HONORABLE JOHN M. FERREN
Oral History Project
The Historical Society of the District of Columbia Circuit

Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
HONORABLE JOHN M. FERREN
Interviews conducted by: Robert H. Kapp. Esq.
September 19 and October 26, 2001
January 8, February 5, and March 7, 2002
March 11, 2003

ORAL HISTORY OF THE HONORABLE JOHN M. FERREN
TABLE OF CONTENTS
Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
Honorable John M. Ferren.. ………………………………………………………………………….. iii
Robert H. Kapp, Esq.. …………………………………………………………………………………. vii
Oral History Transcripts of Interviews
September 19, 2001 ……………………………………………………………………………………….1
October 26, 2001 ………………………………………………………………………………………….26
January 8, 2002 ……………………………………………………………………………………………55
February 5, 2002 ………………………………………………………………………………………….88
March 7, 2002 ……………………………………………………………………………………………128
March 11, 2003 ………………………………………………………………………………………….170
Addendum to Oral History of John M. Ferren ………………………………………………..195
Addendum #2 to Oral History of John M. Ferren ……………………………………………196
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
Honorable John M. Ferren ………………………………………………………………………..C-1
Robert H. Kapp. Esq ………………………………………………………………………………. D-1
List of Law Clerks 1977-1997 …………………………………………………………………………….. E-1

NOTE
The following pages record interviews conducted on the dates indicated. The interviews were
recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded
an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to,
the Oral History Agreements included herewith.
© 2023 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 of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the
Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer
attorneys who are trained by the Society. Before donating the oral history to the Society, both
the subject of the history and the interviewer have had an opportunity to review and edit the
transcripts.
Indexed transcripts of the oral histories and related documents are available in the
Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of
the Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on
the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most
interviews, as well as electronic versions of the transcripts, are in the custody of the Society.

Interviewee Oral Historlr Aereement
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,
John M. Ferren, except as otherwise provided herein and in Schedule B attached
hereto, do hereby grant and convey 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.
All copies of the tapes and transcripts are subject to the same restrictions, herein
provided.
2.
Schedule B hereto.
The foregoing transfer is subject to any exceptions specified in
3. I also reserve the right to use the tapes and transcripts and
their content as a resource for any book, pamphlet, article or other writing of which
I am an author or co-author.
4. I authorize the Society, subject to any exceptions in Schedule B
attached hereto, 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.
k I o of
of Interviewee te
SWORN TO AND SUBSCRIBED before me this et day of ztc4
otary Public
My Commission expires
ACCEPTED this I {^
day of ]).;’.,…L, ‘ 200{, by Stephen J. Pollak,
President of the Historical Society of the District of Columbia Circuit.
\\\DC – 70024/0430 – 2026553 vr
Step
Historical Society of the District of Columbia Circuit
Schedule A
Tape recordings and transcript resulting from seven interviews
conducted by Robert H. Kapp on the following dates:
September 19, 2001 1 Tape 26 pages (pp. 1-26)
October 26,2007 l Tape 27 pages (pp. 27-53)
Januar:y 8,20A2 1 Tape 32 pases (pp. 54-85)
February 5,2A02 1 Tape 25 pages (pp. 86-110)
March 7,2002 l Tape 11 pages (pp. 111-121)
February 13, 2003 2 Tapes 33 pages bp.l22-I5a)
March 11, 2003 l Tape 24pages (pp. 155-178)
\\\DC – 70024/0430.2026553 v1
November 30, 2004
Schedule B
Exceptions to Oral History Agreement
The following provisions limit the use of the oral history of John M. Ferren
1. The entire tape and transcript shall not be made available to any person
without my express written permission until January 2,2025.
2. ! reserve the right to use the tapes and transcripts and their content as a
resource for any book, pamphlet, article or other writing, including speeches, of which I
am an author or co-author. This reservation shall include such use by my wife, my
children, my stepchildren, and my grandchildren (including grandchildren by marriage)
with my express written permission or, in the event of my incapacity or death, with the
express written permission of Linda J. Ferren (or, in the event of her incapacity or
death, with the permission of the Society pursuant to the terms of paragraphs 3, 5, and
6 of this document).
3. ln the event of my incapacity, I designate my wife, Linda J. Ferren of 6302 30th
Street, N.W., Washington, D.C. 20015, to make decisions related to the use of my oral
history interview during my lifetime. Upon the death or incapacity of this designee
during my lifetime, I authorize the Society to make such decisions on my behalf in the
event of my continuing incapacity.
4. I further reserve the right – including the right of Linda J. Ferren (but not the
Society) in the event of my incapacity – to rescind or amend any of the foregoing
restrictions during my lifetime.
5. ln the event that ! die before January 2,2025,1 designate Linda J. Ferren to
make decisions related to the use of my oral history interview before that date. ln the
event that this designee dies or becomes incapacitated before January 2,2025, the
Society is not authorized to make the transcript available to anyone – other than my
children and grandchildren (including grandchildren by marriage) – before that date.
6. ln addition to the foregoing restrictions, the tape recordings shall never be
made available to anyone other than myself, my wife, my children, my stepchildren, my
grandchildren (including grandchildren by marriage), and the Society (whose use shall
be limited to storage or destruction only).
h1^ n M. Ferren
[/ay 26, 2023
Pursuant to paragraph 4 of Schedule B of my Oral History Agreement
with the Historical Society of the District of Columbia Circuit dated
November 30, 2004,1 hereby rescind paragraphs 1 and 5 of said Schedule
B, thereby removing the limitations in those paragraphs precluding
availability of my oral history to anyone aside from my family members until
January 2,2025.
It is therefore my intention to authorize the said Historical Society to
publicize my oral history, including amendments, whenever it wishes to do
so.
/4. ZA z3
J n [Vl. Ferren, lnterviewee Date
d/r/zs Accepted:
Ja
Date
cap, lll, President, cal Society of the D.C. Circuit
Rescission of Exceptions 1 and 5 in Schedule B of Mv Oral History
Agreement

 

ORAL HISTORY OF THE HONORABLE JOHN FERREN
First Interview
September 19, 2001
This interview is being conducted on behalf of the Oral History Project of the District of
Columbia Circuit Court. The interviewee is John M. Ferren. The interviewer is Robert H. Kapp.
The interview took place at the offices of Hogan & Hartson L.L.P. on the 19th day of September
2001, shortly after noon. This is the first interview.
Mr. Kapp: John. Would you just state your full name please?
Judge Ferren: Yes, it’s John Maxwell Ferren.
Mr. Kapp: And can you give me the date and place of your birth?
Judge Ferren: July 21, 1937, in Kansas City, Missouri.
Mr. Kapp: John. Can you tell me something about your ancestral background here?
Judge Ferren: Yes. My mother’s parents both were from Sweden. I don’t know when they came
over to this country. My father’s family had been in this country for a number of
generations; as far as I am aware, they all came from England, Scotland, Ireland.
Mr. Kapp: Just talking about your mother’s side of the family for a moment here. Do you
have any sense of where they settled and what their life was like when they
arrived here?
Judge Ferren: I think that they both went directly to Iowa; or perhaps my grandmother went to
Nebraska and then ended up in Iowa. I think my grandmother Hansen, born Alma
Johnson, was a half dozen or so years older than my grandfather, who was Carl
Gustav Hansen- they called him Gus. And they ended up in a little town in
southeast Iowa, in Van Buren County, named “Bonaparte,” as in Napoleon- in
fact, it was named after him -on the Des Moines River. My grandfather eventually
was manager of the Fairfield Glove Factory operation in Bonaparte, and my
2
mother actually grew up in the glove factory with her two sisters. My mother was
born in 1907 and went to school in Bonaparte and then to college at Parsons
College in Van Buren County – in Fairfield – Iowa.
Mr. Kapp: Is your mother still alive?
Judge Ferren: No. My mom died in 1988.
Mr. Kapp: And then what about on your father’s side? Do you know anything about their
geography and their occupational backgrounds?
Judge Ferren: They also were from Iowa. My dad’s mother was one of 10 sisters who had one
brother- who died early. And those daughters were spaced out so that, I think, my
father’s sister is actually older than some of his aunts, since my dad’s mom, Edith,
was about the third or fourth oldest of the ten. They all grew up in a little town,
Leon, Iowa, in south- central Iowa, Decatur County. I believe that several
generations back, one of the Ferrens was a sheriff from Appaloosa County, Iowa.
He was well known for having hanged somebody called “Hinkel,” who ran a gang
in the 19th century. My grandmother’s side was a family called “Waight.” Her
father was the town doctor in Leon. All these daughters, or most of them, came
back with their husbands to live in Leon. My father told me that, when he was
growing up, he was obliged to take his older cousins to dances if they didn’t have
a date. My grandfather, William Alvah Ferren, worked in the bank in Leon, and
there is quite a story about him I learned the day I buried my father in December
of 1987. His father- my grandfather-had been in prison. When you’re a
Midwesterner and you are from Iowa, secrets prevail. My grandfather’s
imprisonment told me everything about my father, who, I belatedly learned, had
3
not grown up with a father. My dad was a fairly passive gentleman- a decent Godfearing
elder of the Presbyterian Church, but not a terribly assertive individual.
The story of my grandfather’s imprisonment taught me a lot about my own father.
One of my projects is to find out exactly what he was convicted of and why he
was put in prison. I know some of the details, but it will be a fascinating story and
maybe I’ll write it up some day.
Mr. Kapp: Well, tell me what it is that you do know about it.
Judge Ferren: My grandfather, who I believe was born in 1867, came from Corydon, Iowa. He
was a graduate of the University of Iowa. He held the Iowa state college standing
broad jump record in the late 1890s and played on the football team (although he
was a little wiry guy). He also was in the literary society. So he was a fairly
accomplished fellow. After marrying my grandmother, he moved with her to Leon
and was hired by the local banker. Apparently, one of his brothers-in-law came to
him and said, “Al” (from his middle name, Alvah), I need a loan, fast. My
grandfather, I am told, knew he had no authority to make loans to anybody
without permission but nonetheless trusted his brother-in-law to get the money
back. The brother-in-law, however, ran off to California with the money, leaving
his wife in Leon and my grandfather holding the bag. Apparently, the local banker
felt very strongly that my grandfather should be prosecuted and get jail time. Even
for this first offense, therefore, he apparently went off to prison for two or more
years. According to my dad’s cousin Frances, Dad was not allowed to visit his
father in jail. There was so much shame. Apparently, my grandmother turned on
him. She wouldn’t divorce him but, at the same time, wouldn’t let him back in the
4
house after he left prison. He took an accounting job in West Virginia. He lived
out there, sent home money that eventually sent my dad and his brother, Bill, to
Parsons College. My aunt Freda didn’t go to college but she received money from
her father as well. He would come to Leon, I am told, once a year to see
everybody. My grandmother would make him stay upstairs in an attic room and
even eat up there, apart from the family. Apparently he put up with it. I have this
wonderful fantasy that, when he was out in West Virginia, he started an entirely
new family and had a happy life – and that someday I’ll discover stepcousins (or
whatever). I am not sure where my grandfather was tried and convicted. I’m going
back to Leon someday, or will call the Decatur County Historical Society, to see if
I can learn something about what happened. I think the trial occurred a few
months before my father was born, in 1906.
Mr. Kapp: And you learned of it, tell me of the circumstances of your learning about it.
Judge Ferren: I learned about it in the strangest way. In late 1987, my sister, Anne, and I knew
that both our parents were going to die soon at about the same time. My dad had
Alzheimer’s disease and my mother had bone cancer. We went out to their
retirement home in Evanston, Illinois, where Anne and I grew up after Kansas
City. We were trying to figure out what to do with their belongings. We looked
around their bedroom, and there were all these pictures on the wall of my mother’s
mother and father, grandfather and grandmother Hansen, and of my dad’s mother,
my grandmother Edith. There was no picture of grandfather Ferren, who died
when I was a baby. I saw a snapshot of him holding me in Kansas City when I
was one-year old, the year he died. We’d asked about him from time to time, but
5
we were told very little. Because he never had been part of our lives, we had not
pushed for more. In any event, when we were together in Evanston, I said to my
sister, we have got to learn more about our grandfather. Well, within days of that
conversation, my father died, at age 81. The day we were to bury him, there was a
snowstorm. My great-aunt Frances, who was my dad’s favorite cousin and who
must have been about 85 at the time, was going to drive over to the burial. I called
her up and I said, “Frances, don’t bother.” We weren’t going to have a funeral at
the time; we were going to have a joint funeral for my mom and dad as soon as
Mom died, which we’d been told would be days away. (As it turned out, my
mother died the following March; I felt bad that we’d not had an earlier service for
Dad.) In any event, I talked Frances out of coming to Dad’s burial but asked her
over the phone, “By the way, what can you tell me about Grandfather Ferren?”
She replied, “You mean Uncle Al?” (I had never heard him called that before.)
There was a long silence, and I said, “What’s the matter?”, and she said, “Well,
your parents never told you?” And I said, “I don’t know what you’re talking
about.” She said, “Well I’m not sure I should tell you,” and I said, “Frances, come
off it.” I then egged her into telling me the story that I have just related.
Mr. Kapp: Were these towns that your grandparents lived in, in Iowa and that your parents
were brought up in, were they agricultural communities basically?
Judge Ferren: Yes. Leon was the bigger of the two. It was the county seat. I suspect that Leon
must have been in the neighborhood of a thousand or twelve hundred people.
Aside from the glove factory, Bonaparte was a farm town. The local mill was
6
there. The rendering plant was just outside town. Bonaparte had about 600 people
when my mother was growing up.
I well remember spending time in Bonaparte in particular. When I was a
child, we’d go there for summer vacations. I’d enjoy playing in the glove factory,
especially hide and seek – and pool; and I’d go fishing with a bamboo pole on the
Des Moines River with my Grandpa Gus. We’d catch catfish and have a good
time. He had a Willys Jeep that he cranked up right outside the glove factory to
drive over to the best fishing spots on the river. The roads weren’t paved in town,
and my grandfather and I would sit on the front porch of the glove factory every
afternoon about four o’clock with a hose and water down the main street so that
the dust would settle. There was running water in the glove factory residence, but
you couldn’t drink it. It was anywhere from tan to brown most of the time. We got
the drinking water across the street at the town pump. The tap water was used for
hand- washing and bathing, ugly stuff.
Bonaparte was a marvelous little town, except when the wind blew in the
wrong direction and the rendering plant sent the drift in our direction. My uncle
Les and my mother’s older sister, aunt Neko (for Winnetka), had a farm outside
Bonaparte, and I’d spend time out there with them in the summers, too. My
mother’s other sister, aunt Lillian, and uncle Buss Gardner lived in West Des
Moines, Iowa, and we’d see them there too. So I was much more closely in touch
with my mother’s side of the family than with my father’s.
My dad met my mother at Parsons College. My dad was a year older than
my mom, but he was two years ahead of her – he skipped somewhere along the
7
line. And so they met when he was a junior and she was a freshman. My dad had
an older brother, Bill, who was at Parsons College with him, and an even older
sister, Freda. I have one living relative from that generation- my uncle Bill’s wife,
aunt Patty, whom I have seen recently out in Kansas City, Kansas, where she
lives. She filled in a lot of the details about my grandfather Ferren, who died in
her arms. He and my uncle Bill became very very close, but apparently my dad
and Aunt Freda did not get together much with my grandfather. I learned from
Aunt Patty that my mother (who’s not alive to defend herself) was pretty hostile to
my grandfather. From the photos it appears that he did not attend my parents’
wedding; I infer he was not invited. My mother was pretty dominating, a selfrighteous
woman, and I think that must have had a lot to do with my not seeing
my dad’s side of the family very much. Perhaps that’s unfair speculation.
Mr. Kapp: Any other family stories that you remember about your ancestors or their coming
over here or what life was like for them, where they came from?
Judge Ferren: One more about my great-grandfather, Dr. Waight, who was the town doctor in
Leon, Iowa. Somewhere along the line I learned that his specialty was syphilis
and other venereal diseases. He apparently was known far and wide in the
Midwest. I was told that trains would come into Leon in the middle of the night
and people would get off, come to Doc Waight’s for treatment, and then get back
on the train and get out of town.
Mr. Kapp: When you did your cross-Iowa bicycle trip, which I am aware of, were you
anywhere in the region of these two towns?
8
Judge Ferren: Yes, oh yes, I’m glad you mentioned it. My son, my older son Andy and I, in 1980
and 1981, took the Des Moines Register’s Annual Great Bicycle Ride Across
Iowa- RAGBRAI- which has a different route each year. On our second
RAGBRAI, the route went through both Leon and Bonaparte. When we went
through Leon, my Aunt Freda was still alive. She stood about 4′ 10″ and drove us
to dinner one night. I’ll swear she couldn’t even see over the top of the steering
wheel, but it worked out all right. The next day we rode into Bonaparte where
some of my mother’s friends, who had heard we were coming, were waiting by
the glove factory for us. So, I was able to show Andy both towns where my
grandparents and my parents had lived.
Mr. Kapp: That must have been quite nice!
Judge Ferren: It really was. And I’ll just add that my cousins and I had a family reunion in the
summer of 2000 out in Bonaparte, which is down to about 250 people. We also
drove to Fairfield; Parsons College no longer exists. We all got together, among
other things, for Sunday dinner in what used to be the old mill and was now a
restaurant called “Bonaparte’s Retreat.” The little town is still very picturesque
and, as I say, fishing for catfish on the Des Moines River near Bonaparte with my
grandfather is one of my great memories.
Mr. Kapp: Sounds like great country.
Judge Ferren: Ah, it surely is.
Mr. Kapp: You mentioned that both of your parents attended Parsons College and met there.
Judge Ferren: Yes.
9
Mr. Kapp: Can you tell me a little bit about that; where that was and maybe what it is that
they studied there so far as you know?
Judge Ferren: Parsons was a little college of about 500 students in Fairfield, Iowa. The
property’s now owned by the Maharishi of somewhere, which has transformed
Fairfield. In any event, in those days it was a nice little college. My mother was
an English major and my father was a psychology major. Mom, I know, was May
Queen; Dad was in the glee club and appeared in plays. After college, my mother
taught high school for a year in Garden Grove, Iowa. My father earned a master’s
degree in psychology at the University of Michigan. My parents always talked of
Parsons very fondly and throughout their lives were in touch with their close
Parsons friends. I’ll go back a bit. In 1941, we moved from Kansas City, Missouri,
to Kansas City, Kansas, where my folks built a house out near Highway 50 (the
old Santa Fe Trail) in the Fairway section. We moved to Evanston, Illinois, in
1946. As it turned out, in Evanston, one of my parents’ closest friends from
college, Melvin Pearce, was the minister of the Presbyterian church in our
neighborhood. For all I know, they moved to that neighborhood because Mel
Pearce was the pastor. They were very, very churchy-type people. Not in a bad
sense; I just mean they were committed to it, and that’s where most of their closest
friendships came from. In any event, another Parsons friend was Virgil Peterson,
for years the operating director of the Chicago Crime Commission. He was in on
the Dillinger ambush. Other Parsons friends in the Chicago area were Bob
Parcells, in Naperville, Illinois, an insurance man, and Bill Miller, very high in
Standard Oil of Indiana (eventually Amoco). They all spent a lot of time together.
10
I mention occupations only to show that from this little Iowa college graduates
moved on to interesting careers. There are a lot of quality folks from Iowa.
-Mr. Kapp: Was Parsons a denominational college?
Judge Ferren: It was a Presbyterian school.
Mr. Kapp: Can you tell us something about the religious life of your parents and the extent to
which they were involved in church affairs during the period of your growing up?
Judge Ferren: Yes. From the day I can remember as a little kid, I was in one way or another
hanging out in the Presbyterian church, first at the Westport Presbyterian in
Kansas City, Missouri. I even remember the name of the minister, Dr. Beatty. And
I remember seeing my father in a church pageant at Christmastime; he was a
shepherd or one of the wise men. My dad became Clerk of the Session at
Northminster Presbyterian Church in Evanston and later joined the board of the
Presbyterian Home. My mother was active in what they call “circles” in the
Presbyterian church, women’s groups. And so: they went every Sunday and did
their part, and as a consequence I was brought to the Sunday school, even summer
Bible school when I was a little kid in Kansas City. And it stuck with me. It’s been
a part of my life ever since. My sister is eight years my junior. I don’t think she
had the same positive reaction to the experience that I have had. Despite their
Church involvement, my parents were not the kinds of persons who wore their
religion on their sleeves; they were not outspoken about it. They just happened to
believe in it and went. It was kind of a quiet part of their life, but, as I mentioned
earlier, it did provide a circle of friendships and thus social relationships as well.
11
Mr. Kapp: Is it your recollection that they communicated something to you about their
religious values and, if so, can you tell me about that?
Judge Ferren: In those days, I don’t know about these days, part of the drill in Sunday school
was to memorize a lot of Biblical texts, and I suspect that the most I learned about
religion was actually from Sunday school and memorizing, whether it was
Psalms, or New Testament lessons, or what have you. I don’t recall my parents
ever talking about religion. I mean, they never tried to talk me into it or make sure
I believed anything. My dad said grace before the evening meal and checked to be
sure I was dressed for Sunday school. I went along and, unlike most of my
friends, for some reason didn’t rebel too much. I remember feeling very strongly
that I should be out playing football or baseball on Sunday morning with my
friends after Sunday school without staying a second hour for church. But my
folks wouldn’t hear of that. There were regular arguments, and yet I guess I was
kind of the dutiful son. If I wanted to tune out during the sermon, that was my
privilege. So, what coercion there was, was very subtle and more a matter of their
own personal lifestyle and witness than anything more direct.
I regularly attended the high school youth group. called Tuxis, at
Northminster Church, where a lot of my friends came as well. And, during those
years, I also taught Sunday School – I think sixth grade boys. I made up a game,
Bible Baseball, to test the boys on the lessons. I’d divide them into two teams and
let them select easy questions – to get to first base – and hard to very hard
questions to make triples or home runs.
12
When going off to college I straightaway, on Sunday, went to the Harvard
University Memorial Church where George Buttrick was the pastor. He was a
well-known Presbyterian minister who had come to Harvard as university pastor.
Dr. Buttrick held my attention and had a profound influence on my sticking with
the church. In fact, several times a week I’d go to chapel on the mornings before
classes at Harvard, all four years. Harvard had a system where professors from all
over the University would give little homilies, not necessarily Christian, not
necessarily even religious. I enjoyed the talks and especially singing the hymns.
All this was meaningful to me, and I think that until my junior year in college, I
was very seriously considering going into the ministry. That changed. I went to
law school, and I’m glad, by the way, that I didn’t go into the ministry. I have no,
absolutely no regrets. I’m glad that something helped me see the light not to do
that. Not to put the church down; it’s just not what I would have been best suited
to do. However, upon getting out of college and law school, I ran headlong into
the civil rights movement, where religion again was a very visible force for good
in this country. The religious views I had developed were entirely consistent with
the civil rights movement.
Mr. Kapp: Would you say that religion to this day has an influence in your life?
Judge Ferren: Yes, yes. I hesitate only because I don’t know quite how to put it. Back in the
seventies, I was a deacon in the Presbyterian Church, then an elder for a couple of
terms. I got very active in the Chevy Chase Presbyterian church. I eventually
stopped being so active, and now am a less regular attender, but I still go most
Sundays, and the Christian faith is, I think, the source of how I would articulate
13
my own philosophy of life and my obligation as a person. In these days, however,
Protestantism as practiced by the outspoken evangelicals and conservatives
troubles me a lot; I mean, somebody like Jerry Falwell is very disturbing. For me,
the conservatism of the ever- expanding evangelical, fundamentalist side of
Protestantism, stressing personal salvation, entirely misses the mark, for it fails to
put first what I understand the basic message of the Christian faith to be- a call to
serve one another, to help those in need.
Mr. Kapp: Did you react to Falwell’s comments regarding the events of September 11th?
Judge Ferren: I certainly did. He saw 9/11 as God’s punishment for America’s toleration of
abortionists, feminists, gays, lesbians, and the ACLU.I was appalled and very sad.
How could anyone say such things?
Mr. Kapp: Yes.
Mr. Kapp: Well, let’s go back a bit here. Did your mother have an occupation or what were
her activities like after she left college so far as you recall?
Judge Ferren: There’s a real mystery here. After my dad got his master’s degree at Michigan in
psychology, he took a teaching job at Syracuse University, where he began to
pursue a Ph.D. in psychology. Mom and dad were married in 1929, by the way,
about two months before the crash. In Syracuse, I don’t know what my mother
did. After a couple of years there, or maybe it was longer, Dad decided he didn’t
want to teach; or he didn’t want to finish his Ph.D. In any event, they headed for
Kansas City, Missouri, with no job. Dad took a job with the Skelly Oil Company
in personnel. Between 1929 and 1937, when I was born, I haven’t a clue what my
mother did. I have always had this little fantasy that, being cautious folks, my
14
parents were afraid – given the Depression – to bring children into the world. The
economy went on an upswing, finally, in 1936, when I was conceived. In 1937,
however, when I was born, the economy tanked for the worst time since, I think,
1929. To my knowledge, my mother never had a paying job since she taught high
school back in 1928 or 1929. She was very, very active, though, in PTA, in
Evanston’s North End Mothers’ Club (whatever that was), and in the church; so I
have the impression of her as a very busy homemaker. She always called herself a
homemaker and she had what seemed to be a lot of friends, and I am sure she had
her bridge game. She was so active in the schools that eventually she was elected
(through a caucus system) to the high school board in Evanston. So her interest in
education always was very noticeable to me. Mom also played the piano
beautifully, and she started me on piano lessons when I was five. I loved piano
lessons, and I took piano all the way into junior high, when she had me taking
them at Northwestern University. Northwestern had required Saturday morning
theory classes, however, and my YMCA football team was playing then, so I said
I’m not going to give up football for the piano, and I stopped taking lessons.
Somewhere along the line, Mother stopped playing the piano. I have no
idea why. I don’t think I ever heard her play after I was in high school. Anyway,
her interest in music got me very much interested in learning to play, and later,
when I was in high school, I took popular music for a year so I could play the
chords and pick out tunes. Even today I can sit down and play fairly handily. My
father also was very musical, though not on an instrument. He sang. He never
sang in the church choir but he had a wonderful tenor voice. I remember many
15
Sundays, while singing hymns, he would sing tenor, my mother would do the alto,
and I’d sing the melody. My sister would stand there on one foot and then the
other.
Mr. Kapp: How would you describe, other than music, the influence that your mother had on
your life?
Judge Ferren: Well, she wore the proverbial pants in the family. My father, as I have said, was a
very passive, very quiet man. I now understand this. He did not have a strong man
in his life, and I think he grew up in a cloud of shame. You’ve asked about my
mother but have triggered thoughts about my dad. He was personnel director for a
number of companies; he moved from Skelly to Standard Oil in Kansas City and
then to the Vendo Company, which made vending machines for Coca-Cola. In
1946, the family moved to the Chicago area so he could work for the Stewart
Warner Corporation- which made radios and speedometers- and then the Zenith
Radio Corporation, where he ended up as director, and then vice- president, of
industrial relations. He negotiated all the union contracts for Zenith, and there
were quite a few. They were staggered over time; he always was in negotiations.
Looking back, I can’t imagine my father as a negotiator because he was such a
quiet, though meticulous fellow. But I do know that whenever the negotiations got
tough, he’d call on a Chicago lawyer named George Christensen, who usually
represented unions. Christensen was a very combative guy and Dad would call
him up and say, “George, I need you.” Christensen would come to negotiations
and sit at my father’s side. He didn’t know anything about the issues; Dad hired
him just to yell at the union. Christensen eventually would get the union
16
representatives calmed down, and then Dad would continue negotiations. My
father was so softly spoken, and he chose his words so carefully, that sometimes I
never thought he would finish a sentence. He was meticulous about everything. I
mean to watch him fix a baked potato was agonizing. He would cut it, and then
mash it, and then put the butter and the salt and the pepper on it with great care.
I could finish my whole dinner before he would even get a potato fixed.
And he talked so slowly, I could see my mother being driven crazy. So this is
perhaps not a very nice way I am putting it, but he was just a very quiet and
passive fellow. I think Mother, who won state oratorical contests as a high
schooler, was much more articulate and a more forceful personality. So, getting
back to your question, she had to have had a very big influence on me because she
was the one that normally I dealt with. I loved Dad, and we enjoyed vacations
fishing together, but he was just not the one that you would think of first in our
family.
Mr. Kapp: Would you think that he had some influence on you? And if so, what do you
think?
Judge Ferren: Well, I think of his religious influence. Every once in a while, he’d leave a little
verse of some kind on a piece of paper on my desk that would catch my attention.
I do remember that. I had great respect for him. I mean, he seemed to me to be a
very solid fellow. He seemed like a very decent man, and I rarely heard him get
angry, and then it would be the kind of anger at hitting his thumb with a hammer.
I got involved in the soap box derby as a kid and he was very supportive of that.
One time I was having a terrible time getting the front of the car put together, and
17
he spent time helping me do that. But he was not one that I would ask advice
from. I don’t think I asked advice from anybody. My mother offered advice,
however. Dad didn’t.
Mr. Kapp: Would you say either one of them communicated moral values to you in any
particular way?
Judge Ferren: My mother was a person who did kindnesses for people. I never could figure out
whether she was genuine or wanted to be perceived as somebody who was kind. I
mean, she would bake coffee cakes and give them to the garbage collectors and
take them down to the Safeway check-out people. I thought that this was a bit
much. But maybe she was really appreciative of these folks. I remember one time
the boy next-door was sick. I was about to go somewhere on my bicycle when she
said, “Here’s a quarter, would you go down to the drugstore and get Billy a
milkshake?” And so I went all the way to the drugstore. After I came back, as I
was taking the milkshake out of my bicycle basket, I accidentally turned it upside
down and smashed it in the driveway. And I didn’t mean to do that. I asked her if
she wanted me to go back and get another one. She looked disgusted with me and
said no. I remember another occasion. There was a fellow who was kind of a
misfit. He had a job at the house of someone who required him to move a lot of
furniture, and she said to him, “Jim, find a friend to help you move this furniture.”
Well, Jim didn’t have any friends. It was really sad. I barely knew him, but Mom
knew his mother. So my mother told her, “I’ll get Johnny to do it.” When she
presented the idea to me, I said, “Not on your life. I don’t even know this guy very
well.” She said this is something that you must do. Which I did, and I was very
18
glad I did. So, I guess I did learn from her because that kind of thing comes pretty
naturally to me now, and I don’t know whether it would have otherwise.
Mr. Kapp: And what about your sister, you said was eight years your junior?
Judge Ferren: Yes, yes. Anne was born in January 1945. I think I heard my folks say that they
had had a couple of miscarriages between us. Anne’s a wonderful woman. She has
four children – three sons, including twins, and a daughter – and is married to a
lawyer, John Lynagh, a very special man. They live in New York City; and she’s
been a junior-high math teacher for years and years and years.
Mr. Kapp: And she is still alive, is she? \
Judge Ferren: Yes.
Mr. Kapp: And living in the New York area?
Judge Ferren: Yes. Her full name is Elizabeth Anne, which also is my mother’s name. But we
always have called her Anne. She also grew up in Evanston, of course, went to
Evanston High School, and then went to Pembroke College, part of Brown
University. Then she earned a master’s degree at Boston University in teaching
and math education. When Anne was in high school she was voted the most
outstanding girl in the graduating class, an honor I had received as a boy when I
graduated. So our parents were proud of us both,
Mr. Kapp: Is she still teaching?
Judge Ferren: Yes, at the Collegiate School in New York City.
Mr. Kapp: She teaches at the Collegiate School?
Judge Ferren: Yes.
Mr. Kapp: She lives in Manhattan?
19
Judge Ferren: In Manhattan, yes, on the East side near the United Nations. Her husband, John
Lynagh, is with the law firm of Kelley Drye & Warren.
Mr. Kapp: Are you close to her would you say? Or how would you characterize your
relationship with her?
Judge Ferren: Well. In a way, I didn’t meet my sister until, I would say, 1967 when I was 30 and
she was 22. I say that, of course, figuratively speaking, because whenever I was
off at school, she was home, and when I came back to practice law in Chicago,
she went off to college. So we never were around together very much, and there
was this big age interval. But my family was living in Cambridge, Massachusetts,
in 1967 when she moved to Boston to get her degree at BU, followed by teaching
in Winchester, Massachusetts. As a consequence, I got to spend time with her
pretty regularly in Massachusetts. She was very fond of my children. We’ve been
very close ever since. But we did not have a growing-up together kind of
relationship because of the age difference.
Mr. Kapp: You left Kansas City at- were you about nine years old?
Judge Ferren: I was nine years old, yes.
Mr. Kapp: Do you have any recollections at all of your childhood in Kansas City?
Judge Ferren: Oh boy, do I. It felt like an idyllic childhood. We moved there to Kansas City,
Kansas, Johnson County, in 1941, just before Pearl Harbor.My folks had bought a
lot and soon built a small Cape Cod house. There were only a few houses on the
street, Chadwick Road, out near Highway 50, which is the old Santa Fe Trail.
There was a lot of vacant lot area where my friends and I could play. And there
was a wonderful creek nearby where I’d go fishing for perch. One of my greatest
20
memories is to think back and recall digging a big coffee can full of worms on
about a 98° Kansas City day, taking my bamboo pole, and heading down to the
creek to pull out perch after perch after perch. I never could throw them back, and
my folks didn’t want to eat them, so I’d bury them for fertilizer. During the war we
had victory gardens in the vacant lots. Another great memory of childhood was
planting vegetables – the peas, the beans, the carrots, the radishes, the squash. We
ate rutabaga. Swiss chard. Stuff I’ve never eaten or seen since.
The war effort required that we all collect fat, tinfoil, and kapok. There
were kapok plants all along the creek and along the road, State Park Road. So I
would collect kapok for life jackets, and I would roll the tinfoil that I’d pulled off
the backs of the Chesterfield cigarette packages – my dad was a Chesterfield
smoker. Also in a major war effort, a Jeep was parked at the Roseland School to
sell war stamps. I remember buying the green kind for 25¢ instead of the pink
ones for 10¢. And I remember air raids. We’d all go out in the hall and sit crosslegged
and put our hands over our head and lean down. There was a lot of air raid
activity, even in Kansas. In fact, there was an air base not too far from our home. I
don’t know quite where it was. But when the B-29 was new, we all went out to see
the plane. We even could go into it. Then one of those planes, either a B-29 or a
B-24, crashed right out there at the airbase. My folks drove us out to the site, and I
came home with pieces of metal from the crash. It was very sad. So World War II
had a big impact on me. I still lived in Kansas City when Franklin Roosevelt died.
I remember sitting on the curb and really being worried when he died. I vaguely
remember Pearl Harbor; I was out in the backyard in December in the snow. Mom
21
came out and asked me to come into the house. At age four, I learned about Pearl
Harbor.
I remember my father and his brother, earlier, having a very serious
conversation in our kitchen about the 1940 election. My father and his family
from Decatur County were solid Democrats, and my mother and her Van Buren
County parents were solid Republicans. I’ve heard stories that those two families
could hardly talk to each other because of their differences in politics. I think my
dad’s side all stayed Democrat, but in 1940 my father switched to Willkie. I don’t
think my dad ever voted for a Democrat for anything after 1936, and yet to his
dying day he claimed he was an Independent, which was ridiculous. My mother
was Republican and would admit it. I do recall from college on, where I became a
true-blue Democrat very very quickly, that my parents and I had very profound
political differences. I remember trying to pick a college. My folks were very
nervous about my going to Harvard, because that seemed pretty pink to them. The
only thing worse, as they saw it, was the University of Chicago. Back to
memories of Kansas City, Kansas. I had a lot of friends.
One friend from those days, David West, showed up at Harvard Law
School and sat behind me in my second-year tax class.
Mr. Kapp: Is that right?
Judge Ferren: And I remember riding his bicycle on Chadwick Road. He didn’t remember me
from Adam, which was very disappointing. In this connection, I did get a kick out
of meeting a fellow at Harvard College, Topper Johntz, who moved to my Kansas
neighborhood after I had left and inherited my third-grade girlfriend!
22
Another vivid memory of those early days in Kansas was how important
the radio shows were to everyone, including the kids. My family would listen to
Fibber McGee and Molly, Burns and Allen, Henry Aldrich, Jack Benny, Dr. IQ,
and others; I’d also listen to Cavalcade of America and This Is Your FBI. And all
of us kids, before dinnertime, would listen to Tennessee Jed, Tom Mix, Hop
Harrigan, the I, and the I. Sometimes you’d have to make tough choices between
networks at the same hour: Jack Armstrong or Captain Midnight? Radio was
wonderful, be- cause your imagination could be as vivid, if not more so, than
when some of these programs later came to television.
Mr. Kapp: Were your parents at all active politically?
Judge Ferren: No, no.
Mr. Kapp: No.
Judge Ferren: No. I don’t remember their doing anything partisan ever. The only political action
I remember was my mother’s getting exercised about an aldermanic race in
Evanston over the question whether a pit, a huge quarry-looking pit near our
home, should be filled to make a park out of it. My parents were convinced it was
going to be made into a garbage dump and it would stink. The election was
between the candidate who supported the fill on the ground, he was convinced, it
would be dry fill, and the guy who thought it was going to be garbage. My parents
supported the man who feared garbage. I remember mother making phone calls
for him. I’m glad he lost. Today there is a lovely Evanston park where that pit
used to be. I’ve flown a kite with my grandson there!
Mr. Kapp Was there conversation about politics in your home? Would you say?
23
Judge Ferren: No. There really wasn’t. If there was any, I provoked it. And I remember I got
very interested early on. The first election I really remember was in 1944. I was in
the second grade. My parents, I knew, were for Dewey. In 1948, I really got
interested. I was in Taft country, I mean I wasn’t in Dewey country. Dewey, and
later Eisenhower, people were a bit suspect in Evanston. The first television I ever
saw was at a friend’s house watching the Truman Inauguration in January 1949.
My parents were quite anti-Truman. I don’t remember what I thought then. But I
know I began to collect campaign buttons. I was a junior patrol back in 1948, and
I had my patrol belt covered with campaign buttons. The local Republican
campaign committeeman paid me 50¢, and a whole bunch of kids 50¢, to deliver
calling cards door-to-door for Republican candidates. So I am implicated as a
Republican back when I was 11, selling my soul for the local circuit judge, or
whomever I handed out cards for. In any event, I started collecting campaign
buttons, and then during the 1948 Campaign, my friend Dave Peterson and I
began to collect autographs: Senators, Governors, Generals – MacArthur and
Eisenhower. My favorite was James Michael Curley, Mayor of Boston. And I got
Hubert Humphrey as Mayor of Minneapolis. I saw a real “comer.” I also obtained
autographs from Strom Thurmond and Fielding Wright, the Dixiecrat Ticket, as
well as Bess and Margaret Truman, Dean Acheson, Dewey, and Warren. In 1952,
Dave Peterson and I worked at the Democratic convention in Chicago. Following
up a high school social science project, I carried bushels of Georgia peaches for a
presidential candidate, Senator Richard B. Russell, to delegates’ rooms at the
Conrad Hilton. But my parents, other than making clear they were Republicans,
24
never talked politics unless I brought it up, and then we’d end up with a big
argument, and we would separate and that would be it for a while..
Mr. Kapp: Let’s just stop for a minute.
Mr. Kapp: John, can you tell me what you recall about the move from Kansas City to
Evanston and what occasioned that move? And how you felt about it?
Judge Ferren: Yes. My dad, as I mentioned, took a job with Stewart Warner Corporation. We
moved in August of 1946, driving our 1936 Plymouth with a fabric top to
Evanston. I remember arriving at our house, I was horrified. My folks were so
happy with this house, which was less of a house, because of the market, than
even the modest Cape Cod house we had in Kansas City. The modesty of the
house didn’t bother me, I didn’t even notice it really. But it was a Dutch colonial
house, and I’d only seen one of those in my life; I thought it looked like a barn.
But it was a wonderful house. It had a big backyard, a long one so we could play
ball. And it had a great tree I could climb. I enjoyed my new school – the Frances
Willard School, naturally, because it was in Evanston, the home of temperance
and then still a dry town. But the great thing about moving was that, first of all, I
could join a swimming program at the YMCA. In Kansas, about the only water I
saw was a sprinkler in the backyard on a hot day or a wading pool at Swope Park
in Kansas City, Missouri. I’d never learned to swim, so I took swimming lessons
at the Y at age nine with two best buddies, Gary and Jiggy. A polio epidemic hit
and one of the three of us, Gary Geiger, died. It was a profoundly sad time for
me. You can just imagine when three go swimming and one of you ends up dead,
it gives you pause, especially if you’re only nine years old. I’ve never forgotten
25
this. The epidemic also hit the high school swimming team. One fellow was in an
iron lung for the rest of his life; others were hurt, too. It was a terrible time. On
the upside, I was thrilled to be next to a big-league baseball city. My dad never
had taken me to a Kansas City Blues game. The Blues were a Yankee farm club,
and Dad was very American league. So we started rooting for the White Sox, even
though Evanston was on the north side. Since we were closer to the Cubs,
however, we’d usually go to see the Cubs. I was thrilled by Major League
baseball, and that is still by far my favorite sport. Northwestern University was a
big plus, too, not only for piano lessons but also for Big Ten football. Later, as a
Boy Scout, I ushered at Northwestern games. So there were opportunities for a
kid moving to Evanston that were not available to me in quasi-rural Johnson
County, Kansas, even though I can’t imagine a more wonderful young boyhood
than what I remember from Kansas.
Mr. Kapp: I think this is a good time to stop……
26
ORAL HISTORY OF THE HONORABLE JOHN FERREN
Second Interview
October 26, 2001
This interview is being conducted on behalf of the Oral History Project of the District of
Columbia Circuit Court. The interviewee is John M. Ferren. The interviewer is Robert H. Kapp.
The interview took place at the offices of Hogan & Hartson L.L.P. on the 26th day of October
2001 shortly after noon. This is the second interview.
Mr. Kapp: John, the last time we were together we covered a period of your background and
then your life in Kansas City and your family’s life in Iowa. And when we left off,
we were beginning to talk about the move to Evanston. Can you tell me how old
you were at that time?
Judge Ferren: Nine years old, Bob.
Mr. Kapp: And did you attend elementary school in Evanston?
Judge Ferren: Yes. We moved to Northwest Evanston, and I attended the Frances Willard
Elementary School.
Mr. Kapp: Can you tell me a bit about your experience there; what kind of student you were?
Judge Ferren: Well, I guess I was a pretty good student. I enjoyed the school. I remember my
first teacher was Ms. Ramsey for fourth grade, and in fifth grade we had an
exchange teacher from England, Ms. Collingborn. I must have had some sort of
awakening in those years because I noticed she wore very short skirts and the
boys used to laugh about that. So we were noticing things like that in those days
at age 10, I guess. Ms. Collingborn was a very good math teacher, but she couldn’t
do much else, except she had this wonderful habit of reading to us. She read us
Treasure Island, and, in fact, she read all kinds of Robert Louis Stevenson. I was
just enchanted by her voice, and I must say that this experience got me very much
27
interested in literature. So, to this day, I remember Ms. Collingborn wearing her
short red dress, reading Treasure Island.
Mr. Kapp: And what other things were you reading? Or what were you reading, do you
remember?
Judge Ferren: Oh, the Hardy Boys. My father bought me my first Hardy Boys probably the first
year we lived in Evanston, but I started off on that series and I think read each one
as it came out. I turned that series over to my own sons and they augmented it, but
none was as good as the early Hardy Boy series.
Mr. Kapp: Do you have any particular memory of those days in elementary school?
Judge Ferren: Well, yes. First, in those days one never had to worry about safety. Even as nineyear-
olds we’d take the bus, for three cents one way, many blocks away to a
hardware store, for example, or even downtown when we got a little older. By
junior high school we were taking the bus or elevated train into Chicago, without
supervision. In later years, when friends of mine moved back to Evanston after
college, they confirmed that they’d never let their kids roam around town, let
alone go downtown, unsupervised the way we had done,
It was special, I think, that in our neighborhood in Evanston the boys and
girls played together, whether a game of kick the can outside or a Monopoly
tournament inside. Or, as new houses were being built on our block and elsewhere
close by, we’d all climb around the unfinished homes together, sometimes racing
paddlewheel boats we’d make powered by rubber bands in the water that partially
filled the basements. The universal sport was softball, played by boys and girls,
organized as “scrub” games played in the streets or vacant lots. And, in the winter
28
the parks would be frozen for ice skating, where the boys would all buy racer
skates and show off to the girls. Later we’d skate on a frozen lagoon just off Lake
Michigan. It was idyllic.
As to formal activities, I joined the Cub Scouts when I first moved to
Evanston at age nine, and I remember not getting into the den that I wanted. I had
not met many boys and was allocated to a group that I knew even less well. My
den mother, Mrs. Dieber, informed my mother that I had been acting out very
badly. I think that the transition from Kansas City to Evanston was a little bit
rocky for me. I think I acted like a jerk, and some of my peers told me I was
acting like a jerk. That had a real effect on me. I don’t think anyone before had
ever told me that I was acting goofy or that I wasn’t acceptable, and I still
remember John Murray standing outside the line going into school at the
beginning of fifth grade, and he said, “Ferren, I hope you don’t act like such a jerk
this year.” I’ve never forgotten that. And I think it had a real modification effect on
my behavior. I think I was a chastened fellow.
Another thing that I recall was the omnipresence of Northwestern
University in Evanston, Illinois. I did not live near the University, but you were
just aware of it, and I guess that was the first time I took an interest in Big Ten
football. The stadium was not far from where we lived, and my dad probably took
me to a Northwestern game. A couple of years after that, I joined the Boy Scouts
and was a Scout usher at those games. And so I enjoyed that a good deal.
I also remember that in sixth grade my friend David Peterson and I got
very much interested in collecting political autographs. This was the year of the
29
1948 election, and David and I decided to have a contest to see who could get the
most interesting political autographs. We knew that practically everybody was up
for re-election, so we wrote all the governors and got their autographs, and then
after the election, when half of them lost, we wrote the new governors and got all
their autographs. But you know, we got Harold Stassen, Arthur Vandenberg,
Dwight Eisenhower, who was head of SHAPE at the time; we got ex-President
Hoover. But my favorite, and I really aced out my friend on this one, was James
Michael Curley. He was still alive and may well have been in a federal pen at the
time- I don’t know. I wrote Curley and asked for his autograph, and I still have it
framed on the wall of my office today, where he wrote this letter, “Master John M.
Ferren,” my address- “Dear Jack, It’s always good to hear from robust young
fellows like you. Good luck to you and to all whom you love best. Yours
faithfully, James Michael Curley.” So I lucked out and remember getting very
much interested in politics at that time.
Mr. Kapp: Would you describe yourself as a leader 1n your elementary school years?
Judge Ferren: Yes. I think I was. I was a very outspoken fellow, and I wasn’t particularly
athletic, but I did play on the Cub Scout softball team with everybody else, and I
either played second base or right field, whichever was the weaker spot at the
time. I do remember that our Cub Scout team, in one of those years, was playing
for the city Cub Scout softball championship. I was playing second base; the
game was down at Boltwood Field in South Evanston. We were playing the Pack
30 Arrows. We were Pack 29. And one of the highlights of the evening was that
Bert Wilson, the voice of the Chicago Cubs, was actually broadcasting our game
30
over the loudspeaker. I’ll never forget that at the end of about the second inning,
after we had finally put out the side and started to come to bat, Bert Wilson was
saying, “the Pack 30 Arrows: 3 runs, 3 hits, and an error on the second baseman.”
Mr. Kapp: Well, you’ve mentioned your involvement in scouting In those years, and I have a
recollection that you had a rather lengthy scouting experience.
Judge Ferren: Yes, I did. I wasn’t thrilled with Cub Scouts, but for whatever reason I was
looking forward to Boy Scouts because Evanston had a wonderful summer camp –
Camp Wabaningo – up near Muskegon, Michigan. And in those days you couldn’t
become a Boy Scout until you were twelve, so I guess I had just graduated from
sixth grade. I was getting ready to enter junior high. I spent two periods at the
camp that summer and earned my tenderfoot, second class, and first-class ranks.
You could do a lot there, and I was quite ambitious to get through those ranks, and
I loved it. But camp had an extra dimension of importance to me. As I think I
mentioned earlier, I hadn’t learned to swim when I lived in Kansas City, and
although I started lessons at the YMCA when I was nine, in fourth grade, if you
will recall, I said that one of the three of us who started those lessons, Gary
Geiger, died of polio. I had not resumed swimming lessons as a result. So I went
off to scout camp not knowing how to swim. In that month that I was there, I
learned to swim. I started out as sort of a nonswimmer and ended up with my
white tag, which meant that I could swim 100 yards. I must admit I did most of it
by side stroke, but all you had to do was 100 yards without touching bottom. I’ll
jump ahead to say that this was so meaningful to me; it gave me a sense of wellbeing
that I can hardly describe, except to say that a number of years later, I was
31
on the camp staff teaching lifesaving. So scouts, more than anything else, taught
me how to swim, and, as I say, that was a life-changing experience.
Mr. Kapp: How far did you go in scouting?
Judge Ferren: I earned my Eagle rank. I just enjoyed it thoroughly. We had a very active troop in
Evanston, troop 29. And I became senior patrol leader. But I think it was the
summer camp that made the difference. I went there several summers, earned a lot
of merit badges, and learned canoeing, learned sailing, learned rowing, learned
camping. All of those skills. The staff was a wonderful group of young men and I
became a real believer in scouting. I have been with it more or less my entire life
in one way or another.
Mr. Kapp: Do you feel that in any way the experiences of scouting have affected the way
you’ve thought about things, or approached things?
Judge Ferren: Well, it must have, Bob, because, as I say, scouting has been such a part of my
life, and I know I felt very strongly that my own sons should get into it. To
support that I joined the troop committee when Andy, my older son, became a
scout and eventually became an assistant scoutmaster of Troop 52. I’m pleased to
say that Andy stuck with it all the way through, and he’s an Eagle Scout as well.
We had a good time together in Scouts, including two long canoe trips in Canada
and South Carolina that I organized for the troop. I think that scouting had a very
important effect in helping me get along with people of all kinds of backgrounds
and interests and abilities. Scouting attracts a very diverse group of people. I don’t
mean so much racially; I mean a wide-ranging group of kids who aren’t all
leaders, or who aren’t all bright. And it gives boys an opportunity to excel in
32
something. I think it gave me a real appreciation of every kind of human being. I
found myself relating to kids that I probably wouldn’t have related to in school,
where there was a lot of peer pressure to go along with the leaders or be a leader
or hang out with the best and the brightest. It’s kind of hard to articulate. But in
scouting I found myself relating to kids that found it hard, and I found myself
helping them and feeling good about that. Kids would tell me stories about their
growing up. Some of them, a few, came from Chicago; a few came from parts of
Evanston that were not as well off as the part I lived in, even though the town is a
fairly well-to-do suburb. I’m just rambling now, but as you were mentioning
scouts, I was recalling I had an appreciation of the boys and found that my
friendships could extend to just about anyone. I think that was a very good feeling
and a very good awareness that every human being has something to offer you if
you give that person a chance.
Mr. Kapp: We’re still talking about elementary school years here. I know that you’ve had a
life-long interest in music and have expressed yourself in various ways with
music. We’ll probably talk about some of that later. I wonder if you were exposed
to music during your elementary school years, or if that came later?
Judge Ferren: Well, as I mentioned last time, I had started piano lessons in Kansas City, and my
mother enrolled me when we first came to Evanston in the Evanston
Conservatory, where I took lessons from what I thought was a very good teacher.
But my mother thought she was a better piano player than piano teacher, and so
my mother enrolled me at Northwestern with Ms. Kisch. I’d go down there every
week for a piano lesson, and, as I mentioned before, we had theory lessons, music
33
theory lessons on Saturday mornings. I stuck with that right into junior high
school.
I loved playing the piano. The way they taught you piano in those days
was to give you music that had classical themes, and so I would play themes from
symphonies on the piano. That actually began as early as Kansas City. So I
developed a strong interest in classical music. I remember going to downtown
Evanston to the Norman Ross music store where they had these wonderful booths
where you would go in, they would give you any record you wanted, and you
could listen to it to decide whether you wanted to buy it. I can’t imagine how
many records were scratched by precocious kids who went in and played them.
But whenever my mother wanted to give me a little present, she would say, “Go
and buy yourself a record.” I remember the first record I bought down there was
Brahms’ “Second Piano Concerto.” And I bought Strauss’ “Estudiantina Waltz”
and “The Magic Flute Overture” by Mozart. I did this by randomly picking up
classical albums. I kept playing the piano well through my junior high years until
music theory on Saturdays conflicted with my YMCA club football games. So I
quit the lessons but kept playing the piano.
Mr. Kapp: Do you still play to this day?
Judge Ferren: I do. When I was a junior in high school, I was envious of friends who could play
popular music – who knew the chord system and could just sit down and play. So I
took a year’s worth of popular music once a week from Lloyd Norian, who
showed me chording. That was a real breakthrough, and now I mostly play that
34
kind of music, except when Linda and I try to plunk out duets of Scott Joplin rags
and have fun doing that.
I’m reminded, in talking about music, that I played the piano in the Willard
School orchestra and in sixth grade took up the tuba. That spring the orchestra
featured a piece that included a solo for Eddie Schwer on the clarinet,
accompanied by my oom-pahs. I got through the number nicely, but that was, I
think, the last time I played the tuba.
I should add that another major influence during these years was the
YMCA. The year after Gary died, I resumed activity at the Y, which organized
boys into clubs with a counselor, who is usually one of the dads. We’d meet once a
week; it was sort of like a scout patrol meeting, but this was the YMCA, where
the important thing was swimming and playing sports. And that was a big
influence on me. I was in the Glenn Davis Club, and we would play against the
Charlie Trippy club or the Doc Blanchard club. We had great rivalries, and that
was a wonderful part of growing up in Evanston in those elementary and junior
high days too. We played basketball, football, softball.
Mr. Kapp: Even I remember the Evanston Y, which was quite a great place. When you left
elementary school, you went to junior high where?
Judge Ferren: Yes, to the Haven Junior High School. There were two junior highs in Evanston.
One in the north and one in the south part of town. Haven was the northern junior
high. And quite a few elementary schools fed into that, so I, of course, widened
my acquaintances and friends in town that way. To this day one of my closest
friends is Bob Teare, whom I first met at Haven. Bob and I were inseparable in
35
high school, and in a couple of summers after we’d come home from college Bob
and I took jobs sorting sheet metal at Central Steel & Wire Company on the
Southwest side of Chicago. That was a valuable experience working with men of
many nationalities. To commute, we bought a 1947 Plymouth, which we sold to
one of our co-workers at the end of our last summer. But I’ve jumped way ahead.
Mr. Kapp: Any particular memories from junior high that you recall?
Judge Ferren: Yes. My seventh grade homeroom teacher was Ms. Barr, and my eighth grade
homeroom teacher was Ms. O’Brien, both splendid teachers. I remember that in
seventh grade, the second semester, I was elected president of my homeroom and
one of the jobs of a president of the home room was to preside on occasion at an
all-school assembly. Well very conveniently I got a cold, which my mother said
was hardly an excuse for not showing up to preside; but somehow I was
convinced that I was sick enough that I shouldn’t go to school. So my friend
David Brown, the vice- president, actually presided. I was very ashamed of that,
and I’m kind of surprised in recalling it. I can’t think of any other time when I had
such stage fright. I played at piano recitals for fairly large gatherings before, but
there was something about presiding at an all-school assembly that was daunting,
and I chickened out.
There were two other things about junior high that I thought were very
important. One, poetry was a big thing at Haven School. They had an annual
poetry festival, and every student in the school was obliged to memorize a poem
and recite it before the class. Then the teachers would pick X-number from the
seventh and eighth grades to present those poems at a general assembly of the
36
school. Well, I must not have been totally stage-shy because both in seventh and
eighth grades I was selected to recite my poem before the whole assembly. One
year it was Walt Whitman’s “0 Captain, My Captain,” and the next year it was
Joseph Rodman Drake’s “The American Flag.” I was obviously into inspirational
poetry, but I liked that.
The other thing about Haven Junior High School was its annual music
memory contest. Every student was required to take music as part of the regular
curriculum, and the teacher would teach us classical music by records and tell us
about the composer, and about that composer’s place of birth and work. It was
kind of a music history, in addition to learning music. And it was wonderful. And
it wasn’t just your ordinary classical music. I remember learning about Ippolitov-
Invanoff’s “Caucasian Sketches” and various other obscure but important
classical works. And then there would be a test, a music memory test. The teacher
would start a record, take the phono- graph needle, and plunk it down somewhere
in the middle of the piece and play it for 10 seconds and then lift it off. You had to
identify the composer and the piece, and you had to spell everything absolutely
correctly. Well, I excelled at that; I got every one right in both years, except I was
marked down on a piece. I don’t know whether it was Debussy or someone else,
but the piece was called “The Swan,” and I just wrote “Swan” without the article
in front of it. But I tell you that the music memory contest reinforced my interest
in classical music. It taught me a lot about people beyond just Beethoven and
Mozart and remains a very, very vivid memory.
37
Haven also required us to select electives in practical subjects, such as
wood shop, leather-working, plastics, printing, photography, even boys cooking. I
very much enjoyed taking these classes. I particularly enjoyed learning to set type
and run off letterheads, calling cards, and other items on a platen press. And I
recall turning bowls and even a baseball bat on a lathe.
Mr. Kapp: And then you went on to high school, and where was that?
Judge Ferren: Evanston Township High School. The two junior highs fed in there.
Mr. Kapp: Can you tell me anything about the subjects that you particularly liked and were
interested in while there?
Judge Ferren: Well, I liked all subjects. But before talking about high school, I should go back.
Just as my buddy, David Peterson, and I in sixth grade collected autographs
together, I had another particularly close pal from elementary school days, Carl
Lindenmeyer, and later in junior high Carl and I did two things together. First, we
competed in the soap box derby. Carl’s father was a professor of engineering at
Northwestern who took us to see soap box derbies in Milwaukee and elsewhere.
Mr. Linden Meyer was a good coach for building soap box racers, and Carl won
every year he entered. I entered in three years and came in fourth, second, and
third. One year, when I got second place, I was awarded the craftsmanship award
over Carl, so that made me feel very good.
The other thing Carl and I did was get an interest in chemistry. I think this
was generated by something in the Boy Scout Handbook showing us how to do a
wet cell battery. That required sulfuric acid, which we couldn’t get from any
drugstore. We called some scientific companies, and they wouldn’t sell it to us
38
either because we were underage. Then Carl and I got this notion that we would
find a corrupt druggist who would give us sulfuric acid. We found Mr. Hill in
South Evanston who was willing to do it. I don’t know why he did that because he
wasn’t allowed to. But we made a wet cell and that led us to want to get more
acid, and so we then bought some hydro- chloric acid from Mr. Hill. We got really
interested and each developed chemistry labs in our respective basements. When
we got to junior high school, we made calling cards in printing class. Carl’s was
Universal Scientific Company and mine was Superior Scientific Company. My
slogan was “Ahead of the Rest,” and Carl’s slogan at the bottom of his card was
“Better than the Best,” which I said made no sense. He said, “Well, you’re the
best. I’m better than you are.”
We then decided we wanted – in these days I shouldn’t say this – to build a
bomb, but we settled for skyrockets. We learned that you could use lampblack or
charcoal, potassium nitrate, and sulfur; and we made a wonderful skyrocket,
which I recall shooting off in my backyard. It turned an abrupt right angle and
went through the window of the garage next door. That ended our overt
experience in pyrotechnics. But we went out and got some other pretty dangerous
stuff – some red phosphorus, some sodium metal. We managed to get somebody to
sell us this kind of material. Years later, before I went off to college, my parents
asked a chemistry professor to look in our basement to see if I had any chemicals
that shouldn’t be there. The man was appalled when he found some sodium metal
and red and yellow phosphorus. He said these were a terrible fire hazard. So dad
and I got rid of them.
39
Mr. Kapp: Were you involved in any particular set of activities at Evanston High School?
Judge Ferren: Yes. But before I get into activities, I want to mention my friendship with another
fellow from elementary school days, Bill Powers, who remains one of my closest
friends today. Like Carl Lindenmeyer’s dad, Dr. Powers was a professor at
Northwestern; his field was geology. But he had access to many things at the
university, and I remember, for example, his taking us to see Saturn through
Northwestern’s telescope. In high school, Bill and I worked together on Friday
nights and on the weekends at the counters and soda fountain at Keefer &
Templeton drug store not far from where we lived. As new drivers- at age 15 in
Illinois- we each enjoyed making home deliveries in Keefer’s De Soto. We also
occasionally would filch a cigar to experiment with as we walked home at night.
Keefer’s also was where I first learned about condoms. That was such a hush-hush
subject that, instead of asking for a condom out loud, a man would place three
fingers on the counter, which meant he wanted a package of Trojans. I also first
learned about the “numbers” racket from a man who came in every Friday night
with a card with names on it, lit up a cigar, ordered a five-cent cherry Coke, and
then went for a while into a telephone booth at the back of the store. The hardest
part of the job was hand-packing 1ce cream. Bill and I still reminisce about our
times at the drug store.
Before we could drive, Bill’s father often drove us to high school, but
almost as soon as we got our driver’s licenses Bill bought a used Harley 125
motorcycle, and I bought a used Cushman motor scooter- I think for seventy-five
hard earned dollars. We’d drive them to school and often take pretty wild rides
40
with them on busy roads – all without helmets, which no- body wore in those
days. My folks had resisted letting me buy the Cushman, but one day I asked all
my friends who owned them to drive them over and park them on our lawn. Mom
and Dad looked the crowd over and decided that they’d rather have me drive my
own scooter than ride on the backs of my friends’ scooters while they drove!
As to school itself, I think I said I was interested in all subjects. And I got
involved in my sophomore year in student council work. In my junior year I was
elected junior class president or some such title and ended up, when a senior, as
president of the student body of Evanston High School. So I guess school politics
was my principal activity. In those days, the Constitution had not caught up to
religion in the schools, and Evanston High had what was called an annual youth
conference that was supposed to be an inspirational day when students reflected
on their various religious faiths – the assumption being you had one. It didn’t
matter what kind it was, but I don’t think atheism was included. In any event, I
served on a planning committee for that several years in a row.
Mr. Kapp: What about sports? Any sports?
Judge Ferren: Oh, yes. I was on the high school swimming team, and we had state championship
swimming there. Our main rival was New Trier, a well known high school in
Winnetka, Illinois. One year we won the state championship. Some of my
teammates had stolen a silver doorknob off of a door in the New Trier natatorium
when we beat them in the dual meet. When we won the state championship, we
presented the doorknob to the swimming coach of New Trier with an engraving:
“Many are called, but few are chosen.” It was a biblical quotation. I should add
41
that I was a rinky-dink swimmer. Everyone else was very good. I had wanted to
be in sports, and the coach, Dobby Burton, who had been a Michigan swimmer,
said any boy could be on the swimming team; we would have no limits at all. I
thought that was wonderful. I swam the flying breaststroke. In those days, you
used a frog kick with a breaststroke. And I was a thin kid. I didn’t have arms that
could power me through the water at all. We didn’t even have a swimming pool at
Evanston High School, so we swam eighth period down at the YMCA. Most of
my buddies were swimmers, as it turned out, so I think that was one of the reasons
I wanted to join the team. Well, Coach Burton would create enough swimming
meets that everybody could swim. So when I say I was a rinky-dink swimmer,
that meant that while the good swimmers were in suburban league meets (while
I’d sit on the bench), I would get on a bus at other times with all the other lesser
swimmers and go down into the heart of Chicago to swim against Harrison Tech
and Amundsen and some of the tough schools down there. There, I did pretty
well. I mean, I wasn’t bad compared to that competition, so I got a little
gratification out of winning or placing in some of those meets. Those pools were
dreadful. There was algae coming out of everywhere in many of the shower
rooms, and I felt so bad for those kids in Chicago. I really got an eyeful and that
was an important experience. And I lettered. I don’t know that I ever got a varsity
letter; I know I got a JV letter every year.
Mr. Kapp: I must say as a graduate of Senn High School I am quite resentful.
Judge Ferren: Oh, we swam at Senn. That was one of them. I can remember the turn in the bus
that got us to Senn. Yes, yes.
42
Mr. Kapp: Any teachers at Evanston High School that had a particular influence on you?
Judge Ferren: Yes. There were a number. I’ll just mention three. First, Walter Rasmussen. I did
not have him as a teacher, but he was the gentleman who was in charge of the
student council, and obviously his influence on me as a mentor in terms of
developing leadership skills and running meetings and so forth had to I’ve got to
digress. I forgot to tell you that when I was in fifth and sixth grades, I had a job. I
sold eggs. I had them imported by railway express the first year from Bonaparte,
Iowa, from the mill, and I sold 30 dozen eggs a week. I’d check out the grocery
store to find out what eggs were going for and charge about a penny less. I must
have made 20 cents a dozen. The second year Kenny Warner, who ran the mill,
didn’t want the business anymore. It was too big a pain for him. So I found a
supplier out in Skokie, Illinois. My father picked them up coming home from
work. My cost was higher, and I could only get 10 cents a dozen profit. I
remember going around that year and telling one of the women, one of the
mothers who was one of my customers, that this year the eggs were going to be
candled. She said, “You mean they weren’t candled last year?” And I said no. She
said, “Well, I’ll take them anyway.” Then she told me a couple of weeks later that
the eggs were fresher the year before. I also had a job in junior high on Saturdays
and Friday nights in the coatroom at the pool hall part of the YMCA.
Mr. Kapp: And then when you graduated from high school, tell me a little bit about your
process of selecting a college.
Judge Ferren: Well, before I do that, I don’t want to forget to mention that in the spring vacation
of my senior year, four of us drove Sam Boatwright’s 1940 Plymouth to New
43
Orleans by way of Indiana, Kentucky, Oak Ridge and Chattanooga Tennessee,
Mobile, and Biloxi, then up the Mississippi River through Arkansas, Southern
Illinois, and back home. I won’t bother to go into details of the trip aside from
mentioning that we dropped the transmission on Lookout Mountain in Tennessee
and, of importance, we noticed firsthand evidence of racial segregation that we’d
never seen- or never thought we’d seen. Not long thereafter, I was talking to an
African-American friend and classmate, Betty Adams, about racial segregationthis
was the spring of 1955, not long after Brown v. Board of Education. I’ll never
forget Betty’s looking at me and saying, “John, think about when you go bowling
at the Red Crown bowling alley; have you ever seen any of us there?” I never had,
and I’d never thought about it. By the time I was in high school approximately
20% of our student body of 2,500 or so was African-American. That seemed
natural, and I must have assumed, without really paying attention, that there were
no racial barriers in public accommodations. Certainly not in Evanston! But there
were. And in the years ahead, as I assume I’ll get to later, that became a bone of
contention with my parents when I became very upset about the lack of equal
housing opportunity in town.
Now, back to your question about selecting a college. I think I told you that my
father had taken a master’s degree at Michigan, and I had a great fondness for
Michigan when they came to Northwestern to play football because (a) they were
a great football team but even more so (b) because they had a great band. And so
I just thought going to Michigan would be the greatest thing possible.
Mr. Kapp: Well, you were right.
44
Judge Ferren: I know, because you went there.
Judge Ferren: And one day Dr. Lloyd Michael, who was the superintendent of Evanston High
School, called me in and asked me where I was going to go to college, and I said I
thought Michigan would be a great place. He said, “I think you ought to consider
some other places, too.” And I said, “Where?” He said, “How about Amherst and
Williams?” And I said, “Well what are they?” I’d never heard of them. He told me
about them, and he said you ought to consider Harvard, Princeton, and Yale, and I
guess I’d heard of them. At about that time the alumni got very active in
recruiting. So alumni from all these schools were pursuing all of us who were
high in our class. In the meantime, during the summer after my junior year, my
parents took me on a summer tour of potential colleges and we did go to
Michigan, which I really enjoyed, and we went out east and saw everything from
Syracuse to Amherst to Williams to Wesleyan to Tufts to Harvard to Princeton. I
don’t think we went to Yale. But we saw a lot of them. My mother loved the
chapel at Williams College much more than she liked the chapel at Amherst. I
was, for some reason, interested (maybe it was her influence) in a smaller
environment, and I remember that the Harvard recruiter Jack Hastings was a very
impressive man, but I just said, “Well, I think I’ll go to a smaller school.” So I
applied to four: Harvard, Princeton, Amherst, and Williams, and I was admitted to
all four. I chose Williams. One of the reasons I didn’t choose Princeton, which
was sort of halfway in- between in size it seemed to me, was that about a dozen of
my classmates were going to Princeton, and I thought, well, I’ll do something else.
45
I wanted to strike off on my own, plus my buddy that I collected autographs with
in sixth grade was going to Harvard, so I just – but I’m getting ahead of myself.
I woke up in the middle of the night in a cold sweat saying to myself,
“How can I go to a college that’s one-third the size of my high school?” And this
was about three or four days after I’d mailed in my acceptance to Williams and
mailed in my rejection everywhere else. I called Mr. Hastings and asked, “Mr.
Hastings, is there any way I can get into Harvard at this late date?” And he said
“Well, let me call you back, I’m sure we can work it out.” That night he called me
back and said, “Yes, I’ve got it arranged.” I guess the alumni had real influence
there. And so I went off to Harvard. As I think I mentioned, the only place my
parents were dead set against my considering was the University of Chicago
because it was a hot bed of “leftism” -I guess more so than Harvard, or they might
have worried about that, too.
Mr. Kapp: And what kind of memories do you have from those years at Harvard?
Judge Ferren: Well, in many ways they were the best years of my life – except that I think every
year is. I decided that I wanted not to room with anybody that I knew, and I
wanted to room with a large number of people, and so I was assigned to a quad
with three other fellows. We roomed together through four years of college, which
is unusual. One was David Miller, from Williamsburg, Virginia. His father was a
philosophy professor at William & Mary. J. Bion Philipson was from Idaho Falls,
Idaho. His father was with the Atomic Energy Commission. Bob Mueller was
from Ansonia, Connecticut, just outside New Haven. His father was a tool and die
maker; his mother was a nurse. And, of course, my dad was a Chicago
46
businessman. We added a fifth roommate, George Damoose from Grand Rapids,
Michigan, our senior year, the son of a wholesale grocer. So there was
geographical and family background diversity that reflected the kind of student
body you find there, and we got on very well. Bi Philipson, who was a graduate of
Harvard Medical School and was a surgeon, is the only member of my Harvard
Class of 1959 to be killed in the Vietnam War, and that has had a devastating
impact on me. He was caught in the Tet offensive of 1968. He kept putting off
going into the service to take one more year of residency, and he just chose the
wrong time. The four- then five — of us were very close.
I did nothing my freshman year except survive, and that year I was
particularly excited about a course called Social Sciences 2 taught by Professor
Samuel Beer. It was a compilation of six subjects: feudalism, the medieval
church, the Puritan Revolution, the French Revolution, the British Reform Bill of
1832, and Nazism. You had to write a paper for each of them, and it blended
political theory and literature with history. It just absolutely blew my mind. It took
my advanced placement history from high school to a new level. I think it was a
real intellectual awakening. It’s the best course still that I ever had; and, would
you believe, although I never met Professor Beer at that time, this last year at the
Woodrow Wilson Center, where I was a Fellow, I discovered that Professor Beer
was a senior advisor, and in his eighties. I met him, we had lunch, we had dinner
at his home, and it was a great treat.
At the beginning of my sophomore year, I became a debater on the
Harvard Debate Team, and I guess I was probably the third or fourth best debater
47
there, never the best. Our four-man team won most of the time, and in fact my
junior year our best two-man team, Dave Bynum and Jim Kincaid, was runner-up
at the National Tournament at West Point. We had no coach; we had no funding
except what we could arrange from alumni. They gave us a 1953 battered up Ford
station wagon, which we drove to the tournaments. Dartmouth could fly and
Princeton could fly; they each had a lot of money. But we just drove our old
station wagon around. And I loved it. As a consequence, I was on the road as
much as I was at school, it seemed; and David Bynum, Jim Kincaid, Greg Harvey,
and I were a four-man team that debated together many times and had a lot of fun
together. Also, each spring vacation, several two-man teams went to different
parts of the country to debate at local colleges and earn $25 a debate to help keep
our treasury alive.
I particularly remember a trip that another splendid debater, my good
friend Rick Murray, and I took one spring debating in Wisconsin and Minnesota.
(Rick was from St. Paul.) I also enjoyed participating in three of the annual
Harvard-Yale-Princeton Triangular Debates. I recall losing at Princeton when I
was sophomore and winning at home against Yale when I was a senior. That
senior year debate was especially memorable because it marked the Harvard
Debate Council’s 50th anniversary. I can’t remember what happened my junior
year.
Mr. Kapp: And you majored in history?
Judge Ferren: American history, yes.
Mr. Kapp: Any other areas in which you concentrated while there?
48
Judge Ferren: Well, I took the required distribution. Languages were not “it” for me. I had taken
two years of Latin in high school, and I took French as a freshman because there
was a language requirement. I came so close after one year of French to passing
the language requirement- which I think was a 560 on the college board examthat
I said, “Well, I’m not going to take it again. I’ll just retake the test. I’m sure I
can pass this time.” When I completed my junior year, I’d taken that test about
seven times, and I got worse each year. I was sure I didn’t want to take second
year French as a senior. So I hired a retired Evanston High School French teacher,
who entered into the corrupt bargain with me for money. I asked her, “Please
teach me every exception to the rule, or tell me or teach me this summer how I
can get through this damned language requirement.” She put aside her need to
have me love French and taught me. When I went back to take the test, I saw tape
recorders around and wondered what they were for. The proctors then said, “This
year the test is going to be oral.” I almost died. They turned on the tape recorder. I
couldn’t understand a word of French. I mean, my page was absolutely blank. In
the second hour, however, they gave a standard test. I went to get the results, and I
think I got a 650, with a little note saying they didn’t count the first hour. They
just wanted to see whether people could use the tape recorder. That was the
beginning of a sea change in language instruction in universities, where speaking
it became as important if not more important than just reading it. And so I passed
my language requirement. I took a course in calculus and managed to survive and
decided I’d peaked in math at freshman calculus. In my senior year, I took a
wonderful course called math for non-mathematicians, which was a math theory
49
course for history majors and art majors. But no, mostly aside from an English
course here and there, I concentrated on every history course I could take, and I
audited four history courses a year in addition to whatever other courses I was
taking. I would take notes, and in those days we had general exams in all fields of
history, followed by special exams in your special field. So you can tell, I was just
absolutely wrapped up in the field of history. I decided I wouldn’t become a
Presbyterian minister. I thought I’d become a history professor. Well, that
changed. That’s a long-winded answer.
Mr. Kapp: And what would you say about your academic performance during that period?
Judge Ferren: Well, I did very well. We had a class of about, I don’t know, between 1100 and
1200, and I think by my senior year I was in the top 50 in the class, and I think
that probably over the four years, I was in the top 100 in the class. I graduated
magna cum laude overall, but summa cum laude in my field and on my senior
thesis. And I was elected to Phi Beta Kappa. So I did very well as an
undergraduate. My thesis was a biography of Woodrow Wilson’s foreign policy
advisor, Colonel Edward House. I wrote it on his Texas political career. The idea
was to do a biography of House to show why he became the kind of person that
Woodrow Wilson would eventually call on. And all of the House papers were at
Yale, so I spent the bulk of my senior year commuting to New Haven and staying
with my roommate Bob Mueller’s family in Ansonia, Connecticut. My roommate
George Damoose lent me his car during the week to do that. That was very
thoughtful of him.
50
One day when I was working at the Yale library, Charles Seymour,
president emeritus of Yale, asked to see me. He was a close friend of Colonel
House and had edited and published House’s diary. He told me that he’d promised
House that he’d write the colonel’s biography; that he had failed to do so; that he
felt very guilty about it; that he’d received reports that I seemed to be a prodigious
researcher; and that he’d arrange for me to come to Yale to pursue a PhD and write
a dissertation on House that could become House’s biography. Well, President
Seymour obviously had no real idea whether I was worthy of his offer; he was
trying to find a way to make up for his failure to come through for his friend,
House. I was most flattered, to say the least, and told him that I would think about
the opportunity very seriously – which I did. But events took me in another
direction.
Mr. Kapp: Other than the debating team, were you involved in any other extracurricular
activities?
Judge Ferren: No. I started out with the freshmen glee club. I thought I’d be getting into
“Sweetheart of Sigma Chi”-type music and other wonderful old rousers. After
three weeks of “Palestrina” and other music, all in Latin, I decided I didn’t want to
spend my time there anymore. Unless I come up with something I can’t remember
at the moment, debating was really my only activity.
Mr. Kapp: Did you make any friends there that have remained life-long friends?
Judge Ferren: Yes. My roommates that I mentioned and these debating colleagues. I was
particularly close to David Bynum, who went to Michigan Law School and then
eventually became an Episcopal priest and died about 15 years ago. That was
51
another severe personal loss to me, just as Bi Philipson, my roommate, had been.
And there were others, but primarily my roommates and my debating colleagues
were the ones I was close to and remain close to.
Mr. Kapp: And any other teachers, other than the one you have mentioned, who had
particular influence on you?
Judge Ferren: Yes. Professor Ernest May, professor of American History, interested me in
biography. In my junior year I took a one-on-one reading seminar with Dr. May,
who was kind enough to say he would do this for me, and the whole year was
devoted to reading biographies. Dr. May, like Ms. Taft in high school, did not give
modest assignments. In one week he would say, “Well, read Beveridge’s four
volumes on John Marshall,” or “Read Schlesinger’s three volumes on FDR” I
mean it was a prodigious amount of work, and then we would talk about it. When
I read the four volumes on Marshall, I remember the first question Dr. May asked
me was, “What did John Marshall look like?” I can’t tell you to this day how I
happened to remember as I zipped through four volumes on Marshall what he
looked like, but by golly I got it right! Dr. May took leave my senior year, so he
could not supervise my thesis, but a graduate student who was getting his Ph.D.
that year, Waldo Heinrichs, guided me through the thesis, and, of course, he was
very helpful in that regard. Let me think. My housemaster, Professor Charles
Taylor in medieval history, was a wonderful professor. Bernard Baylin, colonial
American history. There were many. But I think Ernest May and Professor
Samuel Beer are the two that I would identify as the most important.
52
Mr. Kapp: Just still focusing on your years in college. To what extent would you say that
your Harvard experience had an influence on your later life?
Judge Ferren: Let me think about that. I have to say that the first influence was to make as much
an Easterner out of me as a Midwesterner. I remember still feeling a tad awkward,
or more than a tad awkward, being in an environment that was so heavily private
prep school oriented even then, despite the fact that I was rooming with three
public high school guys. And I sensed a certain intellectual arrogance about the
place that troubled me, even though probably I was becoming that way myself- I
don’t know. And I remember along this line at the end of my senior year you could
try out to give a speech at class day. I came up with this speech (which I was not
selected to give) condemning intellectual arrogance and saying that people like
my grandfather Gus, who had never been to college – he hadn’t even finished high
school – had a lot to offer the world. There was a certain elitism, I guess that is the
word, that troubled me. The following year, for example, I was so much for
Hubert Humphrey, and so much against John F. Kennedy. Humphrey was strictly
a Midwestern populist who struck me as a more humble kind of person than an
elite Easterner. I remember feeling that way and yet having to acknowledge that
Harvard made me as much, if not more, an Easterner than a Midwesterner. I’m not
sure what I mean by that; it’s just that I came to have a real appreciation for the
University, for its ability to teach, to develop my mind, and to put me in touch
with a range of people from all over the United States who helped me learn just
by living with them. So it’s the people you meet there, as well as the courses you
take, that I think helped develop my mind and in ways affected my heart. I would
53
like to explore that a little bit more, but those are my initial reactions to the
question.
Mr. Kapp: Any other people that you met at that time that were important to you in your life?
Judge Ferren: Yes. George Buttrick, as I mentioned, was preacher at the University. He was a
crotchety old Englishman who was one of the really well known, call it even
famous, Presbyterian preachers of the day. I would hear him preach three Sundays
out of four. There would be a guest minister on the others, and they would bring
in other very powerful preachers. I remember listening to Dr. Buttrick and his
keeping me alert to the Christian message and not turning my back on organized
religion. He had a powerful intellect. His sermons were very meaningful to me. In
fact, many have been collected in a book called Sermons Preached in a University
Church, which is on my shelf at home. So his presence there was extremely
important to me, although I met him only a handful of times and was not an
acquaintance, let alone a friend, of his.
Mr. Kapp: And you met Ann in those years, did you?
Judge Ferren: Yes, my first wife, Ann Speidel. Her brother, Joe, lived across the hall from me in
Kirkland House, up on the fourth floor, and, in fact, I’d known Joe since we were
freshmen. I didn’t even know he had a sister, but when I was a junior, she came to
Radcliffe as a freshman. I think I met her the first week of her freshman year and
the first week of my junior year, and we started to go with each other eventually
and were married several years later.
Mr. Kapp: Well, maybe we’ll pick up on that when we meet again next time.
Judge Ferren: Okay, good.
54
55
ORAL HISTORY OF THE HONORABLE JOHN FERREN
Third Interview
January 8, 2002
This interview is being conducted on behalf of the Oral History Project of the District of
Columbia Circuit Court. The interviewee is John M. Ferren. The interviewer is Robert H. Kapp.
The interview took place at the offices of Hogan & Hartson L.L.P. on the 8th day of January
2002, shortly after noon. This is the third interview.
Mr. Kapp: John, the last time we were together we discussed the period in which you
attended Harvard University, and we stopped at the point where you indicated to
me that you had met Ann, whom you subsequently married, and we thought we
would pick up at that point. So I wonder if we could start with your talking about
that period and with your meeting Ann and your subsequent marriage.
Judge Ferren: At the beginning of my junior year at college, one of my college friends, Joe
Speidel, introduced me to his younger sister, Ann, who had just come to Radcliffe
as a freshman, and we began to date fairly soon. To fast forward, we were married
after my second year at Harvard Law School in the fall of 1961 after she had
graduated from college. We eventually had two sons, Andy (Andrew John), born
in 1964, and Peter (Peter Maxwell), born in 1969. We were together for 21 years,
separating in 1982.
Mr. Kapp: I think you had indicated to me at one point that you had at least been considering
entering the ministry and that at this point in time you had a change of heart about
that, and I wonder whether you might tell us about that.
Judge Ferren: Well, yes, I guess I was increasingly having an interest in my field, History, and
Ann happened to be Roman Catholic, I was Presbyterian. As we continued to go
together, it seemed infeasible, to say the least, that I would pursue the ministry if
56
we were to pursue that relationship. And so the marriage trumped any desire to do
that, and, of course, as you know, I went on to law school two years before we
were married in 1961.
Mr. Kapp: Can you tell me when it was, if you can recall, that you decided that you wanted
to pursue law as a career and wanted to enter law school?
Judge Ferren: I was very much interested in political affairs, public affairs, I suppose I should
say, public service even. But I wasn’t at all sure, once I had realized that the
ministry was not a calling I was to follow, exactly what I should do. I went back
and forth between going to the Graduate School of History, American History, to
become a professor of history, or to go to law school, which almost by default
seemed to be the only other way to hedge your bets when you don’t know what
you want to do. As it happened, I had a number of friends a year ahead of me in
college. We were together on the debate team, all of whom, it seemed, went to
Harvard Law School. Maybe I was something of a lemming, just following along,
but that’s what I did. I did not apply anywhere else. I was not excited about the
first year at law school. I probably should have taken a couple of years off to
really get motivated to continue after four years of college. (In fact, I advised my
son, Andy, not to go on to graduate school for a couple of years when he
graduated from college.) But I went right on to law school, and after that first year
I decided that I really belonged in the Graduate School of History. In fact, I had
decided that by April of my first year and enrolled with Dr. May’s help at Harvard.
I even started to study Spanish in the summer in my spare time, because you
needed some languages for a Ph.D. But I came back to Cambridge early. I was
57
going to room with a friend of mine, a couple of friends of mine that I had been
with before in law school. And not having withdrawn, I went to see what classes I
would miss in switching out of the law school. To make a short story of it, I never
left my seat.
Mr. Kapp: Can you give me some indication of what your reactions to law school were and
your impressions of the law school experience?
Judge Ferren: In the first place, I really wasn’t sure what the practice of law was about. I looked
at the listing of courses and some of them were self-evident, I guess – property,
contracts. There was a course called “agency.” I didn’t have a clue what agency
was when I started. So I went to school rather skeptical about whether I wanted to
be there, ignorant of what the study really was. And I discovered, although I had
been told by my friends to anticipate this, that the professors were not warm and
fuzzy. It was quite a brutal experience, the Socratic interrogation that we all went
through. I don’t know if I was shy, but I didn’t particularly enjoy the day-to- day
preparation and berating that we all went through in class. (I should say that my
friends who had been math majors and had to be prepared for class all the time are
quite used to this. But those of us who had majored in history and then took
weeks off at a time to go on a debate circuit and could cram at the end were not
used to this kind of daily grind, and I guess I just didn’t take to it right away.) I’m
glad to say that when I went back for the second year (as I say, I never left my
seat perhaps because I was stubborn and didn’t want to be a quitter more than a
feeling that I really wanted to continue) I relaxed, enjoyed the school very much,
and am certainly glad I did stick with it.
58
Mr. Kapp: When you look back at the law school experience, how would you regard it from
the standpoint of professional preparation?
Judge Ferren: I think I went through school wrongly in one sense. Rather than take the best
professors I could find, I did actually try to take courses that I thought would be
most useful in practice, some of which I undoubtedly would not have taken if I
were looking for the best education at the school. Nonetheless, I certainly felt I
got a good grounding in the various principles of law, or some of the transactions,
but it really wasn’t until I had a summer clerkship at a law firm in Chicago, and
then went to work for a law firm the next year, that I had any real inkling of what
the practice of law was about. I didn’t do any clinical work. There was virtually
none available at the time, and the courses, as you know, weren’t structured with
problem solving and legal documents and what have you. I think the only
practical experience I had that gave me any real insight was a competition in
contract drafting. I was on a team of three fellows, with Mo Ford and Ron
Heinlen, and we actually won the contract drafting competition, so I felt I’d
accomplished something there and understood a little bit. I guess I was a pretty
reluctant law student for much of it, but, as I said, it did grow on me and must
have given me sufficient grounding, because I didn’t find making the transition to
a law firm particularly difficult.
Mr. Kapp: What about life preparation? Do you think your law school experience had much
of a positive impact on life preparation?
Judge Ferren: That’s a hard question. It certainly helped me learn to analyze problems. Whether
it’s a public issue you are reading about in the newspaper, or a problem you’re
59
dealing with in practice, there is some kind of rigorous analytic ability that the
law school helps develop. In that sense, it gives you a lot for life preparation,
largely in terms of your career as well as your role as a citizen. Beyond that I don’t
know. Certainly, there were a lot of people there that I enjoyed and kept up with,
but law school didn’t massage your more sensitive and more feeling side in those
days, at least the legal education I had did not. So I think it’s a fairly narrow
experience and thus helps prepare you on one narrow side of life.
Mr. Kapp: Do you think, or would you say, there was any encouragement there for public
service?
Judge Ferren: Not at all when I was at the law school. It was strictly an education for private
practice with large law firms. Remember, I was in school and graduating in 1962,
before the Civil Rights Movement had begun to command major attention- at
least mine- in the North. Just as in college, the major issues of public importance
seemed to be – or at least were to my narrow mind — nuclear testing, foreign aid,
the union shop versus right-to-work laws, and recognition of Red China. I can’t
remember anything outside of Sputnik when I was in law school that really
tweaked my so-called “public interest” nerve.
Mr. Kapp: The Civil Rights Movement was then in its infancy. Did that have an impact on
you during the period when you were in law school?
Judge Ferren: Not at law school, but as we were about to leave Cambridge, I went down to
Woolworths in Harvard Square to get some rope and some packing materials to
ship books and other things back to Illinois. There were a couple of bearded
divinity students picketing outside of Woolworths. I had no idea what they were
60
doing. I soon learned that they were picketing in sympathy for the lunch counter
sit-ins at Woolworths and elsewhere in the South as part of the Civil Rights
Movement. So I think, literally, as I was leaving Cambridge, the Civil Rights
Movement was manifesting itself in the North. Immediately after that, I went to
work for the largest law firm in Chicago and had to come to terms with that
vocation as the Civil Rights Movement was taking off. I was certainly very, very
much aware of a conflict within myself at that point.
Mr. Kapp: Well, before we get into that, I wonder if when you look back, there were any
professors at law school whom you would now view as mentors or role models?
Judge Ferren: That’s a little hard to sort out because, as you know, I went back to Harvard in
1966 to direct the Legal Services Program and eventually join the faculty. I got to
know the professors then personally in ways that I did not get to know them when
I was a student. I frankly cannot think of anyone at the time when I was a student
whom I particularly considered a mentor or whom I particularly looked up to.
Mr. Kapp: Anybody at that time who encouraged any kind of public interest lawyering?
Judge Ferren: Not that I was aware of. This is not to say it didn’t go on, I just was not within the
orbit of whatever influence there was. Professor Frank Sander, who taught me
tax, became one of the leading spirits of public interest law at Harvard. And
Livingston Hall, who taught me agency, similarly did. David Cavers became very
much interested. So there were people there whom I got to know not long
thereafter that I certainly to this day look up to. But when I was a student, I guess
I had my blinders on. And then when I was married for my third year in law
61
school, I was attentive to that far more than to my studies. I was looking for a job
and really didn’t tune in to any person who would motivate me to higher lights.
Mr. Kapp: Any classmates who have remained particularly close friends?
Judge Ferren: Well, yes, Byron Johnson, who eventually was on the Supreme Court of Idaho,
was a roommate and has remained a close friend. He and I were friends in college
as well. I’ve been close over the years as well with John Morrison, a classmate I
did not know until we arrived together at Kirkland, Ellis in Chicago. And there are
David Birenbaum, John Christie, Mo Ford, Greg Harvey. I really can’t say that I
have stayed close to other law school classmates.
Mr. Kapp: Any of your classmates that you can recall who have had particularly
distinguished legal careers?
Judge Ferren: Although I have never met him, Richard Posner. He was first in our class most of
the years we were there and became a very distinguished law professor at the
University of Chicago and later Chief Judge of the Seventh Circuit. Lloyd
Weinraub is a professor of law at Harvard, criminal law, whom I have enormous
respect for. Three of my classmates became United States Senators: John Culver
from Iowa and Bob Graham from Florida. And Jim Jeffords is a classmate-
Senator from Vermont. Greg Harvey has had a distinguished career as a lawyer in
Philadelphia. So we have had a number of illustrious classmates, and if I thought
about it, I’m sure I could come up with others. Certainly, many leading lawyers
throughout the country. As I said, my roommate, Byron Johnson, was on the
Supreme Court of Idaho.
62
Mr. Kapp: How about your academic performance at law school? Do you have a recollection
of how that all came out?
Judge Ferren: Well, I surely do. The first year was very disappointing. I would call it a personal
disaster. There are reasons for that that I won’t go into, but it probably shakes
down just to lack of commitment and motivation. But the second two years were
much better, and I guess the fact that I was asked not long thereafter to join the
faculty indicates that the school felt I had an academic career there that did not
embarrass them.
Mr. Kapp: Would you briefly describe the importance of Harvard and your Harvard contacts
on your subsequent legal career?
Judge Ferren: Well, I think Harvard certainly set the standards of excellence that I have always
tried to achieve. I don’t know if that’s more me or more Harvard, but at least the
standards of excellence were there. And that means being careful, being ethical.
We didn’t have a legal ethics course as such, or at least none that I took, but I did
get very strong messages from the faculty in various ways about the importance
of honesty and integrity in the profession. Also, there can be no doubt that when
you graduate from a school that large and a school that well known, you know
people around the country. But I honestly cannot say that I’m aware of any
instance when, in any sense, I traded on that relationship. I mean, there probably
were all kinds of instances where I dealt with lawyers from Harvard, either in
private practice or socially, but I just don’t have a sense of it as a network that has
been particularly important to me. Again, it’s a little hard to talk about, because
when I went back to direct the Legal Services Program and got involved at the
63
faculty level and met a lot of people and a lot of students from many other classes,
I certainly developed scores and scores of Harvard acquaintances and many new
friends, and I’ve kept up with a lot of those. But that’s Harvard as a fortuitous
broker of relationships. I don’t know that the institution as such had any particular
impact in the way you are raising the question.
Mr. Kapp: What about extracurricular activities during the period at which you attended law
school? Were you engaged in anything outside of the law school, or anything
within the law school other than basically pursuing your studies?
Judge Ferren: There was the mandatory moot court program, conducted through law clubs,
during each semester of the first year, but the only thing I pursued after that was
the contract drafting contest, the Williston Competition, and unless I’m forgetting,
I pursued no other law school activity of any kind.
Mr. Kapp: Were you doing any outside reading at that time? Either magazines or books?
Judge Ferren: Not that I can recall. I probably would read a book or two that I received for
Christmas, but other than that, it was strictly trying to get through those
casebooks.
Mr. Kapp: Well, that would be difficult enough.
Mr. Kapp: Following graduation, you went to work with a large law firm in Chicago. Can
you tell us how that came about?
Judge Ferren: Yes, I had worked for a very fine firm the previous summer, Chapman & Cutler,
in Chicago, and I then broadened my looking. We were pretty sure we wanted to
relocate in Chicago. My wife, Ann, was from Minneapolis and had no desire to
return there, and so we decided on Chicago. I interviewed at a number of firms,
64
and Hammond Chaffetz, a distinguished antitrust lawyer, was head of recruiting
for the Kirkland, Ellis firm. He and I hit it off very well, and I felt fortunate to
receive an offer and accepted it.
Mr. Kapp: And what would you say the firm was like at that time? How would you describe
the firm?
Judge Ferren: I would describe it as the Chicago Tribune’s law firm. It seemed to have lawyers
about 75% of whom were either from Harvard or the University of Chicago.
There were a few from Michigan, maybe one or two from Yale, a school that the
firm for whatever reason frowned on at the time. The rest were from a variety of
other schools. I guess this reflected the alumni allegiances of the principal
partners at the time.
Mr. Kapp: And how large was the law firm? Do you remember that?
Judge Ferren: Kirkland was the largest firm in Chicago in 1962, and I think there were around
85 or 90 lawyers, clearly not as many as 100. They had an office in Washington
that I am not including in those numbers. It was interesting to note that on the
28th floor of the Prudential Building there were “trial” lawyers, including a
number from local law schools, who handled cases in the state courts, and on the
29th floor there were “litigators,” mostly from the more prestigious schools, who
handled cases in federal court.
Mr. Kapp: And what do you recall about the nature of the work that you did while you were
there?
Judge Ferren: Those were the years when the electrical price-fixing cases against Westinghouse
and General Electric were big business for the law firms, and Kirkland
65
represented Westinghouse. They represented other major corporations in the
antitrust field. Instantly, after working on one or two antitrust cases, I decided I
was not interested in antitrust or any large litigation. There were no such things
as paralegals then, and young associates in law firms basically went into dusty
back rooms pouring through documents in cases that were going to last forever,
and if that was the practice of law, I thought I had made a dreadful mistake.
Through a stroke of good fortune, I began working with two younger partners,
Elmer Johnson and Bill Jentes, and with Bill I worked on some smaller litigation,
industrial espionage, that was fascinating. With Elmer I did some corporate work.
Kirkland was very loosely organized, and you tended to get to work on all kinds
of things, rather than strictly department by department. I also learned quite
quickly that Illinois had just adopted the Uniform Commercial Code, and my
class coming out of law school was the only group who knew much about the
Uniform Commercial Code. So I did some banking work. All things considered, I
gravitated to the corporate transactional side and thoroughly enjoyed working
with it in direct proportion to how small the client was. Elmer Johnson and others
had smaller clients that couldn’t afford their rates, so they would just turn them
over to me, and I had quite a few clients that I worked with and enjoyed very,
very much.
Mr. Kapp: And what was your impression of the overall law firm environment?
Judge Ferren: Well. Let me think. Very conservative politically, which wasn’t me. And very, very
able. I mean, I can’t tell you how highly I regarded every lawyer for whom I
worked there. And it was very hard working; at the time I joined there, you were
66
expected to work a half-day on Saturdays and, of course, we worked many nights.
So it was a very hard- working firm. I felt in the short run I was glad I was there,
because I was learning to practice law at the hands of some very talented, able
lawyers.
Mr. Kapp: You said earlier that at some point a conflict developed in your own mind about
the nature of the work you were doing. I think you mentioned it in the context of
the emerging Civil Rights Movement. Could you elaborate on that a bit?
Judge Ferren: Yes. I was, of course, aware of the developing Civil Rights Movement, and as a
would-be minister at one time I guess I had the kind of conscience that was
concerned about what kind of legal services people in the low-income community,
racial minorities, and others for that matter had. I had lunch with a fellow from
high school, a friend of mine who was several years my senior, Coleman Brown,
who was an inner- city Presbyterian minister in Chicago at the time. He told me
flat out that there was no such thing as legal services for the poor in Chicago, or
anywhere else. I had one friend at another firm from my class who I understood
was going to take a brief leave, or perhaps a longer leave, to go south to work in
the civil rights struggle. My friend Coleman said there’s no reason to go South.
“Why don’t you do something about the lack of legal services to low-income folks
in Chicago?” That sounded like a challenge and a charge, and it sounded right. So
a friend of mine from the firm, Bill Theiss, and I approached the Church
Federation of Greater Chicago, which was an ecumenical organization, to find out
if there was a way that we might provide volunteer legal services through
churches, because my friend Coleman had pointed out that the churches were
67
probably the only trusted institutions in a city that was at that time dominated by
the first Richard Daley. This was in 1963, late 1963. Sometime in 1963, Bill and I
put together a group of 16 lawyers from around Chicago. We had lawyers serve
once a week in two neighborhood churches – one on the south side of Chicago and
one on the north side – to give legal advice to people who would come in. We
called them the Church Federation Legal Advice Clinics, and that was the
beginning of some interesting interaction, interchange, within our law firm.
Mr. Kapp: How would you describe the nature of the legal services that the clientele required
here?
Judge Ferren: There were mostly problems of landlord-tenant, consumer, welfare, some family
problems.
Mr. Kapp: And how much of your own personal time did you devote to that?
Judge Ferren: Well, I have no idea. It was a lot. I spent a lot of time organizing this, and over a
two-year period, up until mid-1966, we had organized 200 lawyers and expanded
the number of clinics to four or five at that time. So I spent a lot of time at it.
Mr. Kapp: And was your role primarily organizational or were you actually providing
services?
Judge Ferren: It was both. I was in charge of the organization, and I also took my turn. You
would go out there once a month in teams of two. So I did it once a month. I’ll
tell you a story that is embarrassing. I came across a client early on whose
husband had died, and she discovered that his insurance policy had lapsed. As I
mentioned a few minutes ago, we never had a legal ethics course in law school. I
happened to notice that the policy was from an insurance company that Kirkland,
68
Ellis represented. My reaction was: that’s great. I’ll just call up, and I’m sure
there’s been a mistake. Well I did that, and within about an hour after my call, a
very senior partner whom I had never met before arrived in my office, saying,
“What the hell are you doing?”– explaining to me, as I should have known, of
course, that I had walked into a direct conflict of interest. I was mortified. I still
thought the woman should get some sort of hearing, but I managed to refer her to
someone else to take it over.
Mr. Kapp: How would you describe the overall attitude of your law firm to the efforts that
you were engaged in?
Judge Ferren: Although we did get several members of the firm to participate, including Elmer
Johnson, John Morrison, and Chuck Shepard, as well as Bill Theiss and me, the
overall attitude at the top was quite negative. But it was negative in an interesting
way. I learned that the Legal Aid Bureau of Chicago, a community chest, redfeather
agency, had negotiated a deal with all of the big law firms. If the firms
would pay a tariff to Legal Aid every year based on the number of partners and
associates – there was actually a formula, a dollar formula for this – then Legal Aid
would agree that they would not call on the firm for the time of its lawyers. So by
our starting a volunteer program, Legal Aid was ticked off because they thought it
would undermine their deal with the law firms, and they would lose money; and
the law firms generally were ticked off because they felt that they had made a deal
for Legal Aid, and now we were forcing them to give more than they had
bargained for. I can tell you that nobody at my firm spoke to me directly about it,
I think in part because Elmer Johnson was very, very close to the movers and
69
shakers of the firm, and he basically stood up for it and participated in it himself.
So I had a blocking back, as it were, to help me go through the line. But lawyers
at other firms were not as fortunate.
I don’t know where the initiative came from, but eventually there was a
meeting of several of us younger lawyers who organized this program with a
group of senior partners from the major law firms of Chicago. I think they
extended us an invitation to meet at the University Club or someplace like that.
And we politely suggested the YWCA cafeteria, where we normally met; they
would be welcome to meet us there. We had a very cordial meeting. We explained
that we believed each lawyer had a responsibility to devote a portion of time to
this kind of service, and that was what we were going to do. We never heard a
negative thing since, and the program today, I think, has as many as 1,500 lawyers
on its rolls. It’s stuck all these years and they never looked back.
Mr. Kapp: Was there at the time anything like a pro bono culture that was developing within
these law firms?
Judge Ferren: This was the beginning of one. I’m not aware that there was any pro bono culture
otherwise. I assume, although I did not know, that there were individuals who
were affiliated with the ACLU, for example. The Lawyers’ Committee for Civil
Rights was just beginning. I don’t recall that there was a chapter yet in Chicago at
that time.
Mr. Kapp: Not until 1968.
Judge Ferren: Well, so, we started this a year, 1n 1964 – late 1963 – before there was even a War
on Poverty or the Office of Economic Opportunity Legal Services Program. So, as
70
far as I’m aware, this was the first major volunteer legal services program in the
country.
Mr. Kapp: Did you draw lawyers pretty much across the spectrum of the bar in Chicago?
Judge Ferren: Yes. Most were from the large law firms. By that I mean in those days 35 to, in
our case, 85 or 90. But we did have a handful of neighborhood practitioners that
my friend Coleman Brown helped us recruit so that we could include minority
lawyers. Heaven knows they were not members of these large law firms at the
time. They were people of the community who could give some guidance. So
there was a mix, but it did tend to be dominated, of course, by the larger law firm
lawyers.
Mr. Kapp: And were they the younger lawyers or were there more senior people as well?
Judge Ferren: At that time they were all younger lawyers. And by younger we’re talking 25-30.
There may have been some as old as 35, but I’d be surprised if that there were any
older than that.
Mr. Kapp: Other than the meeting that you described earlier with managing partners, senior
partners, at other law firms, did you have any sense that there was significant
resistance within these large law firms to this effort?
Judge Ferren: Well, no. I’ll tell you. We were so aware of the likelihood of strong resistance, and
were so unsure about how much time we could actually bring matters into the
firm, that we held ourselves out as a legal advice clinic as opposed to a full legal
aid clinic- by which I mean we didn’t feel obliged to actually take court cases. If
we got something that was beyond the advice level, we would work with the
Legal Aid Bureau or try to find other resources or bring it to the firm on an ad hoc
71
basis. But within a year or so, it became quite unrealistic to just give advice, and,
as a consequence, slowly but surely people brought cases into the firm. I know I
certainly did. And I must say at that time I don’t think that any of us, including the
major people at the firm, really took seriously the fact that these were firm clients.
I think people just did these cases out of their bottom drawer or on their spare
time. They didn’t docket them with the firms but did manage eventually to do
some litigation as well.
Mr. Kapp: And what would you say was motivating the younger lawyers that you were
bringing into the fold?
Judge Ferren: I think it was very much the same motivation that I had. I think there was a
feeling, a need to involve oneself on behalf of less fortunate folks, that was fueled
by civil rights developments. I suspect, too -although this wasn’t true for me
because I had some smaller clients — that there were some lawyers who were
working on nothing but the big antitrust cases and wanted to have some sense of
practicing law that this gave them. But I truly believe, in part because of the
church sponsorship, that most people were motivated out of a pretty altruistic
frame of mind.
Mr. Kapp: And do you have any sense of what happened to those younger lawyers? Did they
stay with their law firms? Did they move out into other public interest areas?
Judge Ferren: I have no real knowledge of that. I do know, though, that some of those that were
present at the creation, so to speak, and continued to practice in Chicago in the
firms, stuck with its program for years and years. It eventually incorporated and
sought financial assistance from foundations. From such contributions, they
72
finally got some staff support. And some of the lawyers may have continued their
service more as board of directors’ members than actual lawyers out in the clinics.
But I think a number of them did stay as regular volunteers.
Mr. Kapp: And the program flourishes today?
Judge Ferren: It’s now called “Chicago Volunteer Legal Services” (CVLS), and it no longer has
the Church Federation sponsorship, which I suspect some felt was limiting on
attracting lawyers into the program.
Mr. Kapp: And at some point, I am aware, you came to the attention of the Harvard Law
School again for their plans for a clinical program. And can you tell me how all
that came about?
Judge Ferren: Yes. The City Club of Chicago, which was a civic organization that sponsored
public debates, asked me if I would debate the head of the Legal Aid Bureau,
Arthur Young I believe his name was, on the delivery of legal services in Chicago.
Legal Aid was very skeptical about what we were doing for the reasons I
mentioned. And we were very skeptical of the Legal Aid Bureau, because it had a
single office in the bowels of Chicago that nobody could find. We anticipated the
legal services theory that you needed to be out in the neighborhoods in order to
have a credible program. So, in any event, I gave a speech at the City Club, and
Arthur Young answered it. And we had a little give and take. Not long thereafter,
at Christmastime, I was having dinner with a group of award winners from my
high school, the Oliver Baty Cunningham Award Winners. These were men who
had received awards at the high school- they gave one every year to the senior
boy voted most outstanding- and it was a tradition that the winners got together
73
for dinner each year. I happened to sit next to a young fellow whom I barely
knew, but he was at that time at Harvard Law School. We were just talking, and I
was telling him about this program, and he said, “That interests me. Do you have
a copy of your remarks?” I said sure, and I mailed my speech to him in
Cambridge. The next thing I knew I got a call from Frank Sander, my tax
professor, who said, “I read your speech and was really quite taken by it, and I’d
like to get it published in the alumni magazine. I think this idea ought to be
replicated around the country.” I said, “Great.” So it was published in the Harvard
Law Bulletin in 1964, maybe it was in 1965.
That’s how our program came to the attention of Frank Sander at Harvard. In
1965, the OEO Legal Services Program began. There was pressure on the Harvard law
faculty to get students involved in clinical work in the War on Poverty. The law school
had no resources for this, so Frank Sander and others at the school, with the support of
Dean Erwin Griswold, applied to OEO for a demonstration grant to set up a clinic at the
law school to involve students in the War on Poverty. And then the question came, well,
whom do we get to direct this? And I guess they looked at each other, and Frank Sander
probably said, “Well, there’s this recent graduate who wrote this article,” and people
began to ask around. “Oh, we know Ferren.” They called me up and asked if I would
come out and give a talk at the law school about our program. So I flew out in January
1966 and gave a talk about it. I guess this was one of those “look over” events. I had no
idea. In late April or early May, I got a call about midnight from Dean Griswold asking if
I could be at the law school within six weeks to start a program. They just had received
some money from OEO. I was quite flattered, and almost simultaneously I got a call from
74
Clinton Bamberger, the new head of OEO Legal Services, whom I’d actually talked with
a year earlier on the phone about our program. He was a very active Catholic layman in
Baltimore with Piper & Marbury, and he wanted to start a volunteer program like ours.
He’d read the Harvard Law Bulletin article. Sarge Shriver had then hired him to head the
Legal Services Program. He’d heard that Harvard was interested in starting a clinical
program, and he told me that the University of Chicago also had my name on an
application for legal services money. There’s only going to be one grant, and there’s only
one John Ferren, he said- where do you want to go? I just was overwhelmed. And it was
true. Dean Phil Neal and Professors Phil Kurland, Wally Blum, and Bernard Meltzer had
asked me to come down to the law school to talk to them about what they might do for
legal services. I hadn’t even focused on the possibility that they also were interested in
having me come on board. So I told Bamberger that I thought I would rather go back to
Cambridge. I’m sure at some level I wanted to go back and reform the whole place.
Mr. Kapp: So you arrived in Cambridge when, John?
Judge Ferren: I would say about the first of June 1966.
Mr. Kapp: And you started the program in the fall of 1966?
Judge Ferren: Yes, I used the summer with the help of three law students to plan the program.
There was a faculty committee that Dean Griswold appointed to oversee the effort
composed of Professor Michelman as chair and Professors Sander, Hall, and
Cavers .
Mr. Kapp: Can you describe for me the program itself? What is it that you had in mind?
Judge Ferren: Well, we wanted to open a neighborhood law office in Cambridge so that Harvard
law students could provide legal services to the low-income community there. But
75
unlike the Harvard Legal Aid Bureau, which was an honor society and was purely
student operated, we wanted to have a staff attorney who would supervise the
students and would also help us take on more complex matters than one could if
students alone were representing individuals. There was also a very serious
political issue here.
( Harvard University, which didn’t always have the most wonderful
relations with the City fathers and mothers of Cambridge, was, through its law
students, going to sue the City of Cambridge or its housing authority, as we did,
from time to time. There was also the problem that the OEO poverty program,
the Community Action Program (CAP), had a neighborhood office located in
Cambridge, and its leaders were concerned that another poverty program was
coming into their territory. In fact, CAP had a legal services program in
Cambridge, funded not by the OEO demonstration people but by the OEO legal
services people. There also were private settlement houses that had their own
needs and concerns, so it was a very complex political environment, and we were
going to go right out into the neighborhood.
I spent hours and hours at neighborhood meetings with church groups,
settlement house gatherings, interviews with the Cambridge city manager and
council members, local lawyers, and the university’s own community relations
office explaining the program, gaining their acceptance, and hoping they would
refer eligible clients. We also, of course, with community guidance, had to find
the right office location and negotiate the lease. Soon after we moved in and
furnished the office we were burglarized – typewriters and copier stolen. When the
76
culprits had been caught, they asked the judge to appoint us as their counsel! They
knew even less about conflicts than I had a few years earlier when I began the
Church Federation program. (In the ensuing summers, some of us on the CLAO
staff, as well as other Harvard Law faculty, played softball in a Cambridge
summer league and regularly came up against teams with our clients on their
rosters.)
I needed to get some credible staff assistance to help politically, as well as
to help supervise the students. I went to Father Robert Drinan, who then was Dean
of Boston College Law School. I had not met him, but he agreed to see me, and I
told him what I was up to. Of course, he’s a wonderful man, and I said, “Father, I
need to find a good lawyer from around here who can help us connect with the
local judges.” At the time I wasn’t even a member of the Bar; I had to take the
exam because I didn’t have enough years in to get reciprocity. Father Drinan
referred me to a contemporary of mine who was working at the Legal Aid Society
in Charlestown, Massachusetts, Paul Garrity, and Paul was excited to join the
program. He was a graduate of Boston College, and he was terrific. The students
loved him. So between the two of us, we had a pretty good tandem.
Mr. Kapp: Did he ultimately become a judge? Is he the Garrity who became a judge?
Judge Ferren: Well, there were two Garritys who became judges. He was not the Arthur Garrity
who handled the Boston desegregation case, but Paul became a Superior Court
Judge or Circuit Judge in Boston in the state system and was their first housing
court judge. Paul is still in Boston.
Mr. Kapp: And what was the magnitude of the clinical program?
77
Judge Ferren: Well, initially, we took as many as 75 law students, and in the ensuing four years,
when we got increased funds for more staff attorneys, we got the program up to as
many as 125 students. To help with supervision after the first year we added a
young lawyer, a VISTA volunteer, Paul Newman, and the following year when
Garrity left, we added two more attorneys, John Cratsley, a graduate of the
Prettyman criminal law program at Georgetown who had helped me with our
volunteer program when he was a student at the University of Chicago Law
School, and Van Lanckton, a recent graduate from our CLAO program. So the
supervision ratio improved, although we could have used more lawyers. In any
event, CLAO was a very large program and we took both civil and criminal cases.
And there were some test cases. It was quite a comprehensive legal services
effort. We not only sent students into court but also involved them, for example,
in drafting the “Cambridge Model Cities” program as counsel to citizens elected
to head that effort under the guidance of HUD representatives. We even counseled
a local chicken cooperative and drafted a prospectus for a private offering of
securities in the venture, under the watchful eye of Professor Louis Loss. In fact,
the faculty became increasing interested and involved. During the holiday and
spring vacations, faculty members took the student slots as counsel at the CLAO
office. I could spend a good deal of time relating anecdotes about how certain
faculty members conducted those sessions!
Mr. Kapp: Was there a classroom component to this?
Judge Ferren: Not at the beginning, but various professors would invite me to come to class to
present problems that we generated in the clinic. For example, Professor Andrew
78
Kaufman, who taught professional responsibility, invited me in to present cases,
and, in fact, one of them ended up in a casebook that he wrote on professional
responsibility for Little Brown & Company. Criminal cases and landlord-tenant
cases came in to other classrooms, and in due course I participated as a co-teacher
of a class given by Professor Frank Sander and Dr. Allan Stone, a psychiatrist on
the faculty, on the human relations problems in legal practice. There were also
colloquia in the evening when we brought in social workers and others to deal
with these cases; they were written up on an anonymous basis so that no client
confidence was revealed. Eventually, I taught a course on the provision of legal
services, which was a course built entirely around cases developed from the
clinic. I also co-taught with Professor Adam Yarmolinsky a workshop on urban
problems.
While I directed the Legal Services Program, I also served on Harvard’s
committee on the university and the city, meaning Cambridge, chaired by James
Q. Wilson. And, in 1969 I think it was, I taught a seminar for freshmen at Harvard
College on the issues of providing legal services for the poor. I put together
materials with the help of Mitch Polinsky, a college student who volunteered in
various ways at CLAO for two years and is now a professor of economics on the
Stanford law faculty. Mitch helped me select the students, and we put together a
wonderful mix. Among them, one had been in prison, another was the son of a
small-town lawyer in Tennessee, another’s father was head of a major public
housing authority, and a young woman was related to the president of Howard
University. Unfortunately, events in the Vietnam war – was it the bombing of
79
Cambodia? – brought mass demonstrations on campus during the spring of 1969,
including a student takeover of University Hall. The college was shut down, and
our seminar canceled, before we could complete it. I guess I’ve strayed pretty far
from clinical-legal education!
Mr. Kapp: And had Harvard at this time had any prior experience in clinical programs?
Judge Ferren: Its only experiences had been the student voluntary defenders and the student
legal aid bureau, and, as far as I was aware, they had no staff attorneys attached to
them. They probably had faculty advisors. Yes, Livingston Hall was advisor to the
voluntary defenders. There were court rules that permitted student participation in
court in a limited number of situations. But the school had never had had a
comprehensive program like ours, which we called the Community Legal
Assistance Office, or CLAO.
Mr. Kapp: Were there programs like this in other law schools?
Judge Ferren: The only one like this at the time had been started a few months before at the
University of Detroit Law School. Dean Paul Harbrecht, who was a former
colleague or classmate of Clint Bamberger and Father Drinan at Georgetown, had
received an OEO demonstration grant and started a clinic. During the summer
before I opened ours, I flew out there with my student colleagues to see how they
were doing and learn what we could. But that was it.
Mr. Kapp: How would you describe the students’ response to the program?
Judge Ferren: It was absolutely overwhelming. I gave an opening presentation to the students at
the Harkness Commons, and it was standing room only. You had the feeling – it
wasn’t true – the feeling that the whole school was there. I mean, it was just
80
absolutely overwhelming. I stood in the middle of the room and gave a theater-inthe-
round talk explaining the program. I almost got mobbed when I started to
hand out applications. People came thundering toward the center of the room to
pick them up, and I’m not sure but that I fell over. We had something like 300
applicants for 75 slots. There was a tremendous interest and that continued the
four years that I was there.
Mr. Kapp: And is the program still active?
Judge Ferren: Yes, but in a much different form. When I left in 1970 to come to Hogan &
Hartson, the program continued, and a year later- I gather, sometime in 1971 or
1972- Professor Gary Bellow carne to develop the clinical program further. We
had done enough to show the faculty that there was real promise for integration of
a clinical component into the law school curriculum. Gary was a real star, and he
put together a program that began to include courses, and eventually they opened
an office in Jamaica Plain, Boston, rather than continuing the Cambridge office.
Hale & Dorr and other law firms, I think, endowed the program. It’s a marvelous
program right now. Gary’s wife, Jeanne Charn, had been a student in our program,
and I think she’s still involved with it after his death. So yes, it’s alive and well.
Mr. Kapp: And what would be your assessment of clinical legal education generally? I mean
does it continue to have a very large role in many law schools and do you regard it
as an important component today?
Judge Ferren: Well I do. Let me back up, Bob. A lot was happening all at once, and during this
same period in the late 1960s, the Ford Foundation established a satellite
foundation called the “Council on Legal Education for Professional
81
Responsibility, Inc.” (CLEPR) headed by William Pincus, who had been a
program officer at Ford. Bill had a personal commitment, and Ford supported it,
to get a clinical program in every law school in the United States. Bill had a viewunlike
the OEO Legal Services Program that the real future of legal services lay in
one-to-one relationships with clients, and he wanted every law student to have a
client, not a class action, but a client. To Bill’s credit, CLEPR achieved a clinical
program in virtually every law school in the United States, and he had some very
tough criteria about local match so that it wasn’t just foundation money. He
required a commitment to continue the program once the foundation pulled out
after, maybe, two to three years for each grant. I was on the board of CLEPR after
I left Harvard, and I think it was very, very successful. I should say, too, that Bill
gave us a grant toward the end of my tenure at Harvard to train clinical law
professors, and we started a master’s – an L.L.M. program – to that end. I directed
that and taught a seminar where we sat around trying to figure out what the best
form of clinical education would be. That’s background to say that I think clinical
education has several very important aspects to it.
First, not every law student is going to go work for a large law firm, and
there’s an appalling lack of training to practice law in the law schools, without a
clinical option. So although this isn’t particularly an altruistic reason for it, I think
skills training has a role for a lot of students in many law schools and clinical
work helps that. Second, and most important, for every student, is the opportunity
to learn about yourself. You really never know what you’re like as a person, I
think, until you are put in a position where you are asked to help someone else. I
82
saw a lot of students who thought that they were going to help save the world, and
they would get in and start dealing with some low-income clients, and they
realized they didn’t have the temperament for it. Others tried it out thinking that
they were going to be corporate lawyers, and they got intrigued by and attracted
to working with individuals and found themselves more with a “helping”
motivation than they even knew they had in themselves. So you learn a lot about
yourself. But beyond that? Well, I guess the third thing is that clinical work starts
integrating other disciplines into legal education- social work, insights of that kind
are merged with the practice – so that’s another value. You can answer better than I
– because I’ve been away from law practice for many, many years- whether it has
any value to a large law firm these days.
Mr. Kapp: What do you think happened to the students that you had in this program? Where
did they go? Did they go into public interest lawyering? Did they go into large
law firms? If they went into large law firms, did they carry anything with them?
What do you think?
Judge Ferren: All the above. I have seen former students that I worked with in this program
become managing partners of major law firms, and I’ll bet you that they are
encouraging their firms to sink money into pro bono programs in their firm and
the Lawyers’ Committee for Civil Rights and elsewhere. I have seen students
leave law firms and join legal services and stick with it since the late 1960s in one
form of public service program or another. And I have seen some who have gone
into legal services for a half dozen or a dozen years and then moved into private
practice, perhaps when they were looking at college tuitions for their children. But
83
I think those who went through this program have ended up in every kind of legal
practice. I remember that Pam Minzner, who’s on the Supreme Court of New
Mexico, was in our program. So I think they have gone all over.
In looking back I don’t want to forget to say how important Dean Griswold
was to our effort. In the first place, he worked hard to make sure that the
university would accept our OEO grant, which the law school itself did not have
authority to do. The grants office had unrealistic overhead and other requirements
that OEO would not honor, and the Dean had to help us get over that. He gave me
encouragement all during the first year and then left to become Solicitor General.
To my amazement, he wrote me by hand a long letter of thanks from his room at
the Cosmos Club soon after he arrived in Washington; I was astonished and, of
course, most grateful. Later I learned that Dean Griswold commonly wrote such
letters of encouragement or appreciation to his faculty. To me, he was a man of
real character and class. Several years later, when we moved to Washington, he
and his wife, Harriet, were among the first to invite us to dinner. After Dean
Griswold left Harvard, Jim Casner, as acting dean, supported our program,
including an increase in our budget, and then when Derek Bok became Dean he,
too, was a fan of CLAO. He took me along with him, or sent me alone, to speak to
alumni groups about our growing clinical program. Al Sacks succeeded Derek
Bok as dean when Derek became president of Harvard. Like Derek, Al saw great
promise for clinical-legal education. When I told him about my plan to leave for
Hogan & Hartson, he offered me an additional five-year appointment and urged
me to stay. But the clinical program was well under way, and I had decided that
84
the opportunity to begin a community services department at a major law firm,
particularly H & H in Washington, was too good to pass up.
Mr. Kapp: During the period in which you were at Harvard and in the clinical program, I first
met you in connection with the assessment of the Piper & Marbury storefront
office in Baltimore?
Judge Ferren: Yes.
Mr. Kapp: And I wonder if you could tell us a little bit about that program and your role in
the assessment and what Piper & Marbury was about?
Judge Ferren: I’ve mentioned Clint Bamberger, who headed the OEO Legal Services program.
He’d been a partner at Piper & Marbury. He had another partner, Frank Gray, who
was very public spirited. William Marbury himself, a Harvard law graduate, had
followed our Chicago program and was very supportive of Piper & Marbury’s
trying to do something different to make the resources of the firm available to the
lower income community. I don’t recall how they came up with the neighborhood
law office model that they selected. Allan Ashman wrote a book that incorporated
the study that you and I and others constructed. In any event, Piper & Marbury set
up a neighborhood office in Baltimore to serve low-income clients. Peter Smith,
who had been with Neighborhood Legal Services in Washington, was brought
into the firm as an associate to head that office. And as you know, you and I and
others were part of a team that evaluated the office for Piper & Marbury. The
National Legal Aid Defender Association was part of that evaluation, too. There
were some pluses and minuses, but the motivation of the firm was exemplary.
Mr. Kapp: But the program no longer exists?
85
Judge Ferren: I don’t believe it does. We could come up with all kinds of reasons for that, but I
don’t think it goes to the question of the commitment of Piper & Marbury. I think
that, to this day, they are a very strongly committed pro bono law firm. I think that
that particular model, and that particular community, and the particular leadership
eventually led to other things.
Mr. Kapp: Do you have any idea of what happened to Peter Smith?
Judge Ferren: I think Peter’s in New Hampshire, and I think I heard that his wife may be in the
legislature up there.
Mr. Kapp: I think for a while he’d gone to the University of Maryland.
Judge Ferren: That’s right. This discussion reminds me that, as a legal services program director,
I was invited from time to time to join a team that would evaluate other OEOfunded
legal services programs. Then an unusual request came along. The Legal
Aid Agency in Washington, D. C.- a program limited to providing representation
for indigent defendants in criminal cases – was in some turmoil because many of
the federal district judges had been complaining that the agency’s lawyers were
filing too many motions on behalf of their clients, and as a result the Legal Aid
Agency had begun to back off. I believe it was Sidney Sachs, one of the agency’s
board members, who asked OEO if it would put together an evaluation team to
check into the agency’s work even though the agency was not an OEO program.
OEO agreed, and I was asked to do the job along with Charles Rogovin, then (I
believe) an assistant attorney general in Massachusetts, and Joseph Vining, then
an associate at Covington & Burling (and later a professor at the University of
Michigan Law School). None of us knew what we would be getting into.
86
We learned that the board in charge of the program was pretty evenly
divided between those who supported an aggressive defense effort and those who
thought the lawyers were pushing too hard. The latter, conservative group -led by
local attorneys Roger Robb and John Pratt (both later federal judges) ·- had
prevailed by replacing the aggressive agency leaders, in particular Addison
Bowman and Gary Bellow, with others whom the judges found more acceptable.
The liberal board members, including L Sidney Sachs – a group called by some
the “Bazelon faction” after Chief Judge David Bazelon of the U. S. Court of
Appeals for the District of Columbia Circuit – hoped that we would find that the
agency had begun to pull its punches too much and would recommend that the
agency return to the Bowman-Bellow philosophy. It didn’t take us very long to
discover that the judges, as well as the board members, were split over the
agency’s work. And so Charlie, Joe, and I felt that we had to interview quite a few
lawyers and virtually every federal judge, as well as a number of judges on the D.
C. Court of General Sessions (the Superior Court’s predecessor), to get a real feel
for what was going on and, perhaps of equal importance, to be sure that every
judge felt that he or she had been heard on a very touchy subject.
All three of us became convinced- the issue wasn’t even close — that the
agency had taken a turn for the worse, that the lawyers had begun to pull their
punches for fear of upsetting judges who didn’t want to think, for example, about
having to rule on motions to suppress unlawful searches and seizures. We were
appalled at Chief Judge Curran’s going on and on about how Bowman and Bellow
were overzealous in representing their clients; and we were impressed by Judge
87
William Bryant’s concern that the agency’s forceful, effective defense
representation had begun to go downhill. After three days of interviews, we got
together to outline our conclusions and then left it to Joe Vining to take our
written summaries of the interviews and draft our report. He did a wonderful job.
After we all had signed off on the report and sent it to the board, the board
apparently took our recommendations seriously, for not long thereafter the board
marked a new direction by renaming the agency the Public Defender Service
(“PDS”) and appointing a new director, Barbara Babcock, who brilliantly
redirected the program back toward aggressive advocacy for its clients. It became,
again, one of the nation’s leading public defenders.
One of our recommendations was to reaffirm the importance of limiting
the agency’s caseload to numbers that its staff could handle well while, at the
same time, taking a look at areas that needed reform. In other words, the agency
was to have a criminal law reform mission in addition to its representation
mission. That meant that the private bar was to take the balance of the cases – to
act as the “elastic” in the system, as it were – with payment under the Criminal
Justice Act. As a result, I think that the District of Columbia’s “mixed” system of
criminal representation came to be, and has remained, perhaps the finest criminal
defense system in any jurisdiction of the country.
88
ORAL HISTORY OF THE HONORABLE JOHN FERREN
Fourth Interview
February 5, 2002
This interview is being conducted on behalf of the Oral History Project of the District of
Columbia Circuit Court. The interviewee is John M. Ferren. The interviewer is Robert H. Kapp.
The interview took place at the offices of Hogan & Hartson L.L.P. on the 5th day of February
2002, shortly after noon. This is the fourth interview.
Mr. Kapp: John, the last time that we were together, we talked about your role in the Harvard
Clinical Program, and I know that in 1970 you accepted an offer from Hogan &
Hartson to become a partner and to head its Community Services Department
(CSD). Can you tell us how that came about?
Judge Ferren: Yes, I think it was in the fall, maybe October of 1969 that I received a letter from
Seymour Mintz from the firm of Hogan & Hartson saying that the firm was going
to set up a full-time cadre of lawyers to do community service lawyering. They
wanted to have a partner in charge, a mid-level associate who would be assigned
to work with that partner for approximately two years before someone else came
in, and then a younger associate who would be part of the firm’s rotation program
and serve for four to six months. The idea was that this department would take on
a variety of community service projects in the name of the firm, of course, and
also would generate projects to involve other lawyers in the firm. I read Mr.
Mintz’s letter, thought it interesting, and threw it in the wastebasket. My wife
asked what that was, and I told her, explaining that I had become pretty cynical
about large law firms, having worked at one. And many of the students at Harvard
at the time were turned off by large corporate practice, and, indeed, there was
89
picketing going on, I knew, in Washington of at least one firm by people who felt
that the firm should not be involved in South Africa, if I recall correctly. And, in
any event, I just didn’t really believe that a firm could be truly serious about such
an enterprise. I was very happy doing what I was doing at Harvard.
But I later fished the letter out of the wastebasket. I had called Mr. Mintz
and thanked him for the letter and said I was not interested. I read the letter a few
more times and began to think that if this firm means what it says, this is quite a
breakthrough in terms of public interest lawyering by major law firms. So, after
thinking about it a little longer, I called up Mr. Mintz again and said, “You know, I
think this sounds very encouraging, and I think I would like to talk further about
it.” So, as a result, I flew down to Washington and met with Mr. Mintz; with you,
Bob, as Chair of the committee that was putting together this program; and with
Tony Harrington, Sally Determan, Peter Rousselot, and Carl Taylor. There may
have been others, but I think that was the committee. When I met Mr. Mintz, who
was the head of the Tax Department and, really, the head of the firm at that time, I
was struck by the fact that he was wearing a tweed sport jacket with elbow
patches. I saw somebody else that Seymour identified as a partner in the
Communications Department, Howard Roycroft, in a yellow sport jacket. I
remember at Kirkland, Ellis in Chicago one of my associate’s being sent home for
having inadequate attire, and so I thought, well, maybe not all law firms are quite
as stuffy as I had thought.) To make a short story of it, I spoke with the
committee; I also met Ed McDermott and Merle Thorpe, who were on the
Executive Committee at the time, and Barrett Prettyman. I was very impressed
90
with everybody that I met and became convinced that the firm was really serious
about its proposed commitment. After thinking further and talking it over with
others, we eventually worked out an arrangement. We moved to Washington, and
I joined Hogan & Hartson, around the 1st of June of 1970.
Mr. Kapp: What is it about the initiative that interested you?
Judge Ferren: Well, I think it was the opportunity to take the resources of a firm that was well
known in the community and well respected and bring those resources to bear on
behalf of low-income people, civil rights plaintiffs, people who ordinarily are not
represented by a firm like that. The weight of good legal resources could be
brought to bear for people who normally went without counsel or perhaps with
very weak counsel. And I believe that firms had a professional responsibility to
devote a portion of their resources to serving people who couldn’t afford counsel,
and I thought that if the firm was serious – as it appeared to be – this Community
Services Department could demonstrate that commitment, which hopefully would
be replicated by other firms around the country. Second, the program would
involve lawyers in the firm outside the department. I didn’t want this to be a
project that did all the pro bono work for the rest of the firm. To the contrary, it
should be a force that would generate business, pro bono business, and
centrifugally spray it around the firm and involve other partners and associates,
depending on their interests and expertise. As you know, Bob, you and I and Allan
Ashman and others had evaluated Piper & Marbury’s pioneering effort up in
Baltimore to open up a neighborhood office, an antipoverty law office, and I had
great respect for what that firm was doing there. Hogan was making a judgment
91
that having a program within the firm, rather than in a neighborhood, would give
greater flexibility in terms of the projects it could take on, and I tended to agree
with that. Hogan’s would be a way of testing a new model that might have
tremendous implications for improving legal services for the low-income
community, ultimately throughout the country. And Hogan reinforced its
commitment by proposing to put a partner, not an associate, in charge.
Mr. Kapp: Can you describe the nature of the work that was done by the Community
Services Department during the period of your tenure?
Judge Ferren: Well, anecdotally, I’d have to start off with the fact that Ralph Temple, who was
the local executive director of the American Civil Liberties Union, was probably
more cynical about Hogan’s commitment than I was initially when I got Seymour
Mintz’s letter. Ralph was lying in wait for me. I had been in town in the office for
about 24 hours, and maybe it was even the first day I was at the office. He walked
in and said, basically, if this commitment is real, you will take the ACLU case that
I have for you to represent the Black Panther Party against the D.C. Police
Department, which has raided Panther headquarters and beat up a few of its
members. We’d like a civil suit to recover damages against the D.C. Police. I
swallowed hard and said I’d get back to him. I’m sure I talked to you, Bob, and to
others. I guess I figured that my bargaining power in the firm was probably at its
highest on day one. I thought I might diminish as more cases like this came along,
so I pushed for the case. It was actually two cases. I think a lot of other lawyers
swallowed hard, but Harold Himmelman, Lang Keith, and I took the case, and we
actually recovered damages for a group of individuals who had been beaten up
92
pretty badly by the D.C. Police. I think that this case, in a way, got us going and
convinced the cynical community, like Ralph Temple and others, that the firm was
quite serious and was not going to duck a case just because it was likely to be
controversial.
We took other large cases over the years. We brought one representing the
Community Action Agencies, the OEO Community Action Agencies. Howard
Phillips, the head of the OEO under the Nixon Administration, was trying to
dismantle the poverty program administratively, and we brought an injunction
action, West Central Missouri Rural Development Corp. v . Phillips, to stop that
before Judge William Jones in U.S. District Court here. The case was joined with
one brought by the government employees’ union, which managed to have the
lead caption in the case, Local 2677, AFGE v. Phillips. The case was filed in
February 1973 and was decided by mid-April. We succeeded in enjoining the
dismantling of the poverty program. I was in court with Allen Snyder, it seemed,
every other day as various issues came up. In fact, government employees were
literally slipping hot items under our door that they weren’t even giving to their
own government counsel showing how the Nixon Administration was breaking
the law right and left trying to scuttle the poverty program. So it was a very
successful case and, again, the firm stood tall.
We had another large case early on. We didn’t always take cases in the
District of Columbia. We worked with the University of Detroit Law School (after
its key staff attorney had left) to continue a suit against HUD and the U.S.
Department of Transportation and the City of Hamtramck, Michigan, which had
93
been using federal money for urban renewal that would remove all of the African-
American families in town by just mowing down their houses. In Garrett v. City
of Hamtramck, Allen Snyder, Phil Larson, and I obtained a mandatory injunction
to requ1re the replacement of that housing according to site plans we proffered
with the help of a pro bono architect from Detroit, a city planner from
Philadelphia, and a community organizer from the University of Detroit law
school clinic. The case was successful, for the most part, upon remand by the
Sixth Circuit when the case was appealed. (I’ve got to say, parenthetically, that by
the time this process was ended, most of the families that had been displaced were
long gone and could not be found; I guess that shows the limits of the court
system in correcting injustice through mandatory relief like that.)
There is another major case I should mention. David Tatel, Allen Snyder,
Walter Smith, and I represented the NAACP in the Port Gibson case, Henry v.
First National Bank of Clarksdale, in which a Mississippi chancellor had awarded
1.25 million dollars in damages and attorneys’ fees against the NAACP and its
affiliates for leading a boycott against white merchants who were discriminating
against African-Americans. Specifically, our lawyers obtained a federal court
injunction barring enforcement of a Mississippi supersedeas bond requirement
pending appeal to the Mississippi Supreme Court. Had this requirement been
enforced, the NAACP would have had to post a bond totaling 125 % of the
judgment to avoid immediate seizure of its bank accounts and other assets – in
other words, financial ruin. The NAACP had no way of raising that kind of money
to protect its right of appeal, so the federal injunction we obtained against the
94
bond requirement was crucial. And that injunction was affirmed on appeal
through the good efforts of Allen and Walter in the Fifth Circuit. While we were
keeping the bond requirement at rest in federal court, lawyers from Wilmer,
Cutler, and Pickering were pursuing the defendants’ appeal to the Mississippi
Supreme Court. That court affirmed the Mississippi chancellor, but, in the end, the
U. S. Supreme Court reversed, thereby vindicating the boycott against the Port
Gibson merchants.
After mentioning these large cases, I want to be sure to emphasize that, at
the same time, we did not believe that the purpose of our Community Services
Department was exclusively to bring big class actions or major lawsuits. It was
important for us to do that so that the firm’s resources could bring cases that only
a large firm like this, like ours, could handle; but we involved lawyers throughout
the firm in small cases – whether it was a landlord/tenant dispute, or a consumer
matter, or a local fair housing organization or a program to assist drug addicts, for
example. We also drafted legislation that, with the help of Senator Eagleton who
chaired the Senate District Committee, created the pathway for restoring the right
to vote to ex-felons in the District of Columbia.
One day Chief Judge Greene from the Superior Court called up to say, “I
have 75 juvenile cases for the firm; we’ve run out of Criminal Justice Act money.”
I somewhat grudgingly took those cases, not because I didn’t want to help defend
juveniles but because it was clearly a public responsibility to pay for criminal
defense work, and the private sector shouldn’t have to bail out the public fisc that
way. But, in any event, we took the cases, and I literally went around and dropped
95
them on the desks of partners and associates. I remember that one of our senior
partners, Lee Loevinger, went down to court- fortunately, with Ray Vickery to
assist him- and Lee was so outraged at what he saw going on in the Superior
Court in that case that he raised his voice perhaps a little too loudly. The judge
stopped him cold. I don’t know if the judge held Lee in contempt initially, but the
judge at least was very close to it. Ray had to rescue Lee, and I later thought: if
we could bottle the outrage that Lee felt about the system and somehow let
everybody drink some of it, there would be much more pressure to reform the
system. So we handled small cases as well as large ones.
We also worked for community organizations in the District of Columbia.
For example, on referral from Steve Pollak, who chaired the Washington Lawyers’
Committee for Civil Rights Under Law, I represented the Housing Development
Corporation, led by the Rev. Channing Phillips, in connection with its Clifton
Terrace Project.
Mr. Kapp: And you also, did you not, represent the Welfare Rights Organization in its early
days?
Judge Ferren: Yes. Well, not in the early days so much, but George Wiley, the leader of the
National Welfare Rights Organization, NWRO, and related organizations, had
plenty of volunteer legal help from other sources to bring various welfare rights
cases. But his organization, which had a bunch of nonprofits, required some, shall
we say, reorganization and tax advice. So I became counsel to NWRO and George
for charitable exemption purposes and for “non-profit law,” so to speak. I spent
hours and hours and hours trying to make sure that their house was in order,
96
because money came, money went out, and sometimes you wondered whether
you could keep this all assembled in proper form. We spent a lot of firm time
working with the Welfare Rights movement in that way.
Mr. Kapp: How would you describe the attitudes of the lawyers within the firm, particularly
the partners within the firm, to your initiative? Was it smooth sailing all the way,
or were there bumps along the road?
Judge Ferren: Bob, we had a system called the four-day rule, or was it the five-day rule?
Mr. Kapp: Four-day.
Judge Ferren: Four-day rule; I remember. For every case that came in, we would write it up and
circulate it to the partnership. If a partner had a problem with the case, the partner
would contact me and the firm’s Executive Committee. We obviously couldn’t
take a case that involved a consumer problem that a banking client of the firm was
involved with, so this was a way of making sure we had no conflict. But the
policy also was included to let the partners know what we were about, and,
indeed, if there were objections for any number of reasons to have it out and
discuss the proposal and find out what the firm should be doing. I can’t remember
how many partners we had at the time. The firm was around 85 lawyers, or no
more than 90, when I came – and no more than 130 when I left. And I suspect we
had 40 or 50 partners of that number. With the exception of 2 or 3 or 4 partners
who I think probably never supported the idea of the department, all of the other
partners were supportive to very supportive, and I was very pleasantly surprised.
I, of course, didn’t know them all when I came, and I spent a lot of time going
around and getting acquainted and hearing ideas and giving my own. And I would
97
have to say that the partnership overall was very accepting. Sure, there were cases
sometimes that I wanted to bring that some people had feelings against, and we
worked those things out. But as I sit here, I really cannot think of a nonconflict
case that I wanted to bring that the partnership turned down, and it was the
Executive Committee that would make the final determination. We didn’t have a
partnership vote. The Executive Committee really supported this program, and I
think the committee was willing to stand up to a partner when the committee
believed there was not a good reason to turn a case down. And, of course, we had
no trouble getting as many partners and associates involved as wanted to
participate.
Mr. Kapp: And how long did you function in that role as the head of the Community
Services Department?
Judge Ferren: I was in charge of it for the seven years I was with the firm, but about halfway
through, late in 1973, the firm – which had functioned, its management had
functioned, exclusively through the Executive Committee – decided to set up an
administrative partner who would administer the firm on a day-to-day basis and
particularly initiate improvements that all of us realized needed to be made in our
insurance programs, our accounting reports, and so forth. We were just at the
threshold of automation; we needed more carefully drawn personnel policies. The
firm asked if I would be willing to be the administrative partner on a part-time
basis, and I said yes. So at my urging we brought in David Tatel, who had been
directing the National Office of the Lawyers’ Committee for Civil Rights Under
Law, to help run the CSD. David came in as an associate, and eventually became
98
a partner. Probably from the time I took over as administrative partner, David
took most of the initiative in operating the Community Services Department.
During that period, we expanded. By the time I left in 1970, we actually had five
full-time lawyers. My view had been that the department ought to expand as the
firm expanded. I still stayed on top of everything that was going on, and I think
ultimately made the decisions that the department made. To put it the other way
around, the department didn’t move unless I was on board with it. So David and I
joint ventured the CSD, but he was really the initiator of most things, beginning
probably in early 1974, if I recall correctly.
Mr. Kapp: And how did he come to your attention?
Judge Ferren: Well, I had known David. He had been a strong leader of the Lawyers’ Committee
for Civil Rights and he had also had private firm experience with Sidley & Austin
in Chicago. I think for a time he’d been with the Sidley & Austin office in
Washington. So he had had both private practice experience and public
experience, and, therefore, I certainly felt he would be the right person for the job.
But, of course, he was welcomed and easily sold himself to everybody else. I
didn’t really have to persuade anybody to bring David in; we were all thrilled.
Mr. Kapp: And who were some of the other people who served in the department in various
full-time positions while you were there?
Judge Ferren: At the outset, Harold Himmelman, who had been with the firm in the Litigation
Department, was the middle-term associate, and Harold was absolutely terrific.
He knew the local court system; he was a very, very good lawyer; and he left to
join the McGovern Campaign in 1972, early 1972. At that point, we were very,
99
very fortunate to recruit Allen Snyder, who was then clerking for Justice
Rehnquist, to come to the firm at the end of his clerkship and serve in the CSD
full time for two years. Allen and I worked right next door to each other as soon
he came from the Court. Frankly, we used the CSD to recruit Allen. And I don’t
know that Allen would have joined the firm if he could not have had the front-end
opportunity to work in the CSD. As you know, Allen was one of the finest
lawyers who has ever been with the firm, and even though he did not have a lotdid
not have any practical outside experience beyond being President of the
Harvard Law Review- he stepped right in as a very able and practical-minded
fellow. The fact he had no practice experience meant nothing; we were lucky to
have him, and Allen was one of the lawyers who always made me look good.
Allen’s ability to frame matters clearly, his judgment in selecting the most
appropriate approach, his legal skill in presenting a case, his wisdom in dealing
with sticky situations, and his calm manner and kindness day-to-day were a
godsend to me, to the firm, and to every CSD client. That’s how I feel about Allen.
After Allen, Sandy Berger came into the department for a while. Philip Larson
also served as a rotating associate, as did Lang Keith, who became a judge in
Fairfax County.
Mr. Kapp: Well it’s quite a brilliant cast when you look back.
Judge Ferren: Yeah, incredible.
Mr. Kapp: When you look back at that period of time, John, how do you assess the
Community Services Department initiative? Successful? Not successful?
100
Judge Ferren: I think it is enormously successful. I mean in the first place, it still exists. This
department is going strong on an expanded basis, and we started in 1970. It’s now
2002. So what are we saying? Thirty- two years that the firm has had this
department. And I think, as I mentioned earlier, that by taking some pretty
controversial cases at the beginning, the firm showed it was not simply taking
cases that were easy. It was willing to stand up and be counted on the side of cases
that the firm normally wouldn’t find itself on. I think it has been very useful to the
firm in recruiting good lawyers. I would have no doubt about that, and I’m sure
that that had to be at least part of the motivation in setting it up, although I was
convinced when I came that that was not what was driving the idea. I think public
service was driving the idea, and, in fact, to be very blunt about it, when people
asked, “Why do you think it was successful? Why did you believe in it when you
came?” I said, “I think Seymour Mintz talked to young people.” I think basically it
was a situation where people running this law firm were in touch with issues of
social injustice and realized that there was a professional responsibility that
required involvement for a clientele broader than the firm usually was serving.
Mr. Kapp: Can you talk about your sense of the influence of the initiative on other law firms
or on the Bar generally?
Judge Ferren: I think it has had a very strong influence. It has been very visible around the
country, and although I think relatively few firms, at least for a long time, were
willing to have a group of full-time pro bono lawyers operating the way we were,
it’s clear that firms all over the country- certainly in this city, but I know in others,
and many in response to the example of Hogan & Hartson – set up pro bono
101
committees, designated a partner, not just an associate, to be in charge of the pro
bono program devoting a substantial portion of that partner’s time to it. And the
pro bono movement really, really took off. I ended up as Chair of the American
Bar Association Public Interest Practice Committee. I guess I was selected for that
job because of what I was doing at Hogan & Hartson. We used the ABA as an
additional vehicle for touting public interest law around the country with great
success. When I chaired that committee, we formulated and published a proposal
articulating a formula for public interest practice that we encouraged all lawyers
and firms to adopt. I asked Erwin Griswold to advocate adoption of our proposal
on the floor of the ABA House of Delegates, which he did. The motion for
adoption passed, and this was, I think, the first time that the ABA or, as far as I
could tell, any bar association actually quantified a suggested commitment to pro
bono service. After my term ended as chair of the so-called “PIP” committee, I
chaired the American Bar Association’s Consortium on Legal Services and the
Public, which was a consortium of ABA committees in the field of legal aid,
public interest practice, legal assistance to members of the armed services, and
other similar committees. So I think Hogan influenced the ABA, which used its
pulpit to preach this good word. I think there have been other firms around the
country that have set up departments, but I don’t know of any firm that has been
anywhere close to being in it as long as Hogan on such a substantial basis. I could
name other firms in Washington that I think do an awfully good job and they
probably would have done so, but you never know. I think our influence was
pretty great.
102
Mr. Kapp: In 1977, you were appointed to the District of Columbia Court of Appeals.
Judge Ferren: Yes.
Mr. Kapp: Can you tell us how that all came about?
Judge Ferren: I can assure you I had never, ever, thought about being a judge of any kind, and
by that time I had resumed my full-time role in the Community Services
Department. I had given up the job of administrative partner after three and a half
years; Gerry Gilbert took it over. This was around the beginning of 1977, and I
was happily settling back in and working with David Tatel and the others in the
department. I believe it was in February of 1977, when Judge Fickling of the D.C.
Court of Appeals died. Not long thereafter, I got a call from Fred Abramson,
whom I knew a little bit. He was with Sidney Sachs’s firm and was Chair of the
Judicial Nomination Commission. He asked if I’d be willing to be interviewed by
the Commission for the D.C. Court of Appeals. At the time, I didn’t really know
much about how the local court system was organized. I learned that under our
new home rule scheme that began in the early 1970s, we had a Missouri plan for
judicial selection, which is a merit selection system where a seven- member
commission made up of lay and law persons- including, in our case, one Federal
District Judge- would nominate three individuals to the White House. The
President, under the legislation, was duty bound to pick one of those three as
either a Superior Court Judge or a Court of Appeals Judge, depending on the
vacancy. Missouri started it, and, of course, its commission would nominate to the
governor, who made the selection. But in our situation, it was the President and
not the Mayor. I said I’d think it over. Later, I called Fred back and said I’d like to
103
know more. I came down and met with the commission, and as a result of that I
was one of three individuals whose names went to the Carter White House for
selection for the D.C. Court of Appeals. The others were Judge Sylvia Bacon,
who was a very fine trial judge on the Superior Court, and Richard Medalie, a
highly regarded lawyer in town. By the middle of May, I got a call from the White
House saying that President Carter had checked a box nominating me for the
judgeship.
Mr. Kapp: And can you describe your earliest experiences as a judge?
Judge Ferren: I deferred getting sworn in until after Labor Day. In 1977, to take a little vacation
and to get a couple of law clerks. I was fortunate to get Jim Tomkovicz, who was
then a clerk for a Federal District Judge in San Diego and knew the criminal law. I
had not handled that many criminal cases, and criminal law is about half the
caseload or more on the D.C. Court of Appeals, and so Jim was willing to come to
be a clerk. And I got Ken Miller, who was a recent graduate of Harvard Law
School and was very good in economics, among other things, and in accounting. I
think the court was lying in wait for me, because the very first case I got assigned
to write was a utility rate case, which was a huge undertaking, and Ken was very
helpful in particular in that. Jim Tomkovicz basically taught me the criminal law
as we went along. I was excited. As I said, I’d never thought about a judicial
career, I’m still not sure why I was willing to give up the best job in town as head
of the Community Services Department to be a judge. In fact, I think I’d only been
in the D.C. Court of Appeals once. We had one, no we had two cases in the D.C.
Court of Appeals in the seven years I was with the CSD at Hogan. In any event,
104
Chief Judge Newman was extraordinarily kind and helpful to me. Every member
of the court was. A former partner of mine at Hogan & Hartson, Stanley Harris,
was on the court. So it was something that I just plunged into with great gusto and
really felt good about doing, and it seemed to suit me quite well. I felt honored to
have been chosen to participate in finding justice – in determining just results – in
all kinds of cases, large or small. I knew that I cared about that very much. Also,
the court offered a wonderful academic experience, which I, of course, always
enjoyed – the research and writing – but it also had consequence. It wasn’t just
writing an article; you actually made a decision that affected people’s lives, and so
that combination I felt suited me well.
Mr. Kapp: How would you describe the transition from lawyer to judge? Is there a difficulty
in the transition? Or is it a natural transition or what?
Judge Ferren: Bob, it felt more natural than I thought it would be. I don’t think in practicing law
as an advocate I ever took a position without asking myself, “Well, what is the
right position?” What is the answer? How is this going to turn out, and can we
responsibly take the position we are taking? So I think I was deciding cases all
along when I was acting as an advocate, even though one is never quite sure how
they are going to turn out. So I did not find the transition difficult at all. I found it
very natural, and I guess I just allowed the more academic side of me to take over.
I’d been spending a lot of time as a people person running committees and
politicking with my partners and all of that, and it was kind of nice in a way to
come into an environment where I could just roll up my sleeves and do legal
research and writing and expand that side of myself. That isn’t to say there aren’t
105
politics on a court, believe me there are. But it was a quieter involvement, and, as
it turned out, I felt comfortable making that change.
Mr. Kapp: How were you received by your new colleagues?
Judge Ferren: Very well. I had just a wonderful reception from every one of them, and the court
was pretty evenly divided philosophically. It was a nine-judge Court and on tough
issues – by which I mean Bill of Rights issues, Fourth, Fifth Amendments-type
issues, criminal law issues – there were a lot of 5-4 decisions when we sat en banc.
A lot of panels were 2-1, and I was on the liberal side of the Court, as people
would characterize it in most of those gut issues. But I never felt that those who
disagreed with my position lacked respect for me, and I respected my colleagues
with whom I disagreed. The court in those early days, nonetheless, was a more
contentious environment than it has been more recently. But it worked.
To illustrate the closeness of difficult cases at the time, I believe that the
Chief had seven or eight petitions for rehearing en banc waiting for me where the
vote by the other eight was 4 to 4. It takes five votes to go en banc. I had a lot to
learn- and decide- very quickly.
Mr. Kapp: Any of those colleagues who you feel had a particular influence on you as a
judge?
Judge Ferren: Well, they all did in different ways. Certainly Ted Newman as Chief did because
he made it his business to show me the ropes, and so from the point of view of
time spent with a colleague I think Ted was extremely active with me. Judge Julia
Mack became one of my closest friends on the court, and I respected her
enormously. The judges with whom I disagreed most were Frank Nebeker and my
106
former partner, Stan Harris. We would have very, very strong disagreements,
mostly on constitutional interpretation, but they made me a better judge by
making sure that everything I proposed was tested by their views, and I think, in
turn, I made them better judges by challenging the way they might come out. I
think it’s terribly important that a court have a group of diverse views represented,
and our court, I think, was strong because we did have so many varied
viewpoints.
You’ll recall that, four years after I came onto the court, another Hogan
alumnus, Jim Belson, who had been on the Superior Court for quite a few years,
was named to the Court of Appeals. Jim is a moderate fellow, in philosophy and
temperament, and one of our former partners once joked that if the three of us
from Hogan – Stan, Jim, and I – had ever formed a panel together, the vote would
have been 1 to 1 to 1.
Mr. Kapp: Did you think that you had an influence on those people whose views were so
dramatically different from your own?
Judge Ferren: I don’t know Bob. I don’t know, I can’t recall that I ever- on what you would call a
really tough Constitutional issue- caused anyone who was dug in on the far-right
side of the court to change his mind. I say “his” because the two women on the
court, Catherine Kelly and Judge Mack, tended to agree with each other and with
me more often than not. But I certainly think that, over the years, every judge
influences his or her colleagues by working hard and trying to be persuasive in
what one writes, but it’s not for me to say how much influence I may have had.
107
Mr. Kapp: Can you describe the process a bit? For example, if a case 1s assigned to you to
write an opinion, would you write it and then circulate it among your colleagues
or what would you do?
Judge Ferren: Here’s the way it works. We have what we call a preassignment system. That is to
say, if three cases are being argued, each judge tentatively is assigned in advance
to write one of those cases. One can criticize that system on the ground that a
cynic would say it leads to one- judge decision-making, preparing only the case
you are tentatively assigned to write – don’t worry about the other two. But that’s
not the case in our court. We all prepare all three cases, but the system does make
sure that at least one judge, at time of argument, is especially well geared to deal
with the case in asking questions and so forth. In any event, you knew that for
every sitting of three cases, you would write at least one opinion, and for every
sitting for six summary cases, you would write two.
Assuming that you’re not dissenting and having to change that assignment
to somebody else, you will write one of two kinds of opinions. If it’s a unanimous
affirmance, it’s not making any new law, a fairly slam-dunk kind of decision, we
write an unpublished memorandum opinion and judgment. That’s usually two,
three to four pages at most, and you just send those around to your colleagues
pretty quickly. It’s rare that a colleague would make major suggestions. And those
go out to the parties directly from the Division. Judges who did not participate do
not see the opinion before it goes out. These opinions cannot be cited in another
case. In contrast, a published opinion is one where the law is applied to a set of
facts, not of a kind addressed by the court before, that will help the bar understand
108
more fully what the law means and how far- or narrowly- it reaches. In some
cases the interpretive context is so novel that the decision may best be
characterized as establishing “new law.” You draft an opinion and circulate it to
the Division, and, of course, the other two judges will make suggestions. You may
even have a dissent, and so you are constantly fine-tuning and adjusting. Once the
Division has approved the opinion, it is circulated to the full court for a week for
any comment by the other judges who did not participate – the reason being that
that opinion is going to bind all nine judges, even though it comes from a threejudge
panel. Once it clears the “five-day rule” (this five workday rule takes a
week), then, as I say, it goes out to the parties. But you get a lot of helpful
comments during that period, too, before publication. So the five-day rule
improves the product of the Court.
The way I would work most of the time would be to have a law clerk do a
first-draft opinion, and then I would start fiddling with it and rearranging
paragraphs and asking for more material and so forth. Finally, I would give the
draft back to the clerk with my rendition, and then a clerk would indicate what she
or he found wrong or would want to improve. So we’d go back and forth until
there would be an opinion that usually wasn’t close to what the original draft had
been, but was one that felt right. Then it would be circulated to the Division.
Mr. Kapp: Would you say you have a particular judicial philosophy? And if so, how would
you describe it?
Judge Ferren: I always would approach each case, at least try to approach each case, to find the
right result based on the facts presented. I don’t think I look for a case to be a
109
vehicle for some larger principle. But with that said, if we are talking, for
example, about a criminal law case where there is a question of unlawful police
conduct, such as an allegedly unlawful search of an apartment, or issues under
Miranda where there is a question of interrogation without a rights warning, I put
myself among those who are quite sensitive to those issues. Probably if one looks
at the work I’ve done over the 20 some years I have been on the Court, one would
say that I have a philosophy that is very committed to enforcing the Bill of Rights.
But I have tried very hard to follow the law correctly, as I see it, and to decide
each case on its merits with whatever result the law required. I’d really have to
address individual cases to explain why I may have come out one way or another.
Mr. Kapp: Are there any judges out there either past or present that you most admire and feel
most express your own judicial philosophy?
Judge Ferren: Well if you’ll allow me to include the Federal Bench as well, I think Judge
William Bryant of the Federal District Court has always impressed me as a great
judge. He would always teach from the bench, a man of great compassion, a man
of great integrity, and a very, very bright, wonderful judge. And Judge William
Jones, whom I was before in the OEO case, was one of the quickest, smartest
Federal District Judges that I ever appeared before as well.
In the D.C. Court of Appeals, I have mentioned Ted Newman, an
extremely bright, able judge, Chief Judge. Ted had been a partner at Houston,
Bryant, & Gardner, then a Superior Court judge, before coming on as Chief of the
Court of Appeals. Judge Mack, my dear friend, who had had a high position at the
EEOC, is a very compassionate and capable judge. I have enormous regard for the
110
care and integrity with which Jim Belson has worked on the Court. Judge Nebeker
had been head of the Appellate Division of the U.S. Attorney’s Office, and
although he and I have disagreed with each other a good deal, I have always
respected and enjoyed Frank- a judge with a great sense of humor who was very
welcoming and helpful to me when I joined the court. He has always made me
think more deeply about all sides of a case. He has made me a better judge, and
has always been friendly and personally supportive of me in many ways. Bill
Pryor, a former Assistant United States Attorney, was a wonderful Chief Judge
after Ted Newman. Bill is a careful, sound judge and a model colleague with a
warm smile. Catherine Kelly was smart, cheerful, a wonderful colleague. And
John Terry, another former head of the Appellate Division of the U.S. Attorney’s
Office, has set the standard for thoroughness and clear writing, as well as being an
enjoyable colleague. Emmet Sullivan, after serving on the Superior Court, was
with us, I think, for three years before his appointment by President Clinton to the
U.S. District Court. Emmet, too, was an excellent colleague and a felicitous
writer. After Bill Pryor, Judy Rogers, who had served as D.C. Corporation
Counsel, was our Chief, and she was outstanding. In more recent years, I have
come to respect, admire, and enjoy my newer colleagues: John Steadman,
Michael Farrell, Frank Schwelb, Willie King, Vanessa Ruiz, Inez C. Reid, Eric
Washington, and Stephen Glickman.
Before talking about them, I want to go back to the beginning, I don’t want
to overlook three senior judges. I felt privileged to sit once with Andy Hood, a
former chief judge, who holds the record for his 33 years as an active judge.
111
Judge Hood was most gracious when I arrived and complimented me on my first
published opinion because it was short. Had he lived longer, he would have
learned that that particular compliment did not foretell a trend. Andy Hood,
George Gallagher, and I sat on an appeal that presented the question of how far, if
at all, someone had to retreat before shooting in self-defense. The three of us had
not resolved the issue before Judge Hood died, and another judge was selected to
help reach the decision. Judge Gallagher, by the way, was a former Justice
Department lawyer and a very good judge. He was most enjoyable, especially in
relating his experiences as a member of General Patton’s army. George, of course,
was an active judge when I arrived.
The other two seniors were former Chief Judge Gerard Reilly and Judge
Hubert Pair. I sat several times with each and enjoyed these experiences
immensely. Hubert had been a former D.C. Corporation Counsel and was well
versed in D.C. law, a solid judge and most friendly gentleman. Gerry Reilly was a
courtly man who had been a renowned labor lawyer, the Solicitor of Labor, then a
member of the National Labor Relations Board. Gerry knew the history of
Washington better than anyone I have known, and many of us will remember
standing with him in front of a mural of Farragut Square, when he asked us to
pick out houses and he would recite the history of every family who lived there.
Also when I joined the court Judge John Kern was welcoming and helpful
and a solid, moderate judge – although a radical Princetonian! John had served in
the DOJ and the U.S. Attorney’s Office, as well as worked in private practice.
Walter Yeagley was a delightful and interesting fellow. He had been head, I think,
112
of the Internal Security Division at the U.S. Department of Justice. When I first
met him, I noticed a photo of Richard Kleindienst on his wall, hanging upside
down. Kleindienst had been responsible, I gather, for Walt’s appointment to the
court but, in inscribing his photo, had not noticed that he had done so on the
bottom upside down. So Walt had the choice of hanging the photo right side up,
with an unreadable inscription, or hanging the inscription right side up, with the
photo hanging down – and he preferred the inscription right side up, as well as the
dig at Kleindienst that his display represented. Walt also was a campaign button
collector and informed me that a button collection that I’d hung on my office wall
had a much higher auction value than I’d ever dreamed of. Walt was a very good,
fair-minded judge.
I think I’ve served with 24 judges from 1977 to date. And they’ve all been
good colleagues.
Mr. Kapp: Just turning to the process here again. What is your assessment of the influence of
oral argument? Does it win cases? Does it lose cases? Does it have any significant
impact in your mind?
Judge Ferren: Oral argument, well let’s put it this way. I think a case usually is won on the
briefs. I try to tentatively make up my mind on the basis of the briefs, and then
use oral argument to probe the areas where each side seems weaker- if there is a
weakness. There are relatively few cases where the outcome has been affected, in
my judgment at least, by oral argument. You tend to confirm your initial
judgments through oral argument, rather than be changed by oral argument. That
being said, there are occasions when the case has been complex enough, or the
113
briefs have been confusing enough, or however you want to put it, that oral
argument has put a new gloss on the case or a new perspective that has led to a
result different from the one that I went into the argument with. But I think most
of us would say that that is the exception.
I will tell you that there was a case, the Federov case, involving a claim of
selective prosecution, where I believed that the trial court should be reversed
because the U.S. Attorney’s Office had been using an unlawful double standard in
enforcing the loitering statute. In other words, if you loitered to make a political
statement, you’d get prosecuted, but if you were there simply because you were
homeless, you wouldn’t get prosecuted. That seemed to me to be a discrimination
that was unconstitutional. I wrote for a majority in the Division, and the case went
en banc. I figured that that case was going to go down 5-2 (the court had only
seven active judges at the time), with my position on the losing end. But Carol
Steiker from the Public Defender’s Service came in and started arguing the
position that I had accepted when she argued to the Division. And Bob, it’s the
only case I’ve ever experienced where I could physically feel the court changing –
by which I mean the Court’s body language, leaning forward to listen, shifting
uncomfortably when the prosecutor spoke. By the time that that argument was
over, Carol was so brilliant, so persuasive, and, of course, so correct, that when
we went into conference, by the end of conference the vote was 5-2 in favor of
my position- Carol Steiker ‘s position- that there had been unlawful selective
prosecution. Well, I worried that that 5-2 majority would not last if I didn’t get the
opinion that I was assigned to write out really quickly, to get those votes locked
114
in. And sure enough: by the time I got the thing finally taken care of, I’d lost one
of those votes. But the position I espoused prevailed 4-3, and I’ve never seen
anything like it. Carol, by the way, had clerked on the Supreme Court; she’d been
President of the Harvard Law Review; she’s now a professor at Harvard Law
School and is obviously an extraordinarily able person. It was fascinating to
experience the court physically reacting in the way it did because the judges were
so impressed by counsel’s argument.
Mr. Kapp: So what do you think that makes for successful oral advocacy?
Judge Ferren: I think the most effective person is one who clearly understands the case,
acknowledges the weaknesses as well as the strengths, and points out to the court
why, despite the strength that the other side may have in a particular way or for a
particular reason, the advocate’s position should prevail for reasons (a), (b), (c),
and (d). It also includes a requirement that one be intimately familiar with the
record. Some of the most effective advocacy comes from a person who will
answer every question by reference to the record in addition to a point of law, so
that there is always a factual illustration as part of this case in support of the
outcome that’s being advocated. But it’s candor, it’s honesty, it’s knowledge of the
record. A counsel is weak who comes up and tries to snooker you, or to avoid
what everybody should know is the real issue in the case, or who will pander to a
judge by saying, “Well, you decided, you wrote an opinion the other year, or the
other day, that said X.” It’s the honesty that is the most important thing.
Mr. Kapp: Other than Carol Steiker Wald, any other
Judge Ferren: Steiker
115
Mr. Kapp: Steiker. Other than her, any other lawyers who appeared before you whom you
would single out as being particularly effective?
Judge Ferren: Yes, my colleague Mike Farrell on the Court of Appeals when he headed the
Appellate Division of the U.S. Attorney’s Office was an extraordinary advocate.
He knew exactly where he was strong, he knew exactly where he was weak, and
he knew exactly what judge to look at most of the time. Most of the time it was
me -right in the middle. Mike was one of the finest, if not the finest, advocate for
the U.S. Attorney’s Office that I’ve heard. I would add that he has had some
excellent staff attorneys who’ve worked there over the years, in particular, John
Fisher, Ann Simon, Elizabeth Trosman, Elizabeth Danello, extraordinarily able
advocates. Whenever I see one of them at the podium, I may say, “I take it you
know you have a difficult case, because you wouldn’t have been assigned to argue
it if you had a sure thing.” Mary Ellen Albrecht, who is a Superior Court Judge,
was also an outstanding advocate for the U.S. Attorney’s Office. Frank Burgess,
now a Superior Court Judge, was among the finest criminal defense oral
advocates on appeal that I have ever heard. Also outstanding are Jim Klein, now
head of the Public Defender’s Appellate Section, and Mark Rochon, David Reiser,
and Gary Kohlman, all of whom used to be with the Public Defender Service.
Another fellow, Richard Gilbert, is an extraordinary Criminal Justice Act
advocate, as are William Rhyne and Douglas Wham.
Some of the Criminal Justice Act attorneys are very, very fine.
Occasionally the big firms come down. Walter Smith, for years at Hogan &
Hartson, is one of the finest oral advocates in a civil case I’ve ever heard.
116
117
ORAL HISTORY OF THE HONORABLE JOHN FERREN
Fifth Interview
March 7, 2002
This interview is being conducted on behalf of the Oral History Project of the District of
Columbia Circuit Court. The interviewee is John M. Ferren. The interviewer is Robert H. Kapp.
The interview took place at the offices of Hogan & Hartson L.L.P. on the 7th day of March 2002,
shortly after noon. This is the fifth interview.
Mr. Kapp: John. The last time we were together we began to talk about your approach to
your judicial function and your views with regard to judicial techniques of various
kinds, and I thought we ought to try to continue that part of the discussion and
wrap it up. And I would start by asking you, what do you believe to be the
qualities that are possessed by judges who lead in producing majorities in a
judicial context?
Judge Ferren: Well, I think the first quality is trustworthiness. That is to say, the judge has to be
somebody whose integrity and intelligence his or her colleagues trust, so that
when the judge says that a case stands for something, or makes a suggestion based
on various precedents, you trust what that person is saying. It’s not that you can’t
check it out yourself, but the integrity of what one represents from the facts of
record, or in the law, is central. The second thing is – and it’s akin to the first,
really – is that the judge has to be capable enough to argue coherently and
cogently from the facts and the law to a particular result, and to expose the
weaknesses in a result that someone else might advocate. So I think those two
factors, trust and intelligence, are the primary reasons for putting together a
majority. A third quality may be a certain degree of moderation, or even
118
conservatism in writing the opinion, that makes a majority of the judges hearing
the case feel comfortable with the result. I’m not thinking here in terms of
conservatism of the right versus liberalism of the left. I’m thinking, rather, in
terms of whether the judges perceive that what they are doing is something
unique, something different, a change in the law, a new step. Most judges, I think,
don’t like doing that, or they feel the judicial function allows for precious little of
it. Most judges believe that change in the law comes mainly from the legislature
and, as a consequence, that the judge should be limited to filling in the gaps the
legislature has left ambiguous or empty. I think that more often than not
somebody who is urging caution against change in the law from the court is likely
to persuade a majority.
I don’t happen to share that skepticism about the judge as lawmaker. I
think historically the judge has always been a lawmaker. In fact, legislatures came
along in England after judges were making the common law (although the judges
used the term “finding” the law in custom). Theoretically, in fact, the legislature,
meaning Parliament, was “finding” the law in custom just as the judges were. The
law was out there to be found, it wasn’t to be made. It was only after people began
to see the law as a positive creation, not something inherent in nature or custom,
that the question “who makes the law?” became relevant. I think that most judges
today do not credit their judicial heritage with the responsibility to initiate change
in the law that realistically is never going to come from the legislature in the first
instance, and yet such change, typically incremental, is vital to a just society. On
occasion a judge does have that responsibility, which, more often than not, means
119
looking out for the rights and interests of individuals against the large institutions
– whether it’s the government or private entities, such as business corporations. I
elaborated my views on that responsibility in some detail when concurring in a
case called Carl v. Children’s Hospital.
Mr. Kapp: How would you describe the process by which a particular panel or the court
sitting en banc reaches agreement with respect to the disposition of a case?
Judge Ferren: First I’d have to say, Bob, that most cases are decided rather easily. At least at the
first level of appeal. So the question, really, is, how are the difficult cases
decided? I think all appellate judges try to approach cases, whether sitting on a
panel or en banc, on the assumption that the answer is a legal one that can be
discovered by careful examination of statutory language, of legislative history, or,
in the case of the common law, of judicial decisions. But there comes a time
when, despite one’s best efforts to look at all these sources – and no clear answer
is found – the honest judge will admit that his or her own values enter into it, to
the point of saying: what would be the most just result? Where does fairness lie,
given the various interests affected? And I think judges come out differently,
depending on where their values may take them. Sometimes a decision based on
the judge’s values is hidden behind reliance on a court doctrine such as “standing”
or “justiciability” that the judge says does not permit the court to reach the merits
– a conclusion that other judges may question. That’s one way that judges avoid
making substantive decisions. But once you get beyond such bars, there’s no
question that values enter in, and then the question is, if you admit that, can you
still say that the decision on the merits has integrity- that it is principled? Does it
120
write in a persuasive way? What you end up having in such instances, where there
are honest differences, is a majority and a dissent. Or maybe more than one
dissent, or maybe a special concurrence suggesting an alternate route to decision.
The package of opinions allows people to examine what the various
considerations are. At that point, unless a constitutional question is at issue, the
legislature can change the decision. Or judges coming along later can do so after
experience with the application of a decision, and a refinement or greater change
is required. That’s how the process goes.
Mr. Kapp: Just focusing on your own court, where you are working in the context of a
difficult case, do you feel that the deliberation that goes on between the members
of the court is adequate or how is that process working?
Judge Ferren: For the 25 years I have been either an active member or Senior Judge of the D. C.
Court of Appeals, I have been impressed with the integrity of every judge’s effort
to decide the case properly. I am not aware of a single instance where I think a
colleague consciously has used his or her raw authority as a judge to seek out a
result and then find a way to rationalize it. Everybody has quite genuinely tried to
do the right thing. Second, in that process — because the court has always had
judges coming at issues from different perspectives, with different concerns –
there can be an internal discussion of a case that doesn’t bring an easy consensus.
Legal memoranda go back and forth; and shorter memoranda raising questions,
making points, have gone around. I have been impressed by the deliberations that
have taken place first in conference, then in writing. All the judges usually have
been well prepared going into argument. They have used argument to refine and
121
shape the issues and reach the result. I think that the citizens of the District of
Columbia, during the period I’m aware of, can be proud of the way the judges
have addressed the issues before them.
Mr. Kapp: Is the practice in your court to have conferences among the judges immediately
after oral argument, or might they occur at other times as well?
Judge Ferren: Normally, as soon as we’ve heard argument- say, three regular calendar cases
argued from 9:30-12:30 in the morning – we confer immediately to decide the
cases. We discuss the cases for maybe an hour, or an hour and a half, except for
those that are fairly easy to decide. Occasionally, we can’t decide a case at
conference, or even if we have decided it, an opinion will not write with the kind
of persuasive citation and discussion we’d anticipated; in trying to put the opinion
together, the authoring judge may discover an issue or a thought that hadn’t
occurred before. And so the judge will circulate a draft and recommend a change.
Or even sometimes a different result. But the effort always is to decide the case as
soon as possible and while the memory is still sharp. I think the unfortunate
aspect of any appellate court is when you have one or more judges who, after the
decision is made – or there is an understanding what the decision will be –
somehow will not get the work out on time, and the case gets cold and that judge
builds up a backlog of unwritten opinions. The clerks who help the judges at time
of argument then leave the court, new clerks come in, don’t know anything about
the case, and the situation is a mess. The one unfortunate part of my experience on
the court has been the few judges who simply cannot keep up. As a consequence,
122
the litigants- including often the public- are not well served because the decisions
come much too late.
Mr. Kapp: Would you say the judge to whom the case is assigned for purposes of writing the
opinion has any special responsibility or influence in achieving agreement among
the participants?
Judge Ferren: I think so, in the sense that, whenever you take the initiative as authoring judge,
you are going to have an additional increment of authority based on the fact that,
as I mentioned earlier, a colleague tends to trust the author for much that is said in
a draft opinion. Even when a colleague finds fault and recommends changes, there
will still be a residue that one simply has to trust that the author has gotten it right.
Nonetheless, there are various devices I use, and many of my colleagues do as
well, to try to help assure the other judges on the panel that the draft is sound. For
example, for every sentence I write in a draft opinion where I am stating the facts
of the case, or referring to the record, I put in a transcript or record reference so
that a colleague or a law clerk can check me out. And when somebody sends me
an opinion with all those transcript references in, I know that both the law clerk
and the judge have taken the care to make sure it’s right. There’s a credibility
inherent in that document that isn’t there if somebody just sends a draft around
without such annotation. Similarly, if the author puts parentheticals in explaining
a citation, the parentheticals may be taken out later to achieve a shorter, less
cluttered presentation, but at the draft stage, they help to give one confidence that
the judge who represents that a case stands for a certain proposition, has read it,
and stands behind the interpretation proffered. So yes, there is that additional
123
power in the author by virtue of initiating the result. But I can assure you that all
of us – I certainly do – read the draft opinion very carefully and make sure we
understand the decisions that are being relied on.
Mr. Kapp: There are, of course, cases where one of the judges in a larger panel, maybe more
than one, elects to write a dissenting opinion. And what do you see as the purpose
and function of a dissenting opinion?
Judge Ferren: Well, I think there are several purposes. First, it shows that certain results are not
foreordained or easily arrived at; that this is a close case. As a result, the public,
including the legislature, may take a close look at the area where the court is
making a decision and initiate a change the dissent is calling for. Second, apropos
of a comment I made earlier, I think that dissents tend to be the law of the future
more often than not. Sometimes they are looking backward when a creative
majority advances a change in the law. But usually it is the dissent that is asking
the court to move the law a little further along than the majority has been willing
to go. I think this is very important as a way of generating dialogue about where
the law ought to be. There is third result of, if not reason for, dissent: without it,
the majority opinion might be written a little less carefully, a little less precisely,
perhaps with fewer explanations, fewer citations. Sometimes a majority opinion
and a dissent, therefore, in effect become a dialogue that turns out to be a valuable
exercise. Back in the thirties, and even into the forties or later, the code of judicial
ethics discouraged dissent on the assumption that the public would feel less
confident in the result if it showed that judges were disagreeing. Thus, the idea
was for the dissenters to keep their mouths shut so that the legitimacy of the
124
opinion ostensibly coming from all the judges who heard the case would be
greater than if the vote were split. I think that’s ridiculous. I’m glad to say that
most judges these days feel free to dissent.
Mr. Kapp: To what extent do you feel that your decisions have been influenced by your own
past experience?
Judge Ferren: I think my decisions, of course, are influenced by my experience and that includes
who I am as a person as I have grown over time. That answer goes back to my
earlier acknowledgment that the personal values are part of a judge’s decision
whenever the decision becomes difficult and could go in any number of directions
and one is forced to choose among a number of plausible alternatives. I can’t tell
you a particular decision that I have arrived at where I am aware that a particular
value of mine has dictated a result in a close case. But I do know that as a person I
am concerned about overreaching by government; I am concerned about
overreaching by the business world against consumers and employees. As a
consequence of those concerns, based on perceptions from whatever experiences I
have had, I am sure that I am hyper-vigilant to guard against judicial decisions
that would really hurt people as individuals. I think that concern is the same when
it comes to constitutional rights, particularly the Bill of Rights, freedom of
expression and religion under the First Amendment, freedom from unreasonable
search and seizures under the Fourth. These values are very dear to me, and they
must have come from some kind of experience or worldview as I developed as a
person. I freely admit they are part of how I decide cases.
Mr. Kapp: Do you think your law school experience has had any role in that regard?
125
Judge Ferren: It has to, simply because you learn the law at law school. But the law school
experience may have had a negative impact that caused me to react against its
teachings. I went to a law school where I certainly sensed a most conservative or
moderate view of the law, a very cautious one. I don’t remember being energized
by law school toward any of my passions. In fact, if anything, I felt the law school
reflected the opposite of the kind of vision of the law that I instinctively had until
I got there! That negative reaction was one of the reasons why I was so excited
about being invited to come back to the law school to start a legal services
program, where students could be involved with helping low-income citizens
advocate their rights. I wanted to help students see that the law had much to do
with how people lived and how they were hurt and to add some realism to what
seemed to me, in law school, to be a very normative, very theoretical approach
often divorced from any real sense of justice.
Mr. Kapp: What about your private practice experience in terms of influence, if any, on your
decision making?
Judge Ferren: Well, my private practice experience before I got to Hogan & Hartson was limited
to Kirkland & Ellis in Chicago, where all I did was work for banks and
corporations- except for whatever legal aid work I could do on the side. I must say
I developed there a fairly cynical view of how the law was manipulated on behalf
of well-to-do corporate institutions. I can’t say, and I would not say, that I
witnessed or participated in situations that screwed individuals over. But I decided
that big firm practice was not the kind of private, the kind of legal experience I
wanted to make a lifetime career of. I am sure I reacted against that when I got
126
involved in developing voluntary legal aid programs. It seemed that all the decks
were stacked on behalf of the well-to-do and corporate institutions, and at that
time there did not seem to have been many good lawyers for people who had to
confront them. I guess it was all part of who I was anyway, but my Chicago
experience turned me off private practice.
Mr. Kapp: And what about your legal services experience would you say that played a role in
how you approach cases as a judge?
Judge Ferren: I certainly think it has in this sense, Bob. One of the wonderful things about being
on the D.C. Court of Appeals, or I should say as part of any state court systemand
we are a state court system – is that it deals with every kind of human
problem. Whether it’s a welfare cutoff, or an eviction, or a consumer credit issue,
or even a public utility rate challenge, or a medical malpractice case, or some
other kind of personal In Jury, or a contract dispute, or a problem with a dishonest
lawyer, or a criminal prosecution, this is where the whole world lives from day to
day. I think the diet of cases a judge in the state court system gets- and that I have
gotten – is so much richer, so much more interesting to deal with, than you find in
the federal courts generally speaking. And I say that by way of background,
because as a legal services person before I went to the court, or as one who got
involved in public interest practice, I had become personally acquainted with a lot
of the issues that I then became charged with disposing of as a judge. So I think I
brought to the job many insights into how the world works that I learned from my
legal services experience far better than I had learned in law school or certainly in
private practice with a large law firm. I do remember the pain in signing my first
127
orders sustaining evictions of persons who simply could not afford to stay in the
apartment. They didn’t have a defense in the world. That hurt, but one has to apply
the law.
Mr. Kapp: Just turning to your colleagues on the bench over the years that you served. Are
there any Superior Court judges whom you particularly admire would you say?
Judge Ferren: Yes, there certainly are. And you have to take different decades. I mean you have
to remember I came on the court when I was 40 and now I’m just a couple of
months shy of 65, so we’re covering a lot of judges over a long period of time.
128
ORAL HISTORY OF THE HONORABLE JOHN FERREN
Sixth Interview
February 13, 2003
This interview is being conducted on behalf of the Oral History Project of the District of
Columbia Circuit Court. The interviewee is John M. Ferren. The interviewer is Robert H. Kapp.
The interview took place at the offices of Hogan & Hartson L.L.P. on the 13th day of February
2003, shortly after noon.
Mr. Kapp: John, the last time that we were together we were talking about some of your prior
legal experience and private practice experience and then we moved to talk about
some of your experiences on the judiciary. And I’d like to start today, if I could, by
asking you which of your colleagues on the bench do you feel you most admired?
Judge Ferren: Bob, I think I am correct that I have served with 24 judges over the 25 years that
I’ve been on the D.C. Court of Appeals. And I don’t want to give these in any
particular order. I’ll probably omit some that I regret, but among the more senior
judges, in fact, those who are currently acting as senior judges, I would mention
Julia Cooper Mack, whom I’ve always admired for her conscience, her sensitivity
to the human problems that come before the court, always reminding us that those
problems – not just legal rules – not just legal rules are central to the analysis. She
was a wonderful colleague and a very inspirational person. Jim Belson is another
one that I respect enormously for his conscientiousness and his hard work and his
attention to detail. Jim has been a more conservative jurist than I, but that makes
me a better one when I have to deal with his approaches, and I think that his
integrity is high . So I’ll include him. Ted Newman, who was chief when I joined
the court, is brilliant, quick of mind, very penetrating in his analysis, and a very
129
liberal-minded judge for the most part. I’ll include Ted among those that I have
admired most. I would also include Catherine Kelly, who is no longer living.
Catherine was bright, liberal, concise, witty, and a delightful colleague. I think
I’ve also mentioned earlier my enjoyment of and respect for Frank Nebeker, Bill
Pryor, John Terry, Emmet Sullivan, and Judy Rogers.
Among my more recent colleagues, I would name John Steadman, Mike
Farrell, Frank Schwelb, Willie King, Vanessa Ruiz, Inez Reid, Eric Washington,
and Steve Glickman. John Steadman, who was a professor at Georgetown before
he joined the court, is about as meticulous in his approach as any judge could be,
looking for every conceivable angle and issue – and wrestling with it. John is a
real educator and one who is extremely careful about everything. And he will drop
everything to help you at any moment, a very selfless fellow.
Mike Farrell, who used to be head of the Appellate Division of the U.S.
Attorney’s Office, is probably the quickest judge I’ve ever worked with. He could
do his work on a one-half-time basis, I’m sure; and he is very careful as well. His
contribution to the court has been an ability to bring people together to arrive at
some kind of consensus when the views are so disparate. He is outstanding at
fashioning a remedy or an approach that people can sign onto in a very divided or
a difficult case. You will recall I mentioned that Mike, in my judgment, was one
of the finest oral advocates from the prosecutor’s office who has appeared before
our Court in my time there. I admire him greatly. I’ve enjoyed him personally very
much.
130
And then there is Frank Schwelb- a most interesting fellow who had been
head of the Housing Section of the DOJ Civil Rights Division, is a former
Superior Court judge, and has a real passion for his work. He loves the job; he’s a
very caring human being; he shows a fierce sense of justice in every case. He is
not as predictable as others; he’s ad hoc in the best sense of looking at the facts of
the case and asking, “Where does justice lie?” He writes all of his own opinions,
including every comma and every period; he doesn’t even delegate to a law clerk
the responsibility for a first draft of the facts as far as I know, and yet, he is an
extremely efficient judge. And Frank has a great sense of humor.
Willie (it’s really Warren) King is, I believe, a native Washingtonian who
was for years a fine Superior Court Judge after serving at high levels in the U.S.
Attorney’s Office and teaching at Antioch Law School. He is a man who has more
law in his head than most of us and has great practical judgment. And I
particularly enjoy our conversations about baseball, which he knows as well as he
knows the law.
Vanessa Ruiz, a former private practitioner and D.C. Corporation Counsel
with a quick mind and very special sense of humor, is a favorite of mine because
she always asks all the questions that others believe have been answered, and she
will put a special twist on a problem that helps those who are willing to make the
effort see new angles and issues that have to be resolved before a case is finally
decided. She cares deeply about how people are affected by the law. I have known
Inez Reid since college days when she debated for Tufts and I debated for
Harvard. She is also a former Corporation Counsel and not only is a bright, very
131
hard-working judge but also is a dedicated teacher. She teaches undergraduates at
American University and teaches her law clerks as a major part of her calling.
Inez is the only judge I know who would keep on for a second year a clerk who
had been slow to catch on during the first, in order to help that young man or
woman get ready for practice, even though the cost in additional work for Inez
herself would be substantial. I admire her very, very much.
Eric Washington and Steve Glickman came onto the court just as I was
rejoining it in senior status and spending part of my time working on a biography
of Justice Wiley Rutledge, so I have not yet had the opportunity to work with
them as much as with the others I have mentioned; but both Eric and Steve strike
me as very capable judges and fine colleagues, and I look forward to sitting with
them in the years ahead.
Mr. Kapp: Other than Mike Farrell and his talents as an oral advocate, as an advocate, do you
have any observations to make about other judges, other lawyers who have
presented cases to you before the Court?
Judge Ferren: I think I have mentioned some of these. Frank Burgess, who now is on the
Superior Court, was head of the Appellate Division of the Public Defender
Service. I would put Frank as one of the best criminal defense appellate advocates
I’ve heard. Of course, there are many others who are truly outstanding. I’ve
mentioned others earlier, including Jim Klein, who’s head of that division now
and is a truly outstanding advocate. But Frank Burgess is not only as smart as they
come, but also you’d ask him a question, and with that soft southern voice he’d
express his opinion. Sometimes you’d ask him a question, and he’d look you in the
132
eye and say, “Judge, because it’s the right thing to do.” There aren’t many oral
advocates who do that. I guess he knew me well enough to know that I want to do
right, just as everybody else does, and he had that marvelous combination of
intellect and passion and compassion and common sense that sometimes is
magical in court. Earlier I also mentioned Walter Smith, a former colleague of
mine here at Hogan & Hartson with whom I worked at the Corporation Counsel’s
office. He was my special deputy. Walter has a mind that can grab a case and
shake it and pull out the essence and present it in a way that makes you really
have to dig hard to find out what’s wrong with Walter’s case – if there is a
weakness. He presents a case with such confidence that you almost have to feel
you’re stupid if you don’t go along with him. He has a compelling presence. And
there are many, many others.
Mr. Kapp: Can you talk a bit about your law clerks? What have you looked at in selecting
law clerks, what have your relationships with them been, who are some of the
outstanding judicial clerks that you’ve had, and what kind of influence do you
think you’ve had on them?
Judge Ferren: Oh my, that’s a very large question. I think in the years I was an active judge I had
41 law clerks – 41 instead of 40 over 20 years because, when I was Acting Chief
Judge briefly, I was given a third clerk. Right away I must say that I would hire
every one of them again. Each was terrific – bright, loyal, helpful in anything I
asked, a good friend. I have mentioned Jim Tomkovicz, who was one of my first
two clerks when I joined the Court back in 1977. Jim was a graduate of USC Law
School and had been clerking for a Federal District Judge in San Diego and
133
wanted an Appellate clerkship. He somehow found out I was looking for clerks as
a brand new judge. Jim was truly an expert on the criminal law. I knew very little
criminal law when I came to the court – and that’s more than half of our work- so
Jim taught me criminal law. He’s now a professor of law at the University of
Iowa.
I have a good friend at Harvard Law School, Professor Andrew Kaufman,
who almost every year would recommend someone to me as one of the two clerks
that I ended up taking. I did not take a clerk from Harvard every year, but quite a
few have come to me through Andy’s good offices. For whatever reason, the
percentage of outstanding applicants who were women tended to exceed in large
measure the number of outstanding applicants who were male. Again, I have had
truly outstanding clerks every year, for whom I am most grateful. I would enjoy
reminiscing about my experiences with each, but of course that would take a very
long time.
As to your question about our relationships. One of the best parts of the
job was to spend a year with two really willing, capable young people. Frankly, I
tried to find the smartest law clerks I could find because I figured my strength was
in experience and judgment, so I looked for clerks to augment the brain level of
the office. And we worked as a team. After conferring about the case, I would use
the law clerks to draft opinions. Then I would work on them and give them back
to the clerk for reaction. And back and forth. It was a real joint venture, and we
would argue back and forth. We were on a first-name basis; I insisted they call me
John, and we became very, very close friends. We’ve had clerk reunions every few
134
years, and I trust they will continue even into my dotage. A lot of them now have
children that are getting quite old. Some of the law clerks now are in their fifties.
It’s been a wonderful kind of family, really. I would say that Pat Milone, who was
my secretary for 16 of the years, has been a central part of this family, as has Gale
Rivers, Pat’s successor, so it’s been a very, very close kind of relationship. I sense
from the fact that the clerks stay very much in touch with me that they valued the
experience; and, to repeat, the relationships with my clerks have been a high point
of the job.
Mr. Kapp: You say that your mode of operation typically was for them to do a first draft of
your opinions?
Judge Ferren: Yes. And that, of course, suggests the question, Who writes the opinions? I hasten
to say right now that I don’t believe any law clerk of mine, in a room with
assurances of anonymity, would say that they wrote the opinions. That’s because a
first draft, which begins with a statement of facts and issues and then proceeds to
analysis, initially reflects a discussion that we have had about how the opinion
ought to be shaped and the decision reached. All the clerks have been very, very
capable of doing a draft. But then I start digging at it, asking for additions, cutting
material out, and rewriting the opinion in my own way. So it’s truly a joint
product, and it becomes better because we’ve been wrestling with it right down to
the end. Often the opinion as it comes out, compared to how it began, barely
shows a resemblance. So it’s a joint product, but I think the style over the years 1s
consistent. You can identify judges who don’t write their own opinions, because
135
the opinions stylistically are different from year-to-year-to-year. I think if you
look at mine, however, you will say the same person has been writing them.
I think an important question is: How can you use law clerks most
efficiently? I think one of the best ways is to have them work on draft opinions. I
know some judges who have them write memoranda, and then the judge uses the
memoranda as a basis for writing the opinion. I see a lot of redundancy in that, a
lot of wasted time. I do not ask law clerks to write memoranda, what judges call a
“bench memorandum” on cases. I could read the briefs; I knew what the issues
were. I might ask a clerk to check an issue out and write a little one-page blurb
with some Xeroxed cases attached to it. “Give me a kit,” I would often say, to help
me get through this case and make the decision. But I see some judges using law
clerks in ways that I think are not productive, and as a result those judges can get
behind in their work.
Mr. Kapp: We talked in some of our earlier sessions about your efforts in respect of
providing legal services to the poor, and I wonder if you could talk a bit about
what you’ve done in that area following your appointment to the judiciary?
Judge Ferren: Well, Bob, I’d have to go back and look at dates. But, while I was on the Court, I
continued very actively in the American Bar Association for quite a few years into
the early eighties. As I’ve mentioned, I chaired the Committee on Public Interest
Practice and later chaired the Consortium on Legal Services and the Public. In
that latter capacity, during the period when President Reagan was trying to
dismantle the Legal Services Corporation, the American Bar Association really
had to step up and press hard to keep that from happening. Our Consortium,
136
working with the President of the ABA, Reese Smith, and others, really stood tall
in that effort, which largely was successful. During that period, too, I chaired the
District of Columbia Judicial Conference Committee on Civil Legal Services,
encouraging law firms to donate pro bono time to compensate for federal cutbacks
after the Carter years and after the Bar referendum – which our court, I am sorry
to say, upheld- forbidding the use of mandatory Bar dues back and forth. It was a
real joint venture money to provide legal services to the poor. It seems to me that
a judge has a responsibility to advocate reforms in the legal system. When a judge
sees individuals hurt because they don’t have adequate legal services, I think a
judge has a responsibility to speak out; and if, as I believe, there is a federal
responsibility to make funds available to ensure adequate legal services to the
poor on the civil, as well as the criminal, side, then I’m going to speak out.
I’d like to back up and elaborate. We have a unified bar in the District of
Columbia, which means that all lawyers are required to join and pay dues to cover
a disciplinary system and other core functions of the bar. For years the Board of
Governors approved the use of these mandatory dues for a variety of activities,
including continuing legal education, a lawyer referral service, and, of great
importance, legal services to those who could not afford a lawyer. In 1981,
however, in a referendum called by members of the bar to challenge some of these
activities, the bar’s membership voted to ban the use of mandatory dues for any
kind of legal aid to the poor (as well as for a lawyer referral service or even
continuing legal education of the bar). The results of this referendum, approved
by our court of appeals, was a real blow to the availability of legal services which
137
had become indispensable to the administration of justice in the District of
Columbia — especially because, just as our bar was pulling out, the Reagan
administration was beginning to take steps to reduce federal funding of
neighborhood legal services through the Legal Services Corporation.
In order to address this imminent gap in service, I suggested to Chief
Judge Newman that the court establish a Committee on Civil Legal Services
under the aegis of the court’s annual Judicial Conference of lawyers and judges. I
agreed to chair this effort and immediately called John Douglas, a lawyer at
Covington & Burling who had been head of the Civil Division in the Kennedy
Justice Department, and Erwin Griswold, who had been Solicitor General and
Dean at Harvard Law School. Both agreed to help. The result was a large press
conference, attended by representatives of most of the major law firms in
Washington. I welcomed everyone then asked John Douglas and Dean Griswold
to speak, both of whom asked publicly for the firms to contribute major sums to
replace the loss of bar dues for legal services. The result was heartwarming. It was
not only financially successful but also the beginning of an effort that eventually
converted mandatory giving into substantial voluntary giving for legal services
financed through a new D.C. Bar Foundation.
Mr. Kapp: Is your sense- where do you think the limits are in terms of the role of a judge in
respect of nonjudicial activities?
Judge Ferren: I got immersed in such issues in 1990 as the first chairperson of the court system’s
Advisory Committee on Judicial Conduct, which drafted our first Code of Judicial
Conduct in 1995. Long before that, when I was at Hogan & Hartson, I had
138
become deeply involved in matters of professional ethics as a member of the first
Disciplinary Board – now called the Board on Professional Responsibility –
appointed by the D.C. Court of Appeals to help adjudicate charges of professional
misconduct. So I had a background and interest in professional ethics and was
pleased to be given the opportunity to address issues of judicial conduct.
There are canons of judicial ethics that permit judges now to participate on
the boards of charitable organizations, for example, or to respond to questions by
the legislature with advice that touches upon the “administration of justice.” That’s
a broad term that people can define elastically. Judges cannot support political
candidates or take stands on political issues. That, of course, is where the
complications arise. For every person who, like Judge Ferren, would say that the
federal legal services program concerns the administration of justice, which
judges can ethically support by speaking out, there are others who would say that
federalized legal services is a hot political issue – that the federal government
shouldn’t be involved in the delivery of legal services- and that a judge who works
for that is violating the code of judicial ethics. So there is an ethical gray area
where people will differ.
A judge certainly cannot practice law; he or broad term that people can
define elastically. Judges cannot support political candidates or take stands on
political issues. That, of course, is where the complications arise. For every
person who, like Judge Ferren, would say that the federal legal services program
concerns the administration of justice, which judges can ethically support by
speaking out, there are others who would say that federalized legal services is a
139
hot political issue – that the federal government shouldn’t be involved in the
delivery of legal services- and that a judge who works for that is violating the
code of judicial ethics. So there is an ethical gray area where people will differ.
A judge certainly cannot practice law; he or she cannot advise other than
family members on legal matters. There is one area, where I feel very strongly,
that others don’t see a problem, namely, attendance at events sponsored by
specialty bar associations.
There’s nothing wrong with a judge attending D.C. Bar functions or the
private bar associations where the organization itself does not have a particular
axe to grind. But I think it is inappropriate to attend dinners, or accept awards, at a
bar association of defense attorneys or a bar association of plaintiffs’ attorneys, or
some other groups that the public would say have a particular legal or political
point of view. I don’t think a judge should allow himself or herself to be
associated with a group publicly in that way. But I think you will see judges
making different judgments about all these invitations. Finally, of course, a judge
cannot make political contributions or contribute to litigating organizations that
not only represent causes but also may appear before the judge. Thus, a judge
should be very careful not to allow the judge’s name to go on a charitable fundraising
letter or brochure. I once was embarrassed to see my name appear in a
brochure for a charitable event, when I’d sent in a contribution for a dinner but
had forgotten to tell the new executive director, whom I hadn’t met and who didn’t
know me, not to include my name among the sponsors. So, it’s something you
have to be careful about.
140
Mr. Kapp: In terms of attendance at events that you mentioned- where would you put an
organization like the Lawyers’ Committee for Civil Rights, for example?
Judge Ferren: I think I would personally err on the side of not participating in a Lawyers’
Committee-sponsored event, dinner or otherwise. There are enough cases before
our court that either are brought by the Lawyers’ Committee, or are brought by
others advocating the same views as those of the Lawyers’ Committee, that it gets
very sticky. I can’t say I have honored that rule all the time. I can give you an
anecdote that suggests a similar concern. One of my friends, Alan Morrison, was
the head of the Public Citizen Litigation Group, the Ralph Nader organization. I
did not attend any Public Citizen events, but I had no problem going with Alan to
a Redskins football game when he supplied the ticket- he was very generous and I
would drive and buy the beer and the peanuts. Well, after several such games with
Alan, a case came across my desk brought by Public Citizen. I don’t recall what it
was, and I don’t think Alan was an attorney in the case. But I called up Alan and
said, “You’ll have to give the ticket to someone else.” Then and into the future as
well.
Mr. Kapp: Can you talk a bit about your views with respect to lawyer responsibilities in
respect of pro bono representation?
Judge Ferren: I believe that every lawyer has a personal, professional responsibility to donate a
portion of his or her time to pro bono legal service for clients, not just money to
charitable organizations, but a portion of time representing clients who cannot
afford representation otherwise. And I’d go further to say that, unless the lawyer
includes in that some individual clients who bring a lawyer into touch with
141
realities that are going on in the lives of people and how the law and the legal
system impact on the individual, that lawyer will probably not be donating the
kind of pro bono time that is expected. I have no problem. I certainly participated
in our project here at the firm- bringing major class actions, working for large
reform organizations that would have a multiplier effect on helping people. But
there’s something important about one-on-one pro bono representation that is so
lacking in this society – and I think it is so good for the client and the lawyer- that
I consider individual pro bono representation to be part of the lawyer’s
responsibility in taking the oath as a member of the Bar. I wrote several articles
about that in bar journals.
Mr. Kapp: How do you feel the profession overall is doing in that respect?
Judge Ferren: There are peaks and valleys. You have to keep re-educating lawyers, and, of
course, educating all new lawyers, about these obligations. In Washington, the law
firms and the unified Bar have been truly outstanding over the years in making
resources available for people who cannot afford lawyers. We have very strong
pro bono programs here. But we have to keep reminding. I think the American
Bar Association has done a very good job in keeping the pro bono responsibility
alive around the country.
I think the main problem has been that the conservatives in Congress have
continually hounded the Legal Services Corporation by putting restrictions,
limiting the kinds of cases legal aid agencies with federal funding can take and
cutting their budgets. It’s shocking. It does appear that the private bar has stepped
forward to fill many of the gaps created by the federal pullback. I don’t have a
142
perspective today that I can tell you with any certainty that, on balance, we’ve
kept up or fallen behind in legal services for the poor. I’m pretty sure we’ve fallen
behind; the private sector probably can’t fill in entirely for federal cutbacks. I
think overall the profession has done a good job. If you look at the President’s
page of the D.C. Bar Magazine Washington Lawyer or the President’s page of the
American Bar Association Journal, each new holder of the top office regularly
admonishes lawyers to provide pro bono service. So I think the profession has
pushed hard for pro bono over the last quarter century.
Mr. Kapp: Can we turn to your judicial opinions, John, here? I wonder if you could describe
what you believe to be the most significant opinions that you’ve rendered in your
years on the bench?
Judge Ferren: Oh dear. I probably should leave that to others. I think that to date I’ve written
well over 500 published opinions for the court, including a substantial number of
en banc opinions, plus another 100 concurring opinions and approximately 125
opinions in dissent. I can mention a few opinions that I know have had some
impact, or have aroused my own emotions. Early on I wrote an opinion in a case
called Ibn-Tamas, which was the first in the country, I’m told, to recognize a
defense called “battered spouse syndrome.” In that case, a woman who had been
physically abused by her husband raised the defense that she had seen him
coming at her with what she thought was a gun. She then ran, got a gun, and
killed him. The facts, as I recall them, showed that her husband did not have a
gun, and yet perception, her anxiety, was such that our court held the trial court
had erred in refusing to allow Mrs. Ibn-Tamas to put on evidence that might
143
justify raising that defense. I think that defense has been picked up pretty much
around the country.
I dissented, partially, in a 1981 case called Edwards, an en banc case
which considered whether there was a constitutional right to bail, or instead
pretrial detention without bail passes constitutional muster. I agreed that pretrial
detention without bail did not violate the Eighth Amendment prohibiting cruel or
unusual punishment, but I dissented on the ground that the D.C. statute permitting
so-called preventive detention violated due process. There was too much reliance
on hearsay, and the standard was probable cause rather than clear and convincing
evidence. As I think about it, probably the cases I am most proud of have been
dissents or concurrences, for that matter, which came out differently from the
court majority, particularly in the support of rights under the First, Fourth, and
Fifth Amendments.
I also dissented in a case called Graves, in which a majority of the en banc
court held that somebody who had been arrested then tried three and a half years
later had not been denied his constitutional right to a speedy trial. That just
amazed me. This isn’t to say that the majority didn’t have precedent and a coherent
approach weighing the factors the Supreme Court had held relevant in a case
called Barker v. Wingo. But I thought that our Graves decision was profoundly
wrong; to me the Barker factors, when properly applied to the facts, should have
led to a different outcome in Graves, and I said so. If you want to pick one case
out of all my cases in 20 some years, I think that has been the one that got me the
most riled.
144
I can think of several other cases I have written that I think are important.
There was Frendak, which modified the rule that the trial judge had discretion to
impose the insanity defense over the objection of a defendant found competent to
stand trial. This decision led to common use of a “Frendak inquiry” in the trial
court. And I recall Boyd, which held that when a mentally ill and incompetent
patient asserts her First Amendment right not to receive psychotropic drugs on
religious grounds – when not necessary to save her life – the trial court must use a
“substituted judgment”approach, deciding the course of action the patient herself
would choose if capable of making a competent decision.
There was our 1987 en banc decision in the Georgetown Gay Rights
Coalition case, where in partial dissent I wrote that the D.C. Human Rights Act
required the university to grant student gay rights groups not only access to the
facilities and services available to other student groups, as a majority of the court
held, but also “recognition” of their status as a student organization – an action
that, in my judgment, would not violate Georgetown’s claimed “free exercise”
rights under the First Amendment. I also dissented in part from the court’s 1995
decision in Dean, which held that the D.C. statute governing marriage did not
permit marriage by same-sex couples. I concluded, instead, that a trial was
required to consider a constitutional issue: to determine whether same-sex couples
comprise a class entitled to either “strict” or “intermediate” scrutiny of the
government’s denial of their right to marry. I added that if, as a result of the trial,
the court were to decide that same-sex couples do comprise such a protected class,
the court would then be required to determine, on the basis of evidence, whether
145
the District had a “compelling,” or at least a “substantial,” governmental interest
in limiting marriage to heterosexual couples. In reaching these conclusions, I
strongly suggested, based on case law and relevant literature, that same sex
couples who wished to marry were a constitutionally protected class, and that the
government did not have an interest strong enough to discriminate against them
by denying that right. I would mention several difficult family law cases where I
wrote for 2-1 majorities. There was R.M.G., a case of competing petitions by
white foster parents and African-American grandparents to adopt an African-
American child- a case raising equal protection issues. R.M.G., I think, has
received a lot of attention in the literature and at law schools. Next, H.R.,
sometimes called the first Baby Boy C. case, held that the trial court must apply a
preference in favor of a fit, unwed father seeking custody of his child as against
the claim of unrelated, adoptive parents. H.R. was particularly interesting because
it concerned a contest between the father, H.R., a well-connected lawyer from
Zaire, and American adoptive parents who had received the baby through an
agency representing the natural mother, a Peace Corps volunteer, who, after
returning to America from Zaire, had told H.R. that she would have an abortion- a
misrepresentation that affected his pursuit of custody. Thus, one of the questions
presented was whether the father had sufficiently grasped his constitutionally
protected “opportunity interest,” a kind of liberty interest protected by the due
process clause. There also was the M.M.D. case holding that D.C. law permitted
adoptions by unmarried, same-sex couples living together in a committed
relationship.
146
I also wrote the Brown decision governing the ethics applicable to
attorneys who go through the “revolving door” between government and private
practice. And I would mention the Kopff case spelling out the deference – the
statutory “great weight” — that courts must accord to actions by local Advisory
Neighborhood commissions. I wrote a number of opinions, some for the en banc
court, interpreting the Home Rule Act, such as Convention Center Referendum
Committee, Washington Home Ownership Council, and Barry v. Bush. And I
wrote the court’s en banc exposition of the rules governing the interpretation of
statutes in Peoples Drug Store v. District of Columbia.
I was pleased early on to be able to write opinions in cases such as Rosser,
Lewis, and Tabron that interpreted the government’s obligations under the Jencks
Act, the Supreme Court’s decision in Brady v. Maryland, and the Superior Court’s
criminal rules to provide broad discovery rights to criminal and juvenile
defendants. As a result, in common parlance now, are defense submissions of a
“Rosser letter” requesting evidence from the prosecutor and trial court hearings on
a “Lewis inquiry.”
Some of the commercial cases I wrote were particularly challenging, such
as the Brandon case on arbitration and the Consumers United Insurance Company
case concerning a jurisdictional dispute involving the Full Faith and Credit Clause
between the Superior Court, which had awarded damages to a D.C. landlord, and
a Delaware receiver, which claimed the tenant’s assets. That reminds me that even
common landlord and tenant disputes over housing can present very interesting
and difficult issues involving the interplay between our Rental Housing Act and
147
the common law, such as the Habib case concerning a notice to quit, a protective
order, and alleged housing code violations.
Another very challenging case would be of interest only to tort lawyers,
and almost defies stating the issue, but in a medical malpractice case, Berg v.
Footer, we considered this question: when the parties stipulate to a settling
defendant’s liability in a common law tort action, is the settling defendant a joint
tortfeasor for purposes of determining the credit allowable to a nonsettling
defendant against whom the jury has awarded full damages for the plaintiffs
injury; and, if so, is the credit calculated pro rata or pro tanto when the settlement
exceeds half the jury’s verdict? That case stretched all our brains on the panel to
the point of occasional headaches before we were done! But we enjoyed it.
Several other cases are worth noting. I’ve written a number of opinions
concerning court involvement with internal church disputes, such as the Bible
Way Church case, in which we held that the court lacked jurisdiction over a
complaint alleging failure to report and account for church finances. We
concluded that, on the particular facts, the court would have become embroiled in
an ecclesiastical dispute, an involvement forbidden by the free exercise clause of
the First Amendment. I also wrote the court’s opinion in Sandidge, in which a
defendant charged with various weapons offenses defended on the ground that the
D.C. firearms statutes violated his Second Amendment right to “keep and bear
arms.” We rejected that defense, holding that the Second Amendment guarantees a
collective, not an individual, right protecting only the state’s right to raise and
regulate a militia against congressional interference.
148
In addition to those I’ve already mentioned, I wrote several dissents that I
felt especially strongly about. In Phillips v. The Evening Star, a defamation case, I
rejected the majority’s ruling that a private individual who is neither a public
figure nor a public official may recover damages by showing no more than the
media defendant’s negligence; I would have adopted the actual malice standard
established by the Supreme Court in New York Times v. Sullivan. Then, in
Williams v. Baker, a medical malpractice case, I dissented from the en banc
majority’s decision that a mother could not recover for emotional distress caused
by witnessing her child suffer from the doctor’s negligence unless the mother
herself reasonably feared for her own safety at the same time. I would not have
limited recovery to situations in which a plaintiff who witnesses the injury is in
the zone, or within the range, of physical danger herself. This case, incidentally, is
a perfect example of a situation in which judges, as they have for hundreds of
years beginning in England, make law – that is, make the common law – when no
statute covers the subject. And thus in Williams our court, by majority rule,
decided what was the best policy to govern the scope of recovery for claims of
emotional distress from a bystander who witnesses a defendant’s negligence. The
majority imposed a zone-of-physical-danger-limitation; I would not have done so,
as the mother’s emotional distress, caused by the doctor’s actions in her presence,
was no less severe simply because the doctor’s negligent actions had been directed
at her child and not, specifically, at her as well. The bystander mother’s emotional
injury from the doctor’s negligence was just as foreseeable as the physical injury
to her child.
149
Two other dissents have been particularly important to me. In 1980, in the
Kerr case, the en banc court held, 8 to 1, that the D.C. statute governing lawyers
must be interpreted to say that, if a lawyer is convicted of a crime involving moral
turpitude, that lawyer must be disbarred permanently, with no opportunity for
reinstatement based on a clear and convincing showing of rehabilitation. I was the
lone dissenter. Twelve years later, in 1992, the en banc court, composed entirely
of new judges except for me, voted 8 to 0 in the McBride case to overrule Kerr
and thus create the possibility for reinstatement of such a lawyer, after five years
from disbarment, upon a proper showing of rehabilitation. There is another
important area in which I’ve differed from most of my colleagues. In a case called
Anders v. California, the Supreme Court said, in dictum, that when a criminal
defendant’s counsel on appeal can find no non-frivolous issue on which to
proceed with an appeal, counsel may so inform the court after addressing
potential issues and explaining why they are wanting, and thus essentially abort
the appeal by filing with the brief a motion to withdraw. Our court, therefore, has
accepted so-called Anders briefs from counsel on appeal whom we have
appointed under the Criminal Justice Act. In the Gale case, in which the court
affirmed a conviction after reviewing an Anders brief and granting counsel’s
motion to withdraw, I dissented on the ground that there were at least two nonfrivolous
issues on which the defendant was entitled to have heard and resolved
on appeal. Further, I added a policy ground for reversal, saying that the Supreme
Court did not require the states to accept Anders briefs and arguing that our court
should not do so- that the system is better served by having counsel make the best
150
argument or arguments that counsel can think of on the appellant’s behalf, rather
than proffering those arguments then, ultimately, confessing that the appellant has
no case. The appellant deserves an advocate, period, however weak the case may
turn out to be. Otherwise there is a strange role reversal, where the counsel
essentially becomes the judge and the judges scrutinize the Anders brief on the
appellant’s behalf as though they were defense advocates. I’ve participated in a
number of appeals where we have rejected Anders briefs, and appointed new
counsel, on the ground that the first counsel had overlooked or underplayed a
plausible argument. I think that the opportunity for counsel to file Anders briefs is
an incentive to pull punches rather than make the strongest possible case for the
client.
In another policy judgment, I concurred in a negligence case, WMATA v.
Jones, which had been defended with alleged contributory negligence, and
countered by the plaintiffs under the last clear chance doctrine. I pointed out in a
separate statement that the legislatures or courts in three-quarters of the states had
adopted the doctrine of comparative negligence; I cited authority supporting
adoption of that doctrine by the courts as their common law responsibility; and I
then suggested that the District of Columbia would benefit from that more
enlightened approach. I have had no takers, and even those colleagues who are
sympathetic with my suggestion are more likely to prefer leaving such a decision
to the legislature rather than have the court make the decision. Moreover, I’ve
heard from lawyers that they are used to the present system, know how to litigate
under it, and don’t like change. So we’ll probably never see comparative
151
negligence in the District of Columbia, even though most lawyers and judges
familiar with negligence cases believe that comparative negligence is fairer to the
parties than a contributory negligence regime, all things considered.
Finally, I’ve forgotten to mention the Jones and Clifford cases on
admissibility of scientific evidence and expert testimony that I think have
contributed to the law of the District. I’ll stop now- I’ve gone on too long- but of
course there are scores of cases that I, as well as my colleagues, have written,
reflecting the wonderful variety of our work. They cover lawyer discipline,
judicial misconduct, civil and criminal procedure, rules of evidence, double
jeopardy, First Amendment rights and other civil liberties, right to counsel, a
criminal defendant’s right to an interpreter, recantation of confessions, racial
discrimination in jury selection, collateral attacks on criminal convictions for
ineffective assistance of counsel, Miranda rights, search and seizure, eyewitness
identifications, reasonable suspicion or probable cause to stop or arrest,
expungement of arrest records, treatment of juveniles in detention, the insanity
defense, civil and criminal commitment, consumer credit, wills and trusts,
defamation, medical and legal malpractice and other personal injuries, tax sales
and other tax cases, public utilities, unemployment compensation, workers’
compensation, disability cases, choice of law issues, and zoning.
Mr. Kapp: What about your dissent in the D.C. Bar Referendum case?
Judge Ferren: Oh yes, that brings us back to pro bono. There was a case. Well let me back up –
for a while, as I think I mentioned, mandatory dues under our unified bar structure
were devoted in part to pro bono legal services run by the Bar. The Bar held a
152
referendum in 1981 asking for a vote on whether lawyers should be compelled to
pay mandatory dues to cover free legal services for poor people. A majority of the
court, sitting en banc, agreed that the referendum was valid under the law
governing the unified Bar. And there were those who believed that the use of
mandatory dues for legal services violated the First Amendment rights of the
lawyers. I dissented. I don’t think you can cite the First Amendment, or any other
constitutional right, to avoid a responsibility that is inherent in the privilege, the
license to practice law. But I lost that one, and to this day mandatory bar dues are
exempt from pro bono services. To the credit of the Bar, volunteers have
contributed money to the D.C. Bar Foundation and other projects so that the D.C.
Bar pro bono program is alive and well. And the IOLTA program – interest on
lawyer trust accounts used for legal services – has helped a lot.
Mr. Kapp: If you had to identify your single most difficult case on the bench, would you
have a reaction to that?
Judge Ferren: Bob, I don’t think I can pick one. I can say that there have been many cases where
the police have interrogated someone without a lawyer, or searched the house
without a warrant, that have troubled me because it seemed that there was
overreaching, often because the defendant was not suff1ciently informed of his or
her rights. All those cases were very hard because I can’t just impose my own
views or sensibilities; one has to apply established constitutional law. So I would
say that the cases that have been the hardest for me have been those applying
constitutional law when the justices had begun to pull back from Warren Court
days.
153
I don’t want to forget to add that two cases that came during my first year
on the court went to the Supreme Court. I should begin by saying that I had
become acquainted with Justice Brennan when he spoke at a dinner for our CLAO
students at Harvard and later when we attended a small dinner in his honor after
he received an honorary LL.D. at Harverd. So, when I was appointed to the Court
of Appeals, Justice Brennan was kind enough to invite me for lunch in his
chambers. During lunch he said something like, “Now don’t worry, Johnny, we
leave your court alone; we don’ t want to meddle in the District’s business.” Well,
in the Crews case, I wrote for the en banc court holding, by a 7-2 vote, that the
trial court had erred in failing to suppress an in-court identification obtained as the
result of an unlawful arrest. The Supreme Court reversed, 8-0, in a narrowly
crafted opinion written by Justice Brennan! Justice Marshall had recused. I
discerned that Justice Brennan had written the reversal in part as an effort at
damage control, as five justices appeared to conclude that a face can never be
suppressible as the fruit of an unlawful arrest.
Next, in the Michael Jones case, which had a complicated procedural
history, I wrote for a 2-1 panel majority after a rehearing, but the en banc court
reversed, 6-3, so I wrote the dissent. The Supreme Court then granted cert. The
defendant, Jones, was a first offender who had stolen a coat from the Woodworth
& Lothrop department store. His attorney – can you believe it? – pleaded him not
guilty by reason of insanity. He was therefore committed indefinitely at St.
Elizabeths Hospital. Silas Wasserstrom of the Public Defender Service argued
that, as a matter of equal protection and due process, Jones could not be
154
incarcerated for a period longer than the maximum prison sentence he could have
received – one year – without granting him a new proceeding to determine
whether, at that point, he was well enough to be released or should be civilly – no
longer criminally – committed, subject to a statutory right of review every six
months. The Supreme Court, in an opinion by Justice Powell, affirmed, ruling 5-4
for the government, permitting indefinite criminal commitment until Jones met
the higher standard for release under the criminal commitment statute. Justice
Brennan and Justice Stevens wrote the dissents.
All this reminds me that it was particularly gratifying when I received the
William J. Brennan Award from the D.C. Bar in 1999 in recognition of my public
service. There was another case 1n which the legal issues were not terribly
difficult, but the case was horrifying. It was Khaalis, the second Hanafi murder
case. A group of Hanafi Muslims shot Mayor Barry and others at the District
Building; shot people at B’ Nai Brith headquarters; and shot still others at the
Islamic Center. It was part of the fallout from retaliation against another group of
Muslims who had butchered the children of the defendants- the assaulting parties
– in this case. We heard argument all day. Never had a case raised so many issues.
I was in my second year on the court, and I wrote the opinion affirming all
convictions. That case was quite a strain. I would add that there were, of course,
quite a few lawyers who appeared for the many defendants, including attorney
Harry Alexander, who had been a Superior Court judge. But a young lawyer from
the U.S. Attorney’s office, John Fisher, handled the entire case for the government
155
most impressively. He is now the head of the appellate division of that office and
is a superb advocate.
Mr. Kapp: As you look back over the year here, probably an unfair question, any decisions
you think you’d like to do over?
Judge Ferren: There is one, Bob, that I feel ambivalent about. I dissented 1n Hornstein v. Barry,
an en banc case upholding the constitutionality of a statute that barred the
conversion of apartment buildings to condominium units unless 50% of the
tenants agreed . The legislation was intended to forestall a wave of condominium
conversion that would severely reduce the inventory of available apartments in
the District. I was totally sympathetic with that purpose but concluded that the
statute unlawfully delegated governmental authority to a private group of
individuals, the tenants. I have come to question myself about that one.
I should add that on a number of occasions I voted to grant rehearing of
cases for which I’d written the opinion, and, as a result, I’ve sometimes changed
my mind. I’ve always wanted to “get it right” and never have been reluctant to
change the result or narrow the ruling or, at least clarify the rationale if, on further
reflection, I concluded that my first decision had been wrong or imprecisely
stated.
Mr. Kapp: Would you say that your judicial philosophy has evolved in any particular way
over time? Do you think you are a different judge today, philosophically than you
were when you started?
Judge Ferren: I don’t think so, Bob. I think I’m as concerned about the constitutional rights of
citizens in making sure they’ re not overridden as I was on Day One as a judge. I
156
tend to get very concerned, I guess that is the right word, when it appears to me
that the court is bending over backward to affirm a conviction by rationalizing in
the strangest of ways why a particular error was harmless, or a particular police
interrogation or search was really not a violation at all. So I guess I still deal with
these concerns. I will say that much of our constitutional law governing the Bill of
Rights, particularly the Fourth and Fifth Amendments, has evolved in the
Supreme Court so strongly contrary to my own views since I joined the court –
that is, so many close questions have been finally resolved in a ways that differ
from how I would have decided them — that there is less room for dissent on these
constitutional issues than there used to be. When I first came on the court,
Miranda and pretrial detention, to name two issues, were very hot issues that
could go either way in case after case. Right now, everybody is detained without
bail, it seems, and Miranda rights have been narrowed. But mercifully, the
Supreme Court did not throw Miranda out; Chief Justice Rehnquist saved it. But
the threat is always there.
Mr. Kapp: You know, there’s been a debate for a long period of time about judicial activism
as contrasted with judicial restraint. Have you got any comments to make about
that?
Judge Ferren: Well, the idea amuses me because one person’s activism is another person’s
restraint and vice versa. If you take a Justice like Justice Scalia of the Supreme
Court, he is probably more an activist from my point of view than any other
Justice on the bench. I like to think that every judge tries – and I think most of us
do try — to apply the law correctly, whatever that means. I think those who say
157
that there are no cracks to fill, no forks in the road – that there are literal answers
that always can be divined from the Constitution or from statutes or by applying
other cases – are just wrong. There’s always something new. There’s always
something that the legislature didn’t come to grips with. And judges inevitably
make law, whether it’s the common law or constitutional law, and even when they
are construing statutes. What you want to do as a judge is to recognize that you’re
always making law – however incremental it is – and to go about it in a
responsible way, taking a look at the words of a statute, at legislative history, at
past cases, at the arguments for public policy, and give it your best shot. My belief
is that the ultimate answer is whether what you decide and write is coherent;
whether the opinion you write acknowledges the arguments on both sides, or three
sides, or four sides, of an issue, deals with them with honesty and integrity, not
sweeping anything under the rug. I think those opinions that hang together and
that are honestly acknowledging the conflicting forces and arguments are the right
way to decide cases, and as new facts, new situations, come, those opinions will
be modified as applied to the new situation.
Mr. Kapp: At some point, I know, you became a candidate, or were perceived of as a
candidate, to become the Chief Judge of the Court. Can you tell us about that,
what you think happened there, and how you felt about the result?
Judge Ferren: Well, let’s see, I guess, it was 1994 and Judy Rogers was appointed by President
Clinton to the U.S. Court of Appeals. I was the senior judge on the Court at the
time, and under our statute I automatically became Acting Chief Judge . The
Nomination Commission under the statute is charged with designating a Chief
158
Judge from among the active judges for a four-year term, and I put myself
forward in 1994 as a candidate to succeed Chief Judge Rogers, as did Annice
Wagner. If people were telling me the truth, I had the support of almost all the
other active judges, and the Washington Post wrote an editorial endorsing me. But
the Nomination Commission selected Judge Wagner as Chief. I feel fortunate, as
it turned out, that in 1997 Mayor Barry asked if I would like to become
Corporation Counsel. I retired to do that after 20 years on the court.
Mr. Kapp: Well, let’s talk about your appointment as Corporation Counsel. How did that
come about?
Judge Ferren: Bob, it came just. out of the blue. A highly respected lawyer in town, Pauline
Schneider, whom I knew and who was a friend of Mayor Barry, called me up and
asked whet her I would be at all interested in succeeding Chuck Ruff as
Corporation Couns l. Chuck had become White House counsel, and no successor
had been appointed for a number of months. My reaction to Pauline was, “You’ve
got to be kidding; thank you.” And I politely ended the conversation. I then spoke
with Linda about it. She said, “Well, why don’t you at least find out what that’s
about?” So I called Pauline back and asked her to tell me more. And she said,
“Why don’t you let me have Michael Rogers, the City Administrator, come over
and talk to you?” So Michael Rogers did. He impressed me very much, and I
liked him very much. He said, “You know, Chuck came and really helped turn
around the office. This is an interesting time because the Control Board is in
charge but the Mayor has prerogatives. Why don’ t you let me arrange for the
Mayor to meet with you?” I said, “All right,” and the next thing I knew Mayor
159
Barry’s people called up and he came right over to my office with an entourage. I
think people at the Court were standing around with their mouths open watching
the Mayor traipse in. But, in any event, he came to the office and we really hit it
off, and I began to think about making the change. I had seen attorneys from the
Corporation Counsel’s office appear in Court many, many times, and that office
had a strong appellate section. I knew their resources were greatly in need of
updating, and so I thought about it a little bit more and in the end agreed. It took
close to three months over the summer of 1997 to make up my mind .
One of the interesting sidelights was that under the govern1ng statute, by
retiring on my pension, it would mean I would have to serve as Corporation
Counsel for free, because the pension was to be offset against the Corporation
Counsel’s salary and that salary was set lower than the pension I would receive. I
didn’ t feel that I should donate my time . Totally unknown to me, Mayor Barry
and Michael Rogers got together with Councilmember Kathy Patterson (I didn’t
know her at the time). They convinced her to put a bill in the Council that would
exempt judges from the offset. It passed. Then they told me. Well, that would
mean that I would be double-dipping and making more money than any official in
government. I thought that would be totally wrong. But I was coming to think the
job would be interesting, so I said, “Why don’t you pay me the difference between
my pension and what I would make as an active judge, so that I’ m not making
any more money by moving, but I’m not losing any money, either?” That’s the
arrangement we made; I thus partially waived the exemption. I have to say that,
soon thereafter, full double-dipping was going on all over the city. But that doesn’t
160
matter. I thought it was a fair arrangement, and so I came on board. I would add
that with the Control Board, the Mayor, the Council, and the Congress all
involved in decision-making about the city, it was going to be interesting to figure
out who the client was. I soon concluded that an important commitment was to
help preserve the Mayor’s prerogatives under the Control Board regime. And it
was really important to get resources for an office that didn’t even have a
functional computer system at the time. It was shocking.
Mr. Kapp: Can you go back and tell us a bit about your conversations with Mayor Barry?
Judge Ferren: They were entirely informal. I had met Marion Barry in a barrio in Los Angeles
back in 1970 when I had just come to Hogan & Hartson and was planning to bring
some cases against the police.
We both were attending a national seminar on litigation against police
departments. Barry was there, and I met him briefly, but I didn’t really get to know
him then or even later. I was well aware from the newspapers of all the travail that
he had gone through and put the city through, and my friends were saying, “Why
would you ever go to work for Marion Barry?” But he was in the last couple of
years of his term, and I thought it was important that the Mayor have sound
counsel, especially vis-a-vis the Control Board. One of the things the Mayor made
very clear to me was that he was looking for a legal voice for the city, and so I got
the impression that I would be listened to. And we hit it off. It was just a lot of
informal talk. He asked about my background, and we talked a little about civil
rights. I think he was looking for somebody he felt personally comfortable with.
That seemed to work, and the chemistry between us always was good.
161
Mr. Kapp: Did you have any discussions with him regarding your independence?
Judge Ferren: Yes. I made it very clear to him that I was going to give the advice I thought was
sound, and that if he wanted to do something I believed was unlawful or even
questionable, I was certainly going to tell him. He was quite insistent that that was
his position, too. He wanted somebody, he said, who would make sure that all the
T’s were crossed and the I’s dotted. I think he went out of the way to anticipate
that concern and to assure me that he was interested in having someone, like
Chuck Ruff, who was seen to have integrity. He obviously wanted whatever
prestige went along with appointing a judge to that position; there was something
in it for him just from that point of view. So he gave me all the assurances that I
wanted to hear. I was in a position, of course, where I could leave the next day. I
didn’t need this job, and I took it with the idea that if it lasts a week, it lasts a
week. There was nothing in it for me other than making the office a better office
by virtue of getting resources it needed and trying to hire and attract really good
lawyers. So I saw it as a personal mission. I talked with Dan Rezneck, who was
General Counsel of the Control Board. I met with Steve Harlan, who was a
member of the Control Board. I also knew Connie Newman, who was on the
Control Board. I got a sense from everybody that there would be great support
from the Control Board for additional resources. The one condition I did give the
Mayor for my acceptance of the job would be a commitment to the necessary
resources- I can’t remember the dollar figure I used – but that so many dollars
would be made available. He said yes, absolutely, although I realized that without
the Control Board he couldn’t guarantee that.
162
Mr. Kapp: How did your relationship with him evolve? I mean, can you tell me a bit about
that?
Judge Ferren: He would call me practically every day. We had a hotline between our offices. If I
needed to talk to him, I could see him instantly if he was in the office; if not, he
would get back to me. There was just regular communication. Most of it had to do
with legal issues, although sometimes he’d ask my judgment about something
else. One of the things that surprised me was that it was apparent to me almost
from the time I got there that the Mayor had begun to lose heart that he had any
real authority left. I guess the Control Board had beaten him down. He had picked
fights earlier, and he had been defeated by the Board because they did have
authority. I sometimes found myself in a position where I was saying, “You have
prerogatives to assert that you are not asserting,” and there were times when I
urged him to take positions that he declined to take because he was not up to the
fight. My concern was not Marion Barry; it was the Office of Mayor. One didn’t
know how long the Control Board would go on, and it seemed to me that it was
the Mayor and the Council who were being run over by the Control Board in
areas where they should have been much more involved. And so much of the time
I saw myself as Counsel to the District versus the congressionally mandated
Control Board, and to my surprise, as I say, the Mayor seemed less interested in
fighting that good fight. Members of the Council were interested in maintaining
Home Rule prerogatives, and I worked with them, too. I gained enormous respect
for the members of the Council; I think it was the strongest Council I’d ever seen
since I’ve lived in the District.
163
Mr. Kapp: Who were the key players In that regard on the Council?
Judge Ferren: Well, it depended on the area, but Kathy Patterson is one of the most tenacious
and bright, capable workers. Her agenda was vast. I worked with her a lot, if only
because I couldn’t avoid it. Kathy was on the phone all the time, and I respected
her enormously and still do. Jack Evans was very concerned about police
community relations and I worked with him on that. Sharon Ambrose is a very
bright, committed woman from the Capitol Hill area. Linda Cropp is a wonderful
Chair of the Council. She had a way of getting people to work together; she’s
smart, well organized, and was a very important person in all this. David Catania
was a real addition to the Council. He has a lot of smarts and is tenacious. He and
I didn’t get off to a particularly good start. I can’t remember what the issue was,
but he came to me and said mea culpa, and we began to work closely together. I
worked with Kevin Chavous a good deal in education; he’s a good man. And I
enjoyed working with Sandy Allen on health issues. I think Harry Thomas was in
his waning years. Carol Schwartz was always very vocal and bright, as was Jim
Graham, who came along later. So it was a good group of people.
Mr. Kapp: Going back to the time of your appointment, you mentioned your discussions with
Michael Rogers and the Mayor. Did you consult others as well, for example, did
you discuss it with any of your predecessors or any of your colleagues?
Judge Ferren: Yes; I spoke with Chuck Ruff twice. He invited me over to the White House once
and then he came over and met me somewhere else for lunch. I talked with Walter
Smith here at Hogan & Hartson, because Walter was a fellow I wanted to work
with again. He was so eager to join the effort that I think Walter’s interest in the
164
job was an impetus to my taking it. My colleagues at the Court didn’t want me to
go, and I had some other friends who were quite negative – again, “Why do you
want to hook up with Marion Barry?” I never saw that as an issue. There was
another fellow who came over to see me, a professor at Georgetown, who used to
be involved with city affairs. He told me that, in one way or another, “Mayor
Marion Barry will find some way to do you in, and you’ll end up being tainted in
this job.” He felt that profoundly and he seemed genuinely concerned for me
personally. But I just had a sense that I could protect myself, and I didn’t see
where the danger would come from. There was a Control Board; there were
people who were watching the Mayor; and in the worst case I could quit. So I did
not see the Mayor Barry danger that everybody else kept talking about.
Mr. Kapp: How about Chuck Ruff, was he encouraging?
Judge Ferren: Very. Chuck was very, very encouraging, and Chuck and I got along very, very
well. Our instincts were similar about a lot of things. Chuck was a real
salesperson who obviously had a good deal to do with satisfying me that
becoming Corporation Counsel was something I should do. He obviously had
worked with Mayor Barry and survived quite well, and so I think his experience
counted a good deal with me.
Mr. Kapp: And tell us about how you found the office when you arrived there, in terms of
resources and professional staff, problems on the horizon?
Judge Ferren: Let’s talk first of all about people. Jo Anne Robinson had been the interim
Corporation Counsel, and she had been Chuck’s Principal Deputy. Jo Anne is an
African-American woman of great talent and great knowledge of the budget, and
165
Chuck had encouraged me to keep her as my Principal Deputy. I could tell in
meeting Jo Anne – who was the first person I called once I’d decided to take the
job – that she was going to be solid. And she was. I mean, she handled the
finances, the budget, she knew the city, she knew the agencies. It was great having
as Special Deputy my friend, Walter Smith, a brilliant lawyer, whom I could use
as a troubleshooter all over the office. But Jo Anne kept that office going. She
was invaluable. I also was pleased that two of my former law clerks, Janet Robins
and Elise Dieterich – both outstanding 1n so many ways – were willing to join our
office in the Legal Counsel Division, where our legal opinions are developed and
drafted. Elise and Janet became indispensable.
As I got to meet others, including the deputies of divisions and the section
chiefs, I got a warm feeling about the staff and the people. I can say that just about
everyone seemed to me to be a good person. I don’t think I’ve ever been in any
organization – and I am sure I never will be again – where there were as many
people that I responded to, and responded to me, with such warmth and good
feeling. I literally was in tears when I left that office, and if you looked around the
room at the gathering, when I left the office, many others were in tears, too. It had
been clear to me instantly when I joined the office that these folks needed a
cheerleader. They had been battered around without resources, denigrated by
federal judges and local judges alike, so often representing the District in cases
that were not winnable. I decided my main job at the beginning was to get
resources, a computer system, and a telephone system – and to set up a personnel
system – that would let people know that somebody would be going to b at for
166
them. And when you start doing that, people respond. I guess I’m a people person
anyway, but I’d go walking through the corridors on the 6th floor – my office was
on the l0th floor – and people would say, “Well, what are you doing down here?”
as though a Corporation Counsel is supposed to stay in his office.
And so I think there was a kind of family feeling that we all developed
that helped get out the word that this was a good, or at least a promising, place to
work. I was able to hire people who were really quality lawyer s, and you could
just feel the office- kind of like this slumbering beast- getting up and sharpening
up on everything. If somebody did something that a judge didn’t like, that judge
would call me up and we’d take care of it; I had a relationship with the judiciary
that was unique for a Corporation Counsel, so that helped.
I probably should have said before now that when Walter and I joined the
office, many of the public schools were closed, by court order, because of various
building and safety code violations. This had resulted from a suit by Parents
United for the District of Columbia Schools, represented pro bono by the firm of
Steptoe & Johnson. Our first job was to resolve that case – which had been going
on, including the shutdown, for quite some time – and get the children back to
school. I’m pleased to say that we settled that litigation in a week or so, after
hours and hours of negotiation.
Another thing we did was to take over the child support system from the
Department of Health and Human Services. That added several hundred
employees, more than doubling the size of the office and the budget. That was an
enormous undertaking. And there were other things we did that were new.
167
Mr. Kapp: You talked about your relationship with Mayor Barry over the course of your
tenure. Did you have dealings with Anthony Williams at the time as Controller?
Judge Ferren: I did; Tony Williams was the Chief Financial Officer of the District, and it became
instantly clear that he did not like our office. I would see him from time to time,
and it struck me that one of his goals was to get as much autonomy and authority
away from our office as he could. He wanted his own legal staff. He once went to
the Hill to get some legislation that would affect our office without even calling
me. Immediately Congressman Moran’s office called to find out what was going
on, and I went up to confront Tony about that. I don’t remember what his excuses
were, but I must say that I did not appreciate his effort for an end run – an effort, I
should add, that failed.
After his election as Mayor in 1998, Tony asked to see me on December
31. The reason? He wanted me to install one of his aides as my Deputy
Corporation Counsel. I said that was not negotiable and declined, although I
added that if he wished me to resign I would do so. He must not have wanted the
uproar that my resignation would have caused under such circumstances, and
probably, with the voting rights litigation in progress, he didn’t want me out of the
case. So he backed off. Word got around the office- not from me – what had
happened, and everyone appreciated that I had rejected the Mayor-elect’s request.
Mr. Kapp: And what about the Control Board? How would you describe your relationship
with the Board?
Judge Ferren: The Control Board respected what I was trying to do. They instantly saw the
importance of the office and of getting the resources. Steve Harlan, Connie
168
Newman, Chairman Brimmer , Joyce Ladner. Eugene Kinlaw- they all were very,
very supportive. Dan Rezneck and I met regularly. I guess we had lunch every
couple of weeks, and we were on the phone together all the time. I mean, if I had
a hot line with Barry, I also had one with Dan Rezneck.
Mr. Kapp: Dan was at that time the Counsel?
Judge Ferren: General Counsel of the Control Board, and we got along very well. I think that
Dan and I were able to function in a way that smoothed out wrinkles that were
developing from time to time between the Control Board and the Barry
Administration. I think that served a useful function.
Mr. Kapp: What about relationships with Inspector General Prettyman? Did you have
dealings with Barrett at that point?
Judge Ferren:I had relatively few substantive dealings with him, but I take some responsibility
for Barrett’s becoming Inspector General. The opening developed at a time of
special concern about the integrity of the police department. I was part of an
enlarged group that included the Control Board, which was created to nominate a
new IG, and names were being mentioned. One was William Webster, former
head of the FBI, whom we did interview. I suggested Barrett Prettyman. Another
was Jake Stein. Webster was not interested . Stein was, and he and Barrett were
interviewed. They presented very different visions for the Inspector General’s role
vis-a-vis the police at the time. Police Chief Soulsby had resigned under fire and
Jake said he foresaw taking a few weeks to get to the bottom of the problem.
Barrett, I think, realized that the job would bring a broader responsibility than that
169
and seemed willing to consider a longer commitment. He made an extraordinary
impression on the Control Board. And so Barrett was selected.
I heard him give a speech, once saying, “If John Ferren calls you up, the
first thing you say is no.” I think Barrett did a very, very fine job – no, an
extraordinarily fine job. He was highly respected for his work by everyone
concerned, and he obviously enjoyed his new role.
170
ORAL HISTORY OF THE HONORABLE JOHN FERREN
Seventh Interview
March 11, 2003
This interview is being conducted on behalf of the Oral History Project of the District of
Columbia Circuit Court. The interviewee is John M. Ferren. The interviewer is Robert H. Kapp.
This segment of the interview took place at the offices of Hogan & Hartson L.L.P. on the 11th
day of March 2003, shortly after noon.
Mr. Kapp: John, in our last interview, we were talking about some of the aspects of your
work as Corporation Counsel of the District of Columbia, and I think I’d like to
ask you about your working relationship with Walter Smith, your Deputy.
Judge Ferren: Walter left Hogan & Hartson to join me as Special Deputy Corporation Counsel. I
had worked with Walter when he first came to the firm. We had about a year
together working in the Community Services Department, and I developed an
extraordinary respect for his legal ability and for his qualities as a person. In the
ensuing years he and I continued our friendship. He sang at Linda’s and my
wedding; he was in the musical show that my son Peter and I wrote. And so
Walter struck me as not only ideal but also almost essential to come on board as
somebody whom I could have as a confidant and be able to count on without
question. As it turned out, our instincts for the work at the office were so close to
one another that I can remember going with him on occasion to a meeting where
certain decisions were made and certain follow-up was required. We would leave
the meeting without even conferring as to who would do what, because we
instinctively knew what he would do and what I would do as a consequence of
that meeting. We began with a closeness that continued, it grew; and I cannot
171
imagine having done the job as well, or with the enthusiasm I felt, without having
Walter at my side – he was a true brother in the job.
Mr. Kapp: Can you tell us a bit about your role in initiating the D.C. voting rights case – how
did the decision to undertake the case develop?
Judge Ferren: Walter and I had read an article by Jamie Raskin, a young professor at American
University Law School, in which he set forth in an issue of the Harvard Civil
Rights-Civil Liberties Law Review a theory by which the Constitution guaranteed
the District of Columbia citizens the right to vote in the House and the Senate,
even though the Constitution didn’t expressly say so. There was a historical
argument, and there was an equal protection argument. I thought these were
credible enough — indeed, very persuasive – so that we ought to move ahead with
a lawsuit, assuming permission from the Mayor and the Council. They readily
gave that permission and were enthusiastic. We knew that we did not have the
resources at the Corporation Counsel’s office to bring the suit by ourselves; we
needed a topflight law firm to help. I thought of Chuck Miller at Covington &
Burling as an ideal colleague for the suit who could bring the full resources of
Covington to it. Chuck became enthusiastic, so Chuck, Walter, and I – and Elise
Dieterich, a former law clerk of mine who had joined us at the Corporation
Counsel’s office – proceeded with the lawsuit.
Chuck also had several outstanding colleagues who joined the effort,
among them Tom Williamson, Rob Wick, and Evan Schultz. We spent many
roundtable sessions working through the theory, drafting pleadings, drafting
briefs; and ultimately we filed the lawsuit after a press conference on the Mall at
172
which we read a declaration of independence for the District (actually beginning,
“We The People,” in the words of the Constitution). As you know, we brought suit
before a three-judge federal district court. We initially thought we’d have to bring
it before a single judge, but the problem there would have been the right of direct
appeal to the U.S. Court of Appeals, where we did not think we would have had
much chance. We thought we’d have a better chance with a three-judge district
court, composed of one appellate judge and two district judges. Then, if we would
prevail there – or even if we did not prevail – an appeal from that decision would
go directly to the U.S. Supreme Court. We convinced the District Court that it was
indeed a case properly brought before a three-judge district court because it
concerned voting rights (which the law typically referred to three judges a t the
outset). After the argument, where Chuck Miller and I argued, respectively, for the
individual plaintiffs (eligible voters under our theory) and for the District, we lost
in a two-one decision. Circuit Judge Merrick Garland wrote for the majority, and
District Judge Colleen Kolar-Kotelly joined him. District Judge Louis Oberdorfer
dissented, supporting our theory. The U.S. Supreme Court, obviously not wanting
to touch the case, summarily affirmed without argument when we brought the
appeal, much to our disappointment.
Mr. Kapp: How would you describe your objectives? Were they legal or political, or a
mixture of both, or what?
Judge Ferren: Any suit like this obviously has a political, as well as a legal objective. But we
believed we had a very sound legal basis for the suit, and we would not have
brought the suit had we not thought that we could win it. The District of Columbia
173
in the Constitution was an unspecified, inchoate place; at that time, the Founders
expressed no idea where it would be and prescribed nothing about it other than it
would be an area not to exceed 10 miles square, somewhere later to be designated.
Sometime in the 1790s in a deal with President Washington, the District of
Columbia was selected from pieces of Maryland and Virginia; and the District
actually functioned for 10 years- and the people there voted either in Maryland or
in Virginia – until the federal government moved there. Whereupon Virginia and
Maryland residents were disenfranchised by their state constitutions from
continuing to vote in those states once the federal enclave became active.
For several years there were efforts in the Congress to continue the right
for those residing in the District to vote, but the Federalists opposed the idea and
it died away. The interesting thing is that, initially, there were very few people
living in the District, and there were those that said, “Well, you can schmooze
with many federal representatives right there in the tavern; you don’t need to have
the right to vote.” It really wasn’t until the District began to develop a substantial
citizenry that the issue arose again. You may recall that years later, in 1968,
Congress proposed a Constitutional Amendment, and sent it to the states, calling
for two senators and a representative for the District. President Nixon, Robert
Dole, and Strom Thurmond spoke out about how the rights of the District citizens
were violated without having the right to vote. I doubt that they believed that the
country would ratify the amendment, but we certainly quoted them in the briefs
we filed.
174
I should say, Bob, that our strategy in the lawsuit was to establish the right
to vote without focusing on what that remedy would be. Obviously, it is not
overly controversial to argue for a voting representative from the District of
Columbia. After all, the District of Columbia now is about the size of the average
Congressional voting district, or maybe a little bit larger at this point. But the
idea of two senators from the District of Columbia – who undoubtedly would be
Democrats because of the District’s current voting pattern – had always been a
political stumbling block. We had hoped that by avoiding the question of remedy,
and focusing on the right, we could defer consideration of the actual voting plan.
Our theory under the lawsuit was to have the court refer the issue of the remedy to
Congress in the first instance to resolve. I’ll just add, finally, that, in addition to a
purely District solution, where you’d have two senators and one representative
from the District, there was a strong argument that, because the current District is
carved out exclusively from what formerly was Maryland, one might have a
“Maryland solution.” Under that approach, District residents would vote for
senators from Maryland, meaning the senators would represent the District as well
as Maryland. That is not a radical solution, but, of course, it’s not a home rule
solution, either, and people who were supporting the lawsuit were of different
minds. That’s why we tried, initially, to avoid the remedy. I can imagine that the
Supreme Court, focusing on this, could see that the question of remedy was even
more complex than the question of the right. Conceivably, that caused the justices
to say, “Let’s let this go away.”
Mr. Kapp: Can you describe a bit or elaborate a bit on your legal theory?
175
Judge Ferren: Well, the first theory was historical. As I mentioned, the District grew out of the
states of Maryland and Virginia. There’s a Supreme Court case called
O’Donoghue, which said explicitly that once constitutional rights are vested, they
cannot be extinguished without a Constitutional Amendment. We took the
position that the right to vote in the District of Columbia had vested and been
exercised for 10 years, and that the fact the Congress located the federal
government there could not constitutionally divest the residents of their
constitutional right to vote. That theory would suggest the Maryland solution.
They were voting in Maryland; they could continue to vote in Maryland. I think
that is a very powerful argument. Our second argument was equal protection. In
the ensuing years, Wesbury v. Saunders and Reynolds v. Sims holding that “one
person-one vote” applied to congressional districts and to state legislatures, made
it very clear that there was an equal protection claim, giving everybody an equal
right to vote and an equal weight to their vote. We believed that that concept
certainly extended to District residents, who had no vote at all. The District’s
situation was anomalous under the evolution of the Equal Protection Clause. (Of
course, we were using the Fifth Amendment Equal Protection Clause announced
under Bolling v. Sharpe back in the ’50s during the desegregation cases.) So there
were two theories, one, the historical one, you can’t cut off rights that had vested
and, second, equal protection of the laws. I still think they’re very, very strong
arguments.
Mr. Kapp: And how other than disappointment, how did—
176
Judge Ferren: Excuse me, Bob, let me just add that there was another very important case after
O’Donoghue on which we relied. It was the Tidewater Transfer case in which
Justice Wiley Rutledge, joined by Frank Murphy, took the view of what has been
called “nominal statehood.” There have been scores of occasions when the
Supreme Court, for purposes of extending rights, has deemed the District of
Columbia to be a state, even though it isn’t one. The Tidewater Transfer case
raised the question whether Congress could grant federal diversity jurisdiction to
citizens of the District and citizens of other states who wanted to sue in federal
court in the District. Rutledge wrote an opinion saying that, under the
Constitution, diversity jurisdiction extended only to suits between citizens of
different “states,” but that the Supreme Court should deem the District of
Columbia a state for purposes of diversity jurisdiction, in order to ensure access to
justice for all individuals. Three other justices used the District Clause in Article I
to authorize diversity jurisdiction. I should add that recently the U.S. Supreme
Court has said that Article I cannot be used to extend Article III judicial power,
and so, the Rutledge theory of nominal statehood for the District’s diversity
jurisdiction is the only theory that now permits it. Also, the Sixth Amendment
right to a speedy and public criminal trial pertains only to “states,” and yet the
Supreme Court extended that to the District of Columbia. So if you see the right
to vote as our most fundamental right of all, it is not a stretch at all to deem the
District to be a state for purposes of the right to vote in the Senate or the House.
Mr. Kapp: Other than disappointment, how did you react to the majority decision, the
majority opinion in the three-judge court?
177
Judge Ferren: It was a very carefully crafted opinion. It was well thought through. It was
coherent. We anticipated all the arguments. Ours was an uphill case, one in which
we anticipated the arguments that the majority of the three-judge court used. I’m
disappointed, but I certainly respect the decision. I am more disappointed really
with the U.S. Supreme Court’s unwillingness to take on the issue when we had a
right of direct appeal and when the argument was more than colorable, far from
frivolous. Indeed, we had a very strong dissent from Judge Oberdorfer that
adopted the arguments we were making and thus should have led to more than
summary Supreme Court review. I heard somewhere that Justice Stevens had
voted to hear the case, but I have not been willing to ask him whether that is true
and I have no other way of finding the answer.
Mr. Kapp: Did the Oberdorfer opinion adopt, essentially, your legal theories?
Judge Ferren: Yes. Lest I forget, Bob, I should add that my scheduling the voting rights
argument in federal court almost cost me the opportunity to return to the D.C.
Court of Appeals as a senior judge. Under the statute, once I had retired, there was
a particular time frame- I think it was nineteen months — within which I had to
apply for senior status, pass muster with the Tenure Commission, and receive
appointment by the court’s Chief Judge. I had calculated the time and arranged for
argument on what I thought was the last day before the Chief had to sign my
reappointment to the court. A few days before the argument, my colleague and
former law clerk, Elise Dieterich, came into my office and said, “John, you can’t
count.” She pointed out to me that I had scheduled the voting rights argument a
day too late for my lawful return to the Court of Appeals, so straightaway I called
178
the chambers of the presiding judge of the three-judge district court, Judge
Oberdorfer, who kindly agreed to reschedule the argument earlier to
accommodate me. If Elise Dieterich, on her own initiative, had not recalculated
the time period for me, my life would have moved in an unknown, and I’m sure
much less happy, direction. She is a true friend, and I am most grateful that she
was watching out for me.
Mr. Kapp: What happens now? Where do we go now on D.C. voting rights?
Judge Ferren: Well, Delegate Eleanor Holmes Norton, with whom we were consulting regularly
during the suit, as well as Mayor Williams, Walter Smith, and others, are putting
together a major educational effort, hopefully nationwide, to acquaint people with
the fact that District citizens don’t have the right to vote. It’s amazing how many
people out there don’t realize this. Walter Smith, after he left as Corporation
Counsel Deputy, took a bike ride from Minnesota to New Orleans with a group
advertising the lack of D.C. voting rights. Walter now is the Executive Director of
the D.C. Appleseed organization, which has made one of its priorities working for
voting rights through a political awakening. The legal theory that came out of the
Federal District Court majority opinion seemed to leave room for Congress to
grant voting rights to District citizens in the House and the Senate, without
sending out a Constitutional Amendment to the states. And so Walter, Delegate
Norton, the Mayor, and others have prepared a statement trying to get the
Congress to bite the bullet and award voting rights. With a Republican Congress
that seems hardly likely, but when the Democrats were in control Senator
Lieberman got a subcommittee vote in support of the idea.
179
And, of course, as you know, our license plates now say, “Taxation
Without Representation.” President Clinton proudly had those plates on all of the
presidential cars. Within a day or so of President Bush’s taking office, they all
were removed.
Mr. Kapp: Does anything else stand out to you from your tenure as D.C. Corporation
Counsel?
Judge Ferren: I was impressed by the quality of the D.C. Council, I was impressed by the
willingness of the Council, the Control Board, and the Mayor to work together in
order to meet the statutory standards required before the Control Board could
expire. I think the Control Board was as eager to let go of that responsibility as
the rest of us were by achieving the required number of successive balanced
budgets. I was impressed by many many District officials at many different levels
of the District government. And, as I think I mentioned, I was impressed by the
spirit and commitment of the attorneys and staff in the Corporation Counsel’s
office. I was aware of how dominating the congressional presence for the District
is, particularly the dominance of Republicans, who appear to disdain the District
and try to use the federal appropriations bills to impose a social agenda on the
District, such as banning needle exchanges. We even had a citizen initiative on
medical marijuana, but Congressman Barr got through an amendment to forbid
the counting of the votes on that initiative, rather than await the result – which
Congress could veto if it didn’t like it. Walter Smith, Elise Dieterich, and I joined
on behalf of the District a lawsuit filed by the ACLU to declare unconstitutional
the ban on counting the ballots in the initiative. The Justice Department defended.
180
I was pleased to have the opportunity to argue that case before Judge Roberts in
the Federal District Court., We prevailed. I loved making that argument. Once the
votes were counted, however, and the initiative passed, Congress exercised its
veto, as we expected.
Mr. Kapp: I’d like to turn, if we could, to your personal life here. Could you tell us about
your prior marriage and then your children as well?
Judge Ferren: I was married in 1961 to Ann Elizabeth Speidel, who became Ann Ferren and is
the mother of our sons, Andy and Peter, born in 1964 and in 1969. Both Andy and
Peter are graduates of Woodrow Wilson High School in the District of Columbia.
They went to Alice Deal Junior High and Lafayette Elementary School in the
District before that. They were in the public school system throughout, and both
were admitted to, and graduated from, Harvard College. Andy majored in history
and government, and Peter in anthropology.
Andy went on to the University of Chicago Law School, where he was an
editor of the law review, and is now an attorney specializing in intellectual
property law with a firm in Boston, Goulston & Storrs. Andy, by the way, is a
terrific young man; I’m really proud of him. He’s an accomplished lawyer with
major responsibilities at his firm, but he has his priorities straight – first of all a
family man. He married a college classmate, Sue Wilkins, and they have two
children, Matt, who is now 10, and Megan, now 7. They are a very close family
who enjoy doing all sorts of things together. Furthermore, Andy does a lot of pro
bono work; he takes that professional responsibility seriously.
181
Peter took a longer route. He, I think, was in school, after high school, for
15 straight years. After his first year at Harvard, he received a fellowship from the
Sidwell Friends School, where he had taken Chinese on his lunch hour. Sidwell
had a Chinese program open to all students in the District, not just to Sidwell
students. And Peter did well enough that he was awarded a fellowship for a year
in China. He still speaks fluent Mandarin. He then went to Yale Medical School
but took a year out to take a Master’s degree in Public Health at Emory; he’s had a
strong interest in international public health – particularly the mental health of
children of war. He did some research on that in Croatia. He earlier had done
some research on AIDS in Zambia. I think Peter’s been to about 55 countries by
now. He then did a residency in pediatrics and psychiatry at Emory in Atlanta,
returned to New Haven for a two-year fellowship in child psychiatry, and, after all
that time, this last August he took a position as an assistant clinical professor at
the University of California at San Francisco on the psychiatry staff, where he
sees patients – children as well as adults – and supervises medical students.
Mr. Kapp: Sounds like a very interesting young man.
Judge Ferren: Yes, he is; I’m very proud of him, too. He speaks some French and Spanish as
well and has been all over the world. It’s amazing the trips he’s taken and the time
he’s spent in various places.
Mr. Kapp: And you were remarried to Linda when?
Judge Ferren: On June 17th, 1994. Linda Finkelstein had been a dear friend of mine for a long
time. I got acquainted with her in the late seventies when she was director of
research for Chief Judge Moultrie. I was trying to find out for the Judicial
182
Conference Committee on Civil Legal services how much pro se representation
there was in Superior Court. For years, Linda prepared the report for us. She
eventually left the Superior Court when Chief Judge Patricia Wald appointed her
as Circuit Executive for the District of Columbia Circuit, the first non-lawyer to
serve as the chief administrative officer for the federal courts in the District of
Columbia. She served under Chief Judges Wald, Abner Mikva, and Harry
Edwards for ten years, at which point Brooksley Born, who headed the
Commodity Futures Trading Commission, asked Linda to become Executive
Director of the CFTC. When Brooksley left, Linda retired from the federal service
at about the time I resigned as Corporation Counsel. She then worked part time as
Executive Director for the National Association of Women Judges, followed by
consulting relationships with the Historical Society of the District of Columbia
Circuit and the Supreme Court Historical Society. In the meantime, in the early
nineties, we started to look at each other a little differently and kept doing so. And
so we were married, in 1994. It is really special when two persons who are
already very good friends fall in love. Through Linda I inherited two wonderful
stepchildren – Shari, who graduated from Harvard a year after Andy, and Daniel, a
Williams College grad who is Peter’s age. Shari is a producer for Leslie Stahl on
“60 Minutes” and is married to Tom Yellin, a senior producer for Peter Jennings at
ABC News. They have given us two very special twin granddaughters, Cole and
Lara, who are almost seven months old. Daniel is winding up a residency in
pediatrics at the Montefiore Hospital in the Bronx and soon will be married to
Ellen Shurman, an advertising executive, whom he met while attending medical
183
school in Philadelphia. All of them have been wonderful to me, welcoming me to
their family, so I feel now as though I have four children!
Mr. Kapp: What have been your other activities and interests outside of your professional
life, would you say?
Judge Ferren: As you know, I’ve enjoyed bicycling. My son Andy and I twice rode across Iowa
in RAGBRAI- the Des Moines Register’s Annual Great Bicycle Ride Across
Iowa. The trip each year, which we took in 1980 and 1981, is approximately 500
miles over seven days, including one day of 100 miles, called a “Century.” Each
year there would be a different route along two-lane highways. We’d get on the
road at 6:00a.m. and hope to finish the day’s ride by noon or not long thereafter.
Iowa is full of hills; most people don’t know that. In fact, the northeast part of the
state has been called “Little Switzerland.” So the trip was a grind, facilitated by a
granny gear that I put on my rear sprocket. Each day after we finished we’d head
for the town swimming pool and then, often, to an air-conditioned movie. The
temperatures each time were in the high nineties. Local community groups, such
as church organizations, the Lions Club, and veterans’ groups, would provide
breakfasts and dinners at very low cost, and we’d camp each night in the town
campground. Each night a musical group would play- country and western, rock,
you name it. In 1981, the ride took us through the little towns where my dad and
mom grew up, Leon and Bonaparte, and we spent time with my dad’s sister in
Leon and several of my mother’s friends in Bonaparte. It gave me a real kick to
show those towns to Andy.
184
I commuted to the courthouse by bicycle – about a 10-mile trip mostly
through Rock Creek Park – for about 12 years. After that, I decided I probably was
not sure enough of myself to do that trip. Well, actually, Linda didn’t want me to
do it. . . and so I’ve taken up jogging and also lift weights for exercise. I
discovered, along the way, that I have osteoporosis, so I have to do weightbearing
exercises.
I also have a strong interest in music. I play the piano, and Peter and I
wrote a musical, “We The People,” a musical about the Constitutional Convention
of 1787. In 1986, during Peter’s senior year in high school, we noted that 1987
would be the bicentennial of the Constitutional Convention; that got our interest.
So over the next three years, including Peter’s freshman year at Harvard and even
during his year in China, we plugged away at the songs and the script. Peter was
the driving force on lyrics; he wrote about three-fourths of those. I wrote about
three-fourths of the music. There were songs where we collaborated on the musicone
doing music for the main verse, the other writing for the chorus. We also
collaborated on some lyrics, each writing different verses. And there were songsmusic
and lyrics – that were entirely Peter’s and those that were entirely mine. I
think we worked in every possible combination except one: I don’t recall writing
lyrics for any of Peter’s tunes, though he did for mine. While all this was going on
I took music composition on my lunch hour every week during 1988-89 at
Catholic University from a graduate student, Ed Nassar, who helped me write all
the music down correctly. I had learned to do this somewhat already, but Ed really
helped me learn how to write so that someone else could play the pieces easily.
185
In the spring of 1989, we put on a concert version of “We The People” at
Catholic University, made possible by getting a wonderful pianist, Jerry Rich, to
direct the students and play the music. Two years later, when Sally Determan was
president of the D.C. Bar, she proposed that we stage the musical at the D.C. Bar
Convention at the Shoreham Hotel. She got Curtis Von Kann, then a Superior
Court judge and former associate of mine at Hogan & Hartson, to direct it; and
Curt got a choreographer, Betty Weincek, to help stage the musical. We asked
Jerry Rich to be musical director. We held auditions for seven parts- four men to
play multiple roles each (such as George Washington, James Madison, Edmund
Randolph, Benjamin Franklin, Elbridge Gerry) and three women. Of the seven,
five were lawyers – including Walter Smith– and another was a law student.
Women, of course, were not delegates to the convention, so we included a
fictional bar maid at the Indian Queen Tavern, Molly Sherman, who in our version
suggested the Great (Sherman) Compromise; a fictional slave of George
Washington, Rachael Davis, who eventually complained about her assigned status
as “three-fifths of a Weperson”; and a real-life Philadelphia socialite at the time,
Anne Bingham, who, in our version, confronted the delegates with women’s
issues. The musical included fifteen songs followed by reprises that featured the
Bill of Rights. In addition to the first performance at the Shoreham we put on
others in Washington at the National Archives and at St. Columba’s Episcopal
Church, which graciously had lent us its facilities for rehearsal. A few months
later, in the fall of 1991 at the suggestion of Judge Ruth Ginsburg, then on the
D.C. Circuit, we were invited to perform in Williamsburg, Virginia at a national
186
conference of federal judges assembled in honor of the Bicentennial of the Bill of
Rights. All this was a most heady experience.
Since 1995, I have been working off and on- and more recently almost full
time – on a biography of Justice Wiley Rutledge, FDR’s last appointee to the
Supreme Court, in 1943. Just before Christmas I finished the revisions of the
manuscript. I’m pleased to say there are two publishers who appear enthusiastic
about publishing it, and I’m just waiting to see how that all plays out. I’ve had
some wonderful experiences in meeting people who knew Rutledge and agreed to
interviews that have enhanced the biography.
Mr. Kapp: How did you come to become interested 1n Justice Rutledge?
Judge Ferren: First of all, Rutledge is probably one of the two most liberal justices who ever sat
on the Supreme Court. Frank Murphy was the other. Murphy was more or less an
ideologue, while Rutledge typically made judgments and wrote or joined opinions
in ways that struck me as very principled. I was interested in exploring how a
liberal judicial activist on the Court fit in, and whether one could do that in a
principled way, that is, with integrity. I tended to appreciate the jurisprudence of
Wiley Rutledge, so that was one reason. Second, Rutledge was a tremendously
decent human being, just a wonderful human being. In fact, the biography is titled
Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge.
He was a person who loved people. He’d drop almost anything to spend time with
people, rather than get his work done. He once offered a Supreme Court clerk for
another justice a ride home, they stopped to get gas, and the former clerk later
complained to me in an interview- actually, with obvious appreciation – – that
187
Rutledge stood around talking with the gas pump operator for a half hour before
continuing home. So Justice Wiley Rutledge was a very decent human being.
Third, he was dean of two law schools in the Midwest, Washington University in
St. Louis, then the University of Iowa. I have a very strong Midwestern
background, and so that resonated with me. Furthermore, the justice’s children are
still alive, two in the Washington area, one 1n Chapel Hill, North Carolina. And
there were many other individuals, former law students of his, as well as former
Supreme Court clerks of Justice Rutledge and the other justices during the time he
served, who were available for interviews. Those I interviewed included very
interesting people, such as Justice Stevens, who had clerked for Rutledge. Judge
Louis Pollack, who had been law dean at Yale and at Pennsylvania, and now is a
federal district judge, also clerked for Rutledge. Willard Wirtz, former Secretary
of Labor, was the first professor Rutledge hired when Rutledge became Dean of
Iowa, and Secretary Wirtz made a real contribution to my learning about
Rutledge, as did Professor Victor Brudney of Harvard, who was Rutledge’s first
Supreme Court clerk. I probably should have mentioned first that David Wigdor,
assistant director of the Manuscript Division of the Library of Congress,
recommended Justice Rutledge to me, told me that nobody had touched the
Rutledge papers to any great extent, and observed that Rutledge was a marvelous
correspondent, which was true.
Mr. Kapp: Where are his papers kept?
Judge Ferren: In the Manuscript Division of the Library of Congress in the James Madison
Building.
188
Mr. Kapp: And did your view of him change in any way through the writing of the
biography, or did it remain about the same as your initial reaction?
Judge Ferren: It remained the same. If anything, I came to appreciate him more and more, both
as a judge and as a person, and I kept worrying that this book would be too much
of a paean of praise rather than a critical biography. The biography will have to
speak for itself. I trust that it is as objective as one can be. But I have to tell you
that, out of approximately 160 interviews, I found only one person who would say
that he didn’t like Wiley Rutledge, and that was a law student who headed a
fraternity whose members had trashed the fraternity house in the law commons.
Rutledge disciplined the fraternity in a way that this man thought was unjust. I
became a friend of this former Iowa student, David Elderkin, trying to learn more
that might be negative about Rutledge if I could find anything on the downside.
But that was the only incident. During one of our conversations, I told Mr.
Elderkin- a lawyer in Cedar Rapids, Iowa- about Justice Rutledge’s dissents in the
Yamashita and Homma cases. Rutledge was one of two who dissented when, at
the end of World War II, military commissions convicted two high-ranking
Japanese generals of war crimes and recommended the death penalty, which
President Truman approved. Mr. Elderkin had attended General Yamashita’s trial
as a young Marine and found it to be an outrage, a denial of due process. He had
not known that Rutledge had written a dissent in the case. And he said, “Well, I
guess I think a lot more of him after all.” So, even he has respect for him.
Mr. Kapp: Well, I always think in this vein of David McCullough, and particularly his
biography first of President Truman and then of John Adams. And in the Truman
189
case, it seemed to be clear he fell in love with his subject in the course of the
writing of the biography. In the case of John Adams’s biography, he started out
trying to write a biography of Jefferson and found that he was more interested in
Adams. He found Adams to be a more appealing character, so I wondered about
whether your views were transformed in any way.
Judge Ferren: Well, they were not. Of course, I learned a lot on the way. I was writing about a
justice who served on the Supreme Court only six and half years, which happened
to be the years when I was in elementary school, so I learned a lot about what was
going on in the world during the war and before. And here was a man who was a
“balance wheel” of civility on a court of justices, many of whom hated each other.
I mean, you had Frankfurter, who would not speak to Douglas, and vice versa.
You had an outright feud between Jackson and Black. You had Murphy, whom
few, if any, on the Court really respected. There was a lot of difficulty on that
Court, and Rutledge was a person who got along with all of them. There was a
falling out by many of the justices with Owen Roberts or, more accurately, by
Owen Roberts with the rest of the Court, for being too liberal in his view. So it
was very interesting to find out the role, the place, of a person of real civility and
integrity on a court that almost had centrifugal forces driving the justices apart.
And I think Rutledge did perform a very civilizing role, as well as being a very
principled justice.
Mr. Kapp: Do you have any future writing plans here, John?
Judge Ferren: Definitely not. No more books. One nice aspect of all this is that in 1999, when I
was picking up the book again after my time as Corporation Counsel, I was
190
invited to give a lecture at the University of Iowa on Rutledge, on his Iowa
deanship years. Justice Stevens was invited to come along and then comment on
my lecture; I thought this was wonderful! Justice Stevens has been so gracious, so
helpful. So I got a real kick out of that. That lecture will appear in a published
history of the University of Iowa College of Law. I also have an article on the
Yamashita case coming out this month in the Journal of Supreme Court History . I
also gave a lecture in a series sponsored by the Supreme Court Historical Society
this last fall on emergency matters conducted by the Court. I covered the Japanese
internment cases. That lecture, too, will be published, so I’ve had an opportunity
along the way to do some publishing connected with the book. That has been
satisfying. It’s probable that there will be other articles that I may want to write,
but nothing that’s going to consume me the way the book has. I also gave a talk at
Washington University in St. Louis when they installed a new Wiley Rutledge
Professor of Law, so it’s been very nice to be able to do that kind of thing as well.
Mr. Kapp: Any other future plans here?
Judge Ferren: Well, Linda’s daughter, Shari, and husband, Tom Yellin, gave us two very special
twin granddaughters last August, Cole and Lara. Because we are semi-retired
now, we find ourselves on the New Jersey Turnpike going into New York City
about every third week to spend several days with them. I have two other
wonderful grandchildren in Boston, Andy’s kids, Matt and Megan, who are 10 and
7, respectively. So there are grandchildren to spend a lot of time with. We will
continue to spend the summers in South Bethany, Delaware, which is very
191
enjoyable. I do continue to sit part-time as a Senior Judge, and I hope to spend a
lot more time than I have in recent years seeing friends.
Mr. Kapp: Looking back, do you have any regrets, would you say?
Judge Ferren: None. Obviously, I say that with a footnote of sadness, I had a failed marriage.
But Ann has remarried, as I have, and these things have a way of turning one in
wonderful new directions. I have been extraordinarily happy in the years I’ve been
with Linda and with a life for ourselves that we foresee will be wonderful in the
future-hopefully keeping our health, which is always a difficulty as one gets older.
I’m just beginning the experience of processing Medicare, which I trust I will
conquer.
Mr. Kapp: Looking back, also, again on the professional side – would you say there have
been any disappointments?
Judge Ferren: None at all, Bob. I feel so privileged. I learned, when I joined Kirkland & Ellis, I
learned quickly, I think, some very good legal skills from some very good
mentors. I am very pleased that I got involved so early in the concerns about the
lack of legal services to the low- income community and that I took the initiative I
did to set up the volunteer program in Chicago. That, of course, led to setting up
the first pervasive clinical program at Harvard Law School, involving a lot of law
students in civil and criminal cases with staff support, so I feel I launched a
program that now is rooted and has succeeded at Harvard Law School. I was very
fortunate, I guess because of that activity, to be invited to join Hogan & Hartson
by Bob Kapp, Chairman of the Committee, and others. I thoroughly enjoyed my
time there, including the opportunities not only to launch a major law firm
192
commitment to pro bono but also to become the firm’s first administrative partner
and help streamline the firm’s organization. I came to the Court of Appeals
probably as the second youngest judge who ever sat on that court and was able to
do that for 20 years before I was given still a new opportunity to become
Corporation Counsel. In the meantime, I was able to write a musical with my son,
and now I’ve done a book, which I feel good about at this point; so I’ve been able
to start a lot of things that have stuck. The Community Services Department at
Hogan & Hartson has continued to thrive. So, I feel very fortunate that I’ve been
able to earn a living, while making some innovative contributions, I think.
Mr. Kapp: And if you had to identify your most significant accomplishment or
contributions, what would you say?
Judge Ferren: Well, I think I would just be repeating myself. I think I have helped start some
things that undoubtedly would have been started by others, I know that; but I feel
that the projects I initiated, or helped initiate, have turned out very well. I can’t
pick one or another of those. I suspect if I had to pick one, I would say I was glad
that I had whatever it took in the early ’60s to bail out of a law firm and focus my
energies on legal services to those who couldn’t afford them, because starting
down that road reoriented my career in a direction that I think has been a lot more
rewarding than it would have been if I had just been a commercial lawyer.
Mr. Kapp: We’re com1ng to the end of our sessions here. I wonder if there is anything else
that you would like to add to this interview, or anything else you would like to
talk about?
193
Judge Ferren: I want to say on the record how grateful I am to you, Bob, for taking the time to
walk me through all this, and I feel privileged to be asked to do this. I guess the
only other thought I’d want to add is my awareness of how we just have to keep
beating the same drum. You know, I thought that when we started legal services
for the poor back in the ’60s, it would be here to stay; and yet the forces against it
continue to be there, and you just have to keep working at it, working at it,
working at it, so that anything worthwhile to help people, you just have to keep
reinventing. You have to keep educating young people who are not sensitized by
the Civil Rights Movement of the ’60s and the Vietnam War. I feel very privileged
in a perverse sense to have lived at a time when I feel I got hit over the head by
those movements. Young people aren’t hit over the head in that same way
anymore, and so, there have to be ways of reminding them of these movements
and not letting them slip away. I was saddened when the American people – and
the Supreme Court — put George W. Bush in the White House, a result that would
lead to erasure or retrenchment of so many social programs that simply have to be
carried out for the well-being of our people. You look around the world where, in
other countries, there are higher floors under living standards than we guarantee
in this country. I don’t understand why we can’t work out a medical care system
from which everybody can benefit. So I guess as I get older and older and older,
I’m aware that victories are never won. They are just victories for the nonce, so to
speak, and everybody has to refight the fights. Fortunately, over time, at least the
cycle breaks and we get back to some enlightened efforts. But I guess I realize
that they will just not stay without constant vigilance and hammering. And I hope
194
my children and grandchildren find ways to make a contribution that is for other
people, not just for themselves.
Mr. Kapp: Well, whatever your future plans, John, I am confident that you will keep up the
good fight and that you will continue to conduct yourself in the very admirable
way in which you have. This has been a great privilege for me, too, to conduct
these interviews, and if nothing else, it has confirmed to me the wisdom of our
effort to bring you here to the Community Service Department, and, I think,
through your efforts, the Department really got off to a great start and has a great
future, and we’ve also planted you in places, or helped plant you in places, where
you’ve done a great deal of good. So it’s been a great privilege to do this.
Judge Ferren: Thank you very much, Bob. Yes, you got me down here in 1970, so I’m in my
33rd year in Washington, and Hogan was the place that gave me the chance to
grow and function here in ways that I never could have anticipated. This firm has
a place in my head and my heart that is profound.
Mr. Kapp: Well, you’ve grown very well too.
Judge Ferren: Thank you.
195
Addendum to Oral History of John M. Ferren
On pages 110 -111 of my oral history, in reference to Garrett v. City of Hamtramch, 394 F. Supp.
1151 (E.D. Mich. 1975), after remand from id., 503 F.2d 1236 (6th Cir. 1974), reversing in part
id, 357 F.Supp. 925 ( E.D. Mich.1973), I said:
Allen Snyder, Phil Larson, and I obtained a mandatory injunction to require the
replacement of that housing [for African-American families destroyed by urban renewal]
according to site plans we proffered with the help of a pro bono architect from Detroit, a
city planner from Philadelphia, and a community organizer from the University of Detroit
law school clinic. The case was successful, for the most part, upon remand by the Sixth
Circuit after the case was appealed. (I have to say, parenthetically, that by the time this
process was ended, most of the families that had been displaced were long gone and
could not be found; I guess that shows the limits of the court system in correcting
injustice through mandatory relief like that.)
Although it took 35 years, mandatory relief eventually is being achieved for the benefit of
children and grandchildren of the class plaintiffs. According to The New York Times, March 11,
2010, pp. A1, A.l9, under a headline Amending at Last for Bias Policy, Michigan City Offers New
Homes: “About 100 homes have been completed for rent or sale, and another 100 are on the way,
paid for by a mix of local and state money, … thanks to a recent increase in federal stimulus
money.”
JMF: November 1, 2010
196
Addendum #2 to Oral History of John M. Ferren
An Appellate Judge’s Vocation
In 2017, I will reach the 40th year- exactly half my life – since appointment as a
judge on the District of Columbia Court of Appeals (with two years away as the District’s
Corporation Counsel). This has put me in a reflective mood, wondering how aware our
community is of the court’s responsibilities and how it works. I therefore decided to record a few
observations.
Straightaway I would emphasize that our appellate role is no more important than
the work of the trial judges in Superior Court. They interact daily with litigants, lawyers,
witnesses, and jurors, making countless swift decisions in case after case, often followed by
written opinions. This work requires legal judgment, sensitivity, patience, and stamina that put
me in awe. Moreover, countless more disputes reach finality in the trial court than those brought
up on appeal – a recognition that our trial courts routinely get things right.
The appellate court is different. We typically sit on randomly selected panels of
three judges who, upon request of a losing party, review a trial court ruling for legal error that
may have affected the verdict. Thus, we do not hear witnesses or receive other evidence or
second guess juries; we hear only lawyers (or occasionally pro se parties) from both sides who
have filed briefs before argument explaining why the trial judge erred- or did not. The panel then
confers and agrees either unanimously or by a divided vote that spawns a dissent. Sometimes a
party who loses the appeal convinces our full court of nine to rehear the case (although we now
have an unconscionably long, congressionally imposed vacancy that exceeds three years). On
rare occasions, the U.S. Supreme Court will grant a petition to review a decision of ours.
197
Professionally, an appellate judge becomes a generalist, reviewing criminal, civil,
and agency cases of all kinds, as well as supervising the organized bar, including lawyer
discipline. But that diverse diet is only the cover sheet to explaining why I have always loved
this job. I love it because, even at the appellate level, we are largely a “people’s court” dealing
with common, though very serious, human problems. This is often a difficult, even elusive
responsibility. We address virtually every imaginable kind of personal hurt.
Half of our docket brings review of criminal convictions, from minor assaults to
sexual abuse and homicides, drunken driving to distribution of controlled substances, stolen
autos to bank robberies and burglaries. These often include constitutional challenges, for
example, to questionable eyewitness identifications; to suspect confessions; to stops, frisks, and
other warrantless seizures by the police, as well as claimed denial of the right to Miranda
warnings, to a speedy trial, or to competent counsel. In all criminal cases, the Public Defender
Service, the private defense lawyers appointed under the federal Criminal Justice Act, and the
U.S. Attorney’s Office are advocates extraordinaire.
The other half of our caseload is an amazing potpourri of civil and administrative
disputes that commonly go to the very core of a party’s well-being: a failure of child support, a
claim for unemployment or workers compensation, a threat of eviction, a medical mishap or
other personal injury, an effort to terminate parental rights, a contested adoption, a petition for
civil commitment, a utility cutoff, a will contest, a statutory “small claim,” a charge of
defamation, a complaint of housing, employment, or gender discrimination, and alleged
invasions of other civil rights. Our caseload, of course, also embraces commercial litigation,
corporate swindles, business valuations, zoning controversies, commercial insurance claims,
198
government contracts, union issues, conflicts over schools and universities, and other
institutional disputes. But the bulk of our work centers on the individual.
In assembling examples of the many different situations the court must assess, I
was reminded that judging, whether trial or appellate, requires — above any other professional
aspiration — a steadfast motivation and enduring commitment to serving others, with equal and
fair attention to every party. That essential vocational priority is reinforced by every case, if only
because the administration of “justice” means that when a dispute goes to judgment, one or
another party, in whole or in part, must lose. And this means that a judge’s final ruling is a very
serious responsibility. With each decision, therefore, we implicitly warrant that we not only have
carefully studied the facts and applied the law (with the help of talented law clerks), but that we
also have perceived no conflicts of interest in judging the case and, in further looking inward,
have found no bias that would require recusal.
Indeed, this responsibility reaches a moral dimension. Each of us must always
ask: Have I adhered to all the above strictures in every case? Did I grant every party the dignity
that each deserves? Did I carefully read every brief and thoughtfully listen to every oral
argument? Did I write or join an opinion that is clear and persuasive — without finessing or
ignoring a relevant issue? Did I draft my share of panel opinions, and respond to my colleagues’
drafts, within a reasonable time after argument? These and other bedeviling questions are ever
present, and for an honest judge, a measure of self-doubt is always there. Fortunately, however,
each appellate judge has two colleagues on every panel to provide reassurance– or a challenge. I
am most grateful for the 32 watchful judges with whom I have served over the years.
199
In our cases, where pain and heartbreak can be so intense, and resolution of
differences so often difficult, our coming to grips on appeal with the demands of justice is an
ever-so-daunting, but personally meaningful, challenge. I would have chosen no other vocation.
John M. Ferren
Senior Judge, District of Columbia Court of Appeals
January 10, 2017

A-1
ORAL HISTORY OF THE HONORABLE JOHN FERREN
Index
ABA, 101, 136
Abramson, Fred (Chair of the Judicial Nomination Commission ), 102
Adams, Betty (high school classmate), 43
Albrecht,, Mary Ellen (D.C. Superior Court judge), 115
Alexander, Harry (D.C. Superior Court judge), 154
Allen, Sandy (D.C. Council member), 163
Ambrose, Sharon (D.C. Council member), 163
American Bar Association Journal, 142
Anders v. California (case), 149
Ashman, Allan (author), 84, 90
Babcock, Barbara (Public Defender Service Director), 87
Bacon, Sylvia (D.C. Superior Court judge), 103
Bamberger, Clinton (head of OEO Legal Services and Piper & Marbury partner), 74
Barker v. Wingo (case), 143
Barr, Robert (Congressman), 179
Barry v. Bush (case), 146
Barry, Marion (D.C. Mayor), 146, 154, 158-60, 162, 164, 167-68
Baylin, Bernard (Harvard professor), 51
Bazelon, David (U.S. Court of Appeals judge), 86
Beer, Samuel (Harvard professor), 46, 51
Bellow, Gary (Harvard professor), 80
Bellow, Gary (Legal Aid Agency attorney), 86
Belson, Jim (D.C. Court of Appeals judge, 106, 110, 128
Berg v. Footer (case), 147
Berger, Sandy (Hogan & Hartson partner), 99
Bible Way Church (case), 147
Bingham, Anne, 185
Birenbaum, David (Harvard classmate), 61
Black Panther Party, 91
Black, Hugo (Supreme Court justice), 189
Blum, Wally (University of Chicago professor), 74
Boatwright, Sam (high school friend), 42
Bok, Derek (Harvard Law Dean), 83
Bolling v. Sharpe (case), 175
Born, Brooksley (Commodity Futures Trading Commission chair), 182
Bowman, Addison (Legal Aid Agency attorney), 86
Boyd (case), 144
Brady v. Maryland (case), 146
Brandon (case), 146
Brennan, William (U.S. Supreme Court Justice), 153
A-2
Brimmer, Andrew (District of Columbia financial control board), 168
Brown (case), 146
Brown v. Board of Education (case), 43
Brown, Coleman (Chicago minister), 66, 70
Brown, David (childhood friend), 35
Brudney, Victor (Harvard professor), 187
Bryant, William (U.S. District Court judge), 87, 109
Burgess, Frank (D.C. Superior Court judge), 115, 131
Burton, Dobby (high school swimming coach), 41
Bush, George W. (U.S. President), 179, 193
Buttrick, George (Harvard University Memorial Church pastor), 12, 53
Bynum, David (Harvard roommate), 47, 50
Cambridge Model Cities, 77
Carter, Jimmy (United States President), 103
Casner, Jim (Acting Dean Harvard Law), 83
Catania, David (D.C. Council member), 163
Cavers, David (Harvard professor), 60, 74
Chaffetz, Hammond (Kirkland Ellis head of recruiting), 64
Charn, Jeanne (CLAO program), 80
Chavous, Kevin (D.C. Council member), 163
Chicago Tribune (newspaper), 64
Chicago Volunteer Legal Services (CVLS), 72
Children’s Hospital v. Carl (case), 119
Christensen, George (Chicago attorney), 15
Christie, John (Harvard classmate), 61
Civil Rights Movement, 59-60, 66, 193
CLEPR , See Ford Foundation Council on Legal Education for Professional Responsibility, Inc.
Clifford (case), 151
Clinton, Bill (U.S. President), 179
Community Action Program (CAP), 75
Community Legal Assistance Office (CLAO), 76-79, 83, 153
Consumers United Insurance Company (case), 146
Control Board, 158, 160-62, 164, 167-69, 179
Convention Center Referendum Committee (case), 146
Covington & Burling (law firm), 85, 171
Cratsley, John (CLAO attorney), 77
Crews (case), 153
Criminal Justice Act, 87, 94, 115, 149
Cropp, Linda (D.C. Council chair), 163
CSD (Hogan & Hartson’s Community Services Department), 88, 97, 99, 103
Culver, John (Harvard classmate), 61
Curran, Edward (U.S. District Court judge), 86
D.C. Appleseed Center, 178
D.C. Bar Foundation, 137, 152
A-3
D.C. Bar Referendum (case), 151
D.C. Human Rights Act, 144
D.C. voting rights case, 171
objectives of lawsuit, 172
Damoose, George (Harvard roommate), 46, 49
Danello, Elizabeth (Assistant U.S. Attorney), 115
Davis, Rachael (actor in “We The People”), 185
Dean (case), 144
Determan, Sally (Hogan & Hartson partner and D.C. Bar president), 89, 185
Dieterich, Elise (Corporation Counsel attorney and JMF former law clerk), 165, 171, 177-79
Dole, Robert (U.S. senator), 173
Douglas, John (Covington & Burling attorney), 137
Douglas, William (Supreme Court justice), 189
Drinan, Robert (Boston College Law School dean), 76, 79
Eagleton, Thomas (United States Senator), 94
Edwards (case), 143
Edwards, Harry (U.S. Court of Appeals judge), 182
Eighth Amendment, 143
Elderkin, David (Cedar Rapids, Iowa attorney), 188
Evans, Jack (D.C. Council member), 163
Falwell, Jerry (Baptist pastor, televangelist, and conservative activist), 13
Farrell, Mike (U.S. Attorney’s Office Appellate Division head and D.C. Court of Appeals judge),
110, 115, 129, 131
Federov (case) claim of selective prosecution, 113
Ferren, Andrew John “Andy” (son), 8, 31, 55-56, 180, 182-83, 190
Ferren, Bill (uncle), 4, 7
Ferren, Edith (paternal grandmother), 4
Ferren, Edith Waight(paternal grandmother), 2
Ferren, Elizabeth Anne Hansen (mother), 13, 16. 17
piano, 14
Ferren, Elizabeth Anne (sister), 2, 4, 6-7, 10, 15, 18-19, 53, 55
Ferren, Freda (aunt), 4, 7-8
Ferren, John (father)
Skelly Oil Company, 13, 15
Standard Oil, 15
Stewart Warner Corporation, 15, 24
teaching at Syracuse University, 13
Vendo Company, 15
Zenith Radio Corporation, 15
Ferren, John M. – Personal
biography of Justice Wiley Rutledge, 186
birth Kansas City, Missouri, 1
Boy Scout, 25, 37
Boy Scouts, 28, 30
A-4
Camp Wabaningo, 30
Chicago, family move to area, 15
collect political autographs and campaign buttons, 23, 28
college debate team, 56
Cub Scouts, 28, 30
softball team, 29
Cushman motor scooter, 39
deacon in the Presbyterian Church, 12
Des Moines Register’s Annual Great Bicycle Ride Across Iowa- RAGBRAI, 8
Evanston, Illinois, 4-5, 9-10, 14, 18, 22-34, 38, 43-44
Evanston Conservatory, 32
Evanston High School, 39, 40, 41, 42, 48
Evanston High School student body president, 40
Evanston Township High School, 37
fifth and sixth grades selling eggs, 42
firsthand evidence of racial segregation, 43
fishing, 6, 8, 16, 19
Frances Willard Elementary School, 24, 26
Hardy Boys (books), 27
Harvard, 12, 21, 44, 45, 46, 52, 55, 56, 59-64, 73-75, 79, 81, 83-84, 181
Harvard Civil Rights-Civil Liberties Law Review, 171
Harvard Clinical Program, 88
Harvard College, 21, 78, 180
Harvard Debate Team, 46-47, 50
Harvard freshmen glee club, 50
Harvard Law Bulletin, 73-74
Harvard Law Review, 99
Harvard Law School, 72-73, 103
mandatory moot court program, 63
Williston Competition, 63
Harvard Legal Aid Bureau, 75
Harvard Phi Beta Kappa, 49
Harvard University Memorial Church, 12
Harvard- Yale-Princeton Triangular Debates, 47
Haven Junior High School, 34-37, 45, 49
annual music memory contest, 36
annual poetry festival, 35
high school swimming team, 40
high school youth group (Tuxis), 11
importance of radio shows, 22
impressions of the law school experience, 57-58
influence his mother,, 15
influence of father, 16
interest in ministry, 12, 55-56
Kansas City, 1, 4, 7, 9-10, 13, 15, 19-21, 24-26, 28, 30, 32-33
life-long interest in music, 32
A-5
strong interes, 184
studied music composition, 184
message of the Christian faith, 13
move from Kansas City to Evanston Illinois, 24
musical, “We The People” about the Constitutional Convention of 1787, 184
Oliver Baty Cunningham Award, 72
piano lessons, 14, 25, 32
polio epidemic, 24, 25
political differences within family, 21, 24
president of seventh grade homeroom, 35
racial segregation, 43
religion’s influence, 12
religious life of parents, 10
religious views, 12
scouting, 30, 31, 32
senior thesis
Colonel Edward House, 49
swimming, 24-25, 30, 34, 40-41
Glenn Davis Club (swimming), 34
YMCA, 14, 24, 30, 33, 34, 41-42
Treasure Island (book), 26-27
war effort, 20
Wiley Rutledge biography, 131
Willard School orchestra, 34
World War II had a big impact on me, 20
WW II victory gardens, 20
Ferren, John M. – Professionnal
ACLU, 91
Advisory Committee on Judicial Conduct for the D.C. Court of Appeals, 137
American Bar Association, 101, 135, 141
Public Interest Practice Committee chair, 101
Consortium on Legal Services and the Public chair, 101, 135
aspects of clinical education, 81
assessment of the influence of oral argument, 112
Bill of Rights, 105, 109, 124
board of CLEPR, 81
Chapman & Cutler, (Chicago law firm), 63
child support system from the Department of Health and Human Services, 166
Church Federation Legal Advice Clinics, 67, 76
Community Services Department (CSD), 88, 90-91, 94, 97-99, 102-03, 192
comparative negligence, 150, 151
conferences after oral argument, 121
Consortium on Legal Services and the Public chair, 135
Control Board relationship, 167
District of Columbia Court of Appeals, 102
Acting Chief Judge, 132
A-6
appointment, 102
preassignment system, 107
District of Columbia Judicial Conference Committee on Civil Legal Services, 136
four-day rule, 96
Harvard, 191
importance on subsequent legal career, 62
starting legal services program, 125
Legal Services Program, 60, 62
Hogan & Hartson, 83, 88, 100-01, 104, 117, 125, 132, 137, 160, 163, 170, 185, 191-92
Community Services Department (CSD), 88, 90
opportunities to launch commitment to pro bono, 90
judicial philosophy, 108, 109
Journal of Supreme Court History (article on the Yamashita case), 190
judge as lawmaker, 118
judicial activism, 156
law clerks, 134
drafting opinions, 135
selecting law clerks, 132
lawyer responsibilities in respect of pro bono representation, 140
lecture at the University of Iowa on Rutledge, 190
legal services experience playing role approaching cases as a judge, 126
Legal Services Program, 74, 78
legal services to the low-income community, 74
limits of the role of a judge in respect of nonjudicial activities, 137
National Welfare Rights Organization (NWRO), 95
Office of Economic Opportunity Legal Services Program, 69, 73
opinion writing process in chambers, 108
private practice experience in terms of influence on decision making, 125
process by which a panel reaches case disposition agreement, 119
providing legal services to the poor, 135
purpose and function of a dissenting opinion, 123
qualities possessed by judges producing majorities in a judicial context, 117
responsibilities of opinion’s authoring judge, 122
role of judges’ values in decision making, 119, 124
successful oral advocacy, 114
Supreme Court Historical Society lecture, 190
volunteer legal services through churches, 66
Welfare Rights Organization, 95
William J. Brennan Award from the D.C. Bar, 154
Ferren, Linda Bloom (wife), 34, 158, 170, 181-82, 184, 190-91
Ferren, Matt (grandson), 180, 190
Ferren, Megan (granddaugther), 180, 190
Ferren, Patty (aunt), 7
Ferren, Peter Maxwell (son), 55
Ferren, William Alvah (paternal grandfather), 2, 8
Fickling, Judge (D. C. Court of Appeals judge), 102
A-7
Fifth Amendment, 105, 143, 156
Equal Protection Clause, 175
Fifth Circuit, 94
Finkelstein, Shari (stepdaughter), 182, 190
Finnkelstein, Daniel (stepson), 182
First Amendment, 42, 93, 119, 123-24, 143-44, 147, 151-52
Fisher, John (Assistant U.S. Attorney), 115, 154
Ford Foundation Council on Legal Education for Professional Responsibility, Inc. (CLEPR), 80
Ford, Mo (Harvard classmate), 58, 61
Fourth Amendment, 88, 105, 124, 143, 156
Frankfurter, Felix (Supreme Court justice), 189
Frendak (case), 144
Gale (case), 149
Gallagher, George (D.C. Court of Appeals judge), 111
Gardner, Buss (uncle), 6
Gardner, Lillian Hansen (aunt), 6
Garland, Merrick ((U. S. Court of Appeals judge), 172
Garrett v. City of Hamtramck (case), 93, 194
Garrity, Arthur (handled the Boston desegregation case), 76
Garrity, Paul (Legal Aid Society in Charlestown, Massachusetts ), 76
Geiger, Gary, 30, 34
childhood friend who died of polio, 24
Georgetown Gay Rights Coalition (case), 144
Gilbert, Gerry (Hogan & Hartson partner), 102
Gilbert, Richard (Criminal Justice Act advocate), 115
Ginsburg, Ruth Bader (D.C. Circuit Court of Appeals judge), 185
Glickman, Steve (D.C. Court of Appeals judge), 110, 129, 131
Goulston & Storrs (law firm)), 180
Graham, Bob (Harvard classmate), 61
Graham, Jim (D.C. Council member), 163
Graves (case), 143
Gray, Frank (Piper & Marbury partner), 84
Greene, Harold (Chief Judge D.C. Superior Court), 94
Griswold, Erwin, 73, 74, 83, 101
Harvard Law School Dean, 73, 137
Griswold, Harriet, 83
H.R.(case) (sometimes called the first Baby Boy C. case), 145
Habib (case), 147
Hale & Dorr (law firm), 80
Hall, Livingston (Harvard professor), 60, 74, 79
Hambrecht, Paul (University of Detroit Law School Dean), 79
Hanafi Muslims, 154
Hansen, Alma Johnson (maternal grandmother), 1
Hansen, Carl Gustav, 1
A-8
“Gus,” 52
Hansen, Les (uncle), 6
Hansen, Winnetka “Neko” (aunt), 6
Harlan, Steve (District of Columbia financial control board), 161, 167
Harrington, Tony (Hogan & Hartson partner), 89
Harris, Stanley (D.C. Court of Appeals judge and U.S. District Court judge), 104, 106
Harvard Civil Rights-Civil Liberties Law Review, 171
Harvey, Greg (Harvard classmate), 47, 61
Hastings, Jack (Harvard recruiter), 44-45
Heinlen, Ron (law school friend), 58
Heinrichs, Waldo (senior thesis advisor), 51
Henry v. First National Bank of Clarksdale (case), 93
Himmelman, Harold (Hogan & Hartson partner), 91, 98
Hogan & Hartson, 88, 90-91, 100, 103, 106, 117, 125, 194
Executive Committee, 89, 96-97
Home Rule, 146, 162
Homma (case), 188
Hood, Andy (D.C. Court of Appeals judge), 110-111
Hornstein v. Barry (case), 155
House, Edward (“Colonel’), 50
Housing Development Corporation, 95
Houston, Bryant, & Gardner (law firm), 109
Ibn-Tamas (case), 142
IOLTA (Interest on Lawyers Trust Account), 152
Jackson, Robert (Supreme Court justice), 189
Jeffords, Jim (Harvard classmate), 61
Jencks Act, 146
Jentes, Bill (Kirkland partner), 65
Johnson, Byron (Harvard classmate), 61
Johnson, Elmer (Kirkland partner), 65, 68
Johntz, Topper (Harvard classmate), 21
Jones, William (federal judge), 92, 109
Journal of Supreme Court History, 190
Kaufman, Andrew (Harvard professor), 78, 133
Keith, Lang (Hogan & Hartson partner), 91, 99
Kelley Drye & Warren (law firm), 19
Kelly, Catherine (D.C. Court of Appeals judge), 106, 110, 129
Kern, John (D.C. Court of Appeals judge), 111
Kerr (case), 149
Khaalis (case), 154
Kincaid, Jim (Harvard classmate), 47
King, Warren “Willie” (D.C. Court of Appeals judge), 110, 129-30
Kinlaw, Eugene District of Columbia financial control board, 168
A-9
Kirkland & Ellis, 53, 61, 64-65, 67, 89, 125, 191
Klein, Jim (head of the Public Defender’s Appellate Section), 115, 131
Kohlman, Gary (Public Defender Service attorney), 115
Kolar-Kotelly, Colleen (U.S. District Court judge), 172
Kopff (case), 146
Kurland, Phil (University of Chicago professor), 74
Ladner, Joyce District of Columbia financial control board, 168
Lanckton, Van (CLAO attorney), 77
Larson, Phil (Hogan & Hartson partner), 93, 99, 194
Lawyers’ Committee for Civil Rights Under Law, 69, 82, 97-98, 140
Lewis (case), 146
Lieberman, Joseph (U.S. Senator)), 178
Lindenmeyer, Carl (childhood friend), 37, 39
Local 2677, AFGE v. Phillips (case), 92
Loevinger, Lee (Hogan & Hartson partner), 95
Loss, Louis (Harvard professor), 77
Lynagh, John (brother-in-law), 18-19
M.M.D. (case), 145
Mack, Julia Cooper (D.C. Court of Appeals judge), 105-06, 109, 128
Marbury, William (Piper & Marbury partner), 84
Marshall, Thurgood (U.S. Supreme Court Justice), 51, 153
May, Ernest (Harvard professor), 51, 56
McBride (case), 149
McCullough, David (historian), 188
McDermott, Ed (Hogan & Hartson partner), 89
Medalie, Richard (D.C. attorney), 103
Meltzer, Bernard (University of Chicago professor), 74
Michael Jones (case), 153
Michael, Lloyd (high school superintendent), 44
Michelman, Frank (Harvard professor), 74
Mikva, Abner (U.S. Court of Appeals judge), 182
Miller, Bill (Standard Oil of Indiana and Amoco, 9
Miller, Chuck (Covington & Burling attorney), 172
Miller, David (Harvard roommate), 45
Miller, Ken (law clerk for JF), 103
Milone, Pat (JMF secretary), 134
Mintz, Seymour (Hogan & Hartson partner), 88-89, 91, 100
Minzner, Pam (New Mexico Supreme Court), 83
Miranda (case), 109, 151, 156, 197
Morrison, Alan (head of the Public Citizen Litigation Group), 140
Morrison, John (Harvard classmate), 61, 68
Moultrie, Carl (D.C. Superior Court judge), 181
Mueller, Bob (Harvard roommate), 45, 49
Murphy, Frank (Supreme Court justice), 176, 186, 189
A-10
Murray, John (elementary school friend), 28
NAACP, 93
Nassar, Ed (graduate student at Catholic University), 184
Nathaniel Jones (case), 151
National Legal Aid Defender Association, 84
Neal, Phil (University of Chicago dean), 74
Nebeker, Frank (D.C. Court of Appeals judge), 105, 110, 129
New York Times, 148, 195
Newman, Connie (District of Columbia financial control board), 161, 168
Newman, John (D. C. Court of Appeals judge, 137
Newman, Paul (VISTA volunteer ), 77
Newman, Theodore “Ted” (D. C. Court of Appeals judge), 104-05, 109, 128
Nixon, Richard (U.S. President), 92, 173
Norian, Lloyd (music teacher), 33
Norton, Eleanor Holmes (Congresswoman), 178
Oberdorfer, Louis (U.S. District Court Judge), 172, 177-78
O’Donoghue (case), 175-176
OEO (Office of Economic Opportunity), 73-75, 79, 83, 85, 92, 109
Legal Services Program), 81, 84
Pair, Hubert (D.C. Court of Appeals judge), 111
Parcells, Bob (Parsons College), 9
Parents United for the District of Columbia Schools (case), 166
Parsons College, 2, 4, 6, 8
Patterson, Kathy (D. C. Council member), 159, 163
Pearce, Melvin (Presbyterian church minister), 9
Pearl Harbor, 19-21
Peoples Drug Store v. District of Columbia (case), 146
Peterson, David, 23, 28, 37
Peterson, Virgil (Parsons College), 9
Philipson, Bi (Harvard roommate), 46, 51
Philipson, J. Bion (Harvard roommate), 45
Phillips v. The Evening Star (case), 148
Phillips, Channing (Housing Development Corporation President), 95
Phillips, Howard (OEO head), 92
Pincus, William (CLEPR president), 81
Piper & Marbury (law firm), 74, 84, 85, 90
Polinsky, Mitch (CLAO volunteer), 78
polio, 24, 30 See also Geiger, Gary
Pollack, Louis (U.S. District Court judge), 187
Pollak, Steve (Washington Lawyers’ Committee for Civil Rights Under Law chair), 95
Posner, Richard (Harvard classmate), 61
Powell, Lewis (U.S. Supreme Court Justice), 154
Powers, Bill (childhood friend), 39
A-11
Pratt, John (U.S. District Court judge), 86
pretrial detention, 143, 156
Prettyman, Barrett (Hogan & Hartson partner and D.C. Inspector General), 77, 89, 168
pro bono legal services, 151
Pryor, Bill (D.C. Court of Appeals judge), 110, 129
Public Defender Service (PDS), 87
R.M.G. (case), 145
RAGBRAI- the Des Moines Register’s Annual Great Bicycle Ride Across Iowa, 8, 183
Raskin, Jamie (American University Law School professor), 171
Rasmussen, Walter (high school teacher), 42
Rehnquist, William (U.S. Supreme Court Chief Justice), 99, 156
Reid, Inez C. (D.C. Court of Appeals judge), 110, 129-30
Reilly, Gerard (D.C. Court of Appeals judge), 111
Reiser, David (Public Defender Service attorney), 115
Rental Housing Act, 146
Reynolds v. Sims (case), 175
Rezneck, Dan (District of Columbia Financial Control Board), 161, 168
Rhyne, William (Criminal Justice Act advocate), 115
Rich, Jerry (pianist and director), 185
Rivers, Gale (JMF secretary), 134
Robb, Roger (U.S. Court of Appeals judge), 86
Roberts, Owen (Supreme Court justice), 189
Roberts, Richard (U.S. District Court judge), 180
Robins, Janet (Corporation Counsel Legal Counsel Division), 165
Robinson, Jo Anne (Principal Deputy Corporation Counsel), 164
Rochon, Mark (Public Defender Service attorney), 115
Rogers, Judith (D.C. Court of Appeals judge and U.S. Court of Appeals judge), 110, 129, 157
Rogers, Michael (D.C. City Administrator), 158-59, 163
Rogovin, Charles (assistant attorney general in Massachusetts), 85
Roosevelt, Franklin (United States President), 20
Rosser (case), 146
Rosser letter, 146
Rousselot, Peter (Hogan & Hartson partner), 89
Roycroft, Howard (Hogan & Hartson partner), 89
Ruff, Chuck (former D.C. Corporation Counsel), 158, 161, 163-64
Ruiz, Vanessa (D.C. Court of Appeals judge), 110, 129-30
Rutledge, Wiley (Supreme Court justice), 176, 186-90
Sachs, Sidney, 86, 102
Sachs, Sidney (Washington Legal Aid Agency), 85, 86, 102
Sacks, Al (Harvard Law School Dean), 83
Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge
by John M. Ferren, 186
Sander, Frank (Harvard professor), 60, 73-74, 78
Sandidge (case), 147
A-12
Scalia, Antonin (U.S. Supreme Court Justice), 156
Schneider, Pauline (D.C. attorney), 158
Schwartz, Carol (D.C. Council member), 163
Schwelb, Frank (D.C. Court of Appeals judge), 110, 129-30
Schwer, Eddie (fellow student at the Willard School), 34
Second Amendment, 147
Seymour, Charles (president emeritus of Yale), 50
Shepard, Chuck (Kirkland attorney), 68
Sherman, Molly (actor in “We The People”), 185
Shurman, Ellen (wife of Daniel Finkelstein), 182
Sidley & Austin (law firm), 98
Simon, Ann (Assistant U.S. Attorney), 115
Sixth Amendment, 176
Sixth Circuit Court of Appeals, 195
Smith, Peter (Piper & Marbury associate), 84-85
Smith, Reese (ABA president), 136
Smith, Walter, (Hogan & Hartson partner), 93, 115, 132, 163, 165, 170, 178-79, 185
Snyder, Allen (Hogan & Hartson partner), 92-93, 99, 194
Soulsby, Larry (D.C. Police Chief), 168
Speidel, Ann Elizabeth (former wife), 53, 180
Speidel, Joe (brother-in-law), 53, 55
Steadman, John (D.C. Court of Appeals judge), 110, 129
Steiker, Carol (Public Defender Service attorney), 113-15
Harvard Law Review, 114
Stein, Jake (notable D.C. attorney), 168
Steptoe & Johnson (law firm), 166
Stevens, John Paul (Supreme Court justice), 154, 177, 187, 190
Stone, Allan (Harvard professor), 78
Sullivan, Emmet (U.S. District Court judge), 110, 129
Tabron (case), 146
Tatel, David (Hogan & Hartson partner at the time), 21, 28-29, 37, 47, 50, 60-61, 86, 93, 97-98,
102
Taylor, Carl (Hogan & Hartson partner), 89
Taylor, Charles (Harvard professor), 51
Teare, Bob (childhood friend), 34
Temple, Ralph (local executive director of the American Civil Liberties Union), 91-92
Terry, John (D.C. Court of Appeals judge), 110, 129
Theiss, Bill (friend from Kirkland), 66, 68
Thomas, Harry (D.C. Council member), 163
Thorpe, Merle (Hogan & Hartson partner), 89
Thurmond, Strom (U.S. Senator), 23, 173
Tidewater Transfer (case), 176
Times v. Sullivan (case), 148
Tomkovicz, Jim (JMF law clerk), 103, 132
Trosman, Elizabeth (Assistant U.S. Attorney), 115
A-13
U.S. Court of Appeals for the D.C. Circuit, 157, 172
U.S. District Court for the District of Columbia, 172
U. S. Supreme Court, 61, 83, 93-94, 114, 143, 146, 148-49, 153-54, 156, 172, 174-77, 182, 186-
87, 189, 193, 196
unified bar, 136, 151
University of Detroit Law School, 79, 92
Vickery, Ray (Hogan & Hartson partner), 95
Vietnam War, 46, 193
Vining, Joseph (Covington & Burling associate), 85, 87
Von Kann, Curtis (D.C. Superior Court judge), 185
Wagner, Annice (D. C. Court of Appeals judge), 158
Wald, Patricia (U.S. Court of Appeals judge), 182
War on Poverty, 69, 73
Washington Home Ownership Council (case), 146
Washington Lawyer (D.C. Bar Magazine ), 142
Washington Lawyers’ Committee for Civil Rights, 95
Washington Post, 158
Washington, Eric (D.C. Court of Appeals judge), 110, 129, 1331
Wasserstrom, Silas (Public Defender Service attorney), 153
Webster, William (former head of the FBI), 168
Weincek, Betty (choreographer), 185
Weinraub, Lloyd (Harvard classmate), 61
Wesbury v. Saunders (case), 175
West Central Missouri Rural Development Corp. v . Phillips (case), 92
West, David (Harvard classmate), 21
Wham, Douglas (Criminal Justice Act advocate), 115
Wigdor, David (assistant director of the Manuscript Division of the Library of Congress), 187
Wiley, George National Welfare Rights Organization founder, 95
Wilkins, Sue (daughter-in-law), 180
Williams v. Baker (case), 148
Williams, Anthony (Chief Financial Officer of the District and D.C. Mayor), 167, 178
Wilmer, Cutler, and Pickering (law form), 94
Wilson, Bert (voice of the Chicago Cubs), 29-30
Wilson, James Q. (Harvard professor), 78
Wirtz, Willard (former Secretary of Labor), 187
WMATA v. Jones (case), 150
Yamashita (case), 188
Yarmolinsky, Adam (Harvard professor), 78
Yellin, Cole (step-granddaughter), 182, 190
Yellin, Lara (step-granddaughter), 182, 190
Yellin, Tom (husband of Shari Finkelstein), 182, 190
Young, Arthur (the head of the Chicago Legal Aid Bureau), 72

B-1
ORAL HISTORY OF THE HONORABLE JOHN FERREN
Cases
Anders v. California, 386 U.S. 264 (1967), 102, 137
Barker v. Wingo, 407 U.S. 514, 530 (1972), 144
Barry v. Bush, 581 A.2d 308 (1990), 147
Berg v. Footer, 673 A.2d 1244 (1996), 148
Bible Way Church v. Beards, 680 A.2d 419 (1996), 148
Bolling v. Sharpe, 347 U.S. 497 (1954), 176
Brady v. Maryland, 373 U.S. 83 (1963), 147
Brandon v. Hines, 439 A.2d 496 (1981), 147
Brown v. United States, 675 A.2d 953 (1996), 147
Brown v. Board of Education, 47 U.S. 483 (1954), 44
Castanon v. United States, Civil Action No. 2018-2545 (D.D.C. 2020), 172-173
Carl v. Children’s Hospital, 702 A.2d 159 (1997), 119
Clifford v. United States, 532 A.2d 628 (1987), 151
Consumers United Ins. Co. v. Smith, 644 A.2d 1328 (1994), 146
Convention Center Referendum Committee v. District of Columbia Board of Elections & Ethics,
441 A.2d 871 (D.C. 1980), 147
Crews v. United States, 389 A.2d 277 (1978), 154
D.C. Bar Referendum (On Petition to Amend Rule 1 of the Rules Governing the Bar), 431 A.2d
521 (D.C. 1981), 152
Dean v. District of Columbia, 653 A.2d 307 (1995), 144
District of Columbia v. Washington Home Ownership Council, 415 A.2d 1349 (1980), 146
Edwards v. Habib, 130 U.S. App. D.C. 126, 397 F.2d 687 (1968), 147
Federov v. United States, 600 A.2d 370 (1991), 133
Gale v. United States, 429 A.2d 177 (1981), 149
Garrett v. City of Hamtramck, 394 F. Supp. 1151 (E.D. Mich. 1975), after remand from id., 503
F.2d 1236 (6th Cir. 1974), reversing in part id , 357 F.Supp. 925 ( E.D. Mich.1973), 93,
194
Georgetown Gay Rights Coalition v. Georgetown University, 536 A.2d 1 (1987), 144
Graves v. United States, 515 A.2d 1136 (1986), 143
Henry v. First National Bank of Clarksdale, 424 F. Supp. 633 (N.D. Miss. 1976), 93
B-2
Home Ownership Council See District of Columbia v. Washington Home Ownership Council
Hornstein v. Barry, 560 A.2d 530 (1989), 155
H.R. (In Re Baby Boy C.), 630 A.2d 670 (1993), 145
Ibn-Tamas v. United States, 407 A.2d 626 (1979), 142
In Re Boyd, 403 A.2d 744 (1979), 144
In Re Kerr, 675 A.2d 59 (1996), 149
In Re McBride, 602 A.2d 626 (1992),149
In Re M.M.D., 662 A.2d 837 (1995), 145
Khaalis v. United States, 408 A.2d 313 (1979), 154
Kopff v. District of Columbia Alcoholic Beverage Control Board, 381 A.2d 1372 (1977), 146
Lewis v. United States, 393 A.2d 109 (1978), 146
Local 2677, AFGE v. Phillips, 358 F. Supp. 60 (D.D.C. 1973), 92
Michael A. Jones v. United States, 396 A.2d 183 (1978) (affirming conviction); 411 A.2d 624
(1980) (reversing conviction on rehearing); 432 A.2d 364 (1983) (en banc) (reversing
judgment on rehearing); 463 U.S. 354 (1983) (affirming reversal en banc), 153
Miranda v. Arizona, 384 U.S. 436 (1966), 109, 151, 156, 197
Nathaniel Jones v. United States, 548 A.2d 35 (1988), 151
National Mutual Insurance v. Tidewater Transfer, 337 U.S. 582 (1949), 176
O’Donoghue v. United States, 289 U.S. 516 (1933), 175-76
OEO See Local 2677, AFGE v. Phillips
Parents United for DC Public Schools v. D.C., 699 A.2d 1121 (D.C. 1997), 166
Peoples Drug Store v. District of Columbia, 470 A.2d 751 (1983), 146
Phillips v. The Evening Star, 424 A.2d 78 (1980), 148
Reynolds v. Sims, 377 U.S. 533 (1964), 175
R.M.G. (Petition of RMG), 454 A.2d 776 (1982), 145
Rosser v. United States, 381 A.2d 598 (1977), 146
Sandidge v. United States, 520 A.2d 1057 (1987), 147
Tabron v. United States, 444 A.2d 942 (D.C. 1982), 146
Tidewater Transfer See National Mutual Insurance v. Tidewater Transfer
Times v. Sullivan, 376 U.S. 254 (1964), 148
United States v. Edwards, 430 A.2d 1321 (1981), 143
B-3
West Central Missouri Rural Development Corp. v. Phillips, 368 F. Supp. 567 (D.D.C. 1973), 92
Wesbury v. Saunders, 376 U.S. 1 (1964), 175
Williams v. Baker, 572 A.2d 1062 (1990), 148
WMATA v. Jones, 443 A.2d 45 (1982), 150
Statutes
Criminal Justice Act, (CJA), 18 U.S.C. § 3006A, 87, 94, 115, 149, 197
District of Columbia Human Rights Act, DC law 2-38; DC official code §2-1402.11(2006), as
amended), 144
Home Rule Act, Pub.L. 93–198 87, Stat. 774, 146
Jencks Act, 18 U.S.C. § 3500, 146
Rental Housing Act, D.C. Law 6-10; D.C. Official Code § 42-3501.01 et seq, 146

THE HONORABLE JOHN M. FERREN
SENIOR JUDGE
DISTRICT OF COLUMBIA COURT OF APPEALS
John M. Ferren is a Senior Judge on the District of Columbia Court of Appeals, where he
served as an active judge for twenty years, appointed by President Jimmy Carter.
Judge Ferren is a graduate of Harvard College and Harvard Law School. He practiced
law in Chicago with Kirkland & Ellis, and then taught at Harvard Law School, where in 1966 he
established and directed a federally funded neighborhood law office program to serve the low
income community and provide clinical training for students. In 1970, he was invited to join
Hogan & Hartson in Washington, D.C. as a partner charged with creating and directing a
Community Services Department, which functions today as one of the nation’s largest law firm
pro bono programs. After his years of active service on the court, Judge Ferren retired to become
Corporation Counsel for the District of Columbia, from 1997 to 1999, and then returned to the
court in senior status.
Judge Ferren has published numerous articles in the fields of clinical legal education and
professional responsibility and, more recently, has written a biography, Salt of the Earth,
Conscience of the Court: The Story of Justice Wiley Rutledge, published by the University of
North Carolina Press in 2004. It received the annual book prize awarded by the Langum Project
for Historical Literature for the best book of legal history or biography that is “accessible to the
educated general public,” and it shared the H, George Pendleton Prize awarded by the Society
for History in the Federal Government.
Other honors include the Hughes-Gossett Prize for 2004, awarded by the Supreme Court
Historical Society for the best article of the year in the Journal of Supreme Court History, and in
1999 the William J. Brennan, Jr. Award by the District of Columbia Bar for “outstanding efforts
and dedicated service in the public interest.” In 2000-2001, Judge Ferren was a Fellow at the
Woodrow Wilson International Center for Scholars, and in 2007 he was awarded an honorary
doctor of laws degree from Maryville College in Tennessee.
Judge Ferren has chaired the court’s Advisory Committee on Judicial Conduct, as well as
various committees of the American Bar Association and the Judicial Conference of the District
of Columbia concerned with making legal services more available to low-income clients. In
1964, through the Church Federation of Greater Chicago, he started a program of volunteer
lawyers to aid indigent clients, which continues today as Chicago Volunteer Legal Services, Inc.
And, before joining the court, he served on many boards, including the Washington Lawyers’
Committee for Civil Rights Under Law, the National Prison Project of the ACLU Foundation,
the Migrant Legal Action Program, the National Committee Against Discrimination in Housing,
the Center for Law and Education, the National Resource Center for Consumers of Legal
Services, and the Council for Legal Education for Professional Responsibility, Inc. He also is a
member of the American Law Institute and a Fellow of the American Bar Foundation.
With his son Peter, Judge Ferren wrote We The People, a musical celebration of the
Constitutional Convention of 1787, which had several performances in 1991 in Washington,
D.C. and Williamsburg, Virginia. Judge Ferren is married to Linda J. Ferren, formerly Circuit
Executive for the U.S. Courts of the District of Columbia Circuit. They each have two children
and share six grandchildren

D-1
R E S U M É
June, 2017
Name: Robert H. Kapp
Business Address: Columbia Square
555 Thirteenth Street NW
Washington, DC 20004
202/637-8611
Born: March 9, 1934
Chicago, Illinois
Education: Legal
School: University of Michigan Law School. S.J.D.,
with distinction, 1958
Organizations: Associate Editor, Michigan Law Review
Undergraduate
School: Wharton School of Finance & Commerce,
University of Pennsylvania. B.S., Economics,
1955
Legal Experience: Trial Attorney, Tax Division, United States Department of Justice
(Attorney General’s Honor Program), September, 1958 – March, 1961.
Partner, Hogan & Hartson, Washington, DC (joined firm March, 1961;
admitted to partnership December, 1965; presently Counsel; has served
on Executive Committee of firm).
Practice Area: Principally federal taxation with some emphasis on tax litigation matters.
Practice in later years involved heavy concentration on representation of
universities, medical centers, research institutes, charitable
organizations and other non-profit organizations in tax and other
matters. Recent experience in international commercial arbitration;
mediation.
Managed Firm’s representation in government’s valuation case as
Special Counsel in Rail Reorganization Act Cases.
Teaching Associate Professorial Lecturer in Law (Taxation), The National
D-2
Experience: Law Center, George Washington University, 1970-1975
Other Activities: Co-Founder and Co-President, International Senior Lawyers’ Project (an
international pro bono legal service) (2000-2016)
Senior Advisor, Ethical Globalization Initiative (2003-2009)
National Co-Chair, Lawyers’ Committee for Civil Rights Under Law
(1983-1985); Board of Trustees (1976-present); Member, Southern
Africa Project Subcommittee (1978-1994)
Co-Chair, Washington Lawyers’ Committee for Civil Rights and Urban
Affairs (1979-1981); Board of Trustees (1973-1995)
Chair, American Civil Liberties Union of the National Capital Area
(1990-1992); Board of Trustees (1982-1994); National Board (1993-
1995)
Chair, International Human Rights Law Group renamed Global Rights
(1986-1989); Board of Trustees (1979-2010)
International Election Observer Missions: Namibia (1989); South Africa
(1994)
Board of Directors, Emergency Fund For South African Families (1987-
1990)
Board of Directors, Higher Achievement Program (an inner-city tutoring
program) (1990-1994)
Advisory Board, International Legal Studies Program,
Washington College of Law, American University (1994-2002)
Visitor’s Committee, University of Michigan Law School
Mediator, United States District Court and United States Court of
Appeals (D.C. Circuit) Mediation Programs
Legal Officer, International Commission of Jurists, Geneva, Switzerland
(while on sabbatical leave, Feb. 1-July 31, 1978)
Consultant, National Legal Aid and Defender Association, regarding
study of private law firm poverty-area neighborhood law office
(Piper & Marbury of Baltimore, Maryland) pursuant to Ford Foundation
grant. The results of the study are published in Ashman, The New
Private Practice (NLADA, 1973).
D-3
Member, Area I Planning Committee, Montgomery County Public
Schools (1975-1976)
District of Columbia Bar: Gender Bias Study Committee;
Family Law Task Force
Local Advisory Board, College Track, which mentors marginalized
high school students to gain admission to college (2019 to present).
Alan Barth Service Award (ACLU, 1996)
Wiley J. Branton Award (Washington Lawyers’ Committee, 1992)
C. Anthony Friedrich Memorial Award (Law Group, 1999)
The American Lawyer 2012 Lifetime Achievement Award
Admitted to Illinois, 1958
practice: District of Columbia, 1961

E-1
ORAL HISTORY OF THE HONORABLE JOHN FERREN
Law Clerks While Active Judge, D.C. Court of Appeals, 1977-97
1977-78 1986-87 1994-95
James J. Tomkovicz John Whitelaw Yasmeen Hassan
Kenneth Miller Carleton Montgomery David Wiseman
1978-79 1987-88 1995-96
Janet Robins Hsiao-chiung Li Nancy Lopez
Jane Vanneman Elise Dieterich Daniel Cooper
1979-80 1988-89 1996-97
Patricia Brannan Meredith Trim Harold Feld
Lorraine Cioffi Tracy Sivitz Aaron Hoag
1980-81 1989-90
Elizabeth B. Meers Marie B. Curry
Jonathan Wiener Gregg Maisel
1981-82 1990-91
Vicki Judson Mary Jane Wilson-Bilik
Marilee Unruh Carlos Henry
1982-83 1991-92
Anne Goldstein Kathleen Havener
Sheila McDonald Christopher Gilkerson
1983-84 1992-93
Dierdre Golash Chip Phinney
Stephen J. Routh Marta Wagner
1984-85 1993-94
Aline Henderson Beth Roberts
Carol Hee Barnett Vytas Vergeer
Peter Weitzner
1985-86
Beth L. Rubin
Margaret Marr