Washington Lawyer

Legends in the Law: Harold H. Greene

(Appeared in Bar Report, April/May 1996)

The Honorable Harold H. Greene, senior judge on the United States District Judge for the District of Columbia, is a graduate of George Washington University Law School. His career has included service as chief of the appeals and research section of the Civil Rights Division in the U.S. Department of Justice, where he did much of the drafting of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and service as chief judge of the Superior Court of the District of Columbia at the time that court became the principal trial court in the District of Columbia. Since his appointment to the federal bench in 1978 by President Carter, Judge Greene has participated in many major cases. Perhaps his most noteworthy decision was his approval of the consent decree that broke up the Bell telephone system.

Bar Report: Can you tell us a little bit about your background?
Harold Greene: I was born in Germany, and I came to the United States with my parents in 1943. Of course, this was Hitler’s time, and it was traumatic for us because we are Jewish. Fortunately, we were able to get out.

BR: Do you have vivid recollections of those years?
HG: Not really, no. My parents used to talk about it some, but since they died I haven’t had occasion to think or talk about it much.

BR: What did you do upon your arrival in the United States?
HG: My integration into American life was made fairly simple by the fact that I joined the army. I already spoke fluent English, so that wasn’t a problem. I was sent to basic training, and eventually was sent back to Europe as a soldier.

BR: Were you involved in combat?
HG: I got shot at a few times, and my jeep was blown up but I was not in the infantry but in military intelligence, so I was only under occasional fire. My primary responsibility was to interrogate prisoners in order to obtain information about enemy movements, supplies, where their tanks and artillery were positioned—that sort of thing. This was some time after D-Day and I was stationed in France, Germany, and finally in a section of Czechoslovakia that the Third Army occupied before we gave it up to the Russians.

BR: Did it feel satisfying to return to Germany as part of the army that was defeating the Nazis?
HG: Yes, of course. Although as a soldier you don’t generally think in such grandiose terms. You’re often thinking, "I wonder where we are going to stay tonight," and, "I hope the food is cooked better than it was yesterday."

BR: What did you do after the war ended?
HG: My parents had moved from New York to Washington, D.C., and I joined them here in Washington and enrolled at George Washington University. In those days veterans were allowed to go law school after two years of undergraduate work, which I was able to acquire in a short period of time. Then I went directly into law school at George Washington.

BR: Why did you choose law school?
HG: The law appealed to me in a vague almost subconscious way. I was interested in politics and government, and I had the sense that the law was a profession where I might be able to make a contribution.

BR: Did you have a vision of what kind of lawyer you wanted to be?
HG: I did not then set out to ride any particular hobby horse. My career more or less evolved. Upon graduation from law school I was a clerk in the U.S. Court of Appeals here in Washington. In those days the U.S. Court of Appeals was the highest court in the District of Columbia, so it had jurisdiction over a lot of criminal and civil litigation. I found all of that to be very interesting.

BR: Who did you clerk for?
HG: Bennett Champ Clark. He was a former senator from Missouri and a colleague of Harry Truman’s. He was also the son of Champ Clark, the former speaker of the House, who narrowly missed becoming president of the United States in 1912.

BR: Did you like Bennett Champ Clark?
HG: Yes, we got along quite well. But he was ill and died shortly after I left. So he didn’t have the energy of a younger judge.

BR: What did you do after your clerkship?
HG: I went to work for the U.S. attorney’s office. I was there for four years, and then joined the office of legal counsel at the Justice Department, where I worked on the Little Rock school integration case, among other matters. That was where my involvement with civil rights began. We were looking into the question of whether the U.S. military could be used in Little Rock to enforce federal law.

BR: At that point, in 1957, did you have the sense that civil rights was on the verge of becoming an explosive national issue?
HG: Not really, no. President Eisenhower wasn’t very interested in civil rights, and neither was his attorney general, William Rogers. As long as Rogers was in charge of the Justice Department, civil rights was not going to become a major priority.

BR: How was it that you ended up with the civil rights division at Justice?
HG: The civil rights division was established when Congress passed the Civil Rights Act of 1957. Wilson White, my boss at the office of legal counsel, was named assistant attorney general in charge of the new division, and he asked me if I wanted to go with him. I was very glad to go, and I was named to be the first head of the appeals and research section.

I remember William Rogers calling the division together, saying, "Let’s not bring too many cases. What we want to do is bring just a few cases so that we establish the law solidly from the beginning."

BR: Did you see that as a delaying tactic?
HG: Not at the time, no. I thought, "Well, he’s the attorney general. He must know what’s he doing." Of course, I later realized it didn’t have to be that way. Robert Kennedy created a very different atmosphere when he came in later.

BR: Robert Kennedy made civil rights a priority?
HG: Very much so. It was 180-degree change from what had gone on before.

BR: Did you have much contact with Robert Kennedy?
HG: Yes, I got to know Robert Kennedy quite well. The attorney general traditionally argues one case before the Supreme Court, and Kennedy chose a voting case from Georgia. I was the lawyer who briefed him extensively before his argument. He was very friendly, very cordial. I went to the Court with him on the day of his argument. The traditional practice is that the justices don’t ask the attorney general any questions, so as not to embarrass him. But Bobby Kennedy had let them know that he didn’t mind if they asked him questions, and they did. They asked quite a few questions. I remember sitting there kind of trembling when the justices began to bore in on him, but he handled it very well. So that was a rewarding experience.

BR: Did he take much interest in the civil rights legislation that was being proposed?
HG: Yes, a very active interest. The appeals and research section was a major force in drafting the bill that eventually became the Civil Rights Act of 1964. That legislation had its genesis in the Kennedy administration, so I met with him frequently.

BR: Did you feel you on the same wavelength with him on civil rights?
HG: Very much so. In those days things were much simpler than they are today. The big debate back then involved the public accommodations section of the civil rights bill that was designed to bring an end to the segregation laws then in force in the South. I didn’t see how any reasonable person could deny blacks the right to eat in restaurants, to sleep in hotels, to vote, to go to school, to shop in stores, and so on. There wasn’t any question about what side I was on. Both Robert Kennedy and I, and many others, were convinced that there was only one right side. It wasn’t like today where there are many differing opinions on affirmative action and quotas and set-asides. Back then, there was a very clear cut dividing line between right and wrong. Segregation was wrong. It was that simple.

BR: The Civil Rights Act did not pass during John Kennedy’s tenure in the White House, but was enacted only after his death. Was the assassination a factor in the passage of the bill?
HG: Yes, I think so. The assassination had an impact in the sense that it generated a lot of emotion. I was sitting in the House gallery when Lyndon Johnson gave his famous "Let us continue" speech to Congress a few days after John Kennedy was killed. He put a strong emphasis on civil rights as something that John Kennedy wanted. Lyndon Johnson was a very skilled legislator. He knew how to play on the emotions aroused by Kennedy’s memory, and he knew how to deal with his political opponents.

BR: Did you sense a tremendous opportunity in 1964?
HG: Yes and no. I never knew how things were ultimately going to turn out. I do remember sitting in the Senate gallery on the day that the filibuster was broken. That was an historic moment because a Senate filibuster had never been broken on a civil rights measure. You needed a two-thirds vote to break a filibuster, and this time the pro civil rights forces got exactly 67 votes. Senator Clare Engle of California was on his death bed. He was dying of a brain tumor and could not speak. He was brought in on a stretcher and made a gesture with his hand, and that was the vote that broke the filibuster. So that was a major turning point. I remember feeling that I was witness to very significant event.

BR: Was the bill passed immediately thereafter?
HG: No, not immediately. Senator Everett Dirksen was the minority leader who controlled the Republican votes we needed to obtain passage of the Civil Rights Act. We were negotiating with him and his representatives for several weeks regarding the drafting of the bill.

BR: What were Dirksen’s primary concerns?
HG: The public accommodations section was the main focus. Senator Dirksen didn’t want it to apply to small businesses. We wrangled over that for a long time—who would and would not be covered. As is often the case in Congress, we drafted some compromise language that didn’t resolve the issue, but left it sort of muddled.

BR: Did that frustrate you, to have Dirksen trying to water down the language of the bill?
HG: No, that’s the way the legislative process works. We did what we needed to do.

BR: Did you see the Civil Rights Act of 1964 as an historical piece of legislation?
HG: I thought it was important, but I didn’t realize that it was going to be as significant as it has proven to be. As things have turned out, the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which I also helped draft, were real turning points in history. But I had been involved in litigation within the civil rights division at Justice in desegregation and voting rights cases for several years. That was a very painful, very slow process because we encountered massive resistance throughout the South. I thought it likely that the Civil Rights Act and the Voting Rights Act would encounter the same kind of resistance. It’s one thing to pass a law, and quite another to enforce it. But as it turned out, resistance largely crumbled after the passage of those two pieces of legislation. So Congress had more prestige with the segregationists resisting federal power than the courts had.

BR: When were you appointed to the Court of General Sessions?
HG: President Johnson made that appointment in 1965, shortly after the passage of the Voting Rights Act. So both of the two great bills that I had been working on had become law. I figured I could stay at the Justice Department, where the civil rights division would spend the next 40 years litigating on the basis of these bills, or I could do something else. When the appointment to the Court of General Sessions came along I was quite pleased.

BR: Did you enjoy sitting on the local court?
HG: Yes, I did. Back then, the Court of General Sessions had the reputation of being no more than a police court. Many people looked down on it as if we were all dealing with a bunch of drunken lawyers with drunken clients. Until then there had been no thought of entrusting the local court with the big cases the federal courts had been handling.

BR: Of course, the local courts were given jurisdiction over major felonies with the Court Reorganization Act. How did that come about?
HG: The year after I joined the court, I was named its chief judge, and along with some of the other judges who had recently been appointed, we began to institute reforms that eventually led to the reorganization of the courts. It wasn’t difficult to get the judges to go along with the reforms because they knew it was going to benefit the system. What was difficult was battling the perception that we were just a police court. Even the Bar was opposed to the transfer of jurisdiction that gave the local courts primary responsibility for District of Columbia litigation.

BR: What allowed you to overcome the opposition?
HG: I don’t think I can pinpoint one specific thing. In retrospect, I think I learned something from being around Bobby Kennedy and some of the leaders of the Congress. I learned from watching how they dealt with political resistance. Robert Kennedy was obviously operating on a higher level, but he was constantly talking to people—talking to allies and talking to opponents. You pick up something from the atmosphere when you’re working in that kind of environment. You lose the fear of making decisions when you’ve seen other people making big decisions. So we made the decisions that needed to be made, and eventually the pieces fell into place. The Court Reorganization Act was passed in January 1970.

BR: You were chief judge during the riots in Washington after in assassination of Martin Luther King, Jr., in 1968. Can you recall what you were doing when you learned that he had been shot?
HG: I can’t remember that specific moment, no. But shortly thereafter I could see flames from the windows of my chambers. For the next three or four days we had major rioting here in Washington, and I stayed at the court day and night. Several thousand people were arrested. We were the only major city which experienced heavy rioting that arraigned and processed every defendant individually. In Detroit and Chicago and several other cities, they were doing mass arraignments, where they’d bring people before the court in groups of 30 or 50. But, as chief judge, I insisted that every case be taken separately. That’s why I kept the court in session day and night. We had judges working rotating shifts around the clock.

BR: Why was that so important to you?
HG: I felt very strongly that the judiciary shouldn’t cease to function as a judiciary merely because we were in the midst of difficult civil disturbances. In criminal cases, it is the individual that counts. You can’t lose sight of that. I told the other judges, "We are going to try each of these cases as normal cases." And that’s what we did. I do take some pride in that.

BR: You resigned as chief judge of Superior Court to join the federal bench in 1978?
HG: That’s right. I’d been chief judge for 12 years, so I was ready for some new challenges. I was pleased when President Carter made the nomination.

BR: As a federal judge you presided over the case that led to the breakup of AT&T. When did you receive that case?
HG: That was in the first group of cases that I was assigned. We had three judges who were ill or ready to retire, and some of their cases were reassigned. The AT&T case was one of them. So on my first day, there it was.

BR: Did you know it was going to be a history making case?
HG: Not at first, no. Any case can settle the next day. So I didn’t know what this particular case would amount to.

BR: As you began to litigate, did that perception change?
HG: Yes. It became very big because millions of documents were at stake in discovery disputes that had been pending before Judge Waddy for some time. I can’t say that I realized it would have the impact on American life that it has since had, but I could see that it was going to be a big case in terms of workload and litigation strategies.

I was in trial with the case for 11 months; it took a tremendous amount of effort just to stay current. There were 30 or 40 lawyers on each side dreaming up arguments and filing motions.

BR: You weren’t sitting there feeling a smoldering anger over the monopolistic practices of AT&T?
HG: No. The AT&T lawyers had some good legal arguments. I had a good working relationship with the lawyers from both sides. I wasn’t mad at anybody or at any corporation.

Keep in mind, I didn’t dream up the breakup of AT&T. It came about as the result of a consent decree which the Department of Justice and AT&T agreed to. I suppose I may have had some impact in getting them to settle because I wrote voluminous opinions in dealing with those matters that did come before me. To this day, the lawyers on both sides think that some of those opinions were designed to give them a signal as to how I would ultimately decide the merits. That was a misconception. I couldn’t have given that kind of a signal because I didn’t know how it was going to come out. In fact, I was much too busy coping with the many problems, even emergencies, that came up during the trial. But when I denied a big motion to dismiss that AT&T had filed, AT&T took it as a signal that they were going to lose. I suppose that provided an impetus to get them to settle. But I never did decide the merits of the law suit.

BR: As you look back on the consent decree and what the breakup of AT&T has meant for American business, do you feel it came out about where it should?
HG: It came out better than I expected. The breakup of AT&T has proven to be of great benefit to American business, to the economy, and to American life in general, because it brought competition to the telecommunications industry. Foreign leaders come to the United States wanting to know what we did because it’s been such a great boost for the American telecommunications industry. I’ve received letters from senators and representatives saying that the groundwork laid in the decree made it possible to pass subsequent telecommunications legislation because competition was established through the decree that could then be deepened through further legislation.

BR: Did it seem that way at the time?
HG: Oh, no! The media, my friends, and the public in general were saying, "What kind of a cockamamie decision is this? We have to buy our own telephones? Where are we going to go to buy them? We have to have different providers of telephone service? How are we going to cope with all this chaos?" I was constantly being told that this was a crazy system that had been established. At times, even the Justice Department was attacking its own handiwork.

In the face of all that criticism, I could have easily said, "The parties to the lawsuit came up with a consent decree and I had no choice but to approve it." But I didn’t say that. I took the position from day one that it was the right decree, that the modifications I made to the decree were proper, that the correct outcome had been obtained, and that in due time all of that would become apparent. And it has become apparent.

BR: Do you feel vindicated by history?
HG: Well, in a way that is true, as I am associated in the public mind with the AT&T breakup. Nevertheless, it is not the sort of thing I want written on my tombstone, for it’s not the only thing I ever did in life. I think the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the reorganization of the courts here in the District are just as significant. And of course there are hundreds of decisions I have made and opinions I have written in the course of my judicial career. But as far as the public is concerned, it’s always going to be the breakup of AT&T that I’m associated with.

BR: Recently, mandatory minimums have come under a lot of criticism from the federal bench. Do you have strong feelings about the mandatory guidelines you’re required to enforce?
HG: I’ve declared the mandatory sentencing guidelines unconstitutional probably more than any other judge in the country—always unsuccessfully. I’ve been reversed every time. Some of the things that happen under the guidelines are outrageous. We’re often obliged to give defendants 20 years or more for the possession of a few ounces of heroin or crack cocaine. Now those people deserve punishment, but quite a few do not deserve 20 or 30 years. I believe that the element of flexibility that has largely been eliminated by the mandatory sentences and the sentencing guidelines has also had the effect of eliminating justice in many cases. It’s not that I’m opposed to tough sentences, because I think tough sentences should be imposed for crimes of violence, for example. But mandatory sentences that do not really take account of the life and character of the defendant often lead to unfair results. Yet we must impose them by mandate of the Congress or the Sentencing Commission.

BR: Are a lot of the people brought before you on drug possession charges the lower level couriers rather than high-level kingpins?
HG: Yes, that’s true. The people who can achieve downward departures from the guidelines are the higher level members of the criminal syndicates because they are able to make deals to get a reduced sentence. On the other hand, a courier delivering a package doesn’t have any leverage because he doesn’t know anything and doesn’t have information to trade. It’s a terrible system which most federal judges abhor, and which I firmly believe will some day be done away with in the interest of justice.

BR: These days lawyers are not held in particularly high public esteem. Do you have any reflections on that?
HG: Well, that’s true. Lawyers are not held in high esteem. I regret that the legal profession has become more of a business than a profession. These days it’s often driven by bottom line considerations, and I think some of the disdain in which lawyers are held is due to that fact. It’s important for members of the bar to remember that this is a profession. It’s been a profession for hundreds of years, and we have traditions of civility and conduct that are worth maintaining. In my courtroom, I’m much more impressed by a lawyer who comes in and handles himself or herself as a member of a profession, rather than by the lawyer who is less than forthcoming with the court and is constantly seeking every angle in pursuit of some sort of pecuniary advantage. In the long-term, the lawyer who acts only to make money and doesn’t care about professional responsibilities is not the lawyer who is going to survive. Once you lose your credibility, that doesn’t go over well in court, or elsewhere, for that matter.

BR: After a full three decades on the bench, do you have any future plans?
HG: I’ve taken senior status. I still carry almost as many cases as I did before, but I’m trying to decelerate so that I can take more time off and engage in such activities as traveling. My wife and I do enjoy going on trips, and I’d like to take advantage of the opportunity of senior status to do that. I also have children and grandchildren, and I look forward to seeing them more often than was possible when I was a so-called active judge. But I have no present intention of giving up my judicial responsibilities.