William Alsup

An Oral History Conducted by Leah McGarrigle 2016-2017

William Alsup

Copyright in the manuscript and recording is owned by William Alsup and Leah McGarrigle, who have made the materials available under Creative Commons license CC BY-NC 4.0, https://creativecommons.org/licenses/by-nc/4.0/. It is recommended that this oral history be cited as follows: "William Alsup: An Oral History Conducted by Leah McGarrigle, 2016-2017”.

Transcription by Christine Sinnott Book design by Anna McGarrigle Judge William Alsup was born in Mississippi in 1945 and lived there until he left for Harvard Law School in 1967. At Harvard, he earned a law degree plus a master’s degree in public policy from the Kennedy School of Government. In 1971–72, he clerked for Justice William O. Douglas of the United States Supreme Court and worked with him on the Abortion Cases and the “Trees Have Standing” case, among others. Alsup and his young family then returned to Mississippi, where he practiced civil rights law, went broke, and eventually relocated to San Francisco. There he became a trial lawyer, a practice interrupted by two years of appellate practice as an Assistant to the Solicitor General in the United States Department of Justice (from 1978–80). In 1999, President Bill Clinton nominated him and the Senate conirmed him as a United States District Judge in San Francisco. He took the oath of oice on August 17, 1999, and serves still on active status. He has presided over a number of high-proile trials with more than two hundred of his opinions reprinted in oicial reporters despite not having asked for them to be published. Two prior works include Missing in the Minarets, the true story of the 1933 search for mountaineer Pete Starr, who went missing in the Minarets region of the High Sierra, published in 1999 by the Yosemite Association (now the Yosemite Conservancy) and Such A Landscape!, the true story of the 1864 expedition of the California Geological Survey in the High Sierra, published by the Yosemite Association in 1986. Judge Alsup is married with two children and two grandchildren, still loves ilm photography, and remains an avid mountaineer. Judge William Alsup in 2016. Photo by Jason Doiy.

Previous page: Last light on a clearing storm in the Ritlea Range I've been blessed in life. Every job I've had taught me something worthwhile and I've relished them all. Every friend and colleague has given me more than I've returned (despite my eforts otherwise). Most of all, my wife Suzan and two children, Allison and John, rank at the top of my blessings. I don't know why Leah McGarrigle would have ofered to do this oral history and the research that went with it as a gift. It proved to be a monumental endeavor. Leah has become yet another blessing in a long life enriched by others. She even enlisted her daughter Anna to design this book. My faithful secretary Kathy Young orchestrated the interviews. I thank all three.

William Alsup Contents

Interview History by Leah McGarrigle, Oral Historian Introduction by Danny Cupit Introduction by Joseph Garrett Interview One ...... 1 Early family history Texas to Mississippi Father and the Second World War Sisters Willanna and Sandy School and segregation Favorite subjects Interview Two ...... 11 2325 Terry Road Meeting Junior Feild, 1950 Holding up Nell’s General Store Planting corn, the vegetable garden and fruit trees Sunday dinners and holiday meals The Space Program and the Chick Experiment, 1962 Paper route for The State Times and ice-cream truck operator The survey crew Interview Three ...... 25 Childhood pals Brown v. Board of Education Counter protest against Escobedo v. Illinois The John Birch Society's “Impeach Earl Warren” Billboard, February 1963 Higgen Hogs Club; high school election and protest Backdrop of the Civil Rights Movement in Jackson, Mississippi Clarion Ledger, letter to the editor, June 6, 1963 – "We Are For the Civil Rights for Negroes" Cusp of social change from high school to college Martin Luther King speech in Chicago, 1966 James Meredith, March 1966 The Murder of Medgar Evers Judge Thelton Henderson and John Doar in Jackson, Mississippi Paying respects to Charles Evers with Danny Cupit Interview Four ...... 37 Interest in science, ham radio and the mechanical arts Inluence of the Second World War on thinking about democracy and civil rights Civil War seemed barely over Family trips: Cuba and Guatemala Expectations regarding education Interview Five ...... 47 Maternal side of the family James Meredith and Ole’ Miss, 1962 Evolving perspective on equality James Meredith’s one man protest, 1966 Tougaloo rally and Dick Gregory Provine High School, National Merit inalist Applying to college, starting Mississippi State in August 1963 Debate team and decision to apply to law school Mississippi State men’s basketball team and integrated tournaments The YMCA campus program; Kermit Clardy; becoming the VP Attending YMCA meeting and Martin Luther King speech in Chicago, August 1966 Interview Six ...... 61 The Speaker Ban, Aaron Henry, President of the Mississippi NAACP Senior year; the YMCA and the Young Democrat boards Acceptance to Harvard Law School Mandate For Change: organizing campaign for student body president Summer job working with analog computers Music; anti-war protests MacTavish’s Kitchens in Oban, Scotland and traveling in Europe Marriage to Suzan, August 31, 1968 Mentors Interview Seven ...... 73 Starting Harvard Law School and academic environment, 1967-1968 Kennedy School of Government: Masters of Public Policy and Law Degree Friends, including Terry Barnett Spring 1971: applying for clerkship with Justice Douglas Move to Washington, D.C. and start of clerkship Summer 1969: job with Los Angeles law irm Summer 1970: working for Mississippi Research & Development Center Reviewing petitions for cert; Justice Douglas in Goose Prairie, Washington Start of Supreme Court term Interview Eight ...... 85 Early life and career of Justice Douglas Role of law clerk to Justice Douglas; opinion writing process President Nixon and Watergate, 1972 The C&O hike and Save the Canal efort by Justice Douglas U.S. Supreme Court clerkship workload Interview Nine ...... 97 (continued) Supreme Court, work schedule Howard Hughes and Hughes Air West case Sierra Club v. Morton: footnotes, concurring opinion, “trees have standing” premise Roe v. Wade: right to privacy and issue of re-argument Interview Ten ...... 109 (continued) Roe v. Wade, Justice Douglas’s concurring opinion; research for draft Justice Douglas at oral argument Journalists’ Privilege and the First Amendment Returning to Mississippi to practice law Black sanitation workers union case, 1972 Leaving Mississippi and joining Morrison & Foerster in San Francisco, 1973 Interview Eleven ...... 117 Morrison & Foerster in the 1970s, litigation department and irm-wide events “Roadmap to Victory” Crocker Bank litigation Bob Raven, war hero, “As a concession to the shortness of life” Joining the Solicitor General’s oice, 1978 Transition from private practice; Solicitor General Wade McCree Sioux Nation v. United States, digging into the record including Native American history Kissinger FOIA case Interview Thirteen ...... 137 Back to Morrison, the DQ University pro bono cases Dennis Banks; the Department of Education Billing hours More about arguing before the U.S. Supreme Court Being a trial lawyer Industrial Union Department v. American Petroleum Institute, (OSHA), 1980 Interview Fourteen ...... 145 Types of cases at Morrison & Foerster OPM Leasing RICO case Peter Morton, Andrew Lloyd Weber, John Eastman Preparing for trial More pro bono cases: class action against slum landlord Save Bodie campaign and becoming honorary California State Park ranger in 1993 Yosemite, Such a Landscape (1964 California Geological Survey through the Sierra) Yosemite Association Board, Yosemite Restoration Trust, General Management Plan of 1980 Wilderness photography Interview Fifteen ...... 157 Trial team of Antitrust Division of Department of Justice Return to Morrison & Foerster and irm management roles Legal Aid Society of San Francisco Sabbatical and Europe trip, summer 1985 Application for federal bench, hearing and conirmation process Role of Mississippi roots, Danny Cupit Interview Sixteen ...... 165 Caseload and initial approach Transition from private practice to the bench Law clerks and oral argument; jury trials and jurors; young lawyers in court Class action lawsuits Criminal cases: post-prison supervised release Arbitration agreements Interview Seventeen ...... 175 Procedure, fair process and Rules of Evidence Being a federal judge; more about law clerks Yosemite: more about the Sierras; the Brewer Party Concession bid and renewal; friendships with Ed Wayburn, Wallace Stegner and others Roosevelt Point in Yosemite Interview Eighteen ...... 183 Planning to win a case “Rule of Convenience” and adverse witnesses Sitting by designation on the Federal Circuit and our Court of Appeals Three moving parts: the record, the standard, relief Select major cases: MS-13; No Fly List; Oracle v. Google, San Francisco School desegregation Judge William Orrick Interview Nineteen ...... 193 The Alsup Family: Suzan, Allison and John Katherine Young Hound Dog, Sandy and Jack Photography: parallels with professional work Writing projects, including memoir of growing up in Mississippi; reading the Warren Commission Report Backpacker Fraud “As a concession to the shortness of life” Conclusion Interview History by Leah McGarrigle, Oral Historian

Judge William Alsup and I met at Northern District Court Historical Society events over the years, during which time I worked as an oral historian for the Ninth Judicial Circuit Historical Society. I conducted a brief videotaped oral history with the Judge at the Ninth Judicial Circuit Annual Conference in Monterey, California in July of 2015. For this full length oral history Judge Alsup made time to be interviewed throughout a busy trial calendar, hearings, court business and the occasional backpacking trip. We met once or twice a month between October 2015 and August 2017 for a total of nineteen interview sessions. Meetings took place from 11:30 a.m. to 1 p.m. in the Judge’s chambers on the 19th loor of the Phill ip Burton Federal Building and U.S. Courthouse in San Francisco, and were organized by the Judge’s long time judicial assistant Katherine Young. On some occasions the Judge’s Jack Russell Terrier, Jack, was in chambers with his playful antics. My research and preparation included attending hearings, and civil and criminal trials, as well as Northern District Court Historical Society presentations, Inn of Court events, and reading about rel- evant time periods and legal decisions. Also for research I conducted background interviews, either in person or on the phone, with: Justices Martin Jenkins and Maria Rivera of the California State Court of Appeals, and Judge Thel- ton Henderson and Magistrate Judge Joseph Spero, colleagues on the Northern District Court, as well as Mississippi friends Ann Willoughby, founder of Willoughby Designs; Professor Hubert (Junior) Feild, College of Business, Auburn University, Alabama; Danny Cupit, Esq., Law Oices of Danny Cupit in Jackson, Mississippi; Walter Dowdle, founder of petroleum engineering irm Dowdle & Associates, who along with his son John also graciously advised my husband about a backpacking trip our daughter un- dertook in Big Bend National Park in Texas; and Dr. Sidney Craft of Houston, Texas. In addition, the following lawyers ofered advice for this oral history: Michael Traynor and Joseph Garrett; Morrison & Foerster partners Mel Goldman, Jim Brosnahan, Peter Pister, and Bryan Wilson; and my husband Philip McGarrigle, a constant supporter of my work. While I was on a trip to Washing- ton, DC the Judge’s colleagues from the Solicitor General’s oice gave generously of their time to meet in person: Judge William Bryson of the Federal Circuit, Elinor Stillman, and Peter Buscemi. Also ofering ideas and assistance: Morrison & Foerster legal assistant Mary Rumsey who sadly passed away not long after we met, Judge Alsup’s Courtroom Deputy Dawn Logan, and the incomparable judicial assistant Katherine Young. Many of the Judge’s law clerks spoke with me, including Adam Eltoukhy, Ryan Wong, Jill Schmidt, and Laura Hurtado. All of the above conversations were incorporated into outlines sent ahead of each session to serve as a guide for the interviews; the reader will see the outlines referenced from time to time. The interview sessions were also an opportunity to catch up on current events, other projects, and the lives of family members. This oral history was transcribed by Christine Sinnott, partially with funding organized by Bill Edlund through the Northern District Court Historical Society, and partially through a donation from Ms. Sin- nott and myself. I listened to the audio interviews while making slight corrections to the transcript and creating a table of contents. The Judge’s close friends Danny Cupit and Joseph Garrett kindly accepted a request to write the introductions. My daughter Anna McGarrigle volunteered to design the book, combining her creative skills and incorporating Alsup family pictures and the Judge’s original black and white photography with the text. I am grateful for the thoughtfulness and talent she brings to her work, and for this special and unique mother-daughter collaboration. The privilege and honor of conducting this oral history are all mine. A phrase I learned from Judge Alsup, borrowed from Justice Holmes with credit to Morrison & Foerster partner Bob Raven, says it all: “As a concession to the shortness of life….” Rather than wait for the Judge’s seniority to line up with a funded oral history, through a meeting of the minds with my husband, Phil McGarrigle, we embarked on this project for the beneit of all of us, with a promise that we will plan for an update in another eventful ive years. As the Judge’s story of his pro bono work in Bodie State Historic Park demonstrates, my family and I have received far more in living a richer life in exchange.

Leah McGarrigle

Palo Alto, California August 2018 Introduction by Danny Cupit

The greatest poet of this generation, Bob Dylan, once said, “When you feel in your gut what you are and then dynamically pursue it — don’t back down and don’t give up — then you’re going to mystify a lot of folks.” With his down-to-earth sensibilities, his keen intellect, and his innate moral compass, Wil- liam Alsup has certainly mystiied a lot of folks. He irst mystiied me in high school, then as roommates in college. Ever since, too. Bill and I grew up in Jackson, and like many in Mississippi, had a modest upbringing. He was always smart and did well in school, but he also worked hard. His father started a small construction company surveying and clearing right-of-way for power lines in rural parts of the state. When Bill was in high school, his father died leaving his mother, a nurse, to care for their three children alone. Bill got work with his dad’s former company in the summers while living with the work crews. That helped pay for college. Those formative years helped develop his down-to-earth sensibilities. He naturally identiied with the tenuous existence of those who labor in hourly-wage work, an identity with whom he continued to empa- thize even as he achieved the prestige and cachet associated with a Harvard law degree and a prominent legal career. After becoming a successful trial lawyer in a San Francisco law irm, he ignored trappings of success such as lashy cars or elegant restaurants, electing, instead, to spend his spare time in the wilds of the Sierra. Even after his elevation to the United States District Court, we would more likely have found Bill in pants mended with duct tape than in a tailored suit (he may not even own one). Bill’s transcendent intellect speaks for itself. From his early years through law school, he excelled in academics. His focus was more on the problem-solving exercises of mathematics and logic than on the social sciences, exempliied by the exactitude required in land surveying during his summer work. He always seemed to have the uncanny ability to solve complex problems well before others even understood them. He relished brain teasers and mathematical puzzles, especially those with answers that seemed plain after the fact. While education was important to Bill, it has been the application of his intelligence that has been even more impressive. Clerking for a justice on the United States Supreme Court, Bill’s work ethic and keen mind set him apart. Now as he sits on the bench, Bill’s insight into complicated issues is unquestionable, especially as he works through competing claims in patent, copyright and trademark infringement cases. Not only does he exhibit these high standards, but he demands them. He requires intellectual rigor from his law clerks and from practitioners appearing before him. He has an intolerance for rhetorical lourish masquerading as substantive argument and can cut through subterfuge with knife- like precision to get to the heart of an issue in dispute. Growing up in the racially segregated South, Bill realized early that man’s intolerance to man should not be tolerated, a conclusion he reached internally as his revulsion to it grew. In his teens, he and two pals were angered by a billboard sponsored by the John Birch Society calling for the impeachment of Chief Justice Earl Warren, so, in their own counter-protest, they painted over the impeachment part, taking care not to smear the American lag beside the message. It is diicult for those who did not grow up in the South in the ifties and s ixties to fully comprehend the extent to which that racial discrimination and segregation permeated our every facet of life. Bill grew up in a town and a state where racial segregation and, thus, discrimination was strictly enforced by city ordi- nances, state regulation and by custom. Bill was educated in segregated public schools until his mid-college years. He was taught from history books written by southern authors with tainted versions of the nation’s grappling with the issue of slavery, the Civil War and Reconstruction. Our public transportation system required black people to sit in the back of the bus and to vacate their seats for whites as needed. Public restroom and water fountain facilities were for whites only or were racially segregated. Publicly sponsored swimming pools opened in the summer were strictly segregated and eventually closed when federal courts ordered them desegregated. Even private businesses followed the custom of racial segregation, enforced by local police. Waiting rooms at bus and train stations were segregated. Churches and restaurants were for only one race of people. The state fair which came to town once a year for ten days allowed blacks to attend only one of these days while the whites stayed away. And black people were not allowed to vote. Most of Bill’s contemporaries accepted this system as a way of life either because they were taught that was the better way, they preferred it or simply because that was the way it was. But for Bill and a very few of his friends, it was not something that could be accommodated. In college at Mississippi State Univer- sity, we roomed together and took a further step of which we both remain proud today. There had never been an African American speaker at a white college in Mississippi — never. The Voting Rights Act had recently been enacted, and in our roles as student YMCA oicers, Bill and I invited the state president of the NAACP to speak on campus about the Act. When we were told that the speech would violate the governing board of trustees’ prohibition on “controversial” — meaning “black” — speakers, we took our case to the president of the University who again rejected our request. Frustrated, but undeterred, we decided to sue in federal court. We then told the president of our planned suit. In the face of this challenge, the president and the board reversed themselves. In January 1967, the irst black person ever to speak on a white campus in Mississippi arrived and addressed a standing-room-only crowd in the largest auditorium on campus. He received a standing ovation at the end. Bill returned to his native Jackson in mid-1972 to begin law practice with me. At the time, the City of Jackson still clung to the discriminatory employment practices of the previous century. The only African American employee in the city police department was the janitor. There were no African American ire- ighters. All salaried supervisory personnel in every department of the city were white. In his irst lawsuit as a private attorney, Bill became counsel to the city sanitation workers’ union that successfully challenged these employment practices in one of the irst suits in the c ountry based on the recently enacted amend - ment to the 1964 Civil Rights Act that allowed employment suits against local governments and won not only injunctive relief, but back pay for his clients. These incidents remain insigniicant when compared to the violence sufered by others in the ight for equal rights, especially in the South. But in the context of time and place, they ofer an insight into an important social question of the era. How did some white kids in Mississippi come to have progressive views even before the Civil Rights Movement was in full lower? What inluences were at work? The instincts relected in these stories were not taught in our racially segregated school systems. They were not inspired by the established regime. They were certainly not incorporated in our legal system dedicated to maintaining segregation and punishing those who resisted it. These instincts developed by observing and living in a social order that Bill innately recognized were wrong. They represent early markers of internal character. These common traits — intellect, compassion and fairness — are all shared by great jurists. They are the standards that became William Alsup. Like Bob Dylan, he has paddled his own boat and chartered his own course by following his own internal bearings.

Danny Cupit Galloway House Jackson, Mississippi August 2018 Introduction by Joseph Garrett

A lot of these people, no one has ever cared about them. They see that at least the judge cares about them. And I do. I genuinely do care. –Judge William Alsup

One of the hallmarks of the man is in what is not widely known. It's not in the headlines or the high- proile cases, but in the criminal proceedings post-imprisonment, when the ex-prisoner has served his or her time and is on supervised release. Most ex-prisoners only returned to court when they have gotten into trouble; Judge Alsup requires that they return to court regularly for progress reports. He might ask, "How are you doing with your work towards receiving your GED (General Education Diploma)?" Or, "How is your rehab going? Is there something we can do to help you?" He cares. In these pages, we see how Judge Alsup’s beginnings set him on a course to come out on the right side of history, we see his early passion for fairness, his activism in the Civil Rights Movement, and his work for and friendship with William O. Douglas. We see how he came to care– With a religious fervor Judge Alsup's parents believed in education. They said to him and his two sisters over and over, “You got to get the best education you can because that's the only way to get anywhere in life.” His older sister Willanna, ive years his senior, “brainwashed" him about school: “You are going to love school. You are going to learn so much in school,” she toldhim. He believed her. His irst day of school, when papers and crayons for drawing were being passed out, he said, “When are we going to start learning something?” Later, for every A he got, his parents gave him a dime. One day, when he was 12 and had gone home sick, his father took him for a drive in the country outside of Jackson, Mississippi, not too far from where Judge Alsup grew up. The schools were segregated in the South and in Mississippi they were purportedly separate but equal. Father and son came upon a shack that was down in a quarry — it was a cold rainy day, and a wood stove inside was burning — blue smoke was wafting out the metal pipe on the tin roof and the smoke was melding with the rain. In the red mud out front, kids were playing, all African Americans. That was their school and playground, that rundown shack with a metal roof and nothing but red mud to play in out front. His father, of the Greatest Generation, served in the North Africa campaign during the Second World War. The remainder of his life he sufered the aftermaths of a pa rasitic infection he contracted there. A self-taught surveyor and engineer, he built what would be the Alsup family home on two and one-half acres at the edge of Jackson. The house was simple, two bedrooms and a bath, cooled only by an attic fan during the hot, humid summers. It had no central heat. The washing machine was the old style, with a hand crank roller to squeeze out water from the clothes. They had no dryer, other than the sun and a clothes line in the yard. Like that house, the values his parents instilled were simple: honesty, hard work, loyalty, treating others the way you wanted to be treated, a dislike for conspicuous consumption, the rejection of notions of white supremacy prevalent in that era. His close friend Junior Feild moved into a new house on the other side of the corn ield the Judge would help his father plant. When the boys were seven or eight, they set out to hold up the nearby general store with cap guns. Junior was supposed to accompany young Alsup into the store; instead, he waited outside under a big magnolia tree, “wallowing on the ground, laughing like crazy.” Judge and Junior remain close friends to this day, their cap guns permanently coniscated. Judge Alsup’s father stopped attending their nearby Presbyterian church when the church elders ired their Reverend, who believed all people, black or white, should be welcomed and allowed to worship in the same House of God — that churches should not be segregated. Later, when Judge Alsup was 15, at his father's funeral, his mother distraught, the replacement segregationist minister ofered, “Well, I never saw much of him, so I can't tell you whether Mr. Alsup will go to heaven.” We see in these pages unfold Judge Alsup’s passion for fairness. Dramatic changes were taking place in the country. He was 17 and in high school when the Fifth Cir- cuit Court of Appeals ordered that African-American Air Force serviceman James Meredith be admitted to Ole Miss, the all-white college in Oxford. And he was in Jackson when Medgar Evers, a civil rights activist and ield secretary of the NAACP, was assassinated by a white supremacist and Klansman. Judge Alsup helped lead protests in high school over a blatantly unfair election. And his senior year with two friends on one of the main highways into Jackson he helped paint over the John Birch Society's brightly lit billboard calling for the impeachment of the Supreme Court’s anti-segregationist Chief Jus- tice Earl Warren. As a freshman at Mississippi State, with friend Danny Cupit he invited Charles Evers, Medgar Evers' brother, and Aaron Henry, the black president of the state NAACP, to speak on campus. When the Uni- versity said no – there had never been a black speaker at Mississippi State, ever – Cupit, Alsup and two other friends threatened to bring a lawsuit — “We just knew it had to be unconstitutional.” The University president met with them and took their side, and with a letter Alsup had written, urged the Board of Trustees of the University to reverse themselves. The Board reversed, and over the virulent objections of the Jackson newspaper, the Clarion-Ledger, Aaron Henry gave a speech about the Voting Rights Act of 1965. Two things drove Alsup to apply to law school: he was on a debate team at Mississippi State and loved it, and the Civil Rights Act. His irst year at Harvard Law Sch ool, so he would get to know someone right away, he was one of the few students who asked to have a roommate. Because Alsup was from Mississippi and white and it was the height of the Civil Rights Movement, the roommate was cold towards him. Alsup started playing his guitar; he and the roommate knew some of the same folksongs and became warm friends. Judge Alsup’s academic focus had been on math and the sciences. A self-described slow reader, the reading volume at Harvard Law felt overwhelming. He disliked the cutthroat atmosphere but did well on exams by learning to issue spot and by taking many practice tests. During his irst year at Harvard, while on a trip in the Midwest he met Suzan Caldwell, a student at UCLA. They married that summer in Bakersield and held the reception in the backyard of her parents' home there. They have been married for over ifty years. At the end of his second year at Harvard he clerked for the single law practice in Jackson that represented black people and labor unions. After graduation, he clerked at the Supreme Court for William O. Douglas, where he drafted the Justice’s concurring opinion in Roe v. Wade, further developing the right to privacy and liberty recognized by the Court in the Justice’s majority opinion in Griswald v. Connecticut. He did important work on Sierra Club v. Morton, in which the right of associations to sue on behalf of interested parties was established. From Justice Douglas he learned an important lesson about loyalty and deference. He allowed the clerk for another Justice to talk him into a view contrary to that held by Justice Douglas and wrote a draft opinion that way. He was rebuked and admonished by Justice Douglas; in fact, the Justice had done his own thorough research, and was right. Clerk Alsup worked all the harder. Back in good graces, during internal debate at the court about the Roe opinion, Justice Douglas sought and followed his advice as to whether to circulate a draft dissent critical of Chief Justice Burger. In the early spring of that Supreme Court term, he and the two other clerks left a note for Justice Douglas asking if they could join him on an annual hike he led along the C&O Canal. Several weeks went by and they heard nothing; they assumed the answer was no. Then one evening as the Justice was leaving, he came into their oices, his arms loaded with camping gear, a map showing the precise place in the wilderness they should sleep, and a bottle of scotch for them to enjoy the night before the hike. In these pages, we learn Judge Alsup became friends with Justice Douglas’ spouse Cathy, and that years later he was a pallbearer at the Justice’s funeral. We see how Judge Alsup practiced law; his views on advocacy in civil litigation and the importance of full disclosure, to not mislead the court; and his strategy with cases in mapping out a road map to victory, rather than the phased approach to litigation that begins with a motion to dismiss and leads to high legal bills. What emerges is a rare portrait of a private man whose passion for justice imbues every part of his life. Here's a rare intellect, a man of great heart, a creative genius who is committed to leaving the world better than he inds it through hard work and inspiring those around him. On backpacking trips together for decades, I have seen it time and again. We come upon young people — less experienced than the Judge — who may not be fully prepared, or older people who are tired, who may have bitten of more than they can chew. Judge Alsup invariably asks, "How can we help you? Is there anything we can give you that you need?" He cares. The world is a better place because Judge Alsup walks the face of it.

Joseph Garrett Kensington, California October 2018

one

Early family history Texas to Mississippi Father and the Second World War Sisters Willanna and Sandy School and segregation Favorite subjects

LM: Today is October 28th, 2015 and I’m Leah McGarrigle with Judge William Alsup in the Judge’s chambers in the federal building in San Francisco. Judge, I just want to start by telling you what a privilege it is to sit here and start our work together. WA: It’s my privilege. LM: I’d like to start by asking you when and where you were born. WA: In June of 1945, Baptist Hospital, Jackson, Mississippi. LM: We talked a little bit about going back in your family as far as you know. Let’s start on your father’s side of the family. What do you know about the origin of your name, Alsup? WA: My older sister, who’s now deceased, did a lot of work on this, and I had read it some time ago. I can give you the short version. Our family on the Alsup side was in Northern Ireland. They were Protestants in Northern Ireland sometime in the 1700s and then came to North Carolina because they felt persecuted there as Protestants, even though it was supposedly a Protestant country. And then from North Carolina, a group went to Tennessee, and then from Tennessee, a group that represented my dad eventually went to Texas and then that’s the way the branch got out to Texas. And if you drive through West Texas, oddly enough you’ll see gas stations that say “Alsup Gas Stations,” spelled exactly the same way. So there is quite a number, I would say, of Alsups in the West Texas area. So that’s my dad's side. My mom’s side were the Wilsons, and they went through Virginia. I can’t give you the exact year, but there was an old, old home that my sister tracked down that was about 1700, and it still existed up until about ive years ago when it burned down, she discovered. That family started out in Virginia, and I don’t know how they got to Texas, but one branch got all the way to Texas. Now, here’s an interesting thing that my sister found out. When I was growing up, we were told many times that we were related to Woodrow Wilson and, in fact, I have a memory of my grandfather, my mother’s father, at a family reunion when I was about ive, and he looked exactly like Woodrow Wilson, which I inkth helped promote that theory. My sister did the research and it turned out to be totally untrue. Not true at all. We were not related to Woodrow Wilson. But she discovered that we were very distantlyrelated to Thomas Jeferson. So that was something that had never previously been promoted within the family. So when I say very distantly, I really mean that. It’s probably removed seven or eight, ten times. I’m not sure how many, but many times removed from Thomas Jeferson. Now, my dad was raised on a farm and my mom was too, but in diferent circumstances. He was farther

one • 1 William Haskell Alsup, 1936

west in Texas, along the Brazos River near a town called Kopperal. I believe that’s spelled K-O-P-P-E-R- A-L. And that little tiny town is still there today, but it’s still small. And I believe it’s near the Brazos River. He lived on a hardscrabble farm growing up and went through high school. Wanted to go to college, but the Depression ended that idea, so he went into the WPA [Works Progress Administration] and learned surveying in West Texas. I’ve got a picture of him riding a horse with a surveying tripod over his shoulder, back in the thirties. By contrast, my mom was raised on a farm near Waco, farther east, in a community called Bull Hide Creek, and I think that community’s still there and also today still small. When I was a kid, the large two-story house she grew up in was still there. She had, I think, twelve brothers and sisters, a very large family, and they grew cotton on their farm, and she was one of the laborers who would help plant and bring in the cotton crop every year. With so many kids, that’s what they did. They did it all themselves as a family unit. Just one little anecdote, if I may, on that. When I was a kid, she told me the story that I remember vividly because I was so interested in airplanes. She was born in 1913, and sometime around 1920, when she was about seven, she was out in the cotton ield, picking cotton, and a two-wing airplane lew right over, and she had never seen an airplane before. None of the kids had seen one, even though planes had been around a bit, none of them had ever showed up there in that part of Texas. So the kids all just dropped what they were doing, and all of them chased that airplane along the rows of cotton. Of course, there was no way to catch the plane, but they were so thrilled by the idea of the airplane that they just ran as fast and far as they could after it. So she lived through the infancy of planes and then their advanced use in World War II, and then to see people land on the moon. My dad didn’t live to see them land on the moon. He died in 1960, but my mom lived long enough to see that. So that’s where they were born and raised, both in Texas.

2 • one Both of them had been married to somebody else, brief marriages that didn’t work out, and then they met, I believe, when they were in Corpus Christi. Both had high school degrees. Mom was in a two-year nursing program. I think they got married in Corpus Christi and then came to Mississippi. And that was 1940. Why did they come? I have a couple of theories. Mississippi did not require a college degree to be a licensed civil engineer, and that’s what my dad wanted to do, and he was good at that kind of thing. He was always proud of the fact that he passed the test. You had to take a test in Mississippi, and he scored higher than the Yale graduate who had taken the same test. He was very proud of that. They also wanted to get away from some of the family. My dad’s mom was a cantankerous mother-in-law, and I don’t think she approved of my mother, so they wanted to get away from her. And then they heard that there was work in Mississippi. They spent their last dime in Mississippi, they said, on a watermelon. My mom was pregnant with Willanna, my older sister. She had one of those cravings, so their last dime upon their arrival went for a watermelon. That was in Jackson. Eventually, an engineer named William Mallett in Jackson gave Dad some work, and that led to a number of jobs. So by December 27th, when my sister was born in 1940, in gratitude they named her after William Mallett’s wife, whose name was Willanna. I’ve never run into anyone in my life that had the same name. That’s a pretty name. And Mrs. Mallett took an interest in Willanna the rest of her life. My dad eventually got started with his own little small, solo practice of civil engineering and surveying out of Jackson and Laurel. Willanna was born in Laurel, again in December 1940. At the end of 1941, Pearl Harbor occurred, and my dad went into the Army Corps of Engineers, which disrupted all of that start of his business. Willanna and my mom moved back to Texas to live with family while the war was on. They went to Waco. So there arose a war interlude from 1941 to 1944. Dad was in North Africa, in the North Africa campaign, and he got very sick from what we now know, but did not know then, was sand lice. One form of that infection was what he got, which is the worst form, which eats up your intesti- nal tract, and he was sick on and of all the way up until he die d in 1960 from that very problem. After his return in 1944, they moved back to Jackson and got started all over again. He restarted his civil engineering business and so I was born in June, 1945, just nine or ten months after he got back from overseas. So I was one of the irst products of that reunion getting back together. LM: Yes, so tell me your mother and father’s full names. WA: My Dad’s name was William Haskell Alsup, exactly the same as me, and my mom’s name was Jewel Emma Wilson. LM: Is Haskell a family name also? WA: I don’t know the origin. LM: And you mentioned both of your father’s parents. WA: Well, let me explain a little about that. Now, my dad’s dad, we called him Pop. And he was wonderful. He came every summer to visit us for a couple of weeks in the summer, and he smoked a pipe and he would say—I would ask him how long he was going to stay, hoping it would be all summer. And he’d say, “I’ll stay until my tobacco runs out.” And then he would get on the bus and go back to Texas. He always came on a Trailways bus. The same bus station, by the way, that later became famous when the Freedom Riders came to town about 1960. Pop was a natural courthouse hanger-on. He had some job, when he had a job, he had some job where he worked in the courthouse in theclerk’s oice. He was not a judge. He was something in the clerk’s oice, and he loved local politics, and he loved to talk and he loved to tell stories. And he loved kids, he loved his grandkids. So he was great. He had blue eyes, still had some hair, white by that point, and he had a very sunny, jovial disposition. Not skinny, but he wasn’t fat, either. He

one • 3 was slightly overweight. And he would try to help me with mowing the grass. He always felt sorry that I had to mow the yard even though I was only like twelve years old. He would get out there and help me push the lawn mower, but he would start sweating so bad, he always had to take a rest. So we would rest together and he would tell me some stories, then we’d push on and try to mow the lawn some more. So that was Pop. Oddly enough, he died in August of 1960. My dad himself died in November of 1960, so they passed away very close together. On my mom’s side, I—I’m going to come back to Granny in a minute. On my mom’s side, I didn’t know her dad very well. My mom’s mother had died early, so she had long since passed away, but I did know the brothers and sisters. I met all of them at one point or another. They were a great group, too. And her youngest sister, Frances, only died very recently. She was over 100 years old. She died in Waco about six months ago. Up until about a year and a half ago, I carried on a regular correspondence with her. I would say regular, maybe three times a year, but she was always interested in my own kids and what we were doing, and every now and then, when she was in better health, she would send me pictures of my mom that she’d found. And she looked a lot like Mom, a slightly younger version, so it was always nice to have that. Mom herself died in ’74. Anyway, I didn’t know her mom and dad. I’d met her dad, the one that looked like Woodrow Wilson. He soon passed away. My mom’s mom died when Mom was, I believe, thirteen. Now, to go back to my Dad’s side, Granny, as we called her, ran a boarding house in San Angelo, Texas, and we would visit her because my dad was careful. When he went out there, he wanted to make sure that we visited both his parents—even though they were divorced. Granny was very unlike Pop, who was lovable. She was cantankerous, mean. It’s no wonder my mom wanted to get away from her. She ran a boarding house and ran it like a tyrant. Nobody got crosswise with her. LM: What was your grandfather’s name? WA: Leonard. LM: And you mentioned a hardscrabble farm. What kind of crops would he have raised? WA: I think it was corn. He would have had some livestock, for sure, and I’m going to say corn, but I’m

Oneta, boyfriend of Willa Mae, Jewel William Haskell Alsup, 1940 Jewel Emma Wilson, 1932 not certain anymore. I’ve seen pictures of my dad as a skinny, tall eighteen-year-old with a .22 rile on his shoulder, going out squirrel hunting. I’m sure they shot small game to put food on the table, too. Pop would not have been a good farmer. He just wasn’t cut out for that. He was cut out to sit around a courthouse and yack, and laugh and make people happy. He probably could have been mayor of the town, but I don’t think he would’ve been very good at rolling up his sleeves and actually iguring out the answer to problems. He was good at talking. LM: When he told you stories to help you through the chores you had to do, what kind of stories would he tell you? WA: He told me one that I do remember. He said that when he was young—young kids would ask things like, were you ever a cowboy? Because there were a lot of co wboy movies. He told me a story about him as a young man having a gun, a pistol that he kept under his pillow and he kept it under his pillow in Oklahoma, where he ran a dry goods general store in Oklahoma. The store was downstairs. Then upstairs he had a room. That’s where he slept at night. He said there was so much shooting that went on in that town that he slept with a loaded handgun, which would have been like a six gun, under his pillow at night. Of course, that thrilled me as a young kid to hear that my granddad was almost a gunslinger, just like the movies. That was one story that he told. LM: I have on the outline things like occupations and religion, political ailiations. WA: I can remember some of that. In 1960, Dad was a Democrat and Mom wanted to vote for Nixon. Now, he died just a few days before that election, but I remember them arguing over this, because she liked Eisenhower and, in turn, Nixon—no one knew then that he was a crook. My mom thought we should continue with Nixon. I remember them arguing over that. She just felt the best person should get it, whereas my dad was a loyal Democrat. In those days, the Democratic Party was not the Democratic Party we have today. It was more like the Democratic Party that emerged from the Roosevelt Era, which was solid in the South, which was very much in favor of Roosevelt, but they had not done anything to improve the race situation. The South in those days was solidly Democratic, not to the credit of the Democratic Party. My dad was a Democrat of that older Democratic Party. When LBJ was running in 1960 and trying to get the nomination, my dad was all in favor of Lyndon Johnson. Honestly, whenever Kennedy got the nomination then, I don’t remember what my Dad’s view was, then, because Kennedy was a liberal and my dad might have had misgivings about that, but he died four days before the election, so we never got around to inding out how he might have voted, and I doubt that my mom voted at all that year because of my Dad’s death. So that was the politics in our family. I’m sure that my granddad was a Democrat. LM: You mentioned that your father’s family came from Northern Ireland and that they were Protestant. Did that religious tradition continue? WA: Yes, it did, except we started out in Jackson attending the Presbyterian Church, but I don’t think it was a long line of Presbyterians. I think it was a matter of convenience. I think if the nearest church had been a Baptist church, we would have gone there, or if the nearest church had been Methodist. It would have been one of those traditional denominations. Both my parents felt we should go to church, so we attended Sunday School, my two sisters and me, until my older sister Willanna quit going. But my younger sister Sandy and I religiously attended Sunday School and at least one long-winded sermon by the minister every Sunday. Can I tell you a story about that? LM: Oh, please. WA: The story has to do with the race issue in Mississippi and attitudes, and I’ll begin by saying my dad

one • 5 believed in segregation. Not white supremacy; that’s a diferent concept. But he believed in segregation. But the curious thing is that when it came to churches, he thought that all races should be welcome at any House of God. That was his view. And so the minister at our church, the Alta Woods Presbyterian Church, Reverend Mofett, also evidently believed that any person, Black or white, should be welcome at any House of God. So when the 1954 Supreme Court decision came down in Brown v. Board of Education and desegregation became a huge issue that we will discuss in some detail as we get into it, the elders in the church decided to ire that guy and bring in a diferent minister who would be willing to close the door on Blacks and keep it white only. So my dad quit going to church. He liked the old guy. He did not like the new guy. And so he just quit going. He still made me and my sister go, and my mom still went now and then, but Dad just quit. Possibly it was as simple as he just liked the old guy and he didn’t care so much about the race issue, but he did agree that all churches should be open to all races, even though he believed in segregation in the schools. I mention this because there remained complications. Life was complicated in the South. It was not always just Black and white like sometimes the movies make them out. It was more complicated, and just as a footnote on that, when my dad died in 1960, the same racist guy was the minister, and of course I was just ifteen at the time, my mom was distraught, this minister came in and gave the inal sermon at the funeral and had the gall to say something like, “Well, I never saw much of him, so I can’t tell you whether or not Mr. Alsup”—referring to my Dad—“will go to heaven.” But the minister knew how my dad felt about him, so he took the opportunity to make that little dig. Anyway, Mom never got over that. I bring that up because it’s a fact of life in the South that is worth mentioning. Okay, next question. LM: Well, it’s nuanced, as you said. You have an older sister, and then there’s you born in 1945, and then you have a younger sister. What is your younger sister’s name and birthday? WA: Her name is Sarah Gertrude, and she went by Sandy then, but now Sarah. We still call her Sandy. She was two years younger than me, and completely diferent. Each of the kids had a diferent personality. Let me start with Willanna. She was very bossy, being four-and-a-half years older than me and six-and-a-half older than Sandy. We all had brown hair and brown eyes. We’re alike in that respect. But beyond that we were diferent. Willanna was the bossy one, in a good way, usually. And then my younger sister, Sandy was very compliant. She did what she was told. If Willanna told her to do X, she did X. If mother told her, she never caused waves. Sandy just did what she should and had a phenomenal interest in any animal of any sort. She loved animals. She still does. By the way, in that connection, my younger sister had a twin brother who died in childbirth. His name was Andrew. We never got to know him. And I sometimes wonder if that had an efect on my younger sister’s attitude. I was in between, and I was the only boy in the family. I should’ve been a better brother to my younger sister. There were a few times I would try to help her, but mostly I was making fun of her. She wanted to learn how to play softball, for example, so Junior and I tried our best to teach her softball. I don’t think I contributed much to her, though I was protective if somebody else tried to oppress her outside the family. To repeat, Willanna was far and away the boss among the three of us. For example, when I was ive and Sandy was three, Willanna decided that it was time for us to have a school. Now, Willanna would have been close to ten years old. We had a screened porch that had a tiny little space heater in it. We called it the back porch. It was at the side of the house with screened windows. It remained cold in the winter, but it had a nice breeze in the summer. So she set up two chairs for me and Sandy. We were the students. And then she stood in front of us as the teacher. She didn’t sit there; no, no. She stood there. She had something like a blackboard that she would draw on to teach us the alphabet, and I actually remember several things about that. One, I remember learning the alphabet. This was

6 • one our homemade equivalent of kindergarten, because Mississippi didn’t have kindergarten in those days. Willanna was our kindergarten. So I learned the ABCs from Willanna. I learned to count from Willanna. I learned to put letters together to form a word. Willanna became ecstatic when, one day, she was trying to get us to spell a word, so I said, “M-A-N, man.” Somehow I igured that one out. I thought she was just going to explode with enthusiasm because I was able to spell my irst word. That was the irst word I ever spelled. So she was great. She was bossy and made us do that. The related thing I remember about Willanna was how enthusiastic she was about school. She just brainwashed us. “You are going to love school. You are going to learn so much in school”—because she herself already was now in the ifth grade. “You’re going to learn so much; you’re going to love school.” So I was brainwashed into thinking that was going to be true. So the very irst day of school, when I inally did go to school, Willanna escorted me to my class, put me in there and left. So I’m sitting there, taking in the scene, my irst day, excited, as Willanna said, about how much I was going to learn. There was a teacher up there with three or four moms helping. So the adults did not know what to do with us quite yet. They were all getting themselves organized. So one of them came up with an idea, let’s just give the kids colors—crayons—we called them colors—give them colors and manila paper. And we’ll tell them to draw pictures until we can igure out what to do. So I was watching all of this from the back row. Along comes one of the moms down the aisle, handing out colors and crayons. I could see what was going on. So they get to me and she hands it to me. I still remember exactly what I said to her. I said, “When are we going to start learning something?” And she laughed so hard, just like you’re laughing. She laughed so hard—and it was all on account of my sister. Willanna had brainwashed me into thinking you’re going to learn so much when you get into school, and I could not wait to start learning something. But I had to wait on that while we drew pictures. LM: That was a very wonderful way your sister encouraged you and your sister to love school and learning. WA: It’s true. LM: It’s unique, because it carried through you. WA: It did. And my mom and dad were good on that, too. They had a program, which was you got a dime for every A you made on the report card, not on a homework assignment. If at the end of the semester you got an A on something, you got a dime. That was worth something in those days. It was worth a couple of dollars today, I guess. So you could get as much—if you made seven or eight, you might get close to a dollar. So I worked very hard. That was another program we had. My mom and dad said this a lot: “You’ve got to get the best education you can because that’s the only way to get anywhere in life.” I’m almost exactly quoting them. They must have said that several hundred times when we were growing up to encourage us to get the best education we could. So we had the dime program. For every A, you got a dime. LM: And your mother had gone to college, to nursing school, and that was unusual. Not a lot of women went to college. Do you know how she picked that program? WA: You know, I don’t know. It’s a good question. When she was growing up, nursing was open to women. Teaching was open to women. Not many things were open to women, and somehow she decided she needed to be able to support herself, and applied for that. That was before World War II. After the war and after our dad took ill, she reactivated her registered nurse license and went back to work to support the family.

one • 7 LM: Once you started irst grade, after that getting organized early phase, you already knew the alphabet and how to spell some words. What do you remember about irst grade? Your teacher, for example. WA: I loved the teachers. I think every teacher I had was great. I always loved the teachers. Most of them were women. In fact, I only had one male teacher the entire time until I got to junior high, and then I had about half and half from that point on. All of the elementary school teachers were women, and I just thought they were great. Now, looking back on it, they all seemed like they were middle-aged, but they really weren’t. They were twenty-ive, twenty-seven years old. They were very young, but for a kid they seemed much older. And they were so enthusiastic and wanted to teach us. It was the post-war era, the country was expanding, and the teachers really were dedicated. Just yesterday, a friend of mine who I met when I was ive years old in 1950, Junior was his name—he sent around something that he had found in his archives that sh owed Miss Allen’s ifth grade class. I can pull it down for you. It was in the newspaper and it showed a group of us, and I was in the picture. And Miss Allen took us on a ield trip to Natchez. I think most of the women were single, though just another reason that again, that they were all so young. I’m pretty sure they were all single or newly married at the time that they were teaching us. I loved school. We had a decent elementary school, a brand-new one that was opened near our house. Grades one through six. Large playground with baseball ields and softbal l ields and lots of playground area. Of course, it remained an all-white school. That was in the segregation era by law; it was segregated until much later. That was in 1951 when I started irst grade an d the Supreme Court decision came down in ’54 and it really wasn’t until sometime in the late sixties that the school system in Mississippi switched over to bi-racial. LM: Was there as a school for African-American children nearby that you remember? WA: No, there was not. I’ll tell you a story about that. I was oblivious at that age to race being an issue. It did not occur to me that—I didn’t ask the question, “Well, where do the Black kids go to school?” I didn’t ask the question, “How come we don’t have Black kids in our school?” I was just your typical rural kid growing up and studying hard and couldn’t wait to get out and go play and climb trees when I got out of school. One day when I was about twelve, so this would have been about the ifth or sixth grade. I stayed home sick and my dad wanted me to go help him do a chore out in the country, so I did. Even though I was sick, I got in the car with him and we went out, and we drove by this place. It was called the Red Hills, a quarry. Down in the quarry, as we passed, you could see this old shack that I had always assumed was just an abandoned equipment shed of some sort. This was a school day, and as we drove by it, it was a misty cold rainy day, they had a wood stove inside and the blue smoke coming out of the tin pipe on a tin roof, melding into the rain. Down in the red mud out front, there were some kids playing, like it was recess, and they were all African-American. That image made an impact on me, because it was such a run-down shack, and I realized it was a school. We had been hearing about “separate but equal.” Certainly the separate part was true, but the equal part deinitely wasn’t true. So that was a memory that lives with me even today. I want to jump forward a few years. By the time I was in high school, the Jackson system had built one very nice Black school because they were trying to show that “separate but equal” worked. All those years they hadn’t had anything that came close to equal, but they inally built one that was the same physical plant as the white high school. I think the name of that sch ool was Lanier. So the oicials would always trot out, when visitors came, they would take them over to see Lanier because Lanier was the one that was equal.

8 • one Bill and Willanna in a wagon in front of 2325 Terry Road, 1948 and in Little League uniform, 1958.

But really, that was the exception. The systems were deinitely not equal in any way. That was a propaganda item. So to circle way back to your initial question, I didn’t think about race as an issue growing up. You just accepted it the way it is. You grow up in a system and you have a few neighbors and friends and you live your life and you come home and your mom and dad manage to feed you and put clothes on you. You’re not thinking in terms of broad political issues, and what’s wrong with the world and how you’re going to change it. You’re just a kid and learning your way. Anyway, that one day when I was twelve in the rain, going out to help my dad in the country, wasy m irst memory that something wasn’t quite fair in the system. LM: I know you went on to be a math major in college. Did you have favorite subjects as early as elementary school? Math, history? WA: It’s funny; that’s a good question, and the answer is yes, I was always good in math and science. My dad had a natural knack for the mechanical arts. He could rig things up with pulleys and levers and knew how motors worked and all of that rubbed of on me, and I inherited th at from him. Even today, I’m very good with the mechanical arts, and I enjoy that as he did. So physics, science, all types of mathematics. I usually made the best grades there. The subjects that I did not like as a kid, oddly enough, despite all the reading I do today, I did not read much then. I don’t know why; but I have some theories—one is I was a slow reader. That was for sure. I was a slow reader. But I would absorb it. So I was good at retention, but it would take me twice as long to read a book as it would you, probably. So I didn’t read. I tried to avoid getting into circumstances where I had to read long passages. Another thing, we didn’t have bright lights like we have now. I didn’t even have a bedside table. I had a bed, of course, but I did not have a bright light that I could turn on at night and read, and so it was the lighting, it was something as simple as you didn’t have a good place to sit and read or lie down and read a book. Another example. I love milk. I drink a lot of it. But when we were growing up, we had an old refrigerator that was so decrepit, it didn’t keep the milk or anything cold, just slightly cool. And milk tastes good when it’s cold, but not when it’s slightly cool. So I didn’t acquire a taste for milk until years later, whenever we got a good refrigerator that kept it cold.

one • 9 To contrast that today, I’d say since my late twenties, I have just read and read and read, mostly history. So that leads to another subject. Did I like history? No. I did not as a kid. I didn’t care much for history. I didn’t care much for English or literature. Those subjects, I remember in high school, I couldn’t stand reading Macbeth, and they made us read it. So I just read the irst, third and ifth acts. There are ive acts. So I said to myself, I can wing the second and fourth. So I just read one, three and ive. I think I made a C on the test, but at least I passed it. I couldn’t stand literature. I read Tom Sawyer, Huckleberry Finn, some of the classics I guess I did read. I regret all that. I wish I’d been better at it, but that’s the way I was. Even in college, I didn’t read a whole lot. But mainly I was working with formulas, equations, mathematical concepts. So those I was very good at, and being a slow reader probably helped there, because you go through each of those steps one at a time and absorb what’s happening in say, calculus, step by step. But reading—that came in my adult years, and I got very interested in history thirty-ive years ago, and I’ve been reading a lot of it since. LM: Well, maybe that’s a good place for us to stop today, and then we can start next time more about high school and some other aspects of your life as a child, and then we can get you to Mississippi State. WA: Good. That’s a good time.

10 • one two

2325 Terry Road Meeting Junior Feild, 1950 Holding up Nell’s General Store Planting corn, the vegetable garden and fruit trees Sunday dinners and holiday meals The Space Program and the Chick Experiment, 1962 Paper route for The State Times and ice-cream truck operator The survey crew

LM: Today’s November 18th, 2015, and I’m with Judge Alsup in chambers again, for interview two of the judge’s oral history. Judge, I’d like to start by asking you to talk some about the family home and garden in the area you grew up in outside of Jackson, Mississippi. WA: So Jackson, in those days, and really even today, but in those days there were two main roads that went through Jackson. One was Highway 51, that went from New Orleans to Chicago, and the other was Highway 80, which went way out west and back east. So those two crossed in an intersection that was maybe four miles from my home, and the city was built around those two thoroughfares. We were on the south side of town right on Highway 51 but it was known as Terry Road. Terry Road was called Terry Road because the next community of any size was south of Jackson,and it was called Terry, ifteen miles south of our house. So that was Terry Road, but it was really federal Highway 51 that went all the way to Chicago and to New Orleans. Now, this is just after World War II. I was born in June 1945. We moved into that house in late 1947 or ’48. My dad, as a veteran, was able to get lumber, then in short supply, and built or had built one of the very irst houses post-war in Jackson. The land was right against Highway 51. It had four huge oak trees along the front by the road, probably I’m going to say three acres of land, maybe, two and a half, somewhere in there, and part of that land was a large ieldthat was south of our house, also along the highway, where we grew corn. Behind the house to the west was a large backyard with orchard, fruit trees and a garden. In the early years, we had chickens and turkeys with a henhouse. So it was a pretty big backyard. That eventually got all fenced in. The front yard had just three things. It was those trees; two of those trees were by the front yard and two of them were by the cornield. The front had grass plus a gravel and dirt driveway, not a concrete one. So that was the front yard. We had three yards: the front, the back and then this big side yard that was also the cornield. The house itself started out pretty small. It was two bedrooms, one bathroom, a combination living room and dining room separated slightly with a bookcase, a kitchen, a back porch screened in, then a garage with no door, meaning open to the front. On the backside of that was something that people don’t have anymore, which was called a wash house. In the wash house was a washing machine that had one of

two • 11 2325 Terry Road, Jackson, 1963

those roller things that you would roll your wet laundry through that had been washed, and would crank through with the hand crank. That would get tossed into a big bin and then you’d take that out to the clothesline, which was in the part of the backyard that had the plum trees, and you’d put them on the line. We never did have a dryer. My mom didn’t want a dryer. She liked the smell of the clothes dried on the line in the sun. As time went on and there became three kids, the two sisters shared a new third bedroom, and they also got their own bathroom, but that was built and added on later by my dad at the other end of the house, opposite of the porch and the garage. So that was it. Even then it was a pretty simple house. There was no air conditioning. There was one central furnace, but there was no central heat. In other words, in the middle part of the house between the two original bedrooms there was a loor furnace, and in the cold of the winter that thing would heat up, and that part of the house would be warm, but the rest of the house remained cold. The kitchen had the stove, so it got it warmer, but the rest of the house could be cold, so we would gather around in the winters and read the newspapers, especially Sunday morning we’d read the comics right near the furnace. As I said, we did not have central air or heat. We had an attic fan. It was a fan right above the furnace that would draw in air through the windows. In the summertime, you would open your windows, lip on the fan, and it would pull air in through the windows into the house and out through the attic. Now, at nighttime that thing worked great, because about ten o’clock it would start to get cool outside, and the fan would draw cool air in, and the cool air would then stay in the house until maybe noon the next day. Usually from about one p.m. until about nine p.m., it was pretty hot and miserable in the house in the summer. You got used to it. We just wore the bare minimum of clothes and got used to it. Now, today people in the South all have air conditioning. No one could possibly survive in that today because they’re so used to the modern conveniences, but when I was growing up, almost nobody had air conditioning. It was very rare. That was the layout of the house, a simple frame house. From about 1948 all the way until I went to

12 • two Mother after a rare snow, 1950

college in ’67, that’s where we lived. We never moved. I should say one last thing. We almost never locked the doors. If we went all the way to Texas to visit relatives, we would lock it. That’s the only time, and we never had anyone break in or steal anything. My dad even left his car key in the ignition for convenience. Imagine that! LM: Your father had training as a surveyor and he picked this parcel of land that was quite large and had a lot of diferent attributes. Do you know how he and your mother chose that land? WA: He had something to do with even the layout of Colonial Drive, which curved around our property on the south side by the cornield. My dad though did like the land. H e identiied with the land, and he very much identiied with this parcel for some reason. As time we nt on, you could tell that. He liked to sit out there on the porch, a little simple porch, and watch the trees and watch the traic go by. LM: In terms of the neighbors, I’ve heard that you became friends with Junior Feild at the age of ive, who moved in across Colonial Drive. The parcels themselves sound fairly large, so what was it like for the people in the surrounding area? How close were you? WA: Well, at irst there were no neighbors, other than one just north of us. There was a much larger— I’m going to say ifteen-acre—parcel immediately north of us. It would be on our left as you looked out the front door. That was a large, old house that was probably built in the twenties and had a barn in its back. So that land had actually been farmed, and it was all fenced in, and it was nice land. That was our only neighbor. Where Junior eventually came to live had been a jungle. Here’s the story on how we met. When I was ive, so this is 1950, my younger sister and I would go out into the cornield and we would try to get lost in the cornield and ind our way out. We got pretty good at inding our way, even though we couldn’t see over the corn, we were way down below, and we enjoyed doing that for some strange reason. One day we pushed all the way through to the end of the other side of the cornield and came out at the dirt road that eventually became Colonial Drive, and we could see that they were building a house over there. Now, we had never seen anyone build a house before. We could see

two • 13 Bill and Junior as Cub Scouts, 1953

that the jungle had been cleared out, a lot of cane and hanging vines and all that had been cleared away. There were some trees left, but there was a house being built, so we said, “Something’s going on here.” We continued to monitor this. As time went on, every now and then we’d push through the cornield and look out and see what was going on over there. Then the big day came. Sandy and I threaded our way to the edge of the ield to check out the progress. The house was inished. A car was out front with people moving in, moving stuf into the house, so we could put two and two together that somebody was moving in over there. And there stood this guy my age, standing in the grass near their car. He was looking over at us. [laughter] In retrospect, I think to him, my sister and I, who was three and I was ive, we must have looked like natives coming out of the jungle to spy on him. Anyway, he was too shy to do anything. He just continued pretending like he didn’t see us, but we knew he saw us. Eventually—and I remember this moment—I remember thinking, what’s the right thing to do here? Should I run back and tell Mom and Dad somebody’s moving in? But we didn’t do that. What we did, Sandy and I, I took her hand and we walked across the dirt road—and I’m sure we didn’t introduce ourselves properly. I just said, “What are you doing here?” or “What is going on here?” “Well,” he replied, “we’re moving in.” That served as our introduction. We became very good friends. His name was Hubert Spottswood Feild, Junior. Junior for short. We became very close friends all the way through elementary school, junior high, high school, college. Even now. We did all that together. We were both ive years old at the time, 1950, and that’s how we met. Over time, others moved in on that street and eventually they paved it, and built our elementary school very close by. We could walk to school in ive minutes. Junior was even closer to the school than I was. Across Terry Road from us, there was a country grocery called Nell’s Grocery. It was just your classic, rural general store, with one employee, Nell, who always wore a gingham dress. She was in there—that leads to the story of when Junior and I tried to hold up Nell’s Grocery. Do you want me to tell you that story? LM: Yes! WA: All right. I’m going to say we were seven or eight, something like that. We got our irst cap guns and

14 • two we learned that you could make it sound louder by putting rubber bands on the little hammer and putting extra caps in there and it would explode twice as loud. So we decided it was time to rob the general store, me and Junior. LM: And you had a goal in terms of what you would take in the robbery? WA: No. We weren’t really going to take anything. We were just going to scare them. This was really his idea, but he was always daring me to do something. So we both crossed the road and then snuck up along the side wall of the store. I leapt around the corner into the front open door of the store. There was Nell with her gingham dress. Her back was turned to me and she wa s talking to a customer. I shot of my cap gun. It was so loud. And I said in an authoritative voice, “This is a stick-up. Raise your hands.” I swear she leapt of the ground. You could see it. She was a very largelady. She leapt of the ground, probably six inches, and while she was in the air, she whirled around with this combination of fear and meanness, and she looked at me as she was coming down. She looked at me with such ierceness that it scared me, and I just ran out. Well, meanwhile Junior hadn’t come in at all. He didn’t show up at all. He had gotten me in there to do all the troublemaking and bailed out to a big magnolia tree not far away. I ran over to the big magnolia tree, and there he was, just wallowing on the ground, laughing like crazy. Anyway, Nell, of course, told our moms and dads and so the cap guns were coniscate d, never to be seen again. We were about seven or eight years old. LM: You have a lot of adventures that you’ve shared over the years, that being one of the early ones. WA: I’ll tell you the chicken story. This is a few years after the holdup of Nell’s Grocery. In 1957, Junior and I were twelve, and the irst Sputnik went up. And Sputnik, the Russian satellite, just electriied the world, but it really shocked America that suddenly the Russians were in space and we hadn’t even gotten there, because we kept trying to get a satellite up there, but all of our rockets would blow up on the launch pads. There was a senator back then who said something like, “Our space program is on solid ground.” [laughter] And so it was true. We couldn’t get one of thelaunch pad. Well the Russians got a six-pound satellite up there called Sputnik. The space program became a huge deal in that era, and now fast-forward to the early sixties, Junior and I decided that we would do something for the space program. We had discovered that if you disconnected the space heater on the back porch and just turned on the natural gas, we could ill up these laundry bags, close up the hole at the top and ill it up with natural gas that was lighter than air. It would actually pick up quite a lot ofstuf. We decided we would launch some creatures. The irst creature was a cricket that was inside a vial that was used for pills, a little orange vial. So the irst one went up. By this point the cornield was grass, not corn. We had suburbanized a little bit. The cornield was just a big, grassy ield where we used it to play a lot of football. You would get in the middle of the grassy ield, wait for the wind to stop so the balloonwouldn’t blow into the trees, and then you would let it go and it would go very high into the air. Junior had a war surplus telescope on a tripod. We’d look at it through this tracking telescope, and you could see our balloon miles away, way up there, probably seven or eight thousand feet in the air and ten miles away, glistening in the sun. So up the cricket went with a note taped to it that said, “This is a scientiic exper iment. If you ind this, please call the fol - lowing number and report: 33773.” That was our home phone number, 33773. Well, hours went by and we didn’t hear anything, but we didn’t know whether or when we would hear anything for sure. The phone rang and we happened to be in the kitchen. We only had one phone; it was in the kitchen. The phone rang and so I answered it. There was a grown man on the other end and he was almost hysterical, reporting in. He said, “I was out mowing the lawn. I was out there and this thing came lying down the street, and I thought it was a UFO. I chased after it, and it crashed and then I found your note and it said call and say whether the cricket was still alive.” I said, “Well, was it still alive?” He said, “Yes, yes, it was still alive. What do you want me to do with it?”, as if he were testifying to NASA.

two • 15 Willanna and Bill in cornield, 1948

And I said, “Well, put it in the part of the yard you have already mowed.” So that was a success. A cricket could survive high altitude. LM: Nothing dangerous resulted from this experiment using the natural gas. WA: Well, it could have, but it didn’t. Thank God the man who called in wasn’t smoking. LM: In the early days, you had the cornield and then that changed and you had the grassy ield. WA: Right. LM: Did you have hired help that came to help maintain the yard or maintain crops? WA: No, never maintain the yard, but back when we did have the cornield, there was a guy named Mur- ray. I don’t know how I can possibly remember even his irst name, but I do. He came every year, I’m going to say for the irst ive years of my life, six years maybe, and he had a plow. In those days it was not unusual for somebody to ride an old-fashioned horse-drawn wagon down Terry Road, this main highway, with a horse. That’s the way he got to our property, on a wagon with a horse. He’d show up, disconnect the wagon and hook up his plow, and he and his horse would plow these furrows all the way across that large side yard, and then we would have furrowed ground to plant the corn in. So that guy we deinitely hired, Murray, and he did a great job. I’m going to say it took half a day at most for him to do that. But the family, we were the ones who got out there and actually planted the corn in the high part of the furrows. About every twelve inches or so you would plant some corn seed, and then we would go out and check to see when they would come up and monitor it. I was always fascinated as a kid by the fact that a huge corn stalk could grow out of a tiny little seed. It still amazes me that that can happen. Now that I understand DNA a little better, I understand what really is going on there. But to me, it was always a great mystery. My dad and I—I did a lot of it myself—mowed all the grass. As I got older, I eventually learned how to take apart and to ix the mower myself. Outside we had no help other than the guy who did the furrows, Murray. For inside the house, for about two years after my younger sister was born in ’47, I’m going to say from about ’47, ’48, ’49, a woman named Ivory—again, I don’t remember her last name, but Ivory came and helped my mother with household things, but mainly as taking care of the kids, which would be me and my younger sister. That only lasted, I’m going to say, two years. She was friends with my mom and she came to visit afterwards for a few years, but I’m going to say by 1953 or four she had died. I think I mentioned to you that we went to her funeral. My mom and dad felt strongly that we should go to that funeral, so all of us, dressed in our Sunday best clothes, went out to that old country church maybe twenty miles out of town and attended her funeral. She was our only “help” for a very brief period in the late forties. After that there was no one. We then took care of everything ourselves. LM: You picked the fruit from the fruit trees. WA: Yes, we did everything. Well, let me also say that when we suburbanized cornield into a grass yard, my dad also thought we should get rid of the chickens and the turkeys in the back, so the chicken house got torn down. My mom loved the vegetable garden, so that continued on for many years. The vegetable garden stayed in that back part of the backyard for many years thereafter, but we did all of that ourselves. Stuf would grow like crazy in the humid, deep South. Tomatoes and okra. You could go out in one day and see a very noticeable diference in how much things had grown in just one day. The things I remember growing fastest were tomato vines and okra, but there were many other things that we’d plant as well. In addition, we had this huge pecan tree. It produced way more than we could ever eat, so a lot of pecans just went to waste. The birds got them all, I guess. That pecan tree, which was also near the back yard fence, produced bushels of pecans. You could actually do pretty well with your gardens, and when we were growing corn, my dad went and got what’s called a deep freezer, and we would put the corn in the deep freezer and it would last us through part of the winter. We would eat it while it was fresh, but we’d put some away

Willanna, toddler portrait and yearbook portrait Dad in Gulfport, 1958

This is the earliest photograph that I remember taking. We were on a working vacation staying in a bungalow at the White House Hotel in Gulfport. Dad was on his way to meet with the power company. He had his camera. I asked him if I could take his picture. I was thirteen. Mother at Andy's tree, 1966

Home from Mississippi State for a visit, I borrowed Sandy's camera to take this image of Mother, posed by Andy's Tree, a mimosa named for Sandy's twin brother who lived only four days. for the winter, and so we did pretty well for ourselves. Of course, we still went to the grocery store. We still bought some things, but I would say a reasonable percentage of our food we grew ourselves. LM: You had fresh eggs while you had the chickens. WA: Absolutely we had fresh eggs. LM: What was a favorite Sunday dinner that your mother would make? WA: Well, that was fried chicken, mashed potatoes made from real potatoes. LM: Not instant. WA: Not instant. And tomatoes, cornbread, usually a green thing like either okra or lima beans or green beans, which was another thing we grew out there. I mentioned corn bread. Iced tea. And I guess that’s it. Sometimes a dessert. She would make this for what we called Sunday dinner. Now, Sunday dinner was not dinner like we know it in the evening. It was 1:00 pm, right after church on Sundays. Everyone called it dinner, and then what you had in the evening was called supper. It took me a long time when I moved out here to get straight with terminology. But dinner was just that one day a week, Sunday dinner, and then that was the big meal, and the other evening meals were supper. The largest meal of the week was always 1:00 pm, after church on Sunday. Not just us, everyone. LM: Was your iced tea sweet tea? WA: At irst I did put in sugar, but by the time I was in college, I had given up on sugar and I don’t like sugar in my tea anymore. In some parts of the South, you’ve got to tell them you don’t want it sweetened; otherwise you’ll get it sweetened. Even today. LM: The Sunday dinner after church sounds delicious. And then were there special holiday meals that your mother made that were a family tradition? WA: Thanksgiving was always a turkey and she liked to make a traditional Thanksgiving dinner, and that would be turkey and dressing, often sweet potato instead of mashed potatoes. Always a big pecan pie for Thanksgiving. She would always have that. We’d have pecan pies at other times, too, but that was always one of her things at Thanksgiving. It seemed like at Christmas time we would have something very similar to what we had at Thanksgiving. One thing we didn’t eat a lot of was ish, which is kind of funny. It was really a rare thing if we had ish. Usually it was either chicken, turkey, steak or hamburgers. Those were four main items that we had. I love Mexican food now. I had none of that growing up. In fact, I will say this. We almost never went out to eat. I think the number of times I went out to eat up to age eighteen was ive or less. We just always had all of our meals at home and we didn’t even think—there weren’t that many places to go out to eat. One time, my dad took my younger sister and I to a place called Crechel’s on Highway 80. It’s still there, by the way. I was just there last April. And it had this kind of outdoor—I think my dad wanted to get some beer. Maybe they had some illegal way to serve beer. Anyway, he took us, and I think he had a beer. I remember then I got some seafood. That was one of the irst times I’d ever had any seafood, when I was about six or seven. But my main point is, not only our family, but every family we knew—it was a rare event to go out to dinner. It had to be something like a graduation from high school or junior high school before you would do such a thing. LM: That was probably true everywhere. WA: I think that was—today it’s much more common. My kids and your kids have been raised in such a way that going out to dinner once or twice a week is very common. It was not common then. LM: Did you have jobs like paper route and taking care of other people’s lawns?

20 • two Mother and Sandy, 1963

WA: I’ll tell you the jobs I had as a kid. The irst one was a paper route. I’m going to say that I was fourteen, ifteen or sixteen, somewhere in there. It was for a paper called the State Times. It was supposed to be a competitor to the Clarion Ledger, which was the big statewide paper. Now, I had wanted to get a job as a newspaper carrier for the Clarion Ledger, which was the biggest paper, and you’d make more money at it because almost everyone took that one, but those jobs were already taken. The State Times came out. They wanted some newsboys so I signed up. I’m going to say I had seventy customers over a route that would take me maybe an hour to ride on my bicycle. The way the drill worked is the truck would come by, throw the bundle of papers with the exact number of papers for your route. You’d be hanging out there waiting, and you and two or three other guys would get your bundle and we’d each have our own route, unsnap the little metal band that kept the bundle together—and then you’d roll each one of them and put a rubber band around it. The reason you did that was so that it would be easier to throw. You’d put them into a canvas bag and hang that onto your bike, then start riding your route. I got very good at being able to toss a newspaper, and it would lip end over end across the yard. I got to the point where I could make it kind of walk up the steps and land on the porch. Not every time, but maybe 50 percent of the time. I was pretty good at that, and so I could get my route done in about an hour. There were only two problems. Bad weather was one. That was occasional. The other was mean dogs. A lot of people had mean dogs back then. There were two or three of those dogs that I’d categorize as mean dogs. You weren’t even on their property, yet they wanted to come out and chase you as you rode your bike by. So that was job number one. I had that job for about a year. And I thought I made some good money on that, by the way. I bought my irstham radio equipment with the money from the paper route. I thought it was a good-paying proposition. The next job that I had was one summer I got a job driving a motorized ice-cream cart. I had just gotten my driver’s license. I must h ave been ifteen or sixteen, and it was this cubicle thing called the “Ice-cream Circus.” It was a gloriied law n mower thing. Seventeen horsepower. It would maybe go ten miles an hour, top speed, but usually you’d cruise a long at maybe four or ive miles an hour, going through the neighborhoods selling ice-cream, and on both sides of the cart you had these containers that were full of dry ice and popsicles and ice-cream sandwiches and so forth, and you would just go through and the kids would hear you coming down the street, just like today, and go crazy, and come running out. Almost everything cost a dime. I remember that. There were a lot of things that were a dime. I did pretty good there. The next job that I had was right after high school, working on the survey crew, that really was a huge step up. That was really my irst adult job. Working on the survey crew. We

two • 21 My irst adult job was as the gopher and bush-cutter on a cross-country survery crew in 1963. Here I am with "The Preacher" and Jerry, the foreman.

were out in the ield. I was chopping trees all summer long before I went of to Mississippi State. So those are the jobs that I had before I went to college. LM: That was some hard physical labor, the survey crew. WA: Very hard, yes. LM: And we talked about the heat in Mississippi, and humidity. WA: It was hard. It was hot. And because of the heat down there—it was very tropical—say in a given week you would have one, maybe two afternoon storms that could just be torrential , for about forty-ive minutes. You’re out in the ield, and maybe you’re huddled under a tree. The only time it was cool was right after one of those storms. It was pleasant for a while. Usually it was as hot as could be. I got very tan, very dark over the course of that summer from being out in the sun all day. LM: Was there physical danger as well? You were in thick brush. WA: There were two snakes that could have killed me. One, we were looking for what’s called a benchmark. The notes on the map showed that some prior surveyor had left a stake with a pin in it near this particular fence corner. But when we got there, that fence corner was completely overgrown with honeysuckle. So the boss—we were ive of us on the crew—said, “Bill, get out there, and see if you can ind that benchmark, because that’s where we’ve got to start our survey from.” I got out there and I started pulling back the honeysuckle, looking down on the ground, trying to ind some thing that might be a benchmark, but it’s completely overgrown. Well, I remember seeing this br ight pink oval, what I took to be lower, and it was in the deep darkness inside there, and I said, of course that ’s not it. I wasn’t looking for any lower. I was looking for the benchmark. So I continued on. The pink oval was perhaps maybe two and a half feet from my face, something like that. All of a sudden, one of the other crew members just body-blocked me and knocked me maybe four or ive feet away, while the foreman of the crew came in with what’s called a range pole. It’s one of those red and white poles surveyors use. And he threw that thing in there, a spear,

22 • two Mother in front yard, 1965 and he pulls out this gigantic rattlesnake that was six feet long, thicker than my arm is. What I had been seeing that was a pink oval was actually his wide-open mouth, coiled to attack me. LM: The other men were close enough to you that they saw that. WA: They were—I was the closest of all, but I was naïve and inexperienced and wasn’t thinking in terms of a snake. But these guys realized that that’s an ideal place for a snake. They’d heard from ten feet away what I didn’t hear from two feet away. They saved my life on that one, because if that thing had bit me in the face, there would have been no way to save me. That was story number one. Story number two was a diferent time that summer. We were way out in the ield and ran out of drinking water. So being the go - pher, they said, you go back and bring back a two and a half gallon container with water. Because in the truck we had a ive-gallon container, and so my job was to take the one we had in the ield, which was two and a half gallons, the empty one, take it all the way back, three miles to the truck, ill it up and bring it back with me. Two and a half gallons of water, you know, that weighs something, maybe 20-plus pounds. LM: Six miles. Three miles back. WA: Yes, it was a long way. It took me over an hour each way just in travel time. Maybe it was two and a half miles, but it was a long way. It took about an hour each way. On the way back—and by the way, it’s not like these are marked trails like the national forests with a sign saying “Truck.” It’s not like that. I had to just do this on my own with no help, trying to igure out where the truck was. But I’ve always been pretty good with directions, so that turned out not to be a problem. I made it to the truck. About halfway there was a creek, and this creek went down about, say, seven feet deep from the bank, and maybe twelve feet across, something like that. You would normally have to go down into the bottom of it and then back up the side, but it was all muddy and there was this oozing, quicksand-like dark water, not running very fast, running extremely slowly, so it’s almost like a swamp. So you didn’t want to go through that. I found a place where there was a big log that went from the bottom of one side up to the top of the other. So all you had to do was go down one side to the bottom and then you could walk across, if you kept your bal-

two • 23 ance. In those days I had great balance. So that’s what I did. I got back to the truck, I got the two and a half gallon thing, I returned, I got back to the same creek and I’m carrying a lot more water now. I start down the log, and I’m going downhill now. I get halfway down the log and then I see at the end of the log, which was only about six feet from me now—I see a water moccasin snake curled up asleep in a sunny spot on the log. This was a water moccasin, not a rattler. Those are the two main snakes in Mississippi, rattlers and water moccasins. And I said, “My God, what am I goingto do?” I thought, well, I can just turn around. And I said, no, I really am kind of stuck. It was too hard to turn around because I had all that weight, and it was uphill to go back. And I can’t go forward because I’ll step on the snake. I called out to the snake, hoping that it would run away when it saw me, but it was sleeping in a sunny patch, and for some reason I couldn’t wake it up that way. Then I said, well, maybe it can’t hear very well; I don’t know. Finally I came up with a solution. What I did was I started slowly—not jumping, but sinking my weight up and down on the log in sync, so to speak. I didn’t want to do it too much, because I’d throw myself of. I lexed that log enough to wake up the snake, and then it looked up and saw me, jumped into the creek, and slithered of. That left the way clear. So I went onacross and delivered the water to the crew. I was pretty proud of myself. That time I was able to save myself from the snake, whereas the irst time, the crew saved me. I remember those vividly, those were both close calls. LM: Close encounters. We’ll end on that note for today.

24 • two three Childhood pals Brown v. Board of Education Counter protest against Escobedo v. Illinois The John Birch Society's “Impeach Earl Warren” Billboard, February 1963 Higgen Hogs Club; high school election and protest Backdrop of the Civil Rights Movement in Jackson, Mississippi Clarion Ledger, letter to the editor, June 6, 1963 – "We Are For the Civil Rights for Negroes" Cusp of social change from high school to college Martin Luther King speech in Chicago, 1966 James Meredith, March 1966 The Murder of Medgar Evers Judge Thelton Henderson and John Doar in Jackson, Mississippi Paying respects to Charles Evers with Danny Cupit

LM: Today is December 8th, 2015, and I’m with Judge Alsup for interview three in the judge’s chambers, and we’re still talking about childhood into teenage years, and we talked about a few things before we started recording. I’ll let you start with some of your early friend group and some of the activities that came out of that friend group. WA: Ron Goodbread was one of my earlier friends, and also Junior Feild. I might have mentioned Junior before. Let me focus on Ron for a minute and then come back to Junior. I met Ron in the ifth grade. He came from a very impoverished family. His mother was an immigrant from Poland. She could barely read. Almost all of her teeth were gone. She was married to a guy who was a carpenter and who was extremely opinionated and talked up a storm. I think he must have been ired from most of hisjobs because he was always yakking about politics. Ron was a product of that marriage, and they moved around a lot in the South looking for work. So we met in the ifth grade and they actually Ron Goodbread, high school managed to stay in Jackson for about four years and so we became close friends then. Ron was a tall guy. His hero was Abe Lincoln. Even in junior high, he had read tons on Abe Lincoln, read all of Carl Sandberg’s six volumes on Abraham Lincoln. Ron, like his dad, liked to talk. Ron went on later to be the state oratorical champion, and he was also the one who later on got me into the debating society. In the period leading up to the story I’m about to tell, which was in the twelfth grade, Ron by this point in high school had become the premier historian of our school. When anyone wanted to know how the Civil War really was fought and what happened, we would go to Ron because he would know the true history as opposed to the Mississippi propaganda, and he was so articulate. He was funny. He was a really good writer, too. His aunt, his dad’s sister, was a secretary for the International Operating Engineers La- bor Union down on Highway 80, and she taught him to type on of course an old manual typewriter. Ron could type exceedingly well and write exceedingly well, even in high school. He was way ahead of me in all those departments, but we hung out a lot together. He was dismissive of the ruling system. He had a strong feeling in favor of the federal government because of his love for Abraham Lincoln. He knew what had happened in the Civil War. He knew which side had won or lost. And his sympathies were all with the federal government. Some of that rubbed of on me. Part of that was also the respect for the [United States] Supreme Court. In those days, the Supreme Court was under enormous criticism in the South and, to some extent, other parts of the country over the Brown v. Board decision, and others. The Public Prayer decision in 1962 was another example where both Black and white in the South were upset over that decision because of it being anti-prayer. And there were all those decisions like Miranda that came in ’65, but that was a little bit later. The decisions that were building up to that, like Escobedo and others that built up to the idea of protecting criminals and protecting the rights of criminals, those accused of criminal activity. So the Warren Court was under attack, and that now leads to the billboard story. May I tell that? LM: Please. WA: In February of 1963, I was seventeen and a senior, halfway through my senior year in high school. The John Birch Society put up these billboards all over the United States. They had one in Jackson out on Highway 80 as you came into town. It was a big billboard, up on a small rise, well-lit at night. It said “Impeach Earl Warren” in big letters. That was on the right-hand side. On the left-hand side was a picture of the American lag. At the top on a smaller banner it said, “Save Our Republic.” It was just three things: the lag, Save Our Republic, and then the big letters, Impeach Earl Warren, who was the Chief Justice of the United States. Ron was very ofended by this because it was a direct insult to a federal institution and it was all moti- vated by disrespect for the federal government. Now, disrespect for the federal government was popular in those days in Mississippi and in the South. Ron felt very strongly that this was bad, that this billboard was no good and that this message was no good, and that we should do something about it. Now, I had been hanging out with Ron enough to feel almost the same way, but not nearly as strongly as he did. If I had been left to my own devices, I would have let it go and said, I don’t like the sign, but that’s just the John Birch Society. But Ron was very anxious to counter protest. We drove out to see it, as we had only heard about it. It wasn’t hard to do. We just drove by. Sure enough, there it was, sitting up there on the rise along High- way 80. We decided we would go back to my house and gather up all of the excess house paint from our garage. And we did. We poured it into two buckets of paint and it turned out beige because it was a mixture of diferent colors. And we put those two cans in the back of my mom’s 1954 Chrysler. Also my dad’s World War II machete from North Africa, which was a handy tool to have around. I used it in the yard to whack limbs and things. So we put that in the back. You’ll see why in a minute. We had to wait ’til dark, because there was no way we were going to do this until it was dark. This was in February 1963. It was a little cold. Now, meanwhile, I had been working with a young woman who was a year younger than me named Ann Smith. By the way, Ann has given me permission to use her name. In fact, Ron has too. I wished we had been a girlfriend/boyfriend thing, because she was voted most beautiful in the class. But I was too shy. She had asked me to be her tutor in algebra. She came out of the blue and said, would I help her? I was good in math, so I said, “Of course I’ll help you.” I would’vebeen crazy not to. I must have gone to her house seven or eight times and we worked through erh algebra problems. I inally worked up

26 • three the courage and said, “Would you like to go to a movie?” So she went to a movie with me. I was hoping that we could eventually migrate to an actual dating arrangement, but I was too shy to move that along at a fast speed. I was taking it very slowly. And we always had a great time. She was great. We got along ine. And we did all the math. I was very good about elpingh her with all of her math problems. We got through her homework. She was making A's in math. On the day in question, February 6, 1963, when we had decided to paint up the sign and Ron and I were waiting, I got on the phone and dialed—in those days you just dialed, you didn’t push buttons—dialed her number and said, “Ann?” “Yeah?” Ann Smith, 1963 “Guess what we’re going to do?” So I told her what we were going to do. I was just talking big because we hadn’t actually gotten out there and done anything wrong. I felt like I could always invent a good reason for why we didn’t go through with it. But she said, “This is great. Can I go?” So I said, “I guess so. Are you sure you want to do that?” “Oh yeah, I’ve got to be in on this.” Now, I didn’t think of Ann as—we’d never had discussions about politics and the Supreme Court. I was surprised that she felt that way. I guess I said, “Okay, we’ll pick you up on the way out there.” It got to be just about dark and Ron and I got in the Chrysler and drove over to pick Ann up. She got in the car and the three of us drove over to where the sign was on Highway 80. Now, all of this—probably we did it in twenty minutes, to go from our house to her house and over to Highway 80. It could have been thirty minutes. So these were not long distances. Maybe three or four miles to her house, three or four miles to the sign. Highway 80 at that point is mostly rural in those days. It’s not like there are a lot of Ron Goodbread, 1963 houses along the road. It was a four-lane major thoroughfare going into Jackson, two lanes each way and it probably even had a frontage road on the side, and then there were the large billboards here and there. But it was mostly out in the woods, on the outskirts of town. And it was a well-lit sign. We could see it. We took this dirt road that went of behind the sign. We rode back there and it was very dark. I remember thinking we’d better turn the car around so we would be pointing the right direction in case we had to get out of there in a hurry. So I turned the car around. We still hadn’t done anything wrong, but no one, I guess, wanted to back out. We got out of the car. We got the two buckets of paint and we got the machete. We snuck through the pine trees commando style. Got up to where—it was easy to ind the sign. We got up to where the sign was and when you actually get up against one of those

Bill Alsup, 1963 things, it’s pretty big. They look smaller when you’re driving down the road. This was a big sign. But we had a plan. I took the machete and I whacked a pine branch of of a pine tree, and that was going to serve as our paintbrush. Then Ron leapt up on the back to the irst—there are these horizontal rafters on the back that hold the scafolding that holds the sign up. There were three of them, all horizontal. He got to the bottom one. You had to climb up there and leap up there. I handed him the buckets. I then leapfrogged past him to the middle one, and he handed the buckets up to me, and then he went over me to the very tiptop one, where he could lean over the top of the sign. And then I handed him the buckets and then I got back down on the ground. I ran around and got the big paintbrush, so I then had to guide him over to the part of the sign that said Impeach Earl Warren, because we didn’t want to paint over the lag part. We wanted to paint over the Impeach Earl Warren part. I had to say “Move left, move right.” He was up there, grumbling because he liked to grumble. And so inally we got him in the right spot and I said, “Okay, I’m ready—you go ahead.” Paint can number one came oozing down from the top. Meanwhile I’m spreading it left and right with the pine branch. But it wasn’t enough. It was a big sign. I said, “We’re going to need the second can.” So he poured the second can and I repeated the brushing. That pretty much wiped out the Impeach Earl Warren part. Our counter protest. Now, all this time, cars are whizzing by down on the road. We imagined people down there saying, “Look at those assholes up there! They’re painting up the Earl Warren sign.” As soon as we did our counter protest, Ron got down, and we ran back to the car, where Ann had been waiting. The next day we went to school as normal. I think this was a Wednesday night. We went to school as normal and then we went home and the phone rang that evening and it was my friend Ron calling about the evening news. And he said, “Turn on the TV” And so I turned on the television and they were very simple setups in those days. One or two stations. They had one guy sitting at a simple desk and then behind him was a wooden panel that would slide left and right to reveal some picture. And it opened and he said, “Last night”—and the window goes psssht—opens up, “Last night,” and then there was a picture of the Earl Warren sign all smeared up. “Vandals struck the ‘Impeach Earl Warren’ sign on Highway 80.” Then they showed a picture of the billboard. Next came the John Birch Society president in Jackson, Dr. Curtis Caine, who I did not know at all. Actually, this proved to be propaganda bonanza for them because he said—I remember his exact quote. He said, “This proves that right here in Jackson we have Communists, Internationalists, Socialists and One-Worlders.” I knew what a Communist was and a Socialist was, I thought, but I’d never heard of a One-Worlder. I had no idea what that was. Anyway, they said the police were on the case. It was just counter protest by local teenagers but now I was scared to death. Ann was scared to death. But Ron was just laughing and howling into the phone. “Those idiots!” I kind of think he wanted to be found out. He wanted the notoriety; he wanted people to know that he had struck a blow against the system. That night, after the television reports, I wrote an entry in my diary in Spanish, thinking it would throw the cops of, something to the efect that “El color es en,” meanin g the heat was on over the Impeach Earl Warren sign. I guess I knew it was wrong, but it didn’t occur to me that it was vandalism. I thought it was like free speech. Obviously, if you think about it now for thirty seconds, you realize it wasn’t. You have the right to free speech but you don’t have the right to paint up somebody else’s speech. I didn’t think of it in those terms, but now I was thinking of it in those terms. I had been thinking counter speech. My mom came to me after a couple of days, because it stayed news for two or three days and then it went away and they dropped it. But my mom came to me. My dad had died by then. I never would have

28 • three Ron Goodbread, Joe Turnage, Bennett Price and Bill Alsup Carl Dicks

Higgen Hogs on a tower in Vicksburg, 1963

done this if my dad had been alive. My mom came to me and said, “Bill, did you paint up that sign?” Now, what do you say to your mom? Are you going to lie to your mom? I said, “Yes, I did.” She said, “Well, you’d just better be careful.” That’s all she said. She let it drop. “Well, you’d just better be careful.” So that’s the end of the story. As a footnote to that, a couple of years ago I got somebody in Jackson to go into the archives of the newspaper and see if they could ind the picture, and so now I do have that picture. LM: So a couple of follow-up questions. Did the John Birch Society put another sign up, do you recall? I wonder what they did with their sign painted over. WA: I don’t remember. LM: What happened to your friend Ron, with all that energy? WA: We were seniors then. The debate coach at our school was connected with a school called Millsaps College, academically the best four-year college in Mississippi, even true today. It’s right there in Jackson, and it was, even then, regarded as the most progressive campus in the entire state. Ron got a scholarship to go to Millsaps and graduated there. Then he went and got a master’s degree—I believe it was also from Millsaps—in history, both of those in history, and then went to the University of Georgia, got a PhD in history. He taught history for seven or eight years. By this point I had become a lawyer, and I had been working on him becoming a lawyer. He decided to give up on being a history teacher and become a lawyer, so he went to Samford University in Birmingham—I believe they call their law school the Cumberland Law School, and he got his degree there. He practiced briely in Jackson and then he went to become an assistant federal public defender, in Washington, D.C. He did that a long time, and then they made him a magistrate judge on the Superior Court, not the District Court, but the Superior Court. He retired about ive years ago and the main thing that he’s been doing since then, he’s gone back to his PhD dissertation, which he had inished and turned in back at the time, and he’s updating that and trying to turn that into a book. The subject of it was the Reconstruction era in Mississippi, that period from the end of the Civil War until 1876 in Mississippi. I’ve read part of it. It’s just as you would expect from Ron—it’s exceedingly well-written and documented, footnoted. I hope someday that he gets that published. That’s been his life in a nutshell. LM: It’s so interesting you had so much inluence on each other from that early age up to you wanting

three • 29 him to go to law school after you had gone, and him going to law school. This friend group that started in elementary school continued through high school and beyond, and you had a club. WA: And we’re still close friends today. Well, I will tell you the story, but it sounds ridiculous, so I acknowledge that upfront. The name of this group turned out to be the Higgen Hogs. This started in grade school. It had a completely diferent purpose. It was a playground club. T hen fast-forward all the way into high school. In high school, for diferent reasons altogether, we decided we wanted to formalize a group of friendships that had stayed together since all of that time. We were all in the same neighborhood, for now in the same high school called Provine High School. We tended to be good students, but none of us were on the football team, so we wanted something to distinguish ourselves from the football team, which got all the attention of all the girls. That wasn’t fair, so we had our own little thing going called the Higgen Hogs. We resurrected the old playground club—but for a diferent purpose. It was for the purpose of good government, studying, trying to carry on a debate or discourse over what the right thing to do in Mississippi in that era was. That was right in the middle of the Civil Rights Movement. We actually had little debates and discussions about that era and what was going on in our hometown and whether integration was right. So we had a completely diferent purpose. There were about a dozen of us altogether. We got well known within the school and people began to know us by that name, and in fact even today, at the high school reunions, they will call out to the Higgen Hogs to come up on stage. That’s the way we got remembered. Most of the National Merit inalists that we had in our school were in our little group. I was one of them. The kids who made the best grades—we certainly all made—with one exception. And the one exception was Carl Dicks, and he was kind of our juvenile delinquent. He was the only one who smoked. He was the only one who had tattoos, and he didn’t even want t o inish high school. He wanted to go into the Navy. We loved him, loved him to death, and he was as loyal a friend as you could ever want. And he did. As soon as he graduated, he joined up in the Navy and spent his career in the Navy. He wanted to be a gunner’s mate. That’s what he wound up to be, a gunner’s mate. So that group, the Higgen Hogs, it’s a ridiculous name. I wish we’d given it a diferent name, but we just picked the same name we had used for that brief period back when we were on the volleyball court in the ifth or sixth grade. I’ll tell you the one story that I think brings it in focus. In the eleventh grade there was the election for the president of the student body, and one of our members, a guy named Bennett Price, was a candidate. Of course we were all supporting him because he was a candidate; we wanted to see him win. Well, he did win. The election was held and he got the most votes. Then the actual principal invalidated the election after the fact and said that Bennett did not have the required grade point average. There was some rule that you had to have like a 3.5 or better, let’s say, and he had 3.48 or .49. Very close. So yes, techni- cally he was right. But nothing had changed. Everyone knew what his grade point average was before the election. They should have disqualiied him then. The principal waited t o see if his favorite guy would win, and his favorite did not win and so he then decided to invalidate it then, and then he named the runner up, which was his guy, to be the incoming president. Well, this was not fair. We didn’t like this. We thought it was an election rigging, so we wrote up—me and Ron did this at my house on the old Royal typewriter we had in my house. We wrote a little one-page sheet called the Higgen Hog Hacker, and hack was a word we used back then to mean complain or gripe or grievance, and the lead item, of course, was that this was unfair, that the principal had rigged the election, that he should have brought this up before the election, instead of waiting to see how it came out. We did this on a mimeograph machine. First, we typed the stencil. Then you load the stencil onto the plates of the mimeograph. Then you cranked one copy per turn—so we printed thirty-ive copies. Down

30 • three at the labor union hall where Ron’s aunt worked—we went down there and ran it and ran the stencil through the machine. Ron knew how all this equipment worked. He even knew where the key was. We just went in there, it was dark in there. We printed up thirty-ive copies. The next morning we show up at school. We were going to hand them out in the front door. Both of us were starting to get cold feet. Meanwhile, Carl Dicks, the guy that went ultimately into the Navy, showed up and said, “What is this? Hey, I like this. We’re going to andh this out.” We said, “No, Carl, no, Carl; we’re going to get in trouble.” Well, he snatched itout of our hands and handed all thirty-ive copies out. Within forty-ive minutes it was all over the school. There were almost a thousand students in all the grades, three grades total, and about 350 per class. The Hacker was all over the school in a matter of moments. We knew we were headed for trouble. But everyone loved this thing. They all agreed with us—this is one of the reasons that the school remembers us so fondly now, is because we stood up for what was right. In the second period, I was out playing left ield in softball. The coach waved me in, so I went trot- ting in. Coach Shook, Howard Shook was his name—great guy—anyway, he said—and he was kind of laughing, smiling—he says, “You’ve got to go to the principal’s oice.” I knew what it was. I was in deep doo-doo. I run into the gym, put on my clothes and go down to the principal’s oice. I get there, and Carl Dicks is already there, and Ron is already there, and several of the others are already there. What the principal was doing was gathering together all twelve of us. Carl had this amazing ability to just kind of have this you-are-so-full-of-shit smile on his face that— while he was smiling, he was holding Hal France, the principal, in just utter contempt, and everyone knew it, including Hal France, but since Carl was smiling, Hal couldn’t do anything about it. Ron was being quiet and I think, “Oh, we’re all in so much trouble.” Finally all twelve of us got there and the principal comes in. He waved around a copy and he says, “This piece of crap; I got my hands on this and look what you’ve written about me, that I’ve rigged the election. I’m not going to put up with this.” And he just went on and on and on like this. Ron and I, to our credit, said, “Listen, this is not their fault. Me and Ron did this on our own. They are innocent on this.” That wasn’t quite true because Carl had handed it out, but it is true that we didn’t get anyone’s permission; we ran of thirty-ive copies, and we called it the Higgen Hog Hacker. But no one tried to get out of it. They took the heat, too. The principal wouldn’t let anyone out of the room. So he continued—he was on a tear—so he said, “This is some kind of subversive organization. I think it’s illegal under state law.” And then he said, “I even understand that one of you will not pledge allegiance to the lag of the United States.” Now, it was true that Ron would not stand up for the Pledge of Allegiance, but it was because he thought it was done in such a disrespectful way, in such a casual way, that no one really meant it. So he just said, “I’m not going to have any part of this. I’m very loyal to the United States, but I’m not going to take part in this.” So he would not stand up for the Pledge of Allegiance. I stood up and the rest of us did, but not Ron. His deiance was well known in the school. Ne vertheless, everyone liked Ron. He was popular anyway, in his own way. And so Hal France, the principal, said, “I understand one of you will not”—like he didn’t know who it was—“I understand that one of you will not even stand up for the Pledge of Allegiance.” So Ron raised his hand and he said, “That would be me.” [laughter] Then Hal France lit into him and started haranguing him. The principal inally insisted, “I will pledge allegiance to the lag of the United States. I will pledge allegiance to the lag of the State of Mississippi, and I will pledge allegiance to the lag of the Confederacy.” Ron, at that point, very calmly, said, “Mr. France, that would be treason.” [laughter] He said, “You can’t pledge allegiance to the lag of the United States andthen to the lag of the Confederacy that tried

three • 31 to destroy the United States. That would be treason.” Well, Hal France was going to have a meltdown right there. He was sputtering. His arms were lailing about. Hiseyes got real big and he was going to have a meltdown. All of us were thinking, “My God, Ron. Why did youay s that? Now we’re really going to get thrown out of school.” Hal France announced a verdict, “I’m going to throw all of you out of school. But before I do it, I’m going to have your parents come in here, because I want them to know what you’re up to. And then I’m going to throw you out of school.” He told us to get out and go back to class, so we did. By this time it was the third or fourth period, and the other students gave us a standing ovations as we rejoined them. That made us feel better. Here’s the end to the story. Some of the parents did come. My mom did not come. She had to work. But there were several that did come. Joe Turnage’s mom—I haven’t talked yet about Joe—but Joe Turnage’s mom came and she was a tough frontier lady. She’d been raised in Arizona. She went in there and just ripped Hal France to shreds about what a tinhorn he was, how he had rigged the election and how these kids protesting happened to be the best students in the entire school, and protested that he threatens to throw them out. “What kind of tinhorn are you?” I think on account of her, we could stay, so that was the end of the story. LM: And the election result? Did that stand? WA: We could not get him to undo the reversal. So that stood and our guy lost, but we learned a little bit about the First Amendment in the process. LM: There were actually quite a bit of legal issues loating around. You had Ron’s interest in Abraham Lincoln, who was a young lawyer early in his career, and you had a constitution for your club and you had this protest. WA: There were. You do have the right not to stand up for the Pledge of Allegiance. The Supreme Court had already decided you cannot make somebody pledge allegiance to the lag. That had already been well-established as case law right on point. We had—our right to circulate a grievance—nothing wrong with that. We were perfectly within our First Amendment rights to do that. There was the First Amend- ment issue about Impeach Earl Warren. Where does free speech stop and where does vandalism start? All of this is against the background of—here we were, just kids, really, in high school, and all around us was the Civil Rights Movement, looming large right there in our own hometown of Jackson. LM: During this time—this is about 1962? ’63? WA: Sixty-two is when we did the grievance about the election, and early February ’63 is when we painted up the sign, so all of that happened in about an eight or nine-month period, the two stories that I’ve given you. LM: I was just thinking it was ’63 that Medgar Evers was killed in Jackson. WA: It was. LM: That was June twelfth of ’63. We’re just talking a matter of months before then. WA: Correct. I can remember the chronology pretty well. I’ll give it to you right now. In February 1963 was when we did the sign, and also February 1963 in Birmingham was when the—I think it was called the Children’s Crusade—got underway and Bull Connor, the bad chiefof police had the ire hoses out and the attack dogs going—national news all the time—I believe that started in late February, and that continued all the way through the spring. That was a long, long process. While that was going on in Birmingham and Martin Luther King was very active there in Birming- ham—in Jackson, Medgar Evers, who was the ield secretary for the NAACP [National Association for

32 • three the Advancement of Colored People] in Mississippi—he organized a boycott of downtown merchants in Jackson, and that started in May of 1963. That was really the irst, not home-grown, but local, nationally- recognized demonstration in Jackson, and every day they would go to the Woolworth lunch counter, and there was a famous picture that was taken of the students from Tugaloo College who went there, with some assholes pouring catsup and mustard on them. It was very threatening to them. There would be protest marches up and down the street to boycott stores because—discrimination in access and employment were the main issues of the boycott, the ability to try on clothes, which none of the stores would allow; that was another grievance, in May 1963 in Jackson, our hometown, ten minutes by car from our house. When those sit-ins were going on, I was then afraid to go downtown. I just wanted to stay away from trouble. There was a risk that people would be shot at and bullets would be lying, so whenever one of those demonstrations were underway, at least when I was in high school—in college, I actually did go to the 1966 James Meredith march; I did participate in one of those rallies. But in high school I was afraid that I might get shot by accident. We did, however, go on record supporting at least voting rights for Blacks in a letter that got published on June 6, the day we graduated from high school. LM: This is the Clarion Ledger. WA: We debated it on May 12th and then I wrote the letter on behalf of all of our HH group. I’ve gone back to check these dates out, so I know the dates of these events. We had a meeting and we debated— because all of this controversy was happening right in our own town. We were about to graduate from high school and we thought we had a moral obligation to speak out nda say something that might inluence other people. A letter to the editor in those days would be kind of like a blog on the internet today. We debated it, then I summarized our views in a letter and I sent it in to the statewide paper. It’s under my name. It was published on June 6th. There are some parts of it I’m very proud of. Right at the very irst, we explained who we were. I didn’t use the name Higgen Hogs because the name was ridiculous, but I said we were a group of seniors who were about to graduate from high school, and we want to say how we felt about some of these controversial issues. Right up front we said, “We are for civil rights for Negroes.” Then we explained our support for equal voting rights. Everyone in a free society, in a democracy, should be able to vote, regardless of race or regardless of whether you can pass an intelligence test. That’s just what a democracy is. Then we put in a sentence that said we rejected the idea of white supremacy. That was what the Nazis had preached in Germany and that they had lost the war, for good reason, and that we should not have the same thing here in our own state. That was the part that was a ringing endorsement of the right side of history. I am really very proud of that letter because no other white high school kids ever said things like that. There were, of course, one or two white newspaper editors, Hodding Carter, Sr. and then later Hodding Carter Jr. in the Delta, and then a publisher named McClain at the Tupelo newspaper, Hazel Brannan Smith. They were white and they were deinitely critical of het system in Mississippi. So we weren’t the only ones. But they were adults. We were kids. The rest of the letter wasn’t so modern, I’ll be honest. With respect to school desegregation, we said we wished that it could’ve come out the other way, but separate but equal has not worked, and since separate but equal has not worked, there is no alternative but integration of the public schools. The bottom line was, we said integration of the public schools is the only way forward for Mississippi, but we had a begrudging consensus on getting there. So, we had a ways to grow on that issue. And, we did. We were on the cusp of seismic change. Our own thinking was a work in progress. This letter cap- tured it as we were leaving high school as of May 1963. Now, if you fast-forward all the way to 1966, in college, we’ll have to talk about that, because that’s an interesting progression, but by then my thinking

three • 33 had dramatically changed in favor of full equality. By that point I was, I would say, totally on the modern side of history. By that point I’d actually gone to Chicago and gone to these student conferences. I’d seen Martin Luther King in Chicago give a speech in a church. I had been part of the rally at Tugaloo Col- lege at the end of the James Meredith march in June 1966. So I continued to grow after the letter, is what I’m trying to say. LM: Was there a reaction to the letter once it was published in May? WA: I got two Bibles in the mail, because you had to put your return address there in the letter. Today no one would do that, but I got two Bibles in the mail from segregationists who had underlined certain things that would justify segregation. And that was it. I was kind of disappointed we didn’t get more recognition. We got almost no recognition for it. It’s there. It’s in the archives and I have a copy of it, but it’s not something that got recognition at the time. And did it have any of the efect that we wanted? I don’t know. I doubt it. You always overestimate your inluence. Possibly people read it. We did want other people to know how we felt so that they could think to themselves, “Well, that’s okay; there are other people like me out there who think everyone ought to be allowed to vote.” Decent people were afraid to say things like that then. So there was a good reason to say it and encourage them to come out. LM: Your colleague and friend Judge Thelton Henderson was, I believe, in Jackson when Medgar Evers was killed. WA: He was. LM: So you were both in Jackson. WA: We were. And of course I didn’t know him then, but I’ll give you what I do know about that history now, and this is all after the fact. I need to be very clear I didn’t know any of this at the time. He was there with John Doar of the Justice Department, and of course Thelton Henderson, at that time, was a very junior lawyer, the irst or second Black lawyer ever hired in het Civil Rights Division in Washington. So it was an historic event. And DOJ sent him down to Jackson with John Doar, who was a white lawyer in the Civil Rights Division, also a famous lawyer. The day of Medgar Evers’ funeral, there was a spontaneous march that had no permit and there were hundreds of Black kids and adults, angry as could be. They were marching towards downtown, and Thel- ton and John Doar got out in front of that group. John Doar wound up doing all the talking, but Thelton was right there, and Doar told them, “There’s this wall of pol ice oicers a hundred and ifty feet ahead of us, and they’re just waiting for you to get there and people are going to get hurt and killed, so please, disperse. We’re going to take care of this a diferent way.” And that carried the day. It could have been a bloody, bloody day if they had not turned that group around. There were hundreds marching towards downtown. LM: There’s a beautiful photograph I’ve seen of John Doar with his white button-down shirt with the sleeves rolled up. He was a tall man and he was talking to the people with the policemen behind him. WA: I’ve seen that. But you know, Thelton Henderson could never forget that moment. In my hometown, that’s a famous moment. I am proud to be his associate, to have served with Thelton Henderson. He was there. I know that about two years ago he went back to see John. John Doar recently died. LM: Recently. WA: Yes, very recently. He lived a long life and did a lot of great things for our country, not just then. He was also very heavily involved when James Meredith integrat ed Ole Miss for the irst time in October 1962. That’s another story I should tell you about sometime, but we’re probably running out of time

34 • three now. But remind me. And not that I was there in any way, but I can just tell you the reaction of what the feeling was among twelfth graders in our school, a white school, as all that news was breaking and the orders from the federal court kept coming down. That was a riot at Ole Miss. That was the most violent resistance to federal authority since the Civil War. It’s still true. Two people were killed and rioting went on for forty-eight hours, I think. It was terrible, what happened. Next question. LM: At the time when Medgar Evers was killed, do you recall that news coming? WA: Oh yes, I do. I even have a diary entry—I think it was the next morning. I remember waking up the next morning and seeing the headline. By that point, even I knew who Medgar Evers was. I was just a kid in high school, but he was a household name because he was leading those marches in downtown Jackson. So then to wake up and see that he had been killed—it was shameful. I did feel that everyone should have the right to vote and everyone had the right to express themselves in a free country. I grew up believing that everyone had the right to say what they wanted to say, and all he was doing was protesting. He wasn’t violent. He was just protesting the system. He had every right to do that. I believed that back then. To wake up and read the paper that he had been killed, shot, as he got out of his car to go home—it was the night that President Kennedy gave his speech calling for a Civil Rights law. The president went on television, gave that speech, then Medgar Evers drove home and this sniper was waiting in the bushes, shot him and killed him. And at the time, I thought it was tragic. That’s the word I used in my diary at the time. So that was one of the lowest moments. Now, a year later, when I was a freshman in college, at the Christmas break, me and Danny Cupit, another one of our Higgen Hogs—he and I had become close friends up at Mississippi State—we decided that the right thing to do, the decent thing to do—we went down to where Medgar Evers’ old oice was in the Black part of town at the NAACP building. We walked in unannounced, just two white guys. Usu- ally whites didn’t go in there. We said we’d like to talk to Charles Evers, who was the older brother, who had replaced Medgar to keep the efort going. And of course we had no appointment. They must have wondered who in the hell we were, these white boys. Anyway, he was good, he let us come in. We sat in his oice and explained who we were, irst year at Mississippi State, Jackson kids, and that we were there to say we were sorry for what had happened to his brother, and that we wanted him to know that not every white kid in Mississippi felt ill will. I think he felt we were sincere about that. We then asked him to consider coming up to give a speech at Mississippi State. Now, little did we then know how much trouble that would cause. It actually turned out to be Aaron Henry who was the Black president of the statewide NAACP. Medgar Evers had been the ield secretary; they were two diferent positions. I’m jumping way too far ahead. Even in our irst year in college, we had this idea that it would be a good idea to have this interchange of ideas and for a Black person to come and talk about civil rights on a white campus. Mississippi State was still all-white then. And he said ine, he would do that. And he eventually did do that, but it was much later than we had hoped. I remember him telling us at the time when we were sitting in his oice—he said, “Listen, when you callme, be very careful. The FBI is listening to everything that we say on the telephone.” That scared me to death, and I’ll tell you why it scared me. I thought it was possible that the state police would be wire-tapping him, like the Highway Patrol, maybe. It never occurred to me that the federal government would be doing that. I thought the Federals were the good guys. Now we know the federal government was doing that kind of thing. For example, they were wire-tapping Martin Luther King left and right. J. Edgar Hoover was regaling even President Kennedy—maybe that’s too strong a word—but was sharing the information. And Bobby Kennedy was very scared that Martin Luther King was a communist. There’s a whole story there. But I didn’t know any of that then. So when he told us that his phone

three • 35 would be tapped by the FBI—my heart skipped a beat, because when you’re talking about the FBI, the federal government doing the wire-tapping, that’s a diferent entity than I thought was actually doing anything like that. We probably met with him about thirty minutes. We also had asked him if he would support one of the teachers up there who was the only liberal on campus, who was going to put his name in for the federal court of appeals. That was really one of our excuses for going in there to see him, and we gave him the name. He wrote it down. But that never went anywhere. Really, we just wanted to go in and see a real civil rights leader, particularly him, because we wanted to say, which was from our heart, that we really were upset with what had happened to his brother and we wanted him to know that not every white kid in Mississippi felt the way most of them did. LM: Well, that was something else, to pay your respects to Medgar Evers and the family that way. One thing I’m struck by when I see pictures of a lot of the people like Medgar Evers from that time period is how young they were when they died. WA: Very true. His wife Myrlie Evers—I didn’t meet her. She was not the receptionist the day we showed up in December 1964. There was someone else in there. But she had been the receptionist when Medgar Evers was there, so it was like a husband and wife team. She’s still alive, and you see her at various civil rights events. She’s remarried. Medgar Evers served in World War II. I’m going to say he was forty, at most when he was killed. Very young. LM: Let’s take up with Mississippi State and some of those other things that happened after this time period next time. WA: Next time. All right, we’ll do that.

36 • three four

Interest in science, ham radio and the mechanical arts Inluence of the Second World War on thinking about democracy and civil rights Civil War seemed barely over Family trips: Cuba and Guatemala Expectations regarding education

LM: We’re here for interview four with Judge Alsup’s oral history on January 27th, 2016. We’re picking up talking more about high school, including your life-long interest and aptitude with science. And I’d like to hear about your involvement with ham radio. WA: My dad was a civil engineer, self-taught. He did not go to college because of the Depression. He had wanted to go to Texas Tech, but the Depression ended that idea. He got a job in the WPA [Works Progress Administration] in West Texas as a surveyor in the thirties, and then by the time World War II hit, he and my mom were in Mississippi and he had become a licensed civil engineer. He had a great aptitude for anything having to do with the mechanical arts. There’s no doubt that he’s the one who gave me that gift, and one example I’ll mention is the use of pulleys, or block and tackle, he called it. He had these large block and tackle arrangements, double-wheeled pulleys, that could hold a couple of tons. So he had these large ropes that would also hold lots of weight. I found myself amazed that through the use of pulleys, someone as weak as I was, just a skinny high-school kid, could pull a couple of hundred pound, or even three hundred pound item, well of the ground and lift it up. It w as because of the leverage efect of the pulleys, so you could pull this rope, say, ten feet and the item in question would lift, say, one foot of the ground. Well, that’s a ten-to-one ratio, so you’re leveraging yourself ten to one on that. That system he taught me, but things like that came very naturally to him. In fact, he got a patent. He was an inventor on a patent that has to do with counter-sinks and on bits on a drill. So my dad had a great aptitude for the mechanical arts, and I inherited that. Even to this day, I enjoy making things, using tools. In that vein, motors and gasoline engines, lawn mowers, I would take them apart and put them back together, clean out all the carbon, clean out all the spark plugs. I could do that all day long and got pretty good at it. The issue of radio—that’s what you asked about. One day, Junior said, “You’ve got to come see this new thing my dad brought home.” His dad was always bringing home something neat, and it turned out to be a Zenith Trans-Oceanic radio. They are collector items now. They cost a fair amount of money. It was about the size of a small suitcase, maybe two feet by nine inches deep by one foot tall, and it had a silver telescoping antenna that would go up about seven feet, plus a dial. We could pick up short-wave broadcasts from all over the world. We were blown away by hearing Radio Moscow, Radio Free Europe, hearing the jamming stations coming all the way over the North Pole, any number of stations in South America, including quite a lot of church broadcasts. South America was just full of broadcasts on the short-wave. Radio Havana was another one. It seemed like almost every country—BBC was one—but every country had a short-wave set of frequencies. Not just one; usually it was on every short-wave band.

four • 37 Ours was called Voice of America. The idea was that the people behind the Iron Curtain could listen to Voice of America and get the real news, or the BBC, instead of the propaganda, and of course they wanted, on the other side, to put out their propaganda. Now, short-wave signals bounce of the ionosphere, which is about 200 miles up, these waves bounce of the ionosphere, they bounce back and hit the earth and they bounce back up and hit the ionosphere again, so they can propagate almost all the way around the world and go very long distances. So it’s easy, for example, to hear Radio Moscow or Argen- tina or these places. Here we were in the middle of Mississippi, listening to this Zenith Trans-Oceanic. These voices were coming of the ionosphere and bouncing down to thislittle radio, and we were just blown away by that. It was like magic. And the magic of short-wave radio, still to this day, I get excited over it. I cannot explain it. Most people would say that’s so boring, but to us and to me still, the idea is very exciting and it opened up a whole vista of places we had never been and we said we would never get to these places; it’s just so far away. We liked to listen to them. Well, one day, while we were listening, tuning through the bands, we heard these two ordinary guys talking. And this didn’t sound like broadcast stations. This sounded like just two guys on the radio. We tuned in and listened to them. We said, “What’s up with this? This isnot a radio station.” They had calls like W6AG, so we asked Junior’s dad. Junior’s dad said, “Those are ham radio operators.” “Well,” we asked, “what are those?” “Well, those are just ordinary guys who got a license from the FCC [Federal Communications Com- mission] to set up their own stations and they can transmit.” “You mean you can transmit?” we said. “Yes.” So we looked into this. In fact, we found a real ham in Jackson. He was good enough to let us look at his setup. In those days all the equipment was vacuum tube equipment, very little transistor equipment. And he showed us how it worked. He contacted some guy in say, Georgia—I’ll make that up—and illus- trated to us how good the system was, how clear it was. So we said, “We’ve got to do this.” How old was I? I remember it. This was 1962. My dad had died a couple years earlier. It was 1962. We were in high school. So we made an agreement, Junior and I. We would both study and pass the FCC test. There were two parts to the FCC test. One was radio theory. The second part was code. So you had to know Morse code [demonstrates Morse code with a series of da-dee-da]. That’s Morse code. And you had to be able to send and receive in order to get your initial lice nse, ive words a minute, which is not very fast. It’s pretty slow, really. Eventually you have to get up to thirteen words a minute, which is mod- erately fast. For the radio theory part, you would have to be able to design a circuit for a transmitter or design a circuit for a receiver, understand what a capacitor was and an inductor, some of the basics; how an antenna worked, that kind of thing. The day came and I said, “Junior, the FCC says they’re coming to the post oice to give the test, and I’m ready. Let’s go down heret together this coming Saturday.” And the moment of truth came and he confessed that he had not been studying, and he was not ready. All that time he’d been doing these crazy things like listening to Morse code in his sleep, thinking that he would be ready—but he was not ready. I did go down. I passed the test and got my initial license, and in those days—in an initial license, you had to stick with Morse code, because they wanted you to get up to thirteen words a minute and then you’d get your next level and then you could talk or do Morse code. But initially it was just Morse code. That was ine with me because I wanted to learn Morse code. I needed to buy a transmitter and I needed

38 • four Me at my ham radio station tapping out Morse ode, 1962

to buy a receiver and set up an antenna, so fortunately by this time I had my paper route and I was making decent money on the paper route. I think my entire setup cost about $120, which by today’s standards would be about $1,000, so that was a fair chunk of change. I had it saved up so I went down. It was a second-hand set. I still have it. Hallicrafter gear. You would listen on the receiver and then transmit on the transmitter, and you would have to switch back and forth with a manual switch. I worked stations in California and Columbia, lots in the South all the time, and I got pretty good. I eventually did get my next class license. I learned thirteen words a minute, and let me just stop there. But that’s the story of how I got science, mechanical arts, I was always pretty good at them and I always loved the subject matters. LM: Was that unusual for someone your age to be doing what you were doing with ham radio? WA: I would say there was one other guy in our entire high school that did that. So it was unusual for someone to go to the trouble to actually learn it all, but most of the new ham radio operators in that era were about my age or maybe a little older, maybe in college. One out of maybe 200 people had any interest in becoming a ham radio operator when I was a kid. I was the oddball in that respect. LM: Can you describe and give some examples of how, once you were licensed and an operator, what kinds of experiences that led to? You mentioned the excitement youand Junior had at the idea of being able to communicate with people who were so far away. WA: I’ll tell you one story—most of the contacts I made were boring. You would just talk with the person in Morse code about what kind of radio they had and what the weather was like. Even though I got a thrill out of even that, you would look back on it now and say, wow, that’s a waste of time. After I got to the thirteen words a minute and got my higher license, I could then use the voice part of the equipment. One day Junior was over there with me. He still hadn’t gotten his license, but he was over there with me and I heard a guy and it turned out to be in Georgia. He was calling any station and so I answered him, and it turned out that he was in a town called Winder, Georgia, and Junior’s family was from Winder. I Bill and Junior, total air, 1962.

said to the ham, “By the way, my pal is here with me and his family’s from Winder.” “What’s his name?” I said, “Junior Feild.” The guy on the other end said, “Oh, I’m very sorry I have to tell you this, but Mrs. So-And-So just died this morning, and Junior might not even know this yet.” Junior knew who he was talking about, ran home to his mom and dad to tell them he had just heard on the radio from some total stranger that his grandmother had died. That was the way he learned that his grandmother had died, was hearing it over this little crummy speaker that I had on my short-wave radio set. LM: Well, it was dramatic in terms of the communication method and information. WA: Yes, it was. Plus, all of this was coming of the ionosphere and bouncing down from 200 miles out in outer space to my little radio antenna, and that was being turned into an electrical signal which got turned into making the acoustic noise in the speakers. Still today, the magic of short wave to me is amazing. LM: I understand from Junior Feild and some of your other friends that you went on to get—and I’m not familiar with the subject matter, so you could explain it in as basic terms as possible—that you went on to get a higher level license and to write articles as well and submit them to trade publications. WA: That is true. That was much later, so I’ll jump ahead. I stuck with ham radio until I got to be maybe halfway through college. I had to study so hard in college that I just made an executive decision to give up ham radio, because I’m just going to concentrate on these other things I’ve got, like debating and coursework. I was in debating and I couldn’t aford to make a B in a course instead of an A because I’m over there playing with a ham radio. So I gave it up. I just made an executive decision in my sophomore year that I’m not going to do this anymore. By the way, Junior had still not gotten his license. Years go by. I go to law school. I’m working away in California. About 1988, Junior came out to go on a hike with me in the High Sierra. When he came out, it turned out he was now a ham radio operator. But I had let my license lapse and I was no longer a ham radio operator. He started working on me, saying, “You should get back into this.” Well, he talked me into it, so I went back and I studied and got a new license. I eventually worked up to the highest license that the FCC will allow, which is called the Extra Class License, and even today, he and I talk every Saturday morning on the radio. He’s got a set-up. I’ve

40 • four got a set-up. It’s also true that I have gotten very interested in the subject matter of radio propagation of the ionosphere and also in the design of radio antennas. I have rittenw maybe four articles that have been published by what’s called QST and some other places. QST is like the Harvard Law Review of the radio world, on design of antennas. LM: When you are on your backpacking trips do you carry your equipment? WA: There are two levels of equipment. I always carry these tiny little walkie-talkies that will go line of sight, maybe sixty miles. Those are for emergencies to hit the ham radio repeaters that would be thirty to forty miles away. They don’t do any good down at the lower levels in canyons. You really have to get up pretty high to be able to use those, and I don’t use them unless there is an emergency, which is rare. I have had a few times when we’ve used them. Those are much higher frequency, line of sight. Those do not bounce of the ionosphere but pierce through into space due to the higher frequencies. There were a couple of times, though, that I carried a diferent short-wave set that did bounce of the ionosphere and used Morse code, and I carried that around maybe three or four trips and made some contacts doing that. That was really not for emergencies. That was just for fun, to see if we could do that. I was able to make contacts. But it was just too much extra weight to carry. It was probably three or four pounds worth of gear. I enjoyed it, stringing an antenna between two trees to bring the lead wire down to this little box that’s about half the size of a book and is battery-powered with ten little double A batteries, and I had a tiny little Morse code key and you could use an ear plug to hear the other guy. LM: That’s really interesting. Junior Field and his dad got you into that, and then eventually, Junior— WA: His call sign is N-4-C-L-T, November Four Charlie Lima Tango, N4CLT, and mine is November Six X-Ray Mike Whiskey (N6XMW). LM: And you have a higher-level license than he does. WA: By one level. He’s Advanced Class and I’m an Extra Class. LM: We talked about World War II being not so much history when you were growing up, but more along the lines of current events. WA: Today of course, it’s huge history as that generation is dying of and there are many, many great books on it. Back when I was a kid, it was still fresh—not that I remembered the war, because I was born in 1945 as it ended, but just take 1955, ten years later. I was a kid, ten years old, and I knew the basics about the Second World War. Pearl Harbor, the V-2s, the V-1s, all of the major airplanes and some of the major battles, D-Day. My dad had served in North Africa in World War II. The basic, over-arching message was democracy versus tyranny, and America being the democracy had gone to war with another great democracy, Great Britain, and had beaten of the despots and t hat afterglow from that victory of what our country had done was still palpable, even for a ten-year-old kid. We grew up thinking we’re so proud of what our country had done. In an odd way, that had an inluence on me in what later became the whole Civil Rights Era, because the victory of democracy—the critical word being democracy. And what did democracy mean? Everyone gets to vote. We decide things by majority vote. I remember as a young kid learning that the rule of majority vote. If it was a three to two and you were on the three end, you won. But if it was three to two and you were on the two end, you lost. I saw the logic in it. You can’t please everybody so you might as well please the most number of people. I can see the logic of it. The fundamental thing behind it was everyone got to participate. And the right to speak meant you got to talk it out before the vote. Later on, when it became clear to me—this was later, maybe by about ’63—that in our state, there was a systematic scheme to prevent Blacks from voting—that just ran counter to everything about democracy.

four • 41 Voting was the irst civil right that, to my mind, was so fundamental. I never questioned that, that everyone should have that right. To my mind, that thread of consciousness dates back to the victory after the Second World War, and the idea that democracy had won the war. LM: Along those lines, in terms of the way the Civil War was introduced to you, what do you recollect about how that was taught when you were quite young? WA: I need to jump ahead and say eventually I learned the truth. [laughter] When I was growing up, it was not always clear who had won or lost the Civil War, and my earliest memories were that it was the North versus the South, that the South had possibly lost in some ense,s but it was an unfair ight, and really, there was this phrase you heard over and over again, “the South will rise again.” I must have heard that 200 times growing up. “The South will rise again.” And it really wasn’t over. It was just temporarily over. The other part of it was that slavery was a big part of the Civil War, but that all of the race issues that were beginning to percolate—now this was in the late ifties and the early sixties—this is the way it was presented in the media and in ordinary conversation, was that all of the race issues that were beginning to be problems, you could trace back to the Civil War, and somehow it was all the North’s fault that we were having these troubles. Of course that was all wrong—but none of these themes were ever connected back up in a linear way to some real reasoning. These were just prejudices that came out, almost in the way that people talk about the weather. There was a school book that I mentioned to you called Our Mississippi that I found in our basement in Oakland a few years ago that was published in 1959, so I read it just to see how bad the propaganda was. It was shocking, really, to see how blatant it was. For example, it referred to the Ku Klux Klan as this beneicial organization that was there to protect the widows an d the orphans of Southern soldiers who had been killed in the Civil War. It had very racist stereotypes described about Blacks. It never even mentioned Abraham Lincoln. It did not mention that a Southerner had assassinated him. It had no pictures of any of the Union side people and it had multiple pictures of Jeferson Davis, who was president of the Confederacy. It was so lopsided and inaccurate a document that it’s shocking to see now. I kept it so that it can be available for future generations to see how propaganda in the schools worked at the time. This was the Mississippi history book. I believe it was for the eighth grade. LM: It’s interesting, the juxtaposition of the way the Civil War was taught, and then you had the World War II triumph of democracy over tyranny. WA: It’s completely diferent, isn’t it? It’s true. Oddly enough, in Mississippi, democracy got lots of lip service. In the schools it was taught that democracy was a great thing, and yet when it came to how we practiced democracy behind the scenes, it was white only in Mississippi. Can I say a word about the Civil War? On the geography of it. President Ulysses Grant—he was a general, of course— all of his papers are now at Mississippi State. Those of us who graduated from there are pretty proud of that. One of my friends sent around an email the other day with another announcement about how the papers are all now at Mississippi State. I wrote back and I said it’s appropriate, because of all the presidents, he’s the one who spent the most time in Mississippi, and it’s true. Not as president, but as the general opposing Mississippi in the Civil War. Vicksburg is just one of several examples I could give. The Civil War, when I was growing up, just down the road, on Terry Road, let’s say two miles at most, wasBattleield Park, where the Union had dug in and there had been a big battle there. It was called Battleield Park. That’s what we called it. In the war, it was a battleield, right at the intersection of Highways 80 and 51, the road we lived on. We used to go down there and play in those trenches. They’re still there. They were in pretty good shape when I was a kid. I would say probably a couple of miles of trenches were there.

42 • four Halfway between there and our house was a house back up in the woods, an old house that I never went in, but many people have gone in there and told me thathe t blood was still on the loor. General Grant had used that as a headquarters and it had also been a eldi hospital for the Union side from that very same battle. So soldiers were then—I’m going to say a half a mile of my house. There had been a ield hospital where soldiers died, and General Grant probably rode down Terry Road right in front of the big oak trees in front of my house. So growing up—and it had been less than a hundred years, in the ifties—1955 was only ninety years after the end of it. I don’t think there was anyone still alive who had fought in the Civil War, but some sons and daughters of those soldiers were still alive and that war era remained all around us and much in discussion, much in memory, and the physical part of it. Battleield Park was just an ordinary municipal park with trenches that should have been protected. Bask is not the right word. We did bask in the aftermath of the Second World War, but I would say we endured on in the memory of the Civil War. Did you ever see the Faulkner story—Intruder in the Dust—he has a paragraph that describes that every Southern boy can relive the moment at Gettysburg before Pickett’s charge, when the troops were back in the little wooded area and the lags were still furled and they were getting ready for what would be the turning point of the Civil War. There was a lot of truth in that. Those moments that had been passed down from generation—not very many generations—but the feeling from that war was sometimes palpable. It’s much diferent today. I don’t feel that way anymore. I doubtthere’s anybody left who has that feeling that they could reach back and touch that time period. Back in that era, you could almost reach back to touch it, and feel it, and be part of that earlier time period. LM: Thinking about the white descendants of some of the soldiers who served in the Confederacy, I wonder what kind of family situations they were, so going back from your growing up time to the generation of men who were soldiers, what their station in life was at that time in the South. They couldn’t all have been well of. WA: You mean when I was growing up? LM: When you were growing up, the ancestors of the other Southerners whose families served in the war. WA: This part I know mostly from reading, and I have one friend who comes to mind who really illustrates it. There were so many killed and maimed, and one of the odd consequences that people don’t think about much anymore of the Civil War were women, and women became the most bitter in the group toward the North, because they had lost their husbands or they may have taken away their land or they had taken away whatever assets they had, or their husbands maimed. Women as a whole did not suf- fer directly deaths, or being killed or maimed, but they were extremely bitter, towards the North. So that got passed down for a few generations, and my friend Walter Dowdle, from Grenada, has told me stories about his mom and how bitter she was, and she wasn’t even alive back then. That feeling, that attitude towards the North, got passed down. Women were part of the problem, so to speak, because their lives were ruined, really, from the war, and they wanted to blame somebody so they blamed the North. Again, I don’t think that degree of bitterness still exists. LM: That’s interesting. WA: The rank and ile soldier in the Civil War was just a small farmer, small-time person who did not own any slaves anyway. They got drafted. Of course the South had a huge problem with desertion in the second half of the Civil War, so many of them served against their will. They might get shot if they deserted. There’s a good book called Cold Mountain that came out about ten years ago that is a story—a novel, of course—about that phenomenon.

four • 43 LM: That’s really what I was asking, and that’s the question you answered, is that it was the rank and ile—they were not slave-owning. They were not wealthy, and that they served. Switching gears entirely, you took some family trips growing up, and I understand one was to Cuba in 1953. WA: One day when I was eight years old, roughly, I came home from climbing a tree or something and— when you’re eight years old, that was a glorious time—my dad was still alive and he was in the heyday, the salad days of—his little business did the very best it ever did from about ’50 to ’55. I should say, by the way, the most he ever made in that period was $5,000 in a year, but that would be like $50,000 or more, maybe $70,000 now, so that wasn’t so bad for Mississippi. It was about three times the median income in Mississippi. It sounds today like a small amount, but it was actually a good amount for Mississippi. He came home and said, “We’re going to go to Cuba.” I didn’t even know if I knew where Cuba was. This was before Fidel Castro. This was when Batista was in charge, and it was that era in the The Godfather where the mob was going to take over all of the gambling in Havana, and the banana boats were big. We got on either the train or we drove down to New Orleans in the car, not far, just from Jackson there, and we got on a boat operated by United Fruit Company, which ran a bunch of banana boats all over the Caribbean and South America and brought bananas to the US. These boats were not real passenger boats. These were cargo boats with cranes and holds. They had about eight cabins that they rented out for paying passengers, and they had a tiny little swimming pool that was about ten feet by ten feet, full of salt water, by the way, and it was deep all the way around. It was eight feet deep and ten feet long. They had shuleboard. That’s about it, really. Every night you got to have dinner with the captain because there were only eight cabins. We had two. My mom and dad had one and the kids had one. We left out of New Orleans on the banana boat. We went irst to Havana and pulled in, so while they were loading up with bananas, we got to stay there a couple of days and we took tours. One tour I deinitely remember was going to the cigar factory and that rich smell. I’ve never smoked in my life, but that rich smell of that tobacco was—it was kind of sweet. It was not burning. It was just the smell of unburned, fresh tobacco. I still remember that; all these people sitting at tables rolling up cigars. Then the other thing I remember about Havana was how vibrant it was, really colorful, vibrant, lots of tropical trees and birds and animals. At eight years old, I thought that was pretty cool. Then it was time for the banana boat to leave, and the next place we were going was Guatemala. Great. We got on the boat, we’re going to Guatemala, and halfway there, there was a revolution in Guatemala. It’s a good thing we hadn’t already gotten there. I think it was the Communists who took over in Guatemala, so they couldn’t go. The banana boat companies radioed us, diverted us, and, instead, we went to Belize. Then it was called British Honduras, and it was owned by Great Britain, but the town was called Belize. It was so backward it did not have a dock. We had to anchor the boat half a mile ofshore and then they brought little motorboats, and we got in those and we went ashore. My memory of that town—of course I was only eight years old, but abject poverty everywhere. There was nothing colorful, nothing tropical, even though it was in a tropical region. It was just dirt and run-down houses. Sewage was in the street. There were no stores you’d feel comfortable going into. We walked up and down the street, got back on the little launch and went back to the boat. Then the United Fruit Company boat came back to New Orleans and that was the end of the tour. So we did go to Havana in 1953. I’d like to go again. LM: That would be fantastic. Take your guitar. WA: Yes. I love their music. LM: You also went to the Grand Canyon and the Hopi reservation. That was, I think, before. WA: That was in the same time period. I was six years old then, in that same early ifties time period.

44 • four Here is the thing that I think modern readers might be interested in. We didn’t have the interstate highway system yet. We had the federal highway system, and Highway 80, which went right through Jackson, went right by Battleield Park, we just got on that and went through Shreveport, went through Dallas, went through San Angelo, just kept going west and kept going all the way out to the Grand Canyon or very close. Most of the way just a two-lane road, with one lane each way, and you would be right up against the—and those lanes in those days were not as wide as they are now. Those cars would [whoosh- ing sound efect] go right by you. Still, it worked out great and we got all the way out to the Grand Canyon and I remember seeing this gigantic chasm and wanting to throw a rock and see if I could hit the bottom. We went part of the way down on a burro. I remember that, and looking down over the clif and saying, “My God, what if I fall of of this burro? I will die.” We went to the Hopi reservation. This was so 1950s typical, I guess, but we sat around in a big circle while the Hopis did one of their dances and they had the costumes and everything else. We thought this was cool. Here we are seeing something much diferent. I think today people would say that was a bad thing to do. That was not treating the tribe with the proper respect and treating them like some kind of freak tourist attraction. At the time, I thought it was a marvelous, eye-opening thing for me to see that. The Hopis lived in these adobe-type pueblo dwellings. That kind of architecture I had never seen before. It opened my eyes to the West a bit, and I enjoyed that. I almost lost my life there. We were in the swimming pool. They had motel swimming pools in those days, and I could not swim. I might have even been ive, and I slipped under the water. I even remember it, and I was too dumb to think that I should be trying to do something. My older sister saw me and jumped in and saved my life and pulled me out. I think she even gave me artiicial respiration. She was ive years older. When we got home, my mom enrolled me in a Red Cross swim class. I learned to swim, and so by the time we did the Cuba trip, I could swim. Everyone should teach their kids to swim at the earliest possible opportunity. LM: That’s a big issue for children. In terms of the kinds of ideas your parents imparted to you about what was going to transpire when you inished high school, it sounds like education was always a dominant theme. WA: I must have heard it hundreds of times from our mom and dad: “You’ve got to get the best education you can.” Another variation of that was, “A good education is the only way to get anywhere in life.” They preached this with such conviction. They were both children of the Great Depression, and as I said earlier, my dad had wanted to go to college but the Depression stopped that. My mom did go to two years and got a nursing degree. Both of them just believed with religious fervor and said it to us with that kind of conviction that you have to get the best education you can. That was our main responsibility growing up as kids, was to study and to make good grades. They had a little program that they instituted. Ten cents for an A. When the report card came out and you got all As, I think six subjects, you’d get sixty cents. I thought that was pretty good, and it actually did incentivize me. I really worked to get that extra dime. LM: So it made sense when you were in college that you made the decision to put that ham radio operator activity aside. WA: I did. The additional factor by that point was that my dad had died, and we had nothing to fall back on. I knew that whatever I was going to do in life, I was going to have to do it on my own. I did not have any trust fund to fall back on. I needed to make good grades to get anywhere in life, and by the time my dad had died, I had really driven that point home. That’s true; that was my number-one goal. Grades were always the number-one thing in college. LM: Well, let’s stop there for today and then we’ll talk more next time about college.

four • 45

five

Maternal side of the family James Meredith and Ole’ Miss, 1962 Evolving perspective on equality James Meredith’s one man protest, 1966 Tougaloo rally and Dick Gregory Provine High School, National Merit inalist Applying to college, starting Mississippi State in August 1963 Debate team and decision to apply to law school Mississippi State men’s basketball team and integrated tournaments The YMCA campus program; Kermit Clardy; becoming the VP Attending YMCA meeting and Martin Luther King speech in Chicago, August 1966

LM: Today’s February 10th, 2016, and we’re here for interview ive. We’re going to start by talking a little bit more about your family heritage, speciically on your mother’s side, the Native American part of your family. WA: My mother, and father for that matter, grew up in Texas. On my mother’s side, her grandmother, I believe it was, was named Maggie Hale, and she was a full-blooded Cherokee Indian, and so I think I’m one-sixteenth Cherokee Indian. Now, I am very proud of that heritage, but I want to say that I never put that on any resume or tried to hold myself out as a Native American. I think that would have been a fraud on people, so I never tried to do that, but I am in fact proud of that heritage. I think in some ways—this is just me talking—my ability to navigate in the High Sierra and over terrain may derive from that, because I am very good at it—inding the easiest way to get from Point A to Point B over terrain that has no trail. So that’s the story. LM: Were there stories that came down to you growing up about Maggie Hale? Anything more about her life? WA: You know, not really. I think my mom was proud of that, but at the same time, sometimes when I would hear stories about it, I got the impression that it was like mixed races, and maybe something you shouldn’t talk about, back in the ifties and the forties. LM: We were also talking about some of your earliest memories of Civil Rights history, including Little Rock in 1957. WA: Can I even go back a little earlier than that? This will give an insight into Willanna. In 1954 the Brown decision came out of the Supreme Court, desegregation. I was only seven or eight years old when that came out, so it really did not register on me. I was your typical, rural kid running around, swinging on vines in the woods, and what the Supreme Court did meant nothing to me then. I do remember, however, when I was eleven or twelve, a huge ight that my older sis ter got into with my dad at the dinner table. I remember speciically what it was about. My older sister was t aking the position—Willanna—and she was ive years older, so let’s say I was twelve, she would be have been seventeen or maybe sixteen—she was taking the position that she could have a friend—a Black friend—would be the only possibility in our state—and that would be perfectly okay in her view. If she wanted to socialize with Blacks, that was her right, if she wanted to do that, and no one was going to tell her not to do that. That’s what she said. My dad got very mad about that, and so they got into a shouting match right there at the dinner table. I was saying nothing. I was watching this. He threatened to throw her out of the house. There was no physical ight. But a shouting match. The ierceness of that rgumenta made an impression on me, and probably it was the very irst time that I sensed any of the hostility that the race issue had already generated in Mississippi, but I hadn’t picked up on yet, but now it was right there in our house. Okay, 1957, to give you one sense of history that you already know. When Central High School in Little Rock, Arkansas, was desegregated—and actually, it was a voluntary plan by the Little Rock school board. It was not court-imposed. They were just trying to do the right thing under the Supreme Court decision, but then Governor Faubus of Arkansas went to state court to block it. He went to state court, and then the school board, I think it was, went to federal court to try to block the state court from inter- fering with their desegregation plan. Remember, it was the Little Rock Seven, I believe, was the number of students that they had hand-picked to desegregate Central High School. In those days, the evening news was ifteen minutes. And the evening news did not show much by way of the Civil Rights Movement at irst. Later on they did, but it was a more congenial news hour—it wasn’t even a news hour. It was ifteen minutes. They did show the controversy, and it got so bad, the hostility was so bad in Little Rock, that President Eisenhower sent in the air-borne troops with bayonets on their riles to guard these seven kids as they went to class. And then on TV—and this is the part I remember—I remember seeing those kids on TV, on the national evening news that was ifteen minutes, and I remember seeing the vicious shouting and spitting and waving of ists that —it was both white men and white women. It wasn’t just men. There were deinitely women in that hateful group who were trying to make life miserable for those kids. I was pretty good on geography. I knew Arkansas was just one state away. When, I wondered, is this going to happen in our state? It had not yet happened in our state. All of our schools were still segregated. But that was 1957. I was twelve years old, and that made an impression on me. The event that brought all that to Mississippi was not at a high school or even an elementary school. It was at the college level, and that was the famous integration of Ole Miss, the University of Mississippi at Oxford by a Black student, James Meredith. He was actually a former Air Force serviceman who was born and raised in Mississippi. He had every right, of course, to go to Ole Miss. He was the irst Black. He applied and the governor then was Ross Barnett, one of the most divisive, racist governors we’ve ever had in Mississippi, announced that he was going to stop the integration of Ole Miss. He came up with this interposition theory, which is a ridiculous theory, but it was presented to us, the Mississippi readers of the Clarion Ledger, as if it was some kind of real legal doctrine, interposition. What that meant was that he was going to physically interpose himself between the force of the federal court and the state institutions, so that they could not be served with subpoenas and the like. It was really ridiculous. Now, that was a case that was court-ordered. There were lawsuits. The court of appeals in Louisiana, the Fifth Circuit Court of Appeals—John Minor Wisdom was one of the great judges at the time—ordered that Meredith be admitted. Now, at this point I was a senior in high school, so I had just turned seventeen that summer. This was late September and early October, 1962, and to place that in some historical context, later that very month of October was the Cuban Missile Crisis. Here is President Ken- nedy not yet going into the Cuban Missile Crisis, and suddenly he’s got on his hands the single-largest armed rebellion against the United States since the Civil War, right there in Mississippi. Now, just to go

48 • ive back a couple of days to late September, I was in high school and we were following this on the radio. We were following it on the news. My attitude was, here’s our governor telling us that he’s right, and then here’s the federal government saying that they’re right. What’s g oing on here? It was confusing. I was in the lunch room at our high school, Provine High School, and this guy—I won’t name him, but I know him and I don’t want to embarrass him. He’s dead now. He was a very right-wing guy. He leapt up onto the table, these Formica tables. Everyone else was seated. There must have been ifty or sixty people in the room. He said, “I want to announce that the Court of Appeals for the Fifth Circuit in New Orleans has just ordered James Meredith to be admitted to Ole Miss.” This had been building now for several weeks. So this was the end step, and they said he’s going to be admitted to the university next Monday. This was a Thursday or Friday. This guy jumped up on the table. You could just see the foam coming out of his mouth. This was a kid, seventeen years old, but he was so doctrinaire, so despising of the federal government and the idea of racial integration. He said, “I need for you all to contribute the money for me to drive up there.” His phrase was, “I’ll take care of Meredith.” That was his phrase. “I’ll take care of Meredith, but I need the money for gas to get up there.” To the credit of my classmates, nobody gave him a nickel. He asked for money; nobody gave him anything. We just ignored him. Now, I wish I had had the presence of mind to stand up and argue against him. But I just wrote him of as a nut and went about my business, andreally that’s what everyone else in the room did. I don’t know if that guy ever actually did go up to Ole Miss. He might have. Two things caused that deadly riot that occurred that weekend. One was that General Edwin Walker, who had been kicked out of the Army for insubordination and had been running for president and was very popular at the time at standing up against the powers that be—and in fact, they patterned a movie called “Eight Days in May” on him. That was later. Burt Lancaster, I believe, played the role of the guy like Edwin Walker. Walker came over to Ole Miss and stirred up trouble. He basically gave commands to groups of these renegade people who had showed up to attack the Lyceum building there. That was one spark. The other spark was that there was a football game that Friday night in Jackson between Kentucky and Ole Miss to protest Meredith’s admission, and at halftime, Ross Barnett gave this impassioned speech that was carried live over the radio. Well, that generated lots of people driving up to Ole Miss, so it wound up—now, I want to make it clear I did not drive up to Ole Miss. I had nothing to do with any riot. I was back at home. It turned out that —I’m going to guess there were two or three thousand protestors, to use a generous word, who showed up, many of them armed. James Meredith was there in a dormitory and was only protected by a dozen marshals. Then the federal government was scared to death. They brought in more marshals—some of this I learned later—they brought in more marshals but that wasn’t going to be enough, so President Kennedy wound up mobilizing the National Guard. The National Guard came in, I believe on that Sunday night or Monday. Meanwhile, the riots occurred and two people were killed by these rioters. One was a French newspaper journalist, and the other was just a local white guy who was a pinball repairman, and he had nothing to do with anything. He just came over to see the fun, so to speak, and a stray bullet wound up killing him. The feds shot lots of tear gas and dispersed lots of crowds. This book I just read about a month ago that somebody gave me was about that whole event. The guy who wrote this book, called Riot, Mr. Meek—he’s at Ole Miss now and has something to do with the publications, but it’s a beautifully- done book about the riot, late September 1962. That was a terrible mark against Mississippi, kind of like Dallas always was—at least in my lifetime—remembered for the assassination of President Kennedy. In my day, Ole Miss was always remembered for this terrible riot. So what did I think? What were my views about the integration issue? I wish now I could say that I

ive • 49 was then all in favor of the integration. I was all in favor of federal authority over state authority. I think I’ve already told you the billboard story. In terms of integrating the races at the time, my view was, as a seventeen-year-old—and after a few years in college I completely changed—I said I could take it either way. If the powers that be want us to integrate, ine. If we don’t integrate, that’s ine too. I just didn’t see the moral issue yet. Part of that, to be frank, is just the way we were brought up. That view was progressive compared to a lot of my classmates at the time. Now, compare that to 1966—by this point I was between my junior and senior year at college at Mississippi State—by that point, I had moved over to the right side of history on the race issue. By 1966, integration was the only way to go, I felt. In those three- and-a-half years, we’d had the Civil Rights Act, the Voting Rights Act passed. By then, I had matured enough and thought about it enough to see that full equality required that. James Meredith made big headlines in both 1962 at Ole Miss and 1966 in his march from Memphis to Jackson. By 1966, he had graduated from Ole Miss. Once he got in there, the white power structure wanted him out as fast as possible, so he had no trouble getting good grades and they got him a diploma as fast as possible. So he got his diploma and he left to do something. The Civil Rights Movement was in full swing by that point. So Meredith decided to do a one-man protest by walking all the way from Memphis to Jackson. Just a one-person protest to racism. On his very irst day out on the road, however, in the countryside, someone came along with a shotgun and tried to kill him. He was wounded, not killed. He went to the hospital and survived. The murder attempt drew an immense amount of publicity. Martin Luther King came in and decided he would pick up with the march, and so did Stokely Carmichael, who had a competing group SNCC—Student Non-Violent Coordinating Committee—then Martin Luther King was the Southern Christian Leadership Confer- ence—they were competing. Both of them came in with plans to continue the march. So it went from a one-man march to suddenly hundreds of people marching down the highway. This was in June of 1966. I was a student at Mississippi State in summer school, and I had been elected president of the student YMCA. It’s a diferent story, but just to pla ce it in context. Danny Cupit and I—Danny was my roommate and he was working for the Mississippi Young Democrats, which was a very progressive group—we decided that we would go to the march, actually, a rally in support of the march as it arrived at Tougaloo College near Jackson. Tougaloo was one of the Black colleges founded after the Civil War. It was a private school founded by missionaries, not a public school. It was maybe twelve miles north of Jackson. I was just driving home from college that weekend to go to Jackson, and I passed right by the march. It was amazing. They were going through Canton, Mississippi, and I remember vividly—I was in my little Volkswagen Bug. No one had been beaten up yet on this march, but they were about to be beaten up as it turned out near Canton. They were in a very festive mood, and I remember seeing this skinny white guy with a t-shirt and he had a bullhorn and he was calling people, “Everyone’s welcome.” People, stragglers were smiling and coming in and getting into the line. Meanwhile, over by the courthouse and the other places, you could see all the law enforcement people. There would be Fish and Game, there would be sherif, there would be polic e, there would be state po - lice—just any kind of law enforcement people they could get, and they were standing around in spots of shade doing nothing other than watching, really, at that point. And the march was then going through Canton, Mississippi. So I drove through Canton and got home. The next morning, I opened the paper, and less an hour after I had driven through, those people who had been standing around in the shade wound up beating up huge numbers of the marchers. I don’t remember what the pretext was now. No one was killed, but they were bloodied. Then the march became more of a serious proposition and the next to last push was to get all the way down to Tougaloo College, and then the day after they were

50 • ive going to march into Jackson to the Capitol steps. Danny and I decided that we would go out because those people got beaten up. We decided that we would go out to the Tougaloo rally and just show our support for the marchers. Now, Mississippi was hot as blazes. This was June and it was already very hot in the day and hot in the night. So Danny and I drove out to Tougaloo College and the rally was just getting started, the big rally. It was all outdoors, not indoors. It was kind of like this little valley and lots of people were sitting on blankets and chairs and benches, thousands, rea lly, I would say at least ifteen hundred people must have been there, mostly on the hillside. Danny and I parked in a grassy ield and walked toward the bright lights, taking in the aroma of a warm Mississippi evening. You could feel the warmth as you breathed it into your lungs. We were walking along a dirt roadway. There were dark trees, and behind them there was bright lights. That’s where the stage was. There was an acapella group, the Freedom Singers, I think, that became a little famous at the time, singing “Jump Down, Turn Around, Pick a Bale of Cotton,” and various songs that the Civil Rights groups always sang. We got there and the best position to watch from was by where the ilm cameras were, ilm crews for the networks. They had a wooden platform built up that was maybe six feet of the ground. We stood near that. Up on the platform there must have been ive or six cameras whir ring along, trying to take ilm of this event. Dick Gregory came out. I think it was Dick Gregory. It was a comedian who came out and told some stories and made fun of the Ku Klux Klan. I remember that. And then they asked for contributions. He said, “When you leave tonight you’ve got to make—we don’t want you to make a contribution. We want you to make a sacriice.” He said, “You know the diference between a contribution and a sacriice.” Of course the audience is saying, “No, what?” It was very give and take. He said, “Well, a contribution is what the chicken gives for breakfast. And a sacriice is what the hog gives for breakfast. We don’t want any contributions. We want sacriices.” So anyway, we did contribute. They were just moderate contributions. They weren’t big sacriices, but we did contribute as we left. And as we left, the guy was saying “Black power.” He had this cigar box full of money that said “Black power.” So Danny said to him, “No, don’t you mean green power?” And he was pointing to the money. “Yes, that’s what I said. Black power.” He wasn’t going to be budged of of that. We had been hoping that Martin Luther King would give a speech, because we had not seen him yet. We both did later in that summer, but he didn’t show up. Later I read that he was busy. They were arguing behind the scenes over what role Charles Evers would have when the events got to the Capitol building the next day. We didn’t go to that event. By that point I drove back to school. At the Capitol the next day, the march went all the way into Jackson, and then in the evening Martin Luther King gave a speech at the steps of the Capitol building, and I believe Charles Evers did too. That was one of the things they were arguing over behind the scenes. They didn’t come out and give a speech at Tougaloo College. The other small point—I’m just positive, even though I couldn’t tell you who it was—I’m just positive that the state Sovereignty Commission, which was a right-wing group set up like a Gestapo group—they were there taking down license plate numbers of every single car. Danny’s car or my car, whichever one we used—I don’t remember now—our license plate number was taken down by the state authorities. That was the Meredith march in 1966. If I can fast-forward all the way to now, believe it or not, James Meredith is still alive and he is living in Jackson and one of my buddies, who during the recent football season was at an Ole Miss football game, she was in the box—I don’t know if it was the president’s box or what—James Meredith was one of the honored guests in the president’s box there, and so she sent me a picture of her and James Meredith together. And he looks pretty good. He looks pretty healthy after all these years. So there we are.

ive • 51 LM: That was a big time period between ’62 and ’66, for you in that time period you graduated from high school. You left home, went to college and had a lot of experiences. WA: Yes. Where do you want me to go next? We’re way ahead of the timeline you had originally laid out there. But I’m going to do it the way you want it. LM: No, it doesn’t have to be any particular order—what comes naturally is ine. WA: Let me just try to clean up some of the parts about high school. High school was Provine High School. My dad died when I was in the tenth grade, and that had hugea efect on me. I was already a good student, but that caused me to realize that since I had nothing to fall back on, was that I needed to study very hard. I wound up being a National Merit inalist. I was always proud of that. In those days, you didn’t study for it. You just went in and took the test. I went in and took the test and they told me later I was in the top one percent in the whole country. I thought that was pretty nifty. In fact we had, I think, six or seven in our school. There were some smart kids in my class. I also got interested in short-wave radio and ham radio—I told that story so I won’t repeat any of that, but that’s when I got into that part of science. I studied hard and made good grades. Now we turn to college. Today it’s so diferent. Moms and dads help their kids and the schools help the kids igure out what is the right college for them. In those days, other than the general admonition that I should go to college, it was all on me to igure out what to do. Most of my friends were going to go to Mississippi State, so I applied to Mississippi State and I got accepted. I got a very small scholarship and I said, this is where I’m going to go. I didn’t apply to any other place except Georgia Tech. And I never heard back from them, and I wound up inding out somehow that my application had gotten mislaid or lost in the mail or something. So it was never even acted on at Georgia Tech. That was okay because my pals were all going to State. I wanted to be with my pals and I thought it was grand. Mississippi State is located in the northeast quadrant of Mississippi. It’s in the hill country, the lingering efects of the Ap- palachia mountain chain. State started out as an agricultural A&M college under the Morrill Act, which was passed in 1862 when President Lincoln was president, a land-grant college. It came along in the 1880s and grew slowly and it was always the cow college compared to Ole Miss, which was the school for the rich kids, and the cow college had all the rest of us. It specialized in agriculture, engineering and business. Those were the three things. All of my pals were either in business or engineering. That summer was exceedingly hot. We enrolled in August of ’63 and I got assigned to the Hightower dorm. Joe Turnage and I were roommates and my friend Junior was up on the next loor higher and he was with Sidney Craft. College began. My irst year I just studied like crazy, and the only extracurricular thing that I did was we went out for the debate team, Joe and I both did. The school found $600—that’s all; that was our entire budget—$600 to allow us to go to some regional tournaments in the South. We would drive all night so we wouldn’t have to spend money on a motel. We’d change into our debate clothes in the bathroom. It was me and Joe and a guy named Kirk Shaw, who was my mentor on the team, and a woman named Dot—Dorothy Leatherwood. Both of the latter were two years ahead of us. So, there were just four of us, plus our coach, who was only four years older than us. We all went in his car, and we did pretty well. Kirk and Dot did very well—I would say they won nearly 80 percent of their debates. They were great. Joe and I won about 55 percent of our debates that irst year. We started out poorly and wound up doing well at the end. That was a good start for us. Then the next year, Dot left, graduated a semester early, so I got paired up with Kirk Shaw, who was our star, and we went to many tournaments around the country. Our biggest one was in Tacoma, Washington. Once again we drove out in one car, and it took us three and a half weeks. It was a grand road trip. We came in second place out of 370 teams, something like

52 • ive that, me and Kirk. Kirk and I only lost one and won seven debates. We both got rated excellent, which was the highest you could get, and we were just blown away, we had done so well against all of these national teams. I think that was the moment when the newspapers in Mississippi started carrying stories about the debate team at Mississippi State. We were doing pretty well. Meanwhile, Danny Cupit had made the team, and then wound up being my roommate for most of the time I was at State. He and Joe Turnage were paired up, and they actually wound up overall having in their last year, our senior year, a better record than any of us had, but that second year, Kirk and I were the ones with the great record. In our third year, we went to the Harvard tournament. Kirk had graduated. We did not do well at the Harvard tournament. That was an embarrassment. We did okay. I think we won four and lost four, something like that. So that was not good. Then the guy that I was then paired with, Scott Wendelsdorf and I went down to the Miami tournament in Florida and we went undefeated, so that made up for the mediocre showing at Harvard. In our last year of debate, we didn’t have any big road trips. We went to many tournaments from Texas to Oklahoma, Florida, all through the South, Tennessee, and we had a pretty decent record. I think we won almost 80 percent, something like that. Debating had a big inluence on me. Two things caused me to want to go to law school. One was debating and the other was the Civil Rights Movement. At irst, I had wanted to be an engineer like my dad, and I was good at math and all of that; there was no problem with the math. I began to see that lawyers—President Kennedy was after the lawyers to do something for the Civil Rights Movement—that’s how the Lawyers’ Committee for Civil Rights came about—that lawyers could actually be a positive thing for helping the Civil Rights Movement and doing something good, as opposed to just being stodgy old bean counters. So that theme caused me to want to go to law school. Those two things, Civil Rights in advocacy and debating caused me to switch out of engineering and try to get into law school. LM: Given that you had a career as a trial attorney and as a judge, when you look back at yourself at age nineteen, twenty, twenty-one, developing these cases and successfully participating in these tournaments and travelling all over, do you see your evolution over that time period as you began to put successful advocacy together? WA: I can see the roots of it. For example, I was always able in court, once I became a lawyer, to think on

Me, Joe, Junior and Jack in ROTC, 1964. ive • 53 my feet. Some people are so afraid of that moment—stage fright—that they cannot process the information or actually answer the judge’s question, or if they’re examining the witness, they’re not even listening to what the witness says. They’re just going down a list of questions. I pretty quickly outgrew the stage fright part of being a trial attorney, and I believe the reason for that was that I had so much practice in debating, of standing up and making my point and listening to what the other side was saying, that I had been trained pretty well on that. So that was one thing. The other part of it is the analysis part, the analytics, in other words, being actually able to hear somebody’s argument, and take it apart and examine the pieces of it a nd igure out where the law is, or where the best way to attack is. You certainly learn that in debating. That part of it is the same in law. I think that was good training. I want to say, many people can go through debating and still come out being kind of disgusting lawyers, just debater-point lawyers, and I hope I was never like that. Kirk Shaw, who was a mentor to me, really taught me that one good, solid point, well-developed, is better than three or four quick glides over thin ice. And practical appeal to common sense, as opposed to debater points, as we sometimes called them. I think I was really beneitted by the people I learned from, and I was so lucky that I had good people to teach me, as opposed to slick debater points that you see on TV now and then. LM: This young teacher who was your coach, that was really quite remarkable, such a young man, and he devoted so much of his time. He can’t have been paid much, if anything, extra for having done all of that work. WA: I’m sure he was paid very little extra, because the whole budget for us was $600. His name was Brad Bishop. He’s still alive. Brad was from Alabama, and this was his irst teaching job. He had been a football player, I believe, not at the University of Alabama, but some other college in Alabama. He looked like a football player, but he had this infectious smile. He could not bring himself to criticize you without breaking into a smile. He could not help himself. It was always easy to take his criticisms. He stayed one year after Joe and I left, and then he went to Samford—not Stanford, but Samford University in Birmingham, where he got a law degree, and then they asked him to stay on and he eventually became I think the assistant dean, but he might have been the full dean, of the law school. He also became a municipal judge, and that’s the way he inished out his career. I think he’s s till at Samford. Every now and then we talk. He’s got about 400 acres of land. Like me, he loves going out to his land, but he’s got much more than I’ve ever accumulated. We compare notes every now and again on how to get rid of the buckbrush. LM: I understand that some of those tournaments that you went to were integrated tournaments, whereas you were in a segregated educational system. WA: We came through just as that was all changing. I think some of the tournaments that we went to probably were segregated. I don’t remember that for sure, but I dodeinitely remember the irst time that I was judged by—because the coaches would judge all the other—you couldn’t judge your own team. I remember, the coach that was judging us was a Black woman from one of the schools in Mississippi. And this was a debate tournament which actually took place in the state capitol, where we pretended that we were legislators. We would have to try to get bills—it was like a mock legislature. They also had these side events and so forth, and I was pretty proud of the fact that here I was on this cutting edge of social change. Three years earlier, that never would have happened. I think our group must have been the irst year—it might have been the second year—this wasmy freshman year—where Mississippi State attended integrated events. One of the reasons I remember that event with the Black lady so well was that afterwards, she came up to me and said a very nice thing. Usually the judges wouldn’t say anything special to you, but she went out of her way and she said, “Someday you’re going to be a United States senator.” [laughter] Wasn’t that nice of her? I’m still waiting for the draft. LM: There were many things she saw in you.

54 • ive Me and Joe, 1964

Me, Joe, Brad and Danny in the high desert on our way to Tacoma for a national debate tournament, 1965 WA: It was very nice of her. One of the events that had occurred at Mississippi State that I had nothing to do with, but which laid the groundwork for us attending integrated events, was in my last semester of high school, so it would have been spring of ’63, Mississippi State’s basketball team got invited to the NCAA tournament. Now, that was an integrated tournament. The school wanted to send its team there. It was an all-white team, of course, but they wanted to go, and they were perfectly willing to play against an integrated team. When the white power structure in the legislature and the board of trustees found out about it, however, they went to state court and tried to get injunctions against the coach and the president of the university from sending the team there. Without going into the details, I’ll just give you one sentence. It was a cloak-and-dagger thing where they were driving around with process servers trying to ind the right people to serve, and the people who were trying to get the team out of the state up to the NCAA tournament, I believe it was, they were dodg- ing the process servers. Anyway, they wound up getting the team up to the NCAA and played in the tournament, and they wound up playing against a team that I believe had four Black guys and one white guy, Loyola of Chicago, and Loyola beat Mississippi State and then went on to win the whole tournament. That was really a remarkable event now well recognized in Mississippi State history. In fact, my friend Danny Cupit gave a lot of money—he’s very rich now—I call him the second-richest unindicted lawyer in Mississippi. He’s as honest as the day is long. He gave a half a million dollars to Mississippi State, and part of it was to the basketball team, and part of it was he required that they put this wall up with a mosaic that has photographs and the story is told about that, the NCAA 1963 team that went up to that tournament. So it lives in history. But that paved the way for us to debate in integrated events. LM: In terms of the qualities that make for a good debater, you talked about thinking on your feet, the analytics and stage fright. Are there others? WA: Preparation for sure. We would think of what our arguments were and then we would test drive them in mock debates and ind out where the weaknesses were,and we’d go back and see if we could modify the argument just enough to meet that and keep going. And so you’d inere your arguments over and over again, and then you’d do your homework and be ready for what the other side was going to say, and keeping in mind that they’re going to have test-driven theirs, and you’ve got to know what their comeback is going to be, and then what your comeback to that comeback is. By the time I inished with the whole process that became second nature, to draw it out in a strategic decision tree of how the various arguments would unfold and what you were going to say in that event. Lawyers have got to do the same thing. That was a very important lesson that I learned in that. I learned it many times and practiced it with somebody who had thought one step ahead of me in law practice and that I hadn’t thought that far ahead. They got the better of me, because they had thought that far ahead. Eventually I learned always be one step ahead of them. [laughter] LM: I ind that really interesting. I’m sure a lot of people do. In addition to debate, you became involved in student YMCA activities. I know that was a large part. WA: It was; it was a huge part. The college was founded after the Civil War. The Student Y came along very shortly thereafter—the Young Men’s Christian Association. At the turn of the century and all the way up to about 1950, YMCAs and YWCAs were huge in America, and not just on campuses but in urban areas and lots of places. There were hundreds and hundreds of them. They had a big building in New York on Broadway, national headquarters. John D. Rockefeller in 1914 gave a nice grant to the YMCA and Mississippi State to build this nice building on campus. It had a post oice downstairs and on the main loor in the middle, it had a huge auditorium that would hold 400 people, and then a big lobby with a TV and then it had boardrooms and conference rooms, and paid staf. We had a paid director and a paid secretary.

56 • ive Upstairs there was what started out as an alumni quarters. There were twelve rooms. Every two rooms would share a common bath. Later, the upstairs got turned into dormitories and we lived there in my last two-and-a-half years. This building, because Rockefeller wanted it to last forever, he wanted everything built to double strength. So the walls were very thick. It was very sturdy, red and white building, and YMCA colors. It had programs going all the way back to 1914 or so. They had lyceums in the twenties where famous senators came and gave speeches at Mississippi State. Early on, everyone was a member of the campus Y. It functioned like the student union today. When I got there in ’63, still everyone was a member of the Y, but they had just started, that very year, the student union. By the time I left, it was no longer mandatory to be a member of the Y. By tradition, most people still were, so we still got some student funding, like ive dollars a year membership. The programs that were put on by the leadership of the Y—it was all run by the students with a faculty director. There were programs like some comments on current events. There would be a lot of programs on young marriages, because a lot of the grad students were married. There was this thing called “Hanging of the Green” at Christmas when this gigantic Christmas tree would be decorated. At least once a month, there was some YMCA, campus-wide program. I got elected to it as the vice president in my junior year, and then Danny and I got to move in upstairs in Room 210 of the YMCA, which became Ground Zero for all kinds of trouble-making on the campus. That was my junior year. At that point the faculty director was Cermette Clardy. He was from Woford College in South Carolina. He was handsome. He was not tall, he was kind of medium-height. Very it guy. He wore a collar. He was a Methodist, I believe. He kind of afe cted this Harvard look and he carried a pipe. He was always very philosophical and engaged. He was a cool guy. Charismatic. We all loved Cermette. Gradually, we began to see he was not just progressive , but a very liberal guy. His irst year guiding us, we didn’t do anything dramatic. We had some—I would call them just a slight extension of the programs that had already been going on at the Y. But then I got to be elected president for my senior year, and by this point Cermette had been there a year. I had been on the board one year. Now I was the president. This was now, to set it in place, it was 1966 to 1967, and that was again the summer that I had gone on the Meredith march and Tougaloo College. Have I told you the story about Martin Luther King yet? I don’t think I have. LM: No. WA: I’ll come back to that. I was the Y president, and we had a lot of good events, but the single biggest event was our standing up against the statewide speaker ban. That is a long story in itself, so I want to come to that in a minute and go back and pick up the Martin Luther King part, because it will take me ive minutes to tell that, and maybe we’ll take our break at that point. I had not ever seen Martin Luther King in person. I had seen him on TV. By this point in ’66, he was a part of history already. We knew that he would go down in the history books, and frankly, I think all of America thought he would be killed, that he would not live out his life. And you remember how violent that era was. President Kennedy had already been killed, and in fact Martin Luther King was killed in ’68, and then Bobby Kennedy also was killed in ’68. So I wanted to visit with him. In the 1950s, the college board of trustees had made the YMCA withdraw from the national organization because it was integrated. So our group couldn’t go as a member to the annual convention—that year it was in Chicago—to the national student meeting. Hundreds of YMCAs and campuses would go from all over America. Cermette got me in as an oicer in the Southern YMCA regional group, and then wearing that hat, I got invited to the Chicago annual meeting, which was in August of 1966. I’d never been on a commercial airplane before. I lew out of Jackson on an old DC3. You’d go up at a 22 de gree angle to get to your seat. So I lew up to Chicago and got to—it was at a school that w as over there, some kind of technical

ive • 57 school. The initials were ITT—I think it was called Illinois Institute for Technology, near Wrigley Field, although we didn’t go to Wrigley Field. I had nothing to do with organizing it, but it was a great program. They took us out to the slums in Chicago and it was such an eye-opening thing to me, to see the horrible conditions that people lived in, and the horrible schools that kids went to. And the rats and the broken glass. I had seen some of the poverty in Mississippi, but by comparison, what you saw in Chicago was many times worse because of all of the urban blight problems that go with it. So the whole emphasis of this meeting was on exploring Chicago. Mayor Daley was the mayor then, the original Mayor Daley. He had said things like, “There are no slums in Chicago.” That was one of his famous lies. “There are no slums in Chicago.” Actually, he said no ghettoes—“There are no ghettoes in Chicago.” Mayor Daley was confronted by Martin Luther King, Jr. Martin Luther King, Jr., had come to Chica- go, his irst project out of the South. He’d gone up to Chicago to protes t the housing restrictions. This was before the Fair Housing Act. He had gone up there to lead marches. They would lead marches into Gage Park. They were leaving out of churches in the South Side of Chicago and they would march there. And the viciousness of the white people along the way was the same as what I’d seen on TV at Little Rock, and that was ten years earlier. But those people in Chicago—Martin Luther King actually said it himself. He said he’d been through Birmingham and everything else and he’d never seen as much viciousness as he had seen in Chicago. It was a pretty awful time. I was halfway through this week-long meeting, and one of the organizers came up to me and my roommate, a white guy from Cleveland. “Would you like to go down to a church on the South Side tonight and hear Martin Luther King give a speech?” My initial reactionwhen I just thought about it was, “My God, I can’t get involved with something like that. I could get arrested.” But I didn’t say that. I was on the verge of saying that, and then something overcame me and I said, “Yes, I think I’ll do that. I’ll go along with that.” I said, “Are you going to be there too?” He said, “Yes, I’ll be there.” I igured, okay, this guy knows what he’s doing. We’ll just tag along. He’ll protect us from all that kind of problems. My roommate and I went, the three of us, just three of us, all white guys, that evening, after dinner we went down on the Elevated, they call it. In Chicago they call the subway the Elevated. We went down to the South Side and we got of, and there were hundreds, it looked like, moving in the same direction. The Liberty Baptist Church was where everyone was headed. I’ll never forget this. There was this little boy or girl, African American kid who was maybe three years old at most, and he saw—the three of us were the only white people anywhere on that platform. This happened on the platform after we got of the train. Everyone else was Black. So this kid sees us. This was when Black Power was the slogan of the hour. He comes up to me and he can only reach up to about here [indicating] on my thighs. He just starts beating on me like this [demonstrating]. What was I supposed to do? I didn’t do anything, I just kind of let him beat on me and smiled. His mom or dad was so embarrassed. She came running over and grabbed the kid, gave him a whack on the butt and apologized. I said “That’s ine; it’s okay.” It said something about what race attitudes of Blacks toward—what was that little kid hearing in his life that would have caused him to want to attack the irst white guy he saw? Bless his heart, I hope he outgrew it. I’m sure he did. We then all wound up in the church. I’m going to say there were 1,500 people in that church. A modern church. It was a huge, a very big bottom and then it had a balcony behind us. We got there early enough that we were about two-thirds of the way back from the front in the main seating area. There was one-third of the group still behind us and there was this big balcony over us. We had pretty good seats, three of us white guys. I was kind of looking around. Are there any other white people? No, there was a white newspaper guy every now and then who would show up. There was some

58 • ive handler up front. I’m going to say 99 out of 100 of those people were Black. Everyone was nice to us. We felt welcomed in that room. It was a beautiful church. So then—I believe his name was James Bevel—came out to kind of work up the crowd and did a great job. And I began to wonder, because it went on and on for over an hour—I remember when we got there, the evening light in the summer time was still on the windows of the church. It was a nice, pretty ambiance in the whole room. After a while, the sun went down and it was dark outside, and so all we had were the interior lights, and still Martin Luther King had not shown up. I was beginning to think, okay, we’re not going to get to see the great man tonight. Bevel was up there getting the crowd going and there was some singing. There was this little hub- bub over on the left side near the pastor’s entrance, and suddenly there was Martin Luther King himself standing before us. He was not a tall guy. He was built like a ire plug, very strong, sturdy look, Me at MSU, 1965 broad shoulders, but not tall. I would say 5’9” maybe. But he looked imposing. And his voice was deinitely imposing. He came out. There was no introduction. Normally peopl e would say, “I give you Dr. Martin Luther King.” No, no one did that. He just shows up and there he is. Everyone’s expected to know who he was, and everyone did know. So the room, 1,500 people came to complete silence. I looked around. Every eye was on him. Everyone in that room wanted to know what he had to say. He began very matter-of-factly. He said, “I’ve just returned from meeting with Mayor Daley”—Rich- ard Daley—“and I want to tell you where the negotiations stand.” He proceeded to say, “We made progress today on the jobs issue and the dressing room issue,” whatever the issues were. I know jobs was one of the issues. He would report on what the progress that had been made that day was, and what the other side’s position was. Then he said, “But this is not good enough. We’ve got to continue on. We’re making progress. These marches are helping. And we’re going to march again tomorrow. The march will start here at this church and go to”—and this part I’m not sure of, whether it was Gage Park or wherever. All of this was said in a matter-of-fact way, slowly, but distinctly. It was an amazing thing. Here were 1,500 people and he was letting everyone in on what the negotiating strategy was and exactly where it all stood. Pretty amazing, really. I want to say this: I believed everything he said was sincere, that he really meant it that way, that he meant to have everyone know exactly where the negotiations stood. I don’t think he was misleading anybody or just putting up a show. I think he wanted to—that was his way of operating—he wanted to share that with the people who were going to be marching the next day. These marches had been going on a long time that summer, and people were getting weary. The marchers were getting weary—how many times do they haveto go through this? And he addressed that and he—I can remember snatches of it now. The essence of it was: Yes, this is a long struggle but justice is on our side and God is on our side. We were in a church. He was a pastor by profession. God is on our

ive • 59 Playing at the YMCA, 1966-7

side. Justice is on our side. History is on our side. We must persevere. It was a very moving event for me, and then it was over and everyone peacefully went out. I went back to the conference and went back to the programs that we had going there. The very next day, they did a march. Sometime that summer, he and Mayor Daley did reach an agreement and it brought all of those marches to an end. Some compromise was reached. So that was the time that I got to see and hear Martin Luther King give a speech. It made a big impression on me. LM: That was a very diferent setting as well for a young man who grew up in Jackson, Mississippi, to be in this very urban environment in Chicago. WA: I remember thinking in that slum stuf about how—the rats, the broken glass, the dirt; nothing was clean—just having the thought that I could not go on if I were forced to live in that. I would just as soon be dead. That nothing would be worth having to live through that kind of awful existence. That made a big impression on me too. At least in the rural part of the world, there’s the cleanliness of the wilderness but there was none of that in Chicago. LM: Open space, grass. Opportunity to grow your own food. WA: A tree. Mississippi had some terrible shacks, but I’m telling you I would rather have lived in a share- cropper’s shack in the rural Delta and been able to look out an d see the cotton ields and the creek go by than to live in the slums that I saw in Chicago. Both were terrible—but one was worse than the other. LM: Well, maybe we stop for today and then we pick back up next time. WA: Okay. Let’s do that.

60 • ive six

The Speaker Ban, Aaron Henry, President of the Mississippi NAACP Senior year; the YMCA and the Young Democrat boards Acceptance to Harvard Law School Mandate For Change: organizing campaign for student body president Summer job working with analog computers Music; anti-war protests MacTavish’s Kitchens in Oban, Scotland and traveling in Europe Marriage to Suzan, August 31, 1968 Mentors

LM: Tell us about the Speaker Ban. WA: As Mississippi became more and more of a closed society as a result of putting up its legal frame- work around the segregation system, in essence the board of trustees for all of the colleges in Mississippi adopted a rule that no “controversial” speaker could come onto a campus to give a speech. Every outside speaker had to have advance permission to come on the campus, the permission to be granted only by the president of the university, subject to being overruled by the board of trustees for all of the colleges in Mississippi. The idea behind it was to keep out controversial ideas, and by controversial that meant anything that was contrary to or critical to the white power system in place then. That’s what the speaker ban was. Now, how did I get involved with this? In 1966, ’67, that school year I was president of the campus YMCA, and I have already described what the campus YMCA was. One of the programs that we decided we would pursue that year—and when I say “we,” I meant the student board, which also had some faculty advisors; we had a board of about a dozen students—and we decided that what the campus needed was a Lyceum-type program where we would bring in outside speakers, and they would discuss the big issue of the day, mainly white supremacy and desegregation, and where Mississippi was headed in terms of race relations. We submitted to the university president a list of several speakers that we wanted to have come and address the student body. Remember that, as I said earlier, we had a very nice auditorium at the YMCA. It would hold 400 people comfortably. It had a little stage up there and big windows on each side. The ceiling was maybe twenty feet high, and really a marvelous place for holding exactly the kind of meetings that we wanted to have, where the big issues of the day would be discussed. This was with some precedent. Back in the 1920s, the YMCA had held Lyceums, for example, where senators from the United States Senate had been invited to come down, and they did, and gave speeches on the issues of the day. This was not a brand-new thing. So we submitted the names. One of the names was Aaron Henry. Aaron Henry was the president of the state NAACP, and he was in Clarksdale. He was a pharmacist, a very home-grown person, born and raised in Mississippi. But he was controversial because the NAACP was controversial, but nevertheless, we thought he would be a great person to come and tell us the NAACP point of view, and we wanted to hear it, so we submitted his name. I’ll come back to him in just a moment, but some of the other names we submitted were George

ive • 61 Wallace, Senator Ted Kennedy and Peter Bertocci, who was there to discuss how a young mother should take care of a young infant, because we did have a problem of young women having kids before they really should have, and we saw as part of our job traditionally had been to have little seminars like that. Another was Hodding Carter, III, then the managing editor of the Delta Democrat Times over in Green- ville. He was a moderate progressive fellow. So to the university’s credit, they let us invite him, but he was a white guy and he came and gave a great speech to a packed audience and was pretty critical of Mississippi and where it was headed. He, by the way, went on to be the chief spokesperson for the State Department in Jimmy Carter’s administration. The rest of them were denied. We were not allowed to bring those people in. Let’s skip right ahead to Aaron Henry. We knew that he would come. Danny was working with him in the Young Democrats, and we knew that he would come if the university would allow him to come. But the university was saying no. He’s too controversial. We can’t allow him on campus to give a speech. So we were really outraged over this, and we decided to write a protest. We wrote this nice protest, and every one of the members of the YMCA board, all students of all stripes—and some of them were pretty conservative, I must say, but they at least believed in the idea of free speech, and what’s wrong with talking, and if you can’t have academic freedom at a university, where else are you ever going to have it? So even the conservatives on our board thought that it was wrong for the university to deny Aaron Henry the right to come and speak. Also, our faculty advisory board, with some dissents, the majority of them wrote an even better protest, and sent it on, and these got published in the local newspaper, the campus newspaper, and it was a huge controversy. Meanwhile, down in Jackson, the Clarion Ledger, which was a very racist newspaper then, there was a guy named Tom Ethridge who was following this. He had a column that was extremely racist and defensive of the status quo, the “Mississippi Way of Life,” and so he blasted the student YMCA as disrespectful to the president of the university. Aaron Henry became a cause célèbre. Meanwhile, Danny and I were living in Room 210 of the YMCA on the second loor. He was the president of the Young Democrats. I was also an oicer—I think I was the secretary of the Young Democrats. We didn’t have a very big group. There were maybe seven or eight of us. Danny was very active in the statewide organization whereas I was not. I was just on the local campus. At night in bed in the darkness, we talked about the speaker ban. He came up with a great idea. His idea was the Young Democrats would also invite Aaron Henry to speak, get turned down, and then go to court to have the ban declared unconstitutional. Think about this for a minute. Neither of us, I don’t think, had ever been in a courtroom, state or federal. The idea of even going to court was a scary proposition for us. All we had to go on was it just had to be unconstitutional for the state not to allow a local guy like Aaron Henry to come and give a peaceful speech at a public campus. We just knew it had to be unconstitutional, and Danny had met a lawyer in Greenville through the Young Democrats who was willing to represent us pro bono in court, so we had that option. I need to back up and say that it was very clear-cut that the YMCA would never have been able to get permission from our faculty advisors to bring a lawsuit on behalf of the YMCA. The YMCA would allow our auditorium to be used for the Young Democrats. It didn’t matter to us who was the sponsor of the event. We were happy to lend the auditorium. But the YMCA was not going to bring a lawsuit. We had too much to lose, but the Young Democrats had nothing to lose. We just had seven or eight members, and there was no building to lose, nothing like that. Danny wrote a memo, which I still have, proposing that the four oicers of the Young Democrats meet over in the cafeteria at 7:30 one morning to discuss whether or not to bring a lawsuit. That was me, Frank Whittington, Joe Turnage and Danny. We did meet and Danny and I eventually were of the view that we

62 • six should bring the lawsuit, and everyone was of the view that it had to be unconstitutional, but it was not so clear at that time that we should actually bring a lawsuit. We consulted our parents. They could get in trouble if we brought a lawsuit. Well, my mom said it was okay, and as she always did with things like this, said, “Just be careful.” There was no way she was going to lose her job, since she worked for the Catholic Hospital. Danny’s dad worked for the Clarion Ledger, the very newspaper that was one of the most racist papers in the state. He worked in a blue-collar job in the printing department. His job might’ve been at risk. To his credit, he told Danny, he said, “You do what’s right. Don’t worry about my job.” Frank Whittington’s dad said, “Absolutely not. I’ll lose business if you do this.” He had some small business going in Jackson. So Frank had to bow out. And I cannot now re- construct what Joe’s view was on whether to bring the lawsuit. Danny and I eventually were willing to go ahead with the lawsuit. So Danny and I decided we would go ahead with the lawsuit, but we decided irst we should meet with the university president and be decent. We shouldn’t just spring a lawsuit on them. We should go over there and say, “We’re going to bring a lawsuit and we want to explain why. We don’t want there to be any bad will about this.” So to set that up, I wrote a letter to the university president and explained my views. One of the reasons I wrote the letter was to make it very clear this lawsuit was going to be on behalf of the Young Democrats and not the YMCA, because even at that young age, I had enough sense to realize that they were going to take reprisals, and I wanted the reprisals to go against the Young Democrats and not against the YMCA. That was a nice letter and, in fact, because I wrote that letter, I have gotten more credit in this whole story than I deserve. It’s a minor thing in Mississippi history. There was a law review article or an historical journal article that describes this whole thing, and my letter happened to be the centerpiece of this story, but in truth, Danny Cupit was the centerpiece of this story, not me. Nevertheless, I did write the letter ahead of our meeting. We got the meeting and Danny and I went over to explain to President Wil- liam Giles why we were going to bring this lawsuit. We just felt it was wrong. Well, it was an interesting meeting. It was just the three of us, and President Giles agreed with us. He said, you know, this is wrong. We should be allowed to have a guy like Aaron Henry come and speak on our campus. And he said, I agree with you except my hands are tied. The statewide board of trustees just will not allow this Black guy to come. No Black guy had ever spoken—or woman—had ever spoken on a white campus. Can you believe that? That was true then. I’ll repeat it. No Black man or woman had ever given a speech on a traditionally white campus in Mississippi. The board of trustees was not about to allow this. Now, I could get of into a whole story about some of the people on the board of trustees. One of them was M. M. Roberts, and he had quite a history of racist comments. Now, back to the Giles meeting, we were sitting there in his oice. He agreed with us that it was wrong, but his hands were tied, and he basically said, “You’ve got to do what you’ve got to do.” By the way, he made me feel so bad, Danny too, because both of us were on the debate team and our team was doing very well and Giles always put nice comments in the newspaper about us. He started the meeting of by complimenting us on the nice victories that we had gotten for the university, and they just made me feel bad for causing trouble for him. Anyway, we had the meeting. We left it at you’ve got to do what you’ve got to do. We went back and started communications to get the lawsuit going. But before anything ever got close to being iled, maybe two days after our meeting with Giles, we got w ord from him that he had gotten the board to reverse themselves. He urged the board of trustees to reverse their position on account of the threat of the lawsuit, and he showed them the letter that I had written, and sure enough they did reverse themselves and said Aaron Henry can come. So we didn’t need the lawsuit.

six • 63 All of this got ventilated in the local campus paper but even more so in the Jackson newspapers by this guy Tom Ethridge, who had this virulent column, and he must have attacked us ive or six times, and his basic message was, who are these Young Democrats and the YMCA to question the wisdom and the judgment of the president of the university? They ought to be up there for an education and not to cause trouble, and bringing lawsuits against the university is just beyond the pale, and what kind of students would do that, and somebody should start an investigation. That was one of his themes—somebody should start an investigation. Later on he said there is going to be an investigation. Keep in mind now that by this point the program is going to be in the YMCA auditorium, but the Young Democrats were the sponsors. The night came when Aaron Henry gave the speech. It was January 1967. He arrived and we go to the YMCA auditorium, and there are just hundreds of people looding in fromall over the campus. This thing had gotten so much publicity that hundreds wanted in. We rarely illed up that auditorium. The Hodding Carter speech came close. I would say it was 90 percent full then. For Aaron Henry, thirty minutes before speech time, the auditorium was packed with people still looding in in huge numbers. On the spur of the moment we decided to move it across the street to Lee Hall, where the auditorium would hold 1,500 people instead of just 400. I got up and in true 1967 student style, waved my arms and said, “We’re moving across the street. Everyone, move across the street to Lee Hall.” Everybody got the message and that huge crowd started lowing out of the Y and then across Univer- sity Drive and then over into Lee Hall, one of the old, early, beautiful buildings on campus, and into its big auditorium. I have a very distinct memory that as I was walking with Aaron Henry and Danny—we were just being friendly escorts in all the confusion, to make sure he got to the right place. This was the irst time it dawned on me—this is how naïve I was—I thought, “Somebody could pull a gun. Somebody could try to kill him. Somebody could try to beat him up and in this big mob of people, what can we do about that?” We had made zero plans for any security for him personally. I remember thinking how very unwisely that we had not given consideration to his safety at that moment. Now, as it turned out, none of that happened. It was a grand event all around. But I did worry about it at the moment. We got over to the auditorium, as our Young Democrat president, Danny would do the introduction. Up on the stage was Danny and Aaron Henry. Joe Turnage was up there as the vice president. I remember where I was. I was in the audience over on the left side. There were 750 to 800 people, so there were about twice as many as we could have it into th e Y auditorium. Danny got up and made the introduction and Henry got polite applause. His speech was about the Voting Rights Act of 1965. This was January of ’67, about eighteen months after the Voting Rights Act had been passed. We were just beginning to learn the irst hints of how that law was actually going to play out. His speech was about the need for the Voting Rights Act and what impact that would have on Missis- sippi. It did, of course, turn out to have a huge efect on Mississippi elections, and that’s what he predicted in his speech. Then there was a question-and-answer period where he took questions from the audience. I remember he was asked—he got a big laugh out of this. He was asked the question, “What do you think about intermarriage, racial intermarriage.” This was an all-white audience. He said, “Well, I want to put that one to bed right now.” That was a great line. [laughter] The whole audience erupted in laughter. I think his answer added something like, “You white guys need to realize we’re not interested in your white women. We’re interested in the right to vote. We’re interested in a job. Intermarriage has all been blown out of proportion.” He had an answer that put that audience at rest. All around, it was very-well received. At the very end, something else happened that we had not thought about. A group of teachers—on the more progressive side—had stationed themselves in the center of the irst row, and at the end when it was timeor fapplause, they stood to invite a standing ova-

64 • six tion. Then slowly everyone in the entire audience did the same. He got a standing ovation at the end that would not have occurred if not for the courage of these teachers—one of them was Sam Dudley, the professor in charge of the speech department. He was the irst to stand. Being naïve, I hadn’t thought that far ahead about what would happen at the end of the speech. These professors had thought about that. That took a lot of courage, because it was so easy then to ire a professor for something like that. In fact, this guy Ethridge was already regularly writing about and identifying by name the professors there—one name was Professor John Davis—who was a liberal and critical of the system. Ethridge argued he should be ired; he doesn’t belong at Mississippi State. In that atmosphere, it was easy to los e your job. For those faculty members to have precipitated a standing ovation took some courage, and good for them. The speech turned out to be a huge success all the way around. There was absolutely no violence. There wasn’t even any booing. It was a respectful showing by the students and the faculty, and I think everyone in that room realized that it was a history-making moment, because this was the irst time any Black person had ever given a speech on a traditionally white campus, and it went down great. We all felt proud about it afterwards. The reprisals came, however. The speech occurred in January of ’67 and Danny and I were going to graduate in May of ’67. By this point, the YMCA was viewed by Ethridge and the right as the hotbed of communism. The dean of students came over to the Y in about April and told us at a board meeting, “We are going to close down the dormitory. We’ll use it for faculty oices. You’re not going to be able to have any more speakers. That’s all going to go over to the new student union. And no longer will the students be allowed to give you membership fees”—in other words, if you sign up, you’re not going to be able to use the auspices of the university to raise money through membership drives and fees and such. You’re going to be on your own. This was really like a triple body blow. We protested, for what good it did, but they just waited us out. Danny and I left in late May 1967, and I didn’t even go to the graduation ceremony because I was so mad about it. I got my diploma in the mail. That was the way they retaliated, and they just basically closed down the Y. The Y program dwindled away in about three years after that, maybe four, and then every YMCA function got absorbed into something else. Now, that nice old building is still there. I was just there last year. It’s underutilized. They never really did need those rooms upstairs for faculty space. That was just a pretext. It’s now a monument to a bygone era. It’s a shame what they did to us. That’s my single greatest, still raw spot for my feelings about Mississippi and Mississippi State and how they treated the YMCA. I should say one sentence. I went back to check. There was a stipulation in an agreement with John D. Rockefeller when he gave the money that that building would forever be used for student YMCA purposes. When they took it over for faculty space that was totally wrong. But details like that didn’t matter to the university. So that’s the speaker ban, at least how it played out when I was there. Danny went on to law school at Ole Miss, and the speaker ban continued to be a problem. They still wouldn’t let speakers come. So, inally he was a plaintif in a real lawsuit in federal court, and it was declared unconstitutional, and so Danny had an even more important role to play in the story on the speaker ban. Danny deserves all the credit for driving a stake into the heart of the speaker ban. LM: And the two of you went to law school out of the whole group. WA: Right. Well, yes, meaning the group at Mississippi State. My debate coach eventually went to law school, Brad Bishop, and the guy who was my understudy, Scott Wendelsdorf, went to law school at Uni- versity of Kentucky, and he’s now the federal public defender in Louisville. So we weren’t the only ones who went to law school. And then Kirk Shaw, the guy who was my mentor, went to law school and had a labor law practice in Mobile. So there we are.

six • 65 LM: Was there any follow up communication with Aaron Henry that you’re aware of after the speech that he gave? WA: I’m sure we thanked him. I don’t—otherwise I would have to be guessing. I don’t know. LM: That was quite a lot going on for your senior year. And at some point during that senior year, you must have applied to law school while this was going on. WA: Yes, right, I did all of that. By the start of that year, I had already decided I was going to go to law school. By February and March of ’67, I was waiting to hear back from various law schools. I had made my mind up that I did not want to go to Ole Miss. I did apply to Ole Miss and got accepted, but unlike when I went to college, where I really only applied to Mississippi State, I said this time I’m going to see if I can go out of state. I applied to Harvard and Yale, Vanderbilt, Virgin ia, Ole Miss—I think those ive. And I got accepted everywhere except at Yale. [laughter] I was thrilled when I got into Harvard and I accepted immediately. That’s how I got into Harvard. I had decent LSAT [Law School Admission Test] scores but they weren’t in the top one percent. I had good grades at State. But it was not the strongest application. Honestly, I think I got into Harvard on account of geographic diversity. I think I was only one of two from Mississippi who applied. So there was a little luck in there. In those days, Harvard did have an express policy of trying to have at least one person from each state. I eventually learned that. LM: We’ll talk more about Harvard, but since we’re just touching on it now, at that point did you have an idea in your mind what it would be like to go to Harvard? WA: Yes, because we had done a debate tournament up there. LM: Oh, you had been there when you went to Cambridge, right. WA: That’s why I wanted to go there. I said, this is a world diferent than anything I was used to. All those nice yards, the ivy-covered walls and the buildings that went back hundreds of years. I was just completely taken by that. Also, I was taken on the debating trip—this was in 1966—by the campus, the students there, Harvard Square. Even the of-campus that was near the campus, I s aid, this is great! So diferent from anything that I was used to, the center of intellectual thought. I really thought I would like to be a part of this. I was very drawn to that whenever we were there debating. I wrote in my journal that I would really like to go to law school at Harvard. And eventually I did. LM: Do you remember the day that your acceptance came? WA: I do. I was thrilled, because I was on a hold list for a while. So I said, “That means that I am an ify candidate.” And then a couple of weeks later I got a letter saying that I had been accepted. Yes, I was very happy. LM: That’s a huge, huge accomplishment. WA: You know, looking back on it, I agree. The way I viewed it at the time was it would be great if it happens, but I had already been accepted at Virginia and I was going to go to Virginia if I didn’t get into Harvard. I had some pretty good backup opportunities. The advantage in those days of going to Virginia or Vander- bilt—the Mississippi law practice was a fraternity that was almost exclusively Ole Miss law-school grads. They would forgive someone for going to Virginia, but they would not forgive someone for going to Harvard. LM: That would have been being a traitor. WA: Correct— you didn’t want to go to Harvard unless you were willing to take that kind of bullshit. And I was planning on coming back and practicing, and I did come back later and practice in Jackson. So

66 • six Harvard was a negative in that respect, but it was the kind of negative where I said, well, this is a badge of honor anyway, so I’m willing to take the fallout. LM: That was a very eventful time. Can you describe Mandate for Change? WA: Mandate for Change was an on-campus political thing that we came up with, also hatched in Room 210 at the YMCA, where we decided to run somebody for student body president. The way it had worked on the campus was that there were two big fraternities plus some lessor ones. I was never in a fraternity, but these two big fraternities had a gentleman’s agreement to swap out the presidency each year, they would all vote for each other’s—and alternative years—their candidate. And so they just kind of swapped it out year after year after year. Well, there were a number of issues that we saw. One of them was the speaker ban, but another one was women were increasingly—about ten percent of the popula- tion then—and they were very strict on what they had to wear, like a dress code and how late they could be out, things that today even the most conservative parent would say that’s just too strict. That was another issue that we wanted to put to the students. There were two or three other issues. We decided that we would run a candidate and break up this conspiracy between the two fraternities and have our own candidate in there. Joe Turnage was the one that we decided on after we had gotten ourselves organized, and then Scott Wendelsdorf went on the radio the irst night you could campaign, and we had this great radio broadcast. We had gone around to every dorm and said, “Listen to the radio at ten o’clock.” So on the radio comes Scott. “Students of Mississippi State, the time for change is at hand.” Then he goes on to explain the whole thing. We called ourselves Mandate for Change. It turned out that that’s what Eisenhower used in 1952 for his campaign slogan, but we didn’t know that. We just happened to come up with the same one. We went around and we raised “Pennies for Progress.” We had all kinds of events and to make a long story short, it was a three-way race, the fraternity candidate and then there was Joe, our candidate, and then there was this other guy who was a kind of moderate candidate, and we got the most votes. We got the plurality. There had to be a runof. For example, we got about 42 percent of the vote, and then the other vote was split kind of evenly between the other two. The good news was we eliminated the fraternity guy. He got the least amount of votes, so the runof was between Joe and the moderate, and then the moderate wound up winning it. But we felt pretty good about having shaken up the system and busted up that fraternity deal, and the guy who was a moderate turned out to be a pretty decent student body candidate after all. This was at the end of our junior year, so this was in the spring of ’66 when we did that. LM: It was a lot of organizing and thinking things through and planning that you and your fellow students in your group did. WA: Yes, that’s true. And ground zero for that was our room. Room 210 in the student YMCA, that’s the place where all these plans were hatched. And that’s emblematic of why they closed down the dorm after we left, because they said we don’t want a hotbed up there. Put everybody back in the normal dorms. We’ll keep an eye on them. The student Y is too controversial. It was really a glorious time, looking back on it. We had this great setup in the Y dorm. We shared a bath with one other room and there were only twelve rooms up there. It was right in the center of campus. There were big trees all around us. You could see everything from the balcony up front. It was easy for our friends to come up to our room. It was a marvelous situation, and we appreciated that at the time. We were the center of all progressive thought. Anyway, the reprisals ended all of that. LM: One of your friends mentioned that you had a job working on a state-of-the-art computer during college with punch cards. WA: I’m going to tell you something. That was a waste of money from the government. That was be-

six • 67 tween my sophomore and junior year, when I decided that I would—that was the summer of ’65—that I would go to law school and I was going to go into mathematics, but I had already gotten this job through the engineering department as a summer job, and it was with an alog computers, which are diferent from the digital computers we’re all used to today. But back then, analog computers used capacitors and other electronic components to simulate real-life things, like a capacitor could discharge its voltage at a certain exponential rate, and by putting the charge on there to begin with and then measuring the voltages, you could simulate diferent real-life phenomenon. That was a lot of fun to try to mimic some real-life phenomenon by plugging in the right capacitors and other electronic components like inductors—but I must say, other than just having the fun of learning, the project was a failure, and I just wasted the government’s money. LM: A lot of events at that time were energized by music in diferent ways. Peter, Paul and Mary was one group. There were a lot of diferent groups that brought people together. I understand that you went to see Peter, Paul and Mary with Danny Cupit and Sidney Craft when they were in Birmingham. WA: We did. LM: And Bob Dylan, of course, was big at that time. How did you irst become exposed to some of these groups? WA: I remember sometime in the early sixties listening to the radio, and for the irst time I heard Peter, Paul and Mary. It was so diferent from what we were used to hearing. By the way, I love country music. I love Johnny Cash. I love all of that. But folk music was such a breath of fresh air, and so diferent and so catchy, and as I listened to it, I could hear a message in there. I think they’re telling us something. Times are a’changing or the answer is blowing in the wind. What are they trying to tell us? This was amazing. It was so new. Again, as I mentioned, this is what it was like in Cambridge and Harvard Square, and young people there—Greenwich Village was the same thing. We had gone there on that same trip and you could just sense the movement of attitudes and the revolt against the establishment coming out of those places and that progressive attitude. A little bit like what Bernie Sanders is today, but three times as cool. So anyway, I was listening to this on the radio and it just completely seized me as a form of music. Pe- ter, Paul and Mary became one of my favorites, but even more was Joan Baez and Bob Dylan. Danny had this little mono player, not even a stereo, a mono portable player. We played Bob Dylan and Joan Baez all the time, and occasionally Peter, Paul and Mary, but Joan Baez and Bob Dylan, we got every one of their albums. We religiously knew the play list and we even practiced—I had a guitar and he had a guitar—we would practice trying to see if we could play those tunes on the guitar. I was very much into that. Peter, Paul and Mary came to Birmingham. And they wouldn’t come unless it was an integrated audience. Birmingham agreed that they would allow an integrated audience, so they agreed to come. We drove over to the program because we wanted to see them. We drove over in my Volkswagen and we stayed in a hotel that I believe was called the Redmond Hotel, a very low-rent place. The only reason I remember that is it was in my diary. We got to sit in okay seats, but then Sidney found some great seats up front at the intermission. In the second half we were very close to the stage and were blown away by it. So Peter, Paul and Mary were grand. LM: Did the Vietnam War protests come up at that time? WA: Not quite then. I would say the war protests were post-1965. At Mississippi State, there was not any protesting, but elsewhere it began about ’66. It was December ’65 or so that President Johnson decided to send in 100,000 more troops. That was a huge step. Instead of the idea that we were going to be bringing

68 • six the boys home by Christmas, it was the exact opposite. We were making these ever-increasing commit- ments. By the time I went to Harvard, which was September ’67, het anti-war movement was deinitely in full swing. LM: You graduated in May of ’67 without walking at graduation, but getting your diploma in the mail, and then what did you do that summer between college and law school? You were getting ready to go of to Cambridge. WA: This was one of my best summers. I went to Scotland and got a job as a waiter at MacTavish’s Kitchens in Oban, Scotland, in the western Highlands, right there on the Irish Sea. In the daytime I was a waiter, and in the nighttime I was a folk singer down at the pub. Now, let me tell you the story of how I got that job. After I knew I was going to go to Harvard, and I was trying to igure out what I am going to do for the summer, by this point I knew that many students around the country had traveled to Europe and I had never really travelled anywhere, really, to speak of, and I said I want to go to Europe. This will be my only chance to do it between college and law school. I couldn’t do it unless I had a job to help with expenses. I had to ind some way to work over there in order to pay for the trip. So I wrote—this is just how crazy I was. I wrote a letter out of the blue to Edinburgh University and asked them to help me get a job. I said, I know I’m not even in your school, but I know you must have an oice that helps people get jobs. Would ouy tag me along and maybe help me get a job along with your other students? Amazingly, they wrote back and said yes, sure, we’ll do that. So there was my name and resume sitting over there in Edinburgh, and very quickly, like a week later, I got a letter from MacTavish’s Kitchens in Oban, Scotland, saying we reviewed your resume at Edinburgh University, and we would like to hire you, and here’s the job. They said daytime waiter, nighttime folk singer. The idea was that all of the wait staf would perform at night. You had to play some instrument and get up there and sing. So I wrote back and I said, well, I don’t want to—I’ve possibly committed resume fraud. Yes, I can play the guitar, but I am not a stage performer. I feel like you need a stage performer. And so I said I’d better not take your job, but thank you for the ofer. Well, they wrote back—and by the way, this is all by mail, irst-class air, and it went pretty quickly. I would say within a week I had a letter back, and they said, no, you’ll be ine. Please don’t worry about that. None of these people are professionals. They’re all just waiters. But the idea is that we’ll have fun. You’ll see how it works. Just come on. So I said, okay, I’m coming. Here I come. I went on Icelandic Air- lines—I irst got to New York and then I went on Icelandic—it might have been New Jersey—wherever they lew out of. And then landed in Iceland. That’s why it was called Icelandic, because it had to stop and refuel in Iceland. And then it landed in Luxembourg. I remember when I got of the airplane we had a couple of hours of delay while we were waiting to get refueled. It was late at night, but there was enough light because it was that time of year in the summer up in Iceland. There were these kids—I thought they were local kids. They were out playing with this thing that was circular and they were throwing it back and forth. It was a Frisbee, but I had never seen a Frisbee in my life. So I said, my God, this would be such a hit in the United States. This thing is great. Then I realized these were kids from the airplane. These weren’t local kids. These were kids on our airplane out there, and the toy wasn’t an Icelandic thing, it was a California deal. These kids were from California, throwing a Frisbee. That’s how I irst learnedabout Frisbees. This is how naïve I was. I’d never seen a Frisbee before. We landed in Luxembourg, and I got my guitar. I had a little dufel bag plus my guitar case. Then I crossed the channel on a train, got to London, went to a diferent train station, got on another train, one that went to Glasgow, and then another train from there all the way to Oban. I didn’t have any place

six • 69 to sleep other than just sitting up and occasionally catching an hour of sleep or so on the train. In my car were a bunch of young people, on the leg from London to Glasgow. We had a great time. They had a guitar. We played guitars all the way up on the train. That was a fun group. I was out to see what the world was like, and right away I meet these people and we’re playing the guitar together. The train arrived at ten o’clock in the morning in Oban. I went out and on the streets in Oban, there were people dressed in kilts playing bagpipes, on almost every street corner. I said, my God, this is story- book. This is what I’ve heard and seen in the movies, but it can’t be. But here it is. These people in real life just walk around playing bagpipes, dressed in kilts. So, I was pretty impressed. But it turned out there was a bagpipe festival going on that very day, and these were just people out there practicing, and the real people didn’t wear kilts all day and they didn’t play bagpipes all day. So that was just another naïve impression. I reported for duty. I was a waiter in the daytime. There must have been fourteen or ifteen of us, half young women and half young men. They put us up in this old 200-year-old country house, a ramshackle, run down, outside of town. They would bring us in and back in vans. There was no heat in this place, by the way. It was freezing. I’m glad I had a sweater. I was a waiter, and I got pretty good at being a waiter. And then in the nighttime I did usually two songs, and I was a big hit. I was as close to Johnny Cash as those people were ever going to get, and Johnny Cash was very popular then, so I was a big hit. They liked me, and I felt like it worked out pretty well. Some of the observations I had—in those days, Oban was very popular with English tourists. That was where they would go for their “holiday.” But there was only one American the entire summer who got as far as Oban, and that was a family from Chicago and they went out of their way—they heard there was an American guy working there, so they went out of their way to come over and say hello and said they were from Chicago. The other big memory I have is how much they smoked. The local people in that pub—it was just jammed—you could cut that smoke with a knife at night. I didn’t smoke at all, so I did not like that aspect of it. It was hard for me to breathe, but I managed. The people were wonderful, the people in Scotland. They were so nice to me. It was a great summer. At the end, I spent three weeks hitchhiking around to various places. Two women had invited me to come visit with them, so I did go and visit with them. That was fun. One was in London and one was in Newcastle upon Tyne. Then the end of the summer came and I had to go back to Luxembourg, get on the airplane and come back. LM: What were some of the songs that you sang in particular? WA: The only one that I can remember was one that I had written myself. It was called the “Talking Hotel Earl Blues.” This was patterned after Bob Dylan, one of his “Talking Blues.” The strumming part—he had in turn patterned it after Woody Guthrie—so it was the same as Woody Guthrie and Bob Dylan, but it was about the 1965 debate trip that we took. We were in New York and we got snowed in. Some of us moved out of the expensive midtown hotel into this place called the Hotel Earl right there on Washington Square in the Village, and it was a real dive, a kind of rooms-by-the-hour place. The song was a funny story about us and our stay there. The other one had to be a Johnny Cash song, but don’t ask me which one it was. I can’t remember now. LM: I really like Johnny Cash. Johnny Cash did a lot of protest music with a lot of strong messages. WA: Well, later he had what I’d call some protest songs, but mostly his earlier songs in that era—the only ones that even came close to protest were the ones he did in the prisons. He came across as identifying with the downtrodden who had served time in prison. Maybe in that sense, yes, protest. “I hear that train

70 • six a coming, coming around the bend. I ain’t seen the sunshine in I don’t know when. I’m stuck in Folsom Prison.” LM: Yes, that’s true. WA: All right, so I come back from Scotland and I go back home for a few days. My mom didn’t recognize me—my hair was so long. I don’t know if I had it cut all summer. Then I had been elected a national oicer of the national student YMCA the summer I had gone to Ch icago. We discussed that. They had elected me a vice president. So I went back the next year. This meeting was in Cleveland, just after I came back from Scotland and just before I was going to go to law school. Who should be at this Cleveland meeting but Suzan Caldwell, who it turned out we got married later. She was a young student at UCLA, and very active in the YMCA there. Now, in those days, hundreds of campuses had student YMCAs. The “M” part was ignored. It was for men and women. And she was with the one at UCLA. We met—it was love at irst sight, and we both got elected national oicers and I was the national president for that year, and we wound up having a courtship at the expense of the Y, because every month, I think, maybe every six weeks, we had a meeting somewhere in the middle of the country. Chicago was the main one, sometimes St. Louis. She helped me get a job that summer working with a sole practitioner in Beverly Hills, and we lived together near Santa Monica. We got married at the end of the summer, in August, 1968. This was after my irst year of law school. She came back several times during the year to Boston to visit me. In fact, the day that Martin Luther King was killed, she was there with me. That was in April of ’68, and we went down Massachusetts Avenue in this candlelight ceremony, this spontaneous thing. That’s how we met. We’ve been married ever since. Fifty years in 2018. LM: What kind of wedding did you have? WA: It was pretty simple. It was in Bakersield. That’s where she was from. It was well attended by people on her side of the family, not so much well attended on my side because it was so far away. I did have my debate coach, Kirk Shaw, the guy from Mobile, Ron Goodbread—who am I leaving out? Two or three others who drove all the way across the country. In those days it was too expensive to ly. So they drove all the way out in the car and drove all the way back just to attend that wedding. It was tremendous that they did that. Kirk Shaw was my best man at the wedding. The reception was in her backyard. So it was at her church and we went over to the back yard. None of this destination wedding stuf. Just your kind of plain but very memorable wedding that people had in the sixties. LM: Would you like to reserve for next time talking more about your irst year at Harvard and other aspects of law school? We could talk a little bit about how the joint degree program came about. I don’t know if you knew going in to Harvard that you were going to come out with a joint degree. WA: Let’s save all of that for next time, because I’ll forget what we’ve covered and not. Just let me close of the Mississippi State part with trying to remember some of the people who had a great inluence on me, and I am forever grateful to them. One I think I mentioned but I want to emphasize, Cermette Clardy who was the faculty advisor for the student Y. He was very inluential in helping me get to some of these conferences and be able to see things like what we saw in Chicago and then have that opportunity to see Martin Luther King. More than that, just his interaction with me and the dialogue that we had was eye- opening to me. The debate coach was another, Brad Bishop. Each one of these people, I could say if it hadn’t been for them, I would have wound up probably being a civil engineer and probably being happy at it, but debating really launched me on a career. It was something I was good at, and I didn’t realize that, and he helped me get there and see that. He was very inluential. And then my colleagues, Danny was very inluential. Kirk Shaw was very inluential. There was a woman named Camilla Wilson who I’m still friends with. Her daughter was one of my externs here, and she’s now at Minnesota State University.

six • 71 We used to sit on that big front porch at the Y. She was part of the YMCA leadership program, and we would sit there and talk about Mississippi politics and crazy things that went on in the state. She had such nice lilt in her laughter. So she was inluential. I can name a few others, but I feel I owe it to them to salute them for their very positive inluence on me. Joe Turnage too, most inluential. LM: Well, that’s wonderful. WA: Let’s leave it there for today.

72 • six seven

Starting Harvard Law School and academic environment, 1967-1968 Kennedy School of Government: Masters of Public Policy and Law Degree Friends, including Terry Barnett Spring 1971: applying for clerkship with Justice Douglas Move to Washington, D.C. and start of clerkship Summer 1969: job with Los Angeles law irm Summer 1970: working for Mississippi Research & Development Center Reviewing petitions for cert; Justice Douglas in Goose Prairie, Washington Start of Supreme Court term

LM: Today’s March 30th, 2016, with Judge Alsup. This is interview seven and we are going to talk about Harvard Law School to start today. We talked about your decision to apply to and go to Harvard, and now to get into some of the details. What was the start ofhat t irst year like, or your arrival in Cambridge? WA: Actually I remember the arrival. I left Mississippi with a guitar in my guitar case plus a small bag of clothes. That was it. I had one hand devoted to the guitar and one hand devoted to the dufel bag. I igured I could buy whatever else I needed once I arrived. At Logan Airport, I splurged and took a cab. We drove along the Charles River in the cab. Eventually you get to the point where you can see the spires of Harvard—the undergraduate down by the river, not the law school. But nevertheless, it was one of those bright, near-fall days. The scenery was just magniicent. The river was magniicent. I was so excited, and here I am arriving at Harvard to go to law school. I checked in to the housing oice and got my room assignment in the dorm. I was in Dane Hall 113. Now, I speciically wanted a roommate. Actually, it was a suite of just two rooms with an interlocking door, but in order to get into the other room, you had to go through my room with another door into his room, so there were two of us in this little tiny suite. To call it a suite would be glorifying it. It wasn’t really a suite. It was just two bedrooms with an interlocking door and one exit. Each room had its own window. I wanted to have a roommate so I would get to know somebody right away. I thought that would be a good idea, whereas most Harvard types did not want a roommate. In fact, the dorms were set up with very few rooms like that. Most people had their own individual room. My roommate, however, was already there and he was very cold to me. It took me awhile to igure out what was going on. He was from Manhattan and his name was Harold Beeler. He was not nasty, but he was just very cold to me at irst, and I igured out what was going on and he eventually told me. We were at the height of the Civil Rights Movement, and he wanted a roommate too, but who should they assign to him but a white guy from Mississippi? So he said this is no good. He had ac tually gone over there to try to get a diferent roommate when he found out who his roommate was goin g to be. To their credit, Harvard said no, you are stuck with this guy named Alsup from Mississippi. We didn’t talk to each other for about two days. After I got settled in I got my guitar out and I started to play a couple of tunes that he could hear through the closed door. And he had a guitar. So he came in. He had this nervous habit of playing with his mustache with his ingers and he came in and said, let me see this guitar. It turned out we knew all the same songs and he brought his guitar in and we played together. It turned out great. He was a great roommate and we got along ine from then on, and it was so good to have a roommate that irst year. Going up there, I had never had cofee. Another one of the people across the hall was a guy named Bill Johnson, a Swede from Minnesota. He always had a hot plate in his little room. People don’t use hot plates anymore, but in that era, hot plates were pretty common. He had a regular cofee pot with a hot plate and it was always going. You’d go in his room and you could smell the cofee. And he called me “Mississip.” He just decided that that would be my name, Mississip. So everyone on the hall decided that I was Mississip, except my roommate, who called me Bill. Bill Johnson was the one who got me started on cofee. Law school was so diferent from Mississippi State. The amount of reading you had to do to prepare for class was a tsunami wave for me. I just couldn’t keep up. I read as much as I could, stayed up as late as I could and I started drinking Bill’s cofee to stay up l ater. I just could not keep up with all of the reading. I’d probably get 75 percent of it done, from what needed to be done, and I would just wing the rest. I felt badly that I wasn’t able to read everything. It’s partly because I think I was a slow reader. I still am today a slow reader, but I absorb a high percentage of what I read. I do try to understand it as I go along, and even then—that was the single-hardest adjustment for me, was the amount of reading and comprehension that you had to do on a wide variety of subjects. In theirst year, at least in that era—I’m sure it’s the same—you had to take Civil Procedure, Criminal Law, Torts, Contracts, Legal Writing— what am I leaving out? LM: Property. WA: Property, yes. These were all taught, with the exception of Legal Writing—there was also one, Legal History—that were taught with the Socratic method. You would read the cases that could be English common law cases about Blackacre, and then you’d go into class and the teacher would call on three or four people each time. You would just pray that you weren’t going to get called on if you weren’t ready. I’ll tell you a story about that in a minute. The method was to read these old cases, and then the teacher would have questions, and sometimes all you had to do was understand what the case was about and you could easily answer it. Sometimes the teacher would give you a variation. What if this had been; what would be the answer? That wasn’t so easy because that required extended thought and extended logic. Here’s the time I got called on in the Torts class when I was not ready. [laughter] This is one time I just was not ready. I had not read a single thing for that class. It was Torts and I was down in the front row, my assigned seat. I think there were 125 people in the section. Professor Charles Fried, who later went on to be the solicitor general in the Reagan administration—and he was a very tall, Lincolnesque type guy, but unlike Lincoln, he was a bit of a smartass and really enjoyed skewering the people in the class. He looks around the class and then he says, “Mr. Alsup. What is causation?” Now, I said “If A , then B.” I thought that was a pretty good answer for not having a clue or having looked at the thing. So he says, “So, if the rooster crows and the sun comes up, does that mean the rooster caused the sun to come up?” And of course that lummoxed me because I was thinking, that can’t be. [laughter] Fortunately somebody came to my rescue. Hands were waving. There’s always one or two guys in every class where they’re just dying to—they’re waving their hands like crazy, like a windmill up there, “Call on me, call on me.” He called on someone else and the correct answer was, “If not A, then not B,” which is known as but/for causation. If not A, then not B, meaning that A is a necessary requirement. If

74 • seven A doesn’t happen then you’re not going to get B. So that’s but/for causation. I goofed that one up and I was embarrassed. Am I talking too much? LM: Not at all. So was that like Paper Chase? Did they say look to your left, look to your right and x of you won’t be here? WA: Yes, that movie was pretty accurate. I don’t think that many people lunked out as you look to your left, look to your right, but the cutthroat attitude was prevalent, I thought. Various groups of people you sort of half-way trusted would form study groups of ive or six. I gotinto a study group. I think Bill Johnson and I were in the same group—he was the guy with theofee. c I don’t think Harold was in my group. He was in a diferent group. So I, though, lost conidence in the study group method, because it wasjust not very disciplined discussions, and everyone was supposed to write an outline and give it to everyone else, and I dutifully did my outline, but I found that doing the outlines themselves, making your own outline, was the way to learn the stuf as opposed to reading somebody else’s outline. I went ahead nda did my own outline on every course except the Property course, which I will explain in a minute. But the smartest thing I did the entire year was this. I learned in the middle of the second semester that the library—Langdell Library—had prior exams. They collected them and they were in printed form in little grey paperback books that went back ifteen years, maybe. You could go through there and see what the exams were the last year and the year before and the year before, and if your teacher had given exams last year or the year before, you could go see what those exams were. Now, of course they’re not going to givethe same exam. It would be a diferent question. But still, you could see what they were like. One day at the library, I just looked at one of the exams from the prior year, and I said I have no clue— it was issues-spotting, you see. It would give a fact scenario, like “What advice would you give the owner of Blackacre?” Or, “You’re the judge. What issues would you raise? How do you analyze this case?” I said, you know—this was the smart idea—somehow I got my hands on those books. I think I bought the set. I think you could buy them. I only bought it three years back, but I bought several of those books. I sat down one Saturday morning about two months before the exams and I said, I’m going to pretend that I’m there in the exam room and I’m going to take the exam. I’m going to do everything just the way it would be, just the same materials. I did that and the irst iftee n minutes after reading the exam problem in the old exam book, I still had not thought of a single intelligent thing to say, so I got very nervous. I lunked myself. I said, you lunked. This is no good. Then I said, I’m going to doit again, but this time I’m going to give myself all day and I’m going to let myself cheat by looking up anything I want in the book, and go back through all of my notes from class and cheat in every possible way. Then I’ll see how good an answer—so anyway, I did a pretty good answer on that one. I didn’t actually write out everything, but I did little outlines of what the answer would be. So then I said, if I have enough time, I can do a good job. I realized that issue spotting is gamesmanship. Learning how to play a game, the irst time you’re not any good at it, but the next time you’re a little better and so forth. I did this exercise for every single class except Property, which was the last one that I think I only did one on. I did it for Contracts, for Torts, for Civil Procedure, for Criminal Law, and I did it several times, and I got down to the point where I shrunk the all-day down to the one hour or whatever you had to do it, and I was just cooking along great. I felt conident. Property was the one I was least prepared on. It was like everything else that I did in law school, I never had enough time to get everything done. Meanwhile, there were guys out there going out drinking beer. I say “Guys,”—because there were very few women; I think there were thirty women in my entire class of 530—they were partying. One guy,

seven • 75 he didn’t even study. He ran a go-go girl licensing service out of the dorm. And so these young women would be coming in with almost no clothes on and auditioning in his room. He had his room set up like a night club, and then he would get them gigs in diferent clubs around Boston. And that guy, that’s all he did. He was into the music scene and he didn’t care about—well, he did go and try to take the tests, but I’m sure he lunked out. Meanwhile, I’m really studying. I’m studying like crazy. I went in and took the tests and I was conident I had done a pretty good job on all of my tests except Property was the very last one, and I had put that one of because somehow I knew that would be the last. I was kind of hoping I could practice. And I would have done okay, I guess. That was the one I was least prepared for, and tragedy struck. Bobby Kennedy was killed in early June of that year, ’68, and the school cancelled that test. So, I just got a pass. Everyone got a pass. I didn’t have to take that test. Eventually, I was told how I did overall by someone I trusted. The top twenty-ive people got put onto the law review, and I was not in the top twenty-ive. I was in the next twenty-ive, which qualiied for the board of student advisors, and the fellow who was running the board of student advisors told me that I was number 27 out of 530 in my class. I thought that was pretty damned good for somebody who had done so poorly on the irst practice exam. This is a roundabout way of explaining that I igured out that the way to make a good grade was to do this issue spotting and to practice a few times, and not go in there cold and think that based on some study group outline that you were going to be able to see all the issues. You actually have to force yourself to take the test. Now of course none of the tests that they gave were the ones in the old books. They were all brand new tests. But anyway, that was the way the ir st year came out. A couple of other things hap - pened. I had met Suzan, my wife—not yet my wife, but we did get married at the end of that year. I had met her through the student YMCA. I think I explained all of that earlier. She was at UCLA and we saw each other at these almost monthly meetings. In addition, she came and stayed in the dorm with me over holidays, and happened to be there when Martin Luther King was killed on I believe it was April 4th, 1968. There was a spontaneous candlelit— LM: Vigil, maybe. WA: Vigil. It was right through Harvard Square. Mass Avenue had no traic—it became just illed with thousands of students and faculty. Just a shocking, shocking event. And then two months later, Bobby Kennedy was killed. Such a violent time. At the end of thatear, y I had my irst legal job, and it was because of Suzan. She had gotten me a job through one of her sorority sisters at UCLA with a sole practitioner, John Dunne, in Beverly Hills. He assigned me to work on a pro bono criminal case that he had taken on. He had represented a guy convicted of murder, and there were issues of identiication and it wasn’t 100 percent clear that he was actually guilty, and there were suppression motions. John had done a full scorched-earth thing, trying to do the best job possible for this guy. My job was to write the brief on appeal. It was a great assignment. It couldn’t have been more perfect. The timing worked. I had the whole summer to work on just that one project, read that record, write a brief. I wasn’t there when it got argued, but I’m positive we did win. The state Court of Appeal did agree that there had been an error, but said it was a harmless error. I don’t know if he ever got electrocuted or what, but we lost out on that one. It was a great experience to be able to write an important brief, and I think I did a pretty good job. Suzan and I lived together on Sepulveda Boulevard. I believe it was in Culver City. We had this little garden apartment. She was at UCLA in summer school and I was working for attorney John Dunne. You know how it is when you’re young and everything—you’ve got no kids and you’re young, you go to the hamburger joint or to the Taco Bell. That was our favorite place. At the end of that summer we got married. It was in Bakersield. John Dunne came up for that. He was very nice about it. Some of my friends came out from Mississippi. That was a long way to come. These days, people go all over the world

76 • seven for weddings, but then it was pretty rare. If you had a friend getting married 500 miles away, everyone knew you didn’t have to come. That was just too far to ask anybody to go. But these Mississippi guys drove all the way across to California and used it as an occasion to hit Las Vegas so that they could be at the wedding. Kirk Shaw was my best man, the guy from the debate team. Ron was there, Brad Bishop was there. I’m not sure if Danny was there. I don’t think Danny came, but I may be wrong about that. That was in August, and then it was time to go back to law school. I had a little Volkswagen Bug that my mom had helped me buy four years earlier. It still was running ine. Suzan and I drove all the way across the country in that little Volkswagen going about sixty miles an hour, and started at law school again. That next year we were in Peabody Terrace, which was married student housing, and we had a one-room apartment. It had one long room that was perhaps twenty feet by twelve feet and then a separate bathroom and a little balcony—so it was tiny, and there was room for a little, not large table, but little table to eat on, the bed, which folded up into the couch, so that when we had people over they didn’t see our bed. Suzan let me construct this little cubicle over in the corner where I would do my work, and she had a little TV that was black and white that had an earpiece, so she could watch TV and I wouldn’t have to hear the TV but, of course, I heard her over there laughing away. The stove was a modest cooktop with an oven. We lived in that for two years. Our rent was ninety-ive dollars a month. Can you believe that? Ninety-ive a month. Then Allison was born in August 1970. I’m going to skip ahead to explain that by that point we were in the Kennedy School, and the Kennedy School was very good on helping with scholarship money. We upgraded to a two-bedroom apartment with a living room and a separate kitchen. It was huge by comparison. It was unbelievable how much better that felt. That was our last year, the fourth year. Still in Peabody Terrace down near the river. To return to my second year, the fall of ’69, I took the normal courses in law school. But the one dif- ference was, I’d now done pretty well my irst year, and I had conidence that I could do it. In addition, I was on the board of student advisors, which ran the moot court program, so that was my one extracurricular activity. Suzan and I were married, but we didn’t have any children at that point. During the course of that year, I learned that the Kennedy School was starting up a program, which is now famous, but it hadn’t even started then. It was a joint-degree program with the law school, with two degrees. One was a law degree and one was a Master in Public Policy from the Kennedy School. And the Kennedy School was in I believe it was called the Littauer building, immediately adjacent to the law school, so it was extremely convenient. In fact, going back and forth to Peabody Terrace, I walked by that building every day. It was on the way back to the apartment. I saw the announcement for this program and I looked into it, and the idea was to teach you Eco- nomics, Decision Analysis, Statistics and Political Analysis. Those were the core courses. Now, let’s think about the irst three. Those were heavily into mathematics. It surprised me, being a math major, that the curriculum of something that would be generally thought of as government policy was so dependent on mathematics. I got very interested in the program. I went over there and talked to some of the teachers just to see what it would be like and what was the process for applying. It turned out that the Kennedy School seemed interested in getting me to be in their irst guinea pig group of 24. The Kennedy School, I’m pretty sure, wanted me in this program, and so I did apply. Geographic diversity, I think that’s the main reason. I got accepted, and then that led to this part scholarship, part loan, and they got us into a much better housing unit. That was also in part because by then we were going to have a baby, but our living standard went up quickly and we got a two-bedroom apartment, as I mentioned. The deal was that you would spend your third year, which would normally be your third year in law

seven • 77 school, completely at the Kennedy School, and that’s where you took these four core courses, and then your last year would be split between the two. Now, the law school already allowed you to take half a year anywhere else you wanted, basically, in the university, so some law students already took courses in the business school, or public health or the undergraduate college. Really, I was not cheating myself out of any of the required courses, but the way they had it set up was two and a half years of courses at the law school and one and a half at the Kennedy School. In that third year, there were twenty-four of us and again, almost all men except for Maureen Steinb- runner. Let me start with Decision Analysis. I loved that course. Howard Raifa was our teacher. He was the George Washington of Decision Analysis. I believe in the late forties—could have been during World War II—but in the forties, he and one other professor had pioneered this branch of analysis, which they called Decision Analysis. There’s a related ofshoot called Operations Research, OR, they abbreviated it. To stick with Decision Analysis, it’s like decision trees. We all know decision trees today, but they are the ones who came up with that. You would have various branches and each branch represents an option, and then you evaluate each option with probabilities and sub-branches, and those can go out for several subdivisions, and you factor it all back with the probabilities and that tells you which one is the best, and then you do the sensitivity analysis, well, what if this particular branch is 38 percent instead of 50 percent? How much diference would that make? Sometimes it would surprise you to learn that you can vary a branch a lot and it still won’t change the decision, so you would ind out how sensitive your outcome is to varying the variables. By the way, I still intuitively use the decision analysis—I certainly did in law practice. Occasionally when I’ve served as a settlement judge, when I set my designations in place, I have used the decision analysis to help people settle their cases. I was so impressed with that and so enamored of that so I really studied it hard, and it was a joy to be able to take that course with Howard Raifa. The same was true for Tom Schelling and his Economics course. His Economics course included game theory. He was big in the defense part of the economist world and helped develop some of these dilemmas, like the prisoner’s dilemma and other things where you and I are opposing each other and we have these options, and if we both act rationally, we’re going to wind up with mutually assured destruction and the worst possible outcome, and it would be better if somehow we could conspire so that we would each be better of. Thatwas game theory. The Statistics course was the weakest of the courses and the teacher they had was really a last-minute addition and really not very good. It’s too bad, because we still use a lot of statistics. The last one was Political Analysis. That was taught by Richard Neustadt, who had worked with Harry Truman in the White House. He had a wealth of personal experience, so he wrote a book. One of his theories was that if you are a two-term president, there are only two years when you can get anything done in your presidency. One was the third year and one was the ifth year of the se cond term. Now, Graham Allison, who was then just a star grad student, was an understudy to Richard Neustadt. He was clearly the up and coming—he was going to inherit the whole mantle of running the Kennedy School Program and did eventually do that. He eventually became dean. His book on the Cuban Missile Crisis had not yet been put in print, but we did have a typescript, an d that’s what we worked of of. He co-taught that course about the Cuban Missile Crisis—the Political Analysis course, but his part was all a case study about President Kennedy and decision-making in the Cuban Missile Crisis. Here I was, a kid from Mississippi, and I’m up there hob-knobbing with all these great, wonderful famous names. I took just the maximum advantage I could. I tried to learn everything I could. Another little interesting thing they did was digital computers were just coming in then. This was in ’69, ’70. They had a computing center at Harvard with a gigantic main-frame computer, and then they had these wires running out to diferent buildings. There was a teletype machine, se veral of them, in Littauer, where the

78 • seven Kennedy School was, and we all got a certain number of hours that we could use for anything we wanted. They just wanted us to learn how. These machines were not like the computers we learned about later. You would type in your code, your program, and then hit a button and it would be sent back over to the computing center, and then a few seconds later the answer would come back. If you were doing this late at night like I usually was, it would come back pretty quickly because not that many people were using it. During the day it was just jammed up, a very slow process. I got enamored with this computer thing, so I decided I would write a program to teach myself how to do it. There was this program they had called BASIC. I became pretty good at it later, Quick BASIC. BASIC was the one they taught us to use, so I taught myself and I wrote a program that would play Blackjack. I thought that was pretty good, and it worked. There was so much debugging, and I would stay up close to three a.m. and inally I would drag myself back to the apartment and I would get back up early the next morning. The Kennedy School was wonderful, and it was really at the Kennedy School that I met the two people that were my contemporaries that I’m closest to still, and I’ll just mention them. One of them was Jim Vaupel and his wife Bodil. They split their time today between Denmark, where she is from, and North Carolina. He’s a professor and he teaches public policy even today. The other one that I was actually closer to was Terry Barnett. Terry was from Ohio and he was in law school with me. He was raised on a farm in Ohio, very quiet, thoughtful, self-assured—but he let other people do all the talking. He wound up spending a career with Professor Roger Fisher—the one at Harvard who wrote the book called Getting to Yes, on negotiation. Terry didn’t practice very long, but he did a huge amount of mediation in his life. He just died a year ago. He went backpacking with me at least four times, and brought his sons along. From the law school era, he was probably my single closest friend. He worked for a Republican senator named Matt Matthias on his senate staf for a while. That full year at the Kennedy School was inluential. My last year was split between the two—the one memory I have is that a paper that you had to write was on solid waste disposal in the metropolitan area of Boston, and I was trying to igure out where in the world are they taking all of this trash, because there had been this company that came in and somehow magically got the contracts. One midnight to ive a.m., I decided I would trail one of the trucks, and I trailed it all the way up to someplace in New Hampshire where it turned out they were dumping this stuf. What did I do? I wrote a letter to the Board of Health, saying did you know this was going on? They didn’t know it was going on so it was a bit of a small scandal. It didn’t even make the papers, however. Anyway, this was part of my thesis on solid waste disposal in the greater Boston metropolitan area. Then I graduated. I guess I’ve left out the part about Justice Douglas. In the last year, because I was winding down toward graduation, I wanted to have a clerkship, and I had decided I was going to go back to Mis- sissippi and practice, and I was doing work for a guy who I thought I would end up practicing with. Both my college roommate and I would probably go in with him, and we did—his name was Dixon Pyles. I was working on this civil rights case that Dixon had going for all the Black sanitation workers in the City of Jackson. I’ll tell you more about that when we get to that part of the story. I thought I was doing it pro bono, but he wound up paying me, maybe $4 an hour to work, and do legal research at the library at Harvard. And then I would put it in the mail and send it of to Dixon . On one of my visits to Jackson, I met the circuit judge on the Fifth Circuit who lived in Jackson, a man named Charles Clark. He was a generous man and I applied to work for him, and he hired me. But, just about the time I got the letter from him ofering me the job and me accepting it, this thing with Justice Douglas came up at the Kennedy School. Here’s what happened. One day—it was very informal—somehow, word got out, and I showed up and somebody said, “Go see Neustadt”—the dean, Richard Neustadt, the guy who had worked for Harry Truman. I go into the oice and he says, “Listen. Justice Douglas on the Supreme Court has heard about our

seven • 79 joint degree program and he wants to hire one of our graduates for the next year for the Supreme Court. It turns out that we only have three of you who are graduating and are going to have a law degree, and I want all three of you to apply for this.” I said, “You know, I would love to, except I just accepted a job with a circuit judge in Jackson, and I can’t go back on that. I think I just have to pass.” And Neustadt said, “No, no. This judge will understand how great an opportunity this is and you should get on the phone to him and explain it and see what he says. Maybe he’ll let you of the hook.” I didn’t like doing that, but I did. I called him up and explained what had happened. Judge Clark was so good. He insisted—he said, “Listen. You apply for that job. If you don’t getit, ine, you can work for me and we’ll go on as normal. But if you do get it, then you’re going to accept the job with Justice Douglas. There’s no way I’m going to let you pass that opportunity up.” I still felt badly about it, but then I went back to the dean and said, “Okay, I’ll do that.” He said, “You’ve got to get a resume together.” I had already done that, so I sent it down not to Justice Douglas but through David Ginsburg, who was Justice Douglas’s irst law clerk in Washington, D.C. He was the one who was really going to make the decision, I think. All three of us went down and he interviewed the three of us who were graduating. One guy was Nels Ackerson. He was from Indiana, another friend I had in law school. The other one was a guy named David Zwick from Seattle. David’s grades were a tad better than mine in law school, I think. In those days you igured everything went on grades and I didn’t really think hadI a shot at it. One at a time, we went down. So I had my interview not with the justice, but with David Ginsburg. Now, David Ginsburg was the consummate magniicent ambassador and relic—I mean that in the best possible way—from the New Deal era. He worked for Douglas in 1939 as a law clerk, so he lived through that whole Roosevelt era. His oice was on the top loor, a corner oice overlooking the White House and the White House lawn. It was at Seventeenth and Pennsylvania. Here I am sitting in this spacious oice with David Ginsburg, wearing my ratty little suit, the only one I had. He’s as cordial as he could be. We had this long conversation. I think it must have gone an hour and a half. We talked about many things. He had a nice way of doing most of the talking, but he would occasionally get me to say something. I remember one moment—this impressed me so much. Somehow we got to talking about the welfare system. He said, “Somebody who knows a lot about this is Daniel Moynihan.” He says, “I bet he knows the answer to that question.” So he just buzzed somebody and said, “Get me Daniel Moynihan.” Thirty seconds later—they had speakerphones in those days—we were talking on the speakerphone, and Ginsburg says, “I’m here with this young student from Harvard, Bill Alsup, and we’ve got this question for you.” Then Moynihan goes into an explanation about the welfare system. The point I’m trying to make is, David Ginsburg had arrived. He had long since arrived. He was a grey imminence in Washington, and here I was sitting in his oice, just blown away by what I’m seeing. I left thinking there’s no way I’m going to get that job, becauseI could never imagine myself illing the shoes of a guy like David Ginsburg. I go back and very quickly after that, I’m going to say a week, maybe, a week after that interview, the word comes that the justice wants to hire me. He hadn’t even interviewed me yet and he’s not going to interview me. I actually think—and I say this half in jest, that he preferred to have other people—all of his law clerks were interviewed by somebody else, maybe so they could be blamed when they didn’t work out right. Suddenly I had this thing, so I had to call up Judge Clark and say I’m in this jam. Justice Douglas ofered me the job. Clark insisted that I take it, s o I did. All that happened in the last closing weeks of my law school time. That would have been in the spring of ’71. Instead of moving to Jackson, where Suzan and I thought we were going to go, we re-routed ourselves and wound up moving down to the southwest part of Washington, D.C., rented an apartment, and by July of that year, I was busy learning how to be a law clerk for a Supreme Court justice.

80 • seven LM: Was Judge Clark one of the judges from the Fifth Circuit who was known for his courageous work on some of the Civil Rights cases? WA: No, I don’t think so. He was a moderate judge, and he was a Republican judge, but in that era, there still were Republicans—some of the politicians were—it was a diferen t party than they were today. He was a moderate. There were times that he would be conservative on something, and times that he would be a little bit progressive on something, but a very decent person. Later on, whenever we get to that part of the story, Judge Clark came back to help me a lot in getting this job as a district judge. I will explain all of that when we get there. One thing I want to say on that is that I have been very lucky, because my friends that I’ve known all my life—I haven’t held on to them for any selish reasons —but there have been times when just out of complete fortuity, an old friend that I am still friends with is able to help me out in some amazing way. One of those that plays out a lot in this story of how I got to be a district judge, which someday we’ll get to in all of these interviews. I think that’s a pretty good summary of my law school career. What questions do you have on that? LM: What was graduation like after those four years in Cambridge? WA: I didn’t stay for that graduation either. I really had no excuse. I guess we just wanted to get down. I don’t remember now why I didn’t go to graduation. LM: You were making plans to go to Washington. You had a young family. WA: All that’s true. If I had to guess, it would be that I wanted to drive all the way down to Mississippi before going to Washington in order to see my mom and spend a little bit of time there. That’s probably what we did, though I can’t actually remember that. We did that a few times and that might have been what accounts for it. LM: The way the job as a law clerk to Justice Douglas was explained to you, were there expectations set or details, or did that emerge only as you started? WA: Only as I started. The people at the Kennedy School had no clue as to what would happen, and I really had no clue. I knew what a law clerk was, but I had no clue as to how Justice Douglas would use his law clerks. I came to ind out and it worked out ine, but I just didn’t know, going in. Let me ill in a little bit on law school. I had summer jobs. I’ve al ready mentioned the sole practitioner in Beverly Hills. The next summer, Suzan wanted to inish up at UC LA, and by this point we were mar - ried a year. I got a job with a medium-sized irm in Los Angeles. It no longer exists, but then it was Kindel & Anderson. They were in litigation and not really a tax irm, b ut they had one partner who was very famous in tax. Mainly it was a commercial litigation irm in downtow n LA. I liked the practice. I liked the irm. I liked the people there. What I didn’t like was the sm og was awful. Downtown was even worse in those days. This was in the summer of ’69. The other thing that I didn’t like about LA was conspicuous consumption, even then. I think it’s just as bad today, really, down there, but in that era the type of car that you drove made a big—here I was with this little Volkswagen and these people had fancy cars. By the way, that has taken over—in the Bay Area, when we started here, there were lots of people who had Volkswagens, lawyers and all that, but no, you can’t have that anymore. You’ve got to have a black Lexus or a BMW. That’s required now for even a senior associate in a law irm. So that old LA pattern has now invaded the Bay Area. That kind of put me of a little bit, conspicuous consumption. That was actually one of the reasons, when my wife and I did come out here, we decided to come to the Bay Area, which had a much more bohemian lifestyle in those days. In the summer of 1970, I got a job at the Mississippi Research and Development Center. That was the summer Allison, our daughter,

seven • 81 was born, and so she was born in my hometown, Jackson. My mom was the head nurse at the hospital where she was in the obstetrics ward. She didn’t do the delivery. She was too nervous for that, but her team did that. So it was a family afair and Allison was born there. The reason I wanted that job was by this point we had decided we were going to go back and we were going to make our home for good in Mississippi, so I wanted to get a job, and that was the best job I could get, was working for the Mississippi Research and Development Center. Not using legal skills. By this point I was headed for the Kennedy School and the public policy part of it. That was the summer of ’70. And then the summer of ’71 we were at the Supreme Court, so that covers all of that time period. LM: Do you want to talk more about starting work for Justice Douglas, or should we wait until next time? WA: Let’s talk a little now. It will give me a chance to think of some additional stories and remembrances. He had three clerks and I arrived last. He had one of the two back corner chambers, the one closest to the Library of Congress. Within the suite, Douglas was, of course, inthe corner oice with windows on both sides and his clerks were in a smaller room next door. He had an interconnecting door to our chambers, and another on the other side that went to the reception room with his two secretaries. The entire chambers staf were the two secretaries, three law clerks, and then, very importantly, one messenger. The messenger’s name was Harry Datcher. Harry Datcher had been with the justice a long time, and would drive him to work every morning in the one car owned by the Court, an old, beat-up black Buick. Now the Court has ifteen cars, I think. In those days they just had one. Douglas had it reserved for every morning. He got to work by about 7:30 every morning. When I arrived, Douglas was still in Goose Prairie, Washington. Douglas spent many summers in Goose Prairie at his house there. It was really a—I’ve seen pictures of it only—it was a large A-frame with a big deck, maybe ive or six acres of land, it looked like, a lot of w oods. Way out in eastern Washington, near Spokane. He would go there in summers and hike, see his friends, a pack trip, ish, t ake pictures. He was married to Cathy, his young wife at the time. Douglas would show up for the very irst day of the term, which is the irst Tuesday in October—maybe the week end before. So, we had the entire sum - mer to go through thousands of petitions for cert. We would write up one or two page summaries—none of this was on word-processing. This was on little Smith Corona electric typewriters, which was state of the art at that time. We would fold our memo around the petition and opposition, and all of that got shipped out to Douglas in Goose Prairie in big canvas postal bags. He would drive to a tiny little post oice called Whistling Jacks, where he would pick up the big canvas sack and give the postal people the one that he had already reviewed. He would swap it out, then he would take that bag back and he would go through our memos. He would write on these memos usually one sentence at most. It might be a follow-up question, but usually he would write “Deny” up in the corner, or he would write, “Grant?” We were only correspond- ing with him by mail, and it would take days for us to get an answer. There was no such thing as email, of course, and there’s no way we would call and say, “Mr. Justice, I’m your new law clerk. What do you think about X?” We would never have done that. The departing law clerks had given the two clerks—they both got there a little bit ahead of me—they had sort of trained them on the desk. They were long-gone by the time I got there, and there was no memo or anything. I got there and I started picking up the job from what my two co-clerks who were slightly more up to speed than I was were telling me we had to do. The summer was, in a way, good because I didn’t have the pressure of Justice Douglas being there to see what a crappy clerk I was and I had some time to adjust, and it was good because we didn’t have any big cases to argue and things to write immediately. That did come, but it didn’t come the irst couple

82 • seven months. He had left behind summer projects, a pretty smart idea. One thing that happens at the Supreme Court is that every now and then an emergency comes up and the justices are asked to issue a stay or not issue a stay, and it comes up in a hurry and you don’t have two months to get it briefed and argued. You’ve got to really act in a couple of days. One of the issues that was coming up in that era involved protests, and what should the Capitol police do, what should the Supreme Court do when there is a protest that is coming to the U.S. Capitol and what are the NPS (National Park Service) regulations, what are the Capitol Ground regulations and what are the procedures for getting a permit, and are they constitutional and are they reasonable—lay out the body of law in a nice memorandum so that when the next crisis hits, the justice will have something to turn to that will educate him, because otherwise you have to reinvent the wheel on the ly very quickly every time. I did that memo—it was probably twenty-ive pages of iguring out all those problems. That was my summer project and I handed it in and I don’t know if he ever used it or not. Nothing came up during the time that I was there that would have required him to use it. I don’t remember. He never said anything bad about it, which probably meant he thought it was okay. The rest of the summer was spent reviewing all the cert petitions. In those days, there were also direct appeals to the Supreme Court. Those used to be called jurisdictional statements, not cert petitions. There aren’t very many of those anymore because Congress changed the law. Finally, the day came when the justice showed up. We were scared to death, all of us. He did all the right things. He introduced himself. He didn’t take us to lunch right away. But we then had somebody actually in those chambers expecting us to turn in drafts of opinions. I think it’s best to leave it there, and help me remember when we resume where we stopped. I’ll just stop at the time that the justice shows up and things go into high gear at that point. We did 180 opinions that year. It was a large number because he did so many separate opinions. I got to work with him on Roe v. Wade—in fact, what he has in the books is the concurring opinion that I drafted for him, to my surprise, because it didn’t come out until a year later because it had gotten held over for re-argument. The trees have standing case, Sierra Club v. Morton, the national security wiretap case. It was a big blockbuster term. It was the term written up in the book called The Brethren. LM: I want to ask you, what was the reaction at the Kennedy School when their graduate got this position? WA: They were thrilled. Richard Neustadt was so thrilled, and he was very supportive. I thought I was the least likely student to get it, and I wound up getting it, and you might have thought, they will have second thoughts. How could Douglas have chosen me over these other two guys? But they didn’t. Neustadt was very supportive and wished me well and wanted to see me succeed as much as possible. I once asked Douglas, later, near the end of the term. I said, “How come you picked me over the other three?” This is when he was in a jovial mood. With a twinkle in his eye, he said, “Well, I never knew anyone from Mississippi before.” LM: Interesting. Well, we’ll pick up there the next time. WA: Yes, let’s do that. LM: Thank you.

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Early life and career of Justice Douglas Role of law clerk to Justice Douglas; opinion writing process President Nixon and Watergate, 1972 The C&O hike and Save the Canal efort by Justice Douglas U.S. Supreme Court clerkship workload

LM: Today is April 20th, 2016, and we are going to talk about Justice Douglas more today, starting with some background about the justice. I’ll let you speak, judge. WA: Thank you. Justice Douglas was born in Minnesota, I believe it was 1898. He moved out West at an early age to eastern Washington, and grew up in that part of the state. One of the most inluential things that happened to him in that era was being alicted withpolio or a disease either like polio, and it caused a partial paralysis in one of his legs. He admired Teddy Roosevelt, who was then the president, and Roosevelt had had a similar problem, maybe not polio, but a frailty that Teddy Roosevelt solved by basically becoming a mountaineer to get stronger. Douglas, admiring that story, took to the Cascade Range nearby—this was out near Spokane, Wash- ington—and he took to the Cascade Range to build up the strength in his legs, and in the course of doing that, developed a lasting relationship with the mountains. He then in due course went to Whitman Col- lege, where he was an outstanding student. This was just in the time leading up to America’s involvement in World War I. He was briely in the Army, but just about the time he went into the Army and began training, the war ended and so he was mustered out with a proper discharge. He soon was headed to law school at Columbia in New York. He got to Columbia by “riding the rails,” at least part of the way. He was a paying passenger part of the way and shepherded some sheep on a boxcar part of the way. He got paid for that, and then he actually had a paying ticket for part of the way. It is true that for some segment of that trip, he was like a hobo, getting to New York across the country. He wound up being a star at Columbia Law School and eventually graduated second in his class. As a result, he got jobs there to tutor students and help students. After graduation, he developed an expertise in railroad reorganizations and bankruptcies and the economy of the nation. He taught at Yale. He was wooed from Yale to Chicago but wound up staying at Yale. He taught also at Columbia. The Depression hit. Franklin Roosevelt became president. Soon, one of the burning issues concerned the New Deal and whether or not the New Deal programs to revive the economy of the country were constitutional or not. Up to that point, the Lochner v. New York decision had struck down regulations that were intended to regulate the economy. That was exactly the type of regulation that FDR [Franklin D. Roosevelt] thought was necessary. The SEC [Securities and Exchange Commission] came online in the New Deal. I believe that was the 1934 Act. In any event, the Commission was established and the irst chair of that commission was Joseph P. Kennedy, the father of Jack Kennedy and Robert Kennedy. The father would later become the ambassador to the UK under Roosevelt (but was more or less ired from that position when the war started). Nevertheless, back in the early FDR period, Douglas came on board with the SEC, not as a commissioner yet, but in a very responsible position because of his expertise in railroad reorganizations—railroads in those days were huge. It would be like the airlines today. So he, because of his expertise in that area, became well known in the country for his work at the SEC, and when Joseph Kennedy left the SEC, after they had worked together for a while, Roosevelt made him the head of the commission in 1937. Douglas got to be good friends with the Kennedys during that era, and they remained friends. For example, later in the ifties, Joseph Kennedy came to Douglas—Douglas told us this story in chambers—and said, “I’ve got this young son, Bobby. He’s so naïve. He needs some help and some exposure to the world. And you, Bill Douglas, go all around the world during the summers and travel all over the world”—which was deinitely true; he did. And he says, “I want you totake Bobby along with you so he will get a little exposure to the rest of the world.” Douglas said “Sure, ine, he can come along.” He had a thirteen or fourteen-year-old traveling companion all that time. When Louis Brandeis retired from the Supreme Court in 1939, Roosevelt appointed Bill Douglas. He was a certain vote to help sustain the New Deal programs. The Supreme Court had knocked out several of the New Deal programs, and others it had sustained. Douglas wasnot the irst FDR appointee. Before him was Hugo Black and Felix Frankfurter, but the Supreme Court was still not strongly in the FDR camp at that point, so Douglas was an important appointee by FDR to help sustain the New Deal programs. And there was no doubt about it, Douglas had a very strong view that one of the important functions of the federal government was to regulate the economy, and certainly it should have the power to establish agencies to do that and to impose regulations upon industries, to help the working class and regulate interstate commerce. Douglas was a deinite vote to overrule and depart from the Lochner v. New York line of cases. That was in April of 1939 that he got that appointment, so he was a young man. He was in his early forties when he went on the Supreme Court. One other fascinating point is that Roosevelt knew Douglas personally from their poker games at the White House. Douglas remained a favorite of FDR because Douglas could tell great stories and always had good gossip, I suppose, about people in Washington. FDR liked his company, so there was that friendship that went along with it. On the Court, Douglas voted to sustain FDR’s New Deal program, and then very soon thereafter, World War II came, and then in 1941, America’s part in the war came, and then we had the Japanese intern- ment cases. We had lag salute cases. Douglas was not at irst the civil libertarian that he became. At irst he deferred to the military and to national security. I think he later regretted those votes, but in due course he began to feel he had made a mistake. Then not long after the war ended in 1945, in the late forties, the Red Scare came and lasted until the early sixties. There was a long series of decisions that the Supreme Court had, mainly involving the First Amendment and Communists and loyalty to the country and taking various oaths. It was in that time period that Douglas began to develop a very strong First Amendment view about freedom of belief. He basically thought you had a right to believe anything you wanted. There was absolutely no limit to what you could believe. There might be slight restrictions on what you could say as opposed to believe, like you might not be able to say “Fire” in a crowded theater. But he got very close, as time went on, to an absolute view that anything you wanted to say was absolutely protected by the First Amendment. Then we got into the whole Civil Rights era and equal protection. He became a strong civil liberties justice by then. Later, he entered the environmental part of his life. He lived through a number of eras. Today, he’s still the longest-serving justice on the Supreme Court. He died in 1979. I clerked for him in ’71 to ’72. He was still in good health then. In ’74, he had a stroke and in ’77 or so—it could have been ’76—he fell and broke his hip and was in a wheelchair from that point on. When he went of the Court, he was replaced by John Paul Stev ens from Illinois. I remember the gossip at the time was that John Paul Stevens would be—“what a terrible appointment; he’ll never be the civil

86 • eight libertarian that Douglas was”—but actually it turned out that his views came pretty close, in the long run, to Justice Douglas’s. That’s a short—maybe too long for these purposes—history of Justice Douglas. LM: It’s perfect. I was wondering, thinking about him as a young man, going to Columbia from his—I don’t know about rural—but his roots in the Northwest. How do you think he integrated himself into the East Coast? Or maybe that wasn’t an issue. Maybe he was so independent he didn’t n eed to integrate. WA: I don’t know the answer to that question. It’s a great question because his entire life to that point had been rural. Even Whitman College is a small college. And suddenly he found himself in New York City and going to one of the famous law schools. It must have been a huge cultural change for him. That’s one good question I don’t know the answer to. When I showed up at the Supreme Court, he had already been on the Court for a long time. He was the longest-serving justice other than Justice Black, and very shortly after I showed up, Justice Black happened to die. There was a big funeral and as an aside, Justice Harlan also died, so there were suddenly two vacancies in the Court. That made Justice Douglas the most senior justice other than, of course, the chief, who is always deemed to be the most senior. Douglas had many decades on the job and had his routines just down to a T. He just expected us to know what those routines were. He never told us, here’s the way you do the job, A, B, C, D, one, two, three, four, ive. He just expected that we would learn that through osmosis and through whatever the departing law clerk happened to tell us, as well as his expert secretaries, who would sometimes clue us in on what needed to be done. He had a corner oice, so that meant he had windows on two sides, and then he had a ireplace and a big desk. It was spacious. In one direction, he could go through a little hallway and get to the room, also spacious, where his two secretaries sat side by side at their own respective desks. Now, you might say, well, why did he have two secretaries instead of one? The reason is that he was a proliic writer and he was always writing books and magazine articles or speeches, or for that matter, opinions for the Court or concurring opinions, and his secretaries could read his handwriting. They were wonderful in that respect. So he kept two of them busy. Then in the other direction was a door that led to the law clerks’ room, and our room was not as nice and as big as the secretaries’ room. Ours was a somewhat smaller room, and in our room were jammed four desks. Three went to law clerks and one went to his messenger, Harry Datcher. You almost had to walk sideways to get to the two desks toward the window. As you came in from the hallway, or from the justice’s room, I had the desk that was immediately on the right. That meant I was the one closest to Douglas’s chambers. He had a buzzer system. His door was always closed. The buzzer would go of [makes buzzing sound efect] and I would stand up and open the door just noughe to stick my head in, and he would say, “Send in Jacobson.” Then I would close the door and say, “Dick, he wants to see you.” Dick would run in with his notepad and do whatever needed to be done. Sometimes the justice wanted to see me. It would just depend. The buzzer meant he wanted to see somebody. So we had a buzzer system. He would never phone us. We did have phones, so he could have called our extension and said, “Send in So-And-So.” But instead the buzzer was much more convenient. He would hit the buzzer, and it was like an old-fashioned doorbell, a little round thing with another little round black button in it and it was on his desk, very easy for him to do. On occasion, he would walk out to see us. Most of the time it was the other way around. He would hit the buzzer and then we would go in. Douglas typically got to work around 7:30 every morning. In fact, it was almost like clockwork that he got to work at 7:30, and he typically left around ive in the evening. He would occasionally take us to lunch, especially when he thought we were working very hard. That was his way to show appreciation. He would take us out to a place called Jimmy’s, an old sandwich pub not far from the Supreme Court building. Rarely did he take us to someplace fancy. It would be a place like Jimmy’s. In fact, I think it was

eight • 87 Justice Douglas's desk, 1979

always Jimmy’s. Most of the time we either had lunch at our desks or we would run down to the cafeteria on the ground loor for a thirty-minute lunch and rush back. LM: From the beginning, as you look back on that early time period as one of Justice Douglas’s law clerks, was it what you expected it would be? Or was it completely diferent? WA: I had no real idea what to expect. LM: I mean, how could you? WA: Really, I had no idea what it would be like. I kind of imagined beforehand that he would say, “Okay, go do legal research on all the decisions that have dealt with the statute of limitations on X, Y, Z.” But that’s not the way he used us. If it was an opinion of the Court that he was writing for the Court, he felt an obligation to write that himself. The law clerks did not write those. On the other hand, if it was a concurring opinion or a dissenting opinion, he felt it was okay for us to write them, and we did draft almost all of them. I think we did 186 opinions that year. A typical situation would be that he would buzz, say “Send in Alsup.” Of course, that would be me. I’d just go in. He would say, “On this AFL-CIO case, I’m going to dissent and I want you to block out”— that was one of his phrases—“block out an opinion about how the First Amendment bars Congress from restricting the picket line.” That would be just about all he would say. Sometimes he might say, “Here’s a law review article I want you to work into it.” It would be a law review article by one of his friends or someone he admired. He would say, “I want to make sure we get this article in.” That’s it. It would be about a sixty second set of directions. By that point, the law clerk on the case would have known the general issues involved, so probably something that cryptic would give you pretty good direction. The last thing you would want to do is say something dumb like, “I just don’t remember anything about that case.

88 • eight Tell me, Mr. Justice, what you mean by the picket line.” You would never do that. You would never betray your ignorance. You would just pretend like you good and well knew what he was talking about, even if you didn’t. Then you’d go back and you’d look it up in the briefs and you’d ind the First Amendment and the picket line problem and what the statute was, see how the parties had worked it up, and then you would know that he was going to come out in a very strong position on the First Amendment and how the statute was unconstitutional. You might go back—I always did; I went back and read every single one of his First Amendment decisions. My job was not to track what the Supreme Court as an institution had held. I had to know that, too. I deinitely had to know his view, his own body of work, his own juris prudence on the First Amendment. Whatever spare time I had, I used it to read every one of his First Amendment decisions and I made an outline of them. We had a lot of First Amendment cases in those days. To come back to the drill, I or whoever was on the case, we would look up the law as he had announced it before and read the briefs, do our own independent research, and we would write the dissent assuming what the majority was going to—we would try to igure out in the hallway with other clerks f or other justices what the majority was going to say. Usually it was clear enough. Then we would leave the draft for him. Now, remember I said that he would say, “Block out my dissent.” You would never, never say to Justice Douglas, “As your law clerk, here is my draft.” No. You would always refer to it as his draft, his opinion, even if he didn’t write a word of it, because he was the one appointed by the president, conirmed by the Senate. He never said this to me, fortunately, but he said this about law clerks in general. He said, “Listen, I’m the one who got appointed by the president and by the Senate, and if you want to start writing your own opinions, you go get the president to appoint you.” So when we wrote something, it was as if he wrote it himself. That’s why I put so much care into knowing his position on everything, within human limits. We would give him the draft and basically leave it on his desk at midnight, go home, get rest, be back in at 7:00 a.m., and then he would come in at 7:30 a.m. He would read the draft and if he liked it, he would make just a few edits. He would deinitely improve on it. He had ish own wonderful style of writing. He would usually say, “Send it to the print shop.” The Supreme Court had its own print shop, believe it or not, where the printed opinions were typeset. If he liked the draft well enough, he’d say, “Just send it down to the print shop.” That would go through the secretaries. You would ind out if you snooped around the secretaries; there’s my draft, and it’s on its way to the print shop. So that would be a sign that he liked what you had done. If he didn’t like what you had done, he would mark it up, annotate it, have a lot of questions, and still send that out to you via the secretaries. But it wouldn’t go to the print shop. There would be all these questions: why this, why that. And if you were very unlucky, he might call you in, buzz you in, and chew you out for a terrible job. That only happened to me one time. You would always hope that did not happen. If it did go to the print shop—they were great down there. They could get those things out in a day. So if it went down on a Tuesday, on Wednesday you would get it back, and your job was to make sure it was letter-perfect in all respects. He was very forgiving, more forgiving than I am, in perhaps bad grammar— I mean the grammar was never bad, but the syntax could have been more clean, more elegant ways to write things, and as you went through several drafts through the print shop, there was a little bit of lex- ibility to improve on the page proofs, but in retrospect, it would have been nicer to have had a couple of extra days with every single one of those to make it read slightly better. They all read at least okay, and some of them read great. But we were working so hard under so much pressure that we did what we could and it would go as many as twelve drafts to and from the print shop. I believe he allowed us to send directly back to the print shop all the printer errors. I don’t think he needed to see everything. But the

eight • 89 day came whenever he had to see the inal inal, and then he might make some more edits. That was the general process of getting an opinion out. But to circle way back, if this was an opinion of the Court, he insisted on doing the initial draft, and then it was your job as the law clerk to check every cite, to check every word, get all the typos out, make sure it’s letter-perfect. That’s the way the opinion writing went during the year. LM: In terms of your work schedule, there were nights when you got home or you left at midnight and then days where you came in the next day, and I think that I heard that you worked seven days a week. WA: We did. We worked every day. We worked Christmas Day, half-day, and New Year’s, both those days we had half-day in the oice. He never told us we had to dohat. t We just did it because there was so much work to do there was no other alternative. Richard Nixon was the president, and Douglas did not care much for Richard Nixon. He did not care much for Attorney General John Mitchell, and thought that they were running roughshod over civil liberties, and so there were a number of civil liberties cases at the time. He had lots of work. He had us busy on opinions all the time. He had a funny story about Nixon. He said that Nixon and Mitchell were always spying on him. There had been an efort to impeach Douglas. Gerald Ford, when he was in t he House, had tried to get Douglas impeached over a magazine article he wrote in a magazine called Evergreen. The article was about why young people rebelled. Some people took ofense in Congress, one of thembeing Gerald Ford, so there was an efort to impeach Douglas. That never succeeded. They never did get the votes to impeach him so there never was even an impeachment trial. Because of that notoriety, Douglas felt that the people at the Justice Department were spying on him, trying to get more evidence for an impeachment, because if they got rid of Douglas, there would be an opportunity to appoint a replacement that might change the liberal/conservative mix. So anyway, Douglas told us one day; he said—he held up a piece of paper—we were talking in chambers in a more casual way. He said, “I know they’re spying on me. They try to listen to every call and they get a copy of everything that goes out of these chambers.” He said, “But I at least make it hard on them.” He ripped up the piece of paper and he said, “Half of it I throw into the ireplace and burn, and the other half I lush down the toilet—but they get it anyway.” [laughter] He was laughing as he said it because he knew it was funny. That’s kind of the way he felt about Nixon. Fast forward to an interesting thing. This was before Watergate, and I was still working as a law clerk at the Court, but Douglas had already left to go to Goose Prairie for the summer of 1972. There was a story in The Washington Post about a break-in at the Democratic National Headquarters at the Watergate. I had never even heard of the Watergate. That was an upscale condo place, I guess, but they had some business oices there, too. And the Democratic National Committee headquarters was there. This was in ’72 as people were gearing up for the November election. Nixon was president, seeking to get re-elected. And I said to myself—because Douglas had been more and more on this whole thing about Nixon and how bad he is and he won’t stop snooping. He really thought Nixon was completely lawless, which he was right about. I didn’t yet believe that myself. I said, there must be some decency in the man, because he’s president and he must have some respect for the oice. When this story ran—it might have been the front page—but it wasn’t the headline. It was a smaller story that said “Break-in at National . . . .” I read the thing and immediately wondered if Douglas wasn’t right. Who would want to burglarize the Democrats? They’ve got no money. Why would they be burglarizing an oice? It has to be the Republicans and that means it’s got to be Nixon. That was the irst time that I thought that maybe Douglas was right about all his suspicions, his dark suspicions about Nixon in that era. LM: Were any of those suspicions that Douglas had in terms of Nixon possibly having his administration spy on Douglas—did any of those ever come to light?

90 • eight Suzan teaching Allison to swim, 1974

WA: That’s a great question, and there must be records somewhere that would indicate what wiretaps had been placed and so forth within the Justice Department. I don’t know the answer to that question. Another thing in that respect, he would have Harry Datcher, the messenger, drive him around town, Harry told me once, in order to ind a phone booth on the street,d an Douglas would hop out and make a phone call, if it was a private call. He was concerned that the Court telephones were tapped by the Justice Department. LM: It makes sense. WA: It could be. Now that we look back on it, I don’t blame Douglas for feeling that way. They probably were tapping some of the phones and he would be a prime person to have tapped. So he just went to a random phone booth. LM: In terms of his deep interest in the environment and your exposure to the area of conservation and the environment—he was from the Cascades and you later have had long involvement at Yosemite and in other beautiful places—was that something that you trace back at all to that time? Was there ever conversation about that, and photography as well? WA: Basically, no. I have wondered myself from time to time whether or not my own interest in the mountaineering in the Sierra can be traced back to the one year that I spent with Douglas. Maybe in some small way, I think that there’s a possible connection, but before I had that job, I had not done any mountaineering, but I had done a fair amount of camping. I liked living outdoors. I liked camp life. I liked hiking. I think that part of my life would have developed anyway, but I don’t know. It’s a good question. There is a good story to tell on the hiking part when I was with Douglas. Do you want me to tell that story? LM: Please. WA: It involves the C&O Canal. In about late March of ’72—this is after we had worked every day, including part of Christmas, part of New Year’s Day—we, the law clerks, the three of us, decided we would ask him if we could take of the Saturday in April where they did a reenactment of one segment of the C&O Canal hike from the early ifties. Here I need to explain what that was. In the early ifties, The Washington Post had supported a proposal to pave over the C&O Canal and turn it into a freeway. The C&O Canal was a canal built about 1820 that went all the way from Pennsylvania down the Potomac, all the way into Georgetown. It had a tow-

eight • 91 path alongside a canal with just enough room for two small lat boats to pass each other. There were locks every few miles; there would be a lock to raise you up a little higher in the river. It’s a wonderful piece of Americana. That canal was never a commercial success. Its best use was in 1862 to transport troops to the Battle of Antietam—the canal went right through Antietam. In about 1952 or 1953, when The Washington Post supported the pave-over, Douglas wrote a letter saying he was really disheartened that The Washington Post would support such an idea. It’s a bad idea. It should not be paved over. We should preserve the C&O Canal, and he cited some ideas on zoology and botany and what a refuge the Canal was from the cares of the city. He then ended the letter by challenging the editors of The Washington Post to hike with him the entire distance—I think it’s 180 miles—from Cumberland all the way down to Georgetown. The Washington Post editors accepted the challenge. In the summer, they did the entire hike, and Douglas organized a group of botanists and zoologists and other conservationists who wanted to save the canal. They planned the camps for every night. Food, liquor, campires, lectures on the history of the canal and so forth. They would get up every day and they would start hiking. These poor editors were run ragged. They would stagger into the camp, the ires would start, the tents would go up, the great food would come out. Douglas was perfect for this, because he knew how to do a pack train and so he had the exercise well-provisioned with great good and great liquor and great stories, experts who could explain what was what. During the day they would get to these little river towns along the Potomac, and this group of ifty or sixty people would go walking by and these river kids would be out there with signs saying “God Bless Justice Douglas” and “Save Our Canal.” They got all the way to the end. It took them ten days, I think. They got all the way to the end and the editors had had such a good time they reversed their position and said, “We agree with Justice Douglas. We have to save the Canal.” Today, the canal is a national monument. It was saved by Douglas, and it’s under the jurisdiction of the National Park Service, and if you look carefully in Georgetown, at the very end, there’s a little bust of Justice Douglas that makes mention of his important role in saving the canal. Really, he single-handedly did it. I’m not exaggerating. If it hadn’t been for him, that would have been a freeway by now, just like the George Washington Parkway on the other side of the river. This would have been paved over. Anyway, thanks to Douglas, we have that legacy. Now going back to late March 1972, we clerks decided to leave a note on his desk asking whether it would be okay if we took that day of so we could go on his annual hike,because every year, they did a ten, twelve, thirteen mile one-day hike, a reunion, to remember the longer hike. The reunion wouldn’t be the whole length; it wouldn’t even be overnight. It would just be one full day hike. That particular year, the hike was going to leave out of Antietam, the site of the bloody 1862 battle, and go toward Washington for twelve or thirteen miles. April is a pretty month there. It’s not hot. The trees have started to green, and it’s a pretty time. We wanted to get out and have one day of fun, and it wasn’t our thought that we would walk with the justice, because he really belonged to the reunion that day. We just wanted to get out there and have an excuse to be outdoors. So we left that note on his desk asking for his okay to miss a day of work. Well, we thought in a couple of days we would hear. Two days went by, we didn’t hear a word from him, and we’d say, “Are you sure you put that note on his desk?” Yes, it was right in front. He couldn’t miss it. Another couple of days went by. Well, anyway, more than a week went by and he said nothing. We felt it was not our place to say anything to him. This was just his way of telling us no. Okay, that’s all right. We had a great job; we were going to just continue working. We didn’t have to go on this canal hike. After a few more days, while we were sitting at our desks working away at the end of the day, he came out through the door between us and his chambers. He had stuf under h is arms and he had a ield jacket

92 • eight on. It looked like he was getting ready to go. It was a little unusual that he came through our door, which he was always welcome to do, of course, but his pattern was otherwise. He came through and my desk was the closest to where he would come through. He just put thispile of stuf down on my desk and started pointing and talking, and so of course all three of us got around him to see what was up. He had a map, and a river running by this little town. My eyes were adjusting to it. I was trying to igure out what it was, and saw that it was the town of Antietam along the Potomac River. And he pointed to an X and he said, “The night before, this is where you should camp.” He had a very precise X in this little municipal park in Antietam. Then he said, “Where this Y is, is the American Legion Hut, and that’s where you meet me for breakfast at 7 o’clock the next morning, and the hike will begin after that.” We immediately knew he was now giving us the okay to go on this hike. Now, mind you, we hadn’t given any thought to the logistics of doing any of this. I just assumed we would get up early in the morning, drive over there, park our car—I hadn’t given it any thought myself, but now he had given it a lot of thought. He wanted us to camp at that X. And by camp, I mean literally, just put your bedroll out on the ground, and then the next morning we would meet him at the American Legion Hut and have pancakes. We were all thrilled. We said, okay, great, we’re going to do that. Finally, he said, “Now, listen, it is going to be cold out there on the ground, camping out the night before. So here’s something to keep you warm,” and he produced a brown bag and pulled out this big bottle of scotch. It was a wonderful moment, because we had given up on the idea of going and now suddenly he was being so generous and not only giving us the time, but he had gone to the trouble to work out the logistics for us, plus he’d given us this bottle of scotch. We did exactly what he told us to do. All three of us were married. All six of us came. We camped there and it was cold. We had sleeping bags but we didn’t have insulated pads. I don’t know why I didn’t know about insulated pads, but I didn’t yet know about them and my wife and I were just as cold as could be that night because without an insulated pad, your body heat goes straight through the bag into the ground. But we got our share of that scotch. That helped us get through the night. The next morning we met the justice at the American Legion Hut, just as advised; we had our pancakes and then the hike started. That day, he belonged to the public and we just hung back or went ahead, although his wife, Cathy, stayed with us for most of that trip. She was our age exactly and was then a law student in Wash- ington. She hung out with us and we all had a great day. That’s the story of the long hike. The one day we got of, the only day we got of that entire year was the day of theC&O Canal hike. LM: I saw a black and white photo of the justice and Cathy on that trail, one of those commemora- tive—it might not have been that year. WA: I think it was that year. I’ve seen that same photograph, and the reason I think it was is not only because it was the C&O Canal, but because she looked just the same as in that era, the way I remember her. I am sure it was the same trip. I think that was at the talk I gave at the brown bag lunch. That’s where we saw that photo. LM: Yes. You showed that. In terms of the cases that year—there were a huge number of cases; I think you said you worked on 80. WA: Well, 186 opinions we did, if memory serves, but there were only—I shouldn’t say only; there was still a large number—I think there were 125 cases or so that were heard and argued by the Court, which is a much larger number than they have been doing for the last twenty years, at least. The diference was accounted for by in-chambers opinions, on stay applications, dissention, denial of certiorari—so there are things like that, in addition to the 125. LM: Were the law clerks allowed to listen to oral argument? Did you go into the Supreme Court?

eight • 93 WA: Very rarely. Justice Douglas didn’t like that. He rarely asked a question at oral argument. As a general rule, he already had his mind up before he went in there, and felt like the others did too and that this was not much of an exercise, but he felt that it was better for us to be in there working rather than being entertained. We saw a few. LM: I was thinking maybe you heard the solicitor general argue, or other arguments, but it sounds like that might have been rare. WA: A few times. The way we had to do it was we would make sure he was already on the bench, and then we would go behind the pillars where he could not see us but we could at least see who was arguing at the lectern, and then Douglas wouldn’t be able to see us back there, but we could see part of the bench, not much, and we could see all of the lawyers who got up to argue. We could hear everything. Douglas would occasionally send a note back to chambers from the bench. I still have some of these notes at home. The way that worked is that up on the bench all of the justices had a little notepad, and the note- pads were three inches by four inches, maybe, and up at the top it said “United States Supreme Court” in italics, and then a line for the date, and then there would be this small area, maybe three by three or so where the justice could write out a question or comment. All the justices did this from time to time. The question might be, “Send me 296 U.S. 342.” Your job would be to run and get that book and to take it and give it to the page. The justice would write that out, and then just drop their right hand down behind the chair. And lurking back there behind the red robes were these messengers, or pages, who would be looking for notes from the bench. Douglas would fold it over once and write, “To Alsup” on the back. They would know that that went to his chambers to Alsup, so I’m supposed to be sitting at my desk, not listening to oral argument. I would get the note. I would go get the book and hand it to the page—so you couldn’t be gone very long without running a risk that he would send a note and learn that, because of the delay in response time, that you were not at your station. Nevertheless, I did see some of the oral arguments. Here’s a funny story. I was on a case called Branz- burg v. Hayes and U.S. v. Caldwell. It was a very important decision that term about what we call the journalist privilege. Ultimately, the Supreme Court said there is no First Amendment journalist privilege, and when the grand jury subpoenas Earl Caldwell, a reporter for the New York Times to get his notes about meeting with the Black Panthers, that he had to turn those over. That was a ive to four decision, I believe, Douglas in the dissent. There was a parallel state case involving a state grand jury doing the same thing to some newspaper reporter in Kentucky. The Supreme Court put both this famous New York Times case down for oral argument in tandem with the Kentucky case that came out of the state court system. Sometimes they liked to do that—a federal case, a state case, the same issue—sometimes there could be a possible diference between a federal and a state case. In that case there was not. Famous people were arguing. Erwin Griswold argued it for the United States, and a lawyer named Alexander Bickel, who was an extremely famous Yale law professor of the Felix Frankfurter school, someone who didn’t really care much for Justice Douglas, and Douglas didn’t care much for him, either. Then there were the local Kentucky people, from this case called Branzburg v. Hayes. That was the companion state case. The case comes up for argument and Erwin Griswold argues and then Alexander Bickel argues. They’re very erudite. They cite all kinds of famous decisions and principles, and the courtroom is packed. Finally it’s time for the local DA prosecutor to stand up and argue. And of course this guy had probably never argued in the U.S. Supreme Court, and suddenly he found himself in this gigantic case. Douglas interrupted him and asked a question. Now, remember I said Douglas almost never asked a question. That alone showed that something was up, that he would ask a question. Douglas’s question

94 • eight was something like this; he said, “Mr. So and So, I’ve read your brief, and I notice that you’ve cited all of these Kentucky local decisions, but you did not cite a single precedent of the United States Supreme Court in any of your brief. I’ve read your entire brief.” Now, this is the way Douglas was. He would have read this brief. He was probably up there reading the entire brief and he realized that this guy didn’t cite a single First Amendment precedent of the Supreme Court. Douglas says to him, “Here we’ve had Alexander Bickel argue; we’ve had Erwin Griswold argue. This case is immensely important to the country. How can you justify, Mr. District Attorney, how can you justify, in a case of this importance, iling a brief in this Court tha t does not cite a single decision of the United States Supreme Court?” It was a packed courtroom. You could’ve heard a pin drop. Everyone was, my God, what is this guy going to say? Well, here’s what he said. He said, “Well, Mr. Justice, what you have to remember is that I’m a very busy man.” [laughter] Even Douglas laughed. That got him of the hook. That was one of the best responses I’ve ever heard in any oral argument. It was so good. Humor saved him. This was a long-winded way of answering your question, did I ever get to see any of the arguments? Yes, a few, like that one. And I did work on that case. He dissented in that case and I helped work on his opinion. I also saw the Pentagon Papers argument. Maybe a dozen arguments all year long. I did not want to be absent from my post when the message came that he needed me for something. He sent back this note about Sierra Club v. Morton, when the oral argument in a diferent case was underway. The note said “Harry Blackmun says that my opinion in Sierra Club v. Morton is the best thing that’s been written all year.” Just to give you an insight into Douglas, that was his way of tweaking me a little bit. Douglas had written the entire thing, by the way. I thought it was magniicent. I had, in a dif- ferent case, I think, suggested that we might change a paragraph and perhaps one of the other justices would join in. Douglas didn’t care anything about any of that. He didn’t care who joined him or not. Sometimes he might say, “Well, if you care so much about Justice So and So, why don’t you go clerk for him?” That note was his way of saying we do very good work here, and here’s Blackmun, who recognized that. It was his way of tweaking me for whatever I had said in that other case. On the face it had nothing to do with it, but I knew him well enough by that point to know what was up. That’s Douglas and his note-sending system. LM: So at that point with those opportunities—a little bit rare—but those opportunities to observe, did you know that you wanted to be a trial court lawyer? WA: I knew that I wanted to be in the court system as either a trial lawyer or an appellate lawyer. I didn’t fully understand the role of trial lawyers then, so I saw myself as someone who was going to go into a federal court as a lawyer. At that time I was not drawing the sharp distinction I would draw now between a good trial lawyer versus, say, appellate lawyers. I see that distinction much more clearly now, after so many years, but at the time I just saw myself as somebody who would be in the federal courts as a lawyer. I guess the answer is the trial lawyer aspect was not one that had sunk in on me yet. Douglas thought—I should say this while I’m thinking about it—today, as then, there is a small cadre of excellent Supreme Court lawyers who specialize in arguing cases in the United States Supreme Court—Seth Waxman is just one of the many examples—so back in that era it was also true, like Alexander Bickel, from the New York Times; he was a well-known Supreme Court advocate. Well, Douglas would tell us every now and then; he said he liked to see—like that Kentucky prosecutor—except somebody who could at least cite a case in the Supreme Court—he liked to see the lawyer who tried the case appear, because that lawyer would know what was in the record. It was also his way of being a little disdainful of the elitism that goes on with Supreme Court arguments. Even then that was

eight • 95 true. He felt like the lawyer was good enough to try the case, the lawyer was good enough to explain it to us, and what’s in the record and not in the record. There’s some truth to that; I recognize that, but there’s also value in knowing what the justices on the Supreme Court are going to expect from the lawyer who argues the case. LM: I didn’t realize the time. We can stop because it’s late. WA: Yes, let’s stop.

96 • eight nine

Supreme Court, work schedule (continued) Howard Hughes and Hughes Air West case Sierra Club v. Morton: footnotes, concurring opinion, “trees have standing” premise Roe v. Wade: right to privacy and issue of re-argument

LM: Today is June 15th, 2016 with Judge Alsup, and we’re taking up where we left of in the 1971 to 1972 period when you clerked for Justice Douglas at the Supreme Court. I was interested in knowing the types of schedule you kept; the hours you worked, if you even took a lunch break. WA: Douglas came to work at 7:30 a.m. almost without fail. I’m sure he was the irst justice in the building, with the possible exception of Harry Blackmun, who was also an early morning person. And so we, the clerks, decided one of us always had to be there before he arrived, so that person would be there at 7 a.m., although as it worked out, almost all three of us clerks were there before Douglas arrived. One would always be sure to be there at 7:00. The others might roll in at 7:15 or 7:20, and so we would all be working at our desks when Justice Douglas arrived. This was true even in the winter when it was dark outside at that time of day. The end time was usually twelve hours later, except if you were the one who was in charge on a Thursday night of putting together the cart, which was the cart that had the cert petitions on it, and our memos whether to grant or deny cert. Douglas did not participate in any pool. He always wanted to have his law clerks do an analysis of the cert petition based upon his own views of things. We put the cart together the night before the conference, which would be on Fridays, when they didn’t hold court in the courtroom, but they would be in the conference room deciding cases and deciding on what cert petitions to grant. That clerk who was in charge would be there until midnight, because that was a time-consuming job. It had to be done just so. Probably anywhere fromthirty to ifty cert petitions were considered each week. On those nights you would be there pretty late. My own individual schedule was built completely around that. At home I had of course Suzan, my wife, and Allison, our daughter, who was then about a year and a half old, and I would get to work about half the time on my bicycle and about half the time Suzan would take me in the family car and drop me of and she would pick me up at the end of the day. We worked also Saturdays and Sundays. Usually Saturdays we’d quit sometime late afternoon, like around four o’clock, and start those mornings close to 7:30, maybe eight o’clock. On Sundays we usually quit at noon so we’d have the afternoon of on Sunday, but not necessarily, just depending on how far behind we were on our work. It was a very tough schedule, but when you know you’re only going to be doing it for a year and you know it’s the opportunity of a lifetime, it’s okay, you say to yourself, I can do this. I can do this for a year. I am never going to have another chance to do something like this in my life, so I’m going to take full advantage of it. I think all the law clerks in the building must have felt that way, because no one ever complained about how hard it was. LM: Very intense. So this was one of the most historic terms in the history of the Supreme Court. The volume of opinions was tremendous. I have the igure 186 opinions. I don’t know if that was accurate. One hundred twenty-ive cases heard and argued.

eight • 97 WA: Yes, we did more opinions than there were cases because he would do dissents from denial of cert. Let’s say it was something that—here, let me get—in fact, put that on pause. I have something I’ll show you. These bound books include everything we worked on in Douglas’s chambers that year. The slip opinions. It starts with number one, which is Adams v. Illinois. Each one is tabbed. It goes all the way up to—I said 186, but it looks to me like it stops at 13. It was more. These may be just the public orders. There were other projects that we did along the way. In any event, these books are something that Doug- las’s law clerks put together to remember the work that was done. LM: Interesting. WA: That gives you an idea of what we worked on in the course of—these two big, fat volumes—worked on in the course of a twelve-month period. LM: I am not familiar with all of the types of projects that you had. The chambers opinions, the dissents from denial of cert, and then there was another category. WA: These are the things that we would typically do. The majority opinion for the Court, if Douglas got assigned that, which did not happen too often that one year because he was usually not in the majority, but if he did get assigned to it, then he felt an obligation to write that himself. Once he wrote it he would turn it over to the clerk who would ill in some cites and add som e cites to the record and do a review for grammatical errors and things like that. If it was a concurring opinion of his own or a dissenting opinion of his own, sometimes called a separate opinion, then he would occasionally write it himself but almost always he would ask the law clerk to do it. He liked the phrase “block out”; he would say, “Alsup, block out an opinion for me on” whatever case it happened to be. He might give me a few ideas, but really for the most part he just expected us to know his own positions on the First Amendment and everything else, so that we would just pick up with what he had written in the past and apply that to this case. It was a lot of homework that we had to do to igure that out, but that was the typical pattern. He would look at what we wrote and sometimes say, ine, but the main way he aids ine was indicating that it should go to the print shop. We gave it to him in typescript; it would go to the print shop. He wouldn’t typically call us in and say “This is a great job.” He was not that kind of a person. He would just send it to the print shop. That would let you know that it was at least good enough to go to the print shop. If he didn’t like it, though, you would hear from him that it was not a good job; here’s what’s wrong with it, among other things. That did not happen too often. He has a reputation that it happened a lot, but it only happened one time with me. I will tell you that story at some point. Did I tell you that story already? LM: No. WA: It’s a good story. You know who Howard Hughes was? LM: Yes. WA: This case involved Howard Hughes. Now, Howard Hughes, today, he has mythic proportions, but it was even true then. Part of the reason that he had mythic proportions was his secrecy thing. He was a Hollywood mogul. He bought and sold companies. He was in the oil business and the airplane business. He had this hugely private, secret thing about himself. The world knew about Howard Hughes, but he was rarely seen or in public. He was quite a character on the American scene. Well, I think Douglas liked Howard Hughes. I don’t know if they ever met. But Douglas liked people like Howard Hughes. Howard Hughes was somebody who actually got things done in the country. Douglas admired that. Hughes could get an airplane built. He could build a canal. He could build many things. He could get the job done. And he liked privacy. Privacy was something that Douglas also appreciated. This case was an antitrust case brought against Hughes Air West and Howard Hughes by former

98 • eight shareholders, I believe, in TWA Airlines. The theory of the case was that Hughes Air West had acquired TWA, which at one point was like Pan Am, a major airline, but had fallen on hard times, so Hughes Air West, owned by Howard Hughes, had bought it up for less than it was really worth and run it into the ground and ran out the franchise, so really the people who had been the former shareholders in TWA were upset and mad that their investment didn’t work out and they didn’t get paid what they should have been paid. I don’t know if any of that is really true, but they sued under the antitrust laws. One of the very irst things that the plaintifs did was to try to take Howard Hughes’s deposition, and of course they knew he was a private guy. There was no way he was going to show up in a room full of lawyers and give testimony, and of course the plaintifs' lawyers knew this, and wanted to take advantage of it. They gave notice of deposition and, no surprise, Hughes did not show up. So they all went to court and the district judge—this was in the Southern District of New York—the district judge ruled that he had to show up. He issued an order that he must show up. Well, once again he did not show up. This judge was pretty patient and I think there was eventually a third hearing, and at the third hearing he said, okay, I will protect Mr. Hughes against all of this harassment that you are telling me is going to happen. We will have a special master there to regulate the deposition, and the special master will be Herbert Brownell, who was a former attorney general of the United States, then still alive and was happy to serve as a special master, and so the idea was that no one could think that Howard Hughes would be abused if you had a former attorney general there to regulate the deposition. The deposition date came; Herbert Brownell showed up; all the lawyers showed up, but Howard Hughes still did not show up. The district judge inally said, “All right. I am going to enter a default judgment against Howard Hughes and against his company. He is such an important witness to this. The plaintifs' lawyers say there’s no way the case can go forward without his testimony, so there’s really no alternative but a default judgment against Hughes Air West and Howard Hughes.” The issue became what are the amount of damages, and they had a prove up hearing for damages, and the number came up after trebling, to more than 100 million. In those days that was a lot of money. It was a default judgment for a lot of money against the defendant. It went up to the Second Circuit and was airmed. Now, I am just a young kid and while I had heard of Howard Hughes, I had never heard of this lawsuit. I am sitting at my desk in Douglas’s chambers in the law clerk room on a Saturday, and Douglas comes in through our door and he says good morning, and then he says, “I want you to know whenever that Hughes case gets here”—he might have said Hughes Air West, but I think he said when that Howard Hughes case gets here—“we ought to grant cert and reverse.” He almost never said that. He had read about the case. We all pretended we were up to speed and said, “Of course.” What else are we going to do? He’s the boss. And who’s going to betray their ignorance and say something dumb like “What case is that?” He goes into his chambers and he works. Now fast-forward several weeks, as much as eight or nine weeks. Lo and behold, I became the law clerk who actually gets the cert petition on behalf of Hughes Air West and Howard Hughes, challenging the default judgment for over $100 million. I happen to remember the comment by the justice—that’s the good part; I actually remembered and said, this is the case he was talking about a few weeks back. I open it up and I read all the briefs, and it is so complicated. It’s got all these rules that relate to antitrust, the Civil Aeronautics Board and primary jurisdiction and was this even properly brought in the United States District Court. It was so hard to try to master that in the time that I had available. I worked it up and at the end I knew that he wanted to grant cert, so I wrote up a long memo, saying, at the end, “Grant.” I think it may even have said something like, I know you told us, you mentioned this case earlier, and this

nine • 99 memorandum agrees with your inclination at the time to grant cert. I happened to be the law clerk who did the cart that night. I remember this very clearly. It was a Thursday night. I am sitting there. My two co-clerks have gone home and it would probably be about eight o’clock, nine o’clock at night, and in the door comes Paul Gewirtz, who is a professor now at Yale Law School, and Paul comes in and says, “What are you going to do about the Howard Hughes case?” If it had been one of the other clerks—it just happened to be that I was the one working on it. I said that we were going to recommend grant and reverse, or at least grant cert. Gewirtz, who was then working for Thurgood Marshall as a law clerk, Gewirtz just launches into a speech—and I remember the exact phrases—“fat cat justice”—he said Thurgood Marshall refers to this as “fat-cat justice.” If someone gets a big enough judgment against him, the Supreme Court is going to reach down and bail them out. Paul goes on and on. I’m just listening. Now, it’s hard to remember this era, but in that era, those of us who were going through law school, the Federal Rules of Civil Procedure were pretty close to the Ten Commandments. The Federal Rules of Civil Procedure had just come online in the late thirties, and they were now, I think, only in their second and third revision. The Federal Rules of Civil Procedure were the best thing going in the courts, and here was a guy, Howard Hughes, who was launting the rules and not showing up for the deposition and not abiding by that each side is going to get discovery, and the district judge bent over backwards to protect him but he still wouldn’t show up, so he deserved what he got, and this would be a good opportunity to vindicate the purpose of the Federal Rules of Civil Procedure by denying cert. This was Paul Gewirtz talking. Deny cert and vindicate the Federal Rules of Civil Procedure. I’m listening to all this. So he persuaded me that this should be the right thing. Paul goes back to his chambers and I’m sitting there thinking, “Okay, he’s right.” I took out the last page of my memo, which said, “Grant,” and I rewrote the conclusion and I said, “Deny.” He got what he deserved. He should have shown up for the deposition, Herbert Brownell, all that. I put the cart together and put it by his desk so he could see it in the morning when he got there at 7:30. I remember that was a day I rode my bike to work. It was dark. I had to ride my bike about four miles to the southwest part of town—maybe just three miles. Anyway, it took ifteen minutes. I get on my bike. I am riding; I get home; I crawl in bed. I remember crawling in bed. I said, “I just made the biggest mistake of my life. What got into me?” This was the stupidest thing that I have eve r done. At least I said, okay, I’m smart enough to realize it. It’s no problem. I’m dead tired now but I’ll get up even earlier and I’ll go in in the morning and I’ll go in there—he gets there at 7:30—and I’ll go in there and change it. I’ll go back to the way it was, saying “Great.” I probably even still had that page somewhere. It would have been easy. So I do. I get up early enough to get there by seven o’clock for sure. He gets in at 7:30. I igured that would give me plenty of time. It’s the one time he was already there. The justice was already in there reading those memos. No, I can’t do it now. He’s going to see what I wrote. I am going to be ired. I sat there on pins and needles until eleven o’clock. At eleven o’clock the buzzer went of and Iopened the door or somebody opened the door and he said, “Send in Alsup.” I go in, and he was so agitated, he couldn’t bring himself to say even the irst sentence. His irst sentence was, “This is the worst memo I have ever seen.” I said, “What’s wrong with it?” That was another stupid—I should have just said, “You’re right. It’s bad.” I should have explained everything. Instead I said, “Well, what was wrong with it?” He said, “You didn’t cite the statute.” That was a tiny criticism, because it was the Sherman Act and he knew the Sherman Act by heart. But okay. I was waiting for him to just ire me, because we had been warned that if he got mad at you, you would be ired, but you should show up the next day anyway, because he never really meant it. The only thing he said was, “If this is the kind of ”—he probably used the

100 • nine word “crap,” but I don’t remember the exact words—“If this is the kind of stuf I’m going to get from my law clerks, why do I need law clerks?” Finally I said something smart. I said, “You’re absolutely right. I’ll try harder on the next one.” And he couldn’t think of anything to say, and he waved his hand and I knew that meant for me to get out of there. So at least I got out of there without being ire d. For the next couple of weeks, he made an efort not to talk to me . He was fuming. He wasn’t mad because it was a bad memo. He was mad because he had told us which way he wanted to come out and I had gone against him. Unlike some justices and some judges here who actually want somebody to argue with them, Douglas really valued loyalty and when he told us he wanted to come out a certain way, that was the end of it. We should not question that. After a few days I realized I wasn’t going to be ired and I would be okay, and I igured he would eventually get over it, which he did. The Supreme Court did in fact take the case, granted it and did reverse, and I learned a lesson in this. The ground on which it was reversed is the correct ground, I now know after many years, and that is that you cannot enter a default judgment unless the complaint actually states a claim for relief. The Supreme Court analyzed the problem and I believe they said that the whole thing was under the primary jurisdiction of the Civil Aeronautics Board, which I guess had approved the merger and, therefore, there was not an antitrust claim that could be brought by these former shareholders, and so since the complaint did not state a claim for relief that was cognizable, there was no occasion to enter a default judgment. That was something that Justice Douglas recognized right of the bat from great years of experience, whereas a kid like me didn’t know any better, I had never appreciated that issue until I later saw how the Supreme Court dealt with it. I believe he wrote the majority opinion. Here’s another thing. When you see that opinion by the Supreme Court, none of that procedural history is in there about not showing up at the deposition. I don’t even think Howard Hughes’s name is mentioned—certainly the deposition is not mentioned. It could be that he is mentioned as a defendant. But the essence of it was very short and sweet. The complaint did not state a claim for relief; therefore no default judgment should have been entered. End of story. End of case. And millions of dollars evaporated. So, that was the one time that he got mad at me. And, he should have gotten mad at me. I went exactly opposite of the way that he had told us he wanted to come out. LM: It sounds like he had his way of deinitely letting you and the other clerks know, but it was indirect. WA: He was a direct guy. Today, employers are namby-pamby about the way they treat employees, and a lot of employees, especially if they went to Stanford, don’t like criticism, because they think they are God’s gift to the world. How could they be criticized for anything? Hewas not like that. He was much more direct and willing to criticize, and he was old-school in that sense. But you are correct that he could be indirect. He was indirect in this sense. He said it was the worst memo he had ever seen, but it wasn’t so much the quality of the memo but the conclusion of the memo that he didn’t like. LM: It is hard to recognize the signiicance that Howard Hughes had in the culture at that time. The more he disappeared from view, the more the mystique increased. Sightings of him and reports of his behavior. WA: Remember all that stuf about the will? Remember the will and the Mormon thing, and then of course no one knew whether he had actually died or not, because he was so secretive. No one had seen him in a while; it was not clear that he had actually died. That whole mystery that was sometime I think in the early eighties, but I’m not sure. His whole life, or let’s say the second half of his life, was very mys- terious. LM: I know it was the term before that we were looking at some of the cases just now, and Muhammed

nine • 101 Ali’s case came, the conscientious objector case came. Was that a case that was discussed when you were there? WA: I don’t remember a thing about it. When you and I looked at it a few moments ago, it appeared to me that it was from the term before, and we had enough on our plate, so I don’t remember any discussions about that. I do remember a lot of discussions about conscientious objector and Vietnam protestor cases that came up, that we dissented from denial of cert in a number of those cases, so that was kind of a regular thing, because the Court didn’t take them. Somebody would be sent to jail for ive years for not reporting for induction, and Douglas would dissent from those, typically. That was not really the conscientious objector issue that the Supreme Court actually did take on the merits and decided in Ali’s favor the term before. LM: There were so many cases that term, and I have noted a few of them. Sierra Club v. Morton. Was that a case that you drafted an opinion on? WA: I didn’t draft it, but I did work on it, and I think that’s a story worth telling. By this time, Douglas was talking to me again. Sierra Club v. Morton touched on environmental law and wilderness, values that were right at the core of what Douglas was all about. Many judges and justices could not care less about whether the river ran clear and clean. It was just something they had to get over on a bridge. They didn’t care much about wilderness or ecology. That word didn’t even exist until sometime in the seventies, I think, but for Douglas it meant a lot. The case started in San Francisco in this very courthouse. It was brought by the Sierra Club Legal Defense, which was in its infancy then, and I don’t think it was even called the Sierra Club Legal Defense. It was an ofshoot of the Sierra Club. The problem they were trying to stop was a ski resort in Mineral King Valley. Mineral King Valley, which I have hiked out of three times, is down near Visalia, but up in the mountains. You get all the way to Visalia, go up past Three Rivers and then eventually you get to some dirt roads that go of towards Mineral King. In those days it was in the National Forest, not the National Park, and thus was under the jurisdiction of the Department of Agriculture. Los Angeles, with all those millions of people needing a place to go skiing. Most of them, even today, go all the way to Mammoth on Route 395, which is a great ski resort, but it’s a long way to go. I think it’s ive or six hours to drive from Los Angeles. Walt Disney got the idea of let’s get the Forest Service to let us build a resort in Mineral King. That would have been two and a half hours max, maybe three hours from Los Angeles. They had these elaborate plans—gondolas, big chalets. All of the pine trees would be cut down and houses built there and infrastructure put in, and roads would be paved. It would be a major disruption. The Sierra Club Legal Defense brought a lawsuit to stop this, saying it was a NEPA (National Environmental Policy Act) violation. It was heard here and I believe the district judge ruled in favor of the Sierra Club. That part I am not sure of. It went up to the Court of Appeals for the Ninth Circuit, and the Court of Appeals said no, the Sierra Club did not have standing to challenge the approval by the Forest Service to allow this project to go forward. That was the issue tendered in the Supreme Court cert petition on behalf of the Sierra Club, and it was granted. The Supreme Court granted the review of the standing issue, and it was heard on the merits the term that I was there. It was heard, I think, around February, roughly in the middle of the time period. By random draw, I happened to get the case. So Douglas, after the oral argument, came back and—let me stop for a moment. For him, this was one of the bigger—we could tell he had been reading up on it, reading the briefs, reading some other materials. There was a law review that had come out on this issue, and I’m pretty sure he read that article. It was in draft form at the time. Somebody had sent it to him. So, he had been thinking about the issue. It wasn’t that he justcame of the bench from the oral argument and wrote this. He had been contemplating it. After the oral argument, he did come of the bench

102 • nine and went into his chambers, and then produced a hand-written draft that turned out to be seven or eight typescript pages, which one of his two secretaries typed. Under the procedures that we followed, the secretary would bring it in and say, “Whose case is Sierra Club v. Morton?” I would raise my hand, she would then give me the draft and say, “Here you go.” So my job at that point would be to edit it to see if I saw any errors in it, to make sure that there were no grammatical mistakes, punctuation errors and so forth. Even today I remember my reaction. It was a magniicent statement by Justice Douglas. And I knew then—I said to myself, “This is going to be remembered as one of his all-time best statements while he served on the Supreme Court, and I should not, as some low level law clerk, try to rearrange the wording of it in some way. This should stay as close to the way that he himself wrote it as much as possible.” Part of the opinion set forth the spiritual values of the wilderness and the biology of the wilderness and this whole other world that’s out there that the people in the city don’t realize. He also went on about how the wilderness is a respite from the city, which he very much believed. The second part of the opinion was to propose that inanimate objects like a lake, say, like Mono Lake or a forest or some wilderness ecosystem, that it had standing in its own right to bring a lawsuit, and that we could appoint someone to be the guardian. He would say, “Mono Lake against the State of California,” with a guardian ad litem appointed to do what was in the best interest of the lake and its ecosystem. To me, it is still a pretty reasonable proposal. He pointed out that we have corporations, if you think about it. A corporation is not a person, but by law we accorded it standing. Or a ship. A ship can be sued, and I think they can even have counter-claims in admiralty. A ship is allowed to be sued as an inanimate object. We have these in rem proceedings. He proposed that inanimate objects be allowed to sue in their own name. That was his separate opinion, and true to my original reaction, I did not change a single word in the opinion, except for one punctuation error. I thought I caught a very minor thing. If you go and look, even today, in the U.S. Reports and look at the text of that separate opinion, it is pure Douglas, with no interference by some low level law clerk. Now, here’s where the funny part comes in. Douglas calls me in and—he hits the buzzer and the buzzer goes of, “Send in Alsup,” Alsup comes in. Actually, he probably woul d have said, “Send in whoever’s working on the Sierra Club v. Morton,” so that’s me. I go in, and on his desk he has this stack of books that was about two feet high that he had accumulated from the library, one of the best libraries in the world is at the Supreme Court. He had already tagged the key pages and places, so he said, “Here is what I want you to do. I want you to write up a criticism of the Forest Service and how it has sold out to the logging industry and all of this clear-cutting that’s going on.” Clear-cutting was a huge problem in that era. Clear-cutting is when you don’t leave a single tree; the hill is denuded completely. Massive hillsides are just left with stumps and the ecosystem is just destroyed by clear-cutting. Today, they still do something like that, but they leave a number of clusters of trees. In those days you could just cut everything down. He said, “We are going to criticize them for clear-cutting.” Also, he didn’t like “Multiple Use.” The Forest Service had a program called Multiple Use, which was like car camping, forestry, ishing—you name it, it was like we ar e getting our bang for the buck from our forest because of multiple use. Douglas thought of it as a front for the logging industry. These hearings had been going on with Frank Church in the Senate about the logging industry, and so a lot of what Douglals gave me were hearings, and these were already tagged to the right page, so he said, “You just go out there and write this up.” I had this problem. I already knew that what he had written was a magniicent statement, and what he was asking me to do was going to ruin it, if I put that into the text. My solution was, I’ll just put it in footnotes, but still a problem—the footnotes had nothing to do with the text. Zero. The text was a lyrical statement about the spiritual values of the wilderness, and how inanimate objects ought to have standing

nine • 103 on their own, and then down in these footnotes was an attack on the Forest Service and its multiple-use policy and so forth. I wondered, where can I even hang the footnote? There’s nothing in the text that corresponds. It really was ridiculous. I would put at the end of each paragraph, I would put number one, number two. If you read the footnotes themselves from one to the end, they make sense. It’s just a stand-alone criticism of the Forest Service. If you tie it in to what’s in the text, it makes no sense. There is probably some law professor someplace who had gone crazy trying to piece that together. I worried that he would hate how I’d handled it. But he loved the footnotes. He was so pleased when he read it. He told me, “This is just what we want.” He went along exactly the way I had lined them up in the footnotes. He was proud of those footnotes. Those footnotes all came from the books that he himself had already accumulated. That’s the story of the Sierra Club v. Morton. I have got to give you one observation. Today, and ever since Sierra Club v. Morton, standing on behalf of organizations like the Sierra Club is taken almost completely for granted, and a major ofshoot of that has been trade associations like the American Petroleum Institute. Because of Sierra Club v. Morton, trade associations like the American Petroleum Institute have standing to sue to protest regulations by federal agencies, which was not true before. Before, you would have to have a particular company like Texaco sue, but now the entire industry can sue through the American Petroleum Institute on account of the standing rule that the majority in that case did adopt, which is a pretty lenient standard for showing organizational standing. LM: That’s what I wanted to ask you. What was the situation as far as the other justices who came together on that case? WA: I believe this was one before we had the full—I think we had just seven members on the Court. I think it was ive to two, maybe. The majority of the Court held hatt a group like the Sierra Club should have standing so long as it can allege that its members actually use, in this case, Mineral King, and will be disadvantaged in some material way by the proposed action. Very quickly it devolved into, this group has got to show that its members use the ecosystem in question and that they go hiking there, that they go ishing there. For whatever reason, they are going to be upset, and those people are members of the organization. I think you also have to show that your organizational purpose has something to do with the recreational value that’s at stake. It’s an easy standard to meet. It’s not a hard standard to meet. So that’s the lasting efect of that case. Now, Douglas’s opinion has never been adopted, but every now and then people look at it and say that’s not such a bad idea, but others ridicule it and say trees have standing. They call it the trees have standing opinion. There was more to it than that. In my view, it would have been the practical way to go, but because of the easy rules that the majority adopted, we have never had to resort to that. LM: In terms of some of the other cases, is there one in particular that you would like to segue to? WA: Yes, let’s talk about Roe v. Wade for a minute. Roe v. Wade was the abortion case. Have we talked about this at all yet? LM: No. WA: Have we got enough time to do this? LM: We can start. WA: Abortion in those days, and let’s just say in the sixties, abortion was almost uniformly illegal in all states, and it was something that was regulated by state law, not by federal law. When a woman wanted an abortion, she would usually go to some very unhealthy place that was like a black market—I don’t think Planned Parenthood had anything to do with abortions in those days. It was a very illegal thing in every

104 • nine Me in Justice Douglas' chambers, 1972. This was on my irst roll of ilm in my irst ever camera, a used 35mm SLR. state and in District of Columbia. But, there was agitation afoot; why should this be illegal? I remember one of the arguments was that this is forcing women to go underground and putting their own lives at risk with dangerous medical procedures. The people doing them weren’t even doctors, or might not be doctors. The idea was that this ought to be regulated above ground and done in a medically proper way. So that was the argument. Well, then along came the constitutional challenge, namely Roe v. Wade. I think there were two, one from Georgia and one from Texas. Wade, by the way, in Roe v. Wade, was the Wade who was involved in the Kennedy assassination. He was a DA in Dallas, Texas, and he’s the guy who actually prosecuted Jack Ruby for killing Oswald. He was the nominal defendant in Roe v. Wade because he was the one who had to defend the statute. And Roe proceeded under a pseudonym. So the case gets to the Supreme Court, and it had already been granted the term before. We knew this was one of the big items on our plate for the year, but we didn’t know how. The conventional wisdom was that it would come out against a constitutional right and say that this was a matter for the states to regulate. Change should come through legislation. That was the conventional wisdom of how the case would come out. It was complicated, though, because we lost two justices right at the start of the term, Justice Black and Justice Harlan. Both died, Black almost immediately and Harlan died about six weeks later. Suddenly we had a court that was down to seven, and you will remember that eventually Rehnquist got appointed, as did Powell, by Nixon, but they didn’t get appointed right away. It was all the way to the very end of the term when we were running on seven justices. So that becomes part of the calculus of the story of Roe v. Wade as the case progresses. Nevertheless, the time for oral argument came and oral argument was held and there were only seven justices up there. On Fridays, they would go into the conference room to vote. Now, this case was one that was randomly assigned to me again, so it sounds like I’m getting all the good cases, but that’s not true, because there were lots of good cases that year, and both of my co-clerks got great cases, like the death penalty cases

nine • 105 were up that term, Furman v. Georgia. That was my co-clerk Dick Jacobson. He worked on the death penalty cases. We had a blockbuster term. I had my share, and part of my share was Roe v. Wade. We would be curious on Friday afternoons after the conference how the votes came out. Douglas kept meticulous notes on these sheets of paper that were a little bigger than eight and a half by eleven. They were more like eleven by fourteen in a book that went all the way back to 1939, a series of loose-leaf sheets, and the comments that each justice made. He would usually just put down one sentence on what each justice’s views were. These are all in the Library of Congress now. He would often not tell us what the votes were, but I guess he knew we would sneak into the secretaries’ room and look at his notes and see how the cases were coming out. On this particular day, he did call us in. It was a Friday afternoon and he had the ire going in the ireplace and he brought out his scotch cart. He was in a very talkative mood and wanted to talk. One of the things he wanted to talk about—we always let him, of course, guide the conversation. He was writing his autobiography then, and it was in close to inal form, but he wa s still going through it and changing things. He was up to speed on all the stories of his lifetime, and he enjoyed polishing those stories. So he would thrust a scotch in our hands. I think I told you before, I had drunk very little alcohol in my lifetime, so just holding it in my hand almost got me dizzy standing there. He loved a good drink. He loved to talk and have a good time. He enjoyed those little sessions. We did too. I would sip and nurse my drink along. The ire would be blazing in the background, and as soon as it looked like we were getting to the end of that scotch, he would pour more. He was very generous in making sure we had plenty of scotch. Dick was probably the one who said, “How did the conference go today?” Doug las responded, “I think Harry is with us.” Now, there were many cases that had been brought up in that conference that day, not just Roe v. Wade, but everyone knew that was the big one for that day. When he said, “I think Harry is with us”—those were his exact words. He was referring to Harry Blackmun and telling us he was going to break from the Chief, who was Warren Burger. Now, we’ve all forgotten this part of that history today, but in those days they were known as the Min- nesota Twins, both being from Minnesota, and Harry Blackmun being someone who had a record of voting with Chief Burger, almost one hundred percent. That’s why they were called the Minnesota Twins. It was true that Burger had basically got Blackmun appointed to that position single-handedly through a very long friendship with Harry Blackmun, and so it was like lightning striking. Suddenly, here’s Rich- ard Nixon appointing Harry Blackmun. Blackmun answers the phone: “I’m Richard Nixon. I’m going to appoint you to the Supreme Court. Come in for an interview.” And lightning strikes and suddenly Blackmun inds himself about to be appointed and then is appointed to the Supreme Court, and it’s all on account of Warren Burger, his friend. Blackmun was naturally loyal and grateful to Burger and looked up to Burger as not only the guy who got him the job, but he had always been a close friend. They voted together frequently, and Burger could safely count on his vote. So it was almost like the Chief had two votes. But here’s an interesting facet of Roe v. Wade. How did Harry Blackmun make his career before he became a judge? He had been counsel, general counsel, I believe, to the Mayo Clinic in Minnesota. He was Mr. Medicine, and he very much identiied with doctors and the medical profession. He saw the abortion asesc as a medical problem, not just as a legal problem, and felt that the way abortions were being handled was not good in the United States. It was just an amazing fortuity that Harry Blackmun had that strong background that would give him the courage to stand up to the Chief and say, “No, this time I’m going to go the other way.” So in the conference, he had said that. Blackmun had said that he thought there was a constitutional right here, and that’s what Douglas was saying when he said, “I think Harry is with us.” He was saying, Blackmun was going to vote with Douglas, which is what happened. But remember, there were only seven justices

106 • nine on the Court. This leads now to yet another piece of this history. Warren Burger had a habit of temporizing on his vote so that he could see which way the case was going to come out, and then put himself in the majority by changing his vote or casting a late vote, at least temporarily to put himself in the majority so that he as a senior justice could assign the opinion to whoever would write the least broad decision. In that way, he could control the content of the decision, to an extent. Even if he didn’t really believe in it, because otherwise it might wind up being even more liberal than he had wanted. He could wind up getting a moderate reversal instead of a liberal reversal. He had been doing this on some cases. He had even done this where he would switch his vote. He would ind that he was in the minority. He would then say, “Okay, I’m going to go with the four.” Actually that’s what the Chief wound up doing in Roe v. Wade. I believe I’m right about that. He switched over so that he would be able to control the majority opinion, which did go to Blackmun. How- ever, Douglas—I’m pretty sure I’m right about this—Douglas, being the senior one at the moment on the way the votes were then cast, he assigned the opinion to Blackmun—Douglas did, because he wanted to keep Blackmun there. He didn’t want him to wale. If he was assigned the majority opinion, Blackmun would probably stay irm. The next maneuver that the Chief did was to say, “This is an important decision. Maybe we should hold this over for re-argument, until we get two new justices, and so we’ll have a nine-judge court.” Douglas’s view of that was no, we have already decided it. Now, in those days—I think it’s even still true today—the Supreme Court had a custom that if any single justice wanted to hold it over for re-argument, they would do so as a courtesy to any justice. It was enough for one justice to ask, but it was rarely done. It was only done in cases where a justice really had a good reason for doing it, for example, if they discovered an issue lurking there that had not been adequately briefed. One of the justices might say, as I’m writing this out for the Court, I see this issue that no one has addressed in the briefs. Why don’t we have them brief this again and we’ll re-argue it next year? Everyone would look a t it and say yes, of course, that makes sense. But in the abortion cases, to Justice Douglas, it was quite clear that there was a political moment going on, and that the Chief ’s idea was to hope for two Nixon appointees to join the Court to then vote the other way, and change it to a ive-four decision coming out against the right to an abortion. Douglas wrote a scathing thing, which never got published. It was a dissent from the order holding the case over for re-argument. Douglas wrote a pretty scathing attack on how the Chief had misappropriated a number of the traditions of the conference, such as pretending to be in the majority so he could assign the opinion to whoever he wanted instead of the other justice, like Justice Douglas doing it, and holding a case over for re-argument. Douglas included a great line. He wrote: “The Soviets once gave their chief justice two votes, but that was too much for even the Russians.” What a sentence! The Justice came to me and said, “Walk with me around the grounds of the Supreme Court.” Because I was the law clerk on the case and he wanted to vent. We went outside and walked around on a beautiful spring day, walking around on the grass, and on each corner there would be a Supreme Court police oicer, but otherwise we remained alone. No one could hear what wewere saying. We circumnavigated the entire building. He was very troubled about what to do with his draft dissent. He didn’t like the idea of insulting Burger. Justices are a collegial group. Even when they’re ideological enemies, they want to get along personally, so he did not want to make a personal attack on the Chief Justice. He also knew, because this was the gossip around the Court at the time, that the Chief had been com- promising the traditions of the conference, the conference meaning the justices together as a group, not as the Court in public but in conference to discuss cases. They just had these unwritten rules that go back more than a hundred years. He didn’t like the way that those traditions were being twisted by the Chief, and neither did the other justices, we heard in the halls. I remember we heard in the hallway Potter Stewart

nine • 107 was livid over what the Chief was doing. So, it was not just Douglas that was upset. But they all wanted to be collegial. They didn’t want to go directly to the Chief and confront him. They just hoped that eventually he would settle in and conform to tradition. He had been chief four or ive years. On our walk, I had read his dissent and edited it and helped him improve on it. And, at his request, I had already written a proposed concurring opinion on the merits. So I was up to speed. So, we were walking around the grounds of the Supreme Court and Justice Douglas was talking about this and how the Chief had been misbehaving. He then said, “Wha t should I do?” Well, this was unheard of for Justice Douglas to ask a law clerk what he should do, because it just wasn’t his style. He didn’t ask us for verbal advice, and I wasn’t used to giving him verbal advice. I remember thinking at the time, here I am, just a very inexperienced kid from Mississippi. And, suddenly I’m in this once-in-a-lifetime job. But who am I to tell Justice Douglas what to do? That’s what I’m asking myself. Nonetheless, it was my job. He asked me for my opinion, “What should I do?” My job was to give him whatever advice I had, and I did have an opinion on what he should do. I said, “You should circulate, but not publish,” which means circulate his dissent from re-argument among the then seven justices so that the issue would then be out on the table among them, instead of talking behind closed doors; the internal issue would be out on the table, but then not wash that laundry in public. Justice Douglas didn’t say anything then, but that’s what he did. He then came back and told us to “Circulate it to the other justices,” which is what we did. Then of course the Chief was upset, we heard. He didn’t want this to be published, and Douglas did not publish it. Douglas’s concurring opinion, which he asked me to “block out” was pretty much based on my reading of his prior opinions, the Griswold opinion being the biggest of them, Griswold v. Connecticut, which he had written for the Court, and then trying to ind the best support possible for the right of privacy. This was another case where the Supreme Court just invented it, really, because it’s not there in the Constitu- tion. It really has to be—otherwise it’s going to be pretty weak, Constitution, so it has to be there, but it’s not expressly there, so they implied it.

108 • nine ten

Roe v. Wade, Justice Douglas’s concurring opinion; research for draft Justice Douglas at oral argument Journalists’ Privilege and the First Amendment Returning to Mississippi to practice law Black sanitation workers union case, 1972 Leaving Mississippi and joining Morrison & Foerster in San Francisco, 1973

LM: Today is July 13th, 2016, with Judge Alsup, and we’re talking further about Roe v. Wade in the ’71, ’72 and then into the ’73 Supreme Court terms. WA: When we broke last, we were on the subject of Roe v. Wade and I think I had covered the problem of the re-argument, meaning that the chief, Warren Burger, had decided to put the case over for re-argument. The Court was missing two justices due to the deaths of Harlan and Black, and the question was whether or not to go ahead and issue a decision, and my memory of it is that it was four to three in favor of the right to terminate the pregnancy, and at times the chief lirted with joining that. It might have been ive-two at one point, but in any event, it was an ify joinder if he was, so he wanted to set it over for re-argument, and Justice Douglas’s reaction to that was no, we’ve already heard the argument. This is an important issue. We have to get it out the door. And he was afraid that what the Chief was trying to do was wait until Rehnquist and Powell joined the Court, and then at re-argument maybe the case would come out ive to four the other way. Douglas was upset about that and had drafted a dissent from the order putting it over for re-argument, but never published that, and I suspect that is available at the Library of Congress among his papers. He did, however, circulate it to the other justices, and used that as an occasion to try to steer the Chief more toward the traditions that the prior chiefs had followed, which had been to honor the unwritten rules of the conference. They call themselves sitting privately among each other to decide the cases as “the conference.” So that was a very tense period. Now, the Chief did win the re-argument. Any justice has the right to ask that something be put over for re-argument but it is rarely done. It was put over for re-argument and it came out seven to two, with Justice Blackmun writing the majority opinion to create the famous right of a woman to terminate a pregnancy. So my role was very small. I was merely the law clerk who helped Justice Douglas with his opinion, and it was my job to start with the Griswold opinion that he had written in 1965 for the Court, and to try to develop as much of a constitutional theory of the right to privacy and liberty that would justify holding that the Texas and Georgia statues involved were too invasive of that right. What Justice Blackmun wound up developing was a trimester system, where in the irst trimester the woman had a stronger interest in terminating the pregnancy, but in the last trimester, the state had a stronger interest —it was a balancing test all the way through, but with diferent presumptions depending on the trimester. I guess that’s still there on the books, though the Supreme Court’s jurisprudence has changed some on that. That was a most interesting experience for a young kid to be able to work with Justice Douglas on that. Now, when it was held over for re-argument, I just assumed that the opinion that I worked on was going to be used as a starting point by the next law clerk, because I was gone by the time they heard re-argument. And so when the decision came out, I was very surprised to learn that the opinion that Justice Douglas used was the one I had given him.

nine • 109 In the books as they now stand, the U.S. Reports, the concurrence that he did is the one that I had worked up for him. And so I take some satisfaction that he liked it enough to have done that. So that’s the end of the Roe v. Wade story. LM: Can you describe a little bit what went into creating that draft concurrence for Justice Douglas? Start- ing with Griswold, it sounds like. WA: I think I mentioned earlier that I had read every single First Amendment opinion he ever wrote on the Supreme Court, which was quite a number, going back to 1939. Of course this was 1971. But still, that is many decades of jurisprudence. I tried to do the same thing with every privacy decision that he had, but there were many things that were not just privacy. For example, there were decisions the Supreme Court had come up with on mandatory inoculations against communicable diseases. Could the state force somebody? So various aspects of a right of privacy surfaced. In fact, pregnancy and abortion had never come up to the Supreme Court before, and you know the word “privacy” is not in the Constitution, period. It’s just not there. So the best argument for the other side was that it’snot even there. How can you ind a right that’s not even in the Constitution? So that was a problem. But they had that same problem in the Griswold case, where the penumbras of the Bill of Rights had been enough to convince the majority that—I think it was that the prescription of prophylactics for married couples was a criminal ofense in Connecticut. The Supreme Court just said th at is ridiculous. This has to be unconstitutional, so the best they could do was the penumbras. It is one of the hardest exercises that I have ever gone through, and I still at the end felt like the Supreme Court just had to just take some of that on faith and not really say or pretend that it was written into the Constitution. Really, what the concurring draft that I came up with was one that looked at liberty interests that had been recognized by the Supreme Court; some privacy interests recognized, and wove those together to say that this is a pretty close analogy. So that was the mode. I did go back and look at every one of his decisions, but I also tried to look at the majority opinions, too. I looked at the briefs, of course. The briefs were pretty good, as I recall, in that case. I think I read every single decision that was cited in the briefs. I read everything that ever cited Griswold, and did a lot of thinking about it. At the end of the day, you still have to have a leap of faith to get to where the Supreme Court got. I think I also mentioned last time that we were very lucky that Harry Blackmun was on the Court, because he had that medical experience at the Mayo Clinic, and loved the medical profession. He felt loyal to it. Even though the opinion refers to a woman’s right to choose to terminate a pregnancy, he was very inluenced by the fact that to do otherwise would interfere with the medical profession, in other words, patient-doctor—so if the woman as a patient and the doctor agree that she should have an abortion, that was their business and not the state’s business. We were very lucky to have Blackmun on the Supreme Court at that time. He felt strongly—Blackmun was really on board for the reasons having to do with his career. LM: What, if any, part did the fact that there were illegal abortions that resulted often in the death of women, including married women who already had children? WA: That was a social problem that the Court was faced with. It was either going to be legal or illegal, and if it was illegal, then you would have that problem of black market abortions, which led to a higher number of deaths than otherwise would be. Yes, were there statistics? I certainly remember that was a centerpiece of part of the argument that the Supreme Court heard. LM: What kind of writing process did you develop at that time for how you would take this tremendous amount of research, probably note-taking, and then start to craft something like a concurring opinion? WA: Let me jump to the bottom line. I learned Justice Douglas’s writing style. I felt I owed it to him that

110 • nine whatever came out of our chambers, it would look like it was written by him. I had read so much of his work, and I paid attention to it as I read it, of what his style was. His style was to have a series of short, clipped non- complex sentences. Instead of a twenty word sentence with some qualiiers and complex phrases, he would have a ten or eleven word sentence that had a verb, a noun and maybe one adjective. He would just let the story unfold. I am not trying to say that in any way it was bad writing. I thought it was very clear-cut, but it was distinctive. He had a distinctive style. So I tried to mimic that. I tried to learn that. I think I got pretty close. LM: How would Justice Douglas let you know, or did he let you know, once you would submit a draft, what his reaction was to that? WA: If he liked our typescript, he would send it down to the print shop to be printed. The print shop would irst do a draft. You could then do more iterations before it went inal. If he l iked it, he would send the type - script down through his secretary to the print shop, and then whenever the secretary would let you know it has gone down to the print shop, that was his way of saying he liked it. He might have made a few edits on it. If he didn’t like it, he would either do one of two things. He would write on there some kind of critical comment sometimes or he would call you in to explain. But the vast majority of the time, he accepted what I did. One time, he took some work that I had done and attached it as an appendix to something that he wrote. Now why would he have done it? I guess he liked it enough. It looked kind of funnybeing an appendix to an opinion that he otherwise wrote. I think he wanted that information in the public record. The standard we hoped for was that he would send it to the print shop. That meant that it was 99 percent of the way toward the way he wanted it at the end of the day. Today, we are so protective of young people and society encour- ages us to merely call someone in and say, “This was a great job. You are so great. I’m so lucky to have you working for me,” before asking them to correct a bad draft. He was not like that. He never called us in and said, “This was a great job.” He would just send it to the print shop. But if he didn’t like it, he would call us in and explain bluntly why it was terrible. He was of the old school in that respect. [laughter] LM: Maybe that was good. Toughen people up a little bit. This is an aside, but about Howard Hughes— and it may or may not be accurate—I read that he was one of the irst licensed ham radio operators in Houston at age eleven, with the call sign W5CY. WA: Isn’t that amazing! LM: I read that he was very inclined toward engineering from the beginning. WA: W5CY—well, that’s great. LM: You have some notes about some other things relative to Justice Douglas as well. WA: I have some stories that I remember from my time there, and I’ll tell the one about the time that Justice Douglas asked me to go to the library and to ind the decision in which Thurmond Arnold had written an opinion for the Court of Appeals for the D.C. Circuit, and had used the phrase in a Mann Act prosecution, “cheaper by the dozen.” I went to the library, thinking this would be easy. The Supreme Court has a great library. It is in a beautiful room, and even then not very many people used it, because each chambers had their own set of various books. There were no computers in those days, zero, so there was no way to do computerized research. This was 1971, ’72. You did it the old-fashioned way. I went to the library and pretty much was there all by myself, but I knew how to do it. I got out the Mann Act and found every decision by the Court of Appeals during the time that Thurmond Arnold was on that Court, and every Mann Act case. Let’s say there were seven or eight of those. I went and got those boxes. I read every one of them, quickly, because I thought I’d ind it right away. Couldn’t ind that phrase. I found several that Thurmond Arnold had written the majority opinion on, or the opinion for the Court. So I said, well, this is just the way I am. I read too quickly. I’ll go back and I’ll re-read . I must have looked right over it. I went back and read it very carefully and still couldn’ t ind it. So I had the books stacked up in

ten • 111 front of me there, frustrated. Then I thought I must have not gotten all the books. There’s got to be another opinion there somewhere. I went back and retraced all of my work and I went a little further. Maybe it got published after Thurmond Arnold had left the Court. He was there about ten years, let’s say, and he had been a friend of Douglas and they played poker together, so he knew Thurmond Arnold and that’s how he had known about the opinion to begin with. I went back earlier and later and got a few more opinions. I just could not ind it. So I was beginning to get nervous, because I was going to ha ve to go back and tell Justice Douglas that it doesn’t exist. He had a very distinct memory of this, and I knew he would not like to hear that. I went back a third time and read those opinions trying to ind it, and still couldn’t ind it. This now had taken me a couple of hours, at least, maybe more. And being about the only one in the library, the librarian had been observing me there. His name was Ed Hudon. He was maybe close to sixty years old and just a wonderful fellow, just exactly the way you would expect a librarian in the Supreme Court to look; he was quiet and studious. He could move around that library and not make a sound. He was great. Ed came over to me and said, “What are you working on?” [laughter] He must have realized that I was struggling over something. He said, “Maybe I can help you. ellT me, what are you working on?” I explained, and he said, “I think I know the answer.” I was amazed. I said, “Really!” He said, “Sit right here. I’ve got to go back in the stacks, and I’ll be back in a minute.” He goes back into the stacks. I’m sitting there in this exquisite library, tall ceilings, books, and basically no one else there. He comes back in about four minutes, not even ive, four minute s. He’s got in his hand a slip opinion. Now, when the Court of Appeals, or any—even the U.S. Supreme Court—any appellate court— when they issue a published opinion, it’s published initially as a slip opinion because it’s not yet in the books. It takes several months or years before it gets into the books. Now, this one would have been in the books many years since, but nevertheless he comes back with a slip opinion, and he says, “I think I found it for you.” Sure enough, at the very end of the opinion, on Mann Act prosecution, Judge Thurmond Arnold had written the phrase “cheaper by the dozen.” It was kind of a smart-alecky comment directed—in that case they had taken a large number of women across the state line for purposes of prostitution, which violated the Mann Act, but somehow the penalty for that was concurrent, I guess, so the smart-alecky line that he had at the end was “cheaper by the dozen.” Douglas, I guess, wanted to use that phrase for something and cite to it. Here it was in the slip opinion. I said to Ed, “I read that very decision in the Reporter. How could I have missed that?” He said, “Well, let’s look and see.” We opened up the book. I had them all right there. We opened up the published book in the Federal Reporter to the very same opinion and compared the slip opinion to the published one, and that language was not in the published opinion. It was only in the slip opinion. I said, “How can that be?” He said, “Oh, you know—most people don’t know this, but sometimes between the slip opinion and the published opinion, the judge will go back and change something, and he must have in this case realized that was maybe too cheeky, and so he took that phrase out.” He bragged about it at the poker game, but it didn’t get into the inal inal. I said, “Oh, this is amazing.” I just hugged Ed Hudon. I said, “You have saved me.” I then went back and wrote up—I wish I still had this; maybe I do at home, somewhere—I wrote up a memo that explained all of this. I explained to Justice Douglas that here it was. I even made a copy of it of the photocopy machine. This was a great example also of how Douglas would not pat you on the back. I gave it to him and I never heard a thing. In other words, he didn’t call me in and say, “You did great,” which today, the way we namby-pamby everyone, that’s what would happen. “You did great. You found this hard- to-ind thing.” But at least I avoided being criticized. Now, years go by and the thought occurred to me many years later—I wondered. Douglas loved practical jokes. He did. He really liked practical jokes. He had a good sense of humor. Even practical jokes at his expense, he really had a twinkle in his eye about that kind of thing. There have been times in the last ten or ifteen years where I wondered if maybe he knew what

112 • ten had happened, and he was just testing me to see if I could igure it out. I’m not saying that’s what happened, but I wondered. That is emblematic of the kind of humor that he would enjoy. LM: The work that you did on those journalist—at the time, newsman—privilege cases—do you recall what kind of research and writing you did on those cases? WA: I did a dissent for him. LM: Before we leave the Supreme Court, I think there’s another couple of stories about Douglas. WA: There’s one on the stump. Now, this was before our year by about one or two years. I believe it to be true, and I wasn’t present at the time. It’s one that clings to his name because it’s probably true. He and Cathy Douglas were out in the summer, in the Cascade Range, in Washington State, where he would go for the summers. A couple of lawyers wanted to get him to enjoin the Vietnam War or something dramatic like that. So they went out looking for him. Now, any justice can issue a stay. If you did something as dramatic as staying the entire war, then the rest of the Court would be called quickly into session and they would likely rule the other way. A single justice was always pretty careful in not doing something dramatic, and Douglas was careful in that respect. Once, for example, in 1954, I believe, he was on his way out west and he was presented with a stay of the Rosenbergs’ execution, which he granted, because they wanted to raise some issue of fairness of the trial—I think this was after all the appeals and the certiorari had been exhausted. He granted that, and the rest of the Supreme Court went quickly into session and overruled it, so that’s an instance where he did grant it, but was overruled. Anyway, these two young lawyers in their suits went looking for him in the Cascades. They had heard that he was up in a certain high meadow, and they hiked seven or eight miles. If they were to just walk up the trail, they were told, they would eventually ind them, so that’s what they did. They got to the meadow and, sure enough, there was Douglas’s group. The ire was going, the cofeepot was on the grill and the tents were set up, a beautiful location. They come walking in with their street shoes and their suits on, and they said, “Justice Douglas, we are here to ask you to stay the war in Vietnam.” He says, “Well, let me see your papers.” They pull out their petition application. He talks with them for a moment, understands their argument. They’re looking out of the corner of their eye over toward the canteen area and the grilled food over there, maybe hoping they could get a bite to eat before they left. But he doesn’t ofer anything like that. He just says, “Okay. You come back here tomorrow and your answer will be on this stump.” They say okay. They walk all the way back down the trail. Then the next morning they get up, they put their suits on, walk back up the trail, and get all the way up seven or eight miles, inally get to that same meadow, but the camp is gone, everyone is now gone, including Justice Douglas, and the place is back to pristine. There’s the stump and there’s their papers with a rock on top. So they go over there and lift up the rock, look at it, and it says, “Denied. Justice William Douglas.” So there we are. He was a bigger than life person and he loved the Supreme Court. He loved the country and he loved the Bill of Rights particularly. He was a great justice and I am glad that a large number of young people still know who he was. Many justices have been forgotten, but he seems to live on, as well he should. LM: Moving ahead a little bit but staying on the theme of Justice Douglas, I met with Elinor Stillman, who you had been at the Solicitor General’s oice with. She explained to me how the SG’s oice is ex oicio chairman of the Supreme Court bar, and that when a justice dies the work done by the SG’s oice is or ga- nizing the speakers for the funeral. WA: If I did know that, I’d forgotten it. LM: Okay. Elinor worked on the speech that covered Justice Douglas’s legal opinions. She said that you suggested that she do that, and she worked with Cathy Douglas on the service. WA: She was in the SG’s oice when he died. He died in ’79 and she was there. Yes, that’s absolutely true.

ten • 113 LM: Did you attend the service? WA: Of course, yes. I was one of the pall bearers. I was very honored to have been selected by Cathy as one of the pall bearers. I had been going to see him. I was in Washington in ’78, ’79, ’80. I just happened to be in the SG’s oice. I would go by to see him when I was up at the Court, or sometimes just even when I was not, I would go up and see him. By that time he had sufered his stroke.His hip had been broken. He had retired completely from the Court, and really was a shadow of his former self. Nobody ever came to see him because he was no longer one of the players on the Court. I just felt terrible about that. He had been so good to me. I went up to see him, not too frequently, but I went. Some days he was in better form and could carry on a semblance of a conversation. Other days he’d just sit there and listen, and could hardly respond. LM: I can ask Elinor more about it. Maybe she has a copy of that. How did the clerkship wind up? You made plans at some point to go back to Mississippi. WA: Yes. I had to make a choice, and my wife and I had to make a choice as that year went on whether to go to California, where Suzan was from—I had spent a summer working at Morrison & Foerster. I knew I had an opportunity to go back there. Or, go to Mississippi, which had always been my hope and dream, and Suzan was so good about that. I guess she married me knowing that was the plan. I’m going to say it was around February, maybe March, we decided on Mississippi. When July came and my work was over and Justice Douglas was already out in Goose Prairie; he was gone for good and the new clerks were about to come in, so I took of. It wasarly e July, and we drove down to Jackson with a U-Haul truck plus our little Vega station wagon, and the truck ran out of gas just as we got to Jackson, so that was embarrassing. We stayed with my mom, bought a house, and the plan was to work there. I went in as, really, a partner with Dixon Pyles, and his partner Betty Tucker, one of the few women who was practicing law then. We never asked her age. She told us once her father had been a captain on a steamboat on the Mobile River. I don’t know how old that would have made her. Most of all, with my college roommate Danny Cupit, the two of us went in, so it went from two lawyers to four lawyers. Now, I need to tell you about Dixon. He was a very unique person in Mississippi in those days. When I was in law school still—now, this is going back to 1970. I spent the summer of 1970 in Jackson, working for the Mississippi R&D Center, and that’s when Allison, our daughter, was born. She was born in Jackson. We lived in an apartment, Suzan and me, and my mom was living there in Jackson. I began to think about what legal jobs I could get in Jackson. Somehow, I learned about Dixon Pyles. Probably Danny told me about Dixon. Danny was in law school then, at Ole Miss. I contacted Dixon Pyles to ask him about law opportunities in Jackson because I didn’t want to go work for the big irm s there, because they were all men, all white, very conservative, and almost all of them had gone to Ole Miss for law school. I would have been a ish out of water there. Dixon was the only white lawyer, and Bet ty Tucker, who would represent a Black person. It’s really true. It’s shocking today, but in those days, no other white would do so. But he would, and he also represented the labor unions, and he was the only one who would represent the labor unions. Can you believe that? They hated the labor unions in Mississippi. The other side kind of liked Dixon because he kept them in business. So, Dixon would represent labor unions, he would represent Blacks, and he had been in World War II. He was a tank commander at Utah Beach on D-Day, and he was at the Battle of the Bulge at the Bastogne. He was tough. I’ll tell you one story he loved to tell. Dixon was a short, bald-headed guy with black horn rim glasses, and he had a distinctive crisp voice, a very southern voice, and he loved to tell stories. One of them that he loved to tell was when he, on behalf of a labor union, went downo tCrystal Springs (about twenty-ive miles away) on the train to represent a labor union in an organizingefort. About 1950. Well, the people in Crystal Springs were all up in arms. The Chamber of Commerce did not want any labor union down there. When they met him at the train station, they said, “Mr. Pyles, you should just get on that train and go

114 • ten Danny Cupit and Dixon Pyles, 1972 back to Jackson, because we don’t want you down here.” He didn’t know if they had guns or whatever, but he said, “Okay, I’m going to do that.” He got on the train. He went back to Jackson. He went to the federal courthouse and he got a TRO [Temporary Restraining Order] and he got back on the train and went back down there, and they met him again and he served them all with TROs. [laughter] Then he went to see his client, the labor union. So, he was like that. Courage. Always on the side of the underdog. Dixon asked me if I would work on a pro bono case that he was taking, where he was representing a Black union of sanitation workers in the city of Jackson. He represented that group, and he wanted me to do some long-distance research for the case at the Harvard Law Library. I thought it might be for free, but he actually paid me. When I got back to Harvard, I did do the research. I would send it down by mail. There were no emails in those days. He eventually sent me a check, so I got to be working on this case. As time went on, he ofered both Danny and me this position, because Danny and my dream was to work together. The idea was that Danny and I would go in together with Dixon and Miss Tucker, which we did when I showed up there in July 1972. We bought a house. We started working there. He assigned me mainly that one case, still that same civil rights case. I argued a big motion for summary judgment in front of Judge Dan Russell in federal court in Gulfport. I also argued something before the three-judge panel of the Fifth Circuit in New Orleans. There was eventually a settlement, because the Justice Department in Washington intervened on our side. By the way, that was the Nixon Justice Department. This occurred after I left. We had some great facts, just dramatically strong facts. It was a strong case. When I argued the summary judgment motion, Judge Dan Russell—I know what he was thinking. He couldn’t rule for us. He didn’t want to, politically, but he couldn’t rule against us because he knew we were right. So he just didn’t do anything. I had heard a rumor that he called up the governor and said, “You’ve got to solve this problem.” Eventually, the U.S. Justice Department intervened on our side. So that led to a nice cash settlement and eventually Dixon even got attorneys’ fees out of that case, so good for him. That was the main thing that I worked on. When about November came—we had a line of credit. I was borrowing $1,000 a month to live on. Now, today, no one could live on $1,000 a month, but we did. We

ten • 115 could live on $1,000 a month, including our house payment. But that was a lot of money to me, and I said to Dixon in November, “Dixon, how are we doing inancially, because I’m borrowing all this money and I would like to know when the money’s going to start rolling in.” And he said, “Don’t worry about it. It’s just the way it is. We’ll hit big and there will be a big payof at some point.” I went to Miss Tucker, who had a much more negative attitude, and I said, “What do you think?” And she really scared me, I remember. She said, “Oh, Dixon, he’s never realistic about this.” She did the books. Really, we were doing very poorly. Then money was hardly coming in. We were not coming close to meeting expenses. I then could not sleep. Now, a lot of people are born with trust funds, or they’ve got moms and dads who can bail them out. But my dad had already died and my mom was a nurse at the hospital, and I had nothing to fall back on. No trust fund. I had a kid. I had a wife. It is the only time in my life, even today, where I had sustained periods where I could not sleep because of the anxiety. Finally, I went to Suzan and I explained the problem, and she knew—I had already explained that we weren’t doing well inancially. But to her credit, she never said anything like, “Oh, we’ve got to leave.” We had bought a house. It was a decent house, too. So, inally I said to her,“I’ve got to get a real job,” meaning I’ve got to get a job that has an income. I thought very briely about yingtr to stay in Jackson at one of the irms there. I just didn’t want to do that. Out of the blue one day toward the end of 1972, somebody from Morrison called and said, “How’s it going down there?” I said, “It’s funny you called, because I’ve got this problem.” I explained. They made me an ofer and I talked it over with Suzan for a few days and said okay. Fate called. I went to Dixon and I explained, and he was understanding. I really felt that what had happened was that little irm had gone from trying to feed two families to four families, and there was just not enough paying work to do that. On the civil rights case that I was working on, there was zero money coming in, and that was in a district that was famous for not giving attorneys’ fees awards in civil rights cases. The idea that we might get money out of that case was very ify. Nevertheless, Dixon was all in favor of pursuing the case. We decided to go. He was understanding. That was one of the hardest moments in my life, when we left. It was hard to give up on that dream. It was hard to leave my mom. She was so happy to have her grand- daughter there. That was a golden moment in her life. It was so hard to rip that up. We sold the house, drove out to California, and in January 1973, started at Morrison. LM: A whole new chapter. We’ll stop there for today.

116 • ten eleven

Morrison & Foerster in the 1970s, litigation department and irm-wide events “Roadmap to Victory” The Solicitor General’s Oice Crocker Bank litigation Bob Raven, war hero, “As a concession to the shortness of life”

LM: Today is August 3rd, 2016, with Judge Alsup, and we’re talking about the time when you irst worked for Morrison & Foerster. WA: The way that I got introduced to Morrison & Foerster was at Harvard, at the start of a year. It will come to me in a minute. I had worked for a law irm for the summer after my second year called Kindel & Anderson in Los Angeles. It was a large Los Angeles irm. In those days, irms only had one oice, so this must have been sixty or seventy lawyers at that irm. Suzan and I were in the irst year of marriage. Going back to law school, they had a reception for all the incoming and returning students, and I remember standing around in the front lobby of Langdell Hall, in that reception rotunda. My friend, Marc Fairman, was a member of my class, and Marc came over to me and he said, “You’ve got to go work for the same irm I did this last summer. It’s in San Francisco. It’s called Morrison & Foerster.” I had never heard of Morrison & Foerster. There were plenty of places I hadn’t heard of at that point in my life. San Francisco sounded good, and since Marc liked it so much—he was really singing its praises—I said, okay, I’ll sign up for an interview. I did sign up for an interview, and the interview was with a fellow named David Nelson, who was one of the most respected, active practitioners at the time. He was, though, in the business department, not in litigation. I remember the interview, because I got in there and he didn’t have a pen. So I just gave him mine. At the end, I walked out and was just going to let him keep my pen, because I wasn’t about to ask for it back, then he said, “Oh, you forgot your pen.” I got an ofer. I went out to work forMorrison in June of 1971. I wound up working half a summer with that irm, Morrison & Foerster, in San Francisco before going to clerk for Justice Douglas. It was the San Francisco versus Los Angeles thing that was driving it, because we didn’t like LA We just didn’t like living there. There was a lot of smog in that era. It was not a healthy place to live. And San Francisco, by contrast, was smaller. Today, it’s much bigger, but it was a smaller community then, and that appealed to me, and the air was clean. Both Suzan and I agreed on that. It turned out that I loved the irm. I thought Morrison was reatg the few weeks that I spent there. I liked every single person. I liked all the assignments. We thought San Francisco was just the greatest. It made a huge, positive impression. Marc Fairman is also responsible for getting us our house in Oakland, which we’re still in, by the way. I’ll jump ahead one minute on this. We were in our lat in San Francisco. I had been with Morrison permanently for about a year when the phone rang on a Sunday morning. He said, “This is Marc. You’ve got to get over here to Oakland and look at this house.” Terry and Marc were not going to buy it; it was not the right thing for them, but they said, “You would love this house. You’ve got to come see it.” I said, “No, we’re in bed. It’s a Sunday morning.” “Oh, you’ve got to do it.” So we said okay. We got out of bed and we drove over. Well, we did like it. Suzan really liked it. I liked it, too. It was $69,000. So that was a lot of money. But still, we thought it was maybe $2,000 under market. We said we’d put in an ofer. The problem was there were lis pendens on it but we said we’ll just take a chance. The lis pendens got cleared very quickly and we bought the house, and we’ve had it ever since. So, Marc Fairman got me my job and he got us our house. LM: And did he go to Morrison? WA: Yes, he was at Morrison himself for most of the time I was there. Then later on in his career, maybe toward around 1990, he went of on his own and now I don’t think he pra ctices at all. You had asked me how did I come to Morrison, and did I work there for the summer, and the answer is yes, and it is solely on account of Marc Fairman and that one conversation, which I remember today, in the little rotunda in Langdell Hall, that the thought was put in my mind, Morrison & Foerster. LM: So, when you were in Mississippi, you get a call from Morrison & Foerster. WA: Right. Because I had worked there that summer before in 1971. When I was with Douglas, I called them up and I said, “You know I love Morrison,” which I did, “but I really want to go back to Missis- sippi.” They knew all along that we might go to Mississippi. I really want to try the Mississippi thing. So they knew that I was giving it a try. I made the decision that the practice that we had in Jackson was not going to be able to support four families for a long time, and I had the most mobility and I was going to just leave. I wanted to do litigation. Morrison said, you should do tax litigation. I said I’ll give that a try. I tried it for one year and inally decided I’d move over into regular litigation. In the tax group, I was doing a lot of state court litigation, but it was all tax related. Starting the second year, I did what I call real litigation, and switched into the litigation department. I think I counted it up about the time I arrived; there were sixty lawyers. My number was thirty-seven, because in those days there were so few they recycled the numbers. Somebody would die. Number thirty-seven died, so I got to be number thirty-seven. All through my career at Morrison, my number was thirty-seven. I think today they are up to 25,000—but I was always number thirty-seven. The oice had a switchboard run by the receptionist Lucy. When an incoming phone call came in, it didn’t go directly to your phone. It went to a switchboard. Lucy was the switchboard operator. We always teased her that we knew she was listening in on our calls, and she actually could, if she wanted to. She never denied it, but she laughed about it. You’d call in and she would say, “Morrison & Foerster, how can I help you?” and then you’d say, “I want to talk to Alsup” and she would stick it into the Alsup slot, and then it would ring in my oice and I would pick it up. That’s the way that worked. I would say it went on like that for three to four years, and then inally they got rid of that system and went into the more modern era of phones that would just ring right on through. We had a great library. Morrison always did. Lots of law reviews, lots of regional reporters, and we were always in the library doing work in these carrels, and books. I enjoyed that a lot. There was always a litigation department meeting; I think it was on Wednesday mornings at 8:30. When I was the litigation head later, I moved it up to eight o’clock. Somebody would win a case or win a big motion and we would all gather around to hear them tell the war story of how that had occurred. On Thursday afternoons, there was the Thursday afternoon get-together. This was irmwide, and the irm would bring in a great spread of food and drinks and liquor and wine. The idea was to socialize. You’d get the chance to meet people from other departments. Those were marvelous times. I even remember one conversation; this was when we had the constitutional crisis with President Nixon, and Nixon was, before he got in trouble with Watergate, was exercising lots of presidential prerogatives to wire-tap, for example, and spy on

118 • eleven people, and running roughshod over the rights of individuals. He was getting away with it because he had not yet had his comeuppance with the Watergate thing. Then the Watergate deal hit and as you well remember, it seemed like it was about a two-year period when it went from a small issue to a medium-sized issue, and then The Washington Post got their Deep Throat going, and it picked up more and more steam. Finally, the whole Watergate thing got legs and it wound up with an impeachment, and Nixon resigned. I remember when Nixon resigned in 1974, we had one of those Thursday afternoon get-togethers. Marshall Small and I were talking at the Thursday afternoon get-together. I’m sure that I was drinking wine, but I doubt that he was. We were talking about how this whole thing had unfolded. He had been very concerned about Nixon’s exercise of these presidential prerogatives too—we had been talking about it—but then Nixon had resigned or was very close to it, and it had gotten to the point where it was clear that he was not going to be able to continue with these violations of the Bill of Rights. I remember the comment that I made to him. I said, “One constitutional crisis has solved another.” That was the kind of conversations that we would have at those parties in that vein. Those were wonderful events, and Morrison was very generous. The irm paid for it, I know. It was this nice spread of food and wine and drink. The socializing was good. The irm was small. It was just one oice, the San Francisco oice. After one year, as I said, I moved into the regular litigation group. I had already started on a big pro bono project with a partner named Girvan Peck even when I was in the tax group. Girvan wanted to challenge the pre-trial detention system that was used in the San Francisco jail, where if you were poor, you stayed in jail. If you were not poor, you got out on bail. And it was really very much a money-based system. They had a bail schedule, so if you were charged with robbery it would be a certain amount of money and you had to put up the bail. But what if you didn’t have it? So het OR Project under a guy named Dennis Shalloo was just coming into existence. Our argument was this ought to be expanded. So we litigated that. We even had a trial, I believe, in ’74—we did have a trial. We won three-fourths of the issues, and it got all the way up to the California Supreme Court, and we won, I guess, the most important issue there. Finally, the San Francisco system— they instituted and did the right thing and expanded the OR Project so that poor people could get out on recognizance. The point of this story is that, even while I was in the tax department, I was already moving into real litigation. I wanted to do “blood on the loor.” That’s what I called it, “blood on the loor.” And sometimes it will be my blood and sometimes it will be somebody else’s blood, but I want to be in the real world of litigation. I moved over and started working with Mel Goldman and Bob Raven, mainly. I think a lawyer named Haley Fromholz. Eventually, I worked with a lot of partners in the irm. It was about this early period that I got a call one day. I am just like a second-year associate for Mor- rison & Foerster, still in my twenties. The phone rings, and it’s somebody at the EPA [Environmental Protection Agency] in Washington, D.C. They say, “Justice Douglas has recommended you to ill the position of the general counsel of the EPA.” I said, “My God, that’sn aimportant position. I am so lattered.” But I said, “Do you realize who I am? I’m just a kid. I don’t thinkI’m qualiied for that job.” The guy said, “Justice Douglas thinks you’re qualiied for the job, and we’d be happyfor you to come back here and interview for the job.” I thought about it, and then I called back and I said, “I think you need somebody who has got ten years more experience than I have. I would love to give that a try, but I feel it would not be the right thing for you. Really, I have just got to pass on it”—which I did. Now, looking back on it and knowing more about how the government works, I probably could have done that job. Maybe I am superimposing what I learned later in life, but I do think it was the right thing to turn it down, for their sake. At the same time, I was so grateful to Justice Douglas that he would have done that. I wrote him a nice letter. And I bring it up because even though Justice Douglas could be a little tough on us now

eleven • 119 and then as we were working for him, he had a genuine desire to help out his law clerks and to hope that we succeeded; he liked to see us succeed in life. I was really lucky that he said those nice things about me to the EPA. It didn’t go anywhere, but it was a great moment to realize that the Justice had thought enough of me to recommend me at that very young age to be the general counsel of the EPA. LM: It’s a huge compliment. It leads me to something else I want to ask you. In terms of Morrison & Foer- ster calling you back after you were a summer associate only six weeks there, to invite you to join the irm as an associate, and Justice Douglas recommending you for this general counsel role—looking back, if you had to say, what are some of the qualities you think, for example, that the Morrison & Foerster partners saw in you after knowing you only a few weeks that caused them to reach out to you in Mississippi when they had other people who they could also have reached out to for that job? WA: I don’t know. I would say they thought I would work hard. I believe that has been true for almost all of my life. I had done well at Harvard. I made good grades, so I had a good record. I think I was congenial with the partners and the associates, meaning I could get along with people. I guess those would be the main things. Of course, it didn’t hurt that I was a former clerk for Justice Douglas. Marshall had been too in 1954. Kim Seneker too. So they didn’t need me to ill that blank, but I think that probably helped a lot, too. In terms of qualities, I think mainly the ability to work hard, inish a project on time, that kind of thing . LM: What about some of these qualities that go into making an excellent litigator, in terms of strategy and all kinds of other, very complex skills? WA: Well, there is no doubt that what you said is right. I do think I became very good at that as time went on. To jump way ahead in my career, when a client comes to you—let’s say they’re the defendant and they’re facing serious allegations of wrongdoing by let’s say some company, and you think it through and you can help them navigate to a successful end—in a way I have analogized it to navigating your way through the mountains. It’s not so easy to get from Point A to Point B in the mountains, but after you’ve done it a few times, you have conidence you can do it again. Well, I eventually developed that ability. That’s where the “road map to victory” comes in. But I didn’t use that phrase right away. It took me about three years before I realized what we should do, which was, when the case irst comes in, you interview the client. You read all the documents. You do research in the library. You interview the client again to ill in more blanks, ind out if there are even more documents. You see what other documents you can get from the other side. As quickly as you can, you come up with a tentative Plan A for how you’re doing to win the case. Or, if you can’t win it, how you’re going to contain the damages in the case. Rather than just loating along down this long river, charging the client lots of money on projects as they roll by and then at the end you settle the case. Honestly, I believe today young people go out into these irms and learn the phased approach to litigation. The irst phase is motion to dismiss. If that is lost, then there is the discovery phase. If that is lost, then there is the summary judgment phase. And then if that is lost, then we settle the case because they’ll never want to try the case. You see, that’s kind of the phased approach to litigation. In my view, you shouldn’t think in those terms. You should have a completely diferent paradigm, which is to map out the future. How are we going to get to the inish line and win this case and be on the victori- ous side? What is the road map to victory? So I called it “the road map to victory.” I would igure out—Oh, we’re going to win this case on the statute of limitations. It could be that simple—but we’ve got to get one important admission before we can win it on that ground. I would be out there trying to igure out a way to get that admission. Or it could be a much more complicated case with three or four layers of analysis, where they tie in together. If you go too far on point A, then you’re going to give something up on point D later on. Those are what the big irms get paid a lot of money for because they are complicated. I got pretty good at that. Really, I did. I could see these inner relationships. I could see where were the

120 • eleven soft spots in the analysis where you needed to do more homework. The value of temporizing and buying time to get more information on a certain point and not making the decision yet on a sub issue until we could get more information. I got good at that. But to go back to your question, I don’t think I could have possibly demonstrated that ability back as a summer associate. They told me to go into the library and write a memo, and I would go write the memo. If they did see that in me, it was just a wild guess. But I do think that was one of my strengths in the long run—was that I did develop that ability to see the overall case, where it probably was going to be headed, what our strategy should be and how all the issues interrelated, and keeping in mind cost, which today, I think these big irms don’t do that very well. LM: What kind of training, if any, did you have, for example for your early depositions and things like that? WA: I would attend the depositions that others took. I would work up the plan for the deposition and run that by the partner, and the partner would execute the plan with me there. I would be a gloriied legal as - sistant, but it would just be me and the partner there. We had deposition clinics in-house. We had lectures in-house on how to take a deposition. Of course I read depositions. I would go to Practicing Law Institute programs on litigation. That part of it was very much like it would be today. That hasn’t changed at all. But, very soon in the process—in that pro bono case, I was doing it right away. I would say by my third year, I was taking depositions on my own in a number of cases, taking them and defending them. That is much diferent than it is today. Today, you can be a sixth or seventh year associate in a big irm and not have taken a deposition. It is really disturbing to me, sad, that they get so little experience these days. But that’s a diferent subject. LM: We had a couple of cases. Crocker was one, and then this large pro bono case as well. And I don’t have dates on them. I am sorry about that. WA: Let me give you the Crocker Bank one irst. I have got to ill in a little bit about my career. I started with Morrison in January of ’73, and by ’76 I was the number-one associate on cases with people like Bob Raven, for example. I was taking depositions, I was going to court and arguing motions, even though I was not even a partner yet. I was what they regarded, by ’76—I was a third-year with them but I had had that clerkship; I had had a little bit of experience in Mississippi, so I was probably more like a ifth year, but I was the number-one associate. I’ll give you an example of a wonderful memory I have with Bob Raven. In 1976, which was the 200th anniversary of July 4th, 1776—it was the Bicentennial. Bob and I had to go back for a meeting in Washington, D.C., on a big securities and antitrust case that we were doing together. He needed me there, I guess, because I was the one who knew all of the facts and so forth, but he was really the leader on our case, so we went together. Well, the problem was that you could not get a hotel room in the summer of 1976 in Washington, D.C., and his favorite hotel was The Madison. It its into this story in a minute. But we couldn’t get in, even though he had stayed there many times, because everything was booked. I called one of my friends, Paul Gewirtz, who had worked for Justice Marshall. Paul was at the Center for Law and Social Policy. I said, “Paul, can you possibly ind us a hotel there?” He said you can’t get a hotel, but there was this bed and breakfast type place that he would recommend and that he stayed in himself, so I called them up and got us two rooms. So that worked out. We arrived there. You had to walk up three lights; no elevator. That was not a prob lem for me and not for Bob, either. It was an old, funky place. But there was no air conditioning. This was in the summer. Blazing hot. Bob and I go down for the free breakfast part the next morning. I said, “Bob , how did you sleep last night? How do you like your room?” He said, “It’s just like The Madison.” I said, “What do you mean?” He sa id, “The towels are hot and steamy.” [laughter] LM: You went back because even though you were young as far as age and time at the irm, you were very senior. WA: Yes, in that case, just me and Bob. We had associates like Steve Dunham and Peter Pister and oth-

eleven • 121 ers who had similar responsibilities in other cases. The irm was good about bringing us along and giving us maximum responsibility, so I wasn’t the only one in that category by any means. Then my career got interrupted. I got a call while I was on that same case, the one with Bob, from the Solicitor General’s oice. So they said, you’ve been recommended—it was again by Paul Gewirtz. He said, “You’ve been recommended to join the Solicitor General’s oice in Washington, D.C.” They had an opening. In those days, it was a small oice. They only had nine or ten assistants, and then three deputies and one solicitor general. All of them just to argue cases in the Supreme Court. It was a great opportunity. Well, I had to turn it down. I said my irm needs me. I am the number-one associate on this big securities case and antitrust case, so I just can’t do it. I couldn’t do that to my partner or the client. So I turned it down, and we went ahead and we were getting ready for trial, and then at the last minute, Bob settled that huge case. So my decks became clear at that point. I was going to go on to the next case. Well, the phone rang again. It was the same guy from the S.G. He said, “We’ve got another opening now.” I said, “This timing couldn’t be better; now my case is gone.” I went to Bob and I said, “Bob, I’d like to do this.” And more or less with his blessings—I remember he said, “If you want to be a judge, this would be a good thing to do, but otherwise I don’t think it will be a good thing to do.” I said, “I would like to maybe be a judge.” That was just a vague thought at that time. So I took the job. Anyway, so mid- 1978 to mid-1980 I was back in Washington. Now I’m coming back—we’ll come to the S.G.’s oice later. Before I left Morrison, they had made me a partner. I was a partner for about a year, 1977 to 1978. I had to, however, withdraw from the irm to go to the O.S.G. Then I became a partner again at Morrison when I returned. Morrison, once I got back, asked me to become the liaison for all Crocker litigation. I took over a case that was going to trial for Crocker National Bank. It was against a guy named Lou Scott. It became one of the great litigation experiences for me. This was about the third trial that I had been in. In a nutshell, what had happened was Crocker Bank had foreclosed three huge subdivision projects underway in Walnut Creek, none of which were succeeding, all of which were half-completed. The bank had made these extra work-out loans to try to work out the defaults, and those went bad too. Finally, the bank just foreclosed. Lou Scott, the developer and borrower, sued the bank for what in those days was called “lender liability.” That was a very popular term in the eighties, “lender liability,” which basically just meant the bank didn’t treat me right. And we counter-sued for the balance owed, and for him lying to the bank about his inancials. So it was a jury trial out in Martine z. Mary Rumsey was the legal assistant. We should have and did win the case on the merits, but one of the things that we discovered in preparing for trial and in the days leading up to trial is that Lou Scott had a misdemeanor conviction for forgery of a drug prescription. Lou Scott and his wife were divorced, but she came to trial every day to leave the appearance that she was going to beneit and that she was supporting Scott. Scott was a tough guy. He had this forgery conviction and I had to igure out if and how we were going to get this into evidence or not. Meanwhile, I said to Mary, “All right. Just keep the conviction in readiness at all times, just in case.” A key witness in the case was Art Brass, who had irst worked for the bank on this very loan, and then he jumped ship and went to work for Lou Scott (the guy on the other side) halfway through the disastrous loan relationship. He was on both sides and viewed himself as the key witness to tell the jury what had really happened. In fact, he was the most important witness in the case because he did have that aura of credibility. The other side called him and the last question they asked him on direct was, “Mr. Brass, have you ever known Lou Scott to be anything other than a thoroughly honest man?” I said, “Your Honor, your Honor”—so we had a side bar, where I said, “This is character evidence.” The judge says, “Yes. So what?” And the other guy—his name was Paul Lamphere—he always called me “the bank lawyer.” He never called me by name. He said, “The bank lawyer, what is he talking about?” The judge said, “Are you objecting or not?” I said, “I am just saying it may open the door. I’m not objecting.” So there was nothing

122 • eleven to rule on then. We go back to the counsel table. He repeats the question and Mr. Brass answered, “No, I’ve always known Lou Scott to be a thoroughly honest man.” End of examination. I then started on my cross on some non-controversial points but didn’t complete my cross. Then came the end of the trial day; I go to our hotel in Concord. I called up the oice and—her name was Jody Jakosa, an associate. I explained what happened—I said, “You’ve got to tell me. Can I get this misdemeanor conviction into evidence now as character evidence?” She called me back after about two hours and said, “The answer is no. You should have objected. If you had objected, under state evidence law then you could put it in, but since you didn’t object, you’re out of luck.” I said, “Oh no!” I was just kicking myself that I hadn’t objected. Meanwhile, I had talked to Jim Brosnahan, the famous trial lawyer at our irm. I said, “Jim, what do you do in this situation.” He said, “One th ing—go to the court reporter and get the reporter to read of exactly what the question and th e answer was. Otherwise, whenever you try to get into it, the other side is going to say, ‘He’s misquoting. He’s misquoting.’” He said, “Don’t let them do that to you. Just have it exact.” That was very good advice, by the way. The next morning I go to court and I get the court reporter to read it back to me before things got started. I write it all down. Even though I’m not planning to use it, I wanted to be prepared in case it came up. Then, before the jury came in the next morning, my opposing counsel, Mr. Lamphere, says to the judge, “We need to talk.” I said, I wonder what this is about. And then we get up there—it’s like a sidebar, even though the jury is not present—he said, “Yesterdaythe bank lawyer said this stuf about character evidence and opening the door, and I want to know what he has in mind.” Well, I was about to say, “Judge, I don’t have anything in mind; I’m not going to do anything.” Really, that’s what I was about to say because my associate had told me I should have objected. But this is one of the times when not talking fast helped me, because the judge jumped in. He said, “Well, Mr. Lamphere, you opened the door. Now, Mr. Alsup is entitled to ask Mr. Brass, ‘Did you know this? Did you know that?’” I piped up, “Yes, that’s right, judge.” So the other lawyer grumbled and we went back. I then went over to Mary, and said, “Mary, give me that certiied judgment”—we had a certiied copy of the judgment of conviction. I’m sorry this story is taking so long. It’s a good story, but it is long, and we’re only halfway through. We got near the end of my cross of Mr. Brass, and I said, “Mr. Brass, yesterday you were asked this question and you gave this answer and I’ve had the reporter give it to me exactly,” and then I read it exactly like Brosnahan had recommended. “Have you ever known him to be anything other than a thoroughly honest man?” Answer: “I’ve always known him to be a thoroughly honest man.” Then I asked, “When you gave that testimony, did you know that Mr. Scott had been convicted of forgery?” Mr. Brass had been leaning forward in the witness hairc like he wanted to help everybody understand. And he was leaning forward and when I said that it was like I had hit him with some kind of baton, and he smashed back—visibly; he fell back against the back of the chair, and exclaimed, “No!” Of course, the jury gasped at the same time. So the other side jumps up, objects. We have to send the jury out. The other side was just livid. Mr. Lamphere fumed. The judge asked for my basis for the question. I replied, “Judge, I have a good-faith basis for my question. Here is a certiied copy of it right here.” The judge looked at it and said, “Yes, you have a good-faith basis for the question. At the start of the next day, Lamphere asked for permission to explain the circumstances of the conviction, to which I said, “Okay, so long as I get to cross-examine the explanation.” The judge said ine. Now, there is this rule about character evidence. You can’t explain—you can’t go beyond the conviction, another little detail that I didn’t really know. Then the judge says, “What do you say, Alsup?” I said, “Well, as long as we can cross-examine the story he gives, ine.” And then the judge says, “Okay. We’ve got a stipulation. You can put in your explanation and Alsup can cross-examine it.”

eleven • 123 Back at the hotel, I said to the legal assistant, Eileen Arietta, who went on to be a lawyer at Wilson Sonsini—I say to Eileen, “Eileen, you have got to do the following. I have no idea what they’re going to come up with. You’ve got to go ind out whatever you can more on isth conviction.” She said, “They throw away the iles after a certain number of years,” which was true. “They don’t have to keep the iles.” “I don’t care. Go do what you can. Go down to that police department and do whatever you can to ind out the facts of this, what happened.” I got back to the hotel at the end of the day, and I went to my room, and on the TV is a photocopied mugshot of Lou Scott. It was great. I said, “Oh, she found something good.” I went down and found her in her room. She said, “You won’t believe this.” She had somehow got ten the original ile on this crime, and here is what happened. She had gone over to the Walnut Creek Police Department and was just wan- dering around and saying to oicers, “I’ve got to ind something on Lou S cott.” Well, this sergeant comes up to her. “What are you looking for?” “Lou Scott.” “Oh, yes. Come with me, young lady.” They go to his oice and he opens up the bottom drawer and he says, “Here’s the original ile.” He said, “I wasn’t supposed to keep this. We’re supposed to throw them away after ive years. But this guy is a bad dude, and I knew this would come in handy for somebody, someday, so now it’ s all yours.” Can you believe it? It was like God had sent this down from heaven to just put in this g uy’s drawer. In the ile was an original, ink, signed confession by Lou Scott, which said, in his very distinctive handwriting—you couldn’t mistake it—he said, “I stole the prescription forms from Kaiser Permanente. I then forged the prescription for amyl nitrite.” I said to my younger associate with me on the case, Andy Monach—I said, “What is amyl nitrite?” Well, of course the younger people were all in the know, but not me. It turns out its original use was kind of like nitroglycerin for heart conditions. But it was also a street drug that was used in sex to get a rush, I guess, is the best way to describe it. I said, “There’s no way he’s going to get on the stand and tell this story. We’ll never hear from this again.” But I said to Mary, “Nevertheless, keep all of this new stuf right there in the courtroom.” Then, we inally got to the last part of the case and it was his rebuttal at the time. For his only rebuttal witness, he calls Lou Scott. Now, I had igured he would bring in some witnesses to go through the merits points and the way the contracts had been worked out and the facts and circumstances of the notices—no, none of that. None of that. That all had to do with the merits. Counsel put Lou Scott on the stand and he said, “I just want to ask you about one thing.” That’s the lawyer asking—one thing. “The bank lawyer brought up this thing about the forged prescription. Did you forge a prescription, Mr. Scott?” He said, “Yes, I did.” He said, “I used a forged prescription.” “Okay, tell us what happened.” And he said, “Well, because of all the pressure I was under from the bank”—naturally, see, he’s blaming it on the bank. “From all the inancial pressure I was under, I couldn’t perform in bed for my wife. So I went to a pharmacist friend and my friend said, ‘What you need is amyl nitrite.’” This would be kind of like Viagra, I think, but that didn’t exist then. So Lou Scott continues, “I had never heard of that. How do I get that? And the friend said, ‘No problem. I’ll just write you a prescription.’” Now, mind you, this is supposedly his pharmacist friend, and his pharmacist friend writes out a prescription and then ills the prescription and gives him the amyl nitrite and goes home and he makes his wife happy, according to the testimony, because of all the pressure he had been under. And, of course, his wife had been in the courtroom most of the trial. She was a nice- looking woman and you felt sorry for her. She was making a good impression on the jury. It was a pretty good story, but it didn’t match up with the evidence that we had. I’m iguring they’re going to go on to all of their other points on the merits. He doesn’t. He says, “That’s it. I’ve got no more questions.” So you can see what he’s doing. He’s turning the whole thing into

124 • eleven how the bank lawyer is trying to win the case by getting into this forgery, and we’re going to beat the bank lawyer at their own game. So I took the ile up to the lectern and I said—I temporized very slightly—I said, “You say this pharmacist friend—was he a good friend?” “Oh yes, he was a good friend.” “What was his name?” “I can’t remember.” I said, “You can’t remember your good friend’s name?” He said, “Oh, yes. Yes I can. His name was Homer Skeets.” What a ridiculous name. “Homer Skeets.” I said, “Oh, how do you spell that?” “S-K-E-E-T-S.” “Well, where can we ind Mr. Skeetsoday?” t He said, “I don’t know.” I said, “You don’t know where your good friend lives?” He said, “Well, I think helives in New Jersey.” I said, “Well, do you think our subpoenas go to New Jersey?” “No” he answered. Then I went right to the point, “Mr. Scott, isn’t it a fact that”—and at this point I had the confession right in front of me. He didn’t know I had it in front of me. I said, “Isn’t it a fact that you stole those prescription forms from Kaiser Permanente hospital?” And he said, “That is absolutely false.” Now, one thing I have learned in all my years is that when a witness says “That is absolutely false,” it is very likely to be true. That phrase—they always overdo it. They always say “absolutely false” when it really is true. So then I said, “Isn’t it true that you stole those forms and then you forged those prescriptions for amyl nitrite?” He said again, “That’s absolutely false.” I sa id, “The pharmacist guy didn’t do it. You did it, right?” “No, that’s false.” So then I walked up there and I s aid, “Isn’t this your handwriting?” He said, “Yes.” I said, “Isn’t this the confession you made on such and suc h date?” “Yes.” “Isn’t that your sig - nature?” “Yes.” “Let’s make sure we read it right.” And I read it out loud, slowly. I said, “‘I stole the pre - scription forms from the Kaiser Permanente hospital.’ That’s your handwriting , right?” He said, “Yes.” Anyway, he had to admit everything. That lawyer on the other side was so mad. He was so mad. It was a perfect cross-examination, maybe the best I ever did. The other lawyer had steam coming out of his ears, so we had to let the jury go out for a while. Mr. Lamphere then claimed that we had not turned it over in discovery and therefore all that should be stricken and there should be a mistrial and we should pay for all his expenses. And I said, “Judge, we just got this ourselves yesterday. We didn’t even know about this until you said they were allowed to give an explanation, and my good legal assistant went down there” and I explained about the sergeant. I said, “We only got this yesterday. We didn’t have to turn it over in discovery.” The judge ruled on it. “Alsup is right, nothing wrong has happened.” Anyway, to make a long story short, not only did we win the case—the jury came out our way—unani- mously, by the way. You only have to have nine out of twelve in state court—but we won all of them to our side. We won everything, including the fraud claim against him, and got punitive damages against him. It could not have been a better result for a bank, because in those days the banks were losing these lender liability cases left and right, and we got a total victory and punitive damages in our favor. LM: Then there was a Wednesday celebration. Your irm had these celebrations every Wednesday afternoon, and then that was an amazing— WA: In the mornings. LM: Oh, the litigation group on Wednesday morning and irmwide on Thursday afternoon. WA: Right. We would go in there and explain how we won the case and that kind of thing. I think those were Wednesday mornings. Yes. The litigation meetings were Wednesday mornings, and the irmwide deal was Thursday afternoons. LM: It might have been in the summer, because I think Mary told me it was really hot in Martinez when—and that was kind of a long trial, wasn’t it? WA: I know it was ive weeks. It might have been six weeks. It was a long trial. On the merits, we had to go through many documents and real estate projects, and there were quite a number of meetings that had eleven • 125 taken place, and we had to prove what had happened using handwritten notes of what had happened at meetings. And of course there were the damages aspects of the case. So yes, it took a long time to put that case together. I’ve just given you the lurid part. LM: I am glad you told the story. We can wind up, but I just wanted to touch on a couple of things, which we can take up next time, too. Bob Raven had been in World War II, and I read that you had put together—I don’t know if it was a monograph, but a collection of information about his bombing missions. WA: I did two things on that. In the nineties I did a videotaped interview with Bob, kind of like an oral history, but I just did his World War II part. I did some homework ahead of time. I have that interview here somewhere, if you’d like to look at it. But in addition, I did for The Recorder—I think it was The Recorder; it could have been for The Daily Journal—one of those two—I did an article when Bob died, I believe—that would have been in the late nineties—on his World War II bombing run where he saved the crew. I can give you the short version of it now. They were lying over what was called then Formosa (now Taiwan). It was held by the Japanese. By that point of the war, which was I think 1944, the Japanese had lost just about all of their pilots and their Zero ighter plane s, but they still had tons and tons of these anti-aircraft—ack-ack—so when the US did a bombing run with these B-24’s over Formosa, there wasn’t much danger from the ighter planes, but there was a huge dan ger from the anti-aircraft ire that would come up from the island. Bob’s bomber got shot up pretty badly on one of t heir lights, but the engines were still running. One of the major things that got shot up in the process was the hydraulic oil lines, which were needed to crank down the landing gear. If you don’t have the landing gear then you’ve got to make a belly landing, which is dangerous. Bob was the engineer. He was a sergeant engineer, sometimes a waist gunner, but he was the one who had to ix it if it could be ixed. So they were lying back. They got diverted to Clark Field in Manila rather than where they had been lying out of, because they had enough gas to make that. They had a few travel hours to try to igure out how they wer e going to ix it. The hydraulic lines were just leaking. They did have extra cans of hydraulic oil on board, but if they had put it in right away, then it would have leaked out because the lines were too shot up. What Bob came up with involved tape and rubber bands. He taped up all of the dents and holes in the oil hydraulic lines that he could ind. Many of them were visible right there in the airframe of the airplane. He would tape those up so that they would retain some of the pressure. And he still couldn’t get all of the leaks, but he patched all he could, and then as they were making their landing, he would pour in all the cans of spare hydraulic oil, and then twist the cap on the tank, and then they would give it a try and see if they could crank the landing gear all the way down. It was a manual thing. The plane was coming in, making this long approach to Clark Field. As they were going down, he opens up the cans. He pours them in. He twists the top back on to seal of the hydraulic s ystem. They started putting pressure in there, and slowly the wheels lowered. Will they get dow n in time? More cranking. And just in the nick of time, they locked in place and they landed safely. LM: He had an amazing life, Bob Raven, from where he started. WA: Yes, he did. I miss him in so many ways. He had a phrase that he picked up from Justice Oliver Wendell Holmes. His phrase was, “As a concession to the shortness of life,” meaning some case is such a mess, that “just as a concession to the shortness of life, here’s the way we’re going to do it.” I remember him saying that a dozen times. I say that myself in court every now and then, and every time I do, I think of Bob. There are so many ways in which he was inluential. Let’s leave it there for now. I’ve got to go to a hearin g.

126 • eleven twelve

Joining the Solicitor General’s Oice, 1978 Transition from private practice; Solicitor General Wade McCree Sioux Nation v. United States, digging into the record including Native American history Kissinger FOIA case

LM: Today is September 28th, 2016, with Judge Alsup, and we are going to talk about you leaving Mor- rison & Foerster, and arriving in D.C. to work for the Solicitor General’s Oice, from 1978 to 1980. WA: Right. I want to say for the record how grateful I am to you, Leah McGarrigle, for doing this, and all the time you have put into the research and doing these recording s. I am lattered and honored, and your work for the court has been, not just for me, but for many judges, a great treasure, so thank you for that. I think I’ve already told you how I came to leave my job at Morrison & Foerster in San Francisco and travel back. I thought lightning would never strike twice, but it did, and after I had to turn down the irst ofer, we settled that huge case and then they called again from Washington, and this time I was able to say, “My goodness, the timing is perfect, because that huge case has gone away through settlement and now my decks are clear, and actually I can come back, and I could be there in a couple of months” or even less—I think it was like six weeks. I got all squared away with Bob Raven and Mel Goldman and Jim Brosnahan at Morrison, and they gave me their blessings and I withdrew from the irm partnership, and got in my car and drove in three and a half days to Arlington, Virginia, because a snafu occured with the house that my wife had gone back there to buy. She had been defrauded by the agent who had not told her there was a prior contract on the house, thinking that that contract was dead, but it came back to life and it completely screwed us up at the last minute. So I went back very quickly. I camped out two nights. I just drove as long as I could, pulled over on a dirt road and slept under the stars. I really did. O nce was in Wyoming on the irst night. The second night was in Kansas. The third night I had to check into a motel because I was going to be seeing people the next day and needed to clean up. So, somewhere in West Virginia, I got a motel room, and then the next day by noon, I was talking to real estate agents. Anyway, we got a house in Arlington, Virginia, that satisied our primary goal, namely being near a good elementary school. My wife, being a schoolteacher, insisted that Allison would have a good school. It turned out to be a great school, and it was only two blocks from our house. She could walk every day. Then I reported for duty at the Solicitor General’s Oice. There is one Solicitor General, a statutory position under the statutes, responsible for representing the United States in the Supreme Court. Under the Solicitor General at that time there were three deputies, and then under the deputies there were ten assistants, and I was number ten in the process. Now, today there are probably twice as many as there were then, but we are talking the late seventies. This was September 1978. The Solicitor General was Wade McCree and the president was Jimmy Carter. The Attorney General was Griin Bell. Now, this all had followed Watergate, and one of the fallouts from Watergate and the Saturday Night Massacre and all that, that you might remember, was that the president was going to be hands of of the Justice Depart-

twelve • 127 ment, and furthermore, the Attorney General was going to be hands of of the Solicitor General, so it was an amazing time in that oice because we really did have a free rein to decide within the oice what the United States was going to do. There were times I was blown away by this responsibility. I would be sitting there at my desk trying to igure out what position should the United States take in this particular case. I could get the views of the agencies, the State Department or the Labor Department. Obviously we got those views, and always the Civil Department or the Criminal Department, as the case may be. Those views would be very useful and I would read them all. I would read the opinions below, but then at the end of the day, there would be good arguments to be made both ways, and it was up to me to decide what the United States’ position should be. Now, I shouldn’t say up to me. I still had to get the deputy and the SG to sign of on it, but almost always, that’s the wayit worked. They would sign of. So I felt a huge responsibility—I was making the policy of the United States government in the particular cases on my desk. It was a huge responsibility, but it was made more of a huge responsibility because the position of the president, and Griin Bell, on account of Watergate, had been hands of. Wade McCree and his staf are going to decide all of those issues. That oice does three things. Still true today. First, they represent the U.S. and all federal agencies in the Supreme Court, and that means really two things: one is arguing the cases, and the second is writing the briefs in the cases, and including those times that people want to get certiorari granted, and the government is opposing it; or vice versa, the government wants cert and the others are opposing it. But if it is granted, then there are the briefs on the merits. So number one is the cert petitions stage. Number two, the merits. Then there’s a third responsibility, and that is a very little known responsibility, and that is if any federal agency, including the U.S. Attorney’s Oice, wants to take an appeal from one court to another, they have to irst get the permission of the Solicitor General. The purpose of that is to ensure uniformity and give the Solicitor General some say in whether or not this is the best vehicle for bringing about that particular institutional position or, even more importantly, what should be the institutional position of the government. Because sometimes, let’s say the .S.U Attorney’s Oice in some particular district may be completely wrong about what is in the best interest of the government. Now, that rule did not apply when the other side wanted to appeal. They had the right to appeal, but that rule did apply if the U.S. Attorney’s Oice or any federal agency wanted to appeal. The typical place would be from district court to court of appeals, but there were other types of appeals that could occur within the judiciary. So about one-third of my time, and one-third of all of the assistants, went to reviewing those requests to take an appeal. And I am going to say probably two-thirds of those were permit- ted. One-third were rejected, either because the position the U.S.Attorney’s Oice wanted to take was wrong, or because it was right but there would be better cases in which to present the issue. So that took about one-third. About one-third of the time was spent on cert petitions. About one-third was spent on merits briefs and/or actually arguing the cases. In my two years that I was there, I argued six cases in the Supreme Court, and I must have briefed on the merits—this is a guess—i fteen to twenty, something like that. In those cases, the deputies would argue them. In other words, in some cases the deputies or the SG himself would argue my case, and rarely, but sometimes one of the heads of the divisions or the Attorney General would argue my case. So, we didn’t get to argue everything we briefed, but six arguments in two years, I thought that was plenty for me, and I was happy with that. So let me stop there. There’s more to say on the subject, but you ask me a question. LM: I was thinking that you had been in D.C. working for Justice Douglas previously, and then you become a partner at Morrison & Foerster and you’re back in the capital, and from private practice back to government. What kind of transition was that? It wasn’t new to you, but was it a transition? WA: Yes, it was, because when you’re in private practice, you get spoiled with things like secretaries, and

128 • twelve secretaries are good. They take your crappy notes and they turn it into a good brief, or they help you make your airplane reservations and all that. At DOJ, we didn’t have secretaries of that caliber, and you had to share. I had maybe one-third of a secretary, and they would never stay late. In the government in those days, I hate to say it, every draft had a typo. Every draft. In fact, you might just have one. They didn’t have memory machines, so it had to be retyped. So then the next draft would come back with another typo in it. It was just so frustrating. That was a huge change from private practice. Secretaries in those days in private practice were superb. That was one issue. I typed my own briefs in the Justice Department. I got pretty good. I was a pretty good typist. About halfway through, we got one of the very irst memory typewriters. I had one of those in my oice and I used that a lot. So I typed my own briefs. I did all of my own research. There was no one to delegate it to. In a law irm if you were a partner, you get to say to the associate, “Go research this issue.” And then they’d come back with the answer. Well, no, you go do that yourself if you are an assistant to the Solicitor General. We each of us had our own full set in our own oices of—beautiful oices, by the way; tall ceilings that were about at least ifteen feet high, I think higher than that, and big windows. I had one that looked out over the National Archive building. A private oice, just one person in the oice, carpets on the loor. They were very nice. I had my own set of U.S. Reports. I did my own research. If I had to use the Federal Reporters, which—we had one set on the loor for us, and in addition we had a great library on the ifth loor, the main library. Great place. I loved going in there and doing research. I will tell you that story about researching in the library on the Sioux Indian case later. So that was a change, but everyone was doing it, and we all put in extra hours. I would say fourteen hours was a typical day. But we loved doing it. We had a huge responsibility. We took it seriously. LM: I did, as you know, meet Elinor Stillman, Peter Buscemi, and Judge Bill Bryson almost a year ago. I got the sense there was time for some pranks, and a lot of camaraderie, and a very intense work environment. But something all of the people I spoke with recalled it in a positive way. WA: It was a very positive time in my life. In fact, just looking back at my career as a lawyer, it was the single best two-year period of my life as a lawyer, was in that oice, and for many years after I left, I would have a recurring dream that I was walking along the Mall in Washington, and I wandered by the door of the Justice Department, and in those days anyone could walk in and out. There were not guards guarding the doors. And my pals from the Solicitor General’s Oice happened t o be coming down the street and they would say, “Oh, Bill, welcome back.” And they’d kind of usher me back to the building and take me up to the ifth loor and open my old oice door, and no one else is in the re, and all of the work is piled very high, because I had been away. And they’d say, “Welcome back, and now you can resume.” I had such a great, thrilling feeling that I was going to jump back into that job again. So it was a great dream. I must have had that a dozen times, but not in recent years, of course. Yes, I loved that job. I do remember a few pranks. I wrote a gag opposition to a cert petition that involved Larry Wallace, who was about to celebrate one of the milestones of how many arguments—he had argued a lot of cases—and he was one of the deputies. And he was a violinist. He had many personality quirks. There was a gag opposition to a cert petition that had him appealing a ticket that he had gotten for speeding on the George Washington Parkway so that he could get to a concert that he was late for, and he was making these ridiculous arguments. That was a fun gag at Larry’s expense, and he took it in good humor. The more regular thing that we did was at around four o’clock every day we would have a dart game, and some of them were great. I would play, but I was just average. We had some dart players who were very good. Ken Geller, for example, he was one of the deputies, too. He could really get right in that bullseye. So we had a lot of dart games, and the dart game would be over and we’d go back to work for

twelve • 129 many more hours. I would usually leave around seven. I got in early, and then I always took work home. I wanted to see Allison and Suzan before everyone turned in. Then I would sit in my chair at home and work on some briefs for longer, or read briefs. It wasn’t hard to get to work, either. It was about a twelve- minute drive across the river, but I did not have a free parking place. I parked at a commercial lot, and then would walk two blocks to work. That was kind of the daily drill. LM: Six cases that you argued in two years is a lot. I don’t know if they were spaced out evenly, but it’s one every four months, and in between you’re brieing many other cases. WA: Correct. And when you do have an argument, of course, you have to prepare for it, and you read everything thoroughly. You don’t just wing it. These days, they have moot courts at the SG’s Oice. In our day, those were not usually done, but you could do it. You could try to talk people into giving you a moot court. I might have done one. I don’t really remember for sure. I know for sure I did very few. But I did study a lot. I had all my notes organized, handwritten sheets of paper that would tell me the citations to cases and the key quotations I would want to have at my inge rtips. I always felt like I went in very prepared to get at the record. Here’s the thing. The irst time I argued, at least in the Supreme Court, I felt like I was in the middle of a football ield at the ifty-yard line and these bigger than life voices were coming out of the stands with bright lights with booming voices over the microphones, and the loudspeaker system asking me tough questions. So I was very nervous, as any young lawyer would be on eth irst try. By the time I got to the sixth of my arguments, however, I had a completely diferent feel.The feeling to me then was, here I am in a seminar in grad school, sitting around a table with nine other people, and we are trying to put our heads together to igure out what the Social Security Act meant. What did Congress mean on this provision? It was more like a seminar than this football stadium thing.And in between were gradations—about the third argument I could put the nervousness to one side and actually concentrate on the arguments. When it was all over, I eventually had to make a decision whether to be an appellate lawyer versus a trial lawyer. I liked the appellate part, but I really was more excited by work at the trial court—blood on the loor—so eventually I gave up on an appellate practice. LM: Then you would have left the blood on the loor. WA: Yes, exactly. I did like the blood on the loor. [laughter] LM: One thing I was just really taken by when I irst started reading about the SG’s oice last year, before I met with your colleagues in D.C., is what a small group of lawyers you were at that time, and what a huge amount of work you had to do. WA: That is so true. What allows you to manage all that is there are only three responsibilities. There’s the appeals; there’s a cert petition stage; and then there are the merits. You don’t have to ly very often to Kansas City and meet with clients regularly. The clients are all right there in Washington. They come see you. There are eiciencies built into the job. But nevertheless, it was a huge amount of responsibility. One of the key ways in which we managed that was—unlike what goes on today in law practice—we would make one good argument and not two or three extra arguments in case we lost the main argument. We would just go with one good point and make sure that that one was solid, and then we would not try to have two or three backup arguments. You don’t have the luxury to develop it all. You have the time maybe to develop the one very solid argument, and then that’s it. That was a lesson that I learned, and one I used for the rest of my career. After I left, I tried to be ef- icient in inding the winning road map to victory, as I like to call it, without having a long list of backup possibilities. Not that you would ignore backup possibilities. You can’t do that. But your main game plan ought to be one good argument. On that piece of the case, one good argument is what you need.

130 • twelve LM: How did the Solicitor General interact with all of you as his staf? WA: He was so great. He was a very polished, generous man. LM: He came from the Sixth Circuit? WA: He did, yes. Wade McCree came from Michigan. I’ll give you an example. You are supposed to wear a morning coat; at least men are, in the Supreme Court. At that time, Warren Burger, who was the chief, insisted on it. Anything having to do with England and barristers, he was very much enamored of that. If you were a man and didn’t wear the morning coat outit, he wouldind some way to criticize you. So we honored that custom. But I didn’t have a morning coat. I went down to the Salvation Army to see if I could ind one. They didn’t have one that would it. I wound up with the f ollowing: the jacket I borrowed from Allen Ryan, who was another assistant, it me perfectly. But his pants didn’t. The Solicitor General’s (Wade McCree) pants, though, it me perfectly. Every time I argue d it had to be on a day those two were not arguing. I would wear Allen’s jacket and the Solicitor General’s pants. LM: Is there a prescribed special tie? WA: Yes, there was. I did buy one of those. I am pretty sure I spent the money to buy a tie, but honestly, even on that, I can’t remember for sure. There is a prescribed tie. It is grey and black. LM: So the Solicitor General—you said he was great to work with, and here he is sharing clothes to make it all work for his lawyers. WA: Right. LM: That’s a pretty telling thing to do. WA: There was another gracious thing that he did. The press would criticize him every now and again. There was a court column in the American Lawyer called “Courtly Manners.” And it was just about cases in the Supreme Court. I think his name was Lyle Dennison who wrote that. He would quote people and there would be unnamed people who would say that the Solicitor General had blown an argument. In- stead of giving this answer, he should have given that answer. Then they would always ask Wade McCree for a comment. One time McCree said, “Listen, if I come back from an argument and I only made one mistake, I count myself pretty lucky.” I thought that was a nice way to put it. It is really true. It is hard to argue in the Supreme Court and not make a mistake, something you wish you had answered diferently. That is one of his quotes that I remember him making. Thurgood Marshall had been the Solicitor General, so McCree was the second African American to be the SG. LM: There was a case among the many that you briefed and argued that you had mentioned wanting to start with. WA: This is not one that I argued. This is one that I briefed. Still, it is one of my favorite memories from that time. Let me tell you the story. It’s another long story. Early on in ’79, the Court of Claims decided a case against the United States. It was called Sioux Nation v. United States, and it was over the Black Hills, and the taking of the Black Hills, in I believe 1876. So you might say, how in the world can a case go that long? Well, that’s a very good question, so let me tell you why. General George Armstrong Custer, while he was still alive and before the massacre, had gone into the Black Hills in South Dakota because there were rumors that gold had been found in the Black Hills, which had been true. But the Black Hills were in the reservation. The entire state of South Dakota was a Sioux reservation. It wasn’t a state. The Sioux had it, set aside by an Act of Congress for the Sioux.

twelve • 131 Prospectors, however, had trespassed and found gold, so Custer went in with his Seventh Calvary and conirmed that there was gold. Well, then that just tripled andquadrupled the number of people going in there to get the gold. That then led to a number of killings on both sides and a big problem, and that problem was on the mind of Congress for several years—until the massacre occurred at Little Big Horn and Custer was killed. That had nothing to do with the Black Hills, by the way. That was a diferent es- capade by Custer, but at Little Big Horn, his whole unit was wiped out, including Custer. It turns out that a few days after the massacre, Congress passed a law that took the Black Hills away from the tribe, took it out of the reservation, and in exchange for that said, “We will give you thirty years worth of food rations and provisions.” It was kind of like a treaty superimposed—it wasn’t really a treaty. It was just superimposed on the tribe. “We will transmute your land for food rations and provisions.” The Sioux did not like this because the Black Hills were sacred to them. The most sacred part of the whole reservation had been taken away from them. Sometime after the 1900s, the tribe sued in the Court of Claims for compensation for the taking of the Black Hills. That case goes into the 1920s. Some depositions are taken, by the way, of people who had been at Little Big Horn. The case went into the 1920s, and the main argument made is that this was done in retaliation for Custer’s Last Stand, and it was a hostile act and it was a taking without due process of law, and we want money for it. So that was the argument. Well, the case was thrown out by the Court of Claims in the 1920s, I am going to guess 1926, but I could be of by a year or two. So the tribe lost. LM: Let me ask you, they weren’t suing to get the land back? WA: No. I think under the sovereign immunity, that was impossible, but the sovereign immunity had been waived for monetary relief in the Court of Claims. That would have been great to get the land back. So the tribe lost. The next big event was World War II. And one of the stories that we have forgotten from that era—but Congress did not—was how the Native American tribes came forward, enlisted in the Army and served the United States in the Army and the Navy. In 1946, in recognition of this—it’s kind of like the GI Bill—Congress passed the Indian Claims Commission Act, which I think was, for a ive-year period, any tribe who had lost one of these cases before, back in the 1920s or earlier, could sue all over again. In 1951, I think, the Sioux tribe took advantage of this and brought a new lawsuit over the Black Hills. It went through the Indian Claims Commission irst, but wound up gettin g into the Court of Claims by 1979, and the Court of Claims ruled for the tribe. The government had won at every stage until then. There were several good arguments that they had. They had decent arguments. But the Court of Claims—now we are coming to one of the key things—the Court of Claims agreed that this had been done in retaliation for Custer’s Last Stand and, therefore, it was not a transmutation of Indian lands by the United States wearing its trustee hat; it was just plain old retaliation, the Court held, namely a taking without due process, and awarded $103 million in favor of the tribe. In those days, that was the single-largest judgment against the U.S. by far that had ever been entered against the United States. So it was huge. Now, today that would be nothing, but in dollars then, that was the biggest ever against the United States in the Court of Claims. So, all this lands on my desk at the Justice Department, and I was pretty sure I would not get a chance to argue. I was too junior to argue this one because it was a hugely important case. Nevertheless, I just completely got into it. I started reading this record and, of course, the record went all the way back to this case that was ended in the twenties, so the depositions of the Indians who had been at Custer’s Last Stand were in the record because the case had gotten revived through the Indian Claims Commission Act. It was a huge record with many, many years of diferent opinions. I systematically went and read

132 • twelve everything, made notes, read those depositions. I got so much into it that I went into the Justice Depart- ment’s main library late at night, that nice old library on the ifth loor with high ceilings. I would turn on one of those lamps with the green little shades. That late, I was the only person in the library. Most of the library was dark, and here I am over there in the corner, reading. I was doing it in the library because I wanted to read the Bureau of Indian Afairs Reports. The library had all of them, and I was reading that to understand what had been happening on the reservations, what the treaty practices had been. There had been some very important treaty practices that went back to 1869, which wasn’t that much earlier, where there had been this huge convocation of all the tribes in the west at Fort Laramie and the United States entered in all these peace treaties. It was really a huge event in history, which no one remembers anymore, but that kind of set the pattern for the phrase, “food rations and provisions” and recognition of diferent territories for the diferent tribes. So I wanted to understand lla of that history. I was reading the deposition from the Indians that had been at Custer’s Last Stand, and I would get goose- bumps. I would look up and I could swear I could see shadows moving in the corners of the library when I was reading all that history. So then, I had the following thought. I read the legislative history of the statute that took away the land. I said, “You know, it’s funny, it doesn’t mention anything about Custer or the massacre. Where did the argument ever come from that they have been arguingor f ifty years that it was for retaliation? Because there is nothing in the statute or the legislative history that explains that, and I read every word, even what they said on the loor of Congress. I read everything. So how come somebody in the House or Senate didn’t say that if it was on account of Custer’s Last Stand? Then an idea occurred to me: I am going to go back—because it was only like ive days between Custer’s Last Stand and when the law got passed—I’m going to go back and see when the word got all the way to Washington about Custer’s Last Stand. And I read I think what is called the Senate Journal, and the Senate Journal is what goes on on the loor of the Senate, and they had passed—let’s say on Day X—they had passed the law taking away the Black Hills. But, it was like Day X and one plus two, where the president pro tem of the Senate says—they’re debating some— In those days, by the way, almost everything was on how to dispose of federal land in the West. That was the—if you go back and read what went on on the loor of the Senate and the House in those days, 70 percent of what they talked about was federal land in the West; the Homestead Act, Carry Act, the Desert Lands Act. So they were debating some law, when the president pro tem interrupted, and he said, “I need to interrupt. They just handed me a message saying that there has been a terrible disaster in the Department of Missouri.” Now, the Department of Missouri is where Custer had been. They organized it by rivers, the Department of Missouri River, the Department of the Mississippi, the Department of Ohio. That was the way the Army was organized, by watersheds. And so the president pro tem—this is after the law has passed—“We have just gotten word that there has been a terrible disaster in the Department of the Missouri. We are sending for the Secretary of War to come down here and tell us what happened.” The Secretary of War comes down and explains that Custer has been wiped out. I said to myself, “My God. They didn’t even know about Custer’s Last Stand when they passed the law. How could it have been in retaliation?” I went to the deputy, a guy named Louis Claiborne,and I laid all this out. He said it’s pretty good; so he said, “You write it up.” So I wrote it up. And part of our brief was—the issue was really, as it had been framed—was this a taking under the Fifth Amendment or was it a legitimate exercise of the trustee role of the United States in transmuting Indian land for food, rations and provisions. If it had been the latter, it would have been okay. There’d be no compensation given. I wrote it up and a major part of the brief was this entire case has been built on an incorrect proposition that the law was passed in retaliation. There was just a coincidence in timing, and here is the proof, and I laid it all out. Congress

twelve • 133 had been pondering how to deal with the Black Hills and gold problem for some time and just happened to enact the removal a few days after the massacre. Here I am, a young lawyer—how old would I have been? Thirty-four, I guess, at the time. And I’m thinking, I hope I am right. I have checked it every way I could possibly think to check it, but I don’t see how they’re going to get around this. But on the other hand, the lawyers on the other side—Fried Frank had been doing the work, and a lawyer named Arthur Lazarus—he was superb—and he had been living with the cases since the ifties, and he would know everything about it. I said, if I’m wrong, they’re go - ing to point it out and I’ll be so embarrassed. So I was worried every day. And when their brief came in, they could not refute what I had said. They had all of these other arguments about why maybe that you should just presume it, but the basic facts of the chronology, they could not dispute it. So I felt vindicated. Fast forward. Louis Claiborne got to argue the case as I had expected that he would, and we lost. I am glad we did, because it was the just thing. I was all on the Indian side anyway, but as a lawyer I was doing my job. We lost eight to one. Rehnquist voted for us. How did the Supreme Court get around that problem of true legislative history? Well, here’s what they did. They did a very clever thing. They adopted a position no one had even argued for—the Supreme Court refused to say that it was in retaliation for Custer’s Last Stand. In fact, I don’t think they even mentioned Custer’s Last Stand in it. It just mentions the law was passed and if you go back and look at the law, here’s what they said in the legislative history— which was not a whole lot, but there was some—and the Supreme Court adopted a new rule, which is that if the government wants to transmute Indian lands, wearing its hat as a trustee, then it needs to make a legislative record that will show that it did what a trustee should do, that it is acting in that role and that it has considered the value of the land versus what they are going to be giving up in exchange, and making a record that would justify that transmutation of Indian lands. And therefore in this record, Congress did not make that record, and therefore the government loses. No one had argued for that position, but it was sensible and just. The reason I like this story is that it led to a small little footnote on history to correct the record that this law was coincidence in timing, rather than in retaliation for Custer’s Last Stand. LM: Well, you dug down. WA: Pretty deep. LM: Pretty deep. As a young lawyer reading about what had happened to the Sioux tribe and some of the other Native American tribes, was some of that new to you, or were you already familiar with that history? WA: Well, a lot of it was new. The details were certainly new. But even growing up, we knew that the way tribes had been treated in America and the constant taking away and shrinking of the reservation land, yes, that was well known to me. The details of something like the Black Hills, I knew none of that before. In those days, the Indian tribes in America were really destitute, unlike today where we have got the casinos that have turned out to be very lucrative for the tribes. In those days, there was nothing like that. I think we had a guilty conscience, and that’s why the Supreme Court did exactly what it did, and it was right to do it. I did learn a lot. I read all those BIA [Bureau of Indian Afairs] Reports. Corrup- tion. Some of the agencies tried hard. Congress wouldn’t give them much money. The conditions on the reservation were just terrible. Then there is this huge long story. There was a guy named Cohen who wrote a great book. He was in the Interior Department for a long time and he knew the Indian law. He wrote a good, concise book about it. There have been many chapters, but one of the many chapters was “Assimilation”—I think that was the name. There have been periods where people live on the reservation, and then the next wave is, “No, no, no, we are going to assimilate you into the mainstream of white America.” That was going on just before World War II started. “You have got to learn English. You have got to learn the white man’s ways, give up on your culture, be part of the mainstream.” After World War

134 • twelve II, in more like the seventies and eighties, we went the other way. It went back, “No, no, no, it’s time to go back and preserve that culture.” And then in the nineties we get the casinos, so it has been a very detailed, mostly unhappy, story of how tribes in America got treated. LM: Sufering. WA: Correct. LM: I saw recently that one of the men who was a Navajo—diferent part of the country—but Navajo code talker died. WA: I read those books. I read those books about ive years ago. That is a good example of what led Congress to pass the Indian Claims Commission Act, was the Navajo code talkers, just that one story. LM: We can talk more about the SG’s oice and then back to private practice. WA: Let me give you one other story. This is one I did argue. It was the Kissinger case, about his papers. Henry Kissinger was Secretary of State, and before that he was the National Security Advisor to Presi- dent Nixon. Nixon made him the Secretary of State. Kissinger had a practice of having his secretary listen in on an extension phone where no noises and clicks would be made. I guess it just would listen. And she took exact stenographic notes of the conversation. It was not a recording, but it was eavesdrop- ping to make an exact transcript. You would have to have somebody good at shorthand to be able to do that, and his secretary was. At some point near the end of his time as Secretary of State, he got to be worried about—this time I am inferring—about the Freedom of Information Act, which doesn’t cover the Library of Congress. So, he donated all of that to the Library of Congress, all of those notes and transcripts, with the caveat that it would not be made available for X decades. A group called the Reporters Committee for the Freedom of the Press, I think it was called, found out about this, and brought a Freedom of Information Act [FOIA] case against the Department of State and Henry Kissinger, seeking an order to require the State Depart- ment to go to the Library of Congress and sue the Library of Congress to get back the transcripts and then make them available under the FOIA. The Supreme Court then took the case and I represented the State Department, not the Library of Congress. The Library of Congress, which is part of Congress, was made exempt from the FOIA. That’s the way Congress works. They exempted themselves, so this was a safe haven over there, and the Library of Congress was happy to get this material and would agree to anything, because they like to get that kind of archival stuf. You couldn’t sue the Library of Congress. The only thing you could do was to try to get the State Department to try to retrieve the documents. This was another case that fell on my desk and I had to represent the State Department in this case. Of course all of the sympathies of the country were on the side of the reporters, because this did seem like a sneaky thing for Kissinger to have done. I didn’t represent Kissinger. By this point he was out of the government. This was the Carter administration, so he was no longer in the government. He was a private citizen. He was allowed to be part of the case for some reason. The argument, having been in private practice and being very familiar with document requests—the standard rule is that you don’t have to produce something in response to a subpoena or a document request unless you actually had custody or control of it. You don’t have to go out and ind it in order to produce it. This argument actually hadn’t been made before. I said, well, that’s the winning argument. I wrote it up along those lines. I said, the Freedom of Information Act does require you to turn over what you have, but it does not require you to go get something to turn it over, and the Supreme Court agreed with that. So I felt pretty good about that. There was a further wrinkle, though, and that was the Federal Records Act of 1943, which since then

twelve • 135 has been updated. The Federal Records Act actually would have given, if these had been federal records, would have given the State Department the authority to sue to get them back. So, I took the position that they were federal records. I think the Supreme Court agreed with me on that. They may not have reached that point, but nevertheless there was no way we were going to say they weren’t federal records. The trick there was that it’s up to the agency. That’s a diferent statute. It’s up to the agency to decide, in its discretion, whether or not it would go and seek the records back or not. It wasn’t mandatory that they do that. The arguments that I came up with, and I argued that one in the Supreme Court—I remember Jus- tice Stevens. He was tough. Bless him. He did not like our position. He thought we should go and get the documents back and turn them over, and this was secrecy in the government and all that. He was probably right. Justice Douglas would’ve felt the same way. We did prevail on the arguments that I had constructed. That was one of the other stories that I wanted to tell you. LM: Did anything change after that in terms of this practice that Kissinger had? We talked about being in private practice and having a dedicated secretary. Here you had someone who spent some signiicant amount of time. WA: Yes. Congress changed that and improved and strengthened the laws. I do not think the FOIA got strengthened. However, the records that the agencies have to keep and treat as agency records got much stronger in favor of the government. In fact, I think to an extent we are seeing some of that now on Hill- ary Clinton and the email thing—whether or not those emails belong to the State Department to begin with; I guess there are some lingering issues there. LM: Did you like this way of working—where you were immersed so intensively in these really diferent issues, all for the government but vastly diferent areas of law? WA: Yes, I did. In a way, it is a lot like this job that I have right now, because ive days a week I can have twenty diferent problems that may have some overlap, but usually they don’t. They are just independent problems. The beauty of it is, the way in which you analyze a problem, let’s say in the securities area, when you go to, say, ERISA [Employee Retirement Income Securities Act] or some other regime, the specialists in that are not going to know anything about securities law, but you can say we solved that problem in the securities arena using this approach, and let’s see if it works over here in the ERISA area. So that breadth of experience—allows you to see solutions, and gives you ideas to try out elsewhere. Yes, I did like that. I still like that. It is the generalist approach. LM: Very creative, also. WA: Yes, you do have—that is correct. I am doing something right now that I think is—a case is an FLSA [Fair Labor Standards Act] case. I won’t go into details because I h aven’t done it yet. I am trying to ind a way to salvage some of the hard work we’d put into this cas e without just dismissing the whole certiied, collective action, or decertifying it. I am coming up with a very creative way. I went through the order early this morning. It will probably go out by the end of the week. And yes, it is creative. When we do anything creative, we get criticized. “There’s no precedent for this. There’s no precedent.” Well, on the other hand, maybe this is the precedent that will solve that problem for other judges. S hall we end it there? LM: Yes, let’s stop.

136 • twelve thirteen

Back to Morrison; the D-Q University pro bono case Dennis Banks; the Department of Education Billing hours More about arguing before the U.S. Supreme Court Being a trial lawyer Industrial Union Department v. American Petroleum Institute, (OSHA), 1980

LM: Today’s November 30th, 2016, with Judge Alsup, and we are going to start with a case you worked on at Morrison & Foerster. WA: We were just discussing a case that was a pro bono case that our irm represented D-Q [Deganawi- dah-Quetzalcoatl] University against the United States and some various agencies when Ronald Reagan was president. I look back on it as one of the inest moments of m y legal career, so I am glad to have the chance to summarize it. In 1981, I believe it was, I was busy working away in a conference room at Mor- rison & Foerster on some regular paying case, and Bob Raven came in. Bob Raven was later to become the head of the ABA [American Bar Association], and was the leading light in our irm, founder of the modern day Morrison & Foerster, one of my mentors, now deceased. Bob came in to say could he talk with me for a minute about the D-Q case. Here’s how dumb I was: I thought he meant Dairy Queen, because that’s what DQ meant to me. I had never heard of D-Q University. But Bob had this way about him that he just assumed that everyone was up to speed on everything to the same extent that he was, so he must have assumed that I was aware that there was some chance that the irm was going to take on this big pro bono case for D-Q University. So I said, “Sure.” I was working with him on a diferent antitrust case. I had just assumed it must be a franchise antitrust case involving Dairy Queen. He started getting into it and I kept waiting for the ice-cream part to come up, and nothing. Finally I said, “I just don’t understand what you’re getting at.” It had nothing to do with Dairy Queen. Finally we got down to the basics. A few years earlier, the federal government had given 600 plus acres of land near Sacramento to a pan-tribal group to form basically a community college for tribal members, an Indian college, if you will, Native American. It was a former Air Force base. So it had some buildings, but mostly it was just vacant, raw land out in the country, north of Davis, north of Sacramento. Also, hard to reach. Using the land, the tribes started a college for Indians called D-Q—they referred to it as D-Q, but that actually stood for Deganawidah-Quetzalcoatl, but they had a tradition of not using those names. One of those names wasn’t supposed to be verbalized, so they just shortened it to D-Q. They had a board and had teachers. They had students in the range of 150 to 200 students, so it was up and running. That was Chapter One. Chapter Two was that a guy named Dennis Banks, an American Indian movement leader from South Dakota had gotten in trouble with the authorities in South Dakota and had come to California. You may remember his name. He was welcomed at D-Q and took a teaching job there. The governor of South Dakota and the attorney general there asked that JerryBrown, then governor in his irst incarnation— they wanted him extradited to South Dakota, and Jerry Brown said no. This got under the skin of the

thirteen • 137 people in South Dakota. I believe the attorney general’s name was Janklow, and he will become a character in this story as we continue on. You interrupt me whenever you need to, because this is a long story. Chapter Three was that Janklow, the attorney general, wrote a letter to then new president, Ronald Reagan, who had only been in oice a few months. He then recited the story of Dennis Banks, a wanted fugitive in South Dakota leeing to California, and California refusing ot extradite him, and then come to ind out he not only is holed up in California, but he is holed up at -QD University. This got under the skin of Janklow, and he complained about it to Reagan, and he said D-Q University should be investi- gated. It’s on surplus federal government land, and we think that they don’t deserve that land, and you ought to take that land back because this is not the right thing, according to Janklow. It’s not the right thing for a wanted fugitive to be holed up at D-Q University. He ended his letter by saying—I’ll never forget this phrase—by saying that the D-Q University was nothing but—this is his phrase, not mine—“a tick on the back of the American taxpayer.” This letter goes from the attorney general of South Dakota to the president of the United States, Ron- ald Reagan, who sends it to the Department of Education. The Secretary of Education was Terrell Bell. Within three months, the Department of Education had decided that they would seek to reclaim all of the 600 plus acres of land, and kick the Indians of the land, which oundeds like the nineteenth century all over again. The government plan was to go to federal court in Sacramento, and to seek to reclaim title on the theory that the conditions of the grant had not been sa tisied. One of the conditions—there were several—and the one that was most important was the number of students. It was arguable that they had fallen below the minimum number of students that was required, and there were provisions for grace periods and the like, but it was arguable that they had fallen below the minimum number, depending on how you counted them. Either they did make it or barely made it, or maybe it was too low, so there was a question there. It had been too low more than one year. Bob didn’t know all of this yet. A lot of this information I learned as I got into the case, but you didn’t turn Bob down. If Bob wanted you to do a case, he would just ask you to help and pretty soon it was all on you. It was hard to say no. In addition to all of the other work that I had, I was now in charge of what turned out to be a huge case. I needed some helpers. I got two helpers, both of them were young associates. One was Pat Wilson. Another was Kathy Bagdonas. Then we went up and met with the board at the D-Q University, a guy named Dave Riesling, who was famous among the Indians in California. He is now deceased. He was the chair of the board. The board had a representative from every single tribe in California. It was a great group. They had been represented by a lawyer named Abby Abinanti who was up in Eureka. She just had a single oice, and she was tryingto defend against this lawsuit brought by the federal government against D-Q to get the land back. The U.S. Attorney’s Oice had vastly more resources, and so she had come to Morrison to see if we would join in and help her with the case, because it was overwhelming her. She was a sole practitioner. She had no one else to help her. By the way, Abby wound up being a discovery commissioner in San Francisco Superior Court many decades later. I think she’s even still there. Pretty soon I am up there in the boardroom by Davis holding hands around the table, listening to the prayer, which was really just a speech, and then we got down to business. The only documents that we had were the documents from the Freedom of Information Act request that Dave Riesling had himself submitted to the Department of Education when the dispute irst brokeout. That was maybe a box full of documents; that was it. They provided us with the box of documents. There was an upcoming hearing in federal court about to happen. We learned there was a hearing scheduled on summary judgment by the government for summary judgment to get the land back, because the case had been going for some time. No discovery had been taken in the case, so all we had was this Freedom of Information Act box.

138 • thirteen We iled our own civil rights lawsuit before the same federal judge in Sacramento and asked for a preliminary injunction to force the Department of Education to stop terminating Pell Grants for our students. Back in the oice in San Francisco, the phone rings. I answer the phone and it’s the Assistant U.S. At - torney in Sacramento. His name was Lou Demas. He’s a good guy. I got to know him. He said, “Look, we’re going to put a witness on the stand at the hearing.” Iaid, s “What? You can’t do that. The hearing is this afternoon at one o’clock. You can’t do that. In fact, I am about to get in the car and drive up there.” And he said, “No, no. I’m giving you notice now. We’re going to put a witness on the stand.” I said, “This is not fair. This is sandbagging.” And he said, “Well, we’re going to ask the judge for permission, but I just wanted to give you a heads up.” I said, “Okay, thanks for the heads up, but I am going to oppose this.” I hung up and I said to Pat, “Pat, get in there and go through that FOIA box and ind me anything that has the witness’s name on it.” His name was Robert Crummel, a regional director in the Department of Education. Pat said okay. We only had like thirty minutes to do this, and then we had to jump in the car and drive up to Sacramento. He found one document with his name on it, but it wound up being a pretty important document. Crummel had sent a letter, this one document we had. He had sent a letter to D-Q University in which he—it was one page long, and it ended by saying that he was “freezing”—his own term—“freezing” the funds under the Pell grants for D-Q University. This will become important in a minute. I am about halfway through the story. One of the issues that we had uncovered in our investigation in the irst few weeks—this was very early in the case—was that the Department of Education had been terminating Pell grant payments, freezing them. That, in turn, had led to students dropping out, because if they didn’t get their Pell grants, they couldn’t aford to stay there, so then they were dropping out. And that, in turn, was reducing the numbers so that we couldn’t meet the grant minimum requirement. These Pell grants were statutory grants. These were not just some matter of grace. If you’re eligible, you’ve got to give them a hearing and everything else before you can terminate or freeze somebody’s Pell grant. And a lot of the students there were poor and they deserved the Pell grant, so they had the Pell grants. But this also helped explain why the numbers had been going down, because the Reagan people had been doing this little gimmick of freezing the Pell grants. We get up there to the federal court. This was in the old federal court, which was a nice building, by the way, but there is a brand new federal court since then up in Sacramento. The grounds of the federal court were covered with tipis and campouts. What had happened is there had been a march of the students all the way from D-Q, about ifteen miles away, into Sacramento. They had a permit and everything. They camped out on the courthouse grounds. I said, “Oh, my God.” The courtroom was packed. It seemed like faculty, students—it was just packed with Indians who were there to see whether or not their land would be taken away. So it was just me and Pat sitting at the table. The government guy gets up. The judge was Judge Philip Wilkins, and he was a Republican appointee, conservative guy, and it just looked to me like everything was lined up so that he was going to sign the summary judgment against us and then that would be the end of the case. First, my pitch was—I said the government has been terminating these Pell grants and that is why the numbers are low, and that violates all of the regulations. They should not be allowed to do that and that’s why there are fact issues here, and, by the way, we are bringing our own civil rights case to make them turn the Pell grants back on. We’ve iled a counterclaim as our ow n separate action here, and you should not grant this summary judgment until we get a chance to take some discovery, and so forth. Then the government lawyer got up, Lou Demas, and said, “Oh no, Alsup’s got it all wrong. We want Mr. Crummel to testify and explain it all to you.” The judge actually said, “We don’t need that. We’ll just do this on the paper record.” And I said, “Yes, Judge, that’s right. Just the paper record.” Because, really,

twelve • 139 I was not prepared to cross-examine anybody because I only had that one document. I didn’t even know who Crummel was. But Demas kept insisting—one of the most monumental mistakes that anyone ever made in court—was he kept insisting on doing it. Finally the judge said, “Okay. Put him on the stand.” Mr. Crummel came forward, was sworn. His basic testimony was that he was the regional director for the Department of Education, and he was in charge of the Pell Grants. He testiied that they had not frozen any of the money to D-Q University, that that had just never occurred, and that what I had said—he referred to me—what Alsup said a few minutes ago to you is just not true, Your Honor, it’s just not true. We have not turned of any of the Pell Grants, and here is the way the process works, and we are very fair. He made a good impression on direct examination. So while I’m hearing this, I said to Pat, “Let me look at that letter again.” I only had the one document, the only single document we had in the whole case with his name, and I’m looking at it, and it has his signature at the bottom, and the last line in the letter is—it’s written to D-Q University from him—his last line to D-Q says, “We are hereby freezing all of your Pell Grants.” So I said to myself, how can he say what he’s up there saying right now when I’ve got a letter here saying exactly the opposite? To me, thisdoesn’t add up. I whispered to Pat, “What is going on?” and he said, “I don’t know.” Then it was my turn to cross-examine him. Well, you can imagine, here I am, surrounded by an audience of all Indians, all of whom are depending on me, but they’ve heard the government witness up there saying how I had lied to the court, and they might be thinking, what kind of lawyer have we got in here? Let’s bring back Abby Abinanti. This guy doesn’t know what he’s doing. So I felt pressure. Time to stand and deliver. I have got to try. So, I get up there and say, “Now, Mr. Crummel,”—I had a few preliminaries irst , but pretty quickly I got to the main point. I said, “Now, you said a moment ago—I think I wrote it down correctly—that you had never frozen any of the Pell Grants to D-Q University. Did I understan d you correctly?” And he said, “That is correct. We have never done that.” So then I said, “Well, did you ever tell D-Q University,” and I glanced down to use the exact words in his letter, that you are “freezing the Pell Grants to D-Q University?” He said, “No, we never said anything like that.” Then I got more speciic. I said, “Well, did you send a letter to that efect to D-Q University and you said that?” And he said, “No, I never sent such a letter.” Then I said, “Well,” and I held it up in my hand and I said, “Well, on January seventeenth of this year,” didn’t you send a letter to D-Q Univer- sity in which you said,” and then I kind of made a lourish of reading it out loud. He insisted,“I never sent such a letter.” I said, “Well, let me mark this.” And so we mark it. This is the only document we had. I showed it to him, and he was just like—well, you could see. He was loored. And I said, “Is that your signature?” He said, “Yes, that is my signature.” I said, “Did you sen d that letter to D-Q University?” “Yes, I guess I did.” “At the end of that letter, didn’t you say ‘We are hereby freezing the Pell Grants at D-Q University,’” and he said, “Yes, that’s what I said.” And I said, “So everything you just told us was all mistaken, wasn’t that true?” And he said, “I guess so. I have n o memory of this letter.” “Are you denying you sent it?” “No, no. I did send it.” While he was on the ropes, I decided to try for more. I went straight into the regulations. I said, “Now here’s the way the regulations work if you’re going to freeze something. You’ve got to get notice, opportunity to be heard.” He agreed with everything. He even agreed that they were violating the regulation. He agreed that freezing the money without giving those hearings would be a violation of their own regulations. Crummel didn’t know what I had ready to bust him so he agreed readily to everything. Judge Wilkins, on his own, was waving his arms like this [indicating horizontally], just to stop the proceedings, and he turned to Lou Demas, the government lawyer, and he said, “The government is in deep grease and it’s all hot.” I’ll never forget that phrase. “The government is in deep grease and it’s all hot.” He was wagging his inger at the government lawyer. “I told you not to put this witness on the stand.”

140 • twelve The judge did two things. He denied their summary judgment and he issued, on the spot, a preliminary injunction against the government requiring them to reinstitute the Pell Grants. It was a great victory for us. I thought those Indians were going to carry me out on their shoulders. It was the single best day I think I’d ever had in court, and it was a great victory. To jump way ahead, we went on. We took the deposition of Terrell Bell, who, by the way, was married to an Indian. He was a decent guy. When we showed him at his deposition the letters that had been written, like the “tick on the back,” he was so ofended. The political hacks in the department had orchestrated the whole thing, not him. That led to a settlement where D-Q got to keep the land and actually got to buy the land, half of it outright and keep the other half under a grant. They outlived the Reagan people for a long time. And one of the sad things is—in fact, in 1999, before I got this job, they were still in business. They gave me that nice rug there, a genuine Native American rug. About ten years ago, though, D-Q inally failed. It had nothing to do with politics. It was just the economics of it weren’t there, so they closed the school. It was a sad thing that all that work eventually didn’t pay of. For about twenty years, they continued on and succeeded. It never lourished. So that’s the story of the—it’s a long story—of the D-Q case. LM: Did it ever come out what was behind the government freezing the Pell Grants? WA: There were some internal memos that we eventually got. Yes, it was quite clear. It was that letter. They were trying to retaliate against D-Q on account of Dennis Banks, trying to subvert the whole idea that there would be a Native American school there. And that came out in the documents that we got in discovery. It was terrible. LM: Was that kind of a long reach for the attorney general of South Dakota? WA: No, because he was a big guy in the conservative Republican circles. It was not a big reach. He went on to be the governor of South Dakota. He later got himself in trouble for some reason I cannot now recreate. That was after all of this occurred. He was a big name. He was even referred to occasionally as some person who might have national oice. William Janklow was his name. LM: In the twenty years following the case, there were a couple thousand students who went through that program. WA: That’s about right. It would be in that range; maybe ifteen hundred. Yes, I’m proud of that. LM: That made a diference. So what was the celebration with the Native Americans following that result? WA: We went back to the school. We did have a celebration there, but it was in the boardroom. The board was happy. But the students, they were—I can’t remember what they said. There were so many nice statements and a huge amount of gratitude. LM: Bob Raven? WA: He wasn’t there. But he always laughed about—he followed the case. In fact, he went and took the deposition of Terrell Bell. I was there with him, but he felt that, being the Secretary of Education, he would show the lag and the most senior partner in the irm would come take that deposition. That was my suggestion to him. Bob would have been ine if I had done it, but I ought,th being someone that high rank, a cabinet member, we ought to have our most senior lawyer there take his deposition. Our strategy was—because we felt that Terrell Bell was a decent person. He was married to an Indian, as I said, and he would be ofended by what was going on in his own department. It was only three months or so after that—I think Terrell Bell got it in his mind, rightly, that this case was an embarrassment and they should

twelve • 141 settle the case, and that’s what led to the settlement. And by the way, AUSA [Assistant U.S. Attorney] Lou Demas, who was in favor of the settlement, too, got to know the people out there at D-Q and liked them, liked the staf, liked the president. He wound up being one of our biggest supporters. We did a lot of pro bono at Morrison—me too. I must say I did more than my share of the paying cases also. We always gave credit for pro bono, but I never wanted to press that too far. I always wanted to make sure that I did my fair share of the billing cases. But there was one year—I think it was the D-Q year—where I didn’t make my quota of billing. Every other year I was way over, so they put up with me. I did do a lot of pro bono work. We thought it was important that we do that. LM: What would your billable hours have been in a typical year? WA: Well, I’m embarrassed to say this, because these days the lawyers work even harder. I would say in a normal year, my billables would be 1,900 to 2,300. And then over and above that I would have some number of pro bono and administrative time, and recruitment time and other things like that. So maybe 2,600, 2,700 total hours would be a tough year for me, and an easy year might be a total of twenty-three hundred, counting everything. These days, though, these young people will put in 3,000 in a year. Maybe that’s padded. I don’t know. I always wrote down my time. If say I put in fourteen hours getting ready for a deposition, I might write it down to twelve because I just felt like it was not fair to the client to gouge them, and then maybe I wasn’t being as eicient as I should be. Next question. LM: Last time we inished talking about the Kissinger case, which was really interesting. I don’t know if I asked enough questions about what it was like to be arguing in the Supreme Court. WA: Did I give you—I think I did, but maybe I’ll repeat it. When I had my irst argument, I felt like I was in the middle of a football ield, and the justices were up there somewhere in the darkness, with loudspeakers, asking me questions, and it was terrifying. By the time I had my last argument, it was like me and nine other people in a seminar at law school and we were sitting around a small conference room trying to igure out what the Social Security Act meant. I had t otally gotten over the fear of being at the lectern, and it was a gradual process. I did six arguments. That was a gradual process of adjusting to the stage fright and getting past that. The justices on cases like Kissinger, for example, anything that was big, the two competing sides on the Court would come totally prepared with the toughest questions they could. Whatever side was against the government—they were brilliant, the justices, at iguring out the exact wording where if you conceded that point, then you would get in trouble in some other case, or if you didn’t concede that, then you were going to lose this case. They really were good at putting it to you. And then of course our favorite response was, “You don’t have to reach that point in this case.” And then they’d say, “Well, what if we do? We have the next cas e to worry about. So where does this principle lead?” And so they wouldn’t let us get away with that. We would have to have thought out and have a coherent, overall theory. They were particularly tough on mem bers of the SG’s Oice. They felt that it was okay to just grill us. They would sometimes show a little mercy to a small-time practitioner or some lawyer even in practice in Washington, but for the SG’s Oice, they really expected us to be better than we probably really were. They showed no mercy to us. It was okay. Oral arguments were important. We should be prepared. LM: You must get a certain kind of adrenaline in that situation, where there’s a focus. WA: Yes. You know, one of the things that I have—and maybe the D-Q case illustrates that—because by that point, I had been in the Supreme Court—I got used to, over time, being at the lectern, prepared to totally fail if need be, thinking that I probably wouldn’t, but being willing to be brutalized, if that’s what it came down to, and being able to pick up the pieces and walk away from that, and not be cowed by that possibility. I think a good trial lawyer and a good appellate lawyer—you’ve got to have that in you because

142 • twelve if you go up there, afraid that you might lose or afraid that you will be embarrassed and you have fright over that, then that will ruin your ability to think. So you’ve just got to get past that and be able to think on your feet. Eventually I got there. By the time I left the SG’s Oice—I thought I was pretty good even before I went to the SG’s Oice—but by the time I left the SG’s Oice, I felt that I could stand in front of any lectern in the world and make a good argument and hold my own, under what for most people would be pretty trying circumstances, like that situation I was in with the Indian case, which was ridiculous that I would ever be put into that. It was just fate that it worked out—Crummel made that egregious error in his testimony, and I had the one document that could prove him wrong, and I took great advantage of it. Some adrenaline, but mainly conidence in yourself. There’s preparation and there’s conidence in yourself. There’s the idea that okay, even if I fail, is there nyonea who could do a better job? Probably not. So I am going to give it my best shot. I miss being a trial lawyer sometimes. LM: I bet. WA: Okay, next question. LM: All the colleagues I spoke with from the SG’s Oice mentioned the – WA: The cotton dust benzene case. LM: Benzene case, and how important it was in terms of environmental regulations, and that was in 1980. Industrial Union Department v. American Petroleum Institute. WA: Yes. Here is what happened there. Congress in OSHA [Occupational Safety and Health Act], had a statutory requirement that for harmful carcinogens, that the Secretary of Labor adopt exposure limits in the workplace. It wasn’t just for carcinogens. It was for things like cotton dust; I think it was harmful health efects. And that the Secretary, when it did issue a regulation,was supposed to take it to the “lowest feasible level of exposure.” The Secretary of Labor went through quite a number of substances and issued, one by one, an exposure limit in the workplace. For benzene, which is a carcinogen, they held hearings and hearings and hearings, and people testiied, doctors testiied, epidemiologists testiied, and they developed a huge record. And then the Secretary of Labor inally came up with a standard, and the standard set forth a parts-per-million exposure in the workplace ambient atmosphere. Benzene is a very powerful solvent that can dissolve rubber, for example, and it’s used in—rubber’s a good example, but not just limited to rubber. So it was issued after—I’m going to say—this is somewhat of a guess—but I would say ive or six years of rule-making, and the American Petroleum Institute went to court to get it knocked out. The argument that was being made by API, American Petroleum Institute, was the phrase, “the lowest feasible level” should be read to include a cost-beneit test, and that the Secretary had erred in refusing to do that. Labor had expressly refused to do that. The Fifth Circuit agreed with the American Petroleum Institute, so it fell to me to write the petition, and it was granted, and then I argued the merits of the case. It was a hugely controversial issue because it was not just going to be benzene. It was one standard after another that were coming out in that era. Now, we don’t see that much anymore, but at the time, the OSHA standards that were coming out—one carcinogen after another—were very big in the news in various industries. The Supreme Court granted the case because of its importance, and I wound up arguing it. I remember Justice Rehnquist was just all over me. I didn’t even get the chance to say my name and he was right on me. It just went downhill from there. There was also the cotton dust case, which was a companion case but was argued a little later. Actually I was gone by the time that one was handed down, but it was t he same brieing. I had done the brieing on both. The bottom line was the Supreme Court agreed with us that c ost-beneit was not in the standard, that we were right about that. Once the Secretary decided to regulate, that it was supposed to go down

twelve • 143 to the lowest feasible level, and so we were right about that. They agreed with that. Where they disagreed with this, and it surprised us, was that the Supreme Court said without anyone having briefed this, really, that before the Secretary could do it, the Secretary had to m ake a inding that there was a signiicant health risk. Now, the Secretary could have done it, and eventually did, but they hadn’t actually made that inding yet, so it was ive to four against us on that. We lost th at issue and went back to the Secretary to make—but on the cotton dust case, there actually was such a i nding, so we prevailed in the cotton dust case. The bottom line was that the Secretary had to make a inding that there was a signiicant health risk, but once having done that, the Secretary was required by the statute to take the exposure level all the way down to the lowest feasible level that the technology could support. Well, even more than that. The Secretary was allowed to take into account what we now call technology forcing aspects—so if you set a low enough standard, that will force the technology to meet that lower standard, so it’s not just the standard that is feasible at the time you start to think about regulating, but what you expect industry could do if they were required to do it. In the end, that’s still the law, except for that wrinkle on the inding on signiicant risk, which is easy to meet—it came out just the way we had briefed it, and I was pretty proud of the eventual results. All these standards that we have today are just exactly the way the law developed in those cases. And there we are. LM: I am not sure which one of the people I spoke with mentioned the Federal Energy Regulatory Com- mittee position, but there was a lot of discussion among your friends about the amount of information and igures that you obtained and digested. WA: You mean in the benzene case? LM: Right. WA: Oh, that was huge. But that was largely—in fact, I think it should have been all in the administrative record. But the administrative record, which had gone on for years and years, was vast. I am going to say twenty big boxes of testimony and studies. It was a lot. I don’t think there’s any way I could have possibly known everything in the administrative record. But the things that were in play, I did understand, and it did involve a lot of statistics. The epidemiologists, that’s all they do is use statistics on public health igures. I had been a math major so I thought I could understand most of it. LM: Was there a lot of press around that case? WA: Oh, yes. I wish I could give you a quick analogy. It was not quite as big as Obamacare has been in the last few years. Obamacare has been even bigger. The nature of a huge federal government program, the OSHA program, the exposure to these dangerous substances—that was a big deal in the 1970s. OSHA came in in 1970, and by the time we petitioned the Court it was ’79 so they were nine years into the long-term. I would say they probably went on another ten years after that doing these various standards, but we don’t hear much about it anymore because it’s all kind of behind us. Global warming and regulations on global warming and getting the fossil fuels out of the—we’ve had a lot of programs at the EPA level devoted to that, clean air. That is more in the nature of the level of proile that the OSHA program’s standards had back then. That gives you some idea of the—yes, so there was a lot of press.

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Types of cases at Morrison & Foerster OPM Leasing RICO case Peter Morton, Andrew Lloyd Weber, John Eastman Preparing for trial More pro bono cases: class action against slum landlord Save Bodie campaign and becoming honorary California State Park ranger in 1993 Yosemite, Such a Landscape (1964 California Geological Survey through the Sierra) Yosemite Association Board, Yosemite Restoration Trust, General Management Plan of 1980 Wilderness photography

LM: Today is December 28th, 2016, and we’re going to talk more about Morrison & Foerster, starting with some of the major cases that we haven’t covered already. Last time we talked about the D-Q case. WA: Right, and I just think we ought to, since it’s all very fresh, remember Bill Edlund, who was a long- time lawyer in our district who just passed on Christmas Eve, a very good friend and someone who was not only a terriic lawyer, but had great faith in our judicial system. So we will miss Bill Edlund. Turning to my time at Morrison & Foerster, I think since we have covered so much of it, I will just touch on a series of the types of cases that I spent a large amoun t of time on. And these will irst be the paying cases, the so-called money-bono cases, and then I’ll refer to some pro-bono cases. On the money-bono side, I did a lot of work for Crocker National Bank in my early days in the eighties, and one of the most famous of those was the OPM Leasing Company case, which at the time was the single-largest leasing fraud in history in America. We sued Lehman Brothers, Rockwell—the victim in our case was Crocker— along with many other banks who had bought this paper thinking it was good, solid eight percent paper, but it turned out to be a Ponzi scheme. The beauty of the way the Ponzi scheme worked was, the way it succeeded, was that the equipment being leased was named simply on an attachment to the lease form. They would lease a small typewriter, say equipment on Exhibit A, then they would rip Exhibit A of and put an IBM 360 computer, which would of course lease for ten thousand times as much as a typewriter. Then they would sell that lease with the recipient thinking that they were buying a piece of commercial paper that had real value, but in fact it was only worth a tiny fraction of what was on the exhibit. They kept that alive through a Ponzi scheme, but eventually that collapsed, and so many banks around the country were missing money. Crocker was out $42 million, and we were one of the irst in the country to use civil RICO to recover, and it deinitely it. This was before the Supreme Court trilogy on RICO, and we made all the arguments that eventually the U.S. Su preme Court accepted. It was iled right here in this district court. Judge Sam Conti was our judge. We did recover, through settlements of that case, all of the money, all $42 million. Today, $40 million doesn’t sound like much, but in those days it was a lot. That was a huge case. We were the plaintif, and we were up against many big irms on the other side. A similar case where we were the David against the Goliath was the Digidyne antitrust case. I’m just going to skip over that, that was in the eighties, not the seventies, but that was another big case where we

fourteen • 145 were the plaintif. In addition, there was the Lou Scott case I mentioned for Crocker Bank. I think we’ve already gone through that one. There were others that went to trial. The Brothers case was a bank em- bezzlement case, and so forth. I came to represent the FDIC in the late eighties, in a case against an accounting irm called Main Hurdman. Main Hurdman had certiied inancial statements for Holt Leasing Company in Stockton, California, which was the largest Caterpillar tractor lessor in the world, I believe. It was in terrible inancial condition, but its inancial statements made it look good, so Continental Illinois lent a lot of money. Continental Illinois then went under. The FDIC inherited Continental’s position, and the FDIC sued the accounting irm. We went to trial in front of J udge Larry Karlton in a Sacramento jury trial, and we won. We won $16 million, which was about half of what we actually hoped to win, but we still prevailed in that case. Other cases that I dealt with came through John Eastman, who was related to Paul McCartney. The one case that was public was for Peter Morton, where we went to trial in that case, too. Someone who had been his number-two person claimed that Peter had promised hima ive percent interest in the Hard Rock Hotel in Las Vegas, a so-called oral contract. We went to trial. We blew the guy out of the water, and total victory, unanimous verdict in our favor. That was in Los Angeles Superior Court, Judge Judy Chirlin was the judge. She told me I did one of the best jobs of cross-examination she’d ever seen. LM: How would you describe the cross-examination? WA: The fellow who was claiming that there was an oral contract for ive percent of the Hard Rock Hotel in Las Vegas—we had taken his deposition, and we had also done it on videotape, and I had gone through and found the forty or ifty most likely passages that would be used at trial, and I had carefully— I had no dead time, no down time—I had to carefully select that. I didn’t leave it to a legal assistant. I wanted to make sure as soon as we hit the button, it would start with the witness saying something exactly the opposite of what he had just told the jury. Whereas, if you leave that to a legal assistant, they are going to put in too much material, and it won’t work as well, so I did it myself. I would say, “Tony, number forty-two,” and he would hit the button and it would be the witness saying the light was green in the deposition. It was beautiful. LM: Stepping back from your years as a judge, if you had to describe it further, how would you describe what you did, in addition to what you said about editing the deposition? WA: I had a sense for where the witness would go. In other words, I had a sense for where the guy would go in his story. Just hunches, but they were educated hunches, and then I was ready for every one of those. And sometimes I guessed wrong, but usually I guessed pretty close to right, and so as soon as he went there, whammo, I had good impeachment material. In other words, he was contradicted by his own prior statements at least twenty times. These weren’t side-swipes. These were direct hits. His credibility was wiped out. The other thing, the other side was counting on Peter being a poor witness. Peter was like a lot of Hollywood people. One of his natural instincts was to agree to tell people what they wanted to hear, not to be discriminating in what he said, and this plaintif had worked for Peter and knew Peter’s personality and thought that he might goof it up at trial, and Peter had goofed up in a prior trial on some other case that I had nothing to do with. This plaint if was counting on that. So I prepared Peter by—we would literally walk around the neighborhood between downtown Los Angeles and Bev- erly Hills, the two of us. We would just walk around the sidewalks and I would never spend more than about an hour, and I would go over one subject and I would ask him questions and I would listen to his answers, and say, “Well, how about this?” I just rooted out that notion in his mind that he wanted to be accommodating and tell people what they wanted to hear. Importantly, I taught him to admit the things

146 • fourteen he had to admit that were true, and not run away from those. We were going to win the case anyway, in my judgment, even if those things got admitted, because we had much stronger points to make. But, like most witnesses, his gut told him not to, so I had to work that out of him. Admit these things that are true that they will beat you over the head with if you don’t admit them, but then there are things that you don’t have to admit that are not true, so don’t admit those. Peter’s a genius, by the way. He’s the guy who started the Hard Rock Café and the Hard Rock Hotel. When it comes to that kind of stuf, there is no one who is even his equal. He is a genius. One time I asked, “How come it’s so noisy in the Hard Rock Café?” because I had a hard time even hearing the people right next to you. I said, “How come you don’t turn down the music some?” He said, “Billlll,”—he had a very slow way of talking. He said, “Billlll. The louder the music, the more they spend.” Once I represented Andrew Lloyd Weber. This is all public. Andrew Lloyd Weber was sued by Faye Dunaway, arising out of Sunset Boulevard. She was going to be the tar,s and Andrew Lloyd Weber ired her after months of preparation, her training to sing and everything else. What the newspapers were reporting was that she just couldn’t get her act together well enough to sing, to his satisfaction, anyway, so he terminated her and she sued. I was looking forward to taking her deposition. The lawyer on the other side, a guy named Pierce O’Donnell—a pretty famous lawyer in LA—he was excellent, and we got together and settled the case. I iled a motion to dismiss the ca se, and while that was pending, he invited me down to Los Angeles. We had a good talk and settled the case, and both sides walked away happy. I can’t tell you; it was a conidential settlement, but that was a good outcome. That was the commercial side of my practice. I should say I also did two patent trials, maybe more. Two of them went to trial. One was Acuson and one for Fujitsu in the ITC in Washington. The Acuson case was before Judge Lowell Jensen, against Diasonics, I believe was the name of the other side, involving ultrasound technology. Both sides claimed victory. It was a split verdict by the jury. It found the patent infringed but was invalid. We were the defendants and we thought we’d won. The ITC case, we won that totally. That was a case brought by Samsung, I believe, against Fujitsu. Our client was Fujitsu. I was just there for a cameo appearance to cross-examine some experts, and I did a pretty good job of cross- examining those experts. That gives you a lavor for the kind of work that I did on the money-bono side. LM: How would a client like Andrew Lloyd Weber ind you? WA: Because of John Eastman, who was the brother-in-law of Paul McCartney. LM: Paul McCartney’s wife, Linda Eastman. WA: Right, exactly right. You might say, well, how did I even know John Eastman? That’s a very good question, too. Here’s how I knew him. Paul Goldstein, at Stanford, is the premier expert in the world on copyright, among other things, but copyright for sure, had become a general counsel at Morrison. This was a popular thing around the late eighties that you would get some famous person to become a general counsel at your irm, pay them say—I am making up a number—$400,000 a yea r in those days, which was pretty good, and you would only have to put in one-third the time a senior partner would have to put in, but you’d have all this extra money, and you’d be doing interesting work. Paul had signed on to work for Morrison. I don’t know how much we paid him; I have no idea. John Eastman knew Paul because the Eastman irm is lock, stock and barrel copyrights, copyrights, cop yrights. They not only represent zillions of artists, but they own a lot of copyrights themselves, so that was the heart and soul of their law practice, was copyright. They knew Paul, and when this particular case they had came along, Paul called me up one day and he said, “Bill, I have a very interesting case, but I need a real trial lawyer to help me with it.” He explained what the case involved and I said, “My God, that’s great.”

fourteen • 147 I had many meetings and traveled to the U.K. with John, who knows all the high-end places, the best hotels, the best bars. We had a great time, so that’s how I got to know him. Then ultimately, John came on two backpacking trips with me out here in the High Sierra, including one that was a week long that was pretty rugged. He’s a great mountaineer, John. So that’s how I got to know John. LM: That’s interesting. WA: He’s still in practice. I just heard from somebody at Morrison that he was asking about me the other day. His son, Lee, is in practice with John in New York. I suspect by now, Lee has taken over the vast majority of the practice. John would be, I’m guessing at this now, seventy-eight, seventy-nine, something like that. I’m sure he’s still in great health. So that’s how I got to know him. He was really the client in a lot of ways. He never questioned a single bill. He trusted our judgment. He would ask great questions. If we needed something from an important client, he would get it arranged and we would do the interview, for example. I would say far and away, he was the best, most favorable client that I had the good fortune to represent when I was in practice. LM: It is interesting to think about not just the types of cases, but the types of clients, the individuals who were behind the— WA: Yes. Believe me, there are some who are complete assholes. Not John, of course, but a few other clients were terrible. Some were in the middle. I would say usually I got along well with clients, in some cases famously. But I had my share of clients from hell. That’s a part of law practice that is not fun. You know at the end you’re going to wind up in a ight over the bill, because they want everything they can get out of you, but they don’t want to pay you. On the pro bono side—can we talk about that a bit? LM: Yes, please. WA: I did a lot of pro bono work. I have already described the D-Q case, so I won’t go back through that. I had a class action here where I represented all of the tenants in a slumlord hotel. Charlie Patel was the landlord. I remember it was about 1983, and it was a very cold December. The Chronicle ran a story that showed these people on the front page with their overcoats on, and they were inside the hotel, and they were wearing their overcoats in their one room apartments because the landlord had turned the heat of to save money. I read this. I couldn’t believe it. So I called up—I even remember his name—Randy Shaw. He’s still around at the Tenderloin Housing Project. I said, “We will represent that group of tenants for free in a class action against that slumlord.” I was so upset over this. We sued, and we wound up getting a very good settlement with cash, but also, more importantly, a promise to turn the heat back on. We got a restraining order making him do it anyway, so there was a happy ending to that, and the case only lasted about four months. The lawyer for the landlord was excellent too. His name was Rich Stratton, at the Bronson irm then, I believe. He is still in practice. Rich is still doing great work. He was the perfect face for the landlord—in fact, we served together on the board of the Legal Aid Society. So that worked out with a happy ending. I did a lot of those kinds of cases. I did two or three ACLU cases. Alan Dressler, I believe was his name, was the ACLU lawyer I dealt with. They were usually parade permit cases. That’s what my memory of it is. But far and away, the thing that I did the most of was environmental work involving Yosemite. This is a long story, so let me start with one that is not quite Yosemite, it is Bodie. Bodie is the best preserved ghost town in the world. It is over between Highway 395 and Nevada, but it is still in California. It’s kind of in the high desert, just ifteen miles north of Mono Lake. LM: Did Bryan Wilson work on this case with you? WA: I believe he helped me on this case. Rochelle Nason helped me on that case. I had as a budding

148 • fourteen photographer gone over to Bodie in the early eighties to take some photographs. Even then, it was a state park. It had started in the sixties as a California State Park, and it still is a California State Park, but it had just kind of gotten its act together, because it was in its irst twenty years. The people who had owned the land inally donated it to the State of California for use as a park. Bodie was once the third-largest town in California, believe it or not, and it was the irst town in all of California that had electricity. It was not a shabby place in its day. But starting in the 1920s, there was a big ire that wiped out a lot of people, and then the gold-mining operation that kept people in business kind of went into decline. It had a little resurgence in World War II, but after World War II, there was no one there. In fact, most of the people had already left, but there was this little tiny enclave of people still in Bodie during World War II, who kept producing gold, and then say, by 1950, it was an empty place. Eventually, the landowners gave up on trying to ever restore the town, so they donated it to the State Park system. There must be 120 buildings intact—the school house, the ire house, several churches, a couple of hotels. A lot of bars. Many, many individual residences. It is mostly made out of wood. There could be one that’s made out of stone. I was over there taking photographs of it in the early eighties. I think I went there twice. And then in 1988, I believe it was, when I was trying the Main Hurdman case up in Sacramento, I read in the local Sacramento Bee a story that again got my blood boiling. It was a gold mining operation called Galactic Enterprises, I think it was. Galactic Enterprises had decided it would re- open the gold mining operations on the nearby bluf called Bodie Bluf. T hey were going to use dynamit - ing. The park rangers were all up in arms, because if they started dynamiting up there it would bust out the windows in Bodie. It would shake things around. Plus it would be a huge distraction from the people who were going to come there and visit a ghost town to have all this noise going on up there within, say, a mile and in plain view of Main Street. They were trying to stop it, and they had formed something called the Save Bodie Committee. I wrote them a letter saying that I would be their pro bono lawyer to help save Bodie. Well, they were thrilled. That’s how I got to be good friends with a park ranger named Donna Pozzi. I went over there. I started representing them. It was one of the most fortunate outcomes, because the irst stages of it was that Galactic Enterprises was trying to get a permit from the county to do preliminary mining, which would then lead to more advanced mining techniques, if the preliminary mining came through. We were there to oppose them. We iled briefs in opposition. I didn’t know how tha t was going to come out. The county asked more questions, but I eventually realized what was going on, because I did some homework on this Galactic Enterprises. It was listed on the Vancouver Stock Exchange, Vancouver in Canada. The Vancouver Stock Exchange is notorious for ly-by-night operators. It is not like the New York Stock Exchange where you have solid companies. The Vancouver Stock Exchange, at least in those days, was where ly-by-night companies would go, get registered, and thensell stock that might not be worth much to the public. I looked at some of the prospectuses, and they revealed an operation in Colorado, and when I studied and got some inquiry into that—this was before Internet days, by the way—when I got some inquiry into that, I could see what was going on was that Galactic Enterprises wanted to be able to represent to inves- tors that it had two potential gold-mining sites going, one in Colorado and this other one in California, near Bodie Bluf, and the idea was to stretch the truth as muchas they could possibly do, maybe a little beyond it, to make it sound like it was a going concern, when all they had was one guy on the ground in Mono County doing some very preliminary exploratory work. So it wasn’t a total fraud. They did have one guy on the ground, but they were exaggerating, at least in my opinion, their progress. My thought was that this was a step toward trying to inlate the value of the stock on the Vancouver Stock Exchange and raise money that way. I think I was right about that. It turned out after about eight

fourteen • 149 months to a year that the company gave up altogether on Bodie Bluf. The truth was that they still had lots of possibilities with the county. They probably could have gotten some preliminary permits, and yes, we were opposing it, but they probably could have talked their way into getting at least the preliminary permits. We were deinitely going to make them do an environmental impact statement as the next step. Anyway, they gave up, so suddenly, we were heroes. [laughter] Suddenly we lawyers were heroes. The Save Bodie Committee had won, and we had won apparently on a legal basis. The next thing I know, I was elected by the California State Park Rangers’ Association, called CSPRA, to be an honorary park ranger. Have I ever showed you my Stetson hat over there? LM: No. That is the coolest thing. WA: Let’s make sure I’ve got it here. Yes, right here. “CSPRA Honorary Ranger, 1993.” LM: “Recognized for invaluable pro bono legal support for CSPRA’s successful Save Bodie Campaign, as a respected leader and author.” That’s fantastic. WA: Ansel Adams had received this award. So had Walt Disney. And it’s only one a year. It’s not like they get ive people up there and all ive get the award. It’s just one per year. I was ver y honored. LM: There must have been a ceremony. WA: Yes, there was a little ceremony. They had their annual dinner and then I got to go stand up there, give a thirty-second speech. I was truly honored. It was one of the nicest honors I have ever gotten. As the years have gone on, I’ll give you just two little footnotes on that story. In the year 2000, which was seven years later, my daughter and son were at home, although Allison would have been out of college. For some reason, she was working in the Bay Area. My son would have been fourteen. I said, “How would you like to spend Halloween night sleeping in a real ghost town?” He said, “Oh, that would be so cool.” I called up Donna Pozzi and I said, “I know you are not supposed to let people spend the night, but since I’m an honorary ranger, can I spend the night there with my two kids?” She said, “Oh, yes, sure.” So they set that up for me, and we drove over there and arrived on Halloween day, took a lot of pictures. In fact, one of the ones in the Lawyers’ Lounge is from that trip. Then on Hal- loween night—now, in the whole town there’s only one person, at least then. There was one ranger, a lonely, solitary ranger with the wind whistling by every night in the middle of nowhere. By the way, they don’t have electricity anymore. The lines have all been cut. So it’s all very crude. We were in the sherif’s house, which they had set up for special guests. It was as cold as could be. It was so cold in that place. The wind was whistling. Around eleven o’clock, I heard a little noise outside the door. I went and opened the door, and the ranger had left a jack o’lantern with a lickering candle inside, just as a little special hello. We had a great time. The other little special event happened just this year. In October, I got to go over with Vince Chiarello, who is a Superior Court judge and a great friend of mine, another photographer. We went on a photo expedition, part of which was to Bodie. I said, “Can you let us inside a couple of these buildings so we can see one of the bar rooms and the old Boone Dry Goods Store?” They said, “Sure. You are our honorary ranger. Anything you want.” They would have let us into four buildings if we’d wanted, but we just settled for two. I had the most fun with my camera in there taking pictures. I didn’t disturb a thing. Instead of taking the pictures through the windows, which I had done many times, I got to actually be in the rooms and take pictures inside there. I have gotten much more out of my relationship with the Save Bodie Com- mittee than I ever put into it, but even though I was willing to put in more work, we got a great result. It just paid of in dividends that many times for me. So that’s Bodie. I’ll turn to Yosemite for a minute. I started hiking there in the mid seventies, backcountry hiking. In

150 • fourteen the 1980s I got interested in this book that wound up being called Such a Landscape!; it was re-creating the 1864 expedition of the California Geological Survey through the Sierra that year. Over many summers, I hiked segments of that trail. I took my four by ive camera and I mapped it all out, and I did a nice little book called Such a Landscape! I don’t know if you’ve ever seen that. Have you ever seen that? LM: I haven’t seen that. WA: Maybe I’ll bring in my copy of it for you to look at. It’s out of print. You’d have a hard time getting it. Occasionally, you can ind it on eBay. I worked up the manuscript and the photographs, and I took it to the Yosemite Association [YA] in the Valley, and the guy there who was in charge was named Henry Berry. Henry was only alive about four more years. He loved the idea. “This is what we should be doing.” He kind of pushed it through and got it in print. Then they asked me to come on their board, so I did. I think I went on the board in 1986. I loved that. It was Yosemite. We had four meetings a year. Usually they were at the Ahwahnee or the Wawona, and we were treated as kin d of quasi-oicial. The superintendent was great. Basically, what we did was a very simple formula. We would raise money by selling books and running seminars for which the public would pay a nominal amount, and then we would give grants back to Yosemite for special projects. We would probably give away $200,000 a year to the park, maybe $150,000, but it would be for maybe $40,000 for this, $30,000 for that. So the Park Service loved us, I think. The rank and ile I know did love us. And we loved doing it. It was an active board. We all did actually work. I did three photography seminars myself in ’89, ’90 and ’91, where I led backcountry trips on black and white photography in Yosemite. That was a grand thing, and I continued with that right until the time I got this job, and then I went of the board. Most of that time, after Henry Berry passed on, almost all of that time, Steve Medley, who was a lawyer raised in the Yosemite area, beloved fellow, just slightly younger than me. He died in 2006 in a car accident. Steve became the heart and soul of that organization, and it lourished under Steve. Malcolm Mar- golin, the famous publisher and author, was on the board most of the time that I was on the board, and we were just talking the other day about that being the golden era of Yosemite for us, with Steve Medley and the YA, and we just took all of that for granted. Steve died in 2006 and they never were able to get a good leader again, so it went bankrupt and got folded into the Yosemite Fund and, really, no longer functions as a separate organization. It’s too bad. YA started in 1926. It had a ichr history, but it lourished under Steve. Steve and I went backpacking many times together. Well, I shouldn’t say many times. Let’s say, ive times together. And he was great. However, my political thing was with something called the Yosemite Restoration Trust. Now, that came about because the Yosemite Association could not get involved with politics, but the Yosemite Restoration Trust could. Now, what was the Yosemite Restoration Trust? It was formed in 1989, but we have to roll back the clock to 1980. In 1980, Yosemite had undertaken a long process to produce a plan called the General Management Plan of 1980 [GMP]. I’ll repeat that, because it is such an antiseptic name. General Management Plan of 1980. Well, it’s a truly historic document, the Bill of Rights, really, for Yosemite. It is a tremendous document. It called for the de-urbanization of Yosemite Valley and returning more and more of the parkland to its natural state, and managing the low of people in and out in a better way so that it wouldn’t be quite as crowded. It would still be well visited each year. The park superintendent when that came out was Bob Binnewies, now retired in Arizona. He had a rich history himself. When President Ronald Reagan came in and Mr. Watt became the secretary of the interior, Bob either got ired or left from Yosemite. There was a uccessions of other superintendents after him. In 1989, to come to the interesting point, the Park Service put out a reappraisal document. They called it the Re-examination Report. This was just a one-page thing saying, “We have re-appraised”—I am paraphrasing—“We have re-appraised events, and in light of the greying of America”—that was their

fourteen • 151 phrase—“greying of America”—“we have decided that the General Management Plan of 1980 is no longer practical. People need their cars in the Valley, and we are just not going to go any further with the General Management Plan of 1980. We’re going to basically put it on a shelf.” Well, those of us who had illed out the public comment forms back in the seventies and sent it in. Those of us, for example, on the Yosemite Association who followed it, said, “My God, they can’t do this. The GMP was historic, now they want to scrap it.” But the Yosemite Association itself could not get involved in politics. It was under the ultimate control of the NPS [National Park Service]. A few of us, though, got together to form the Yosemite Restoration Trust. It was me, Ed Wayburn—do you know Ed? LM: Oh, yes. WA: And Bob Binnewies, George Frampton, who then was the national head of the Wilderness Society, and then he got his regional VP, Joan Reiss, who is still here in San Francisco, to be on our board. And there were about—I’m going to say ten of us who were on our board. We formed the Yosemite Restora- tion Trust. Its one objective was to reinstate the GMP of 1980. We raised a lot of money, actually. It was about two or three hundred thousand. Frank Wells from Los Angeles, who had been big with the Disney Company, later died in a tragic helicopter accident. Frank was a big environmentalist. George and I went down to see him one day, and he just wrote a check for a lot of money. It was more than $100,000. So we were in business. We rented space. We had oice equipment. We had a guy who was our director named Don Green, and then we even hired a helper for Don Green and we got Robert Redford involved. We got our senators involved and we got them to hold hearings. There was a hearing—I’ve forgotten which senator did it—but there was a hearing—I believe it was at Fort Mason—that was about Yosemite, and lots of people came and spoke. Wallace Stegner was there. LM: The author. WA: He was part of our group. I got an autographed copy of one of his books in the process. We succeeded and I remember when it was. It was the centennial of the park, which was 1890 to 1990, and then James Ridenour, who was the director of the National Park Service, came to Sentinel Meadow in Yosemite and gave a speech on the occasion of the centennial, and said that it had been a mistake to roll back, to abandon, the General Management Plan and that they were going to reinstate it and everything would move forward after all. So that was a great victory. We could have just closed up shop then and declared victory, but there is a sequel. I need to say that the biggest opponent we had in that whole process was not so much the Park Service. It was the concessioner. The concessioner was then called the Yosemite Park and Curry Company. Its general manager had outlived many, many park superintendents. At one point—I won’t say his name—he had a private investigator following me to try to dig up dirt on me. The phrase “Greying of America,” I am sure that came from the Yosemite Park and Curry Company. Come to ind out, in ’93, the thirty-year contract for the whole park concession was coming up for re-bid. Our group put together a competing bid under which we committed that all the proits would be given back to the park. We would take no money out of the park. Everything would still run beautifully, but we would just keep the money in the park and give it back to Yosemite. That was our bid. Meanwhile, though, MCA had purchased Yosemite Park and Curry Company, and then MCA got bought out by a Japanese company called Matsushita. So Matsushita was now going to own MCA, which owned Yosemite Park and Curry Company. The secretary of the interior then, a guy named Manuel Luhan, from New Mexico, was livid about this. He could not stand the idea that the crown jewel of the National Park Service was going to be owned by the Japanese. He just put his foot down and said, “I am opposing this whole deal.” Anyway, that led to opening the process to a lot of bidders. We bid. About six others bid too. The ul-

152 • fourteen timate winner was Delaware North. We lost out to Delaware North. However, because of the concept of giving all the money back to the park, the park this time had insisted on a much better deal, including a capital improvement fund, so that got written into the new contract. By the way, that long contract from ’93 to 2013 just ended in 2013. Now we’re on to yet another concessioner. So, even though we lost out, we had a small, beneicial impact on the terms for the next contract. That’s the story of the Yosemite Restoration Trust, which did declare itself victory and went out of business. LM: You started backpacking in the seventies. When did you meet Ansel Adams? WA: I never met Ansel Adams. LM: Oh, you didn’t. WA: I didn’t. I corresponded with him, and when I was in Washington, working for the solicitor general, I was using a .35 millimeter and had gotten very deep into photography, but I realized I needed a four by ive camera, and I wanted to get one. Suzan said okay. I wrote and asked Ansel Adams for advice, saying that I did a lot of backpacking and I wanted to be able to carry it on my back. What setup would he recommend? Well, he wrote me. He was very nice. He wrote back. He said, “This is great. Here’s what I recommend.” He recommended a Tachihara cherry wood four by ive camera. It really was lightweight. I think it weighed about a pound and a half. Then the lenses would go with that. They weighed a little bit more. They weighed as much as the camera. And then a Tilt-All tripod. All of that put together, with the ilm holders, weighed seventeen pounds, which—in those days I was strong. In those days I could carry a full pack plus the seventeen pounds. It was hard, but I made it. I took it to the top of Mount Whitney, Mount Brewer, lots of places. I bought the exact setup he recommended, and used it. I still have it. It still works, works great. I used up the irst tripod. The irst Tilt-All, I carried that up through more places where I would have to toss it up to the next ledge and then climb up myself and then toss it up a little higher, and it got all beat up, and so I now have my second Tilt-All. They don’t even make them anymore. You have to buy them used. But they’re good tripods. The setup, the camera, the lenses, everything, I have used it this year. I used it at Bodie on the trip that I told you about. Ansel Adam’s recommendation is still with me to this day. In appreciation, I sent him a contact print of something I had done that I thought he might be interested in. One was ifty years to the year after he went to the place where he took a magniicent photograph. It was called Frozen Lake and Clifs. It was in Sequoia, but it didn’t say where. In 1983, I was on a trip and about ive miles away, and I just had a hunch from looking at the map. I said, I bet Precipice Lake is where he took that. I could just look at the way the topo lines were formed, and it was north-facing, and I said that would be perfect for the shadows and the snow accumulating there. I’m going to just walk over there, take a long day hike. And sure enough, it was exactly the spot. I took that picture and I sent it to him. After ifty years it lookedremarkably the same, and he sent me a nice note back. He died the next year. He died in 1984. I have that correspondence somewhere, but I cannot ind it. I have looked for it twice, and I don’t know what I did with it. It could be one of those things that I wanted to keep it in a special place, and I put it in a special place and then forgot. I am prone to doing that. Someday, it will show up and I am going to give that to het Bancroft Library if I ever do ind it. He always responded amazingly fast, and he—I was nobody. He’d never met me; he could have just thrown it in the trashcan. But instead, he wanted to help a young guy who was interested in photography. LM: And also the same places that he loved. WA: Correct. That’s true. Occasionally I have stumbled onto—I wasn’t actually even looking for them, but I have stumbled onto a location where he had been and taken a famous photograph. I said, “My God, this is the place where he took that photograph.” Of course, I then had to take the same one myself.

fourteen • 153 Walter Dowdle, Darwin Bench, 1997

Me and John on Conness, 2007 Junior laughing at Golden Bear Lake, 1994

Sidney at Golden Bear Lake, 1994

Kirk Shaw on Cloud's Rest, 2005 One of them was on the Merced River, down just below the valley, the entrance to the valley, a nice oak tree and the river nearby. I stumbled onto that one. Another one was way high on the Merced River just below Merced Lake, maybe four miles below Merced Lake. There’s a tree growing out of a granite clif, with the river raging right below it. That is another one. There are other examples I could give, but these are just wilderness locations I stumbled onto. I feel so privileged to share that moment across the decades with him. LM: Your friend—and we can stop in a minute for today—your friend Ann Smith Willoughby had so many sweet things to say about you as an artist. WA: Bless her heart. LM: Your photography and everything that goes into it. WA: She’s an artist, as you and I have noted before. She was a grand artist even in high school, had a gift of being able to draw beautifully. She has always had that eye, an ability, so good for her. LM: Well, should we wrap up for today? WA: Yes, let’s call it a day.

156 • fourteen fifteen

Trial team of Antitrust Division of Department of Justice Return to Morrison & Foerster and irm management roles Legal Aid Society of San Francisco Sabbatical and Europe trip, summer 1985 Application for federal bench, hearing and conirmation process Role of Mississippi roots, Danny Cupit

LM: Today’s January 25th, 2017, with Judge Alsup, and we’re talking about events leading up to your decision to go back to Washington to work in the Antitrust Division of the Department of Justice. WA: Sometime in the Clinton years, when I was a lawyer at Morrison & Foerster, and at least two years before I became a judge, I was sitting at my desk, working away on some problem early one morning. I typically came in then at six a.m. The phone rang, so I answered it. And the voice said, “Bill. How are you? This is Joel Klein.” I knew that I knew who Joel Klein was,but I was trying to igure out who it was because I didn’t actually know him personally. After about two or three sentences, I remembered that he was the chief of the Antitrust Division of the Department of Justice, so he was the Assistant Attorney General for Antitrust. He was very cordial and acted like we were old pals, even though I’m pretty sure we had never met before that. But we knew of each other—his reputation being much broader than mine—but I have a theory on how he came to know me, and I’ll tell you that in a moment. He said he wanted me to come back there and head up a trial team to take a case to trial for the De- partment of Justice. Now, at the time that was going on, David Boies had famously gone back to head up the trial team for the same division’s Microsoft case, and that was in the newspapers every day. He said he wanted me to come do the same thing for an antitrust case that was going to go to trial, and it was to block a merger of two big defense procurement irms, Lockheed-Martin and Northrup-Grumman. There were only three major irms who supplied airplanes and ighter jets and that sort of high-end, complicated weaponry to the Department of Defense, and two of them were proposing to merge. The Department of Defense was against the merger, and wanted the Justice Department to oppose it. So the Department of Defense was going to oppose the merger. I was immediately very interested in doing this because I think everyone plateaus at some point in their legal career and looks for a new challenge; I had no application then pending to become a district judge. I was very interested, and I said I’d get back to him. I hung up, went around and studied up on what the case was, and then went to talk to some of my partners. The diiculty was that in order for me to do that, I had to actuallywithdraw as a partner from the irm and be completely on my own, and there was no guarantee the irm would take me back. I had already done this once to go into the Justice Department back in ’78, ’79 and ’80, when I was a young partner, and the irm was good enough to take me back. This time,though, the irm was bigger. It was more complicated. It took a bigger vote of the partnership to arrange something like that. So it wasn’t quite so clear that I would be able to come back.

ifteen • 157 I decided I would take my chances anyway, and so I made the decision to withdraw from the irm, go back and head this team up. By the way, I should say that Kathy Young, my secretary, went back with me too. She kept her job with Morrison, went to Washington with me, continued to oversee my Morrison cases, did time notes and billings for Morrison, and she billed me for her time doing DOJ work for which I repaid Morrison. She also billed Morrison for time I spent on Morrison cases and business. Bless her. Well, it was great. I started studying the iles, meeting with every single lawyer on the team. It was a huge team of lawyers. The lawyers were very good about accepting me into their team. Actually, I think they would have done ine without me. I don’t think they needed me at all. Nevertheless, I was there to be the leader, and I needed to come up to speed. The judge had the case on a somewhat fast track, because it was a merger; you don’t just sit back and let years go by. It was all going to be done in a period of about six months. There was a big hearing coming up. I made my appearance on the record on the pleadings, so it became public that I was going to be on the case. About three days later, the parties to the merger aborted the merger, meaning there was a provision in their merger agreement that gave certain rights to abort the whole deal, and one of them hit the abort button, so the whole case went away. It just went away because there was no merger to ight. It was kind of an embarrassment, really, that I had withdrawn from the irm, made this move across the country. My secretary had done the same thing, suddenly to ind out that we could declare victory and go home because there never was going to be a merger. On the other hand, it was for the good of the country, I guess, because the Department of Justice won the case simply because the other side gave up. Well, Joel Klein was a real prince. He felt terrible that I didn’t get a chance to do what David Boies got to do, which was to do his trial. He asked me if I would stay on for a little bit longer to assess a case involving American Airlines and regional airlines in the Midwest, and the way in which American Airlines priced its tickets and the service that it gave and whether or not American Airlines was monopolizing that part of the market. I found that to be very interesting because I got into the details of how American would have a pretty cheap light between two cities, and yet in a nother route where there was no compe - tition, in what seemed like the same service, same equipment, same crews, they could charge a lot more, and did. I am using that only as an example. I don’t remember the details anymore. I did my analysis, turned it in, and returned to Morrison & Foerster, and they were good enough to take me back, Kathy returned as well, and after a few weeks everything was back to normal, and that was the end of the story. LM: So that was a period of several months, or longer, a year? WA: It was not a year. I would say four to ive months. It was a very intense exercise because I was the new kid on the block and I had to come up to speed, so I was spending a huge amount of time, maybe sixteen hours a day, reading documents and talking to the attorneys. I wound up getting more credit out of that than I possibly deserved. In a way, it was a good thing for my resume, but it was a disappointment that I did not actually get to do that trial. LM: Would you like to eat—do you want to take a break? WA: I’ll nibble. How’s that? Okay, next question. LM: So you go back to Morrison & Foerster and back to your partnership role. At this point, this is the late nineties, is that correct? You have already been the irmwide chair of the litigation department, managing partner, and other irmwide roles along those lines. WA: Correct. Well, I was only the head of the litigation department. I was never the managing partner of Morrison. The highest job I ever got was the head of the litigation department—worldwide, but it was not head of the irm or anything.

158 • ifteen LM: How did that role change things for you? Worldwide—that was a time when Morrison & Foerster was growing by leaps and bounds, then. WA: Yes. Well, in a nutshell I would say I was okay as a management type, but I would give myself a B minus, maybe, because I am just not an administrative type. Sitting in committee meetings a lot and trying to tell people they’re terminated, or that kind of thing. I did it. Let me back up. I think it was for three years that I was the head of the litigation department. That was not just San Francisco; that was Denver, Los Angeles, New York was not online then, Washington, D.C., Tokyo and maybe some other overseas oices. I believe London was online by then. When we had cases that were understafed—let’s say that Denver didn’t have enough lawyers for a big case, my job was to go beat the bushes, ind somebody who was suitable for the case, and talk him into signing up to go to Denver, even if it meant living in a hotel over there. That happened, but in addition, and much more common, which gave me many headaches, was Partner X, big partner, famous, wanted more associates on his case, but I didn’t have more associates. I would have to take them away from somebody else who needed them just as much, maybe more. But, because they were senior and famous, they felt they came irst, and I should take away—that was my problem—take whoever I needed and give him the appropriate staing. One ime,t I actually had a shouting match with this partner over my refusal to do what he wanted me to do. I told him another partner needed the troops more than he did. We have got more cases than we can handle. We shouldn’t be doing this, and I cannot take away some young associate from somebody else’s case to give to you just because you want it. You have already got three associates on your case. He exploded in anger. What was I to do? I just found it to be a tough job, and I didn’t like that part of it. I did my three years in that job, and I would give myself a B minus, overall. LM: What approach did you take, or strategy did you take with these kind of big, for lack of a better word, ego-involved, diicult conlicts? WA: The one thing I had going for me was that those partners knew that I worked as hard as any of them. So it wasn’t like I wasn’t willing to do the same kind of hard work that they should be doing. They knew that I worked hard. So that was the only saving grace—they cut me a little slack for that. I had no secret plan. My approach was to tell it like it was. I was glad when my three years were up. I really wanted the job at irst. I thought it was a great honor. But you’ve got to actually do the work, and it was hard. I was glad that my time was up. There we go. One of the things that I emphasized a lot was the need to be honest with the associates, to tell them where they stood, so that somebody wouldn’t get to be a sixth-year associate— In those days we would typically make them a partner, only to tell them, “Oh no, you need to do X. Oh no, you haven’t punched this part of your ticket yet”; or that we had already decided they probably weren’t going to make it. I felt that we should tell them that in the fourth year, third year, whenever it became reasonably clear that they should be going somewhere else—even though we could use them; we c ould make a lot of money of them. No. We should tell them and be honest with them. Now, the irm in general was pretty good about that anyway, but I always tried to reinforce that. I also tried to reinforce the need to do pro bono work, the need for us to train young people. And I would give myself an A in all of those areas. LM: This is not long after you left the three-year commitment as the irmwide chair of the litigation department that you went on the board—or around the same time—of the Legal Aid Society. WA: No, actually I was on the board of Legal Aid much earlier. I went on the board of Legal Aid I believe it was ’81 or ’82. It could have been ’80, even. In those days, it was not the primo position that it later became. The Legal Aid Society in those days was almost in bankrupt cy, and the irm was having a hard time trying to ind somebody who would take that role. I believe Jim P aras in the labor department had preceded me, but he didn’t have any interest in that. They cam e to me and said, “Bill, would you do this?”

ifteen • 159 I said, “Fine.” That was when I had the occasion to go down to Third and Mission to where the Legal Aid had just moved into this rat-trap. Bless her heart, Joan Graf was then—and still is—the director. You walk into the walk-up facility where it was just one step above the uninhabitable, and she was such a joy. She was so bright and just brightened the whole premises, so much enthusiasm in dismal circumstances. She built that organization into a major force in California litigation. That is true now, but it was also true three or four years later. You could see that was the direction it was headed. One of her strategies was to build a great board, which she did. She went to every majorirm. She had personal relationships with each of the people at those irms, and they were genuine.She could call them up and get advice, get people at those irms to take on pro bono cases. I did it for Morrison and became good friends with Joan. I am still good friends with Joan now. I was on the board all the way through to getting this job, and then I had to resign. The position as the head of the litigation department was well after I had gone onto the board of the Legal Aid Society. LM: I had the dates wrong. WA: What dates do you have there? Maybe I’m wrong. LM: No, I think you are right. I had chair irmwide litigation ’86 to ’90. WA: I went on the Legal Aid sooner than that, earlier. They always wanted to call themselves—not right away—the Employment Law Center. I always liked the name Legal Aid Society because it is the original name, so they have gone by both names over the years. LM: I see that—Legal Aid Society-Employment Law Center. There was a time when you were a partner and you took a sabbatical, I understand. WA: Yes. Well, it wasn’t that long. It was like ive weeks, maybe. LM: A short sabbatical. WA: A short sabbatical, 1985, with my wife, my son was in utero. My daughter, Suzan and I went to Scot- land, toured around, drove around, took our time, stayed in an old castle. We went back to Oban where I had that job during the summer of ’67. Marvelous. I really like Scotland. We spent time in London. One of my best memories of that trip was Normandy. This was in the summer of 1985, which was one year after the 40th anniversary of the D-Day invasion. We had thought about going on the 40th, but we knew it would just be very hard to book a room because it would be the 40th, so we decided to go on the 41st. My daughter and I walked down on Omaha Beach at the same time of day the troops came ashore, about six thirty in the morning, and stood at the water’s edge and looked back at the fortiications, which were about a hundred yards away. Some soldier getting of the landing craft would have jumped into the water and had a hundred yards of obstacles of sand to get across. It made an impression on my daughter, too. We talked about it over the years, what kind of courage it took and the fear those soldiers had facing that. Of the entire sabbatical, that was my best memory, that moment at the water’s edge looking at that. We of course toured the cemetery. We went to the American cemetery there. We went to several little small museums. Sainte-Mère-Église was one. I had studied up on the whole invasion, and wanted to see as much as I could. I think we were there three days. That was a good sabbatical. We didn’t do like a three-month deal. I think it was ive weeks total. We were only over there maybe three weeks total, overseas. Our son was born in January of the following year. The sabbatical was the summer of ’85. LM: Leading up to your appointment to the bench, what was the early part of that process like for you? You talked about going back to the Department of Justice and this sense we all have of something that’s at a bit of a plateau, and then you decide to put your name in to become a federal judge.

160 • ifteen WA: In the nineties, I felt I was as good a lawyer in court as even the best of them, with all modesty aside. I felt I could hold my own against the best lawyers. I had reached a point where clients would call me and I had some pretty famous cases. I was not at the point like Bob Raven or Mel Goldman, where these mega cases would come in that would generate fees and be the n umber-one billing case in the irm for two years in a row. I never even came close to that. I did have enough work that came to me directly, and it was interesting work, that I was very pleased with my practice, and I kept a small team of people busy. They compensated me in the top tier of the irm. I was always paid more, in retrospect, than I think I deserved, and I was happy about that. I think the irm thought that I deserved that, not so much because I was bringing in huge bucks, but because I think they thought I was a good lawyer. So why would I have given all that up in order to become a judge? One day in federal court, in this very building, I was sitting and waiting for my case to come up in law and motion. I won’t say who the judge was. He is now deceased. My case as it turned out was the last one to be called, so I got to hear the judge’s reaction and rulings, most of which were rulings from the bench on every single one of the cases before me. There were about ive of them. I’m sitting there and listening to them. I knew what the answer should be to all ive, not having heard anything more than what the lawyers said. But I knew enough about the law by then and what the right answer was. And every single time he got it wrong. I said, “My God. We shouldn’t have people on the federal bench like that.” I had always thought that judges were special animals. They had special experience, and that they were better able—it’s like you go to referee school, but better than that. This was a disappointment to me, that a judge would make so many errors in one day. And I realized that judges are really just human lawyers like everyone else. They are prone to making mistakes, but more important than everything is that the judge has got to try hard to get it right. It is not enough to just get up there with a robe on and announce the result. You actually have to try hard, and I didn’t think this judge was even trying to get it right. I think the judge was winging it. I think this particular judge liked the criminal side a lot and did not care much for civil lawyers. The bench does require that good people put in their application and be willing to do the work. I felt when Clinton was elected, me being a Democrat, that I had a shot at it, except that I knew right of the bat that a white guy was not going to have much of a chance. So I did not apply for the irst three, I believe, openings. Could be the irst two. I did apply about midway through his time. I got to the inal list of three or so inalists, the irst time and the second time, but I didn’t get the selection. I realized after the second rejection—and by the way, the other two who did get it were excellent. They were very well qualiied. I don’t in any way mean to suggest they weren’t. I just re alized that it’s not enough to be qualiied. You need to have to have a political strategy. Well, I am about the least political person alive. My whole mentality is that things should be decided on the merits. They shouldn’t be decided by back-room politics. So I almost gave up at that point. Now, is this too much detail? LM: No, not at all. WA: Okay. So that opening got illed and I returned to working on cases. But I remember the moment that I had an idea, and I was sitting at home in the house that we are in now, but who should be on TV, but Trent Lott, then the senator from Mississippi, but more importantly, he was then the Senate Majority Leader. That was point number one. Point number two was that Clinton was now having trouble because the Republicans had taken over the Senate, and they were holding up the Democrat nominees to the bench for extra scrutiny. They were letting some get through, but it was just like things are now. It was not easy. It dawned on me that 'conirmability' might be an issue for a Clinton nominee, that Senator Lott being from Mississippi might show me some favor and deem me conirmab le, even though I did not know Trent Lott. I had never met him in my life. Even today, I’ve never met him.

ifteen • 161 So I got to thinking about this. Now, to go back a little earlier, there was a fellow that I had played Little League baseball with in the 1950s. His name was Robert Hauberg, and he had been the son of the U.S. Attorney in Jackson when I was growing up, and we played on the same Little League team. He had gone of to law school at Yale, then went to work in New York for a big law irm, got a divorce and then came back, decided to start all over again around age ifty in Ja ckson. He and his new wife liked to come to California and hang out in the wine country. So he called me up out of the blue and said, “We’re coming out there. Do you remember me?” I said, “Oh, yes, I remember you. Le t’s get together for dinner,” so we did. We had a lot of fun together. We had three or four nice visits. On one of these visits when he was out here—now he’s back in Mississippi—I said, “What do you think of my plan, maybe there’s a way to get the Senate Majority Leader to support my nomination, and that might help with the senators who are kind of gun shy because the California senators don’t want to nominate somebody who can’t be conirmed?” He said, “It just happens to be that one of my best friends is the Chief of Staf to Senator Trent Lott.” I said, “My God.” He said, “I’ll go talk to him and ind out what he thinks.” Well, in addition to that, Judge Charles Clark, who I have mentioned already, and I had stayed friends and in touch all these years, even though I never got the opportunity to clerk for him and I always felt it was my loss. We remained friends. I had never thought that I would call on him for anything, but when I got this conirmability idea, I ran it by him. And he said, “Well, Iactually know Trent Lott. Not very well, but well enough.” And he would be willing to put in a good word for me. So I had two ins to a guy with whom I had no contact whatsoever. He was a Republican and I was a Democrat, all my life. I would be normally someone that Trent Lott would not want to have anything to do with. I had to give him a resume, so I gave him exactly the same resume that I gave to Senator Boxer, and, for that matter, to Dianne Feinstein. It had earlier ACLU work on there. So I said, maybe this will be a deal killer because I got ACLU on there. But I can’t change it; that wouldn’t look right. So I gave the same info, same exact resume. The word came back from these two sources that Senator Lott was going to try to help me. By this point there had become an opening, and I decided I would give it one more try and I would apply for the job again. I put in my application again. Of course, that’s through a committee here in California. I should do a small detour and say I had all the usual support you would expect, from the Legal Aid Society, for example. Joan Graf was wonderful in trying to get me on the bench. Ed Wayburn, who was then still active in environmental matters, and I had become good friends as a result of the work I had done with him personally on Yosemite. I had Democrats. I had Republicans. I don’t think there was a single opponent that I had ever had who said anything nasty about me, and in fact, there were a lot of opponents who were favorable. They said I always kept my word, which I always did try to do. What I am trying to get at is I had a good application, completely apart from politics, so I thought. Neverthe- less, before I didn’t have a political strategy, but now I had one, which was called conirmability. In fact, Barbara Boxer’s pick for the same job in Los Angeles for the Central District had failed; the Republicans had blocked it. In fact, they’d blocked it in part because of ACLU work. So, conirmability h ad cachet. Now to go back to the Mississippi part, word came back through both my sources, but particularly through Bob Hauberg. He said, “The senator is willing to support you for the California court.” Now, if you think about it from Senator Lott’s point of view, he didn’t care who they put on the California district court. Might as well be a guy from Mississippi. No other Mississippian had ever been on the California court. Why not? From his point of view, it couldn’t be any worse thanwhoever else they would pick. He was willing to give a home-grown kid from Mississippi a little bit of help. I said to Bob Hauberg, “It won’t do me any good unless he goes down and he tells that to Barbar a Boxer’s staf ahead of time.” He can’t say it after the fact because she might pick someone else. The strategy will only work if he says that ahead of time. So word came back he was willing to do that, and had in fact had done that.

162 • ifteen Once again I got on the list of inalists, and this time, though, Barbara Boxer called me herself on the phone and said she was going to pick me. She was so gracious and warm. She didn’t say this, but I can kind of put myself in her position. She must have been nervous, you know. This guy’s got Ed Wayburn on his side. She loved Ed Wayburn. And on the other hand, Trent Lott is on his side, so this candidate must be, at best, complicated. But, nevertheless, she went with my program, and I got selected by her committee and her, and then my name went to President Clinton and went on through the process. That was chapter one, but then there’s chapter two. Not as long a chapter, my Mississippi connections helped a little bit even there—have I told you any of this before? LM: No, we haven’t touched on it at all. WA: All right. Two things occurred that helped move my name along in the Senate, the problem there being that because the Republicans controlled the Senate, it was common for the Republicans to drag their feet, and you could languish in front of that committee and in front of the Senate for months. Maybe you would never get through. I didn’t take it as a given at all that I would make it through the Senate. I thought, after all, I am a Democrat. I have got ACLU on my resume. I clerked for Justice Douglas. I can give you two stories where the Mississippi connection helped once again. My debating partner from Mississippi State, Kirk Shaw, called. He was living in Alabama. He had gone to Mobile and then become a lawyer in a defense irm in employment cases there. He did not know Jef Sessions, who is now going to be our new Attorney General, but Sessions was then on the Judiciary Committee. But Kirk had a good friend who knew Sessions well. He went to his friend and he said, “I want you to get me an appointment for my buddy Bill out in California so that he can at least have a private meeting to say hello to and maybe make a good impression on Senator Sessions.” Senator Sessions, to his credit, said, “Okay, ine.” He thought of it as part of his job to meet the nominees. I lew back to Washington and I had a meeting with Senator Sessions and Kirk Shaw—just the three of us. Senator Sessions had done his homework. He knew a lot about me. He was principally concerned about me having clerked for Justice Douglas, and was I going to be a clone of Justice Douglas? I had to make it clear that I understood that a district judge is at the bottom of the totem pole, not at the top, and had to follow the law, which I believed then, believe now, that’s the important part of the process. The Supreme Court justices—they make the law, but down at the district court, we have to follow what the Court of Appeals says and what the Supreme Court says and what Congress says. So we had that conversation, and I still thought he was very—he was looking at me sideways, and then Kirk said, “Senator, one thing I want to tell you about Bill is that he gets to work at six a.m. in the morning.” Well, he was impressed with that. How many lawyers get to work at six a.m. in the morning? Which was true. That was when I get to work. Now I get to work even earlier, but in those days it was six a.m. So he took that in. He didn’t say what he was going to do. He didn’t say he was going to vote for me. But he was very courteous. He was hospitable. He was professional, and he spent an hour with us. The next big event was the hearing itself, and at the hearing Senator Sessions grilled me again on Justice Douglas, but not as long. This time, it was much shorter. I don’t think he was really expecting me to, but I refused to say anything negative about the justice. I also made it clear that a district judge has to follow the law. I knew that I was okay when the following happened. At the very end of Sessions’ questioning at the Senate Judiciary Committee, he said, “Mr. Chairman,” referring to Orrin Hatch, who was the chairman, “Mr. Chairman, there is one thing I want to say about our candidate here, Mr. Alsup.” And Orrin Hatch said, “Yes, what is that?” And Sessions said, “He gets to work very early in the morning.” And Orrin Hatch said, “What time is that?” Sessions said, “Six a.m.” And then Orrin Hatch said, without missing a beat, “Well, I get to work at 5:55 a.m.” [laughter] I igured they wouldn’t be joking like that if they were going to block me, so I took that as a good sign. And they did vote me out. The Senate committee then reported me out. Then the same old thing hap-

ifteen • 163 pened. I got reported out of the committee to the Senate itself, but you still have to be called up for a vote. It was either the committee hadn’t reported me out yet, or the committee hadn’t asked for me to be put on the calendar of the Senate. I’m fuzzy on which one of those two it was, but it doesn’t matter for the purposes of the story. Once again, several weeks had gone by, and no action happened. Part of this was that Senator Orrin Hatch had a friend in Utah that he wanted appointed to the bench, but President Clinton thought he was unqualiied, so President Clinton refused to appoint him. So, Senator H atch, who was chairman of the committee, said, “Well, I’ll show you. You don’t get anybody.” Eventually that got resolved, but there was this long hiatus. It had nothing to do with me, but I was just one of the victims on the sidelines. There was no action being taken, and they had resolved this problem with this other district judge in Utah, and still my name hadn’t been reported out. I was talking to my friend Danny Cupit, my college roommate now in Jackson, on the phone, because he was following all of this and was trying to help in any way he could. Danny said, “I have a contact who can help us with Thad Cochran,” who was the other senator from Mississippi. I said, “Who is that?” He said, “Do you remember Grady Jolly?” I said, “Of course.” Now, when we were in Jackson in 1972, I was on the plaintif side —and I did the civil rights case—but we also did employment cases, but we were on the plaintifs’ side. Acros s the street was Grady Jolly in a manage - ment irm. He was about my age and Danny’s age, and he was our opponent, usually. But in the mornings, we would meet for cofee at the Barnett Badden building cofee shop a nd just talk, never knowing that we might be having the following conversation. Grady had been put on the Court of Appeals by Clinton’s predecessor, Herbert H. W. Bush, and was a circuit judge. He was very close friends with Thad Cochran. So, Danny set up a three-way call with himself, Grady Jolly and me. Grady was very gracious. He had no reason to help me at all, but he remembered me. He was enthusiastic. He said, “Here’s what I’m going to do. I’m going to call up Thad right now and tell him to get your name on the Senate calendar to be voted on.” I thought he was just—you know, how can he make it happen like that? I said, “Great.” I hung up the phone. Less t han an hour later, it could have even been thirty minutes later—Grady calls me back and he says, “I just talked to Thad, and he’s on his way to the Senate right now for a vote. He’s going to go over and see Orrin Hatch and tell him just that.” I said, “Amazing!” He called me back about thirty minutes later and he said, “I just talked to Thad again. He had that conversation with Orrin Hatch and he said, ‘I’ll do that. This guy from Mississippi, Alsup. I’ll get this done.’” Sure enough, within a day or so, my name got put on the calendar for a vote in the Senate and I got conirmed. Then a couple of days later, I was sworn in here. I indit extremely ironic that my Mississippi connection—my roots—and close friends that I knew there happened toknow people who were of a diferent persuasion, but because they were still friends, were able to help us. Like Danny. Danny has always been one of the civil rights marvels, in my opinion, on the plaintif’s side in Mississippi, but he’s always been a very decent person, and the people on the other side trust him and they know him and they make deals. It’s not a rancorous-type deal. So, Republicans like Grady Jolly that would honor some request made by Danny to help me. My Little League pal was good enough to go to his friend to help. I ind it amazing, despite the fact that the vast majority of my career has been out here, that in a very important way, my Mississippi roots were instrumental in getting me conirmed to this job. I don’t thin k I’ve ever told anyone in as great a detail what happened in the things I have just now revealed to you. But that’s a pretty close to accurate recitation of the way in which all of that came down. LM: That’s a really great story. WA: Well, it has the virtue of being true. [laughter] LM: It’s a great story. I’m so glad I was privileged to hear it.

164 • ifteen sixteen

Caseload and initial approach Transition from private practice to the bench Law clerks and oral argument; jury trials and jurors; young lawyers in court Class action lawsuits Criminal cases: post-prison supervised release Arbitration agreements

LM: Today’s February 22nd, 2017, and we’re going to pick up where we left of, which was after your conirmation. You came back to the West Coast and the investiture, and then going forward. WA: The investiture was a few month later, I think maybe ive months later. Usually they are. The day that I got word that I had been conirmed— It’s not just conirmed, you have to also get the commission signed by the president and counter-signed by the attorney general. As soon as that was done and they told me over the phone, the White House, that it had been done, then I was okay to be sworn in, even though I didn’t have the commission in hand; it was on its way to me. I got sworn in on August seventeenth, 1999, meaning the last century. Chief Judge Patel was good enough to do that. We had a nice little private thing. My wife came up and Kathy came. My son came. I think that was it. I don’t remember who else was present. Judge Patel got out a bottle of champagne and we had champagne after she swore me in. Meanwhile, I had been in contact with the clerk of the court Rich Wieking and he had given me a tour of what my chambers would look like, and the courtroom. They were just waiting for me to arrive so they could unload a lot of cases on me. I had chambers assigned to me. They had pulled together mismatched furniture that others had rejected over the years, so I had a desk, I had chairs. As soon as I was sworn in I was able to go into those chambers and start work. Very quickly, the clerk’s oice brought me 400 iles. These were civil cases. There were about 400. Liter- ally, in those days it was paper iles, not electronic. We didn’t h ave the electronic iling yet. That came online three years later. The paper iles came up to me and t he clerk’s oice dumped them on the loor of the room. I say dumped; they organized them in boxes on the loor. The n they said, “Good luck” and left. That is the way I got my intro. No one gives you any training in how to tackle this problem. Suddenly, you are in charge of 400 cases. I had Kathy and my law clerk, Sarah Botz, who came with us from Mor- rison. I don’t think my second law clerk had shown up yet. His name was Hank Burgoyne, who I inherited from Judge Fern Smith. I said, “Let’s go through these iles.” We t ried that for about a day, and that was a big mistake, because you look through those iles, you don’t know wh at’s current, you can’t discern the essence of the case. You can see there is some discovery dispute or you can see that there was a summary judgment motion granted by the prior judge. After about one day, I realized there’s got to be a better way to do this. What I stumbled on turned out to work, which was to just call the lawyers in every single case, all 400 cases. That took several months to do, to call them in and give them an opportunity to explain the case, what the current needs of the case were, and to set a new schedule so that everyone would go out of there with a discovery cut-of, a trial date, and so forth.

sixteen • 165 One great thing that happened as a result of that was that a substantial percentage of the cases, as soon as the notice went out, they just settled. They just said, “We should have settled this a long time ago. There’s no need for a new judge to get involved. We’ve already got it settled.” Let’s say it went down to about 300 then, maybe even less than that. I would have anywhere from a ten-minute to a one-hour conference, depending on the needs of the case. I probably did about eight of these a day. Gradually, I got through all of them and got them on a track. I am good at learning by listening. I am better at listening, and that’s why I like oral arguments, than I am in reading. I can read briefs, but it’s better when I can interrupt the lawyers and get an immediate clariication of what they really mean by some clever phrase. Also in the oral arguments, people come to the point more quickly than if you are reading the brief. Just to take one example. In one of those cases—it was a patent case that turned out to be one of the more interesting cases of my whole time on the bench, which was the one involving Amr Mohsen, who was an inventor. It wound up that he phonied up some engineering notebooks to try to save the inven- tion date on a patent, so that his patent would swear behind the prior art, and therefore still be valid. At that very irst meeting with the lawyers, the party that was being sued on his patent said, “We have good evidence that these engineering notebooks are phonied up.” I was cynical enough, I didn’t believe it at irst. I said, “Give me a short ofer of proof, what you can prove if we have an evidentiary hearing.” That lawyer did one of the best jobs ever. He, in ive minutes, without any preparation, laid out—never overstated a thing—he laid out what the evidence would be, and he did it in such a clear-cut way, with no diagrams, that I was able to see. Well, that’s amazing. If that’s all true, then yes, probably those are phony. For example, because they had done a sloppy job, they had produced two diferent versions of the same page in the engineering notebook. One of them had additional notations on there that purported to be from an earlier time period. That was very suspicious right of the bat. We did wind up having that evidentiary hearing. I did make extensive indings that it was a fraud. I referred it to the United States Attorney in case they wanted to prosecute. They did. This was a case where, for a while I was a judge on that case, too, but then there was a death threat made against me, so I got out of the case. Another judge came in from Sacramento, Judge Bill Shubb, a wonderful man, and it wound up the guy was convicted and he got seventeen years in prison. He also, I should say—part of that was not just—it was also putting out a contract on the key witness against him, and the jury convicted him on that. That seventeen years is probably going to be up soon, because that was early on. I’ve been on the bench seventeen years now. With good-time behavior, he should be getting out any day now. Anyway, that was the method. How I got started was simply calling in the lawyers and having a conference and getting everyone’s view about the best way forward, and then coming up with a plan. I still like that general approach. That was the approach that saved me from having 400 cases. It would have been a nightmare to try to read all that material. So that’s how I got started. LM: Did you get all civil cases? Because I don’t know what the system is. WA: I also got criminal cases. LM: Oh, you did. WA: I did not get any existing ones. I just got them on the wheel as they—so I gradually built up my own criminal docket. I did not get anybody else’s criminal cases, just inherited civil. Part of it was Judge Fern Smith had gone to the Federal Judicial Center in Washington in early July. I got all of her civil caseload. In addition, I inherited other civil cases that were randomly reassigned from other judges.

166 • sixteen LM: You had made a lot of changes in your legal career already. Was this a diferent kind of transition, or not so much? WA: In some ways it was a huge change. In some ways it was the same. The way it was the same is you are bringing to bear legal analysis. You are bringing to bear the ability to write. I had written many briefs. I could write an order. That part was not too hard. The part that was harder for me was switching from the role of being an advocate, especially an advocate who had the re sources of a big law irm behind him, to being a neutral, being someone who was not an advocate but whose client was the public and the United States, with a very small staf; one law clerk, one secreta ry. Really, I had two law clerks, but on any given case I just had one law clerk. You have to decide that you’re not going to pursue every issue. Even today, my law clerks will tell you that I say to them, “I want one good reason to grant the motion if I am going to grant it.” If they give us three, we just go with the best reason, and we write that one reason clearly. Occasionally, I will allow a second good reason, if it’s a short one. However, for the party that’s losing on that issue, I do insist that we go through every single one of their reasons why it should not come out that way. In a law irm, I would sometimes go with just one good reason, but as a lawyer I would probably put in at least one good backup argument as well, maybe two. What I see here is people put in ive arguments on the theory that you never know what will appeal to the judge, so put it all in and see what sticks. I see that all the time. We just don’t have that luxury. LM: In terms of setting up chambers, I think one of your former law clerks said you use odd-numbered case for one clerk and even for the other? WA: That’s a very good question. We’re very close to the way I set it up from day one, even today. I thought from the get-go that we should give all the patent and IP [Intellectual Property] cases to one law clerk. That would be copyright, trademark, patent, trade secrets, all of that would go to one law clerk, and all the criminal and habeas and securities would go to the other law clerk, and then they would split the rest of it on an odd/even basis. And that’s still the mainstay of my organizing principle. The truth is, when you go to hire a law clerk, in the initial interview you would ask, “How do you feel about patent cases?” The answer might be, “Oh, I can put up with that,” or, “I can handle that,” or, “That’s okay with me.” They’re not excited about it, but they’ll do their job. Well, for the patent work, there are great can- didates out there who would love to do the patent work. That’s what they want to do in life. So, quickly, I learned that you want to get those people on the patent issues. You don’t want somebody who’s just willing to do it. You want somebody who’s dying to do it, and the same thing for the criminal side. There are two diferent mindsets. The people who want to do the criminal work don ’t want to do the patent work, and vice versa. I don’t know why other judges don’t see this, but to me it’s a very logical way to divide the work. I did that on day one and I have stuck with it all these seventeen years. LM: My husband is a patent attorney, so I only know by being married to a patent attorney, since it’s not my ield at all. Did a large number of those clerks on the patent side go on to practic e patent law? WA: Yes. LM: They got a great start here. WA: They did. They do. I would say three-fourths of them are still practicing IP law in some way. So yes, they did. Three have gone on to clerk on the Federal Circuit, which is the IP capital of the world. LM: Are there certain other qualities besides the interest in criminal and interest in IP that you look for early on when hiring law clerks? WA: Yes. This is still true as well. Meeting a deadline. You’ve got to be able to meet a deadline in order to—there are some people who are so well organized internally, they never miss a deadline. It’s amazing

sixteen • 167 Bodie Bar & Hotel, 2016

to me. There are others who just cannot—other young people—it’s a combination of procrastination— they just can’t meet the deadlines. Procrastination, but it’s also the inability to come to a decision, and to implement the decision by writing it up. There are people in that category. I don’t think they’d be good judges. They’re not even going to be good lawyers, because in this profession you’ve got to meet deadlines in everything, so maybe they should be something else. Fortunately, I have had good luck in getting people who can meet deadlines, in all but about—I’ve had about forty law clerks in seventeen years. Out of the forty, I am going to say there were two or three that it in that category of just unable to come to a decision or they’re overwhelmed by the amount of work. Other clerks, however, are not overwhelmed by it. They whip right through it. They keep their mind organized and they turn out great work product. They are all good people, with great heart. It’s just that internal discipline that is important. LM: You said that you respond to listening and oral argument diferently than to reading the briefs. In terms of giving your law clerks direction, is that something that you do more orally? WA: Yes. I started out trying to read all the briefs. But it’s impossible, and if there really is a district judge somewhere who reads all the briefs, I salute them. What I have gravitated to—I did after about a year— was I decided I needed a system in place that would guarantee that I was not overlooking any argument that would counsel against the way I was going to come out. I have a very simple set of ground rules for my law clerks. They prepare the order and I want no politics. They have always got to do it according to the law. I insist that we have no politics. They are not here to be public policy analysts. No, we’re at the bottom of the totem pole and we have to follow the law of the Ninth Circuit and the Supreme Court and Congress, when there is a rule on point.

168 • sixteen That’s number one, and number two, they only need one good argument to come out the way we’re going to come out, as I said, but they have got to honestly address all of the counter-arguments going the other way for why we should not come out that way. Let’s say if the issue is, does the statute of limitations apply and we’re going to say yes, it does apply, and the losing party on that has three arguments for why it shouldn’t apply, then we need to identify and address every one of those three in my order, not just conveniently say, we want to say X wins, so we’re going to sweep the counter-arguments under the rug. No. We don’t do that. We address all of the losing side’s arguments. When I get their draft order, which is usually two days before the oral argument, I can go through there, and I will now know the arguments going the other way. I don’t need to see what’s in there. I insist they read the record. I insist they read every decision we’re relying on. I tell them the lawyers are, one-third of the time, dishonest or mistaken in what they tell us in the briefs. So they’ve got to read the decisions themselves, and read the record themselves, not to rely on the lawyers. So they know that, too. That system has worked pretty well. I would say occasionally, not often, say ten to ifteen percent of the time, we go into oral argument and I get into a colloquy with the lawyers. Sometimes I’ll even say, “Look, here’s the way I’m leaning on this case. I’m going to say the statute of limitations applies. Give me your best argument as to why it doesn’t apply.” So let’s say, the lawyer comes up with something that’s not in my order. I listen, and I say, “Okay, give me your best decision on that.” I’ll say, “Did you cite that in your brief ?” And the lawyer says, “Well, I believe I did.” Well, if the lawyer says, “I believe I did,” that’s ifty-ifty likely to be true. Then I’ll say, “Where did you cite itin your brief ?” But then I’ll come back and say to my law clerk, “You know, that point that they made out there was not in your order, and it should have been.” But then I also learned this. About half the time, the law clerk says, “Yes, that’s because they didn’t bring it up in their briefs. That’s the irst time I’ve ever heard that.” I’ll say, “Are you sure of that?” “Yes, I’m positive.” About half the time, though, maybe the law clerk misunderstood the argument or did in fact address it, but in a more left-handed way than I would have liked to see. Oral arguments are important. It’s my opportunity to test-drive my tentative views with the lawyers and see what they say. Some percentage of the time the oral arguments will actually cause me to go the other way, maybe one out of eight cases, I get convinced by the lawyers. Also, even before we get there, I will read the drafts and I will see that one of the arguments that is being made to go the other way is actually more persuasive. Then I have a long talk with the law clerk. I might even say, “I want you to draft it the other way. Let me see it how it writes up that way.” I would say 80 percent of the time, my system educates me and I am never surprised at what happens at the oral argument, but I do have a genuine colloquy with the lawyers over how that issue ought to come out. In about 20 percent of the time, maybe even 25 percent, the oral argument actually reveals something that I had not focused on. It might have been my fault; it might have been the law clerk’s fault; or it might be the lawyer’s fault. It’s something that I go back and almost always take into account, even if it’s not in the briefs. I might give the other side a chance to respond to it. That system works for me, but the reason it works is that I like oral arguments. I like to engage the lawyers on the points that I am probably going to rule against them on, and see if they say something that is more persuasive than what I have read so far. It’s not a perfect system, but I must say I think it’s worked pretty well, and it’s very rare that I get out an order and somebody comes back and says, “Wait a minute, wait a minute; you didn’t consider my XYZ argument.” Instead, the lawyers accept what I have done as a fair treatment of the briefs that were submitted. LM: In terms of jury trials, was there anything in the beginning that surprised you about working with a jury? WA: Not so much surprised me, but a shift in my attitude. When I was a lawyer, I think like most lawyers, you think of the jury as not a collection of individual people with individual stories to tell, but you just

sixteen • 169 consider as a decision-maker other than the judge. You don’t take into account the hardship that it is on the individual jurors. To be crass, it’s like you’re walking through the grocery store, and you say, do I want a box of cereal or do I want granola? Do I want a judge to decide this case, or do a want a jury to decide it? As a lawyer, I did not realize the human face as much as I sh ould have, even though I tried a number of jury cases. As a judge, in going through the process of selecting them and then being ever-present and ever-aware, because you always have to be aware. It’s like you’re a mom or a dad, you’re always aware of where your child is. I’m always aware of where the juries are. I have just come to see the huge sacriice that they make, and the diiculty they’re going to have driving from Sonoma every day to get into court, or Concord. That’s one of the reasons I insist on getting them h ot cofee in the morning before they get here. I call it Federal Donuts. I get them donuts. I want to make their life a little easier, and I don’t like to waste their time. I want to make sure that when the jury is here, we are hearing evidence or closing arguments. I don’t want them sitting around cooling their heels while the lawyers drone on about some motion in limine. So, I’m much more sensitive to the burden and sacriice that jurors make. I have a rev- erential respect for juries that I did not have when I started this job, but I have it because of having seen so many of them, and the dutiful way in which they really just make huge sacriices to serve their country. LM: What are some of the broader shifts in your thinking that have taken place since you became a judge? WA: I can give you three or four. Let me start with one that has not changed. When I got this job, on the civil side, I made a promise to myself that I would not do what some judges have done, which is delay, delay, delay in getting out rulings. It is so demoralizing to the lawyers when the judge will not decide a motion. You don’t know whether to take the depositions in Florida, or the ones in Minnesota; the failure to rule on important motions is really a plague on civil law practice. I promised myself that I would get the orders out promptly, and right of the bat I did that, and I still do it, and I think I get them as close to accurate as if I took an additional month. I would say I typically get the orders out the week of the hearing or the next week. That accounts for 90 percent. Then about ten percent might trail for as much as a month, depending on something that is just so important, but even a month would be long for me. That is not long for the system as a whole. Many judges will take six months to a year to decide a motion. I just think that does too much of a disservice to the lawyers. That part I have not changed. Let me give you some things that I have changed on. One is the need to get young lawyers into court. It has gotten worse and worse, and I see it as the judge. These young people who I know have prepared the briefs and know the record cold, they would come to court and carry the bag of Mr. or Mrs. Big and not get a chance to perform. Let’s roll back the clock to 1995. The profession was bemoaning fewer and fewer trials, but at least in that era young people still got to argue motions and take depositions. Even ten years later, in 2005, I detected a strong need for the judges to ste p in and start encouraging the law irms to let the younger people perform. So I have done that. I have done that now for probably ifteen years. I have been actively promoting that. I’m guessing I have had 200 young people argue in court that they otherwise wouldn’t have been able to, and I can’t tell you how many depositions because I don’t get to attend those. I believe that there would be some larger number where young people get to take depositions. It’s because I say that in court. I don’t order it. I just strongly encourage it. I do it through the speech I make at the case management conferences. I do it in the written case management orders. For example, sometimes I will decide a motion on papers, but I tell them up front that if you send me a letter that a young person is going to argue this motion, regardless, I will always guarantee that it will be heard. In fact, I will call it irst on the calendar because I want theyoung person to have a big audience when they have their irst argument. Here’s another thing that I do. Let’s say it’s a week before the oral argument, and I say to my law clerks, “All right, do we have any of these motions which would be suitable for a young person to argue?” Well, let’s say there are eight coming up, and they say, “Yes, at least six of these.”

170 • sixteen So we send out a little notice that says, “The court believes this would be appropriate for a young person, and would welcome a young person to argue this motion.” I think I’ve encouraged it a lot. I don’t hold it against anybody when they decide that they’re going to have a more seasoned person argue a motion. That’s ine. The clients know that it’s okay with me, and if a young person argues I’m not insulted like that judge back in Brooklyn was whenever a young person came to the case management conference. I am happy for that. I am happy that they get that opportunity. That’s one thing. I have gotten stronger and stronger in the direction of giving more and more encouragement to that process of getting the junior lawyers to argue. Here’s another thing. I make them put in—it’s like an environmental impact statement. For the last year, if you’re a irm of more than ifty lawyer s, you’ve got to put in a statement of how you plan to work young people into court appearances and depositions in the case. Some of them do a good job of explaining how they plan to do that. And I read those. All right, so that’s one broad thing. Another broad thing is class actions. I believe very strongly in class actions, but we have to protect the absent class members. When I started this job, about 40 percent of the class action settlements—that’s a large number—40 percent of the class action settlements that I was seeing seemed like collusive deals where the defense was buying of the lawyer and the class was not getting much in return for a release. I have been pretty vigilant in trying to make sure that we don’t have collu- sion. I could go on and on about this. I will just say that if you looked at the document we send out on all putative class actions, which is called factors that I will consider for settlement. One thing, for example, I don’t even let them talk settlement until after there’s been a Rule 23 determination that the plaintif is adequate, that the lawyer was adequate, and that it is a suitable class action. It’s okay for somebody to compromise a claim on the merits, the risks of litigation. But you should never further compromise an absent class member’s claim because the plaintif might not be an adequat e representative. I want to make sure that everything is square. Then I say to them, “It’s your duty to talk settlement. Now it’s your duty, now that you are in charge of the class.” Not that they have to settle, it’s just that it’s their duty to consider it. I was a bit jaded in my irst few years of seeing so many collusive deals. I don’t see them so much anymore because the lawyers know how tough I am on this. I have approved many, many very good deals where the class gets close to one hundred percent recovery. They get well paid for what they’ve done, but they’re not going to be bought of. That’s another one that I feel strongly about. Can I give you one other example of something I’ve learned? This is on the criminal side. When I started this job, I didn’t know much about the criminal side. I have learned on the job. There are really three phases to a criminal case. There’s the guilt phase, or not. Most of them plead guilty, so that’s the way that part ends. Then there’s the prison time, and then here’s the part that no one really knows about, but which to me is very important. It is when they come out of prison. There’s this thing called supervised release, where they are under the supervision of a probation oicer and the judge, and it goes on for three to ive years. Let’s say three years, somebody’s on supervised r elease. There will be conditions like you can’t commit another crime; you have to report in to the probation oi cer every month; you’ve got to take a drug test if they tell you to take a drug test. Now, I think this is a correct statement that I am about to make, which is that my colleagues wait until there is what’s called a Form 12 Violation before they ever see anybody on supervised release. So a Form 12 Violation would say something like, “Joe X reported in the other day. He was told to take a drug test. It turned out that he was using methamphetamine. That’s a violation, so now we’ve got to have hearing.” You would see them in such a negative light, because they’re being accused now. Of course I still do that. I get those too. Here’s the change that I’ve made. Yesterday, I had a criminal calendar, for example. Every single item on that calendar—there were just four, but every single one of them—was where I had brought them in for a status conference to see what progress they were making, and how we could help them. I call them progress reports. How we could help the person on supervised release to get a job, for example. To get

sixteen • 171 their GED, for example. Or do they need drug treatment, or a residential drug treatment program. The question there is, how can we help? We’re no longer punishing anybody. We’re trying to help them. We have three years to help them become good citizens. How can we help them? I have found that that’s the most important part of the whole sentencing process. It’s not the prison part. It’s the how we help them become a good citizen at the end part. Now, this does not work for the hardened criminal who is violent. They are about 25 percent of the cases. But 75 percent of these cases, they’re not violent people to begin with. They might be a drug addict. They might be a white-collar person who—you just never know. You see all kinds of stories of how they got themselves in trouble. The typical one would be somebody who was addicted to drugs who did some dumb crime, but did not commit violence. If they could get themselves their GED, go through job training, they could get a real job and contribute, pay taxes. I believe there are a lot of people because the old judge was interested in them, and brought them in every three to six months to see how they were doing and how we could help them, they actually straight- ened themselves out and they’re good, productive citizens now. I didn’t know a thing about it when I started the job. But the Form 12—that’s the negative part. That’s when you’re accusing them. I bring them in for progress reports, so I can see what progress they’re making. I typically will say, “Okay, you have your GED?” “No.” “How far did you go in school?” “Eleventh grade.”‘What do you need to get there? Let’s come up with a plan. We’re going to have a plan.” They say, “Okay.” I make them look into it. So then they come back in a week and they say, “Okay.” In six months he can have his GED. “Can you do that?” “Okay.” “I’ll give you nine months.” I keep bringing them in. The goal is, “How close to getting that GED are you? How close are you?” Well, eventuallythey get it, thanks to the judge being on their case about it, but also showing somebody cares about them. A lot of these people, no one has ever cared about them. They see that at least the judge cares about them. And I do. I genuinely do care. I want to see them succeed. The next step might be, what kind of job can we get you? What are you qualiied to do? We get them some training. It might be as a truck driver w ith a commercial license. Maybe as a landscaper. Many, many diferent scenarios there. A few times it’ s been so great, we’ve had a little party in chambers, a graduation party, whenever they were going to go of of supervised release, this person has become a model citizen. The probation oicer would come in; the U.S. Attor ney would come in. Right here in chambers, we would have a little party for them to send them on their way and wish them well. So, that has been a huge shift for me. I still have to sentence people to prison. There’s no doubt about it. That’s an important part of it. But, for most ofenders, the supervised release will be more important than the prison time. I didn’t think that going into the job. LM: I sat in on some of your criminal sentencing. WA: Which cases were they, do you remember? I don’t remember what you saw. LM: One was a man and a woman, and the woman was a bookkeeper. She was making false invoices that were getting paid, so there were two defendants. They were sentenced separately. The woman—her mother was in the courtroom, and I believe she had children. You asked the mother to stand up and you welcomed her to the courtroom and the proceedings, and thanked her for coming. It was very moving. WA: That’s another thing—I want to acknowledge the family when they come in a criminal case, a sentencing, because I know how hard it must be on a mom or a dad, or a brother or sister, to see their family member sentenced to prison. It just must be the most heart-breaking thing they ever do in their life. Not that it makes it any easier, but I genuinely think it means something to the guy being sentenced or the woman being sentenced, to have that support. I want to acknowledge that to them. I think it makes the family feel better whenever I acknowledge that they are here, and how hard it must be on them. So that’s why I do that. LM: That’s very respectful.

172 • sixteen WA: Sentencing is the hardest part of the job. At irst, I would really agonize over what the right thing to do was. It was clear I had to send somebody to prison for a long time. Is sixty-two months the right number? Is seventy-two months the right number? Eventually, I gotused to that, used to it in the sense of not being overwhelmed by the number. Still, even when I sentence somebody to a year in prison, that’s a whole year out of their life. It’s hard to do that, but that’s part of the job. That’s what I signed up to do, and I can’t just go easy on somebody because that’s a diicult decision. I have to do the right thing under the rules. What my job is, according to the statute, is to pick the lowest sentence that will carry out the sentencing objectives of Congress. Deterrence is one of those, for example. I will say this. My overall level of sentences has decreased maybe one-third. If I used to give ninety months, I give sixty months now, on a case because I think the most important part of it is going to be in the supervised release, and trying to get this person back into—I don’t think it’s made more than a one-third diference, but that— To return to the supervised release for a minute, that is the most important part to me, of making something good out of this person. And so that in turn moderates the harshness of what sentence I wind up giving them. LM: Has the supervised release been something that other judges do as well? WA: I don’t think any other judge does this where they bring them in for progress reports. Except the drug court, re-entry court. We have adopted, for about ive years now, a re-entry court program, where very selective, maybe at any given time for the entire court, not just one judge, they might have seven or eight people in the program. It’s even more intense than the supervision that I give. Beyond that, I don’t think anyone does these progress reports like I do. They just wait for something negative to come up. To me, I like seeing those people come in. I had one guy—he liked seeing me so much, I gave him a choice between extending the supervised release—he said he liked coming to see me, so he extended it another year even though I gave him a chance to end it. He could go to prison and end it, and it was a short prison sentence, so he decided he’d go the extra one year, because I think he was one of those people, nobody had ever cared about him, period. At least the judge cared about him and wanted to see him succeed. So anyway, those are some of the ways in which my attitude toward the job has shifted over the years. LM: They’re all interesting. We could end for today unless there’s something that we didn’t cover that you’d like to talk about today. WA: Well, can I just say one last thing? LM: Please. WA: One thing which I can’t really change because it’s the law by the Supreme Court—I’ll just say that I wish I could change it—and that is the—this is on the civil side, now—requiring people to arbitrate claims where Congress has given them a statutory right but, nevertheless, the Supreme Court says that they could be forced by a private agreement into arbitration. For example, a big bank requires everybody to arbitrate any claims against the big bank, or an employer might say you’ve got to arbitrate your claims. If that had been the rule, arbitration—those agreements being enforced like they are today—if that had been the rule in 1964 when the Civil Rights Act had been enacted, the Civil Rights Act, at least Title VII, would have been dead on arrival, because every employer would have put all of the Title VII cases into arbitration. I hate to see federal rights shunted of into this private world where no one is held accountable. Yet, that’s what the Supreme Court has done. I feel that it was a mistake. I respect the Supreme Court. I dutifully salute and enforce that case law, just like any other case law, but I wish it had gone the other way. I wish they were more tolerant of the need to have federal statutory claims litigated in federal court. I wish that that had been excepted out of it. LM: I’m glad you said that. It’s interesting because you have the accountability with the people who have been released from prison, who are on supervised release, and they’re coming to you and they’re becom-

sixteen • 173 ing accountable for their progress, by setting these dates with probation and drug tests, and then you have the lack of accountability that you’re talking about with giving up rights and mandating arbitration, or allowing arbitration to be – WA: There are some arbitrators who are great. There are others who are not so great. There’s a built- in incentive. The way it works is that the one thing that seems to be in favor of the little guy is that the big company is supposed to pay for the arbitrating. But because the big company pays for the arbitrator, they will put into the agreement that all of the arbitrations have to be run through the ABC Arbitration Company. But there’s also the XYZ, and so the ABC group knows that if they have too many wins for the little guy, that the big company is going to change the contract to put in XYZ. So there’s an institutional bias that—but is there data on this? No, because it’s all done under these private conidentiality—and we never know what the outcome—they won’t let the individual come out and say, hey, I lost. Every now and then you will hear about some arbitration award, but the vast majority are held in secrecy and in conidence, and you don’t know how good or bad it was. I just hear horror stories from individual lawyers about how bad it was. Occasionally, I hear a good story. I would say two out of the three stories that I hear from lawyers, they were not happy with the way they were treated in arbitration. One-third say it was all right. All right, we’ll end there for today. LM: Thank you.

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Procedure, fair process and Rules of Evidence Being a federal judge; more about law clerks Yosemite: more about the Sierras; the Brewer Party; Concession bid and renewal; friendships with Ed Wayburn, Wallace Stegner and others Roosevelt Point in Yosemite

LM: Today is April 5th, 2017, with Judge Alsup. We are talking about several diferent things. Your strong attachment to procedure as one of the central tenets that guides you is one. Also, why you like being a federal district court judge. WA: Many people ind procedure boring, but I ind it the essence of the system, and having a fair process is one of the hallmarks of what I try to achieve. This is much more than just making sure everybody has their day in court and their opportunity to be heard. Of course that is critical, but that is not the subtlety that I am getting at. The subtlety that I am getting at is to make sure that one side or the other does not deprive or cheat the other side out of their fair opportunity. Let me give you one, very recurring, example, where someone makes a motion. The other side responds in their opposition, and then on the reply brief, because it’s the last word, the irst moving side, slips in all kinds of new material that should have been in the opening, but they saved it on purpose for the reply, when there would be no opportunity to respond. Some judges have even told me—I won’t name who they are—that their law clerks have been misled by that, and have granted, for example, summary judgment in favor of the moving party—where the victim of it never got a chance to respond to that new material that was in the reply. Young law clerks sometimes don’t know better. They think, we allowed reply briefs, so it must be okay. But it’s not fair. It’s depriving the opposing side of their fair opportunity to respond. So, for example, I have a standing rule that says you cannot have a reply declaration unless it is true rebuttal and could not have been raised in the opening motion. I would say several times a year I will strike somebody’s reply declaration because I feel it should have been put in up front, and it was a gimmick to try to deprive the opposing side of their fair opportunity to respond to that point. That is a not-so-obvious example of a fair procedure. I rigorously enforce that, and do my best to make sure that one side does not use some gimmick to deprive the other side of their opportunity to be heard. An even more subtle example are the rules of evidence, and occasionally it comes down to in my mind trying to assess what rule of evidence will work best in a fair procedure. Or, to put it diferently, which rule is more likely to work an unfairness. I like thinking about those problems and trying to come up with rules of evidence, presumptions, fair procedure that will work for both sides and not work some hardship, and not let somebody take unfair advantage of the system. I think that because so much of what we do as judges is making sure that both sides get a fair shot at making their points that is important, and I happen to think it is important and I, having been burned as a lawyer many—I practiced twenty-ive years; I’ve been on this job seventeen. So I have got forty-two years of experience, and I think I have seen every trick. I am sensitive to fair procedure. So, that’s number one. Your other question was, what do I like about the job. I think I said this in one of our prior interviews,

seventeen • 175 and it comes down to I believe in the system. I believe in our federal court system, and the need to have a forum where both sides get heard and somebody whose job is to apply the law and make an impartial decision, with no politics involved. It’s done on the merits. That’s why the public likes the courts so much, because they see what goes on in Congress and in politics and they don’t like it. It’s the worst of America. They look at the court system and it’s non-political and it’s done on the merits, so even the most lowly guy can go in and take on a big company, and if they are right on the law, they’re probably going to win, even against the big company. But to make that system work, you’ve got to have people who are willing to do the hard work that’s involved in being a judge—I think I already described this. That’s why I volunteered, I put my name forward, and that’s the thing that motivates me day after day, is I do believe in the system, and it’s worth it to me to put in the hard work, because I believe in the system. That’s the answer to that question. One other thing that is a great part of the job that I didn’t anticipate coming into it is the law clerks and my relationship with the law clerks and the opportunity to see them grow and for them to learn. They learn a ton, now that they work for me for eighteen months and not just twelve months, and I don’t have a permanent law clerk. I just have two eighteen-month clerks, plus a secretary, Kathy. But I’m telling you, working with them, working through a case, these law irms ha ve tons of people on the cases, but I just have one law clerk on the case, maybe an extern who’s helping me, too. That is a rewarding part of the job. I continue to have good friendships with many of my—in fact, I’m going to say every one of my law clerks. I see them on a regular basis after they have left here. I’m interested in their careers. I want to see them succeed. And so I follow their careers. I try to help them, give advice, for example. That’s been a most rewarding part of the job that I didn’t anticipate, is the law clerk part. LM: You must see huge development between day one and the end of an eighteen-month term. WA: I do. I would say a clerkship is worth three years of practice in a law irm. They just see so much. It’s not just working with me, although I think I do teach them a lot. It is being able to see what goes on in the courtroom, see what goes on in the rest of the courthouse with other judges, seeing so many good lawyers and also being able to see what bad lawering looks like, and that education is invaluable. So yes, I’d say eighteen months equals three years in a law irm, in my opinion. LM: I had a note about Constitution and Citizenship Day, which is September seven—I’m not sure that came up when we were talking to Malcolm Margolin, or Michael Traynor brought it up. They were talking about swearing in new citizens. WA: You know, I should do that, and I never have. Way back in the ifties and sixties, that was done in the federal courthouse, but it’s done somewhere else now. I could go over there and do it, but I haven’t. So I don’t have much to add on that. That’s one of the places I’ve fallen down on the job, swearing in new citizens. But it is important. LM: We have a big area to talk about regarding Yosemite, Yosemite Restoration Trust, Yosemite Asso- ciation. I have Roosevelt Point, your two Sierra books, and the summary of your mountaineering in the Sierra. WA: Yosemite and the Sierra have been a huge part of my life and our family’s life. In fact, I would say outside of work and outside the normal family things of kids going to school and that kind of thing, our time in the Sierra has been the single most important part. For example, my son has done more than twenty-ive backcountry trips with me. My daughter, I counted them up once for her. She had fourteen by the time she graduated college, and since then, at least three more. So she’s at seventeen. My wife in the earlier days had probably done four or ive trips with me. I have done 151, I think, is the exact number, of backcountry trips. I’ve averaged three, four or ive per year. Some as short as just one night; some as long

176 • seventeen as ten nights; and I would say the average is three to four nights on the trail. The Sierra—and Yosemite is part of the Sierra—have been a magical, spiritual, physical thing for me. I could go on many, many, many hours on backcountry trips, but I won’t do that to you. Someday, I should try to summarize all that. The Bancroft wants my maps and my trail notes and things; I’m giving all that to the Bancroft. And photographs. I have got about 500 very nice, mounted scenes that I’ve done in the Sierra. All those are going to go to the Bancroft. In fact, I’ve already donated the very ir st few to the Bancroft. Theresa Salazar over there, a star there, was the one who made that request. But to do a very short summary, I have climbed a small number of peaks; the most important would be Middle Palisade, Mount Brewer twice and Mount Whitney twice; Mount Abbot, Conness at least three times, Half Dome a couple of times; Cloud’s Rest three times, we went camping up there twice overnight. That’s great because below the horizon you’ve got 360 degree views of stars. You’ve got be careful where you go to the bathroom because you might walk too far and you might fall of Clouds Rest. Anyway, I love mountaineering, and I am good at the whole process and I have got the art down of what you need to carry and don’t carry, and trail etiquette and trail safety. So many people—I’m going to say more than 200 people have gone with me on trips. Now let’s just turn to the Yosemite Association next. I decided to write a book about the Brewer party. That’s the California Geological Survey, and that was in existence from about 1860 and continued on into the 1870s. It was a predecessor to the United States Geological Survey [USGS], which did not then exist. William Brewer was the head of the ield party, and the famous Clarence King, who did go on to be the head of the irst USGS. There are several people there. I did a partial recreation of their 1864 expedition into the Sierra and hiked it myself, took photographs, and that got published by the Yosemite Association in about 1986. There were only about 500 copies of that. That was a good project, and that introduced me to the Yosemite Association, which then asked me to go on their board. The Yosemite Association was a statutory creature enacted by Congress. Each national park has a citizen group that acts as an advisory or auxiliary group to support that park, and that’s what the Yosemite Association had done since 1926 when it irst came into existence. They asked me to be on that board. It was a great group of people. We had meetings in the Ahwahnee, we had meetings always in Yosemite. The principal objectives were to sell books and raise money for the park and the projects for the park, and also to have seminar programs in the summer, mostly—some in the winter—where the seminar fees would go to the park. Now, this was not a million-dollar deal. I would say in a good year, if we came close to $1 million in revenue, that would be amazing. I would say more likely our revenues were in the $500,000 range. We would then decide on how to make grants to be used in Yosemite. WA: One of the turning points for me in that process came about 1989, and the turning point involved a decision by the superintendent of Yosemite to rescind the management plan of 1980—it was called the General Management Plan of 1980. It was an historic plan that called for the de-urbanization of Yosemite National Park. I actually remember being part of the public review process. Back in the seventies, I illed out my survey form; you members of the public, would you like to see this—it was a massive planning project, and it resulted in the 1980 General Management Plan, which did in fact call for the de-urbanization of Yosemite, which gradually was supposed to happen, but also in 1980, Ronald Reagan got elected and the park superintendent then, in 1980, before the election, was Bob Binnewies. Bob was replaced as the superintendent, so that administration put the plan on hold and did nothing with it, but it didn’t rescind it, either. Meanwhile, the Yosemite Park and Curry Company had a general manager whose name was Ed Hardy, and he was very much against the General Management Plan, and so he went to work—this is my speculation—went to work on getting the park to rescind that plan, because it would have cut into the business of the Yosemite Park and Curry Company. That succeeded, and the superintendent came out

seventeen • 177 with this reevaluation, reassessment, but basically was rescinding the GMP and saying they weren’t going to follow it anymore. I remember one of the statements, a very short statement, “Because of the greying of America,” it was now not practical to do away with automobiles in the park. You had to have automobiles in the park because of the greying of America. Right away, we knew that had the ingerprints of Ed Hardy on it, and the concession. So we at the Yosemite Association Board, were pretty upset. There was a guy named Steve Medley who was about my age, slightly younger, who was the president of the Yosemite Association. Really, they should name a mountain after him. He died in 2006. Back in the late eighties, he was a very important igure in Yosemite and knew a lot of people. He had been raised in het park. Steve was outraged about this. I was outraged. A number of us were. We passed a resolution criticizing, in a nice way, what the superintendent had done to rescind the General Management Plan of 1980. The park did not like that. The superintendent didn’t like it. They do not like criticism, and they came down pretty hard on us and said we can’t get involved in politics. We don’t have any First Amendment rights. We’re there to help the Park Service raise money and fund projects and we’re not there to criticize the Park Service. So we’ve got to stop that. We had some debates within the organization whether we should stop that, but the solution was the Yosemite Restoration Trust. Not Steve, but me and Ed Wayburn who wasn’t on the board of the YA, but Ed was a famous environmentalist who was then maybe almost ninety years old at that point, and a guy named George Frampton who I had gotten to know from my clerkship days. He was a clerk for Harry Blackmun. George was the head of the Wilderness Society then. The three of us formed something called the Yosemite Restoration Trust, and its main goal was to reinstate the General Man- agement Plan of 1980. We had a very nice board. I won’t name them all. Rhoda and Dick Goldman, wonderful, very civic-minded people. Dick was on our board and very supportive of what we were trying to do. Others were Joan Reiss, who was the regional director of the Wilderness Society. Frank Wells gave us $100,000. He was at Disney then. Frank Wells was great. We had an oice. We had a staf. We had a whole campaign to try to get the General Management Plan reinstated. Quite a number of people were upset as could be over the idea that you would go back to turning Yosemite into an urbanized park. Robert Redford came out and helped us do a movie. Dianne Feinstein came and gave a talk. Wallace Stegner came. We had some big names, and we succeeded. It came to the 100th anniversary of Yosemite as a national park, which I believe was 1990, although it seems like the celebration might have been in ’91. In any event, I believe it was 1990. The superintendent of the National Park Service, a guy named James Ridenour, came out from Washington and gave a nice talk at Yosemite. I was there in the meadow, listening, when he said—this was in Yosemite Valley—he admitted it. He said, “We were wrong to rescind the General Management Plan and I want to tell you that it’s back on track.” Now, this was a Republican administration, by the way. So we felt vindicated—the Yosemite Restora- tion Trust, I mean—so then the question for us became, let’s just disband, because we’ve accomplished our goal. It was a one-purpose deal. We had so much momentum going that a new event occurred that caused us to stay in existence for another two more years. Here was the very interesting new event. The concession lease was coming up after thirty years of it being the Yosemite Park and Curry Company, the park-wide concession that runs the Ahwahnee, all the hotels, all the eating, everything, was coming up for renewal. Under that thirty-year contract, the concessioner, the Yosemite Park and Curry Company, only gave one-half—it might have been one-quarter or it could have been one-half—of a percent of the revenue to the park, which was not much. Just one-half percent. It might even have been one-quarter, but I believe it was one-half. We said, we’ll give all the proits—not only that half a percent—we’ll give you all of our proits as well to the park. We said we’re going to bid on this , because it was coming up for renewal.

178 • seventeen We got our act going. We needed qualiied people who could actually run a concessionary. One of the people on our board had been the head of the American Youth Hostel Association. We had somebody else who was big on retail, she was maybe at Macy’s. We had all the bases covered. Then, of course, the staf would be the same, because the staf stays the same. It’s just the management that would change, and the inancial plan would change and we would give all the money back to the park. This is my opinion now. The Park Service expressed interest, but deep down I believe the Park Service was afraid of our proposal because they didn’t really want a gung-ho environmentalist group in there as their partner in the park. They did not want somebody who might criticize them, for example. They wanted somebody who would run the park, make money, be a good silent partner and follow instructions. That’s my political opinion, having lived through that era. But they didn’t say that in so many words and, in fact, when they put it out for bid, what the Park Service did was adopt some of our concepts. For example, one of the line items they ask you about was, “How much money will you give back to the park from your proits,” or, “Will you contribute to a capital improvement fund?” We said, of course we will. So that was a big change —in fact, I believe they made that a requirement. I believe it was ten million a year—ten million over some period of time. They made it a requirement to contribute that to the capital improvement fund for places like the Ahwahnee. We were going to do all of that. We were going to give all of the proits back to the park. Well, we were not going to be the only bidders. The Yosemite Park and Curry Company was going to bid. Others were going to bid. Then a huge deal happened, and that is that MCA, which owned the Yo- semite Park and Curry Company, so in other words, the parent company of the Yosemite Park and Curry Company, got bought out by Matsushita in Japan. Now, they didn’t even know that they were buying this thing in Yosemite, but they wanted the MCA. When it hit the press, the Secretary of the Interior, who was then Manuel Luhan from New Mexico, Manuel Luhan hit the roof. He said there is no way we’re going to have the crown jewel of the park system being run by foreigners. He was xenophobic, I guess. Anyway, he went ballistic over the idea, meaning Manuel Lujan, that the crown jewel of the national park system was going to devolve to Japan. So he let it be known he was not going to allow that. I’m not quite sure how he could have stopped it, but it didn’t matter. The Japanese were cool. They said, “Look, we don’t care. We’ll just spin that of. We just want MCA. Wedon’t want the crown jewel.” So they did. They spun it of. MCA spun of the Yosemite Park and Curry Company into kind of a temporary holding thing, and then the bidding went forward. We thought we were going to win. We said, how can anyone outbid us because we’re going to give all the proits to the park? We got disqualiied at the very end and they gave the contract to Delaware North. The basis on which we got disqualiied was so rinky-dink. I’ll tell you what it was. The re was a list of questions you had to qualify to answer. One of them was, “Will you be responsible for th e environmental cleanup?” For example, there is a garage in Yosemite Valley, and over the years, hundreds and hundreds of crank-case oils had been changed out there, and a lot of that probably leaked into the ground, so if you own that garage, as concessioner, you might have to clean it up under one of those environmental laws. Fine. We said yes, that we would, subject to the limits of our corporate liabilities, because we were bidding as a corporation. We didn’t call that the Yosemite Restoration Trust. We had an ailiate that had a full corporate status and was legitimately incorporated. It was Yosemite Services, I think. I can’t think of the name now. But that was our bidding entity. We had some money in it, but the biggest asset was we had a very nice line of credit with, I believe, the Bank of America. It was $30 million or something. It was a lot of money that one of our investment banking people had managed to line up. We thought we had the resources, but we were also going to be a corporation, just like the Yosemite Park and Curry Company was a corporation, and our inancial statement was qualifying. It had the correct amount of net assets. We just wanted to

seventeen • 179 remind them that, as a corporation, we would only be liable to the extent of our net assets. They disqualiied us for that reason. If we’d just said, “Yes,” it would have had t he same legal efect, but we were dumb enough to point out that we were a corporation. LM: You were being transparent. WA: We were being more transparent. Now, I believe that the NPS was so apoplectic over us possibly getting the contract that they were going to ind some reason t o disqualify us. Then we decided, we will sue if we can get a pro bono lawyer, and Pillsbury Madison decided they would represent us and they took it to court in Washington. I wasn’t at the hearing, but it was reported back to me that they had the hearing. The district judge then went to lunch with the opposing lawyer. Ca n you believe that? I wasn’t there. I’m just telling you what was reported to me. We lost that and we inally just said, “Look. We’re going to give up on it. Delaware North can have it.” Now, Delaware North did an okay job, in my opinion. They were better than the Yosemite Park and Curry Company, in my opinion. They are also the ones that at the end, when they got outbid by Arrow- mark more recently, they’re the ones who claimed that they own the trademark for the Ahwahnee and so forth. I guess the intrigue up at the Yosemite Valley never stops. It’s going on to this day. That’s the story of how we almost got the contract. We at least had some inluence over the form of the contract, the ten million dollar thing for the capital improvement fund. Once we lost that, we gave up, and we continued to have a few meetings for a year and a half, and then we just dissolved. The Yosemite Restoration Trust came and went in the span of less than ive years, but when we were in our heyday and we did succeed in getting the General Management Plan reinstated. It was an exciting time for me. I got to meet people like Wallace Stegner and got to be very good friends with Ed Wayburn, and that friendship with Ed continued many years thereafter, right up until he died. In fact, Ed helped me get this job as a judge. Ed was very helpful to me. Just one footnote on that. When Bill Clinton became president in ’93, he did, through Bruce Babbitt, who was the Secretary of the Interior, make progress on the—for example, they did take the gas station out of Yosemite Valley. There’s not a gas station there anymore. Several of the buildings were taken down. They did make progress on the General Management Plan during the Clinton years. I don’t think since then they’ve made much progress on implementing the GMP, but it’s still a document that is the guiding principle for the future of Yosemite Valley. So that’s the Yosemite Restoration Trust story. LM: They did change by ofering the shuttle that carries a lot of people in the high season. It goes up to Tu- olumne Meadows, and I think in the other parts of the year it’s maybe more Yosemite Valley. WA: Yes, that’s in the spirit of the GMP. But the original GMP had a much more ambitious plan to allow very few cars into the valley and to require you to park your cars places like El Portal, and then a shuttle system would take you in. But if you had a reservation to stay overnight, then you could still drive your car in. Ninety percent of the vehicle traic is day use in Yosemite Valley. Ten percent is for hotels and camps. It would be a huge improvement if they could divert the day use to parking lots. That’s where the greying of America thing comes in. They don’t want to do that because they feel that if people can’t have their own cars and have to get on a shuttle, they’re not going to do it. There are other places even in California, like the Devil’s Post Pile is a good example, where on the peak season after seven a.m., you can only get in by shuttle. If you want to go in with your own car, you’ve got to get in there before seven a.m. Those systems work, and they are practical, but the politics of Yosemite has been—there’s a lot of resistance to not letting you take your car up there. I’m as guilty as anyone. As long as they’re allowing it, I continue to take my car. I would be in favor of a shuttle system if they would ever get around to it.

180 • seventeen LM: I don’t know the year that Dick and Rhoda Goldman started the Goldman Environmental Prize. That is a prize I’ve read about over the years. WA: That started while I knew them. It was 1990. When Dick was still alive, I used to go to the annual awards ceremonies. They still give out the prize. He’s not alive and she’s not alive, but the foundation carries on. LM: There’s a long oral history with them at the Bancroft. WA: Good. There was something else on your list on Yosemite. Oh, Roosevelt Point. There are points on Yosemite Valley that are curiously named for people with no connection to Yosemite. One is Taft Point and one is Dewey Point. These were named back when Taft and Dewey were big headlines in American history, which was around the Spanish-American War, when Taft was president. No way Taft ever came to Yosemite, and no way Admiral Dewey, hero of the Battle of Manila Bay in the Spanish-American War, no way he ever came to Yosemite, but that’s the way we remembered those two, was to name prominent points overlooking Yosemite Valley, right there on the rim. They are great hikes, by the way. I’ve done both of them a lot. That’s background. Now going back to I believe it was 2005 or 2004, I was on a backcountry trip with my friend Steve Medley, who was the head of the Yosemite Association, as a reminder, and president. We had John Eastman, my lawyer friend, with us. We did the entire south rim—I think it’s the south rim—it went by Crocker Point and then we went by Dewey Point, we went by Taft Point, and then we camped one night along Sentinel Creek. There was a beautiful granite point there that was unnamed. In fact, the view from that point—it’s a smaller point, much smaller, say, than Taft Point—but it sticks out over the valley and it’s kind of a lat overlook, and the view there is actually nicer, especially of El Capitan, than it is from any of those other places. So Steve and I were there, and Steve had just written a wonderful article for the newsletter of the Yosemite Association on President Roosevelt coming out, I believe in 1906, to visit Yosemite Valley. Very few presidents have ever actually come as a sitting president to Yosemite. Obama did later. He was helicoptered in and stayed a brief time. President Teddy Roosevelt came out, and he wanted to meet John Muir, and all these bigwigs were down at the big hotel in the valley, waiting for Roo- sevelt to arrive, and Roosevelt was at the west end of the valley with John Muir, and they were just having a little talk, while these politicians were cooling their heels. Eventually on that trip, Roosevelt and Muir went of on a two-person pack trip, not far from the route that Steve, my friend and I had taken ourselves. Under the stars, Steve was recounting the story because he had just researched it all, and we realized that where we ourselves were camping that night on a beautiful summer evening, was very close, maybe half a mile away, from where Muir and Teddy Roosevelt had camped, where they braved a snowstorm and they slept in the snow that night. They did have a packer and a cook with them; a packer, a cook, they had horses. Pretty rugged stuf. We realized that here’s the i rst president who ever visited Yosemite, and he had that one-of-a-kind experience with John Muir, but nothing had been named for Teddy Roosevelt. We decided then and there that we would send in an application to have where we were that night, that unnamed place, named Roosevelt Point. And when we got back, I would put in the application myself, because Steve felt, being president of the Yosemite Association, he would not be allowed to be a sponsor, but it would be okay for me, in the write-up, to explain how this idea came about, and he would be very supportive, and he was. I got back to the oice. I worked it up. I did a little research. I ran it by Steve. Steve improved on my application, and then I submitted it to the Bureau of Geographic Names, which resides in the Department of the Interior in Washington. Now, a footnote. Getting any place named in the United States through the Bureau of Geographic Names is a slow, glacial process. It takes a long time. We knew this would take a long time. We did not think this would be done overnight or even within one year. It goes through a lot of vetting process, but,

seventeen • 181 you know, life is long. We could wait and see, and maybe someday it would come to fruition. So time goes on. In October 2006, Steve was killed in an auto accident going to work on Highway 140, right along the Merced River. A great tragedy, horrible thing. Our application remained there, languishing in the Bureau of Geographic Names. One day, in 2010 or 2011, I received a call from a couple of guys in Sacramento who were involved with the state version of the Department of the Interior, the state park system, I guess. I’m embarrassed right now; I can’t give you their names. But I have them somewhere in my emails. They were extremely enthusiastic over our proposal. He said he had read the proposal and it was great, and we’ve got to get behind this proposal. I said, “Why are you interested in it?” The Bureau of Geographic Names had contacted these various ancillary advisory groups, and he was on one of them, and he was enthusiastic about the idea for all the same reasons we had been. How could we overlook Teddy Roos- evelt all these years? So they got behind it. They came down and sat with me in chambers several times. I’m giving them a lot of credit because their enthusiasm convinced the people in Washington, as did the then Superintendent in Yosemite, who got behind the project, too. It then began to look like it was really going to happen, which surprised me, because I thought in my lifetime it would probably not happen. It began to look like it would happen—people actually had to go visit it on the ground, so I went back up there. One thing that came out of this was we discovered that the existing maps had Sentinel Creek on the wrong side of the point, and it was not just a few feet of. It was like ifty yards of. LM: Wow. WA: A big error. When the Park Service people had gone up there trying to ind what I was talking about, they couldn’t ind it. I said, “That’s so obvious. How can you miss it?” It was because the existing USGS maps showed the creek on the wrong side of the actual point. One of the small side beneits is that hope- fully the maps will get corrected in this process. The Department of the Interior, the Board of Geograph- ic Names —they adopted and oicially named Roosevelt Point. I don’t thin k it’s made its way onto any maps yet. That also takes a long time. I was just up there last summer, and there is no signage that says Roosevelt Point or anything like that. In due course, there will be, and it is a tribute to that president who took the time and trouble to go on a backcountry trip with the great John Muir very close to that point. It’s a good story, I think, and I’m proud of the small, tiny role that I had in bringing that into fruition. LM: It is a good story, and Teddy Roosevelt had the foresight to set aside land so that we would have national parks. WA: That’s true. He was big on conservation. Once I got this job as a judge, I resigned after a few months from the Yosemite Association. By that point, the Yosemite Restoration Trust was already defunct. I didn’t want to have any conlicts if I got a Yosemite-related case, so I went of of that board. LM: And you continue with your interest, taking friends in your personal time there. WA: Yes, just like an ordinary citizen, though. I go up there and when I show up to get my permit and stand in line like everybody else, they say, “Alsup” and I don’t say I’m a judge or anything. I am just one more backpacker with the gear, ready to go into the backcountry. That’s my connection now with the park. LM: I’m glad you told the story. Shall we end for today? WA: Yes, let’s end there.

182 • seventeen eighteen

Planning to win a case “Rule of Convenience” and adverse witnesses Sitting by designation on the Federal Circuit and our Court of Appeals Three moving parts: the record, the standard, relief Select major cases: MS-13; No Fly List; Oracle v. Google, San Francisco School desegregation Judge William Orrick

LM: Today is April 26th, 2017, with Judge Alsup, and we’re going to talk about some of the things on the outline that related to your time in practice, but as well to your role as a federal judge. WA: Road map to victory. This is a phrase that I came up with pretty early on in law practice, I would say in about my second or third or fourth year. The idea was I inally igured out what we would do when we got a case: the client would come in the door; the partner would get the case; I would get called in, and then my job was to research the law, igure out what thefacts were, and then come up with a plan for how we were going to approach the case. In due course, I decided that was called the road map to victory, which basically means, what is the end game going to be? Where are you going to wind up in this case? Is there a way to win it? Usually, I thought there was a way to w in it. I would say, “Here are the facts that we have got to prove in order to win it. Here is the law.” The idea would be to have what the probable facts were, maybe a backup line of attack. Anyway, it was called the road map to victory. The reason I bring this up is I think young people today in law irms are not even taught this anymore. What they think of is: irst, we’re in the motion to dismiss phase. When they lose those motions, they say, now we’re in the discovery phase, and they go through document productions and get people to come in to review the documents on the computer, and that costs millions of dollars for the client, and then they go to the summary judgment phase and they lose that, and then they’re at the trial and then they settle. I think we already covered this. Another lesson was what I call the rule of convenience, namely, that an adverse witness, when you are planning your case, you must assume that the adverse witnesses on the other side will say what they’ve got to say, whether it’s true or not. It might be true. Might not be true. They have got to say what is convenient to win the case for them as opposed to what is actually necessarily true. I would be planning for the deposition, and I would ask myself, if I was on the other side, what would I want the facts to be in order to win, from their point of view? For example, they’re going to want to say that the notice letter didn’t come in until after the fact. Sure enough, you’d get into the deposition, and that’s what they would say, even though it might not be true, because it was convenient to their side. I call this the rule of convenience, that when you’re dealing with adverse witnesses, you can expect them to say what is convenient to their case, not necessarily what is true. It may be true, but it also may not be true, and you, a good lawyer, will igure out the diference between those two situations and investigate until you know. You would not want to go into a deposition and be surprised that some witness said something that you felt was just false, and then you had no way to disprove it because you were naïve. No. You go into the deposition saying, he’s going to want to say X, Y, and Z, and I believe Y and Z are totally untrue and I’m going to be able to blow that

eighteen • 183 out of the water with the following materials. That’s the rule of convenience. Those two simple concepts got me a long way in private practice. LM: Now, is it possible, or what are the ways if it is possible, to teach some of that. Some of that is hard work, being willing to do the hard work, to be prepared, like in the deposition. In both cases, the road map to victory and rule of convenience. In terms of teaching that mindset, you mentioned that the partners in charge of the big cases have that mindset, perhaps, but it’s the younger lawyers who maybe aren’t being taught that. WA: I think I give myself an A on that, because when I was in practice, I think the younger people who worked with me learned those lessons. I made sure I taught them those lessons. I would send somebody of to do a deposition, I would talk with them about planning how to preparefor it, and they would learn about the rule of convenience or, at the outset of the case as we were learning the facts, I would say, what is our road map to victory? I would explain to them—you’ve got to tell me what the law is. Tell me what you think the facts are going to be, what we can prove. I thought I did a good job of training the next group of people who were working with me on the case. LM: I didn’t mean to suggest that I didn’t think you weren’t. I was just thinking generally. WA: What happens in the big irms today is a young lawyer who’s in their early thirties goes in and they get assigned to work on the documents, and they have to produce the documents. They are not brought into the bigger picture of how we’re going to win this case. They are compartmentalized. Maybe there’s a number-two person higher up the chain who is very busy trying to pull it all together doing a road map to victory. These younger people are not learning that in the big irms today, in my opinion. They may be assigned to write the motion to dismiss. To say they didn’t plead fraud with enough particularity. Maybe they get a chance to re-plead. Most likely, the case is not going to be thrown out on a motion to dismiss, and so what’s the long-term game plan? I think these young people are not being asked that question. I am being a little cynical here, but I hear what’s going on in these big irms, and I believe that what I’m telling you is more true than not. LM: In terms of the diferent parts of the bar, are there things general or speciic that you notice about the lawyers who appear before you? Diferent specialties? WA: The criminal lawyers are usually the most honest, and usually better prepared to get right at the facts that matter with a minimum of wasted time. I did not deal too much with the criminal bar as a lawyer, so I have learned all of this on the job as a judge. I have a pretty high regard for the criminal bar that practices in our court. I think they get right to the point. They are good at cross-examining people, doing it on the ly—you ask them a question, they give you a straight answer. Sometimes they’ll even admit things against their interest, but they know they might as well fess up on that point because they’ve got some other point to make. So I think the criminal bar has been pretty honest. On the civil side, the civil lawyers are rarely lying, but they can mislead. There’s a diference. Every- thing they tell me is usually the truth, literally the truth. It’s what they leave out that would make a diference in how you interpret those facts that is misleading. It doesn’t happen in every case. I don’t mean that at all. I would say in about one-third of the hearings, this is a problem. That’s a pretty high percentage where I have to carefully listen to what they’re saying and use my own sense of what they’re leaving out to pick up on what they’re not telling me. I have gotten pretty good at that now, but nevertheless, on the criminal side you wouldn’t have to worry about that. They’re pretty forthright on the criminal side. On the civil side, I think there are a large number of lawyers who are pretty good about just being straight-up honest —if I ask them a question, they give me a full, unvarnished truth, even if it hurts them. You still have that kind of excellent lawyer, and some of those are the best lawyers, because even though they’re

184 • eighteen telling me something now that hurts their case, they have a longer-range plan to win the case on some other ground. They’re so able, they’re so well-prepared, that they know they can admit some of the things that hurt them. To come back to the other group of lawyers, some lawyers are just unwilling to—they want to put the absolute best spin on everything, even the worst facts of the case, so that they don’t tell me everything. They just tell me things that are literally true but that are misleading because they don’t give you the surrounding facts. It is misleading. I want to make it very clear, on the civil side we still have some outstanding lawyers who win fair and square without ever even doing misleading of any type. It’s just because they are so able, and they are very generous to their opponents. They never mislead their opponents. They stand by their word. They’re good lawyers. And the reason they’re that good—they’re so good they can aford to be generous to their opponents. LM: That’s really interesting. WA: Next question. LM: Bench trials versus jury trials. WA: I have come to have a huge appreciation for juries. I think they almost always get it right. And I see the sacriice they make in case after case, but it’s not just a sacriice. It is the efort they put in to the case to try to get it right. They listen carefully to the instructions. I think they actually obey things like don’t go on the internet and look up things on Google. I will say, to toot my own horn a little bit, I believe some of that is due to the judge. If they see the judge up there in a trial working hard to be fair to everyone, then they want to be fair to everyone, too. Also, I make sure that we have hot cofee every morning, early, good federal donuts early, and I treat them very nicely and make sure that we never waste their time. No long sidebars. No sending them out while they cool their heels while the lawyers drone on about some dumb motion in limine. No. The lawyers are going to do that after they leave the jury for the day, or early. That’s why the lawyers have to get there early in the morning so that we don’t waste the jury’s time on those things. So the jury picks up on all of that. I think they do a great job. I think in more than a hundred verdicts, there’s been one or two that I probably would not have gone the same way, but it was a close enough call that I could understand why they did. Most of the time, I agree with the verdicts. I would say they almost always get it right. It’s an amazingly good system. Now, if the lawyers want a bench trial, and some of them do, then that’s ine, but it’s a diferent project altogether. Then I have to listen more carefully. I do listen to the evidence, anyway. I really have to put it together in a more comprehensive way than if I am running a jury trial, where I’m listening to questions, answers, making sure that it all goes in right, the documents go in right, but ultimately I know it’s up to the jury. All I’ve got to do is make sure that the process getting there is right. When I actually have to decide it, then I make more notes, for example. That’s one thing I do. I make more notes on what the substance of the case is. The advantage of a bench trial is that it saves the resources of the jury. In other words, the jury doesn’t have to come in from all over the district every day to hear the evidence, and I respect the people who do that so much. I hate to put that burden on them. If the lawyers want a bench trial, I’m okay with that. The truth is, I prefer a jury trial. I think that’s the American way, have a jury out there, and my job is to run a trial that is fair to the jury in the sense that we don’t waste their time, fair to the lawyers, give them good instructions, good rulings. Trials are the heart of the system, though. It’s the hardest part, but it’s also the part I enjoy the most, is the trials. LM: If you think back on yourself as a boy in Mississippi and someone were to tell you at that point in time that this is where you would be, what do you think your reaction would be? WA: I would have laughed them out of the room. In fact, I remember a moment when I was in high school. This would have been the early sixties, maybe ’62 or something like that. My good friend then was

eighteen • 185 Ron Goodbread. I think I’ve talked about Ron. He and I would laugh and slap each other on the back about where life would lead us. At one point, we fantasized about doing a car trip to California. I think we barely had our driver’s licenses at that point. It was so laughable to think that we would ever go to Cali- fornia that we just laughed it of as we might as well be going to the moon. I remember that conversation. I remember that time, and how ridiculous it felt that we would even entertain that idea. The idea that I would wind up in California when I was a kid was impossible, in my view.The irst time I ever entertained the idea that I might work outside Mississippi was in college. It was when I got to my sophomore year. What am I going to do with my life? One of the possibilities was to bean engineer and work for one of the regional companies, maybe in Atlanta or Birmingham. That was the irst time I ever thought that maybe I would wind up outside Mississippi, was in one of the other regionaltates s in the South. The irst time I ever thought I might end up further away than that was when I decided in my last year to go to law school outside of Mississippi. Who knows where that would lead? It was a long time coming before I thought I would ever even get out of Mississippi. LM: One of your law clerks who I met with in Palo Alto, Adam Eltoukhy, mentioned when you sat by designation on the appellate court and sitting on the Court of Appeals for the Federal Circuit, in 2007 when he was your clerk. He raised that as something he was interested in having you talk about. WA: I have done it both for the Ninth Circuit Court of Appeals as well as the Federal Circuit, and I haven’t done it very often. I’ll explain why in a minute. Let’s focus on the Federal Circuit one for a moment. They were so wonderful, the judges there, and the staf. I’ll give you one example. This will just blow you away. Adam went, Kathy went, my secretary, and I went, because you could take two people. We walked from the hotel—I think it was the Maylower. We walked from there to the Federal Circuit building, the Dolley Madison house, which is right there by Lafayette Square, looking across to the White House. It is a beautiful location. We get to the corner. We’ve got to cross the street and we’re waiting for the light to change so we could walk across it. On the other side of the street stood my friend Bill Bryson, who’s a judge on the Federal Circuit. He’s standing there to gre et us. Can you believe this? He’s standing out there waiting for us. He didn’t even know when we were going to show up. He’s out there standing there to greet us, and along with him was the clerk of the court, whose name I’ll think of in a minute. Of course I know Bill. We go over there and shake their hands and they help us carry in the big boxes of the iles and records that we’d brought with us. I’ll never forget t he courtesy that they showed us in waiting for us. We could have been another twenty minutes. They would have been standing out there another twenty minutes. I don’t know how long they were there. I was very impressed with that generosity of spirit that they showed. Well, that was just the start. Then the judges asked me to come to their lunch room. We had lunch with all the judges that day in their lunch room. The judges on the panels that I was on were exceedingly considerate to me, and in fact one of them wound up hiring Adam as a law clerk, that was Judge Rader. Judge Rader was on the panel. He met Adam, who made a good impression on him, so he hired him for the next year. I just felt that no court, including our own court here, could have been as courteous and outgoing as the judges were on that occasion. That was a very positive experience for me. I don’t remember a thing about the cases that I sat on. LM: About how long would you have been back there, do you think? WA: I think it was for two days of hearings. We were there about three nights. Switching to our own court of appeals here, I have sat by designation about three times on our court of appeals. And no one stands out front waiting for you to show up. They don’t do that at the Ninth Circuit. But they have been pretty nice to me, the individual judges that I’ve sat with. To me, the only reason to do it is to help them out with

186 • eighteen their caseload. I don’t think they really need it. I think the way I can help them the most is being busy on my own cases and doing a better job so they don’t need to reverse me for some mistake. There’s another reason, and that is that the judges up there have to develop law. They develop the law of our circuit, and it is binding law, and I always felt uncomfortable whenever I was on one of those panels, that we were about to adopt—here I was, about to vote on some decision that would afect the entire circuit, and I wasn’t a circuit judge. I was just sitting by designation. I think it’s an important responsibility that they have, developing what the statute of limitations means, or some statute means, really should fall to people who are circuit judges, and not people who are sitting by designation all the time. So philosophically, I’m not so keen on the idea that a district judge like me would be up there making laws. Now, if I was a circuit judge, I guess that would be my job and I would be okay with it. As between the two jobs, the district judge job is the one I am more suited to. I don’t like the idea that I’ve got to get somebody to agree with me. I want to run my own courtroom, my own trials, my own hearings, make my own mistakes. They can ix it if I make a mistake. Also, even more importantly, I like the give and take of the r eal cross-examination, blood on the loor, so to speak, of the trial court, whereas up at the appellate court, it’s a lot of brief reading and record reading, briefs and records, and not nearly as much give and take.The oral arguments, I think, are ifteen minutes when they do have an oral argument. My typical oral arguments here, at least on an important case, might be an hour, sometimes longer. I just had a hearing today that was an hour long on what I would say is not an important case. Nevertheless, it took me about na hour to try to igure out what the issues were in dealing with the lawyers. So, ifteen minutes isnot much. The vast majority of what they do at the appellate level is on a cold record. I am a better learner listening. I am a good listener, and when people are testifying or talking to me over the lectern, I’m actually paying close attention, and plus I can ask questions if I don’t understand. I get to clarify. It’s harder to do that reading briefs. I do read briefs here, by the way, in this job, and some of the better briefs are a joy to read. We also get a lot of poorly written briefs that wind up not being so much fun to read. I don’t read them all, anyway, I would have to confess. In the important cases, I usually do read everything. LM: The ones that are well written, I guess we all know what good writing is like. WA: They’re a joy to read and they come right to the point. They’re succinct, good, unqualiied, categorical statements. Not a bunch of mealy-mouthed conditional or argumentative things; good, punchy, unqualiied statements, categorical statements, and right on point. Those are the good briefs that are a joy to read. They help me, too. They help me understand the case. LM: We have talked over time at diferent points—and I’m going to just put this out there even though it’s not articulate on my part—but the diferent types of strategies and evidentiary rules and remedies—I think of it as this general—because I’m not well-versed in it, maybe—category of ways that you implement your ideas about how the process can be done eiciently and fairly. I think of it as, given that you were working on logic problems and math at a very young age, as sort of a thread of the way you think about strategy. Maybe that’s just my imagination, because I don’t have real familiarity with what goes on in the federal court. I’m just wondering about, when you think about the ways you think creatively about cases so that the process is as fair as possible. Or am I just rambling? WA: Well, there is more to it. LM: Well, I know there’s more to it, sorry. WA: In our conversations, it’ll have to be things that pop out as we go along. I tried to cover the main points. I’ll give you one construct that I try to tell my law clerks and my externs, and that is this. It’s the idea of a record, and then what does the record—this question is key—does the record supplied on this

eighteen • 187 motion—let’s say it’s a motion—warrant the relief that is being sought by the party that’s moving? To put it diferently, let’s say it’s a motion for a preliminary injunction. Does the record supplied on that motion warrant that relief under whatever the proper standard of law is? You’ve got three things going on that are moving parts. One is the record. One is, what is the standard that governs. And the party that is seeking relief, the moving party, what actually are they asking for. You may decide that the record only warrants half of the relief, or some limited relief but not what they’re asking for. Always the question is: This record, this motion, what isthe proper standard? You’d be amazed at how many, especially people coming out of law school, think I’m going to go in there and they’re going to help me with an order. They think that all we do is, we’re going to decide what we think is fair, and that we, meaning the law clerk, is just going to come out on the plaintif side or the defense side, whatever happens to be what they think fair in that case. No. It’s not the way it works. You have a standard that you’ve got to meet, and the party asking for relief has got to meet that standard and supply a record to justify the relief. Now, I will also say it usually has to be a sworn record, meaning under oath. There are a few times when you can make exceptions, like something under judicial notice or whatever. Mostly it’s a sworn record, so it’s record, standard, what is it that you’re asking for, all these moving parts. If you just get that one concept. This even applies to trial. Does the trial record—you say to the jury, there’s a party here with a burden of proof. Sometimes both sides have it. One may have a burden of proof on the defense, and the other side, the plaintif, may have the burden of pr oof on the main issue. But you say to the jury—I say this a lot—you look at this record, and if the plaint if has proven 51 percent or more what they’ve got to prove—and here are the four elements—if they have proven that by 51percent or more on this record, then you’ve got to rule for the plaintif. If they haven’t proven it by 51percent, then you’ve got to rule for the defendant. It’s not a question of what is fair. I don’t put it quite like that. I put it clearly in terms of record plus standard equals outcome. It either measures up or it doesn’t measure up. Same thing is true on the defense. That is the system, and it’s a good system, so you don’t have to worry about oh, wringing your hands and saying, what is fair, what am I going to do that’s fair? No, you have a standard of proof. I actually think it helps the juries a lot to put it that way. If you think about it, that is exactly what we have, and so I drill that home to my troops. LM: I appreciate it that you break it down for me. It’s very helpful for me to hear that, not just for me. For our project. WA: All right. Next question. LM: There are so many cases. The San Francisco School District consent decree. It lasted more than twenty-ive years, if I have that right. WA: I’ve had so many cases, it’s hard to pick. I’ll give you the names of the ones that come to mind immediately as sort of the big ticket item cases. One would be the No-Fly List case. One would be Google and Oracle. One would be the one I’m in right now, Waymo v. Uber on the self-driving cars. On the criminal side, I think far and away the one I will go my grave remembering is the MS-13 case. Let’s talk about that one just for a second. MS-13 is an El Salvadoran gang, and they have a big presence in the United States, especially in Cali- fornia. Starting I believe in 2009 or 2008, the government indicted thirty-four—had a major takedown, and it was a RICO-type conspiracy case. At the end of the day they decided not to go for the death penalty. There were eight homicides charged in the case, meaning as part of the RICO enterprise. These were real homicides right here in San Francisco where people were killed on the streets in horrible ways. There was quite a lot of motion practice, and at the time, I think it’s still probably true, it became the single-largest docket ile in the history of our court. It went lla the way back to year 1850-something. I think there has been one civil case now that Sue Illston had, an MDL antitrust case that had more ilings

188 • eighteen in it, but that would be the only exception. At the time, MS-13 was the single-largest number of ilings. It was a huge thing. I was able, about one-quarter way through it, I was just dying, and my law clerk was dying, so I got some money from the circuit to hire Gina Moon, who turned out to be one of my great law clerks. She was especially assigned only to this one case, and thank God for her, because she really saved me and was able to help me keep up with the case. That was all she worked on was this, for twenty-two months. We wound up with four trials. There were so many defendants I had to split the case up into diferent group- ings. Most people did plead guilty, but there were twelve, fourteen people who went to trial, but it was in four groups—two got acquitted and everyone else got convicted of something, and now it’s still up on appeal in the Court of Appeals. One of the trials was six and a half months long, and that one was particularly hard because the lawyers were so mean toward each other, and accusatorial toward each other. I told them one day, it was like every day I went in—it was in the secure courtroom, by the way, one where the defendants are chained to the loor but the jury can’t see that. It’s like Judgment at Nuremburg, it’s a courtroom down on loor seventeen. That one had seven defendants, a nd the lawyers in that case on the defense side could not get along with the three government prosecutors, and they were constantly accusing each other of things. Every morning at 7:30, I’d show up and it was like walking into a blast furnace, it was so hostile. There were times I thought I would never get through that case, and I would just collapse from all the pressure. At the end of it, when we inally got t he jury verdict, I was giving Dawn Logan, my courtroom deputy, a ride home. She lives near me. About half the trip home, we didn’t say anything because we were both so tired. Finally I said to her, “Dawn, after this, we can do anything.” That’s really true, because once you go through some horrendous case like that, that was so long, so hard-fought, so full of potential errors, you really can do anything; everything else is easy by comparison. I have said that that case took a couple of years of the end of my life, and I still believe that’s true. It was a hard, hard thing. That’s really the standout case on the criminal side for me. On the civil side, I can’t really point to a single case like the MS-13 case that I will always remember, but there are some that stand out. One is the No-Fly List case, and that one is too long to go into, but basically involved the due process of what happens when somebody gets put on a list and they’re not allowed to ly, and how do you get of the list and what is that procedure. Ag ain, it goes to what is fair procedure. I eventually wound up holding that the government had denied this woman due process, which they had. I had originally ruled for the government on a legal issue, saying that someone who is an alien and had voluntarily left the country no longer had standing to a certain constitutional right, but the Ninth Circuit, two to one, disagreed with me on that, and they never took it to the Supreme Court. That’s an interesting legal question that my view might still be upheld, but my good friend Willie Fletcher reversed me, bless his heart, and I call it the Stanford exception, because this particular plaintif was a visiting professor at Stanford. LM: She’s from Malaysia, I think. WA: Yes, I think she was. Ms. Ibraham. I’m sure she’s a very wonderful person. But she voluntarily left to go back to Malaysia and was there. Then she wanted to come back, and I thought if we let her do this we can let anybody who’s an alien abroad, could be living in a cave in Afghanistan and they could bring a lawsuit in our court to declare something and I don’t know if we want to go that far. They avoided that problem of what I call the Stanford exception by saying that if you are a professor at Stanford, you have special rights. I’m being a little cynical here. I then picked the case back up and went on to ind on the facts of her case that indeed she had been denied due process. I found that to be a very interesting case. Another one is the Oracle v. Google case, the copyright case on APIs. I got reversed on round one. There are a lot of people out there, commentators and professors who think I was right, but the Federal Circuit

eighteen • 189 thought I was wrong, so they sent it back down. On the second go round, which was a year and a half ago, the jury found again for Google, and this time on a diferent point, on fair use under the Copyright Act. That’s now back up on appeal with the Federal Circuit, and who knows how that’ll come out. I hope that that original issue on copyrightability goes to the Supreme Court. It’s the same issue they had in the Borland case in 1996, that they went 4-4, so they didn’t decide it. This would give them a chance to decide that issue, and I hope the Supreme Court takes it on the original copyrightability point. My engineering background helped a lot in that case. LM: There was a lot of press about you in that case, the judge who learned Java. WA: I did understand it, but I want to say that some of the press about my ability to program at least in Java—now, I am a good programmer when it comes to a language called QuickBASIC. I’m very good at that. Sometime, I’ll show you some of the programs that I’ve written. I only learned enough Java for that one case. I could not say I was a Java programmer. The press somehow began to say that I had learned Java. Pretty soon, I was an expert programmer in the press, which is not true, at least not a Java programmer. One day I told the guy from Wired magazine. I gave him an interview and I said, “Please correct this,” and I explained the real truth, but it never got out there. I am stuck with this label of being an expert Java programmer. I did learn enough of it and the structure of the language to know what the right answer was in that case, and I’m convinced that someday I will be vindicated on my initial ruling. I could go through a hundred cases and I think it’s too many. So let’s move to a new topic. LM: Okay. WA: One of the cases that I inherited from Judge Orrick when he went of the bench was the San Fran- cisco school desegregation case that went back twenty-ive years before I got it. This is the irst Judge Or- rick—it was a big record and it took a long time to inally come up to speed. Originally, that lawsuit did a lot of good. It did do a desegregation of the San Francisco schools. Sometime after the lawsuit started, I think in the eighties, the Supreme Court ruled that you could not use airmative busing, or airmatively assign people based on race in order to achieve racial balance. For example, you couldn’t say we want to have this school be more Black, so we’re going to send these people over here and we’re going to make them go to that school in order to balance it out. They said, no, you can’t use race—you’ve got to use other factors. I’ve forgotten what the name of that decision was, but in any event, that caused Judge Orrick to change the consent decree so that they could no longer use race as a factor in school assignments. It didn’t take too long before that led to a new system where it was re-segregated, and they were back to the original problem of segregated schools. It went along like that for several years of really doing no good, and then Judge Orrick left the bench and then I got the case. I continued it on because I didn’t know any better and I wasn’t deeply enough into it—for about two years. It turned out that they had stipulated to an end date for the consent decree, both sides. This was before I even got the case. They had stipulated to an end date. I think they wanted to extend it maybe one more year and I went along with it. There was a deadline, a point by which the consent decree was going to evaporate. I believe it was the plaintif who wanted to get out from underneath that and wanted to extend the consent decree. I needed to then look and see, were we actually doing any good? By this point, I had igured out what was really going on. We were doing nothing to help desegregate the schools. That consent decree, because of the Supreme Court decision and because of the amend- ments that had already been made, we were doing nothing on that front. Desegregation was going nowhere, and it had been re-segregated in a horrible way, and it was an embarrassment. What was going on was something entirely diferent. What was going on was that t he school district decided they could use the federal consent decree to get things past the union, get me to approve it, then the other side would get something out of it too, not just attorneys’ fees. They did get a lot of attorneys’ fees, but they would get

190 • eighteen some substantive thing out of it for their class. For example, they wanted to have special programs that would beneit poor kids or maybe after-school events. The teachersmight not like that; the union might not like that, but if the federal judge ordered it, they didn’t have any choice. They had to do it. I had un- wittingly gone along with some of these things. It seemed like good programs to me, so I always signed of on those. When it came time to—are we going to end this consent decree—I really had to have a heart to heart discussion with myself on what good is this thing doing anyway. It’s no longer doing anything on the race front. It’s not doing anything on desegregation. It is just being used as a way around the union—is that what the consent decree ought to be used for? They had already stipulated that it would end, and it was just going to end on its own at a certain point. The plaintif wanted me to extend that notwithstanding the stipulat ion. There’s a whole body—when you stipulate to something, you can’t just get out of it. It’s a pretty tough standard to override that stipulation. I decided in the end I was not going to extend it any longer, and I wrote a very long decision re-tracing the history of the case. It was really a tribute to Judge Orrick because he had accomplished something worthwhile in the case up until the Supreme Court decision, and I wanted that to be laid out for the beneit of history, and I gave him credit for all of that. I didn’t take any of th e credit. I ended the case, but I wanted it to end on that positive note, to give some recognition to the people who deserved it. The only time in all my time on the bench that I have ever written to West Publishing—I said, “I have an order I want you to publish.” It was that one because I wanted that one to be in the federal supplement for the beneit of Judge Orrick and the work that he had put into it. That’s in there somewhere, explaining the good work that he had done on the desegregation front, and then explaining how the numbers had gone bad afterwards and the consent decree wasn’t doing good, and it wasn’t Judge Orrick’s fault. It was really the fault of the Supreme Court’s change in jurisprudence and that the consent decree had turned into something that had nothing to do with race anymore; it had to do with getting around the union. I don’t know if I said it that bluntly. So that’s the school desegregation case. So it came to an end and it did. In a way, you think about it for a second. Here we are in San Francisco, one of the most enlightened places in the world, right? If you think there would be a place where there would be harmony among the races and the school board can be counted on to do the right thing, it’s San Francisco. I said, “It’s time for a federal judge to get out of this picture. You people can do this better than I can, run your schools. Go run your schools in a proper way.” This is not Mississippi. This is San Francisco. LM: It’s really interesting, all the points it touches on and the way you left the record about Judge Orrick. WA: I admired him a great deal. One of the pictures I have up here of Judge Orrick—I’ll show you. I’ve got Thelton Henderson here. I’ve got Judge Orrick here. I think these are the only two judges that I have up here. I went down to see Judge Orrick before he retired and said—that’s his signature by the way—I said, “I want to take your picture.” So he posed for that. LM: Judge Orrick grew up in the East Bay, right? And lived in Berkeley? WA: Yes, he went to Cal. I think he’s buried over there in the Mountain View Cemetery. LM: It was a real Oakland-Berkeley family from back a few generations, I think. WA: I’m not sure. I thought he lived in San Francisco for at least the later part of his life. He was Cali- fornia all the way. Born in California. LM: Right. Horseback. WA: He loved the Sierra. Judge Orrick did a nice thing for me, right after I came on the bench, maybe in year two or three. He invited me out to his place at Stinson Beach because he wanted me to meet some of his Sierra buddies, who were all even older than he was. And it was a joy to do this. I went out there

eighteen • 191 and I was by far the youngest person in the room. His friends wanted to meet the guy who had written Missing in the Minarets, because they had known some of the characters involved, like Norman Clyde. One of them was Ike Livermore. Ike Livermore was one of the friends. He’s passed away. I think everyone in that room has now passed away. They were so wonderful to me. They loved the story. They read the story. They wanted to meet me. Judge Orrick was especially nice to me. All the judges were, really, but he and Thelton Henderson and Judge Patel, those three just went out of their way to welcome me here. LM: Should we end for today? WA: Yes, let’s end for today.

192 • eighteen nineteen

The Alsup Family: Suzan, Allison and John Katherine Young Hound Dog, Sandy and Jack Photography: parallels with professional work Writing projects, including memoir of growing up in Mississippi; reading the Warren Commission Report Backpacker Fraud “As a concession to the shortness of life” Conclusion

LM: Today is August 2nd, 2017, with Judge Alsup, and we are going to start today talking about Kath- erine Young and also about family. WA: Let’s start with family. My wife and I met in 1967 in Cleveland, Ohio. I think I’ve gone over some of that. To make it very brief, she was from UCLA and I was from Mississippi State, just having graduated. We became national oicers of the student YMCA program, and that led to a courtship at the expense of the student YMCA, because we had almost monthly meetings monthly—not quite—in mid-continent places like Chicago and Saint Louis. I was at Harvard Law School at the time, having already graduated from MSU. She helped me get a job in the summer in Beverly Hills while she was at UCLA, and we stayed together then and at the end of the summer, got married. Next year will be our 50th. I ind it hard to believe that anybody could stay married to me for ifty years,but there we are. We’ve had two kids. Al- lison is our elder. She just came in last night from New Orleans, where she lives, and she’s visiting with us for a week. She’s a delightful person and a lot of fun—always has been. She was born in Jackson, and was a baby when we were inishing up at Harvard Law School and the Kennedy School. Allison is a writer and a real estate mogul in New Orleans. She loves real estate and she loves writing, those two things. She teaches writing and is one of the founders of something called the New Orleans Writers’ Project. She won one of the 2014 O. Henry Short Story prizes, and that’s something that you don’t try for. They just search you out, ind good work, and then they give you the award. So in the book for 2014, her story is in there. It’s a story about a block party on a street kind of like the one she grew up on. Our son is a lot younger than Allison. He was born ifteen years later in Oakland. Allison was born in Jackson, Mississippi. John was born in Oakland. He went through the French-American school system in the Bay Area, then went to Clark College, returned to the Bay Area to become a legal assistant and then got a job with the State Department in the Diplomatic Security Service. He is now stationed in Sarajevo, in Bosnia. He loves the job. He got this job, by the way, all on his own. Dad did not help him. Dad did not call up anybody. It’s John’s dream job, and he loves it. And he’s just had his second son, so I am now a grandfather twice. LM: What are the two boys’ names? WA: Harley, named for my wife’s dad, and Wyatt William—William I guess is me, but he will go by the name Wyatt, is number two. Going back to Suzan, her career at irst asw raising these kids, but when she got to a point where she could do it, she got her teaching credential in addition to her UCLA history degree and

nineteen • 193 was an Oakland public school teacher for I’m going to say ten or twelve years, and then she retired maybe seven or eight years ago, and is now enjoying her retirement. Now, Kathy came to work for me on May 10, 1985, when I was at Morrison & Foerster. She was actually supposed to interview for somebody else, and somehow they steered her over to me and we got along ine, so she accepted the job. She is ever-loyal to me, and I ha ve been very blessed by that. One of her monumentally strong qualities is the ability to turn out a perfect brief fast, I mean twice as fast as you would think anyone could do it. She can take my notes or the dictation and turn out something that looks just so perfect. That’s one of the things, for example, that she also does here on the orders; she will take a law clerk’s order that looks pretty good to me and ind typos and formatting errors, and make it look even better. She knows all of the little tricks. So that’s one of her many strengths, in addition to being my memory bank. She has a memory like an elephant and can remember why I’m supposed to dislike somebody that I had totally forgotten I was supposed to dislike. I’m laughing as I say that. Her memory of long-ago events is very strong. I’ve been very lucky Kathy Young has been my assistant all these years. So that’s the family. Next question. LM: You’ve always had dogs, I take it? WA: No, not really. I would say mostly yes. My childhood, we had a collie named Hound Dog. LM: You told the story about your father making— WA: Okay. This dog was great. This dog was so smart, and he was my best pal, a registered collie just like Lassie on TV, and lived thirteen years. He had a good life. He died when I was in high school. From then on until many years later, we really didn’t have dogs. There was a small exception; I won’t go into that one. Sandy was the irst dog that became part of the family, nda that was about 1998. And Sandy was a rescue dog, looked like a yellow lab but you could see there was something else in there too, and was the sweetest thing. She never barked at any other dog. So well-behaved around other dogs, but she would bark if somebody came to the front door. I think she just enjoyed announcing that somebody’s there. And that dog was loyal as could be to me. Used to go to the ranch and would walk around with me. If it was cold, she would ind a sunny spot. If it was hot, she would ind a shady spot, and just watch me as I did work outdoors. She died and I have to say it was one of the—I cried so much. You get to a point where you know the dog is trying to tell you it’s time to go. She couldn’t even walk anymore. Every now and again she would

Hound Dog 194 • nineteen Kathy Young at my desk at 425 Market Oice, 1998 try to stand up. If I helped her she could stand up and maybe drag her back feet a few feet and then collapse again. We all agreed it was time, and so I felt it was my duty to the family to do it by myself and not to encumber my son or anyone else. I had been digging the grave at the ranch. This was rocky ground, too—it took me three trips to get a nice grave that was suitable for my dog. I called up the veterinarian up there who really specialized in horses. This woman was excellent. I explained what I wanted to do; she said, okay. She came over on the day in question. It was just me, the dog and her, and I held Sandy while she applied the stuf that eventually would put her to sleep. I crie d like a baby all while that was happening. Part of it was that the dog had trusted me, was so faithful, and trusted me so much, that I felt like I was betraying her in sending her of to her death. I hated saying goodbye and I hated—but I also felt it was my duty to do that. After Sandy was gone, I wrapped her up and took her to the grave and buried her, and then I covered all that in heavy stones so that animals could not dig it up. I left a little statement about her in a metal container, right there under a rock on her grave. I visit that grave now and then. So that was Sandy. Then a year went by and I wanted another dog. My wife did not want another dog. But I wanted one, so inally she said, “Okay, we’ll go to the SPCA in Mariposa, an d maybe you’ll ind a dog.” Now it’s not like San Francisco where there are a lot of dogs. They’ve got like thirty or forty dogs in San Francisco. Mariposa only had like six, maybe. It’s a much smaller, lower-key operation than in San Francisco. Suzan and I were walking from the main little building into the compound where the dogs are, and there was a chain-link fenced-in area that was about ten by six, and the dog in question was in there with another dog, just looked like a Jack Russell. This Jack Russell puppy saw me and just leaped up with his back feet on the ground and his front feet and paws, and smiling at me and wagging his little tail, and I couldn’t resist. I went over there and said, “What’s the story on this dog?” “Well, he’s up for adoption.” “Could I go inside the gate?” “Yes, of course.” I went in and the dog was lla over me and loved me. Suzan said later that she knew it good and well that it was love at irst ight.s That dog got my number and all that. It’s true. And so we adopted that dog. Jack is his name, for Jack Russell, and he’s still with us and just as—totally diferent personality than Sandy. Now, my irst dog, Sandy, her demeanor all day long was, “How can I help my dad?” meaning me. “How can I help him? What can I do to help?” And my dog Jack is, “What can Dad do to help make my

nineteen • 195 life more fun?” He knows deep down that I’m going to bail him out of any trouble, but he loves fun. If Dad can help him have fun, that’s what he’s interested in. Still, I love the little guy. So those are the dogs. Dogs are very important. Will Rogers, I believe, is the one who said that when he dies he wants to go wherever dogs go when they die. That’s kind of the way I feel. LM: Your dog stories pretty much mirror my dog stories. WA: Tell me your stories. LM: Angel, my irst dog, was like Sandy, and Koa, my second dog—both rescues—is like Jack. And I love them to death. I think Angel sent Koa to me. She was up there in dog heaven and said, “Mom needs a dog and Koa’s going to be just what she needs to keep her happy.” I believe that. [laughter] We have talked some about photography. Many of your friends, all of them, I think, have talked about you as an artist and a photographer and a nature photographer, someone who has deep observations about nature. We have not talked about the darkroom. The question has come up with some of your friends. Sometimes I’m kind of general with my questions, please help me out. WA: Yes, I’ll make some observations that I don’t think I’ve made before. I do love ilm photography. I like landscape photography the best, although I have done some portraits and some still life. The clarity of the image is important, and I think that has an analog to the clarity of an order or a brief. I actually think there is a parallel to professional work. For example, there are many mistakes that you can make in composing an image, and I have made a lot of them, so I have come to recognize what the mistakes will be—I’ll say, I’ve got to avoid that one, like mergers, unintended mergers, unintended tonal mergers is another problem. The clarity is in how you organize the forms and the objects that are in the photographs so that they present as clearly as possible, and read well, so that immediately the print reads—you don’t have even a half second of wondering what is the photograph about. So, clarity is one point I think that deserves to be made. I want to mention a second thing that I have discovered that mainly comes out of the darkroom, and that is that the lighter half of the tonal scale—the tonal scale is from black to white with all the inter- mediate shades of grey—the lighter half of the scale is more interesting and exciting to the human eye than the darker half, even though they’re half and half. The one that is most meaningful to the eye is the lighter half. For many years, maybe even ifteen years, I was going back and looking at my prints. I have portfolios at home. I printed too dark. This was in a vain attempt to get, quote, contrast, because I knew early on you wanted to have a pure white and a pure black, and in order to get that, I would print on paper with a higher contrast, and that would push the tones toward the dark end, and I wouldn’t get as many of the lighter tones. I would have a pure white in there, but I would lose the mid-tones—pushed too much toward the darker tones. Fifteen to twenty years ago, I began to aim for a print, using the very same negative that I used before that emphasized more of the mid-tones and made sure that the part that I wanted to excite the eye of the person looking at it—that emphasized tones in the upper half of what we would call zones six and above, six, seven, eight to ten. Now, that leads to yet another—can I continue, or is this too long an answer? LM: No, this is lovely; thank you. WA: All right. This only goes back about ive years, six years, maybe. I began to stumble on a procedure for developing that used three trays of developer. The irst is Ansco 130. You have to mix the chemicals yourself. You can’t buy this anywhere. I buy my raw chemicals from the photography formulary in Mis- soula, Montana, and they ship them to me. Anyway, the irst try is Ansco 130. It has kind of a sepia look to it, but it’s a softer developer. So the irst tray is the Ansco 130, and I let it develop until it’s about 60 percent developed. Then I take it out of that tray and put it in a second tray, which is just water and

196 • nineteen dilute Ansco 130 but without any restrainer. The irst tray has restrainer, which will prevent the fog from developing in it and keeps the whites clear, and the second one has very, very dilute Ansco 130, but no restrainer, and the great thing about that is that it will develop those very delicate highlights that are around zones eight and nine, and ten is pure white. Like a cloud, for example, that has all those beautiful tones—almost pure white, pure white, maybe two steps below pure white, and so that second tray, without the restrainer, even though it’s very diluted, will bring out those highlights. The emulsion is still soaked in the Ansco 130, so that will also have sort of water-bath efect in that tray. That second tray is usually about a minute. The irst tray is more like thirty seconds. The second tray is more like a minute. Then you put it in a straight Dektol tray. When you come out of tray number two, there will be no blacks in there at all, no pure blacks, no near dark, dark blacks, so that would be a muddy-looking print, not good. So you put it in the Dektol tray, the third tray, and that is that harsher, more contrasting—and that will quickly develop a black in the thinnest parts of the negative. It will leave a good separation in the darker half of the scale. So you wind up with great separation in the shadows. Overall, in both the dark part of spectrum and in the light part of the spectrum, you have preserved that separation between, say, the very black, zone two, zone three. And then on the light part of the scale, you have that wonderful separation between, say, zones seven, eight and nine. And then the middle tones are in there, too. I have discovered this on my own. I’ve stumbled onto this three-tray method. I’m sure I’m not the irst. I’m not really claiming I invented this, but I don’t know of anyone else who uses three trays like this. One key is that second tray, where there’s no restrainer, and you allow those middle tones and the high tones to develop, and then you use that last tray to bring out a irst black and to build up the lower half without almost any efect on the—there’ll be some efect but not much. Icall this three-tray development, and now for about ive years I’ve been using it almost exclusively on my prints. I just really love the efect. I’m circling back now to why did I ever get into this to begin with. The reason is that I believe the human eye is more excited by the lighter half of the scale than the darker half, and this method of developing using three trays is, I think, a great way to emphasize that part of the spectrum. So there we go. LM: It seems like it’s more nuanced and there’s more subtlety. WA: Very much so. That’s very true. It’s true on both the high end, with the subtlety, say, in the cloud, and then on the low end where let’s say you have a shadowed area in an otherwise sun-lit area, but you have great separation in the shadowed area, like the bark of a tree or moss on a rock, all still in shadow, but nevertheless, even though all of those are in the darker tones, that separation is very clear. Subtlety, which is not one of my strong suits usually, but in photography sometimes I can do it. [laughter] LM: There’s also framing the image and deciding what to leave in and what to leave out. WA: That’s another interesting point. It’s true. My normal memory is less than average. That’s why Kathy is so important to me. But when it comes to these photographs, I remember the details of taking those pictures long ago because I concentrated so much on the image. For most of my negatives, I can still tell you the details of how I went about setting it up. I ind that to be amazing, that my memory is that good for that moment. It helps me to remember a lot of the trips that I took in the Sierra, those moments when I was setting up the tripod and looking at the image through the ground glass, I still right now remember how it felt and what I was seeing, some of the decisions I made on composition. LM: Well, that’s special. WA: It is, yes. LM: Then this idea of clarity through this artistic pursuit, as well as in your judicial role, or maybe it’s more generally legal, the orders and— WA: I’ll give you one example. I do try for clarity in what I say, and in writing. I think a lot about writing.

nineteen • 197 Alsup family with Sandy, Christmas, 2003

One of the analogs of the things I just gave you about photography is I believe that the human mind learns more quickly by distinctions, by explaining how two things difer, than in trying to explain why two things are alike. Lawyers sometimes like to argue, this is the same as X. That may be true, but it’s also important, and I think more vivid, to say this is how they’re diferent, and why that diference is important. So yes, clarity in writing, I believe—it’s what we do for a living, and we’ve got to be clear in how we explain what we’re doing. LM: In your case, your writing pursuits go beyond the legal and into iction and memoir and some other forms. WA: Have we talked about that yet? I don’t remember. Have we gone into those projects? I’m happy to do it. LM: Not too much. We can touch on those. WA: Let me just summarize since neither of these have seen print yet, and may never see any print. I have written a memoir about my years in Mississippi, 1945 to ’67. It’s a coming of age story, but mostly it’s about race in the segregated South, maybe in the most segregated state of the South, which was Mis- sissippi. And some of the experiences that I had there that touched on race, and my own attitudes on race and how they changed from I would say more conventional southern views to a more progressive view by the time I left college. That will be published according to a book contract with New South Books sometime next year, if all goes well. They specialize in works that deal with the Civil Rights Era, so this its kind of into their proile. One nice thing that they said to me when I submitted the draft to them—they said that they would like to publish it, and they said, “This is better written now in manuscript form than most of the things we have actually published.” That was a nice thing for them to say. LM: It’s a testament to your writing. WA: I had worked hard on the writing; I must say. Kathy has gone through so many drafts on that. So that’s project number one. Project number two is a novel, and it is what would have happened if Lee Har- vey Oswald had not been killed and there had been a trial—what would that story have been like. And you might say, why in the world would I get into that topic? I am nota Kennedy assassination expert. I am 198 • nineteen not a conspiracy theorist or any of those things. Here’s how I got into it. In 2013, the 50th anniversary of 1963, I decided to, in honor of the 50th anniversary, that I would read about two things that whole year. One was the Civil Rights Movement. I had already read a lot about the Civil Rights Movement, but that had been years earlier, so I said, I’m going to go back and re-read some of those books like Parting the Waters and a lot of others. And I did that. Then it got to be about the middle of the year, and I said, the other thing I’m going to read about is the Kennedy assassination. I read the Warren Report. I read a book by Bugliosi, a huge book, over a thousand pages. That got me interested in it. I learned that there were twenty-six volumes of evidence in the form of testimony and aidavits and photographs that the Warren Commission had put out. I’m pointing over to the—because all twenty-six volumes are right here in front of us as we speak. I said to the library—we have a great library here—I said to the library, “Can you get me those twenty-six volumes?” thinking it would take about a week, which is ine because I had plenty of time, and the library said sure. Then about two hours later, they came up with the cart that had all twenty-six volumes on it, and they were so embarrassed. They said, “We’re embarrassed to tell you that we’ve had these on our own shelves all these years, and we didn’t even know it.” I said, “That’s no problem.” They also said, “And get this. In ifty years, you are the irst person to ever check theseout.” We opened it up in the back; it had a little card where you put your name when you check out a book. So I got to put my name on those cards. I felt so privileged that I was the irst one to ever check them out, even though they had been on the shelf for ifty years. Now, that was in 2013. Here we are in 2017, four years later, and I still have these books up here, because after I read them about three-fourths of the way through, I began to see—I was just reading it for fun, for interest. But it dawned on me that there was a possible defense that could have been mounted by someone if they were willing to make up a story that would it w ith these facts that were laid out. Most of it has to do with a bald spot. I won’t say anything more than that. If the book ever comes out, you can read it, but it’s the mystery of the bald spot. And there are a few other mysteries. There are several mysteries that all tie in very neatly together to this defense that Oswald would put on. I decided—what would be a way to present this? We know what the prosecution case would look like because it’s kind of laid out there in the Warren Report, but what would the defense case look like? That is the exciting part of the trial. I think what I’ve done is put in the best case for the prosecution, and then the best case for the defense, based on the actual evidence. Now, I’m not making stuf up that the conspiracy theorists make up. This is true stuf right out of the Warren Commission’s own iles—what that would have looked like, and using real characters as well as a few ictional characters as the heroes of the book to tell the story. The irst half is the run-up to the trial and the investigation and introducing the reader to some of these mysteries that wind up being used by Oswald as a surprise defense at the end, and then the second half is the trial itself. I have an agent, a good one, but, alas, no publisher. LM: I envision two book publication parties. WA: Yes, it could be. I will also say this. I think the Oswald one, the courtroom scenes would be great drama for a movie. That would be a marvelous—the courtroom scenes would be great. I had Percy Fore- man, the famous lawyer, from Houston, Texas. He winds up representing Oswald. In real life, he had said—this was before Oswald was killed—he said, “If anyone ever needed me, it’s Lee Harvey Oswald.” He wanted to do the case, and would have done it for a reduced fee he said, in real life. In my version, he gets to take on that challenge. LM: Then on a lighter note, your clerks mentioned that you write limericks on the departure of the clerks. WA: I did for a long time. I don’t do it anymore, but I did for a long time write limericks. Kathy has all

nineteen • 199 of them—I hope she has them somewhere—and these would be a little spoof on each clerk as they left, but it just got to be too hard. Some of them were very good. I kept trying to top the last one, and I inally just said, I can’t do any better. I’m going to give up. But I did do that. LM: That’s special. WA: I do give them photographs, mounted, signed and titled, both the externs and the law clerks. At Christmas time, I give everybody a photograph, and then when they leave I give them a photograph. I enjoy doing it and it’s my way of thanking them for their help. LM: I should say I met Brian Isobe through you and Kathy, and my two photographs are proudly and prominently displayed. WA: It means a lot to me that there’s something that I believe in gets on somebody’s wall and that they would dedicate one of my photographs to their wall space, that’s a real honor for me, so thank you for that. LM: Thank you. There’s a story about backpacker fraud that Walter Dowdle mentioned. WA: I will tell you the story, but it’s been vastly blown out of proportion, and there is no backpacker fraud. I think there will be no one safer than me to go into the backcountry because I’m very careful and I look after the people I take out there. But nevertheless, here’s what happened. Back when my son was in high school, we were doing the John Muir Trail in segments. Each summer, we would take a week and do a segment, and we did it all. In fact, I had already done it all once, but this time I did it all with my son. It took us I think ive or six segments to get that done. On one of those, in the middle, he brought along a friend who lived on our street, a guy named Daniel Pivnick. We had a particularly tough day—we were in the middle. They were tired, I could tell, and they were asking, “When are we going to get tocamp? When are we going to get to camp?” I made the mistake of saying, “I think it’s over that next idge.”r Well, it turned out to be much longer than over the next ridge. It turned out to be maybe two more miles after that. They were really tired. I was tired. I remember that day. We were so tired. We set up the camp. On that trip, we had a dome tent that all of us would sleep in, all three of us together rather than separate tents. We could have even put a fourth person in there. It was a pretty big tent. John and Daniel were in the tent and I was outside, doing camp chores, setting up the kitchen, I think. I heard Daniel say to John—by the way, Daniel’s mom was a lawyer. He said, “John, is there such a thing as backpacker fraud?” [laughter] So that’s how that got started. Over the years, I would come up with these phrases like, “The hard part is behind us.” Then they would claim later that was backpacker fraud because there was yet another hard part ahead. I have sufered through so many accusations of backpacker fraud, but it’s just good-natured. They need somebody to complain about. It’s like the Army, I guess. Backpacker fraud comes up on just about every trip. LM: It’s so cute that this young person, Daniel, as a young man, tied this idea to a legal consideration. WA: Right. If his mom hadn’t been a lawyer—but I guess you start thinking like your mom, a lawyer. Is there such a thing as backpacker fraud? LM: That’s a great story. I have on my notes something that I think you told me Bob Raven said, “As a concession to the shortness of life.” WA: Yes, it’s a great phrase. I picked it up from Bob. He would say that a lot. I heard him say it in court. For example, he would be there in conference with the judge, there would be some issue, and Bob would say, “As a concession to the shortness of life, we’ll give up on that. We’ll just focus on the main point here.” It comes up all the time with lawyers who insist on hundreds of sideshows that never are going to make much diference, and so the phrase, “as a concession to the shortness of life” really just its. I went back to see—this was after Bob had died—Bob had borrowed that phrase from Oliver Wendell Holmes. There was a Supreme Court decision in the 1920s where Holmes used that very phrase, “as a concession to the 200 • nineteen John and I paused to view Ediza Lake and the Minarets on a cross county leg of our second segment along the John Muir Trail, 1998. shortness of life.” I’ve forgotten what the context was. But if you put it in, you would ind the decision. Bob had borrowed that phrase. But it just its so many, so perfectly, and explains so well the situation that I ind several times a year, that I use it still. LM: Well, I’m pleased to know it through you and adapt it, or borrow it yet again. WA: Please do. LM: We can come back, as you know, to ideas. Now it is my time to say thank you for allowing me to do this fabulous—I don’t quite have the words to express how much it means to me to have worked with you on this project, to continue to see you but as we conclude this part of your oral history, and for all of the colleagues and friends and jurists I’ve met through you, yourself included. The long, almost monthly journey from you becoming an honorary California State Park ranger to lots of other adventures, in-depth explanations and patience with me as I sometimes struggled to ind my way in to my ideas. I think we can inish for today. WA: Let me say thank you for that remark, but you’re the one who deserves the thanks, and I will say again that you ofered to do this way back when, and to do it pro bono, todo it without any compensation. I am eternally grateful for that, and I am eternally grateful for the care that you put into organizing each one of these sessions, and the people you’ve gone out to inter view to ind information about me. The work you’ve done on this has been tremendous, so I thank you for that. You are one more example of something that’s been true in my life, which is that a lot of people have given me opportunities, and they have done this sellessly, for no beneit for them, or little beneit, but with great opportunity and promise for me. This has been true in a large part of my life, and I look back across my life and I am amazed that human nature is as good as it is, that would open so many doors. That’s what I’m trying to say. You opened the door to this very lengthy oral history, and I’ve enjoyed doing it, so thank you very much. LM: Thank you, Judge.

nineteen • 201 Allison took this portrait of me as we rested at the Tuolumne High Sierra Camp at the end of a four-day hike up from Yosemite Valley, 2002. A Good Life Half Lived (Nurse Edith Carill Glacier), 1989 Appalachia Maryland House, 1979 Agava, 2010 Betakakin, 1980 Juniper on Tuolumne Peak, 1989 In 1986, Allison and her pal Tina Della Gatti, both teenagers, joined me for a trans- Sierra hike from Sunset Meadow (on the West Side) to Onion Valley (on the East Side). It took us six days, most of it being cross country, meaning no trail. Our high point was Longley Pass, a snow cornice that gave us some diiculty. I took this image with my 4x5 before we descended. Mist Falls in Turbulent Fog, 1986 Vernal Falls and the Mist Trail, the single best day hike in California, 1992 Morning light on the minarets from one of my all-time favorite camps (half-mile above Lake Ediza), 2016 When I upgraded to a 4x5 in 1979, I hurried to the Lincoln Memorial one cold evening. Lincoln ranks, in my view, as our greatest President. He held America together. 1979 Shooting Stars at Palisades Lake in Palisades Basin in Kings Canyon, 1998 Oradour Sur Glane Ruins, 1996 On June 6, 1944, the resistance killed some German soldiers as the Allies landed in Normandy. The next day, the German SS, in retaliation, razed Oradour Sur Glane and killed virtually all of its residents. France has left the ruin almost just as it was left by the SS and it is now a National Monument. Our family paid our respects there in 1996. Dawn over Whitney and Russell from Tarn on Big Horn Plateau, 1980 Allison, her pall Tina Della Gatti and I camped near Cathedral Pass in 1983. In the morning we strolled up canyon and discovered this exquisite light on a Sierra Corn Lily, so elegant in the early season. Tenaya to Conness, 2014 Photo Appendix

Judge William Alsup in 2016. Photo by Jason Doiy Last light on a clearing storm in the Ritlea Range William Haskell Alsup, 1936 ...... 2 Oneta, boyfriend of Willa Mae, Jewel ...... 4 William Haskell Alsup, 1940 ...... 4 Jewel Emma Wilson, 1932 ...... 4 Bill and Willanna in a wagon, 1948 and in Little League uniform, 1958...... 9 2325 Terry Road, Jackson, 1963 ...... 12 Mother after a rare snow, 1950 ...... 13 Bill and Junior as Cub Scouts, 1953 ...... 14 Willanna and Bill in cornield, 1948 ...... 16 Willanna, toddler portrait and yearbook portrait ...... 17 Dad in Gulfport, 1958 ...... 18 Mother at Andy's tree, 1966 ...... 19 Mother and Sandy, 1963 ...... 21 Me with "The Preacher" and Jerry, the foreman on the survey crew, 1963...... 22 Mother in front yard, 1965 ...... 23 Ron Goodbread, high school ...... 25 Ann Smith, 1963 ...... 27 Ron Goodbread, 1963 ...... 27 Bill Alsup, 1963 ...... 27 Ron Goodbread, Joe Turnage, Bennett Price and Bill Alsup ...... 29 Higgen Hogs on a tower in Vicksburg, 1963 ...... 29 Carl Dicks...... 29 Me at my ham radio station tapping out Morse ode, 1962 ...... 39 Bill and Junior, total air, 1962...... 40 Me, Joe, Junior and Jack in ROTC, 1964...... 53 Me and Joe, 1964 ...... 55 Me, Joe, Brad and Danny in the high desert on our way to Tacoma, 1965 ...... 55 Me at MSU, 1965 ...... 59 Playing at the YMCA, 1966-7 ...... 60 Justice Douglas's desk, 1979 ...... 88 Suzan teaching Allison to swim, 1974 ...... 91 Me in Justice Douglas' chambers, 1972...... 105 This was on my irst roll of ilm in my irst ever camera, a used 35mm SLR...... 105 Danny Cupit and Dixon Pyles, 1972 ...... 115 Walter Dowdle, Darwin Bench, 1997 ...... 154 Me and John on Conness, 2007 ...... 154 Junior laughing at Golden Bear Lake, 1994 ...... 155 Kirk Shaw on Cloud's Rest, 2005 ...... 155 Sidney at Golden Bear Lake, 1994 ...... 155 Bodie Bar & Hotel, 2016 ...... 168 Hound Dog ...... 194 Kathy Young at my desk at 425 Market Oice, 1998 ...... 195 Alsup family with Sandy, Christmas, 2003 ...... 198 John and I paused to view Ediza Lake and the Minarets, 1998...... 201

Gallery

Allison took this portrait of me as we rested at the Tuolumne High Sierra Camp, 2002 A Good Life Half Lived (Nurse Edith Carill Glacier), 1989 Appalachia Maryland House, 1979 Agava, 2010 Betakakin, 1980 Juniper on Tuolumne Peak, 1989 Descending Longley Pass with Allison and her pal Tina Della Gatti, 1986 Mist Falls in Turbulent Fog, 1986 Vernal Falls and the Mist Trail, the single best day hike in California, 1992 Morning light on the Minarets from one of my all-time favorite camps, 2016 Lincoln Memorial with 4x5, 1979 Shooting Stars at Palisades Lake in Palisades Basin in Kings Canyon, 1998 Oradour Sur Glane Ruins, 1996 Dawn over Whitney and Russell from Tarn on Big Horn Plateau, 1980 Tenaya to Conness, 2014