason
when I was growing up, I never thought to ask what
exactly my grandfather did.
Did you know either of them?
I knew my grandmother. She had lived in New Orleans,
and we would visit occasionally. The last time I saw
her was when I was about 13. She had spent a month
with us in Connecticut.
Was your mother born in New Orleans?
Yes.
Do you have any memories of stories told about your
grandparents or what their lives were like. Did your
parents talk about their parents?
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Not all that much. My father had some stories that
were possibly apocryphal, but I don’t recall his
having said anything much about how they lived.
Do you know what kind of people they were, what was
important to them?
Character and their faith. Apparently my father’s
father was principled, honest, courageous, and
taciturn. His mother was a strong and devout
individual. That is all I can say about them.
In your father’s generation?
There were six children, and one of them died when he
was 17 or 18.
What were their circumstances?
They were among the poor in a poor town. It was a
town of 2000 of whom 1800 were Mexican. There was no
delivered by burro from
you talk to your father
electricity, and the water was
the town well.
And how do you know that? Did
about it?
My uncle told me. I visited m] uncle after my father
died and he started reminiscing a bit.
It’s interesting how often you learn about your
parents much later in life and from relatives not your
parents.
I am just appalled that I never thought to ask a lot
of questions.
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I think that is very common and it is not until later
that you ever think to ask. If you were to ask me all
these questions, I wouldn’t know many of the answers
either.
And, of course, not having known my grandparents. But
my children knew their grandmothers very well.
knew both of their grandmothers.
Do you have pictures of your grandparents?
I have a picture of my father’s father on the wall in
They
the other room. A cousin of mine sent it to me. It
was taken in front of the courthouse in San Diego
about one hundred years ago and shows a dozen courtrelated men, including Sheriff John Buckley. I call
it “The forces of law and order in Duval County.”
Duval County is famous in Texan history. Famous for
its corruption. That’s where Lyndon Johnson won his
Senate primary race by getting 110 people to vote from
the grave in alphabetical order. According to a
professor at the University of Texas, my grandfather
was one of them; he voted 40 years after his death. I
also have a picture of my other grandfather.
Do you have the picture?
An uncle sent it to me. This is my mother’s father,
and apparently he had scribbled “The Senator” on it.
He apparently thought that he looked like one.
He does.
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Whatever Senators look like. And then when you go
out, I’ll show you that other picture.
Now, is John Buckley a political man? Did he run for
sheriff? Do you have to be a political character to
become sheriff?
Well, I guess it depends on the circumstances. He was
an unsuccessful sheep rancher. I think he tried
selling hardware at some point. Whatever it was, it
never quite worked.
respected, if one believes obituaries — an article in
a Corpus Christi paper when he died said that he was
greatly respected for his character and integrity, and
that people came to his funeral from all over. He was
also brave. San Diego was not a very peaceful town;
but he never carried a gun — he had one but didn’t
carry it, and that was considered significant in those
days. How did we get into this?
I wanted to know whether he was political?
Oh political — I just don’t know. What got me into
the character bit is that he ran as a reform
candidate. He may have been persuaded to run; so he
And apparently he was enormously
may not have been a political man otherwise; he may
have been just a very respected person. There was a
family called Parr that was very powerful in Duval
County, and he opposed their candidate. Apparently my
grandfather may have been elected by virtue of the
fact that we are Catholic and most of the non-Mexicans
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were Protestants. If you go to church, you get to
know fellow congregation members.
close to the Mexican community. When he became
sheriff, he became very unpopular with a lot of
“Anglos” because he sympathized with the Mexicans and
tried to protect them.
Well, I’m looking of course for your political roots.
His election was challenged — it went all the way to
the Supreme Court of Texas. A year after the election
they said that he had won.
What was the basis for the challenge, do you have any
idea?
I’ve got the documents somewhere.
What an interesting story. Was religion an important
part of your grandfather’s life?
I suspect so, yes.
And your grandmother? Were all four of your
grandparents Catholic, raised as Catholic?
All four of mine were, although only three of my great
grandfathers were. Both of my father’s grandfathers
were Protestant, as was one of my mother’s
He became very
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grandfathers.
You said that your father had five siblings?
He had five siblings, of whom I knew four. Two
sisters and two brothers.
Who were they and what were they like?
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The eldest was Priscilla Buckley, a maiden aunt,
wonderful sense of humor, and formidable character.
The other sister, who was the next to the youngest in
the family, was Eleanor. Very beautiful. And neither
married. Then my two uncles, Uncle Edmund and Uncle
Claude. They both started out as lawyers, as did my
father, and then one of them stayed in the law and the
other became an entrepreneur in various ventures.
Both stayed in Texas, via Mexico — that’s another
story.
Via Mexico? Did they live in Mexico for a while?
My father developed a huge interest in Mexico; and
when he emerged from the University of Texas Law
School, he went to Mexico City and hung out a shingle.
He grew up speaking absolutely fluent Spanish so he
took whatever courses you had to take to qualify to
practice in Mexico; and then when oil was discovered
in Tampico he said, “Ah ha, this is my opportunity.”
Because he knew Mexican law and spoke English, he
believed he could secure the legal business of oil
companies who presumably would want to be represented
by somebody who knew his way around and understood the
people.
shingle, and then called for his two brothers to join
him. That is how the three of them ended up in
Tampico practicing law.
Is this before you were born?
So he went down to Tampico and hung up a
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Before I was born.
And did they marry — Edmund and Claude?
Yes.
Did they raise families?
Yes.
And where did they end up after Mexico — in Texas?
One of them, Uncle Claude, ended up in San Antonio and
the other one in Austin.
And are they still there? Are they alive?
They are dead. They were born in the 1880s.
But did you know either of them?
Yes, but not well. Uncle Edmund died of lung cancer,
and I’m trying to think if it was immediately after
World War I1 or immediately before the war. I think
immediately after the war. Uncle Claude died when he
was ninety.
Do you keep up with any of the families?
Yes, cousins — but not as much as I would like. I
find them a great group. When I went to a courtsponsored training course in San Antonio on how to use
a word processor and LEXIS and things of that nature,
I had a splendid time with four cousins who live
there.
And there is one other sibling — was there a child
who died young?
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Yes, John.
Was he the oldest?
He was the oldest son — he was born in Canada.
And where is your father in the pecking order?
He was number three.
What’s your father’s name?
Wi 11 iam
OK. Now let’s go over to your mother’s family and do
the same thing. How many sisters and/or brothers did
your mother have?
She had two sisters and one brother.
Why don’t you tell me about them.
OK. The brother was about 11 or 12 years younger than
the youngest of the three girls. My mother was the
oldest.
What was your mother’s name?
Aloise. Her name was adapted from her father’s,
Aloysius, whose father and grandfather were named
Alois, so the name, or variations of it, seem to carry
on.
And is this a long-time New Orleans family?
Her father was the first one born in New Orleans. Her
grandfather and great-grandfather immigrated from
Switzerland in the 1840s. My mother was the oldest.
Then the next child was Vivian; and she married a
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doctor called Lombard, Marion Lombard, who was in the
U.S. Public Health Service and was sent to New Orleans
before we entered the first World War because of a
typhus or yellow fever epidemic. New Orleans used to
have all of the tropical diseases sooner or later;
anyway, that’s how she met him. He stayed in the
service, which meant she ended up living everywhere in
the United States. If she was two years in any place,
she would end up speaking with the local accent —
extraordinary phenomenon. She in turn produced a
bunch of my first cousins. Then the other one, Aunt
Inez, I have her picture here. Incidentally, they
were tiny people. Probably about five feet. My
mother was about five feet and a half. Not five and a
half feet — five feet and a half inch.
That’s how tall I am. So you didn’t get your tall
genes from this side of the family. Your tall genes
did not come from your mother.
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Well, her mother was five feet eight; her father was
five feet six. Her mother’s father was six feet four.
Well, maybe you did. I take that back.
Aunt Inez also married a doctor, but a doctor who was
a New Orleans native and stayed there. Perrier by
name.
And are they still in New Orleans? Do you have
cousins in New Orleans?
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Oh yes, I do. My parent’s generation is dead now, the
last survivor being my mother’s brother, who died two
years ago.
And you said he was much younger than the other three.
Yes.
What did he do?
He was with a finance company of some kind.
You said your father grew up in these poor world Texas
circumstances — what about your mom?
Prosperous. You know, not rich but comfortable.
Was it a prominent family in New Orleans — a wellknown family in New Orleans?
No. Not that I know of; but socially very acceptable
in a socially conscious city.
And how did they get to New Orleans from Switzerland,
do you know?
It puzzles me. I just don’t understand what would
cause people to go from a Swiss climate to there, but
apparently there were others. There was a Germanspeaking community in New Orleans, and it was a
Catholic city. My mother’s paternal forebears came
from Switzerland’s Catholic German-speaking canton,
St. Gallen. But to go from Switzerland to the fever
swamps of New Orleans was to me surprising.
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Very surprising. That’s right. I did not realize
that New Orleans had a significant German community.
Well there were some; and my Lutheran greatgrandfather Wassem, who lived in Mississippi at the
time he met my great-grandmother, also had started out
in New Orleans.
So how did your parents meet? With such very
different backgrounds?
My father was then getting on in years (he was 36),
and I guess he was very anxious to meet a prospective
bride. His brother Edmund had met one of my mother’s
sisters in Mexico, where she was visiting an uncle
(actually, a cousin once removed), whose father had
moved there after the Civil War rather than take an
oath of allegiance to the United States. He learned
that there was a bevy of attractive Steiner sisters in
New Orleans and suggested that my father call on them
on a forthcoming trip to the city. So he did. There
was a 14 year difference in my parents’ ages. They
were married four months later.
Now that is an interesting story — and they were
married in New Orleans? Well, tell me about what your
father did as he grew up and what brought him to the
point where he married your mother?
Well he grew up as the son of the sheriff and played
baseball and rode horses and things of that sort. He
attended a tiny school that had an extraordinary
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teacher. The community apparently was extraordinary.
There were French, German, and Irish families, and
Virginians displaced by the Civil War, people with a
fair amount of education who for whatever reasons
ended up there, God knows why. In any event, the
immediate goal on graduating from that school was to
get a college education. My Aunt Priscilla and my
father went to Austin, which is where the University
of Texas is located; and they both went to work in the
Texas land office translating Spanish deeds in order
to raise the money for my father’s tuition and living
expenses. My aunt continued to do that until she
retired many years later, but she helped finance the
education of my father and their younger siblings. She
herself never went to college.
So Priscilla is the oldest. She did not go through
the university herself but just worked to finance
others?
That’s right. She just worked to help.
Did they all go?
The others all went.
My father raced through college and law school in
about five and a half years and then headed off to
Mexico.
So he went to Mexico right afterwards?
Yes.
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Had he ever been to Mexico before?
Yes, he had been there several times — once selling
soap. At another time he had the honor of serving as
Pancho Villa’s interpreter.
There aren’t a lot of people who can say that.
Villa called him Senor Ojos Azules. Mr. Blue Eyes.
Your mother — who was 14 years younger and was
growing up in New Orleans –what was her life like as
she grew up?
Very social. She had been engaged a couple of times
before she met my father, I know that.
How do you know that?
Her sisters told us.
My guess was it wasn’t she who told you.
Actually, she did. Mother went one year to college.
She then had a nervous breakdown of some kind. Then
came World War I. She volunteered for nursing,
fainted dead away at the first sight of blood. Went
to balls and so forth and then when she was 21 or 22,
my father came along.
So she was quite young?
He was 36 and she was 22.
And they married four months later and where did they
then move? Did they go back to Mexico?
Yes.
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Did she speak Spanish?
She spoke terrible Spanish fluently.
utterly ungrammatical.
But she picked it up.
She could say what she wanted to say.
communicate and she could understand.
Did your mother go to college?
I said she had for one year.
Bad accent,
She could
She never went back. So did they live in Mexico for
long — what did they do next?
They lived in Tampico until 1920 or -21. Then my
father achieved a signal honor. He became the first
person against whom the President of Mexico invoked
Article 33 of the Mexican Constitution. Article 33
empowers the President to expel pernicious foreigners.
Was he making too much money?
He was testifying here in Washington before the Senate
Foreign Relations Committee as to why the United
States should not recognize the current bandits in
charge of Mexico.
He was actually told he had to leave?
Oh, absolutely.
Was there some formal proceeding?
No. The President had the authority. My father was
told to get out.
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And I take it that at that time he had a successful
practice?
He was successful. He had started representing
various oil companies and ended up engaging in various
land ventures, including real estate and oil
exploration leases. These ventures proved very
profitable.
So let’s talk about your brothers and sisters and who
was born in Mexico. You were not born there.
No. I was not born there. None of us were born in
Mexico although my oldest sister lived there as an
infant. My oldest sister was born in New Orleans. My
mother came up from Tampico (where my parents were
then living) for that purpose and then returned. They
remained in Tampico until my father was expelled,
which was shortly before their second child was born.
What is your oldest sister’s name?
Aloise.
How many other siblings do you have?
There were ten of us. I am the fourth of ten. There
are now seven.
OK. Let’s find out about your siblings.
Aloise, the oldest, was five years older than I. She
in turn had ten children. She died when she was about
45. She had some kind of brain hemorrhage.
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Leaving ten children. Did the other siblings have a
relationship with her children in her absence. In
other words, do you have a relationship and do your
brothers and sisters have a relationship with them?
Some more than others. My brother John and I worked
in New York with their father, Ben Heath, and they
continued to spend summers in a converted barn on my
family’s place in Sharon, Connecticut; so several of
us were in fairly close touch with them.
Sometimes when a mother dies young, the rest of the
family really dedicates a lot of time to these other
children — and ten of them is a lot of work. Did
your brother-in-law remarry?
Yes, he did. About five or six years after that.
OK, that’s your oldest sister.
The next in line is my oldest brother John, married
with three children. He died in December of 1984. He
was 62.
What did he die of?
An abdominal problem.
Where did he live?
He lived in Lakeville, Connecticut. He and I worked
together, and we had an office in New York but also
one in Sharon where we would work on Mondays and
Fridays. We would go to New York Tuesday mornings and
return Thursday evenings. Then comes my sister
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Priscilla. Priscilla is retired now. She is a
journalist. After she graduated from Smith College in
1943, she went to work in New York city for the United
Press Radio Division. After the war, she joined the
UP’S bureau in Paris. When my younger brother Bill
started the magazine National Review, he hauled her
back to serve as its Managing Editor; and she
continued as its Managing Editor until she retired
about two years ago.
so, she worked with your brother all those years.
She did not marry. And she has now retired to Sharon.
And then comes your servant.
We’ll get back to you.
And after that comes my sister Jane who married Bill
Smith. They lived in Calgary in Canada for a while.
She has six children. They returned to Connecticut,
to Sharon. She and Bill were later divorced, and she
has remained single ever since. She lives in Sharon.
Sharon, by the way, is a very small village. When we
were growing up, Sharon had a population of about
1600. That population has since exploded to 2900.
Does that include many of your cousins?
None of my cousins, no.
All right, that’s Jane.
After that comes brother Bill. He is married to a
Canadian, Patricia Taylor. Their home is in Stamford,
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Connecticut; and they have an apartment in New York,
where he edits his magazine, writes his columns, and
does his television program. They have one child, a
son who lives in Washington, D.C.
Is your nephew a lawyer?
No, he’s a writer. Lots of writing in the family.
Then we come to sister Patricia.
So you have a sister and a sister-in-law named
Patricia.
Right. Patricia married a fellow called Brent Bozell.
She has ten children. You shake your head.
It’s amazing, amazing. What would you do if you ever
had a family reunion and everybody came?
This is a picture of my mother with 34 of her 50
grandchildren.
Well, this is an impressive picture. It is mindboggling. When you put together all of just your
generation and their children, if you count it up how
many are there?
Seven of us are still living; and we have pi oduced 50
children who, in turn, are producing their own. At
the time of her death ten years ago, my mother had 90
living descendants.
That’s an impressive effort, a very impressive effort.
Great picture. OK; so Patricia has ten children as
well, and she is still alive.
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She is still alive; she lives in Washington, D.C. For
a while she and her husband edited a magazine on
Catholic subjects called Triumph which, as happens to
most small magazines, eventually went under; and she
now does editing work for a publishing company.
Oh, so there are a lot of journalists.
Then we get to our youngest brother Reid. Reid has
had two novels published. One of them was a second
selection for the Book of the Month Club. It had
about 750 pages.
so it was hard to take to the beach.
He has done a lot of writing and lives in Camden,
South Carolina. He has established a school there at
which people, mostly executives, are taught how to
present themselves, how to speak on their feet; and he
writes articles and gives lectures on the side. And
he is married and remarried.
How many children do they have?
Four children by his first wife; one by the second
marriage. He married a Spanish widow the second time
around, and she has five children.
OK.
Then we go to sister Maureen. Ten years younger than
I. Maureen married a lovely man called Gerald
O’Reilly, and she had five children. She died in her
early 30’s of a cerebral aneurism.
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And the youngest?
The youngest is Carol. Carol married and divorced
twice and has four children. She is now living in
Massachusetts, in Newburyport, which is near Boston.
So what was it like growing up in a family of ten
children?
Wonderful.
That’s a wonderful answer. There was probably
something going on all the time. Did you take care of
each other?
Yes. Mother claims that after four children there is
very little incremental work. The discipline that I
remember most when I was growing up was handed out by
my brothers and sisters. When I got out of hand, they
showed no mercy.
Were there siblings with whom you were particularly
close as you grew up?
Yes, my sister Priscilla. Large families have a
tendency to break up into groups. I was the youngest
of the oldest group. So my closest relationships were
upstream rather than downstream.
Were the age gaps evenly spaced or is there a break
after you?
No break after me. My mother gave birth to 11
children in 20 years. One of them died two days after
her birth. One of those things. Difficulty
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breathing.
was between Maureen and Carol — five years.
I admire her enormously. That’s very hard work. So I
know what your mother did with her time. But how did
they end up in Connecticut? Where did they go after
Mexico?
They went to New York, stopping on the way in New
Orleans and Texas to catch their breath and, I guess,
to collect whatever possessions escaped Mexico. By
that time my father’s principal assets were an
absolute command of Spanish, an understanding of the
Spanish legal system, and a demonstrated ability to
develop intimate relationships with the foreigners
among whom he lived — they respected him, he spoke
their language, and he was very close to them. He had
become intrigued by the oil business. Oil had been
discovered in Venezuela by then, so he decided that
what he wanted to do was to raise the money with which
to form a company that would try to negotiate oil
exploration concessions in that country. Where was
the money? In those days it was in Wall Street. But
he didn’t want his children to live in New York City.
For the first couple of years, my parents rented a
house in Scarsdale, New York; and then somehow or
other my father found this remote village, Sharon,
which he thought was exactly right.
Where is it?
So there was a gap there, but the real gap
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On the New York border about 12 miles south of
Massachusetts. It’s in the northwest corner of
Connecticut. It is about 95 miles north of New York
City, so it’s well beyond commuting range. My father
would take the train into New York on Monday mornings
and come back Fridays. So we saw him on weekends.
So your mother raised ten children essentially by
herself with the other children helping.
With lots of help. We had a French governess and two
Mexican nurses.
And he had an apartment in Manhattan?
Yes.
What was your father like?
A remarkable man. He was very shy with his children.
He had a wonderful sense of humor, was very bright.
Unlike certain of his sons, he had wonderful memory
for details. A man of great charm. And great
intelligence. And great imagination. And great
business courage. He had very strong principles.
Which he communicated to his children. And what about
your mother? What was she like and what was life like
for her?
I gathered after I grew up that she had experienced
some lonely times. But she was a lovely, lovely,
lovely person. Wonderful with people. She was a
woman of extraordinary faith, a deeply religious
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person. My father was too, but his was much more
private.
Was she active in the way she practiced religion? Did
you go to Mass? Were you active in the church as a
family? Was she active in the church?
Not active in the sense of being on this parish
committee or that.
and had total faith in the Lord; and when she had
problems, she would place them in His hands. She
prayed energetically for any and all things. Her
faith was a living, real thing for her.
And she communicated that to her children.
Yes. She communicated the strength of her beliefs.
But not all of her children were as graced as she was.
Were you born in New York?
Yes.
And all your siblings after you, were they all born in
New York?
All but two of them. My sister Maureen and my brother
Reid were born in Paris.
What were you doing in Paris at the time?
But she went to church every day
In 1929, my father concluded he had it made, and now
he was ready to do all those things you couldn’t do
when living in San Diego, Texas. So he took wife and,
at that point, seven children to France; and a couple
of months later, something called the Great Depression
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occurred — the crash. My brother John claims this is
true — I’m not sure it is — that he was in my
parents’ bedroom one morning when my father received a
long distance telephone call. He turned to my mother
and said, “Dear, how much money do you have in your
purse?” She answered, “Oh, I’ve got 150 francs.I1 He
then said, IIWell, that’s all we have.” That’s a
slight exaggeration, but in effect he had to go back
to work and raise money in Europe. So we were
stranded in Europe by the Depression.
Do you remember that?
I don’t. My brother John did. I was six years o
the time; he would have been eight.
d at
Do you remember any change in the family dynamic or
your circumstances? At six you don’t remember much,
but sometimes you pick up the feeling of what’s going
on.
We were protected from vicissitudes.
What happened?
Well, instead of spending six months or so abroad, we
remained in Europe for two and one half years.
And what did your father do?
Raised money, to keep his company afloat. We returned
in 1932. We spent the last nine months in England.
Do you remember that? You were pretty little.
I remember it some.
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Were you in school there?
Yes, in France and in England.
HOW’S your French?
I wish it were great because my only daughter is
married to a Frenchman who speaks little English. I
can understand French quite well, but you know those
college aptitude tests; I was in the 30th percentile
as far as an aptitude for foreign languages is
concerned. I just can’t grab the words and absorb
them. I can get by in French, but I can’t carry on a
serious conversation.
Did you learn at the time that you were there?
At ages seven, eight, and nine, I was trilingual. I
absorbed idiomatic French at school in Paris. When I
was very young, my father spoke to us in Spanish; and
I had a Mexican nurse. So I spoke Spanish before I
spoke English.
That was to make sure that you always spoke Spanish,
and did that work?
No. My French is better than my Spanish. But it
worked for various members of my family who had a
better native talent so that at least four or five of
my brothers and sisters became fluent in one or both
of those languages. But I’m not one of them.
What kind of impact did this have on your mother, this
dramatic change and what the plan was?
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Apparently there were some very hairy times.
Nevertheless, by the end of our stay in France, our
household included nine children, two Mexican nurses,
and a French governess.
And that didn’t change during this period?
My father went into debt. He had great confidence in
his company’s prospects and in his ability to raise
the necessary money.
Your mother had great confidence that it would all
work?
Oh! I forgot to mention one very important thing. We
had a cow in Paris.
Well, that’s important, where did you keep the cow?
Some livery yard stable. Believe it or not, when we
went to France, the home of Pasteur, you couldn’t get
pasteurized milk; so we drank something called Klim,
which is milk spelled backwards. It was a powder that
was mixed with water. It was just awful; and after
seeing his children suffer for about a year, my father
went to the Island of Jersey and bought himself a
certified, disease-free Jersey Cow.
That says a lot about your family. Did you live in
Paris, or did you live in one of the suburbs?
Two places. One was an apartment right in the heart
of Paris, and the other one was a house on the edge.
Do you have fond memories of that period?
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Such memories as I have are fond, but I don’t have
many memories of Paris.
And then you came back when you were about nine?
About nine.
Went back to Sharon?
Went back to Sharon.
Now, looking back on it, what were your father’s
circumstances at that time?
The bills were being paid, but it was touch and go as
to whether the company would survive.
I can’t remember where we were. I think I was asking
you about coming back, and you mentioned your father’s
business problems.
The company which he had founded, and whose stock was
actively traded on the old New York Curb Exchange, had
several very large concessions in eastern Venezuela,
where oil had not yet been discovered. The
properties, however, had great geological interest.
But if a company doesn’t have any income, you have to
constantly find new sources of financing or negotiate
a deal with a major company. My father would try to
interest Standard Oil or some other company to go in
and invest X amount of dollars in exploration in order
to earn an interest in a particular property. This
was a frantic, bankruptcy-around-the-corner type of
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existence, but his children were only peripherally aware of
the pressures he was under.
Is that right? Throughout this whole period, even as
you grew up?
As we grew up we knew that there were some large
problems. Mother would ask us to pray very hard that
this or that deal would work out, but in the meantime
we continued to have our piano lessons and this and
that.
So what was your life like; what did you do?
Well, I had my piano lessons.
Was that important?
Not to me.
Important to your mother?
Yes.
I see. You don’t now play the piano, I take it?
No.
What else did you do?
I played, had friends and had my Shetland pony.
Did you ride?
Yes.
Was that important to you?
It was important to me until I outgrew my pony and we
began riding in horse shows. I had a very close
friend who lived a mile away. He had a Shetland pony
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and go on long rides together. We felt free. Sharon
was strange — in this tiny town, there were about a
dozen substantial houses along South Main Street, and
these were owned by New York gentry who arrived right
after school got out and stayed until after Labor Day.
So we had a set of summer friends. These New Yorkers
were known to the locals as “city people,11 and we were
considered “city people” even though we lived in
Sharon 12 months a year.
Well, you had a house in the city, you just didn’t
live in it.
Not really — an apartment that couldn’t have housed a
third of us.
Were you interested in sports?
No. We played softball, touch football, and things of
that sort; but my interests were in birds and natural
history.
Were you a baseball fan?
No.
Even as you grew up? Were you a Yankees fan?
Not really. I hate to admit that I was not a typical,
red-blooded American boy.
That answer surprises me. And how about politics?
What kind of role did politics play in your life as
you grew up?
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My father was not a great fan of Franklin Delano
Roosevelt. But then he was not a fan of many people
in government. When growing up, I had no idea how he
voted, or whether he voted. He and my mother
obviously had 100% Democratic party roots. But keep
this in mind. When my parents were growing up, the
Republican party was the party that favored a strong
central government. The Democratic party was for
state’s rights. The national parties changed their
stripes; my parents didn’t. There was a lot of talk
about political matters but not in a partisan context.
Did you have a family dinner during the week. Did you
all sit down together?
We were a large family, right? There were three
connected dining rooms or areas in our Sharon home.
The layout was like the letter ‘IT.” A long room with
two smaller tables intersected the main dining room,
where the older children would eat with our parents.
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The younger children would eat at the other two
tables.
Did you graduate from one to the next?
Yes.
At your place, you were with the older children.
your Mother eat with you?
Yes.
And did you talk about political events?
Did
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I don’t recall political talk as such, although it was
clear my father had zero sympathy for the New Deal.
My principal memory is of stories my father would tell
of his adventures in Mexico. He was a great story
teller.
What other early memories do you have of being in
Sharon?
Carpentry.
Working on the house? That’s interesting.
Our house kept needing expanding.
As you had more children. You needed more rooms.
Exactly.
Did you have your own room or did you share?
We all shared. I shared with my brother John.
Do you remember what you cared about when you were
little? What was important to you when you were a
little kid in Sharon?
I have always been fascinated by nature, particularly
birds. I would have odd pets — at one time or
another, a crow, a cooper’s hawk, a flying squirrel, a
woodchuck. I was very shy and would often go on long
expeditions into the countryside alone or with my
friend Deane Witt. My life was family centered. I
have difficulty recapturing the details as I seem to
have been born without an anecdotal memory. I’ll meet
an old friend and he’ll say, ‘IYou remember when … ? I’
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and 1’11 have no idea what he is talking about until he
teases it back into my memory.
Who were your friends; do you remember them?
Very, very few in number. It was a tiny community.
My brothers and sisters were really my close friends.
I had one very special buddy, Deane Witt, who was my
pony pal. There was also a fellow called Bill Coley
who lived next door; and then there are two or three
others. But these were all city people who would
arrive the first week of June and then disappear after
Labor Day.
Where did you go to school?
The first three years after returning from Europe, my
younger siblings and I, together with the children of
two or three other year-round residents of Sharon, had
the equivalent of home schooling — first at the home
of the Congregational minister and then at our home.
When I was 13, I went to Millbrook School, which is in
New York State about 11 miles from Sharon.
Is that co-ed? Or is it just boys?
It is now. Then it was a school for boys. It had
just been started. My father was able to cut a
favorable deal because he had four sons in inventory.
The school had been started in 1931 or 1932, in the
middle of the depression. By the time I graduated, it
had 50 students. It now has about 200. When my
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brother John went there, the entire school had its
meals in the headmaster’s dining room.
When did you see your family?
As a result of the deal cut by my father with the
headmaster, Mr. Pulling, we were semi-boarders. At
boarding schools in those days, Wednesday afternoons
were free, as were the weekends after Saturday morning
classes. We would come home Wednesday afternoon and
return to school Thursday morning, and we would spend
the weekends in Sharon.
Do you have memories of Millbrook and what it was like
to be there? Did you like it?
Yes, I did. The school had some marvelous teachers
who knew how to make schoolwork interesting. It
maintained high academic standards. I found the
school particularly attractive because the year I
arrived (with a pair of armadillos my father had sent
me from Texas), a new biology teacher, who had just
graduated from Cornell, arrived with a sparrow hawk,
and a boa constrictor. We were instant soul mates.
He established a zoo that is now nationally accredited
and developed an advanced biology course that was more
sophisticated than anything that was available to
undergraduates when I entered Yale. So I was in my
element there.
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How did your father decide to send you there? There
were many choices in New England of where you might
have gone.
He liked Mr. Pulling’s approach to education and to
the formation of boys’ characters. Sharon is located
within a very few miles of several first-rate boys’
schools. Hotchkiss School is five miles away.
Salisbury School is another five miles beyond that.
Kent School is fifteen miles to our south. But this
was a new venture, and my father felt that his own
views on the education of his sons would get a fair
hearing.
Where did your sisters go?
They went to different places. All four of the boys
went to Millbrook. Three of my sisters went to the
Nightingale Banford School in New York City. I think
two others went to Ethel Walker in Simsbury,
Connecticut; and my youngest sister went to the Sacred
Heart Convent in Noroton, Connecticut.
Anything else you remember about Millbrook and what it
was like to be there?
It was small, rural.
Other than the natural history and the study of birds,
were there subjects that you liked?
History. I liked math, geometry, algebra.
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Were there any teachers there that particularly had an
impact on your life, about whom you thought?
Several. Frank Trevor, who taught biology. Mr.
Abbott, the Latin teacher — not because of the Latin,
I assure you, because before every test I would have
to re-memorize the same irregular verbs I had
committed to memory three or six weeks earlier. But
he ran the Glee Club; and in those days I was a
soprano, and I enjoyed that tremendously. He also
taught a very sophisticated music course that was
created by the Carnegie Foundation. It was absolutely
first rate, and it has given me a lifetime of
satisfaction because it caused me to love classical
music. Mr. Tuttle, a businessman turned teacher, knew
how to make mathematics fun. And then there was
another wonderful man, Mr. Callard, who was the
Assistant Headmaster. He was the person to whom I
would turn if I had problems. He was outstanding.
Were your brothers there when you were there?
My brother John was. My brother Bill arrived the
after I graduated.
Were you and John close during that period?
Yes.
ear
Anything in particular during that time that you were
afraid or concerned about? Anything that as you think
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back on it now was worrisome to you during that period
when you were in high school?
No. I do recall that there would be times when at
home in Sharon I had the blues. I guess that term
reflects my southern roots.
Normal, teenage, adolescent stuff. Do you think of
yourself, or as you think back on your childhood, as a
child who was pretty happy?
Yes.
Easy going — do you have a temper?
I’m told that I had a temper when I was one, two, and
three years old.
And not since.
Very placid.
And were as a child?
I think so.
Is there anything that you particularly loved that
really made you happy?
Pets and birds and so on, my family, my mother’s
“Nancy” stories, from which we developed a special
feeling for the American Revolution.
Tell me about those.
Nancy was a girl who happened to be a confidante of
George Washington. My mother would spin these stories
right out of her mind. I wish I had a recording of
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them. We learned a tremendous amount of history: the
Battle of White Plains, General Bourgogne, the
crossing of the Delaware. We developed a real
reverence for what was going on in that struggle.
And your mother knew that. It was really your mother
who was communicating that, right?
Right.
That’s interesting. And did she learn that from
reading? Was your mother a big reader?
She was a big reader, but I’m not sure she was reading
about those sorts of thing as an adult. I know she
read a lot of novels. My father was also a very big
reader and would be more likely to be reading things
like history. But I have a feeling that in years past
in the United States, the schools made sure that you
had a thorough grounding in the history of this
country.
She just learned it in school.
When I was growing up we learned all about the
American Revolution and the philosophical
underpinnings of the American Republic. We were
taught the basic structure of the Constitution — the
separation of powers and federalism. And George
Washington was our hero. We celebrated his birthday
with cherry pies, ice cream, and candy hatchets. It
was a big occasion.
And do your children?
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No. Not as well as they should.
Your mother wasn’t around to tell them those stories.
And what part did your father play in this? He wasn’t
home but he obviously played a major role in your life
as you grew up. Did you spend time with him?
In that period I was intensely shy. My father I think
tended to be shy with his children. Some of my
brothers and sisters, however, had a very close
relationship with my father. But although I was not
especially close to my father, and although, as I have
told you, he was generally home only on weekends, he
was a very large presence in my life. He was the
pervasive authority figure, and it was obvious that he
had us and our welfare constantly in mind. It was he
who worried about our education; and he made sure we
were exposed to just about every kind of activity just
in case one of them would catch our fancy. At one
time or another I had lessons in carpentry, model boat
building, tap dancing, fly casting, horseback riding,
and mandolin playing in addition to the more customary
lessons in piano, golf, tennis, and ballroom dancing.
And they all impacted on your siblings in very
different ways. Other than going to Paris, did you
travel much?
Well, not too much. During the three years we were in
Europe, we spent several vacations in Switzerland,
traveled around France, and ended up in England.
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Before you came back.
Yes, before we came back. September to June.
What was your father doing, do you know?
Raising money. But we used to — when we still had
grandparents alive — we would take the train down to
New Orleans and Texas. Then in 1934, after we
returned, we took a trip to Wisconsin and the Chicago
World’s Fair. Then towards the latter part of the
30’s, my parents never totally at ease in the north,
they found a place in South Carolina called Camden
where they began to take the family at Easter time —
Easter break — and eventually bought a house.
You would go back and forth to the house in South
Carolina. Did you go to summer camp?
No.
Any book that you read as you were growing up that had
a particular impact that you remember?
Serious books? Ernest Thompson Seton’s Wild Animals I
Have Known and his other books; Peattie’s An Almanac
for Moderns; Thoreau’s Walden. I also read the
Burgess books. Did you read the Thornton Burgess
books to your children?
Absolutely the Thornton Burgess books. I read them
all to my children. I loved the Thornton Burgess
books. Did you read the Thornton Burgess books to
your children?
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No.
Several of my sons read them; my daughter was not
terribly interested in them.
There were some others.
You read the Oz series? There is a whole series of
them.
I confess to having read all of them.
Did you like to read?
Very much, although I am a very, very slow reader. My
oldest sister taught me how to read, that may have
something to do with it — the slow pace. I like
reading history.
It’s quarter to four and I think this is a good place
to break. You have a better memory than you thought.
You’ll find out soon.
This is the end of the first session.
44
Date of Interview: September 7, 1995
Today is September 7, 1995. I’m here with Judge Buckley
for the second session of the Oral History Project. Why don’t you
start Judge, if it’s OK, by filling me in on some information that
you looked up during the interval.
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BUCKLEY: My maternal grandmother’s maiden name was Marie Louise
Wassem. My paternal grandmother’s maiden name was
Mary Ann Langford; and my father’s parents came from
Waterdown, Ontario. John Buckley was 24 and Mary Ann
22 when they married.
Thank you. Now if you remember last time, we got you
through high school and then we quit. I want to pick
up today with college and military service and that
general period of your life. You went to Yale. Had
anybody in your family gone to Yale, any of your
brothers or sisters before you?
In those days, no sisters could go.
Oh that’s right, of course. Had any of your brothers
gone?
My oldest brother did. Subsequently, my two younger
brothers went there.
I see, but if I recall correctly from last time, your
parents or grandparents or other relations had not
gone. You did not come from a Yale family before
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that. Did many of the graduates of your high school
go to Yale? Was there a relationship there?
None. The graduates of my school tended to go to Ivy
League colleges; but as the school was only nine years
old, when I graduated in 1940, there were no
traditions of that kind. Only one of my classmates
went to Yale.
But since you were in Connecticut, it was not
surprising that you chose Yale. Are there other
reasons? Why do you think you ended up there?
I thought about Harvard. As a matter of fact, I
visited Harvard; but Yale obviously had a great
reputation; and my brother enjoyed it; and I spent one
weekend there with him and liked his friends.
Did you overlap with your brother or had he graduated
when you started?
We overlapped. He was two classes ahead of me. Are
you an old Eli?
No, but many people I know are. And I know there is
intense loyalty to the college as well as to the
University. Tell me about your college life; tell me
what you were interested in academically, socially;
what was your life like during that period?
Well, it was truncated, courtesy of the war; but it
was enjoyable. I knew practically nobody in my class.
I came from a very small town, went to a very small
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school. I was intensely shy so I was a little while
feeling my way around. I had a tremendous interest in
biology and subjects of that sort; but the general
assumption in biology was that the days of field work
had gone, that from now on biology involved looking
through microscopes, and that I didn’t particularly
like.
Environmental sciences were not taught.
Otherwise I would have undoubtedly gone in that
direction. As it was, I majored in English and took
history and other liberal arts courses as well.
Were you interested in any particular sporting
activity in that period?
No. My freshman year I did what was called heeling,
i.e., competing for a position on, the Yale Daily
News, which was the undergraduate equivalent of going
to boot camp in the Marines. It was the toughest of
the non-athletic extracurricular activities. The
competition started the last week in October, and it
continued until mid-January. Heelers would report for
their assignments five days a week at one or two
o’clock in the afternoon; and if they were required to
do proofreading at the printer, they might not be
through until two or three o’clock the next morning.
Ecology had not been discovered yet.
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BUCKLEY: Freshman, yes. And I was fortunate enough to be among
the winners.
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Sounds like Law Review.
Sort of. But I developed my closest friendships
through my work on the News. Got my feet on the
ground and enjoyed the work tremendously. So the Yale
Daily News was very important to me at Yale.
You came from a small town, you went to a very small
school, and I suspect it was difficult to find a niche
socially and otherwise. Would you say that the Yale
Daily News was that niche?
It worked for me.
Did you write for the paper all the way through?
Not so much writing — the heelers did most of the
writing. Once you were elected to the News board, you
spent most of your time editing the work of the
heelers.
This is just like Law Review right? Did you do this
with your brother? Was he also doing it?
No.
When you went to Yale, did you have a view about what
you would do when you graduated?
No.
Hadn’t decided yet you were going to go to law school?
Not yet.
Now this is a period right before the war?
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Well, yes. The war was declared December of my
sophomore year. From then on, my immediate future was
military. Thoughts as to what I would do after
graduation were easily postponed. A lot of people in
my class did that.
So what was the impact of the war being declared?
What did that mean for you and your military service?
The military services created a variety of programs
that provided college students with alternatives to
simply waiting to be called up by the draft. I was
then 18 and signed up with a Navy Officer Training
Program that turned out to be the one that kept you in
college the longest. It was called the V-12 program.
But for the next year, life at Yale went on pretty
much as usual, although on an accelerated basis. This
meant that instead of having two semesters a year, we
had three, with very brief vacations between each.
Was that to accommodate military coming or leaving?
No, to rush us out faster.
Oh, so you effectively could go through faster. I
see.
It also meant that people graduating from high school
in May or June of ’42 would begin college in July.
Beginning that summer, members of my class, the Class
of 1944, began receiving letters from their draft
boards or from one of the Army Air Force or Army
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programs they had enlisted in calling them to active duty,
so our ranks began to thin out. Classmates who were in the
ROTCs were allowed to stay through the first semester of
senior year, which ended in June of 1943. Yale gave
degrees after seven semesters, so if you were in the ROTC
you received a degree. After June of 1943, only about 110
of the original 850 or so members of my class remained at
Yale. They were those who had signed up for medical or
divinity schools, were disqualified for the draft for
medical reasons, or were in the Navy or Marine V-12
programs. Those of us in those programs, however, were
placed on active duty on July 1. Starting in July of ’43,
the whole atmosphere of the college was transformed.
Although we continued with our academic programs virtually
intact, we were in uniform, woke to a bugle, learned to
march. Instead of living two to a three-room suite, there
were four of us; instead of eating in dining rooms with
linen and waitresses who would come around asking what
choice of meals you wanted, we went through the chow line
with our trays. These changes continued in effect after
the war.
And it never changed afterwards?
Before that we also had maid service in our rooms.
That ended too?
That ended too.
At Yale?
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At Yale, yes.
That’s an interesting thing to think about.
We were required to take a war course, which in my
case was mechanical drawing, and to get some kind of
physical exercise; but basically we followed our
majors and got our degrees.
Was there a lot of discussion about the world
situation?
When I entered Yale, there was tremendous debate over
America’s role — the interventionists vs. the
isolationists. I was in the latter camp and worked
for America First, which brought speakers like
Lindbergh and Senator Robert La Follette of Wisconsin
to the campus.
Did any of your brothers go into the service?
All of them did at one time or another.
During this period, was anybody overseas?
My brother John was a senior when the war was
declared. He graduated the June following Pearl
Harbor and went right into the military. Believe it
or not, he went into the horse cavalry.
I don’t even quite know what that means. What did he
do?
Horses. Trained on horses but that quickly
disappeared. People don’t realize how basically
unprepared we were — the draft, I think, was
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inaugurated in 1940. First peacetime draft ever and
people would drill with wooden mockups of guns and so
on. If memory serves, Switzerland had a larger
standing army than we did. So you had to build almost
from scratch. As soon as tanks and things of that
sort came along, the cavalry disappeared. In any
event, my brother John, who was fluent in French,
ended up in North Africa as a liaison officer with
French forces. He went overseas shortly after I
graduated.
What did you do after you graduated? You were then in
the Naval Reserves.
I was sent to Norfolk, Virginia, to what they called a
pre-midshipman school where we essentially marked time
until openings developed at one of the several
midshipmen schools around the country. I was in
Norfolk for about four weeks, I guess, then shipped
out to New York where I entered the midshipman school
that had been established at Columbia University.
That would have been in December of ’43. I graduated
from the school in April as a freshly minted ensign; I
was then assigned to an LST, the acronym for Landing
Ship Tank, which was the largest of the amphibian
vessels. You’ve seen them in movies about D-Day, the
very large ships that came up onto the beach and
lowered a ramp to discharge vehicles. I was assigned
to U.S.S. LST 1013, which was in the final stages of
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construction in Quincy, Massachusetts. I reported on
board just before it was commissioned. I remained on
board for the next two years, one month and 13 days,
when I left it in Hong Kong with orders to return to
New York for my discharge. During that period, I was
off the ship just four nights.
Two years on this craft. What was that like?
The first year and a half was pretty dull. There were
three brief periods of intense interest when we were
engaged in invasions, but in between them we would
spend months on end transporting people and equipment
over empty stretches of ocean.
There wasn’t a lot of action. You weren’t needed a
lot.
We had a far larger crew than was needed to simply
operate the vessel, so we didn’t have watches every
four hours the way very small ships had. The extra
manpower was only needed when we were at battle
stations and had to man the antiaircraft and damage
control stations. The officers had relatively
comfortable quarters. My stateroom was able to sleep
four people, but the other three berths were reserved
for Army or Marine officers on the relatively rare
occasions that we were moving troops. So we had more
space than most people had in the Navy. But it was
not glamorous duty.
Where were you?
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OK. After we were commissioned, we sailed to New York
City, where we spent three days picking up supplies.
We left New York on June 6th on our way to Guantanamo
Bay in Cuba. That’s an easy date to remember because
shortly after we set sail, we learned that the D-Day
landings in Normandy were taking place. We spent two
days in Cuba loading up with different kinds of
equipment, headed through the Panama Canal, and, after
a stopover in California for repairs, pushed on to
Hawaii. When we reached Honolulu, we unloaded our
cargo (mostly canned food and beer), loaded up with
amphibious personnel carriers, and other very military
equipment, and received orders to proceed to Manus, a
base in the Admiralty Islands, which lie just to the
north of New Guinea. When we were en route for Manus,
our captain opened sealed orders which informed us
that we would be participating in the invasion of an
island called Yap. Now you do know about Yap?
I don’t know about Yap.
Well, Yap has the largest currency in the world;
namely huge stone discs that can be six or seven feet
in diameter. We never saw them because when we
reached Manus, the high command decided to accelerate
their grand plan and move directly to the Philippines.
Is that where this island is?
No, Yap is in the mid-Pacific. Our destination
the Philippines and so we ended up taking part
was
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invasion of Leyte, which was in October of 1944.
After that we were engaged in several resupply
missions, moving supplies from Manus and Hollandia,
New Guinea, to Leyte. Our next invasion was in
January 1944, when we landed at Lingayen on the island
of Luzon. Then lots of traveling back and forth
moving supplies to advance bases.
But you never got off the ship during this time?
We would go ashore; but as I said before, I was only
off the ship four nights.
I see. You would get off and then you would get back
on.
There was almost nothing to see at Leyte and Lingayen,
other than the destruction caused by naval
bombardments. We were not in the streets of a London
or Naples.
No, you were in the Philippines.
We’d been out quite a while before we saw a town of
any size and could get such delicacies as fresh eggs.
But that was the following summer, a place called
Iloilo on the Philippine island of Panay. Until very
late in the war, we would shuttle between bases that
had been built from scratch and consisted largely of
Quonset huts and other prefabricated structures. Our
last engagement was the invasion of Okinawa — on
April Fool’s Day, 1945. We went all the way to
Guadalcanal off the northeast coast of Australia and
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picked up over GOO Marines who were packed in like
sardines during the 30 or so days before they landed
in Okinawa. These three invasions were, next to
Normandy, the largest in the war. But for LST’s, the
least bloody.
Did you have a sense at the time of how important
these battles were?
Yes, because we were making giant strides towards
Japan. No doubt about that. But I never felt
personally threatened. I felt as if I had 50-yard
line tickets at awesome military engagements with
shells from the bombardment vessels roaring over our
heads to the beaches while watching the infantry
landing from small boats or amphibious vehicles.
But you didn’t physically feel that you were in
danger? Was your sense of confidence because you were
young and an officer in the Navy or because you were
really not in danger?
You have a point there. I never felt in danger, but
part of my job was to censor letters written by the
enlisted men, many of whom just never got it through
their heads that they couldn’t say where they were or
what they were engaged in. So many of those letters
ended up looking like lacework as we cut out the
verboten information with razor blades. In any event,
I noticed that many of the married men were conscious
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of danger while bachelors like me tended to feel that
our manhood had not been tested.
That’s interesting.
We would hear some pretty grisly war stories from many
of the Army or Marine personnel we would transport
from time to time and feel terribly inadequate. We
were, of course, exposed to danger even though there
were far juicier targets than LST’s in the engagements
in which we participated. In fact, six members of our
crew were awarded purple hearts for wounds inflicted
off Okinawa by a 20-millimeter shell that had been
shot by another LST at an American plane and exploded
on our deck. These things happened.
Doesn’t make it any less dangerous though. What did
your mother think? You weren’t feeling threatened,
but what did she think about you being out there?
I never asked her. She was very reluctant to see any
of us go overseas of course.
I happen to think that is probably the hardest thing –
– mothers watching their sons feeling quite brave
going off to these very serious battles. Do you think
about that time — does it impact on your life now?
Not really, no.
Are there people that you met during that period that
you stayed in touch with? Or is that a part of your
life that was really over when the war ended?
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I have kept in touch with one of my shipmates, but in
a very desultory way. He ended up in California, so I
have only been able to see him a couple of times over
the past 40 years. I saw two or three others during
the first few years after the war, but that’s about
it.
This is the group you told me you spent every night
with for two years. Have you ever had a reunion or
ever met again with the people on the ship?
There is an organization called the U.S. LST
Association that I came across a few years ago. I
sent in my $15 in dues and receive its newsletters.
see that many LSTs do have reunions. A military
organization is hierarchical. An LST crew consisted
of about 105 enlisted men and six to eight officers
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depending on certain circumstances. If your universe
is confined to six or eight persons, you may or may
not find close buddies among them. And, of course,
even close relationships tend to fade if you live too
far apart to ever see one another.
What did you do when you came back?
I applied for law school. I didn’t go straight to law
school because I didn’t get back until May of ’46 and
there were too many other veterans waiting in line
ahead of me. But let me backtrack and complete my
description of my Navy career. We were anchored off
Leyte when the Japanese surrendered. After moving
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some Army Air Force personnel from the Philippines to
Korea, we were assigned the duty of ferrying various
groups of Asians from one place to another in the Far
East — Japanese civilians and soldiers from various
Chinese ports to Japan; Korean slave laborers from
Japan to Korea; Chinese soldiers from Haiphong to
Manchuria — so I saw a fair amount of the Orient
during my last six months or so aboard ship. Three of
my four nights off the ship were spent in Peking.
Was this after the war, during that period?
Yes.
And then you came back, and where did you go? Did
you go back to Sharon?
Went back to Sharon.
Came back to Sharon and then?
Sent applications to various law schools. Very, very
crowded. Law schools, incidentally, were still
operating on a war footing, with three semesters a
year. Six to eight months after the war was over they
continued on this schedule. They had to absorb a
three- to four-year backlog of men who, on leaving
college, had gone off to war instead of law school. I
was admitted to several law schools for the semester
beginning in January. So what did I do during the
fall? I returned to Yale as a special student. The
GI Bill of Rights paid the way, and I was able to take
five courses I had always wanted to take but could
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never fit into my schedule. It was a wonderful
experience.
That was a nice thing to be able to do.
It was lovely. Aside from the academic work, I was
able to catch up with old friends I hadn’t seen for
three years and to help the Yale Daily News get
started again.
Not a lot of pressure — you had already graduated.
This is not a bad way to spend a few months.
And then I started in law school at Columbia and later
transferred to Yale.
Why did you start Columbia?
Law School?
Because I was not admitted there. I was admitted at
Harvard, Columbia, and Virginia, but not Yale.
But then they took you later — after a year. Did you
spend the year at Columbia?
One semester.
Just one semester?
You had to get a certain level of marks and I got them.
Then you went back to Yale?
Went back to Yale.
And at this point did you have an idea what you
wanted to do with your law degree?
Why didn’t you go to Yale
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I wanted to be a country lawyer.
I suppose that’s on your resume somewhere.
But I didn’t become one.
I didn’t see it anywhere in your resume that you ever
became a country lawyer.
That was my ambition, and one of the reasons I went
to law school was that it would have made it possible
for me to earn a living in the country.
I would say that many people who go to law school go
with an idea that they will do something very
different than they end up doing. Do you think
that’s right?
Could be, yes.
Law school in fact changes your view of what it is
you are going to do with your life. Were there
particular teachers, law school professors, that were
important to you during that period?
Not really. I must confess that when I asked a
professor at Columbia for a recommendation to go to
Yale, he called me a sap because, he said, at that
time Columbia had by far the better teachers. Law
schools go up and down, but at that particular time
the professors at Columbia were tops in their fields.
And who was it that told you that? Somebody I would
know?
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I don’t think so. His specialty was the Development
of Legal Institutions. He taught a fascinating
course. It was a required course for first-year
students. It taught them the origins of the common
law and traced its development from the time of the
Norman Conquest to the settlement of British America.
That sounds like a course that would be offered at
Yale.
But it wasn’t. The luminaries at Yale were not, by
and large, the ones who taught the bread and butter
courses, and my interests were bread and butter.
There were a number of professors at Yale whom I
liked but I wouldn’t say that they molded me in any
way. I was exposed to Eugene Rostow at that time and
later got to know him fairly well. He taught me bad
economics.
Would he agree with that?
He would agree it was economics that I would not
subscribe to. It was pure Keynes.
Did you have classmates who were particularly
important to you then or now?
Yes. And several of them were individuals who were
important to me as an undergraduate. In a very real
sense, I was able to recapture some of the flavor of
my undergraduate life.
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It was no longer military. Everybody wasn’t walking
around Yale in uniform. So it probably in some sense
seemed like what college was supposed to be.
Right, except the dining rooms hadn’t reverted.
You never got the tablecloths back. Did you like
your law school education? Did you like it while you
were doing it?
I liked it; I wasn’t excited by it, but I was
learning a trade.
You didn’t meet with study groups and discuss the
finer points of due process?
No.
And at what point in your law school career did you
decide that you were maybe not going to be a country
lawyer.
I didn’t make that decision until several years after
I had graduated. From the beginning, I had decided
that to succeed in the particular area where I wanted
to be a country practitioner, it would be necessary
for me to first work a few years with a top quality
firm. I needed the legal background and preparation
that would enable me to get the carriage trade when I
moved to the country. I had a role model, a man who
had been a partner in one of the very big New York
firms for 10-15 years, and then moved up into the
country. He was able to get the business of retired
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New Yorkers who would go to him for their wills and
estate planning. That’s what I more or less had in
mind. So on leaving law school, I became an
associate with Wiggin & Dana in New Haven, which was
one of the top firms in Connecticut.
Were you successful in law school? Did you do well?
By my way of thinking I was very successful. I ended
up in the absolute middle of a class to which I had
not originally been admitted.
And you thought that really showed them.
And I must confess I did not work as hard at Yale Law
School as I had at Columbia.
That was my next question. What were your study habits
like? Were you one of those people who was always in
the library or more like one who was generally on the
soccer field. Where did you fall in that spectrum?
In the middle.
As you think back on your law school education, do
you think it was appropriate, useful, too academic,
not academic enough? How do you think about your law
school education?
I thought that Yale had too great a focus on the
development of public policy. Its emphasis was not
on training practitioners.
That hasn’t changed one bit at Yale as far as I know.
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I have had some wonderful clerks out of Yale.
We have wonderful Yale law students. I didn’t mean
to say otherwise. But they haven’t learned a lot of
bread and butter things in law school. I think
that’s characteristic of Yale. You weren’t married
during this period. I don’t want to go out of order,
but I can’t remember exactly when you did meet your
wife or when you got married. Was it shortly after
law school?
No. I graduated from law school in ’49, I was
married in ’53.
How did you meet your wife?
There’s a great argument about that.
About the answer to this question?
Yes. The reason was that when I applied to Yale as
an undergraduate, I said I wanted a roommate but I
had nobody in mind. I received a postcard in the
middle of the summer advising me that I would be
rooming with somebody called Richard Cooley.
Your future brother-in-law.
Right. Richard Cooley had three younger sisters. I
am not aware of having met my wife during the two
times I visited his home.
But she has a different recollection.
I do recall meeting her youngest sister. My wife was
at a boarding school at the time. In any event, years
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go by and when it was suggested that I have a blind
date with Ann Cooley, I figured this wouldn’t entail
a large risk. Ann and my sister Priscilla were both
working in Washington for the CIA. I was working in
New Haven. At the time I was in my late 20’s and
thought that I was doomed to perpetual bachelorhood,
which I didn’t want. Priscilla said that Ann was a
splendid person and proposed bringing her to Sharon
for a Memorial Day weekend, which is a long time.
Having known her brother Dick, however, I figured it
was a good risk.
Where did she go to college?
Manhattanville College, which was then in Manhattan.
It’s now in Purchase, NY.
What was she doing for the CIA? Or can’t you tell?
She never told me.
That sounds like the CIA. You never know what they
are doing.
I really don’t know.
How long after the Memorial Day weekend did you get
married?
About a year.
And then you were in Connecticut at that time and I
take it she left the CIA?
She left the CIA, yes.
Tell me a little bit about your children.
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The oldest is Peter. We were married in ’53 and he was
born in ’54. Therefore he is now 41. He has an MBA
degree from Harvard and now works out of New York City
for a San Francisco investment banking firm, lives in
Connecticut, but seems to spend most of his time in an
airplane. He married a lovely woman three years ago —
just before his 39th birthday. They now have a son.
Number two child is called Jay, which is short for
James. His middle names are those of my first boss,
Frederick Wiggin, whom I greatly admired. Jay is
married, has three children – two boys and a girl. He
works for a computer software company and lives in
Rhode Island. The next child is our only daughter,
Priscilla, who has lived abroad for the last fourteen
years or so. She married a Frenchman six years ago and
lives in Paris. They have one child. She is a writer,
was a freelance writer. After her child was born, she
decided she needed a regular paycheck and now writes
manuals for software programs.
She and her brother have a lot to talk about when you
have Christmas together.
She got her job through her brother.
That’s one of the advantages of having a large family.
Next one in line is son Bill. He is one of the
unmarried ones. Since he was a boy, he has had an
absolute passion for hunting and fishing. After trying
his hand in commercial real estate, he ended up
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working for a group of magazines in New York which
included several hunting oriented magazines — one
archery, one on white tail deer hunting, and so on.
He subsequently moved to Bozeman, Montana, where he
now works as a freelance hunting and fishing
photographer and writer. A competitive field but he
has a freezer full of good meat.
He probably doesn’t need a lot to live on. And he is
unmarried.
He is unmarried. The next child is David. David is
the only lawyer. He went to Virginia Law School and,
before that, Yale.
Is he the only one who went to Yale?
Yes. After practicing for a few years with a firm in
Los Angeles, he moved to Davis, Polk in New York City.
He worked with their real estate group for about six
years. He liked the work, but a point came when he
got fed up with not knowing whether he could keep a
dinner date that evening or have to cancel his weekend
plans at the last minute. So he started shopping
around and now works as a real estate lawyer for Host
Marriott. This entailed a substantial reduction in
pay, but he is happy as a lark.
Does he live in New York?
No, he lives in Virginia and works at the Marriott
headquarters in Bethesda, Maryland. He is engaged in
the same kind of work as he was in New York but has a
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greater degree of responsibility. Likes the people he
works with.
I’m sure the stresses are so much different. Good.
Is he married?
No. And then there is our youngest child, Andrew, who
is married. He has one child, a daughter, who has the
honor of being our oldest grandchild. His interest is
photography. After a stint working for a weekly
newspaper, he decided to go out on his own as a
freelance photographer. He lives in York, Maine.
Do you get together as a family often?
Not often enough, but we have managed to get together
virtually every Thanksgiving and Christmas. But now
that families are being established, we are seeing
competition from in-laws. So we count our blessings.
Last Christmas we had everybody, but we don’t expect
that to continue.
And when you have everybody, does everybody come here?
To Connecticut.
Do you have a home in Connecticut?
We had a home until ten years ago, eleven years ago,
but the house and the place where I grew up was rather
large. After my mother no longer used it, it became
condominiumized. The main house was made into five
units, two of which were purchased by two of my
sisters. The place also had a large barn that was
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converted into three units. One of these was retained
for members of the family, so between the surplus
accommodations my sisters make available and this
unit, we can all squeeze in.
And do you still do that? When you go to Connecticut,
is that where you go?
Yes.
I remember last time you said that you had an enduring
memory of construction on that house. How would you
describe your role as a father as your children were
growing up? Were you active in raising your children?
You might compare it to the role that your father had
in raising all of you.
Well, I think there is a fair degree of similarity
between us. I think I told you that my father was in
many ways an absentee father. He would be in New York
during the week while we stayed in the country. My
father’s business involved Venezuela. From time to
time he would have to take business trips to Venezuela
which would last several weeks.
Which was nowhere near Sharon.
Nowhere near Sharon. I ended up following a similar
pattern except that when I was not away on business
trips abroad, I would spend five nights a week in
Sharon as opposed to his three. But we are ahead of
ourselves. I wasn’t married until after I left Wiqgin
& Dana.
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We are going to get to the whole legal career, I just
wanted to talk a little about your family.
OK. I left Wiggin & Dana to work with my brother John
for a group of small oil exploration companies that my
father had founded. This would take me out of the
country on the average of four or five months a year.
Our principle office was in New York City, but John
and I also had a tiny office in Sharon that had a
telephone tie line to our New York switchboard. We
would go into New York Tuesday mornings and return to
the country Thursday evenings.
That is in the model of your father. Did you ever
take your children on trips when you were going?
Not as many as I wish we could have. We did have
several trips. We went to California several times to
visit Ann’s parents and rented a house there. And one
time I took a sabbatical and moved the whole family to
Spain for five months. The group I worked with had
this wonderful idea. Because we could pinch hit for
one another, we would each take off for a period of
six months with our families while we were still young
enough to enjoy the experience. I was the second of
the four of us to actually take off on a sabbatical
when a series of corporate crises forced us to abandon
the policy. As it was, I had to make two emergency
trips from Madrid to the Philippines while we were in
Spain.
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OK. Let’s go back to your career now. After you
graduated from law school you went to Wiggin & Dana,
is that right?
Yes.
Did you look a lot of places?
Dana?
I looked at some firms in Hartford because the pattern
that I wanted to duplicate was to gain big city
experience to prepare me for a quality practice in a
small community. My first thought was to work in
Hartford. I had a very good friend in New Haven,
however — Lew Wiggin – who was the nephew of
Frederick Wiggin of Wiggin & Dana. Lew, who was an
orphan, lived with his Uncle Fritz and suggested that
I discuss my plans with him. So I visited Uncle
Fritz, whom I had known slightly through this
connection, and he said, “Why don’t you work for me?”
So I did.
Great way to get a job. So you went to work for
Wiggin & Dana in New Haven. How large was it at the
time?
As one of the largest law firms in Connecticut, it
then had eleven partners and three associates.
Were you the third?
Yes.
How big is it now?
How did pick Wiggin and
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Fifty, sixty lawyers. I don’t know.
Is that all?
I don’t know.
And what did you do?
A little bit of everything, except criminal. I didn’t
do any trial work either, although I carried a
partner’s briefcase a couple of days and was assigned
by the court to handle one divorce case. I
represented some obstreperous Yale law students before
the City Magistrate — not really a trial.
But you didn’t do a lot of litigation, you didn’t find
yourself in court. Is that what you wanted?
I was not drawn to litigation.
How long were you at Wiggin & Dana?
Four years.
What kind of views about law practice did you form
during that period?
It seemed to me that a law practice would become truly
rewarding once you had clients of your own where you
could follow through with them and you became part of
their universe.
issues and other tasks assigned by partners who had
continuing relationships with clients did not excite
me tremendously. But I could see how the practice
could become more rewarding. Towards the end, I did
begin to get my own clients. One in particular
The work of researching discrete
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interested me — a fellow who dealt in rare books. He
wanted to be incorporated, so I incorporated him; then
he had a little zoning problem, and I had to look at
that; and then there was something else. But in any
event, by this time my father had become short-handed
and sent my eldest brother John, who was working for
him, as an emissary to woo me away; and because I was
not totally excited about what I was doing, and even
though it meant working in New York City, which I had
hitherto gone to some lengths to avoid, and even
though I had never considered a career in business, I
found myself saying goodbye to Wiggin & Dana and going
with my father’s group. I began my new life doing
primarily legal work with Dean Reasoner, a partner of
the Washington, D.C., firm of Reasoner & Davis, who
spent most of his time working for this group of
companies and was in our New York office three days a
week. So I started out working with these companies
as an associate of Reasoner & Davis. For awhile we
had a little apartment in Washington where we spent a
few days a week, but I soon ended up spending all my
time in New York.
What is this group of companies?
The specific company I worked for was called The
Catawba Corporation, which was family owned. Catawba
in turn represented and worried about all of the nontechnical aspects of a number of publicly held
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corporations engaged in petroleum exploration, mostly
outside the United States. At the time I joined the
group, there were four of them — all traded on the
American Stock Exchange. By the time I left Catawba,
in 1970, the group had grown to seven: Pantepec Oil
Company of Venezuela, my father’s original company;
Pancoastal Petroleum, which also held concessions in
Venezuela; Coastal Caribbean, which held mineral
exploration rights in Florida; Canada Southern
Petroleum, with properties in western Canada; United
Canso Oil and Gas, ditto; Magellan Petroleum, which
held petroleum exploration rights in Australia; and
San Jose Oil, with properties in the Philippines.
Which of your brothers were working for these
businesses?
My brother John and my brother-in-law Benjamin Heath,
who was married to my oldest sister, Aloise.
So this happened when you were a fourth-year
associate. The fourth year is the usual time you go
do something else.
Is it?
Yes, because you have been practicing law, you think
you ought to be on your own with your own clients.
You are not; it’s very frustrating; it’s a hard
period, so it’s not surprising; and I wonder if it had
happened five years later if you would have gone. You
probably would have become a partner at Wiggin & Dana.
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Unless, of course, I had followed on my original
course and hung out my shingle in Sharon.
You were married when you did this?
I married during the transition. We were married on
May 22, 1953, in St. Louis, Missouri. But in any
event I’d left Wiggin & Dana at the end of April and I
reported for duty in my new job after my honeymoon.
Where were you living? Did you stay in Connecticut?
We got an apartment in New York, and we had one in
Washington and spent most weekends at my parents’ home
in Connecticut.
Did Ann go back and forth with you?
Yes, she did. Then after a little over a year, after
our first child was born, we bought a little cottage
five miles from the village of Sharon and lived there
weekends. Then after our third child was born, we
built a house nearby. By then, Ann was spending most
of her time in Connecticut.
During this period in which you were working with your
father’s firm, I take it you are really not practicing
law?
Basically working with lawyers. I understood the
corporate problems and so, for example, I became
engaged in negotiating concession contracts, checking
prospectuses, and so on. The work I did required
familiarity with the law and the ability to deal with
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lawyers as well as a thorough grasp of the corporate
and operating requirements of Catawba’s clients. I
would find myself, for example, in Sicily working with
an Italian lawyer to structure a corporate subsidiary
in such a manner that it could both qualify to hold
Sicilian concessions and enter into customary
petroleum operating agreements that relied on trust
concepts that were foreign to Italian law. I also
worked with the Philippines Bureau of Mines in
drafting a standard oil exploration concession form
that would prove workable from the perspective of both
parties. As I say, although I was concerned with legal
problems and worked with lawyers, I no longer engaged
in legal research or other work of that kind.
It’s more fun to be the client.
I negotiated a lot of contracts. I worked on SEC
prospectuses. I helped write the Philippine
geothermal energy law. But I did not practice law in
any traditional sense.
But it sounds like you were enjoying it.
Yes, I thoroughly enjoyed it. It was creative. I
found that I had an entrepreneurial streak in me that
I hadn’t realized I had.
Were you surprised actually that you ended doing this?
Yes.
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While you were moving around the Pacific, I suppose
one of the options must have been to go into your
father’s business.
I had never considered it.
You’d never thought of it?
No.
Why not?
Just never considered it. I didn’t think I had any
particular talent for bus,ness, and I wanted to work
in the country.
How long did you do it? How long were you involved
with your father’s businesses?
About 17 years.
During this period, did your oldest brother continue
and your brother-in-law?
Yes.
And you must have traveled all over the place. Was it
mostly oil or were there other businesses?
Almost exclusively oil and gas.
time with Catawba, I began to explore the
possibilities of geothermal energy — the search for
Towards the end of my
commercial sources of geothermal steam for the
generation of electricity. We formed an informal
partnership with a California corporation that had
technical expertise. I then spent time investigat
the
n9
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the possibilities of securing geothermal exploration
concessions in Nicaragua and the Philippines. I was
also responsible for the organization of a mineral
exploration venture in the Canadian arctic called
Borealis Exploration Limited.
Well, up until this point we’ve talked about a lot of
things you did in your life. None of them are
political or associated with the political process
directly. So either I’ve missed something or there’s
more to tell. So my next question is, sometime after
this period you ran for the Senate and you became
involved in politics. What happened; what have I
missed? You said it all happened by accident.
I’ve always been interested in political issues and at
one time or another worked for various political
committees, but I was never involved in traditional
party work.
But how did you end up as a candidate for the United
States Senate?
You may have heard that I have an exotic brother.
I’ve heard that.
In 1965, Bill was prevailed upon by the recently
organized New York Conservative Party to run for Mayor
of New York City. That campaign has achieved folklore
status because of Bill’s answer to a question he was
asked at the press conference announcing his
candidacy. A reporter asked, “DO you expect to win”?
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Bill said lN~.ll He was then asked what he would do if
he did win. And his answer was, “Demand a recount.”
The Conservative Party was organized for the purpose
of creating a counter-force, a counterbalance to New
York’s Liberal Party, which had proved enormously
effective in influencing both of the major parties.
Do you have any familiarity with New York politics?
I do a little bit. I never lived there but New York
was a very interesting political scene, which I was
aware of at the time.
Let me give you the background. The Liberal Party was
founded shortly after the war by two very astute heads
of two New York City garment workers’ unions. They
developed enough of a following to establish that a
Liberal Party endorsement was worth a certain number
of votes in any election. These endorsements normally
went to Democratic Party candidates; but on occasion,
the Liberal Party would endorse a particularly liberal
Republican. New York elections are often decided by
very narrow margins, so the perceived value of the
Liberal endorsement had the effect of leveraging New
York’s Republican Party to the left, at least when it
came to selecting candidates for statewide office and
for races in New York City. In 1964, two very bright
young New York City lawyers, one of them now a Federal
Circuit Judge with the Second Circuit, Dan Mahoney,
founded the Conservative Party as a counterweight. To
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gain credibility, a leverage party such as these must
field its own candidate if it cannot in good
conscience endorse the candidate of one of the major
parties. This was the case in the 1965 mayoralty
race. The Republican candidate was John Lindsay, a
Yale classmate and friend of mine. He was not only a
political liberal, he sought, and received, the
Liberal Party’s endorsement.
That is what the Republicans n New York City were
known for — they were Lindsay Republicans.
Right. So, Bill thought this might be interesting —
(a) it would require him to focus on political issues
in the urban arena as opposed to the national and
international arenas that had been his principle
concern, and (b) somebody had to run on the
Conservative Party line. He referred to it as his
jury duty.
He thought it would be fun.
Right. Because it was conceded that there was no
possibility that he would win, he was assured that he
would not have to spend more than a day or two a week
on his candidacy.
Somebody lied.
Right, and so Bill said he would do it. I was then in
California with Ann and our children visiting Ann’s
parents. I got a telephone call from Bill. He said,
llI1m going to run for Mayor of New York, and I want
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you to be my campaign manager.” I said, IIBill, I
don’t know anything about campaign managing.” Bill
answered that that was not important. What he needed
was someone to run interference for him, to protect
him from all the amateur politicians in the
Conservative Party who would be drowning him with
advice. And I said, “well you know, Bill, I don’t
have the time.” To which he replied, “It isn’t going
to take any time. A couple of mornings a week. 1’11
just be giving a few speeches; everybody knows I can’t
win.” I confess I was a little intrigued; and with
these assurances, I signed on.
It wasn’t the way it was portrayed.
It wasn’t the way it was portrayed. So I became at
least the titular campaign manager of a campaign that
really caught a lot of people’s imagination. John
Lindsay, as splendid as he is, was very earnest on the
campaign circuit; and his Democratic opponent, Abe
Beame, was a typical product of the Democratic city
machine. Bill brought a wit and irreverence to the
enterprise that captivated the press corps. At the
same time, he injected into the campaign a serious and
penetrating critique of the liberal approaches to
urban ills. Reporters would flock to Bill’s press
conferences at campaign headquarters for relief from
the earnest seriousness of those given by the
opposition.
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Just to be entertained.
To be entertained; plus the fact that some reporters
were intrigued by the unorthodox but serious ideas
that Bill would float on different aspects of urban
management. Time passed and Bill did not have to ask
for a recount. Nevertheless, Bill did astonishingly
well. John Lindsay won.
Not to anybody’s surprise.
Then, less than three years later, in February of ’68,
I found myself flat on my back in an American military
hospital in Libya, having three days earlier ruptured
a disc while tying my shoelaces preparatory to meeting
some Libyan minister.
That’s painful.
Fortunately, there was an American hospital there. In
any event, it was while I was at the hospital that I
received a telephone call from Bill asking whether I
would consider running for the Senate. I said,
IIWhat?” Bill explained that Senator Jacob Javits was
running for reelection that fall, that obviously the
Conservative Party couldn’t endorse him, and that the
Party’s chairman, Dan Mahoney, had asked him to call
me to see if I might be interested. Apparently those
Conservative Party stalwarts who had earlier consented
to oblige by running for this or that office had
finally said, “Enough.” Having run out of names,
someone said …
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,
There’s another Buckley.
Exactly. I told Bill the idea was ridiculous.
Why didn’t Bill?
He had done his bit. He had done his jury duty. In
any event, even though I said the suggestion was
ridiculous, I have had a practice of never saying no
until I’ve thought something through. So I agreed to
let Dan make his pitch in person after my return to
the States. So, a few weeks later, after I had
returned home but still had to spend much of my time
on my back, Dan called to see if he could come up to
Sharon for a visit. I said fine. He was to join us
for dinner, but that night was horrendous, with a bad
fog. We waited and waited for Dan and finally ate
dinner without him. We finally heard from him at
about 1O:OO p.m. from a town about 20 miles north of
us. Dan assumed that Sharon was on the Connecticut
shore to the east of his home instead of in the
mountains about 80 miles to his north. An hour had
gone by before he discovered his mistake and, having
again missed the mark, was seeking precise directions.
Unfortunately, the fog was so dense by this time that
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it took him another hour to arrive at our house; so we
put him to bed, and the next morning he made his pitch
while I was flat on my back and defenseless. He
pointed out the intellectual interest of being
involved in a major political race and said that
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because I would have no chance whatever of winning, no
one would expect me to spend much time campaigning. I
told him that if I had a chance of winning, it would
be irresponsible for me to run because of family and
business obligations. As that wasn’t in the cards, I
said I would ponder the educational value of his
proposal and then give him my answer.
Was it a problem that you didn’t happen to be a
resident of New York?
One thing at a time.
I’m sorry. I love this story.
Finally, I concluded that this would be an intriguing
experience. I had never given a speech. I’d never
been on television, let alone a televised debate. I
had no idea whether I could handle this or not.
You describe yourself as shy. Most people who
describe themselves as shy don’t then run for the
Senate.
They’ve probably never been asked to. In any event,
after a week or so talking it over with my wife and
with my cohorts at Catawba, I told Dan that, if he
hadn’t come up with a better idea, I would give it a
try. Ann gave me permission to undertake this mad
venture and thought it might be fun; John, Ben, and
Dean who, along with me, were by that time in charge
of Catawba, assured me that they could pinch-hit for
me as required during the two months between Labor and
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Election Day that I would be a part-time campaigner.
On the problem of New York and my residency: In 1968,
the issue really didn’t arise because everyone knew I
couldn’t possibly beat Javits. Furthermore, Bobby
Kennedy had taken much of the edge off the
carpetbagger issue in New York. He moved into the
state as a total outsider in early 1964, bought
himself an apartment, moved in his family, accepted
the Democratic Party’s nomination for the Senate, and
won. In 1970, when I again ran for the Senate, this
time with the hope of winning, the question of my
residency was raised by some Upstate New York
newspapers that had opposed Kennedy on that basis. I
was able to secure their endorsement, however, because
unlike Kennedy, I had some genuine New York
credentials. I had worked in New York, maintained an
apartment there, and paid New York State and City
income taxes over a period of 17 years. But I’m ahead
of the game. We were talking about 1968.
I have this period confused in my mind, and I have
tried to get my friends to help me sort it out, and
none of us could.
I jumped ahead to the 1970 campaign when I ran against
Senator Charles Goodell, who had been appointed by
Governor Rockefeller to fill the last two years of
Bobby Kennedy’s term after the latter was
assassinated. You had been asking me about 1968,
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about how I had gotten into politics. I was
explaining that although I was the legitimate
candidate of an established party, everyone, including
your servant, knew I couldn’t possibly win. To the
extent that anyone did raise the residency issue,
which was virtually never, I would run through the
litany of my then 15 years as a New York taxpayer.
Your family thought you lived in New York. Your
family would give you an affidavit. OK I should know
this and I am confused, but in 1968 Javits had that
seat; it was the Javits seat, not the other seat; and
you ran against Javits?
That’s right. And the Democratic candidate was Paul
O’Dwyer, the brother of the former Mayor of New York
City. A nice man.
Who ran your campaign, your brother?
No. A fellow who was a full-time employee of the
Conservative Party — its executive director, I
believe. He was not very well organized. But I made
the rounds and to everyone’s surprise, most
particularly mine, I came across well. I rattled off
my first few speeches at 90 miles an hour. It took me
a long while to sort of throttle back. I did a lot
better in my televised appearances, answering
questions on talk shows or participating in the threeway debates that were occasionally scheduled. I was
able to reach large audiences through these freebies.
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My campaign was only able to raise about $180,000 or
$200,000, so we couldn’t buy TV coverage. On the
other hand, a lot of volunteers flocked to the cause.
They would set up store-front operations in various
parts of the state, pass out literature, and so forth.
I was the beneficiary of a great deal of grassroots
activity. Also, because I was the candidate of an
established party, I would get media coverage as I
moved around the state. Turn up at the airport in one
of New York’s media centers, and you would be on the
local television that night answering a lot of
pertinent questions. I quickly found, however, that
all this took a heroic amount of time and effort —
not the few hours a week that Dan Mahoney had
suggested. But to make a long story short, I did
astonishingly well. I got approximately 1,200,000
votes, which was twice as many as any third-party
candidate had ever received in New York. And so when
it was all over, I felt that it had been a wonderful
experience but that it was time to get back to work.
You didn’t say, “This was fun; I think 1’11 try this
again”?
No. To the contrary, I told the press that it been a
great experience but never again. The New York Daily
News ran the story under a headline that said, “First
and Last Hurrah.” Then, in the next couple of years,
in 1969 and 1970, some very strange things started
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happening in the United States. I refer to the campus
violence, the anti-War protests, the bombings and
flag- burnings, the rejection of traditional standards
that dominated the headlines during that period. At
that time I was spending a considerable amount of time
in places like Australia and the Philippines. What
was going on in the States created headlines
everywhere I went. I grew up thinking these sorts of
things couldn’t happen in the United States. We had
too much sense. We had legal procedures, political
procedures that allowed people who had grudges and
problems to work within the system. I recall talking
in Australia to a couple of Americans who had immigrated there because they felt the United States had
had it. All of this aroused some Boy Scout impulses
in me, especially as Charlie Goodell, who had
succeeded to Bobby Kennedy’s seat, had begun to align
himself with the anti-Vietnam forces and some of the
(to my mind) ruinous social positions being advocated
by campus radicals. So I returned from the
Philippines with the thought that, based on my
performance two years earlier, and given Goodell’s
perceived shift from the conservative to the liberal
wing of the Republican Party since moving from the
House of Representatives to the Senate, it might not
be implausible for me to win a primary contest for the
Republican nomination. So, with great hesitation, I
broached the subject with Ann, and she said OK based
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on the understanding that I would only undertake
another race if I had a realistic chance of winning.
So this was in earnest. I then met with Dan Mahoney
and a couple of other people; and the first thing I
learned was that because I had resumed my Connecticut
voting residence in 1969, thereby forfeiting my New
York registration, I could not challenge Goodell’s
nomination in a primary election unless I received the
Republican Party’s permission to do so. By virtue of
that lack of foresight, I had to abandon the thought
because Nelson Rockefeller controlled the Republican
Party, and he was not about to authorize a challenge
to his nominee. So what I now had to find out was
whether there was any possibility of winning as a
third-party candidate. Incidentally, I am not sure I
see the relevance of all of this to the legal
background of a federal judge.
Here’s my view about that. I believe that the purpose
of these interviews is much broader than that. It’s
not just to find out what your judicial views are and
how you get along with the court and what your legal
practice was like. For many of these interviews,
that’s all there is to discuss because that’s what
people did. But you have done much more. What I want
you to think about, and what I’d like to talk to you
about, is your thoughts about the different branches
of government and how they work together — having
served in all three branches. You are a very unusual
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person. You’ve been in all three branches, and I want
to talk at the end about comparing all of the
experiences. So all of this is fascinating. And, in
any event, you are not going to deprive me nor anybody
else who listens to these tapes of the pleasure of
hearing these stories. More to the point, who you are
and who you are as a judge has been affected not only
by your experiences at the Yale Law School, but I
suspect much more by your experiences in the Senate.
Have I persuaded you?
I yield. In any event, I decided that I wouldn’t run
unless somebody could assure me that (a) it was
possible for a third-party candidate to win an
election; (b) that I would be perceived at the outset
as a credible candidate (credibility being essential
if I were to secure the press coverage and financial
support essential for a successful campaign); and (c)
that I could secure the initial financing required to
establish the organizational base I would have to have
in order to establish that credibility. So somebody
suggested that I get hold of Clif White — F. Clifton
White. Does that name mean anything to you?
No.
He recently died — fascinating man. He made his
national reputation by masterminding Barry Goldwater’s
nomination at the 1964 Republican National Convention.
Absolute attention to detail — he was a native New
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Yorker and was very familiar with the structure and
organization of the political machinery in New York,
at the county level and so on. At one point he was
the State Commissioner of Transportation. He paid
enormous attention to detail, took every contingency
into account in his planning. I spoke to Clif White
and retained him to find the answers to the three
questions. To find them, however, he would need to
commission a poll, which would cost about $11,000. A
family in New York, a father and two children, came up
with enough money to pay for the poll and Clif’s
retainer. The poll satisfied him that there was
enough public support for the positions that would
distinguish me from the two major party candidates to
make a victory in a three-way race possible. But no
additional significant money was in sight. In the
meantime, the date was rapidly approaching by which I
would have to announce my candidacy in order to get on
the ballot. Once I announced, I had another period in
which I had to sign an affidavit that would commit me
to remain a candidate. Clif was confident I would be
viewed as a credible candidate provided I secured
adequate financing, but I had to take a chance and
commit to the race before there was any assurance that
I would receive the funding required for a serious
race.
visible, operating headquarters in New York City.
That was really essential. The press had to have the
One critical need at the outset was a highly
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evidence that ours was a serious operation. We also
had to have telephones. Because the campaign
committees of several of the candidates for the 1968
Democratic presidential nomination had large debts
outstanding, New York landlords were refusing to lease
space, and Mother Bell declined to install telephones,
unless all charges were paid in advance through
election day.
lending the campaign sufficient securities to enable
us to borrow $50,000 on the understanding that he
would be repaid out of a portion of the first receipts
from a fund-raising mailing that that money would also
finance. So that enabled us to lease the same space
on Lexington Avenue that Bobby Kennedy had used in his
presidential primary campaign two years earlier. We
had the phones with which to make and receive calls,
and we were off to the races.
To a certain extent the rest is history.
remember most about that race? This is a very
turbulent time in New York and everywhere across the
United States. The war is raging.
And there are people that like seeing the flag burned.
And there’s a lot going on. You had been out of the
country; and it was interesting, something that you
said a little while ago, that a lot of your perception
about what was going on was what you were reading in
A friend of mine came to the rescue by
What do you
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foreign newspapers. What did you find when you came
back?
Well, you had this rampant lawlessness that was being
condoned by college presidents and the editorial
boards of papers like the New York Times. I thought
there were serious social problems and the country as
a whole was not yet ready to ditch Vietnam.
How did you feel about that?
I thought that having gone in there, we should win it.
I had no sympathy with the violence — the burning and
bombing — that was associated with so much of the
protest. A lot of people agreed with me, because the
money began coming in, and I was assured of enough to
put up a decent race. I found that I was on the same
wavelength with all kinds of people all over the
state. I was well received, although there were some
places, mostly campuses, where I was forbidden to go.
I did go to some campuses — typically small Catholic
colleges.
It was a very angry time.
But it was hectic racing back and forth, which was
planned to take advantage of the several distinct
media markets that exist in New York. So long as you
didn’t overdo it, if you turned up in Utica, you would
be met by the local press and broadcasting media, and
you would be carried in the evening new programs and
the next morning’s papers. Ditto Buffalo, Albany,
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Syracuse, and so on. We had our debates. I worked
with some wonderful people on my campaign and research
staffs and had wonderful advance work. But it was not
until early in October at a rally in Garden City, Long
Island, that I suddenly realized that there was the
real possibility that I might win. There was real
enthusiasm.
What did your family think about this effort? Your
wife and your children?
I did not involve them. The children did turn up at a
county fair on Labor Day, when the campaign was
officially launched; and Ann got dragged into a number
of coffee clatches, but I didn’t exploit them. They
were still fairly young.
I guess your oldest was probably just entering
college?
He was still in high school.
They were not in college yet so they were not caught
up in the university scene.
Right. In any event, election day finally rolled
around; and I won. It was really an experience, and
the networks did not want to concede. I won by just
under 40 percent, and Goodell ended up in third place
by a substantial margin. There is one point I would
like to make about this election. The conventional
wisdom is that I was able to win that race because
Goodell and the Democratic candidate, Dick Ottinger,
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split the liberal vote. I don’t think that is true.
One of these days I am going to dig up an article in
the now extinct New York Mirror that supports this
view. The Mirror had an interview with Charlie a few
days after the election. He was asked why he hadn’t
pulled out of the race when it became clear that he
could not win it.
to withdraw. He told the reporter that would not have
A number of persons had urged him
changed the outcome because his polls showed that his
major support was coming not from liberals, but from
upstate Republicans, who are generally conservative.
Had he pulled out, I would surely have received the
majority of those votes. I’m told that I received 40
percent of the blue collar vote. I got the
traditionally Democratic, socially conservative,
ethnic vote in New York, people who didn’t condone the
burning of the American flag.
It was really a transitional time in American
politics.
Right.
We have been at this about two hours, and your voice
is probably going to give out.
and that we’ll start next time and talk about the
Senate and move on to your judicial career. Is that
all right? OK.
I propose that we quit
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wsw: Where we left off last time, if you will recall, is we
got you as far as being elected to the Senate. I
wanted to pick up from there and talk a little bit
about your life in the Senate, what committees you
were on, what your assignments were, what issues you
focused on. Why don’t we start by talking about your
committee assignments.
Well, over a six-year period you sort of wander from
one to the other until you find your permanent
legislative homes. And if you began, as I did, as
number 99 on the Senate totem pole, you don’t get the
plums immediately. I did get one committee assignment
I was anxious to have that, fortunately, was not high
on most people’s list. It was then called the Public
Works Committee. What attracted me to it was that it
had the primary jurisdiction over environmental
protection, and I was very much interested in that
area. The environment was only just beginning to be a
hot legislative field, but it was one that I had I
highlighted in both my campaigns. In fact, it was
such a new area of public concern that one of the
Conservative Party fathers wrote me a stern letter
during the 1968 campaign scolding me for wasting time
on such a non issue as the environment. So I was able
to get assigned to Public Works as one of my major
committees. The way the Senate worked at that time,
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each senator was assigned to two major committees and
one minor committee. My other major committee, which
was not all that major, was Air and Space. My minor
committee was the Committee for the District of
Columbia. Within two years, I had moved from Air and
Space to the Interior Committee and from D.C. to the
Joint Atomic Energy Committee. Two years later, I
moved from Interior to Commerce. Towards the end of
my term I also joined the Budget Committee, which had
been recently authorized and was not classified as a
major committee. I remained on Public Works
throughout my six years; and because it was so
unglamourous, I ended up as its ranking minority
member.
Even though that involves the environment?
Yes.
Well, things have changed.
What happened was — yes, things had changed; the
environment was getting very important in those days.
Although Howard Baker outranked me on the committee,
when he became minority leader, he had to give up the
position of ranking minority member.
meteoric rise. As a member of Public Work’s
environmental subcommittee, I was very active in the
first major revision of the Water Quality Act and in
work on a number of new areas of environmental
legislation. And because I was on the Interior
This explains my
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Committee during our first energy crisis — the 1973
or 1974 Arab oil embargo — I worked on important
legislation in that area as well. My key interest
throughout my Senate career was in the development of
intelligent environmental regulation, by which I meant
regulation that balanced benefits against costs and
that were not so rigid as to inhibit the development
of new and more efficient technologies for controlling
pollution. Because I knew something about the
economics and risks of oil and gas exploration and
development, I tried without too much success to keep
the new energy legislation from imposing controls that
would inhibit the discovery of new domestic reserves.
Federalism was always a preoccupation of mine and so I
tried, whatever committee I was on, to draw lines as
to what was an appropriate area for the exercise of
federal as opposed to state and local responsibility.
1’11 give you two examples. I believed and continue
to believe that, in most instances, the control of
pollution requires national regulation for the simple
reason that air and water move across state lines.
But when we worked on legislation to control sound
pollution, I took the position that we had to
distinguish between noise generated from essentially
local or stationary sources, e.g. jackhammers, and
that created by mobile sources like airplanes and
trucks. I wanted to limit federal controls to sources
that would cross state boundaries in the normal
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course. One of the proposals that the Commerce
Committee held hearings on was no fault insurance. I
thought that no fault was a great idea, but it seemed
to me that the states were quite competent to decide
for themselves whether mandating no fault car
insurance was in the best interest of their citizens.
Moreover, experience had proven that no problems
affecting interstate commerce had resulted from the
fact that a car registered in a no fault state was
involved in an accident in a state that did not have
no fault. Anyway, that’s the kind of line between
appropriate and inappropriate federal action that I
consciously drew when I was in the Senate.
Were the speed limit pieces of legislation up when you
were there? The 55 MPH limit in effect during the
Arab boycott?
Yes. And that was justified purely as an energy
conservation measure.
And did you support that?
I supported that.
What about the Clean Air Act and the Clean Water Act?
Wasn’t this legislation being enacted during this
time?
They were passed shortly before my election. I think
one of them — the Water Quality Act — was passed in
1968 or 69; the Clean Air Act was passed in 1970.
The first work I did when I joined the Public Works
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Committee was on a thorough revision of the Water
Quality Act in light of the experience gained during
its first three years. In my next to last year, we
started work on doing the same thing for the Clean Air
Act, but that was quite a different experience. I
might as well go into that now. After I was elected
to the Senate, somebody gave me a study of Congress
that was published in 1970 and had been prepared by
the Bar Association of the City of New York; and it
concluded that the work load of the average
congressional office had doubled every five years
since 1935. In my own experience it may not have
doubled, but it came close to doubling within my six
years; and my favorite datum is that in January 1971,
the Public Works Committee began a thorough review of
the Water Quality Act. It held a series of hearings
with witnesses from industry, environmental
organizations, state governments, you name it.
Amendments to the existing act were drafted, debated,
revised in Committee mark-up sessions, adopted by the
Senate, reconciled with the House version, and adopted
in final form by Congress and signed into law by the
end of the year. We started doing the same exercise
with the Clean Air Act in 1975. By that time,
however, so many committee and subcommittee meetings
were being scheduled at identical times that often we
couldn’t proceed with any work because of a lack of a
quorum. Moreover, even when we had a quorum, our
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meetings were constantly being interrupted by the
ringing of bells summoning senators to the floor for
roll call votes. In any event, it took over a year
and a half before the Senate finally enacted its
version of the overdue revisions of the Act. But
because the House hadn’t been able to report out its
version of the amendments, Congress was unable to
enact any amendments before the 94th Congress became
history.
over again in 1977.
Now there is a famous piece of legislation that seems
to impact everybody’s life all the time which is known
as the Buckley Amendment. That’s in a different area.
Tell me a little bit about the origins of the Buckley
Amendment.
That amendment had its origins in an article that a
member of my staff called to my attention. It was a
report on a study by a foundation in New Jersey which
dealt with damage that too often resulted from the
refusal by schools to provide parents with information
concerning their children. That information would
contain test results, teacher’s comments, and gossip
that was often inaccurate or prejudiced and could have
the most devastating effects on the children’s
futures. It could affect their course assignments,
assumptions as to their ability to learn, and so
forth. Because parents were denied access to this
That meant that the process had to begin all
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information, they had no opportunity to correct errors
or to challenge decisions concerning their children.
The foundation had developed draft legislation to
address these problems and had circulated it for
comment by various academic organizations. The
article caught my interest because I had long been
concerned by the failure of too many educational
bureaucrats to recognize that parents had the primary
responsibility for the welfare and education of their
children. The purpose of my amendment was to
strengthen the parental role by requiring schools that
received federal funding to provide parents, on
request, with all information relating to their
children. I will confess, however, to an intellectual
dilemma. I had long believed (and continue to
believe) that the federal government had no business
involving itself in public education; that this was an
area that should have remained the exclusive concern
of state and local governments. So, although I voted
for the Buckley Amendment, I voted against the bill to
which it had been appended.
I don’t even know what it was an amendment to. Was it
one of the higher education acts?
I forget. Whatever the underlying bill, the amendment
was accepted by the chairman of the sponsoring
committee, Senator Pell. As you no doubt know, it has
proven controversial. About 99 percent of the
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complaints have been directed to the fact that the
amendment gives parents, and students who have
attained the age of 18, the right to see letters of
recommendation that have been squirreled away in
academic files. Frankly, it had never occurred to me
that this would be a problem. I had naively thought
that any letter of recommendation I had ever written
would have been thrown away after it had served its
purpose. Nevertheless, there is a provision in the
amendment that enables a student to waive his right of
inspection which is routinely availed of by students
who solicit such letters; so I have always felt that
this particular complaint was something of a red
herring.
Of all the things that you did, the Buckley Amendment
does stand out as a memorable piece of legislation.
Incidentally, one of the things that has irritated me
is the way that some colleges will play games with the
amendment. I have learned that many of them will
refuse to provide parents with the grades of children
who are 18 and over and blame me for it. Yet the
amendment specifically provides that the parents of
dependent children, whatever their age have the right
to get their marks.
Well, that I didn’t know; but it is an important piece
of legislation and it has had a real impact on higher
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education. Some staff person brought it to your
attention?
Yes, and I was intrigued with the issue. Another
child-related bill that caught my interest came up for
a vote in the fall of my first year. The bill was
described as a bill to extend the Head Start Program
and “other matters.” The other matter happened to be
something that was described in fine print as
revolutionary. It would initiate a federal child
development program of extraordinary scope that would
apply to every child in America irrespective of
economic need. It had an estimated cost five years
out of a billion dollars, back when a billion dollars
purchased quite a few things. I was the only person
in the Senate to vote against the bill. It was subsequently vetoed for the reasons I had given when I
tried to have the child development program
eliminated. I later persuaded Walter Mondale, who was
chairman of the sponsoring committee, that a lot of
problems hadn’t been looked into; and at a hearing on
a new bill, he invited a couple of the experts I had
recommended to testify before the committee. As a
result, Senator Mondale and I subsequently cosponsored
some amendments to a traditional child care bill that
incorporated certain safeguards that the experts had
recommended.
What were the issues that you found in that bill?
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Aside from the fact that it would inaugurate a huge
new federal program that virtually no one had examined
with any care, it was critically flawed in many of its
details. It would have forced, in effect, the
warehousing of children with little thought to the
consequences for the children. A number of studies
were available at the time that demonstrated that
infants could suffer significant developmental
problems if more than two or three of them were placed
in the care of a single adult, especially if that
adult was changed every few days. One of them
observed that, in the Soviet Union, the people who ran
similar programs would not allow their own children to
be placed in them. French authorities were cognizant
of the harm that could be done infants if entrusted to
institutional care at too young an age. So in France,
mothers were not required to return to work for
umpteen months. These are just some of the problems I
saw with what the sponsors themselves described as a
revolutionary program.
This was a federal child care program?
It was far, far more than that — they called it child
development. It went beyond meeting the needs of
mothers who have to work. The fact was, no one
studied this part of the bill.
as the extension of existing, apple pie programs.
They all thought of it
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Because it was something for children and everyone
thought it had to be passed?
It was labeled as a bill to extend Head Start and
other matters. The child development program was
buried under “other matters.I1 A little woman in
tennis shoes brought it to the attention of one of my
upstate New York offices during the summer recess. It
had been reported out shortly before the Senate took
its August break, and it was scheduled as the first
order of business after the Senate returned.
The problems? Do you know who that woman was? It
wasn’t the woman in the Senate who wears tennis shoes?
No.
Are there other issues or other legislation that you
think of now as being important in your senatorial
career?
I think I told you at the outset that I have a bad
memory for specifics. Most of a senator’s legislative
work is done in committee, and it involves shaping the
bills that become law rather than initiating them.
That work can be highly important but tends to be
invisible. I believe I had a definite impact on the
environmental bills I worked on. One consistent
effort was to require regulations to balance costs
against benefits. But my first accomplishment during
my work on the revision to the Water Quality Act does
come to mind because of its parochial interest for New
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Yorkers. As originally enacted, this legislation
provided for 60 percent federal financing of water
cleanup programs initiated by the states. The
committee decided to increase the reimbursement to 80
percent. This would have rewarded those states that
had dragged their heels in meeting the requirements of
the Act. I was able to persuade the committee to
apply the increase retroactively by reimbursing the
early bird states the difference between 60 percent
and 80 percent of the cost of the completed programs.
This resulted in a rebate to New York of $900,000,000.
I can also claim credit for a few items outside the
scope of my committee work. For example, I liberated
America from the tyranny of the ignition interlock
seat belt, that pesky device that made it impossible
to start the engine unless seat belts were attached —
and sometimes wouldn’t let you start your car even
when they were. I introduced the Senate resolution
that led to the reduction of U.S. payments to the U.N.
from 30 percent of the total to 25 percent. I also
initiated some legislative ideas that I wasn’t around
to see enacted. I am credited, for example, with
introducing the concept of indexing the income tax. I
also was the first to introduce some other concepts
that have been seriously discussed, if not enacted, in
recent years, e.g., tax credits for school tuition
payments, the outlawing of preferences based on race
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or sex, and a constitutional amendment protecting the
unborn.
Did you live in Washington? Did your family move with
you, or did they stay in Sharon?
Three children moved down. I came down alone in
January of ’76 and rented an apartment. My wife would
commute back and forth. We bought a house that spring
and, in the fall, my three youngest children came down
with her, the oldest of them for just one year before
going off to boarding school. My other children were
already in boarding schools. My wife and resident
children went north during the summers, and I would
join them on weekends.
Did she like being a senator’s wife?
Yes and no. It disrupted our normal family life, but
the change from life in a small community to that of
Washington officialdom did open up all kinds of
interesting things to see and do that otherwise
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wouldn’t have come her way. She does resent the fact
that the only official trip I ever took her on was one
to Puerto Rico. I had been appointed by Nixon as one
of the U.S. representatives on a joint U.S.-Puerto
Rican Commission to study the question of the latter’s
status, i.e, the choices between the existing commonwealth status, statehood, and independence.
She keeps reading about all these great trips and
wonders why you missed them all.
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I went on a number of solo trips to investigate
particular problems of international policy that
interested me. None of these was financed by the
taxpayers.
Did she go with you?
No.
And what about your children — did they enjoy being
children of a senator?
I think they disliked it.
Because they never saw you.
I hope that’s one part of it; but I suspect that the
major reason was that being the child of a public
official, especially one elected on something called
the Conservative Party line, made them rather
conspicuous at their respective schools. A couple of
them told me, after I was dis-elected, that one or
more teachers had given them a hard time or made fun
of them in class over stands I had taken.
How did your children handle that?
difficult.
They seem to have survived.
And they didn’t tell you at the time?
No, but I wish they had because it was outrageous.
Just out of curiosity, where are your children on the
political spectrum?
That was very
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I’ve never quizzed them, but I suspect that they are
conservative.
Well you haven’t quizzed them, but generally in
talking to your children you must talk politics
somewhat and sort of know where you are.
I can say that there are no crashing liberals among
them, although they don’t by any means share all of my
positions. They even campaigned for my reelection.
On their own. I didn’t ask them to do it.
They were no doubt very proud that their father was in
the Senate; more so than you probably realized. What
would you say was your greatest accomplishment in the
Senate? What are you the most proud of?
Again you have the memory problem. I worked
consistently and a little bit creatively to require
environmental regulators to take costs as well as
benefits into consideration. I also kept emphasizing
the need for flexibility and the role of economic
incentives if we were to achieve the most efficient
results. I thought it was necessary for people to
recognize the huge burdens imposed by this kind of
regulation, and I thought it was incumbent on
government to make sure that the value of the benefits
would at least equal the enormous costs that were
being imposed. One of the things that I succeeded in
having included in the Senate revision of the Clean
Air Act, in 1976, was a test of the effectiveness of
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using so-called pollution taxes to achieve the maximum
feasible results. One of the problems with the onestandard-fits-all approach of existing environmental
regulations was that they failed to recognize the fact
that the cost of controlling a particular pollutant
could vary enormously, depending on the nature of the
particular polluter. Thus, standards would be set
that could readily have been bettered by some
industries because the imposition of more stringent
standards would have put others out of business.
Also, because existing regulations tended to require
the utilization of the best available technology,
there was a disincentive to develop new technologies
that would clean out more of a particular pollutant
lest this require the developer to spend still more on
pollution controls. The new bill would place controls
for the first time on the emission of nitrous oxide
from stationary sources. I was persuaded that this
would be the ideal opportunity to discover whether we
could achieve the targeted reductions more efficiently
by taxing the emission of nitrous oxide rather than by
imposing rigid, uniform regulations on the emitters.
This would create an incentive for the emitters of
these gases to devise the most efficient ways to
reduce the release of nitrous oxide from their
particular plants. Because it would be far more
costly for some of them to do the job, some industries
would end up eliminating far larger percentages than
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others; but on average, the target goals would be met.
And if they weren’t, an increase in the tax would
increase the incentives to find new and better ways to
reduce the emissions. Unfortunately, although the
bill incorporating that test was adopted by the
Senate, I was not on hand to make sure it was
incorporated in the new bill that was enacted by a new
Congress the following year.
Is there anything you can identify that you regret
about your Senate career or any major disappointments
that as you think back on you would rather have turned
out differently?
Well, the election.
I haven’t gotten to that yet. That’s next.
Other than that, I am sure that there are but I would
have to really sit down and think about it. I am
having the same trouble with my mind as you are having
with this machine.
Well, actually you remember more every time I ask.
Let’s talk about the campaign in 1976. Am I riqht
that you campaigned against Moynihan?
Yes.
Tell me about that campaign. What were the major
issues? What were the politics? What happened?
I think I should say something as a prelude to all of
this because it is very relevant to how the campaign
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turned out. You may or may not recall that in 1975
New York City went into a huge financial crisis, faced
bankruptcy, and actually became bankrupt, although no
one used that word.
That’s when the New York Post had the headline that
said IIGovernor to New York City – Drop Dead.”
It was “Ford to New York City – Drop Dead.” The
instant appeal out of New York City and New York State
was for federal guarantees of New York City borrowing,
and I flatly opposed that. That meant that during the
campaign the literature that was handed out included
that headline, and on the other side it said: “and
Buckley was a pallbearer.”
Now there’s a campaign issue. You knew you were
handing him a campaign issue.
Yes, but I didn’t know how I could be credible in the
future if I didn’t apply the same standards to my
state that I would apply to anybody else. A very
important point of principle was involved. New York
City’s problems were the direct result of gross mismanagement. City employees were paid substantially
more than those of any other major city; they could
retire earlier with larger pensions, and so on. How a
city is managed is the direct responsibility of its
citizens and of the state in which it is located, not
the federal government. While I believe it is
reasonable to call on the citizens of all of the
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states to help the victims of a natural disaster that
strikes one part of the country, I could (and can) see
no reason why they should be called upon to bail out
the victims of a man-made municipal disaster. I did
work with the Ford administration on an alternative
approach to New York’s problems that did provide New
York with some significant help. Even well run
municipalities will do periodic short-term financing
to maintain their cash flow — that is to say, to fill
the gap between the periodic collection of taxes and
the need to pay bills on a weekly or monthly basis.
New York City, however, was no longer able to borrow.
So the plan I worked on with the Treasury Department
involved helping the city with its cash flow by
accelerating certain federal payments that would fall
due later in the year. This approach enabled the city
to pay its operating costs and maintain its essential
services, but it didn’t involve additional subsidies
from the federal government. In the meantime New York
State passed legislation that created a board with the
power to manage the city’s affairs. The New York
State legislature went a step further: it suspended
payment on one series of New York City obligations,
which is basically what happens when you go into
bankruptcy. The suspension of debt payments was
subsequently found to be unconstitutional by New York
State’s highest court. That, however, was well after
the election. In the meantime I had to face Moynihan.
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He had been a very effective U.S. Ambassador to the
U.N. and was particularly effective in defending
Israel against Third World attempts to paint it as a
pariah state. He stood out as a lonely champion of
fair play, and it made him an enormously popular
public figure in New York. On one television program,
which I happened to see, he was asked if he had any
thought of running for the Senate; and he said “no,
that it would be dishonorable of him to use his
position at the U.N. to do that.
You picked that up in your campaign literature?
No, nor did he flash the letter I sent him saying,
lII1m much relieved, because if you did I would
probably have to step down.” But anyway, he was my
opponent — by a very, very narrow margin. He won the
Democratic primary against Congresswoman Bella Abzug
by one half of one percent. It would have been a
different story had she been the candidate. So all of
this was undoubtedly destined by someone way up there.
Well, it’s all politics. You never know.
My position on New York City was enormously harmful to
me. Whereas, in my first election, I had substantial
majorities in the bedroom counties around New York
City — Nassau, Suffolk, and Westchester, I lost them
in 1976; but I did have very healthy majorities —
about 63 percent or 64 percent of the vote — upstate.
Also, of course, it didn’t help to have Moynihan as my
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opponent. He was generally viewed as a conservative
Democrat, which cut into my earlier blue collar vote;
and because of his eloquent defense of Israel in the
United Nations, he had an absolutely solid hold on the
Jewish vote. In fact, two of New York’s most
prominent Jewish Republicans told me, at a strategy
meeting in my New York City office before the
Democratic primaries, that if Moynihan won the
primaries, they would be unable to help me because
they had to protect their own positions in the Jewish
community. There was, however, one thing that did
please me about the 1976 election. Right after I was
elected under the Conservative Party label, which
caused the press such horror, I was asked what I would
like to accomplish in the Senate. I said that one of
the things I hoped to accomplish was to demonstrate
that conservatives do care.
at this during my six years in office, and a woman in
my New York City office set out to help blacks and
Hispanics to help themselves in all kinds of areas
based on their own abilities and merit — the
establishment of small enterprises, home ownership,
you name it.
get access to credit and training, and how to take
advantage of public programs, especially those that
helped people help themselves. That was very much
appreciated. I received several awards from black
organizations, something that neither the New York
I very consciously worked
We showed them how to do such things as
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Times nor the television stations ever reported.
During the 1976 campaign, I marched across 125th
Street in Harlem in the company of Floyd Patterson,
the black middleweight boxing champion, and the
president of the Malcolm X Democratic Club of Harlem.
This was a pro-Buckley demonstration that, again, went
unreported by the Times and the broadcast media. I’m
told that I received somewhere around 20 percent of
the black vote as opposed to the six or seven percent
who voted for Gerald Ford. Anyway, I was very pleased
with this.
So Moynihan won for whatever reasons and then you did
run again. Didn’t you run later against Senator Dodd?
Yes.
Was that two years later?
Four years.
How did you decide to run against Dodd and what about
that campaign?
I felt that I had earned a certain position in the
Senate that would enable me to achieve some of my
goals in a second term. For example, I had developed
a following among a number of Republicans who were
uneasy on environmental issues. When important
environmental votes came up toward the end of my term,
a number of them would come up to me and ask how they
should vote. They trusted my judgment. I had
privately decided that I would not serve more than two
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terms. I felt that in twelve years, I should be able
to contribute whatever I had to contribute in the
framing of public policy. Moreover, it was getting
harder and harder to be a serious legislator. This
was the direct consequence of the extension of
federal authority over vast areas once considered
the exclusive province of the states. This had two
consequences. First, it resulted in an enormous
increase in the number of bills submitted by
senators that had to be considered by committees
and debated on the floor, and the proliferation of
federal agencies and programs doubled and redoubled
the Senate’s oversight responsibilities. Second,
because federal laws began to have a direct impact on
local communities and individual citizens who then had
to struggle with bureaucratic red tape, more and more
of a senator’s time had to be devoted to dealing with
the complaints of constituents who had nowhere else to
turn after running into a bureaucratic stone wall.
All of this meant that there was less and less
time to study, let alone master, the details of
new legislation that could have an enormous impact
on American society. The Senate could no longer
claim to be a truly deliberative body because it
was trying to juggle a host of problems and
complaints that previously would have been handled
by county seats or state houses — or resolved
without government intervention of any kind.
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WSW: Do you think it’s worse now than it was when you were
in the Senate?
BUCKLEY : Yes. I’m told so.
WSW: People of course are leaving the Senate that you might
not otherwise expect to leave.
BUCKLEY : There are only so many hours in a day; and if your job
is to give careful thought to national needs and
national strategies for achieving those needs, you
have to have uninterrupted time. You need time to
study .
And there’s no time to do that in the Senate: that’s
what everybody says.
It used to be a reflective place where people could
examine and discuss matters in depth; and when the
scope of federal authority was understood to be
limited to the areas enumerated in the Constitution,
senators were able to be truly deliberative and to
complete their work in five or six months and then go
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home.
Did you find that it changed over the six years you
were there?
Yes. At the beginning of every morning my secreta-y
would hand me an index card with my schedule for the
day, including my committee and subcommittee
assignments, hearings and so on. When I first
arrived, I sometimes found that I had two committee
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meetings scheduled for the same time. During my last
year, it was not uncommon for me to have three
committees or subcommittees meeting at the same time.
Yet a senator’s primary institutional responsibility
was to master all of his own committees’ work. As a
practical matter, this was no longer possible.
You think it’s going to get any better? Is there any
way to make it any better?
I have my own thoughts on the matter. They boil down
to the need to rediscover federalism and decide that
the federal government should not become involved in
areas that state governments are capable of handling –
– whether or not one approves of the manner in which
they do so. This was the division of governmental
labor that was originally written into the Constitution. Modern development may require some thinking as
to where the line is to be drawn, but the principle
remains both sound and the same. Anyway, that is my
solution.
Do you think a lot of it is just increased demand from
the public? The expectations of the citizenry are
greater now than they used to be? People expect their
senators to be able to do more?
Yes, that is true today; but I would blame this on the
encroachment by Washington on what used to be
understood to be the exclusive jurisdiction of state
and local governments. Until the Johnson Great
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Society programs came on stream, most Americans were
never affected by legislation coming out of
Washington, except the income tax. But now you have a
federal finger in just about every pie. Now, if
people want relief or if they want help, they have
been conditioned to turn to friendly representatives
in Washington. I happened to be in the office of
Senator Robert A. Taft on the morning of December 8,
1941, waiting to be escorted to the Capitol with his
nephew, who was a classmate and friend of mine. We
couldn’t get into the House of Representatives to hear
Roosevelt ask for the Declaration of War, but Mrs.
Taft invited us to hear it on her portable radio in a
room off the Senate floor. In any event, while
waiting until it was time to leave, we volunteered to
sort his mail, which filled about a third of a
standard mail bag; and Taft was a fairly important
Senator in those days. Thirty years later, I found
myself serving in the Senate with his son, Robert Jr.
I asked him how many bags of mail he received on the
average morning. He told me four or five. That
difference is a measure of the increased impact of
federal laws on the average citizen over the
intervening years.
Is it just that people are writing their senators?
Aren’t they also expecting more out of state
government? Everybody is expecting more from
government.
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Oh sure. Everybody is expecting more from government.
We’ve moved into the age of the welfare state; but
still, in the past they would not have turned to
Washington the way they do today.
After you left the Senate what did you do? It looks
like you did a number of things, including going to
the State Department. But before you went to the
State Department, did you work at Donaldson, Lufkin &
Jenrette?
Yes.
As a consultant of some kind?
I was there for about a year working on spot
assignments and continued to serve on their board of
directors for a couple of years thereafter..
Were you doing international work?
I did one international project, yes. I went over to
Saudi Arabia to raise money for a venture capital
program that had been pioneered by a subsidiary of
DLJ. It was beautifully conceived and was supervised
by a wonderful management. But after that, there were
some dramatic developments in our family business that
took me away. I worked as a consultant for a couple
of years to see if we could develop a new line of
business. And then I became involved in my Senate
campaign in Connecticut.
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who was running the family business while you were in
the Senate?
My brother John.
When last we talked about it, the company was involved
with oil ventures.
Catawba provided a variety of services to seven
companies that were publicly owned. They were engaged
in oil and gas exploration ventures in different areas
outside the United States with the exception of
Florida and had altogether about 80,000 shareholders.
And did it move into a different business?
Its business had disappeared. The SEC decided that
because the public companies all had what was deemed
to be a management contract with Catawba, they would
all have to be treated as affiliated. This in turn
would have raised financing and other problems for
Catawba’s clientele. Therefore, the contracts were
terminated and virtually all of Catawba’s executives
went to work for the various client companies. This
left Catawba with some capital and a history in the
oil exploration business, but with only a couple of
employees with any experience in it. Then the
question was whether or not it was possible to develop
a new business. We decided to enter the tax shelter
business; but it turned out that our timing couldn’t
have been worse. After a great deal of work
investigating various drilling deals that we would
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then market, oil and gas prices started tumbling, and
the interest in petroleum-related tax shelters simply
dried up. So we finally decided to liquidate the
company. In the meantime, I continued to work on
several projects, served on a couple of boards of
directors, and did radio commentaries for the Westinghouse Group and as the house conservative on the
Public Broadcasting System’s, “All Things Considered.”
This takes me to 1980 and my campaign as the
Connecticut Republican Party’s candidate for election
to the Senate. I again failed to get elected; but a
man I much admired became President of the United
States, and I decided to see if there might be an
interesting position for me in the Reagan administration.
And that’s when you went to the State Department.
That’s right.
What did you do while you were at the State
Department?
I was Under Secretary of State for Security
Assistance. Security Assistance involved a variety of
military and economic programs designed to help and
strengthen countries in which we had a security
interest. The latter are not to be confused with our
AID programs, which sought to help the needy
irrespective of how they fit into the security
equation. The countries that were the beneficiaries
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of the economic programs I administered included such
strategically located ones as Malaysia, Thailand, the
Philippines, Israel, and Egypt. The military programs
involved both the gift of military hardware and sales
of such equipment and the providing of military training on a discounted basis. Those programs accounted
for the major part of the State Department budget and
required a fair amount of traveling on my part. One
of my major assignments was to reestablish a
cooperative security relationship with Pakistan in
response to the Soviet invasion of Afghanistan. I
also headed a task group consisting of under
secretaries of State, Defense, and Commerce and a
representative of the National Security Council in a
failed attempt to persuade our NATO allies that their
extension of credit to the Soviets at sweetheart,
below-market rates made little sense. It was an
interesting couple of years.
And during that time you were living in Washington.
Living in Washington
Was your family still here?
My wife was here. By this time, my children had all
left the nest. At the tail end of my time at the
State Department, I changed jobs. Secretary Haig
wanted me to become Counselor, which has nothing to do
with the law. The State Department’s Counselor is
essentially an officer without portfolio whom the
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Secretary can deploy to address discrete problems. It
can be a fascinating position, but it depends entirely
on the nature of the Counselor’s relationship with the
Secretary of State. But after the arrangements for
the change had been set in motion, Haig resigned and
George Shultz was appointed in his stead. Shultz
asked me to stay on in that capacity; but unlike Haig,
he did not yet know how he would want to use me.
about a month after the Senate confirmed my
appointment as Counselor, I decided to accept an
invitation to become head of Radio Free Europe and
Radio Liberty.
Did you move to Germany?
Yes.
So,
Tell me about that. Was it interesting?
It was very interesting. I was there three years. I
committed myself for three years and then towards the
end figured that was enough. My wife and I didn’t
want to become expatriates. It was enjoyable. The
work was important. It was done with great skill and
had an important impact on its audiences in Eastern
Europe and the Soviet Union. There were, however,
some hideous personnel problems. What’s happening in
Bosnia right now will give you some idea of the
tensions that could develop among the 23 nationalities
housed in our Munich headquarters. We had 22 national
services (including each of the Soviet republics) that
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broadcast in 23 different languages. Each of the
services was staffed by expatriates who had fled
communism, and many of them brought ancient grudges
with them. But it was a great experience. I had
always done a lot of traveling, but I had never as an
adult lived abroad for an extended period under
circumstances where I didn’t have to pack every other
day. It would be hard to choose a more delightful
place to be stranded for three years than Munich. We
just had a wonderful time on weekends driving around
and seeing what we wanted to see.
HOW’S your German?
Zero.
How was your German when you were over there?
Zero. I am very, very poor at picking up languages.
My wife is fairly good, and she took lessons. The inhouse work of Radio Free Europe was conducted in
English. The work of Radio Liberty was conducted in
Russian, but the principals all knew English anyway.
Nothing in my daily work would have required me to use
German.
I think that this brings us to your appointment to the
bench. Am I right?
Yes.
Tell me how that happened. Were you in Germany?
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I was in Germany, and I received a telephone call from
my brother Bill.
He’d called before — I remember that earlier. That’s
how you ended up in the Senate.
This time he said that he had been asked to do so by a
guy who had once done some work for National Review
and knew Bill, and who was currently a member of a
group in Attorney General Meese’s shop that worked on
the selection of judges. Bill was asked to ask if I
would be interested in being a circuit judge. I said
that was the most outrageous idea I had ever heard.
No it wasn’t — you said that when you thought about
going to the Senate.
I thought it all over again. I had never given the
matter a single moment’s thought. My first reaction
was that I wasn’t competent to do the job. But as I
have never believed in turning any offer down without
giving it careful thought, I decided to do just that.
I hadn’t practiced law in any traditional sense for
many years. So it seemed to me I had to decide. At
the time, I had started making the rounds of
Washington law firms to see if I could get an “of
counsel” relationship that would involve international
work and negotiations, which I felt very competent to
handle. But I hadn’t done any legal research in 30
years; and I had never done any serious trial work.
In any event, I figured I would have to do a little
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investigating before rejecting the idea. It happens
that I knew Justice Stewart pretty well; so I called
on Potter Stewart and said, “An astonishing thing has
happened to me. I have been asked if I would be
interested in being on the Court of Appeals for the
Second Circuit.Il His answer was, “Grab it.” I told
him I hadn’t practiced in any traditional sense in
almost thirty years. He countered that I had spent
six years in the Senate, which would prove most
valuable. He said that I was competent to do the job,
but that I would have to put in a tremendous amount of
very hard catch-up work for the first couple of years.
Yes, I hadn’t had 15 years of antitrust experience or
whatever, hadn’t done trial work, but I would bring to
the table other experiences that would prove equally
valuable, always assuming that I had the necessary
judicial temperament and basic intelligence, which he
thought I had. So I heard him out and then talked to
four circuit judges, two of them on the Second Circuit
and the others on the D.C. Circuit. They all said the
same thing. Then the question was, would I enjoy it?
I was then 62 and I figured this would be my last job.
What impressed me was that the judges I talked to had
all come from different backgrounds — academia,
elective office, the traditional Wall Street type of
practice. They all said, “Yes it’s a cloistered life;
yes it’s this; yes it’s that; but it is intellectually
very interesting, and you have the satisfaction of
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knowing you are doing important work.” The telling
argument in the end was that if I found in two or
three years that I didn’t like the work, I would have
little difficulty, as an ex-judge, in moving on to a
law firm.
The question on my outline, which I wrote before we
actually started talking, was long-time ambition? I
take it the answer to that question is no. It never
occurred to you that you might do that. In telling
your story you said you were thinking about being a
judge on the Second Circuit. But of course, as you
and I know, you are not on the Second Circuit.
When the possibility of becoming a judge was first
broached, I asked the people at Justice whether there
was a vacancy on this court because I thought my
Senate experience made me better suited for the D.C.
than the Second Circuit. But there was none at the
time. It was only after Judge Tamm’s death created a
vacancy here, which was after my nomination had been
sent to the Senate, that I was redirected to this
court.
Wasn’t there opposition to your nomination for the
Second Circuit?
Yes there was, and it came primarily from one of my
own senators, Senator Lowell Weicker; and this created
some formidable, although not insurmountable,
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problems. As I had become a Connecticut resident
again in 1979, he was in a position to exercise one of
the traditional senatorial prerogatives — that of
placing a hold on consideration of a presidential
nominee from his state. He raised large questions as
to whether I’d be competent in the job for all the
very understandable reasons — I hadn’t practiced law
for over thirty years; I hadn’t taught law; I hadn’t
done trial work, etc. His ability to obstruct my
confirmation, however, was defused by Judge Tamm’s
death, which enabled the White House to redirect by
nomination to the D.C. Circuit.
Then it was easy. Tell us about the confirmation
process. Did Senator Weicker voice any objections
once the nomination was for the D.C. Circuit.
Yes, on the floor.
In those days the confirmation process, I think, was
quite different than it is now. You might agree or
disagree. That was one of the questions I was going
to ask you.
Yes. It still tended to be a formality, but the
process was not nearly as perfunctory as it was when I
was introducing New York judicial nominees to the sole
member of the Judiciary Committee who would be on hand
to conduct the confirmation hearing. I’d introduce
Mr. So-and-so, the candidate for the Southern District
of New York, and the ranking minority member, Senator
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Roman Hruska of Nebraska, would in effect say, “Mr.
So-and-so, do you believe in the Constitution of the
United States?” “Yes, sir.@’ “That’s fine. I hope
you’ll go out there and have a wonderful career.” And
that was about it. At my hearing, three or four
senators were on hand at one point or another. I had
served with all but one of them, Senator Paul Simon.
The hearing was opened by the committee chairman,
Senator Strom Thurmond, who mentioned that he had
known my parents back when he was Governor of South
Carolina and said that they were fine people. He
congratulated me on my nomination; said that the
President had made a fine choice. He threw a few very
soft questions my way and then asked whether I felt my
lack of trial experience would be a problem. I
answered that I had myself been worried about this,
but that conversations with several appellate judges
had satisfied me that I could handle the job despite
the lack of this experience. Senator Simon was the
only other senator to question me, and his questions
were also friendly. I received several follow-up
inquiries, however, while bouncing around Europe.
You hadn’t finished your three years with the radios
yet.
No. No, I was still there. I do recall that we were
taking a holiday, my wife and I were in Austria, and
there was a list of questions telephoned to the desk
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of our hotel that I was supposed to answer forthwith.
I had a devil of a job drafting my answers in our
poorly lit attic room using the little pieces of
tissue paper that passed for stationary.
You didn’t have your notebook with you or your Apple?
No, none of those things. So, there was a certain
amount of follow-up — for example, would I recuse
myself from any cases involving abortion in light of
my strong pro-life stand while in the Senate. I
answered that my introduction of a constitutional
amendment to protect unborn life should be evidence
enough that I fully understood the implications of Roe
v. Wade and, further, that I fully understood that it
was not the province of a circuit judge to overrule
the Supreme Court. Therefore, there would be no
reason for me to recuse myself.
So that was an issue even back then?
Oh, yes. It was also suggested that I gain some trial
experience by actually handling some trials. I
replied that I was so inexperienced in trial work that
it would be a disservice to the parties if I were to
do so. Having since learned the pressures under which
trial judges work and the command they have to have of
the relevant rules, I know I was right. I have
tremendous admiration for trial judges.
They have to make a lot of decisions fast — and be
right.
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Yes, and without having people second-guessing them.
Who never did a trial. I suspect that ultimately the
confirmation process for you must have been rather
genteel — these were your colleagues, and they must
have been very supportive.
It was genteel. There was frankly some question as to
whether Weicker’s delaying tactics would still be able
to block it. There was a long delay between the time
that the Committee signed off on me and the time that
my nomination was taken up on the floor. The
administration was getting very nervous about the
matter because it was getting close to the time when
Congress would adjourn for Christmas. It is reported,
I don’t know whether there is any truth to it, that my
nomination served as leverage for securing millions of
extra federal highway dollars for Connecticut.
That would not be inconsistent with what often goes
on. Right?
It’s inconsistent with nothing that goes on, but I
always objected to that sort of thing.
Well, but it is what goes on.
Yes.
Having been in the Senate and gone through the
confirmation process, I suspect you have views about
what has happened to the confirmation process. It is
dramatically different.
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I think that much of it is outrageous.
Do you think it’s outrageous on all sides?
think that more deference ought to be given to whoever
the presidential choice is, without political
considerations interfering?
I don’t think you can ever do away with political
considerations, but I think there are licit and
illicit ones. Take the matter of judicial philosophy
— a Brennan’s living Constitution versus a Scalia’s
focus on original meaning. That issue can be
described as political.
That’s true.
I think that’s a legitimate inquiry. Questioning a
candidate on how he or she would rule on specific
matters is, I think, illegitimate. Questions dealing
with such things as professional competence and
judicial temperament are proper. If I were a
President who had a Supreme Court vacancy to fill, I
would sacrifice two or three first rate candidates by
Do you
instructing each to open his testimony on the first
day of the confirmation hearing with something like
the following, “Mr. Chairman, members of the
committee, I think it’s important that we understand
our respective roles here.
ask me anything that will enable you to assess my
competence to serve as a Supreme Court justice. By
the same token, you have to understand the constraints
I respect your right to
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on my ability to answer questions. Specifically, it
would be improper for me to answer any question about
my views on any issue that might ever come before the
court because if I were to do so, I would be
compromising my ability to objectively assess and rule
upon arguments that have yet to be presented in cases
and controversies that have yet to arise. And then
every time a senator asked for the candidate’s
position on the relevance of natural law, or to rank
the importance of property rights, or for a view on
abortion, the candidate would reply, ”Sorry, Senator,
I can’t answer that question. It is inappropriate.”
I think that after four, five or six televised
confrontations of this sort, the country might begin
to be educated as to the role of a judge and perhaps
the Senate would learn to limit its questions to those
bearing on the nominee’s competence to serve.
Which is generally to advise and consent in the
process. I think everybody would agree that the
process has dramatically changed.
I really preferred the old system — the one that was
in effect until about 50 or 60 years ago — when a
candidate for the Supreme Court was never asked to
appear before the Senate.
We’re a long way from that. It’s about 6:15 — I
don’t know how much longer you want to go.
1’11 go five minutes more if you want.
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OK. You were confirmed. You put on your robe. You
came to the courthouse. And what did you do next.
I needed to find law clerks. I was rather desperate
because I was sworn in December and this was out of
the clerk hiring season. Basically, what I had to do
was raid some law firms. Fortunately, I had a friend
at Covington who passed the word around that I was in
the market for bright young lawyers who would welcome
the opportunity. I ended up hiring two excellent
associates from Covington, and my third from a New
York law firm. While I was interviewing and hiring, I
had to make do with the help of other judges’ clerks
and one or two staff attorneys. But by the end of my
second month I had three very good people.
And who were your first clerks? Who were these three?
They were Steve McCowin, Jeff Holdaway, and Steve
Rademaker.
What happened to them? Where are they now, do you
know?
None of them went back to their firms.
That’s very interesting.
Two of them — one from the New York firm and one from
Covington — had roomed together at Columbia Law
School. They were Mormons, and one of them went from
me to Salt Lake City, where he’s in practice, and the
other one went to work for Marriott International.
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And the third, who was very interested in foreign
policy, went to the State Department where he worked
on Central American problems and ended up attached to
the Office of the Legal Counsel for the President
while spending a fair amount of time with the NSC. He
is now Chief Counsel for the House Committee on
International Relations.
Do you keep up with your clerks every year?
Yes. Actually we have two occasions — one is a
Christmas party my wife and I give for current and
past clerks. The clerks tend to stay in the
Washington area — I’ve had 70% of my alumni show up.
Then there’s a barbecue in July that the clerks have
generated.
Organized — and has that become a ritual?
That has become a ritual. This is one of the great
pleasures of this job. You get to spend some serious
time with very bright young people, and it gives you
some faith in the future. Some people are still
getting very well educated in this country.
And now you get to hire them in their second year of
law school, right? You don’t have to wait until
they’re at Covington. Do you remember anything about
the early cases that you heard — anything come to
mind in particular?
The first case involved WMATA (Washington Metropolitan
Area Transit Authority) —
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Yes.
— and it had to do with workman’s compensation.
Anything in particular that you remember about
it? Suddenly you’re listening to arguments,
you’re listening to cases, you’re reading the
law, you’re learning again about Shepard’s. Did
it all come back to you?
A surprising amount of it did, yes. One of the
things that was pointed out to me by a fellow
whom the American Bar Association has assigned
the terrible job of trying to figure out whether
I was competent or not — reminded me that in
doing my Senate committee work, I spent six years
listening to evidence, weighing arguments. Some
people who do that don’t do it with an open mind
but I believe I did — and I had that reputation.
Were there any of your colleagues who you were
particularly close with who were mentors as you
started this job?
They were all ready to help. Spottswood Robinson
helped me out — he was just down the hall. He
was sitting with me on the WMATA case, and he let
me have his clerk’s bench memo. I turned to
Judge Scalia a couple of times, and Judge
Silberman was always very, very helpful. But the
key to my survival has been someone called llDee.ll
I know who Dee is.Did you hire her or was she here?
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She had been Judge Tamm’s secretary.
I see.
And she called on me at the Radio Free
Europe/Radio Liberty office here in Washington
while I was awaiting confirmation. She’s just a
gem. She started out in the Clerk’s Office, and
she knows how all of the court machinery works.
She has a wonderful sense of language, and she
will go through a draft opinion and will say that
this or that sentence doesn’t make sense; and she
is almost always right. And finally, she has a
proof-reader’s eye that is just extraordinary —
she can find mistakes in opinions that two or
three clerks have gone through 12 times and I’ve
gone through 15 times. Well, anyway she gave me a
real head start.
And she’d been here so she knew how things really
worked. [Laughter]
Exactly.
That’s wonderful. She was here from the
beginning. OK, why don’t we quit for now.
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Date of Interview: November 29, 1995
wsw : This is the beginning of our 4th session. Today is
November 29, 1995, and we’ll start with some memories
that you have about the Senate that you have recently
recalled.
BUCKLEY: When I was in the Navy in officers’ training, I was
taught that “forehandedness” was the hallmark of
being a good officer — the ability to foresee the
future and prepare for it. But only after my
appointment to this court was I able to realize how
very forehanded I would prove to be in the Senate.
In the years immediately before my election, Congress
began giving the D.C. Circuit exclusive jurisdiction
over appeals from agency decisions implementing key
regulatory statutes. I had a soul mate in the
Senate, Jim McClure of Idaho, who served with me on
both the environmental subcommittee of Public Works
and the energy subcommittee of Interior. As I
mentioned earlier, these subcommittees were engaged
in drafting important new bills in both these fields.
We were sufficiently alarmed by the activist
reputation of the U.S. Court of Appeals for the
District of Columbia Circuit that we made it a point
of ensuring that this court not have exclusive
jurisdiction over any of the legislation being
reported out by our subcommittees. This was a
controversial circuit in those days, and we
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thought that people who felt abused by this agency or
that in Idaho or Arizona or Florida or New York should
have the option of bringing their appeals in their
home circuits.
Now in hindsight, looking back from where you now sit,
do you think that was such a wise decision after all?
I won’t cross-question you about that. But actually
that’s a useful lead into something that I want to say
before we get started today. As we progress today and
probably for the remainder of the sessions, the
questions that I’m going to be asking you will
probably be more sensitive. I may ask you questions
which you are uncomfortable answering or which you are
clearly interested in answering only with the
understanding that the material will remain
confidential. I’m going to go ahead and ask the
questions, and I hope you’ll understand what I’m
doing.
would never think of asking a federal judge except
under these circumstances — questions about how
decisions were reached, judicial philosophy, politics
of the court. I understand that these are the kinds
of questions that you may feel less comfortable
answering or may wish to answer only under strictures
of confidentiality. As we get into that, you can tell
me right then that you’ll answer only if we later make
it clear that it’s confidential or that you don’t feel
A lot of these questions are of a type that I
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comfortable answering them. It’s with that understanding that I will proceed.
May I assume that I can answer your questions as
candidly as I am able and then, after the fact, ask
that part or all of the answer be treated as “off the
record?”
Absolutely. You have the following choices —
off the record forever or off the record until the
characters all die.
That’s exactly right.
can assume absolutely is that anything that you tell
me that you decide you want to be held confidential,
either forever or under whatever circumstances, will
go no further. That is part of my job and I can
assure you that I will not violate any confidence that
you tell me in any respect. But I thought I should
make that clear because I am going to be asking —
You’re going to be asking a lot of impertinent
questions —
Yes, that I’m feeling very uncomfortable about asking,
but I think I probably am going to try and ask them
anyway. OK. Well, last time if you will recall we
had just had you appointed to the bench and were
talking about what you first did when you got here.
When you first got here, what did you feel you were
comfortable with, that you knew how to do, and what
And the other thing that you
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was it that you thought you were going to have to
learn the most about in order to do this job?
Well, I was obviously dropped into a great big cold
bath and assumed responsibilities for which I had
little traditional preparation. Nevertheless, as I
think I told you, after talking to one Supreme Court
justice and several circuit court judges, I was
satisfied that I was competent to do the job.
been warned that I would have to spend a great deal of
extra time at the outset getting up to speed on
various aspects of the job, but that was doable. What
I hadn’t counted on was the problem I would be facing
as a result of my being a very slow reader with a very
poor memory for details. I was overwhelmed by the
volume of reading I had to do in preparing for my
first hearings — the job of having to absorb and sort
out quantities of factual information and questions of
law that were completely new to me. So, it was a
little bit like going to law school and plunging into
your first assignments in which you were required to
read a dozen difficult opinions and start making some
sense out of the law. I found, however, that I hadn’t
forgotten how to think like a lawyer and was soon
satisfied that I had nothing to be scared of in terms
of my ability to do the job. But there were a myriad
details to be absorbed and learned — the ABCs of the
FCC, FERC, ICC, and things of that sort. And
initially I had to get on top of all this without the
I had
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benefit of a clerk, because my first clerk didn’t
report for duty until after I heard my first cases. I
guess what this all adds up to is a huge amount of
concentration on a type of work that I hadn’t been
exposed to in years, in the hope that I would get to
the root of the key questions with sufficient confidence not to make a fool of myself when I asked my
first question in open court.
Did you find that the other judges were helpful in
getting you oriented?
Very willing, but not all that helpful. As I had
found on several previous sink-or-swim occasions,
there is precious little that someone else with all
the good will in the world can do to help you.
They’re there to listen and give advice on this, that
and the other detail, but you are essentially on your
own.
And so you had to find your own way.
Exactly.
Did you find that whatever style you developed early
on is what you carried through in the way you prepare
for cases or has that changed over time?
It has changed to a degree. From the beginning, I
have required my clerks to prepare fairly detailed
bench memoranda to compensate for the slowness of my
reading and my poor memory for details, but I
nevertheless used to read each of the briefs from
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beginning to end and to duplicate a lot of the other
work my clerks were doing. I now begin by reading the
bench memoranda and then check those portions of the
briefs that address the legal questions at issue in
the case. In this way, I have a first hand knowledge
of how each of the parties frames the argument but
spare myself an awful lot of the background and excess
verbiage. In other words, I’ve learned how to make
more intelligent use of my clerks’ bench memoranda.
This in turn has freed up time for a closer scrutiny
of cited sources, which can often prove misleading.
And that’s probably something that would develop over
time. Has the way your clerks write bench memos
changed over time?
They tend to include more details than are required
for me to grasp the essentials of a case, and I keep
trying to get the clerks to slim them down. But it’s
like that old saw about not having the time to write a
short letter. It’s a losing battle, because I want my
clerks to cover all the essentials, and it’s often
easier for them to be expansive than to edit
themselves down to terse but comprehensive analyses.
So I’ve given up my 4-, 5-, 8-year attempt to keep the
memos at between 15-20 pages, and sometimes I’ll get
ones that are up to 40 pages long. But I can’t
complain. I have had wonderful clerks.
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wsw: Do you find that your clerks progress as the year goes
on?
BUCKLEY: Yes.
wsw: I mean these clerks are coming right out of law school
and they don’t really know a lot either. I would
think that as time goes on they are better able to
focus on the issues that you care about.
That’s right as a rule; but some clerks have proven so
bright that they get right to the heart of a case at
the outset. Also, some of my clerks have had a couple
of years of private practice or a district court
clerkship before I hired them.
When did you hire your first clerk — how long had you
been on this job before somebody showed up?
I took the oath of office in the middle of December
1985, the 19th to be precise. My first clerk came on
board the first week of January; but because he was
scheduled to be married the first week of February, I
graciously granted him two weeks for a honeymoon. My
second and third clerks came in late February. So I
was understaffed during my first two months.
Tell me about your early relationships with your
clerks. How did you use them, how do you relate to
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them, how much time do you spend with them?
First of all, it has to be understood that this is a
solitary business. Appellate work consists about 99%
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of reading and writing. These are hardly group
activities. I have my work to do, and the clerks have
theirs. But I think I quickly establish a
relationship with my clerks where they know my door’s
always metaphysically open even though I keep it shut
because I am usually playing music on my radio or CD
player. But they can barge in whenever they have a
question they need to discuss with me. And as I get
into my preparation for oral argument, I will call in
the clerk who is assigned to a case to discuss a
particular point or to ask for additional research. I
think I end up with very close relationships with my
clerks, and one of the best things about this job is
the chance to spend some time with some very bright
young people who are fresh out of school and beginning
their careers. I’m more of an introvert than an
extrovert, so I’m not a glad-hander. Anyway, the
relationship evolves very naturally. My clerks seem
to be pleased to have been associated with me, I’m
happy to say. Because I spend so much time with them,
to the exclusion of anybody else, I have always made a
particular point of trying to find people who are
agreeable as we1 as competent. I try to be aware of
the intellectual arrogance that afflicts some very,
very bright individuals; so when I interview
candidates for clerkships, I place particular
importance on what I call the “chuckle factor.”
And have you generally been successful?
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Yes, I have.
It makes it a lot easier to get through the day. How
long would you say it took you until you felt as
though you’d really settled in and were comfortable
with this job?
Close to a year.
Do you think that your style of preparing for cases
has changed since the early days?
Only in the way I have described. I try to understand
the arguments on both sides. One of the things I
emphasize at the outset is that the purpose of a bench
memo is to provide me with an honest presentation of
the arguments being made by each side supplemented by
the research needed to test their strengths and
weaknesses. One of the things that surprised me at
the beginning was how very bad some of the lawyers
arguing these cases could be; this is a hazard of the
adversary system. So one of the things I look for in
a clerk is someone who has the imagination and the
initiative to go out and fill in the gaps in the
parties’ arguments or make sure that the cases cited
are really on point. Once those arguments are laid
out and analyzed, I welcome the clerks’ analyses of
the merits; but one of the habits I have to break
early on is the tendency to convert the entire
memorandum into a brief for one side or the other.
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And do you find that’s what you get from your clerks
after you have worked with them? Do your clerks
generally write drafts of opinions?
Yes.
Do they generally write a first draft, and then you
work on it, and then it goes back to them?
They work on the first draft, and then how it goes
from there depends on a lot of things, including the
clerk. Clerks come in different varieties. In terms
of writing, there are those who write and frame an
argument the way I do, and those who don’t. In those
relatively few instances where I have had a very close
fit, I have had relatively little reworking to do. In
other instances, even when I am presented with a draft
that is competently written, I find the style and
approach so foreign to mine that I end up completely
rewriting the opinion. In only a few instances have I
signed off on an opinion without having made
significant revisions in both the style and substance.
As a rule, I do a major rewrite that will involve a
half dozen or more drafts to get things just right.
When I find that the clerk has simply missed things or
that some additional research is required, I will
return the draft with a number of notes listing all
the things that need to be done or redone and I will
discuss them with the clerk and ask for a second
draft, which I may well end up rewriting. I’m a heavy
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editor and very conscious of the fact that the
opinions will appear over my signature.
strive for is what I call “reader friendly” opinions.
That is one of the reasons I have banished footnotes.
I tell my clerks that a reader should never have to
read a sentence a second time, or flip though the
pages, or look up a case or statute in order to
understand what is being said. I am aware, however,
that the quality of my writing can be uneven.
Polishing takes time.
some of my opinions.
I have.
Is there a consistency in style?
Yes. I would say there really is.
Anyway, that’s — I would like to think it ends up as
my work.
I would have guessed that you have clerks do a first
draft and then essentially after that it’s pretty much
your work and you write it in your way. There is a
consistent style in the way you address problems,
whatever the problems are, and get through the
analysis to the end. It’s all very systematic. You
tell the reader where you’re going and then you get
there. It looks like a style that is yours.
For better or worse, anyway.
One thing I
You may or may not have read
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wsw: What do you think makes a good judge, as you look back
on your own experiences?
I think you’ve got to rid yourself of your own
prejudgments. My job is to apply the law. I didn’t
write the law.
to apply is awful, but I view my oath as requiring me
to use my best understanding of what the law is and,
in applying it to the facts, to come out with the
result that the lawmaker intended.
And do you think that’s the most important thing that
a judge does?
Yes, if you’re talking about a federal judge. A
common law judge, of course, will at times be called
upon to evolve substantive law. But it isn’t my
prerogative to act as a philosopher king.
the job that I was sworn to perform. And so what
makes a good judge beyond that? Obviously, a good
judge will have to have certain intellectual
credentials, such as the ability to grasp sometimes
complex concepts and to relate them to the facts. I
am aware, however, that people of the same
intelligence and the same commitment to objectivity
may nevertheless perceive reality in different ways.
There’s a book by Thomas Sowell that elaborates on
this and that. One of these days I’ll find the time
to read it. In it he sorts mankind into two
categories based on their perceptions of reality.
BUCKLEY:
I think a lot of the law I am required
That’s not
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What seems reasonable to llX1l percent of humanity in
any given situation will not seem reasonable to llYtl
percent. People who believe in original sin will see
things one way and those who believe in the
perfectibility of man will see them in another.
According to Sowell, political conservatives will fall
in the first camp while liberals will fall in the
other. And so I think it may well be this different
perception of reality that explains why, in a very
small percentage of cases, politically conservative
and liberal judges of equal intelligence and probity
will come to different conclusions as to what the law
requires.
Is that something that becomes clearer as you deal
with your colleagues on the various cases that you’ve
handled?
Yes, yes. Although I think one or two of the judges I
sit with may be influenced by what they think the
outcome ought to be (I won’t name names), I am
increasingly persuaded that Sowell may have the answer
as to why I will reach a different conclusion than
somebody else when I believe that both of us are
trying to apply the law as objectively as we can.
How would you say you prepare yourself for an
appellate argument for a sitting? What do you do to
get yourself ready?
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BUCKLEY: Aside from trying to understand what the case is about
and trying to understand the principles of law that
are involved, what the statute tries to say, all of
those things — are you talking about the mechanics?
It’s really a combination, because how one does it is
part of how one views the work and the job. Do you go
back and read the cases? Do you rely on your clerks
for that?
Any brief is going to cite 40 or 50 or 60 cases, and
I’m not going to read all of them. My clerks are
required to do a huge amount of work. Their bench
memoranda, which will contain fairly detailed analyses
of the parties’ arguments, will have appendices
containing copies of the key cases and relevant
statutes and regulations. Then as I review this
material and check the briefs, I will run into other
cases I will want to check and questions that require
further research by my clerks. At times I will have
inspired insights that had not occurred to either of
the parties that will make what I am working on an
open and shut case; and 99.9% of the time, I will find
out that there was a very good reason why my
brainstorm had not occurred to the very able lawyers
who had spent months working on the case — my theory
was all wet. But once in a very long while, I do have
the satisfaction of having come up with a fresh
perspective that will dispose of the case.
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I was just going to ask you that. I’m always
frightened when somebody’s been working on a case for
a long time and I come in and I have an insight
because I’m quite sure that I’ve just missed the
point. When you argue as an advocate, every once in
awhile you’ll get a question that indicates clearly
that the judge thinks he has an insight when you’ve
gone all the way up and down on the point and have
rejected it.
Actually, I’ve often gone off on premature tangents
that have wasted huge amounts of my clerks’ energy and
time when turning a page or two of a brief would have
made it obvious that my brainstorm was all wet.
Do your clerks help you figure all of that out?
Yes. They’ll go charging off in the direction I sent
them.
not at all shy about saying, “1 think you’re wrong.”
This is something I try to encourage. Now, at a
certain point, after a particular point has been
debated back and forth, I reach a decision and advise
the clerk that’s the end of it; it’s time to move on.
Right. Do you usually sit with your clerks and talk
about the cases that are being argued?
It depends on the difficulty of the case. Some of
them ought never to have been appealed, and these can
be disposed of summarily. But when I am struggling
with a particularly hard case, I will spend a great
But they quickly get to the point where they’re
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deal of time with a clerk trying to get a grasp of the
key issues. I am able to hire very able clerks, and
many of them have an ability to grasp technical
details and relationships that entirely escape me.
Let’s face it; I try to get clerks who are
significantly brighter than I am. In preparing for a
case, I take notes on a legal pad as I go along.
Usually, these take the form of questions that I’ll
ask each party. These will be interspersed with
llCQtslI, which are questions I will need to follow up
with my clerk. I find that by going through my 10 to
15 yellow sheets of notes before oral argument, I can
quickly recall the details of a case before oral
argument. Then I will have “TC’s” , which stands for
“tentative conclusion,11 with an emphasis on the
tentative, because I will often conclude that my
initial conclusion was wrong based on what I learn at
oral argument and in discussions with the other judges
on my panel. In three quarters of the cases, however,
the issues are not really in doubt.
How often do you think the oral argument makes a
difference?
Maybe one out of five cases, one out of four cases.
You never know in advance which case it’ll be.
But generally you find that whatever tentative
conclusion you bring to the argument, when you leave
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the argument you probably are pretty much in the same
place?
BUCKLEY: Generally speaking, yes. But having said that, I’m of
the persuasion that the legal process has got to
suffer from the sheer volume of cases we hear.
Judging ought to be a leisurely profession with a lot
of time to think these things through and rethink
them, to make sure that some critical factor hasn’t
escaped you and that the precedent you are about to
establish won’t prove pernicious in the longer run.
From time to time, when working on an opinion, I have
become convinced the panel had reached the wrong
conclusion, and I have been able to persuade my
colleagues that we needed to dispose of a case in a
different way. This has happened often enough to lead
me to believe that if we had more time to mull over a
case, we would gain a better understanding, better
perspective on the real issues that were presented to
us. So, I had lunch today with a fellow who — very
bright guy called Mike Uhlmann — I don’t know if you
know him. He was with Pepper Hamilton at one point,
was on my Senate staff and served as an assistant
attorney general at one point, very bright. He’d just
finished reading a biography of Learned Hand, and he
told me that Hand would invite members of his panel to
spend a weekend at his country home where they could
discuss a point of a case they’d heard three or four
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days earlier. There is no opportunity to do that sort
of thing today.
Because there’s no time —
Yes. Which reminds me of a comment I heard a few
years ago at a convocation of appellate judges. When
one of them held Learned Hand up as an example to be
emulated, another judge replied, “If Learned Hand were
on the bench today, he wouldn’t have time to be
Learned Hand.
I have found in preparing cases for a Court of Appeals
that there are whole new issues that I hadn’t seen in
the District Court even though I worked on the case in
the District Court as well; as you get ready for oral
argument there are additional issues. So that it’s
hard to see how three people who then get this
package, and have only a limited amount of time to
review it, can see all of the issues including any
additional issues that the advocates have missed. Do
you find in hearing oral argument that there are
additional new issues to consider or do you usually
find that by then it’s all there?
Well, of course the nice thing about the adversarial
system is that you’re not allowed to bring something
new that you didn’t bring below.
s true.
minates some arguments.
Well, that
So that el
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Yes, but not all. A good advocate can always figure
out how to argue that they argued the issue below.
It’s just a different theory, but the same argument.
Do you have a view as to what the most effective kind
of argument is? What works for you, what do you look
for in a good argument?
I tend to be impressed by advocates who decide which
are the critical issues and then focus on them. At
the same time, they must be responsive when answering
questions from the court. Too many lawyers either
don’t understand the question or try to duck it. I am
particularly impressed by lawyers who will admit to
the weakness of one argument and then move on to
others where they are on firmer ground. I confess to
a great deal of sympathy, however, for lawyers who are
so inundated by questions from the bench that they
have little opportunity to present their case their
own way.
wsw: Some idea that some judge has that misses the point —
BUCKLEY: That’s been known to happen. But I am always
impressed with lawyers who will listen to a question
and answer it honestly, even if it requires admitting
its weakness.
wsw: After the argument, there’s a conference of the three
judges.
these conferences?
What kind of give and take do you find at
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BUCKLEY: It depends entirely on the complexity of the cases and
the extent to which the judges may have different
views on particular issues. Sometimes the conference
will be over in 10, 15, 20 minutes because there is an
immediate consensus on each case even though each may
involve three or four discrete issues. On other
occasions the conferences can go on for a couple of
hours either because of strong differences of opinion
among the judges or because they are having difficulty
coming to grips with the issues that have been raised,
difficult issues to resolve. At times one judge or
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another will be asked to do some additional research
on a particular question, and a decision will be
deferred until the results of that study have been
sent around. In the usual case, however, the judges
are pretty much in accord and little discussion of the
case is required.
Do you usually find that, for yourself, you can make
up your mind, that either after the argument or before
the argument you’re pretty clear which way you want to
go and why, rather than finding yourself in indecision
having a difficult choice?
That is generally the case. But sometimes I’ll have a
run of cases where I have a genuinely diff cult time
coming to a conclusion. The issues can be terribly,
terribly close. We may be dealing with an ill-defined
body of law or a factual situation that is difficult
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to pigeonhole. Sometimes, when preparing for a case,
I will change my own view of it three or four times,
change again during oral argument, and change it yet
again after hearing what my colleagues have to say.
Do you find it more difficult to decide some cases
quickly than others?
I find the more difficult cases to be those involving
highly technical regulations applying a statute that
draws arbitrary lines and where the particular
situation to which the regulations are being applied
had not been anticipated by Congress, and where there
is no guiding principle that allows you to bring order
to the chaos. Does this make any kind of sense to
you?
Yes. What you’re saying is the hardest cases are
those where there’s no underlying public policy or
philosophy that guides you in understanding the
statute or its application.
Yes, exactly. There are too many of those.
I was going to ask whether those are most of the cases
that you get. They’re most of the cases that I have.
What is your field?
I do some appellate litigation, I do some
environmental and labor work, products liability, a
lot of different things.
described is similar to a case right now that I’m
But the case that you just
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working on where the issue is one that nobody thought
of; it could come out either way.
I have my own views on a number of Supreme Court
decisions, but I find Chevron very troubling; and I
say that in significant part because of my own
experience in the Senate. As I read Chevron, the
Supreme Court assumes that because Congress has
assigned a particular agency with the responsibility
for a program, Congress expects judges to defer to
that agency’s interpretation of the relevant statutory
language. I recall markup sessions when this very new
senator would ask, “What does this provision mean?”
And the old-timers would say, llWell, we don’t have
time to fiddle with this. Let the courts decide.” I
very rarely heard anyone say “let EPA decide” except
in those highly technical matters that fall within the
agency’s area of expertise. So I think that the
Supreme Court got this one wrong; it creates a
terrible burden for a court that is persuaded that
Congress intended something else.
Although I generally find that if the court believes
that, they can find a way around Chevron.
It does encourage a tendency to find a statute
unambiguous.
Precisely. This is clearly what Congress meant.
Which leads me to another question, which is, having
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been in the Senate and knowing what legislative
history is all about in the real world, how much do
you defer to legislative history, how much do you rely
on it, what do you think of it?
I prefer the British system, but I understand the
British system is getting corrupted by American law.
It always has.
One of the opinions I referred you to laid out my
views on legislative history.
Which one?
of them.
OK. The first one I cited, International Brotherhood
of Electrical Workers. [61 F.3d 41 (1995)l I have
scant use for most legislative history. First of all,
statements made by a particular senator or
representative in floor debate can hardly be taken to
reflect the body’s understanding when there is
virtually nobody on the floor to hear what is being
said. Number two, Congress is a political as well as
a lawmaking body; and a lot of things will be said on
the floor that are directed to a home audience and
cannot be taken as a serious explanat on of what a
statute means. Number three, because legislative
history has assumed the importance it has in so many
court decisions, people who’ve lost a fight in
Congress will try to win it in the courts by salting
the Congressional Record with self-serving
I have not read them all, only a sampling
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interpretations. For these and other reasons, I will
ignore the whole body of legislative history with the
exception of the committee reports, which can be very
useful in determining what meaning is to be given a
particular word or phrase.
cussions of policy objectives can be deceptive. In
interpreting a statute, I take the same approach I do
in interpreting a provision of the Constitution. What
is significant is not what delegates in Philadelphia
may or may not have thought, but what the people who
ratified the Constitution understood the language of
the document to mean. Similarly, it seems to me that
in order to interpret a statute of Congress, it is
ultimately irrelevant what the sponsor or reporting
committee intended; we need to give the statute that
meaning that the majorities in each house believed it
had when they voted it into law. In deciding how to
vote, they have access to the committee reports and
But committee report disI
therefore it is not unreasonable for a court to take
those reports into account in deciding what a
particular provision means. But nowadays, a knowledge
of what is said on the floor or at committee hearings
cannot be imputed to the average member of Congress.
But it’s very hard to figure out what the majority
thought —
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BUCKLEY: Therefore you look at the language. Surely that’s the
best clue to what they understood the statute they
were voting on to mean. There is another reason why
the focus should be on the statutory language. Ours
is supposed to be a government of laws, and the law is
made intelligible to laymen by lawyers. Take a lawyer
in a small town in North Dakota. He doesn’t have the
Congressional Record at his elbow; he certainly
doesn’t have transcripts of the committee hearings.
He ought to be able to look at the language and advise
his client.
Do you think it’s also true that the legislative
history is often written from whatever political
vantage point you have and therefore may or may not
shed light on what anybody really thought they were
doing?
That’s one of the problems. It can be manipulated. I
remember a lunch I had with Senator McClure shortly
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after he left the Senate, where he had served for a
while as Chairman of the Interior Committee. He told
me that he took the trouble of reading the committee
report on one of the bills that had been reported out
by his committee and found something like 18 errors in
it, significant errors, including a couple of
assertions that had been expressly rejected by the
committee.
I’m not surprised. I’m sure you’re not either.
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BUCKLEY: No. So, anyway, for all of these reasons I think that
courts ought to rely on the language of a statute or
of the Constitution as it was understood
contemporaneously by the people who enacted or
ratified it.
This is all consistent with the opinion that you wrote
in Chastain [833 F.2d 311 (1987)l where you went back
and looked at the Federalist Papers and what the
Speech & Debate Clause was thought to mean at the
time. Was that opinion fun to write? I bet it was.
It was.
That’s why I was going to ask you about it. Because
you could use all of the history of that time and go
back to research it. Did you do that yourself, did
you go back and read that history or was that given to
you in the briefs?
No, much of it was the result of original research by
a very bright clerk using a set of books that I’m now
the proud owner of.
University of Chicago called The Founders’
Constitution. Are you familiar with them?
No.
Those volumes take up one clause of the Constitution
at a time and follow it with quotations from dozens of
relevant sources that relate to it — commentaries on
Four volumes published by the
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the common law such as Blackstone, royal edicts,
writings by various of the Founding Fathers, and so
on, so as to place the clause in its historical and
philosophical context.
What a fabulous tool for a judge in deciding a Speech
and Debate Clause issue. Did your clerk find that
book or did you have it? I bet he had a wonderful
time working on this case. I wondered whether or not
the historical work was something that was presented
to you by the advocates or something you had
developed. My guess is that you had done that work.
Yes.
In writing that opinion, Judge Mikva, as you may or
may not remember, was concerned about the policy issue
of limiting the definition of what a legislative duty
was. Did you struggle with that issue?
I lost no sleep over it.
Was that an issue that you thought was not important?
I believe I left open the possibility that somebody
might find certain congressional activities protected
by a principle of qualified immunity; but that is
quite different from the immunity provided by the
Speech and Debate Clause.
Limited immunity — I know what you’re talking about.
I just didn’t think that it would be possible to
stretch speech and debate to cover the kind of
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speaking you indulge in in your home district in order
to get reelected. Members of Congress have taken on
all kinds of jobs and chores that may be of great
importance to constituents and are very relevant to
getting reelected but have nothing to do with writing
legislation.
clearly dealt with the latter.
Did you and Judge Mikva have a debate in a conference
about this or was it clear?
No, we had a discussion and I just said I disagreed;
and at the time, I was in the minority.
originally wrote was the dissenting opinion, which
persuaded the third judge.
That’s very interesting.
Which is always fun.
That’s the goal. That is interesting.
The thing that won over the third judge was the
distinction that I drew between executive and
legislative functions.
immunity in order to protect his ability to perform
his constitutional duty; to do the job assigned.
Members of the Executive Branch or the Judiciary are
required to make hard decisions without fear or favor,
and they have the benefit of broad immunities.
obligations of a legislator are more discrete.
legislator is to be effective, he must be free to say
anything he wants to with respect to the making of
And the Speech and Debate Clause very
What I
A public official is granted
The
If a
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laws and the formulation of law without fear of being
hauled into court. The Constitution doesn’t protect a
member of the House or Senate from being sued for
libel for speech that is unrelated to the function of
legislating.
Is that a distinction that you drew in your own
analysis? That was not something that you found in
the briefs?
That’s right.
I also take it that this was an opinion that even if
you’d gotten a first draft from a law clerk that you
wrote pretty much start to finish. That’s how it
read. And it was one of your earlier decisions.
BUCKLEY: Yes.
wsw: I take it you probably haven’t done any Speech and
Debate Clause work since?
BUCKLEY: I’ve done several.
wsw: Really? Do you remember which cases they were?
BUCKLEY: [Pause]
wsw: Not the names necessarily but what the issues were?
BUCKLEY: A couple of the recent cases involving the prosecution
of congressmen for violations of the Ethics in
Government Act.
wsw: How did this early opinion, when you went back to use
it in analyzing these later issues, how did it hold
up? That’s the question I want to ask.
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BUCKLEY: It held up well. The speech and debate issues were
not close; the larger focus, as I recall, was on
questions of separation of powers.
I take it you didn’t find the conduct to be protected
by the Speech and Debate Clause?
No.
Another one of the cases that I looked at — I looked
at one of the earlier ones and then I looked at one of
the later ones — Gary v. Long, [59 F.3d 1391 (1995)],
which was one of the cases that you had listed, and
probably one of your most recent opinions.
I’m trying to remember that one —
I was just going to tell you which one it was. Your
memory in some ways is like mine because I wouldn’t
remember without looking at it. It’s a Title VI1 case
and it had to do with sexual harassment.
Oh, yes.
You identified it as a significant opinion and it
clearly was because your holding limited the
employer’s liability in such cases.
The employer’s liability — yes.
That’s right. Title VII. If the employer is not
liable for acts of its employees in these circumstances, under most circumstances, employers in this
day and age would not be held liable under Title VII.
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I take it that’s why you identified it as a
significant opinion.
Yes. The law was very ambiguous, with clear consensus
among the circuits.
Do you think it was an issue that other circuits had
decided different ways? I don’t think so.
No, they didn’t quite go different ways, because, as I
recall, no other circuit had been presented with the
precise set of facts with which we had to deal.
Insofar as one can extrapolate from some of the
holdings in other circuits, I think it fair to say
that other courts might have come out differently.
I think that’s quite right. I don’t think that
anybody before had analyzed the issue in a way that
permitted the employer to escape liability or not to
be liable where you had a case of an employee who, if
the facts were true, had done some pretty bad things.
Yes.
But this kind of analysis had been used in cases where
the facts were less clear.
Things are beginning to fall into place — the Supreme
Court said follow traditional agency principles. What
distinguished our case was that the employer had done
everything in its power to make employees aware of its
opposition to any form of sexual harassment and of the
procedures that were in place to protect any employee
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who was the subject of improper conduct. In applying
traditional agency principles to these facts, we
concluded that the employer could not be held
responsible for the supervisor’s actions.
What did the briefs argue to you in that case?
One argued that the employer was liable as the devil
and the other that it was not liable at all.
Did they consider all these agency principles?
Yes, but not in a totally focused way if I recall
correctly.
My sense in reading the case was that this was an
analysis that you had developed; you must have had
some aid from clerks and from briefs but it read as
though it was your theory, having thought it through,
using the analysis that you were going to develop.
I right about that? There must have been a lot of
debate about that decision.
There was a lot of discussion, and I recall
circulating a couple of memoranda outlining how I
proposed to structure the opinion. I believe we all
moved in the same direction as we thought things
through. I don’t think there was any pulling out of
hair.
There was no dissent in that case.
No.
Am
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wsw: Do you think, having read other sexual harassment
decisions raising different issues in connection with
writing that decision that this decision changes the
direction of sexual harassment law under Title VII?
BUCKLEY: I think it demonstrates how an employer can protect
itself against what might otherwise have become an
open-ended liability.
wsw: Have you seen any cases appear since then that involve
that issue or have you seen what other circuits have
done with that issue?
BUCKLEY: No.
wsw: Would it surprise you if other circuits came out the
other way?
BUCKLEY: No.
wsw: I’m about to ask you one of those impudent questions.
Had the panel been Judge Edwards, Wald and Mikva,
rather than Buckley, Williams and Sentelle, do you
think it might have come out differently?
BUCKLEY: It might have been different. I think this is one of
those areas involving perceptions of reality – I don’t
know how to express it. I have become persuaded that
there are differences in how various judges perceive
the world. On rare occasions, this difference will
affect the outcome of a case. There are certain
categories of cases where this is so, and I think it
reflects how one sees life; and these different
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perceptions of life will often reflect the division of
the court between political conservatives and
political liberals, although it isn’t always easy to
tell why Republicans judge one way and the Democrats
another. The vote on a petition to rehear my speech
and debate case en banc is a case in point. The
nominees of Republican presidents all voted to deny
the request, and the Democratic nominees (the minority
on the court at that time) voted to rehear; but for
the life of me, I can’t fit the reach of congressional
immunity into an ideological pigeon hole. But there
it is. I can think of one other case where I couldn’t
explain in political terms why the court split the way
it did.
wsw: Action for Children’s Television actually is like
that. [58 F.3d 654 (D.C. Cir. 1995)l.
BUCKLEY: It is very definitely.
wsw: This was an en banc decision that you wrote. There
were dissenting opinions joined by Edwards, Wald,
Rogers and Tatel. Now following your analysis, there
are political issues involved. The decision could
have come out either way because there was an
obscenity issue competing with regulation of speech.
Lines could have crossed even if everybody was voting
a political philosophy, and yet they didn’t.
BUCKLEY: I am persuaded that the judges were not voting their
party lines, their votes were determined by their
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perceptions of what is a reasonable restraint on
speech and of what constitutes a compelling,government
interest. There is no precise legal formula that will
tell you what is a compelling government interest so
it is in this strange area where perceptions of how
the world works does make a difference.
I want to go back to one of the answers you gave me
earlier about what makes a good judge – that you have
an open mind and that you look at the issues. That
being true, and recognizing that everyone is trying to
do that, it was interesting as I looked at the
opinions you identified as significant that I could
have told you in advance, pretty much in every case,
how the court would be aligned. Does that surprise
you?
I hadn’t thought about it until I gave you that list.
I didn’t think of it when I asked for it, and I
certainly didn’t ask for it for that reason; but when
I read 4 or 5 of them, it did strike me as
interesting.
One case I could give you which would not have come
out that way was an OSHA case, but I couldn’t remember
the name of it at the time. I concluded that both the
agency and the employer were wrong, and that the
petitioning labor union was right. I was later
complimented for that decision in a union journal.
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Do you remember it now? I’ll read it and we’ll talk
about it next time. Maybe I can find it. Or if you
think of it I’ll look it up; I haven’t finished
reading these. I read about half of them before I
came today – some of the early ones and some of the
later ones – and was struck by my guess that you had
done a lot of independent work on each decision. Your
opinions start with first principles and work through
the issues and come out at the end. It was also
interesting to me that judicial philosophy somehow
seemed to play a role in most of these significant
decisions. Now why did you pick these? What criteria
did you use?
Maybe because I remembered them. Well, I guess
because more often than not they dealt with an area
that was not squarely predetermined by 83 nearly
identical cases and because a certain amount of
“original work” was required. Association of American
Physicians and Surgeons [997 F.2d 898 (1993)l is one
example. There you find me disagreeing with two very
conservative judges, namely Judges Silberman and
Williams.
wsw: That’s right. Silberman, Buckley and Williams. Judge
Silberman wrote the opinion and you wrote a concurring
opinion.
BUCKLEY: You read that one too.
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Of all these cases on your list, or any others, is
there a case or cases that you thought were the
hardest to decide, that you really did lose sleep
over?
Just trying to think. I’m sure there are many more
than one. These things just evaporate from my mind.
Are there cases where years after I’m still not sure
if we got it right? Yes, there are such.
But you don’t lose sleep over them.
You can’t.
Because you’ve got to move on.
Incidentally, would you be interested in a written
statement of my philosophy as a judge?
Yes.
Would that be helpful? OK, I can give you that.
[Attachment A]
In what context did you write this?
It was originally for presentation at a Senate prayer
breakfast. It ended up as an article.
Good, yes. Are there any cases, as you sit here now,
that you can remember at the time you were deciding
them you found very hard to decide either because of
policy reasons or because you couldn’t sort out what
the law really was or ought to be or for any other
reason?
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BUCKLEY: Yes. First of all, I don’t think I have any right to
impose my own views on policy. So if I have had
difficulty with questions of policy, it would have to
be because the policy undergirding a particular
statute was unclear – either congressional policy as
stated in a statute or framed by an agency courtesy of
its delegated authority. I don’t think that’s what
you are talking about.
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I have had plenty of cases where I think the correct
application of the law has set American society back
several major steps. But our understanding of the law
was clearly what Congress intended and that’s their
job. So that sort of thing doesn’t bother me.
But it must be also the case that sometimes it’s not
clear.
Unfortunately, that is too often the case. A law is
poorly drafted and difficult to understand, or it may
be very difficult to determine whether it was intended
to be applied to the situation at hand, or the case
involves a number of intellectually difficult
concepts, or there is no underlying principle that can
be relied on for guidance. For whatever reason, it
can be devilishly difficult to come to a conclusion
with any degree of certainty that it is the right one.
The court, as we talked about a few minutes ago, does
divide in some sense by judicial philosophy.
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I’m not sure you would get anyone to say that.
Well, I was just going to ask you whether you would
agree with me? Other than my looking at the way these
significant opinions were decided, what do you think
about that? Let me just ask the question straight.
Do you think there is a division of judicial
philosophy on this court?
At the margins. Law schools will talk about the
Constitution as a living document that must be
constantly massaged and changed and kept up to date,
and so on. Insofar as there are judges on this court
who are comfortable with this view, their decisions
will, I think, inevitably test the limits in pursuit
of what they believe to be the correct result. But on
this court, at least, any “activism” of that sort is
held within rather tight limits, bound by a perception
of the latitude the Supreme Court will allow in a
particular field. I don’t believe that our judges
will claim any latitude with respect to a statute. At
times, however, some of them will read something into
a statute that I can’t find. That is why I prefer to
attribute differences in results to differences in
perceptions of such intangibles as what is reasonable.
People reading the same words will at times understand
them quite differently. Especially when you have to
come to grips with things such as l’compelling
government interest” or “reasonable due process.
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These are spongy concepts. I think probably we would
all define our jobs in pretty much the same way — yet
we will reach these quite different conclusions in a
very narrow set of cases. I think it would be in less
than 5% of the cases we have that this sort of thing
will manifest itself.
Taking Gary v. Long, which is the Title VI1 sexual
harassment case, as an example, I think you agreed
with me that if a different panel had sat on that case
there was a pretty good chance it might have come out
differently.
I think I said it might be possible. I feel, however,
that we applied standard agency law in a conventional
way. I know I tried to.
I was trying to figure out, using the analysis you
just gave me, how it would work in the context of that
case. The case did not involve our analysis of Title
VI1 except to the extent that in it you applied
standard agency principles. Yet I suspect that with a
different panel a different decision would have been
reached.
To that degree, that panel would have been an activist
panel.
OK. To the extent that there are differences on the
court of world view we will call it, do you find that
there are personality conflicts that arise or are you
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all pretty much able to accommodate the different
world views that you have?
I think we do a pretty good job of that. I know that
there are those who assume, from the great differences
in our political backgrounds, that we must engage in
all kinds of clashes, but it’s not true. I understand
that in earlier years, there were some legendary
battles among the judges of this court, but I haven’t
experienced any. There are individuals of all
different types here, and they are all extremely
capable. Occasionally some sparks will fly, as they
will in any human situation, but these flare-ups are
short lived and have left no permanent bruises, at
least I am not aware of any.
I would hope that would be true, but I can see that
people with very different personalities could find it
difficult to accommodate one another.
One of the strange things about this job is that we
almost never see one another. I can literally go
three weeks without laying my eyes on another judge.
It’s a very weird situation. In my first years on the I
job people asked me what it was like, and I said it’s
like entering a monastery. And then after a while I
realized this was wrong because monks get together
about five times a day at inconvenient times to pray
together. By contrast, this court consists of a
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series of hermitages. We each live our own quite
separate existences.
Do you find that to be a good or difficult part of the
job?
It’s a limitation. There are wonderful people here
that I just don’t get to know as well as I would like.
We don’t have sufficient numbers to support a dining
room where you would drop by to have lunch and have a
chance to get to know each other in a three
dimensional way outside the context of the legal
issues that we discuss during those four days a month
that we hear cases with two other judges.
Do you socialize with other people in this court?
Very limited. But I do very little socializing.
We’ll get to that. Do you think that there are judges
on this court who are particularly good at consensus
bu i Id i ng?
Unlike the Supreme Court, we have very few cases that
offer the opportunity to build a consensus. We have
en banc hearings, but only two or three of them a
year. So basically you come down to a situation in a
three-judge panel where some individuals prove more
persuasive than others in presenting a particular
point of view. So the answer is yes, but you won’t
get me to name them.
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Do you think that the court is overloaded? You said
earlier that there is no time.
I think it is more accurate to say that I have no
time. I am a very untypical judge in that I am truly
very slow. It takes me significantly more time to do
my job than it takes the other judges here. When I
mention this, people say that I must be more thorough
than the others. But this is not so, I’m not better
prepared. I am often less well prepared than many of
the people on the panel. I am just painfully slow at
reading and writing, which is 99% of an appellate
judge’s work. I have always been a workaholic, but I
have never put in more hours in any job in my life; I
work most weekends and I get here at 8:15 in the
morning, I leave here at 6:30 in the evening, and I
usually put in an hour or two at home at night. On
the other hand, there are 3 or 4 judges here who teach
on the side, who do a fair amount of lecturing, who
take off to Eastern Europe and help people establish
judiciaries and so on. So from my perspective, the
court is way overloaded. Taking the court as a whole,
I think we are probably at the level where we can
handle our work without falling behind. Our work load
hasn’t changed much in the last three or four years.
I think that’s probably going to change. What
happened is that with the moratorium on significant
new legislation during the Reagan years, lawyers began
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to run out of new ways to challenge existing
regu atory laws, but significant new regulatory laws
were enacted during the last couple of years of the
Bush administration — significant new amendments to
the Civil Rights and Clean Air Acts and a couple of
others, and we are just beginning to get the
challenges to the regulations that have been issued in
response thereto. So right now, we as a court are
able to handle the work even though we have been
working with a complement of 11 judges rather than the
12 authorized. We have been an 11-judge court for
most of the time I have been here; I think 12 were
authorized just before I came on.
What about the criminal docket? Has that increased?
We had a period three or four years ago where it had
increased significantly, but the increase was
artificial; artificial because of a situation peculiar
to the District of Columbia. As you are aware, unlike
the states, the District has a single chief
prosecuting officer — the U.S. Attorney for the
District — who has the authority, in the case of
offenses that violate both federal and D.C. law, to
decide in which of the parallel court systems, federal
or District, the criminal charges will be brought.
The last U.S. Attorney was sending a lot of cases in
our direction that really didn’t belong here. It was
penny-ante stuff that would have been handled by the
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state courts anywhere else. The new U.S. Attorney has
gone back to a more normal division of labor and so we
are not carrying as heavy a criminal load as we were
carrying during those aberrational years.
Do you think that in the next few years the docket
will grow?
Let’s put it this way — Because of the new laws I
have referred to, a new generation of regulations is
being issued that will be challenged in this court.
In a sense, however, these cases will more or less
offset the decline in challenges to the regulations
issued under older statutes. So, unless Congress
enacts major new laws that will generate a mass of
additional regulations, the net effect will not be a
significant increase in our work. Eventually
litigants will run out of new ways of challenging the
old stuff.
You underestimate the bar.
In any event, I think right now it’s very hard to tell
because very strange things are happening on Capitol
Hill. If there is a genuine move to deregulation and
the return of a lot of responsibilities to the states,
you could find in the longer term a decrease in our
workload.
Although short term, this could generate an increase
in the workload as all of those laws are challenged.
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Have you found an increase in any particular kind of
case over the years?
If you want to subdivide the administrative load, if
you are talking about hazardous waste, for example,
the answer is yes, there has been an increase in
hazardous waste cases because new laws have been
passed; but there has been a decrease in some of the
other kinds of cases such as challenges to CAF6
standards. Are you familiar with those? They have to
do with the gasoline efficiencies of automobile
product lines.
I don’t do that. Do you think that the court now
writes more than it used to; writes longer opinions,
more detailed opinions?
How far back do you want to go? My perspective is 10
years. I would say that perhaps the individual
opinions are a little shorter. One significant change
is, I think, that you’ll find far fewer footnotes.
I think we can all speculate on why that might be.
What do you think about technology? Has it changed
the way people write opinions? Do you think that
computers and access to information on computers has
had any effect?
I’m not sure it has had an effect on the writing of
opinions; it certainly has changed the job of clerks
and how they do their research. I haven’t gotten into
electronic research. I can do word processing, but I
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haven’t gotten into the LEXIS/NEXIS/Westlaw type of
thing. I hope to advance into that. The court has
now developed a system of electronic voting on such
things as motions, which saves a lot of paper. So
there is a little less paper shuffling.
Do you have E-Mail?
Yes.
Do you write each other notes?
Not yet. But I can see that will probably be coming.
That might change your life more dramatically because
you’ll have contact with more other judges because you
send each other notes all the time. That is what EMail does. I mean if you have a judge’s network, you
could send each other all sorts of chatty notes.
The machinery is all in place. I don’t personally use
it to chat – nor do other judges that I know of – but
our offices are now circulating memos that way.
Are there discussions about technology? Is it
anything that is of particular interest in this court?
It’s of tremendous interest to our chief judge who has
been very good at bringing new technology into play;
but I think you are rather interested in this sort of
thing or you are not. So I passively accept whatever
happens.
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In the last ten years have you seen any differences in
the District Court bench here? Either who is on it or
how cases are decided – how they come to you?
I really haven’t noticed. I have no comment to make
on that.
This is another one of those questions that you may or
may not answer – are there any District Court judges
that you particularly admire or whose opinions you
particularly respect?
There are some and, again, I will not name names.
Well, then, I’ll ask another question and you won’t
answer it either – are there people you have a
different view about – are there judges whose opinions
you are less likely to respect?
As you would expect, the judges in this building will
inspire a range of confidence, even though they are a
very talented group. There are certain District Court
judges, for example, for whom I have so high a level
of respect that when I find myself going off in a
different direction, I scrutinize where I’m headed to
make doubly sure that I am not missing an essential
point – and at times I will find that I have.
Does that happen often?
It happens on occasion, sure.
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When you are reaching a decision, do you think at all
about what the Supreme Court will do or how it will
react to the decision you make?
Basically, no. On certain issues I assume that the
Supreme Court is going to be given a crack at my
handiwork and assume that the Court might very well
grant certiorari, but I do my job and they do theirs.
If you are asking whether I will change anything
because of the prospect of Supreme Court scrutiny, the
answer is no. In arriving at my conclusions about a
case, I will apply, to the best of my ability, what is
binding Supreme Court precedent, but I am not going to
second guess where the Supreme Court goes next.
Would you write a different opinion thinking this is
one the Supreme Court is going to look at? A more
detailed, or broader, or narrower opinion? Does that
enter your calculus at all?
No. In terms of writing opinions, I tell my clerks to
make sure their drafts are reader friendly, i.e.
easily understandable on a first reading by readers
with no particular familiarity with the field of law
in question. I also emphasize the need to avoid any
asides, dicta, things of that sort, that, in my
experience, have the effect of strewing the legal
landscape with land mines. In writing an opinion, I
try to explain the court’s reasoning in reaching its
conclusions while, at the same time, not straying
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beyond what the case requires. I would not change
this approach, let alone modify my conclusions as to
what the law, including Supreme Court precedent,
requires merely because the Supreme Court might be
looking over my shoulder.
As I said, the opinions that I have read and I am sure
I have read others, my perception is that your
approach is to take the problem, to take it apart, to
analyze each issue, one at a time and reach your
conclusions. It’s very linear. There aren’t a lot of
asides or byways and other analysis. It’s just very
straightforward and clear. Your opinions tend not to
be very long, as D.C. Circuit opinions sometimes can
be. As a general rule your opinions are pretty
straightforward. That’s what I found in the few cases
I read getting ready for today. Do your clerks often
go on to clerk for somebody on the Supreme Court?
Some have, not often. I am not a feeder. I have had,
I think, four or five.
I wondered if over time judges on this court developed
relationships with Supreme Court justices and their
clerks often go to one or another.
Not in my case. Nor do I have a relationship with a
law school professor who will spot the bright,
upcoming stars on my behalf.
So that your clerks come from various places. I know
that we have some clerks of yours at our firm, but I
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don’t remember who they are. Are there any lawyers
that you can think of now who struck you as
particularly good appellate advocates?
Yes, and I can’t think of their names.
Do you remember any of the cases or the nature of the
cases that they argued?
I’m sorry, specific cases don’t spring to mind. There
are some lawyers who have a way of explaining
complicated issues, and they do it in an agreeable way
– they answer questions directly. They display a
certain amount of artistry, they can really give you a
feel for an issue and an argument. There is the art
of persuasion that some people have in greater
abundance than others.
Partly related to being smart and it’s partly just a
talent. It is wonderful to see somebody who you think
is really good at advocacy. There must be times when
you sit on the bench and think to yourself – this
person is really good at this.
And then it’s wonderful when both sides are really
good at it.
Does that happen often do you think?
It happens at times.
Well, as you sit here, if you think of particular
people or arguments that you have heard, it would be
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fun to hear about them and specifically what the cases
were about.
This is the sort of thing I just don’t have the
capacity to recall on short notice.
Do you find at the end of the day that you go home and
share with your wife either interesting cases or
particularly good advocacy or bad advocacy that you
have seen?
No.
Do you share it with frienc s or colleagues?
No. For better or for worse, I’ve taken very
literally the injunction that nothing that goes on
here ever gets repeated elsewhere. Of course public
argument is public argument.
You said that you don’t have law schools that you
particularly look to find your clerks. How do you
find your clerks?
I get about 300 applications, and I do have a galaxy
of law schools that are high on my list; and I will
concentrate on their graduates. I will arbitrarily
throw out applications that come from law schools I
have never heard of. Therefore 1’11 no doubt miss
some extraordinary talent, but shortcuts have to be
taken. You could probably name the 10 or so law
schools that I look at. Then I look at the grades,
what the applicant’s experience has been, and the
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letters of recommendation. You can usually tell which
letter is perfunctory and which is written by someone
who is really excited about a student. I’ve found
that this can also be a hazard; that some teachers
will develop an infatuation for a particular student
that will blind them to the student’s very real
shortcomings. So you need second opinions.
You usually try to find that out before you hire this
clerk.
Exactly.
How do you do that?
As I say, get opinions from some other professors and
former employers. Of critical importance, of course,
is the interview. I may see thirty or more candidates
before I make my choices, and they will be
individually interviewed by my clerks as well as by
me. My clerks’ assessments can be very useful. But
it’s hard. This hiring situation has reached the
ridiculous point where judges are choosing clerks a
year and a half before they will be reporting for
duty, and with little more than first year grades to
go on.
That’s right. You hire these clerks before they have
really done anything — they are practically just out
of college.
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For better or for worse I have embarked on a policy of
not hiring anyone who hasn’t finished two years of law
school.
What a dramatic idea. Does that put you way out of
the mainstream?
Yes, because everyone else is hiring second year
people in the middle of their second year.
And I suspect you find that it has not affected the
quality of your clerks?
Not really, not so far. I’ve only had one year of
this.
Does anybody else on this court do that, or does
everybody else still hire based on first year grades?
I think Judge Edwards is doing it too.
You wait and hire the summer after the second year so
you have two years of grades.
Or the following year. And so you have theoretically
missed all the stars, except there is an awful lot of
talent that is overlooked the first time around.
There is a lot of talent, that is exactly right. This
court was famous a number of years ago for moving the
hiring date earlier and earlier.
It just got ridiculous.
And of course it’s even more ridiculous because law
firms like ours who tend to hire appellate court
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clerks, hire law students before they have even
started their clerkships; so we also are effectively
hiring on the basis of first year grades. It really
does perpetuate itself. I wonder if somehow we are
creating a certain category of people in the legal
profession by doing that.
Are you familiar with the system the medical schools
use?
It’s all computerized; you put in your first choice
and your second choice and the computer determines the
internships.
It involves matching the teaching hospitals’
preferences with those of the students. It seems to
me that makes sense. You do that half way through the
third year of medical school. You can do it the
summer after the third year.
Do you really think that the federal bench would put
up with having some impartial system control who they
get as law clerks?
BUCKLEY: If the bench was self-disciplined it would. You only
get people you choose.
wsw: Yes, but you are limited because you can’t jump ahead
of someone else.
BUCKLEY: That’s right. What you do is get the optimum
combination of mutual choice.
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I look forward to that system, and it would be very
helpful for the law firms but chances of it are not
great.
It’s not going to work. No.
Because everybody wants to pick a week before
everybody else does because they are afraid they are
not going to get the star of the year – right?
Yes.
Where are your law clerks from this year?
I have one from Harvard. I branched out this year in
making my next selections – I have my first from Duke
and my first one from Georgetown.
The first one that you have had from Georgetown or
Duke?
Both. I figure if Ken Starr is an example of what
Duke produces, it is not all that bad.
Have you selected law clerks for next year yet?
I’ve got one of them for next year, yes.
Do you find that there are differences among the law
schools, I mean of this tier of law schools, that you
select from – do you find that law clerks are
different?
Not really, no, if you get very bright people that are
reasonably well prepared. In fact, Yale is the most
difficult one to choose from because the grades are
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meaningless. But the clerks I’ve had from Yale have
been superior. Excellent from Harvard, excellent from
Chicago and I’ve had terrific ones from Michigan,
Stanford, Boalt.
What led you to stray this year to the southern
schools?
This was my first time hiring in the third year.
they seemed to have an awful lot of talent who
apparently didn’t surface in their second year. In
any event, I saw quite a few people before I settled
on this group.
How many people do you have here?
In the past, before I was selecting in the third year,
I might see 30 people, and this is a tremendous drag
on chambers time because of my insistence on having
them interviewed by my clerks as well as by myself.
This last time I saw under 20 candidates, but I was
dealing with a smaller universe of applicants and less
competition from other judges.
And
wsw: Do you do the selection process yourself, or do you
use your clerks to help?
BUCKLEY: I narrow the field myself. Then they help.
wsw: Some judges use former law clerks to do a lot of their
screening and hiring. You do not.
BUCKLEY: No.
wsw: Do you have reunions of your law clerks?
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Yes. About two a year. One at Christmas time and one
in the summer.
Do you do it here? Somewhere in Washington?
Christmas time at my home. The clerks have organized
the other, and its location depends on what facility
is available to them. Usually it’s the home of a
former clerk. In my first full term, one of the
clerks and two friends had rented a house with a
substantial yard, which was used for the purpose. It
started the tradition. The clerks did all the cooking
messing up the borrowed dining room and yard. Anyway,
they organize it.
What have your clerks gone off to do? Are they in
private practice, work for the government, what do
they do?
A number of them have put in some time in the Justice
Department or U.S. Attorney’s offices. Most of them
are in private practice. One of them is on the Hill
and some of them are in corporate practice. A couple
of them are teaching.
Other than these reunions, do you keep up with them?
Fairly well. They drop by when they are around.
Especially if they settle in the Washington area.
Clerking here has that effect on people.
Would you say that your clerks are predominantly male,
female, both?
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Mostly male. I have been very hurt; I have had a
number of turn downs from very talented women.
I have no idea why that would be. I think actually
this is a good place to break. I think we have about
one more session of questions. Whenever it’s good for
you, we should meet again.
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Date of Interview: January 15, 1996
wsw : I think that this probably will be our last, our fifth
session. Today is January 15, 1996. When we left off
we were talking about the courts and the court system
here and we had talked about your law clerks, and I
was going to start today talking a little bit about
your views about how this court works and how it’s
managed and whether or not you think it has changed
since you started.
BUCKLEY: OK. One of the nice things about this job is that you
don’t have to worry about management. Only the Chief
Judge and staff have to. Occasionally we get roped
into some weighty problem, but I have had the good
fortune of being under a series of quite competent
chief judges. The one we have now, Chief Judge
Edwards, is not only competent but has managed to keep
up with the latest technology. As a result, we have
been able to eliminate a lot of paper shuffling. In
sum, I have absolutely no complaints on the way the
court is being managed.
wsw : Do you have any role in administration or in
management or do you have an interest?
BUCKLEY: No, and I wonder why anyone ever wants to be a chief
j udge .
wsw : What about the role of senior judges in this court?
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It has been my misfortune to not have been around when
senior judges played significant roles in the regular
work of the court. When I came on board there were
two, George MacKinnon and Carl McGowan. I sat a
couple of times with Carl, but he died soon after I
arrived. George MacKinnon was then spending almost
all of his time as a member of the commission
designing the new federal sentencing guidelines and as
head of the special panel or whatever that appoints
and oversees the work of independent counsels. So I
never sat with him. Judge Wright took senior status
shortly after I arrived, but he had developed
Alzheimer’s disease and died shortly thereafter. So
as I say, I have not had experience with the kind of
service by senior judges that I understand has been of
enormous help in other circuits.
That is interesting, I hadn’t focused on that. Senior
judges here have not been active for one reason or
another. Have you been a participant in the D.C.
Circuit Judicial Conference over the years?
I was the moderator for one program at a conference a
few years ago, and was a member of the planning
committee for another. Then, since Judge Mikva left,
I have been given the heavy responsibility of serving
as conference parliamentarian on the strict
understanding that no parliamentary issue would ever
arise.
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What do you think of the judicial conferences?
think they are useful, do you think it’s useful to
invite the Bar or is it something that you would do
away with?
Frankly, I’m not sure how useful they are. I don’t
know if I would do away with them entirely, but I
think one every other year would certainly be enough.
If you read the statute requiring them, their
principle purpose is to get the district judges and
the circuit judges together to discuss matters of
mutual interest. But this virtually does not happen.
There has been a breakfast for the district and
circuit judges at each conference, but that doesn’t
allow enough time for a meaningful exchange. At each
of the conferences, however, I have always found some
programs that have been very interesting and have
attracted some excellent speakers. With respect to
any benefits accruing from the commingling of bench
and bar: frankly, from my perspective, it hasn’t done
much for me. It may well be useful from the attending
lawyers’ perspective, I just don’t know. What do you
think?
Do you
I think they have become more of a social gathering, a
prestigious thing for lawyers to be invited to. It is
wonderful to be invited. I love it when I am invited,
but I do wonder whether it is anything more than a
nice opportunity for those lawyers who get to be
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invited to socialize with each other and the bench. I
agree with you that every other year is ample. Having
said that, yes, it’s wonderful to be invited but they
are expensive and I might use the money for something
that is a little more worthwhile. The other thing is
that they are very exclusive, and when you get
invited, you get on the list not necessarily because
you have made a major contribution to the bar or
really deserve to be invited. But once you get on the
list you get invited again.
Then you get hurt if you don’t get re-invited.
Right. It’s a little like a wedding. They are fun
but I don’t know that money should be devoted to them
in any great amount. That’s sort of been my
experience. Do you think the court has changed much
since you were appointed?
Not really. In what ways?
Well I guess there are two ways it could have changed;
probably more than that but in the way it’s managed,
the way it’s run, the administration of it. Has that
changed?
Without implying anything derogatory about earlier
chief judges, I think our current chief judge, Judge
Edwards, has shown great organizational talent and has
been effective in addressing all kinds of grungy
problems of which the other judges are blissfully
unaware, but which need to be handled – problems
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involving the workings of the clerk’s office and
various services to the public.
Has there been any change in relationships among the
judges themselves? Are there cliques?
When I was about to join the court, some people
cautioned me that the court was known for its
factions, and this, that and the other – I think we
touched on this earlier – but I have seen nothing of
all those legendary battles and confrontations that I
understand plagued the court at an earlier time.
occasionally a judge will slip something into a
dissent or a concurrence that causes some outsiders to
believe that the fabled tensions of the past linger
on; but while a particular issue in a particular case
may give rise to some sparks, that’s all there is to
it. There are no feuds or resentments that I am aware
of, no cliques. You asked me if I noticed a change.
I think that this is certainly a very different court
than the one that existed in the sixties and
seventies. That court had a reputation for activism,
for plowing vast new legal ground. I don’t know when
all that changed; but five years before I came on
board, people like Judges Bork and Scalia began to be
appointed to the court, and that has had its effect.
Today, a majority of the judges were appointed by
Presidents Reagan or Bush, and that has had its
effect.
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So to the extent that this court was known as it was
many years ago, as a very liberal court, as a very
activist court, that really had changed by the time
you were appointed pretty much anyway?
I think so.
Yes, I think that is right.
And I think, incidentally, that this may be one of the
reasons why our filings have leveled off.
Yes, that was the next question – what about caseload?
I think that probably is right that in the late 60’s
and 70’s certainly the case load in this court was, or
at least it was reported to be, burdensome and overwhelming – that does not seem to be the complaint in
this court.
I find I’ve got more than I can handle; but as I said
earlier, it just takes me longer than the others. I
think that the feeling among most of the judges is
that they can keep up with the current flow and do a
decent job without heroic sacrifices.
Now you may not want to answer this question, but how
do you feel about the current debate about the 12th
judge on this court?
If you look at the statistics, you will see that we
haven’t fallen behind in our work even though we have
been operating most of the time as an eleven-judge
court. Our filings have leveled off, and that’s why
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the argument can be made that we don’t need twelve. I
think we are right at the edge. I believe there are
two reasons why our case load has not continued to
rise, as it has in all the other circuits, keeping in
mind that we handle far more administrative law cases
than any other. First of all, we no longer have the
reputation of being a venturesome court that is
hospitable to what some would style as wild new
theories of law; and second, during the Reagan years
and the beginning of the Bush years, the emphasis was
on deregulation, and no major new regulatory laws were
enacted that had to be analyzed and litigated and
fleshed out. But in these last two years, there have
been some significant initiatives – significant
changes in clean air and civil rights legislation, the
new Disabled Americans Act and a couple of others that
don’t come to mind right now. We are beginning to see
challenges to the regulations that have been issued to
implement these laws, and as tends to be true with any
initial set of regulations, they are being challenged
from 12 different directions; so it would not surprise
me to see an upturn in our administrative case load.
Do you think there has been an impact on the effort to
have alternate dispute resolution and mediation that
this court has adopted and other court have as well?
I just don’t know. All I know is that mediation has
worked very well for us. When it was first
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instituted, and I think that was done the year I
arrived, there was a lot of question as to whether the
government would ever settle a case; and to everyone’s
wonderful surprise and delight, the government has
shown it could be reasonable in this respect.
So that from your perspective, it works in this court
and you think that is also a factor in reducing the
case load?
Yes, it has to be. That does not reduce the filings
and the statistics based on filings, but it certainly
affects our workload.
Right, it reduces the amount of work that you actually
have to do if the case settles before you have to hear
it. I don’t know what the statistics are for the
number of cases that go through that Court of Appeals
mediation. Do you?
I have seen them, but they don’t stick in my mind.
But a significant percent of the cases are disposed of
in this way.
One of the things that I think we talked about briefly
and you were going to think about more was whether, as
you think about your judicial career, there were any
memorable arguments or advocates either because they
were particularly good or particularly not good
There have been both but my memory is such that I
can’t cite the names or cases.
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The circumstances without putting names on it
particularly?
No I can’t. I just don’t have that kind of memory.
It has plagued me throughout my life. There have been
times when I have been overwhelmed by the quality of
the lawyers. I have also been surprised that
sometimes you have somebody from a very big name firm
who would fly all the way across the country to argue
a case – and would bomb.
I suppose I could ask a question this way. I have
found that it is often the case that when a case
reaches the Court of Appeals and a client decides to
bring in a big name, someone who is not familiar with
the record, someone who is not familiar with the case
below, that the argument is not as excellent as the
advocate thinks it is and the client had hoped,
despite all the money that the client paid; and you
see that a lot at this stage. Clients think they have
to bring in some big name, and they will bring in
somebody who doesn’t have the depth of knowledge of
the case and so the argument is not as good. Do you
think that’s right, do you find that?
I think that is a very good analysis. I have also hac
cases where you wonder how the lawyer ever passed the
bar or received a law degree.
What do you find generally when you sit on the bench?
Are the arguments generally what you would expect or
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are you often impressed or are you often amazed at the
quality of the argument?
Well, you expect competence and you usually get it;
but sometimes you get someone who is exquisite. I do
remember one instance – it was my only experience with
a three-judge district court. It involved election
law and a challenge to the election of some New York
judges. The Attorney General of New York argued the
case, and he came before us three times. He was
absolutely masterful. Total command of the law, total
command of the facts. The good sense not to pursue a
losing argument. The quickness to pick up on an
admission made by the other side – wit and grace; and
I heard this man in his last argument as Attorney
General because he had lost the election. We heard
the case in the first week of January, before he had
to step down.
That is a wonderful thing to hear. When somebody is
really good – at his or her best, it is a wonderful
experience to watch. Who was this? Which Attorney
General?
The one that just lost. Couple of years ago. 1994.
Is this a case about the election of judges in New
Y ork?
Yes.
Yes, I do remember that case. I can’t remember what
the issue was but I remember.
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The Justice Department was trying to set aside the
election of several judges in New York City by
expanding the definition of discrimination beyond what
the language of the statute and prior judicial
interpretations of it could possibly support. The
basic argument was that the system by which candidates
are selected is such that it makes it harder for a
member of a minority to be among the pool from which
they are selected.
I do remember it. Do you think this court at the
moment faces any major challenges as it looks ahead?
Either in the case load it has or the statutes or
personnel or management?
No, you have good people on the court, and I think
that the management is good. There are always
problems. I think that we do need more space now than
we have.
Don’t you have judges in this court that don’t have
chambers?
We are OK. The District Court has some judges who
have to share temporary courtrooms. Also, the Federal
Public Defender’s office ought to be here.
now squirreled away elsewhere, but it would be more
efficient to have them in this building. The same is
true of some other ancillary bodies. An excellent
plan has been put together for an expansion that is
very economical; but we are the victim of courthouse
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extravagances elsewhere, namely New York City and
Boston.
Yes we have all been reading about Boston in
particular. Well you see I would save the money from
the judicial conference and use it for other things
like space actually. Let’s talk for a few minutes
about your personal life while you have been on the
bench. Do you find that being a judge makes it
difficult to meet new people and be in social
situations because of the limits of what your job is
and what you can talk about?
Not because of the limits of what you can talk about.
The fact is that I have had a limited social life
these last ten years in part because I have been
working so many evenings. Another factor is that
judges live such isolated lives at work and don’t have
the occasion to bump into people casually. Therefore
people tend to forget that you exist. Even people you
are very fond of. If you are practicing law, you are
in daily contact with other lawyers and clients. As a
result, I found that I have had to take the initiative
to call people and say let’s have lunch. Otherwise I
won’t see anybody except my clerks.
How about the judges on this court. Do they
socialize? Do you socialize among yourselves?
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Very little, but that little is enjoyable. We have a
great group of people, but everyone is very
preoccupied with his own work
How does your wife deal with this – your working all
the time?
Philosophically. She has her own activities. And a
couple of them routinely take her out an evening or
two a week.
Tell me about what your children are doing now?
My oldest works in the investment banking group of
BankAmerica in New York City and lives in Connecticut.
His work involves such things as helping the bank’s
clients place their securities. Our number two child,
also a son, recently moved from Florida to Rhode
Island. He is with a computer software company, and
he is involved in such things as programming. Our
third is a daughter who lives in France, married to a
Frenchman who speaks no English; therefore the chances
are she’ll continue living in France, to our regret.
Does she have children?
She has one child.
Speaks only French?
She speaks to him only in English. He is now 5 % and
understands English but he has trouble speaking it.
And she also works for a computer company. She is a,
was a freelance writer, but after her child was born,
she figured she needed a more predictable kind of
work. She translates computerese into understandable
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English and, I am told, is very good at it. Our next
child is a son who lives in Montana. He is a
freelance writer/photographer for hunting magazines.
And then we have a son who is a lawyer. He was with
Davis, Polk in New York, and though he enjoyed the
work, had virtually no time for anything else. As he
described it, overworked – though overpaid, so a year
ago he moved to the legal division of Host Marriott
Corporation. He now lives in Alexandria and works in
Bethesda.
So there is one child you can see.
One child we can see. And then the last child, and
fifth son, lives in Maine and is a freelance
photographer. He is married and is the father of our
oldest grandchild.
So you have two freelance photographers among them.
Are you a faithful newspaper reader?
I read newspapers, yes.
Do you read the Post; do you read the Times?
I read the Post.
Well you read the “In the Loop” don’t you? That’s the
page I turn to. “In the Loop” is on the Federal page
in the back of the front section, and it tells you who
is moving on to what job and who is doing what.
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I really don’t. I concentrate on the first section.
I am unhappy about the Post. It reflects Washington’s
narcissism, which is huge.
I will tell you a fairly funny story about the
Washington Post. My father-in-law was a newspaper man
for many years, and he railed about the Post his
entire career. He hated it. He hated a lot of
newspapers, and he was a very crabby journalist type.
In his later years he had Alzheimer’s disease, and he
was actually in terrible shape and very rarely did I
have a conversation with him which was terribly
coherent in the last year. But I went over there one
morning and he was railing about something, and I
said, “Well, do you want today’s newspaper?” And he
said, “That’s not a newspaper” and went railing on and
on; and I couldn’t tell whether this was a moment of
sanity or what. He was back to his old self because
it sounded like it. Anyway, what about television.
Are you a television watcher?
Not much. I usually take in the McNeil Leher News
hour and find that very satisfactory.
Do you watch your brother?
I don’t because he comes on at some strange hour of a
Sunday afternoon. I’m sorry to say I haven’t seen him
in a long time. But I don’t hunt out television in
the daytime except when I’m dressing in the morning.
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Then I turn on either CBS or ABC morning shows to get
the news and the weather.
You don’t watch CNN Headline News?
No.
Do you watch court TV? Have you seen any of those?
No.
They are more interesting than you would think. They
are surprisingly interesting every once in a while.
Of course you see that all the time, but I find it
fascinating to see the various cases and advocates.
It will not corrupt my understanding of how the
judicial system works?
I think it will have no impact. It was actually very
interesting during the O.J. Simpson trial. It is more
interesting than you would think. I don’t know how
many people really watch it or get anything from it.
Occasionally in the evenings when trying to get a
little relaxation, I turn on Discovery. Usually for
the animal programs.
And what about travel? Do you ever get a chance to go
anywhere?
Yes. I’ve always taken three weeks off in the summer
and usually travel someplace. Then we have had a
habit of taking about 5 or 6 days off in the spring
and go someplace warm.
A favorite?
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No. Gone to different places. No place that we
routinely go. We also take off for 4 or 5 days in
October to see the New England foliage at its peak.
It has become close to a sacred obligation which we
missed this year for the first time in God knows how
many years. The magic day is October 12.
And where do you go?
We have friends who live in New Hampshire. And we
come back through Connecticut. In the early 80’s I
spent three years in Europe and swore that I would
never again for the few remaining years left to me
deny myself this experience.
New England is October. We just came back from New
England. We always spend Christmas in New England,
which is not the leaf season.
Where?
Well, we go different places. Generally New
Hampshire; and this year we were in Hanover, which is
an absolutely lovely time, lovely, beautiful snow
almost as much as we have in Washington. But we also
try to make it up for some weekend during the leaf
season. My husband is from New England. And there is
nothing else like it. How about books? Any books
that you have read recently that you particularly
liked or particularly didn’t like?
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I try not to read books that I won’t like. I’m
reading an interesting one right now by Thomas Sowell.
I’m trying to think of the title.
Do you read novels? Or do you read more serious stuff?
I tend to read more serious things which these days I
usually do by listening to recorded books while
driving. It is astonishing how much ground you can
cover during daily 40- or 50-minute round trips to
work. I have managed to cover some pretty heavy stuff
– de Toqueville’s Democracy in America, Dante’s
Inferno, the Illiad, Moby Dick. As for traditional
reading – sitting down with books and turning pages –
this has virtually been limited to long plane flights
and vacations, and that reading is usually light.
That’s pretty heavy stuff for somebody who is working
all the time.
History, a lot of American history. Occasionally a
novel, sometimes trashy novels.
You can buy those on tape too. Any other activities
or interests that you have cultivated in the last few
years?
None that I have cultivated in the last few years but
I have been able at the margins to continue some
interests I have always had. Natural history, birds
in particular, and in recent years – meaning going
back 30 years – an interest in the Arctic. Since I
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have been on the court I have watched polar bears on
three occasions. If you do something like this, you
escape into a totally different world. When out
watching polar bears, you have no access to news and
theref ore
Just polar bears – no access to people either.
You have access to other people who like to watch
polar bears. In any event, I try to do that sort of
thing.
Are you a member of the Audubon Society?
Yes.
OK. Let’s talk a little bit about judicial
philosophy. Over the last five meetings, you have
really talked a fair amount about your judicial
philosophy which has been consistent throughout your
career. But let me ask you a few questions anyway
about that. Let me ask you a general question. Do
you think the public’s view of the courts and the
judiciary has changed over time and what do you think
it is and is there anything we can do to improve it?
I am sure the public view has changed, and I think
there probably are things that can be done about it.
Whether we will or not is something else. My
impression is that, beginning with the Warren Court,
too many Supreme Court decisions have overturned too
many settled practices of the American people so that
a very large number of Americans have come to view
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Supreme Court justices and other judges as engaged in
making policy rather than concentrating on the
objective application of the law. And this perception
of the judiciary can only be reinforced by recent
spectacles of Supreme Court confirmation hearings
which give the impression that the Senate’s sole
concern is with assessing the political views of
nominees for the position of philosopher kings who
will have the authority to write their policy
preferences into law. I find this terribly disturbing
because that isn’t what the rule of law is supposed to
be about. If this impression is even part way
justified, then it should hardly be surprising that
significant numbers of Americans have become
disenchanted with the judiciary. I don’t know if you
read my piece on the oath of office. In it I say that
the oath administered to judges requires me to apply
the Constitution and laws of the United States to the
case at hand as objectively as I can. If I deviate
from that standard and insert my own druthers into the
Constitution or other laws of the United States, I
violate the oath and undercut the constitutional
principle of the separation of powers.
What do you think the public perception is? Do you
think that the public perception is that the judiciary
has a broader role because of what it was doing early
in the GO’S and ~O’S?
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That it plays a larger role, which is not the same
thing as saying that it has a larger role. When
organizations like People for the American Way and
National Organization of Women wage major advertising
campaigns to defeat Bork or some other nominee for the
Supreme Court, they reinforce the idea that judges
have a legitimate policy role to play; and
presumably, many members of the Senate share that
view, judging by some of the questions they ask
nominees. Under the circumstances, it would hardly be
surprising that many Americans see a legitimate policy
role for the courts. But at the same time, because
federal judges are not elected and have life tenure, a
perception that they are in fact policy makers must
inevitably undermine confidence in them as guardians
of the rule of law. You can’t have it both ways.
Focus for a moment on the criminal justice system and
the problems that has. What do you think the public’s
view of the courts is in actually controlling crime,
and is there anything that can be done to make that
different or better?
I really don’t know. I’m not sure that the public is
aware of the arguments that are going on in terms of
some of the controversial Warren Court decisions. I
just don’t know; but obviously the public is very
worried about crime, and some people will say that the
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courts are soft on criminals, whatever they mean by
that. Whether large numbers of Americans blame the
courts for erratic sentencing or early parole or
things of this sort I just don’t know. The public
could very well believe that Congress or a state
legislature has enacted the wrong set of rules and
that the courts are doing an honest job of trying to
apply them.
And people are able to make that difficult
distinction. And what do you think about how the
courts are doing in the criminal justice system? How
is this court doing do you think?
Well, I think that we are doing a competent job of
applying the Constitution as the Supreme Court tells
us to. I’m not necessarily in agreement with some of
the Supreme Court rulings. The exclusionary rule has
never made a great deal of sense to me. I know the
public policy rationale for it, but if you have
somebody who has been certified a career rapist and
murderer and you have the goods on him but can’t use
them because some policeman made a mistake, punish the
policeman but don’t punish society.
I suspect that’s what the public generally thinks
about the exclusionary rule. Especially those who are
mostly concerned about crime. And if you were on the
Supreme Court and had that case before you, would you
reverse it?
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I might, I might. This of course gets into the whole
difficult area of …
Right. I know I am asking you a complicated question.
Here’s something you feel fairly strongly about. I
take it that in the first instance if this had come to
you, you would not have developed an exclusionary
rule. Now that we have had it for 20 some years …
I guess at the federal level it’s been there for eons
hasn’t it? And this in effect is federal common law.
The exclusionary law does not represent an
interpretation of the Constitution as such. But I
have questions about the view that the Fourteenth
Amendment has required the substitution of federal law
for traditional state law in many of these areas.
I’ve got lots of questions there. I’m not sure that
was ever intended by the Fourteenth Amendment. This
is more a gut feeling than a studied conclusion as I
have never had to study the matter. I think part of
the problem may arise from applying a common law
methodology, i.e., the development of law case by
case, to the interpretation and application of written
law. Holmes demonstrated early on that the common law
was an evolutionary process that, over time, could
result in radical changes in what had earlier been
considered immutable rules. Courts would build
precedent on precedent, and over time a particular
rule of law would be transformed into a beast of quite
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a different kind. But our Constitution is the
instrument by which the people, in their ratifying
conventions, delegated specific powers and authority
to a new government and established the rules for
conducting their new nation’s future business. And
while the common law principle of stare decisis is
important in lending predictability to the law, if
with benefit of hindsight it can be seen that a chain
of precedents has turned a constitutional principle on
its head, I have not been satisfied that the Supreme
Court doesn’t have the duty to revert to the original
understanding.
And how would you apply that theory in looking at the
exclusionary law?
I am not sure that what I have said would apply to the
exclusionary rule, as I don’t know enough about its
origins. I would do what I have just said only where
it is absolutely clear that the people who wrote the
Constitution could not have meant what the Court had
come to say it meant. And I think there are some
areas where that’s true. But in any event, …
Give me an example of an area where you think that is
true.
First Amendment and pornography for example. First
Amendment as applied to religion.
Well, why don’t we focus on that. Let’s look at
religion.
BUCKLEY: The establishment of religion had a very precise
meaning in the 18th century. The Church of England of
the Anglican Church was the established religion of
Virginia. Other religions were publicly supported in
other states. I think a straightforward reading of
the First Amendment supports the view that all that
clause was intended to do was to prohibit the Federal
Government from establishing an official religion of
the United States and, conversely, that the Free
Exercise Clause was intended to keep the United States
from prohibiting the practice of any religion. It
seems to me that it is less than self-evident that
these provisions prohibit the saying of a
nondenominational prayer at a public school. At least
it never occurred to any one during our first 170
years that school prayer was forbidden by the Constitution. But I take my orders from the Supreme Court.
Well, I am giving you a chance to be a little more
expansive; and if you were on the Supreme Court, would
you cut back in that area do you think? Or has the
law moved to a place where it would be very difficult
now?
There are always difficulties. But if I am a Justice
of the Supreme Court and I take an oath to apply the
Constitution to the best of my understanding, what am1
to do if I reach the twin conclusions that there is
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absolutely no support in the Constitution for the
Court’s decisions and, therefore, no delegation to the
Federal Government – let alone to the Supreme Court –
of the authority to deny the states and their
subdivisions the right to decide matters of school
policy? Where do I find my authority to deny them
that right?
That’s right. But even so, as you said, if you are on
the Supreme Court you still have to deal with what has
developed into federal common law and so if you look
at an area like establishment of religion where the
law has developed over the years.
Over recent years.
Well, it’s not so recent anymore; there’s been a lot
of establishment law-more than 10 years, 15, 20 years.
Well, in my lifetime, how’s that?
Well, that’s over a significant period of time, is
that enough? It’s a guideline. Any other areas in
particular as you look at it?
The most difficult one to unravel is what’s been done
with the commerce clause.
Well, the Supreme Court is looking at that.
It is looking at it but with a very narrow focus. I
think you are referring to the case last year which
threw out a federal law forbidding possession of a gun
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within X feet of school. In enacting that law,
Congress didn’t even adopt the formality of finding an
interstate connection. There was no reference
whatsoever to commerce. I think it is too early to
tell whether we are witnessing a significant
reexamination of the Court’s commerce clause
jurisprudence. One could say that the Supreme Court
is now going to insist that Congress claim an effect
on commerce, however tenuous. But a real rollback?
As a consequence of this jurisprudence we have, in my
judgment, totally discarded what was one of the
critical protections of American freedoms in the Bill
of Rights, the Tenth Amendment.
Well, how far back would you go in rolling it back?
Would you go so far as to say Congress shouldn’t be
legislating in the area of minority rights,
discrimination?
Congress clearly has that authority under the
Fourteenth Amendment.
But you have hesitations about relying on the
Fourteenth Amendment.
Not in terms of protecting minorities against
discrimination. The only place where I have
hesitation is when you say that the Fourteenth
Amendment extends all parts of the Federal
Constitution to the states as opposed to recognizing
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that the Fourteenth Amendment prohibited discrimination across the board.
Even based on disabilities as opposed to race? Which
nobody thought about?
That requires an assessment of the scope of the class
protected from discrimination by the Amendment and
also of the nature of the discrimination. But if
required to guess, I would say that is state business.
So in other words – I’m just looking, exploring the
limits of this – we are talking about the American
Disability Act. It’s hard to rely on the Fourteenth
Amendment if you are looking at the Fourteenth
Amendment for what it was designed to do, and if you
can’t rely on commerce, you would really say that it
was up to the states.
Sure. And I think if you did return to a more
restricted view of the scope of Congress’s authority,
we would have far better government at the national
level. Congress would once again have the time to
think through those things that are necessarily
national.
Well, they are not doing a very good job.
They can’t. They don’t have time to. A couple of
years ago, a researcher accompanied a member of the
House of Representatives for an entire week and
concluded that he had no more than 15 minutes during
the typical day for uninterrupted, consecutive
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thought, for reflection. It has become an impossible
job.
As they are proving every single day. I know you have
a very strong religious background and religious sense
– do you think that’s had an impact on your judicial
philosophy?
It is more accurate to say that I am not a religious
person but that I take religion very seriously. As an
institution. I am utterly persuaded that the framers
of the Constitution never intended to exclude
religious perspectives from public life, contrary to
what so many are suggesting today. If you read the
writings of the founding generation, you can’t help
but be struck by what they saw as the relationship
between religion and freedom. They believed that
freedom depended on the exercise of self-control by
moral people, and that morality in turn depended on
religion. They would have been shocked by the idea
that the state should not be hospitable to religion so
long as it established none. Now what was the
question you asked me?
You are answering it. The impact of your religious
views.
Has religion affected the way I have conducted myself
as a judge? I don’t believe it has, although I could
be fooling myself. As it happens, I have written an
article on the place of religion in public life. For
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the reasons I have just recited, I say in it that it
is entirely proper for a member of Congress or a
president to take his religious beliefs into account
when formulating public policy. At the same time I
say it is improper for a judge to take his own
religious beliefs into account because a judge’s sole
responsibility is to interpret and apply the law in a
manner that is faithful to the intentions of those who
had the authority to write it. I did mention an
exception. Judges were quite free to take into
account the hell fire that awaits those who violate
their oaths.
You are in remarkably unusual circumstances. You have
been in all three branches of government. Looking
back, which was, which is the most fun?
The Senate was, although it was becoming less and less
fun because of the increasing difficulty of finding
the time for serious legislative work, the work for
which a Senator is elected. In fact, I had privately
determined that had I been reelected in 1976, I would
not have gone for a third term. Another six years
would have allowed me to accomplish whatever I was
able to accomplish in areas that most concerned me. I
have the feeling, however, that for anyone interested
in the formulation of public policy, there could not
have been a more glorious job in the world than to be
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a United States Senator at any time from the founding
of the Republic until relatively recently.
Is that because during that period there was less
media attention, less other things going on, you would
have had an opportunity to focus on public policy
issues and make decisions based on how you felt about
them where now it is difficult to do that? You think
that’s right?
The principal difference between the days when the
Senate earned the title of the world’s greatest
deliberative body and the present is that in earlier
days, the federal government concerned itself with
relatively few areas of concern, namely those
reasonably related to the powers enumerated in Article
I of the Constitution. [TAPE 21 Each one of these
involved functions that, in the judgment of the
Founders, could only be effectively handled at the
national level. Even through the New Deal days,
Congress would usually meet for no more than seven or
eight months a year, and it had the leisure to
concentrate full attention on the half dozen questions
at hand. Those were the days when the Senate could be
compared to a club because its members had the time to
get to know one another on an intimate basis and to
carry out important business in a civil and unhurried
way. Even in these far more complex times, if
Congress were to limit itself to just those concerns
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that cannot be handled effectively at the state or
local level, you could close down three quarters of
the United States Government, beginning with the
Departments of Human Resources and Education. Keep in
mind that in 1946, at the close of World War 11, the
United States Code consisted of just three volumes,
exclusive of index and tables, and that includes all
the New Deal legislation. Today there are 25 volumes
of federal laws that are implemented by over 150
volumes of fine print regulatory marching orders.
They affect just about every individual and every
activity in the country. As a consequence, everyone
with a problem brings it to his representatives in
Washington, further crowding out time for serious
legislative work. I think I told you about the New
York City Bar Association Study that concluded that
the workload of the average congressional office had
doubled every five years beginning in 1935. When I
was elected in 1970, the incoming senator from Ohio
was Robert Taft. It happens that I spent the morning
of December 8, 1941, the day after the day that will
live in infamy, in the Senate office of his father,
Robert Alfonso Taft, also of Ohio. I had arrived
there with his nephew and another college classmate
hoping to get a pass to hear Roosevelt call for a
declaration of war. Senator Taft couldn’t accommodate
us, but he did offer to have Mrs. Taft take us to a
room off the Senate chambers where we could listen to
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Roosevelt on a portable radio. So to pass the time,
we sorted the Senator’s mail. I recall that there
were 1% bags of mail and two rooms in his office
suite. I asked his son how many rooms he had and how
much mail he received on average. The answer was five
rooms and 12 bags of mail.
Three rooms just for mail is what they do now.
There has been a vast change in the institution in
just the past few decades. Every morning in the
Senate the leadership gets unanimous consent to waive
two rules. One requires the reading, essentially, of
the prior day’s Congressional Record and the other
prohibits the conduct of committee work when there is
action on the floor of the Senate. These rules must
be waived for all the obvious reasons. I once asked
the parliamentarian when the rule about committee work
began to be invoked as a matter of routine and he said
it was in the early 50’s. Before that, senators would
be on hand to listen to debates as a matter of course.
NOW, the floor is largely empty because committees are
constantly having to meet to process the mountains of
bills generated on Capitol Hill. That, incidentally,
has affected my view of the utility of legislative
history. The great majority of those who vote on
bills never hear them debated.
You assume they all read the Congressional Record when
they were at home. They read it to their children
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before they went to bed. Let me ask you for a minute
about writing a book. You wrote “If Men were Angelst1
a number of years ago, although I did not write down
the dates. Tell me what inspired you to write that
book.
An offer from a publisher. I thought that it could be
done by assembling a bunch of my Senate speeches and
articles and splicing them together. I tried that,
but it didn’t work; and so I had to go back to the
drawing board. It was a hideous experience. I am a
very slow writer. So never again.
Do you think your views have changed since then?
About writing a book?
No. About what you expressed there. I must say I
didn’t read the whole book, but I looked through it;
and it seems to be consistent with your current
philosophy of government. Think that’s right?
Yes.
So you don’t need to write another book.
But I suppose I could expand on certain parts of it
now that I have served in the other two branches of
government.
NOW, because I read “In the Loop” carefully every day,
I did read that you had announced that you were
thinking of retiring at the end of the year.
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No. What I said was that it was possible that I would
take senior status. There is a difference. The court
schedules its work over a year in advance. I am
currently set down for sittings into May of 1997.
Because of the uncertainty as to whether or when the
Mikva vacancy will be filled, the court has had to
prepare two alternative schedules, one for an 11-judge
court and another for a 12-judge court. Because it is
possible that I will take senior status, I thought it
a courtesy to advise the court managers that they
should be considering a 10-judge alternative as well.
Do you think you’ll do that – take senior status?
I am thinking about it very seriously. I haven’t made
a precise decision yet.
Are you ready to try something a little less? I take
it that what senior status means is that your case
load will be reduced and you could do some other
things with your life.
Yes. Such as reading books instead of listening to
them on tape.
But not writing them.
Not writing them. I might write an article or two – I
don’t know. Who knows. I must confess that I find
the prospect of some leisure time more and more
appealing as my actuarial horizon diminishes.
Any pressures from home in that respect?
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No pressures whatsoever with respect to any of the
exotic things I have undertaken, but I know that my
wife would not be disappointed.
As you look back over all the things you have done,
which were not as some people would have thought
planned out from day one, do you have any regrets in
particular?
In terms of activity? I’ve got the standard regret of
workaholics that I didn’t spend more time with my
children.
That is the standard regret, right?
Right.
Anything else?
Not regrets, no. I have had a strange life, utterly
unplanned at just about every stage. I do have a
regret. I regret that I don’t have a memory that
would enable me, when on a rocking chair in a nursing
home, to recapture all of the things I have been
exposed to. I just can’t do it. Occasionally I bump
into somebody from college who says, ”Oh, do you
remember such and such?” and I find I have totally
forgotten some fascinating experiences. Or my
children will say, “DO you remember such and such?11
and I have totally forgotten the incident they are
referring to.
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You are probably very sympathetic on the bench when
you hear about witnesses who can’t remember. Well,
your life has been as you’ve described it over these
last five sessions: interesting, varied and
unplanned. That is the way you have described it.
You did not set out either to be a judge or to be a
senator in any particular way. I’m not even sure you
set out to be a lawyer at any point really.
I set out to be a lawyer.
Well you did go to law school.
My intention was to be a country lawyer which would be
a life of 100% law.
And 100% different than what you in fact did with your
law career. So what do you see ahead for yourself?
Ultimately, it is a question of timing. Yes, I will
take senior status. You have heard about the income
tax tail wagging the taxpayer. My wife is frantic
right now because we are moving simultaneously from
our home in Washington to an apartment in Bethesda and
a house in Connecticut. Where does Internal Revenue
come into this? We knew we would ultimately retire to
a town in Connecticut where I grew up and where we
raised our children. A house came on the market that
met all of our specifications. Because the village is
so small – about 2500 people – years could go by
before another would be on the market. So we grabbed
it and placed it on the rental market. The magic two237
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year period expires next month when we have to sell
our existing home in order to take advantage of the
capital gain rollover. So we placed our Washington
house on the market last fall and managed to sell it
almost immediately.
Did that have any impact on the timing of your
announcement that you might take senior status?
Yes, it has. That and the fact that I am shortly
going to be 73 and want to see more of my children.
Also, there are places I haven’t seen yet that I would
like to see.
Have you been to France to see your granddaughter? Is
it a granddaughter or grandson?
Grandson. We have made a point of going there at
least every other year. We were last there in July of
1994. It was just awful.
Crowded, hot?
Crowded, very hot, and no air cond
event, our ultimate goal is for me
judge with a lot of spare time.
tioning. In any
to be a senior
Sounds pretty good; wouldn’t be a bad thing to do. As
you look ahead for this court or for the political
system in this country, are you optimistic – do you
think things will get better, will they change? What
do you think?
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They will certainly change. It will undoubtedly
surprise you to learn that I found much in the
election of 1994 to give hope. As for the future, I
have had a stock speech since my late Senate days
which I update and deliver periodically. It is
called “Overloading the Federal Horse.” It catalogs
the gridlock that has been overtaking both the
legislative and executive branches, underscores the
philosophical virtues of assigning government
responsibilities to the lowest levels of government
competent to handle them, and ends with the
suggestion that the gridlock may reach a point where
necessity, if not philosophy, will force a return to
something like the federalism we once enjoyed. The
underlying themes of the 1994 congressional campaigns
suggest that this thought is not entirely wild.
Well, thank you very much. I think that is the exact
right note on which to end this interview.
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Attachment A
REFLECTIONS ON THE OATH OF OFFICE
by Honorable James L. Buckley
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Reflections on the Oath of Office
, by James L. Buckley
We are all familiar with that rite of passage in which an
individual who has been elected or appointed to public office is
asked to swear that he will defend the Constitution against all
enemies, foreign and domestic. At the instant that he utters the
magic words, If1 do,” that individual is vested with the powers of
his new office, and his friends uncork the champagne in
celebration. But even though that oath is required by the
Constitution, I suspect that few give any thought to its
implications in the larger constitutional scheme.
The requirement of an oath is to be found in the first part
the third clause of Article VI, which reads as follows:
of
The Senators and Representatives … and the Members of
the several State Legislatures, and all executive and judic a1
officers, both of the United States and the several States,
shall be bound by Oath or Affirmation, to support this Consti- tution-.
The balance of that clause provides that “no religious Test shall
ever be required as a Qualification to any Office or public Trust
under the United States.”
I began to consider the implications of the oath two years ago
when I was asked to participate in a symposium on “The Catholic
Public Servant.”
current congressman, it was obvious that I was expected to focus my
remarks on the role and responsibilities of a Catholic judge. And
because of the lamentable tendency these days to view members of
As I was teamed with a former governor and a
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the Supreme Court as philosopher kings who are authorized to write
policy into law, I felt it necessary ,to focus on constitutional
fundamentals.
It should be noted that the third clause of Article VI is the
only provision of the original Constitution that applies to all
three branches of government; the only one that binds both state
and federal officials. So it should be obvious that the Founders
intended the oath to serve more than a ceremonial purpose. They
were launching an extraordinary experiment in governance, and they
knew it would work only if every public officer in their new
Republic were to bind himself to make it work. To this end, they
consciously enlisted the power of religion to ensure fidelity to
the Constitution. James Madison, in fact, was to comment on the
seeming paradox that such a requirement should appear in the same
clause as the provision abolishing religious qualifications for
public office. As he wrote in October of 1787, “Is not a religious
test … involved in the oath itself?”
It doesn’t speak well of our age that we must remind ourselves
that the special power of an oath derives from the fact that in it
we ask God to bear witness to the promises we make with the
implicit expectation that He will hold us accountable for the
manner in which we live up to them. This understanding of the
meaning of an oath is as ancient as our civilization. Edward
Gibbon made the point in a wry passage on the role of religion in
the Roman Empire:
The various modes of worship, which prevailed in the Roman
world, were all considered by the people, as equally true; by
the philosopher, as equally false; and by the magistrate, as
equally useful. … The magistrates could not be actuated by
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a blind, though honest bigotry, since the magistrates were
themselves philosophers. … [But tlhey knew and valued the
advantages of religion, as it is connected with civil
government’. … [A]nd they respected as the firmest bond of
society, the useful persuasion that, either in this or in a
future life, the crime of perjury is most assuredly punished
by the avenging gods.
Like the Roman magistrates, the Founders of the American
Republic took conscious advantage of this tluseful persuasionut to
further the interests of their new nation; but unlike those
magistrates, the Founders believed in both the religious nature of
the oath and in the sanctions that await those who break a promise
made to God. In his Farewell Address, George Washington would ask,
Where is the security for property, for reputation, for life, if
the sense of religious obligation desert the oaths…?I1 And in his
diary, John Adams acknowledged his terror at the thought of eternal
punishment should he ever betray his conscience and his God in
order to secure political advantage.
What, then, are the implications of the oath that all public
officers are required to take? What obligations does it impose on
them? The answer, of course, lies in the words to which they have
been asked to swear. These have been set by statute; and although
the exact language will vary depending on the office being assumed,
they all require that the prospective officials swear or affirm
that they will support the Constitution of the United States and
faithfully discharge the duties of the offices upon which they are
about to enter. This undertaking demands that they determine as
best they can exactly what it is their offices require of them, and
what limits have been placed by law on their authority; having done
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so, they live under a continuing duty to meet those standards and
to respect those limitations to the best of their abilities.
In my remarks to the symposium, I observed that the nature of
a public officer’s responsibilities will determine what role, if
any, that religious convictions may legitimately play in his
official work. I acknowledged that there are those today who will
construe the First Amendment to require that public servants ignore
their own religious beliefs when discharging their public duties,
but suggested that this position demonstrates a profound ignorance
I of both the Constitution and human nature. Which brings me to the
second part of clause 3 of Article VI, namely, its prohibition of
religious qualifications for public office. This provision, of
course, merely ensures that positions of authority in the federal
and state governments will be open to persons, and therefore to
influences, of every faith, and of none.
The Founders were not afraid of religion. To the contrary,
they thought it essential to the success of their fledgling government . Because the Founders understood the links between religion
and virtue and responsible citizenship, they emphasized throughout
their writings that the Republic’s survival, and the liberties it
was intended to protect, ultimately depended on the morality of its
citizens. In sum, we live in a society in which the importance of
religion has always been recognized; and while the First Amendment
forbids laws “respecting an establishment of religion, It it has
never required that the state be isolated from exposure to religious influences.
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Thus, as I understand our constitutional arrangements,
a President and members of Congress need never apologize for the
fact that their views or votes may reflect their religious beliefs.
As members of the elected branches of government, they are expected
to engage in the formulation of public policy; and it is, quite
simply, fatuous to suppose that they can check the religious
components of their convictions at the door before entering the
council chambers of government. The role of federal judges,
however, is of a significantly different kind. As unelected
officials, they can claim no mandate to reconstruct public policy.
Rather, their constitutional duties are exclusively judicial. It
is their job to give force and effect to the law, whether they
agree with it or not; and that, I assure you, is responsibility
enough.
,
I explained to my Catholic audience that in taking office, I
had sworn to Itadminister justice … according to the best of my
abilities and understanding, agreeably to the Constitution and laws
of the United States.” I then proceeded to describe this federal
appellate judge’s understanding of the nature and limits of his
authority, more or less as follows. I said that the authority that
was vested in me upon taking that oath is derived exclusively from
the Constitution. Thus the justice I am sworn to administer as an
appellate judge is not justice as I might see it in a particular
case, but justice as it is defined by the Constitution and laws and
legal traditions of the United States. And if I consciously
deviate from that body of law to do justice as I see it, I violate
my oath of office and undermine the constitutional safeguards
,245-
-6- . embodied in the Separation of Powers. I acknowledged, of course,
that a judge is no more relieved of moral responsibility for his
work than anyone else in either private or public life. My duty as
a federal judge, however, is to be measured by the requirements of
my office. I cannot act as the impartial arbiter of the law unless
1 am willing to apply it.
I recognized that when it came to interpreting the Constitution, there existed a body of respected opinion that viewed that
document, its nuts-and-bolts provisions aside, as essentially a
depository of principles that each generation of jurists is at
liberty to adapt to the exigencies of the times. I noted, however,
that whatever the merits of that school of thought, I felt my own
reliance on original meaning not only sounder in principle, but
better designed to narrow the occasions for the ultimate judicial
sin: the abuse of power. It ought to be clear, I suggested, that
in a polity based on the rule of law, federal judges have no
license to insert their own views of what is right or appropriate
into the Constitution and statutes they are sworn to apply. To put
it bluntly, no federal judge, however wise, has the moral authority
or political competence to write the laws for a self-governing
people; and no American should wish it otherwise. The federal
judiciary is recruited from the ranks of a professional elite, and
at the appellate level at least, it is isolated from the rough and
tumble of everyday life.
I ended my talk by suggesting that while it is improper for
any judge to use his position to smuggle religious doctrines into
the law, the law may well benefit from a religious judge’s approach