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

Donald M. Cahen THE LAW CLERKS OF CHIEF JUSTICE EARL WARREN: DONALD M. CAHEN

Interviews conducted by Laura McCreery in 2005

Copyright © 2014 by The Regents of the University of California 2

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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.

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All uses of this manuscript are covered by a legal agreement between The Regents of the University of California and Donald M. Cahen dated April 5, 2005. 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:

Donald M. Cahen “THE LAW CLERKS OF CHIEF JUSTICE EARL WARREN: DONALD M. CAHEN” conducted by Laura McCreery in 2005, Regional Oral History Office, The Bancroft Library, University of California, Berkeley, 2014. i

Table of Contents—Donald M. Cahen

Interview 1: March 29, 2005

Audio File 1 1

Birth and upbringing in San Francisco — Lowell High School and UC Berkeley — Military service — Boalt Hall Law School at UC Berkeley— Outstanding faculty — Professor Adrian A. Kragen — Clerkship for Chief Justice Earl Warren — Other clerks — Workload — In forma pauperis petitions — Oral argument — Camara v. Municipal — The American Civil Liberties Union — Formal and informal relations on the Court — Formal and informal relations on the Court — Justice Harold Hitz Burton and other justices — “Liberals” and “not liberals” — Warren’s political skills — Saturday luncheons — Jon Newman, Chief Clerk — Ivy Leaguers — Writing for the Chief — A controversy about the role of clerks — The Chief, “a great leader” — Mrs. Margaret McHugh’s effectiveness — Confidentiality

Audio File 2 22

Luncheons and guest speakers — A visit from Senator John F. Kennedy — The clerkship as a step in a legal career — The centrality of the Court — Appellate court experience — Narrator’s politics — Supreme Court clerkship: “Marvelous” opportunity — Returning to San Francisco, legal career, love of history and the city — Involvement in local politics — Work with the ACLU — The Chief’s retirement and his legacy — The importance of political parties — Narrator’s career as arbitrator — Looking back on the clerkship

[End of Interview] 1

Interview 1: March 29, 2005

[Begin Audio File 1]

McCreery: Tape 1 or March 29, 2005. This is Laura McCreery speaking, and on this tape we’ll be interviewing Donald M. Cahen at his law firm in San Francisco. We’re in the Ferry Building on a rainy day. We’re going to be collaborating today on the oral history project Law Clerks of Chief Justice Earl Warren. Mr. Cahen, would you start us off by simply stating your date of birth and talk about where you were born?

1-00:00:32 Cahen: I was born June 21, 1930, and I was born in San Francisco, California.

McCreery: What was your family circumstance at that time?

1-00:00:40 Cahen: In what respect?

McCreery: I just wonder where in the city you were living and what sort of—

1-00:00:46 Cahen: Well, for about a year, the first year, we lived down on Silver Avenue in San Francisco. We then moved up to the Fillmore District about 1931, and we lived on Fulton Street in the Fillmore District across from Alamo Square Park until about 1946, after which my folks moved out to the Sunset. I finished my high school and then went over to UC Berkeley.

McCreery: I understand you went to Lowell High School, is that right?

1-00:01:13 Cahen: That’s right.

McCreery: I assume one didn’t have to apply to get in in those days.

1-00:01:20 Cahen: I was supposed to go to High School of Commerce, and my folks worked very hard to get me into Lowell High School, and they were successful in that, and I was there.

McCreery: How did you like Lowell?

1-00:01:34 Cahen: Oh, very much, enjoyed it very much.

McCreery: I know from talking before we started that you went to college across the bay at Cal. 2

1-00:01:43 Cahen: That’s right.

McCreery: How did you decide to go there, or was there a decision involved?

1-00:01:48 Cahen: Oh, I imagine a lot of reasons. UC Berkeley was a fine school. So it seemed to be the perfect place to go. It was a public school, so obviously it was a lot less expensive than a private one. So all in all it just made sense to go there.

McCreery: So you began in what must have been the war years.

1-00:02:16 Cahen: Well, I graduated high school in ’48. So I was an undergraduate at Berkeley from ’48 through June of ’52.

McCreery: What did you study there?

1-00:02:25 Cahen: Political science was my primary major, for the most part. But I also tool a lot of speech programs, I was on the University debating team, and I also took up just a general—I just wanted a sort of, like a broad education. I sort of assumed I was going to law school afterwards.

McCreery: What prompted you interest in the law? Do you recall?

1-00:02:53 Cahen: I had an uncle who was an attorney, went to USF Law School, and my folks thought it would be a good career for me. As I sat and thought about it, it made sense to me. As a young man I worked at various stores in San Francisco as a stock boy and as a clerk and that sort of thing, and I didn’t really want to go into the commercial. Law looked like a good program for me.

McCreery: Did you have particular interests in the law?

1-00:03:32 Cahen: Not really. I never said to myself that I wanted to this as against that. I just sort of took it as it went along, and I was fortunate enough to be in a situation as I started practicing to have some experience and some alternatives and things of that sort.

McCreery: After finishing your undergraduate career did you go straight into law school; I know you had Army experience.

1-00:03:54 Cahen: I went to the Army. After I graduated Berkeley I was told that I could go to law school—well, I had taken ROTC at Berkeley as an undergraduate, so in a 3

sense I was in the reserve. They told me that I could start law school, but they could not guarantee that I’d finish it. And the last thing in the world I wanted to do was go to a year and a half of law school and be told I had to leave and go to the Army. I was a little tired of school at the time, so I just decided to go in. I spent approximately two years going out having a good time with the Army.

McCreery: I take it this was still during the Korean Conflict.

1-00:04:40 Cahen: Yes, I ended up spending about six to eight months in Korea. That was the last six to eight months of my career in the Army. Fortunately, by the time I got there the armistice had been signed so that the only people who shot at me were drunk. I was a military police officer. So I had to do a number of things, but there was no organized shooting going on or anything like that. But I did spend about six to eight months in Korea itself.

McCreery: What effect do you suppose that experience had on you as a young man?

1-00:05:21 Cahen: I think the effect it had on me was, first of all, to give me an opportunity to see a part of the world which up to then of course I had not seen at all, the Asian area. At the same time it put me in a situation where I had a good deal of matters where I had to be on my own discretion. Being an officer of the military police you’re a police officer, and I was up there, so that meant that I had to act on my own discretion in charge of various aspects and matters. So I think I did not—put it this way: in a sense, I enjoyed my military experience. Then I came out and went to law school.

McCreery: So it must have been 1954. Did you consider other schools besides Boalt at any time?

1-00:06:15 Cahen: I don’t believe so. I just figured—I knew my grades were good and that I should be able to get into it. My recollection is I just chose Boalt. As I say, when Boalt allowed me to come in, and later I told them I had to go in the Army for a while, they apparently indicated, as I recall, that there would be a place reserved for me when I returned, because I was going into the Army.

McCreery: Set the stage for me a little bit. You were returning from your Army service and about to enter law school. Where did you live, and what was the atmosphere?

1-00:06:55 Cahen: Well, I was married by that time. So when I started law school, I lived on Bancroft Way—I believe that’s the street— where the University Art Museum is now. At that time it was just simply an apartment house. We lived there a 4

couple of years. My daughter was born my last year of law school, and we moved to an apartment over on Virginia Street on north side.

McCreery: And the campus itself, what sort of a place was it at that point?

1-00:07:37 Cahen: Very comfortable. The law school was already built. I’ve always found the Berkeley campus to be a very friendly place to be. So it was very good; I enjoyed it.

McCreery: Can you describe for me a little bit your experiences in law school? What stands out to you?

1-00:07:57 Cahen: Oh, I think just the professors; there were several professors who I liked very much. Mr. [William Tell] Laube a very fine person. Adrian [A.] Kragen, who really was the key to my future years on a number of grounds, was someone I spent a lot of time with taking his classes. I thought the law school was very good. I enjoyed the students, there was a lot of ability to talk to people. the professor who gave me my lowest grades was one of the professors I liked the most, and I just thoroughly enjoyed it.

McCreery: What were your study habits?

1-00:08:55 Cahen: Pretty organized. I would study in the library—usually I don’t study at home. I don’t do my professional work at home. So I would usually go to the law library and study there. Fairly extensive time spent. My grades were fine, and I did fine.

McCreery: You indicated that Professor Kragen was the key to your future years. What did you mean by that?

1-00:09:26 Cahen: Two ways. Although I never thought I’d really enjoy tax law specifically, because he taught tax I took his courses. He was in my future in two ways. First of all, he was the one who was apparently had extreme discretion in determining who would be a law clerk for Justice Warren. So obviously I had the ability to end up being a law clerk for Justice Warren because Adrian Kragan recommended me. Secondly, he knew a law firm in San Francisco, or some lawyers in San Francisco, so that before I went back to be a law clerk he introduced me to the law firm in San Francisco, which I visited and which I ended up joining when I returned, although I didn’t join at that time. But he was very close to those people too.

McCreery: What firm was that? 5

1-00:10:27 Cahen: Well, it’s this firm, but at that time it was called Samuels, Jacobs & Sills. Tevis Jacobs was the one he was extremely friendly with, and I’m not sure if Oscar Samuels was still alive at that time or not.

McCreery: When did you first begin discussing with him the possibility of a Supreme Court clerkship? Do you remember how it came up?

1-00:10:55 Cahen: I don’t really remember. I just know that he indicated to me that every year the Chief had three clerks, and one of them usually came from California— and maybe from Boalt; I just don’t remember whether one of them was always from Boalt or just from the state of California—and because of my class standing I would have a—he would be happy to recommend me to be one of the three. So that’s how it came out.

McCreery: What was the process of applying? Was it merely his recommendation, or do you recall any other interview?

1-00:11:31 Cahen: I don’t recall any other interviews at all. I simply don’t recall speaking with anyone else. I may have had to fill out some material, and I don’t remember that, and I don’t recall if I spoke in any interviews themselves.

McCreery: It appears that you were actually the first law clerk to come from Berkeley for the Chief Justice.

1-00:11:58 Cahen: Is that right?

McCreery: There were a couple of others; there had been one from Stanford, and there were subsequently some from Stanford.

1-00:12:05 Cahen: So one of the three was someone from California every year.

McCreery: Yes, exactly. You had, then, to move your young family back to Washington.

1-00:12:17 Cahen: That’s right.

McCreery: How did you approach this whole adventure?

1-00:12:24 Cahen: It wasn’t that I didn’t have experience in going other places; the Army had made sure I went to a couple of other places. And my wife was certainly happy to do so also. So we just pictured it as an opportunity for a year to go back and live someplace else and also an opportunity to be involved with the 6

someone—the Chief Justice, whom I admired as the Chief Justice. We had anticipated we’d return to California. We didn’t feel we wanted to go to Washington and live in Washington; we just wanted to go to Washington and spend a year there and take advantage of the career opportunity that a clerkship would give us. But we were very much looking forward to it.

McCreery: May I ask, as a Californian what was your own view of Earl Warren? You’d had him as your Governor and perhaps—

1-00:13:27 Cahen: Well, I’ll put it this way. I would never have voted for him because I was a Democrat, and I believe in the party affiliation as being extremely important on the ground that you can’t do things alone; you have to do things in groups. So I would never have voted for him as Governor, even—but certainly as Chief Justice I admired him considerably and was very much looking forward to being able to be associated with him.

McCreery: Do you recall the circumstances when you first met him in person?

1-00:13:55 Cahen: No, I don’t. I don’t at all. But I presume it was back there. I mean it was back there.

McCreery: So you began then in the summer of 1957. I don’t know how much this stands out; there was apparently some kind of special session during the summer that year. I don’t know if it would have been the previous year’s—

1-00:14:22 Cahen: I think that was the previous year’s clerks. That’s something I don’t recall too much about, but my recollection was that that was the previous year’s clerks. I could be wrong.

McCreery: Tell me a little bit about just the mechanics of getting started, as much as you remember: meeting the other fellow clerks, setting up your offices and so on. What were the early things that you were doing when you arrived that summer?

1-00:14:49 Cahen: By the time we got there, as I said before, that summer was becoming almost the fall. It was just the matter, besides the usual things, of getting an apartment and that sort of thing. Darrell [Dallin H.] Oakes and I shared an office, and there was Jon [O.] Newman, who of course had spent a year as a Court of Appeals law clerk and was now the chief clerk for the Chief. We just sort of had meetings with each other and then from time to time met with the other law clerks to get an idea of what our responsibilities were and what we had to do. 7

We met some with the Chief Justice. My recollection is I don’t recall having lots of meetings with the Chief Justice on matters like this. As wonderful as the year was, there were very few one-on-one sessions that I ever had with the Chief Justice. We just did our work and then got together on opportunities when necessary. But as far as getting started we just as law clerks sat down, talked with each other, and were told generally what the process was. The chief clerks had certain responsibilities that the other clerks did not have. We had to follow through on that also.

McCreery: Who trained you, if anyone? Was there any carryover from the previous term or anything like that?

1-00:16:23 Cahen: I have no recollection of anybody training us in that sense of the word. When I started writing cert memos and later on bench memos other than maybe Jon Newman I don’t recall any member of the court sitting us down and saying, “No, you should do it this way; you should do it that way.” We were told by someone what was to be done, and I thought it was Jon Newman that pretty much told us what was to be done, and we just did it.

McCreery: You referred a moment ago to the duties that the Chief Justice’s clerks had that were over and above what other clerks had. I know, for example, about the miscellaneous docket, How did—

1-00:17:18 Cahen: Pro bono.

McCreery: That’s right. How did work that into your overall workload? Do you remember?

1-00:17:27 Cahen: Well, that was part of our workload. I mean, the point was that the Chief Justice’s clerks had to take care of the IFPs, in forma pauperis certs, which meant that there was a tremendous load of you want to call them briefs or petitions, although they very often weren’t quite even that formal, from people who were appealing to the Supreme Court to have their case heard. And if they came in on the IFP docket then usually there was just one, sometimes type-written, hand-written, scrawled, and there was only one. Whereas if someone came in with an attorney and was formal he presented what looked like a petition certiorari, enough petition copies that everybody received it. But on the IFP Docket most of the time there was only one copy. And usually it was the responsibility of the Chief law clerks to read those on top of the regular caseload of regular cases and present cert memos or whatever you want to call them outlining what that case was about, which then was, as I recall, then circulated among all the various justices even though the law clerks for the other justices would prepare cert memos on the regular calendar. But we had the responsibility for preparing not only cert memos for the 8

regular calendar but also the equivalent of cert memos for the in forma pauperis calendar.

McCreery: Do recall the Chief Justice giving you any instruction or guidance on those IFP cases at any time?

1-00:19:20 Cahen: I don’t recall. My memory tells me that from time to time we would talk about it. But it wasn’t, for example, a situation where once a week we’d meet with him with my memo so he could over them; it wasn’t anything of that sort. It just might be that he might call me in ask me a couple of questions on something that I said. But it wasn’t a situation where I sent him a memo on a couple of cases or a case, either IFP or otherwise, and then every Tuesday afternoon we would sit down and go over it, He very often never spoke to me at all about my memos, especially the IFPs.

McCreery: I suppose no news was good news. Let’s flip that around. On what occasions did you see the Chief Justice?

1-00:20:11 Cahen: Not often. He was an extremely busy individual, so it would just be—as far as professionally, he would sometimes call me in to ask specific questions on a specific memo which he was looking at. But my impression was that he would take responsibility to go over matters himself and then talk to me on occasion on that. Otherwise it was just—we would see each other on something that just came up from time to time, and that would be about it.

McCreery: Did you and your fellow clerks attend oral argument very often?

1-00:20:56 Cahen: Oh, quite a bit. As you may know there was, at least at that time, an area on the side where the law clerks could sit. Certainly in cases that we were specifically interested in, or maybe we were told the justice was interested in specifically, we would go in and sit on the side there and hear the oral arguments.

McCreery: What did you get out of that? This was your chance to see the justices in action. What do you remember?

1-00:21:23 Cahen: I just remember that they were very much alive and active and interesting and interested and participated. And once in a while something happened, although I can’t recall anything specific, that was either humorous or was extremely significant or things of that sort. But there was quite a bit of communication back and forth between the justices and the attorneys, and that was always extremely interesting to hear, especially if it was a case that you worked on and you were sort of wondering whether what you said had any 9

effect on somebody and might be the subject of a comment that one of the justices might have made by reason of their having read one of your memos.

McCreery: And as you say you got to see the various attorneys in action. How did the Chief Justice treat counsel?

Cahen: He was extremely courteous. Some are very direct or may even be almost argumentative. Even when he was argumentative he was not the sort of person to try and step on anyone. He would be very courteous, and he could be very effective in what he said even in a very courteous fashion. In fact, there was one case that stands out—but that occurred several years after I was a clerk— in which he listened to the argument of counsel and then had a comment. To me the comment is more important because it showed as an example of Earl Warren’s general approach to the enforcement of law, but it also showed that he could be direct and courteous at the same time.

McCreery: What was the nature of the comment?

1-00:23:46 Cahen: The case was the Camara [v. Municipal Court] case, and it was in 1965.

McCreery: Now, you were there on that. Is that right?

1-00:23:52 Cahen: No. I was not a clerk then.

McCreery: But I mean that you—

1-00:24:03 Cahen: Oh, the ACLU had taken that case, and the staff counsel of Northern California was a friend of mine. He asked me to help out on that and a few other ACLU cases for a couple of years, and I did so. If my memory serves me correctly, I went back to hear the argument because I was on briefs and things like that, and it was a chance to hear about something that I had worked on very closely even though I wasn’t sitting at the table. I came back and I took advantage of my knowledge and sat where the clerks sit.

I’m not sure whether you’re familiar with the Camara case or not. Basically it was a situation—a San Francisco case too, which is probably why my friend, he was Northern California ACLU staff counsel. The situation was that the defendant was living in an area that was zoned for commercial, and living there. But that was illegal. You were not allowed to live in that particular type of situation. If it was commercial it was commercial. So the San Francisco enforcement officials went in without a search warrant to see what he was doing, and when they saw the fact that he was living there it led to a conviction for violation of the zoning laws. Apparently, it was of importance; 10

the important thing was that they did it without a search warrant because under the law at that time at least you did apparently did not need a search warrant to search a commercial area.

The Chief, after there had been some discussion, said to whoever was representing the City of San Francisco, “You felt it was extremely important to go in there and see what the situation was?” I’m just explaining something, not using exact phrase. They said, “Yes, very much. It was just a terribly important thing to go in there and make sure our zoning laws were not being violated.” And he said, “That’s interesting. Let’s see, when did that happen?” That happened in late 1963, didn’t it? And they said, “Yes, your honor, that’s right.” “And it was in November, wasn’t it, of 1963?” “Yes, your honor, that’s right.” “November 22, wasn’t that right?” “Yes.” He said, “Well, didn’t anything else happen that day that was of some importance?” And then there was sort of a pause and everything. And he was being very polite, very soft spoken. The attorney said, “Yes your honor, that’s the day that John F. Kennedy was assassinated.” He said, “Oh, and on the day that the President of the United States was assassinated you felt it was important to go in and violate the rights and privacies of a United States citizen even though he wasn’t causing any damage to anybody. And you didn’t want to take the time to wait for one day; you wanted to go in and do it on that day. And you didn’t even feel you wanted to get a search warrant.”

See, he was doing two things there. First of all, in answer to your initial question, he was being very polite, very held back, but at the same time he was making a point. But the other thing was it was representative of Earl Warren’s approach to the law. He believed in legal principles, and he applied legal principles. But to him the importance of applying the law was, how did it affect people. His point there was that if affected people here because it violated their rights of privacy, it put them under the aegis of the society so that they would be limited in what they could do, and he did not like it.

As it turned out the conviction was overthrown. The decision that allowed the investigation of the home without a search warrant was overturned. That always reminded me—to me at least—of Earl Warrens’ interest that the law applied to people, and when you applied the law you saw what affect it had on people.

McCreery: Thank you. That’s a wonderful story. And of course later, as you say, when you returned and saw that Camara case by then the Chief Justice had a much longer record of making decisions and leading the Court. Of course you were there as a clerk much earlier in his time. So you continued to learn about him, of course, as time went on. 11

1-00:29:39 Cahen: Well, this was an example to be of what—because my thoughts as to what he thought about the law were there when I was a clerk. As time passed and I had an opportunity to watch him it always appeared to me that, as I said before, yes, legal principles were important, they had to be applied, he couldn’t violate the law of legal principles. But when he applied the law he—as a clerk it seemed to me—he applied the law based upon his beliefs as to how the law affected people and their lives and the rights they were supposed to have. It’s just that the example I have is something that occurred later on. But that was something I believed when I left being a law clerk.

McCreery: Thank you for mentioning that. Of course, one thing that was going on when you were there, although not directly in Court business, was sort of the aftermath of the Brown decisions and the country’s attempts to implement those decisions. Was that discussed much in your hearing, the civil rights act coming along then?

1-00:30:56 Cahen: I can’t recall that it was. I don’t remember specifically, but I don’t recall if it was or not.

McCreery: Because one thing we note now in hindsight was that President Eisenhower was rather silent of the matter for a very long time. I just wondered if that came up in your conversations or if you had any first-hand knowledge of the Chief Justice’s views of that.

1-00:31:20 Cahen: I don’t recall having first-hand knowledge of that. More than that, I don’t really believe that I ever discussed President Eisenhower’s approach with the Chief Justice. We didn’t have those kinds of discussions. Most of the things we discussed were either pleasant discussions about family or else interesting discussions about a case or something that we were working on.

McCreery: Certainly there was a particular formality in the atmosphere there. Can you describe that a little bit for me? How formal was it?

1-00:32:06 Cahen: In the courtroom it was very formal. But outside the courtroom it was somewhat informal. There were some justices that sort of welcomed you. I think Justice [Harold Hitz] Burton was one of them who sort of welcomed other clerks, and you had an opportunity to go visit them and talk to them and that sort of thing. And there were others that were so busy doing what they wanted to do you sort of left them alone and let them do what they had to do. But there was no question as a law clerk I felt extremely comfortable about doing my job, and coming in, and being there during the day and that sort of thing. 12

McCreery: You had mentioned before we started taping that you were friends with one of Justice Burton’s clerks that year. I don’t know to what extent that facilitated your being able to interact over there.

1-00:33:08 Cahen: I don’t think that did. I think that there were some, and as I say Justice Burton was one of them, where you knew that from time to time they at least wanted to meet you and visit with you for a little bit get to know you. The fact that this one clerk who happened to be a friend of mine, or who became a friend when I was there, that wasn’t the reason. It was because this particular justice was interested in meeting the other clerks.

McCreery: What sort of a person was Justice Burton?

1-00:33:40 Cahen: My recollection is he was a very warmhearted intelligent individual and someone that you felt comfortable going into a room and speaking with him about.

McCreery: To what extent did you have chances to get to know a little bit the other justices?

1-00:33:59 Cahen: Some quite a bit and some not. Justice [William O.] Douglas I have the impression—my recollection is—was just an extremely busy powerhouse of an individual. Whereas he had a single clerk, and that meant that poor clerk worked very hard. You had the impression that he was not interested in spending time chatting with the clerks; he was interested in doing his work. Whereas I felt very highly about the positions he took and things like that, he was not one of those we got to know personally very well. But there were others too, and I can’t remember which ones, that we had an opportunity to meet also.

McCreery: Are you able to comment on the sort of balance of power among the justices at the time you were there?

1-00:34:51 Cahen: No, I really don’t quite remember now how they lined up as a matter of process, so I can’t say that these justices were always doing this and these were doing that. There were some who were and some who were not.

McCreery: We know that Justice [Tom C.] Clark was often in the middle, or the decision maker on matters of government regulation—

1-00:35:32 Cahen: But what it did seem to me was whatever their personal feelings were in the sense of being “liberal” or “not liberal” what was public was true. If their 13

public persona was that of being a liberal, their private persona, as far as the law was concerned, was certainly that way.

McCreery: You didn’t see a lot of difference, public and private.

1-00:35:50 Cahen: That’s right. Not on those issues, no.

McCreery: Did you have much of a way of assessing the Chief Justice’s methods of being a leader in that setting?

1-00:36:06 Cahen: Only in the sense of result. Obviously, we never attended the conferences when they went through the cases. Those who were not “liberal” often didn’t follow the Chief. On the other hand, there were occasions, and I can’t recall which ones, where justices voted with the Chief when we didn’t anticipate they would. We sort of assumed that something to do with, maybe some clerk’s bench memo, but I don’t think so. The fact that when they got into their meetings they were able to be persuaded by someone.

McCreery: Well, you knew very well as a Californian that he brought great political skills to this job. Did you have any way to tell how he could use that on the Court?

1-00:37:06 Cahen: How he used it, he used it I imagine just in having constant discussions with people when he felt it necessary to do so. But I don’t have any specific example that I can look to and say, “Well, it happened this was in this case here,” that sort of thing.

McCreery: I know that as time went on he made a habit of taking his clerks to lunch on Saturday, and I don’t know if that had begun yet when you were there. Did you have much informal chance to chat with him?

1-00:37:35 Cahen: As you bring it up, and I had forgotten, but that’s right. We did some in on Saturday and there were occasions where we had lunch with him, that’s right. And there was some chatting at that time, but I can’t specifically recall what it was. It seemed to me that very often discussions were not limited to the cases; it might be limited to life in California or how are you getting along. But we did do that on Saturday. That’s right.

McCreery: And I don’t know if you found as a Californian that you had more to talk with him to talk about particularly or shared interests of what was going on back here. 14

1-00:38:12 Cahen: Maybe I had a lot to talk about that others didn’t, but others always seemed to have something to talk about.

McCreery: Tell me a little bit more about your two fellow clerks. What kind of guys were they?

1-00:38:27 Cahen: Both of them hard working and well organized. I thought Jon Newman was superb as the Chief Clerk. He of course, as I recall, went on to be a circuit judge himself. Darrell was someone of—a very warmhearted individual. As I recall he became an official at the University of Utah in his later years. I found him to be very warmhearted. I felt that Jon Newman was someone who was well organized and used his organizational skills amazingly well as the chief clerk. I’m not sure that answers your question.

McCreery: That’s fine. I don’t know if any of you had particular interests or would kind of specialize in tax cases or any certain area. Or was it really just kind of dividing things up?

1-00:39:36 Cahen: If we did I don’t remember of any. I don’t recall the fact that I was always assigned the cases concerning automobiles or anything like that. As one of the clerks of the Chief Justice I was so busy with the IFPs that I just did what I had to do, and then whatever cases that were assigned to me, that’s all.

McCreery: I know that you had your family back there. I don’t know if you were able to socialize much either with the other clerks or with the Chief Justice outside of Court business.

1-00:40:11 Cahen: Not a good deal. There was a little bit of socialization with the Chief to get to know his family a little bit, although I don’t remember too much about that anymore. The clerks would get together from time to time, but sometimes that depended on where they lived. See, one of the reasons {Prevol?} and I were so close was that we both lived in the same general community. We lived in Arlington and at an apartment facility on a street called Twenty-eighth Road South. We lived close together so we often commuted; one of us would drive. We would get to know some of the clerks, but one thing that was true was that a number of the clerks knew each other from beforehand. They probably went to the same law school together, so they knew each other, whereas when I got there, of course—not that it mattered totally—but I didn’t know anybody. So we sort of developed a few friendships right then and there, as well as other people.

McCreery: I’m sure in many of those years there weren’t too many Californians as law clerks. It seems that so many of them came from the big eastern schools. 15

1-00:41:30 Cahen: That’s right. And I got so affected by it that later on in life I made sure I spent two weeks at Harvard Law School so I could say to people, “I went to Harvard Law School.” I have a certificate at home that says Harvard Law School, and I say to people, “See, I know I went to Berkeley, but I also went to Harvard.” That was a major school, Harvard Law School.

McCreery: There is so much stock put in where you went to school. I’m sure that was a factor along the way. I wonder what you can tell me in a general way about the process of writing for the Chief, starting with a review of—

1-00:42:24 Cahen: First of all, you recognize the fact that he probably will not discuss the matter with you unless there was something specific. Now whether he discussed it with Jon Newman or not I don’t know. You generally knew that you had to do it right. Usually the memos, the bench memos certainly and to a certain degree the IFPs, but the IFPs usually had to be much shorter because there were just so many of them. We’d just start with a statement of— my recollection is just a statement of the facts, a statement of major issues, and peculiarities concerning the issues, and then usually a statement of one’s own opinion as to how it should happen, and turn out, which of course was the thing that bothered people outside the Court, that we were giving our opinions to the justices on the side. But the only real problem was that in doing the IFPs you knew that no one else was going to look at it, so you had to be especially careful. Reading regular cert petitions, a cert memo for that, you knew that there were going to be eight other cert memos. But on the IFPs you felt considerable responsibility that the only person in the world that was going to help this potential appellant was you. So you were extremely careful on those.

McCreery: If a particular one did go forward and turn into a Warren opinion, what resemblance did the final thing bear to what you had begun with?

1-00:44:14 Cahen: Well, often it seemed to me it followed through, but not always. Again, you had to understand that obviously he would be emphasizing things that were important to him and that might not be of importance to me. But usually there was no opportunity for him to take my memo and say, “I think you should have emphasized that and not this, and you were wrong about that.” And obviously sometimes he would come out on a vote that different from what I might have recommended in the bench memo or for the cert petition.

McCreery: On those occasions you wouldn’t talk it over back and forth.

1-00:45:06 Cahen: If we did it was very unusual. That was one of the things which I didn’t have a lot to do with as a law clerk, was to sit down and spend time going over my various memos with him to argue why I liked something as against what he 16

might or might not like. He didn’t seem to do that with me at least. Now, as I say, he may have used Jon Newman as Chief Clerk to do that on cases that he wanted to specifically talk about. But I didn’t do that.

McCreery: Is there anything more to say about his views on the actual crafting of legal writing? How important was that to him?

1-00:45:50 Cahen: I did not write his opinions for him. That was not something that I did. As I said before, the most important single element about legal writing to him was that he had a message to say to people about how the law affected you personally. So to me his opinions, and certainly him personally, were such that you didn’t vote for something because mathematically if you looked at the three earlier cases mathematically it would come out this way, because what he was looking at was if it came out that way how did it affect people. And if it affected people wrong then he went back to see whether or not there were other legal principles that he could use to reach a better result.

McCreery: So, in other words, not precedent for its own sake.

1-00:46:50 Cahen: That’s right. But on the other hand I totally disagree with people that say, “Well, he ignored precedent,” things of that sort. He did not, because he knew that the process required you to respect precedent, even though there were occasions I’m sure sometimes where he didn’t necessarily follow it.

McCreery: A few moments ago you alluded to a conversation we had before we started taping in which you said that around the time you were there, there had been some complaints that the law clerks were having too great a role in writing opinions or in decisions.

1-00:47:25 Cahen: Yes.

McCreery: Could you tell a little bit about what that whole controversy was and how you learned about it?

1-00:47:31 Cahen: I think it was a controversy that—to begin with I think it began because of some people thinking that the Warren Court was too liberal, and therefore they assumed that these young men were going in there and taking over. It was a controversy that was, at least in the legal profession, well known; it wasn’t something secret. It was just a number of people, political people, that just argued about the fact that the law clerks were doing too much. Ultimately it died because in reality it wasn’t true. I don’t know of situations where law clerks took cases, and made the decisions, and wrote the opinions, and that was it. I certainly didn’t do that and have no personal knowledge of that 17

happening. But it was a rather controversial thing for a limited period of time, maybe a year. The best that I can say is that it was an issue that was a false issue. We did our job. We obviously gave our opinions, but there was no reason to believe that some justice was going to take our opinions just because we gave them.

McCreery: Did the Chief Justice feel a need to respond to these criticisms in a direct way that you recall?

1-00:49:09 Cahen: I can’t recall. He may have but not in my presence or in my discussions with him.

McCreery: Also before we started taping you drew to my attention an item in the Congressional Record from May of 1958 that made reference to this issue. Can you just describe what you saw there?

1-00:49:32 Cahen: At the time that tissue was important there was a speech made by a senator which appeared in the Congressional Record that laid out the position of the people who were concerned about the law clerks, who thought the law clerks should possibly be better trained or longer trained before they became law clerks, who quite possibly were in fact writing opinions, or at least convincing judges or justices that they should reach certain decisions, and this was absolutely wrong. As I mentioned to you, something that I never even noticed at the time is that there was a letter or an article quoted in that particular speech by an ex-law clerk named William Rehnquist, who had been a law clerk two or three years earlier than that particular article, although again I’m not quite sure to what degree the Rehnquist article was meant to be a major part of the issue; he just happened to make a position on it.

McCreery: Thank you for describing that. Thinking again about the Chief Justice’s sense of leadership and how he operated, was there anything that surprised you about how your year played out?

1-00:51:11 Cahen: No, because—first of all, we all know that Earl Warren was a great leader. And by the time he became Chief Justice he had seemed to shift it to a somewhat more liberal point of view as a general principle. So it didn’t surprise me that he might be able to convince other people of positions, and it didn’t surprise me when he came through on decisions that were liberal or what I would call liberal. I can’t recall any decision that he made which totally surprised me. There may have been situations where I might have reached an opposite conclusion or something of that sort. No, I think he was extremely effective as a chief justice in his ability to lead people, to talk to people, to convince people. 18

McCreery: As you indicate there did seem to be an evolution of his own views over this time. I’m just thinking about the question, as we saw it play out over the sixties—you know there were many important decisions that really changed things in our country, and there was always the question of whether the Chief Justice was leading us into these changes, or was he responding to changes that were already taking place in our society. Do you have any thoughts on that?

1-00:53:00 Cahen: As I say, I can’t really answer that. I don’t really—I can’t give you an answer to that question.

McCreery: That’s fair enough, and we do want to focus on your own experiences. But I do like to ask what people might have developed in the way of viewpoints since their clerkship too. You got to see him in action for another twelve years or so after you left. As we’ve said, much of his important work was during that later time.

1-00:53:42 Cahen: Yes.

McCreery: What about as an administrator of the Supreme Court and also the federal court system? Did you have any view of how effective he was in that regard?

1-00:54:02 Cahen: I certainly had no negative view. We did not personally have a lot to do with administration, but it certainly appeared to me that the federal court system was doing well in those years. But I didn’t spend a lot of time concerning myself with it because my work obviously had little or nothing to do with that, so I was just reading newspapers like everybody else so far as the federal court system was concerned. But Earl Warren, of course, had an extreme lot of experience on administration being governor of a state, as he had been. Now, I’d be under the impression to the degree there were issues there that he knew how to handle things like that.

McCreery: And of course at the Supreme Court he had a very small staff compared to what he had been used to in California. Prominent among those was Mrs. McHugh, of course. Can you tell me a little bit about what you remember of her role in all this?

1-00:55:05 Cahen: I remember that she acted like a major secretary, that she often did a lot of things that we thought, “Why’s she doing it? Shouldn’t he be doing it?” Or something like that. She was very effective, and my recollection is that I admired her very much in doing her job. 19

McCreery: If you needed to see him about something, was it always through her? Was it always through her? How did that work?

1-00:55:40 Cahen: My recollection was that for the most part it was though her, unless I saw him in the hallway. But obviously if I wanted to see him, and I wasn’t running into him or had a meeting with him, then sometimes one would see her.

McCreery: What did the Chief Justice tell you explicitly about the matter of confidentiality?

1-00:56:08 Cahen: He believed very strongly in confidentiality. He didn’t want his years on the Supreme Court to be that—he didn’t want the administration of the Court by him during his years necessarily to be the subject of widespread publicity and things of that sort simply because he felt that the judges as judges worked better if they were able to believe that the discussions they had were confidential. For example, if he and two justices had an argument and then the result of that argument was such that it might be different than what it was when they began the argument, he didn’t want people to say, “Well, Justice So-and-So really didn’t believe that at all. He was obviously pushed into it by someone.” Earl Warren felt that confidentiality was a way that people, when they spoke with someone, that what they had to say would be kept confidential so they would not be embarrassed by it in the future, especially because people often change their minds and things of that sort.

McCreery: Did he communicate that in particular to the law clerks, or was that sort of understood?

1-00:57:46 Cahen: Well, it was understood, but I have to believe that there were some statements made from time to time that confidentiality was important because the Court had work in confidence.

McCreery: I am going to pause here and change tapes.

[End of Tape 1]

[Begin Tape 2]

McCreery:` Tape 2 on March 29, 2005. This is Laura McCreery continuing the interview with Donald M. Cahen in San Francisco. We wanted to talk a little bit about the occasions when you and the other clerks would host luncheons and have guest speakers. Did you say there was a particular one you were recalling? 20

2-00:01:11 Cahen: It’s the only one I really remember, although we had a whole group of people. I’m just sort of saying it because it’s a funny view of the law clerks as a result of it. We would, as I say, on a regular basis hold a lunch. At the lunch we would invite someone as a guest and have an opportunity to speak with them, discuss and chat with them, and then sometimes they may have given a little speech. One day we invited a junior Senator from the northeastern United States, I guess Massachusetts, that sort of thing. He was fairly new as a Senator, extremely charming individual, spoke very well, very polite, answered all the questions. We were happy to have him, and we enjoyed it. But then after he left we started talking about him. And the clerks were somewhat unanimous by saying, “The man is a very marvelous interview as a person, but we don’t believe he’s going to do very much politically. He just doesn’t seem to have the strength, the power to go forward in the politics of the United States.” Of course the Senator was John F. Kennedy. That just shows how well these junior men, these law clerks, who were presumably writing all these opinions for the Supreme Court, were being able to judge the future of American politics.

McCreery: Thank you for telling me. Well, you were all so young; there’s no doubt about it. Did you come to think that in any way your preparation to be a law clerk was inadequate?

2-00:03:04 Cahen: No, because, as I say, being a law clerk was just like being a step forward in your professional career. If you weren’t a law clerk you’d have gone to a law office, and if the law office had any amount of people in it you’d probably be doing much the same thing there as you were doing at the Court, namely maybe reading cases, reading opinions, writing memoranda and discussing them. So in no way did I feel that I was unprepared to do the things I had to do on the court and which I was really doing, because I wasn’t writing the opinions, and I wasn’t making the final judgments in these matters. I was doing the pick-and-shovel work to help someone else do that.

McCreery: Right, and of course all the clerks were top graduates from their law schools.

2-00:04:05 Cahen: Oh, sure. I imagine so.

McCreery: I’m thinking of the larger political context at the time you were there. We talked earlier about how slow it was for the country to implement the provisions of the Brown decisions and so on. Did you have any way to gauge the Chief Justice’s relationship with President Eisenhower?

2-00:04:33 Cahen: No, I did not. I don’t have any memory of that situation at all. 21

McCreery: I mean, I can well imagine he wouldn’t have discussed it with you in particular. But I don’t know if you had any chance to observe anything.

2-00:04:43 Cahen: Not that I can recall.

McCreery: The matter of public perception, too, is one of interest because of course there was this long period of the South being full of the “Impeach Earl Warren” billboards and so on. Did you have much indication of what effect that had on the Chief Justice?

2-00:05:08 Cahen: I think he was very much above it. You have to remember that he had had tremendous experience in the political field and had to know, being the governor of the state and running for office, that in politics and in public presentation of issues a lot of times you’re going to see things which you do not like and you have to act in such a way as to overcome them. I think that he had the ability to do so. So I don’t believe that he felt that he could not overcome these things by performing what he wanted to do and do it right.

McCreery: Did you ever see him angry?

2-00:06:02 Cahen: I have no recollection of that. I just don’t recall a time when he—that doesn’t he did not, or that did not mean that he didn’t do it in a diplomatic way. But I don’t recall.

McCreery: Thinking back on your own experience as a law clerk, what did you get out of this whole year?

2-00:06:29 Cahen: What it gave to me was the opportunity to see a center, one, of the law process as such, and two, a portion of what you might—I don’t want to call it the political process, but certainly the governmental process. And an opportunity to see it working in Washington. And being in Washington and, on occasions, hearing about or seeing things that you might not see or hear. But you were at the heart of a major portion of our governmental activity and at the same time doing something that lawyers have to do for a career, and that is reading material, litigating, and being part of the litigation process. But the most important thing was not that because you could have done that at home; it was the fact that you were at the center of governmental activity, and that was very important.

McCreery: Did your own views change during this time in any way? 22

2-00:07:43 Cahen: By the way, in a sense there’s almost a joke to the last question. There was one day in Washington which for some reason I don’t remember what it was, but the government shut down. People were told not to come to work that day unless you were extremely important to the government. Well, the law clerks were required to go. Of course the reason was that the justices needed them because the justices had to go. But that just shows you, from a humorous point of view, how important we were, that the government was totally shut down, and only people who were absolutely necessary for the operation of government were supposed to go to work. And the law clerks went to work.

McCreery: A lot of responsibility.

2-00:08:40 Cahen: I know, but the answer was obviously because of our work with the—but still it was very funny.

McCreery: I was starting to ask—what was I asking? Just about whether your own views of legal things underwent any change over the course of your service there.

2-00:09:06 Cahen: Well, in a sense from a limited point of view, of course, it gave me tremendous experience in the appellate process, which is something I didn’t have before and which I used for—my personal professional career did not and does not emphasize, never did emphasize litigation. But what I was able to do was do a good amount of pro bono work in the appellate field when I came back to San Francisco because I figured I had appellate experience that a lot of people didn’t have. So in that respect—I worked a little bit for the ACLU pro bono and also pro bono in the IFP, worked in the Ninth Circuit and the district court of appeal. My record was 100 percent; I don’t think I won a case. But that’s all right. In any event, that was very important to me because it gave me some experience.

The real experience I got was an opportunity just to see the center of our activities. It must have made me interested in politics—although I probably was before—because when I came back home I got active politically on a local level. Both of my children ended up being interns for members of Congress by the time it was over with. One of my children became {inaudible} of Governor Jerry Brown. So obviously what it did do was really heighten my desire to learn about government. But on the other hand I had no desire to stay there; my interest was still to come back to California and live in California.

McCreery: Washington didn’t draw you permanently, that whole— 23

2-00:11:05 Cahen: No, it did not. It did some people, but it did not me. It just gave me an opportunity to see government, to see the political process and become interested in that, and get involved at home.

McCreery: You had mentioned earlier your own political persuasions were a bit different from those of the Chief Justice. Did that cause any difficulty—?

2-00:11:25 Cahen: Well, I think that was only true when he was Governor. I don’t know if that was true later on. But that did not—because you see, by the time I became a law clerk his public image was much more liberal than it was when he was Governor. I don’t think it probably would have mattered to me anyway because I would like to have gone back to see it. But the fact was that by the time he became Chief Justice and had been in that job for a while his public image was a more liberal one than when he was Governor. So I was extremely comfortable. But I don’t think it would have stopped me from going anyway.

McCreery: That’s great thing that only comes along once, I’m sure.

2-00:12:22 Cahen: Yes, that’s right.

McCreery: How do you evaluate your whole experience as you look back on it now?

2-00:12:29 Cahen: You mean the experience in Washington with him? It was absolutely marvelous. It gave me an opportunity, as I say, one, to learn more about appellate work than I had before, but more importantly gave me the opportunity to see government at work, to see our democracy at work. It made me interested in becoming involved somewhat politically when I came home because I wanted to be part of that process. It also overcame—a lot of times you come home and people say, “Well, that’s Washington for you, and that’s terrible back there, and those guys don’t know what they’re doing, and they’re not doing anything for us.” It overcame any thoughts I may have had at that, because to a large degree I admired the people who were back there and the work they were trying to do and the matters that they were interested in and that sort of thing.

McCreery: It certainly made them real to you, didn’t it?

2-00:13:29 Cahen: That’s right.

McCreery: Tell me a little bit about coming back here and joining the firm. You’ve touched on that. You did not emphasize litigation. But what did you want to do in your own career. 24

2-00:13:52 Cahen: When we were in law school we had all promised each other we would join small law firms, which is one thing I wanted to do because I didn’t want to become a part of the process of—in those days twenty-five to thirty lawyers was a large law firm; today it’s not so true. I wanted to be in a career where I could operate as an individual and do my work and be involved. The firm I joined emphasized that. It was a small firm, but some of the people involved were very active in the society around them. They did their work, and at the same time they were active socially, or they were active politically. I didn’t not become a litigator because I didn’t want to be; I did a little bit of litigation, but it just so happened that the firm generally didn’t do litigation, so I did what it was—actually it turned out to be the very thing that I wanted because the firm in those days emphasized commercial real estate. To some degree I’m a historian at heart. I can walk the streets of San Francisco and point out and say, “I worked on that building, I worked on that building, I remember helping fix that facility up.” So I think when I realized that the firm was emphasizing commercial real estate, real estate in San Francisco—and now other places, but San Francisco—it fit into my love of the history of San Francisco, and I kept that up.

McCreery: Where does that history love come from? Is it just being from here?

2-00:15:36 Cahen: I don’t know. It’s a feeling I just have had. San Francisco is a city where things where things are sort of—it’s a small city with a lot happening. What is it, forty-nine square miles? Seven-by-seven, something like that. But a lot goes on in this city. You can as a result be happily involved in it. And I’ve lived here all my life, and I have had an interest in history all my life. So all of those things sort of came together and made me want to be back here.

McCreery: You mentioned becoming involved in local politics upon your return.

2-00:16:22 Cahen: That’s right.

McCreery: What form did that take?

2-00:16:33 Cahen: Shortly after I passed the bar we moved from San Francisco down the Peninsula. And down the Peninsula I became a member of the planning commission of one of the cities. I ran for city council of one of the cities twice, unsuccessfully. I was involved in the planning committee of the County of San Mateo. I was involved in the review and hopefully modernization of the anti-discriminatory programs of the San Mateo Unified High School District. I was very supportive of a couple of local candidates such as Leo Ryan, who you may remember. He had a couple of committees, and I was involved in a couple of his committees. As I said before, because of my 25

association with that—obviously I thought very highly of Washington because I was happy to get both of my children back as interns for congressmen—I believe one was Leo Ryan and one was another congressman—so they could see Washington and come back and do that.

McCreery: And you mentioned they both became attorneys.

2-00:17:52 Cahen: And they both became attorneys.

McCreery: You had also mentioned your work with the ACLU, and I just wondered how that came about.

2-00:18:00 Cahen: That was simply—that was not because I was involved in the ACLU. That was because the staff counsel for Northern California was a friend of mine from law school. Whereas I’m not a member of the ACLU I’ve obviously liked much of what they do—not everything; that’s why I’m not a member— but much of what they do. He asked me if I’d be willing to spend time on a pro bono basis on two or three cases that they had before the Supreme Court, obviously because I had had experience before the Supreme Court. I was very happy to do so and did so. Fortunately in both cases it came out—I can remember in two cases it came out well.

McCreery: How often did you see the Chief Justice after your clerkship?

2-00:19:00 Cahen: Not very often, if once a year. Not a lot.

McCreery: Of course he elected to stay in Washington after he retired in ’69.

2-00:19:20 Cahen: That’s right. In my work I would sometimes go back east, and I think once or twice I was in Washington. As I mentioned to you, I went to a law clerk reunion of his. That was in ’69, so obviously I saw him in 1969. I had seen him once or twice otherwise. But there was not a lot of contact.

McCreery: You must have watched with interest as his whole tenure played out as Chief Justice and the various decisions that came along. What do think his legacy is for the country? At the risk of oversimplifying, how would you describe it?

2-00:20:04 Cahen: I think his legacy for the country was that you can administer a legal process which is based on precedent and yet still move forward, so that legal process takes care of the needs and cares and concerns of people in the modern age. And that it’s not the purpose of law to keep people back; it’s the purpose of 26

law to help people advance themselves and to change from time to time and to change the legal process.

McCreery: I wonder how his own interest in things in California might have played out, or do you have any knowledge of that? He always—

2-00:21:02 Cahen: We didn’t discuss that very much at all. It may be possible that in a given meeting he might have made a comment about something in California, but I don’t recall him making any major, or spending a lot of time discussing it, at least with me. He may have, and I may not have remembered.

McCreery: I wonder what are your views of his successor as Chief Justice and the direction of the Court after he left it.

2-00:21:38 Cahen: Trying to remember who that was.

McCreery: Warren [E.] Burger.

2-00:21:44 Cahen: I thought Warren Burger was a little more conservative than the Chief Justice. But I don’t spend a lot of time reviewing Supreme Court cases. I read about them in the paper, and once in a while if there’s a major issue I might read the specific case. I prefer a chief justice who is much like Earl Warren. Whereas Warren Burger obviously had to be someone of great intelligence and ability my recollection was that I looked upon him as being not as liberal and not as forward-looking as Earl Warren.

McCreery: And now for some time we’ve had Chief Justice [William H.] Rehnquist.

2-00:22:36 Cahen: I feel somewhat the same way. I admire the man as a person but not as being someone that I would look forward to—that I’d want to be the leader of our country insofar as the law is concerned.

McCreery: May I ask what you personally learned from the Chief Justice?

2-00:22:56 Cahen: I’m not sure what the question means.

McCreery: I guess I wonder what did you take away on a personal level from the experience of having clerked with him.

2-00:23:11 Cahen: One thing I took away from it was a high regard for him personally, extremely high regard for him personally. And, as I said, also the fact that you can be in positions of responsibility and still allow the law to move forward. And also it 27

may have taught me to start double-thinking about what he was like as Governor, and whether or not he was quite as conservative as I thought he was at the time that he was Governor. From time to time in the back of my mind I say to myself, “He may have been a little more forward-looking than you thought at the time.”

McCreery: We have to remember, too, that it was something of a less partisan environment, perhaps. There was still the cross-filing and so on in his day. He did enjoy a lot of support among different voters.

2-00:24:15 Cahen: Yes. See, I’m not an activist for cross-filing. I believe in the party structure. As I said before, simply the reason is that politically you can’t get things done except in groups. So you have to develop groups to help you do what you do. And if you can cross-file then you are in a sense weakening the party structure. I think that means you don’t get things done as well. But that’s the way it is.

McCreery: Yes, I wonder what we should be doing differently to do things in groups more effectively. That’s an interesting way to summarize it. We value the individual so highly in our culture.

2-00:25:07 Cahen: And that is important, but I don’t think the individual can carry out the decisions that have to be made. I think that groups have to carry out those decisions. Therefore, you should strengthen your groups.

McCreery: I wonder if there is anything else you’d like to say about your practice over the years and how that’s played out. Did you surprise yourself in your own direction?

2-00:25:37 Cahen: No. As I say, I was fortunate enough that I stayed with the same firm the entire time I was practicing, and I still am practicing somewhat. Many years ago I became an arbitrator also, simply because I knew I’d never be a litigator, and I wanted to go into arbitration to get some idea of litigation even though I wouldn’t be a litigator itself. So I arbitrate now as well as that. And the firm has been a good firm. I’ve enjoyed it very much; they’re fine people. They’ve treated me well and have allowed me to stay on even though I’m not a member of the firm. I do some work for some of the clients, and I do the arbitration. And the area—as I say, I’ve always like real estate, especially commercial, although I may have liked residential. But I like the commercial because in San Francisco it’s part of history, and I’ve gotten a pleasure out of that at the same time.

McCreery: It’s had its contentious moments here, hasn’t it? 28

Cahen: Oh, yes. Well, that’s what the law is all about.

McCreery: How else do you feed your history interests?

2-00:27:02 Cahen: Well, lately that’s pretty much what I have been doing, but I read; I obviously read a good deal. I like to travel, and when I travel I try to get involved in the history of—find out the history of where we’re going. That’s basically it at the moment. I haven’t been involved politically for several years, but I remained politically involved until a few years ago.

McCreery: Is there anything else you’d like to add, either about the Chief Justice or about your experience?

2-00:27:36 Cahen: No, my experience was extremely positive, and I find that he was a major icon, in my lifetime certainly. I appreciate the opportunity I’ve had to meet with you.

[End of Interview]