Judge Gerald W. Heaney Narrator

Richard Hudelson Interviewer

January 8, 2002

Federal Building Duluth,

RH: This is an interview with Judge Gerald Heaney. The interview is being done in Judge Heaney’s office in the Federal Building in Duluth. The date is January 8, 2002. My name is Richard Hudelson. I teach at the University of Wisconsin, Superior, and withHeaney me is Judge Gerald Heaney. W. GH: I was born in Goodhue, Minnesota, a small town in southeastern Minnesota, a farming community. I had two brothers and three sisters.

RH: You said the population was all of 500? Society Gerald GH: Five hundred people in the town. of

RH: Corn and soybeans, cattle, dairy?

GH: At that time I was growing up, it was mainlyHistorical cattle, corn, oats, barley, a little wheat. Soybeans come on a little later. Then they had alfalfa and hay. My dad ran the meat market and associated with it, he bought woolinterview and he bought and sold cattle. He and his brother, who were in partnership, owned the family farm that they’d inherited from their mother, so we rented most of the farm out and kept some parts of it. My dad had a few cattle there that he would keep for butchering and selling in the meat market. So we kind of grew up in the farm and small-town atmosphere. historyMinnesota I attended public school from the first grade through high school. There were only five in my high school graduating class. I worried when I was going on to college as to whether I’d be able to keep upOral with the kids from Minneapolis and St. Paul and the large schools in the state. I found I didn’t have any difficulty. I had the best teacher that I ever had in my life, taught all the science, all the math, all the history and civics in the high school, Celia Marquette [phonetic], an amazing woman, amazing teacher.

So when I graduated from high school, I went to St. Thomas College [now University] for two years, and that was a rather small college at that time. I think there were about 500 students.

RH: That’s in the Twin Cities?

GH: Yes, it’s in St. Paul. They had graduates there from many of the Twin Cities high schools, and I was able to compete with the kids who were there.

RH: You did two years at St. Thomas?

GH: Yes.

RH: Then you transferred somewhere else?

GH: Then I transferred to the , and then four years at the Law School. At that time you could take two years of college and four years of law school. Now it’s four and three. But we didn’t have very much money, so it was important that I finish in as few years as possible. Heaney RH: You were growing up then in the Depression years. W. GH: I was growing up during the Depression years. Our family wasn’t wealthy, but we always had enough to eat and we had a nice warm house to live in. Even though we didn’t have any money, if I got twenty-five cents on the Fourth of July, that was a big event. And in the summertime as I grew up, I worked out on the farm for various relatives.Society I would go out and work on the farm, milk cows. Gerald of RH: Make hay?

GH: Make hay and help in the fields and do those kinds of things. Historical RH: I have a brother who was a big guy, he’s 6’3”, strong. All the farmers wanted him when it was hay-making time, and he alwaysinterview insisted they take me along. I couldn’t lift bales, and had terrible hay fever.

GH: Well, I liked to work on the farm. We always had a good time down on the farm. I liked it.

RH: Can you talkhistory a little bitMinnesota about your law school years?

GH: Well, I started in St. Thomas in 1935 and I went there ’35, ’36, ’37, and then entered law school. AtOral that time it was not that difficult to get into law school as it is now. If you had graduated from an accredited high school and had your pre-college training from a recognized college, you didn’t take an entrance exam. It was relatively easy.

But the difference was that on the first day of school we were told that, “Look around you, because next year the person in front of you and on the side of you probably aren’t going to be there, because we fail half of the students in the first year and then fail 20 percent the second year.” Now, there was a certain degree of inefficiency about that, but one of the benefits of it was that it gave a lot of students who might have not been outstanding students in college an 2

opportunity to get into law school, and some of them did very, very well.

So when I was at St. Thomas, the first year I worked cleaning the classrooms. The second year, I worked in the library. Those were under the NYA, National Youth Administration, kind of like the work-study programs that exist at the present time, only I think they were better funded then and more opportunities. You didn’t get a lot of money. I think I got twenty-eight cents an hour during most of the years that I worked.

So I finished two years in St. Thomas and went over to the law school. The first year at the law school, I worked in the library, and then in the next three years I worked as a research assistant, first for the head of the political science department at the University [of Minnesota], then the last two years for Professor Reed [phonetic], who taught contracts and conflicts law, and he was writing a textbook and I was his research assistant, helping him with footnotes and that kind of thing. Heaney

RH: You did this while you were still taking law courses? W.

GH: While I was going to school. It only cost $500 a year for board, room, and books. Not board, room, and books; tuition fees. So I was able to earn about $300 a year in school, and then I could save $2-300 a year during the summertime. I lived with my Societygrandmother, so I got out of school and I didn’t owe a penny. My cash out of pocketGerald in those years was $500. My dad didn’t have any money, but he would send meat and groceriesof up to my grandmother. So it was a marvelous opportunity for me, and I graduated without any debt. Now my law clerks, many of them come with debts of $50-60,000 or more.

While I was at the law school in my last year, inHistorical addition to my research activities for Professor Reed, I wrote an article for the Minnesota Law Review on the relationship between the National Labor Relations Act and the Minnesotainterview Labor Relations Act, and both of those were relatively new at that time, and was fortunate enough to have it published in the University of Minnesota Law Review.

RH: Very good. historyMinnesota GH: So then I graduated in 1941. When I got out of law school, I was immediately drafted, because my younger brother and I were number twelve and thirteen in the draft in Goodhue County, Oralso both of us went up to Fort Snelling. I was rejected because they said that I had a heart murmur, so I was classified as 4F.

So here I was, when I went home, my dad was all worried about it, so he sent me down to the Mayo Clinic, and they examined me and they said, “There’s nothing wrong with your heart.” So I looked at it and said, “You’re the luckiest guy in the world. I got a 4F and so I don’t have to go into the war, yet I’m perfectly healthy.”

So best job I could get at that time was with the Minnesota Securities Commission as a lawyer 3 investigator, and so they were paying more than the big law firms were paying at that time, and money was important to me, so I think I got $275 a month. So I went to work for them.

Then on December 7 of 1941, of course, you had Pearl Harbor, and immediately everyone’s attitude changed towards the war. Before, no one had been particularly upset if they weren’t going in. So the day after Pearl Harbor, , who later became governor, and myself and a couple of others, went over and volunteered for the Marine Corps, and they were accepted and I was rejected because I was colorblind. [Laughs]

So I went back to work, but as the summer went on, it was more and more difficult, because here you are, a healthy young man of army age, and other people were thinking—I thought they were thinking, “What in the hell is this young man doing around when my brother (or my boyfriend or my dad) is being drafted and sent to the army?” Heaney So on the fifth of July, a good friend of mine and I go over to Fort Snelling and we enlist in the army, and colorblindness wasn’t a factor W.

RH: Not for the army?

GH: Not for the army. So we went over. So to avoid any red tape Societyand have them go back and check my record and everything, when I was drafted, GeraldI was drafted under the name of Gerald W. Heaney, which is the name I’ve always used, butof my baptismal name was William Gerald. My folks, because my dad’s name was William, they always used my second name. So when I went over this time, I brought along my birth certificate and I went in the army as William G. So they never— Historical RH: They didn’t catch the earlier report. interview GH: They didn’t catch it. You didn’t have all the computers and everything that you have now.

So I went in the army. Just to move ahead a little bit, in the winter of 1944-45, when I’m in the Hürtgen Forest— historyMinnesota RH: I don’t know where that is.

GH: In Germany,Oral north of the Ardennes, where the Battle of the Bulge was, and it was a terrible fight. But in any event, my dad got a notice for me to report to the Selective Service office to see whether I couldn’t do a desk job. [Laughs] And here I’d been in the army since the fifth of July of 1942. I had been in the army at that time. So I went in the army and went to basic training, and then went to Fort Benning Officers’ Training School. Then I was sent to a National Guard division at Columbia, South Carolina, and I had only been there a short time and I figured that this was the most screwed-up group of officers I’d ever seen, and I hadn’t seen very many, but I determined if I could get out of there, I was going to.

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So when they came along seeking volunteers for the 2d Ranger Battalion, I volunteered. Of course, when I was accepted, I had no problem. I was accepted into the Ranger Battalion, and then I stayed with the Ranger Battalion until the end of the war.

RH: And that put you in the thick of it then.

GH: That’s right. I landed on D-Day on , and then went through war, wound up in Pilsen, , at the end of the war.

So within a couple of weeks after the war was over, a notice come through one day, and it said that the army was looking for someone to be what they called a labor relations officer for , and it listed the qualifications. One of them was that if you were a graduate of a law school that had specialized in labor relations—that made you eligible. So that was me. Heaney RH: Right. You’d done the Law Review article. W. GH: And had specialized in labor relations. So I put an application in. Within a few days I was accepted, so I spent from the middle of June of 1945 until October of ’45 in military government, and then, as you know, the war in Japan came to an end, so at that time they started to bring the men home. Society Gerald I read in the Stars and Stripes one day that the 2dof Ranger Battalion was going home. They’d been in Le Havre, France, awaiting orders as to whether they were going to go to Japan or what was going to happen to them, so I went to my company commander and asked permission to transfer back so I could go home. “No.” I went to the next guy, he said no too. So there was only one place left to go, and that was General Patton. SoHistorical I got up one morning early and went to General Patton’s office. [Laughs] Got all shined up, you know. His adjutant was there and he asked me what I wanted, and I told him, andinterview he said, “Well, I’ll talk to the general when he comes in.”

Promptly at seven o’clock, Patton walks in his office and I stood up. He said, “What does this officer want?” And he told him. And then Patton came over to me and said, “When did you join the Rangers?” historyMinnesota I said, “In Camp Forrest, Tennessee.”

He said, Oral“Were you with them on D-Day?”

I said, “Yes.”

He said, “Were you with them in the Hürtgen Forest?”

I said, “Yes.” Because we had been attached to him in the Hürtgen Forest.

And he said, “Give him anything he wants.” So that was entirely out of the character, you know, 5

that Patton was known as.

RH: I don’t know. He respected what you’d done.

GH: So I went home, came home on the USS America.

RH: I don’t know—

GH: That was a luxury liner that had been converted into a troop ship to bring people over and back.

So I came home in the middle of October and was married on December 1st, and moved to Duluth on January 1st of 1946. Heaney RH: There’s an awful lot that you talked about there, the Normandy landing of the winter of 1944-45. That’s the thick of the war. That’s a book in itself. I don’tW. know.

GH: So whatever you want.

RH: I don’t know where to begin on that. Anything else you wantSociety to say about that? Gerald GH: Well, whatever you want. Whatever you want.of

RH: I don’t know enough about the—all I know is that that was the thick of it, and I’m glad I wasn’t there. Historical GH: Well, I was very lucky, very lucky, that I wasn’t killed or wounded, because we lost a huge percentage of our men on D-Day,interview and then we got new men who were sent to us, and then again we lost 60 percent of our people in two days in Pointe de Hoe and the Hurtgen Forest.

So I’ve got a transcript that was taken of this war stuff that Mary [Bibbey] can give you, if you want to pursue any of it further. historyMinnesota RH: The Historical Society might be interested. It’ll be on the tape, and if they’re interested, they’ll contact you. I think people coming after us will be interested in that. Oral For me, you talked a little bit about having met Orville Freeman, I gather in law school.

GH: Yes. Orville and I were very close friends.

RH: In my own research on the history of the city of Duluth, I ran into you. You’re usually mentioned as part of the Humphrey gang or group, or whatever, and I’m not from Minnesota, so this is all kind of new to me. Art Naftalin, Orville Freeman, Eugene McCarthy.

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GH: Eugene McCarthy. Eugenie Anderson.

RH: Had you met all these people in law school?

GH: No. While I was in law school, Orville was there, and he and I were good friends. We both belonged to the same legal fraternity. On December 7th of 1941—his parents had come from Zumbrota, which was only nine miles from Goodhue, or his grandparents, and so they still owned some land down there, so on December 7th, a Sunday, Orville and his wife-to-be, Jane, and Eleanor and I drove down to Zumbrota and then we had made arrangements to stop at my family home to have dinner that night, and when we got to Goodhue, there was the President of the United States on the radio saying that Japan had bombed Pearl Harbor.

So Orville and Hubert [Humphrey] were close friends at the University of Minnesota, so I had met Hubert on several occasions, but I wasn’t a close friend of his until afterHeaney I came back from the war and I moved to Duluth. Then he asked me to be his campaign manager in northeastern Minnesota when he was going to run for the Senate. So I was intimateW.ly involved from the time I came to Duluth on January 1st of 1946, until he ran for the Senate in November of 1948 and was elected. So then I worked with him on all of his campaigns.

RH: How did you happen to settle on Duluth? Society Gerald GH: I wanted to specialize in labor law, and Duluthof had a fairly large organized labor population, group, and they didn’t have a lawyer in Duluth that was representing them. My alternatives, if I wanted to get into labor law, were to go to one of the Twin City firms, Henry Seagal [phonetic] or Bill [William] Gunn or Solly Robbins [phonetic]. They did most of the labor law work, and I could have gone to them, Historicalmade application, but I decided that I wanted to go off on my own. interview So I read an ad on the bulletin board at the University of Minnesota Law School when I got back from the army, saying that this small law firm in Duluth, Lewis Hammer & Chair [phonetic], were looking for a young lawyer. So I come up here and I talked to them and I agreed that—I told them what I wanted to do, and I agreed that I would work for them and do what they wanted me to while I was buildinghistory myMinnesota own practice, and then I would stay with them, and that’s what I did.

RH: So you arrived in January? Oral GH: January 1st, 1946.

RH: The labor movement in Duluth was split. Well, I don’t know. You probably have a better sense of this than I do. There was a fairly well-organized far-left group, Communist party- connected, that had some roots in at least some of the CIO [Congress of Industrial Organizations] unions and in the CIO Industrial Union Council. Then there was a very able team of people connected with the steelworkers who, so far as I can tell, weren’t Communist party-connected at all, and were trying to steer a more mainstream course. 7

There had been a whole decade of sort of struggle over who was going to control the labor movement here, and you arrived in 1946. That’s got quite a history. I remember Earl Bester had probably been a key person.

GH: Right.

RH: Buster Slaughter was on the militant, anti-communist side, and then on the other side in CIO there was McGraw—was he still there?

GH: Pat McGraw and the Pearsons [Ernie and Glenn] and George Dizard.

RH: Joe Paszak. Heaney GH: Joe Paszak, yes. W. RH: Did you have any sense of that situation when you decided to come up here?

GH: What I had the sense of was that before I came up, the steelworkers were represented by Arthur Goldberg nationally, and they didn’t have a local attorney. SocietySo whatever legal work they had, whether it was arbitration or National Labor RelationsGerald Board, or anything else, they would refer everything to him. So I realized that was out,of and they [AF of L and CIO] weren’t joined then.

So I came up and I represented the AF of L [American Federation of Labor] union, and that would be—my first client, I think, were the milkHistorical drivers. Then shortly after that, it was the teachers in Duluth, and then within a short time I was representing the teachers in a lot of the area. Then I represented the otherinterview Teamster unions for quite a while, the building trades, the service trades, retail clerks, hotel and restaurant employees, and machinists. So I represented most of the AF of L-CIO unions from about 1947 until I went on the [U.S. District] Court in 1966. I brought in a couple of people later on to help me do that work and other work that I had obtained. historyMinnesota I wasn’t aware of the split in the labor movement until I came up and then particularly when I started to get involved in politics, which would be very actively in 1947, when Hubert [Humphrey]Oral decided he was going to run for the Senate. Then by that time there was this split not only in St. Louis County and Duluth and the Iron Range, but the same thing was true down in the Twin Cities.

So Hubert’s position was that he was not going to run for the Senate unless we could essentially have control of the party, and so I spent most of my time between early 1947 and the time of the precinct caucuses, which were February or March of 1948, organizing in Duluth and on the Iron Range, with the goal of getting control by having the most people at the precinct caucus.

8

Well, what happened was that we, I think, probably were more successful in Duluth and the Iron Range than we were anyplace else, so the left wing, their strategy was that they wouldn’t participate in our precinct caucuses, that they would call precinct caucuses of their own, so they would elect a duplicate set of delegates to the county convention, and from there on you’re elected to the district and the state in the state conventions. So that was their strategy.

So I suspect that in St. Louis County we got duplicate sets of credentials in maybe half of the precincts, and so what we did, we set up a Credentials Committee to determine who were the lawful delegates. I’ll never forget that, because we set up the Credentials Committee and we knew that their tactics were going to be to—because we had more numbers than they did by about two to one, and so we felt that their tactics were going to be ultimately to say, “Well, we’re all good Democrats. Let’s seat everybody and get along,” which we didn’t want.

But we set up this room in the Credentials Committee down at the old SpaldingHeaney Hotel, and we had a fellow from the Teamsters who was going to be the sergeant-at-arms and could let people in as it came their turn. Well, he had to go downstairs and have a beer.W. [Laughs] So the floodgates opened and here’s these five people sitting behind the desk of the Credentials Committee in a roomful of shouting, angry people wanting to be heard. So I come in and passed a note to the Credentials Committee that I’d gotten another room, so at the first opportunity just excuse themselves and come down and we’d set up operations in Societythis other room, which we did. Gerald Then we started to hear the disputes. Well, it wasof a never -ending process, because everybody wanted to make speeches. They weren’t particularly interested in getting to the facts. There were enough uncontested delegates so we had a quorum, and so we started a convention at the stated time, which was seven o’clock at night. Historical Of that group that were in the room, that would be maybe 20 percent were in the opposition. So the meeting was opened and oneinterview of them gets up and says, “We’re not going to participate in this convention. We’re going to go downstairs where the real liberals are.” So they go downstairs.

So at that point there was no point in having a Credentials Committee. Our people had our convention and they had their convention downstairs, and they elected delegates to the state convention, but nonehistory of themMinnesota were ever seated.

RH: That left-wing group was pretty powerful, at least in controlling the party. I don’t know if you everOral had the numbers.

GH: They were good at controlling the party, but lousy at winning elections. Kind of like the party is today, only for a little different reasons.

RH: It would be quite a chore to unseat them within a year’s time.

GH: I had a lot of support from the steelworkers, from Henry Burkhammer [phonetic] and Earl Bester. 9

RH: Glen Peterson.

GH: And Glen Peterson, and then on the Range we had George Teller, Sam Swanson, Cliff Campbell. All of these were people I worked closely with, and Bill Murry sent in, who was supporting Hubert. I mean, they desperately wanted Hubert to be elected. He sent in a fellow by the name of “Smiley” Shaddock to help us organize, and Walter Reuther was strongly supporting Hubert and he gave us some money. I think I had three people working for me that we were able to pay.

RH: Was Bill Hartman still around Duluth at that time?

GH: No, he wasn’t around. If he was, I didn’t know him. Heaney RH: There is a Paul Lee, another one from the thirties who was active. W. GH: No. They weren’t the ones. Then we had the gang out at 1028 at the steel plant, and the cement plant, that was Joe Paszak. Then the coolerator were the Pearsons. But the gang at the steel plant were all firmly on our side—Al Overton, Murphy Erikson, Einar Bjork. Society RH: I tried to interview Einar Bjork, but I couldn’t makeGerald it. He died before I— of GH: Yes, Einar was a great, great guy. We had a fellow by the name of Ray Allen [phonetic], who was a bus driver, and I got to know him and hired him. So he really worked the West End precincts for me, and he was one of the best organizers I’d ever seen. I get different reports from what happened in the rest of the state, but we out-organizedHistorical them here in Duluth and on the Iron Range and we just got more people out. We just got more people out than they were able to. So as a result, we pretty well took interviewover in 1948. We took over the party.

RH: Duluth has a reputation for having a labor movement in terms of development that makes it difficult. I’ve heard a lot of this since I came here. On the other hand, there’s an article by, I think it’s Daniel Lazare, that says something to the effect—he was writing about 1955—that Duluth never had a local historybusiness leadershipMinnesota that had any vision, and that what economic development there was, as often as not had labor behind it. Do you—

GH: That’sOral true. That’s true. I think that much of the initiative came from the labor movement and those of us in the AF of L party. I think now in very recent years you’ve had a division within the labor movement in Duluth with the building trades essentially on one side and ASME [American Society of Mechanical Engineers] on the other side. For whatever the reasons, good or bad, ASME is a major organizing force and probably the largest union around here now, very, very active, and they have joined forces with the environmentalists and others, so they have opposed many of the projects. I think it’s maybe a little harsh to say that they’re opposed to everything, but the other elements of the labor movement aren’t as active and as involved as they should be. So, by default, kind of, you know, whoever is willing to work the hardest and put in 10 the most time and have the best ideas, they’re the ones that are going to prevail.

So as of right now, I think that ASME probably is the most significant force in the labor movement, and they are perceived to be anti-development. I don’t know whether that’s entirely accurate or not.

RH: I’ve heard you described as sort of the boss of the DFL in Duluth for a period of twenty, twenty-five years, from when you came in 1946, January 1. You went on the bench in 1966?

GH: 1966.

RH: That was about twenty years. I would think that the demands of the bench, the judge appointment, that that would pretty much take all the energy you have. I’m fishing around here. Heaney GH: Go ahead. W. RH: But is that a fair statement, that from 1946 to 1966 you were pretty much the—

GH: I think from ’46 to 1966 I spent a lot of time and a lot of energy in working for the DFL party and its candidates, particularly Hubert and Orville and John SocietyBlatnick and Eugene McCarthy, all of whom were very good friends of mineGerald and all of whom I thought were very able people. I spent a lot of time, and I was able to haveof a lot of people who were willing to help me, so we had a hell of an organization around here. I mean, I would say that the DFL party, from 1948 up until the time I went on the bench, was probably the best organized DFL group in the state of Minnesota. We had maintained a full-time office and a year-round office. Historical RH: Wow. interview GH: It was staffed at all times, and during the campaign year we would increase the staff. We maintained a constant list of the registered voters, kept it up to date, held frequent meetings and dinners where we would bring in speakers, whether it was Orville or Hubert or Paul Douglas or Averill Harriman or whoever it is. historyMinnesota All the presidential candidates would come here because they knew the 8th District was strongly Democratic. We had many more votes at the state convention than any other congressional district inOral the state, because we were so strongly Democratic and we were well organized and we worked together.

So I was very, very active, and I had access, so when people would come to me and they had a problem, if I could be of help, I would call Hubert or I would call Gene or I would call whoever it was. Or if the UMD [University of Minnesota—Duluth] had projects in the legislature or the Port Authority had projects in the legislature, they would come to me and I would do everything that I could to help them. So that was true.

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Since 1966, your reputation kind of lives on, and people think you’re—

[Telephone rings. Tape recorder turned off.]

[Begin Tape 1, Side B]

RH: So people are still calling you.

GH: So after 1966, the perception exists, and when I get a call from Judi Dutcher [State Auditor] or I get a call from Becky Lourey [State Senator], and they want to talk to you, I talk to them, but in terms of having real influence, it’s much more perceived by them than it is reality, as far as I’m concerned. [In 2002, both women were seeking endorsement as the gubernatorial candidate for the DFL party.] Heaney RH: I heard you give the analysis. I heard you give a talk about the St. Louis school case. W. GH: Right.

RH: And there was a question about the referendum in Duluth on the schools and why that referendum failed, and you gave about a two-minute analysis that SocietyI thought was clearer than anything I’d heard from anybody. My wife’s on the schoolGerald board, and I’d been talking to people, trying to figure out what happened, so maybe beingof around a while and having [unclear].

GH: And I read. I know many of these people, the older ones. The younger ones, I knew Gary’s dad. He was the business agent for the Teamsters. But I don’t know Gary [Doty, Mayor of Duluth] very well. When he was a little kid in Humphrey’sHistorical 1948 campaign, I would have him distribute literature on a Saturday. [Laughs] So people think you have a lot more influence than you have, and I’m sure there areinterview people in the community that think that I don’t do anything but to make sure that the Democrats do well, which is pretty much of an exaggeration. Of course, I haven’t changed my party affiliation and I’m still a liberal, and I talk to people, but I don’t go to any meetings. I don’t make any contribution. If somebody wants to talk to me about what I think they should do, they talk to me. historyMinnesota RH: 1968 must have been a real painful year for and his friends, too. He was just in a real tough situation and the whole country was torn apart. You must have been involved in that toOral some extent.

GH: Well, first of all, I managed Hubert’s campaign in 1960, when he ran for president in the Wisconsin presidential primary. I was his manager of that. We were defeated in Wisconsin by John Kennedy. Hubert carried four congressional districts, and Jack Kennedy carried six congressional districts and got the state and that propelled him over the top.

Then December 1st of 196— —well, to start a little earlier than that, in June of 1966, Orville and I are fishing up at International Falls and I got a call from Gene McCarthy up at the Rainy Lake 12

Airways. At that time you had to fly into our cabin. He asked me, “Would you like to be on the Court of Appeals?”

I said, “I didn’t even know there was a vacancy.” Because I had never talked with Gene or Hubert about going on the District Court or the Court of Appeals, either one. I said, “Well, let me talk to Eleanor, and I’ll get back to you on Monday.”

So I asked him, “What about Fritz?”

RH: Mondale.

GH: Because he was a senator. Gene, of course, was talking to him, and Orville was Secretary of Agriculture and Hubert was vice-president. They’re all good friends of mine, so if I had been rejected, I would have had to be pretty bad, with that degree of support fromHeaney those people.

So Orville called Nick Katzenbach, who was Attorney General, andW. Nick said that my name had been cleared with him, so that was fine. I talked to Hubert, and he said he was agreeable. I talked to Fritz; he said the same thing. So that was it, pretty much. I didn’t have any long, prolonged hearing. I think it lasted about five minutes, and that was about the length of it. Society So then came the whole Vietnam War, Vietnamese War,Gerald and we had a lot of cases, as you can imagine, that were indirectly related to the war. Thereof was the conscientious objector cases, and there was the Tinker case, which involved whether or not a school could expel a student who wore a black armband to high school.

RH: I’d forgotten about that. Historical

GH: In violation of constitutionalinterview rights. So I was on that case. We had a lot of those cases.

I was a strong supporter of Hubert. I believed at that time what we were being told, that it was essential that we keep the communists from taking over South Vietnam, that unless we did, the Chinese would expand their sphere of influence. historyMinnesota I remember a couple of days after Christmas in 1967, where Hubert had just gone over to Vietnam. Oral RH: I don’t remember that.

GH: Yes, he’d gone over to Vietnam. The date I may have wrong. He came back and he gave a speech in Duluth, and then I sat up with him. We sat up until three, four o’clock in the morning, and he was telling me about his meeting with Westmoreland and all of the military brass over there, and how confident that they were, you know, that the war was about over and the United States was going to prevail. He was pretty sure.

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But I should go back a bit, because this is important. In 1964, before I was named to the Court, I went down to Washington on business, and the first stop I made, I went in to see Gene McCarthy, and Gene wasn’t there, but Emerson Hines [phonetic] was there, who was his political man. What was the name of the other one? The chief of his staff was there. At that time it was just before the 1964 convention in Philadelphia that would nominate Lyndon Johnson for president and Hubert for vice-president. So as soon as I go into Gene’s office, both Emerson and the staff—I’ve forget his name now—“Who do you think Lyndon is going to pick as his vice- president?” \ I said, “I think he’s going to pick Hubert.”

“No, he’s not going to pick Hubert; he’s going to pick Gene. Gene had lunch with Tom Connolly this week,” and Tom Connolly, you know, was— Heaney RH: Texas. W. GH: Texas Secretary of Treasury. He assured Gene that Lyndon was really thinking strongly about him. Abigail had luncheon with Mary Connolly, who said the same thing. So Gene was convinced and his people were convinced that he was going to get it. Society So I said, “No, I think that Lyndon is too much a creatureGerald of seniority, and he isn’t going to. Particularly since Bobby [Kennedy] isn’t in the picture,of you don’t need a Catholic on the ticket.” By that time the Republicans had picked [Barry] Goldwater, you know, and the polls were showing already an overwhelming victory for Lyndon. I said, ‘He’s not going to move out of any traditional picks.” So I said, “I’ve got to go over and see Hubert.” Historical So I went to Hubert’s office, and Hubert wasn’t in. They all said the same thing, that Hubert was going to be the candidate, Maxinterview Kampelman and his aides.

RH: Talking with Hubert’s people.

GH: Yes. So then I went back to the hotel, and while I’m at the hotel I get a call from Gene McCarthy, and Genehistory said, “I’dMinnesota like to have you come back over to my office. I want to talk to you about this vice-presidential.”

I said, “Gene,Oral I’ve got a reservation to catch the plane in an hour, and if I don’t leave now, I’m going to miss it.”

He said, “Don’t worry about that. I’ll get you a reservation home tonight.”

So my friend John Swanson and I went back over to Gene’s office and met with Gene, and Gene said, “I understand that you think that Lyndon is going to pick Hubert.”

I told him why. 14

He said, “Well, if you were Lyndon, what would you do?” Because at that time Lyndon had been calling in a lot of people and had been asking, going through the charade of asking, “Who should I pick as my vice-president?”

And I said, “I’d look you right square in the eye and say, ‘What are you going to do when the going gets tough in Vietnam? Are you going to stick with me or are you going to say that this is Lyndon’s war and run to Newsweek and the TV commentators?’”

Gene looked me right in the eye and he said, “I agree with you. That’s the most important consideration. I think we’re doing the right thing, and we have to stay with it.”

RH: This is 1964? Heaney GH: 1964. Then Gene said to me, “What do you think Hubert would do?” W. And I said, “You and I both know Hubert, and he thinks there’s a way to solve everything peacefully. I’m not sure what Hubert’s position would be.”

And he said, “Would you be willing to go up and see the presidentSociety and tell him? He said he’d been asked. Gerald of I said, “Why would he want to see me?”

And he said, “He’s been talking to a lot of people, but none of them know both Hubert and myself as well as you do. Some of them know HubertHistorical well and some know me well, but you’ve been close to both of us. Would you be willing to go over and tell the president exactly what you’ve just told me?” interview

I said, “Yes, I will, on one condition, and that is that I go over and tell Hubert exactly what I’m going to do first.”

He said, “That’s fine.”history Minnesota

So he called the White House to ask for an appointment for me, and the White House told him, sorry, butOral the president had just left to return to the ranch. So I never got an opportunity to talk to the president.

But this brings us up to ’68 when the war came and Hubert was on one side and Gene was on the other side. I remembered that. I remembered that conversation. So I supported Hubert and most of the people that I had brought into the party supported Hubert. I didn’t make any speeches on his behalf or anything, but most of the party at that time were all people that were close friends of mine and would talk to me and wanted to know what I thought about it. So that influenced my thinking. 15

Then we had that terrible convention in Chicago, and I’m sitting home and I’m watching, and nothing was going on, taking place in the convention; everything was about what was going on out in the street. That was a terrible—I mean, I don’t know how Hubert got any votes. As he went into that ’68 campaign, he had less than $8 million to spend on the whole campaign, had nobody really working, speaking out for him, and he goes all around the state and he comes within an eyelash of beating Richard Nixon, not withstanding that terrible convention and the beating of the people on the streets and the macings and all of that. And somehow or other he was able to overcome that with the force of his personality and almost, almost succeed.

RH: I was young then, in my early twenties, and I remember I was near Detroit when the convention took place. As I remember that campaign, Humphrey distanced himself a little bit from Johnson on the war. Heaney GH: Yes. W. RH: As the campaign developed.

GH: And particularly in the speech he made out at Salt Lake City. Society RH: Did you ever have any private conversations withGerald him, where he brought up the—you talked about him going to Vietnam and being assured byof Westmoreland and other figures there that things were going well and that the war would come to an end and we would achieve our goals. Did you ever have any conversation with Hubert where he talked about that, a sense of having been misled or misinformed, didn’t know what was going on, or anything? Historical GH: No, no, I didn’t. No, I didn’t. interview RH: Maybe everybody who said that sincerely believed it at the time. Hard to say, I guess.

GH: I mean, who knows. You read [Robert] McNamara’s story now and you read all of these others, and then what’s his name, the one that’s recently written the book on Lyndon Johnson, talks about Lyndonhistory and hisMinnesota talking with Richard Russell and others and saying that “We’re losing the war, but there’s nothing we can do about it.” [Michael] Beschloss. He’s on Public TV a lot.

RH: I completelyOral missed this book.

GH: He’s got a book out. I haven’t read the book, but I listened to him talk about it. In there he’s been through all of JFK [John F. Kennedy], who’s recording in his office, his meetings, and recording his telephone calls with Richard Russell, who was another of his friends, about the terrible dilemma that the war posed and how it was unwinnable. I’ve got to read the book, because I’m not sure whether Lyndon was saying that even though the war isn’t winnable we have to stay in it because of the international significance of it, as far as China and Russia and so forth. At least what he said on TV, he hasn’t qualified Lyndon; he just has Lyndon saying it was 16

“unwinnable, but we can’t get out. We can’t send any more people and we can’t get out.”

But I never talked with Hubert after—well, I talked to him during the ’68 campaign. I would talk to him occasionally and then I would talk to some of his staff occasionally about what was going on in the campaign, because I knew people on the staff and was interested and wanted to know how he was doing and what was happening and so forth.

RH: To get back to your career, you’re now on the Court and, I would assume, increasingly focused on the court cases. I don’t know, I have no idea. I have never been able to get straight on what the different federal courts are. There are circuit courts and appeals courts and all that, and it goes over my head.

You talked about the St. Louis case as one of the major cases that you had to deal with, integration and busing and so on. What were some of the major cases as youHeaney think about them?

GH: Well, just to put the picture. The United States Court of AppealsW. for the Eighth Circuit, we hear cases from North and South Dakota, Minnesota, Iowa, Missouri, Nebraska, and Arkansas. The cases that we hear are appeals from the District Court or review from the various administrative agency, whether it be National Labor Relations Board or the Environmental Protection Agency or whatever. Society Gerald We have a full range of cases from criminal to civil,of and if there’s a controversy in the country, a political controversy or philosophical controversy, it usually reaches us in some form after a bit. As you already know, the cases that have been of great interest and concern to me have been the cases that involved the school desegregation cases in Little Rock, Omaha, Kansas City, St. Louis, and St. Louis in particular, because that case hasHistorical been to our court about twenty-seven times, and I have written most of the opinions on that case. So that’s been the one that I have been intimately involved in. interview

As I said, I would say that 40 percent of our docket is criminal in nature, and that is direct criminal appeals, and in some recent years that’s been most of our docket, drug cases, from crack to cocaine, methamphetamine, and whatever they have in the flow of the different drugs at different times thathistory they findMinnesota themselves to our court.

Then we hear a lot of civil rights cases, discrimination on account of race or gender or ethnicity or age. AOral lot of them tend to be Age and Disability Act that’s been passed through here. We hear a lot of cases on that.

In the early days of the Environmental Protection Agency, Clean Air and Clean Water, we heard a lot of cases. We’re not getting so many of those the last six or eight years, but for a while the validity of the regulations was being contested and the scope of the regulations was being tested.

It’s hard to go back over thirty-five years and pick out the cases. I suspect I redistricted the state twice, both in terms of congressional redistricting and legislative redistricting. When I say “I” did 17

it, they were a three-judge panel, but they pretty much—I wrote the opinions and it would be based on consensus of what we had agreed to, but I did an awful lot of work on those cases, so I did the reapportionment cases in 1970 and 1980. So those, I spent a lot of time on those.

The Leonard Peltier case has been a case, was a difficult and controversial case. Just so many. I suppose that I have written maybe 3,000 opinions and maybe 300 dissents. I’ve dissented more than most of the judges on the Court, particularly since 1980, when the composition of our Court has become much more conservative with the Reagan appointees. And still, it’s still a conservative court and is apt to remain that way. So I find myself writing quite a few dissents.

RH: This country has a deep problem with racism and it looked like for a while, when affirmative action was on the agenda, that there was going to be some kind of a sustained attempt to deal with that problem. At this point in our history, it looks like that agenda is dead in the water. Do you have any thoughts about that? Would you agree with that? Heaney

GH: I would agree with that, and the reasons for it are, I believe, that,W. first of all, you have a change on the Supreme Court, and when the Warren Court was changed to the Burger Court to the Rehnquist Court, the Court has become more conservative. The Court has become increasingly conservative, and when the Supreme Court becomes more conservative, then that permeates the entire judicial system from the Court of Appeals to Societythe District Court. Gerald Then not only as the Court became more conservative,of and not only conservative, but reluctant to impose any remedies that were going to negatively affect the majority community, and the majority community has become much more active in urging a philosophy that said we should count only in the individual’s merit, that it’s wrong to go back and to try and restore people to the status that they should have had for so many years.Historical That’s been very, very troublesome, as far as I’m concerned. interview Just as the Court has become more conservative, then the Congress and the president move with that. You even have someone like Bill Clinton, who had more support from the minority community, I expect, than any president that we’ve ever had, but even he was reluctant to positively support affirmative action and look for ways to move ahead without doing that. And it’s very difficult.history It’s very Minnesotadifficult to achieve.

So it isn’t only in education. I mean, not only you took it into a university now, a good university, it dependsOral on your test scores and your high school record, and every time you try and develop a program which would give opportunities to other people who don’t meet that criteria, then you’re accused of violating their rights.

I don’t know how we’re going to move from this point, but now it’s going beyond that. Now it’s going into beyond entering secondary level, and standardized tests are achieving such a status that every local school district in every state and [unclear] are moving towards more of that. Now we don’t give out test scores of individuals; we give out the test scores of the various schools.

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I just got a book on all of the test scores broken down by black and white, where the tests in the year 2000 for every school in St. Louis and every school in the suburban area that surrounds St. Louis, and as of now, we punish schools who are not doing well. But when I look at the statistics that I’ve been working on this morning, the fact of the matter is that although black students in the very best suburban schools do a little better than the black students in the city schools, they don’t do much better, and the achievement gap is even greater.

So what do you do? Are the tests fair? Are the black students doing well, not doing well because of their poverty and the fact that their parents aren’t well educated and supportive, that the community is not—the schools—I mean, you don’t begin to measure up to the schools in the wealthier suburbs [unclear]?

And everybody has their own opinion, but we’re moving much too fast, in my opinion, towards saying that the test scores are the be-all and end-all, and I don’t know whetherHeaney that good a measurement or whether that’s the only measurement we should use. Certainly I strongly believe that you just can’t punish schools for not doing well, that you’ve gotW. to make sure that they do well. We can’t have whole societies, as I pointed out the other night, you can’t have whole societies, whole communities like St. Louis, depend on having a well-educated, well-trained workforce and have two-thirds of that workforce that is not doing well in school. Society RH: Thank you, Judge Heaney. Gerald of

Historical interview

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