A Conversation with Louis F. Oberdorfer
(Appeared in Bar Report, December/January 1997)
Upon receiving the Yale Law School Medal of Merit this November, Judge Louis F. Oberdorfer was cited for "serving with distinction in virtually every capacity the legal profession has to offer .by turns a practicing lawyer, a Justice Department official, a crusader for civil rights, a law teacher, and a federal judge." A native of Birmingham, Alabama, Oberdorfer clerked for Justice Hugo L. Black during the 1946 term of the Supreme Court. After 14 years in private practice as a tax specialist, he became assistant attorney general, Tax Division, of the U.S. Department of Justice during the Kennedy administration. In 1965 he returned to a more generalized practice as a partner in the firm of Wilmer, Cutler & Pickering. In 1977, while serving as president of the D.C. Bar, Oberdorfer was appointed to the U.S. District Court for the District of Columbia; he elected to take senior status in 1992. Oberdorfer has served as co-chair of the Lawyers Committee for Civil Rights Under Law, chief executive of the Legal Services Corporation, a member of the Advisory Committee on the Federal Rules of Civil Procedure, and he has taught at the Yale and Georgetown University law schools.
Bar Report: How did you become interested in the law?
Louis Oberdorfer: My dad was a lawyer, a general practitioner really. He grew up in Charlottesville, Virginia, moved to Birmingham in 1901, and in 1905 he published a book called Alabama Justice Practice, "justice" meaning justice of the peace. He said that at the time that he didn’t have any clients or much to do, so he was coaching people who were getting ready to take the Bar. As long as people lived who were contemporaries of his, they would come up and tell me that when they were finishing at the University of Alabama Law School and starting into practice, they were told the first thing to do is to get that book. It told them how to file a case, how to defend a case, all those things. I was always destined to go in his office; he never took in partners because he was saving a place for me. But then I came here after the War, clerked with Justice Black, and I had opportunities here. My dad never tried to convince me to stay in Birmingham. He was then 70 years old, and I think he realized it would be a heavy responsibility for him to shoehorn me into the practice down there at that time.
BR: Where did you go to college?
LO: Dartmouth. My dad went to the University of Virginia college and law school, and from the time I was four years old it was assumed that I would go to Virginia. But my mother was a prohibitionist, and when she learnedwhat everybody knewthat at the University of Virginia they drank whiskey, she put her foot down and said she wouldn’t allow me to go to Virginia. She didn’t know anything about Dartmouth.
After Dartmouth I applied to Harvard and Yale, and I picked Yale because I felt that it would be congenial there. At that time the story at Harvard was that on the first day of school some professor would say, "Look to your right, look to your left, and one of you’ all isn’t going to be here." That was intimidating. In 1939, there were no blacks and four women in a Yale class of 120 or so. But otherwise it really was a meritocracy. Perks were a function of grades, exams were graded fairly, and the opportunity to compete for the Law Journal was at that time available only to the top 10 percent of the class in the spring and the top 20 percent of the class later who were elected after a severe competition. That’s not the way they do things anymore.
I was drafted in the fall of 1941 when I had one semester left at Yale. After four-and-a-half years in the Army, I reentered law school in February, 1946, and graduated in June.
BR: What did you do after graduation?
LO: I went down and took the Alabama bar exam and then came back here to clerk for Justice Hugo Black. Black had been a good friend of my dad’s in Birmingham, and I’m sure that contributed to my being invited. The clerkship with Justice Black was one of the high points of my life, an unbelievably exciting and rewarding experience. The year I was there Black wrote a couple of what I’m sure he would say were his most significant opinions. And he wrote them. As his only law clerk I worked on them, but he wrote them. One of them was the case of Adamson v. California in which, based on several years of research he had been doing, he wrote an opinion to the effect that the Bill of Rights in the federal constitution was also applicable to the states. That had not been the law. Certain provisions of the Bill of Rights had been selectively applied. The First Amendment had been accepted somewhere along the line, and some parts of the Fifth Amendment. But other parts were not made applicable. The theory was that the only parts of the Bill of Rights that were applicable were those that were related to "fundamental liberties." Black’s thesis, as stated in Adamson, was that following the Civil War, the 14th Amendment, by the circumstances of its enactment and its legislative history, was intended to make the Bill of Rights applicable to all the states and in haec verba. He got four votes for that proposition. But over the years, one by one, with Black writing or concurring, every amendment in the Bill of Rights that has been at issue has been made applicable to the states.
BR: How did you enter private practice?
LO: I had an offer from the firm of Paul Weiss Wharton & Garrison. Lloyd K. Garrison, who was serving as special master appointed by the Supreme Court in the case of Georgia v. The Pennsylvania Railroad, came into Black’s chambers one day and invited me to come into the New York office of Paul, Weiss. I didn’t want to go to New York, but they then had a small tax office in Washington headed by Randolph E. Paul who wrote the first scholarly treatise on the federal income tax and the first scholarly treatise on the federal estate tax. At the time Paul and his partners were the ultimate pros in the tax field. I went down to the office to talk to them and they said they do only tax work, which I wasn’t interested in. Paul said, "I turned down around a hundred thousand dollars of non-tax business last year. Why don’t you come down here and take care of the non-tax cases." I took the job and I never saw a non-tax case! By default I became a tax lawyer.
I didn’t know anything about tax law. I thought it was like accounting, a drudgery sort of thing. But taxes are involved in every transaction. It’s a switching point for everything that’s going on. This was not a counseling practice so much as it was a tax controversy practice. We would go to the IRS for rulings and then we had litigation in Tax Court and the Courts of Appeals.
I was there up to 1951 when I moved to what was then Cox, Langford, Stoddard and Cutler. Lloyd N. Cutler, whom I had known through Yale relationships, invited me to come over there because they didn’t have anybody doing tax work. I stayed there until 1961 when I went into the government.
BR: What brought you to the Justice Department?
LO: Byron White and I had been law school classmates. We were both interruptedhe by playing football, me by going into the army. We both came back to law school after the war and went from there to clerkships. He clerked for [Chief Justice Fred M.] Vinson the year I clerked for Black; White and his wife, Marion, became and remain very close friends. When he came back here from Denver to be deputy attorney general, he stayed with us and invited me to join this group he was putting together for Robert Kennedy. White recruited a senior staff at Justice that included Burke Marshall, Nick [Nicholas deB.] Katzenbach, Bill [William H.] Orrick [Jr.], and me because he knew us and he had sold Robert Kennedy on the idea that he should not staff Justice with political people. He should get the best young professionals he could to run the divisions.
I was in charge of the Tax Division. Before I started down there, I was given an excellent briefing by the permanent staff. They were still recovering from the shock of having one of my predecessors several times removed convicted of obstruction of justice. After his mess-up, the Republican administration brought in a straight-arrow highly respected tax practitioner from Boston named Brian Holland who had reorganized that place and had it working like clockwork. The briefing went on all day long and at the end of it the senior fellow, Manny Sellers, said, "Mr. Oberdorfer, we’ve told you about what everyone else does, but we haven’t said anything about what the assistant attorney general does. As far as your job is concerned, you can be an administrator and supervise everybody on everything, or you can try cases out in the country, or argue in the Courts of Appeal. The solicitor general will let you argue all the tax cases in the Supreme Court if you want to because the solicitor general’s office doesn’t like tax cases. You can work just on compromises. You can write articles or books. Or, you can go out and play golf because this place is so well-organized that your old grandmother could run it." Which was true. I did some of everything, but with the Tax Division capable of running itself I felt quite free to engage very heavily in working with Marshall and the attorney general on all aspects of civil rights business as it emerged, and many other matters outside the Tax Division.
One of the sensitive cases the old pros briefed me about concerned Sergeant York from Tennessee who had won the Congressional Medal of Honor in World War I for having killed or captured 108 Germans with his rifle, all in one morning. Sergeant York, as it was explained to me, on the bad advice of some country lawyer, filed a refund claim for some small amount of taxes that he had paid. Whoever advised him either didn’t know, or didn’t understand the consequences of, the fact that York had written (or had written in his name) a book that he had sold and he had never paid any tax on it. (It was also made into a movie starring Gary Cooper.) When he filed this refund claim, for $3,000 or $4,000, the government counterclaimed for something like $50,000 capital gains tax due from the book sale. When I’d been there only about two weeks, I was going over this list of important, sensitive cases I had received in the briefing and decided to talk to the IRS about the case. I found that it was being handled at IRS by an official named Singleton Wolfe. I called him and in a few minutes he was in my office with his case file. Wolfe happened to be from the same county as York and knew all about the case. While he was sitting there the phone rang; it was Robert Kennedy saying, "There’s a Congressman here from Tennessee talking to me about the Sergeant York case. You know anything about it?" I said, "Well, it so happens " Robert Kennedy must have thought I was an absolute genius. So Wolfe and I went up, and here’s this congressman who knew Wolfe (as well as York) from way back. Kennedy said "What can we do about it?" I said, "There’s no way we can compromise at this point. The liability is plain. The man’s ability to pay is plain." Then Kennedy thought of this himself and said to the Congressman: "Why don’t you call Sam Rayburn to see if he will pass the hat to raise the money to pay old Sergeant York’s tax for him?" And that’s what they did.
BR: Did you pick up where you left off when you returned to private practice.
LO: While I was at Justice, Cox, Langford reorganized and merged with another firm and formed Wilmer, Cutler & Pickering. I began to get away from tax work, partly as a matter of interest and partlylike most everything else in my careerby accident. The firm had just taken on an engagement to the state of Wisconsin, Milwaukee County, and the City of Milwaukee to sue the National League and the owners of the Milwaukee Braves to enjoin them from transferring the franchise to Atlanta. My new partners knew that I was a baseball fan and that it would avoid conflicts and protect me from being one of those revolving-door tax people if I took on the case. Back in the 1920s the U.S. Supreme Court had ruled that baseball was not commerce within the meaning of the federal antitrust laws. So we sued in the state court under the Wisconsin antitrust laws. We won an injunction in the trial court and it was appealed by the league to the Wisconsin Supreme Court. Our principal client, in a sense, was Bud Selig, who is now Acting Commissioner of Baseball. On appeal, a divided Supreme Court of Wisconsin ruled four to three that enforcement of the Wisconsin antitrust law to prevent the movement of the franchise violated the commerce clause of the federal constitution. Baseball was defended in this case by Bowie Kuhn who subsequently became Commissioner of Baseball, and I’ve always said he got the job by beating us on the appeal.
BR: How did you feel about working against the first major league team coming to the South?
LO: As a baseball fan and a southerner I was conflicted. But when I was growing up, Birmingham and Atlanta were peer cities: they were about the same size, they both had teams in the Southern League, and people in Birmingham used to look down their noses at Atlanta because Birmingham had the resources of iron, coal, and limestoneit was going to be the "Pittsburgh of the South"and Atlanta just had a railroad junction and an airport. Of course Atlanta built that into a great city probably because, under the influence of the Coca Cola people, they avoided this massive resistance businessunlike Birmingham with [Police Commissioner] Bull Connor. I think that set the city of Birmingham back 50 years.
BR: After your work at Justice, were you involved in the civil rights movement?
LO: I worked on the formation of the Lawyers Committee for Civil Rights Under Law and in 1968 I was elected co-chairman. The Lawyers Committee became involved in enforcement of a decree by the federal courts in Mississippi ordering desegregation of the schools in Holmes County. The Nixon administration filed a brief in the Supreme Court in which it represented that it would be inappropriate to compel the integration of the schools in Holmes County because, among other issues, the Department of Justice didn’t have enough lawyers or other personnel to enforce the order. The Lawyers Committee filed a brief amicus and allowed me to argue it. During the argument Justice [John Marshall] Harlan asked me what I had to say about the government’s representation that they didn’t have enough personnel. I volunteered that if the government couldn’t provide the lawyers for the occasion, the Lawyers Committee would. A few days later the Supreme Court entered an order that ended this concept of "all deliberate speed" and directed the integration forthwith.
In 1968, Dr. King was killed and Robert Kennedy was killed, and there were all these riots. I had been to a Lawyers Committee meeting in Philadelphia during the summer of ë68 focussed entirely on solving this or that problem in the South. I said you have the same problem in a different variation right here in Philadelphia. Bernard Segal, the founding father of the Lawyer’s Committee, brushed that aside. But a few weeks later the riots started. On behalf of the Lawyers Committee, my co-chairman Arthur Dean and I met with Mac [McGeorge] Bundy who was chair of the Ford Foundation in New York and persuaded him that he should fund an effort by the Lawyers Committee to form local committees in the major cities, concentrating in places like Detroit and Washington and Chicago where the fire was hottest. In very short order he gave us a grant of almost a million dollars. After that I spent a lot of time traveling around the country meeting with an old boy network of senior people starting up local committees in the major citiesChicago, New York, Boston, Washington. The committees took off and are still functioning.
BR: What made you run for president of the D.C. Bar?
LO: My dad was president of the Birmingham Bar in 1928. His election as a Jewish lawyer, at the time and since, was viewed as a manifestation of the determination of the bar and the community to free itself of the influence of the Ku Klux Klan. He was also president of the Alabama state bar in 1934. I was a member of the D.C. Bar’s first board of trustees. Later I served as president-elect [when Charles R. Work was president] and president [in 1977-78], but I didn’t serve as president very long before I came here.
BR: How did your appointment to the District Court come about?
LO: I applied for it. When Judge Griffin Bell came up here to be Attorney General (under President Carter), I was considered for Deputy Attorney General. It didn’t get very far, but I met with him at the time. In February 1977 I read a newspaper story that Judge William Jones of this court had announced his decision to accept senior status, which created a vacancy on this court. I just up and wrote a letter to Griffin Bell saying I would be interested in this position. They had a vacancy on the Federal Circuit and he tried to persuade me to take that, but I said I wasn’t interested. The appointment to this court went through very easily.
BR: Did you always want to be a judge?
LO: I had by that time done just about everything I could do in law practice. I didn’t need the money, and I had already committed myself emotionally to going into the government with the new Carter administration. I liked the idea of this sort of job beforehand, and I still do.
BR: What are some memorable cases?
LO: One case that I remember vividly and am sort of proud of was when the Ku Klux Klan wanted to march from the Washington Monument to the Capitol. The police said they couldn’t control the people who would be attacking the marchers. I had a hearing on that and enjoined the police to issue the license. I was overnight reversed on that, and it was sent back for a further hearing in which the U.S. Park Police testified that they could protect the marchers. I then reiterated my order with some bugle-call language about "It would be a sad day when the United States with all its forces can’t protect people walking down the street from the Washington Monument to the Hill " And they did march, and there was an effort by a mob to break through. Some police were cut up and I got criticized by the chief of police about my reckless disregard for the safety of the police, but I’m sure it was the right thing to do.
Another very important case, in the late 1980s, was Hobson v. Wilson about the FBI’s COINTELPRO activities. During the period of the Vietnam War demonstrations and the civil rights demonstrations, the FBI initiated what they called COINTELPRO, which was the subject of a Congressional investigation by Senator [Frank] Church. It was a disinformation and disorganization effort by the FBI. For example, agents would call hotels where these people had reservations and cancel them. They would interrupt demonstrations. The most egregious thing: there was an antiwar group here [Washington Area Peace Action Coalition] and a black group [Black United Front] headed by Julius Hobson, one of the most respected civil rights leaders. At the time the black people and the anti-war people were trying to get together. The FBI forged a letter to the black group purporting to come from the anti-war people that had caricatures of monkeys and a sign, "Let ’em eat bananas." Then they forged letters from the black people making antisemitic remarks about the anti-war people. Some of the people, black and anti-war, brought a suit against the FBI: violation of their constitutional rights. The government vigorously defended the case and lost. It was decided by a jury and affirmed with a very generous opinion by now Chief Judge [Harry T.] Edwards.
BR: At the 1988 D.C. Bar annual meeting you delivered a memorable speech challenging lawyers to deal with overcrowding in the D.C. prisons. What causes should lawyers be tackling today?
LO: I’ve got a parochial ax to grind, but I’m one of those of the view that the criminal justice system at the level of sentencing is distorted. When the 1984 act was passed and the Sentencing Commission was organized as it was, the penalties, particularly for violations of the drug laws, were escalated beyond reason. Particularly egregious is the distortion between the punishment imposed on a defendant whose crime relates to powder cocaine and a defendant whose crime relates to crack cocaine. There’s a hundred-to-one disparity between the sentences. The Sentencing Commission has already spoken against it. I speculate that if we have a few months, or a couple years, of freedom from the most difficult kind of political pressures, the Sentencing Commission and Congress will ameliorate that.
I also am of the view that there should be greater attention to treatment in prison for non-violent drug-user defendants and, hopefully, some systematic way of separating the sheep from the goats, that is separating those who respond to treatment in a way that is promising from those who are hopeless. There is a provision of the federal code that authorizes the Bureau of Prisons to release prisoners who are, for example, mortally ill so they can die at home. That authority could be expanded to permit the Bureau of Prisonsperhaps with the approval of the sentencing judge or his successorto release short of the full term those whose crime was non-violent and demonstrably driven by their addiction, and who are now too old and tired to be involved in crime anymore, or are demonstrably free of the addiction that drove them into criminal activity.
BR: What kind of judge have you been?
LO: I am not the best person to answer that. Let me just say that all the time I have been here, I have had in mind what Justice Black said so eloquently more than 50 years ago for a unanimous Supreme Court in Chambers v. Florida. Let me quote it for you:
Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement .No higher duty, no more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitutionof whatever race, creed, or persuasion.
309 U.S. 227,241 (1940)