Regional Oral History Office University of California The Bancroft Library Berkeley, California

Peter R. Taft THE LAW CLERKS OF CHIEF JUSTICE EARL WARREN: PETER R. TAFT

Interviews conducted by Laura McCreery in 2004

Copyright © 2014 by The Regents of the University of California ii

Since 1954 the Regional Oral History Office has been interviewing leading participants in or well-placed witnesses to major events in the development of Northern California, the West, and the nation. Oral History is a method of collecting historical information through tape-recorded interviews between a narrator with firsthand knowledge of historically significant events and a well-informed interviewer, with the goal of preserving substantive additions to the historical record. The tape recording is transcribed, lightly edited for continuity and clarity, and reviewed by the interviewee. The corrected manuscript is bound with photographs and illustrative materials and placed in The Bancroft Library at the University of California, Berkeley, and in other research collections for scholarly use. Because it is primary material, oral history is not intended to present the final, verified, or complete narrative of events. It is a spoken account, offered by the interviewee in response to questioning, and as such it is reflective, partisan, deeply involved, and irreplaceable.

*********************************

All uses of this manuscript are covered by a legal agreement between The Regents of the University of California and Peter R. Taft dated October 28, 2004. The manuscript is thereby made available for research purposes. All literary rights in the manuscript, including the right to publish, are reserved to The Bancroft Library of the University of California, Berkeley. Excerpts up to 1000 words from this interview may be quoted for publication without seeking permission as long as the use is non-commercial and properly cited.

Requests for permission to quote for publication should be addressed to The Bancroft Library, Head of Public Services, Mail Code 6000, University of California, Berkeley, 94720-6000, and should follow instructions available online at http://bancroft.berkeley.edu/ROHO/collections/cite.html

It is recommended that this oral history be cited as follows:

Peter R. Taft “THE LAW CLERKS OF CHIEF JUSTICE EARL WARREN: PETER R. TAFT” conducted by Laura McCreery in 2004, Regional Oral History Office, The Bancroft Library, University of California, Berkeley, 2014.

iii

Table of Contents—Peter R. Taft

Interview 1: October 28, 2004

Audio File 1 1

Birth and upbringing as youngest of seven children in Cincinnati, Ohio — High school at Taft in Connecticut — Deciding to go to Yale Law School— Law school faculty— Law Review — Clerking for Judge Richard Rives on Fifth Circuit — Working on opinions — Freedom Riders— Segregation in Montgomery, Alabama — Interviewing for clerkship with Chief Justice Earl Warren — Starting work at the Supreme Court — “Flimsies” (in forma pauperis petitions) — Gideon v. Wainwright — Saturday lunches — A ride with the Chief in a Ford Falcon — Politics and the Chief’s sense of fairness — Working with other clerks — Mrs. Margaret McHugh — Playing basketball with Justice Byron White — Confidentiality — Warren’s leadership on the Court — Voting alliances on the Court — Cincinnati and Justice Potter Stewart and others— President Lyndon B. Johnson — Warren Commission — Oral arguments — Narrator’s later experience as counsel in a case before the Supreme Court— Warren’s graciousness and strong social conscience— Brown v. Board, Baker v. Carr

Audio File 2 22

President John F. Kennedy — Practical view of the law — Majority opinions — Bush v. Gore, a Vanity Fair article — More about confidentiality— Reflections on the Warren Court and an era of change — Narrator’s grandfather, President and Chief Justice William Howard Taft — Balance of powers — President Richard M. Nixon and Chief Justice Warren Burger — Reunions of Warren clerks — Narrator’s career with Williams & Connolly — Edward Bennett Williams — Moving to California to work with Munger, Tolles, Hills, and Rickershauser — Securities work — Previous experience during the Ford administration as Assistant Attorney General for Lands and Natural Resources— Attorney General Edward H. Levi — The Clean Water Act — Environmental work — Conservatism, and reflections on Supreme Court clerkship

[End of Interview] 1

Interview 1: October 28, 2004 [Audio File 1]

McCreery: Here’s tape number one, on October 28, 2004. This is Laura McCreery speaking, and on this videotape, I will interview Peter R. Taft, at his office in Los Angeles. We’re working today on the oral history project Law Clerks of Chief Justice Earl Warren. Well, good afternoon. Could I ask you to start by stating your date of birth and just talk a little bit about where you were born?

01-00:01:01 Taft: I was born in Cincinnati, Ohio, on March 3, 1936.

McCreery: Okay. What was your family circumstance at that time?

01-00:01:11 Taft: I’m the last of seven children. Five girls, two boys. Two of my sisters died fairly early on, and so there’re five of us, and [we] just lost the first one last year. He was seventeen years older than I am, so—.

McCreery: What was your family livelihood during the Depression years, as you were growing up?

01-00:01:33 Taft: My dad was a lawyer. I guess he provided fine for us as kids. You just don’t notice that too much, unless there’s something going on that you miss or can’t have or so on. But I was unaware of a major problem, in terms of our family.

McCreery: Okay. Talk a little bit about your own early schooling. In Cincinnati, was it?

01-00:01:56 Taft: Cincinnati. Went to a private school—actually, my sister’s later husband is the son of the headmaster of the school. It started in her backyard, in the twenties, with a couple of my sisters. It was an elementary school. By the time I got there, it was fairly well established. From there, I went to a public high school for three years, and then went to the Taft School, in Watertown, Connecticut, which was founded by my great uncle, who was headmaster there for a good forty years.

McCreery: How did you like that school?

01-00:02:38 Taft: It’s a good school. It was a good school. Great plant, facility, good teachers, good kids. All boys then, of course, at that time. I enjoyed it.

McCreery: I wonder, growing up with your father as an attorney, as well, how early did you start thinking about the law? 2

01-00:03:05 Taft: I didn’t think strenuously about it. In fact, when I finished my last year of college, I was going around the world. Started on a tramp steamer, got to Australia; was going on, hopefully, to go to the Soburne[sic], Soborne[sic] [Sorbonne ] or something like that, in Paris, for a year or two, to figure out what I would do. I realized after I got to Australia, that I wouldn’t know any more in a year or two than I knew then, so I called my dad up a week before law school began, said if he could get me in, I’d come back. Those times aren’t like today, and he got me in to Yale Law School, with one week before it started.

McCreery: Okay. Well, we kind of skipped over your college years. Could you tell me how it was that you happened to attend Yale as an undergrad?

01-00:03:54 Taft: My brother went there, my father went there, a whole bunch in my family went there, a large contingent from Taft School went there. It’s only kind of down the street, in terms of Connecticut. And I had no reason not to go there, being the kind of place it was and the kind of education you got there, so I was more than willing to go.

McCreery: Okay. And what did you study?

01-00:04:20 Taft: I was a major in physics and philosophy.

McCreery: That’s an interesting combination.

01-00:04:23 Taft: Yeah, you learn not a lot about anything, but it was pretty fun. Talked a lot, did all the normal philosophers and so on, learned a smattering of physics.

McCreery: Okay. Well now, these were the Eisenhower years. I wonder, what were your own political interests as a young man, if any?

01-00:04:47 Taft: None in particular. My father had a number of campaigns, because he was on the city council for years in Cincinnati. Ran for governor, one occasion. He would drag me around, from time to time, to various meetings and so forth that he went to. And I picked up the very bad habit of when he introduced me to all these people, in whom I had no interest at the time, I never even heard their names. For the rest of my life, I’ve been plagued by being introduced to somebody and forgetting their name immediately.

McCreery: So you had the exposure to politics, if not the aptitude for being a politician, shall we say? 3

01-00:05:29 Taft: Or for glad-handing, correct.

McCreery: Okay, good. Well, when you returned to Yale for law school, tell me a little bit how things proceeded for you there.

01-00:05:42 Taft: The law school, even though it’s like a block away from everyplace that I went to as an undergraduate, is like a separate world. It’s very hard to explain. Law school, I think, actually changes the way you think a lot more than college. In college, you learn things—writing and all that kind of thing—but in law school, they really change the way you think. I look back on that as being perhaps the biggest educational change in going to law school.

McCreery: Well, knowing that you attended as sort of a last-minute decision, did you have particular interests in the law?

01-00:06:26 Taft: I don’t know. The first year, I wasn’t real sure I wanted to be there, having worked pretty hard for four years and now starting off in something else, you have to work even harder. But after the first year, I really enjoyed it.

McCreery: Okay. Talk a little bit about the faculty there at that time.

01-00:06:46 Taft: One of the advantages of Yale Law School is that the classes are small. You become very close to a number of the faculty. Guido Calabresi, who’s on the Second Circuit now, was one of my teachers in the first year, and probably second year, as well. He was only a few years older than we were and was very close to a good number of students in the class. So that it was a very collegial, very close group, in which you felt free to talk to professors or anything like that, just about whatever came up or whatever you had in your mind. So in that sense, it was a great place to be.

McCreery: What were your study habits?

01-00:07:38 Taft: My study habits have always been sort of the same, even in college. I like to get my work out of the way. I’m not one to wait till the last minute. I like to get it out of the way and then be free to do what I want. Well, for exams, I’d pull an all-nighter, but rarely during the year, would I do that. I’d tend to get stuff done and in hand, and then feel I had free time.

McCreery: Okay. What about your work on the Law Review?

01-00:08:15 Taft: It’s a lot of work. I was managing editor, which meant I did a lot of the collating and editing of getting stuff into final form, into the Law Review, 4

making sure things were done, in on time and that sort of thing. I look on it probably as being what medical students have to do when they have to stay up in eighty-hour weeks, which is supposed to be their minimum. It’s tough in a way, but I guess it pays off. [he laughs] I’m not sure, after all these years.

McCreery: Okay. As an aside, what was your living situation during law school?

01-00:09:05 Taft: For one or two years, I was a live-in on one of the undergraduate colleges. In my senior year, I was off campus, with another student from the law school.

McCreery: As time went on, were you thinking much about what you would do after law school?

01-00:09:31 Taft: Not particularly. Again, I had no plan, put it that way. Clerkships were obviously things that most law students wanted to do, because from everything that we heard and knew, if you have a clerkship, it’s much easier to get to whatever the next step is. Obviously, the Supreme Court is the ultimate clerkship to prepare you for whatever you want to continue to do, especially in the law.

McCreery: Okay. Before we talk about your two clerkships, I was thinking about the fact that the 1960 presidential election occurred while you were in law school, and then subsequently, some of the changes to the makeup of the court itself. Was that much discussed in your courses, do you remember?

01-00:10:33 Taft: No.

McCreery: Or were you particularly tuned into the Supreme Court, while still a student?

01-00:10:40 Taft: Alexander Bickel taught constitutional law. He probably kept us pretty much on top of it, but I don’t have strong memories coming from that, except of him.

McCreery: Okay.

01-00:10:59 Taft: My approach to the law has not been [as] a dedicated believer in law for its own sake, put it that way. I look on law much more practically, I think, than many people do.

McCreery: Well, later on, we’ll have to explore how your view of it, perhaps, compares to Chief Justice Warren’s. But before we do that, how did it come to pass that you had the clerkship on the court of appeals? 5

01-00:11:36 Taft: Judge [Richard] Rives was in the Deep South, lived in Montgomery, Alabama. The Fifth Circuit had the advantage that it circuited. So they traveled throughout the South, from Florida to New Orleans to Houston. As a result, it offered the opportunity to see a good part of the United States, in that sense. I had never been in the South at all, and I was very interested in that, from an experience point of view. Actually saw a little note on the bulletin board, of the lawyer who had come from Yale and was his clerk the prior year. He was putting up notice that if somebody was interested, it was a very good clerkship. So I took that, called him, and ultimately sought to work for Judge Rives

McCreery: Why so strong an interest in the South, do you remember?

01-00:12:35 Taft: In part, because I just had never been there or spent any time there. I think for Northerners, it’s almost a curiosity; and probably more so back in those days. So I was interested in seeing what it was like, seeing what the people were like, what the places looked like.

McCreery: Did you then go down to Montgomery to interview with Judge Rives?

01-00:13:01 Taft: I’m trying to think. I don’t think so. I don’t think so. It was done on paper. The law school recommended me, and if I remember right, the clerk that was there before me knew me, and the judge sort of took me on blind faith.

McCreery: Okay. Well, tell me what you recall about starting that clerkship, arriving there and getting started.

01-00:13:28 Taft: It was in the end of the summer and it was really warm. Of course, at that point, you just opened the windows when it got hot; there wasn’t much else to do about it. I think the first few weeks, the judge was on vacation at his house down on the Alabama coast, on the Gulf Coast. I started out down there—or at least within the first week or something, I was down there—and spent some time with him at his cottage on the beach. So I got to know him better. Then came back and started to work. With him, you worked very closely.

McCreery: You were his only clerk, I take it, that year?

01-00:14:12 Taft: Yes. He had read law; he never went to law school. He was in his probably seventies, at that time. So you’re talking reading law back in the teens, early 1900s. He was very polite, in the Southern sense that you’d kind of expect. On the other hand, was very bright and had a way with people that he had literally moved through Alabama, Alabama politics, onto the court, and just had this 6

style about him which was very relaxed. Not remote, but very calm. So everybody loved him. I guess that’s the best way to say it.

McCreery: Did he talk to you much about his own background?

01-00:15:11 Taft: We’d talk from time to time, about especially reading law, how different that was than going to law school. You just started off in a lawyer’s office, and when you thought you knew enough, you took the bar exam. If you passed, you were a lawyer.

McCreery: I gather that wasn’t too rare then.

01-00:15:28 Taft: I assume not.

McCreery: When he did it.

01-00:15:30 Taft: Yeah.

McCreery: Yeah. But you don’t run across it too often today, do you?

01-00:15:33 Taft: You don’t run across it today at all.

McCreery: Okay. Now, you said you worked quite closely with him. What was his style of working with his clerk?

01-00:15:44 Taft: Well, we’d work on opinions. He’d work on drafts and I’d work on drafts, and sort of work them back and forth. It was pretty close work, in turning out opinions.

McCreery: Do you recall anything about the size of the caseload?

01-00:16:06 Taft: Not really. It wasn’t overwhelming. I suppose I can say that, because that I would remember.

McCreery: Right. You describe the traveling aspect of going around quite a large territory.

01-00:16:17 Taft: Yes. Yes. Florida to Texas.

McCreery: Okay. What do you think you learned from him? 7

01-00:16:26 Taft: But we also went over and sat on a three-judge court in Jackson, Mississippi, dealing with the arrest of the Freedom Riders, which was perhaps one of the more interesting things we did; and gave a sense of the trial court, as well, because we actually heard testimony.

McCreery: What do you remember about that?

01-00:16:43 Taft: Well, just it was the story there live, in front of you, with lawyers on both sides. You heard from the Freedom Riders themselves, some of whom had been beat up and so on. So it was a fascinating trial.

McCreery: Yes, and a very interesting time.

01-00:17:04 Taft: Correct.

McCreery: What was it like to see Judge Rives in action in those situations?

01-00:17:10 Taft: Of course, you see him on the court of appeals all the time, on the appellate bench. The trail bench wasn’t that much different, because there were three judges. It was a three-judge court, with appeal going straight to the United States Supreme Court. So it was just you had trial testimony. I kind of forget how the judges handled objections on testimony. I wasn’t as attuned to that as I would be today.

McCreery: Now, thinking back, since you were spending time in the South for the first time, what were your responses to the atmosphere there generally?

01-00:17:51 Taft: Again, they were very nice people. It was interesting to see. You’d drive around town, you’d drive into some of the black areas, and all of a sudden the roads were unpaved, things like that, in parts of Montgomery, Alabama. You saw the separation; I never really felt any animus behind it. Especially in a smaller town like Montgomery, it was sort of a fixed way of life. Anyway, it was interesting.

McCreery: Well, from there, of course, you moved on to your clerkship at the United States Supreme Court. How was all that arranged? Did Judge Rives have a role in it?

01-00:18:54 Taft: I probably should back up a second. I applied to the Supreme Court straight from college, as well. The law school recommends lawyers, students, to go down and interview. You really don’t go to interview if the law school isn’t backing you. I’m not even sure the justices would take your interview. They 8

were willing to sponsor me for Justice Harlan [John Marshall Harlan II]. So I went down and interviewed for Justice Harlan, straight from law school, and did not get the clerkship. So then I took the clerkship with Judge Rives. And from Judge Rives. I did not use the law school to apply for a clerkship with the Chief Justice Earl Warren. I went straight to the Chief Justice, with a recommendation from Judge Rives. That apparently was sufficient to get me the clerkship.

McCreery: Okay. Different method of approach, shall we say? Well, what was your first interaction with the Chief Justice? Did you meet him in person, as a matter of—?

01-00:20:05 Taft: That, as I remember, I interviewed, yes.

McCreery: First impressions?

01-00:20:11 Taft: First impressions are hard to divide from later impressions, because they don’t change a huge amount. So I have to talk really, in some ways, a little more about what he was like as a person. He was first of all, I think, a very successful politician. You were never sure you weren’t getting the political façade that he had developed through his career. In some ways, I think he was quite a shy man. So you never were really quite sure. It’s not like it was phony or anything; it was what he was. It’s just the way he was as a human being, by that time in his life, which had very much of, I think, a public persona about it. So I would say my first impression was that impression, and to a great extent, it remained so.

McCreery: To what extent did you see someone different in your private interactions as a clerk, from what the public or a wider audience might see? Is that possible to describe?

01-00:21:34 Taft: I don’t think you’d see a huge difference, except that you wouldn’t be having the close give-and-take encounter. Because obviously, most his relationships as Chief Justice and so forth weren’t one-on-one, but generally were with a larger group. So I think you’d just see it more close up than what others would see; but it’s not like you saw a totally different person, which I think may be true with some people.

McCreery: How did he and his clerks address one another?

01-00:22:13 Taft: We called him Chief. That’s what you called him. 9

McCreery: Yeah, okay. So you were moving to Washington, getting started. First of all, where did you live that year?

01-00:22:28 Taft: I was in North—. Now I’m trying to think. I might’ve actually been in Southeast. I was only about three blocks from the court, and I walked there every day. I was there and I had two other roommates, in a small townhouse that was just a few blocks away. I can’t remember how I fell into that one, but anyway, it worked real well.

McCreery: I’ve heard that some of the other justices and the Chief himself would often walk to work. Did you ever fall in with that crowd who were walking with any of the justices?

01-00:23:09 Taft: No. Most of them were coming more from Northwest than they were from Southeast.

McCreery: I can imagine. Okay. Well, do you remember, when you showed up for work at the start of this clerkship, was there someone there from the previous year to show you the ropes? Or how did you get started?

01-00:23:27 Taft: We had three clerks. We had three, because we wrote up all the IFPs for the whole court—in forma pauperis. We wrote up the two- to three-page summary, which they called flimsies, that were circulated to the whole court. So we had a substantial workload. In fact, Stewart Pollock, who was the clerk for Harlan that year, helped us in that particular job, so we really had almost four of us working on the IFP applications.

McCreery: And there were a significant number of those, from what I understand.

01-00:24:03 Taft: There are a lot of those. Lots of those. And some of them, a number of the cases that are important that come out of the Supreme Court, come off the flimsies—or as we say, off the IFPs—because they’re the ones from the criminal justice system, for the most part. I don’t know if Gideon v. Wainwright started as an IFP, but many of them did.

McCreery: I believe it did.

01-00:24:33 Taft: I believe it probably did. Which means picking out the point and making it important enough for the rest of the court to decide it’s important depends on those few law clerks who wrote them up, because they were probably the only ones that ever read the original application. 10

McCreery: That particular case, just from what I’ve read, one of the clerks from the previous year, Mr. {Steinman?}, was the one to sort of spot that case and started making its way to then—

01-00:25:01 Taft: Could be. Yeah, could have been.

McCreery: —it eventually coming to pass in your year. Do you have much memory of who in your group worked on that case or where things stood?

01-00:25:16 Taft: No. I really don’t. I would imagine Tim [Timothy Dyk] did it, because he was there for the second year and that was a high profile case. So he probably worked on it. But you’ll find out when you talk to him.

McCreery: I will. Okay. Now, how did you, the three-slash-four of you, divide up your workload and your assignments? On a week by week basis, how did this work?

01-00:25:42 Taft: The flimsies would just—. I forget how we assigned those, but it was three to four stacks, and you just grabbed a stack. The setup for the Chief’s law clerks was slightly different than most of the other chambers, because most of the others, they had two clerks and the chambers were set up that the justice had a chamber; there was a reception area; and often, the clerks sat in an office on the other side of the secretary. We, however, were on a separate floor. We were upstairs. Tim had his office, and John Niles and I, who were both there for just one year, were in a single larger office. So that’s sort of how the physical setup was.

McCreery: Yeah. Kind of a lack of proximity, really, to your justice.

01-00:26:36 Taft: There was somewhat of a lack of proximity, in that sense.

McCreery: Well, as a practical matter, when and how did you see the Chief Justice, during a typical week?

01-00:26:51 Taft: When there was a case for which he was going to write the opinion, or a dissent, or was going to take an active role in what the opinions were going to look like, generally, whoever was going to work on it with him, we’d go down to his office and work with him and have a discussion with him in the office, of what the task was, if you will. Then we’d return and work on it. Our closest contacts with him were usually on the weekends, when we’d often go to watch football games at the—. Federal Club? I forget the name of the place we used to go. But anyway, it was in one of those downtown—. 11

McCreery: So those were those long Saturday lunches?

01-00:27:40 Taft: Those were long Saturday lunches.

McCreery: What did you talk about on those occasions?

01-00:27:46 Taft: Well, you’d talk about family; often, we talked about football, because that’s what we were going to watch. He was an avid fan. A really amusing thing I remember one time. I drove him to lunch. I had a Ford Falcon, which is one of these little cars. He’s a fairly large man, and was used to being driven with a driver and sitting in the back and having a lot of room. He had gotten in the front seat of my little Falcon, and he had hold of the hand grip just above the door, in his other hand here, and I think he wasn’t sure he was going to make it. Here he was just a foot from traffic on all sides. It was pretty amusing—I even thought so at the time—to watch him there, quite tense, being in the front seat of this small car.

McCreery: Okay. But as you say, you discussed all kinds of subjects. We know he was quite interested in sports.

01-00:28:53 Taft: Politics, to some extent, but not tremendously. Talked about past politics. In other words, California politics, he loved to talk about. Not too much about current politics. Hard to think of all the things we did talk about, but it was pretty much anything we wanted to.

McCreery: Well, you already touched on his skill as a politician and the long experience he brought with him from California. How do you think that served him on the court? Any thoughts about that?

01-00:29:32 Taft: I think that he took it as his job to make the court work. Irrespective of what visions there were or what opinions there were back and forth, he viewed it his job to make it work. Make sure that opinions or views were not so strong that it would divide the nine of them into certain kinds of factions or whatever. I think he viewed it very much to try and get as much cooperation on an opinion as he could muster. Of course, he had the right to assign opinions, as the Chief. I think he used that fairly strongly, in order to make sure that the opinion would get as much support as possible within the court. So I really think that he very much retained that political sense of an institution, as he exercised his rights and powers as Chief Justice.

McCreery: Of course, by the time you were there, he was in sort of his tenth year as Chief. He’d been there a while, and certainly had established himself. Did you have much chance to see him interact with the other justices outside of court? 12

01-00:30:59 Taft: Not too much. No. No, not really.

McCreery: Okay. Well, you were talking about how you would discuss a case with him if he were assigning it. I wonder, what kind of instruction did he give you about your work?

01-00:31:16 Taft: Basically, he would tell us the major points that were supposed to be in the opinion. When they finish a conference, I think they’ve probably figured out the major points that they want to make—as a court or a majority, whatever group it is—that they want the opinion to espouse. So basically, instruction we would get on working on an opinion was the major points that the opinion was supposed to cover, and the conclusions it was supposed to reach. As I remember, he did not work a lot on the actual structure and writing. In that sense, we had quite a bit of freedom, in the sense of drafting the opinions for the first round. But as I say, the instructions of how we were to do it were pretty explicit.

McCreery: Okay. Then to what extent would you go back and forth with versions of things? What’s your recollection of that?

01-00:32:31 Taft: Some, but not too many. I’m sure if it was a really important opinion, there would be more. But a lot of them aren’t, once you kind of knew what you were doing.

McCreery: Are there particular cases that stand out to you as examples?

01-00:32:48 Taft: I couldn’t even tell you what I worked on. I’d have to see the opinion, in order to see the opinions that we wrote that year, in order to think of which ones I worked on.

McCreery: That’s fine. I wonder, how did you work with the other clerks? Did you consult one another very much when you were assigned a particular opinion to work on, let’s say?

01-00:33:10 Taft: Yes, yes. Yeah, absolutely.

McCreery: Tell me about how the three and four of you interacted.

01-00:33:17 Taft: It’s kind of funny, because Tim was his second year. I don’t know if he was considered the senior or whatever. John and I were in the public room of the larger room of this little clerks’ suite. He and I played a lot of wastepaper basketball and getting rubber bands into the ceiling lighting fixtures and 13

things like that. We had a very close relationship, in that sense. We had a lot of fun in the work we did, so we probably worked closer together than we did with Tim.

McCreery: Okay. Yeah, I’ve heard some stories similar to that, shall we say? [they laugh] Activities in the offices.

01-00:34:06 Taft: But of course, I don’t think you can leave out Mrs. [Margaret Krueger] McHugh, who was his secretary.

McCreery: Yes, please tell me something about her.

01-00:34:11 Taft: Who was also a dominant personality. If you wanted to see the Chief, you went through her. Or if the Chief wanted to see you, it came through her. She had a good sense of humor and was a strong character. She was just fun to work with.

McCreery: I don’t hear too much about the sense of humor. Tell me what you remember.

01-00:34:35 Taft: Oh, it was caustic. She had a sharp tongue. But at least in my view, it was always something you could work around and she didn’t mind.

McCreery: What did she think of law clerks?

01-00:34:56 Taft: I don’t know. I think she liked them. After the Chief was gone—God, it must’ve been ten years later—I met her, and she was, I think at that time, working as some administrative personnel in a brokerage firm. I saw her again and we just hugged each other. Really had a warm relationship with her. She was great. One funny thing is—. We often came in and worked on Saturdays. There was one time that I was at home, pretending I was in the office. I was talking to her from home. She didn’t tell me—I don’t think it was till months later—that the calls from home came in on a separate line. So she knew immediately, I was calling from home and was faking being in the office. That’s the sort of thing. She never let on and just pretended I was there.

McCreery: That’s a nice detail. Well, did you have much of a view of her relationship with Chief Justice Warren? How did they work together?

01-00:36:01 Taft: I think it was pretty close. I think he relied on her a lot, I think he liked her a lot.

McCreery: He, of course, had inherited her from Chief Justice [Fred M.] Vinson. 14

01-00:36:11 Taft: Had he really? I didn’t know that.

McCreery: She had been there quite a long time. You mentioned the wastepaper basketball and I just wondered if any of you guys played on the real basketball court upstairs.

01-00:36:27 Taft: Yes. In fact, [Byron] “Whizzer” White would come up from time to time.

McCreery: Did he?

01-00:36:33 Taft: Justice White would come up and play sometimes with us. [At] times, we saw him.

McCreery: Yeah. Well, he was quite a sports figure.

01-00:36:46 Taft: Oh, yeah.

McCreery: So you got to know him, perhaps, a little bit?

01-00:36:50 Taft: Perhaps a little better than some of the others.

McCreery: What sort of person was he?

01-00:36:55 Taft: He was just, I think, a really nice, straightforward man. Just all upfront. What you saw was what you got, and that’s who he was. Again, a very strong personality, but a nice man.

McCreery: Of course, he had just started recently, that previous spring, I guess it was.

01-00:37:15 Taft: Was it?

McCreery: Yeah.

01-00:37:20 Taft: But yeah, we had lunch as a group, among clerks, for the whole court. We usually had a justice come and speak to us once a week or once every two weeks or something like that, so that’s the main way we saw most of the other justices, was they’d come and talk to us at lunch.

McCreery: And then I gather there were some other outside guests sometimes for those? 15

01-00:37:46 Taft: Maybe. I don’t remember.

McCreery: Yeah. Okay. I’m wondering if the Chief Justice gave you any particular guidance or instruction on the matter of confidentiality. Or was that simply understood?

01-00:38:03 Taft: I’m sure he did. Those kinds of things were very important to him. I don’t particularly remember it, but I’m just sure he did. I think the sense of the clerks themselves—whether it came starting in law school or whatever, what we heard about clerkships, what we believed they were supposed to be—there was a very strong sense among all the clerks that it was confidential and you didn’t rat on your own justice, so to speak. Among clerks, you’d be circumspect about anything you’d say about your own justice to the clerks of another.

McCreery: So the culture was very well defined, even among the different offices, how the clerks would interact.

01-00:38:46 Taft: I think so, absolutely. Yeah. I wouldn’t have even dreamed of telling stories out of school about the Chief. It just wouldn’t have entered my mind to do that, even to another clerk for another justice.

McCreery: Okay. Were there any breaches of that, that you can recall? Or was that pretty universally followed?

01-00:39:08 Taft: Not that I’m aware of. Not that I’m aware of.

McCreery: All right. Well, you mentioned the Saturday lunches and the chance to socialize with the Chief Justice and others. I wonder, outside the formal court business, what was the culture, and was there other socializing besides the lunches?

01-00:39:37 Taft: I may have gone to a cocktail party, one or two, where justices were there; but I wasn’t there because of them. That’s about it.

McCreery: Okay. Did you have any occasion to get to know Mrs. Warren or other members of the Warren family?

01-00:40:01 Taft: Not much. We did not meet them very often. I’m just trying to think. I must’ve been in his apartment, because I know I met her and I’m sure it was there; but I can’t remember why or what the event was. But I know that I had met her. Of course, when we had the clerk reunions, we’d see the rest of the 16

family there. Because often his daughters, one of them, would come to the clerk reunions.

McCreery: You mentioned that the Chief Justice was skillful at leading the court. I wonder, whom could he talk to, among his fellow justices?

01-00:40:48 Taft: In the sense that, did he have confidence among the justices on the court? I don’t know. I just don’t know.

McCreery: You were separated from that.

01-00:40:57 Taft: Yes. And we wouldn’t know who’s walking in and out of his office.

McCreery: Because you weren’t right near it.

01-00:41:05 Taft: Simply because we weren’t there.

McCreery: Okay. Can you talk a little bit, just again, from your own viewpoint at the time, about the kind of voting alliances of the year you were there? You had the justices [Hugo] Black and [William O.] Douglas were still there, Justice [Tom C.] Clark. I guess the [Dwight D.] Eisenhower appointees, you had Justices Harlan [John Marshall Harlan II], Brennan [William J. Brennan, Jr.], and [Potter] Stewart; and then the new [John F.] Kennedy appointees.

01-00:41:37 Taft: Stewart, I had known, because he came from Cincinnati and he was actually, I think, on the city council with my father, at one time.

McCreery: Oh, really?

01-00:41:45 Taft: So I actually knew him before I went for my clerkship.

McCreery: What do you remember about him from the old city council days?

01-00:41:53 Taft: Again, this would’ve been when my father took me along someplace and I shook hands; but I did remember his name.

McCreery: Okay. [they laugh] Good thing, too.

01-00:42:01 Taft: Good thing, yeah. 17

McCreery: Well, what kind of figure was he on the court? Again, from your view at the time.

01-00:42:14 Taft: Well, he was, I would say, one of the stronger members of the court.

McCreery: He certainly had that reputation.

01-00:42:23 Taft: I went and met him a couple of times, while I was clerk, just talked to him. I liked him a lot. Again, he was, I think, a nice man. Went and talked to Douglas once, and that was an experience. He was kicking the desk the whole time I was there, like, why the hell are you in here talking to me?

McCreery: Really?

01-00:42:52 Taft: Yes, he was a strange one. When he came and talked to us as a group of clerks, he was just as charming as he could be. He was an unusual man; that’s all I can say.

McCreery: He could turn on the charm, though.

01-00:43:09 Taft: Turn it on and turn it off.

McCreery: Of course, he’d been there for quite some time.

01-00:43:13 Taft: Long time.

McCreery: And continued another—whatever it was—ten years or so, after you were there. What did you think of him at the time?

01-00:43:25 Taft: I don’t know. Obviously, he had his views; he had strong views, which were pretty well expressed in his opinions; and I think was very much a loner. So it’s hard to say. Justice Black, I met several times, because he had come from Alabama before, and he was a good friend of Judge Rives. Or I don’t think he came from Alabama, but anyway, he’d spent time there and he and Judge Rives knew each other fairly well. He was a just delightful human being. Really nice person.

McCreery: And was willing to spend time with other clerks? 18

01-00:44:12 Taft: Yeah, he’d spend time with you. I may have been to his house once, I can’t remember. It’s sort of a vague memory. He lived over in Alexandria, if I recall.

McCreery: Well, what a great experience, though, to be able to interact a little with some of them. It must’ve been quite interesting.

01-00:44:30 Taft: Mm-hm.

McCreery: Well, let’s talk a little bit about the newer members, President Kennedy’s appointments. We talked about Justice White briefly, who hadn’t been there very long. And then I gather Justice [Arthur] Goldberg came that fall, when you were there. Do you remember much about his entry into the court and swearing in and that whole business? Which I gather was around October.

01-00:44:57 Taft: Really? Not too much. I met him a couple of times. He also was a nice man. I had a little more feeling, with respect to him. He was a little more scattered.

McCreery: Different sort of presence—

01-00:45:17 Taft: Different sort of presence.

McCreery: —than, say, a law professor.

01-00:45:20 Taft: Yeah. He left the court for something; I’m trying to think what it was.

McCreery: Well, President [Lyndon B.] Johnson pressured him to resign and become the ambassador to the UN, just a few years later.

01-00:45:34 Taft: Yeah, conned him into that one. What a mistake that was.

McCreery: Yeah. And President Johnson was said to be very persuasive in such matters.

01-00:45:43 Taft: I had seen him in action, and he was.

McCreery: Had you seen him in action?

01-00:45:45 Taft: I saw him in action. I forget why. I was a bachelor at the time. I went out with the daughter of Congressman [Hale] Boggs, from New Orleans. She took me to a couple of parties, which had all the bigwigs, including Johnson. He was a spectacle to watch. He had such a huge personality. Wherever he was, there 19

was a group. He was telling some story, doing something. He never stopped moving.

McCreery: Probably the center of the action—

01-00:46:22 Taft: Absolutely.

McCreery: —in just about any setting.

01-00:46:24 Taft: Yeah. Just even from those couple of times, I could see how persuasive he could be, when talking as president and saying, I need you, and I need you to do this job, and this is important for the country and so forth. That he could talk Goldberg into resigning and talk the Chief into the Warren Commission—

McCreery: Yeah, same thing.

01-00:46:43 Taft: —and a few things like that. It’s just the kind of dominant personality he was.

McCreery: Did you ever hear much about that time of forming the Warren Commission and how he persuaded the Chief Justice? Realizing that was after you left.

01-00:46:59 Taft: Not too much, no. Thought it was a mistake to do it, frankly.

McCreery: I gather the Chief was quite reluctant, and said so. But again, that persuasion prevailed, shall we say. Well, when the justices were in action in the court, how often were you and the other clerks on hand to attend oral argument and see this play out?

01-00:47:43 Taft: Went a number of times on things that interested us. But I can’t remember any particular case, for instance, that I went and did watch.

McCreery: You had earlier mentioned Gideon versus Wainwright. That’s a little bit of interest, because Abe Fortas, who was a Washington lawyer at the time, was persuaded to argue for the defendant. I didn’t know if you had any memory of seeing that one play out.

01-00:48:16 Taft: I don’t know if I watched that or not. And I once argued before the Supreme Court, when I was assistant attorney general in the [Gerald R.] Ford administration. What’s so fascinating about it and exhilarating about it is that, as the attorney, you’re in the midst of a different maelstrom that’s going on, [among] the nine justices that are up there. But sometimes, you’re really out 20

of it. The conversation’s going back and forth between a couple of justices. Sometimes the lawyer is a go-between. In other words, the question is asked with the intent that the answer is to affect this guy on the other side of the bench. So watching a Supreme Court argument that has something at stake in it is just a fascinating thing to see. To really see them up there, in a sense, working the case during the argument. Working on each other and making sure some views get out and are expressed by the lawyer that’s making the argument. Whereas a few justices just sit there like old gnomes behind the bench; you don’t know what’s going on.

McCreery: They don’t tip their hand.

01-00:49:43 Taft: Yes, won’t tip their hands at all.

McCreery: Yes. Well, that’s great that you got to experience this later on, arguing before the court itself.

01-00:49:50 Taft: Yes. Right.

McCreery: How did you do, by the way?

01-00:49:54 Taft: I won. That’s a funny case in itself. It was early on in the Clean Air Act. It had to do with emissions from an electrical plant in the island of Guam, where 100% of the air probably turns over every half hour, over the island. So these emissions aren’t going anywhere, except out over the ocean. So that I think it’s sort of been highlighted as a case, to avoid being in a situation that might have a lot more competing interests around the case. So I won. We established our principle, and that was the objective of the case.

McCreery: Okay, thank you. Well, when you were there as a clerk, I wonder what you recall about seeing Chief Justice Warren in action in court. What was his treatment of counsel, for example?

01-00:51:01 Taft: That’s the thing; he’s gracious to everybody, I don’t care what the situation was, and would be there, as well. When he talked, it was usually to establish what he considered to be the key issue or whatever in the case. If he got in an argument with somebody else on the court, it’s in a sense, a little different than, say, if Black was talking to Douglas or something. I always had the feeling that with him, he never lost track of molding where the case was going to go. And I think his participation on the bench had much of the same flavor to it. 21

McCreery: Did you have much of a sense of how he would place a case in a larger context? Was he trying to make certain kinds of changes over time? Did you have much sense of that?

01-00:52:34 Taft: I think you’d look on him as having a fairly liberal philosophy, as a justice. They say it’s the Warren Court, and I think it’s said with some reason. From the time period he was there, from Brown v. Board of Education, up until he retired, he had a strong social conscience, he had a strong structural sense of what he thought the political community should be. I think that affected a great deal of what he did.

McCreery: The term we always hear is judicial activism. I don’t know if one thought in those terms at the time, but how do you place him?

01-00:53:29 Taft: Probably against a background of where there had been much less, I think where a lot of issues are avoided. You think in terms of reapportionment, think in terms of obviously, criminal defense rights. I think they took up a number of issues that the court had avoided in earlier times, but were, in a sense, unresolved. Probably many of them needed to be resolved at some point, and he wasn’t afraid to take them on, in that sense. But they probably reached out in some of their analysis, from time to time.

McCreery: Yeah. And there’s always the question of which came first. There were so many changes in our society at the time, which eventually would demand changes in our view of constitutional law. Yet as you say, many of those kinds of changes hadn’t taken place, so it’s sometimes hard to trace where decisions are growing out of what was happening in the country or vice versa.

01-00:54:53 Taft: Well, I think some were a bit of a catch-up, if you will, as opposed to getting out in front. I think there are few things they got out in front on, probably, before his term was finally over.

McCreery: You just mentioned the apportionment cases. Of course, one of them had been decided just the term previous to yours, and then one I guess the year after or so. I don’t know if you and your fellow clerks had occasion to actually work on those.

01-00:55:22 Taft: I remember working on at least one. It could’ve been one that went over or something. But I seem to remember we had at least one reapportionment case.

McCreery: Okay. Because the one the previous year was the Baker versus Carr, and then Reynolds versus Sims was actually decided in ’64, but may have been in the works before then. Well, the Chief Justice apparently mentioned rather often 22

that he considered Baker versus Carr his most important decision of his whole tenure. Do you remember him talking about that conceptually with you, the apportionment matter?

01-00:56:12 Taft: Not particularly. But very easily could have. He grew out of a state where he knew the intimacy of politics that dealt with apportionment districts, where the legislators were coming from, so that’s something he had a lot of intimate knowledge, personal knowledge about, from his time in California. So that it fits with him thinking that’s a very important issue. And is still one that I think bothers the country, because it’s sort of like the fox is in charge of the henhouse, when you say it’s totally in the control of the legislators, every ten years, to do the reapportionment themselves. So I’m sure he thought it was extraordinarily important to put some parameters around that. The kind of thing you don’t want in a democracy is where there is no outlet when things get off track and start going in the wrong direction, in one area or another. He probably viewed that as a necessary parameter to make the system continue to be viable.

McCreery: He did, from what I understand, express such interest in assuring a system where there would be representation. Again, he brought from California a lot of firsthand knowledge of how that would play out in a particular populace.

01-00:58:07 Taft: Absolutely.

McCreery: Yeah. Here we are, just days away from another presidential election, so it’s a timely topic, anyway.

01-00:58:16 Taft: Your little red light’s blinking. Does that mean something?

McCreery: It is. It does mean something. I was just going to say, as we reach a stopping place, I’ll turn this off and change tapes, so I’ll do that now.

01-00:58:24 Taft: Okay. Okay.

[End Audio File 1]

[Begin Audio File 2]

McCreery: Okay, tape number two. Still October 28, 2004. This is Laura McCreery, continuing the interview with Peter R. Taft in Los Angeles, for the Law Clerks of Earl Warren oral history project. I was thinking about the fact that you were a law clerk to Chief Justice Warren during a very interesting period, what turned out to be the height of President Kennedy’s administration, before 23

any inkling of what would become of him. I wonder, knowing of Chief Justice Warren’s great interest and experience in politics, did you have much knowledge of his relationship with President Kennedy?

02-00:01:19 Taft: No. No. What I do remember is that the crisis over the missiles in Cuba that took place—.

McCreery: The Cuban Missile Crisis. That fall, wasn’t it?

02-00:01:36 Taft: It took place while we were there. I distinctly remember the unease that you felt that it could get out of hand. We were sitting there, right there at ground zero, if you will.

McCreery: Yes. Yes. Yeah, that was a scary time, I’m sure, at the time. But in any event, you didn’t have any chance to see them interact, or to hear too much about the president, did you?

02-00:02:03 Taft: No. No.

McCreery: Okay. All right. Other members of the administration, did any of them visit your law clerk lunches, for example? I know that often the attorney generals were invited.

02-00:02:22 Taft: Gee, who was the attorney general then?

McCreery: Well, his brother, Robert Kennedy.

02-00:02:33 Taft: I remember something dealing with him, but I’m not sure [if] it was at the court or at the Department of Justice. I can’t remember exactly.

McCreery: That’s fine. Just got to ask. I know I’m really trying to pin you down here. But it was such an interesting time. You mentioned your own experiences working in the South, for a time. Of course, there were all of the freedom marchers and the civil rights issues welling up. I wonder, to what extent was Chief Justice Warren affected by these events, from the cloister of the Court, if you will? Any idea?

02-00:03:35 Taft: No, not really. I’m sure he did have. Coming out of the State of California and being both attorney general and governor, I’m sure he had some fairly strong views on it, but I just don’t—. And I don’t remember it coming up, particularly. He was a pretty straight law-and-order guy. You talk about an 24

activist court; it’s not an activist court in the sense that it’s okay just to go violate the law. That wouldn’t go down with him at all.

McCreery: Certainly, he had quite a law-and-order background earlier in his California career.

02-00:04:17 Taft: Absolutely.

McCreery: As district attorney and attorney general and so on. So it makes for a very interesting and complex character, doesn’t it?

02-00:04:26 Taft: Yes.

McCreery: Certainly. Well, he of course, too, had survived years of the “Impeach Earl Warren” billboards and all kinds of indications of maybe not general public perception, but certainly a facet of the public. Was he bothered by all that much at all, do you recall?

02-00:04:50 Taft: I never got a great sense that he was. I think he came through some pretty stormy times in California. California was always a little raucous, so that I’m sure he took it with a pretty great grain of salt. In a sense, he had the background to live through it, as opposed to someone that, say, just came out of a fairly cloistered private practice and went on the court, not having had his kind of public experience; would’ve been much more difficult.

McCreery: Of course, one of the things often mentioned about him in the negative, if you will, is that he himself didn’t have the judicial experience. He had that other kind of political experience in spades, but didn’t have the experience on the court. What’s your own view of how important that was?

02-00:05:54 Taft: It’s probably more important to law professors than it would be to me. I have a very practical view of the law, as opposed to a professorial view of the law. Constitutional law, to me, is something that, you need to make the society work. It’s not that it has some other intrinsic, almost Platonic ideal value to it. So that I’m probably closer to what his view was than many others may be. Even though I have never been in politics, I think I would react more the way he does, in terms of cases that would come to the Court in situations like that.

McCreery: You had mentioned earlier in the interview your own view of the law. I wonder how much he influenced you in that view. Or did you come to the court already with that way of looking at things? 25

02-00:07:01 Taft: It probably has a great deal to do with my outlook on life; but he certainly would—. He’s a model, in the sense that you can do it and it works, if you will. I don’t think he changed me tremendously, but he was clearly someone that was a powerful historical figure.

McCreery: What did you learn from him?

02-00:07:39 Taft: There was one time—I forget what we were talking about—there was some legal problem or something, and his final response was, “Well, the more you chew it, the bigger it gets.” [he laughs] That sort of summed it up. So he didn’t fall all over problems.

McCreery: Well, he was said to be quite interested in results, more so than how one got there.

02-00:08:41 Taft: I think, again, that goes back to constructing majority on a particular opinion on a particular case. It’s not that he didn’t have views on what the results should be; it’s that I think he cared more about what it took to get the majority on a particular opinion and then pick a particular set of views in an opinion, than insistence that it had to be the analysis that he wanted. It’s impossible to be in that situation and now know what the law and the legal issues are. That’s what that place is all about, it’s what all the law clerks are about. It’s a highly legal atmosphere. So it’s not like, I want it resolved and I don’t care how you get there, and somebody just fill in the blanks. So that you know the issues on all the major cases that are up there. You know what they’re about. He didn’t feel dedicated to a particular way of expression, if it would lose a vote. So that in that sense, if it had to be stated some other way to keep a vote, to keep a majority, to get a larger majority, my view is that’s the way he would go.

McCreery: Did you ever find that you or the other clerks disagreed with him in a major way or would reach any kind of roadblock in the work?

02-00:10:27 Taft: I think, in a certain sense, attorneys coming out 1961, law school classes of ’61, ’60, who were ending up being clerks on the Supreme Court, didn’t at that time, have the emotional commitment or the emotional structure behind their beliefs that would lead them to say, “I just can’t do that; I can’t make this case come out that way; I don’t want to work on it; it’s bad and it’s wrong.” I don’t think any of us thought that way.

McCreery: Yeah, it’s important to remember the times were very different then. I don’t know how that would compare to Supreme Court clerks today, but certainly— . 26

02-00:11:27 Taft: Well, I think you can see it in the Vanity Fair article.

McCreery: Yes. Well, talk about that a little bit. You mentioned that before we started taping. Give me your thoughts.

02-00:11:35 Taft: Well, there’s one footnote in there, where they talk about—. There was a group of lawyers, or a group of clerks, who said that because of what the Court did in handling the Florida case, which they thought was wrong, it released them from their bond of confidentiality. To me, that’s outrageous. If that’s the way you feel, resign. Don’t continue on and then go blab. It’s not your function. You’re not on the court. That’s not why you got offered the job. So I have very strong feelings about what a number of the clerks did in that situation. Actually, I was one of the group that signed a statement that was put in the papers. The other thing that amazed me about it was that apparently, the emotional content of the views of some of these clerks carried on to where there were these incredible divides among the clerks themselves, where they wouldn’t talk to each other, they wouldn’t trust each other. One group thought the other group was trying to undermine it. God, what an unfortunate atmosphere to work in, as far as I’m concerned.

McCreery: What’s wrong with that situation, in your mind?

02-00:13:09 Taft: Well, as I say, that’s not their function. They came there to work for the Court. They’re green attorneys, just out of law school, dealing with justices who have had a lifetime of experience, who live with these issues and have seen them coming and lived with them for any number of years, and somehow they think, or they have the arrogance to believe, that their views are more important, and they shed their clerkship and just go blab about whatever they’re—? Among other things, I don’t think that’s being a lawyer. There are lots of times—I started out in criminal law—as a lawyer, you learn to represent your client, whether you agree with them or not. You make the best arguments on their behalf. As likely as not, if you carry passion into it, or too much, you’re going to make a mistake as a lawyer and detriment your client. So I do have strong views about what they did.

McCreery: Of course, that case is unusual, just that it happened the way it did. So they were seeming to think that it was different enough that they would speak out in a very unusual way. But you’re saying there’s no call for that—

02-00:14:46 Taft: No excuse for it.

McCreery: —by virtue of their position. 27

02-00:14:48 Taft: Correct.

McCreery: I wonder how much things have changed, in that regard. We’re in a very different sort of society now.

02-00:14:59 Taft: Well, you see it even within the law firm. You see it among younger attorneys, who think that the function of a lawyer goes beyond representing the clien—they are much more picky about who they represent, whether or not their client is consistent with their view of the way things ought to be. Which I think, as I say, is detrimental to being a good lawyer, representing your client. They’ll either learn or they’ll go into a different piece of the law, where they can just exercise their passions. And there are areas where you can do that, and that’s fine. It’s what they want to do.

McCreery: But I hear you stressing the value of experience, particularly in a place like the Supreme Court, and that there are defined roles there.

02-00:16:11 Taft: Correct.

McCreery: Okay. Okay. Well, thanks for talking about that a little bit. It was quite an unusual sort of piece. Well, I wonder, as you’re thinking back about your service with Chief Justice Warren, how do you describe his legacy, if you will?

02-00:16:42 Taft: I think it was an era of change in the Court, of coming out of a fairly—. Of course, you had the attempt at court packing; you had that reaction during the Depression. And you’re coming out of the Second World War, into a really different and new and changing society. Change which isn’t quitting yet. I think it was much more willing to accept that, and accept the change that was going on, and to in a sense, go with it and make sure that the change stayed consistent with the concept of the Constitution and separation of powers and all that sort of thing. So I think in a sense, it was almost a transition era that created heat on the outside, like the John Birch Society’s attempt to impeach the Chief. So I think that probably will be its legacy. Some cases will stand out—reapportionment; obviously, Brown v. Board of Education. But we’re in a different era now.

McCreery: Yeah. Was there anything about your experience on the court that really surprised you? 28

02-00:18:18 Taft: I don’t think so. I think one thing that you come away with is that the institution itself, the building itself—which my grandfather built, by the way—.

McCreery: Did he?

02-00:18:34 Taft: Yeah.

McCreery: Tell us a little bit about that, please.

02-00:18:37 Taft: He was Chief Justice, appointed by Warren Harding, and was Chief Justice until his death.

McCreery: That’s your grandfather?

02-00:18:46 Taft: He was the one that pushed the bill through to get the Supreme Court [the building] constructed. But the building, the institution, really has a sense of strength when you work within it. It’s not just the particular justices, it’s the institution itself. I came away with very much of a sense of that. And it’s around a while. Here’s nine guys. The only thing they have is a few fat bailiffs and some chauffeurs and a couple cars in the basement. That’s all they’ve got. All the rest comes from the institution and how they handle it. So it’s pretty amazing.

McCreery: You mentioned the balance of powers. I don’t know if there was any view in your time, of interactions with the legislative or executive branches, but surely you got some sense of how that balance maintains.

02-00:19:57 Taft: Well, I’m sure they always knew it was out there. And I’m sure it had an impact, I’m sure they thought about it. I don’t know, but I’m sure they thought about it when they did the reapportionment, Baker v. Carr and so forth. They knew they were messing with another pillar under the Constitution. So I’m sure they keep that very much in mind. Because I’m sure in their view, and I’m sure in the Chief’s view, again, I suppose your first job is to protect the institution itself, and then to see how to express what it’s supposed to be and is supposed to be doing.

McCreery: Sometime after you were gone, the Chief Justice stepped down, in 1969, and saw President [Richard M.] Nixon appoint his successor. I just wonder about your thoughts about the timing of his retirement, and then the coming in of the [Warren E.] Burger court. 29

02-00:21:19 Taft: I really don’t know. That’s the kind of thing you’d never get out of him, I don’t think. He would probably remain pretty politic. I doubt if he thought tremendously much of Burger—that would just be my sense of it. But I have no idea.

McCreery: Okay. I don’t know if you were much of a court watcher yourself, at that point, to kind of just take a look at how much or how little things changed under Chief Justice Burger, compared to what you might’ve expected, let’s say.

02-00:22:02 Taft: Yeah, well, in that sense, I’m not a court watcher.

McCreery: Okay. You had mentioned before that there were occasional reunions of Chief Justice Warren’s clerks. I wonder if you could just describe those events a little bit for me.

02-00:22:20 Taft: I think what was really interesting about them was that you’re collecting people who worked over a twenty-year period—not twenty, not quite twenty—

McCreery: Almost.

02-00:22:30 Taft: —fifteen or more years—

McCreery: Yeah. And he had a few clerks in the early retirement.

02-00:22:35 Taft: —who had a similar experience that you had. It was fun to meet with them, to talk with them. As I say, the Chief and his wife, and often a daughter or so was there. They were a lot of fun and I really enjoyed them.

McCreery: How did you assess his mood after he himself retired? Any thoughts about [that]?

02-00:23:06 Taft: I just didn’t see him enough, except on those—. Of course, then he’s putting it on. He’s very outgoing in a situation like that, because I’m sure it was very important to him, too, since those were a lot of people who spent quite a bit of time with him and who thought he was a great figure.

McCreery: Among the fellow clerks, either from your year or others, who was particularly close to him, would you say? 30

02-00:23:43 Taft: I wouldn’t know. I don’t know. I don’t know if I’d believe them anyway. But you may know better than I do, because you will have talked to a bunch of them and have a better feel for, over time, what the various relationships were.

McCreery: They vary in how much they stayed in touch with him, too, as you might imagine. And as you point out, it’s a period of well over sixteen years or more, that they all served. The other area I’d like to explore with you just very briefly is what effect you think your Supreme Court clerkship had on your own subsequent career. You said you started out in criminal law, in a law firm.

02-00:24:31 Taft: I went to Williams & Connolly when I left. Again, I didn’t know what I was going to do. In the normal Washington milieu, I had met Edward Bennett Williams. We had talked a number of times and he finally offered me a job, so I went to work for him. At that time, there were only five attorneys in the law firm; it was very small. So for five years, I worked at Williams & Connolly and worked a lot with Edward Bennett Williams.

McCreery: Tell me a little bit more about him. He’s a figure of very much interest, of course.

02-00:25:19 Taft: You take your typical view of what a smart Irishman would be like and that’s him. He’s a very engaging personality. A very bright and mercurial person, who I was probably fairly close to. We’d play paddleball over lunchtime, with Art Buchwald. So it was very interesting. I did a number of trials with him, where I was his second or third guy on the case with him, doing criminal law, before I came up here.

McCreery: How did you like the criminal work?

02-00:26:08 Taft: Criminal work is interesting. Ultimately, I got tired of representing crooks. There is so far you can go with Italians that don’t talk much. So it was interesting. But when I joined my firm out here, I was just as glad not to continue with criminal law.

McCreery: Okay. Well, what led to that change, of your coming out to Los Angeles and practicing here?

02-00:26:41 Taft: I just decided I didn’t want to spend my career in Washington. It’s a very much government-oriented town. Our practice actually, at Williams & Connolly was mostly outside of Washington. Our cases were all over the country. So I just decided I wasn’t going to stay in Washington. The East 31

Coast, at that time, was all Democratic. Little did I know that California would become all Democratic, after I was here for a long time. No, I came out here and I liked it. I enjoy California. I’m a pretty outdoor person, so it offers a tremendous amount.

McCreery: Okay. Well, how did your own practice change in this firm?

02-00:27:28 Taft: I started out in securities litigation. Because on the criminal side, actually, we’d done a number of criminal sides in securities law. Then I came back in the Ford administration, as assistant attorney general in charge of lands and natural resources. When I came back off of that, after the end of the Ford administration, I migrated into environmental law, litigating toxic waste sites. That’s basically the type of practice I’ve had since.

McCreery: Okay. Tell me a little bit more about your work in the Ford administration. Who brought you into that position?

02-00:28:14 Taft: Actually, Carla Hills—. The firm, when I joined it, was Munger, Tolles, Hills, and Rickershauser. And the Hills was—well, it depends who you ask—it was either Rod [Roderick] Hills or Carla Hills. They were married. It all depended on what the situation was, which Hills that represented, or both. She started out, I think, assistant attorney general for civil, and then became secretary of HUD. She suggested me to Ed [Edward H.] Levi, who was the attorney general, when they had an opening. I went back and actually interviewed with him for the chief of criminal. [Richard L.] Thornburgh won that slot. [Rudolph] Giuliani, of course you know, was the associate attorney general.

McCreery: Oh, God. Right.

02-00:29:15 Taft: [Antonin] Scalia was the assistant attorney general for—. He was legal counsel. So the next slot that opened up happened to be the assistant AG for lands and natural resources, and he just stuck me in it, even though I had no experience whatsoever.

McCreery: Did you seek that out, then?

02-00:29:46 Taft: I was a bachelor at the time and I sought out—. I thought it’d be a great experience to go back and have that kind of opportunity. So in talking to Carla, I thought it was a great job, a great chance to do something.

McCreery: What kinds of things were you working on, at that point? 32

02-00:30:01 Taft: Where?

McCreery: In that role, from, what was it, 1975 to ’77?

02-00:30:07 Taft: As I say, I was doing mostly securities work until ’75, is when I went back to the Ford administration and was there for almost two years.

McCreery: I’m sorry, I wasn’t clear; I meant during the Ford administration.

02-00:30:19 Taft: Well, lands and natural resources does all the environmental work for the government. We defend them in NEPA [National Environmental Policy Act] cases. We prosecute environmental pollution cases. Actually deal with Indians, because we’re basically counsel for the Department of Interior. So those are kinds of the facets of your clients, if you will. Perhaps the most interesting thing is that the solicitor of the Department of the Interior— because it was after Jimmy [James E.] Carter was elected—he left on December 31. On December 30, he sent over a request that the Department of Justice sue the State of Maine, to get back half the state of Maine for the Penobscot and the Passamaquoddy Indians, on the grounds that the original state treaties were invalid. And he left town.

McCreery: What happened to that?

02-00:31:33 Taft: The attorney general left town. So this was my baby.

McCreery: There you were, huh?

02-00:31:39 Taft: There I was. I actually stayed on till May, because when Griffin Bell came in, he had no idea what this was about. So I stayed on until, actually, a deal was made, a deal was worked out with congress and it went away. But for a while there, there was no change of title to any land in a good part of the State of Maine, because this created one hell of a cloud on title.

McCreery: Yeah. I’d say so. Well, how was it resolved?

02-00:32:13 Taft: They gave them a bunch of money, they gave them a bunch of land, National Forest land.

McCreery: Just not half the state, huh?

02-00:32:19 Taft: Just not half the state. 33

McCreery: Okay. Tell me a little bit about Mr. Levi [Attorney General Edward H. Levi]. What was he like to work for?

02-00:32:26 Taft: Levi was great. If I had an ideal for an attorney general, he would be it. As sharp as a whip. Insightful, fully understood politics. I don’t know if that came from having been—. I guess he was dean of University of Chicago [Law School], something like that. He was, I think, incredible as a boss. He let you do your work, as long as you did your work right. He would rely on you 100%.

McCreery: So there was a real role for you there.

02-00:33:03 Taft: Yes.

McCreery: What about President Ford? How much did you get to know him?

02-00:33:10 Taft: This is, again, the kind of thing that Levi would do, which I’m not sure others would do. We had a crisis in the State of Kentucky. The starlings were eating up all the crops. What they wanted to do was they would spray—. You can’t just shoot them; there’re too many. It’s very hard to figure out what to do about them. It’s not as if they’re going to go extinct or something on that order. So I guess what they worked out was you spray a surfactant on them and water on them. The surfactant on the water would immediately go to their bodies and they’d die from cold. Big environmental issue about that, on whether or not you’d satisfied an environmental impact statement and all that kind of stuff. So there was a briefing in the cabinet. Senator [Howard] Baker was there and a bunch of others, and he brought me in to tell the story, what the issue was and how we were going to handle it.

McCreery: Well, it seems to me environmental concerns were very much in the country’s consciousness by then. Or just really starting to be.

02-00:34:33 Taft: The Clean Water Act, the Clean Air Act.

McCreery: Yeah. Sure.

02-00:34:35 Taft: Absolutely.

McCreery: What effect did that have on what your department was trying to do, your division? 34

02-00:34:41 Taft: Well, as I say, at that time, you were bringing up early test cases on what the parameters of the law were. And as I described with respect to the island of Guam, it became a hot issue to determine a particular interpretation of the Clean Air Act. So it was formative years, as you get what the legislation means and how it’s going to be interpreted by the courts.

McCreery: It’s interesting to look back now and see how far things have come and just how the country’s thinking has evolved over time. Have you retained quite a lot of emphasis, it sounds like, in your own—?

02-00:35:23 Taft: Oh, it’s what I do. I do almost total environmental work.

McCreery: Almost totally environmental, okay.

02-00:35:27 Taft: In toxic torts, which is tort work, personal injury work, but related to contamination of some kind.

McCreery: To toxic sites or whatever. Yeah, okay. Well, just to retrace my steps a little bit, what effect do you think your clerkship had on the choices that you made in your own career, if any?

02-00:35:53 Taft: It is no question that if you stay in the law, it’s going to open almost any door, and gives you a step up on most of the others that are around. Obviously, it’s not going to affect the result of any case I’m handing. It’s not going to make me a better lawyer than I am, in handling a case. But it still remains an impact. It may be within law firms, it’s because we’re still always trying to get Supreme Court law clerks as recruits, so that it never kind of goes out of the consciousness. I don’t know what impact it has on it.

McCreery: I wonder what else you think of, when you think back on your year as a clerk. What stands out to you, looking back now?

02-00:36:56 Taft: As I say, I think it’s the experience within an important institution of this country. I don’t think it changed me as a lawyer. It’s not what I would like to do. I do not like being an appellate judge; I would not like to do that. I don’t want to have one argument and then wait three weeks and spend all the time in my office writing opinions, until there’s another argument that I can attend. That does not sound to me like a very exciting life. But simply because it’s the Supreme Court, and most of the cases it handles do have a large impact in society, it’s very important to be there, and to have been there. 35

McCreery: You had mentioned off tape that you didn’t have any interest in the judiciary yourself.

02-00:37:49 Taft: No. No. Especially appellate work, I think, would be very dull. The only excitement you have is oral argument, and that can only go so far.

McCreery: And your views on the law, not just for its own sake, have those changed at all? Or have you been fairly consistent all these years?

02-00:38:14 Taft: It’s probably been fairly consistent. Probably a little more conservative than I was back then. You come out of college, you come out of law school, you really think that the world’s going to change for you. You think that people are going to understand the right thing to do. As I tell my own kids, how many of your own habits have you changed, even though you know they’re wrong? And how hard is it to really change one of your habits? Now apply that to a society. It just doesn’t happen the way you want it to happen. So anyway.

McCreery: Okay. Well, let me ask if there’s anything else you would particularly like to tell me about Chief Justice Warren and your time with him.

02-00:39:07 Taft: I don’t know; as I say, I think I’ve explained most of it. The memories are with him, with your co-clerks. In my case, especially John Niles.

McCreery: Did you and Mrs. Niles stay in touch quite a lot? You’d mentioned seeing him not long before he died.

02-00:39:22 Taft: We stayed pretty close afterwards, yeah. But he was in New York and I was on the West Coast, so we didn’t really mix too often. Email wasn’t around much then, so it wasn’t as easy to stay in touch. But just looking back on the whole experience, it lasts with you for the rest of your life.

McCreery: Okay. Well, if you don’t have anything to add, why don’t we end it there?

02-00:39:57 Taft: That’s about it.

McCreery: Thank you so much.

02-00:39:59 Taft: You’re welcome.

[End of Interview]