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Washington Lawyer

Legends in the Law: Charles A. Horsky

(Appeared in Bar Report, August/September 1996)

A 1934 graduate of Harvard Law School and a member of Covington & Burling for nearly 60 years, Charles A. Horsky’s remarkable career has included such diverse accomplishments as arguing landmark civil rights cases before the Supreme Court, assisting in the prosecution of the Nuremberg War Crimes Trials, and handling litigation that resulted in the creation of Amtrak and Conrail. Horsky also served as president of the Washington Housing Authority, was the first Adviser to the President on National Capital Affairs during the Kennedy and Johnson administrations, was chair of the D.C. Board of Higher Education, and was chair of the Council for Court Excellence. Mr. Horsky also is distinguished as an author, having published a book whose title epitomizes the story of his life: The Washington Lawyer.

In preparing this article, Bar Report writer/editor Theodore Fischer conducted personal interviews with Mr. Horsky and read the complete oral history given by Mr. Horsky as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. Excerpts from the Oral History Project are reproduced in boldface type. Mr. Horsky’s complete oral history is currently on file in the Office of the Circuit Executive for the United States Courts for the District of Columbia Circuit and will be permanently filed in the library of the D.C. Circuit and with the Historical Society of the District of Columbia.

Bar Report: Tell us about your background.
Charles Horsky: I grew up in Helena, the capital city of Montana. I considered myself a city boy because in Montana, that was a big city—12,000 people. My father was a state district judge. He had to be elected every four years and he was elected eight times.

BR: When did you decide to study law?
CH: I guess when I was in college. I took some courses in political science which sounded interesting, so I decided I would carry on with law school. During the latter part of my senior year at the University of Washington, I was having a chat with my favorite political science professor. He asked me what I was going to do. I said I was going to law school. He said, "That’s fine. I think that’s the right thing to do. Where are you going to go?" I said I was going to go here, at the University of Washington. I’m here and I’ve got a job. Why shouldn’t I go here? He said "There are better law schools. Why don’t you go to Harvard?" He was a graduate and he got me the application. I filled it out and sent it in and got a letter back saying I was accepted. I didn’t even know how far away Harvard was. What I expected was that I would get a legal education and become a lawyer, but I didn’t know anything more about it than that.

BR: What was your first lawyer job?
CH: It was in New York as a clerk to Judge Augustus N. [Gus] Hand, Second Circuit. Felix Frankfurter, with whom I had classes at Harvard, had the power of appointment for Gus and Learned Hand and a couple of other judges in New York, and he selected me for Gus. I liked the job very much. Gus is a very amiable man, quite willing to discuss all his cases with his law clerks. I was there one year, and in 1935 I joined the Solicitor General’s office in Washington. Gus knew Stanley Reed, who had just come in as solicitor general and was redoing his whole staff. Gus recommended me for a job on the staff. I’d never been to Washington before. It was exciting but it didn’t seem extraordinary. Everybody had a job to do, and you just did it. I sort of looked forward to coming to Washington but I really didn’t know a hell of a lot about politics.

I worked like a dog in the S.G.’s office. It was the time when the New Deal was being litigated. I worked on briefs on the National Labor Relations Board cases, the TVA [Tennessee Valley Authority], Social Security…I thought nothing of working 14 hours a day seven days a week. At that time if you went to a cocktail party, everybody would talk about what they were doing to save the world. In the Department of Justice, particularly in the S.G.’s office where we had to defend some of these things in the Supreme Court, we thought that we were saving the world.

BR: What did you at Covington & Burling?
CH: The work I did with Covington and Burling, which I joined in 1937, was strictly corporation work. Covington had a rule—at least it seemed to be a rule—that everybody that came had to spend at least a year working on taxes. The general rationale for that rule as far as I could understand it was that taxes were so important to everything that you do, whatever the kind of case you are handling, you have got to know something about the tax consequences of things.

BR: What are some of your more memorable cases?
CH: One case that I remember vividly was the Regional Rail Reorganization Act which involved the reorganization of the Penn Central Railroad and culminated in the creation of Conrail and Amtrak. Penn Central had gone bankrupt and into receivership, and the problem was how to get it back on its feet again. It had been a combination of about 20 railroads, each with its own separate problems. Pulling it all together and trying to make sense out of all the interlocking debt arrangements was really a massive enterprise. I was sort of the master of ceremonies running teams of lawyers. Ultimately we had 35 or 40 people at Covington working on the case.

Another important case was Robert Morss Lovett v. the United States, a case that Mr. Burling got me into. Mr. Lovett was fired as executive assistant to the governor of the Virgin Islands and he brought suit to get something like $3,000 that he was owed. It turned into quite a celebrated case that went all the way to the Supreme Court. It finally came down to whether it was a bill of attainder with Congress acting as a court. Lovett had been ousted because Congress refused to appropriate any money for him. We argued that it was a bill of attainder because Congress was trying to act as judge and jury. And we won.

BR: What were your most satisfying cases?
CH: Satisfaction came most from my work with the American Civil Liberties Union (ACLU). I started a branch of the ACLU in Washington and they steered some cases to me. In 1944 I argued Korematsu v. the United States, one of the Japanese exclusion cases…that arose in the Northern California branch [of the ACLU]. I had it only in the Supreme Court. [Fred Toyosaburo] Korematsu was a young, intelligent Japanese-American citizen who refused on grounds of principle to report for internment…He was convicted and wound up in an internment camp. The U.S. attempted to avoid calling it a "concentration camp" but it was damned near that. He appealed and finally got it to the Supreme Court…I had 20 minutes to argue, and I think it was the best argument I ever made. It did not prevail, but I really put my heart into that one.

We were dead right as it turned out…The government’s case basically relied on the fact that…things has been happening in California that suggested that we had to move all the Japanese out of California. There was a report written by the commanding general of the [Western Defense] Command named [Lieutenant General John L.] DeWitt [that] outlined a lot of reasons why it was necessary to remove the Japanese, some of which I knew were false. For instance, DeWitt said there were suspicious lights moving about on the coast which were probably signals to submarines lurking along the shore. I found out to my satisfaction that the lights were Japanese kids, or maybe not even Japanese kids but kids, going to outdoor toilets at night with flashlights.

The government used [the DeWitt Report] but they didn’t really say it was all true…In argument I did not quite say that I thought [Solicitor General] Charles Fahy, who argued the case for the government, was misleading the court, but I came close enough so that Mr. Fahy didn’t speak to for me years afterwards. The final answer was given [in 1984]. Mr. Korematsu had brought an action coram nobis to review his conviction. A District Court in California…found that the U.S. had misled the Supreme Court and set aside the conviction, and the government did not appeal. I feel a little bit vindicated about what I truly thought was a terrible decision…Korematsu really bothered me. I should have won it. I just didn’t have the nerve or enough information to really tie it down.

BR: What was your biggest Supreme Court triumph?
CH: Griffin v. Illinois in 1956. Griffin had been convicted of a crime and wanted to appeal, but he couldn’t appeal because he couldn’t raise enough money to print the transcript. Under the rules in Illinois, you couldn’t appeal unless you supplied the court with a transcript of the proceedings below it. We claimed this rule was unconstitutional because it deprived him of his right to appeal…There’s no constitutional right to an appeal in the U.S. in a criminal case…But almost nowhere in the civilized world could I find a case in which an appeal depended on whether you had enough money to appeal and to supply the necessary papers. One argument that seemed to me to be persuasive—well, I think it was persuasive—was the result of my examination of criminal appeals in Illinois over a ten-year period…which showed that in 70 percent of the cases, the trial court was reversed. Appeal was not a futile business at all…so the Supreme Court ruled [the law] unconstitutional…If the person can’t afford a transcript, the state’s got to give him a free transcript.

BR: How did you get involved in Nuremberg War Crimes Trials?
CH: I knew [Robert H.] Bob Jackson from the Department of Justice, and when he was appointed chief prosecutor of the Nuremberg Trials [in 1945], I went down to his office to see if I could help. He said, "Oh sure, here’s a copy of the indictment." I said, "Wait a minute, they’re all marked ’Top Secret.’ I don’t want to get you or me in trouble." So he arranged to have me appointed to the temporary reserves of the Coast Guard which consists of people who have enlisted pro bono to help patrol harbors and things of that sort. When they’re in uniform, they’re full-fledged members of the Coast Guard; when they take the uniform off they’re nothing. I enrolled in that so I could work on the confidential papers.

My job was to do everything for Bob Jackson in this part of the world while he was over in Nuremberg. I had a suite of offices in the Pentagon. I did most of my work for the trial by getting witnesses or getting affidavits and keeping Justice Jackson abreast of the press coverage and how the trial was playing in the United States. I was doing this part time; I kept my job at the office.

When the trial was over, Justice Jackson asked me to go to the final episode—the sentencing. I went to Nuremberg and listened while the court imposed sentences. General Taylor, one of Jackson’s principal assistants, asked me if I would help him with the cases he was going to try and, as a result, I stayed on in the Coast Guard for another period in which the United States tried a number of lower level Nazis for war crimes—doctors, lawyers, judges. I enjoyed that very much. That was my first big excursion out of Covington & Burling. Nobody in the office seemed to object. Everyone thought I was having a good time, and I was.

BR: How did Covington & Burling feel about your outside activities?
CH: They were generous almost to a fault. If you have an opportunity to do something interesting, they say for God’s sake go ahead and do it. It’s a wonderful firm for that.

BR: Your career included service as a board member and president of the Washington Housing Authority. How did you get involved in that area?
CH: The Washington Housing Association was an organization founded by Eleanor Roosevelt basically to get rid of alley dwellings in the District, these little squares down near the Capitol inside the houses that were facing the street. They were really slum conditions. The WHA was formed partly to get rid of those and to promote public housing. I got interested in the WHA in a very curious way. I has almost no connection with the District except as a place to come and work. One day I was reading a newspaper and discovered that the Community Chest had refused to fund the WHA on the grounds that public housing was too controversial. I thought this was a pretty shortsighted view from the Community Chest. I decided I would remedy that as far as I could by sending a contribution directly to the housing association. It wasn’t a very big contribution, $250 or something like that. It turned out to be one of the largest contributions the Housing association got, so I was promptly elected a member of the board of directors, and very shortly after that I was elected president. I became knowledgeable through that because I was working on not only public housing but zoning matters in various other aspects of the District’s development. I began to learn something about the District and became acquainted with people in the District Building. I stayed as chairman until 1962 when I went to work for the White House.

BR: How did you become Adviser to the President on National Capital Affairs?
CH: In 1962, [Philip] Phil Graham, then the publisher of The Washington Post, told President Kennedy, whom he knew well, that "you’ve got to do something about the District. It’s in terrible shape." Kennedy said, "That’s worthwhile, but who do I get to help me." Probably based on work I had done as president of the Washington Housing Authority, Graham said, "Get Charlie Horsky."

BR: What was your job?
CH: I was supposed to advise the President on how to improve the District of Columbia. I didn’t have any parameters. The major problems were a high infant mortality rate, high incidence of disease, high crime rate, all kinds of difficult things. It was a full-time job, and I had an office in Executive Office Building. I had a free hand, pretty much. Neither Kennedy or Johnson was inclined to tell me what to do, so I operated on a sort of free-wheeling basis and involved myself in anything that seemed to be going on.

BR: How did the Board of Commissioners who governed the District take your appointment?
CH: This was not terribly popular with the Commissioners. Walter Tobriner, the president of the three-man Board of Commissioners at the time was a friend of mine and I had known the other Commissioners in connection with the work I had done around the District on a pro bono basis. Walter felt that he wasn’t going to be really the top man now as far as the Executive Branch was concerned…But we had a couple of meetings and I persuaded them that…I was there to help him do what…he couldn’t get permission from the House District Committee to do, and he couldn’t get money to do…So I established a relationship with the commission and then I went to work.

BR: What was the first order of business?
CH: The President sends a budget message to Congress at the beginning of every session, customarily with an appendix which was a budget for the District. Just numbers, nothing else. I thought this was an opportunity to say something about the District, so I crafted a budget message that President Kennedy would send up separately. Whether it had any effect on the Hill or not, I don’t know, but it at least laid out the problems and solutions, what you could do about them and what you couldn’t do. We sent a budget message every year for four years adding on, explaining more, giving more suggestions of what could be done.

BR: What were some of your major accomplishments?
CH: At that time there were several items of concern in the District. One of them was a proposal to build a subway. This had been talked about over the years many times and it had come down to a situation where it was about to happen if all the hurdles could be overcome. One of the hurdles was to get an agreement between the District, Maryland, Virginia, and the Congress on an interstate compact which could govern the operations of the subway. If you think it’s difficult to get an agreement between two states on something, it is astronomically more difficult to get an agreement between three jurisdictions and then to get Congress to approve it as well! With a lot of maneuvering and a lot of negotiations back and forth, they finally arrived at a compact that now governs the subway and, for that matter, buses and taxicabs that cross state lines—the Washington Area Metropolitan Transit Authority. That was one of the hurdles. The other hurdle was to overcome the objections of the man who ran the streetcar system who regarded it obviously as a threat to his system. That was O. Roy Chalk who was really quite energetic in his opposition. He would call me at home at night and berate me for supporting the subway which he thought was a boondoggle, completely unnecessary, too expensive, but we finally got rid of that.

There was a problem of reconciling the plan with the highway department. There was a master plan for D.C. highways which included two highly controversial projects: a bridge across the Potomac at the Three Sisters Islands about half a mile upstream from Key Bridge…and a proposed inner loop that would circle the District along what is now Military Road, go under the Tidal Basin pretty close to the back end of the White House, and, more importantly, require the demolition of the Anderson House which is the home of the Society of the Cincinnati. There was quite a lot of opposition to it and I was trying to keep the President from getting involved…I arranged for further studies by disinterested experts that poured cold water on some of the projects. The upshot was that the highways weren’t built, the inner loop still does not exist, and the Three Sisters Bridge does not exist, thank goodness.

Also while I was at the White House, Jack Anderson wrote a column suggesting the Pope was going to move into the Watergate, to have an office or establish headquarters of some sort. The basis for the rumor was that the engineering firm that won one of the contracts to build the Watergate was an Italian firm in which the Vatican held a 30 percent interest. That caused a great deal of trouble. Everybody wrote to the President saying, "You’re a Catholic, you’ve got to stop this." I was assigned the job of answering all those letters, which I did by saying, "We’re on top of the situation, the Pope isn’t going to come to Washington," and ultimately it died down. As far as I know there was never any substance to the story.

BR: Why did you leave White House?
CH: I promised my law firm that I would take a leave of absence for a year. At the end of five years, they asked me how long this year was going to last. Johnson said he wouldn’t let me go unless I found somebody to take my place, so I scratched around and finally found [Stephen J.] Steve Pollak [of Shea & Gardner]. When he left that was the end of it. It’s too bad. The District is not in terribly good shape, and they could use some help.

BR: How did you get involved in study of the D.C. Courts that resulted in the "Horsky Report"?
CH: I served a couple of terms on the Board of Governors of the D.C. Bar. During one session, somebody suggested that the tenth anniversary of the reorganization of the District of Columbia Courts was coming up, and the Bar should see how the new organization was working. I was asked to chair a study of the courts. I said I was the worst person in the world. I don’t know anything about the D.C. courts. I’ve never been in one. I don’t know any of the judges. They said that’s exactly what we want, somebody without any prejudice. I finally agreed and it burgeoned into a very large operation. I went to the Meyer Foundation and the Ford Foundation for some funds and hired Sam Harahan as executive director.

It was a job that took almost four years and an awful lot of people worked on it much harder than I did. We created subcommittees…for each of the different kind of courts…one for the Probate Court, Tax Court, Court of Appeals, Landlord and Tenant Court, and so on. Each one was assigned the job of evaluating how the new system was working as compared to the old system, which meant that in most cases there was a description of the previous courts and a description of the present courts and a series of recommendations…We had hearings and comments and letters written and whatnot, and by the time all the machinery had been exhausted, we had a report which at least had the benefit of having input from every source you could imagine.

One of the great problems of anything like that is carrying through afterwards, getting something done… Soon after it was printed, the court appointed a committee of three judges to evaluate the recommendations. Some of the recommendations required judicial actions, some required Congressional actions, some required District actions. They went through and said "yes" or "no" to every recommendation that concerned the court acting, and they adopted many of them…The D.C. Bar tried to do its part. They appointed a committee which John H. Pickering headed called the Implementation Committee and it worked on these [recommendations] through both the Congress and the D.C. Council…The committee functioned for four or five years and managed to get a number of other recommendations adopted by the Council and Congress.

BR: How did the Council on Court Excellence come about?
CH: Sam Harahan had been bugging me relentlessly to create something on the pattern of the Vera Institute in New York City, which came up with a recommendation for court reorganization. We tried to create something which would monitor the courts, offer suggestions, criticize, but be arm’s length from the court itself so it wouldn’t seem to be blasting its own. The organization has a fairly flexible membership: local lawyers, business executives, citizens with an interest in the community. They pick a subject to study and then write a report. It has been a quite successful organization. It operates entirely on donated funds and foundation grants. As with all such organizations, its finances are never in very good shape, but it’s managed to survive and pay Sam, the rent, and miscellaneous other charges.

BR: In addition your professional achievements, we understand you’ve also led an active life away from the office.
CH: From 1962 until last year I taught a seminar on civil rights at the University of Virginia in Charlottesville. I’d go down on Friday and teach from four to six and on Saturday morning from nine to 11. We covered the spectrum on civil rights. At the beginning, it was mainly racial discrimination but it moved into all kinds of civil liberties, freedom of religion, freedom of speech, the whole gamut.

I was for many years the president of the Washington International Horse Show. That’s a hell of a job. You don’t have any money, you are working entirely with volunteer labor, you can’t hire anybody, and to put on a major international horse show of the kind we had here is really quite a massive task. But that’s fun. I like the horses. I like the people. They don’t seemed to be immersed in political squabbling and things of that sort. Everybody seems to get along much better.

I also like horseback riding. I ride in Montana. I inherited from my father two cabins in a little place called Lincoln which probably doesn’t like being famous now as the home of the Unabomber suspect. I kept trying to get out there for at least a month every year that I’ve been [in Washington]. I didn’t always make it. Sometimes the war interfered, sometimes the White House, but by and large I’ve kept in touch with the place.

BR: How did you come to write your book The Washington Lawyer?
CH: A professor at Northwestern University named Nathaniel L. Nathanson asked me if I was willing to give their Rosenthal Lectures in April 1952. Since it was two years away, I said sure and began to regret it almost immediately. But I went through with it and delivered three lectures which became the book The Washington Lawyer.

In the book I described the Washington lawyer in three ways: one, influencing legislation by lobbying or by helping others get their points of view across; two, by intervening with the Executive branch on behalf of clients to get something done or to get something stopped; three, appearing before the federal judiciary. That’s still basically what it’s all about except there’s a lot more of them doing it, which gives it an aura of respectability that it probably didn’t have before.

BR: You have accomplished so much in your career. What advice can you offer to younger attorneys?
CH: I’ve always had the theory that the lawyer work is important but not necessarily primary. If I could find something else interesting to do, I’d do it. Lawyers have always had a bad image. They are portrayed as greedy and self-serving, but I think the District of Columbia Bar and lawyers in the district have done a pretty good job of explaining to the public that they’re trying to do the best they can for the good of everybody, not just for themselves or for their particular client. It’s not an easy task. My words of advice for young lawyers? Just do your best.