Transcript

Justice William 0. Douglas: What I was saying was this point before. In April 1962 shortly after Frankfurter had a stroke and was incapacitated, it was very difficult to get any information from his doctors concerning the extent of his setback, whether it was likely to be permanent, whether it was minor, and so on. The Court held up announcing any opinions for several weeks on the assurance of his doctors that he was coming along fine. And those of us on the sidelines doubted it very much. Justice Harlan had visited him and the reports that he brought back were not very encouraging. Finally, the Chief Justice got a hold of the doctors and put the question squarely to the doctors as to whether or not Frankfurter would be qualified to come back and work for five, six, eight hours a day, at any time in the near future. And the doctors then finally changed their tune and said no, he was seriously incapacitated at that time. So, on the basis of that, the Court went ahead and marked him out of cases even those in which he had voted because he had not seen the opinions. Or sometimes we marked him out even when he had not seen the last circulation, although he had seen an earlier circulation, because he was not in any condition to do any work at all. That resulted in some of our cases being, coming out four-four and meaning a reargument. Sometime late in April or the first part of May, it seemed apparent to me that Frankfurter probably would not be back. That was the view of the Chief Justice and others, and we had some talks about it. On my own, without consulting anybody, I got a hold of two prominent members of the legal community of the Jewish world. One was David Bazelon, of the Court of Appeals of the District of Columbia, and the other was Senator Javits of New York. And what I said was that I thought that the Jewish community had a sense of, should feel a sense of responsibility in the appointment to take the place of Frankfurter. Because the lawyers in the Jewish community are brilliant and mediocre and liberal and reactionary, just like lawyers in any other community. And that the, with the pressures, the political pressures of the times, we might end up with somebody from the Jewish community far to the right of Frankfurter. I didn't suggest to them any, make any recommendations to them. But I said that I thought that there were eminent men who were Jews, who were members of the Bar, who were liberal, progressive, forward-looking and that if the Jewish community somehow or other could agree upon one or two or three, that that would give impetus to the selection of one of those rather than the happenstance of some Jewish lawyer who might be in the news but who would be of lesser caliber than what is desired here. Dave Bazelon and I were old, old friends and I had often expressed to him and his wife my own personal desire to sometimes see him on the Court. Arthur Goldberg and his wife are old, old friends. And about this same time I ran into Arthur and had a talk about the possible vacancy and he expressed, at that time, a great eagerness for it. And I said that he certainly was qualified and I thought he would be, make a very eminent Justice here. A day or two passed after the talk with Bazelon and Javits. And Javits called back and said, "Well, I have a roster of names.'' And I said, "Tell me who's on the roster.'' And he said, "One is Arthur Goldberg and the other is David Bazelon. What do you think of it?" And I said, "I don't think you could have done better. Is that all you're going to do? Can you get that word to the White House?" He said, "I'll see what I can do." And he called back in two days and said that Paul Douglas had gone over to see Kennedy at the White House. And Paul Douglas, the Senator from Illinois, presented two names of two distinguished Jewish lawyers from the state of Illinois, one was Arthur Goldberg, and the other was David Bazelon, and urged the President if there was a vacancy to choose one of those two. There were, of course, when the vacancy came in late August when Fra nkfurter retired, there probably were many other people with other ideas and suggestions. But I think that this early work that Javits did on the Republican side and Paul Douglas did on the Democratic side paved the way pretty effectively for Goldberg.

Professor Walter F. Murphy: Do you know if anybody from the executive department consulted one or more of the Justices here about the appointment?

Justice William 0. Douglas: That is very seldom done and I doubt very much if it were done. No one asked, from the executive department called me. I don't know whether they called any other members of the Court or not. I doubt very much if they did.

Professor Walter F. Murphy: Fine. There's a question I have asked you, how you utilized your law clerks before, but I neglected to ask you how you selected them.

Justice William 0. Douglas: When I came on the Court in 1939 I discovered that most of the law clerks were either from Yale, Columbia or Harvard. I was a graduate of Columbia. Stone who was on the Court at the time, was a graduate of Columbia Law School also, and Stone always took a graduate of the Columbia Law School as a law clerk. At that time, the Justices had just one law clerk apiece except for the office of the Chief Justice where I think there were two. And the Columbia faculty got ahold of me and wanted me to select a Columbia man. But the Ninth Circuit was open for a Circuit Justice and Hughes called me in saying that since I was from the West that he thought that maybe I would be interested in having the Ninth Circuit assigned to me. I told him that I had come from the West, had been educated there through college, went back to Yakima, Washington, briefly in 1927, I believe it was 1928 -- eh, 1927, to practice law but I had never become a member of the Bar of the State of Washington, that I had been a member of the Bar of New York where I practiced law, and then when I moved to Connecticut got active in Connecticut politics with Frank Maloney and his group responsible for putting him in the Senate in, from Connecticut, in 1934. So I was a registered voter there and so my commission came from Connecticut. I think that in the history of the Court I was the only, only two had been named from Connecticut. One was Oliver Ellsworth and the other was myself, and I had no claim to appointment as a Connecticut lawyer because I never was admitted to the Connecticut Bar, merely taught law at the Yale Law School for a few years. But Hughes said that didn't make any difference, and of course it didn't. And he would assign me to the Ninth Circuit as Circuit Justice. And then it occurred to me when that took place that we were making a mistake in taking all our law clerks from just three schools in the East. There may have been one or two others from, who were not from Harvard, Yale or Columbia, but that was a virtual monopoly. So I decided that I would take my law clerk from a law school located in the Ninth Circuit. And the Ninth Circuit in 1939 contained seven western states, now it contains nine. The Law school that I knew most about was the University of Washington, at Seattle. And so when Court adjourned, I wrote the Dean and had the several graduates that the faculty would recommend most me and on the basis of an interview I would select a man. And the man I first selected was, for my first year after, for the fall, for the term 1939, October 1939 term, was Stanley Soderland, of the University of Washington. And I did that for a few years and I had some fine men and then I decided that I would have to work out a system whereby I could get my men earlier. I couldn't get out at Christmas-time to go up and down the coast and do the interviewing. After some discussions with friends, I finally broached the subject to Max Radin who was then on the law faculty at Berkeley and asked him if he would interview the men and women that were suggested by the Deans of the law schools in the Ninth Circuit and select one for me. And Max Radin did that during his lifetime. I never had anything to do, with their selection. He would merely write me along about February that so-and-so had been chosen. And it worked very, very well. He sent wonderful men. When he died I had to find somebody else. The task was undertaken by an ex-law clerk of mine who practices law in Oakland, California. And I wrote the Deans telling them to send all of their recommendations down to him and he would interview them. He's done a very conscientious job. He has selected them ever since Max Radin's death.

Professor Walter F. Murphy: What was the name of the former law clerk who does this?

Justice William 0. Douglas: The name of the ex-law clerk who selects my law clerks and has done so since Max Radin's death is Stanley Sparrowe, who practices law in Oakland, California.

Professor Walter F. Murphy: Okay. I was wondering, Mr. Justice, if the Associate Justices take a formal part in any of the official proceedings in the annual meeting of the judicial Conference of the United States.

Justice William 0. Douglas: No, they take no part whatsoever, either formally or informally. That is a separate body over which the Chief Justice presides. The agenda is prepared by the members of that conference. The members of our Court do not have anything to say about the agenda. If there are matters that touch the Court or legislation pertaining to the jurisdiction of the Court, matters like that, the reports will be brought to our special attention. But this is beyond the purview of any member of the Court except the Chief.

Professor Walter F. Murphy: I was wondering, you've seen this grow, this office grow since 1939, I believe when the administrative office was first founded. I was wondering how you felt it aided, or if it aided, judicial administration.

Justice William 0. Douglas: Well, I wondered at the beginning because the Chief Justice presided and there were only the senior circuit judge from each of the circuits in attendance and they were dealing with matters that concerned, to a very great extent, trial problems, courtroom problems, over which they had no direct supervision and in which they did not directly participate unless they sat as district judges, which was not very often. And there was considerable agitation among the conferences in the various circuits, especially from the district judges, that the district judges should be represented. And when it was worked out in a statute amended so that they were, then I think that it became a very effective conference for the promotion of judicial administration that has been very useful.

Professor Walter F. Murphy: Mr. Justice, this summer when you accepted the position as Co-Chairman of the Fund for the Republic, the Washington Post was quite critical editorially about this acceptance, claiming it would jeopardize your judicial independence and urged that you reconsider. I wonder if you would explain your feelings about this specific matter and perhaps elaborate for just a bit about your general views on the matter of extra-judicial work for Supreme Court Justices.

Justice William 0. Douglas: I remember the editorial in the Washington Post. The Fund for the Republic operates I think one of the most outstanding educational institutions in the United States, doing a very unique job. That is the Center for the Study of Democratic Institutions at Santa Barbara. I think that the Center for the Study of Democratic Institutions is as much a university or college as Yale, or Princeton, or Harvard, or my college, Whitman College, in the State of Washington. They don't have students. It's a faculty group, where they run seminars with the, bringing in outside talent here and abroad, have public discussion put on forums and make publications and pamphlets and so on. It's an educational job of a very high order and a very high quality. And so I thought that then, and I, when it was offered to me to become Co-Chairman that it was wholly consistent with work at the Court because it did not involve matters that would be coming before the Court. Any more than the things that go on at Princeton or the things that go on at Yale involve matters that come before the Court. If there, a man was Trustee of Yale University and sat on this Court and Yale University was engaged in litigation he would not participate in this Court, while the case was in this Court. Nor would I in case the Fund for the Republic was a litigant here or the Center for the Study of Democratic Institutions. The Washington Post never criticized me when I was a member of the Board of Overseers for Whitman College for ten, fifteen years. Chief Justice Taft, when he was Chief Justice, was a Trustee of Yale University, and the Washington Post never criticized Chief Justice Taft for being a Trustee of Yale University. But Yale University, and Whitman College, and the Center for the Study of Democratic Institutions any good healthy educational institution gets into provocative subjects and topics. And as long as those topics do not involve litigation before the Court or litigants who are coming before the Court, they in no way interfere with the Court's activity any more then going to see professional football games or professional baseball games or going to concerts or participating in community fund-raising for community welfare like justices have done. I think that, for myself, that a judge should be as much of a full-fledged first-class citizen as possible I felt when I cast the vote I think my first or maybe my second week on the Court, to uphold the constitutionality of the federal tax on my salary, that I had voted myself into full-fledged first-class citizenship. And I'm a voter in the State of Washington. I vote in all elections, or I try to. In my home in the State of Washington, the town of Glenwood, we have some pretty bitter controversies over how much schoolteachers shall be paid, and what they shall teach. And I am in the thick of those controversies and I think I would be derelict as a citizen if I left all those controversies to others. And so that's why in general I think that justices and judges who associate themselves with universities, centers of learning, who try to lend their support, prestige and influence to the dissemination of democratic ideas and the development of tolerance and broad-mindedness, and the great diversity of views that exist in our society, should be commended rather than criticized. The Center for the Study of Democratic Institutions has had perhaps more enemies than Yale University. But it is every bit of an educational institution by the standards that Yale itself has set and I am sure that nobody every criticized Chief Justice Taft for being a Trustee of Yale while he sat on this Court.

Professor Walter F. Murphy: Mr. Justice, in answer to question thirty-four you made an important point about relations among the Justices.

Justice William 0. Douglas: They were so poor that Frankfurter wouldn't even attend Vinson's funeral. There was a special funeral train went down to Kentucky with the body. Frankfurter refused to go. Frankfurter carried these personal feelings to the ultimate. He was very, very bitter about Fred. Fred had a capacity, of course, to be bitter. Everybody has that, every human being has that capacity. Fred once in a while would get bitter. I mentioned the time during conference when the result of slighting remarks made by Frankfurter reflecting upon Fred Vinson's character, integrity. He just got out of the chair and came around the table with a clenched fist. He would have knocked Frankfurter's teeth out if he hadn't been stopped by his colleagues. Of course, that wore off in a few hours and Fred was once more the polished gentleman that he basically was. Frankfurter had a habit of baiting Vinson. He saw Vinson as a man of rather pedestrian mind and Frankfurter could trip him up, could show how the step he proposed was false or treacherous. Fred didn't have the mental facility that Frankfurter had. Those relations between Vinson and Frankfurter are probably worse than the relations between Jackson and Black. Frankfurter took Vinson on as a lumbering dodo. Jackson took Black on as almost as if he were a subversive person. So in the Court at that time when you had Jackson blowing off on Black and Frankfurter needling Vinson, tensions in the Court got, got pretty high at times. But they never reached a point that they did under Stone when Roberts, as a result of Frankfurter's insinuations and whatnot, got into the mood where he would speak to nobody on the Court, not even shake hands with anybody on the Court. It wasn't that bad. These were, these would blow up for an hour or two and then everybody by lunchtime or by dinnertime would be back in a happy mood. But slumbering beneath the surface was a great animosity of Frankfurter to Vinson, whom I think he had an utmost disrespect for, and the almost hatred Jackson had for Black.

Professor Walter F. Murphy: When Vinson was appointed to the Court and again when Warren came to the Bench, there were a number of hopes voiced that the new Chief Justice would smooth out disagreement within the Court. These hopes have been very short-lived. Do you think there is anything a Chief Justice can do to prevent the Court from splintering?

Justice William 0. Douglas: No, there is nothing that a Chief Justice, a wise Chief Justice would try to do, because each judge is sovereign, each judge arrived under his own power. He didn't get there as a result of any activities of the Chief Justice. He's not an appointee of the Chief Justice. He's not beholden to the Chief Justice. The Chief Justice is just another office, an important office. But a Chief Justice that comes in trying to exert his will over the Court is apt to be a very unhappy man. That's why I think the ideal Chief Justice is Hughes, who, with the greatest deference and the greatest respect for everyone, stated his own views. Sometimes, usually he could get an agreement of at least five. Sometimes he couldn't. Sometimes there was vast splintering even under Hughes. But those things are almost unavoidable. I don't know how you can do it except the formula that we sometimes use in the majority opinion on the minor issues. Some think this way, some others think the other way but we all agree that this is the end result of so-and-so. But apart from working out formulas like that I don't think there is anything a Chief Justice can do to smooth out disagreements. These disagreements strike very, very deep. They go deep into the background of the Justice, they depend upon forebears, the genes, his early training, the way he reads history. Because we're dealing with the Constitution, we're dealing in most times with large generalities, and statutes, we're dealing with very muddled history in which there is almost certain to be great disagreement. I think those who think that the Chief Justice can smooth out disagreements just don't understand the judicial process. The, Earl Warren I think has had the, more. I've served under four to date, Hughes, and Stone, and Vinson, and Warren. Fond as I am of Earl Warren, I think that his attitude is more that of a governor to a cabinet officer, more of the feeling that he is the, he is the head and the others are subservient. This doesn't, this never shows up in anything ugly or untoward like Jackson or Frankfurter had produced, nothing overt and bullheaded like Vinson. But I think perhaps this will change in time if Earl Warren is here long enough. But I think he having been governor for so long thinks of the Court more as an administrative domain and that the judges are, his associates are less sovereign than he himself. That has risen a number of times in various episodes in the Court, not very consequential. And Earl Warren is astute enough to realize, I think, that that may be his weakness. And once he knows that, these episodes won't appear. The Hughes Court and the Stone Court, they were very, very different, but neither one of those Chief Justices had any idea that this was their ballpark, or this was their team. Fred Vinson, as I said, had more the idea of I think of the chairman of a committee in the House, an all powerful chairman who would try to make things bend to his will. And he did it sometimes. He'd used it against me, against others. Earl Warren is more subtle than that but he's more on the pattern of Fred Vinson than he is, I think, of either Stone or Hughes.