Phillip Allen Lacovara Interview 2

30
Oral History of Philip Lacovara, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Carrie Johnson, and the
interviewee is Philip Lacovara. This interview took place via Zoom while Carrie was in
Washington, DC, and Philip in Baltimore, Maryland, on June 20, 2024. This is the second
interview.
MS. JOHNSON: Good afternoon. Nice to see you again.
MR. LACOVARA: Good afternoon.
MS. JOHNSON: I think we left off last time at Georgetown. You were telling me about the
rather exotic living arrangements you had with your roommates at
Georgetown, but I don’t know that we got deeply into your academic
interests and your intellectual interests at the school in that era so maybe
we can start there.
MR. LACOVARA: Sure. I had originally indicated that I was going to major in math because I
enjoyed math in high school. Then when I took my first college-level math
course, I quickly concluded that this was a bit too complex for my not-too
-subtle mind so I then ultimately pursued more soft subjects, and I had a
double major in political science. That turned out to be useful because of
my longer-term interests and philosophy, which just got to the, I would
say, academic part of me.
I did reasonably well at Georgetown. I got at the graduation
ceremonies in 1963 the gold medal for the top student in political science
and the John Carroll medal as the top student in philosophy. In my two
majors I did pretty well. I did graduate in three years rather than four,
which is another reason why I was younger than most of my colleagues in31
the profession. I graduated from Georgetown at age 19 when most of the
graduates were 21 or 22, and the reason for doing that accelerating, again,
was that I was married in what turned out to be my middle year at
Georgetown, and that involved moving off campus to set up housekeeping
with my new wife. Eventually we had a baby, and then Madeline was
pregnant when she joined me at the very hot late-May graduation
ceremony on the Healy Lawn at Georgetown in May of 1963. And that, I
suppose, is unusual even today for students to be married, particularly at
what was then a Catholic men’s college, Georgetown.
There were two other couples who were married, and so they were
our social set at Georgetown. I think both of them also had small children,
so we would all arrange for each other to have babysitters and play bridge
together, and that was about the only kind of extracurricular socializing
that young married couples especially with children were able to do at
college.
One of my friends I’ve kept in touch with is now a very prominent
physicist who is sufficiently erudite that he gets invited to lecture on
cruises all the time. He is still married to the same woman after the same
period of 60-plus years, he’s always sending me emails from some exotic
location where he’s lecturing on either something having to do with
physics, or he’s just written another book about geniuses in general. So,
fascinating relationships we formed.32
MS. JOHNSON: Absolutely. Can you talk a little bit about how you balanced your
accelerated course of study with your family responsibilities.
MR. LACOVARA: It was not easy since I had to double up on some of the courses, go to
school during the summer in order to get the extra credits that I needed to
finish in three years. My wife was then, and she still is now, a great
support for all of this, but we were both teenagers so we were learning
about each other as well as learning about how to be young parents.
As I may have mentioned earlier, this was at a time when
Washington, D.C., was still a small, sleepy southern town. Our apartment
was across the river across the Potomac in Arlington, right outside of
Roslyn which now has enormous high-rise office buildings but then was
noted only for having a pizza joint and a tiny bank branch and essentially
being desolate. I think there was a pawn shop there. Our apartment, which
had a number of mostly medical students and dental students, was just up
Lee Highway. I walked across Key Bridge to Georgetown and up the hill
and walked back, and if I had night classes, I did it both ways. So I was in
reasonably good shape physically at the time I graduated.
MS. JOHNSON: What were your plans after graduation?
MR. LACOVARA: It wasn’t clear what I was going to do. In part for financial reasons, as I
said, by the time I was about to graduate, we were expecting our second
child. We wound up with seven children. I don’t quite know how that
happened. Actually, I do know. I thought I would become a lawyer, but it
wasn’t clear whether or not that was going to be financially possible, so I33
took the civil service exam and did well enough that I was recruited by a
number of government agencies. I also was offered an opportunity to get a
PhD in political science under the National Defense Education Act I think
it was called, but the field that they were willing to subsidize me in
involved what seemed like too much statistics. So I decided not to pursue
a PhD. I almost went to work for what was then called the Office of
Emergency Preparedness. It’s now called FEMA, but at the time, it was
essentially the agency that was responsible for planning for nuclear war
and organizing the evacuation procedures, the continuity of government
mechanisms and so forth. As they emphasized to me, it was at the apex of
government because the Office of Emergency Preparedness basically
coordinated what all of the agencies of government were going to do in
the event of nuclear war. Interestingly, two or three years ago there was a
book written, I think it was called Raven Rock, which is about one of the
two relocation centers that the government is still operating. I knew about
some of them even at that time for relocation of people who are essential
for continuity of government functions. So that sounded like an exciting
thing, especially to a young man who was interested in government and
politics. But in any event, I did apply to law school, with the cooperation
of my parents and my wife’s parents who said, if you want to go to law
school, we’ll help.
So I applied to a couple of law schools, Harvard, Yale, Columbia,
and NYU. And there’s a whole footnote on NYU. They had a special34
program, which may still exist called the Root-Tilden scholars, and it was
a special honors program. My father and I went to see the then-Dean of
the NYU law school, a man named Russell Niles who my father had
known, and Niles said that he thought I’d be great for the program, but all
of the students had to live together in the same dorm, and I said I didn’t
think my wife was going to appreciate that, and he said oh, you’re
married. The students in the Root-Tilden program have to be single, and of
course all men, because they will live together in a common dorm and
that’s the way they’d organized the program. So I said well thank you very
much, Dean. Next.
I was accepted at Harvard, Yale, and Columbia and made what was
largely an economic decision. Harvard had offered me a $700 scholarship,
Yale offered an $800 scholarship, and Columbia offered a $900
scholarship, so I decided to go to Colombia. Now that was the basic
driver, although as I think I mentioned, my father was a Columbia
graduate and so there was a little bit of an extra personal inclination to go
to Colombia, although at the time, Harvard and Yale were considered a
notch above Columbia at least in the common perspective, and I did not
know much more than what the notoriety was. Harvard and Yale were
perceived by the public to be in one category, Columbia and other so-
called Ivy leagues in a slightly different tier. But I went to Columbia, and
as they say in the Robert Frost poem, that has made all the difference.
MS. JOHNSON: How do you think that decision shaped what you went on to do?35
MR. LACOVARA: The people I met at Columbia, and another reference obviously is to the
road not taken by Frost’s narrator, I don’t know where I would have
wound up, what I would have wound up doing as a lawyer if I’d gone
either to Harvard or Yale, but at Columbia, I also did reasonably well. I
was first in my class each of the three years, and after first year as you
know, there is an invitation to join the law review. I don’t know whether
it’s still true today, but in that era, and I’m talking about almost 60 years
ago, there were two different categories of law school graduates from the
major law schools. There were the people who were on the Harvard or
Yale or Columbia or maybe Michigan law review, and there were the
people who weren’t. And being on law review was coin of the realm. You
basically wrote your own ticket, and everybody competed for you. And if
you weren’t, then you were taking your chances.
I was invited to participate in the Columbia law review, and I
chose to decline that invitation because I needed to work. I got an
opportunity to work as a research assistant for a then-former law school
criminal law professor Herbert Wechsler who at the time was the director
of the American Law Institute, ALI, and the reporter for the Model Penal
Code. He was still working on developments of the Model Penal Code and
needed a research assistant to help. It paid a dollar-and-a-half an hour
during the academic year, and if I stayed, it was $2.00 an hour during the
summer. So although some of my professors and all of my fellow students
said that this was going to be the end of my career if I turned down the law36
review. I was just going to be some other schmegeggy who was going to
graduate from Columbia being part of the 270 people who were not on the
Columbia law review. I didn’t see that it was fair for me, either for my
wife and children or for my parents and my in-laws, to pass up the
opportunity to contribute something to our upkeep, so I took the research
assistantship. And that helped me get an entree to the judge for whom I
wound up clerking on the D.C. Circuit, which in turn led to an
introduction to the then-first assistant, now called the principal deputy
solicitor general, who introduced me to Thurgood Marshall who was
looking for a research assistant after I clerked for Judge Harold Leventhal.
So as is true in everyone’s life, one thing leads to another thing, and if you
break the chain anywhere, you don’t know how you’re going to wind up.
So having chosen to decline the Columbia law review invitation, I wound
up getting into a career that I could not have imagined when I ultimately
decided that I was going to law school. And it didn’t hurt when I was
applying to Judge Leventhal, who had been first in his class at Columbia,
that I was first in both first and second years and it wound up at graduation
that I was the first even in the third year as well, so he thought of me as
acceptable. He also knew of my father, and I guess he had known him
many years earlier because my father, as I believe I mentioned, was also
an editor of the Columbia law review but did not have open to him the
options that were later open to me.37
MS. JOHNSON: Let’s go back to a couple of points on Colombia and then I want to move
forward. That was a great story.
MR. LACOVARA: I should interject. Before I got the research assistantship with Professor
Wechsler, I also worked for something at Columbia, a paying position,
called the Legislative Research Drafting Fund. It was actually a think tank
at Columbia that did contract research, and the project that I worked on
was for the United States Arms Control and Disarmament Agency, which I
think was an independent agency working on arms control issues. Our task
was to develop legal and constitutional justifications for enforcement of an
arms control verification treaty, should one be developed. Specifically,
how would we be able to guarantee counterparties, particularly the Soviets
at the time, that we weren’t secretly stashing away chemical, biological,
and radiological weapons in homes or factories. So there were a lot of
Fourth, Fifth, and even Sixth Amendment issues that had to be examined. I
was part of what turned out to be a very thick report that was developed.
We finished that up, and then I went to work for Professor Wechsler.
MS. JOHNSON: It’s very evocative to hear you talk about that and the organization that
later became known as FEMA while you’re really in the Cold War period
and a kid who was obsessed with science fiction and comics, it’s all part of
the same imagination in the public imagination of that era.
MR. LACOVARA: Very much so. It was fascinating because these were cutting-edge issues at
the time. I was in school of course during the Cuban missile crisis and so
these were not simply abstract possibilities. People did live with the38
prospect of nuclear confrontation, something quite raw and seemingly
imminent.
MS. JOHNSON: For sure, especially with kids at home it hits you a little differently. What
was the composition of your class at Columbia like? Mostly men, a few
women? Much diversity ethnically?
MR. LACOVARA: More diversity in terms of women, but that’s minimal. I think we had
maybe a dozen women out of 300. Interestingly, most of the women went
on to become judges. As I go down the list of the women classmates,
virtually all of them became judges, mainly state, but a couple of federal
judges. But even at that time, Columbia, and I think the other major law
schools, were largely male-dominated.
MS. JOHNSON: Besides Wechsler and the ALI, which sounds like a really important and
informative experience, any people you associated with at Colombia,
anybody particularly inspirational in that era for you as a student and a
scholar?
MR. LACOVARA: There was a fellow named Hans Schmidt, a tall Dutchman, whose son I
think it is, is now a colleague of mine in the international arbitration
world. Hans Schmidt was notable for two things. First of all, he was
gigantically tall and rigorous analytically. I had conflicts of laws with him
as well as one of the procedure courses. He was a great teacher in the
sense that he was very engaging. The other thing that he was notable for
was that he was a world championship water polo player, and he would39
delight us occasionally with water polo stories. It was quite different from
what I would have expected.
There was another professor who taught trusts and estates who was
somebody who had been I think a year behind my father at Columbia back
in the 1930s teaching trusts and estates, which was my father’s field. He
took a particular interest in me, which was very generous of him, and so
we got along pretty well.
MS. JOHNSON: Did you have to travel down to Washington, D.C. for your interview with
Judge Leventhal, and were you excited about going back to D.C., which
you had lived in for a while during the Georgetown era?
MR. LACOVARA: Yes. I really wanted to go to Washington because I had this ingrained
interest in politics and the political world which was largely the reason I
chose Georgetown versus Holy Cross, my other option at the college level.
So I wanted to go to Washington if possible. I should interject that I did
apply for Supreme Court clerkships, and this was at a time when the
justices had one or two law clerks, so the opportunity to get a clerkship at
the Supreme Court was pretty rare. It was also at a time, unlike the
present, where the justices took clerks directly from law school rather than
having them serve apprenticeships by clerking on the District Court, the
Court of Appeals, and then coming to them after one or two or sometimes
more years clerking in lower courts. So you applied directly from law
school to one of the justices. If I remember correctly, I only applied to two
justices, and again, I think that it was a slight disadvantage that I was not40
part of the law review. So coming fresh out of law school with nothing
more to commend me than research assistantship and being first in the
class for two years but not having law review training, which was
regarded as a good editorial skill for somebody who might be a law clerk
at the Supreme Court, I applied to Justices White and Stewart, who later
on became two of the justices who I think liked playing with me most
during oral arguments. I just got a rejection letter from White, as far as I
can remember. A couple of years ago I found my rejection letter from
Justice Stewart who said thanks very much. I’ve decided to hire as my law
clerk for the 1966-1967 term a young man from Harvard Law School,
Laurence Tribe. I obviously know Larry Tribe reasonably well. We co-
author op-eds, and I actually represented him in connection with a matter
some years ago. So I sent him this note saying, Larry, our paths actually
crossed virtually very many, many years ago, and I’ve abandoned any
resentment that I might have had toward you. So Larry Tribe got that
clerkship, and the rest is history, for him too.
So, yes. I went to Washington. I interviewed with Judge Leventhal.
Early on, I would say he struck me as rather severe, but we later developed
a very warm relationship, so much so that I viewed him as a kind of
patron. He was so generous toward me in introducing me around while I
was his clerk and then thereafter, and when he died prematurely in 1979,
his widow asked me to deliver the eulogy at his memorial service. His
death and the arrangements there constitute another rather interesting41
story, which I could go into if it seems pertinent to this history, as it might
since it is a D.C. Circuit oral history.
MS. JOHNSON: I think we should, but before we go any further, I neglected to ask you a
couple of questions, and then I want to get back to your D.C. Circuit
experience. You talked in the first interview and this one as well about
how interested you were in politics and the universe of political
happenings. This was a remarkable era. To what extent were you involved
in politics during your time it Georgetown, during your time at Columbia,
and then I want to ask about your response to some rather remarkable
things that happened before you got to D.C. again, some things in 1965 in
particular.
MR. LACOVARA: Okay. Yes. Well interested in politics. I think I mentioned earlier on that
the early 1960s, remember I went to Washington and Dwight Eisenhower
was still President and John Kennedy was just taking office, so it was a
time of transition in the American political sphere. It was also a time of
international tension and a time of decolonization, in Africa, to some
degree in the Far East, so my political interests at the time were in
supporting some of the anti-communist liberation movements in Africa.
There were posters that I and others put up even in our dorms supporting
one faction or another. If I remember correctly, one of the bêtes noires of
US interests was a man named Patrice Lumumba who wound up being
assassinated, perhaps with CIA involvement, and also Kwame Nkrumah.
There were a whole variety of major figures. Some today might call them42
warlords or otherwise, who were emerging on the scene, and they were
either pro- or anti-west. At least that was the way for simple purposes they
broke down. In law school, and this reflects a political orientation that I
had in my younger days that would strike many people as surprising, in
the 1964 campaign, I was the co-chairman of Columbia Students for
Goldwater. There were few enough so that we could practically meet in
the telephone booth, but I did try to agitate for Barry Goldwater against
Lyndon Johnson. I don’t know what it was about Goldwater that attracted
me. I even had a little pin with an elephant with the big horn-rimmed
glasses that were characteristic of Barry Goldwater, and I still have in my
politics file a poster of Students for Goldwater in 1964. That campaign, of
course, fizzled out mightily as Goldwater suffered one of the most
catastrophic defeats in American history.
MS. JOHNSON: But his ideas resonate surely.
MR. LACOVARA: Well, they did at the time. That whole conservative view of things,
encouraging people to stand strong for America, strong defense, and so
forth. I’m not sure, and in retrospect as I try to reconstruct it, what it was
that was so attractive because the 1960s – 1963, 1964, 1965 – that was the
era of several revolutions that were taking place in America, sexual
revolution, civil rights revolution, obviously, and if you will, almost the
revolution about the handling of the war in Vietnam. As I look back on
some of those, Goldwater might have had the right approach. Probably he
wasn’t as attentive to some of the things that should have been higher on43
his list. My children continue to tease me about the “greening of Philip
Lacovara” because I’ve certainly become far more liberal and left-leaning
over the years, which is the inverse of the normal progression. I think it
was Churchill who said if you’re not a liberal when you’re young, you
have no heart, and if you’re not a conservative when you’re older, you
have no head. I think that’s got it completely backwards.
MS. JOHNSON: I wanted you to address Students for Goldwater which I read in your
packet, so thank you for getting there. This was also a time of great
uncertainty and trauma in the country. We had the JFK assassination. We
had the events of 1965. How did those affect you in your daily life to the
extent that they did in that era?
MR. LACOVARA: I remember exactly where I was when John Kennedy’s assassination was
announced. I was in the library at Columbia Law School, and someone
came in and said the president has been shot and myopically, since I was
intense about what was then my life, being a law student, I was thinking
why would anybody shoot President Grayson Kirk, the president of
Columbia University. And he said no, President Kennedy, and that was
astonishing. I still get chills just thinking about that moment. I went home,
as did everybody else. Everything closed down, and so I went home to be
with my wife and two children. I wound up getting sick for unrelated
reasons and was watching television when the warning that Lee Harvey
Oswald was brought to court being arraigned and saw live on American
television Jack Ruby come out of the crowd and shoot him. There was the44
sense the world’s gone mad. What is happening, because none of us had
lived through anything like a presidential assassination, and then the
assassination of the assassin, and it seemed just to be unworldly.
Historians now are taking a whole second look or third or fourth look at
Camelot. There was for young people, especially young people, a
mystique about the Kennedy administration. They were young, and they
were beautiful, and the people who were going to Washington, this is the
reason why I was somewhat ambivalent about my support for Goldwater,
which was a little bit later of course. It was the best and the brightest, and
they were the best and the brightest who were attracted into government.
And sadly, fast forward sixty years. What you see in government today is
not the best and the brightest but the worst and the dumbest, and I just
shudder when I hear some members of Congress, whose names I will not
mention for this purpose, saying the most outlandish things that they either
know are false or they’re too stupid to realize are wrong. So government
in the last sixty years has turned upside down from what I thought it
should be and for a time largely was to what it is today. What it tried to be
then, and obviously not succeeding 100% and not nearly as pure in motive
as was presented at the time, but it was an effort largely by people who
wanted to use the government power to improve the lives of others and not
just to enrich their friends or themselves.
MS. JOHNSON: Do you have some reflections to share on some of the horrible civil rights
tragedies in the South in the mid-1960s and later and any assessment you45
have of that movement which culminated in some rather spectacular
legislation? Some people call it maybe the most successful legislation of
the 20th century. I don’t know that you were directly involved in that, but I
want to give you the opportunity if you have any thoughts to share.
MR. LACOVARA: Yes. Today is actually the anniversary of the murders of Goodman,
Schwerner, and Chaney, and that was one of those riveting experiences,
because these were people who were our age who were putting their lives
on the line for civil rights. It was a galvanizing period because it was
bringing out the best in young people who were out there demonstrating. I
was not on the line demonstrating. I have to confess that. This is another
period where obviously I was not politically opposed to civil rights
legislation. I was even then in favor of it, despite the Goldwater
orientation, which was largely a foreign policy perspective. I mentioned a
little while ago working on the legislative drafting research fund project.
One of the two or three other people working on that project was a fellow
law student, a classmate of mine named Edward Norton, who was black.
He has now died. We had a very good working relationship. He was the
first black person that I would say I had a friendship with in my life. I had
grown up in essentially a white neighborhood. There were three black
students in my high school, a few in college, but none who I would
purport to say were personal friends of mine. Ed was a friend. We used to
joke about the coming civil rights revolution. Ed said that since he thought
of me as a reasonably enlightened person, he would see to it when the46
revolution came that I wound up with velvet chains, which I thought was a
good insight.
I was the invited to his wedding to a young lawyer, a civil rights
lawyer, named Eleanor Holmes, who has gone on to other things, and it
was down here in Maryland. It was a wonderful outdoor wedding in rural
Maryland where her family had come from. Madeline and I got a
babysitter to look after the children, and we rented a car and drove to
Maryland to attend the wedding of Ed and Eleanor Holmes Norton. I think
if there were four or five white people there, it would have been a lot.
So that was a kind of breakthrough moment for me getting past the
heritage of racism, and I would say that my family not maliciously but by
just tradition tended to be, I guess the only term is, racist, at least in the
sense of viewing blacks as a separate group not to be associated with. So
that was my connection personally with the movement for closer
relationships between the races or integration. And the fact that we went to
an integrated wedding was at the time seen as a revolutionary
development. It’s impossible today when you see interracial couples all
the time and nobody gives it a second thought, it’s impossible, and I know
this from talking to my grandchildren who have their own interracial
relationships. It’s impossible for them to try to get their heads around the
reality of an era that is relatively recent but that is so fundamentally
different in terms of attitude.
MS. JOHNSON: Law played a big role in that. Those relationships were illegal.47
MR. LACOVARA: Yes. And I think that’s extremely important. People talk about how we
shouldn’t legislate morality. Well, the law is supposed to establish norms,
and it should reflect the aspiration of the kind of society that we want, and
law should be leading the way and not simply catching up. Or at least I
think it’s a legitimate purpose of law to try to codify our higher angels
rather than to wait for our better natures to evolve, because as you’re
waiting for things to evolve over time, a lot of people are being left
behind.
MS. JOHNSON: One more issue and then get back to the D.C. Circuit. Thank you for
entertaining these questions. You’re a person who by all accounts was
extremely interested in and informed by public policy and foreign policy
in the United States in this era, which to put it mildly, was active. Explain
if you could your assessment of Vietnam during this period, your concern
about it. I guess you didn’t have to serve in part because of your
educational experience but also your family situation. Can you talk about
Vietnam. This is a story that could last a year, but to the extent that you
can discuss.
MR. LACOVARA: Sure. Yes. It could go on for a long time. As you recall, I went to a military
school. I signed up for ROTC when I went to Georgetown and went
through the ROTC program in my first year at Georgetown. Interestingly, I
saw recently the medal that I got from the Department of the Army for
being the superior cadet in the Georgetown ROTC unit in my freshman
year. Then I got married, and I dropped out of ROTC. The reason I48
mention it is it reflected what was at the time my foreign policy
orientation, which is strong America, strong military, I’d be happy to be a
part of it. Once I got married, I was less interested in going to Vietnam,
and because I was classified as 3A, meaning married with children, my
draft exposure was fairly limited but not completely non-existent. So I was
a supporter of the government’s view of the war, and I would say I would
confess that I was quite credulous about all of the statements that were
being made by the Defense Department, including McNamara and his
successors, Johnson, and then Nixon.
I should emphasize a little footnote here. There was one exception
to my Goldwater-type orientation. In law school, one of my classmates,
who was well-connected in New York society, held a small meeting at his
apartment with his very wealthy wife, and Bobby Kennedy was invited as
a guest. This was either 1965 or maybe 1966. Bobby Kennedy gave one of
those presentations in a small group that was electrifying. It caused me to
begin to question whether or not my priorities were right, because
Kennedy was talking about all the things that later in life have become so
important to me, which is trying to use government to help people who
can’t really help themselves, who either by circumstance or by repression,
are being held down. I can visualize that scene where people were sitting
and where Bobby Kennedy was and how I felt listening to this man who a
couple of years later wound up on the floor at the Ambassador Hotel in
Los Angeles.49
Anyway, so that was that exception. But fast forward toward
Vietnam. I was generally a supporter. Among the things that I am
constantly being reminded of by my grandchildren, to whom I’ve
confessed this, when Richard Nixon, in 1969 I guess it was, maybe 1970,
because I know I was living in New Jersey at the time, and I can
remember getting a telegram from him. When he gave his speech
explaining why he was bombing Cambodia or mining Haiphong Harbor, I
sent the president a telegram supporting this, that we really needed to
stand strong, and we couldn’t allow the communists take over Southeast
Asia because the dominoes would continue to fall. So at this time, and I
should have known better. I was still in my relatively early 20s, but I
should have known better, and I was still going hook, line, and sinker for
that approach to American policy in Southeast Asia.
MS. JOHNSON: We’re going to have a lot more words about Richard Nixon later. Thank
you so much for clarifying that and I confess I’m glad you answered that
in a fulsome way because I wasn’t quite clear on the conscription rules. I
didn’t realize there was still a chance possibly you could have to go, so
that was helpful to my mind. So, Leventhal. Where was the courthouse in
this era? Was it at 3rd and Constitution as it is now? Where did you report
to work when you were a clerk?
MR. LACOVARA: Yes. It’s the same courthouse. It’s now called the E. Barrett Prettyman
Courthouse. Barrett Prettyman was a judge down the hall from us. It was
the same courthouse, the United States Courthouse on Constitution50
Avenue and 3rd. Judge Leventhal was one of the junior judges, so his
chambers I think overlooked 3rd Street toward the back of the courthouse.
The rest of the area is completely different now. He had a law clerk, that
was me, as it turned out, and a messenger. It was a very different era. Well,
I’ll just mention, in the Solicitor General’s Office, there were two middle-
aged elderly black men who were messengers, and they were reflective of
what I describe as Washington well into the 1960s as being a sleepy
southern town. The judge had a position for a messenger which he used to
hire another law school graduate to do incidental legal work but at the
time the judges on the court of appeals on the circuits had appropriations
for basically a single full-time law clerk, and I was that clerk for Judge
Leventhal.
MS. JOHNSON: I don’t want to ask you to violate any kind of confidentiality that still
exists, but is there any way you can discuss the kind of legal work that you
did and/or whether there were particular matters of great import?
MR. LACOVARA: I can certainly talk about the generalities of the experience. It was a
fascinating time for a couple of reasons. The workload itself was quite
interesting to me because at the time there were two basic types of case
load that the D.C. Circuit had. One was the beginning or emerging field of
administrative law, although a lot of government agencies were created
during the period of FDR, the New Deal, the whole area of administrative
law was still evolving, and Judge Leventhal became noted as one of the
great administrative law judges, one of the people who contributed so51
much to the whole development of administrative law. That topic is now
perhaps undergoing reexamination, depending on what the Supreme Court
decides about one of the doctrines that really does go back to some of the
formative concepts that Judge Leventhal developed. I’m talking about the
Chevron doctrine which was Supreme Court codification of something
that Leventhal helped to formulate in terms of deference to government
agencies. He had been a Washington practitioner for many years doing a
lot of work before agencies, had worked in a major regulatory agency
during World War II, one of the ones that really control the economy, the
war economy. He had a sensitivity to the importance of government
regulation in economic terms and to the proper role of courts in overseeing
but not necessarily hamstringing government regulatory agencies. So it
was a practical and informed basis for developing the relationship between
courts and agencies, and I found that to be a fascinating emerging
doctrine.
The other part of the caseload was criminal law because at the
time, before court reorganization in the early 1970s, the creation of a
really autonomous court system from the District of Columbia, the United
States District Court for the District of Columbia had general jurisdiction
over almost all civil cases, but more interestingly from my standpoint,
criminal cases. So we had lots of murders, rapes, robberies, auto thefts.
You name it. That was the first time I came upon Marion Barry, later the
perennial mayor of Washington, D.C., and I remember United States52
versus Marion Barry. I think it was a drug case or something of that sort.
Even young Marion Barry sort of community organizer and if you will
ne’er-do well because he was always getting into trouble as he did up
through and after his times as mayor. So the criminal cases were
fascinating. They gave me an opportunity to try to put into practice, to the
extent that I had a role in recommending things, to draw further into the
actual development of criminal law in Washington, some of the things that
were emerging in the Model Penal Code where I had been working with
Professor Wechsler. Wechsler was also known to Judge Leventhal because
Wechsler had been part of that same Columbia coterie, and Wechsler had
been instrumental in getting me connected with Judge Leventhal. So it was
a natural progression, and Leventhal was interested in hearing my views
on how we might approach sensitive or new issues in criminal law. It was
at a time when there was a lot of development in the law of criminal
responsibility, specifically where do you draw the line in formulating an
insanity defense. And one of the other judges on the court of appeals who
was most interested in that was the chief judge, David Bazelon. He had
very decided views about how to reformulate the concepts of basic
criminal responsibility in light of and developing beyond the old 19th
century notions of insanity, which did not have any correlation with
modern notions of psychiatry, which was one of Judge Bazelon’s
particular interests. So we worked through issues like that. It was some
pretty basic stuff about criminal law and criminal justice.53
MS. JOHNSON: It sounds really fascinating. Were you happy with the experience? Was it
what you had expected it would be?
MR. LACOVARA: It actually was. As I say, he was very good to me and really boosted my
career afterward. It was fascinating to work with him because his style
was to ask us, my co-clerk and me, to draft opinions and then bring them
to the judge, and he would sit with us, basically with us at his elbow with
an old fountain pen and mark up the draft opinions. It was a terrific
experience for me to see how his mind worked and also to develop skills
that became very important to me later on in my own legal writing, which
is the importance of choosing exactly the right word and trying to be as
precise as possible, but also to make it as interesting as possible. Leventhal
had a had a wonderful style, kind of puckish. He loved puns. There was
one phrase I remember. He was doing a riff on Alice in Wonderland and
the Cheshire cat and talked about how a particular case had been
overruled, and he said, and I don’t remember the name of the case, but it
was the song of such-and-such has ended but the melody lingers on. He
was trying to say, although the case doesn’t formally bind any longer,
there is this sort of thing. He did another Alice in Wonderland.
My wife and I lived way out in Suitland, Maryland. We bought a
rattle trap car for $400, a Pontiac Tempest with mismatched tires. One of
the things that I would do occasionally was pick up the judge or drive him
home since he didn’t use the messenger as a messenger, and he joked that
this was just like a “tempest in a teapot” because the thing was chugging54
along. So he was fun to work with, a serious taskmaster, but somebody
from whom I learned an awful lot in the formative stage of becoming a
lawyer.
MS. JOHNSON: He definitely seemed as if he warmed to you. So you’re done with the
clerkship. It’s a term clerkship, so a one-year job, right?
MR. LACOVARA: Yes. We were right next to judge Warren Burger, and I probably should
add this too. Years later when Earl Warren was retiring and there was
going to be a new chief justice appointed, there was a lot of speculation
about who it might be. Judge Leventhal called me up and asked what did I
think. I guess I was in the SG’s office at the time. I mentioned a couple of
names. I would say none of them was Warren Burger, and when Burger
was appointed, I spoke with the judge, and we were astonished because
Burger was a fine gentleman, but nobody thought of him as a great legal
luminary, at least I don’t think that was the perception among his
colleagues on the D.C. Circuit. He was one of the leaders, but not really
the leader of the conservative wing of the D.C. Circuit at the time. At the
time, the Circuit, maybe similar to the US Supreme Court today, had two
very distinct left and right wings, and Judge Leventhal and Judge Carl
McGowan, another Columbia alum from the same class actually, were
thought of as centrists. Judge Leventhal was more left leaning, and Judge
McGowan was a little bit right leaning, but on the one end you had Judge
Bazelon, for example, and J. Skelly Wright. And on the other end, you had
Judge Tamm, Judge Burger, and Judge Prettyman. So it was a court that55
would often see dissents, particularly in criminal matters based upon what
one would characterize as the liberal or conservative orientations.
Anyway, that was the experience of the D.C. Circuit.
MS. JOHNSON: Can I follow up and ask, understanding that there were some vociferous or
vigorous dissents, did people generally get along? There have been
periods in my lifetime where the D.C. Circuit was at each other’s throats,
sometimes literally. Was it a collegial place, or do people stay apart from
each other?
MR. LACOVARA: I don’t remember anything that I would view as personal. There was a
small judges dining room where the judges and law clerks ate, and it was
not unusual to see people who were separating each other in a particular
pending decision, and all the decisions were circulated to the full court
before they were issued and that didn’t foreclose the opportunity to
request en banc, but everybody knew what was coming out and you could
see who was preparing to dissent. And it was not unusual to see the same
judges who were saying harsh things about the opinion of the other judge
sitting together and having lunch and just talking about what was going on
in the world. And the same thing was true with the law clerks. Even
though our assignments were to write things that might seem to an
outsider to be quite strident, it was a point that I’ve continued to
emphasize as recently as two or three days ago at a conference that I was
speaking at, to make clear that when you’re a lawyer in a case, the dispute
is between the parties and not between the lawyers, so be courteous to56
each other. And I think that was generally the attitude among the judges at
the time They disagree, but they recognize that it was a dispute basically
between the United States and the defendant or something else and a
decision had to be rendered, but don’t take it personally in the sense that
it’s going to intervene in disturbing professional colleagueship.
MS. JOHNSON: Thank you for that. I’m about to start a new chapter. I’m going to open the
chapter of what you decided to do when you finished your clerkship and
the options that were kind of on the smorgasbord for you and what was
your mindset? Where did you think you wanted to go?
MR. LACOVARA: The options were either joining a law firm in Washington or New York. I’d
been a summer associate at a New York firm Hughes, Hubbard, and Reed.
More about that later, I guess because I ultimately did go back there again
and again. Or a firm in Washington. I interviewed at a number of the
major firms. Or going into the government. That is, going from the
clerkship government to the executive branch.
I had a couple of job offers from law firms, but ultimately it came
down to one of two positions. One was in the Solicitor General’s Office
working as Thurgood Marshall’s specialist assistant or becoming the
special assistant to the assistant attorney general in charge of the antitrust
division. Again, roads not taken. I don’t know what would have become of
me had I become an antitrust assistant AG special assistant, but I didn’t
take that job. What decided it of course was when I got a chance to meet
Judge Marshall as we called him, because he had been a judge on the57
Second Circuit. Nobody called him Thurgood. We became somewhat more
friendly after I left the SG’s office, and that’s another story too. Anyway,
he had a practice of having a special assistant who would help brief him
for preparing for oral arguments and help him actually write out oral
arguments, something that I always discouraged courtroom advocates
from doing. But many of the cases that he had to argue were not cases
that were normally in his wheelhouse. The solicitor general then, as
perhaps now, had to stand up to represent the government in a variety of
cases, which might be tax cases or regulatory cases or Indian rights cases
or whatever that had nothing to do with the normal run of civil rights, civil
liberties cases for which Judge Thurgood Marshall was properly famed. So
he wanted the security of knowing what he wanted to say by writing it out
and sometimes actually reading it. Again, that was a very different era.
Today, a lawyer just stands up and introduces himself or herself and says
I’m here to support the judgment or oppose the judgment, okay now ask
me all your questions. It was not unusual back in those decades for a
lawyer to get to deliver almost an entire prepared address, if that’s what
the lawyer wanted to do, and perhaps get an occasional question or two
which would then allow the lawyer to go back to making whatever
argument had been prepared. So that was what he was looking for. He was
such an engaging, gregarious fellow and had such a notable reputation that
it just seemed to me to be an opportunity that could not be missed, even
though I had no notion that I was ever going to be a Supreme Court lawyer58
because the job for which I was hired was not expected to be that of a
Supreme Court lawyer, just to be that of Thurgood Marshall’s special
assistant, kind of a factotum and general aide de camp. Another fortuitous
development took place when he was succeeded, and the incoming
solicitor general didn’t realize that I was just supposed to be a gopher and
started assigning me cases to argue even before I was eligible to become a
member of the Supreme Court bar, but that’s another story too. And I got
the best office in the place.
MS. JOHNSON: Let’s go back a bit. I’m excited about that. You show up for the interview
with Judge Marshall. It was in his office at the Justice Department?
MR. LACOVARA: Yes.
MS. JOHNSON: He was a figure of great renown already. Had you followed closely his
arguments and his position or place in the law?
MR. LACOVARA: Sure. I mean everybody knew Thurgood Marshall at the time, so he was
already a legend in the legal profession. You did not have to be a civil
rights advocate or somebody who was marching for civil rights to know
that the legal developments in the whole field of equal rights over the prior
thirty years largely revolved around Thurgood Marshall and one of the
other judges on the D.C. Circuit, Spotswood Robinson, a former Dean at
Howard Law School. You knew that there were some figures who were
luminaries and were likely to wind up on postage stamps at some point
because of their central role in American history. Marshall was obviously59
in that category, that select category of people who personally made
history, changed history.
MS. JOHNSON: I’ve heard so many stories about what a storyteller he was, but in those
first days and weeks, was he an imposing guy, or was he a guy who was
delighted to tell legal war stories and joke and laugh?
MR. LACOVARA: He loved telling war stories. He was a big bear of a man, and I am rather
modest in stature, so we were almost Mutt and Jeff when we were
standing next to each other. It wasn’t the most efficient way of operating
because almost anything that came up generated some anecdote, and they
were always interesting, talking about his experiences in the South, of
course, at some point trying to get from one town to another in the South,
occasionally having to ride in the trunk just so that he wasn’t so obvious.
There were lots of anecdotes, and it was an exciting period. Shortly after I
got there, he was nominated for the Supreme Court so that kind of
changed the working arrangement because he was very careful about
which cases he was getting ready to argue while he was preparing for his
hearings and then ultimately getting confirmed and heading off to the
court. We did remain, it would be presumptuous to say that we remained
friends, but we saw each other. Cissy, his wife who recently died, was
somebody whom I kept in touch with over the years before and after he
died.
I remember when I was chairing the section of what was then
called Section of Individual Rights of the American Bar Association back60
in the 1990s, we decided that we wanted to create an award for somebody
who’d made a valuable contribution in the field of civil rights and civil
liberties, and the council decided not surprisingly that what could be a
better type of award than be an award named for Thurgood Marshall. It
would be unacceptable to do that without getting his consent so I was
deputized to call him up and say Judge, we’d like to do this. Would you be
willing to allow us to use your name for an award to recognize other
people who are following in your footsteps pushing civil rights forward.
And, of course, it was understood this was not going to be easy lift. He
had no use for the ABA, because when he got out of law school, the
American Bar Association did not accept negroes or colored lawyers, and
so the initial hurdle was saying that he ought to do anything that involved
advancing what would be seen as the good name of the American Bar
Association by allowing the American Bar Association to have an award
named for Thurgood Marshall. He finally relented. He almost put it in
personal terms. Well since you’re asking me, I guess I’ll say okay. I said
well, Judge, I’ve got one more request. Would you be willing to be the
inaugural recipient of this award, and he burst out laughing. He said I
knew there was going to be a catch, and he said yes, I’ll do it.
He went out to the ABA meeting in San Francisco. By this time, he
was in a wheelchair. He came out with his son, who was in the marshal’s
service, and Cissy. They were on the dais, and one of my favorite pictures
is of him looking quizzically at the award that we created for Thurgood61
Marshall, which is a crystal sculpture. It looks a little bit like a vase. Cissy
is looking at it, and she understands how lovely this is, and he’s looking at
it as if what the heck is that. It doesn’t look like an Academy Award or a
plaque. That’s a piece of crystal. But she told me that the last time he left
Washington was coming out to San Francisco to be the inaugural recipient
of the Thurgood Marshall Award of the American Bar Association.
So I bring that up only to suggest that although we worked together
only briefly, we kept in touch over the years. There were other incidents
which I won’t go into that illustrated how fond I was of him as not only a
historical figure but as a man whom I admired.
MS. JOHNSON: Did you play any role in helping prepare him for confirmation hearings or
the like?
MR. LACOVARA: A little bit, but even then, before Bork, confirmation hearings were
basically perfunctory. I don’t remember what the vote was. The
controversies were largely played out in the newspapers or just in votes.
That is, if you were a right-wing southern racist, you might vote against
Thurgood Marshall, but there was not the kind of effort at a hearing of the
sort that we’ve seen with most nominees since Robert Bork to try to
humiliate the person whom you didn’t want to see on the Supreme Court.
That was not the style. So there really wasn’t much in the way of
preparation needed for his confirmation hearings.
MS. JOHNSON: Thank you for explaining that. That’s great history for me. I want to begin
to discuss the next occupant of the SG job and how your role changed and62
then maybe break and then we can pick up from there with the next
chapter which will include some of your Supreme Court arguments, some
of which I will listen to between now and then, and this fantabulous idea
that you had a badge and a radio in New York City, and move into the
Nixon era if that sounds okay to you. Is that a good game plan?
MR. LACOVARA: Sounds like a good plan to me.
MS. JOHNSON: Okay. Terrific. Tell me a little bit about your relationship with the next
occupant of the SG’s job and the kinds of things you all of a sudden were
able to do that you were not hired to do.
MR. LACOVARA: That was the interesting transition from Thurgood Marshall, who was a
raconteur, loved telling stories, loved just paling around with the guys, to
Erwin Griswold, Dean of the Harvard Law School, known affectionately
as “the Dean” and nothing else. No one would have called him Erwin,
even though he was not a former judge or anything of that sort. Even
though we were his colleagues in the office, he was always identified as
and spoken to directly as Dean or referred to as the Dean. He came in with
a history that helped to shape his attitude toward the office and that
benefited me. He had been in the Solicitor General’s Office in the late
1920s and early 1930s at a time when the office was I think essentially an
outgrowth of Harvard Law School, or The Harvard Law School, as he
would prefer to it. It was a small office then, as it was when I was there
later on in both occasions, and it was viewed as the absolute apogee of law
practice and the apex of the legal regime of the federal government. So the63
Dean came in with this background that anybody who was in the SG’s
office was presumptively the best and the brightest from Harvard Law
School and only people who were accomplished brief writers and oral
advocates.
We had our first introductory lunch. The Dean was a member of
the Smithsonian Associates, I think it was, and so when we had joint
lunches, we walked over to the old castle which had a dining room
available for members. In order to get acquainted with us, the Dean had us
seated around a round table and asked us to introduce ourselves and
identify our law schools. I think at the time there was only one of us from
Harvard. We had Dick Posner, John Martin, Frank Beatty, Harris
Weinstein, Bob Rifkin, people like that. Rifkin might have gone to
Harvard. So we went around and the introductions. Columbia, Columbia,
Michigan, Columbia, Columbia. I was Columbia, and then Louis
Claiborne, the great Louis Fenner Claiborne. Louis was the third assistant.
He was in charge of civil rights cases for the most part, and he clerked for
Skelly Wright on the District Court in Louisiana. Louis said Tulane, and
the Dean, not intending to be humorous, said Ah, the Alpha and the
Omega, and Louis shot back saying, which is which, Dean? And it went
downhill from there. They never got along together. Louis ultimately went
to England where he became first a solicitor then a barrister. He was one
of the smoothest oral advocates I ever saw. He had a very deep Louisiana64
accent, very comfortable before the court. I don’t know whether you ever
encountered him or heard of him.
Just to get to my situation, as I mentioned, the Dean’s experience
was anybody who was there had been selected to be a Supreme Court
advocate purely by virtue of the geography of the office layout. The
solicitor general’s suite consists, I assume it still does, of a huge common
reception area, a beautiful reception area with several desks for secretaries,
all women of course at the time. At one end was the solicitor general’s
office, and at the opposite end was the office for his assistant, namely me
at the time, and my office was by far the grandest of any of the offices
available to any of the other assistants. At that point there were no
deputies. There was a first assistant, a second assistant, a third assistant,
and the undifferentiated assistants. And legally my title was simply
assistant even though I was functionally the special assistant to Marshall.
My office was larger than anyone else’s, had a very high ceiling, had its
own washroom, and was paneled, unlike any of the others which were
standard government issued offices. I had a big wooden desk. I had a
conference table. The Dean, when he walked in and saw this, figured wow,
Lacovara must be somebody important. At least, he’s here, he’s got this
big office, so he must be somebody notable. To compress the two years
plus that I worked there with him, he began assigning me oral arguments
to present in cases where I had worked on the briefs. Keep in mind that
this is 1967, 1968, so I’m 24 years old, not yet eligible to become a65
member of the Supreme Court bar because you have to be admitted to
practice for three years. I had just gotten admitted the year before. It’s a
state bar in New York. The first time I got the assignment slip from his
secretary with the case name on it, you’re assigned to present oral
argument for the United States, I went in to see him. I said Dean, you
know I’m not a member of the Supreme Court bar yet. He said well
prepare a motion to file to appear pro hac vice.
So my first three cases I had to get special leave of court to appear
for the United States because I simply wasn’t old enough or experienced
enough technically to present the arguments, but I did well enough so that
he kept assigning me cases.
And then just to fast forward, I left in 1969, went to New York to
work in a law firm, decided that was really not where I wanted to be then.
I was too big for my britches and thought that being a young associate was
not for me when I’d been a hotshot Supreme Court lawyer, so I then went
to work in the NYPD. I was in the NYPD when Griswold did two things
to show, I guess, what our relationship was. Actually, two things. When I
was back in private practice, before I went to the NYPD, he asked if I
could develop the brief for the United States on the constitutionality of
capital punishment. The Supreme Court had taken a couple of cases to
decide the constitutionality of the death penalty. He said it was an
important enough issue that he thought the United States should file an
amicus curia brief, and he wanted it to be as good as possible. I said what66
position do you want to take, and he said I don’t know. Do research and
then write up what you think is the right outcome, and we’ll talk about it.
So I asked my firm if they would allow me to do this because it was going
to take months of work as it did, and they gave me permission to do this,
and I was appointed technically “special assistant to the attorney general,”
which is simply a way of having a consultant. So I spent a lot of time in
dusty old libraries and drafted a 120-page brief, this is before the court
imposed page limits and submitted it to the Dean. He said that sounds
right to me, and that became the brief for the United States in the first two
death penalty cases.
And then I went to the NYPD, and that was where I was when he
called and said, would you be willing to come back to the Solicitor
General’s Office. By this time, they created the title deputy solicitor
general in charge of criminal and national security cases. I asked my wife,
are you willing to pick up stakes again, and being perennially a good
sport, she said okay, let’s go, and back to Washington we went in June of
1972, shortly before the Watergate break-in.
MS. JOHNSON: That is a good place to end for the day, but it raises many questions in my
mind for the next time, and until we meet again, are there early arguments
you made before the court that I should listen to before we next meet. Or
maybe I should read the death penalty brief?
MR. LACOVARA: That’s a case called McGautha versus California. I think it was a terrific
piece of analysis. The initial issue that they had was does it violate due67
process to allow juries to exercise standardless discretion. The position
that I developed was based on the historical development of that practice
which was viewed as the amelioration of what had been the virtually
inevitable imposition of death upon anybody convicted of felony. So going
back to the 1790s I think it was in Pennsylvania. And boy those were
musty stacks that I had to wander through to find all of this. The idea of
giving juries discretion to spare a life was viewed as tremendous reform in
criminal law. So the McGautha brief is an interesting one.
My first case, as is always the tradition a pretty clear winner, is the
racketeering case the United States versus Nardello. The one that was
more interesting was one of a back-to-back pair of cases. Leary, this is the
Timothy Leary of LSD, and the companion case that I argued. John
Martin, who has been a friend of mine since the SG’s office, later US
attorney in New York and a federal district judge, co-argued the cases.
Leary involved the constitutionality of the Federal Heroin Control Statute,
and I did the Federal Marijuana Control Statute, and the issue is whether
or not they violated the Fifth Amendment privilege against self-
incrimination. Because of doubts about Congress’s power to regulate these
things under the Commerce Clause, the issue was approached by imposing
taxes on all narcotics transactions. You had to pay a tax on transactions in
hard drugs or marijuana and you had to apply to the Treasury Department
to get a certificate that you had paid the tax. Somewhere around, I’ve got
these beautifully engraved certificates with marijuana leaves on them,68
different colors for the different participants in the transaction. John did
the heroin case, and I did the marijuana case, and we tried to develop an
argument that it didn’t violate the privilege against self-incrimination to
require people to come forward to say they are going to be engaging in
transactions that were illegal under state law. I think we lost eight or nine
to nothing in those cases. But if you want to listen to some arguments, that
could be a fun one just to hear what we were trying to do and hear the
relatively few skeptical questions that we got in what we predicted was
going to be an aimless exercise.
MS. JOHNSON: Fascinating. I will read that brief, and I will listen to that oral argument
before we next meet.