1
Oral History of Judge Stephen F. Williams
Session 1
November 18, 2007
Mr. Nuechterlein: Hello, this is Jon Nuechterlein. I am a partner at WilmerHale, it is
November 18, 2007, and we are here with Stephen Fain Williams to
begin his oral history for the D.C. Circuit Oral History Project. For the
sake of full disclosure, I have known Judge Williams for many years. In
fact, I clerked for him — first, as a summer clerk, back in 1988 (we
worked together on his cases in an office at the University of Colorado in
Boulder), and I went to work for him as a bona fide clerk in 1990-1991.
So I have heard some of these stories, but I have not heard them all. I am
looking forward to hearing more.
For this first installment, we are going to talk about the Judge’s
background. So, Judge, it would probably make sense for you to tell us a
little about your parents and grandparents. We have the outline that the
oral history people have provided to us, and one of their questions is when
your ancestors arrived in the United States. I am not even sure if I could
answer that question for myself, but do you have any insights?
Judge Williams: Everybody has a lot of ancestors, as you go up the family tree. They arrived
in a range of times from the early 17th century to maybe the mid-
19th century and probably after.
Mr. Nuechterlein: Do you have any Mayflower ancestors?
Judge Williams: I do.
Mr. Nuechterlein: Do you know their names?
Judge Williams: One was Richard Warren, who apparently is responsible for about
12 million American progeny (I’m not sure if that’s cumulative or presentday).
It sounds like a lot, but if you imagine someone who had ten
children, each of whom had ten children, with an average gap of 25 years
between generations, you’ll see that since 1620 you would reach a current
number of descendants far above 12 million. Of course Warren and his
progeny were nowhere near so prolific, so there are only 12 million.
There’s also another Mayflower forbearer, Thomas Rogers, who didn’t
lead to so many descendants; I don’t have any figures on him.
Of course many of my ancestors were thrown out of countries or found
life uncomfortable in the countries where they were.
Mr. Nuechterlein: For religious reasons?
Judge Williams: Yes — well, at least some. Some were Huguenots who were thrown out of
France as a result of the revocation of the Edict of Nantes in 1685. I don’t
2
think they made their way — in fact, I am reasonably sure they didn’t
make their way — straight to the US, but proceeded instead through some
intermediate countries, and at least one of the original exiles or his or her
child proved to be an ancestor [who came to America]. I think the ancestor
to arrive most recently was a great-grandfather who was starving in
Ireland as a result of one of the potato famines and came to Texas, and he
played an important role in my mother’s background. I should say that
both of my grandfathers were lawyers, although I don’t think my mother’s
father did much practice.1
Mr. Nuechterlein: Did you know them?
Judge Williams: I didn’t know my father’s father at all; he died nearly 20 years before I
was born. But I knew my mother’s father.
Mr. Nuechterlein: He was a lawyer?
Judge Williams: Yes, he was a lawyer, although not very active as a lawyer.
Mr. Nuechterlein: This was a Fain?
Judge Williams: Yes, this was William Hugh Fain.
Mr. Nuechterlein: Where did he live?
Judge Williams: He and his family lived in Greenwich, although in an early period in my
mother’s growing up, they used to go to Houston, Texas, where her
grandfather lived. I think they went every winter — just why, I am not
sure. Anyway they did.
Mr. Nuechterlein: So this is a little bit of a Horatio Alger story: the family went from the
potato famines of Ireland to Greenwich, Connecticut in several
generations.
Judge Williams: Yes — I suppose really two — the great-grandfather comes over, and his
daughter is soon living in comfort in Greenwich.
Mr. Nuechterlein: So tell us a little about your parents themselves. We can start with your
mother.2
Judge Williams: OK. She was born in 1907 in the city of New York but was brought up in
Greenwich and went to Rosemary — as it then was, now Choate
1 Judge Williams added this note to the transcript: “Jon—it might be fun to put in somewhere around here reference to
my ancestors who left Scotland after an itinerant preacher persuaded everyone in my ancestors’ town to take a no-alcohol
pledge. Only one couple, my ancestors, stuck to it. Apparently because the other townsfolk thought they were holier-thanthou,
they left, and they or descendants made their way to America.”
2 Virginia Fain Williams.
3
Rosemary Hall — and then to Bryn Mawr. And after Bryn Mawr, she
moved to New York and got a job in the office of an architect, William
Lescaze, who at one time was fairly well known and among architects is
still well known. But she dropped that when she got married. And I think
that was probably a pity. It probably was a result of some sort of notion
that married women should be in the home rather than off at work.
Mr. Nuechterlein: What is the date range that we are talking about here?
Judge Williams: They were married September 6, 1930. And I think it was just between
college and marriage that she worked for Lescaze. And I remember
hanging on one of the walls of our summer house in Norfolk, Connecticut
was a sketch of a building for an elderly invalid, imaginary as far as I
know, which looked quite charming. It was very modern. It clearly
presupposed that this elderly invalid had a lot of people helping, because
she was out in the countryside, and how she was going to get anything to
eat or see anybody would have to depend on quite a few people helping
her. I thought about it wistfully in comparison to the retirement
communities most people end up in nowadays. I remember that my mother
mentioned that most of the work at Lescaze’s wasn’t very glamorous — at
least some if it was working out the exact details of closets in some houses
that he was designing.
Mr. Nuechterlein: When did your mother meet your father?3
Judge Williams: They married in September, and they met about 6-8 months before.
Something like that.
Mr. Nuechterlein: What year?
Judge Williams: 1929 or ‘30. They met at a dinner party, and they both agreed that the host
of the dinner party, who was a relative of my father’s, was perhaps the
most boring person either of them had ever met. And my mother took
from it that sometimes good things can come from going to a boring party.
Mr. Nuechterlein: It makes the guests talk to each other.
Judge Williams: [Laughter.]
Mr. Nuechterlein: And so they got married several months later.
Judge Williams: There weren’t long engagements in that era.
Mr. Nuechterlein: And you are one of how many children?
3 C. Dickerman Williams.
4
Judge Williams: One of three. I am the youngest, with two older sisters.
Mr. Nuechterlein: Do you want to say a few words about that?
Judge Williams: Sure. My older sister Joan went to Putney School in Vermont and then to
Radcliffe. She wanted to go to an art school after college, but my parents
didn’t feel that subsidizing that was a good venture. And I remember her
talking about whether she should learn how to type. She very determinedly
decided not to. She was concerned that anywhere she got a job would slide
her into typing, and she would never emerge, and that would be the end of
it. In fact, I just met someone at dinner a few nights ago who did learn
typing, started out typing at McKinsey and Company and rose, not to be a
consultant, but to an administrative post there.
So my sister’s calculations weren’t 100% right, but it worked for her
because she somehow or other got into investment analysis and became
very, very good at it. She founded the Young Women’s Investment
Association — that was the name at its founding, but since then it has
undergone a name change [to Financial Women’s Association of New
York] and is now a huge organization. And she just retired from the Bank
of New York as an investment analyst.
Mr. Nuechterlein: What is her name again?
Judge Williams: Joan Farr. And my next older sister is Honor, who had a radically different
career. She went to Radcliffe, and before that she also went to Putney, and
while she was there, Putney had a teachers’ strike. In fact, both of them
were there at the time of the teachers’ strike. Just terribly
discombobulating to the school. And I think it was in the middle of my
sister Joan’s last year, so she just finished up. But my sister Honor went to
Chapin School for a couple of years, which at least in part overlapped with
my father’s being Solicitor (as it was so called and perhaps still is) at the
Department of Commerce, so he and my mother were living in
Washington.
Anyway, Chapin and then Radcliffe, and there she took what proved to be
an important course for her. It was Professor Reischauer’s course, which
was generally known at Harvard as Rice Paddies. It had a more formal
title such as History of Far Eastern Civilization or something like that. She
became quite obsessed, and then she took an intensive course in Japanese,
and she did very badly. I remember her saying she got a “DD” because it
was two courses; and she felt that even the “D” had been a charitable
grade.
But she remained interested enough so that, upon graduation in 1956, she
set out for Japan with a job at a college there teaching English. She didn’t
continue to teach at that college, but she remained in Tokyo for the rest of
5
her life up to now. She married a Japanese man, from whom she is
separated now, and has two daughters, both of whom live in the US.
Mr. Nuechterlein: You mentioned your father’s work at the Department of Commerce, and
since he was a well-known lawyer in his own right, I was wondering if
you could say a few words about his legal career.
Judge Williams: Sure. He clerked for Chief Justice Taft…
Mr. Nuechterlein: Was that right out of law school?
Judge Williams: Yes, right out of law school.
Mr. Nuechterlein: What law school did he go to?
Judge Williams: Yale. He was Chairman of the Law Journal. Then, when he was done
clerking for Taft, he went right into the U.S. Attorney’s office in New
York. He spoke with a little irritation of it later. He was assigned to the
Criminal Division and particularly prosecuted bootleggers, so he knew
criminal procedure very well. I do remember his saying that, as a
prosecutor of bootleggers, it was important for him not to drink liquor
during Prohibition (although I think he went to a huge number of parties
where there was a great deal of liquor). That seemed to be the honorable
thing.
To return to the irritation, which I think was mild but real: while others
were developing skills more immediately useful in a general civil
litigation practice, his concentration on bootleggers wasn’t so completely
transferable.
Then he was in private practice after that.
Mr. Nuechterlein: What firm, do you remember? Was it in New York?
Judge Williams: Definitely in New York — except for fairly brief stints in Washington, his
whole legal career was in New York. He was in Breed, Abbott & Morgan,
but I am not sure whether that was before or after he was General Counsel
of the American Locomotive Company. I think before. And then he
became General Counsel of the American Locomotive Company, and
then, in the last two years of the Truman Administration, he was Solicitor
of the Department of Commerce.
Mr. Nuechterlein: Was he a Republican or Democrat?
Judge Williams: He was definitely a Republican.
Mr. Nuechterlein: But he had a job in the Truman Administration?
6
Judge Williams: Yes, but at least as he described it to me, the Department of Commerce
was a small enclave of conservatives in the Truman Administration. He
was a great admirer of Charles Sawyer, an Ohio Democrat who was
Secretary of Commerce, and they got on very well I think. As to things
that he did, the Steel Seizure Case was obviously highly political, but a lot
of stuff they did was — like, in a sense, most of the stuff I do — largely
apolitical, where the principal job was being sure that the Department
acted within the law — just like my job.
Actually, in his papers, I came across a memento of those years. A big
thing he did was to settle the dispute over the Dollar Line, a dispute that
generated a case called Land v. Dollar,4 a big case on sovereign immunity.
I think that was decided … just before he started at the Department of
Commerce. Anyway, it was a huge litigation that went on and on, and he
did settle it. And I have in his files a picture of him giving or receiving, I
honestly don’t remember which, a check for a million dollars that was part
of the ultimate settlement. I recall, in connection with that, he flew out to
San Francisco a couple of times, and that seemed to me, a kid in his teens
in the early 50’s, a terribly dramatic thing to do. [Laughter.]
I think at that time I had been on a plane once when we went to look at
boarding schools. We went up to Boston by plane, and I was to look at
Exeter. That was certainly the first time I had ever been in a plane, and we
did very little travel, so I think it held the record (for me) for a long long
time.
Mr. Nuechterlein: What did your father do after the Truman Administration?
Judge Williams: After the Truman Administration, he started a small law firm with others;
it had various names, but most of the time it was McClay, Morgan, and
Williams.5 They did a lot of maritime things, which I think is something
he picked up in the Department of Commerce, because it has (or had) the
Federal Maritime Commission. We occasionally review their decisions
from time to time. In any event, it certainly gave him exposure to maritime
law that I don’t believe he had before at all.
I tend to regard as the high point in his career the [Oksana} Kasenkina
case. She was a teacher with the school that the Soviets maintained in New
York for the children of workers at the Soviet Mission at the UN and the
consulate in New York. She decided she wanted to break away from
Soviet control. But they caught on to this, and their goons picked her up
4 330 U.S. 371 (1947).
5 May be a transcription error; Dickerman Williams’ New York Times obituary identified the firm as Baker, Nelson &
Williams.
7
and took her to the Soviet Mission in Manhattan, a building just off Park
Avenue in the high 60s.
Word got out about it, and my father had the idea of using the writ of
habeas corpus to get her out. As you know, it is an ancient writ designed
to challenge the custody of someone, so this suit was filed on her behalf. It
didn’t do any legal good, but it received some publicity because the
factual background was exceptional. I don’t know if the New York
newspapers were particularly interested in the innovative use of the writ,
probably not, but as a result of the publicity, a throng of reporters gathered
on the sidewalk by the building. She was on the 4th floor and saw them,
and she jumped out of the window.
She wouldn’t have done that without the crowd, because the Soviets
would have just scooped her up and taken her back. She did survive, and
the newspaper men protected her from the Soviet agents. She wrote a book
about it.
Mr. Nuechterlein: So you father practiced for many years in this firm?
Judge Williams: Yes, from the end of the Truman Administration to his retirement, which
was a gradual thing — he let his work taper off — sometime in the late
70s.
Mr. Nuechterlein: I was fortunate enough to meet your father in 1988. He was in his 90s then
–
Judge Williams: If it was the summer of ‘88 he would have been on the verge of being 88.
Mr. Nuechterlein: And he lived to be how old?
Judge Williams: Lived to be 97, very nearly 98.
Mr. Nuechterlein: What can you tell us about his political views? Would you say he was a
mainstream Republican?
Judge Williams: He certainly was a Republican, and probably what was the Republican
mainstream at that time. He was very into economics, but he definitely
was soft on protectionism — both the two major kinds. One is tariff
protectionism, and the other is regulation of, for example, trucking, which
is now seen as having worked entirely for the purpose of protecting
trucking firms and trucking labor and of course has now been done away
with. This protectionist inclination may have come from the time he was
at the Commerce Department, which was pro-business.
Mr. Nuechterlein: When I think of the Republican Party from the first two thirds of the
20th century, I think of a business orientation.
8
Judge Williams: He had considerable understanding of markets, but he was more probusiness
than pro-market. He was also, as the Kasenkina story suggests,
very anti-communist. I once asked him when that started, and he
mentioned that when the Bolsheviks took over he was kind of agnostic —
“this is an interesting idea if it works.” I am sure there was a gradual
awakening process, but what really turned the lights on was a set of
articles by Eugene Lyons … called Assignment in Utopia. It was a series
of articles about what Lyons found when he went to the Soviet Union.
Unlike a lot of other people who went there in the 30s, he got it right. The
articles locked my father in on the viewpoint that I don’t think anyone
now questions.
Mr. Nuechterlein: How did he feel about the New Deal?
Judge Williams: Well, he wasn’t one of the people who called Roosevelt “that man.” I
remember discussing minimum wage laws with him; he found it odd that
farmers resisted the minimum wage, because on the family farm, using
family members, labor wouldn’t be paid at all. Because their nonfamily
competitors would be paying the minimum wage, among farmers it would
be advantageous for the family farmers.
And for farmers as a whole, it probably would have made little difference,
because their competition was other U.S. farmers, and the minimum wage
would raise all their costs and prices. So there would be little harm —
always on the assumption that foreign competition wasn’t a big deal.
Which was probably pretty much true in that era.
Mr. Nuechterlein: Do you remember your parents having political discussions?
Judge Williams: Certainly, by the time I knew them, they were roughly on the same page.
My aunt used to recall a moment in the mid-20s — she and my mother
were lying on a beach in Bermuda, and my mother turned to her and said,
“Well, I think I am really a socialist.”
But certainly by the time I knew her she wasn’t a socialist at all. They
were both out of the current Republican mainstream — they would be
classified as social liberals. Their very best friend was very active in
Planned Parenthood, and they were staunch proponents of the right to have
abortions. Although certainly, as a lawyer, my father thought Roe v. Wade
had absolutely no constitutional basis, he definitely liked the policy — if
he had been a legislator, that is what he would have voted for.
Mr. Nuechterlein: Had they ever identified themselves as libertarians?
Judge Williams: I don’t think so. The Libertarian party, if it existed at all, wasn’t yet wellknown,
but certainly you could line up quite a few of their positions as
9
libertarian, except for my father’s sympathy for various kinds of
protectionism.
Mr. Nuechterlein: You mentioned during our break that there was something about your
mother that you wanted to talk about.
Judge Williams: She was a very bright and talented woman, but what I wanted to mention
is that she had legal skills. There was a time when there was a meeting
about her mother’s estate in the offices of Sullivan and Cromwell in New
York — my mother, father, lawyers from Sullivan, and a lawyer from
Connecticut called Mr. Badger. Apparently after this meeting, the
associate and partner from Sullivan and Cromwell were walking down a
corridor, and the associate asked the partner, “Who do you think is the
better lawyer, Mrs. Williams or Mr. Badger?”
She cared a lot about words, which lawyers tend to, and she cared about
using them correctly. She was very good at Scrabble and anagrams,
crossword puzzles, which I am terrible at, and I am not much good at
Scrabble either. She was extremely verbal. We actually have some
paintings of hers in the house. She had a lot of skills.
Mr. Nuechterlein: Let’s move on to where you grew up. Am I correct that was Connecticut?
Judge Williams: No — I grew up in New York City. In the summers, we went to Norfolk,
Connecticut, but for 9-10 months of the year, we were in New York City.
Mr. Nuechterlein: Where?
Judge Williams: Upper East Side. I went first to some school — you may want to delete
this:6 One time when my father picked me up at the end of school, the
head of it said, “I would like to talk with you and Mrs. Williams about
Stephen’s development” — I was five at the time, maybe four. The time
was set up, and he came to my parents’ apartment, and he said, after a lot
of throat clearing, “I have to tell you that Stephen does not understand the
role of the father in the reproductive process.” I assume it was a pretty
progressive school — I have very little recollection of it. That is the high
event from it.
Then I went to Collegiate from first through third grades, and what I
remember mostly is … my sisters’ endless teasing me about it. There was
a report card that said that I was “mature in thought, immature in actions.”
Then I started the fourth grade at the Buckley School, which ran from K to
eighth grade, and then I went to Millbrook School for ninth through
6 Too charming to delete.
10
twelfth — Millbrook being a boarding school. About two hours north of
New York.
Mr. Nuechterlein: Tell us about those years in Millbrook. Did you enjoy them; did you learn
lots of things? Tell us about your classmates you kept in touch with.
Judge Williams: It was a very small school at the time, partly why I went there. When my
parents took me to Exeter, which was something like seven or eight times
as big, I remember feeling just overwhelmed by the number of people, so
at least I thought a small place would be more comfortable. I am not sure
whether that was really true. That played a role in my going there.
I was originally quite drawn by the zoo they had there, which had been
started by Frank Trevor. He had just driven up to the school with a station
wagon full of animals and talked to the headmaster, Mr. Pulling. And his
enthusiasm and intelligence were so great that Mr. Pulling gave him a job
on the spot, and he started a zoo, which has now become quite a huge
enterprise at Millbrook. …
In the end, I had very little contact with the zoo, and I didn’t enjoy
Trevor’s biology course very much. It seemed to me to be too much
focused on taxonomy — we were always classifying animals, which
didn’t seem to be very interesting. If there was stuff on evolution, which I
think I would have found fascinating, as I do now, I don’t recall it. There
was also looking at things through microscopes, amoebae, spirochetes and
so forth, and I remember having great difficulty finding what I was
supposed to be finding. I didn’t seem to have very much of a knack for
that. So, anyway, that aspect of Millbrook didn’t prove out very much for
me.
But I found it offered a lot of attention to individuals, and there were
challenging courses. I went into … an advanced Latin course on arrival,
and same thing for French. My first year I was taking classes in French
and Latin with people who were at least a year ahead of me. They
certainly made sure they tried to fit students into the right classes.
There was a class taught by Mr. Pulling on the Bible, and that really
focused on interesting stories and so forth. And there was chapel twice a
week, which included one reading from the Bible at the Thursday chapel
and two at the Sunday chapel. So that gave me good exposure to the Bible,
which simply seemed to be extraordinary, and may have had some effect
on my writing.
Mr. Nuechterlein: How about socially? What do you remember about the social milieu of the
New England boarding school back in those years? This being your first
time away from your family.
11
Judge Williams: In some aspects, Millbrook was less preppy than other prep schools. There
were people there that undoubtedly had loads and loads of money but you
didn’t see it. Obviously no one could have a car, nobody had a TV set,
there was no way someone could display wealth at Millbrook, so that was
a good thing. I was very shy.
Mr. Nuechterlein: Were you homesick when you first got there?
Judge Williams: Yes, I must have been. There were a very limited number of times you
could go home for weekends, which was probably a good thing. But I
found a niche of a sort. I never became a madly social being there. My
best friend was Tony Piel, whom I encountered later at law school. A very
bright, very talented person. …
Mr. Nuechterlein: You mentioned earlier that the Buckley brothers were at Millbrook — Bill
and Jim?
Judge Williams: Bill and Jim, plus two of their brothers whom I’ve never met, John and
Reid. This was of course before I got there; they had all graduated — I
didn’t overlap with them. When I think of the Buckleys at Millbrook and
myself at Millbrook, I do think of this anecdote involving Frank Trevor,
who . . . I guess was ardently pro intervention in World War II. He
certainly locked horns with Bill Buckley, who was an America Firster —
an organization that opposed intervention in World War II.
Mr. Nuechterlein: This is while Buckley was a high school student?
Judge Williams: Right. And I must have had some political disagreements with Trevor,
because I do remember another teacher reporting to me that Trevor had
said that “Williams is the most dangerous student here since William F.
Buckley.”
Mr. Nuechterlein: What do you think he meant by that?
Judge Williams: Well, (a) I had bad ideas, the way he saw them, and (b) he must have
thought I had some skill at presenting them; otherwise I wouldn’t have
been dangerous.
Mr. Nuechterlein: What sort of ideas or topics?
Judge Williams: That is a good question. This was the Eisenhower era — good feeling,
complacency, and so forth. … They probably were things having to do
with America’s international role. I can’t recall any specific clash with
Trevor on such things.
Mr. Nuechterlein: Do you recall ever focusing on domestic, economic, regulatory issues?
Judge Williams: I really don’t.
12
Mr. Nuechterlein: Were you exposed to economics in high school?
Judge Williams: No — high school was devoid of economics.
Mr. Nuechterlein: Latin instead.
Judge Williams: [Laughter.] Latin made us think, so that would be enough. I am jumping
ahead: I had my first economics course in my freshman year at Yale, and
it was at 8:00 am, and I was sort of an early riser, so that wasn’t so bad,
but I have to say that something about the teacher or whatever made it
terribly boring, although Yale had a good economics department. I never
took another economics course. In fact I never took another economics
course in my life.
Mr. Nuechterlein: I took exactly one economics course at Yale and had exactly the same
experience.
Judge Williams: Oh really?
Mr. Nuechterlein: Yes. You mentioned before we began here that your first job was pumping
gas?
Judge Williams: I worked in a gas station.
Mr. Nuechterlein: Do you remember which one?
Judge Williams: This was a gas station in Norfolk, Connecticut, where we went for the
summer, and it was probably the first summer I had a driver’s license, so I
would have become 16 the September before. I pumped gas, which wasn’t
rocket science obviously, and I tried to watch what the mechanics were
doing by way of repair. I can’t say that I picked up a great deal. I did learn
how to change a tire; I don’t mean just changing the wheel and tire, but
removing the tire from the wheel and replacing it. But you have to have
the equipment, so later in life it doesn’t do any good without the
equipment. At least I know what they are up to when I watch them doing it
in a garage.
Mr. Nuechterlein: When did you buy your first car?
Judge Williams: I think it was when I got to New York after law school, and after my
10 months in the Army.
Mr. Nuechterlein: Did you put a lot of thought into what you were going to buy?
Judge Williams: Well, I liked the idea of a convertible, and being in New York, I wanted
something easily parked, and I got a VW convertible. VW had a very good
reputation.
13
Mr. Nuechterlein: You are not still a car aficionado?
Judge Williams: No, I am really not.
Mr. Nuechterlein: So this is sort of an interesting summer job, given your background. You
had gone to an exclusive prep school, and you took a job pumping gas one
summer. Was this considered something that was good for you?
Judge Williams: I am sure my parents thought it was good for me. In exactly what ways, I
don’t know. They knew I was very interested in cars – it was a natural
thing.
Mr. Nuechterlein: I think I remember the first President Bush spent some of his summers
bailing hay out in the West because that was considered good for the
character.
Judge Williams: Yes. When I was small, the farm we lived on was a working farm — not
worked by my parents, but it was a working farm. One summer I was a
farmer helper in a serious sort of way, getting up at 6 a.m. or before to
milk the cows. And being with the farmer and his main helper on all the
stuff they were doing, I got a real exposure to farm life.
Actually, that reminds me that Millbrook has put out a 75th Anniversary
CD. And in the course of it, they interview lots of graduates, not including
me. They interview actually both Bill and Jim Buckley, and Bill talks on
the CD about his brief period of involvement with the Millbrook zoo, and
says that it gave him a lifelong dislike for all things agricultural. I will say
that my time on the farm made me not want to become a farmer.
Mr. Nuechterlein: This was your parents’ farm?
Judge Williams: Yes, my parents’ farm.
Mr. Nuechterlein: What sort of salary did you make at the gas station?
Judge Williams: I am sure it was minimum wage.
Mr. Nuechterlein: What would that have been?
Judge Williams: $1 an hour? Very, very small. But it presented a tax situation. If my
income, or perhaps my earned income, rose above $500, then I had to file
a tax return. I can’t believe the tax rate was very high, but my parents
wanted me to continue working, and they wanted me to have an incentive
to work. They didn’t want me to receive more taxable income, so after I
hit $500 they paid me.
Mr. Nuechterlein: I’m sure the gas station appreciated that.
14
Judge Williams: So clearly my parents weren’t interested in boosting the family income.
Mr. Nuechterlein: You graduated from Millbrook and went to Yale. What was the college
admission process like then? Was it highly competitive to get into Yale?
Had your father gone there for college and law school?
Judge Williams: Yes he did. It was obviously much less competitive than it is now. I really
can’t say what position I would be in if what is happening in 2007 had
prevailed in 1954. I sailed in.
Mr. Nuechterlein: Did you apply anywhere else as a safety school, or did you apply, get the
answer back that, yes you were admitted, so you didn’t need to apply
anywhere else?
Judge Williams: I did apply to Haverford, but it wasn’t really as a safety. Again the
yearning for the small was at work, and so I did apply to Haverford. I
assume I got in, but more relevantly I got into Yale. The college adviser at
Millbrook told my parents, “Steve can write his own ticket.” He felt
confident I could get into anyplace.
Mr. Nuechterlein: I went to Yale, just for the record. Did they have residential colleges then?
Judge Williams: Oh yes — I was in Pierson. They all had some number of residential
seminars, and I remember I took an English seminar with Joel Dorius, who
I thought was a really good teacher. … He helped me see things in what
we were reading that I would have never seen.
Mr. Nuechterlein: What did you major in?
Judge Williams: History. I remember another teacher … — L. Pearce Williams, whose
specialty was the history of science. He didn’t teach the main European
history course, but they had “sections.” Once a week, a small group of
people — 20 or so — would meet. … There was a separate book for that
part of the course, which had problems and was supposed to teach you
how to reason from the raw material of history. And he was just
extraordinarily lively and came up with comparisons that made things
understandable and vivid, which on the whole they weren’t in the main
lectures.
Mr. Nuechterlein: Did you write a senior thesis?
Judge Williams: I did — I wrote on the Hoover Moratorium. Very few people know of the
Hoover Moratorium now, but a continual problem from the end of World
War I until the Hoover Moratorium in 1931 … was the failure of the
Germans to pay reparations, and the failure of the European allies to pay
their wartime debts to the U.S. There were successive reductions under the
Young Plan and the Dawes Plan, and finally, once the Depression got
underway, it obviously became still more difficult for them to pay. The
15
Hoover Moratorium was a moratorium on the payments across the board,
Germans to the Allies, and the Allies to us. It was done in the hopes of
rescuing the European economies from the Depression. Obviously in some
sense it was completely inevitable, but it was a good thing that the world’s
principal creditor called a halt to it semivoluntarily.
That made it a less
contentious problem than it would have been if we had kept on trying to
collect the debts. Of course moratorium means just delay. But as it proved,
it wasn’t just a delay; it was the end.
Mr. Nuechterlein: Who was your thesis advisor?
Judge Williams: I forget — it wasn’t a very hands-on giving of advice.
Mr. Nuechterlein: Do you ever remember thinking “Oh, I wrote this interesting paper, maybe
I should get it published?”
Judge Williams: I really didn’t — no.
Mr. Nuechterlein: That is one of the odd things about college — people are constantly
writing these papers that only one other person will probably ever read.
Judge Williams: I am sure I sensed that it wasn’t good enough. Whether it could have been
turned into something good enough, perhaps by the help of some shoving
by a teacher, I don’t know.
Mr. Nuechterlein: … I am thinking about William Buckley and his book God and Man at
Yale and … about current President Bush’s view of Yale in the late ’60s
when he was there. And I am wondering whether you perceived a
particular ideological environment at Yale. Did you feel estranged at all
from the other students, or did you feel you were more in the mainstream
of the Yale students’ worldview at that time?
Judge Williams: I was probably in the mainstream. A very central event of it — almost the
exact chronological center of my time at Yale — was the Hungarian
Revolt of 1956. Everyone was on the side of the Hungarians. If we were to
construct a parallel today, I’m not sure if that would be true.
Mr. Nuechterlein: So, Judge, tell us a little about the Yale Political Union when you were a
student there in the ’50s.
Judge Williams: Well, it was modeled on the Oxford Union idea that students could hone
their skills as debaters. There was a right-wing party called the Party of the
Right, and a leftwing
party, I don’t know how it was labeled. And each of
them in my time had one incredibly articulate … outstanding spokesman
(they were men, as were all students at Yale at the time). For the Party of
the Right, it was Richard Arnold, who later became a judge of the Eighth
Circuit. You mentioned, while we were talking, “Wasn’t he a Democrat?”
Well, yes, he was a Democrat, but I remember a conversation with him —
16
I don’t know if it was at Yale or a later, at law school or even beyond —
in which he said, “A liberal Republican is the worst thing because it is
against nature.” You might say the same of a conservative Democrat. But
he probably didn’t feel that was against nature.
He certainly showed at Yale the brilliance that he later showed. I can’t
remember particular lines of his but he was definitely very eloquent. Then
on the left there was André Schiffrin, who later went into a very
distinguished career in publishing, being director of publishing at
Pantheon for decades. He also was very eloquent. I do remember a line of
his — well, I am not going to get it quite right — but it was basically how
the Republicans are always criticizing the Democrats for giving away
countries the U.S. doesn’t have. That must have had to do at least in part
with China.
Mr. Nuechterlein: Do you remember debates at the time about economic policy?
Judge Williams: There must have been debates about tax policy, but I honestly don’t
remember them. I think it is fair to say that today a debate about
economics would be carried on at a more sophisticated level than it would
have been then. … I also remember — and this may say something about
Yale in that era — I think it was André Schiffrin who was very critical of
the course on Marxism, and I remember him saying it was just an attempt
to inoculate the students.
Mr. Nuechterlein: Did you have any Marxist professors?
Judge Williams: Not that I know of. If there were, they kept it in the closet. The course on
Marxism took us through the great Marxist writers, but of course it also
took us into the uses of Marxism by Leninists and Stalinists and Third
World dictators who assumed power and then justified their one-party rule
with Marxist theory. It is fair to say that it didn’t leave one with a very
warm feeling toward Marxism.
Oddly enough, later in life, I found that Marx occasionally said something
that was really very penetrating and smart. I quoted a whole paragraph of
his in my book,7 so maybe my general distaste for Marxism shows that the
course was just an inoculation. But I have been thinking back on it. It does
seem to me that Marxism then and Marxism now, on the whole, as a way
of looking at the world, tends to flatten things into class struggle. Social
life, economic life are so much more complex than class struggle that
Marxism overall seems to be really quite a deadening set of notions.
7 Stephen F. Williams, Liberal Reform in an Illiberal Regime: The Creation of Private Property in Russia, 1906-1915 (Hoover Inst.
2006).
17
Mr. Nuechterlein: Did you get the sense that other students at Yale College were flirting with
Marxism?
Judge Williams: No, not at all. No sense at all, except for André Schiffrin, who was
definitely a strong and articulate leftwinger.
Mr. Nuechterlein: One gets a sense that, at Oxford and Cambridge in those days, there was a
lot of Marxist ferment.
Judge Williams: Yes. If there was at Yale, I completely missed it. …
Mr. Nuechterlein: Were there any discussions about whether Yale should admit women?
Judge Williams: No.
Mr. Nuechterlein: Where did people meet women?
Judge Williams: People went to Poughkeepsie and Northampton. Women came from
various places. …
Mr. Nuechterlein: Were there any great universities in that time that were co-ed?
Judge Williams: Well, Harvard de facto was, although, as my wife will tell you, in her era
it was definitely not fully integrated as it is now. Radcliffe had a separate
residential life, but to some degree there was an integrated intellectual life.
There was obviously geographic convenience, and in addition some jointly
given courses.
Mr. Nuechterlein: What about racial minorities? Do you remember Blacks on campus?
Judge Williams: There was a tiny handful — very few.
Mr. Nuechterlein: Was there a sense that Yale didn’t look like the United States at large?
Was that a concern for anybody?
Judge Williams: People weren’t talking about it, I don’t think.
Mr. Nuechterlein: Did you meet any of the Black students?
Judge Williams: I am sure I met them, but I didn’t have any extensive contact with them.
Mr. Nuechterlein: Asian-Americans?
Judge Williams: I don’t think there were many Asian-Americans.
Mr. Nuechterlein: How about Jews?
Judge Williams: Yes —
18
Mr. Nuechterlein: I was told that, during this time, there was a quota system designed to limit
the number of Jews at Harvard and Yale. Do you remember hearing
anything about that?
Judge Williams: I didn’t — it seems I had my ears and eyes closed. I don’t remember that
being a subject of discussion.
Mr. Nuechterlein: But you knew there were Jewish students?
Judge Williams: Oh yes. I have to admit it was a problem I had and still have — I am not
very good at identifying who is Jewish, so I have absolutely no idea what
the proportions were.
Mr. Nuechterlein: Was there any sense of Jews being outsiders at Yale College at the time,
or were they fully assimilated?
Judge Williams: I think they were pretty assimilated.
Mr. Nuechterlein: So you graduated in 1958?
Judge Williams: Yes.
Mr. Nuechterlein: And you moved straight on to Harvard. Did you know early on in college
that you wanted to go to law school?
Judge Williams: Law school was certainly on my parents’ agenda and so it was something
that I thought about. At college I had notions of going into the ministry. I
had a strong but very erratic idealistic streak. For some reason or another,
I thought I would do well as a minister. I didn’t really believe, which made
it not a terribly good fit.
Mr. Nuechterlein: You would have fit in perfectly at the Yale Divinity School.
Judge Williams: I would have fit in perfectly today, but I am not sure if I would have fit in
in the mid-’50s. I think I would have been ahead of my time.
Mr. Nuechterlein: Were your parents church-going people?
Judge Williams: Randomly, or occasionally.
Mr. Nuechterlein: What type of church?
Judge Williams: My father had been brought up as a Presbyterian, and in fact his mother
was Presbyterian, but, as a young girl at a marriageable age, she had a
suitor whom she liked a lot who was a Methodist, and in the end that was
the dealbreaker.
Mr. Nuechterlein: Don’t both the Presbyterians and the Methodists — don’t they both trace
from Calvin?
19
Judge Williams: Whatever the divergences were, they were conceived by her in the 1890s
as too great.
Mr. Nuechterlein: At some point you gave up these dreams of the priesthood to go to law
school.
Judge Williams: Not exactly priesthood. Even at law school I had resistance. I actually won
a Ford Foundation scholarship to study Chinese, which was to be
integrated with law to some extent. It was a flight from the law. And in
part a flight into scholarship, to which I later did turn, for 17 years. There
was a special resistance to being a conventional lawyer.
Mr. Nuechterlein: But your parents, you say, wanted you to be one.
Judge Williams: They were very enthusiastic.
Mr. Nuechterlein: Why? Did they think you would be good at it?
Judge Williams: I think they thought I would be good at it. My mother had somewhat
idealistic notions about lawyers. She thought they were always dealing
with principles, and she distinguished that from businessmen, who were
just making money. That may have played some role. I remember my
mother being quite articulate on that ideal.
Mr. Nuechterlein: And your father didn’t set her straight?
Judge Williams: No. My father really had a high regard for law professors, and he admired
enormously his professors at law school.
Mr. Nuechterlein: Now that was during the era of Legal Realism.
Judge Williams: Yes. In another effort to break away from the law, I toyed with foundation
work. We had a friend who was on the board of the Ford Foundation, and
he set up an interview for me there. And I came away from that horrified
on two grounds. One was, I said something to the person interviewing me
indicating my notion that the great thing about the Ford Foundation was
all these bright people having millions to throw around; I pictured great
lunch conversations finding new ways to deploy their millions. And he
responded that there was rather a strict chain of command. He depicted it
as the most bureaucratic organization, and that didn’t appeal to me at all.
And the other thing I remember him saying that repelled me was, “When
we travel, we travel first class.” So he wasn’t speaking to the idealist in
me. But I do remember talking to my father about that, and my father
specifically saying, “It is not as if you would become a law professor,”
which he regarded as challenging and serious. He regarded foundation
work as dilettantish and frivolous.
Mr. Nuechterlein: So did you apply to other law schools?
20
Judge Williams: I applied to Yale and Harvard, and I got into both, and I spent a long time
mulling which one to go to. And I decided I should flip a coin. So I flipped
it, it came up Yale, so I said, “well, maybe it should be the best out of
three.” So I flipped some more, and Yale was still ahead, and then I
thought, maybe it should be the best out of five. And Harvard won on the
best out of five, so I went to Harvard.
Mr. Nuechterlein: So what do you think guided you to keep on flipping?
Judge Williams: I think it must have significantly had to do with Cambridge over New
Haven. …
Mr. Nuechterlein: We all have a sense of the difference that Harvard and Yale law schools
have today. When you think back to the late ’50s and early ’60s, when you
went to Harvard, what was the popular conception of the distinctions
between those two law schools?
Judge Williams: People still thought that you got a serious legal education at Yale.
Mr. Nuechterlein: Is there a “but” coming?
Judge Williams: There is a “but,” but I don’t recall anyone saying to me that attention to
other disciplines would engulf the legal education. I think I did ask family
friends and people like that, and I don’t think anyone said, “Steer clear of
Yale.”
Mr. Nuechterlein: And your father was OK with your heading off to Harvard?
Judge Williams: Oh, he was OK with my heading off to Harvard, and by the same token, he
certainly didn’t raise any ideological objection to Yale.
Mr. Nuechterlein: We have all heard these stereotypes of Harvard Law School — the first
year, in particular — from the popular media, like The Paper Chase,
books like One L — I think they both took place, like, ten years later. Do
you recall the first year being high-pressure?
Judge Williams: I think it was high pressure. But at the same time, I should say, I was a
member, for example, of a study group there, and I think what we did was
practice on exams, which was a useful thing to see what exams were like
and to have practice at writing an answer. This study group used to meet
the in the late afternoon and do this for an hour or an hour and a half or so,
and then it would be time for drinks. So it couldn’t have been too
absolutely nose-tothe-
grindstone.
Mr. Nuechterlein: And you were a member of the Law Review?
Judge Williams: Yes.
21
Mr. Nuechterlein: I assume that was highly competitive then.
Judge Williams: Yes.
Mr. Nuechterlein: Do you remember a lot of stress in the class about competing for a seat on
the Law Review?
Judge Williams: I don’t remember people talking about it.
Mr. Nuechterlein: Did it seem like a competitive environment to you? Were your fellow
students obviously ambitious?
Judge Williams: A lot of them were much more ready to speak out in class than I was, and
some of those I identified to myself as loud mouths, but some of them
were very, very bright. I rarely spoke in class. The first and only time I
was called upon in Contracts, there was something about a case that
engaged my interest, so I was able to say something that the professor
really liked. I don’t remember what it was.
Mr. Nuechterlein: What professors stand out as particularly good ones?
Judge Williams: Braucher was very funny, but I never understood Commercial Law, which
is what I took with him. I had Property I and Property II with Casner, and
it was very clear, and gave to a large extent a sense of how property held
together as a system. I should say, at the same time, that when I later came
to teach property, I took a somewhat more Yale-oriented approach,
because I tried to fit it into economic notions and to some extent
sociological notions. That hadn’t really happened at all in Casner’s class.
There was a clarity I remember about it, a sense of someone being totally
prepared and totally conscientious about trying to bring out the meaning of
the materials, within a certain constrained sphere.
I had Abe Chayes, who was very exciting. I don’t know if I fully
understood corporations, but he was almost, you could say, electrifying. I
remember this — I won’t focus on the professor, but Torts — I do
remember when we came to nuisance, my mind immediately started to see
it in economic terms, and these weren’t the terms in which the professor
addressed it. As one of my few affirmative interventions in law school, I
put forward a view that would now be associated with Pigou, the professor
whose ideas to a significant extent were overthrown by Coase in his
famous article on social costs. But even Pigou was far too advanced for
that course in that era, and the professor just brushed it off.
Mr. Nuechterlein: I take it this was before Melamed and Calabresi’s article, Another View of
the Cathedral.
Judge Williams: Yes. It was definitely before that article, and it would have been shortly
before Coase published “Social Cost” in 1960, but it is fair to say that my
22
gambit there was just brushed off without hesitation and without its being
engaged with. That says something quite critical at least about that
professor and probably about Harvard Law School in that era.
Mr. Nuechterlein: Did you get the sense that the professors were trying to instill in the
students a sense of mission, of the use of the law as a social tool for the
betterment of society — was that part of the environment at the time?
Judge Williams: Griswold was Dean at the time, and I connect this remark to him, although
possibly he said it later or it really was said by someone else, but I think it
captures the feel: “The world has no need for more lawyers. It has a huge
need for better lawyers.” Of course, it was a self-serving remark to some
extent. There was certainly a notion that lawyers were a good thing, and
this was largely put on the basis that lawyers were essential for the wheels
of commerce to run.
Mr. Nuechterlein: What about the law of racial equality, which was obviously an important
issue at the time? Was there much focus on that in law school?
Judge Williams: Very little.
Mr. Nuechterlein: So the focus was really on what the people in law firms do.
Judge Williams: I think that is fair to say. Yes. Maybe this is my mother’s influence, I had
a kind of scornful view of business, moneymaking, so forth. I really didn’t
see its role in making life better for people.
Mr. Nuechterlein: You didn’t see the value of a capitalist economy?
Judge Williams: It wasn’t that I thought socialism was a good thing. It was that it didn’t
seem very uplifting. Sort of the spirit of Irving Kristol’s book, Two Cheers
for Capitalism. As a young idealist I didn’t think two cheers were enough.
Mr. Nuechterlein: Harvard Law School was co-ed at this time?
Judge Williams: Yes, it was — but in my class of approximately 500, there were eight
women.
Mr. Nuechterlein: Would I recognize any of the names?
Judge Williams: One I remember very well was Nancy Eastham, and she is the mother of a
Canadian law professor. His first name is Edward, and his last name is
Iacobucci, and her husband was also a Canadian law professor, but I am
not sure about that.8 Her son certainly is. I saw him at a conference, and I
8 From 1967 to 1985, Frank Iocobucci was a professor at—and, for a time, dean of—the University of Toronto Faculty
of Law; he later became Chief Justice of the Federal Court of Canada. His son Edward Iacobucci is also a professor at the
same law school and was dean from 2015 to 2020.
23
knew she had married someone named Iacobucci, and he looked plainly
too young to have married her, so I introduced myself and found out he
was her son. There was another I met post-law school when I went down
to Mississippi with the Lawyers Committee for Civil Rights under Law —
that was in 1965.
Mr. Nuechterlein: Did you overlap at all with Ruth Ginsburg?
Judge Williams: No — I am 99.9% sure of that. Her travails with Harvard Law School
were earlier.
Mr. Nuechterlein: How about racial minorities? Were there Blacks or Asians?
Judge Williams: There certainly were Asians. One, Wally Tashima, became a federal judge
— part of the enormous contribution of our class to the federal judiciary.
But I don’t think I knew him at the time. There were Asian faces, and
there were black faces, but very few. I have a count on women, but not on
minorities.
Mr. Nuechterlein: The admission process at Harvard Law School was fairly competitive.
Was there any sense that the admissions office was trying to achieve social
or economic diversity, or was it solely on the grades?
Judge Williams: I think the overwhelming focus was on LSATs and grades. I think they
must have made an adjustment from where the grades were coming from.
Mr. Nuechterlein: But it was a solely quantitative assessment?
Judge Williams: I believe it was quantitative, and yielded a prediction of how well,
quantitatively, they would do in law school.
Mr. Nuechterlein: Was this an era in which people failed out of law school? …
Judge Williams: [There] is a terribly famous and much-quoted statement. The class
gathered together in the auditorium, and was addressed by the Dean, who
said, “Look to the right of you, look to the left of you; one of you three
will not be here at the start of the second year.” I can’t remember if the
Dean actually said that to our entering class. I think he couldn’t have said
it, because it was totally not true. I think our class of 500 was roughly 500
through the second and third year. Although, actually, I just learned from
some friends of mine that I had a classmate — I don’t know if he did
badly or just didn’t like it — but he did drop out after the first year and
became extremely distinguished in Chinese literary scholarship, which is
probably is a strong net benefit for the world all around. I learned of it
from talking with the wife of a now-deceased classmate, who had kept
somewhat in touch with this person. We were talking about it because one
of my sons is now a Chinese literary scholar.
24
Mr. Nuechterlein: You mentioned that your class holds a record of sorts — tell us about that.
Judge Williams: I think we hold the record for any law school for the number of federal
judges, and I believe the class had that record even before Tim Dyk went
on the Federal Circuit. In any event, they now include Anthony Kennedy
at the Supreme Court, on our court Larry Silberman and me, Lanier
Anderson on the Eleventh Circuit, Wally Tashima on the Ninth Circuit,
and Tim Dyk on the Federal Circuit.
Mr. Nuechterlein: Did you know any of these people well when you were in law school?
Judge Williams: Except for Tim Dyk, through law review, no.
Mr. Nuechterlein: Didn’t know Anthony Kennedy?
Judge Williams: Not at all. Nor Larry. As Larry said at the hanging of my portrait, I spent
most of my time in the library or at the Law Review, and he was seldom in
the former and never in the latter.
Mr. Nuechterlein: This is the end of our first day interviewing Judge Williams. We will
resume soon.
