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Interview with Mac Asbill, Jr., March 20, 1981

1981-03-20 Interview with Mac Asbill, Jr., March 20, 1981 Reed001:1981OH042Reed10 00:38:41 Stanley F. Reed Oral History Project Louie B. Nunn Center for Oral History, University of Kentucky Libraries Reed, Stanley Forman, 1884-1980 Mac Asbill, Jr.; interviewee Edward Gilson; interviewer 1981OH042_Reed10_Asbill 1:|7(6)|17(1)|29(5)|40(4)|50(2)|62(8)|74(12)|88(6)|100(1)|111(2)|125(5)|135(8)|150(10)|159(8)|173(6)|186(11)|199(7)|213(8)|220(2)|232(7)|252(13)|267(11)|284(2)|308(2)|318(7)|330(10)|340(18)|349(14)|363(6)|369(10)|383(3)|394(7)|406(15)|420(3)|432(2)|443(6)|451(6)|464(3) audiotrans SFReed reed001:interview GILSON: Well, Mr. Asbill, first of all, could you tell me a little bit about yourself: how you be- . . . where you're from, how you be- . . . came to be a clerk? ASBILL: I'm from Atlanta, Georgia, was born there, and spent my life there until I went away to college. I've been in Washington all my professional life, which began in `48 upon my graduation from law school. I . . . I guess I . . . I . . . when I got out of law school, I applied to Mr. Justice [Stanley] Reed for a clerkship. He knew my father, and he had known several of my father's law partners, who included Denner . . . included Attorney General Cummings, who had left the government shortly before this to go out and open his law firm. My father was a member of that firm. Another lawyer named Max Truitt was in that firm, and they were friends of Reed. So, I forget who suggested it or what gave me the thought, but I had a record at the law school which, I suppose, would have qualified me for the job, so I went and applied. He . . . he had frequently, up until that time, I guess, taken people with prior clerkship experience and my co-clerk, Willie Koontz, had that. He had clerked a year for Judge Dolby on the Fourth Circuit. I did not have any prior experience. But I came down here, as I recall, and interviewed with him, talked to him, sent him a resume and got the job. GILSON: Well, what were your first impressions of . . . of Justice Reed? We went . . . we talked a little bis- . . . bit about this before. ASBILL: Very easy person to be around, very easy person to know. No . . . no uneasiness at all about being in his presence. He was informal, very considerate. Of course, every starting law clerk is somewhat awestruck, I guess, by not only his justice, but also the whole Court and the other justices on it. But Reed was about as [chuckle] easy to know, I suppose, as anybody could have been. And he tried to make his clerks feel at home and feel comfortable. It . . . into the summertime, which is when we started, is a period when he is away a lot, and we were working mostly on petition for certiorari, so we'd have long periods when we wouldn't see him during the . . . during the early months of the clerkship. We'd send him, wherever he was in Kentucky or wherever, a . . . a batch of cert memos every week, and he'd send them back, I think, indicating whether he agreed or disagreed with us. And where he disagreed, we would discuss them when he came back to the office, either at the end of the summer or periodically during the summer. He . . . he was just a very easy guy to know, and I . . . my impression was that he was . . . was about as devoid of . . . of dogmatic beliefs and views as anybody I'd known. He was, as you know, sort of a middle-of-the-roader on the Court, and he was not, as a doctrinal matter, associated with either the far Left or the far Right. He sort of called them as he saw them. GILSON: Well, we were . . . you were talking about the other members of the Court a little while ago. How did he . . . how did he get along with most of the . . . most of the people? How did he regard the other members of the Court? ASBILL: I think he got along with all of them fine. He was a person that was very friendly, and I think anybody would have liked him and he seemed to like all the others. He . . . I never heard him say an unkind word about anybody on the Court--or anybody else, as a matter of fact, which is rather unusual. He had . . . you know, he had differing views philosophically from a lot of them. He . . . he . . . and he thought that the . . . that the ones on the far Left, [Hugo] Black and [William] Douglas for example, were . . . were . . . would . . . would . . . he . . . he saw them as they were, as judicial activists who were . . . who were always trying to promote and push a philosophy or a view that . . . that they had, particularly in constitutional cases involving individual rights. He . . . I remember him telling Willie Koontz and me early on, he said, "Now, Douglas, you'll find what he writes will be very straightforward and . . . and, you know, a lot of it I don't agree with, but you don't have to worry about where it leads to." He said, "Now, Black will be . . . he'll put something in this opinion that he plans to pull out and use five opinions down the road, so you better be very careful about the . . . the future implications of what you see in . . . in things that he circulates." This was not said in any derogatory sense at all. He was just pointing out what he observed to be a . . . a . . . a characteristic of Mr. Justice Black. But he was . . . I think he liked everybody on the Court and . . . and, as far as I now, was liked by everybody. GILSON: Umhmm. What role did . . . did you and your co-clerk have in . . . in writing the opinions? Some . . . I mean, you first started going through the certs. Could you more or less take it from there? ASBILL: Well, our initial task, as I said, was doing cert memos, and we did them all summer. When he came back and the Court reconvened, my recollection is that there were no fixed system for assigning initial responsibility on cases, but some cases he would ask us to come up with a draft opinion, [and] some he would take from the beginning himself. We had a good deal of free choice in the matter in the sense that if we saw something we were particularly interested in and liked and wanted to take a crack at, if we'd say, "Mr. Justice, do you mind if I give you a draft of this opinion?" he'd almost always say, "Sure, let's see it." So we sort of shared, on a very informal basis, in the . . . in the writing task and we would get a draft up and he'd go over it very carefully, very meticulously, frequently change it quite a bit, sometimes adopt it pretty much the way we had done it. It was always his product before . . . before we got through with it. And if he did the draft, he'd give it to us, and he would expect . . . he would expect vigorous editing by us. He never took offense at anything . . . if we said we thought he was wrong or he had some idea in there that didn't make sense or something, it never bothered him. He was always perfectly willing to look at all our suggestions and criticisms for what they were worth, make up his mind about it and . . . and either adopt it or reject it accordingly. He had no vanity. He was the most unvain man I think I've ever seen in my life. He was a hard worker. He worked . . . he was not terribly fast, so he had to work harder than other people did . . . some other people, and . . . but he . . . he was devoted to it. He . . . he did . . . spent long hours at it. I think this was one of the reasons he resigned when he did, because he found that burden to be something that he found he couldn't continue and still be totally effective all the time. And he had sense enough and judgment enough to realize that and . . . and he was . . . he was unvain enough to admit it, and stepped down when he did, which I thought was a . . . was a . . . was a tribute to him. GILSON: Well, tell me about the relationship between . . . between he and [Felix] Frankfurter. ASBILL: Well, I think he liked Frankfurter and Frankfurter liked him. And Frank- . . . since Reed was sort of a centrist on the Court, he was fair game for judges from both sides to try to get him over to their side to make up a majority. And therefore he was importuned frequently by them to join them. Frankfurter did this a lot. Frankfurter loved argument and discussion. Frankfurter was fond of Willie Koontz, who was my co-clerk. He always had a fondness for clerks who went to Harvard Law School, and since I'd been there he was friendly with me. He would frequently try to persuade Reed to his point of view, and if he couldn't persuade him, he'd try to persuade his law clerks and get them to persuade him. Sometimes we'd all end up in a four-way conversation or discussion or argument, if you will, in Reed's office with Frankfurter very vigorously espousing his views and sometimes pontificating, always showing his erudition. Reed would usually just sit there and listen calmly and quietly, and when Frankfurter got through, Reed would do what he wanted to do. Sometimes he was persuaded, more than often . . . more often than not, I think, Frankfurter did not persuade him to change his position. But there was a lot of discussion between them, and they . . . they were . . . they would . . . from what I could tell, genuinely fond of each other. GILSON: Did he have any relations with . . . with [Frederick] Vinson other than official? ASBILL: I'm sure he must have, because I think they had . . . had had political ties before either one of them got on the bench. But I don't . . . I don't know what they were. As a matter of fact, thinking back and trying to recall the justices who [chuckle] seemed to be closest to him or talked to him more . . . more than others, Frankfurter stands out in my mind as the one who was most often in Reed's office. I don't . . . I don't ever recall the chief coming in to see him, and I really don't recall . . . I don't recall Douglas or Black. I think, maybe, Reed went to visit them frequently to talk to them, but the one who seemed to come to see him most often during my time there was Frankfurter. GILSON: Umhmm. Justice [Robert] Jackson had been in . . . trying war criminals in Nuremberg, just, I guess, rec-. . . fair . . . fairly close to before . . . [inaudible] . . . just recently before you went as a clerk. How did that sit with the rest of the Court in general? Did you hear anything about that? ASBILL: I have absolutely no recollection of any discussion of that. I think Jackson was a respected member of the Court. He was a . . . he was assertive and pretty much of an activist, but . . . and . . . and . . . and was . . . but I think he was respected by everybody, and I don't recall any discussion about his experience in trying the war criminals. I'm sure there may have been some, but I just . . . I've forgotten. GILSON: Umhmm. Well, it was just . . . there was a hint of it in memoranda that we've been going through, people disagreeing with Jackson taking a political position, but I . . . I don't know if it ever filtered down to the clerks or not. I was trying to find out. ASBILL: I don't recall it. I just don't recall that. GILSON: Were you there when . . . when Reed and Frankfurter testified for Alger Hiss, or was that after you had left? ASBILL: I think . . . well, now, I don't think it was after I left. I think it was either during the year that I was there or just before it. Probably during the year I was there. And I remember . . . I can remember rather vaguely now talking to Reed about it. I think he had some qualms about the propriety of doing it, but thought that he ought to do it as he was called upon to do it. I . . . I . . . I don't have any detailed recollections of that. I do recall one thing: it was this . . . as far as my memory, it didn't have anything to do with the Court directly, and that is the Truman-Dewey election occurred during my clerkship year, and I don't think I have ever seen Reed so shocked . . . I don't think I've s- . . . ever seen anybody so shocked as he was at the result of that election. He came in the morning after el- . . . after the election with a . . . just a look of total disbelief on his face. He came into our office and said he just could not believe that Truman had won the election. He was glad, of course, because he was a Democrat. But he . . . he was absolutely positive that Dewey had won. He thought it was an impossible thing for Truman to win, and he was just . . . just flabbergasted by it, shaking his head, wondering how in the world it happened. Of course, a lot of other people wondered the same thing. GILSON: That's interesting. You mentioned his . . . his health earlier? How was his health during your term? ASBILL: Well, as far as we could tell it was good. He was on the . . . I think [by] that time he had been down to Duke or . . . and he'd had high blood pressure or something. They put him on the Rice Diet. He was assiduous in following the diet. Lost weight like he was supposed to, kept himself thin, followed the diet faithfully, and as far as we could tell, he was in very good health. He never seemed . . . I never recall him being sick or apparently feeling bad or anything like that. He . . . he always seemed to be at the same level of . . . of good health and at the same level of good humor and good cheer. He was a very calm and placid sort of a person and he had a great sense of humor. He loved . . . he loved humor, loved laughter, and he was . . . but he was a . . . he was a very even-tempered sort of a guy that nothing ever seemed to really bother. I can remember--just thinking and little things come back--he . . . he . . . he was not what you would call a civil libertarian. Sort of in the middle of the Court on those issues as many others. But he did have strong feelings about certain things, and I can remember him saying on more than one occasion--this may have gone back to his experiences in Kentucky or something, I don't know--he . . . he . . . he felt very strongly about the behavior of police and law enforcement officers after somebody was arrested. And he . . . he was careful about what they could and what they couldn't properly do. And I remember him telling me on more than one occasion that he thought the practice of taking prisoners and stripping them till they were naked was a . . . you know, he . . . he . . . he felt very strongly about the defenseless and exposed feeling a human being has when he doesn't have any clothes on. And he . . . he . . . he w- . . . he was . . . that . . . that's a . . . just a little vignette that happens to stick in my mind. GILSON: Well, you . . . you had a . . . a case, as I recall, dealing with . . . with that. It was along the same lines as . . . as Betts versus Brady. It was Uveges . . . Uveges versus Pennsylvania. ASBILL: What was the name of it? GILSON: U-V-E-G-E-S. I don't know how to pronounce it. ASBILL: Oh, U-. . . U-. . . Uveges or something . . . GILSON: Uveges? ASBILL: . . . like that, right? Right? That . . . that . . . that's familiar. I can't recall the details of the case now, but I remember that name. I think I probably worked on that opinion. I worked on a . . . I think he . . . that may be . . . is that the one he wrote a long dissent in or not? GILSON: No, I think in this one he wrote the opinion of the Court. ASBILL: Opinion of the Court. I worked during the summer . . . the first summer on a long dissent he wrote in a case that involved what was known as a "McNabb Rule," coming from an earlier case by the . . . by the name of McNabb. Now, I've forgotten the details of that, but this was a . . . this dissent was a sort of a major effort of Reed's. He put a lot of time and effort into it, and it . . . it was, you know, a thirty or forty page dissent. I remember doing a lot of work on it for him, a lot of research, talking with other . . . the judges who had been involved with same issue in . . . in . . . in lower courts. I went over, I think, and talked to Mr. . . . to . . . to Judge Stevens, who was then the chief judge of the D.C. Court of Appeals. I think I talked with--oh, what was the district court judge here?--Holsoff . . . Judge Holsoff about it. I'm not sure what the name of our case was, but the rule involved was called the McNabb Rule and it's . . . it's something Reed cared a lot about and . . . and spent a lot of time and effort on, although he realized from the beginning that he was writing a . . . a dissenting opinion. GILSON: I think the . . . the McNabb dissent, didn't it come down after your term? I mean, you may have worked on it, granted, but did it . . . did it not . . . did it come down in your term or did it come down after your term? ASBILL: It was either in or before, I think. GILSON: Oh, okay. ASBILL: I believe. GILSON: Yes. There's one case that came down in your term that was argued earlier. That was Lus-. . . ASBILL: I think . . . GILSON: . . . Lustig. ASBILL: Huh? GILSON: Lustig versus U.S. ASBILL: What was the name of it? GILSON: L-U-S-T-I-G. ASBILL: Lustig. I don't recall what that was about. I don't recall what that was about. I was interested in taxes at the time. I thought I was probably going into the tax field, and when tax cases came in, and we divided them among Willie Koontz and myself, I'd always take the tax cases and . . . and talk to Reed about them. One very famous tax case was decided during that term was the Culbertson case, which is a family partnership case. And I used to discuss the tax issues with Reed quite frequently. He didn't have any great interest . . . interest in . . . in tax law, I don't think, although he . . . he gave that his best shot, like he did everything else. He cared a . . . he . . . he had a lot to do with Indian cases and he always sort of boasted, whimsically, that he'd saved the United States billions of dollars because he'd voted against turning over all this land to the Indians. And we had a couple of cases while . . . during our term . . . one involved the Eskimos, I think. I forget the name of that. I think Willie Koontz handled that. I guess about the only way to really get back into some of the substantive issues involved in those days would be to pull the U.S. reports and start looking at some of the cases. That would bring it back to me, but . . . GILSON: Well, tell me about those . . . those annual dinners. You were telling me a little bit about them before. ASBILL: The clerks used to . . . the ex-clerks used to get together with him once a year. I don't know when this practice started, but it's been going on for a long, long time. And one of the senior initial clerks, somebody like Bennett Boskey or Harold Leventhal, before he became a judge, would sort of organize it and put it together and set a date and get a place, and we'd meet and have drinks and dinner and wine at some place like the Army-Navy Club or some similar place. Usually a black tie affair. Very good meal. Lots of reminiscing. The justice would always get up and report to us on the past year: what he had done, how he felt about it. Then we would all sort of . . . or . . . or some of us would tell what we had done since we'd left being clerks and sort of share our experiences, share our reminiscences of being a clerk. He used to always say that he had never had a bad law clerk. He never had a law clerk, he said, who hadn't been most helpful to him and, you know, really giving him just what a judge needs from his law clerk. But he was a very generous person in his praise. He would . . . he . . . he . . . he . . . I think I indicated earlier, I never heard him say anything bad about anybody. He was such a . . . a gentle and sweet person that it would be almost unthinkable to him to think of somebody as falling down on the job or . . . or not doing what he was supposed to do for him. Those dinners were . . . were very pleasant affairs and they went on right up to the time he left here to go to the rest home, or whatever it was, in New York where he ended up. As time went on, of course, he got . . . he was approaching senility. [chuckle] I . . . I used to see him frequently on the street here in Washington, because he lived at the Mayflower [Hotel] and my office is only a couple of blocks from the Mayflower and I'd walk along and see him. I would always greet him and tell him who I was so he wouldn't have to worry about remembering. I knew he'd had so [chuckle--Gilson] many law clerks and it ought to be difficult for him to remember, and during the latter years I'd tell him who I was and he . . . he would . . . he'd say, "Oh, yeah. Good to see you. What are you doing in Washington?" He'd sort of forgot that I lived here. And I told that story to John Sapienza one time, and John laughed and said he'd had a similar experience, that John came up to him one day and he did the same thing I did, introduced himself as John Sapienza [chuckle] and Justice Reed said, "Oh, yeah. Your son was my law clerk." [laughter] He had gotten John mixed up with his father. Those were in the . . . in the later years. He had a great ability to look at himself objectively, laugh at himself, poke fun at himself. He . . . he had no false pride whatsoever. No . . . as I said, no vanity. He was just as natural as an old shoe, always, in any setting. Always seemed at ease with himself, at peace with himself. GILSON: How did Stanley Reed treat his law clerks as . . . on . . . while they working as opposed to how other justices treated their law clerks? That's . . . ASBILL: Well, my knowledge of what the other justices did is limited, obviously. Some of them used their clerks quite differently from the way Reed did. Some of them would not have their clerks doing any work writing opinions. They . . . all they did was certiorari work or preparing separate memorandums on issues of law. Reed had us working on drafts of opinion as well as cert petitions. Our relationship was very informal, very close. A co-worker type relationship. We felt perfectly free to take issue with him and tell him we thought he was wrong or he was going off on the wrong tack. And he listened attentively . . . attentively and respectfully to . . . to whatever views we had. He frequently disagreed with them, and he'd go his own way, but it was a very easy, free relationship, one in which both Willie and I felt very comfortable. It was like a . . . like a father-son relationship or like the relationship of a . . . of an associate in a law firm with a partner with whom he feels a close relationship. Other clerks, I know from hearing them talk, were not treated as considerately or nicely as we were. Some of them actively disliked their justices, I think. I can't imagine any law clerk not liking Reed, but . . . and we had a . . . we had a very free . . . you know, he'd come into our office. We were . . . we had a . . . Willie and I shared an office right next door to his. There was a door between the two. We'd feel free to walk in there any time we wanted to talk to him unless we knew he had somebody in there. He would come in frequently and talk to us. We had a case . . . I remember one sort of amusing incident. We had a . . . a case before the Court during that term involving, I believe it was, the Memoirs of Hecate County, which is a . . . a book that Henry Miller [sic Edmund Wilson] had written, and it had been banned as being obscene by, I believe, the state of New York. Or maybe it was a federal court, I'm not sure. Anyway, I didn't think the book was very bad and that it should have been banned, and I happened to be the one that was working on this with him, and he thought it should be. I tried to get him to . . . I tried to persuade him that the book was not obscene. It had, maybe, one passage in it that was pretty lurid, but the rest of it was . . . was not. And, at that time, I was young enough to be enamored with the idea of freedom of the press and anybody ought to be able to say what he wanted to, so I undertook to persuade him that this thing was not obscene. I sent up to the library . . . the Supreme Court library and got them to get me some obscene books including Ulysses and a few other things that I happened to know about that I thought maybe would make the point. I got them all down there and I marked the passages and showed [chuckle] them to Reed. I remember him standing in my office looking at these things, and he'd read them, and then he'd sort of whistle like, "Whew," you know, "that's bad. That's pretty bad." I was trying to show him that there were a lot of things worse than the Memoirs of Hecate County. Well, he went on and voted the way he was going to vote from the beginning. I never did persuade him. I think that case . . . I think that decision was affirmed four to four because Frankfurter was a friend of Henry Miller's and recused himself. So the Court split four to four on whether or not the book was obscene. But I was not successful in . . . in persuading Reed that he ought to change his view. GILSON: That's excellent. Here's a question I'm asking everybody, and I'm not entirely sure it's a fair question. Did . . . did Stanley Reed start conservative on the Court and . . . I mean, excuse me . . . start liberal on the Court and grow conservative, or did he just kind of stay static? ASBILL: I'm not sure I know the answer to that question because I haven't really . . . I haven't really studied his opinions with that question in mind. He served, of course, for quite a while before I got there and quite a while after I left. My . . . my general impression is that he was pretty . . . pretty steady, pretty . . . pretty middle-of-the-road all the way along. Of course, there's some . . . some . . . I'm sure his opinions on certain things did evolve like everybody else's would, but I . . . I don't . . . I'm not aware of any discernible trend from Left to Right or something like that. He was a pretty . . . Reed . . . I think everybody agreed that Reed was very, very undoctrinaire and that he called the shots like he saw them and therefore was a sort of a swing man on many issues that were facing the Court. He was, I guess, you know, pretty conservative longer than most people were on the racial equality issue, being the last holdout, I think, in the Brown [Brown v. Board of Education of Topeka] case that . . . and finally agreeing to go along to make that decision unanimous. That, I'm sure, had a lot to do with his Kentucky heritage, you know. GILSON: I'm sure it did. Well, Mr. Asbill, I think that's all I have to cover with you. If you would like to add anything more, please feel free. ASBILL: Well, I don't . . . I'm . . . I'm . . . I think I've told you everything I . . . I think is worth telling, or that I can remember. It's . . . I haven't done anything, really, to refresh my recollection and I'm suffering a little bit by reason of that. But . . . but I . . . and I'm not sure what I told you before you turned your machine on. I hope I [chuckle--Gilson] repeated afterwards everything. I . . . I know I mentioned before you started that how considerate Reed was of us, that is, his clerks as people . . . as young people and as people with young families. He was very concerned about the welfare and about children and how they were getting along. Used to always ask about them and be very delighted when we told him about new additions to the family or how people were getting along. He was . . . he was very nice to our wives. Just a very considerate person all the way around. Okay? GILSON: Okay. I thank you very much, Mr. Asbill. ASBILL: All right. [End of Interview] Mac Asbill Jr., one of Justice Reed's former law clerks, discusses Reed's relationships with the clerks and the other justices. He remembers Reed's surprise when Harry Truman won the presidential election, and he mentions Reed's testimony in the Alger Hiss case. The cases that Asbill recalls working on during his clerkship include Uveges v. Pennsylvania, the Culbertson case, the Native American cases, the McNabb rule and the police strip-searching case, and the Memoirs of Hecate County case. Kentucky Politics

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