Transcript

Professor Walter F. Murphy: All right, should I just simply go ahead and ask you the questions?

Justice William O. Douglas: Yes.

Professor Walter F. Murphy: All right, the first would be perhaps the best place to begin. Would you discuss your own selection for the Court, at least what you know about it? How was it that the President chose you? When did you first know that you were being considered? Who told you? At what stage did the President personally inform you of his intentions? Did you have any preliminary discussion with him about the matter, or do you know if any member or members of the Court joined in recommending you? Did you have any fears about Senate confirmation?

Justice William O. Douglas: What I knew about my appointment to the Court I learned largely after the appointment had been made. I had never had any idea of being a judge. It never entered into any of my calculations. I never even thought of it as a remote possibility, either being on that Court or any other court. I had been, in 1939, elected as Dean of the Yale Law School. And I was going to leave Washington that June to take over the Deanship of the School at Yale and I had told Roosevelt that in, I think, January of 1939. I had been in Washington with him nearly five years. We were very close. I had worked with him on many of his speeches. I spent at least one weekend a month with him, saw him on many social occasions, was very, very close to him. But we never had talked about the Court. He had never talked to me before the Court plan was announced in 1937. I didn't know anything about it until I read it in the papers. None of the problems of the Court had been discussed with the personnel. Brandeis resigned, retired rather. I believe it was February or maybe it was early March -- I believe it was February

Professor Walter F. Murphy: 1939.

Professor Walter F. Murphy: Excuse me, it was February.

Justice William O. Douglas: I learned later that, from Brandeis, that he had gone to the President and had urged that the President name me as Brandeis' successor. Brandeis and I had been very close. I had known him before I went to Washington in 1934. I was very close to him during those years, between 1934 and 1939. He was particularly interested in me I think because I was continuing some of the things that he had undertaken in his earlier years. He was very active in investigating financial market the machinations of stockmarket manipulators, and so on, many of which appeared in his writings, including other people's money. And I was in the midst of the stock exchange problem, the Wall Street problem, the problem of the security offerings, and so on. And I used to see him practically every week. He had an avid interest in the work that was going on and the details as to what was happening, and so on. I had actually received sort of a commission from Brandeis, sometime after I had returned to Yale, to take up the story of the New Haven railroad and the story of its financial disasters.

Professor Walter F. Murphy: You mean the story from where he left off.

Justice William O. Douglas: The story from where he left off. I mention that because Brandeis and I had been very, very close, but he never mentioned to me that he, until after Roosevelt named me to the Court, that he had recommended it. Actually, Roosevelt had decided to put another man, the man was Schwellenbach, Lewis Schwellenbach who was Senator from the State of Washington. Justice Black, Hugo L. Black, he and Schwellenbach had been very close. They had been associated in committee work, and Black thought very, very highly of him. Black had been on the Court since the summer I think of 1937 and he was anxious for some ideological allies I think. And his candidate was Schwellenbach and Roosevelt actually had decided to name Schwellenbach. Roosevelt had called Frank Murphy who was the Attorney General, to the White House and said that he had decided on Schwellenbach and he thought he would send up his name. And for some reason that I have never learned, Murphy said "Would you mind waiting awhile, Mr. President? Is there any big rush about this?" And Roosevelt said, "No, there's no great rush about it. You have something else in mind?" "Well," he said, "maybe I might have some other suggestions to make to you." And Roosevelt said rather casually, "Sure, take your time, there's no rush about it."

Why Murphy did that I don't know. But there was developing in the West a big opposition to Schwellenbach from the State of Washington. Schwellenbach had been in very bitter feuds with Homer Bone, who was his companion Senator from the State of Washington, the junior Senator, senior Senator. He had been in very bitter encounters with Saul Haas, who at that time was the manager of the Bone forces and sort of the Democratic leader, political leader, of the State of Washington. And they had many feuds. What was behind it all I never knew because Schwellenbach and I were always very friendly. But perhaps Bone and Haas, perhaps Bobby La Follette, that I will mention in minute, perhaps some of them had something do with getting from Roosevelt an agreement to hold off the nomination of Schwellenbach in any event, shortly after that, the people in the State of Washington began to become very, very active, the opponents of Schwellenbach, the political opponents of Schwellenbach. Saul Haas, I know, arranged for the Tacoma Bar Association, the Seattle Bar Association, the Spokane Bar Association the State Bar Association, those individual judges and lawyers, to send telegrams to Roosevelt against that appointment. And it to my very great surprise, I heard that he and Bone and some of my other friends were suggesting my name to Roosevelt in lieu of Schwellenbach's.

One night at a reception in Georgetown, Arthur Krock, of the New York Times, got me aside and said that on the front page of tomorrow's New York Times there will appear in a box a story that, he said, I made it up myself. I have no basis for it, but I think it may start something. And that is that, from a confidential White House source, that I learned that the next appointee to the Supreme Court was going to be yourself. I thought this was all a joke because Roosevelt had publicly announced that he was going to choose a man from the far West. And I had grown up in the far West, gone to school in the far West. I had practiced law very briefly in the far West in 1927, before coming back to Columbia to join the faculty. And after Columbia I had gone to Yale. And at New Haven, I had registered as a voter and I was one of three that ran the Senatorial campaign that took Francis Maloney to the United States Senate from Connecticut. And was, at that time in 1939, a registered voter in Connecticut. I had never been a member of the Connecticut Bar. But that was my legal home and residence so I discounted these stories very much, that Roosevelt was going to name me. As a matter of fact, I thought that part of it was all a great joke. The forces behind Lew Schwellenbach were also very active. And finally someone, how this happened I don't know, but they got William E. Borah, who at that time I believe was not chairman of the, he was a ranking member of the Judiciary Committee.

Professor Walter F. Murphy: Ranking Minority member.

Justice William O. Douglas: Yes, I think of the Senate Judiciary Committee. A very powerful Republican, a man that I knew very, very slightly. I knew him by reputation. He had been one of my great heroes as a boy. Borah in his later years was pretty much of a conservative in many respects. I remember the night before he died I spent the evening with him. He thought that the war that was going on in Europe was a phony war, and he talked to me at great length about it. He was a man that knew very, very little about the world and the forces that were shaping up around the world. He had been a great, fearless, independent politician in Idaho. And I remember as a boy hearing about Borah who got an engineer to steal, not steal, but appropriate, a locomotive engine and race from Boise, Idaho, down to Nampa, I think, where a Negro was about to be lynched, and Borah in front of the jail getting up on a soap box and in less than an hour convincing the crowd that they were on the wrong side of justice and saving the life of the Negro. This man was a great heroic figure but, as I say, I hardly know him, and by the time that 1939 had arrived, he was getting more and more conservative as many people do in their later years. But somebody, whether it was Homer Bone or Saul Haas, I don't know, maybe it might have been Bobby La Follette, brought Borah into the picture. They arranged for Borah to have a press conference. And they arranged, they told Borah, I learned later, what questions were going to be asked, and who was going to ask them. And they primed these reporters to ask a series of questions. And one of them was, "Did the Senator know me?'' And he said he did. And the other question was, "What did he think of me?" And he went on in very flattering statements about me. Would he think I was qualified to be a member of the Supreme Court? He said he thought I was eminently qualified. And he went on to talk about my so-called qualifications for the post of Supreme Court Justice. Then somebody asked him the "$64 question." The President, President Roosevelt, in looking for a man from the far West. Would you consider Bill Douglas, as the reporter put it, representative of the far West? And Borah then became very eloquent saying he not only represents Washington, but he represents Idaho, Montana and Oregon. He is our native son. And we all look to him as our representative. Well that was in the headlines in the Washington papers the next morning. And the following Sunday, I think it was, I was out playing golf and the messenger came out, saying that I was, the President wanted to see me. And so I dressed and went down to the White House. He was in the Oval Room. I told him that I was going to go to Yale to become Dean of the Law School and I figured that he had some new job for me. It didn't occur to me that he was going to offer me the post of Associate Justice of the Supreme Court. At that time the Federal Communications Commission was in great difficulty, almost as great a difficulty as it was in under Eisenhower. The chairman, who had just resigned, was a man by the name of, I think, McLynch. The place was in great disorder and Roosevelt thought that I had done an outstanding job at the Securities and Exchange Commission. And I was sure that he was going to draft me for the Chairmanship of the Federal Communications Commission which would be about the last job in Washington that I would want. And I was trying to figure as I drove to the White House how I would get out of the draft. And when I was ushered into the Oval Room where he was sitting alone, he greeted me in his customarily handsome way and said he had a new job for me. And I told him I had figured that much out. And he said, "You know what it is?" And I said, "I think I do." He said, "It's a job you won't like." And I said, ''I know that." He said, "It's the most disagreeable job in town, probably." And I said I agreed with him. And so he led me on for about five minutes and finally he said, "All joking aside, I'm sending your name up to the Supreme Court t omorrow morning." It was a very great surprise to me because, as I say, I had never even dreamed of that kind of a career in the law. And the name did go up the next day. And the, I was confirmed shortly afterwards, and I think I took my seat on the -- this conversation with Roosevelt took place sometime in March 1939. And I think my name went to the Senate an the 20th of March and I think I took my seat on the 17th of April. I think that is approximately the chronology.

Professor Walter F. Murphy: Right. Did you, were you in any way worried about Senate confirmation once you had been informed that the nomination had been made?

Justice William O. Douglas: I didn't. I knew that Borah with his strong position on the Republican side was for me and so I had no worries there. And Frank Maloney from Connecticut, one of my dearest and closest friends, was very enthusiastic about my appointment. On the Democratic side, and I should say when Roosevelt named me he didn't name me from the State of Washington, but he stuck strictly to the record, and named me from Connecticut where I was in residence. And the Connecticut delegation of course was behind me. There was a lot of support from the West, as I said, and I had no doubts or misgivings. It never occurred to me. I was, I received a telephone call shortly after the name went to the Senate, saying that they wanted a hearing, which is customary, before the Judiciary Committee, and I went over and appeared. It was a short and rather perfunctory hearing. As I remember Borah was there, Senator O'Mahoney of Wyoming was there. The hearing lasted just a few minutes. And a little while later the nominations were reported (?) out to the floor and I got a telephone call from Maloney saying that there was trouble brewing on the floor. And he said that he thought that he and La Follette could handle it but it might acquire serious proportions. And I asked him what was behind it and he said it comes largely from Burton K. Wheeler and a man in Wheeler's office by the name of Lowenthal. Lowenthal was a man who had written a book about the Chicago-Milwaukee- St. Paul and Pacific Railroad reorganization. He had collaborated on the book with the wife of Felix Frankfurter, Marion Frankfurter. Lowenthal was, I had known him when I was running an investigation at the FCC from 1934 through 1935. I had gone to Lowenthal to get help in selecting a staff. He had recommended a fine man that I'd taken, and, while the investigation was pretty well under way, Lowenthal came to me one day and said that he thought that the man who could help me most was his partner in the New York law firm. He described his partner in glowing terns as if he were somewhat of a combination between Jesus Christ and Oliver Wendell Holmes. So, in such glowing terms, I was immediately suspicious. So I asked my investigative staff if they had run across this man in any of their investigations, and they said they had. So, instead of hiring him as a consultant, we moved in and investigated this man's reorganizations and he turned out to be one of the least reputable people in the street as far as reorganizations went, a man who was engaging in very questionable activities. And the fact that I put Lowenthal's partner on the stand and held him there for a couple days, taking all the gold fillings out of his teeth, made me lose the friendship of Lowenthal, but that was only part of it. When I was making this investigation for the FCC of protective committees and reorganizations, we got into the foreign bond-holders field and got into the Cuban bond situation. At that time, Burt Wheeler of Montana was, I think, Chairman of the Foreign Relations Committee, and while he was Chairman of the Foreign Relations Committee he had received a secret fee of $50,000 to represent the Cuban bond holders before the Government of Cuba, a highly unethical transaction by our standards of that day. And in the Cuban bond-holder investigation and hearing, Burt Wheeler, whom I know fairly well, had heard that we had come across this and he summoned the Democratic stalwarts in the Party to try to put pressure to keep that fact from being disclosed. But, as I told Jim Farley and some of the others in the Democratic organization that this was not a political investigation. This was across the boards and we were bringing out everything that we ran across that was relevant, and so it was produced at a hearing that Burt Wheeler had received this $50,000 fee when he was Chairman of the Foreign Relations Committee. And Burt really never forgave me for that. So Burt Wheeler and Lowenthal both had axes to grind and they ground their axes when my nomination came to the floor. Th ey had, Lowenthal was writing the speeches against my nomination and the man who was delivering the papers that Lowenthal was writing was a Senator that I did not know from North Dakota by the name of Frazier. And he had to read very slowly because Lowenthal was just one page ahead of him on the typewriter. Burt Wheeler at that time had been very closely associated with some of the labor people like John L. Lewis and he had tried to get John L. Lewis to get the mine workers to telegraph or write their Senators to stop this appointment. But all of that didn't add up to very much. The final vote, I think there were three or four voted against me. I forget the exact number. One of them was Frazier. Wheeler didn't. Wheeler absented himself. Although he was in the city, he stayed in his office and didn't vote. And the others who voted against me I forget. One was Cabot Lodge, and I forget the others. But it was largely a little storm in a teapot. It didn't amount to anything.

Professor Walter F. Murphy: Well, shall we go on to the next question?

Justice William O. Douglas: Excuse me one second --

Professor Walter F. Murphy: Well, for a second question, we have here something that skips on to your first years on the Court. When he was an Associate Justice, Harlan Stone was quite critical of the way that Chief Justice Hughes conducted the conference. Now Hughes, Stone felt, dominated the conference, and cut short discussion, and scrubbed much potentially meaningful exchange of ideas among the Justices. To what extent does your experience under Hughes' Chief Justiceship confirm or contradict Stones' views? Now perhaps it would help if you would summarize your own recollections about the procedures Hughes followed in conducting the conference.

Justice William O. Douglas: Well, I might say to begin with that the, Stone was my first professor when I went to Law School at Columbia. He gave the first year course in Personal Property. And I got to know him then and when I went to Washington with the FCC I saw quite a lot of Stone who was then on the Court. And Stone and I were very close. It was sort of a continuation of the student professor relationship from the earlier years. So I got to know Stone intimately, spent many, many hours with him in his home. Hughes and Stone never, never got along. What was behind it all, I don't know.

Professor Walter F. Murphy: Can I ask you a question? You remember the story that Hoover had intended to appoint Stone as Chief Justice after Taft's death and that he was making a call to Hughes just as a perfunctory matter, thinking that Hughes would turn him down. Do you think that possibly Stone believed this story?

Justice William O. Douglas: I don't know. I never talked to Stone about that. I think that story was true and that Hoover was surprised when Hughes accepted. Whether that was the irritant between Stone and Hughes I just simply don't know. Stone thought that the conferences were much, much too short, that he had no chance to discuss matters in conference that he liked to discuss. As a result, what Stone did was to have a sort of a rump conference Friday after Court. In those days we sat two weeks and recessed two weeks. But during the two weeks of sitting, we sat from twelve to two and two-thirty to four-thirty, five days a week, and had our conference on Saturday. And our conferences on Saturday then started at twelve o'clock instead of ten as they do now, which is the year 1961. And they always ended at four thirty. And during that period from twelve to four-thirty we had a half-hour out for lunch, so that meant that in a four-hour period we would go over as many, all the cases that had been argued. And there were many more cases being argued each week then than there has been in the '50's and in this early part of the '60's. And there were almost as many important cases on the certiorari list and the list of appeals. Hughes covered all those in a very, very efficient way. One of the reasons that he did that was, first, he had tremendous capacity, an unusual capacity to get things done very fast. For example, he would come into conference. Maybe we would have six, seven, eight, ten jurisdictional statements which covered appeals from state courts or from the Interstate Commerce Commission, once in a while from a Court of Appeals in the federal system. And for each of those there usually was a motion to affirm or to dismiss. Hughes usually at the conference said, "Brethren, in this appeal, such and such a number, such and such a name, I suggest that we grant the motion to affirm or grant the motion to dismiss and cite the following cases.'' And he would have, he would come into conference prepared with those citations and his vote would usually carry the day. On the argued cases, he was very crisp and short and succinct, opening the discussion, stating his reasons in a very short summary way, dismissing maybe six or seven points, saying they are collateral and the man who writes the opinion can take care of them. The only really important issue in the case is this one, numbered one or five or whatever it was, and he would give his view in just a sentence or two, sometimes, or maybe a minute or two other times. And then lean back and say, "Mr. Justice McReynolds" who was the next senior judge. And McReynolds would say something short, usually short or a little longer. Whatever McReynolds said or as soon as he finished, Hughes would very quickly call on the next senior, who at that time I think was Butler, and then very quickly go on to the next one, and so on. There would be no rejoinder on Hughes' part, whether the man agreed with him or disagreed with him. And then as soon as the last man had spoken, he said, "Now we will vote." And he would open the docket book to the sheet where this case was listed and starting with the junior judge he would call for a vote. Hughes was very fast, very expeditious, very summary, and Stone thought that the cases were not being adequately considered. And so I was invited by Stone to come out to his house. Stone had a house up on ---

Professor Walter F. Murphy: Wyoming?

Justice William O. Douglas: Wyoming and 24th Street, I think, that he built specially for his particular niece. And in that house he had one side that was a great big study where he had his secretary and his law clerk, and a big library. And we would sit around there. And I say we, those who were invited, three or four or five, would sit around. And Stone would act as a presiding officer and discuss each case and each point, and the thing went on and on and on. Then we would get going to conference, this was the next day. Of the people who were invited out there by Stone were, in addition to myself, were Roberts, Frankfurter, Reed. I don't think he ever invited Black. He, Stone, didn't like Black. He, Stone, didn't trust Black. Stone used to go for early morning walks and he talked very freely to the press about his colleagues. He gave one interview to Marquis Childs about Black. I don't think Stone was identified in the Marquis Childs' article as the source but Stone was the source. And it was, well, not exactly a libelous thing but it was a very distorted cruel caricature of a very brilliant, able man. But again, whether that was the reason that Stone and Black were not close, I don't know. I think it was --

Professor Walter F. Murphy: Like you say from going through the Stone papers that Stone himself bitterly regretted having said that about Black. That he --

Justice William O. Douglas: Perhaps in his later years, but during these earlier times when I first went on the Court, Stone was always saying rather uncomplimentary things in private conversation about Brother Black, and so on. Well, anyway, we would go up to Stone's place and sit around and discuss these cases, then come back into conference on Saturday under Hughes. We would always be through at four-thirty. I said there were several reasons why Hughes got through at four-thirty. One was he was terribly efficient. He could do in four hours what would take the average man eight hours to do. He had a photographic mind. He would take a group of papers, legal-cap size, and you would think he was just turning the pages counting them but actually he was reading. And he could absorb very quickly what he was, what was in front of him. But the other reason why he got through at four-thirty was because he was dealing with an old Court. Brandeis had a principle that he never would sit after four-thirty. Brandeis, by the way, was a Spartan in some respects. I believe he was one of the first, if not the first, member of the Boston Bar who never went to his office on a Saturday. This was way back last century. He thought that five days was enough. The thing that motivated Brandeis in that regard, I think, was one. Not that he was lazy, because he wasn't. Not that he didn't like to work. He did enjoy it. He had a view that fatigue is man's greatest enemy when it comes to judgment and the tired man, frustrated man, worried man doesn't make good decisions. So Brandeis all of his life was on a, most of his professional life, was on a five-day week, whenever he could. When he came to Court, of course, he had to work on Saturdays, but he cut that down to four-thirty. And, while I wasn't there when Brandeis was there, since I took his place on the Court, the stories around the Court were that at four-thirty he would, if Hughes hadn't finished, he would stand up, and say, "I'm sorry, Chief Justice, but I must go and I'll leave my vote." And if Hughes hadn't finished he would finish very quickly. Stone thought that ---