The U.S. Army’s Hiring of Attorney Joseph Welch for the Army-McCarthy Hearings

The Army had many lawyers of its own, and it had a call on lawyers from the Department of Justice. Why then did the Army decide to hire a private attorney? The answer has not been discovered. One reason could be that the Army’s chief legal Counsel, John G. Adams, was included in the charges of improper conduct by McCarthy, and this presented a conflict of interest that prevented his representing the Army and other officials.

In any event, the Army did search for a private attorney. Its first choice, an unnamed prominent Washington, D.C. lawyer, declined the request because he had been associated with a person who might be vulnerable to a McCarthy smear.

Sherman Adams
Thomas E. Dewey
Bruce Bromley

 

 

 

 

 

 

 

Welch apparently was number two on the Army’s list. He was retained, pro bono publico (without fee), for the Army by Sherman Adams, President Eisenhower’s Chief of Staff, upon the recommendation of two Wall Street lawyers: Thomas E. Dewey, the former Republican Governor of New York and the Party’s presidential nominee in 1944 and 1948, and Bruce Bromley, a former New York State judge (appointed by Governor Dewey) and a senior litigation partner in the law firm of Cravath, Swaine & Moore.[i]

Bromley knew Welch and his reputation as an exceptional trial lawyer with the eminent Boston law firm of Hale and Dorr (now WilmerHale), where since 1919 he had been handling all kinds of commercial civil litigation in courts in New England. Bromley introduced Welch to Dewey, who after an interview joined in a joint recommendation of Welch. But Welch had no experience with national security or political matters, and like almost all lawyers of the time no experience in congressional hearings, especially those on national television. These facts, however, did not disqualify him and indeed may have been seen as qualifying characteristics.

Perhaps one reason for Welch’s selection was his being from Boston as was the first outside lawyer for the Committee, Samuel Sears, who immediately withdrew because of public comments he had made in favor of McCarthy. Before Sears’ withdrawal, however, Welch told him, “I want to talk with complete frankness. You and I can’t afford to have any holding out on the other. I want your confidence, and I want you to have my confidence, and I want to come out of this with each of us the friend of each other.”

Edward R. Murrow

Bromley’s recommendation of Welch suggests another possible connection between the two men. At the time, Bromley and his firm had been retained by the CBS television network to help it prepare for the anticipated counterattack by Senator McCarthy in response to programs attacking the Senator by Edward R. Murrow. Given how practicing lawyers operate, based upon personal experience, Bromley and Welch probably exchanged information and suggestions about doing battle against the Senator.

David Stratheim as Murrow
George Clooney as Friendly

 

 

 

 

 

 

By the way, Murrow’s programs about McCarthy were at the center of the recent film, Good Night, and Good Luck. The film has a scene of Murrow (played by David Strathairn)and his show’s producer ,  Fred Friendly (played by George Clooney), watching a video clip of the famous 1954 clash between Senator McCarthy and Welch.

Before Welch accepted the offer to be counsel for the Army, he told his law firm partners that he had been asked “to undertake a grueling assignment. It will be long drawn out. I shall have to stay in Washington and I must take two of our best Juniors with me. In exchange, the Army will pay no fee and will not even pay travel and hotel expenses. Also, it is a dangerous assignment. Senator McCarthy is a powerful antagonist. If we have any skeletons in our closets let us say ‘No’ at once.” The partners then unanimously voted to accept the case. One partner ironically observed that another partner, Reginald Heber Smith, who was a national leader for legal aid, had “talked Legal Aid all his life, and now he has a Legal Aid client in the person of the Army of the United States.”

Although I have not found information as to why the Army apparently insisted on a private attorney’s undertaking this representation on a pro bono basis, the Army (and the Eisenhower Administration) may have wanted to avoid criticism by the public and Senator McCarthy of large fees being charged by a private law firm.

In any event, Hale and Dorr accepted the pro bono status. The firm regarded the matter as important for the public, but undoubtedly did not expect the hearings to last as long as they did. Their length obviously increased the cost to the firm; it had to have been a major drag on the firm’s finances for 1954. As Reginald Heber Smith later observed, “The cost was very heavy.”  This engagement, however, subsequently added to the firm’s professional luster and undoubtedly helped in its recruitment of new lawyers and perhaps its retention by some clients.

Another reason for the firm’s pro bono role was not wanting to get sued by a McCarthy supporter in Boston over any fees it would have received if it were fee-for-service.  After all, McCarthy was an Irish Catholic, and there were many of those in Boston, including the patriarch of the Kennedy clan (Joseph Kennedy), who was a McCarthy supporter, and his son, Robert F. Kennedy, was a lawyer for the Democratic members of the McCarthy committee.

Hale and Dorr thus entered the fray as a matter of public service. Reginald Heber Smith said at the time to Welch: “This is your most important case in your professional life; it is the most important case entrusted to the firm . . . . You were exactly right to accept it without pay. . . . Your opening statement to the press was perfect. Get the facts without fear or favor,  present them in that same spirit. The American people are not frightened by mistakes because we all make them; but they are dismayed by what looks like lack of candor and double talk. You can remove this fog of miasma and doubt.  Let the fresh wind of truth come in and do not be disturbed if it blows hard. After that the sun will shine.”


[i]  From 1966 through early 1970, the author was a law clerk and associate attorney at the Cravath firm and worked with Judge Bromley. But I was unaware of the Bromley-Welch connection and thus never interviewed Bromley about his recommending Welch for this important engagement.

Attorney Joseph Welch’s Performance at the Army-McCarthy Hearings

Joseph Welch

Attorney Joseph Welch’s legal representation of the Army in the Army-McCarthy hearings was a very difficult assignment. It was not a trial in a court with established procedural and evidentiary rules to resolve a dispute under known substantive legal principles before an independent judge or jury. That is where Welch had many years of experience. Instead it was a congressional hearing without such rules or substantive law and without an independent trier of fact under the lights of television cameras before a jury of millions of fellow citizens. That is something for which Welch had no experience. Nor did any other lawyer at the time. As a result, it is difficult to evaluate Welch’s performance as a lawyer in the hearings.

As we have seen in a prior post, Welch ultimately was successful in showing the nation the bad side of McCarthy’s personality and tactics and in helping to undermine the Senator’s influence and power. Welch’s folksy,understated manner played  an important part in this TV drama. In that most important test of performance, Welch was successful. [1]

During the first weeks of the hearings, however, Life Magazine said, “many television viewers felt sorry for [Welch]—and even sorrier for anyone who was relying on his advice and assistance. He simply sat there, looking terribly tired and half asleep, and when he did speak up it was in a mild and apologetic tone of voice that seemed pathetically inadequate.”

John G. Adams

Moreover, one of Welch’s clients, John G. Adams, who as an Army attorney had been personally attacked by McCarthy, thought that Welch was not doing a good job in defending him before the committee. Adams was being excluded from the daily meetings to prepare for the hearings, and Welch allegedly was making deals with committee counsel without Adams’ approval. In addition, Adams thought Welch was too much of a gentleman to conduct a rigorous cross-examination of McCarthy’s female secretary.

As a result, during the hearings Adams met with attorney Edward B. Burling of the eminent Covington & Burling law firm to see if it could represent Adams. Burling had Adams meet with one of the firm’s other partners, who said that Adams probably not want the firm to represent him because it was subject to potential smearing by McCarthy. One of its partners (Donald Hiss) was the brother of Alger Hiss, who had been convicted in 1950 for providing classified government documents to an admitted Communist, Whitaker Chambers.

After the hearings were over, Welch thought that he had made many mistakes and that the Army had not proved its case in the hearings. He privately said to fellow attorney Bruce Bromley, who had recommended him for this assignment, “Don’t think for a moment that I didn’t make bad mistakes because I did. Don’t think for a moment that I didn’t have gigantic anxieties that you were not aware of.”[1] Edward Bennett Williams, the noted trial attorney and legal counsel for McCarthy, opined that the Army did not put forth a convincing case on the evidence.

In addition, in an October 1954 speech, Welch publicly admitted, “There were many times when I sat stunned and speechless, and [the public] said, ‘What patience the man has.’ When I sat in an agony of indecision, [the public] said, ‘How wise he is. . . .’ Sometimes I was so weary my mind was almost blank, and then some of [the public] would say, ‘How witty he is!’”

Welch also said after the hearings that he had been hampered by the setting: the palpable fear and hate in the room, the crowded hearing room, the TV cameras, being forced to be seated and being far from the witness. For one watching the videotape of the hearings today, it is difficult to appreciate the fear and the hate that were present in the country and in the hearing room.

It is also difficult today to grasp the importance of the hearings because the issues that were being debated seem trivial: whether McCarthy tried to pressure the Army to give special favors to David Schine; whether a photograph of Shine and the Secretary of the Army had been cropped and by whom; and whether a purported letter from the FBI was authentic. Welch’s notes of levity in the hearings makes one wonder whether this was his way of signaling to the public that these issues were not really that important.

At one of the hearings, Welch was questioning a McCarthy investigator on how a photograph of Schine had been cropped to show only Schine and Army Secretary Stevens. Welch asked the investigator, “Do you think this came from a pixie?” McCarthy interrupted to ask Welch what a “pixie” was. Welch retorted: a “pixie is a close relative of a fairy.”

Al Pacino as Roy Cohn

At the time this was seen as an example of Welch’s clever wit. But it really was a double-entendre warning that McCarthy did not catch. Welch really was hinting that Cohn was a homosexual who was having an affair with Schine or maybe even with Senator McCarthy himself. (In the more recent Mike Nichols’ production of Tony Kushner’s Angels in America, Al Pacino plays Roy Cohn as a closeted homosexual dying of AIDS.)

Welch closed the hearings with these remarks: “I, alone, came into this room from deep obscurity. I, alone, will retire to obscurity.  As it folds about me softly, as I hope it does quickly, the lady who listened and is called Judith Lyndon Welch [his wife] will hear from me a long sigh of relief. . . . I can say, as I have already indicated, that I could do with a little serenity. I will allow myself to hope that soon there will come a day when there will, in this lovely land of ours, be more simple laughter.”

Thereafter Welch wrote the Subcommittee’s lawyer, Roy Jenkins, “I think I cherish most the few words at the end of the hearing when you and I agreed that we had never had any really difficult moment. We did not always agree completely, but we seldom seriously disagreed and we never fought. To achieve that result in a room full of tensions required graciousness and good will; and while I would like to think my contribution approached half, I would be quick to say yours exceeded half.” (In response, Jenkins said, “I am going to write the lexicographers . . . so that the word ‘Welchian’ be incorporated as another synonym for the word ‘graciousness.’”)

Welch also wrote after the close of the hearings to Senator Karl Mundt of South Dakota, who chaired the subcommittee. Welch said Mundt “had an incredibly difficult assignment and there was no hope that you would please everyone. I do not claim I was always happy with what you did, but I do claim I was happy with every personal contact and proud to have the feeling that you and I are really good friends. I could not bear to have it any other way.”

During and immediately after the hearings Welch was always circumspect in what he said about McCarthy.

In 1959, however, Welch said that McCarthy was “the most completely fraudulent man I ever knew…. But for the life of me I never could figure out what he was up to. He seemed to me just a planless adventurer who seemed to me to get some sort of an adolescent joy out of thrashing around, making a loud noise, wounding people, and embarrassing the hell out of highly placed individuals. He seemed to me to take a sort of maniacal delight in selecting some highly honorable and dignified person in some high position, and at the lowest just scaring the hell out of him, and at the highest or at the worst destroying him.”

And in a 1957 speech Welch spoke out about the fear engendered by McCarthy and the appropriate remedy for same. “Eccentric conduct,” Welch said, “which ought only to produce a tolerant smile has instead provoked fear. Thoughts and words not in conformity with those of the great majority of our people have often brought a dissenter into hatred, ridicule, and contempt, or worse dangers.” Welch continued, “Fear is a painful and contagious disease. It is also a cumulative disease. A society beset by fear develops no immunity to fear. Instead it becomes more and more vulnerable, and fresh waves of fear sweep over the enfeebled patient, whose resistance to disease diminishes with each new attack.” Welch finished, “The cure for the malady of fear is found only in the sweet medicine of reason. And reason at its finest social form is law.”


[1] Subsequent posts will review President Eisenhower’s participation in the hearings, the Army’s hiring of Welch as its attorney, Welch’s activities after the hearings and his background. I interviewed Fred Fisher and James St. Clair in 1986 and have reviewed many source materials that document the assertions in this post. If anyone wants to see the bibliography of these sources, I will do so in another post at the conclusion of this series. Just make such a request in a comment to this or the other posts in this series.

The Adam Clayton Powell, Jr. Litigation

On March 1, 1967, the U.S. House of Representatives by a vote of 307 to 116 refused to seat Adam Clayton Powell, Jr., the re-elected African-American Congressman from Harlem, censured him, fined him $25,000, took away his seniority and declared his seat vacant. The grounds were that he had engaged in conduct unbecoming a Congressman: he had refused to pay a libel judgment ordered by a New York state court, had refused to return to his district except on Sunday in order to avoid service of legal process in that case, had misappropriated congressional travel funds and illegally had paid his wife a congressional staff salary for work she had not done.[1]

Soon thereafter Powell along with 13 of his constituents commenced a lawsuit in the U.S. District Court for the District of Columbia to invalidate his exclusion.  The defendants were John McCormack, who was the Speaker of the House, five other House members and three of its staff.  The complaint alleged that the exclusion violated Powell’s constitutional rights: Powell satisfied the constitutional qualifications for membership (age, citizenship and residency) and the exclusion allegedly was based upon his race and color and thereby violated his rights under the Fifth, Thirteenth and Fifteenth amendments to the Constitution.[2]

Powell’s lawyers were William Kunstler, a famous civil rights lawyer;[3] Arthur Kinoy, another prominent civil rights lawyer and Rutgers Law School Professor;[4] Herbert Reid, another civil rights lawyer and Howard Law School Professor;[5] and others.

The House decided that it did not want the Lyndon Johnson Administration’s Justice Department to defend the House’s leadership because of concern that political considerations would prevent the Department from vigorously asserting what the House believed to be its full constitutional prerogatives. Instead, the House took the recommendation of Emmanuel Celler, the Brooklyn Congressman and Chairman of the House Judiciary Committee, to hire as its attorney, Bruce Bromley, a partner in the New York City law firm of Cravath, Swaine & Moore.[6]

Bromley was a graduate of the University of Michigan and the Harvard Law School. He was a lawyer with the Cravath firm for over 50 years with one interruption. In January 1949, New York Governor Thomas E. Dewey, who had been the unsuccessful Republican presidential candidate the prior year, appointed Bromley to New York’s highest court (the Court of Appeals), but in November 1949, Bromley lost the election for a full term. Although he served on the bench for less than a year, thereafter he was always referred to as “Judge Bromley.” While at Cravath, he was the lead lawyer in successful representation of IBM, General Motors and other major corporations.[7]

For the Powell case, Bromley assembled a team of Cravath lawyers to work on the case, including yours truly. I do not recall what issues I worked on and now wish I had kept a journal about my involvement in this case to refresh my recollection. I do remember that another Cravath associate attorney and member of the team, Dorsey D. Ellis, Jr., was an amateur legal historian and was the primary draftsman of an appendix to the eventual Supreme Court brief that discussed the legislative common law of the British House of Commons and the early state legislatures regarding exclusion and expulsion of members of legislatures.[8] Another Cravath associate on the team, Jay Gerber, recently told me that he remembers the issues on which he worked.

The U.S. District Court for the District of Columbia dismissed the case for lack of subject-matter jurisdiction.[9]  The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal, but on different grounds. It held that the federal courts had subject-matter jurisdiction, but that case was not justiciable, i.e, it was not appropriate for judicial relief because of the separation of powers.[10] The case then went to the U.S. Supreme Court.

Before the Supreme Court argument, the other members of the Cravath team and I went to Washington several days ahead of time to prepare for the argument and to consult with Cravath’s Washington allies and former partners: Lloyd Cutler, who subsequently was White House Counsel for Presidents Carter and Clinton,[11] and John Pickering.[12] Cravath also brought the lawyers’ spouses to Washington on the Sunday before the oral argument in the Supreme Court so that they could watch the proceedings the next day. My wife was on a plane from New York City that Sunday with none other than Congressman Powell.

Although the House’s side had won in the lower federal courts, there were no guarantees that it would prevail in the U.S. Supreme Court. The House was asserting that its power under Article I, Section 5(1) of the Constitution to “be the Judge of the . . . Qualifications of its own members” was an implicit exception from the Article III “judicial Power of the United States [that was] vested in [the Supreme Court]” and the lower federal courts. Thus, the House argued, no federal court had the power to do anything in this case. As a result, it was anticipated that Chief Justice Earl Warren might well ask Judge Bromley in oral argument whether he was claiming that if the House or the Senate hypothetically were to exclude or expel five or six black members-elect in succession that the Supreme Court could do nothing. The answer to this hypothetical question was clearly “yes.”

At the oral argument, as I recall, the Chief Justice in fact asked that question. Bromley’s responded in essence that yes, the Court could do nothing, but that there was no reason to suspect that the House or the Senate might do such a thing and that there was a political remedy by the voters’ re-electing the same people. The Chief Justice and Bromley then got into a colloquy as to which branch of the federal government had the “final” say regarding the Constitution. Bromley said in very limited areas, each house of the Congress had the “final say:” impeachment and removal of federal officials and judging the qualifications of its members. Jay Gerber recalls that the Chief Justice almost fell out of his chair at that answer.

In June 1969, the U.S. Supreme Court, 7 to 1, reversed the dismissal of the lawsuit. The majority opinion by the Chief Justice held that the federal courts had jurisdiction over the subject matter of the case and that it was justiciable; that it did not constitute a political question that pitted one branch of government against another. Rather, it required “no more than an interpretation of the Constitution” by the Supreme Court.[13]

The majority opinion stated that while the House of Representatives was the sole judge of its members’ qualifications (U.S. Const., Art. I, § 5, cl. 1), the House did not have the power to develop qualifications other than those specified in the Constitution: election certificate, at least 25 years of age, U.S. citizen for at least seven years and an inhabitant of the state in which he or she was elected at the time of election (Art. I, § 2. Cls, 1, 2).

In addition, the Court’s majority opinion noted that while the Constitution states (Art. I, § 5, Cl. 2),”Each House [of Congress] shall be the Judge of the . . . Qualifications of its own Members,” the Constitution  immediately states that each “House may . . . with the Concurrence of two thirds, expel a Member.” The Court, therefore, held that the process leading to the expulsion of a Member, duly sworn and enrolled upon the body’s rolls, was the only constitutional method for a House to give effect to its power to determine the qualifications of its members. The House did not follow this procedure with respect to Congressman Powell. Therefore, he was entitled to a declaratory judgment that he had been unlawfully excluded from the Congress.

In the meantime, Powell had won the May 1967 special election to fill his congressional seat, but did not attempt to be seated.  He then won the next regular election in November 1968 and was seated in the House in January 1969 (approximately five months before the Supreme Court decision) subject to the $25,000 fine and loss of seniority. The next year, however, Powell lost the 1970 Democratic primary election to Charles Rangel and failed to qualify to be on the general election ballot.[14]

Powell was a member of a notable Harlem family. His father, Adam Clayton Powell, Sr., was Pastor of the Abyssinian Baptist Church in Harlem (1908-36) before being succeeded by Powell, Jr., his only son (1937-71).[15] Powell. Jr.’s older son, Adam Clayton Powell, III, was a journalist and media executive,[16] and Powell, Jr.’s younger son, Adam Clayton Powell IV, is a New York State legislator who lost the 2010 Democratic primary election for Congress to the incumbent, Charles Rangel.[17]

Powell, Jr. died in 1972 at age 62.


[1]  Powell v. McCormack, 395 U.S. 486, 489-93 (1969); Wikipedia, Powell v. McCormack, http://en.wikipedia.org/wiki/Powell_v._McCormack.

[2]  Powell v. McCormack, 266 F. Supp. 354 (D.C. DC. 1967).

[3]  Wikipedia, William Kunstler, http://en.wikipedia.org/wiki/William_Kunstler.

[4]  Wikipedia, Arthur Kinoy, http://en.wikipedia.org/wiki/Arthur_Kinoy.

[5]  Ravo, Herbert O. Reid, Sr., 75, Lawyer Who Taught Many Black Leaders, N.Y. Times (June 19, 1991).

[6]  Wikipedia, Bruce Bromley, http://en.wikipedia.org/wiki/Bruce_Bromley.

[7] Wikipedia, Bruce Bromley, http://en.wikipedia.org/wiki/Bruce_Bromley.

[8]  After Cravath, “Dan” Ellis became a member of the faculty at the University of Iowa School of Law and then Professor, Dean and eventually Dean Emeritus and William R. Orthwein Distinguished Professor of Law Emeritus at the University of Washington in St. Louis School of Law. (Washington University in St. Louis, Dorsey Ellis, http://news.wustl.edu/people/Pages/DorseyEllis.aspx.

[9]  Powell v. McCormack, 266 F. Supp. 354 (D.C. D.C. 1967).

[10]  Powell v. McCormack, 395 F.2d 577 (D.C. Cir. 1968).

[11]  Wikipedia, Lloyd Cutler, http://en.wikipedia.org/wiki/Lloyd_Cutler.

[12]  Wikipedia, John H. Pickering, http://en.wikipedia.org/wiki/John_H._Pickering.

[13]  Powell v. McCormack, 395 U.S. 486 (1969).

[14]  Wikipedia, Adam Clayton Powell, Jr., http://en.wikipedia.org/wiki/Adam_Clayton_Powell,_Jr.; Biographical Dictionary of the United States Congress, “Powell, Adam Clayton, Jr.,” http://bioguide.congress.gov/scripts/biodisplay.pl?index=p000477

[15] Wikipedia, Adam Clayton Powell, Sr., http://en.wikipedia.org/wiki/Adam_Clayton_Powell,_Sr.; Abyssinian Baptist Church, History, http://www.abyssinian.org/about-us/history/.

[16]  Wikipedia, Adam Clayton Powell III, http://en.wikipedia.org/wiki/Adam_Clayton_Powell_III.

[17]  Wikipedia, Adam Clayton Powell IV (Politician),  http://en.wikipedia.org/wiki/Adam_Clayton_Powell_IV_(politician).

Lawyering on Wall Street

From June 1966 through April 1970, I was a Wall Street lawyer. I was an associate attorney with the law firm of  Cravath, Swaine & Moore.[1] Its offices then were on the 56th through 58th floors of the Chase Manhattan Bank Building one block from the New York Stock Exchange on Wall Street. From my office window I could see the New York Harbor and the Statue of Liberty.

Cravath then was considered a large law firm with approximately 100 lawyers, as I recall. Its system was to hire top graduates of the top law schools and to put them in a “class” of their contemporaries to compete for one of the very few partnership slots after seven or so years.

I decided to join Cravath after a summer clerkship in 1965 that I had enjoyed. The firm was regarded as the crème de la crème of law firms. Its starting salary of $9,000 ($62,235 in current Dollars) was the best. Living in New York City sounded exciting. The practice of some Wall Street lawyers becoming high government officials was an alluring dream that I hoped to fulfill. For example, John Foster Dulles was such a lawyer with another firm who became Secretary of State in the Eisenhower Administration, and Roswell Gilpatric was a Cravath partner when I was there who had been Deputy Secretary of Defense in the Kennedy Administration.

While I was at Cravath, it jumped the starting pay of its lawyers to $15,000 ($95,550 in current Dollars). This was such startling news that it was covered by the Wall Street Journal. Those of us who already were associates received a similar bump in pay. My wife and I thought we were rich and moved from our Brooklyn Heights apartment to the first two floors of a row home several blocks away.

I was in Cravath’s litigation department or group. I initially was assigned to Partner John R. Hupper, who was an excellent, careful, kind man and an excellent teacher and mentor for young lawyers. I also worked for other equally capable partners, including Thomas D. Barr, Frederick A. O. “Fritz” Schwarz, Jr. of the toy store family and Albert R. Connelly. The senior partner of the group, Bruce Bromley, who was called “Judge” Bromley because of his service in the New York courts, was another capable lawyer for whom I worked. Much to my subsequent regret I did not know at the time that Bromley was instrumental in the Eisenhower Administration’s selection of Joseph Welch to be the Army’s lawyer in the 1954 McCarthy hearings. Given my personal interest in Welch, which will be discussed in a subsequent post, I would have loved to have talked with Bromley about this important piece of U.S. history.

The more senior associates really did a lot of the supervision of the newer lawyers. I fondly remember some of them: Eugene P. Souther, who later became a partner in another Wall Street law firm; Victor M. Earle, III, who became the first general counsel of one of the big accounting firms (Peat Marwick); Robert E. Bouma, who became a partner in a Chicago law firm; Dorsey D. “Dan” Ellis, Jr., who became a law professor at the University of Iowa and then Dean of the Law School at the University of Washington at St. Louis; George J. Wade, who became a partner in another Wall Street law firm; and Alan J. Hruska, who became a Cravath partner.

I got along with the other young associates in the litigation group even though we all knew we were in competition with one another. Since I was there only four years, however, the real competition started after I left. My best friends and contemporaries were Jay Gerber and Arnold Messing, who later were successful lawyers with other firms in New York City and Boston respectively, along with Howard J. Kristol, who became a partner in a Wilmington, Delaware law firm, and David S. Cupps, a subsequent partner in a Columbus, Ohio law firm.

Another contemporary in the litigation group was David Boies, who later became a famous Cravath partner who defended CBS in a libel case by General Westmoreland regarding the Vietnam War. Some of his other famous cases were as the U.S. Government lawyer who destroyed the credibility of Bill Gates in cross-examination in the Microsoft antitrust case and as the lead lawyer for Al Gore in the litigation against George W. Bush over the 2000 election in Florida.  The New York Times Sunday Magazine in June 1986 put David’s photo on its cover for its lead article about him, “The Litigator.” My wife and I were guests of David and his wife in their Washington Square apartment on the night in 1969 that Neil Armstrong walked on the moon. I was always amazed that David was able to combine the stressful life of the young associate with teaching antitrust law at N.Y.U. Law School and having season’s tickets to the Metropolitan Opera. On a trip to Minneapolis for a pretrial conference in the IBM antitrust cases, David, several other associates and I gathered in one of our hotel rooms for cards and room-service dinner. To my surprise, David ordered two dinners; he was never overweight or heavy, and I assumed that his metabolism rate was so high that he needed super quantities of food. David is still going strong. As the lead partner now in his own law firm, he recently was in St. Paul, Minnesota as the lead lawyer for the NFL in litigation over the football teams owners’ work stoppage.[2]

Under the Cravath system, it took a long time for a new lawyer to be able to do anything by himself. My first court argument was on a motion in a small case in the state trial court in Manhattan (New York Supreme Court). I do not remember the case or what my motion was. But I do remember the huge courtroom with hundreds of lawyers milling around and waiting for their cases to be called. While I was waiting, I heard an argument on a defendant’s motion for more definite statement in the complaint that starts a lawsuit. The pro se plaintiff (one without a lawyer) was a rabbi, and the judge said, “Rabbi, please hire a lawyer. You have written a novel, not a complaint.”

There were two notable cases that claimed my attention in New York that will be discussed in subsequent posts. One was Adam Clayton Powell, Jr.’s lawsuit over his 1967 exclusion from the U.S. House of Representatives. The other was the set of antitrust cases against IBM over its System/360 computers.

Being a Wall Street lawyer for four years was challenging and exciting. So too was living in New York City with a wife and two young sons. I value those years, but am still glad that I decided against staying for the competition for partnership at Cravath and instead chose to move to Minneapolis to practice law with Faegre & Benson.


[1] Cravath, Swaine & Moore LLP, http://www.cravath.com/; Cravath, Swaine & Moore, http://en.wikipedia.org/wiki/Cravath,_Swaine_%26_Moore.