Interview with Joseph Barbash, May 15, 1981

BARBASH: Should I just talk to you?

BIRDWHISTELL: Right. It's just very conversational, very informal.

BARBASH: Yeah. Sure.

BIRDWHISTELL: And when . . . after I get back, I'll be sending you a copy of the tape for your own record. I would like to start out by just finding out a little bit more about your background, where your education . . . where you received your education, and how you . . . what were the circumstances regarding your becoming a clerk for Justice [Stanley] Reed.

BARBASH: Umhmm. Sure. Well, I'm from New Jersey. As a matter of 00:01:00fact, I'm from Jersey City. And I went to Rutgers for my undergraduate education and majored in History and Political Science. I actually had started out as a Journalism major and . . .

BIRDWHISTELL: Oh, really?

BARBASH: . . . and decided to switch in about the middle of the college experience because I felt that the opportunities weren't there and [laughter--Birdwhistell] there were too many people in the class who were better journalists than I was. The . . . and I went up to Harvard Law School in 1941 for the first time and then, of course, 00:02:00spent about eight months there and then became a navy officer shortly after the United States entered the war. And then I returned to Harvard about, I think, 1945-1946 and finished law school. I was on the Law Review there, and then was graduated in 1948 in a tremendous class. Thousands of us were graduating at that time. We had three semester systems. And the . . . I was fortunate enough to be selected as the law clerk for Learned Hand in 1948, and I spent a year with Learned 00:03:00Hand. I was selected by the dean for that. And then, about midway in my year with Hand, a classmate of mine, Mac Asbill, called me, and Mac had become Justice Reed's law clerk immediately after law school, which was somewhat unusual then, and asked me if I was interested in clerking for Justice Reed. And so I went down and was interviewed to . . . interviewed by Justice Reed in his chambers in Washington. And he offered me the job--and I'm not sure whether he did it on the spot, but it didn't take very long--and I . . . I took it.

BIRDWHISTELL: Of course, it's a real opportunity to . . . to clerk for . . .

BARBASH: Yes.

BIRDWHISTELL: . . . a Supreme Court justice.

BARBASH: And it was a . . . something that I thought would be exciting. [slight interruption] I really don't remember how much I thought about it, or whether I talked to Judge Hand about it before I . . . I took it. At the time, it was because I was Hand's law clerk [that] I might have had other opportunities to clerk for other justices. And at times . . . on a number of occasions, the Hand law clerks have gone on to clerk for [Felix] Frankfurter. But I wasn't sure what 00:05:00was going to happen, and I liked Justice Reed when I met him, and I thought I would enjoy a year with him and decided to just take that.

BIRDWHISTELL: Right. What . . . what were some of your initial impressions of Justice Reed? What kind of man did he appear to be?

BARBASH: Well, he was a wonderfully courtly person, and . . . and friendly and . . . and gracious. And, of course, I knew about his record as the Solicitor General of the United States, and that he had played an important role in the New Deal. And I was . . . I was very interested in the New Deal at that time and what was happening . 00:06:00. . that had been happening in Washington.

BIRDWHISTELL: Umhmm. That was your history and political science . . .

BARBASH: Yes.

BIRDWHISTELL: . . . interest coming out, there.

BARBASH: Yes. And I . . . I also thought that . . . I think that I . . . I had a sense that he was aware of what was going on in American political life, and that it would be an interesting experience for that reason. Also, he was quite different, I knew, from Hand in his background and his approach to many problems. I'm not sure that that was important, but I think I . . . basically, I was . . . was young and I . . . I wasn't that young because I'd been in the war and . . . but I . . . it's . . . it was exciting and I . . . I s-. . . I snapped at it and thought it would be a good experience. The . . . and it was. The relationship was always 00:07:00a warm one and . . . I was a bachelor, and I think most of the law clerks were married. And I suppose just being a bachelor at the age of 26 or 27, whatever it was at that time, was sort of slightly unusual then. And I think the . . . Mrs. Reed was sort of bemused by that. [laughter--Birdwhistell] I'm not sure what the justice was. [laughter--Birdwhistell]

BIRDWHISTELL: Did she feel like she should take care of you, maybe? [chuckling]

BARBASH: Yeah, to some extent. And we didn't spend much time socially 00:08:00outside. I was invited a few times to the Reed home, which was at the Mayflower [Hotel]. And the first time I went was rather embar-. . . turned out to be embarrassing because I had . . . I think it was in the . . . must have been the late fall [because] it was rather cool, because we had already had a fire in the justice's . . . fire in the fireplace in the justice's chambers and I . . . I loved being next to the fireplace and working with him there. And I said to him once that I just loved fireplaces and I liked real ones and I hated artificial ones. [laughter--Birdwhistell] And then I went to his . . . the first time I was invited to dinner at his suite in the Mayflower, lo and behold there was [chuckling] an artificial fireplace.

BIRDWHISTELL: Didn't you know it? [laughter] Did he comment about it?

BARBASH: No, he didn't . . . never said anything about it.

BIRDWHISTELL: Yeah. He really wasn't the type to . . .

BARBASH: No. He wouldn't.

BIRDWHISTELL: . . . to raise that issue again. [laughter]

BARBASH: Yeah. He . . . he was just too polite. He . . .

BIRDWHISTELL: He might . . .

BARBASH: . . . he twitted a little . . . a little bit on some . . . some items, but he didn't on that. I was also struck by the fact that he had . . . well, I really wasn't struck by it. It was just an important fact in . . . in everybody's relationship was the fact that he had just come out of Duke at that time, and he'd been on . . . he'd been on that Rice Diet . . . put on the Rice Diet, and that had a lot to do with his life. It was a topic of conversation from time to time as to how the diet was going [chuckle--Birdwhistell] et cetera, and he would . . . I think he had his lunch quite often in his . . . in his chambers, and he would be eating rice.

BIRDWHISTELL: He would bring the rice from home, I think, every day, wouldn't he?

BARBASH: Yeah. I think he did. I'm not sure.

BIRDWHISTELL: And he lost a lot of weight during this period.

BARBASH: Yeah. Yes, he did. And I understand he . . . but he had already started it, so he looked pretty good.

BIRDWHISTELL: Oh, okay.

BARBASH: He was in good shape when . . .

BIRDWHISTELL: Yeah.

BARBASH: . . . we arrived. By "we" I mean Bayless Manning and I. And . . .

BIRDWHISTELL: Right. Right.

BARBASH: . . . I think we arrived about the same time.

BIRDWHISTELL: Is that right?

BARBASH: And the number one deviation from the diet was that we shared a birthday cake. He and I had the same birthday.

BIRDWHISTELL: Oh, really?

BARBASH: He was born on December 31st and so was I, so [chuckling-- Birdwhistell] somebody at the Court . . . maybe it was Helen Gaylord, got a cake and we . . . we had a birthday celebration together . . .

BIRDWHISTELL: Well, that was nice.

BARBASH: . . . in his chambers.

BIRDWHISTELL: Yeah. The . . . the justices hadn't been using two clerks for very long. I . . . I know Reed . . . Justice Reed . . . this was, like, only the . . . what, the third time?

BARBASH: I'm not sure, because there was . . .

BIRDWHISTELL: Let's see.

BARBASH: . . . well, [Robert] von Mehren had been with somebody else.

BIRDWHISTELL: With . . .

BARBASH: With Spritzer . . .

BIRDWHISTELL: . . . umhmm.

BARBASH: . . . or Spitzer, I guess.

BIRDWHISTELL: And that was in `47. That was the first year that they . . .

BARBASH: Was that the first time?

BIRDWHISTELL: Yeah.

BARBASH: Yeah.

BIRDWHISTELL: That's the first time it showed on this list here.

BARBASH: Yeah.

BIRDWHISTELL: Did Justice Reed outline what your responsibilities would be, [or] what the workflow would be like in detail to you when you first went in?

BARBASH: I think he did. And I just can't remember the session. I know it was quite . . . I knew the job would be different from the . . . the job with Hand, because we never . . . the . . . Hand's . . . well, of course, at that time the Court of Appeals judges had only one law clerk. As a matter of fact, some . . . I . . . perhaps some Court of Appeals judges didn't have a law clerk. Well, no. I think most of them did. And the other was that Hand wrote his own opinions, and his law clerks didn't even prepare drafts of opinions. While with Reed, I knew at the outset that the law clerk would . . . one of the law clerks would prepare a draft of the 00:12:00opinion. That was part of the job. And . . .

BIRDWHISTELL: Now, was this more than the memorandum that you would do?

BARBASH: Yes.

BIRDWHISTELL: This was beyond that.

BARBASH: See, there would be . . . be--as you probably have heard from the others--the . . . a major part of the work of the law clerk was dealing with the . . . for Reed, and I think for every justice except Frankfurter, was dealing with the certiorari petitions. And at that time, I think there were about a thousand that came in a year. I think now there are several thousand. And it was our job to prepare short memoranda summarizing the issues that were involved, and I forget whether we made recommendations. I think we probably did. And at 00:13:00least our feelings about them shown through, or . . . it was very easy in some cases to just say, "Well, these . . . just state law questions are involved," or the . . . "this is primarily a question of fact that doesn't have importance." And so once you said that, it was clear that you felt that certiorari should be denied. But we felt the responsibility for making sure that the justice understood what the case was about and, after all, it was his decision to make. I don't want to get into a Brethren kri- . . . kind of discussion about the role of the law clerk as distinguishable . . .

BIRDWHISTELL: Right. Right. It's . . .

BARBASH: . . . from Reed. But I . . . we did have a . . . we certainly did not have the view that we were making the law. [laughter--Birdwhistell]

BIRDWHISTELL: You . . .

BARBASH: You didn't have that view with Reed. You had the . . . you had the view that you were trying to help him make his decisions. 00:14:00And the . . . the first stage was the certiorari stage, which was a tough . . . the very tough stage, because you had to work with . . . work very fast through briefs and get up something and keep churning it out.

BIRDWHISTELL: And it came in in stacks, I think. [chuckle]

BARBASH: Oh, yes. There was . . . as you . . . when . . . the day arrived.

BIRDWHISTELL: It'd be depressing, it seems like. [laughter]

BARBASH: And you had a stack to deal with. Get it out. Fortunately, there was a . . . there was a system in which--you probably know about this--but it was something called the "dead list," and it was prepared by the . . .

BIRDWHISTELL: I'm not familiar with that.

BARBASH: . . . chief's clerks, which indicated the cases that almost 00:15:00clearly weren't cert-worthy for various reasons. But we felt we had a responsibility to at least look at the ca- . . . those cases and see what they meant. We didn't spend as much time on them. I think the . . . when the chief's clerks gave a tipoff on something it was useful but, nevertheless, we didn't go by what the chief's clerk said. So that we had to spend a lot of time on a lot of cert petitions, and we had to have . . . spend some time on all of them. The justice, I believe . . . I know he read our memoranda, and I know he read the petitions. And some instances, he asked for them. And if we submitted the papers at the same time we submitted our memoranda, so he had an opportunity. He couldn't conceivably have read it all. I mean, it was impossible.

BIRDWHISTELL: Sure.

BARBASH: He couldn't have done the job, because two young people were 00:16:00. . . were splitting the job, and I think . . . I think we all worked about the same hours.

BIRDWHISTELL: Were they long hours or just regular hours, eight hours [or] nine hours?

BARBASH: Fairly regular, yeah. They were eight hours or, maybe, occasionally . . .

BIRDWHISTELL: Nine or ten, . . .

BARBASH: . . . nine or ten.

BIRDWHISTELL: . . . something like that?

BARBASH: But we didn't work into the night. We worked Saturdays most of the time . . .

BIRDWHISTELL: Oh, really?

BARBASH: . . . in those days.

BIRDWHISTELL: Was . . . was Justice Reed a hard worker? Did he work long hours or just, again, . . .

BARBASH: I think . . . I think . . .

BIRDWHISTELL: . . . a standard day.

BARBASH: . . . he paced himself, I think, in part, because of his health. He might have worked longer hours before that, but he was . . . you know, he had a . . . the reason he went on the Rice Diet was because of high blood pressure.

BIRDWHISTELL: Right.

BARBASH: And so . . .

BIRDWHISTELL: Right.

BARBASH: . . . he didn't . . . he tended not to work into the . . . into the evening, as I remember, which from our point of view was just as well. But we didn't leave the office because he left the office, and he didn't keep tabs on us. He just expected the work to be done.

BIRDWHISTELL: Right.

BARBASH: And then the . . . when we got to the opinion-writing stage, as you know, the . . . the justice would be assigned an opinion, and . . . by the . . . either the chief or the . . . the senior justice on his side if the chief was in the dissent. And then he would ask bailiffs or me to prepare a draft, and he would indicate how . . . how he was going and so forth. Well, of course, we have . . . [inaudible] granted his argument, and I'm trying to remember whether we did prepare some memoranda with respect to the briefs before argument, but . . . and it really depended on the cases to how 00:18:00extensive those memoranda were. My recollection is that the justice read the briefs, or at least some of the briefs before argument. And I think he usually read the . . . the memoranda we'd prepared on the cert petitions to begin with, because it gave him . . . gave him an idea of . . . of what the case was about. And that he . . . I know during argument, I remember he used to follow . . . he followed the argument very closely, and . . . and it seemed silly to some people, but I . . . but it didn't seem silly to me that he stopped counsel sometimes to say . . . ask them what page something was on, because he wanted to follow the argument closely, and he wanted to see what the argum- . . . what the counsel was referring to in his brief, and he was thinking of the argument then as part of the whole. In other words, the briefs and the argument together were what the 00:19:00justice wanted to see.

BIRDWHISTELL: Right. Yeah. Well, yeah. That seems perfectly [laughter] . . . makes sense, it seems . . .

BARBASH: Yeah.

BIRDWHISTELL: . . . like on the surface to me.

BARBASH: But he seemed . . . you know, he wasn't afraid to ask that question. Some of the people might not have, because it didn't seem . . . to ask the guy, "What page are you on?" [laughter--Birdwhistell] It doesn't sound li- . . . like a ter- . . . [laughing]

BIRDWHISTELL: I wanted to head your . . .

BARBASH: . . . terribly profound question, but he . . . he wasn't bothered by that at all.

BIRDWHISTELL: Yeah. That seems to be a characteristic of his that I'm picking up on, you know. That he . . . he wasn't concerned much about what kind of image, really, he was projecting.

BARBASH: No.

BIRDWHISTELL: He thought it was fine, it seems. [laughter]

BARBASH: No. No, he . . . he . . . well, he started out with a kind of patrician self-confidence.

BIRDWHISTELL: Yeah.

BARBASH: And he . . . and at the same time, that he was conscious of that he was not a super intellectual, that he wasn't Frankfurter or . . . or [William O.] Douglas, perhaps, in some way. But he . . . 00:20:00he was not . . . he . . . he . . . he wa- . . . he was not afraid to say that he didn't understand or he didn't . . . or he wasn't aware of a piece of information and so forth. He was anxious . . . very anxious to make sure that he kept up with things. And he would . . . he was constantly writing out things on cards, and he kept this card catalog. I don't know whether you've ever seen it.

BIRDWHISTELL: No, I haven't. I don't know if that's in his papers or not.

BARBASH: He had . . . he had something that he referred to all the time.

BIRDWHISTELL: That would be interesting to see if that . . .

BARBASH: And the . . . I'm not sure how well organized . . . I never even saw it. I knew he was . . . did it a lot. [laughter-- Birdwhistell] And . . .

BIRDWHISTELL: He . . . he seems like such a serious person. You know, somebody once said that they . . . he seldom smiled, but less seldom became angry. You know, that he was very serious, but . . . 00:21:00but not emotional.

BARBASH: Well, I never thought of him . . . of him as a serious . . . he laughed a good deal . . .

BIRDWHISTELL: Did he?

BARBASH: . . . in his chambers. Oh, yes. Yeah. Yeah. And . . . and it was a pleasant experience.

BIRDWHISTELL: Umhmm. That's interesting. I could . . .

BARBASH: The whole thing was a joy to him, basically. And he was troubled by some of the cases, but . . . but he was not a . . . I never . . . I never saw him in a . . . in a depression. I had seen Hand in depression. I never saw . . .

BIRDWHISTELL: That's interesting.

BARBASH: . . . Reed in a depression.

BIRDWHISTELL: I want to flip back to some other things here. Getting back a little bit before his Court career, did he ever talk with you about his work as Solicitor General since you were interested in it? Did you ever have an opportunity just to kind of chat with him and get his . . .

BARBASH: You know, that's a strange thing. I don't think we ever really did. And . . .

BIRDWHISTELL: I guess there was a lot going on with the other . . .

BARBASH: . . . yeah. Too much was happening. [chuckle] We were all 00:22:00. . . I . . . I suppose there might have been some observation in a case that he was in . . . when he was in a case, that he was in something like that when he was Solicitor General. That would come up. Or he was in something like that when he was at the R.F.C. And he was general counsel . . .

BIRDWHISTELL: Right.

BARBASH: . . . for the Reconstruction Finance Corporation. And he . . . but . . . but most of the time we . . . we sort of talked about what was going on in the Court and about . . . about the issues. I don't think we ever really gossiped.

BIRDWHISTELL: He didn't seem to be that kind of person, really, . . .

BARBASH: No.

BIRDWHISTELL: . . . to sit around and talk about what somebody else . . .

BARBASH: No.

BIRDWHISTELL: . . . was doing too much.

BARBASH: No. And he certainly wasn't a backbiter in any sense. He never . . . I don't remember his ever really talking about anyone 00:23:00in a derogatory fashion. He was occasionally miffed by [chuckle-- Birdwhistell] something that went on.

BIRDWHISTELL: Sure. He was only human.

BARBASH: Frankfurter used to come around and sort of proselytize with the . . . with the clerks [chuckling--Birdwhistell] and he was sort of bemused by that whole thing . . . by that process. But I don't know whether he ever said anything to Frankfurter about it. He never really said anything to us about it. He just seemed bemused by it. [laughter]

BIRDWHISTELL: That's an interesting picture you get of Justice Reed with Justice Frankfurter, you know, in . . . in understanding the way he was, and come in and try and convince Justice Reed to do something, you know, or to think his way or go his way. It . . . it's quite . . .

BARBASH: Well, Reed . . .

BIRDWHISTELL: . . . quite interesting.

BARBASH: . . . Reed . . . Reed was fond of Frankfurter.

BIRDWHISTELL: That's what I understand.

BARBASH: And I . . . and I think Frankfurter was fond of Reed.

BIRDWHISTELL: Well, you know, one of Justice Reed's sons had . . . had Frankfurter as a professor in law school. So it was a . . . it's an interesting relationship.

BARBASH: I can . . . let me tell you a story about Reed and 00:24:00Frankfurter which I think is a . . . a very good one. Actually, it's a very good story about Reed. I don't know whether Bayless [Manning] was there when Reed said this. He said, "Do you know why Felix and I decide these search and seizure cases differently?" Did Bayless tell you this?

BIRDWHISTELL: No. No, I've never heard this.

BARBASH: And I said . . . or we said, "Why?" [laughter] And he said, "Well," he said, "when Felix was a,"--I think he called him Felix to us--. . .

BIRDWHISTELL: [inaudible]

BARBASH: . . . that's right, because he didn't talk . . . I . . . I . . . I . . . I remember his . . . I . . . I sort 00:25:00of vaguely remember his calling him Felix, and he didn't call . . . refer to any of the other justices by first name. That could be wrong, but I just have that in my mind . . . in the back of my mind, and . . .

BIRDWHISTELL: I think that would be quite . . .

BARBASH: Yeah.

BIRDWHISTELL: . . . quite understandable.

BARBASH: And he said, "Well," he said, "when Felix was a young boy,"--he was a young Jewish boy [telephone rings]--"growing up in . . . in Vienna, and there could be a knock on the door in the night. It could be a policeman. And if it was a policeman, that policeman could be coming to take him away." He said, "When I was a young boy, I grew up in Maysville, Kentucky, where my father was one of the leading citizens of town. And I had a white pony, and I used to ride the white 00:26:00pony down the main street. And I had golden curls then--which seemed amusing [chuckling] because he was almost completely bald [laughter] when he was telling this story--. . .

BIRDWHISTELL: It was hard to picture, I suppose.

BARBASH: . . . and he said, "I had golden curls then, and as I passed the . . . the main intersection, there was a policeman there, and he would hold up his hand to stop traffic for me. And as I passed by, he would pat me on my golden curls." And he said, "And when Felix thinks of a policeman, he thinks of the knock on the door in the night, and when I think of a policeman I think of [chuckling] the man stopping traffic for me and patting me on my golden curls."

BIRDWHISTELL: That is a good story. That's a good story. And I suppose it's only human nature as a justice, you know, you think they want to 00:27:00decide everything based on legal facts and things, and . . . but it's their b- . . . own background, obviously, comes into play.

BARBASH: Sure. It can't be disregarded, and that's what he was saying.

BIRDWHISTELL: Right.

BARBASH: You can't . . . you can't disregard it. No matter how fair you try to be, you . . . you can't get away from it. And, of course, what was very important in Reed's attitude toward many areas was the fact that he was involved at . . . in government at a time of crisis, and he felt that government had to intercede. And he extended this not only to interceding in the economy, but also to intercede in relation to individuals. He wasn't as quite as concerned about the 00:28:00government impinging on individuals. He trusted government a lot.

BIRDWHISTELL: Yeah. Trusted government, I guess. That's . . . it's an interesting view for a man who . . . who was very conservative on some issues. You know, to . . . to . . . and then to be a New Dealer, so to speak, to . . . to believe in big government and the . . . and the good it could do. It's a . . . it's an interesting balance, don't you think, . . .

BARBASH: Yes. Yeah.

BIRDWHISTELL: . . . in his . . . in his personality?

BARBASH: Yeah. I think he also, however, was aware of the fact that this could limit his perspective. And . . . and I'll tell you another story that perhaps you've heard. Well, toward the middle of the year, some law clerks or prospective law clerks came around . . 00:29:00. candidates for the next year. And one fellow came . . . came in who had been rather highly recommended and was working for a judge on the Court of . . . of the Court of Appeals, and spent about an hour with the justice and came out all smiles and then left. And I know Bayless was there at that time and . . . and . . . because we . . . we asked the justice how . . . how he liked him. And he said, "Oh, I thought he was fine." "Well, are you going to hire him?" He said, "No." [chuckle--Birdwhistell] And we said, "Well, why?" And he said, "Well, he kept agreeing with me." [laughter--Birdwhistell] He said, "I need people like you two, disagreeing with me."

BIRDWHISTELL: So he was serious? He wasn't going to hire him for that reason?

BARBASH: He didn't.

BIRDWHISTELL: He really didn't do it?

BARBASH: Really. This guy's later become a professor and [laughter- 00:30:00-Birdwhistell] extraordinarily . . . I mean, quite well known throughout the country . . .

BIRDWHISTELL: Is that right?

BARBASH: . . . in legal circles.

BIRDWHISTELL: So, his credentials were good enough . . .

BARBASH: His credentials were very high.

BIRDWHISTELL: . . . yeah.

BARBASH: But . . . but Reed . . . Reed was a little concerned about having somebody who was . . . who didn't disagree, and I think, perhaps, he was a little suspicious of the fact that this fellow didn't seem to disagree with him on anything.

BIRDWHISTELL: On [chuckling] anything.

BARBASH: He didn't want a "yes man." He really didn't. I mean, this was great.

BIRDWHISTELL: Would you say that . . . that you didn't go along with a lot of Justice Reed's views at that time? That you would . . . you would . . . I guess you held different views on . . . on some of the cases that . . . that he would decide?

BARBASH: Yes. Yeah, on . . . on some. Not . . . not too many. I think the . . . the most serious problem at that time was that we 00:31:00were . . . we were just getting into the [Joseph] McCarthy era.

BIRDWHISTELL: Right. It was right in that . . .

BARBASH: And you had the problems of the . . . of the "Hollywood Ten" and so forth coming up, and I . . . I am quite sure that . . . I know that I was much more concerned about the . . . what the House Un-American Activities Committee was doing than . . . than Reed was. And I think what . . . I think our year the . . . the cert petitions came up, and I think they were denied.

BIRDWHISTELL: I'm not sure.

BARBASH: Our year was a very . . . was an important year because it was . . . its . . . [Frank] Murphy and [Wiley] Rutledge had just died, and [Sherman] Minton and [Tom C.] Clark came on. So it was . . . the . . . the Court became more conservative at that 00:32:00point. Murphy and Rutledge . . . it was Murphy, Rutledge, [Hugo] Black, and Douglas. If they could pick up another vote, you had a . . . the liberal or Left or whatever . . . however you want to characterize [telephone rings] it, majority in the . . . in the Court, particularly on civil liberties issues. They could pick up Frankfurter. Frankfurter was very important on some of these things because you . . . Frankfurter was not always for the person who was asserting what's the constitutional individual right. And Reed was important.

BIRDWHISTELL: Yeah.

BARBASH: He was known as the "swing man" then.

BIRDWHISTELL: Right.

BARBASH: On . . . on many of the big government issues. And . . . but when Minton and . . . and Clark came on, it changed the 00:33:00balance of the Court in many respects and . . . and made the Court a good deal more conservative. And I think that in a way, Reed became somewhat less important at that stage, as Frankfurter did, because of that. But it's . . . it didn't seem to make any difference in the way he voted. The . . . the case that was the most interesting case that year was the . . . the case involving graduate school segregation . . . two cases; Sweatt against Painter and McLaurin [v. Oklahoma State Regents for Higher Education]. And they . . . they were up for decision that year, and the decision of the Supreme Court was unanimous. And that was a . . . was a very, very . . . very important and . . . and significant case, and particularly 00:34:00significant in that even the conservative Court did that, and that Reed, who is somewhat more conservative on those issues, joined in. Clark, who was from the South . . . well, Texas, . . .

BIRDWHISTELL: [Fred M.] Vinson too, of course.

BARBASH: . . . pardon?

BIRDWHISTELL: And Vinson too, of course, . . .

BARBASH: Yeah. Yeah.

BIRDWHISTELL: . . . being an important . . .

BARBASH: Kentucky.

BIRDWHISTELL: . . . part of that.

BARBASH: Yeah.

BIRDWHISTELL: Is there any way that you could give any indication of how Reed as a person viewed the civil rights cases in general, or is that possible? Is that . . . I mean, what . . . I guess what I'm trying to see is . . . is how he saw this . . . these types of cases coming up and the effects they were going to have on the . . . on society, and eventually, of course, up to the Brown decision in `54.

BARBASH: Well, I think Reed was concerned about what would happen, and I think he was highly sympathetic to the aspirations of . . . of the blacks. And . . . I don't know to what extent. I . . . it's a little hard to understand how . . . how his background affected him because, obviously, he was in a . . . he'd grown up in a society that, you know, is . . . is . . . it's . . . Kentucky's a border state, but . . . but I think the society in which Reed lived was a white society in which . . .

BIRDWHISTELL: Oh. Umhmm.

BARBASH: . . . the blacks were servants. And the . . . and 00:36:00although he was kind . . . always kind to, you know, the blacks in the Court and so forth, you didn't have the sense that he was a fervent integrationist.

BIRDWHISTELL: Yeah, I guess that's what I'm . . . I was getting at.

BARBASH: But yet I think he . . . I think he had a sense that it had to happen and it should happen. And whether he was concerned about whether they were ready or not, I don't know. I think that . . .

BIRDWHISTELL: How fast the change?

BARBASH: . . . how fast. How fast seemed to be the . . . the . . .

BIRDWHISTELL: Yeah.

BARBASH: . . . the question.

BIRDWHISTELL: That's the . . . that's the image and the impression I get . . .

BARBASH: Yeah.

BIRDWHISTELL: . . . from the . . . just my limited, you know, view of what was going on.

BARBASH: Well, you know, the briefs that came in at that time, just from the states, talked about the possibility of bloodshed and violence and everything else that might occur. And . . . and it was hard to read those briefs without worrying about it. You know, how serious 00:37:00is all this? What the hell's going to happen? Because, obviously, Reconstruction . . . [in] Reconstruction days there was some just bloody experiences then . . .

BIRDWHISTELL: Sure.

BARBASH: . . . and nobody wanted to see that revived. But I think there was a sense that on the graduate school cases, that that was something that . . . which were cases that we had at that time that, "Thank goodness these are the cases." It's . . . it's not . . . at least it's not the . . . the sort of thing that is going to stick in the gut like the high school . . . high school case might be or something or other, so . . . and . . .

BIRDWHISTELL: Or even what would we see eventually [in] housing and . . . and restaurants or, you know, the . . .

BARBASH: Well, the . . . they had . . . there had been . . . there was an interstate bus case already . . .

BIRDWHISTELL: Oh, I see.

BARBASH: . . . in which the Court had held against desegregation. And . . .

BIRDWHISTELL: And I suppose there'd been cases in Washington too, on . . . that had come up through the city there about some housing things, possibly?

BARBASH: Well, it may have. Oh, you mean the . . . the Restricted Carpenters Cases.

BIRDWHISTELL: Must be the one.

BARBASH: That may have been just before that.

BIRDWHISTELL: Yeah. It would have been in `47-`48.

BARBASH: But they . . . they moving along, and I think the question was one of pace. And I think this was something that I personally shared at that time, and that is an apprehension about . . . about the speed of the thing, and whether or not, perhaps, it could move too . . . so fast that we could have repercussions. And it . . . it didn't move that fast. And Brown came up sooner than I thought it would.

BIRDWHISTELL: Well, you know, that's [chuckle] an interesting thing, because we did a project like this on Vinson . . .

BARBASH: Yeah.

BIRDWHISTELL: . . . and one of the unfair questions we asked everybody was would Brown have happened in `54 if . . . if Vinson had re- . . . lived.

BARBASH: Yeah.

BIRDWHISTELL: You know, would . . . would he have been able to bring the Court unanimously together for that decision? Well, I think . . 00:39:00. which is the one most . . . I mean, people, you know, talk about Sweatt and Painter, but . . .

BARBASH: Umhmm. Yeah.

BIRDWHISTELL: . . . it . . . the real . . . one that really shook them, I guess . . .

BARBASH: Yes.

BIRDWHISTELL: . . . was the Brown decision, and whether Vinson would have moved that fast on it, so it's . . . it's an interesting thing to contemplate that no one can answer.

BARBASH: I think the only thing the Court could have done in that . . . in Brown would . . . would have been to somehow duck it.

BIRDWHISTELL: [chuckle] Right.

BARBASH: They . . . they could not have decided it otherwise.

BIRDWHISTELL: Right. Either just not hear it or . . .

BARBASH: Yeah. I had an impression for a couple of years, when I was following the Court after I was . . . I left the job as law clerk, that the Court was ducking cases. Well, the Court ducks a lot of cases because, see, there there's a sense of the right time . . .

BIRDWHISTELL: Right.

BARBASH: . . . for the case. And it's a strange kind of process, that process that . . . that they make of deciding when to . . . when to hear cases.

BIRDWHISTELL: Or trying to find one that would do what they want to do 00:40:00best. [laughter]

BARBASH: Yeah.

BIRDWHISTELL: You know, like here's one, but it doesn't really . . .

BARBASH: Yeah.

BIRDWHISTELL: . . . do everything we want it to do.

BARBASH: It's a . . . it's a mixture, you know. Because it's not . . . as . . . as in everything in life, it's not nearly as conscious as a lot people think it is.

BIRDWHISTELL: Yeah.

BARBASH: Sometimes it's purely accidental. [laughter]

BIRDWHISTELL: Well, I think that's one of the things we . . . we pick up on in this . . . in oral history about the Court or about Congress, or about any . . . any of these bodies that are . . . are, you know, changing things. That it's just . . . sometimes things just work out that way. Let me go ahead and . . . and flip this over while we've got . . .

[End of Tape 1, Side 1]

[Beginning of Tape 1, Side 2]

BIRDWHISTELL: Well, you've already told one story that Reed told you 00:41:00about Kentucky . . . about growing up in Kentucky. He'd been in Washington for twenty years. Did he talk a lot about Kentucky and about his farm back there?

BARBASH: Well, he talked . . . he li- . . . he liked talking about his farm. In fact, that was one of the few things he did gossip about. [chuckle--Birdwhistell] He liked . . . he lik- . . . when he was feeling very relaxed after lunch or something like that, he would say something about the farm.

BIRDWHISTELL: Yeah.

BARBASH: But . . . and as a matter of fact, that's something that I always found mildly amusing. The fact that . . . I was almost shocked by it occasionally, the fact that right in the midst of thinking about a very important case, he was looking at some plan for some change in his farm. [chuckle--Birdwhistell] And . . . but he . . . he tended to get back to the . . . to the case.

BIRDWHISTELL: Yeah. I . . . I've been interested in . . . in people mentioning about the amount of time and the attention he gave to the farm, and it almost seemed like a hobby for him in many ways, . . .

BARBASH: Sure. Yeah.

BIRDWHISTELL: . . . or a diversion of sorts. A great deal of attention. How would you describe his relationship with . . . with 00:42:00Chief Justice Vinson? They'd known each other for a long, long time, you know, back to the Kentucky days, I suppose, in Kentucky politics. But did you get a sense of . . .

BARBASH: I really . . . I . . . I have no idea, except the fact that he spent time with him. But he could have . . . after all, it was the chief justice and I don't . . . he never talked about it.

BIRDWHISTELL: Really?

BARBASH: Yeah. And, in fact, I never remember his saying anything about Vinson. I just remember . . . the thing that I re- . . . [chuckling] as a Kentuckian, you'll be interested in this, I think. The . . . a matter came up before the Court that was quite ironic . . . that presented a number of ironies, and that is that there was a fellow who had gone to the Harvard Law School, been on The Review, and I think had been a clerk for Frankfurter. He went back to Kentucky 00:43:00into politics. I've forgotten his name.

BIRDWHISTELL: Are you talking about Prichard?

BARBASH: Prichard, yeah.

BIRDWHISTELL: His name's Ed Prichard.

BARBASH: Ed Prichard. And he managed a political campaign and . . . which was successful, but then he was prosecuted for having done something about the ballot box that was improper. [laughter-- Birdwhistell] And his . . . he was tried in the federal court and he was convicted, and then his conviction was affirmed by the Court of Appeals. And then a petition for cert was filed, and they couldn't get up a quorum because he'd known so many justices.

BIRDWHISTELL: He'd clerked for Frankfurter and . . .

BARBASH: Yeah. And he knew Reed.

BIRDWHISTELL: . . . then [inaudible].

BARBASH: Reed couldn't . . . he'd been involved with Reed in some way, and he'd been involved with Vinson . . . Vinson because he 00:44:00worked with Vinson in . . . in . . . when Vinson was head of the Economic thing . . .

BIRDWHISTELL: Economic Stabilization [Board].

BARBASH: . . . in the . . . in . . . in World War II, and he had something to do with Douglas. They just couldn't get enough people [laughter] to sign the cert petition. But the clerks all read the petition and . . . and wrote memoranda on them anyway. So that the . . . and my recollection is that there really wasn't any basis for cert. That the justices had an opportunity to look at it and see what they wanted to do, and I think they just denied for lack of a quorum or something like that.

BIRDWHISTELL: I think . . .

BARBASH: That's what . . .

BIRDWHISTELL: . . . I think . . .

BARBASH: . . . they did.

BIRDWHISTELL: . . . I think that's right.

BARBASH: It was a strange kind of a thing.

BIRDWHISTELL: No, I th- . . . I think that was the decision.

BARBASH: I don't know what they would have done if somebody had decided there was real merit in it.

BIRDWHISTELL: That would have been tough. That would have been real tough. Hmm.

BARBASH: I didn't have the sense that, at any point, that Vinson was exercising much influence on Reed.

BIRDWHISTELL: Umhmm. They voted together a lot.

BARBASH: Yeah. But . . .

BIRDWHISTELL: The . . . Vinson, Reed and [Harold] Burton, right? They were known as sort of a block.

BARBASH: Yeah. I think they voted together on a number of matters, but Reed departed from them in a number of cases. And, of course, there was that long period . . . that period when he was the swing person in the Court.

BIRDWHISTELL: Umhmm. Do you think Justice Reed has been treated fairly in the . . . in the accounts you've seen of the Court since then, in terms of how his . . . his role on the Court has been evaluated? He's been criticized, of course, for the civil liberties record by . . .

BARBASH: Yeah.

BIRDWHISTELL: . . . some writers. And . . . do you think that's . . . that's justified [or] warranted?

BARBASH: Well, I think in some sense it's unjustified. Reed . . . Reed did not write very good opinions. And the . . . part of the problem was that . . . that the law clerks would come up with 00:46:00drafts, and then Reed would take the law clerk's draft--do you know about this?--the law clerk's draft, and he hated to cut out what the law clerk wrote, [chuckle--Birdwhistell] but yet he wasn't completely satisfied. So he would write something else, so the opinion would have one paragraph as the law clerk's, and the next one was Reed's. And it's a little hard to read an opinion that [chuckle--Birdwhistell] . . . that goes like that.

BIRDWHISTELL: Well, I haven't been . . . it hasn't been explained to me exactly that way, but one person, I think, did mention the fact that it . . . that it was . . . it didn't flow. [chuckle]

BARBASH: Yeah.

BIRDWHISTELL: And that would be the same thing you're talking about.

BARBASH: Yeah. It was a problem of flow because of repetition, and the repetition came because he was looking at it slightly differently, but yet didn't disagree, but he wanted to say what he wanted to say. And . . . and he was not a stylist which, in a way, has a lot to do with the way people at the law schools and so forth tend to write about justices' . . .

BIRDWHISTELL: Right.

BARBASH: . . . opinions. The . . . the stylists make out the best most frequently. Of course, [Robert] Jackson was the greatest stylist of them all, and in some ways he . . . he's been ignored by a lot of people.

BIRDWHISTELL: Yes.

BARBASH: But I think that had a lot to do with it. As far as the . . . as far as his voting was concerned, I guess the . . . perhaps as the swing comes and approaches to questions concerning the Fifth Amendment and so forth, that perhaps there'd be a greater appreciation of the Reed view in . . . in some of those areas.

BIRDWHISTELL: I guess that is true, yes.

BARBASH: For an example, there's . . . there . . . a lot of people feel that the . . . that the Fifth Amendment has been stretched beyond, certainly, what it was originally intended to . . . well, 00:48:00who knows what the original [chuckle--Birdwhistell] intent was, but the . . . but . . . but that . . . there are a great many problems have been created in terms of the administration of criminal justice as a result of taking things that next step--that next step that Reed wasn't willing to take, quite often. I'm not sure that he contributed particularly new insights into the law, but I think he was . . . I think, basically, on balance, if . . . if somebody really went through what he did in terms of his voting and some of the things he said, that one would see that . . . that his contribution was highly 00:49:00significant. I think, for example, if you looked at him in . . . in . . . in the same way you look at [Earl] Warren, and sort of assume . . . for example, assume for the sake of argument that Reed was the chief justice during the period that he was the "swing man," why, you might then say that he was somebody of high significance.

BIRDWHISTELL: Right.

BARBASH: I've always had some question about the significance of Warren [chuckling] in . . . in that respect. The . . . the chief . . . I'm . . . I'm not sure the chief justice is that important. It's nine justices. The chief justice is up there and, of course, he can assign opinions and he has certain powers, but it's not . . .

BIRDWHISTELL: It . . . it is limited.

BARBASH: . . . it is limited. And there's a tendency to think, "Well, he's the fellow who pulled the Court together." But you don't know who pulled the Court together. [laughter]

BIRDWHISTELL: There's a lot of . . .

BARBASH: [inaudible] . . .

BIRDWHISTELL: . . . strong personalities and egos . . .

BARBASH: Sure. Sure.

BIRDWHISTELL: . . . and intellect and different things.

BARBASH: And . . . and Reed had a . . . certainly he had an influence on the others in that he was liked by everybody.

BIRDWHISTELL: That's an interesting part about him, I think.

BARBASH: And . . . and I think that there was a deference to his character and integrity. And . . . and I think a . . . a kind of . . . and his intelligence, although the . . . in this world of the . . . the s- . . . the super hotshots, he wasn't a super hotshot the way . . . he wasn't a . . . wasn't a genius type the way Douglas is, and . . . and Black and . . . and maybe . . . and Frankfurter. Reed wasn't a genius type, but he was a man who represented something very important in the American government 00:51:00political life. And I think . . . I think in . . . he had significant input. Maybe everybody would have been better off if some of the decisions during the McCarthy period had gone the other way. But I don't think he would have made the difference that time, and I'm not sure he would have swung them on those decisions. I think that the things that happened during that era did real harm . . . things that the Court did during that era did harm, or things the Court was unwilling to do. I mean it wasn't . . . it was the inaction of the Court . . .

BIRDWHISTELL: Yeah. Right. Yeah.

BARBASH: . . . that . . . that produced the harm. But I'm not sure Reed could've . . . could've helped that much if he . . . if he had thought differently about it. And then it was incon- . . 00:52:00. he was . . . he was giving Congress the benefit of the doubt in the . . . the Congressional committees, and maybe . . . maybe in the . . . maybe if you didn't do that, you wouldn't have had the Watergate investigation and the freedom of the Watergate investigation. Sometimes it's . . . it's hard to tell who [chuckle] . . .

BIRDWHISTELL: There's no easy . . .

BARBASH: . . . yeah. [chuckling]

BIRDWHISTELL: . . . issues in front of the Supreme Court, are there?

BARBASH: Yeah. [chuckling]

BIRDWHISTELL: I . . . I think that's one thing that anyone studying the Court has to always to keep in mind, I suppose, is how complicated these things are, you know. And . . . well, you know, there was a case while you were on there, [inaudible] vs. U.S. . . . we were talking about enforcing the quorum rule in . . . in Congress, and Reed dissented there, you know. It . . . a tendency to let Congress do their business . . .

BARBASH: Yeah.

BIRDWHISTELL: . . . and let the administration do their business, and the Court [chuckling] do their business.

BARBASH: Yeah. And that . . . you know, that was his . . . that was his basic philosophy. He didn't . . . really didn't want 00:53:00to intrude on . . . I . . . as a matter of fact, your . . . stated it better than I could.

BIRDWHISTELL: Okay. [chuckling]

BARBASH: That's a good way to put it.

BIRDWHISTELL: Well, that's about all the specific questions I . . . I have. I think you've shed a lot of light on your year there anyway in terms of how things worked and what type of person he was. Any other things you might want to add?

BARBASH: Well, I think . . . I think there . . . there's one thing I . . . I would like to say, and I'm not sure just how I can put it. And I . . . I don't want to get into the sort of thing the clerks did in the Brethren stuff. I was very bothered by what some of them said.

BIRDWHISTELL: Oh, yes. Right.

BARBASH: And . . . but I think that perhaps . . . perhaps this might be helpful to somebody someday in . . . in . . . in 00:54:00thinking about the Court. I happen to think that it's very important that judges write opinions in cases, because when you write an opinion or you have to write something down, it forces you to think about it, and perhaps not come up with your . . . stay with a gut reaction. And we had two experiences that way at the Court the year I was there. One involved the chief justice and his clerk, and one involved Reed and . . . and me. And in one . . . in the chief justice's case, the . . . after the oral argument at the conference, the Court had voted one way. The law clerk started to write the opinion and went to the justice and said the opinion won't write. The law clerks decided 00:55:00to do it, and finally the chief justice authorized them to write . . . try writing it the other way, and they writ- . . . wrote it the other way with the chief justice's revisions and . . . and carried the whole Court in that instance. We had a similar experience in which I was assigned to an opinion, and the . . . and the Court had voted, I think, with perhaps one . . . one or two dissents one way, and it was in a case that involved . . . it was a death case and it didn't involve the death penalty, as such. It was a procedural question, and 00:56:00the . . . and I went to the justice and I said, "It just . . . just doesn't . . . it doesn't write, it doesn't make sense on the record . . . reading the record coming out this way. I can't write it." And we talked about it and so forth, and I . . . he asked me to give my reasons, and I . . . and I said basically the . . . what had happened couldn't be . . . couldn't have happened as a matter of chance. Something had happened that indicated that there had been a discrimination of some sort in the matter. He said, "Well," he said, "let's send it over to the Bureau of Standards as a hypothetical case," [chuckle--Birdwhistell], "and let them tell us what the odds are. If there are any more than X--[chuckling] I've forgotten what it was, a 00:57:00hundred to one or something like that--"that it couldn't have happened as a matter of chance, I'll think about it."

BIRDWHISTELL: That's . . . that's interesting.

BARBASH: We sent it over as a hypothetical to the Bureau of Standards and they came back with a . . . the answer from their computer--I'm not sure they had computers then, but whatever it is that they used-- and there was a good deal more than a hundred to one against chance and he said, "Okay, try doing it the other way." [laughter]

BIRDWHISTELL: That's fascinating.

BARBASH: And the . . . and I . . . I wrote a draft, and the justice revised it, and revised it, interestingly enough, in terms of his own experience which he brought to it. Would indicate that . . . that unless this was a matter of chance--and I . . . I don't think we put it in . . . I don't think it was put in the opinion--but . . . about the fact that [chuckling] taking this judicial notice . 00:58:00. . the justice had taken a judicial notice of [chuckle] the laws of probability.

[laughter--Birdwhistell] But that . . . that something had been missed in the process that had a discriminatory effect, and this carried a . . . carried the Court . . .

BIRDWHISTELL: Wow.

BARBASH: . . . with one dissent, I think.

BIRDWHISTELL: Yeah. That's . . . that's interesting because I . . . you know, I don't get an image of Reed changing his mind very much or, you know, once . . .

BARBASH: No, he didn't . . . he didn't do it too often.

BIRDWHISTELL: No. This would have been a real exception, I would think, from what I could tell.

BARBASH: But he . . . but he was . . . he was open-minded. I mean, he started out with, obviously, his past, which he recognized, but . . . and . . . but he was open to ideas and suggestions and so forth, most of which he rejected. [laughter]

BIRDWHISTELL: One historian of the Court . . . I suppose, a historian of the Court, said that one way Reed differed from, say, people like Frankfurter, Douglas, [and] Black was that he was advocating no social philosophy, really, in an active way I suppose. He was . . . what's . . . what am I trying to say in terms of . . . he wasn't trying to use the Court to promote his own beliefs as much as others, I suppose.

BARBASH: I don't think s- . . . yeah, I think that's true. But, of course, you have to remember that . . . that Reed was relatively satisfied with the status quo.

BIRDWHISTELL: So that's what he was advocating, right? [laughing]

BARBASH: And particularly with the New Deal gloss.

BIRDWHISTELL: Right. Right. We'd gotten there and that's . . . that's where we ought to stay. [chuckling]

BARBASH: Yeah. I mean, that's pretty good. [laughter]

BIRDWHISTELL: [inaudible]. It had to be good. [chuckling]

BARBASH: Well, I guess . . . this government that was . . . that was functioning pretty well, and I think that in terms of the . . . 01:00:00the . . . the segregation and . . . and integration, I think he . . . I don't think he was satisfied with the status quo there.

BIRDWHISTELL: Right. Yeah, as you pointed out earlier, it was just a matter of timing, I suppose. Anything else you'd like to add? [telephone rings]

BARBASH: Well, I don't think so. It's a . . . I don't want to go into too many details. I . . . I really am hesitant about even, what is it, thirty years later talking about cases that were before the Court.

BIRDWHISTELL: Right. Right. But I . . .

BARBASH: It really . . . it really bothers . . . the . . . what happened in that book is rather disturbing. I think it was a good thing that the people sort of learned something about the processes of the Court, and I think in many ways it . . . it enhanced the . . . the dignity of the Court. But the . . . the description of 01:01:00specifics and who did what to whom at any particular time is . . . is somewhat disturbing.

BIRDWHISTELL: Yeah.

BARBASH: There must . . . I suppose there's a statue of limitations on them or something.

BIRDWHISTELL: I don't know. [chuckling]

BARBASH: How long this . . . you have to keep this sort of thing within you. But I . . . I felt the Court was a tremendous institution. I thought the association of the justices was basically superb. Different, very different people, you know, but enormously . . . all of them enormously dedicated to getting the job done.

BIRDWHISTELL: Right.

BARBASH: And a hard job, terribly hard. And I don't think people have any idea of . . . of how hard those cases are that . . . that . 01:02:00. . where the Court . . . that the Court decides to hear. The easy cases are disposed of.

BIRDWHISTELL: Right. They don't make it that far, do they? [chuckling]

BARBASH: No. [chuckle] The ones that come up, they are so hard.

BIRDWHISTELL: I guess it's part of our . . . our culture that the only time you . . . people . . . the general public hear about the Supreme Court is in . . . when the decisions are handed down, and they see a thirty-minute spot on the television news about the . . . that the . . . they pick out the . . . the reporters, so that's part . . .

BARBASH: I hope somebody . . . you know, I . . . I was very . . . I was interested . . . very interested in your question about whether Reed has been sufficiently appreciated, and I . . . I'm quite sure that the answer is no. And I think that what would happen if there was a development . . . if somebody did it . . . a really intensive job on . . . on Reed's opinions, and his . . . his history would be that you would unquestionably show some flaws, 01:03:00but I think you would show, on balance, somebody who made a really substantial contribution.

BIRDWHISTELL: Well, thank you very much.

BARBASH: Sure.

[interruption in taping]

BARBASH: I don't want to forget this, because it--and I'm sure that this will be said by others, but I wanted to say it--that we had . . . we had dinners each year for Reed. The law clerks met together while he was on the Court and after he left the Court, and when he was inactive and so forth. Not as many people showed up after he left the Court, because he . . . once you leave the Court, you're not as important. [chuckling]

BIRDWHISTELL: That's the way it is, isn't it? [chuckling]

BARBASH: And there was always a possibility that somehow or other he would say something that was more fascinating about what was going on. But he was occasionally . . . I think he . . . he was discreet, and I started to say he was occasionally . . . he occasionally told us things that were not in the newspapers, but they were . . . he really . . . he wasn't revealing anything that would have embarrassed anyone in any respect by telling us what the Court was going to decide in any particular case. But he was . . . he was enormously gracious during that period, and he [telephone rings] . . . he really was such a kind man.

BIRDWHISTELL: And I think after the dinners you would have, then, a 01:05:00reception at his apartment . . .

BARBASH: Yes.

BIRDWHISTELL: . . . on Sunday . . .

BARBASH: Yes.

BIRDWHISTELL: . . . morning, and . . .

BARBASH: [inaudible] Yeah. The law clerk had the j- . . . [chuckle] oh, I forgot. The law clerk was . . . was . . . the in- . . . the incumbent law clerks were bartenders . . .

BIRDWHISTELL: Oh, really? [chuckling]

BARBASH: . . . yeah, at the [inaudible], and I really . . .

BIRDWHISTELL: One of the added responsibilities.

BARBASH: . . . and I've never forgotten the . . . the instructions on an Old Fashioned . . . the justice said, you know, "When people ask for an Old Fashioned, you know what you put into it?" And I said, "Well, it's . . . I'm not sure, is it such and such," and he said, "No. It's ice with a little bourbon on it." [laughter] That's an Old Fashioned. That was the justice's Old Fashioned. And that . . . that always was a very pleasant occasion, and he always had fairly high government people in, at that time, at the . . . at his 01:06:00apartment the next day. And it was sort of fun to see some of those people and . . . and, again, he was so gracious to everybody and to us . . . our wives and girlfriends or whoever was around. And when I finally arrived with a wife . . . when I . . . didn't marry till I was thirty-five, Mrs. Reed [chuckling] said, "Well, let's all stand up." [laughter] "At last it's happened."

BIRDWHISTELL: Well, it sounds like a real nice relationship that you developed with him, or maybe somewhat more personal than some of the . . . the other clerks.

BARBASH: Well, it . . . it . . . it . . . it didn't . . . we didn't see each other that often, but it was always very pleasant.

BIRDWHISTELL: Well, thanks for adding that. [chuckling]

BARBASH: Right. [chuckling]

[End of Interview]