Oral History Project
The Historical Society of the
District of Columbia Circuit
United States Courts
District of Columbia Circuit
The Honorable Lloyd N. Cutler
Interview conducted by:
Professor Susan Low Bloch
May 20,1992
Preface ………………………………………………………. i
Oral History Agreements
Honorable Lloyd N. Cutler ……………………………………. ii
Professor Susan Low Bloch ………………………………….. iv
Biographical Sketches
Honorable Lloyd N. Cutler …………………………………… vi
Professor Susan Low Bloch ………………………………….. vi1 ..
Oral History Transcript of Interview on May 20,1992 ……………………… 1
Index ……………………………………………………… A1
The following pages record an interview conducted on the date indicated. The interview
was electronically recorded, and the transcription was subsequently reviewed and edited
by the interviewee.
The contents hereof and all literary rights pertaining hereto are governed by, and are
subject to, the Oral History Agreements included herewith.
0 1996 Historical Society of the District of Columbia Circuit.
All rights reserved.
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges who sat on the U.S. Courts of the
District of Columbia Circuit, and judges’ spouses, lawyers and court staff who played
important roles in the history of the Circuit. The Project began in 1991. Most interviews
were conducted by volunteers who are members of the Bar of the District of Columbia.
Copies of the transcripts of these interviews, a copy of the transcript on 3.5″ diskette (in
Wordperfect format), and additional documents as available – some of which may have
been prepared in conjunction with the oral history – are housed in the Judges’ Library in
the United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C.
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Such original audio tapes of the interviews as exist as well as the original 3.5″ diskettes of
the transcripts are in the custody of the Circuit Executive of the U. S. Courts for the
District of Columbia Circuit.
Historical Societv of the District of Columbia Circuit
r eemen t
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., its employees and agents
do hereby grant and convey to the Society, its successors and
assigns, the ownership of the tape recordings and transcripts of
interviews of me as described in Schedule A hereto, except as
otherwise provided herein. I also grant and convey to the
Society all right, title, and interest I might have in such
tapes, transcripts and their content, including literary rights
and copyrights. All copies of the tapes and transcripts are
subject to the same restrictions.
impaired my rights and interest in the tapes, transcripts and
their content referred to above, except as may appear in prior
works of mine.
(hereinafter ” the Society ” ) I, 1LOW CLI c-d-pm
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) ss
Historical Society of the
District of Columbia Circuit
Subscribed and sworn to before me this & day of -_
Schedule A
Tape recording(s) and transcript resultin? from
interviews conducted by 9ILDw- koa bW 8LGh
on the following dates: flay %i 1492
DRAFT: December 15, 1993
ustorical S ocietv of the District of C olumbi a Circuif;
Interviewer oral Hi storv Aqreement
1 Having agreed to conduct an oral history interview with Lqd #&ftl?b
Society and its successors and assigns, all of my right, title,
and interest in the tape recordings and transcripts of
interviews, as described in Schedule A hereto, including literary
rights and copyrights.
01: 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.
information contained therein until it is concluded and edited,
and that I will then use such information only if and to the
extent permitted by the Society.
for the Historical Society of.the
District of Columbia Circuit, Washington, D.C., I, SUA a7
1. ALOCd/ , do hereby grant and convey to the
2. I authorize the Society, to duplicate, edit, publish,
3. I agree that I will make no use of the interview or the
Interviewer Date
My commission expires /.”97
ACCEPTED this 23 nc day of ML)h.k , 19Z.xy Daniel M.
Gribbon, President of the Historical Society of the District of
Columbia Circuit.
Daniel M. Gribbon
DRAFT: December 15, 1993
Tape recording(s) and transcript resulting from one
( interviewee)
interviews of Lloyd Cutler
on the following dates:l’
nay 20, 1992 – one tape, 27-page transcript
JJ Identify specifically for each interview, the date thereof
and (1) the number of tapes being conveyed, and (2) the number of
pages of the transcript of that interview.
May 2, 1995
Lloyd N. Cutler was born in New York City. He has been a partner in the
Washington, D.C., law firm of Wilmer, Cutler & Pickering and a predecessor firm
from 1946 to 1979 and from 1980 to 1990. In 1991 he became Counsel to the
firm and is now Senior Counsel. In 1979-80, he served as Counsel to the
President of the United States. From March through September 1994 he served as
Special Counsel to the President of the United States. He has also served as
Special Counsel to the President on Ratification of SALT I1 Treaty, 1979-1 980;
President’s Special Representative for Maritime Resource and Boundary
Negotiations with Canada, 1977- 1979; Senior Consultant, President’s
Commission on Strategic Forces (Scowcroft Commission), 1983-1984; as a
member of the Quadrennial Commission on Legislative, Executive and Judicial
Salaries, 1985, and as Chairman, 1989; Member, President’s Commission on
Federal Ethics Law Reform, 1989.
He is a graduate of Yale College (B.A., 1936) and Yale Law School (LL.B., 1939)
and was awarded a Yale honorary degree as Doctor of Laws in 1983. He was also
awarded an honorary degree as Doctor of Laws from Princeton University in
1994. He was a founder and Co-Chairman of the Lawyers Committee on Civil
Rights Under Law. He has served as Chairman of the Board of the Salzburg
Seminar, Co-Chairman of the Committee on the Constitutional System, a member
of the Council of the American Law Institute, a trustee emeritus of The Brookings
Institution and a member of its Executive Committee, and an Honorary Bencher
of the Middle Temple. He has also served as a director of a number of national
business corporations.
-vi –
(0) Georgetown Univ. Law Center (H) 4335 Cathedral Avenue, N.W.
600 New Jersey Avenue, N.W. Washington,.DC. 20016
Washington, D.C. 20001 (202) 363-7979
(202) 662-9063
Law School: J.D. – University of Michigan, 1975
Summa Cum Laude;
First in class (GPA = 4.26; 4.0=A)
Honors: Michigan Law Review, Note & Comment; Editor 1974-75;
Associate Editor, 1973-74; Order of the Coif – March
1975; Daniel H. Grady Prize Award – 1975 (Highest
standing through the full course of studies in the law
school); Henry M. Bates Memorial Scholarship – 1975
( IIOutstanding Seniors in Law Schoolm1) ; Class of 1908
Memorial Scholarship – 1975 (Highest scholastic average
at beginning of senior year); Maurice Weigle
Scholarship Award – 1973 (Outstanding achievement in
freshman year); American Law Book Company Book Award
€or 81Most significant contribution toward overall legal
scholarshipga – first year, 1973; second year, 1974;
third year, 1975; West Publishing Company Award for
Highest Scholarship Average in the Class – first year,
1973; second year, 1974; third year, 1975.
Graduate School: University of Michigan
Ph.C. – Computer and Communication Sciences – August 1972;
Master’s Degree – Computer and Communication Sciences – May
Master’s Degree – Mathematics – December 1970.
Honors: National Science Foundation Fellow, 1970-72;
Teaching Fellowships, 1969-72.
Undergraduate: Smith College
B.A. Major: Mathematics; Minor: Economics
Honors: Graduated “With Distinction’# (Top 10 students);
Phi Beta Kappa (Junior Year); Sigma Xi; House President
Law: Professor, Georgetown University Law Center 1982 – present
Wilmer, Cutler & Pickering; 1978 – 82
Judicial Clerkship – U.S. Court of Appeals, D.C. Circuit –
Judge Spottswood W. Robinson, I11 – 197%-76
Judicial Clerkship – U.S. Supreme Court
Mr. Justice Thurgood Marshall – 1976-77
Other Fields:
University of Michigan Computing Center, Summer 1970
Bell Telephone Laboratories – Department of Computer
Graphics and Economics – 1968 – 1969
Radio Astronomy Observatory, University of Michigan –
Assistant Research Mathematician – 1966 – 1967
. ‘,.,,
Editorial Advisor to llJusticell–Journal of the Department of
Justice; Board of Institute for Public Representation (since
1985); Worked with the GULC Street Law Clinic on “LawyerTeacher Partnershipv1 for Washington, D.C.; D.C. Bar Ethics
Committee–1990-1993; D.C. Bar Administrative Law Section
Nominating Committee ; D.C. Bar Committee to Celebrate the
Bicentennial of the Constitution (1986-1991); Organized and
participated in series of symposia on the Constitution–
Winner of “Best Bar Project for 198711; United States Court
of Appeals for the District of Columbia Circuit Judicial
Conference–Arrangements/Program Committee (1994; 1990;
1986); American Civil Liberties Union Nominating Committee
(1985); Committee of.Visitors for the University of Michigan
Law School (1978-present); Smith College Reunion Committee
(1986-1991); Volunteer – Upward Bound (1970-1972).
District of Columbia Bar; United States Court of Appeals for
the District of Columbia Bar; United States Supreme Court
Bar; Women’s Bar Association; Women’s Legal Defense Fund;
American Civil Liberties Union; American Bar Association;
Washington Council of Lawyers.
Participant, Gruter Institute Conferences
1993 “The Rule of Law, Human Nature, and the New
Russia,11 The Brookings Institute, Washington, DC;
1991 “An Interdisciplinary Approach to Environmental
Regulation,” Tauberbischofheim, Germany;
1990 #!Law and Biology,11 Squaw Valley, California;
1989 “Law and Biology: A Sense of Justice,I1 Monterey,
Interviews on Constitutional Law and the Supreme Court
for CNN, NBC, ABC, NPR (including some interviews
in Spanish), and newspapers;
Civiletti–GULC, October 1988;
GULC–March 1988;
It Serve Another 200 Years?,” Organizer and Moderator
June 30, 1987;
Moderator €or ‘!The Role of Attorney General” with B.
Panel participant on “Independent Counsel: Lawful or Not?–
llCelebrating the Bicentennial of the Constitution–Can
Participant in various “Press Briefings on the Supreme
Courtr1 at GULC;
Tribute to Chief Judge Spottswood Robinson, United
States Court of Appeals for the D.C. Circuit,
Judicial Conference, May, 1987;
Marshall’s Misuse of History,I1 New Orleans, LA.,
January 1986;
Panel participant on Role of the Supreme Court–GULC.
Presentation to the Legal History Section of the AALS, “John
Susreme Court Politics: The Institution and Its Procedures, with
co-author Thomas Krattenmaker, West Publishing Co., 1994
Foreword, “DO What You Can With What You HaveIf1 Okla. L. Rev.
Remembering Justice Thurgood Marshallt1l 1 Journal on Fighting
The SuDreme Court Justices, Illustrated Biographies 1789 – 1993,
Poverty 9 (1993)
Supreme Court Historical Society (ed. Clare Cushmen)
(Contributer) 1993
Judge,” 80 Geo. L.J. 2003 (1992)
Supreme Court Historical Society Yearbook
of Political Structure and Culture on the Substance of the
Law,” Proceedings of the Conference on the Interdisciplinary
Approach to Environmental Regulation, held in
Tauberbischofheim, Germany, 1993
United States, 1992
Scheme: In the Beginning There Was Pragmatism,s1 1989 Duke
L.J. 561
“Orphaned Rules in the Administrative State: The Fairness
Doctrine and Other Orphaned Progeny of Interactive
Deregulationt1l 76 Geo. L. J. 59 (1987)
Madison,11 1986 Wisc. L. Rev. 301; reprinted in Supreme Court
Historical Society Yearbook 1987 and in Los Angeles Daily
Journal, Sept. 1988 (coauthored with M. Marcus)
16 Preview 281 (1984)
Non-Profit Corporations,I1 72 Mich. L. Rev. 1265 (1974)
Foreword, I1Thurgood Marshall: Courageous Advocate, Compassionate
“The Privilege of Clerking for Justice Thurgood Marshalllt1 1992
“The Evolution of American Environmental Regulation: The Impact
Contributor to the Oxford Comlsanion to the Sulsreme Court of the
!#The Early Role of the Attorney General in Our Constitutional
“John Marshall’s Selective Use of History in Marburv vs.
“Can Congress Prohibit Public Broadcasters From Editorializing?,11
I1Discriminatory Membership Policies in Federally Chartered
Interview with Lloyd Cutler on May 20, 1992
BLOCH : Lloyd, when and where were you born?
CUTLER: I was born in New York in 1917. I attended Yale
College, and then Yale Law School. I started working
in the Cravath office just before World War 11. I had
clerked one year for Judge Charles Clark on the Second
Circuit. He had been the Dean of the Yale Law School
and I was his first law clerk after he became a judge.
And then right after Pearl Harbor, like so many others,
I wanted a job in Washington as part of the war effort,
and I came down. A number of my friends from law
school were at the Lend Lease Administration and I got
hired at the Lend Lease Administration, in February
1942. I then went, after several months, to North
Africa as the Deputy Chief of the Lend Lease mission
serving under the former president of one of the
General Motors subsidiaries, and it was one of those
typical wartime operations that mushroomed from two to
150 professionals. We were part of what was called the
North African Economic Board. After that, I came back
to Washington to enlist in the army.
BLOCH : When was this, Lloyd?
CUTLER: This was toward the end of 1943. I ended up (it’s not
relevant to anything you’re doing) but anyway I ended
up in the military intelligence group that read the
Japanese and German coded message traffic and wrote
them up into intelligence materials.
BLOCH : Where were you, in this country?
CUTLER: I was in the Pentagon. I served for a while in the
adventure was when the eight Nazi saboteurs landed by
submarine on a beach in Long Island in 1942. The
general counsel of Lend Lease in those days, Oscar Cox,
was also the Assistant Solicitor General in the Justice
Department, which is now the same post that is called
the Office of Legal Counsel, and he got tagged to work
on that case. He found me on a Sunday afternoon and I
spent three months as part of the trial team in the
prosecution of the eight saboteurs before a military
commission up in the FBI part of the Justice
BLOCH : What was the outcome?
CUTLER: Naturally they were all sentenced. It was all very
My only other interesting wartime
interesting because the FBI had seized these fellows
and made it appear to the public as if they had been
detected landing on the beach or coming into New York,
where they were to make contacts with various
Americans. In fact, two of them had decided on the way
over that they were going to defect. They all landed
and disappeared into the American landscape without
being detected, but these two fellows went to the
Mayflower Hotel in Washington, called up the FBI, and
because, by mistake they had called the D.C. FBI rather
than the national FBI, it took four hours before
anybody arrived to collect them.
Then, they revealed the location of the other guys?
They knew the locations of the other guys and the FBI
was able to round them all up.
But only two were defecting? What were the others
They had all been trained at a German sabotage school.
They had been given contacts, mostly German-Americans,
to find over here and they were in the process of
establishing those contacts.
So they ultimately were a threat.
Oh they were saboteurs. They were planned saboteurs.
But had two not defected, we might not have survived?
They were German saboteurs, not our saboteurs. We sent
lots of people like that into Europe, of course, also.
And the most interesting part of all of that is that
that case ended up in the Supreme Court and Francis
Biddle was the head of our team and argued the case
and, in his opening statement to the Supreme Court, he
kept referring to the #!war of lawtt instead of the !!law
of war.” That case did go through the Court of Appeals
but on a very fast track.
And the Supreme Court upheld their convictions?
The Supreme Court upheld their convictions.
-3 –
What made you decide to be a lawyer? What made you go
to law school?
That’s easy. My father was a lawyer and,. after I
wanted to be a trolley car motorman, the next thing I
wanted to be was a lawyer.
And how did you choose Yale?
Well I had always been interested in Yale and in those
days — that is Yale as an undergraduate — in those
days it was very easy to go to law school. All you
needed was your AB degree and your father’s checkbook.
I think even at Yale the admissions ratio couldn’t have
been any higher than 1.1 to 1, or some such thing, and
we were literally recruited. The law school professors
would come over to the college and urge us, anyone
interested in the law, to go to the Yale Law School.
What did you major in in college?
I majored in history and economics.
Was that common then — to do a joint major?
Yes. But now I wish it had been in literature.
Well you can go back.
At the end of the war, four of us who had been in the
Lend Lease Administration legal staff and had also come
from New York law firms decided we would start a law
firm in Washington, instead of returning to New York.
That firm was called Cox, Langford, Stoddard, and
– 4 –
Cutler. Everyone in that firm was a partner. We had no
associates at the beginning.
And what year was this, Lloyd?
This was 1946.
And so you started with just four people?
We started with four. We grew to 18 or 19 by 1962, and
the bulk of us merged with the firm Wilmer and Broun,
which had its own history as the local branch of the
Cravath office before it started as a separate firm
after the war. In ’62 we merged with them, and I think
our total complement in ’62 was 19 or 20 people.
When you formed Wilmer, Cutler and Pickering, how many
did you say you were?
We were 19 or 20 when we began.
Did you have a distinctive philosophy for the firm?
Why did you merge?
I would say we merged really for diversification and
growth. Within Cox, Langford, some of us had had a
disagreement with Oscar Cox, our senior partner, about
growth and recruiting more people, more bright young
people, Supreme Court law clerks and so forth, and
promoting them rapidly. And I think that was my
motivating factor.
You wanted to expand and to recruit more?
That’s right, and John Pickering, who was one of the
partners at Wilmer and Broun, was my close friend going
back to the Cravath days and all during the war, and in
talking to him, I found they were interested in the
same thing. So, after rejecting some other
invitations, one of which was from Paul Weiss to become
their Washington office, we decided to start this firm.
BLOCH : Judge Oberdorfer was with Paul Weiss at that time?
CUTLER: Lou Oberdorfer was with us. He had been a young lawyer
at Paul Weiss but then he had come over to Cox,
Langford, Stoddard and Cutler.
BLOCH : Prior to the merger?
CUTLER: Right, before the merger.
BLOCH : Do you think it was easier to start a law firm in those
days than it would be today?
CUTLER: No, I really don’t. I think there is always room in
Washington for a good young firm. Take a firm like
Jack Miller’s firm, Miller, Cassidy. Because of their
small size, they can sometimes recruit people we would
like to have, young Supreme Court law clerks for
example, because they are a small firm. There are
always significant penalties to growth. There are
rewards from growth. You do become an all-purpose law
firm. You are no longer as heavily dependent on any
single client. You can fortify one another. There’s a
great deal more security for retirement, pensions,
illness, everything else. You become much more
diversified as to your specialties, but you pay a
penalty for growth because the bigger you are, the less
opportunity for colleagueship there is. .You finally
get to this ridiculous point of the law firms with a
thousand lawyers and 300 or 400 partners. That’s an
oxymoron; that’s a contradiction in terms — to be a
partner with three or four hundred other people. We’re
already up to 80 ourselves.
BLOCH : 80 partners, and how many total?
CUTLER: We’re about 210 or 220, something like that.
BLOCH : Have you sort of stabilized, or is it still growing?
CUTLER: No, it’s still growing. It probably grows at a 5 to
10% a year level.
BLOCH : Does it have to? Is that the nature of law firms
CUTLER: Well, I think, no, of course it doesn’t have to. Now
there are law firms that are shrinking, as you know.
But I think in order to provide rapid opportunities €or
your very bright youngsters you need to expand to some
degree. They are not going to be satisfied just
waiting around until some old partner’s place is
available to be filled. It’s not like a bank, where
there are just so many positions. You have to keep
growing in order to fulfill the natural aspirations of
the younger people.
And, as you add more partners, you have to add more
That’s part of the economics of a law fir;m, but our
partner/associate ratios are much lower in that we have
fewer associates per partner than the New York firms.
That’s one reason why the New York firms make more
money. You can call it exploiting the young people or
whatever you want to call it. But it’s true, as a
partner you make more money on your younger people.
The more you have that you can keep busily employed,
the more money you’ll make.
Let me ask you what were some of your favorite cases
that you brought in the D.C. Circuit.
The cases I have enjoyed the most have not been D.C.
Circuit cases. I’ve had several through the D.C.
Circuit that got to the Supreme Court.
That’s a D.C. Circuit case.
I guess you could call that a D.C. Circuit case. I was
involved, along with John Pickering, in the Younustown
case which of course was a great battle.
Whom did you represent?
Well, John was representing Bethlehem Steel. I was
sort of coaching on the sidelines, in the course of
Did either of you argue it?
We were much too young in those days.
You were one of those lowly associates.
We were involved in a number of the auto safety cases
that had different parts of them go through the D.C.
Circuit like the airbag cases. They were partly in the
Sixth Circuit and partly right here. And they went
through the D.C. Circuit. I suppose the most
interesting case I had was the Gramm-Rudman case which
strictly speaking was not a D.C. Circuit case because
it went through a 3-judge court directly to the Supreme
The statute provided €or that?
That’s right. But the 3-judge court included Judge
What happened in the airbag case?
We were also involved in Powell auainst McCormack, the
Adam Clayton Powell case which went through this
circuit also. Well, in the airbag case, we were
counsel for the auto company. Several iterations of
the airbag regulation were thrown out, ones that the
auto companies resisted and finally in the Republican
days there was one which the auto companies supported
and that got thrown out also. The cases went on for 15
or 16 years.
What period?
It’s roughly 1965 or so, all the way through 1987; the
last one I think was only about five years ago.
What was your least favorite case?
My least favorite cases are almost always reviews of an
administrative record, as you know. Ilva had several
appointed cases back in the days when the D. C. Circuit
did criminal appeals.
But you mean those to be your least favorite, or just
additional cases?
No, I think I’ve helped let one or two criminals out of
Has the profession changed significantly in the time
you’ve been practicing?
Well, I think the practice of law has changed very
significantly, but sticking to the courts for a while,
I don’t think the appellate process has changed very
significantly, other than this growing mountain of
cases that you have and the reduction in time for oral
argument which, I think, is too bad.
Do you see changes in the Court of Appeals €or the D.C.
Circuit in the time that you’ve seen it in operation?
Yes, I suppose the Court of Appeals changes that I see
have more to do with quality of judges than anything
What do you mean?
And there is a lack of intimacy in the court. The
court itself is so much bigger and the court now sees
and hears many more lawyers than it ever did before.
Apart from the government lawyers, most other lawyers
make fewer and fewer appearances in the Court of
Supreme Court. Apart from a very few people like Larry
Tribe, it’s quite rare for anyone in private practice
to have argued more than a dozen Supreme Court cases in
their whole career. I think I’m up to 10 or 11 or
something like that. I haven’t had one myself for the
last three years.
The same thing is true of course in the
BLOCH : Do you see a change in the quality of the judges at the
Court of Appeals level?
CUTLER: Well yes. I think there is a change, both in the
quality of the judges and certainly of course in what
you might call the politics of the judges. But
remember this was a court of people of the stature of
Harold Leventhal and Skelly Wright and Barrett
Prettyman. There is a natural tendency of course to
think that the judges who were older than you were,
were greater than the ones who are younger than you
are. That’s inevitable. But even allowing for that, I
think the great days of this court were 10, 15, 20
years ago. There is no Carl McGowan on this court
today. There is no Harold Leventhal on this court and
I’m not disparaging anyone. I think Pat Wald is a
wonderful judge. I think there are other good judges
on the court, but the general quality is quite
different from what it was then. However, in my view
the same thing is true of the Second Circuit; the same
thing is true of the Supreme Court; and as I said it’s
a natural tendency to feel that your contemporaries or
your seniors were better than your juniors.
BLOCH : Do you think that the nature of the appointment process
could be changed, or it is just a question of who is
CUTLER: Well, at least part of it is that being a judge is a
career choice that fewer and fewer top quality lawyers
are willing to make.
BLOCH : Do you think people are turning it down?
CUTLER: A lot of people are not willing to get into the
BLOCH : Because they don’t want to be a judge, or they don’t
want to go through the process, or both?
CUTLER: Well, I think it’s a little bit of both. A lot of it,
in my view, has to do with the relatively low
compensation of judges compared to what lawyers can
earn. Part of it, is the asceticism of being a judge,
the fact that you don’t get many phone calls, not too
many people call you up and invite you to lunch. There
is a lot more glamour to an active Washington law
practice than there is to a career on the Washington
BLOCH : And yet that part — the asceticism – – was always true.
CUTLER: Of course, that hasn’t changed. But I think it was one
thing when being a judge brought you a decent salary.
Now I was chairman of one of the quadrennial
commissions and I was a member of an earlier
quadrennial commission and what judges have to go
through, especially if they become judges in their 40’s
and SO’S, while they are still raising a family and
sending them off to universities, is terrible. It’s
even true that judges from impoverished minority groups
find that they can’t afford to stay on the bench. You
should listen to Leon Higgenbotham up on the Third
Circuit, who was one of our very best witnesses at the
time of the last quadrennial commission. He said he
cannot provide his children with the educational
opportunities that he had, and he grew up as a poor
kid. You don’t want to use up all your tape on this
issue, but I do think fewer top flight lawyers with the
capacity to be top flight judges are interested
anymore. I also think there is a sense that quality
doesn’t count as much as political service or political
reliability as judged by whoever the appointing
President is. The D.C. Circuit, as you know, over the
last years has been used to place people who have no
real connection with the practice of law in the
District at all.
BLOCH : That was not true though with President Carter, was it?
CUTLER: Well it was always true to a degree in the sense, for
example, that Skelly Wright was put on this circuit
although he had no previous background in the
Washington law practice. That’s always been true to a
BLOCH : That was to get him out of the South?
CUTLER: I think it was part of a deal between Senator Eastman
and the administration of those days, and it also had
to do with getting some other judges’ appointments
that; I think he knew about it at the time. But the
tendency has been to pick people who are either in the
administration — in the Justice Department — or to
pick people from other parts of the country and put
them on the Court of Appeals here because there was no
vacancy or no room anyplace else.
You should talk to Nick Katzenbach about
BLOCH : And no Senator here to object.
CUTLER: And of course the control that Senators have over the
District Court appointments outside Washington, and
around the rest of the country, is virtually complete.
As long as they pick somebody who didn’t steal money
and has at least a decent reputation at the bar, he’ll
be taken.
BLOCH : Is it your impression that that has changed over the
years or has that always been true as far as you know?
CUTLER: I think it’s getting worse. Carter fought that much
more. I mean Carter was so determined to increase the
number of blacks and women that he oftensfought what
the Senators wanted to do.
BLOCH : Didn’t he set up a different system?
CUTLER: Well he had a Court of Appeals review commission. He
had a review commission right here which he
unfortunately put in the hands of — what’s the name of
that fellow who later got convicted on a bribery
charge, the one who was involved in bribing the judge
in Florida? He was the chairman of Carter’s commission
to pick judges for the local D.C. courts. (I should
remember his name, Borders, I think, something like
that.) But I do think that there is a difference in
quality and, as you know, there has been a lot of
really serious infighting among the judges of this
BLOCH : At the appellate level.
CUTLER: Their colleagueship could be improved, to say the
BLOCH : Can you think of ways we could improve the judiciary?
You said one, raise the salary.
CUTLER: Well, raising the salary is one. Certainly, opening
the field on merit is another. It’s almost
inconceivable today, for example, that an outstanding
Washington lawyer who had not been of political service
to the administration and who is a middle of the roader
politically, would be picked for this court.
BLOCH : And that’s probably true nationwide, don’t you think,
or more so here?
CUTLER: It’s probably true nationwide. Nationwide there is
more of a chance because a Senator might back a
particular outstanding lawyer and get him through even
though he had not been of great service to the
BLOCH : Is there anything you could change if you could in the
appointment method or the confirmation process?
CUTLER: Well, I was involved in the Carter appointment method.
I’m not sure ours was much better, but I think what it
takes more than anything else is real interest on the
part of the Attorney General and the White House
Counsel in finding first class people, regardless of
and removing, the element of political service.
BLOCH : And the only way you could do that is urge them, right,
there’s no right procedural mechanism?
CUTLER: That’s right. I guess it’s true that when it comes to
Supreme Court appointments, the President has or should
have a minimum standard of quality and pay a great deal
of personal attention to the person he selects. But the
president is hardly involved in the selection of court
of appeals judges; it’s done at a relatively lower
level. And if the Attorney General himself is passive
or if the white House counsel is passive, it tends to
fall along political lines.
BLOCH : Would you want to see a system where the’Senate sort of
floated names, not that the President would be bound by
CUTLER: No, I don’t think I would. I think essentially I would
leave the Supreme Court selection system alone. Let
the Senate raise serious objections when they think
there is someone they think is unqualified. When we
get a run of 12 Republican years and two presidents as
disinterested in legal principle as the last two
presidents, you are going to have some bloopers and we
have, and when you have divided government — a
Republican President and a Democratic Senate — you are
going to have some big fights, but on the whole I think
it has worked out all right. I was for Bork. I think,
in hindsight, Bork would have been better than other
Reagan possibilities. There was more of a chance that
Bork would have done some original things on that
court, I think.
BLOCH : I think that’s right.
CUTLER: Let’s not discuss Judge Thomas. I did argue a case in
front of Judge Thomas in the Court of Appeals and he
was perfectly competent in that case, and we won that
BLOCH : So that’s why he’s competent.
CUTLER: But I do regard that as a very cynical appointment.
BLOCH : who have been your favorite judges, the judges you
respect the most, on the Court of Appeals’?
CUTLER: Can I go to the past?
BLOCH : Sure.
CUTLER: Certainly I would guess McGowan, Leventhal, Skelly
Wright, Prettyman would be the four that I would
respect the most.
important in a judge?
BLOCH : What are the characteristics that you think most
CUTLER: Well, I think any one of them would have made a very
distinguished member of the Supreme Court; maybe that’s
one way to say it.
quality, and a great sense of fairness. I think I
would add Judge Fahy to the list too; he was a
marvelous man. They were totally objective, much more
so say than David Bazelon. They wrote beautifully. We
still go back and cite their opinions and if they wrote
an opinion you don’t say: “as the court held;” you say
“as Judge Leventhal held.” There’s a wonderful story
about Fahy that Acheson has told that ought to get in
this history someplace:
in the Supreme Court, when he was Solicitor General,
the way Hugh Cox did and to some extent Larry Tribe
does today. There was a case, according to Acheson, in
which Fahy was asked by one of the justices the real
But they all had high intellectual
Fahy would argue without notes
$64 dollar question on the case, and his response was:
“Mr. Justice, many is the time I have asked myself that
question and I have no really satisfactoGy answer. But
the answer that satisfies me the most is this,” and he
then proceeded to give his answer. As Acheson put it,
from then on Fahy and the Justices were walking down
the garden path, hand-in-hand, searching for the truth.
That’s great.
He had the capacity to admit the weaknesses in his own
argument, which is to me the essence of good advocacy.
And that ability served him when he was a judge as
Well, as a judge, he showed the same capacities. I
don’t sit in the conferences, but I suppose a judge
needs that capacity in the conferences. He had the
intellectual qualities and the openness of mind to
write wonderful opinions and make very good decisions.
Who have been some of your favorite judges on the
District Court?
Judge Gesell, Judge Oberdorfer, Aubrey Robinson. I
think I’ll stop right there. Oh, I like John Pratt,
I’ve always liked John Pratt.
What qualities do they have that you admire?
Gesell, of course, is a litigator, as you know. He
might lack the necessary patience to be a really good
judge, but he disposes of things very quickly. He’s got
a great capacity to simplify. I remember a class
action antitrust case in which he was dea’ling with a
public interest lawyer who insisted on filing requests
for admissions. Gerry just said to him, “Mr. Brodsky,
or whatever his name was, Ityou don’t really want to
file this demand for requests for admissions.I1 He
said, “By the time these very good lawyers on the other
side have finished, you not only won’t get any answers,
you’ll be sorry you asked the questions.” And he
talked this fellow out of it and moved him on to
summary judgment.
BLOCH : What is your idea of what makes a good lawyer?
CUTLER: That’s very hard, but the qualities are not very
different. It’s openness of mind, quick study,
soundness of judgment, ability to persuade, ability, as
I said, to admit the weaknesses in your position,
capacity to be seductive, certainly honesty and
BLOCH : Do you think legal education has changed over the years
and if so which way? What’s your view of it?
CUTLER: Well, I am not that familiar with legal education
today. I have taken a couple of teaching sabbaticals,
one at Yale and actually two at Oxford. I’ve done some
teaching, and I go up and lecture in law school classes
from time to time. But I don’t think it’s changed that
much and, on the whole, I think it is very
BLOCH : Are the kids you see coming out here welL trained?
CUTLER: They are very well trained. I think more suffer today
than was true 20-30 years ago from an inability to
write clearly, which to me means inability to think
clearly, but part of it is basic pre-law school
education and literature, and logic and sentence
structure and such things. It’s remarkable how many
very bright people, very articulate on their feet,
don’t write well.
BLOCH : How would you remedy that if you had the ability, the
CUTLER: Well, we used to have a Yale course, a freshman course,
called Daily Themes, in which we would literally have
to write something everyday — one page, two pages. I
think the class met three times a week, and the
professor — these were very good full professors of
literature, I mean they were not teaching assistants or
anything else — would then mark it up and give it back
to you. Then in the class they would read out
somebody’s piece and they and the whole class would
tear it apart. Of course, they wouldn’t say whose
piece it was, but when that happened to your piece, it
taught you a lot about writing.
BLOCH : And they would tell you what to write on? They would
give you a theme for the day?
CUTLER: No, you had to think up your own.
BLOCH : As well as write it, you had to create it.
CUTLER: Apart from that, I think law school education is as
rigorous and as mind-grabbing as it ever was. I can
still remember many classroom events in law school,
better than I can remember college days. I do think
the urge to do good in the world, to be a full service
well rounded citizen, has fallen off. The 80’s
generation, even the kids coming out of law school,
were very much a rime,fi “what about me” generation,
rather than a public service generation. Part of that
again is that at least federal government public
service became unattractive to a lot of people who
thought they had missions in life because of the
attitude of the last three administrations.
BLOCH : Do you see any change now at all in the other
direction, or does it look the same?
CUTLER: No, not much. I think we will see a change again. It
used to be, 10-15 years ago, that we would be — of
course these were the days when everyone was scrambling
to recruit young lawyers — we would be questioned very
rigorously about our pro bono programs. Now hardly
anyone asks. And we’re the ones who insist we’re going
to put at least five, I think we put seven percent, of
our time in pro bono work.
BLOCH : Are you unusual in that?
CUTLER: I think we lead the country. The good old ”American
Lawyer” has, in addition to their charts about how much
money people make, they have one on public service in
which by their rating system we came out number one.
BLOCH : Would you favor a required service of all lawyers, an
ABA requirement on something? I don’t know how you
would enforce it.
CUTLER: Yes, I’ve spoken about, although I don’t know how you
would enforce it. It could only be a goal I think.
And this law firm — we had our 30th anniversary a
couple of weeks ago as you know — and the firm gave
scholarships in John’s name [John Pickeringl to
Michigan and in my name to Yale.
requirement for eligibility for the scholarship that
the recipient has to commit to devote at least 10% of
his/her future career to pro bono and public service
work. It’s a good thing to keep in youngsters’ minds.
We put into the
BLOCH : I remember when I was recruiting and being recruited,
that was the big question. I guess one reason why
students might not be asking it now is either they
don’t care, or they’re so anxious to get the job,
they’re afraid to ask.
I think they care, or some care, but also they need the
jobs, they need the money, and remember most of them
have probably gone $40,000-$50,000 in debt by the time
they are out of law school. And, of course, when they
join a big firm they want to get ahead in the firm and
they don’t identify doing public service work in the
firm as a way to get ahead. You [the firm] have to
work hard on that in the firm and make clear to
everybody that if you get assigned to a pro bono case
it’s just as important as a paying case.
Do you think that associates here at Wilmer understand
I hope so.
What was your experience as White House Counsel like?
People would say to me, are you having a good time?
And I would say !’no, but I wouldn’t have missed the
experience.I! And it was fascinating — it was only 16
or 17 months. You are so close to the center of
decisionmaking and you can have an impact on the
decisions. I would rather be the White House Counsel
than the Attorney General.
Because you are closer to the President and because you
are at a preventive stage. I mean the Attorney General
may never hear about a legal issue unless itls brought
to him after the fact. The White House Counsel can
spot it and say this is something that has to be
resolved because he’s sitting there, if he’s used
properly, in the policy meetings. When I? was asked to
come in, the President said to me, I want you to play a
Clark Clifford role, so I literally got that in
writing. Every time that I was left out of something
or wasn’t invited to a meeting, I’d go to Hamilton
Jordan or I’d go to the President and I’d say: “Harry
Truman would have invited Clark Clifford to this
meeting.” Nobody there of course remembered what had
really happened in the Truman Administration. Clark
has embellished it so much by this time that I was able
to get into anything I wanted to get into.
CUTLER: Do they want us to talk about the Washington law
practice? I thought you really wanted to know more
about the Court of Appeals.
BLOCH : They seem to want to have a general picture of practice
in Washington. Who were your favorite teachers at
Yale? Most inspiring?
CUTLER: I go back pretty far. It was Arthur Corbin, Harry
Schulman, Myres McDougal.
BLOCH : Did they influence you in ways that, if you had not had
them, things might have been different?
CUTLER: Well, Corbin was not only a wonderfully open, smiling,
gentle person but he had a wonderful analytical mind
and he loved to play his way through the whole class.
We had the man climbing up the flagpole for days. If
you climb to the top of the flagpole 1’11 give you
$100, and he’s 3/4 of the way up, and the fellow down
at the bottom says “I revoke’l. Is there a contract or
isn’t there a contract? Then we would go on through
that for hours. I can still remember a number of those
sessions. Schulman was a wonderful man too. He was
our torts professor. I don’t think that has changed.
The quality of the present people is every bit as good.
BLOCH : And do you have any comments or criticism of some of
the law and humanities, law and sociology, law and
literature trend? The criticism is, I guess, that
people coming out can’t think like a lawyer.
CUTLER: Well, I don’t think that matters much really. It
really doesn’t matter what you study in law school. I
would favor a mandatory first year — I mean, torts,
contracts — because they are so analytical and
logical, but other than that it doesn’t really matter.
It doesn’t matter whether you have taken evidence or
not, it doesn’t matter whether you’ve taken tax law or
not. It’s the ability to analyze and think and write
that really counts. I do wish there were more law and
humanities courses, a lot of lawyers are non-readers,
as you know, or non-visual, or not perceptive of their
own or other people’s feelings.
BLOCH : Well I think that, unless there anything else you think
we should do, we can call it a wrap. Thank you very
much for your time.
Acheson, 18-19
Airbag cases (Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm
American Lawyer, 23
Biddle, Francis, 3
Fahy, Charles, 18-19
Gesell, Gerhard R., 19-20
Mutual Automobile Insurance Company, 463 U.S. 29 (1983)), 9
Attorney General, role in judicial appointments, 16-17
Bazelon, David L., 18
Bethlehem Steel, 8
Biddle, Francis, 3
Borders, Mr., 15
Bork, Robert H., 17
Bowsher Y. Synar, 478 U.S. 714 (1986) (Gramm-Rudman case), 9
Carter, President, 13- 14, 15, 16,25
Clark, Charles, 1
Clifford, Clark, 25
Corbin, Arthur, 25-26
Cox, Hugh, 18
cox, Oscar, 2,5
Cox, Langford, Stoddard, and Cutler, 4-6
Cravath firm, 1,5-6
Cutler, Lloyd N.:
see also under Cutler, Lloyd N., Legal career
favorite cases:
airbag cases (Motor Vehicle Manufacturers Association of the United States, Inc. v,
State Farm Mutual Automobile Insurance Company, 463 US. 29 (1983)), 9
Gramm-Rudman case (Bowsher v. Synar, 478 US. 714 (1986)), 9
Powell v. McCormack, 395 U.S. 486 (1969), 9
Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952), 8-9
least favorite cases, 10
Early life, 1
careerplans, 4
Yale College, 1,4
Yale Law School, 1,4,22
“Daily Themes” writing class, 21 -22
favorite teachers, 25-26
Legal career:
Cox, Langford, Stoddard, and Cutler:
formed, 4-5
merged with Wilmer and Broun, 5
Cravath firm, 1,5-6
Lend Lease Administration, 1, 4
quadrennial commissions, 13
teaching sabbaticals, 20
U.S. Court of Appeals for the 2nd Circuit:
clerk to Judge Charles Clark, 1
White House Counsel:
“Clark Clifford” role, 25
role of, 24-25
Wilmer, Cutler and Pickering:
formed, 5-6
pro bono work, 22-24
scholarships given, 23
size of, 5, 7-8
North African Economic Board, 1
Legal philosophies:
appellate process, changes in, 10
judges on D.C. Circuit courts, lack of connections with District of Columbia, 13-14
qualities of good judges, 18-19
quality of the bench:
Supreme Court, 12
U.S. Court of Appeals for the 2nd Circuit, 12
U.S. Court of Appeals for the District of Columbia Circuit, 11-12, 18
salaries, size of, 12-13, 15
Attorney General’s role in, 16-17
improvements needed in nomination of judges, 15- 17
political influence on, 13-1 7
review commission set up by President Carter, 15
senatorial control of, 14-1 5
judicial appointments:
-A2 –
to Supreme Court, 16-17
White House Counsel’s role in, 16-1 7
economics of, 8
large compared to small, 6-7
reasons for growth, 7-8
judiciary as career choice, 12-13
qualities of good lawyers, 19,20
Supreme Court, making few appearances before, 11
changes needed in, 2 1-22,26
quality of, 20-22
quality of teachers, 26
practice of law, changes in, 10
pro bono work, need for, 22-24
U.S. Court of Appeals for the District of Columbia Circuit:
law firms:
legal education:
bestjudges, 11, 18
changes in, 10-1 1
Scholarship honoring, 23
U.S. Army service:
in military intelligence, 1-2
Nazi saboteurs case (Exparte Quirin, 3 17 U.S. 1 (1942)), 2-3
at the Pentagon, 2
in the Philippines, 2
“Daily Themes”, 2 1-22
Eastman, Senator, 14
Exparte Quirin, 3 17 U.S. 1 (1942) (Nazi saboteurs case), 2-3
Fahy, Charles, 18-19
Gesell, Gerhard R., 19-20
Gramm-Rudman case (Bowsher v. Synar, 478 U.S. 714 (1986)), 9
Higgenbotham, Leon, 13
Jordan, Hamilton, 25
Justice Department, U.S., 14
FBI, 2-3
Attorney General, role in judicial appointments, 16-17
Office of Legal Counsel, 2
Office of the Solicitor General, 2
Fahy, Charles, 18-19
FBI, 2-3
Katzenbach, Nick, 14
Lend Lease Administration, 1,4
see aZso under Cutler, Lloyd N., Legal career
-A3 –
Leventhal, Harold, 1 1, 18
Mayflower Hotel, 2
McDougal, Myres, 25
McGowan, Carl, 1 1,18
Michigan, University of, 23
Miller, Jack, 6
Miller, Cassidy firm, 6
Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm
Mutual Automobile Insurance Company, 463 U.S. 29 (1 983) (airbag cases), 9
Nazi saboteurs case (Exparte Quirin, 3 17 U.S. 1 (1942)):
FBI, Germans defect to, 2-3
Prosecution team, 2-3
in Supreme Court, 3
Nazis, 2-3
NorthAfrica, 1
North African Economic Board, 1
Oberdorfer, Louis F., 6, 19
Office of Legal Counsel, 2
Oxford University, 20
Paul Weiss firm, 6
PearlHarbor, 1
Philippines, 2
Pickering, John, 5-6,8,23
Powell, Adam Clayton, 9
Powell v. McCormack, 395 U.S. 486 (1969), 9
Pratt, John H., 19
Prettyman, E. Barrett, 1 1,18
Quadrennial commissions, 13
Reagan, President, 17
Review Commission, U.S. Court of Appeals, 15
Robinson, Aubrey E., Jr., 19
Scalia, Justice, 9
see also under Cutler, Lloyd N., Legal career, Lend Lease Administration
Honoring Cutler, Lloyd N., 23
Honoring Pickering, John, 23
Schulman, Harry, 25-26
Solicitor General’s Office, 2, 18-19
Supreme Court, U.S., 18-19
Appointments to, how to improve, 16- 17
airbag cases (Motor Vehicle Manufacturers Association of the United States, Inc. v.
State Farm Mutual Automobile Insurance Company, 463 U.S. 29 (1983)), 9
-A4 –
Gramm-Rudman case (Bowsher v. Synar, 478 U.S. 714 (1986)), 9
Nazi saboteurs case (Exparte Quirin, 317 US. 1 (1942)), 2-3
Powell v. McCormack, 395 U.S. 486 (1969), 9
Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952), 8-9
Changes in, 11
Scalia, 9
Thomas, 17-18
Quality of justices, 12
Thomas, Justice, 17-18
Tribe, Larry, 11,18
Tman,Harry, 25
U.S. Army, 1-3
see also Cutler, Lloyd N., US. Army service
Clark, Charles, 1
Quality ofjudges, 12
see also under Cutler, Lloyd N., Legal career
Higgenbotham, Leon, 13
U.S. Court of Appeals for the 2nd Circuit:
U.S. Court of Appeals for the 3rd Circuit:
US. Court of Appeals for the 6th Circuit, 9
U.S. Court of Appeals for the District of Columbia Circuit:
Bazelon, David L., 18
Bork, Robert H., 17
Fahy, Charles, 18-1 9
Leventhal, Harold, 1 1, 18
McGowan, Carl, 11,18
Prettyman, E. Barrett, 1 1,18
Scalia, Antonin, 9
Thomas, Clarence, 17-18
Wald, Patricia M., 11
Wright, J. Skelly, 11, 14, 18
Quality ofjudges, 11-12, 18
Tensions among judges, 15
US. District Court for the District of Columbia:
Gesell, Gerhard R., 19-20
Oberdorfer, Louis F., 6, 19
Pratt, John H., 19
Robinson, Aubrey E., Jr., 19
Wald, Patricia M., 11
White House Counsel, 24-25
Role in judicial nominations, 16-1 7
see also under Cutler, Lloyd N., Legal career
Wilmer and Broun, 5
Wilmer, Cutler and Pickering, 5-8,22-24
World War 11, 1-3
Wright, J. Skelly, 11, 18
Yale College, 1,4,2 1-22
Yale Law School, 1, 4,20,23,25-26
Youngsfown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952), 8-9
see also under Cutler, Lloyd N., Legal career
Politics in judicial appointment, 14