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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
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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
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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
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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.
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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?
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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—
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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?
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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
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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.
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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.
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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.
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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
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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
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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.
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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.
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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
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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
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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.
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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
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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
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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
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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
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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?
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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
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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.