0:00

BIRDWHISTELL: . . . what we've got here. We usually begin the 1:00interview with law clerks by trying to find out how you first became associated with Justice [Stanley] Reed and what were the circumstances whereby you would become a law clerk.

ROSETT: Okay. I was . . . I was a student at Columbia Law School, and was the . . . not the . . . the research assistant for Herbert Wexler. And Justice Reed had retired, and Justice [Harold] Burton had also retired, and Congress had . . . w- . . . during that period was very unsympathetic to the Court. The . . . the chief justice [Earl Warren] was complaining very bitterly about the limitations on very minor supplies and the fact that . . . oh, for example, he always used to drive [chuckle] . . . ride to the White House in a taxicab and [laughing] . . . you know, he had no car . . . there was no car at the Court's disposal, even for official occasions. There was no . . . they were very short of things, and they were . . . and it was also during the period when the miscellaneous docket was growing very rapidly. And at that time, the chief justice, who in addition to his own work as a justice did a lot of . . . a lot of special functions for the Court, had only three law clerks. And they hit upon the scheme of putting in a . . . an appropriation line item for a just- . . . for a clerk for the retired justices, who at that time were . . . were Reed and Burton. And Justice Burton took . . . Justice Reed, rather, took the . . . the laboring more on this. And, in fact, he did the hiring. And I think that the fact that I went to Columbia Law School and the fact that Herbert Wexler had recommended me, and also . . . I have an 2:00anecdote that I don't . . . which I don't know whether belongs as part of the . . . of the oral history project, but I . . .

BIRDWHISTELL: Let's try it. [chuckle]

ROSETT: Well, the whole job came along rather late in the year, and it came at a time in which I had fallen in the cracks in a couple of other jobs, and so I was available much later than I wanted to be available [chuckles] in the hiring season. And then I heard nothing. And at that time, I was married and had a . . . a baby, and I was working Saturday night as a bartender at a cocktail party, and who showed up at the cocktail party but my evidence professor, who now . . . then went on to become dean of the Columbia Law School and now is the president of Columbia University, Mike Sovereign.

BIRDWHISTELL: Oh, yeah. [chuckle]

ROSETT: And [chuckle] . . . and I was making a drink for Mike, and he said, "What are you doing next year?" And I said, "I don't know. I . . . I . . . I've been nominated for this Reed/Burton clerkship, 3:00but I haven't heard anything." And he said, "Well, I'm still waiting to hear myself." This is about four years after his clerk- . . . [laughing] the ti- . . . "I never did hear." [chuckle] And that depressed me. And I went home that night, and . . . and something in my brain worked, and I had a dream . . . I literally had a dream, and the . . . and I woke in the morning and told my wife the dream, and she said, "Do it." And what I did was I sat down and I wrote Justice Reed a letter and said that "family business will bring me to Washington on such and such a day, and I will be busy in the morning, but if you would grant me the favor of an interview, I would be grateful for it." And I got a let- . . . note back that said when I completed my business, I should call chambers. So I flew down to Washington on the shuttle and went to the National Art Gallery in the morning, and about eleven o'clock I called up the chambers and was told, "Yes, come up after the justice's nap," and met the justice, and I think . . . 4:00I think, with all honesty, we hit it off. That is, I . . . I've . . . I . . . I've . . . I've always treasured the association, and I think that . . . that we talked together well.

BIRDWHISTELL: Umhmm. And that's important in a first meeting like that.

ROSETT: Well, it was very important with Stanley Reed.

BIRDWHISTELL: Yeah.

ROSETT: Because he was very much a man who . . . who relished talking to his law clerks and arguing with his law clerks. And Earl Warren did, too, but in a different way, more of a distance. Stanley Reed never was . . . Justice Reed was never af- . . . uneasy about going . . . really becoming quite contentious, if necessary. In fact, it always seemed to me that in . . . as a matter of literary criticism, people don't know how to read . . . read opinions because they're really a dialogue. They're almost para- . . . their voice changes almost paragraph by paragraph. And whereas Earl Warren's opinions change voice every year [chuckle--Birdwhistell] because, I mean, the chief never made any bones about it--he didn't write most of his own opinions. The clerks certainly did the major drafting 5:00effort. Stanley Reed argued out his opinions and there is a kind of a dialectic quality. A . . . one paragraph is one voice, and then the other voice answers it. And . . .

BIRDWHISTELL: That's an interesting . . .

ROSETT: . . . and I . . .

BIRDWHISTELL: . . . way to describe it.

ROSETT: . . . can . . . I . . . yeah, I can . . . I can give . . . cite you chapter and verse on that.

BIRDWHISTELL: Umhmm. That's interesting. You know, some . . . some of the other clerks I've talked to have sort of touched on that, but never quite illustrated it that way. That's a . . .

ROSETT: Well, you . . . you . . . you sh- . . . as . . . as a more mature scholar, when I . . . as I've read . . . going back and read . . . re- . . . had occasion to read some the justice's older opinions, I can detect the same change of voice from paragraph to paragraph.

BIRDWHISTELL: That's interesting.

ROSETT: Whereas to take an . . . I . . . I had the . . . the advantage that I clerked, really, for three justices. Because I . . . Justice Burton was sitting some during that year, although I think very shortly he stopped sitting, and . . . and the later Reed/Burton clerks only worked for Reed and . . . and the chief justice, and gradually the chief justice took over the Reed/Burton clerk. But in 6:00my year, they really . . . I really had three bosses. In fact, I even had Shay [Sherman] Minton for a while. I had four for very briefly, but [chuckle--Birdwhistell] that . . . but . . . but Justice Minton was not active. But Justice Reed was quite active, and Justice Burton was fairly active. Justice Burton never could confr- . . . didn't like the direct confrontation with the law clerk, and so you would write something and he would rewrite it, and he would . . . but it would . . . all came back to you through the inbox and the outbox. Whereas the thing I've always treasured about Stanley Reed, and I think it's one of the first things to say about him, was I used to make it a point to be sure that I was sitting in my office at about 2:30. After he would . . . he would . . . he would bring in that boiled rice and pear to eat, and he would then take a nap, and then he'd get up, and around 2:30 you could . . . particularly if it was a rainy day. If it was a nice day, he might go off and play golf or something. But if it was a rainy day in his retirement, it was a 7:00good bet that the buzzer would ring and he would call you in, and he would . . . as I said, he would pick on something, and it would . . . a dialectic would start. Something in a draft or something that . . . that he wanted to say differently or something. And usually the conversation was off and go- . . . running very quickly. That is, I had the feeling that the points he would sometimes call you in about were just a way to get the conversation rolling, and then you'd be back in Maysville or the Order of Cincinnati or the . . . or the New Deal. And that's, of course, where I got my . . . between Earl Warren talking about California politics and Stanley Reed talking about the New Deal, that was my education in American history. [chuckle]

BIRDWHISTELL: It was like a seminar . . . advanced seminar. [chuckle]

ROSETT: Yeah. Oh, it was wonderful. And in his retirement, there was time to do that. And he . . . he obviously relished that. He . . . that was my job, was to sit there and be the foil for hi- . . . 8:00well, not the foil, that's . . . but . . . but to participate in that . . . in that colloquium. Whereas, while Justice Burton was a wonderful man in many, many ways, he did not like that kind of direct dealing with a clerk. As I said, it always came to you through the in-basket.

BIRDWHISTELL: Yeah. [chuckle] It's interesting that you mentioned the New Deal period. I know . . . others . . . others have mentioned that Justice Reed talked about that some. I'm wondering if after his retirement from the Court, he may have started reflecting back more on that period. He was very proud of his role in . . . in that . . .

ROSETT: He . . .

BIRDWHISTELL: . . . period.

ROSETT: . . . was very proud of his role, and I think he was very proud of his people. I . . . I think he was always very proud of the . . . the young men that he had assembled in the . . . in the R.F.C. [Reconstruction Finance Corporation] and in the . . . in the Solicitor General's office. And very ha- . . . very proud of the . . . of . . . you couldn't be in that chamber very long before it 9:00was pointed out to you that that was the typewriter on . . . which on a Sunday afternoon the Social Security Act was drafted [chuckle-- Birdwhistell], you know. There was . . . there was a drawer . . . cab- . . . file drawer in . . . in Helen Gaylord's office in the bottom . . . towards the bottom there, I remember--boy, this is an old memory--in which there were pi- . . . group pictures. I mean, he was inordinately proud of that. Not inordinately. He was ju- . . . justifiably, but he was very, very proud of that . . . of that group in the Solicitor General's office and . . . and . . . and rightly so. It was a very distinguished group.

BIRDWHISTELL: I remember seeing that photograph.

ROSETT: Yeah.

BIRDWHISTELL: [inaudible].

ROSETT: With Alger Hiss and Paul Freund and Tommy "the Cork" [Corcoran] and all . . . the whole . . . Ben Cohen, the whole bunch. And, boy, I guess there hasn't been a law office like that [chuckle-- Birdwhistell] in the last fifty years. So he . . . he was right to be proud. He was proud of the young people he had picked.

10:00

BIRDWHISTELL: When you had this initial meeting with Justice Reed, what were some of your first impressions of . . . of him, of his personality and his style?

ROSETT: Well, as I'm sure you're aware, he was a very . . . why, I . . . I was, of course, awed [chuckle--Birdwhistell] when I met him, but . . . but he was a very exotic creature, and I'm . . . suspect, in some ways, I was probably not as exotic. After all, he'd had a generation of law clerks before I came along. [chuckle-- Birdwhistell] He had met wise-guy New York Jews before, but I had never met someone with his values, I think is the word to . . . to . . . he was from a different culture. And I'm not talking about the first interview so much as the . . . c- . . . the conversations that 11:00stick most clearly in my mind were conversations about ideas that just sounded very exotic to me, and maybe that's why they've stuck with me, but which were, I think, very natural for someone who was from a landed culture, who was very conscious of his very special role in a small community from which he came from, and felt very secure in that place in a way that nobody I was close to ever did. [chuckle] He we- . . . I . . . ha- . . . I . . . I suspect I'm not the [chuckle] only person he told the tale to, but did he ever tell you the . . . did y- . . . have you heard about the . . . him and Felix Frankfurter's view of . . . of the police? And I think . . .

BIRDWHISTELL: No, I don't think so.

ROSETT: . . . well, I think it was in the context of ma- . . . of McNabb [McNabb v. United States], in which Reed was the only dissenter. Or was it Mallory that he was the only dissenter? It was 12:00the one of those two cases in which he was the only dissenter, and which I think Frankfurter wrote for the majority. It was while Felix Frankfurter was still at the relatively liberal cutting edge of police . . . control of police behavior. And Justice Reed told me, "You know, Felix Frankfurter feels that way about the police because when he thinks of the police, he thinks of himself either as a small boy in Vienna . . . a member of a despised minority in Vienna, or he thinks of himself as an immigrant in the east side of Manh- . . . of New York. And he thinks of the police as a . . . as a threat and as someone who comes and bullies you and pushes you around and is out to do you harm." He said, "I'm . . ." and he sai- . . . he . . . I remember the conference at which . . . and this . . . it's either Mallory or McNabb . . . was being cited, and F- . . . and Felix Frankfurter was going on and on about the need to control the police, and Reed said, "I . . . I thought back to my own childhood and tried 13:00to remember what I remembered of the police in Maysville, Kentucky." And he said, "The only incident I could recall which involved the town . . ." --I think he used the word constable [chuckle--Birdwhistell]- -was that his . . . for his eighth or ninth birthday . . . one his very young birthdays, his father bought him a horse, and . . . and contrary to parental instructions, he rode the horse to town, where it encountered . . . now, it wouldn't have encountered an automobile, but it encountered something that made it shy. And he went . . . he lost control of the horse and was running on down the main street of town, and the town constable stepped out into the roadway and grabbed the reins of the horse for him and calmed the horse and calmed him and got him home. [chuckle--Birdwhistell] And he said, "I realize that my experience with the police was just a totally different thing than Felix Frankfurter's, and that we were to be expected to see those 14:00things differently." And . . . and I felt the same way. [chuckle] The . . . yeah, go ahead.

BIRDWHISTELL: I . . . I don't want to interrupt, but looking at it, though, as a . . . as his responsibilities on the Court, could that be a criticism of him, though, that he couldn't . . . he couldn't get away from the nineteenth-century Maysville setting to understand the needs of maybe a . . . an urban situation? Is that a . . . could that be a criticism?

ROSETT: Well, I . . . yeah, I guess you could say it that way if . . . if you think that all of the United States is an . . . is an urbanized setting and none of it is Maysville. I mean [chuckle-- Birdwhistell], I . . . I just think that there . . . that the . . . that Justice Reed knew a different reality than Felix Frankfurter, and both . . . both of them were realities to some extent. Although I suspect if I showed up in Maysville, Kentucky, I might not have gotten the same welcome from that constable that Stanley Reed [chuckle- 15:00-Birdwhistell] did. That is, I . . . I . . . I think it certainly was a limitation of Justice Reed, and I say this with . . . with all affection. It was a limitation that he was so privileged in his background that he . . . he really saw the world that way. But on the other hand, if he hadn't been so privileged, he couldn't have had the kind of career he did. There was a . . . may I just . . . because there's a story that . . .

BIRDWHISTELL: Go ahead.

ROSETT: . . . spins out of that.

BIRDWHISTELL: Yeah. Sure.

ROSETT: I remember we were sitting . . . Justice Reed was sitting down in the . . . in the Court of Appeals, and he was on the same panel as Judge Washington. With that program on television last night . . . the special on George Washington, it . . . it . . . it came back to mind, because I was trying to remember Judge Washington's relationship to President George Washington, which Justice Reed did tell me as a . . . as a [inaudible], because we were back in the 16:00courtroom . . . [Gerald] Ross was driving us back up from the Court of Appeals, back up to the courthouse, and he turned to me and he said, "You know, if things had been a little different, he would have been president. He would be king today." I said, "Who?" He said, "George Washington." I said, "Oh, yes. I'd heard that George Wa- . . . they wanted to make George Washington king." And Reed said, "No, no. Not that George Washington, this George Washington. Judge Washington on the Court of Appeals. By the . . . by the rules of primogeniture, he is the oldest living descendent of George Washington, the firstborn . . ." whatever . . .

BIRDWHISTELL: Oh, I see.

ROSETT: . . . and . . . yeah, well, you said, "Oh, I see," too. [chuckle--Birdwhistell] I mean, I . . . who in America would be aware of who would be king today if George Washington had accepted the crown? [chuckle--Birdwhistell] But the . . . that . . . that's just slightly off-point because the conversation went on from there. The conversation stays in my mind because that was kind of a culture shock for me. I mean, I wouldn't . . . I would never have been aware, you know, and had [chuckle--Birdwhistell] . . . I wouldn't have been aware that Judge Washington was somehow related to George Washington, but he had it . . . Stanley Reed had it all figured out and knew that he would have been king, or at least he so asserted, 17:00which he rarely asserted things without [chuckle] being pretty sure.

BIRDWHISTELL: That's right.

ROSETT: But the other thing is, he . . . we were talking about law practice, and he said, "You know, Arthur, to really . . . to . . . to go in . . ." he asked . . . it was in context of what I was going to do when I left the Court, and he said, "To really practice law you have to five thousand a year." And I thought he meant salary, but that wasn't what he was talking about. He meant that you really needed independent income, and to him five thousand dollars a year was a lot of money. [chuckle] I mean he . . . he . . . like all of us, we . . . he didn't always take account of inflation. [chuckle- -Birdwhistell] But what he really meant is that to have a career in the law, he considered that you had to have independent income, because that was his experience. That is, the first year he didn't make any money, he told me, practicing in Maysville, and it was only gradually that he got . . . got a few jury trials and then came to the 18:00attention of the railroad and then went on to the legislature and on from there. But . . . but he didn't see practicing law as a means of making money; he saw it as something which you had to bring money to. And it's true that at crucial points in his career, he made what, for a . . . for a man who would have had to live off practice, he made choices that would have been impossible, which he was able to do because of his background. So, I don't know. You can argue either way about [chuckle] . . .

BIRDWHISTELL: Yeah.

ROSETT: . . . you . . . we need our patricians. [chuckle]

BIRDWHISTELL: Yeah. Well, and I think . . . what came to my mind when you . . . the . . . the two things we talked about . . . you mentioned he was secure in his background and in who he was, and it sort of relates to this . . . the class he was born into in the sense that feeling secure about himself and who he was certainly had an effect on how he went about making judgments on the Court, . . .

ROSETT: Umhmm.

BIRDWHISTELL: . . . sort of above the fray, sometimes, maybe.

19:00

ROSETT: Umhmm.

BIRDWHISTELL: It gave him an independence with . . . I . . . I guess, maybe.

ROSETT: And I think it also gave him a capacity to meet very different people with a level of comfort. What I was talking about with law clerks. There are not a lot of men in their seventies who can take on some wise guy . . . twenty-two year old [or] twenty-three year old wise guy, top of his class at a first-rate law school, and . . . and bat the ball around all afternoon and come back for more. I mean, you have to have a great deal of . . . of comfort with yourself, [and] not be threatened by hostile, aggressive behavior. After all, that's . . . when I . . . I don't know . . . I won't speak about law schools today [chuckle--Birdwhistell], but when I went to law school, it was designed to train you to be combative and hostile and . . . and to seek weak points and press. And I . . . I would be very pleased with myself if at age seventy I could do that with equanimity. And my other two justices never really were quite easy about it with 20:00their clerks. But . . . but Reed really relished that stuff, which speaks [for] somebody who really wasn't threatened by what was going on at all. I mean, I assume he was giggling behind the [chuckle-- Birdwhistell] front.

BIRDWHISTELL: Did he talk much with you about Columbia and the fact that he'd been there and . . .

ROSETT: Yeah, but I never very . . . I'm still not very clear about his ye- . . . I have a feeling he went to Columbia as a finishing school. I me- . . . you may . . . you probably know much more about that than I do.

BIRDWHISTELL: Well, he went to Virginia and then to Columbia.

ROSETT: Right.

BIRDWHISTELL: And, of course, he never got a . . . a law degree.

ROSETT: Right. And then he went on to the Sorbonne from there.

BIRDWHISTELL: Yeah. And they got married . . . he and his wife got married . . .

ROSETT: Right.

BIRDWHISTELL: . . . and went over to . . . to France for awhile.

ROSETT: Yeah.

BIRDWHISTELL: I usually ask people if they could detect any . . . any effect of his not having a law degree. Did that have any effect on . . . on him? Did he . . . did he talk about that much or ever mention that fact? He was one of the last . . .

21:00

ROSETT: He and Bob Jackson.

BIRDWHISTELL: . . . yeah.

ROSETT: I . . . I think he was . . . I think he is my informant, if it isn't Alpheus Mason's book, but I think it was Justice Reed who told me that . . . that . . . was the one who told me that Bob Jackson was the last justice not to ever attend a law school. I think that . . . I later heard that that was not true, that Jackson did go to law school for a year or something, but . . .

BIRDWHISTELL: I see.

ROSETT: . . . but in . . . whether it's true or not doesn't matter. [chuckle--Birdwhistell] The point is, they were certainly among the last . . . Tom Clark is, in a funny way, kind of in that tradition, as . . . as was John Marshall Harlan. That is, they were not primarily academically trained lawyers. They . . . they either learned it on their hind legs in front of a jury, or they learned it in the offices, in the case of John Marshall Harlan, or as a young assistant U.S. attorney of some district in New York.

BIRDWHISTELL: Before becoming a clerk to Justice Reed, you probably 22:00looked at his . . . well, in the law school you'd looked at a lot of his decisions and dissents and opinions. What was your feeling toward his . . . his record as a . . . as a justice?

ROSETT: I don't think I know the answer. I don't think I did read any of his cases, particularly, [chuckle--Birdwhistell] before I . . . I wanted a job! [chuckle]

BIRDWHISTELL: It sort of . . . yeah.

ROSETT: I . . . and honestly, I don't . . .

BIRDWHISTELL: It sort of separates it, doesn't it, from . . .

ROSETT: Yeah.

BIRDWHISTELL: . . . I mean, a . . . a person coming out of law school, who has an opportunity to clerk with a . . .

ROSETT: I must say . . .

BIRDWHISTELL: . . . Supreme Court . . .

ROSETT: . . . I . . . I . . . I . . . I . . . I reversed the ordinary course. I was very much a child of the `50s. I was more conservative then than I am now, and I don't . . . I think I was much closer to Reed and Frankfurter's ideological views as of the late 1950s than I was to Earl Warren's. But a- . . . at that time, I . 23:00. . you know, I don't . . . I don't remember h- . . . I . . . I just don't remember anything that responds to your question. I don't remember looking it up or . . . or being conscious of what kind of a justice he was.

BIRDWHISTELL: Yeah.

ROSETT: I liked . . . I . . . I . . . I was always very happy about that dream and that interview because it was something . . . I think that . . . that interview was with somebody with whom I really did want to work and with whom . . . with whom I think we did work fairly well together. But I don't . . . I . . .

BIRDWHISTELL: Well, that's fine. Of course, now, you . . . from what you've said, you were in an interesting position, having to clerk for Reed and Burton at the same time. Did Reed set s- . . . set up some guidelines for how . . . how that . . . the year you were there would . . . would work?

24:00

ROSETT: Yeah.

BIRDWHISTELL: Some [inaudible].

ROSETT: Well, there were a lot of questions about my year. I was the first of the breed [chuckle], if you will. I . . . that is, there ne- . . . had never been a . . . a clerk for a retired justice, and there were a whole lot of questions that ranged from . . . well, my . . . my office was outside of the brass gates, and the questions arose as to the extent to which I was to be admitted to the confidences of the Court. The . . . the issues that I remember creating the most debate were . . . were, of course, the issues that didn't matter at all, like where I parked and [chuckle--Birdwhistell] whether I had a set of U.S. Reports. And Justice Reed made it clear that he wanted me to treat the work for the chief justice as first call. But in fact, I preferred to stay in the . . . I had a . . . I had a 25:00. . . an office that was right outside of his . . . his corner room, which I think was the old S.G.'s [Solicitor General] room, and it was a little . . . I had a little cubby . . . a very small little room there. I don't think it was originally a clerk's room at all. I don't remember what it was. I don't think later clerks had it. And I was between Justice Burton's chambers and Justice Reed's chambers. In fact, Justice Burton was much, much less active than Justice Burton . . . than Justice Reed, and there w- . . . as I've indicated, there was much less personal interchange. The chief justice had a lot of work which I did down there, and . . . and I used to spend a lot of time with the clerks, but . . . the chief's clerks in particular, but the contacts with the chief were pretty much limited to Saturdays. That was clerks' day for Earl Warren. He liked 26:00to spend Saturday, particularly Saturday afternoon, with the boys, and took us out and . . . to things and the like. But during the week it would extremely unusual to have anything to do for the chief or with the chief, other than . . . other than writing something, which I did. And so it was very much me [being] right outside of Reed's office and him buzzing very often. And he would buzz. It seems to me he buzzed me directly, not even going through Helen Gaylord. It seems to me he had a double buzzer on there, and then I . . . I . . . and he would . . . and I would walk right . . . right . . . right in. If you're asking about how he liked cases to be handled, he didn't like a bench memo. That is, Burton always wanted a bur- . . . bench memo, and the chief, of course, relied heavily on bench memos. But . . . but Reed used to read the stuff himself. Now, this . . . he 27:00was not sitting on the Supreme Court at this time. He . . . he had one original jurisdiction case, the Maryland-Virginia case [Virginia v. Maryland], and . . . but most of what he was doing was Court of Claims, which he loved, and Court of Appeals, which he liked less well. And he had a big thing in Nigeria. Nigeria became independent that year or something, or adopted a constitution, and he went there to give a speech. We worked on that. But . . . and then there was the [chuckle] big flow of personal stuff with Maysville and the Order of Cincinnati and [chuckle--Birdwhistell] stuff like that. But . . . but most of the judicial stuff, as I r- . . . you know, am I being responsive when you asked me how he organized the work?

BIRDWHISTELL: Umhmm. Yes.

ROSETT: Yeah. He didn't . . . as I remember it, he didn't . . . wasn't big on bench memos. He wanted to talk to you after he'd made up his m- . . . after he'd heard the case. Before oral hearing there wasn't a lot of intercha-. . . change that I remember. And it 28:00usually was, he would . . . as I remember it, after the conference, if he was going to write, he would call you in and talk it over and at that point tell you what he wanted. But . . . and the first draft was the clerk's. And then it would go in and the . . . and as I said, this dialectic would begin because he, unlike particularly Burton, who would completely rewrite what you did, Reed tended to leave what you wrote but kind of write a sec- . . . inter- . . . intersperse paragraphs of his own . . .

BIRDWHISTELL: Yeah.

ROSETT: . . . and then . . .

BIRDWHISTELL: Yeah.

ROSETT: . . . and . . . that is, if it was in the ballpark.

BIRDWHISTELL: Yeah. [chuckle]

ROSETT: I mean, if you . . . if you . . . I . . . I know that there were clerks who had experiences where the clerk and the justice were diametrically opposed points of view. But if it was just a matter of shadings and the like, or how far you wanted to go, or how far he was willing to go or wanted to go, tha- . . . he . . . he would 29:00meet that by adding a sentence to what you wrote, which makes it kind of zigzag. And that process would go . . . would be quite lengthy, and if it had a real weakness it was that, as I remember it, there never was a point at the very end where he would sit down and really write his . . . a draft that was all his own. Although he . . . he had the l- . . . the clerk had the first word, and he had the last word, but it seems to me he left too many of those seams showing [chuckle], speaking just in the literary style, now, not the . . .

BIRDWHISTELL: Yeah. Yeah. Some people have . . . and I can't really cite who said this, I can't remember, but someone criticized his opinions because they seemed to be uneven in that sense.

ROSETT: Yes.

BIRDWHISTELL: That not only did the seams show, but sometimes the . . . the . . . the logic . . .

ROSETT: Yes.

BIRDWHISTELL: . . . was uneven in . . . in how you would . . . I'm not a lawyer, and I'm not trained in that, but they . . . they 30:00said that it would be hard to follow the . . .

ROSETT: Yes.

BIRDWHISTELL: . . . the development of the opinion.

ROSETT: No one would say that Stanley Reed's opinions march inexorably from initial premise to conclusion. [chuckle--Birdwhistell] They meander and sometimes they double back, and [chuckle--Birdwhistell] there are paragraphs that do not sit comfortably with other paragraphs. And he is not the most cited or admired justice that way. But that's because people are looking for something different in them than what was . . . what . . . than what's there. If you . . . if you know the secret, if you know what you're reading and you're not looking for another literary style that's much more magisterial and much . . . then there's a lot of very interesting stuff in his opinions, because it does disclose a lot about his thinking process in . . . in a way that frequently a very neatly tooled, coherent lawyer's 31:00argument doesn't disclose the process that l- . . . led to the conclusion. It's an evocative document. It advocates a point of view and more than explains the process by which the decision was reached. Stanley Reed's opinions, I think, are fairly good if you look at them . . . if you want to know how a justice reached an opinion . . . reached a decision, and what were the countervailing concerns that were considered and rejected. It's a pretty good track of the process leading to a decision, rather than something that explains or persuades the uninitiated regarding the decision.

BIRDWHISTELL: Umhmm. That's a . . . that's a good explanation of that. He really didn't like to write, did he? Or he found it difficult, maybe? Is that . . . is that fair?

ROSETT: I have the feeling that he didn't like to start from the beginning and write to the end, yeah. He much preferred to edit. 32:00And I think that probably goes to the other clerk that you mentioned. You know, it's . . . it's clear that it . . . in terms of the uninitiated or the grea- . . . the la- . . . broader professional audience, a lot of his opinions would have been helped by a final pruning edit that just left in the parts you wanted to make and didn't express all the doubts or didn't . . . that moved more coherently. But that wasn't necessarily what he was about. [chuckle-- Birdwhistell] That wasn't . . . that wasn't his audience.

BIRDWHISTELL: Yeah. So you . . . you would argue that he s- . . . he set out and did just what he . . . he did just what he set out to do, is show how he arrived at . . .

ROSETT: How I got here.

BIRDWHISTELL: . . . how he got there. This is where I've been and this is . . . this is the end . . . this is the opinion. You mentioned that his work on the Court of Claims and Court of Appeals, he 33:00liked the Court of Claims much better. Why . . . why was that, do you think?

ROSETT: Well, some of that was subject matter. The Court of Claims had a couple of things that used to just . . . he used to love. I . . . I'm sure everybody told you this. He . . . he loved . . . he loved Indian cases.

BIRDWHISTELL: Hmm. He liked . . .

ROSETT: He had a . . . he had a terribly . . . he had a ter- . . . I think he had a terrible opinion on the merits of Indian law, [chuckle] but . . . but he sure . . . he knew where he stood, and it was in the perfect understanding of . . . of a man who identified himself as in the same group as those who conquered the Indians [chuckle--Birdwhistell] two ce- . . . he . . . he ver- . . . in fact, that was the term he used very explicitly. In fact, I think it appears in . . . in o- . . . in the opinions. He saw them as conquered people. He saw the abrogation of the Indian treaties by the revised statutes of 1876 as a perfectly legitimate way to deal with subject people. And he was quite in- . . . unsympathetic. 34:00He and Hugo Black, I think, were probably on . . . you know that Hugo Black wrote, I guess it was a dissent in the Tuscarora case, the term I was there, you know, "White man speaks with forked tongue." [chuckle--Birdwhistell] "Since George Washington, we've promised . . . we've . . . President George Washington signed a treaty which said that until the rivers . . . as long as the rivers flow, this will be Indian land, these waters will be Indian waters," etc., etc. and "white man speak with forked tongue." Stanley Reed was not . . . was a . . . was a . . . was a very vigorous advocate of the other point of view. He also liked government employee cases . . . pay cases that had kind of hidden constitutional issues in them, I remember. I'm trying to pull them all back . . . pull them all back. He also . . . some of the Court of Appeals cases was . . . obviously were not that much fun, but the other . . . the 35:00other side of the coin which I wanted to mention was, I think he also enjoyed the process in the Court of Appeals in those days. He liked the personnel. He liked . . . was it Whitaker? Not . . . not the Justice Whittaker, but there was a . . . Sam Whitaker, was it, on the Court of Claims? There were personnel there that he liked. There was still Chief Judge Jones. I d- . . . it was . . . it was . . . it was . . . it was an old f- . . . it was an old buddy of Sam Rayburn's, Chief Judge Jones. It was a friendly, small-town kind of court [chuckle--Birdwhistell] there across the street from the White House, and he . . .

BIRDWHISTELL: Right.

ROSETT: . . . and he was . . . he was friendly . . . he was comfortable there, and he in- . . . he . . . he liked the . . . he liked those technical puzzles that they get in the Court of Claims. In the Court of Appeals, we had a much broader range, and it . . . already it was a much bigger court, the . . . the Court of Appeals. I mean it was . . . it was an urban court. [chuckle] And I think he liked Judge Edgerton, with whom we shared chambers, very much, and 36:00. . . but I sometimes got the feeling he was less comfortable with some of the . . . with some of the other members of that court.

BIRDWHISTELL: Did he ever talk to you about his retirement from the Supreme Court [and] why he decided to retire when he did?

ROSETT: Umhmm. Yeah. He al- . . . he more than once cited Charles Evans Hughes. He said that he remembers the conference when Charles Evans Hughes came in and told the brethren that he had sent his letter of resignation up to the president and he said, "I have decided to get out now and avoid the delusion of adequacy." And Stanley Reed said he tucked that away in his head somewhere when heard that in 1940, I guess. And he decided when he hit seventy-five, he was not going 37:00to stay on till he got shot out of the saddle. And, you know, when you look at Reed's contemporaries on the Court, when you look at what happened with Douglas and Frankfurter, both of whom probably stayed too long, he was probably right.

BIRDWHISTELL: And, of course, Reed goes back to the days of the court- packing attempt by [Franklin D.] Roosevelt because of the "Nine Old Men," and it must have had an influence on him, I . . .

ROSETT: Yeah.

BIRDWHISTELL: . . . suppose.

ROSETT: Yes, he . . . yes, he did. In fact, he used to . . . he . . . you remind me . . . it . . . it comes to mind. He told . . . I think it was at his seventy-sixth birthday party . . . Reed's seventy-sixth birthday. No, that doesn't fit. Maybe it . . . well, I . . . I may be off. But, I rem- . . . Reed told the story that . . . he replaced [James] McReynolds, who was . . . right? . . . who was really a nasty son of a bitch [chuckle-- Birdwhistell], and very difficult. No, he did not replace McReynolds, because McReynolds was still around at the very end. I've got . . . 38:00he must have replaced [George] Sutherland.

BIRDWHISTELL: I think that's . . . that's how it went.

ROSETT: That he replaced Sutherland. And McReynolds was still around and . . . anyhow, the point of the . . . the tale was, he . . . again it's a Charles Evans Hughes story. He really did . . . he really did remember, with tremendous respect and affection, Charles Evans Hughes. It was Justice McReynolds' seventy-sixth birthday, and the . . . the brethren gathered for a conference, or to go on the bench, and no Justice McReynolds. And the chief justice sent a messenger off to inquire at Justice McReynolds' chambers where Justice McReynolds was? And the note came back that Justice McReynolds had gone duck hunting. To which Charles Evans Hughes said, "Well, that's the Spirit of Seventy-six." [laughter]

39:00

BIRDWHISTELL: The Spirit of Seventy-six.

ROSETT: And I think he viewed that group of men as having hung around too long.

BIRDWHISTELL: Umhmm. You know, I . . . I don't . . . I don't know that anybody's mentioned this to me, but I would think that it would have been a hard . . . it was hard for him, though, to . . . to quit when he did, in many ways.

ROSETT: Well, he didn't really. He wouldn't eat lunch with the brethren while they . . . on days that they were hearing cases. That was his rule the year I was there. But on other days, he would carry his little jar of rice and his pear up and sit with them. He . . . he walked to work with . . . with Clark and Frankfurter, but not so much Frankfurter anymore. Frankfurter was getting ill more. But w- . . . Tom Clark would . . . would walk down Connecticut Avenue and pick up Reed at the Mayflower [Hotel], and they'd go on to . . . walk to the Court together, which for men of that . . .

40:00

BIRDWHISTELL: That's a pretty good trek.

ROSETT: . . . pretty good trek, yeah. [chuckle--Birdwhistell] He . . . he showed up at everything. And in fact, the thing that . . . that he . . . that I remember him enjoying most was his place on the social list. I mean, he'd starve himself on that . . . that little jar of rice, which you must have heard about from everybody, at lunch and . . . and a major reason was because he loved to go to those diplomatic dinners where, because of his high place in the diplomatic list, he had a . . . a rather privileged position. He . . . he once told me . . . I think it was the Chilean ambassador. I may have the Latin American country wrong. But he said, "You know, the Chilean amb- . . . ambassador's cook makes more than the chief justice of the United States." [chuckle]

[End of Tape 1, Side 1]

[Beginning of Tape 1, Side 2]

41:00

ROSETT: . . . and he really liked those meals and . . . and liked being able to go and sit with . . . with the high rank that his . . . that his . . . so that, in a way, . . . he . . . he did take a nap after lunch, which I'm sure he didn't do while he was active, but he stayed till five o'clock, it seems to me, and he was in fairly early in the morning.

BIRDWHISTELL: So it was really a . . . a . . . not a bad situation for him, is what you're saying. That he was able work on cases that he pretty much liked. He got to hang around with the other justices, who'd be- . . . he'd become friends with, and still have some social standing in . . .

ROSETT: And I think the case . . . it's . . . it was . . . the same thing happened with Earl Warren. I think that, although . . . you know, the . . . the Warrens never unpacked. Mrs. Warren never unpacked her china from 1952 to 197-something [chuckle--Birdwhistell]. No, that's true.

BIRDWHISTELL: I didn't know that.

ROSETT: And I'm sure that Mrs. Reed, "Winnie," never . . . always 42:00insisted that home was Maysville and that that hotel apartment in the Mayflower was just where they sojourned. [chuckle--Birdwhistell] But that . . . that home . . . they were going to go back home. But they both lived a long time, and they never did go back to Maysville, to my knowledge.

BIRDWHISTELL: Umhmm. That was one of the questions that I had to . . . to ask you later. I'll go ahead and throw that out now, why he didn't return to Kentucky. Because he just enjoyed it so much where he was, I guess?

ROSETT: I think Tom Wolfe wrote a book with that as a title, didn't [chuckle] he?

BIRDWHISTELL: Okay.

ROSETT: I di- . . . I . . . I . . . I . . . I . . . people who knew him on a more personal level than I did may . . . would have to answer that.

BIRDWHISTELL: Yeah. That social life was important to him, with the . . .

ROSETT: The Washington social life.

BIRDWHISTELL: . . . the Washington social life.

ROSETT: Very much so, to both of them.

BIRDWHISTELL: Yeah.

ROSETT: And, you know, he had been there already close to forty years by the time I came along.

BIRDWHISTELL: Yeah.

ROSETT: So . . . am I right? Yeah, 1920.

43:00

BIRDWHISTELL: Yeah. Yeah. 1920s or 1930s.

ROSETT: `20s or so. There weren't a lot of . . . Maysville may have been a dream, . . .

BIRDWHISTELL: Umhmm.

ROSETT: . . . although it was a dream with plots and . . . and [chuckles] metes and bounds and title maps, I know.

BIRDWHISTELL: Yeah. Yeah.

ROSETT: But . . .

BIRDWHISTELL: And he spent time on . . . on working on the farm business and the . . .

ROSETT: Oh, yeah.

BIRDWHISTELL: . . . various ventures back in Maysville.

ROSETT: Well, I'm sure every clerk has mentioned that.

BIRDWHISTELL: Umhmm.

ROSETT: Yeah. Oh, yes. And it was . . . they were all very . . . it was a good way to combine worrying about the constitutional issues that the Supreme Court of the United States dealt with, with learning a little Kentucky real property law. [chuckle--Birdwhistell] They were all re- . . . they were all the equivalent of fender-bender kind of problems that he had [chuckle--Birdwhistell], you know. Thirty-five dollar franchise hikes. I don't remember the exact kinds of numbers, but they were . . . they were very . . . of very minor matters, and questions of problems with the tenants, and . . . and I remember 44:00getting . . . a . . . a day spent with some issue that the . . . that the maps of those . . . those farms. I remember playing with them, but I couldn't tell you at all what we did or what it was for. But, yes, he . . . he liked to pore over them like a general. But [chuckle--Birdwhistell] . . .

BIRDWHISTELL: That's interesting. Hmm. What about his opinion of . . . of the other people on the Court at that time when you were there? The . . . who was he . . . who did he feel closest to, and who was he really not . . . not close to at all?

ROSETT: I think he was closest to Tom Clark. And I think he had great respect for Felix Frankfurter, which, for him, was a kind of affection. And I think he liked Earl Warren. I think he didn't know Potter 45:00Stewart very well. I didn't get the--I'm going around the outer rim of the Court--I didn't think that there was any great . . . anything going between him and Justice Harlan, although I think they respected each other. They were two very . . . two very much gentl- . . . in . . . in a way, two gentlemen cut from . . . from not dissimilar patterns, although one was a New York corporate lawyer type primarily, and . . . and the other was a . . . a . . . I guess th- . . . that Justice Harlan had Kentucky roots too, though, at some point.

BIRDWHISTELL: At some point.

ROSETT: I have a feeling that there had been some unhappy coolness between Justice Black and Justice Douglas and . . . and Justice Reed 46:00that had left real scars, and I suspect that some of that went back to the Jackson days. But I . . . I never heard that from the justice, except . . . I don't think he had anything going with Justice [Charles] Whittaker at all. Justice Clark. I'm over to Frankfurter. I'm over . . . Justice [William] Brennan, I'd . . . I think they were very polite, but not . . . didn't have any . . . anything running. I think that's the nine.

BIRDWHISTELL: Did he ever talk with you about . . . at any time, about the Brown [Brown v. Board of Education of Topeka] decision and his involvement in that?

ROSETT: I think I heard that more from the chief and Black, frankly, than I did from Reed.

BIRDWHISTELL: About Reed's role in that?

ROSETT: And that was always said in a very . . . I . . . I . . . I never heard the story. I really couldn't repeat it because I really don't have it . . . I know that there's a story.

47:00

BIRDWHISTELL: Yeah. Well, it keeps appearing in e- . . . you know, every book that comes out . . . nearly every book that comes out mentions Reed as the last holdout in that . . . in that decision.

ROSETT: I know that the chief justice felt that getting Reed into the boat was a very major accomplishment on his part, without a separate opinion and the like. And . . . but I don't . . . I don't know the story. I came along five years later.

BIRDWHISTELL: Right.

ROSETT: And there were allusions, but I don't know the story.

BIRDWHISTELL: Okay. One writer who has . . . who has written some . . . an . . . an article on . . . on Justice Reed suggested that it's not easy to label Reed; he tended to be an economic liberal and a civil rights conservative. I was wondering what . . . how you would react to that?

ROSETT: Well, yeah. I mean, if . . . if . . . if those are your parameters, that's the way you're going to come out. He . . . I 48:00think the tale I told you before about him and Felix Frankfurter sheds a little light. He was a man who was not suspicious of government. He was not suspicious of authority. And therefore, on economic matters, he was prepared to let government do what it wanted to do. And in . . . in some ways he represents Justice [William] Rehnquist, who . . . while I hardly agree with his views on the merits, I understand as a person, and who, I think, in this respect is quite like Justice Reed. Very permissive of government authority to do what government, by a majority vote, decides it wants to do, and not suspicious that it's . . . doesn't see government as "them." They're both the opposite of Ronald Reagan, who has always . . . who has made a career out of talking about government as "them." [chuckle--Birdwhistell]

BIRDWHISTELL: "Them" and "us" sometime, right?

ROSETT: "Them" . . . "them" is . . . certainly. That's certainly true. And . . . and if . . . and if . . . and if the Reeds and the Rehnquists of this world suffer from a fault, it's that they always see "them" as "us." [chuckle] Whenever . . .

49:00

BIRDWHISTELL: The two are . . .

ROSETT: . . . sometimes [chuckling] "them" are "them" [laughter], you know. "They" are "them."

BIRDWHISTELL: That's great. That's great. [chuckle]

ROSETT: So I . . . I . . . I think the dichotomy is a result of the analytical framework, which doesn't fit the way his thinking went.

BIRDWHISTELL: Yeah. I . . . I think some people forget Reed's roots sometimes in the New Deal. And the . . .

ROSETT: Yes.

BIRDWHISTELL: . . . and, you know, as Solicitor General, and . . .

ROSETT: Right.

BIRDWHISTELL: . . . a believer in the government can . . . involvement will help those types of things. One thing you've mentioned, I think, also illustrates the other noticeable leaning that he had as a justice, and that's judicial restraint. You said big government . . . government can do whatever it wants, as long as the majority of people vote for it. But he didn't see, apparently, the Court as an institution of social change.

ROSETT: That's right. That's right. I mean, that . . . that's consistent.

BIRDWHISTELL: Uh-huh.

ROSETT: That is, the . . . the . . . that the Court should be 50:00relatively permissive to government doing what it wanted to do.

BIRDWHISTELL: Uh-huh.

ROSETT: I think by the time I came along, he was used to having law clerks who were really quite hostile to a lot of things he . . . I mean, so sometimes he'd tease you a little bit in his . . . in . . . [chuckle--Birdwhistell] his kind of way. But, as I said, I was more . . . much more conservative when I was younger. Much more conservative than I am now. I . . . I . . . I don't know where . . . I don't know where I shifted, but . . . but I wasn't . . . I was . . . I remember being quite bothered by his attitude toward Indians. That was the one area there were . . . where I . . . where I really felt he was off base. And I'm sure he was a man of his prejudices. I mean, so what, who isn't? But . . .

BIRDWHISTELL: It's interesting. You mentioned your change as a shift. My next question was . . . of course, he was a second appoint- . . 51:00. appointment . . .

ROSETT: Umhmm.

BIRDWHISTELL: . . . of Roosevelt, and when he went on the Court he was obviously left of center, if you want to use that label. By the time you were . . . you knew him, . . .

ROSETT: Oh, he was off the scale by the time I . . .

BIRDWHISTELL: . . . he [chuckle] . . . he was . . . he was right of center.

ROSETT: Oh, very far.

BIRDWHISTELL: And, I guess, you know, the question is, did . . . did . . .

ROSETT: He looked to Felix Frankfurter as Left.

BIRDWHISTELL: Umhmm. Yeah. That's right, he did. And . . . but I . . . I ask people the question, you know, did . . . did Reed change, or did the Court change? You know, sometimes the events . . . you . . . you stay the same, and the . . . and the . . .

ROSETT: I think . . .

BIRDWHISTELL: . . . [inaudible].

ROSETT: . . . the Court changed, and the issues changed. And I think that . . . I . . . I . . . I haven't gone back and done this, but I suspect you could read . . . you could read the justice . . . Justice Reed's opinions from the beginning to end, and there wasn't a great deal of motion.

BIRDWHISTELL: Umhmm.

ROSETT: The issues changed.

BIRDWHISTELL: And that can make a big . . . that . . . that can 52:00have a big effect on where he . . . he would come out then, on the . . .

ROSETT: Well, you know, in retrospect, we've become very doctrinaire about this. I'm . . . I'm . . . I'm . . . I must confess I'm not . . . I don't teach constitutional law. I'm . . . I'm really a little bit out of my depth on some of this. I follow the Court, but I'm not really an expert. But, you know, if you look at the Court in the early `40s during the formative years of Reed . . . Reed, Douglas, Frankfurter, and Black, and Jackson, taking those . . . and [Harlan] Stone was already very experienced as a justice, but . . . the wa- . . . they waffled on a whole lot of issues because a lot of those issues were coming up for the first time. Remember the flag salute cases, for example, . . .

BIRDWHISTELL: Umhmm.

ROSETT: . . . where again Re- . . . Reed's position is somewhat problematic, but he . . . but he wasn't the only one waffling around like that! Hugo Black waffled around on those issues, and so did Bob Jackson! And I find it . . . you know, I don't . . . I . . . 53:00I think that . . . that when we . . . if . . . we've had too many political scientists and historians come along getting Ph.D.'s by writing about the ideology of justices, and I don't think it was an ideological operation. [laughter]

BIRDWHISTELL: Then how would you . . . hi!

UNIDENTIFIED PERSON: Excuse me.

[Interruption in taping]

BIRDWHISTELL: You were talking about the . . . the way that political scientists and . . . and historians try to analyze the Court or a particular . . .

ROSETT: Characterize . . .

BIRDWHISTELL: . . . justice.

ROSETT: . . . them.

BIRDWHISTELL: Characterize them.

ROSETT: Umhmm.

BIRDWHISTELL: How should . . . and in your . . . in your opinion, how should they be . . . how should it be looked at, as a . . . if . . . if you don't look at it that way?

ROSETT: Well, you know, ultimately being on the Supreme Court is a very individualistic position, and very few of those appointed at the Court 54:00were appointed because of a clearly known ideological position. And . . .

BIRDWHISTELL: Right. Right. Yeah.

ROSETT: . . . and they were . . . men were appointed because of demonstrated character or a perspective. I'm using much softer words than ideology or philo- . . . or a specific position on specific issues. In fact, I think that . . . that to . . . to nominate someone to the S- . . . to the Supreme Court because of his position on a particular issue would be a gross abuse and . . . and a big mistake, because the range of issues that come before the Court is so broad [that] the best thing you can do is appoint somebody who you have some hope that they've got a good head and that they'll . . . they'll work their way through the issues. Because who the hell could have predicted in 1937-38 what that Court was going to be confronting in the mid-1950s?

55:00

BIRDWHISTELL: Right. It's kind of like the new politics of electing one-issue candidates.

ROSETT: Yeah. Exactly.

BIRDWHISTELL: Where you elect them on the issue of abortion, and then they have to go vote on everything from foreign policy to nuclear disarmament.

ROSETT: And look at . . . look at Hugo Black. Now, that . . . there's a . . . there was an . . . an example of someone who was . . . at the time of his nomination, they were so worried about his position on issues, . . .

BIRDWHISTELL: Right. Yeah.

ROSETT: . . . and, of course, that was just to- . . . or Earl Warren. And I . . . and I . . . I think Stanley Reed very much fits that. Whereas a Hugo Black rem- . . . remained to the very end the man he was. Earl Warren, I think, was always the man he was. I certainly know that he always talked about where he came from and . . . and . . . and felt that that's who he really was. And Stanley Reed always was what he was, and that . . . and that person had very little reason to question authority. He believed that people 56:00were generally sensible, and that the decent . . . the right people, people of . . . of good background and good sense, who had a stake in the operation, would come up with the right id- . . . pretty good ideas, and that you shouldn't second-guess them.

BIRDWHISTELL: Hmm. That's . . . that's a pretty fair assessment. [inaudible] Reed had been, at one time, a so-called "political lawyer" in his . . . in his career. What were your impressions of his relationship with the political community in Washington? Was he interested in politics? Did he talk with you about, for example, maybe the upcoming presidential campaign or the politics of . . . of Washington?

ROSETT: No. I don't r- . . . I . . . I don't remember that at 57:00all. I mean, I . . . I learned a lot about Cali- . . . about . . . about po- . . . politics and Republican politics from Earl Warren and . . . and . . . and . . . and heard a lot about the 1960 campaign from Felix Frankfurter, but I don't remember Justice Reed . . . he was quite close to Tommy Corcoran, I knew. And that . . . that . . . who, at that time, was still active politically. And Harold was fairly active politically, of course--Harold Leventhal.

BIRDWHISTELL: Umhmm.

ROSETT: He was counsel for the [Democratic] Party, I think, at that time. But I don't . . . I can't . . . I . . . no, I don't . . . I d- . . . I . . . I can't help you. I . . . I don't have any recollection of that at all.

BIRDWHISTELL: Well, I . . . I'm not surprised that you don't. I think I . . . I get the impression that he would . . . if . . . when 58:00. . . when he'd ask you to come in, he would more likely talk about a . . . a . . . a legal case maybe, or an opinion, or . . .

ROSETT: It'd start off with a case and then frequently would end up with the New Deal.

BIRDWHISTELL: With the New Deal. Right. And then back to that, rather than . . .

ROSETT: Yeah.

BIRDWHISTELL: . . . than politics . . . current politics.

ROSETT: Right. There was relatively little discussion of what happened during the twenty odd years he was on the Court [or] of . . . of brethren. There was little gossip about that from him. And there was little talk about politics. A lot of talk about Maysville. He was very big on . . . I . . . the word primogeniture keeps coming up. The Order of Cincinnati was a big deal the year I was there. I don't know whether that was other years as well, but that's a very s- . . . I . . . well, whether he was just . . . that was something he was currently into, but I have a v- . . . or whether it was just 59:00something that made a very strong impression on me, and time [chuckle- -Birdwhistell] has . . . it has been a long time. But I . . . I . . . that . . . that sticks out in my mind. I had never heard of any of that stuff, and I had never . . . it . . . it was not something that . . . wasn't just in my consciousness, and it seems to me that both of . . . we wrote . . . there were speeches written, and there was a research of some sort, which I can't remember exactly what it was about. But he was very concerned . . . was he becoming a member of the Order . . .

BIRDWHISTELL: I don't know.

ROSETT: . . . of Cincinnati?

BIRDWHISTELL: I need to check on that when I get back.

ROSETT: Yeah.

BIRDWHISTELL: Because I was interested, you know, that apparently that year you were there, he did . . . from what you've said, he did spend more time on it than I've heard ever . . .

ROSETT: Yeah.

BIRDWHISTELL: . . . anyone else has ever mentioned.

ROSETT: Well, I can't . . .

BIRDWHISTELL: Maybe there was something going on that year that I'm not . . .

ROSETT: There was something going on, and I . . . and . . . and there was something that . . .

BIRDWHISTELL: I should probably know about it.

ROSETT: . . . it came up in a lot of ways. Like for . . . I mentioned that conversation about Jus- . . . Judge Washington. I mean, you know, out of nowhere primogeniture and all that sort of stuff was very much in his head. I don't . . . I don't know what that was all about. But . . .

BIRDWHISTELL: I need to check on that . . .

ROSETT: Okay.

60:00

BIRDWHISTELL: . . . when I get back. Yeah. Did he talk much about his sons or his family?

ROSETT: Yeah, he talked about the boys . . . about John and young Stanley. More, I remember, from . . . about John than about Stanley. John used to be around. Make . . . let me make . . . let me make sure I've got them right. John . . . John has a . . . has a . . . has a bad leg.

BIRDWHISTELL: Right.

ROSETT: Yeah. John . . . John was . . . was a . . . was . . . would . . . would call on his father, and I think there was a . . . a . . . a lot of visible closeness there. I r- . . . I remember hearing about Stanley and Stanley's in-laws, if I've got it right, but I don't remember . . . that's ha- . . . boy, you're really talking about gossip from twenty-five years back.

BIRDWHISTELL: I [chuckling] know. I know it's not fair. [chuckle] Sometimes in this business we just have to throw out questions where there aren't answers, just to see if there is one. [chuckle]

ROSETT: Well, the amazing thing to me is . . . is . . . is how my mind still has that on file. I'm . . .

BIRDWHISTELL: Oh, yeah. Yeah, it works that way.

61:00

ROSETT: Yeah.

BIRDWHISTELL: It really does.

ROSETT: There was something about Stanley's in-laws, but I can't . . . I can't pull it back.

BIRDWHISTELL: I guess, in sort of bringing this to a close, I might ask how you would evaluate Justice Reed's overall career, looking at it from the time you worked with him very closely there for a year, and then from a perspective of where you are now. Just sort of a . . . an overview of what . . . what his career was about, you know?

ROSETT: Well, I think those are two . . . when I . . . as I looked at it then, I think . . . no, I think there . . . they're not really two questions. I don't . . . I think I . . . I . . . I'm . . . I consider myself a great admirer of Stanley Reed's. I really do. I think that he was a . . . a . . . a great man of his age and, in a way, the fact that he came . . . he, like Franklin Roosevelt, came to the problems that he's most memorably dealt with 62:00not from the kind of knowledge of the . . . of the oppressed, if you will, but by some capacity for empathy and . . . and human warmth. Because they both had that. The comparison with Roosevelt that way is interesting. I don't think I've ever consciously thought about that before, but another patrician, landed gentleman who somehow found himself in a time of crisis . . .

BIRDWHISTELL: And Justice Reed probably wouldn't mind that comparison. [chuckle]

ROSETT: No, I'm sure he wouldn't, because he always . . . certainly didn't . . . I . . . but I . . . I . . . Stanley Reed obviously was not on the same level of activity as . . . as . . . as President Roosevelt, although my distinct impression is . . . what I've read of the New Deal, if you look at the durable accomplishments of . . . of the first two Roosevelt terms, a lot of them came out of that bunch of guys that worked in . . . in 63:00the early days, that came out of the R.F.C., and then came out of the S.G.'s office. And then . . . they . . . it was there. And I suspect that . . . that . . . that Ju- . . . Stanley Reed had a . . . had his hand in that more than I know about it, because I'm not . . . I'm just not familiar with that. But I think that . . . he was o- . . . his . . . his period on the Court, the Court did great things. Very few of those are the personal monument of Stanley Reed. He wanted to be in the middle. He wanted to be . . . have everybody . . . I mean, he wasn't looking for a fight, particularly. He wasn't a contentious kind of a person. He wasn't an ideologue. But he c- . . . he played his part in it, and he was there. And the period over which that can be said is really a rem- . . . remarkable. He . . . he's . . . he's certainly a very . . . 64:00he's certainly an American who . . . whom . . . whom, in a . . . in a time which ideology is so important, we tend to undervalue, I think. Because he was a man who really brought personal . . . a . . . a personal force and a personal perspective that was, I think, very val- . . . just . . . just look at his monuments. They . . . they stand.

BIRDWHISTELL: Umhmm. Umhmm. One gets the impression that Justice Reed felt fortunate in his career . . . felt that he'd been very fortunate.

ROSETT: Yeah.

BIRDWHISTELL: Did he . . .

ROSETT: He used . . .

BIRDWHISTELL: . . . give you that impression?

ROSETT: . . . to say that. He used to say that.

BIRDWHISTELL: Did he?

ROSETT: He must have . . . you've heard that from others.

BIRDWHISTELL: That . . . that is a . . . sort of a . . . a consistent . . .

ROSETT: Yeah.

BIRDWHISTELL: . . . pattern, that . . . that he was . . . he was . . . I don't know if humble's the right word, but he . . . he was certainly . . .

ROSETT: Well, he felt that it . . . he'd gotten some lucky breaks. That he . . . that coming to the R.F.C. at the time he did, which 65:00was really a . . . you know, the Burley Tobacco Cooperative.

BIRDWHISTELL: Right.

ROSETT: He came during the [Herbert] Hoover administration . . .

BIRDWHISTELL: Right. [chuckling]

ROSETT: . . . and . . .

BIRDWHISTELL: That wasn't a good time to be getting involved, I guess.

ROSETT: Well, but he . . . he hung on.

BIRDWHISTELL: Yeah, that's what I mean. Yeah.

ROSETT: I later did the same thing. I mean, I . . . I s- . . . I was an [Dwight D.] Eisenhower appointee and then hung on under [John] Kennedy, and I . . . and you . . . if you're a technical lawyer, you can do that. But it's a [chuckle--Birdwhistell] . . . I . . . I . . . I know that he felt very lucky that he had had the chance to . . . to be there at . . . when those things where happening. And . . . and the point that we've come back to several times is the clearest demonstration of that. When you had a dark and rainy winter afternoon in Washington, [in the] middle of the afternoon that buzzer would buzz and the conversation would start on something, but what Stanley Reed wanted to talk about was . . . was the New Deal.

BIRDWHISTELL: I wish you'd had a tape recorder there when you went in there.

ROSETT: Yeah, me, too.

BIRDWHISTELL: That would have really . . . see, we don't have him on . . . on tape, talking about those things.

66:00

ROSETT: You don't?

BIRDWHISTELL: No.

ROSETT: The . . . the . . . the Columbia tape doesn't talk about it, either?

BIRDWHISTELL: Well . . . well, the . . . we don't, at . . . at our place.

ROSETT: I see.

BIRDWHISTELL: Yeah. You know, we never had the opportunity to take him from the very beginning of his . . .

ROSETT: I see.

BIRDWHISTELL: . . . to go through . . . you know, do a . . . a life history, so to speak.

ROSETT: That's too bad.

BIRDWHISTELL: Yeah.

ROSETT: Because he did do the Columbia thing.

BIRDWHISTELL: Right. Right.

ROSETT: And . . .

BIRDWHISTELL: Yeah, I've read that. I've read that interview.

ROSETT: Oh, yeah?

BIRDWHISTELL: Read a transcript of it.

ROSETT: Well, it was a great education for me. I . . . at . . . and I . . . left me with a great sense of warmth about the man. I don't think he saw it in personal terms. That is, he did not see it as some great shifting force in the grand scheme of American life, blah, blah. He saw that as individuals, whom he felt happy to have known and worked with, working together on something which they had a real . . . really exciting time [chuckle--Birdwhistell] . . . "What a . . 67:00. what a case! That jury, I thought it would never come back," you know, [chuckle] that kind of thing. And that's the way he kind of saw those . . . those jobs. He wasn't on a grand campaign. I . . . he didn't have some . . . some particular horse he was riding.

BIRDWHISTELL: Right.

ROSETT: But he sure did enjoy being there, and he liked the people that he dealt with.

BIRDWHISTELL: Well, I appreciate you taking the time today to . . .

ROSETT: It's fine.

BIRDWHISTELL: . . . to talk to me about this.

ROSETT: I'm . . . I'm amazed at . . . at the kinds of things come back to my mind, because it . . . it is just twenty-five years. I don't know where I've g- . . . have those stored up, because I haven't talked about Stanley Reed [chuckle] to many people in the last twenty-five years. Bye-bye.

[End of Interview]

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