Hon. Milton L. Schwartz (page 5)

Miller: When we stopped last time we agreed that this time we would move a little closer to the judgeship and then take our side trails from there. When did you first think that what you, the way you wanted to end your career was as a Judge?

Judge: I think I knew, I can remember the year - it was 1963 - and there was . . . someone told me that the Governor, who was then Pat Brown, was looking for someone to appoint in Superior Court. And I can't even remember who it was; it was a lawyer that I knew who was working on a Committee and urged me to put my name in right away. And I can remember staying up all night long with Barbara, my wife, thrashing the problem out. And I remember that the salary was $21,000 for Superior Court Judges, and we had four kids and all four of them needed to be educated, and I finally ended up not putting my name in. But the bug was sown and the thing that was working the hardest on me was that, I remember saying, I've always known that someday before I hung them up I would like to be appointed to a court. And, obviously, the federal is not one that you entertain real hopes of because it's so difficult and so much political that it's hard to do.

But I knew that there were several very good lawyers in Sacramento who had passed up appointments in the time being, and they never got the chance when they later wanted to go on the bench, they never got the chance to be appointed. I said that this may be my only opportunity so I ought to grab it. And I remember Barbara saying, "That's a terrible reason to take an appointment that you don't really think you want now because you're afraid that later on you will want it. And I can't promise you that you won't get another chance if you turn this one down, but maybe it's not meant to be. But that is not a sound reason for saying, 'I want it.'" And so we never did go to bed that night. We went back and forth. And that's the first time that I really thought that I was interested and might want to be that if I could.

A year or two later - no it was more than that - but Pat Brown was still the Governor and the opportunity came up again so I went over to see him and told him that if my name was still under consideration I would like to apply. And he said, "I promised that position unfortunately already now to Abbot Goldberg," and so, he said, "there isn't one open or available." And then I figured that has now happened to me.

And then this federal one just came up out of the blue. Justice Anthony Kennedy had his chambers over in 555 up on the 15th Floor, and I got on the elevator with him one morning to go to work, and he was on the elevator, there were just the two of us there, and he said, "I assume you've heard about the new openings for federal appointments." And I said no I had not. And he said, "Well there will be. I don't know how long it will take to fund them and that sort of thing, but they have been approved." And, he said, "Why do you put in your name for one of those." And I said, "What will I do?" I didn't even know anything about it. And he said, "Why don't you . . . if you've got a few minutes why don't you come up and I'll tell you about it." And he did, and he told me that there were two new vacancies, but they were not funded. They were just approved, and so it might take a while, but it seemed to be a done deal. And so that's what impelled me to do it and I immediately went back and wrote.

And it was very easy in those days, because in the Carter Administration they had been embarrassed already by what's-his- name from Nevada, who was really a wonderful guy, but Senator Cannon had so much power then to control appointments, and that was a very bad experience for Carter because it was a lot of stuff that wore off on him, and he announced that he was not going to make appointments that way, even though the protocol was for the Senior Senator in the President's party to control the appointments to Superior and to U.S. Attorney and to U.S. Marshal. And so, he said, "I like the way Senator Cranston has set up his appointment thing by having a so-called Blue Ribbon Committee with people on both sides politically and nobody would be asked to write letters or to ask people to write letters on your behalf." It would be done by simply putting in your name, applying, and then turning it over to the State Bar of California. And the State Bar was asked to run the whole process, and it seemed to be the most non-politically possible way to do it.

And so I applied. And that was in 1977. And it took two years before - more than two years before an actual nomination was made. Not even a nomination - a - in those years the Senior Senator was given the courtesy of holding a press conference and announcing those persons or person whom he intended to name - to nominate - nominate was not the right term. He was simply recommending to the President, but everybody got it mixed up and they saw the big splash in the paper and so they assumed that you were appointed. And there was a long, hard, hard road from that point on. So it took a little more than 10 months for me to clear that first announcement that seemed to be . . .

Miller: A done deal.

Judge: A done deal, it did indeed. And everybody called it a nomination and, of course, it was really nothing. It was just that Senator's informal recommendation to the President. But when that happened, there were embarrassments to the President, because people that the Senator, like Cannon, announced, embarrassed the President. And so they changed that whole thing so that in recent years the way that goes about is that the President makes the announcement, but only after it's gone to the American Bar Association and, at that time, the Women's - the Nation Women's Bar Association, and a number of agencies, including of course the FBI and the full background investigation -everything.

Miller: They did that before anything surfaced?

Judge: Before anything. And when the President was satisfied that he was not going to be embarrassed then he would name the person, but the Senator was pretty much cut out of the loop as far as the publicity was concerned.

Miller: In recent times they've had a very, um, detailed 20-30 page questionnaire you have to fill out that pretty much exposes your whole life. Is that the way it was then?

Judge: It still does. And it was awful because I was just turning 60 years old and that was a long, long thing to fill out because you had to - you had to identify any place, geographically, where you stayed more than one night consecutively. And you had to fill in everything so that they could check all of those things. And that was a very lengthy thing and it took forever for me to get all the material together. But that was just the beginning. And then, before the President made his formal nomination, that whole thing was done over again, and more so, and updated with a lot of other things. And then another questionnaire was directed to the Senate Majority and another to the Senate Minority. And they all were different and they all emphasized different things. But the whole thrust of them has changed.

Before my name was considered, the Senate was concerned, and everybody was concerned mostly with excessive drinking, um, moral conduct with others, all the kinds of things - and of course

Miller: All the things they were doing.

Judge: I know. Exactly, exactly. And when I came on I thought this was going to be a piece of cake because I don't have any of these things. Fortunately, no arrests and no things that had to be explained. Our focus was the big movement then about did you belong to an organization that discriminated against women or minorities in appointments, or rather in membership, and that sort of thing. And I can remember was that except for length, and boring where people would fall asleep reading about all these things that had happened over that long period of time, from the time - I think the starting date was the date that I graduated from Law School, assuming that there was no full time employment between college and Law School. If there was that it started from when you graduated from college and went all the way through. And I went to the Senate hearing in Washington, very excited that we had finally gotten there and there wasn't a single answer that I would be concerned about at all. And, of course, I got there early, and I sat there and a staff member from the Senate Committee came down and sat down next to me and said, "Are you Mr. Schwartz." And I said, "Yes." And he said, "I just want to warn you, you are in some kind of trouble here. And I want to alert you because I'm afraid that you wouldn't even pick it up, and it might surprise you." And I said, "What did I do?" And he said, "They're worried" - and this was the Committee, this was the Republican Committee - he said, "they are worried a lot about the fact that you were a member of the Lion's Club." And I said, "I resigned from the Lion's Club in 1953. How long do you have to purge yourself form disloyalty and terrible things? When does the statute run on that." And he said, "Oh, we didn't understand that. It wasn't clear that you were no longer with the organization."

Miller: And that was because the Lion's Club was all men."

Judge: All men.

Miller: How about the Sutter Club? I know your grandfather founded it. That was the . . .

Judge: I never joined the Sutter Club because they were on a big kick after World War II that, some of the old timers there were very adamant that they did not want any Jewish men in the Sutter Club.

Miller: Even though your grandfather - wasn't your grandfather Jewish?

Judge: That didn't make any difference. And a few of them had made it through because they were, you know, exceptions. It's sort of like, we don't have any prejudices of any kind, but how would you like your daughter to marry one?

Miller: Yeah, some of my best friends are . . .

Judge: Yeah. And there were some very prominent people who were adamant and they got into some of these fights. But I remember that Dalton Feldstein, who was very prominent in every conceivable type of activity, and then, of course, was a very prominent and successful automobile dealer and all sorts of things, he got in. And there were two or three that it was sort of in spite of the terrible things that he may have done and be saddled with over the years, he's okay. But it was embarrassing and I wouldn't let my name go in because I was not going to go down there and be embarrassed. So I didn't. And then, after that, when they opened it up and everything, then I wasn't really interested anymore because I kept thinking, who would I go with? I mean there was nobody in our office. I'd have to be hosting parties all the time in order to have somebody to go to lunch with. And that didn't seem to make sense. And you had to use up so much each month or you were charged for it whether you went to the luncheons or not. So that didn't seem to make any sense. And I'm not a joiner anyway, and that terrible experience of, when I started out, joining these veteran's organizations, temporarily, like the American Legion and the Veteran's of Foreign Wars and all of those things that I thought would do me a lot of good in my law practice, turned me off so badly that I never really was a joiner. So that part didn't bother me. And I hated that Lion's Club thing, but I joined it because I thought I ought to, it was one of the things I thought you ought to do that. And it was so traumatic that I dreaded . . . . Barbara said I used to come home and say "six more days until I have to go to that awful Lion's Club meeting." It was, I thought it was pretty bad.

Miller: Now how about Del Paso. Did you - your grandfather . . .

Judge: My grandfather belonged, and my brother has belonged for a long time. But I never played golf, and there didn't seem to be any reason to join, or to put in my name for that, and so I never did. And whatever I did was playing tennis and I never had any connection with golf. So that didn't seem to make any sense. So I really have not joined any kind of a social or fraternal organization.

Miller: Now, in those days, before you got to the Senate Hearings, did you have to go through the citizen board interviews, and the Senatorial Interview, and that sort of thing?

Judge: Yes.

Miller: What kinds of people were on the, on the interviewing board when you did that? What year was it again when you did that? '78?

Judge: '79, when they got around to that. Everybody did it differently, of course, in every administration. But Judge MacBride was asked to conduct . . . he was asked to interview all of the people whose names had been proposed by themselves, I mean who was in the hopper. And that was supposed to be in confidence so that nobody would be embarrassed and that sort of thing. And that was a private interview with him, and he asked me questions, and I didn't know him all that well. I'd known him all my life, but he was always 6 years older than I was and that was a huge difference when we were growing up. And he was very prominent in student activities, and all these kinds of things. But it was a very business- like thing, and he asked me various questions, and he said, "Well, I don't see any reason why you wouldn't be qualified. You've got a few things against you. You're the wrong sex, the wrong color, you're way too old," and I forget what else. Nichols: The wrong party.

Judge: The wrong party. And, he said, "But other than that . . .

Miller: You're looking good to me.

Judge: And I said, "Well, that's encouraging." But he was a realist, and so I didn't have to do any work except fill out all of these things. But I didn't have to go get letters. A side issue on that that may or may not have any interest to anybody, but it did to me. Gordon Schaber, of course, had an enormous amount of clout, in the Democratic Party, and he was highly respected, and he was always on these selection committees of every kind. And, so, when it came time, and it was getting down close, I was asked for some, for several names. And, so I thought that Gordon would be extremely helpful since it would be a Democratic Administration and I wasn't. And I went to see him, and he said, "Well, I'm going to do this, but I'm doing it kicking and screaming. I will tell you," he said, "my committee, which was a local committee, worked very, very hard on all of the appointments in the administration. And we spent all kinds of time on judicial and on U.S. Attorney. And," he said, "our last appointment we narrowed down our list of people to recommend down to four or five names, and we believed they were all very strong and it didn't make any difference really, politically. This was our best judgment. And the day before the announcement was made of the U.S. Attorney's appointment, we'd never heard of the man who was nominated by Senator Cranston and the Democratic Party.

Miller: Was that Herman Sillas?

Judge: That was Herman Sillas.

Miller: That worked out well.

Judge: And they moved him over because they wanted to get rid of him, and they simply said, "Get this guy out of our hair. Find something for him. But he is messing up . . .".

Miller: Well, they did - they spread that wealth then to the federal system as well.

Judge: Yes, they did.

Nichols: He had been Director of DMV, and he had created some difficulties.

Judge: Wow, did he. And the fact is that, after everything was over as far as my appointment was concerned and I was back taking my one week's orientation course, in Washington, the question arose at that orientation course as to whether a person who had been appointed for 5 years as the United States Attorney could be fired by the President. And nobody could seem to agree as far as I recall. But the person who was conducting the seminar for us on that particular subject, I think, was Charles - great district judge from San Francisco -

Nichols: Renfrew.

Judge: Renfrew. And he posed the question and he said, "It probably never will really arise and be faced because when the Attorney General of the United States says to a U.S. Attorney, 'it's time for you to step down, like yesterday,' you do it, because there's no end, I mean that's just a one way street, so that nobody every faces it." But it looked as if Herman Sillas was going to take it to the, and go to the mat with it, and he said no, and so it was going to be a test of the President's power and all of his prerogatives, and all kinds of wonderful things that were going to happen. And then finally he folded at the last minute and resigned.

Miller: Okay. So you have the interview with MacBride. Then you have to go out and get some people to support you. Did you have a Committee interview?

Judge: Well, the Committee, then, was the one that - the Committee that Cranston appointed consisted of four Democrats and two Republicans that Hayakawa - he was, of course, the Republican - so that was six, and then the State Bar named three. I forget if anyone else had input. And that was the Committee, the final Committee. And we were just given a day and told don't tell anyone. Come to the federal courthouse at 2:00 on Wednesday afternoon - they gave me two days notice - and present yourself and tell the Marshal that you have an appointment with Judge MacBride. Judge MacBride will not be there. It will be the Committee. And . . . but they are sworn to secrecy and everybody's going to be doing this without revealing names or anything, so that no one is embarrassed by having applied and then not being selected.

And so I was trying a case in my last trial, in Fairfield, and I went to the Judge and asked him if I could have tomorrow afternoon off. That I was not at liberty to reveal what it was but I was being interviewed and had directions to present myself. And he was quite nice about it, and so I got off that afternoon and came over here. And then you just do like you do in any interview. I presented my name at the Marshal's office, and I was taken upstairs at my time and they interviewed me with all kinds of questions. And, of course, I panicked before the interview. I had no federal practice, almost none.

Miller: Really.

Judge: None.

Miller: Fascinating.

Judge: A few - three or four criminal cases, and maybe one - very, very limited, and then it had been a long, long time before in any event. And all the Federal Rules of Evidence had been completely changed, and everything. And so I had the night before, and I was staying in Fairfield in a hotel, so I just holed up in that evening about 5:00 as soon as trial was ended, and all night, I stayed up all night, reading all of that stuff - Civil Procedure - to try to make it stick and to - in case I was asked any real questions about federal practice. And trying to think of a truthful answer I could give when the inevitable question would be "How much federal practice have you had?" And I did stay up all night, and I made little outlines for myself, and I did all sorts of things, and it was very, very difficult because I wasn't going into familiar ground at all. And I was introduced to the Committee members and they started the questioning. And the first question was, "Can you tell us the - give us a description of the cases that you have handled for Mexican- American persons who had legal persons and whether you charged money for those or not, and if so what kind of a fee arrangement." And I thought - Mexican-Americans? You know, you're just hit right across the side of the head with a wet fish. You've been working so hard and you felt anything else, anything that was personal, I could handle, but anything that was legal I ought to study up on. But it never occurred to me to get these kinds of things. And this was someone on the Committee who was very much concerned about pro bono work, and how much pro bono work you did, and all that kind of thing. And I just wasn't - I mean I could think of a number of things over the years but they don't come to mind when you're not prepared.

Miller: Did you know any of the people on the Committee, or were they all strangers?

Judge: The only one I knew, at all, was Sam Williams who was on the State Committee of Bar Examiners with me and we became good friends. Do you know him? Do you know who he is?

Miller: Don't know him.

Judge: Well, he was one of these very attractive, appealing black lawyers that everybody loved. I loved him because he was a 49er for a while. But he's one of those people who became the Commissioner, the Police Commissioner for the City of Los Angeles, and of course that's a whole different thing. It skirts the City Council, and the Mayor, and it sets up - its set up its own Commission. And they were very, very powerful. And Sam was the Chairman of that. He had been President of the State Bar of California. He'd been President of the L.A. City Bar Association. One of those people that everybody wanted and he was at a time when being strongly partisan to people who were minorities was a very good thing and everybody was grabbing for the attractive, appealing ones to join my firm. And Sam was a perfect example of that. He was a great person, and everybody liked him, and he did a great job. And he was, he could tell when I came in. I did not realize that he was a Committee member or anything of that nature. When I walked in he could see that I was nervous, and he just said, "I don't think all of these people know you Milt, but I know you, and you're wearing the same suit you used to wear at the Committee of Bar Examiners meetings," or something, and put me at ease.

Miller: It must be nice to see at least one friendly face.

Judge: Oh, it was nice.

Miller: So how long did that interview last?

Judge: It seemed like 7 or 8 days. It seemed that I couldn't answer hardly any of the questions, which was very disappointing. One woman who seemed very militant apparently had had bad experiences with older appointees or nominees and wanted to know how many days I had taken off work for illness since I'd been admitted to practice, when I was then 60. And, uh, I was so happy to field a question that I could run with. And I said, "I have never missed a single day from the office for illness or injury since the day I was admitted to practice in 1949. And it was so much fun . . .

Miller: That ended her show, right?

Judge: That was the only question I remember that I could successfully and comfortably answer.

Miller: So the questions were more sort of politically and experientially based than they were intellectual and juridical in nature.

Judge: There was nothing that even touched on technical federal law. There were things like . . . that touched on activism on the bench. I mean that was a real dirty word at that time. That's what the Senate Committee asked a lot about. Hasn't changed much. But it was pretty new in those days. You didn't think much about it.

Miller: Well, Earl Warren did that for us, right?

Judge: Well, he may have.

Miller: I mean that's where all the anger was pointed. He was considered to an activist Judge.

Judge: I can't remember where it started. But I remember that I did not become sensitive to it until I started preparing and then I heard a lot about strict constructionist and activist judges.

Miller: Most recently the questions have revolved around Roe versus Wade. Did you get any questions like that, specifically pointed at a decision.

Judge: No. None that pointed at any legal decisions, or so-called political decisions, really. It was much more on what do you do with your spare time, and what hobbies do you have. Well, I don't have any hobbies.

Miller: You work.

Judge: I watch the 49ers and I play tennis. And that's about all I do. And so that was - they were interested in knowing what you did and how active you were and how dedicated you were to things that were near and dear to their individual hearts. And I don't think - I didn't think it was a terribly successful - but, you know, you're nervous.

Miller: Then how did you get the word that Senator Cranston had, indeed, picked you?

Judge: He called me one day. It was a holiday and I had to work that day, and I was down at the office alone. And I guess he called my home and was told where he could reach me. And, you know, I just picked up the phone and said "Hello," and it's a big jolt, you know. And he simply announced that, of course, announced that he was sorry he was not at liberty to release this information and I could tell only my wife, but nobody else, because he had some fence mending to do with the Minority Committee - he didn't tell me quite what it was, he said "I can't believe that I will get any real trouble from Senator Hayakawa because you were a person that he had picked from the Committee stuff, so I can't imagine that he would cause trouble. But there are some questions that need to be resolved, and I'm satisfied I can get them resolved, but I can't authorize you to release the information.": That may have been because he wanted to do his announcement in the paper, that was protocol for him to do. And he didn't want me running around announcing in advance. But he called Larry Karlton and me the same day.

Miller: I was going to ask you that. I was going to ask if you knew anyone else who was competing for the position that you were. So you knew Larry. Did you know he was competing as it was going on, or only after . . .

Judge: I don't think I knew until I got the phone call.

Miller: Were you aware of anyone else that was being interviewed?

Judge: Well, I knew that Bill Byrne who was a Superior Court Judge - where?

Nichols: El Dorado.

Judge: I knew that he was high up on the list. And the names the newspapers were speculating who they were going to be. But the last thing the Bee came out about, two days before that, speculated that Frances Newell Carr and Raul Ramirez were rumored to be the two that - because there were two people to be named at that point, because we expanded the court in Sacramento by two additional Judges and the Fresno Court by one, so we really doubled the Eastern District. And, fortunately, I'd gotten the telephone call before I read the newspaper, so I heaved a sigh of relief. Unless, of course--any type of change is possible.

He obviously - when he named two of them he named Karlton and me although Karlton was first in the article, in the same announcement. And so I figured that Karlton had the highest recommendations. Well, maybe not - the protocol, not the protocol, the rules that Cranston agreed to abide by were that our Committee will send you 6 or 7 names for the two positions and you promise that you - you have the final authority to make the recommendation, but you promise that you will do it from that group and not outside that group. And, what's his name from the Superior Court bench, John - not John - Long . . .

Miller: Jimmy?

Judge: Jim Long was seriously bandied about also. And I forget who the others -

Miller: And so Karlton was a Democrat, and a liberal Democrat as I recall. And then you were a Republican, but not a real visible, active Republican.

Judge: I was not active in any kind of partisan politics. I was very active on the Superintendent of Instruction, and I was very active in supporting Tom Kuchel, was the last U.S. Senator that I really supported and voted for. But I never changed my registration and I never was active politically in any kind of partisan race. But there were a lot of non-partisan, like School Board and State Board of Education, and those kinds of things I was active in.

Nichols: Had you had any prior contacts with Senator Cranston?

Judge: Yes. I was . . . I became one of the State, the State-wide Committee - it was a terrible name by the way - it was called GOPocrats for Cranston. And I was so angry and so upset at what happened to Tom Kuchel in the primary.

Nichols: When he was defeated by Max Rafftery.

Judge: When he was defeated by Max Rafftery, and I hated Max Rafftery who I believed to be a terrible demagogue.

Miller: And he was the State Superintendent of Schools, was he not? And you had worked with him, or worked around him.

Judge: I had tried to work with him. Bad man - bad. So I, I know - what's Gualco that was the County Supervisor?

Nichols: Gene Gualco? Judge: Gene Gualco was very active for Cranston, and I joined the group. I forget how it came about that the group was put together, but it was a State-wide Committee on Republicans for Cranston. And I didn't really know anything about Cranston except that he was reputed to be very, very liberal, and he was the father of the AD - what - Americans for Democratic Action, a very liberal organization.

Miller: And he wasn't Max Rafftery.

Judge: And he wasn't Max Rafftery. I spoke all over the State, and people that I knew here, when I called them they would say, "You know, you don't have to tell me about Max Rafftery because I know how you must feel and I agree with you. But don't ask me to vote for Cranston." And I'd say, "I'll take a half a vote. If just don't vote, I'll - I can live with that. I get a half vote." And frequently they would say, "You've got a deal. I'll do that. But putting my name down for Cranston is more than I think I can handle." And so I met Cranston when he was campaigning, of course, around the State, and was active in his campaign. And Barbara was very, very active.

We were very upset because Tom Kuchel was very popular, and he didn't campaign really seriously or hard. He just didn't think he had to.

Miller: How many terms had he been in? He'd been in a while, hadn't he? Three?

Nichols: He's been in at least two, and probably three. I think he was - wasn't he the Republican Whip?

Judge: I think that's right. But he was framed, of course, in the campaign.

Miller: Well, tell us the political issue that Rafferty set him up on. Or the personal issue, or whatever it was.

Judge: The personal issue was that a huge article came out in the paper that he was - that in Los Angeles the Los Angeles Police Department busted a pair of people in a car one night, parked, which included Kuchel and somebody who was an admitted homosexual. And in those days that was absolutely death. Just plain death. And their story was pretty credible and, unfortunately for them, there were holes in it and they both put in huge long terms in prison for that frame up which they did. But it sure hurt, hurt Kuchel terribly. And he was very, very popular. And the people who elected Alan Cranston Senator were really the Republicans and the wealthy Republicans in Los Angeles County. When I went there and participated in various activities that whole headquarters was manned by, by Liberal Republicans that you were proud of and they were so outraged that it was strictly an anti- Rafferty thing. And they were largely responsible for defeating Rafferty who was running rampant politically.

Miller: What happened to Rafferty after that?

Judge: Rafferty was defeated and he then left the State and ultimately became the Dean of a Southern Teacher's College.

Nichols: Troy State University in Alabama.

Judge: It was Troy State, wasn't it? And then he was killed in an automobile accident not too far down the road. I still had nightmares that he was going to come back. And he was an awful man.

Nichols: That election was, I think, my political education, because I was a died in the wool Goldwater Republican and I thought Tom Kuchel was way too liberal, and I voted for Max Rafferty, and I saw that my vote for Max Rafferty elected Alan Cranston and I never again voted on ideology rather than electibility.

Judge: Well we had - Barbara and I worked together on two consecutive campaigns. One of them was . . . we couldn't . . . we became so upset with Max Rafferty as the State Superintendent that we spent - Barbara spent full-time and I spent almost full-time - at right Rafferty for reelection as State Superintendent. And I can't even remember - Oh . . .

Nichols: Was that Wilson Riles?

Judge: We elected Wilson Riles. And a Committee of eight of us sat down with Wilson, we were all on the State School Board, and we said, "We need you." And he said, "I'm very flattered and I appreciate it, "but you need to have someone that can defeat Max Rafferty. And much as I'd like to try it I don't think I can make it. I think there's too much against a black and the whole problem." And we said, "If you're willing to try it we want you to do that, even though we may lose. But we want to try. We know we have to get rid of him and we want to put in the best person and not the most electible. And, if we're going to shoot, we're going to shoot high." And he said, "Well, if you really mean that I'll do it. Because I'm going to be quitting anyway." We said .. . . by that time he was the number three ranking person in the State Department of Education. . . . and we said, "You're going to lose your job of course." And he said, "I'm going to lose it anyway, because I'm leaving. I could not stand being here under this administration once more, so I don't lose anything."

And I - it was one of the most exciting elections I ever can imagine or believe. Our average donation was between $1 and $3. He spoke. We programmed him and he spoke every single day, day and night. We gave him Easter Sunday off. The rest of the time he campaigned and he just mesmerized people. He was so competent and so good. He got lazy in his last term, and he abdicated an awful lot of his responsibilities to people that he trusted, but boy, the first three four year terms he was just marvelous. And he did so much. And that was such a great accomplishment. We had to get by the primary first, because Max was pretty sure he'd get elected in the primary. And we barely got by the primary. Then we went to work and I don't know how we did it, but it was just many, many people dedicated, really dedicated. And that was a very, very heartwarming election. And we were all terribly proud of what he was going to be doing, and did do. And then we went almost right from there into the Senatorial thing, with Kuchel.

Miller: Do you know what Tom Kuchel did after he was defeated?

Judge: Yeah. I forget . . . he went with a law firm, and a good law firm.

Nichols: Wyman, Nauzer.

Judge: Yeah, it was that man who married all those . . . he was a very prominent lawyer who somehow married all of those wonderfully attractive movie actresses. He was - yeah - I can't . . . You're awfully close to that, but that second name is not - Bauzer.

Miller: Greg Bauzer. He married all the beautiful starts. Yeah, that's right.

Judge: He married all the beauties. And then I lost track of him.

Miller: He truly disappeared and that's fascinating. To have been such a prominent person and then just be gone.

Judge: I got to know very well his local administrative assistant, whose name I'll remember soon, a man that I liked a great deal. And I remember we were in the, coming right down to the bottom line for the Senate campaign and I heard what I thought was reliable that Tom Kuchel was going to endorse Max Rafferty. And I thought - ach - and I called my friend, his administrative assistant, and I said, "I've just been crushed, because I've been campaigning really against Max Rafferty and because of everything that happened with Tom Kuchel, and, if this is true, it will just cut the rug right out from under so many of us." And he said, "Okay. I will tell you what happened. But I shouldn't tell you, but you sound like you're desperate." But, he said, "They did indeed, and they had a high powered group, they sent for Kuchel and wanted to interview him, the Republican King makers, and he said he went in the room and they told him that they needed his support but he was not going to be required to make any speeches or any praise or anything of the kind but simply a - they were willing to settle for a simple statement. And that was that I am supporting for and voting for Max Rafferty. And in return for that we have a list of jobs that we will give you, commit to give you, in return for that, one of which would be a U.S. District Court Judgeship, another would be a this and a that - big, big things. And," he said, "Kuchel listened and he thanked them very politely and he said, 'The answer is no and I would like you to tell Max Rafferty that he can take you and he can take all of those positions that you have identified for me and shove them all up your ass."

Miller: Yay.

Judge: And, he said, "That was the end of that, but they came - we were all very, very nervous that he might go along and make a kind of a, a kind of an endorsement. But," he said, "you would have been proud of him, I'll tell you."

Miller: Now when you went back to the Senate for your confirmation hearing, did you take your whole family? Judge: No. I just went back alone on the confirmation hearing, because I didn't feel that - well, I felt that I might not even know what their vote was, but it was just attending a meeting and there was no celebration or anything like that. And it didn't seem to be a big thing. And, I don't remember a great many things about the confirmation hearing. Mainly what I remember is how unbelievably wonderful - names are escaping me - I was on the calendar the same day, and the same time, as - who was the U. S. Attorney from San Francisco? The black man that was so colorful and -

Nichols: Billy Hunter.

Judge: No. That became U.S. District Judge?

Miller: Thelton Henderson?

Nichols: No, he wasn't U.S. Attorney. Cecil Poole?

Judge: Cecil Poole. And he was at his greatest. They tried to embarrass him, which was pretty silly because he was a tough guy. And, I kind of gasped when I heard a question posted that, in effect, was in effect critical of activism and suggesting that he was an activist. And it was an insulting kind of a question. And I was surprised because I knew what his reputation was and he didn't have to worry because he had a lifetime appointment anyway, and it's not that much a difference to go from District to Circuit, and he wasn't going to compromise any of his principles at least, and maybe wouldn't have anyway. But he let the insulting question pass as though he didn't recognize it as an insult and answered it kind of nicely and blandly. And he waited until a little later when there really was not reason to attack and one unsuspecting Senator came up with something or other, and he used him as a puppet and then blasted him and the entire Committee right out of their socks. And nobody knew what to do or what to say - nobody was expecting this and he just very quietly bided his time until he got to an easy spot and then attacked. And they kind of didn't say anything, and he just left - finished with a ringing attack. And, of course, they busily hurried to confirm him as fast as they could. They took on a very tough guy. But it didn't seem to me that the questions were all that bad. Some of them would say, "Do you belong to any organization that discriminates for membership by color, or sex, or whatever," and I would say, "No, no, no." And the next question was, "If you were invited to join an organization later, what would you do if you found that it did discriminate?" And, of course, after 10 months of hanging by my thumbs out to dry, I would have answered anything that they wanted to hear. I almost wanted to say, "Tell me what you'd like to hear. I'll answer it." And they said, "What would you do?" And I said something like, "If I learned that there was such discrimination I would try to change it any way that I could, and if that was unsuccessful, I would resign." I figured I might as well say it since I didn't belong to anything. And we went through some of those kinds of questions and then I forgot about them, of course, after making this solemn pledge of what I would do. And I had always, oddly enough, wanted to be, for some reason I wanted to belong to the main Sacramento Downtown Rotary Club, which met every Thursday at the old Senator Hotel. That was the only service club that I had any interest in belonging to, and I really don't know why except it was considered the premiere one of the men's service clubs, and that sort of thing. And, oddly enough, right after I came back from, and was confirmed, I got an invitation for the Rotary Club and I said, "Oh, that's wonderful. I've always wanted to belong to that."

Miller: To this all men's bastion of power.

Judge: Absolutely. And so I immediately accepted and in the middle of the night woke up and thought what have I done? I gave my word. I said, "I'm not going to try to change the Rotary Club's policies. What am I doing?" And I had to write letters to all of the people that had written to me, and all the stuff that'd they'd been cranking up for this thing, because in order to - there could only be two people in a category, which was the thing that made it quite different than any of the other service clubs. But of course they would play around with those categories and instead of having only two judges you could have maybe two livestock judges, or whatever -

Miller: Two muni judges, two superior judges -

Judge: Whatever. Anything. And so they made a category that I would fit and so I had to write everybody and say, "I had forgotten momentarily, because I didn't belong to any organization, but certainly the Rotary Club does discriminate as far as women, and, so, I reluctantly withdraw," and etc.

Miller: And so Karlton made it to the bench first.

Judge: Yes, because we were nominated, or we were named together but shortly after that MacBride announced that he was going to take Senior status, and he was going to take it on his birthday in March. With that Karlton was moved out the slot that he and I were in together and moved over to the MacBride slot, to succeed MacBride. That was much easier to do to get a white male replacing a white male. And so they didn't seem to have any concern about that and they scooted him through fast. And they left me out there all by myself to deal with all of the nasty things that I had to deal with. Which was very unkind things about it's been 10 years since a new federal judge has been appointed in Sacramento and surrounding area and certainly we deserve something better than another white male, that kind of thing.

Miller: Well, they're still saying that. At least the male part. They're still saying they deserve something better than a male.

Judge: That's right. And then they mounted an attack where they took Jimmy Long back to Washington as a replacement and I waited and waited, but I was plenty nervous there. This was the most needy district for getting new judges and we got priority over San Diego and L.A. and San Francisco. And we were the first ones. And I remember that when Cranston spoke out he was still doing the campaigning for the-for that position-and he said, "Although all these things are true, I am not interested in" whatever the word is you use - integrating, or whatever - "the bench in each district. I'm interested in seeing whether there is an overall fairness and sampling in the State of California. Which means looking at all four districts." Then I became enormously liberal toward appointees - the nominees - in San Diego and Los Angeles, rooting for them like crazing to get blacks, women, anything you could get I would heartily endorse. And they did. And so that finally, that whole problem finally dissolved.

Miller: As I recall, you were still pending when they named - when he submitted Raul Ramirez's name.

Judge: Yeah. Ramirez came in to fill the slot that Karlton had filled when Karlton and I were first named, just the two of us. And then Raul he picked up after that.

Miller: And so did you come - I mean I really know the answer to this. But Judge Karlton came first, and then you came.

Judge: Yes.

Miller: And then Ramirez came after you actually, to get on to the bench.

Judge: Right.

Miller: And we talked a little bit about your first two horrendous cases.

Nichols: But, before we get into that, do you have any information as to whatever happened to Jimmy Long? He apparently was well up there in terms of consideration and was a Superior Court Judge and then all of a sudden they dropped down to Raul from the Muni Court, which was quite a jump as far as judicial status goes.

Miller: Not to mention, wasn't there a huge different in their ages? Ramirez was - we called him the "baby judge" when he was named. He was very young.

Judge: He was 35.

Miller: And Long was a grown-up by then.

Judge: I don't know. I just thought that they figured he wasn't going to fly and whoever did it certainly did an excellent mixing of ethnicity and sex and . . . because there were a number of minority judges that were appointed that time in San Diego and in Los Angeles.

Miller: Well, I don't know but do you think it ever really pays off to try to go around the system like that?

Judge: I don't know.

Miller: I mean, who's going to support you when you've gone around the system?

Judge: I don't know.

Miller: It's interesting, but I can't imagine why Senator Cranston would jump up and down to help you.

Judge: I can't either. I think it may have just developed that way.

Miller: Okay. So now you're here.

Judge: Now I'm here.

Miller: Now you're here. You've had your training. Your one week training, which I'm sure . . .

Judge: It was very successful.

Miller: Yeah. Helped a whole lot, right? And we do know that you'd done a lot of criminal law, so you did have background in both areas - criminal and civil, right?

Judge: Yes.

Miller: So you had that advantage. But tell us what your first thoughts are when you get on this bench and you are a federal district judge.

Judge: Two main driving thoughts, both of which involved "I wonder if I could still go back to my old firm and they would take me," 'cause I found it was much more difficult to go from an advocate to a judicial officer and so I handled it very, very well. I had my first law and motion calendar and I took every case under submission to think about it some more, and reread things, and I came back to chambers and put all of those files on the back bar, and I never got to them for about three or four weeks. I mean there was so much immediately and I'd forgotten everything. I'd forgotten what was in the briefs. I'd forgotten what the major issues were. It just went right out. And I said, "I'm never, ever going to do that again."

Miller: Relatively cheap lesson, actually. I mean I remember Judge Wilkins telling each of his clerks as we came in, "The one thing you may never advise me to do, ever, is to take a case under submission. We'll move it one calendar, but when we take it under submission that sucker's gone. We'll never get back to it." And he was right. We never took a matter under submission in my whole two years.

Judge: Really. Well, I learned it fast because I knew that if I had prepared carefully, and done everything that I could to read the briefs and talk with the law clerks and argue with them and think about it, I made a tentative decision in my own mind before I went in to hear the oral arguments. And I figured that at the end of the oral arguments I was in the best position to decide the case that I ever could be in. There was nothing that I could possibly do, because if I was not able to prepare fully before the hearing, I would scratch the hearing and, since I was not under oath, would simply say "We're not going to be able to get to your case today. I'm very sorry but . . ." I scratch it usually the day before, or as early as I could, so they'd have some breathing room, but once I listened to oral argument that was the final thing and that was the final solution. And I really believe that, that I'm - we're in a better position to resolve the case right after closing . . . right after arguments and the briefs have been read.

And I profited by it in a way that I didn't expect. A bonus. And that was that I'd tentatively make up my mind that the plaintiff should win, or whatever decision the tentative was, probably in 90% of the hearings I would stick with that tentative decision. But it was more important than that because many of those decisions I was better, I was more certain that I was right than before the argument, because the more I flushed it out with questions and the more I argued with the lawyers, the easier it would be for me to say this had some surface appeal to me as an issue, but it doesn't hold up well under the light, and I now feel better about my tentative decision than I did before. And that was a bonus that I didn't expect. And the other thing about it really was that you have to decide it then, and you can't take it under submission because you may never get back to it, but if you do it will be a brand new case and you just have to start all over again, and read all the briefs, and go through that whole process.

Miller: Yeah, because when you walk off the bench, there's another matter waiting for you. Either a trial, or a new law and motion calendar, or some kind of criminal . . . , right?

Judge: Right.

Miller: And you've got to move right into that. Had you expected that? Had you realized?

Judge: No. All of those things I had to learn the hard way. But I was able to learn them pretty fast. You can tell this is not the way to do it.

Miller: How about - I mean I was here when you came, and it always surprised me that Judge MacBride who was still around and Judge Wilkins both were very reticent to make any suggestions whatsoever to any of you. That they would let you find your way. And I always thought that that was unfair. On the other hand, his attitude was always, "Every man has to build his own bench. When he wants to ask, he'll come and ask. I can't build his bench for him." Did you find that odd, that they sort of just left you there?

Judge: I didn't think about it that way. But, MacBride was much quicker to volunteer advice and then it's difficult to reject the advice. Wilkins did not volunteer, but if you came and talked to him he, of course, could be wonderful about it. But you didn't feel that defensiveness. Actually, I - MacBride was so busy, he was so overloaded with cases that he had just shelved all the time that he was doing the Roseville Bomb Case, and Karlton - I don't know how he did it. I certainly would have gone home, or run away somewhere. He had law and motion calendar every single day. And I don't know how he prepared for it let alone went through all of those cases. But he did. And, uh, he was pretty angry. But he was the only, other than -what do I want to say. Karlton was the only one that was approachable so I'd go down there and go over these things with him and I found that, for a long time, my decisions would come out the same way as his and we were considered in the form sheets, you know, when the lawyers check you out, to be this far apart. I mean, with Karlton it's liberal, Democrat, anti-War, you know, every one of those things, and mine would all be exactly the opposite. Prosecution oriented, Republican, just exactly the opposite. But if you do your job correctly, and do it the best way you can, there shouldn't be a whole lot of difference in your decision, because you're trying to find what the law is and not what you think it ought to be.

` And I learned that more, let's say more pointedly, when I found out that John Sapenour, who was a very close friend of mine and both of us were sworn into the District Attorney's office on the same day, and we were very, very close friends, and he told me that he was just sick when he had to serve with somebody as liberal as Larry Karlton on the court and that he felt he was not going to be able to get along, and that worried him because he liked to be congenial, and John Sapenour was a lot more conservative in almost every area than I was. And he told me that he cannot believe he was saying these things, but almost every single time there was a vote on any issue of any consequence in the judge's meetings, he and Karlton lined up on the same side and when they reached a point where he thought "I can't stand it here any longer," he said he talked with Karlton about the two of them maybe leaving the Superior Court and - resigning and opening a law office together.

Miller: That would have been fascinating.

Judge: He said, "It's hard for me to believe that I said a thing like that." But of course John had all kinds of integrity and he's going to do the law, and he was very bright, and you ought to be able to come up essentially with the same result in most cases.

Miller: Or we've got a big problem, don't we?

Judge: Yeah, we've got a terribly big problem.

Miller: One of the other things that I always thought must be interesting to someone coming onto the federal bench, especially someone who isn't real experienced in the federal court, as you say you weren't, is the whole idea of setting up a staff, especially young law clerks, on whom you're going to have to rely to such an amazing degree because your time is so filled. How do you go about that?

Judge: Probably the opposite of what you might think. I thought it was going to be very difficult to sign things that would go out for publication that somebody else had written that didn't sound like me. And I thought, "How do I correct or change writing that a law clerk does without saying 'I don't know why I'm telling you this, but this is just me,' or 'this is the way I like to say it, or like it to be phrased,' or whatever, and 'I'm not really criticizing your work, it's just probably styling. And you can't really learn what's in my mind as style.'" And then I realized that over the years I had acquired four or five law clerks who were real stars. There are some very good ones. And certainly entirely acceptable and good, but certainly there are a very few, in my opinion, real stars. And I had several of those and they wrote just quite the opposite style, if there is such a thing, as any of the other stars, and yet they all wrote beautifully. And so, I decided that it's not stylistic. What I'm looking for is clarity and brevity, and I'm looking for something that flows well, and easily. And I can live with all kinds of styles if it's good writing. And that made me feel better. That I didn't have an idiosyncratic style that somebody had to try to copy. And when I realized those kinds of things it was easier.

But then I had the reverse thing. I used to reach a point where I'd say "Write something that I can change, and correct, because otherwise you're going to feel that I am a lazy lout who rubber stamps everything so I can go out and play tennis."

Miller: Right, or panic the clerk that maybe you're not really reading it. As a clerk that used to be a - if it came out too fast you'd think Oh, my God, it's not my job. Did he read it? And of course he always had.

Judge: And there were times, a number of times, when several of my law clerks wrote more like me than I do, and I not only could not improve it any, but if I changed it it wouldn't be as good. And I had to keep explaining to them that I had read it all. And when you get real stars . . .

And that's interesting with Judges, too. When you sit around and talk about staff we always all agree, no matter how diverse, we all agree on who the stars are - the "A" students or the "A+" students. And we all . . .


2002 United States District Court for the Eastern District of California Historical Society.