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Download the Pdf File Here 3</7. 73 Table of Contents PAGE Acknowledgements •• v Members of the U.S. Court of Appeals for the District of Columbia vn The Court's Antecedents and Its Early Days 1 The 1920's and 1930's, With an Increase in Judges and Some Bizarre Factual Issues 15 Problems of the War During the 1940's, as the Court Reached Its Present Size 27 Aftermath of the War in the 1950's, Including Durham, Mallory and Their Progeny 33 The 1960's, From Luck to Problems of Administrative Law 53 The Court Reform Act and Its Aftermath 77 Issues of the 1970's, From Tenants' Rights to the Pentagon Papers 89 Search and Seizure, Speech and Debate, the Christmas Pageant and Watergate 107 Quasi-political Problems of the Mid-1970's 129 Summary and Analysis of the Court, Its Work and Its Workload 139 iii Acknowledgements The Chairman of the Committee to write a history of the Court of Appeals is indebted beyond measure to the Young Lawyers Section of the Bar Association of the District of Colum bia for its invaluable help in the preparation of the case histories and legal analyses that appear in this history. The Section, under the Chairmanship of Thomas H. Queen, Esq., appointed a Committee chaired by Paul L. Friedman, Esq., for the special purpose of recruiting young lawyers for this task. The follow ing attorneys — most of them members of the Young Lawyers Section—worked long hours and under difficult time strictures to produce these histories and analyses under the supervision of Mr. Friedman: Roger M. Adelman Paul D. Kamenar Bernard J. Panetta II John D. Aldock Neil A. Kaplan Thomas H. Queen fames E. Brammer Jordan A. Luke Patrick M. Raher Richard L. Cys J. Michael Marcoux Robert B. Reich Mark L. Evans Nicholas S. McConnell James P. Schaller Robert Fabrikant Regina C. McGranery Lawrence H. Schwartz Ann P. Gailis Robert M. McNamara Jr. Dorothy D. Sellers Stuart M. Gerson Michael J. Moorehead Francis S. Smith Maureen E. Gevlin John M. Nannes W. Randolph Teslik Leo N. Gorman Morgan E. O'Brien Mark H. Tuohey III Henry F. Greene Timothy J. O'Neill Joseph G. Zengerle The Chairman is also indebted to Messrs. Daniel Boughton, Daniel M. Cathey, George A. Fisher, Charles E. Nelson, Curtis S. vonKann and Wesley S. Williams, Jr., for their aid in gathering or commenting upon additional materials in the history, and to Mrs. Madaleine D. Attick for a monumental typing job. Part of the early history of the court was excerpted from "Judicial System of the District of Columbia," which was written by a former Clerk of the Court, Joseph W. Stewart, and which appears at 1 D.C. Dig. V (1961). E. Barrett Prettyman, Jr. Chairman v vi Members of the U.S. Court of Appeals for the District of Columbia Circuit Name Date of Judicial Oath Date service terminated Alvey, Richard Henry May 1, 1893 Dec. 30, 1904. Arnold, Thurman Wesley Mar. 16, 1943 July 9, 1945. Bastian, Walter Maximillian. .. Dec. 15, 1954 Mar. 16, 1965. Bazelon, David Lionel Nov. 1, 1949 (recess); Now serving. Feb. 24, 1950 (lifetime). Burger, Warren Earl Apr. 13, 1956 June 23, 1969. Clark, Bennett Champ Oct. 20, 1945 July 13, 1954. Danaher, John Anthony Nov. 20, 1953 (recess); Jan. 22, 1969. Apr. 8, 1954 (lifetime). Duell, Charles Holland Jan. 10, 1905 Aug. 31, 1906. Edgerton, Henry White Feb. 1, 1938 Apr. 22, 1963. Fahy, Charles Dec. 15, 1949 (recess); Apr. 17, 1967. Apr. 13, 1950 (lifetime). Groner, Duncan Lawrence .... Mar. 3, 1931 Mar. 8, 1948. (Served as re tired judge until death July 18, 1957.) Hitz, William Feb. 13, 1931 July 3, 1935. Leventhal, Harold Apr. 20, 1965 Now serving. MacKinnon, George E June 16, 1969 Do. McComas, Louis Emory July 1, 1905 (recess); Nov. 10, 1907. Dec. 12, 1905 (lifetime). McGowan, Carl Apr. 22, 1963 Now serving. Martin, George Ewing May 24, 1924 Sept. 30, 1937. Miller, Justin Aug. 30, 1937 Sept. 30, 1945. Miller, Wilbur Kingsbury, Jr.. Oct. 16, 1945 Oct. 15, 1964. Morris, Martin F May 1, 1893 June 30, 1905. Prettyman, Elijah Barrett Oct. 17, 1945 Apr. 16, 1962. Proctor, James M Mar. 9, 1948 Sept. 17, 1953. Robb, Charles H Oct. 8, 1906 (recess); Nov. 15, 1937. Dec. 14, 1906 (lifetime). Robb, Roger May 9, 1969 Now serving. Robinson, Spottswood W., III. Nov. 9, 1966 Do. Rutledge, Wiley Blount May 2, 1939 Feb. 14, 1943. Shepard, Seth May 1, 1893 Sept. 30, 1917. Smyth, Constantine J Oct. 1, 1917 Apr. 14, 1924. Stephens, Harold Montelle Oct. 7, 1935 May 28, 1955. Tamm, Edward Allen Mar. 17, 1965 Now serving. Van Orsdel, Josiah A Dec. 13, 1907 Aug. 7, 1937. Vinson, Frederick Moore May 12, 1938 May 28, 1943. Washington, George Thomas.. Oct. 25, 1949 (recess); Nov. 10, 1965. May 16, 1950 (lifetime). Wilkey, Malcolm R Mar. 30, 1970 Now serving. Wright, James Skelly Apr. 16, 1962 Do. Vll The Court's Antecedents and Its Early Days The history of the United States Court of Appeals for the District of Columbia Circuit properly begins with a reference to the courts which preceded it in the District. The District of Columbia having become the seat of the federal government both in law and in fact on the first Monday in December, 1800 (Act of July 16, 1790, ch. 28, 1 Stat. 130; United States v. Hammond, 1 D.C. (1 Cranch) 15 (1801)), Congress on February 27, 1801, established a court therein called the Circuit Court of the District of Columbia, to consist of one chief judge and two assistant judges to hold office during good behavior. 2 Stat. 103. The chief judge of the court as first constituted in 1801 1 was William Kilty of Maryland, who during 1799 and 1800, under a commission of the Legislature of the State of Maryland, had compiled "Kilty's Laws of Maryland." The two assistant judges were James Marshall of Virginia, a brother of Chief Justice John Marshall, and William Cranch, then of the District of Columbia, but previously from Massachusetts. 1 Shortly before his term expired on March 4th, President John Adams on February 28, 1801, nominated Thomas Johnson of Frederick, Maryland, who had served three terms as Governor of the State of Maryland, had served as Chief Judge of the General Court of Maryland, and subsequently had served as an associate justice of the Supreme Court of the United States from 1791 to 1793, to be chief judge, and James Marshall of Alexandria, Virginia, and William Cranch, then of the District of Columbia, but previously from Massachusetts, to be assistant judges. 1 Sen. Exec. Jour. 389 (1789-1805). On March 3 the Senate confirmed S. the nominations (1 Exec. Jour. 389), and President Adams on March 3, 1801, signed their commissions. Thomas Johnson subsequently de clined the appointment as chief judge. 1 S. Exec. Jour. 401. On March 23, Presi dent Jefferson, who had succeeded President Adams, gave a recess appointment as chief judge to William Kilty of Maryland (the Senate had adjourned sine die on Marcli 3, 1801). Following the convening of the Senate on Dec. 7, 1801, President Jefferson on January 6, 1802, nominated Judge Kilty for reappoint ment as chief judge. 1 S. Exec. Jour. 400, 401. On January 26, his nomination was approved by the Senate (1 S. Exec. Jour. 405), and on January 26, 1802, Presi dent Jefferson signed his permanent commission as chief judge. Chief Judge Kilty served until January, 1806, and Judge Marshall served until 1803. Judge Cranch, who succeeded Judge Kilty as chief judge in 1806, served as a member of the court for slightly over fifty-four years and during his service reported the decisions of the Supreme Court of the United States found in Volumes 5 to 13, U.S. Reports, as well as the decisions of the Circuit Court of the District of Columbia in volumes 1 to 5 D.C. (1-5 Cranch) Reports (1801-1840). 1 The Circuit Court had "cognizance of all crimes and offences committed within said district, and of all cases in law and equity between parties, both or either of which shall be resident or be found within said district, and also of all actions or suits of a civil nature at common law or in equity, in which the United States shall be plaintiffs or complainants; and of all seizures on land or water, and all penalties and forfeitures made, arising or accruing under the laws of the United States." The Circuit Court con tinued in existence for a period of sixty-two years, being super seded in 1863 by a new court, described below, called the Supreme Court of the District of Columbia, which was estab lished by an act of Congress (Act of March 3, 1863, c. 91, 12 Stat. 762) reorganizing the courts in the District of Columbia.2 On March 3, 1863, Congress established in the District of Columbia, as mentioned above, a new court to be called the Supreme Court of the District of Columbia, having general jurisdiction in law and in equity.3 It was composed of four justices appointed by the President, one of whom was denomi nated as chief justice, who were to hold their offices during good behavior. On March 11, 1863, President Lincoln appointed the first members of the court. David K. Cartter, a former member of the House of Representatives of the United States from Ohio and later Minister to Bolivia, was commissioned as chief justice, and Abram B. Olin, a former member of the House of Repre sentatives of the United States from New York, and George P.
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