Washington Lawyer

Legends in the Law: John H. Pickering

(Appeared in Bar Report, October/November 1994)

John H. Pickering is senior counsel and a founding member of the law firm of Wilmer, Cutler & Pickering. A 1940 graduate of the University of Michigan Law School, Pickering has been in private practice in the District since 1946. He has served as president of the D.C. Bar (1979-1980), and has been a member of the ABA House of Delegates from 1984 to the present.

The recipient of numerous awards for his commitment to public service, civil rights, legal education, and professional excellence, Pickering was recently presented with the Fifty Year Award by the Fellows of the American Bar Foundation, which is given to a lawyer who, during more than fifty years of active practice of law, has adhered to the highest principles and traditions of the legal profession and of service to the public.

Bar Report: What made you decide that you wanted to become a lawyer?
John Pickering: Basically, it was counseling from my parents. It was generally assumed that I would go to college and become a professional. I couldn’t be a doctor because I couldn’t stand the sight of blood, so I became a lawyer.

BR: Did you enjoy law school?
JP: Yes, very much. At the time the country was just beginning to come out of the Depression. My tuition as an out-of-state student at the University of Michigan was $100 a year. Today an out-of-state student pays roughly $18,000 a year. But, believe me, back in the mid-thirties that $100 was just as hard to come by. There were very few scholarship programs and nothing like the loan programs that are available to students today.

BR: How did you get your first job?
JP: That’s an unusual story. On the recommendation of a Michigan professor, I was working at the New York law firm of Cravath, de Gersdorff, Swaine & Wood as a summer associate in the summer of 1939. On September 1, 1939, Nazi Germany invaded Poland, triggering the onset of World War II. That was a very busy day at the office because the firm represented a great many foreign clients. In the midst of all this excitement and confusion, the acting head of the firm, Robert Swaine, asked me into his office and offered me a job for the next year.

BR: Was that a difficult time to start a career?
JP: Oh, yes! It was a very unsettling time. As I said, I was offered my first permanent job on the day that Hitler attacked Poland, and then I graduated from law school on the day that France surrendered to Germany. The United States had not yet entered the war, and the isolationist point of view was still being put forth by some very responsible people. There were charges and counter-charges about whether Roosevelt was trying to drag the United States into the war. Of course, all of that changed in the twinkling of an eye when the Japanese attacked Pearl Harbor. That coalesced the nation as nothing else has done in a long, long time.

BR: Did you enjoy the practice of law as an associate in New York?
JP: In those days young lawyers did a lot of the work that we now use paralegals to do. The drudge work—cite checking, proofreading, research. I had a few interesting projects that I worked on, but it was a very mixed bag.

I do remember working on a large case in the Cravath office at that time, the "Black Tom" case. Germany had blown up the Black Tom terminal in New York during World War I, which cost a number of companies a great deal. The awards were made out of seized German assets, and the case was headed to the Supreme Court. I checked the citations on the brief. Many of the materials were stashed away in dark little alcoves at the city bar association. I had to get down on my hands and knees to crawl in and pull that stuff out. I didn’t particularly enjoy doing that, but the fact was I had job at a leading law firm when jobs were hard to come by.

BR: What brought you to Washington?
JP: In 1941 I had an offer to become clerk for Justice Frank Murphy of the Supreme Court. I had gone off to New York thinking that I was going to become something called a corporate lawyer. Now I didn’t know what that meant, but that’s what I was going to be. I thought my clerkship would be a one-year detour. As it turned out, I never returned to New York.

Justice Murphy had a great influence on my career. He was a firm believer in protecting the rights of the individual and protecting the rights of the minority against the tyranny of the majority. The year before I arrived at the Court he had joined the majority in a case called Minersville v. Gobitis. The issue in that case was whether a Jehovah’s Witness child could be expelled from school for refusing to recite the pledge of allegiance and salute the flag. The Court ruled that this child could be expelled. When I came to the Court, Justice Murphy took me aside and told me that he had been wrong in Gobitis. He wanted to say so at the earliest opportunity. So one of my jobs in reviewing the petitions filed with the Court was to look for a case where he could say so. The case was another Jehovah’s Witness case Jones v. Opelika. In that case Justices Murphy, Black, and Douglas all three said that they had been wrong in Gobitis, and that they would vote to overrule it at the first opportunity. That opportunity came in another flag salute case, West Virginia v. Barnette. Justice Jackson wrote a ringing opinion about the rights of individual conscience. In reversing Gobitis the Court said, in effect, that an individual has the right to say, "I will not recite the pledge of allegiance because it is offensive to my individual religious beliefs." That reversal has stood the test of time.

BR: You mentioned that Justice Murphy was an important influence on your professional career. How so?
JP: I grew up as an only child in a home where my father was upset with some of President Roosevelt’s New Deal legislation because it adversely affected his business. A lot of what I heard was fairly conservative. Whatever latent social conscience I may have had was brought to the fore as a result of my association with Justice Murphy. His insistence that the law be used as a tool for the public good couldn’t help but have an influence on me. He had great strength of character, and that was reflected not only during his tenure on the Court, but throughout his long career in public service.

BR: What did you do after your clerkship?
JP: I went into the Navy during World War II. I started as an ensign and was mustered out as a lieutenant commander in 1946. My wife and I decided we liked Washington better than New York. So we settled here. I joined the little firm of Wilmer & Broun, which took over the Washington office of the Cravath firm. Dick Wilmer had been the Cravath partner in charge of that office.

BR: Can you tell me how Wilmer, Cutler & Pickering came into being?
JP: Yes. Lloyd Cutler and I had started at the Cravath firm and we came to Washington at roughly the same time. He came in the fall of 1941 to work for the fledgling Lend-Lease Administration and I came to clerk at the Supreme Court. Lloyd and I were good friends. After the war, he joined a firm called Cox, Langford, Stoddard & Cutler. We kept in close touch through the fifties, and from time to time we would say, "Wouldn’t it be nice if the two firms could get together?" We thought it might have a catalytic effect.

Then in 1962, after years of talk, we got serious. Lloyd and I worked out who wanted to be with us, and then we went to Dick Wilmer—who was old enough to be our father—and we told him wanted to form a new firm. He said he’d be delighted to have his name listed first in what he said would be a great law firm. So on May 1, 1962, we started off as Wilmer, Cutler & Pickering. There were twenty of us, and our offices were in the old Transportation Building diagonally across from the Metropolitan Club.

BR: At the time did you have any idea that you were forming a firm that would soon become one of the most prestigious in the country?
JP: Well, Lloyd and I were cocky enough that the thought that we might fail never occurred to us. We’d known each other before the war, and then in private practice from 1946 through 1962, and we were confident the firm would be a success. But it also never occurred to us that we would one day have a firm of about 250 lawyers with offices in Washington, London, Brussels, and Berlin. Had anybody told me that would happen, I wouldn’t have believed them. I have to pinch myself when I think about what the firm has become.

BR: For you personally, have there been any favorite cases?
JP: Yes, there have been many. One of the strange things about my career is that the first time I appeared in court to argue a case was in the Supreme Court of the United States. That was in 1946. I’d just been mustered out of the Navy, and in those days when the Supreme Court needed to appoint counsel for an indigent they would use former law clerks. One Saturday afternoon my phone rang at home, and the deputy clerk said, "John, the Court would like to appoint you to represent the defendant in a mail fraud case. Do you agree?" Well, I couldn’t have said no even if I’d wanted to. So I argued my first case in the Supreme Court.

I was brought back to earth the following week. My second court appearance was a traffic case in the old municipal court. I defended a chauffeur on a change of lane violation—and I lost.

Looking back, I’d say the cases I’ve enjoyed the most have been those that have some real constitutional significance. One was the steel seizure case which overturned President Truman’s seizure of the nation’s steel mills. Another was NAACP v. Claiborne Hardware, which Lloyd Cutler argued and I worked on the brief. It involved an effort by the merchants of Claiborne County, Mississippi, to obtain a judgment against the NAACP for having organized a boycott. The merchants sued the NAACP, claiming the boycott was an unreasonable restraint of trade. The Mississippi courts ruled in their favor and assessed triple damages. If the damages had been collected, it would’ve put the NAACP out of business. We took the case to the Supreme Court, where we prevailed. The Court held that the boycott was not an antitrust violation, but a permissible exercise of economic speech.

I also helped represent the U.S. House of Representatives in the expulsion of Adam Clayton Powell. In that case I might have preferred to be on the other side. That’s one thing the public doesn’t fully understand about lawyers. You should not turn down a case just because you may have some sympathy for the other side. However, if your sympathy would affect your ability to represent a client, you should not take the case. I did not have any such problem in the Adam Clayton Powell matter. He had sued to get his seat back after he had been expelled from the House. We won the case in the District Court and in the Court of Appeals, but we lost in the Supreme Court, which held that Congress is restricted to the three qualifications stated in the Constitution when it judges the qualifications of members. Those three qualifications are age, citizenship, and residency. That’s it. I think the Court was right in that ruling despite our respectable arguments to the contrary. Subject to those qualifications, the voters have a right to elect whomever they want—even if he or she is a scoundrel.

BR: Do you have any accomplishments you’re most proud of?
JP: When we started the firm of Wilmer, Cutler & Pickering one of our goals was to devote at least ten percent of our time to public service and pro bono representation. That is a tradition we have tried to carry on. When I was president of the Bar, one of the things that was important to me was improved access to the legal system for all segments of our society. That’s something that is still important to me today. Monetary reward is nice, and one of the things that’s nice about it is that it allows you to do work that contributes to the public good. That is a tradition that I think it is important for our firm to continue, and I’m proud of the contributions our firm has made over the years.

BR: How is that message conveyed to young attorneys who join the firm?
JP: Well, very simply. I bring them in, sit them down, and talk to them about it. We talk about the culture of the firm and the importance of looking beyond the next billable hour. I think our ten percent commitment to public service is a policy that many of our young lawyers find very attractive.

BR: Do you think that commitment has increased the satisfaction you have derived from the practice of law?
JP: Absolutely. In reflecting on a lifetime, I think there’s always the temptation to ask, "What if?"—What if I’d gone back to New York and made partner? Would I have made more money? Yes, I would have made more money. Would I have had as much fun? No, definitely not. I’ve had the opportunity to play a substantial part in the creation of a major law firm, and I’ve been able to do a lot of things for the Bar, for court reform, and for the Michigan Law School. That has given me a feeling that I’ve done something with my life other just serve the interest of clients.