JUDGE THOMS FAIRCHILD

JUNE 29, 1994

Q:          What made you decide to go into the practice of law?

A:          Well, I had a father who was a lawyer and the judge starting from the very first time I can remember. So, I had a lot of contact with the law through his eyes and stories and so on. He didn't push me into the practice he had actually chosen, I think, that I would have studied medicine had it been left up to him. But anyway, I'm sure the contact with him and his influence had a lot to do with it.

Q:          Well, tell me about your undergraduate education?

A:          That's a little complex. After high school, I went out to California to a very small ranch school which operated as a junior college, basically. I was there 2 years. It was a school on a ranch in the desert. Then, I went to Princeton for 2 years. Princeton wouldn't give any credit for the Deep Springs work, which Princeton would now, but did not then. So, I was a freshman and sophomore all over again. Then I went to Cornell and finished in 1 year because Cornell would give the Deep springs credit. I got my degree from Cornell in 1934.

Q:          Where did you go to law school?

A:          Here, at the UW — Madison.

Q:          Tell me a little bit about the law school when you attended it.

A:          Well, of course it was quite a bit smaller and the building was very different. The building that originally had the gargoyles was the building I went to. Dean Lloyd Garrison was the head of the school while I was there and taught some.  had a course or two with him. The people, the one professor who was there then that people talk about was William Herbert Page. He taught contracts and wills and conflict of laws. I had him for all those. Charles (Bob) Bunn was the professor of constitutional law, what I had him for.  Jake Boisher was there at the time. It was an interesting school, the one big difference was there were three women in a class out of one hundred and some, which would be far less than the proportion now. Although, there were women there, which wasn’t true in some of the law schools of that day.

Q:          When did you graduate from law school?

A:          I graduated, actually, in 1937. My degree reads 1938 because they had an office practice requirement in those days and I fulfilled that after graduation. I think of myself as the Class of '37, but the books show 1938. I was admitted to the bar in March of 1938.

Q:          Tell me about your office practice. Where did you do that?

A:          Well, my father was at that time, since 1930, justice on the Supreme Court of Wisconsin. There were no law clerks available for justices in those days. He developed a system, he was entitled to hire a secretary, at statutory authority and pay that job. When he got to the court, there was a lady he kept until her retirement. After she left, he developed a system of hiring a law student as his secretary with the understanding that the student would work for him during the senior year of law school and the first year out. They would do both secretarial and law clerk type service. I was the third one he had in that succession, so that my senior year in law school and the first year out I worked for him and that counted as my office practice.

Q:          After you were admitted to the bar, where did you practice?

A:          I went to Portage, WI, in April of 1938.  I ran out on my dad, but at his insistence, because he thought that the opportunity I had up there was one that I shouldn't pass up. Daniel H. Grady was a lawyer in Portage and a contemporary of my dad’s. They were about the same age. He was a lawyer of great distinction at virtually a statewide practice. Lawyers from all over the state would consult him on cases where they wanted help. He had his partner, Dorothy Walker, who is also a very well-known and competent lawyer. They had lost a partner, who had died as a result of an auto accident.  Sure I didn't fill his shoes, but they did hire me to be the third person in the office.

Q:          Do you remember at all the first case you worked on?

A:          My recollection would be that I was given some probate files. I learned most of what I knew about probate law, about the procedure not the law as such, from Katie, the secretary in the office who knew a lot more about probate forms than I ever dreamed of. I was given these files and I would start dictating petitions or accounts or this or that, and she would say "You don't want to say that."  So, I got some in-service training from her. As a case, I did most of the actual early trial work working as a briefcase carrier for Dorothy. There was one auto accident case that I remember in particular, which had occurred in Portage, a jury trial. I went along and examined a couple of easy witnesses. I mostly carried the briefcase and did briefing for her.

Q:          Can you tell me the most interesting case you handled when you were practicing in Portage?

 A:         Well, there is one that occurs readily to mind. It was one that Dan got from a referral from a lawyer in Baraboo. Justice of the supreme court, Roujet Marshall, had a farm somewhere in Sauk County and when he died left it to a man who had worked on it for him. Justice Marshall’s widow had elected to take her one third statutory interest instead of the provisions that the Justice had made for her in his will. That meant, of course, that Billy was dispossessed of a one third interest in the farm. Ultimately, he and the widow got along fine with no great problem about it, however he was about to lose the farm because of her death and perhaps her heirs were pressing him. After a number of years, he consulted lawyers and ultimately came to Dan. Dan followed the theory that where there's an election of that sort that the court of equity should sequester the assets which would've gone to the widow, had she not elected. Out of those sequestered assets the person who suffered the loss should be recompensed. We tried the case on that theory and lost in the lower court. I am not clear whether that was the probate court or, in those days the courts were separate, county court or circuit court. Then it came to the State Supreme Court on appeal, however, that was a loser all the way through. This is partly because, as I remember, the books would show of course, I think that they felt that there had been some latches approaching that on Billy's part and pressing the matter earlier. As I think of it it's not too clear as to the rationale of the final case was, but we lost it anyhow. But I did an awful lot of research cases in other states that I remember in that connection.

Q:          How long did you practice there for?

A:          Four years, or very nearly four. I became interested in what I thought was maybe something larger or more interesting or something government anyway.  I was able to get myself a job with the office of price administration. I was actually selected for the job in the fall of 1941, when the U.S. was not yet in the war. The agency was being built for the purposes of whatever kind of involvement the U.S. had and there were pressures on prices and so forth. Then, of course, Pearl Harbor happened in December of 1941. I didn't actually get to Chicago, where my assignment was, until the end of December, so the war was already on. As people recall, one of the first things that happened after Pearl Harbor in terms of the economy at home, they froze all sales of tires. That was one of the strategically impaired sort of supplies we had. OPA was given the job of rationing the tires for ordinary use. Since I was the last attorney to arrive before the rationing began, I immediately by reason of that fact, became the specialist in tire ration.

Q:          Can you tell me a little about your personal life during this time?

A:          Well, I was married in the summer of 1937. I had graduated from law school and I was working that year for my father. My wife was also employed by the YWCA organization. She had been the secretary of the organization here on the campus but she also had some duties when the job became full time for her, traveling to some of the other colleges in the state as a liaison between the organization for which she worked and the various groups of YWCAs in these various colleges.

So, we lived in Madison for that first year after marriage and she followed me up to Portage when I got my job up there. I got a room and came home weekends and she followed after her job was over that summer. We had two children while we were living in Portage, a son and a daughter, they were born in 1938 and 1941. We had two more children after we moved to Milwaukee. This job with OPA started in Chicago, but after a few months there I was assigned to a Milwaukee office. The rest of the time with OPA I was in Milwaukee.

Q:          How long were you with the OPA?

A:          Until October of 1945 through a couple of months after the end of the war.

Q:          Did you have to focus your work on tire rationing through that whole period?

A:          No, I didn't. It broadened out. Of course, there were other things rationed very soon, tires happened to be the first thing. But, ultimately gasoline and automobiles, typewriters and shoes and meat, canned goods, all those things were made the subject of rationing. As rationing attorney, I dealt with all of those. However, I got a few opportunities to be involved in litigation in the office, enforcement litigation. Ultimately, I was an enforcement attorney for a while in the Milwaukee office. Finally, I went back, kind of, to rationing because I was an administrative law judge in connection with enforcement of the rationing regulations vis a vis the dealers in ration commodities. OPA had the power to issue suspension orders, suspending a dealer from his right to deal in a commodity for a period of time, anything up to the duration.

That meant the duration of the war. These hearing commissioners, we were called, would conduct administrative hearings and decide on guilt or innocence of violations and if they were serious enough, we could suspend the dealer's so-called license to deal for a period of time. I was in that job for a matter of eight or nine months at the end of my time at OPA.

Q:          And after the OPA, what did you do? You were there until 1945?

 A;         October 1945, yes. Then, at that point, I took a job with the firm, then known as Miller, Mack and Fairchild now Foley & Lardner. I was there for three years. I have said at times that I put the question of whether I'd stay there to the voters of WI because I ran for attorney general. The majority said I should leave the attorney general and that was 1948.

Q:          What did you focus your practice on while you were at Foley & Lardner in Milwaukee, or Miller, Mack & Fairchild?

A:          The ordinary name for the firm that everybody used was Miller, Mack, which was the easy form of it. While I was at Miller, Mack I worked mainly on securities-type matters. I did get into a few of the edges of some litigation, wrote some appellate briefs. Basically, it was corporate and securities work.

Q:          Who did you work with there?

A:          Mostly Leon Foley assigned me my jobs. He would tell me what a client needed and start me out on it and when the work was done. He was the one to whom I took my ledger sheet for the time I put in and he'd tell me what to bill them.

Q:          So, you were elected to attorney general in 1948?

A:          That's right.

Q:          Could you tell me a little about your campaign experience?

A:          It's a long story, probably longer than we have time for. But, in those days, the Republican party was really the main, almost only, viable party in Wisconsin and had pretty much control of things except for pockets of Democrats. There was a movement in that summer to do something to try to revive the Democratic party. I'd never been a Democrat and my father was a Republican and I started out that way. In college, I had gotten interested in the progressive movement here in the state. I was active in the University Progressive Club and in Columbia County when I was in Portage. In the summer of 1948, I was asked by a group that was trying to spark this rebuilding of the Democratic party. I was asked to run for Attorney General on the Democratic ticket. After some consultation, I guess the immediate decision was made after a couple of martinis, I agreed that I would run on the condition that I would only have to campaign evenings and weekends. This was because running for office, in particular on the Democratic ticket, was not the most popular thing I could do at Miller, Mack.

I stuck with the evenings and weekends pretty much. Nobody expected that anyone on that ticket would be successful. It just happened that this was a pure fluke that I didn't have anything to do with that I was successful. The Republicans had nominated for three state offices, that fall, candidates who were nominated because they had the names of officeholders that the Republicans were familiar with. They weren’t, however, the people that the voters thought they were. The newspapers made a lot of fun of that and it just happened that I was the one that was able to be successful. I was running against one of those nominees, the nephew of the former attorney general, John Martin, had been placed on the Supreme Court during early 1948. Grover Broadfoot, who was later on the Supreme Court, was named Attorney General. He was defeated in the primary because so many ran and the voters thought that the Martin who was running was the Martin who had been Attorney General for ten years. Somehow or other I was able to exploit that and I was elected in November.

Q:          Did you move the family, then, to Madison?

A:          Not right away. We moved in June of 1949. It seemed easier to have the family here, even though in those days, Attorney General was a two-year term and I was going to have to run in two years. I didn't know if I'd have the luck again that I 'd had in 1948. But we moved to Verona, not Madison. We were very happy living there for actually four years. I didn't run for attorney general again.  Maybe I’m too easily persuaded but I was talked into running for the Senate in 1950 against Alexander Wiley. That was an unsuccessful run, but then President Truman appointed me U.S. Attorney for this district. So, I was here in that job and living in Verona until 1952. Then, there was more reason for running against Senator McCarthy in 1952, and that' s what I did then, again unsuccessfully.

Q:          So you were a reluctant politician then, you’re telling me?

A:          Well, I enjoyed it. I enjoyed running and campaigning but I would have preferred to run again for Attorney General and take whatever would come.  But I was in the position, one that the present Attorney General is in, Jim Doyle. Of course, now that's a four-year term. I'm sure, I never talked to him about it, there were lots of pressures on him to run for something else which he has so far resisted. There were a lot of pressures on me because I was the only democrat who had been elected in a state-wide run. As a result, there were a lot of people who thought I should do something else besides running for Attorney General again.

Q:          Tell me about your tenure as attorney general.

A:          It was a very different office in those days. Now, the Attorney General is the head of the state department of justice. They have lots of lawyers, investigative staff and so forth. They do a lot of things we didn't do. We had a comparatively small staff, a couple of dozen lawyers. For the most part, the assistants [to the attorney general] would advise the state departments and occasionally get into litigation on behalf of a state official or department agency. The Attorney General issued opinions, obviously usually prepared by the assistants, and the attorney general would put his name on it. The work was on quite a different scale than it is now.

Q:          When did you become U.S. Attorney for this district? Was that in 1952?

A:          No, I was through with Attorney General in January of 1951 and later in March was appointed U.S. Attorney and served the rest of 1951—52 until the end of June.

Q:          Can you tell about your tenure as the U.S. Attorney?

A:          Well, that was a different office too. A lot of things have grown over these years. When I became U.S. Attorney I had one assistant, Carl Rungey, later a professor at the law school and Assistant Secretary in Defense. He was a very able person. Carl went on to other things before my tenure as U. S. Attorney was over and then I got an assistant, Frank Nicolet of Habbottsford. Frank has been on the University Board of Regents and a very fine practitioner whose help I was happy to have. But, in the interim, after Carl left and before Frank came I was the only person in the office. That is very different from today where they have a scab of assistants. I tried some cases and found how much civil work the U. S. Attorney does, unbeknownst to a lot of people. There is a lot of civil, almost collection work, and that sort of thing that devolves on the U.S. Attorney's office where the U.S. is interested in collecting. Things like defending the U.S. in tort claims act cases. It happened that in this district there had not been frequent grand juries and I had the first grand jury in the district in a number of years. The previous U.S. Attorney and the district judge had been very successful in persuading people in the way of indictment, until I ran up against wanting to prosecute some people that refused to waive indictment. Because of this refusal I had to get a grand jury together and I found that a very interesting experience. In Wisconsin we don't use grand juries as much as they do in many other states and it was a new experience to a Wisconsin lawyer.

Q:          Do you want to go into this in more detail? Maybe a half an hour. We haven't gotten to the part of your career everybody wants to hear about.

A:          Why don't we go on, there isn't much more to say.

Q:          You have a had a varied and interesting career. For you, people could actually type with their hand getting a little tired. So, after your tenure as Attorney General, that ended.

A:          As U.S. Attorney ended, I had to resign in order to run. The actual resignation was the very end of June or early July, which was just before the filing deadline for the campaign for the U.S. Senate. People had to go out, those who were interested obviously, Democratic workers had to go out and get nomination papers signed over the 4th of July weekend. You ran into people in those times and they say, "Oh yes, we know you. You 're the one that ruined my fourth of July weekend.”

But that's when I stopped being U.S. Attorney and went into the campaign in earnest. That lasted then, of course, I had a primary with Henry Reuss in September and only very narrowly was chosen as the nominee. I then went on with the general election and was defeated by Senator McCarthy in November of 1952.

Q:          Can you tell me a little more about that campaign?

A:          That was again interesting in its own way. People think, "Oh what a terrible time you must have had with McCarthy.”

Actually, it wasn't that bad vis a vis McCarthy because he did what was politically smart and ignored me. He did not attack me in that particular way that you associate with him. It was largely just a matter of trying to get myself put before the people. 1952 is the really the first year in which television as a political instrument was used as such. We didn't have very much of it. We had very little.

One story about how different it was, was one time my campaign group decided on a Sunday morning in Milwaukee, during the primary campaign, that we needed some television presentation. That morning, we were able to get time for that evening in prime time from WTMJ for $500. $500 was quite a bit for us to raise at that point but it was quite a show. I'm sure people were not as much interested in it as we were. It wasn't a thirty second spot it was thirty minutes. We had my entire family there.  Someone had the chore of picking my wife Eleanor and the kids up here in Verona and driving them into Milwaukee to appear on this program. Then, we had some folks from around Milwaukee who would sit and ask me questions that they thought would be friendly questions and so on. Our youngest son was then between two and three and he had enough in the middle of the program and started to raise cain and my wife put him over her shoulder and said she’d thought he'd had enough and walked off the set. That is what people remembered.

I was out at plant gates right after that, which was Monday morning. I saw a worker going into a plant and was introducing myself as Democratic candidate for the Senate, "Oh yea, we saw you. You're the guy who's little boy cried on television."  So, at least we got that much attention. It was very different campaigning and we had no money, comparatively speaking. Actually, in that campaign, we had the unpleasant, disappointing fact that money came in when it was too late to spend it. It was thought that I had no chance and the national committee had told people that there wasn't much use in putting any resources into Wisconsin and so on. That began to change as the campaign went on and people did begin to contribute money and so I think the total for that campaign was in the neighborhood of $75-80,000. A lot of it was left at the end, which is a very disappointing result. You want to be able to get money and spend it. This is nothing, of course, like the amounts that go into campaigns now.

It was largely the old shoestring campaign that we had conducted in 1948, 1950, and 1952. We went around the state making speeches at all the street corners that we could shaking hands as much as we could with people and driving a car with a sign on top of it and a loudspeaker playing the blue skirt waltz or something to attract attention. Then we issued our press release to cover what we were going to say in front of the bank or grocery store or wherever and hope it got picked up by the dailies and weeklies. That was about the way the campaign went.

There was fortunately a movement that was started along in the course of the fall called "Republicans for Fairchild" on the theory that these were people who couldn't support Senator McCarthy, but would support me even though I was on the wrong ticket for them. That gave a lift. There were people who gave cocktail parties and that sort of thing to interest other people in supporting me and subscribing and giving a little money. That kind of activity filled my time and such other people as were working on the campaign. There were speech writers feeding stuff to me so that I'd have press releases going out every day. There's a lot of logistics to it when you're up in Ashland or Park Falls or someplace and going on to some other place the next day, or two or three a day in that area. Obviously, you don't have a lot of time to research and write speeches and press releases. Somebody back here in Madison is doing that and then until you get on the phone with them and find out what it is you’re saying that day. You say it because you don't want to have the newspaper run the fact that you didn't show at the place that really said you showed or didn't say what the release said you said. That campaign started to turn around, not enough, around mid-October.

Oddly enough, I have always felt that it was Senator McCarthy himself who turned it around against himself in my favor. A lot of it stemmed from a speech he made in which he was attacking Adlai Stevenson, Presidential candidate, and said something to the effect that he didn't challenge Stevenson’s loyalty but he thought he had some people around him that could be challenged. McCarthy said he would like to climb onto the Stevenson campaign train with a slippery elm club and beat some Americanism into those people. That was a widely featured speech and we could've said, and did, that McCarthy was an incipient Hitler but nobody paid any attention. When he started talking about beating Americanism into people with a club, that somehow caught hold. After that, there was an indication, if you're in campaign you get the feelings after a while, that people are supporting you or support is dwindling. Certainly after that there were indications of increasing support, but not enough.

Q:          And then the next stage of your career?

A:          I went back to Milwaukee to practice law. I went into a small firm of two friends, Floyd Copps and Erv Charney and I. They were kind enough to let my name be first in the firm, so it was Fairchild, Charney, and Copps.  We had offices in what was then the Bunder building, which has now gone back to its original name of Germania building on Wells Street. I practiced law for four years and did general practice, whatever came into the office. A lot of it came in from either clients they'd had before or through contacts that Floyd and Erv had and any business that I was able to get. Anyway, we all worked together and somehow kept things going for those four years.

Toward the end of the four years, my father was about to have to retire as Supreme Court Justice, he was then Chief Justice, but in the days there was an age 70 age limit on judges. He was far over that but when they passed the age limit, they had grandfathered anyone in who had already been elected to a term. He had already been elected and was 73, when he retired. He was 83. Actually, he had suggested to me the thought that maybe I could run in the year he couldn't run. He ran in the years ending in six — 1936, 1946, and 1956. so, I ran in 1955 and on into 1956 and was elected in April of 1956 to succeed him as Justice on our Supreme Court. In those days, different from now, you didn't take office until the following January so I became the justice on January 7, 1957. That means there is thirty-seven years of appellate judging that I have had, counting what I had on the Supreme Court and what I've since had on federal Court of Appeals.

I stayed on the Wisconsin Supreme Court for nine and some years and appointed in 1966, by President Johnson, as a judge of the Court of Appeals for the 7th circuit. I left the Wisconsin Supreme Court that time and have since been an active judge and then since 1981 a senior judge on the Court of Appeals for the 7th circuit. The 7th circuit consists of IL, WI, and IN, and the Court sits in Chicago.

Q:          I want to ask you a question I'm not even sure about. Can you tell me the differences between being a judge for the 7th Circuit and being on the Wisconsin Supreme Court?

A:          Well, some in general. There are maybe two kinds. One is procedural differences and the other subject matter differences. There are differences. The Wisconsin Court always, then and now, sits as the full court which is all seven Justices unless there is a vacancy or disqualification. All seven sit together and hear the arguments and work together and participate in the decision and approve the opinions and so forth. On the Court of Appeals, and this is true throughout the nation not only 7th circuit, no matter how many judges there are on the full court all cases are heard initially by three judges. Those panels obviously change. When I went on the Court of Appeals there were eight active judges and now there are eleven active. There were some seniors then and some seniors now. Also, judges can be brought in to hear cases either district judges from the circuit or visiting senior judges from other parts of the country.

The composition of panels can change quite a bit. Panels do change from day to day and in the 7th Circuit, unlike other circuits, we do not have a panel sit for a week at a time. You sit in a group of three, obviously the dynamics are different with three than seven, and then there are those differences. The panel of the Court of Appeals votes immediately after hearing the arguments. That is the only conference that is ever held of the judges. The presiding judge of the panel then assigns who is to write the opinion or decision. Then, you go back and work on preparing those cases assigned to you and then circulate them by mail, even if you're in the same place it's done formally. There can be descents and other members of the panel can say they'd like something changed and changes do occur.  Basically, that's the mode of decision.

On the Wisconsin Court, and I can't speak for now as to just how they do things because of changes. When I was there, there was no intermediate court. We took all appeals and had no choice as to which cases we would hear. Now, the Supreme Court of WI takes cases that have gone through the lower courts and they do have a choice to the cases they think are important. They take fewer cases than we had to hear back in those days. So, there is that difference.

The Court of Appeals, on the other hand, like the old WI court system has to take every case that is properly appealed to it and no choice of which cases it will hear. The Wisconsin Court in my day, we heard a bunch of cases argued in the first week of the month and a second week to study cases, which was very important to have that chance after the argument, I think. Then we had a conference, which lasted up to two days, on the cases we had heard. Those conferences were much more meaningful than the short conferences in the federal court. One of the big things I've missed in the federal court was this interchange of ideas about cases, face to face, in these conferences. So that's a difference. In terms of subject matter, the state trial court system is of general jurisdiction and hears every kind of case which can be brought under the state jurisdiction.

The Supreme Court reviews whatever those decisions are so that it is broader in scope in that way than the federal court. In the federal court you have to have a particular basis for jurisdiction and it tends to be somewhat more limited, although not in the sense that they don't have much work to do. They are limited in the sense of the subject matter. They have plenty of cases to keep them busy, there's no question about that. In the state system, the supreme court is supreme, as the word indicates, in matters which are not federal questions. If you have a rule or law dealing with liability in the ordinary sense of the term; contract injuries allegedly wrongfully done by one person to another and so on, the law changes from time to time through court decision. There is no decision, and it's very rare, that you have a case that is exactly like a previous case and the courts make law as they decide case to case, as each is different.

The decisions of the WI Supreme Court, unless they involve a federal question, has the last word. If it says the law is "this" why that's what it is in the state system. Of course, if they decide a case that has a federal question, there's a possibility of review of the Supreme Court of the U.S., who can change it. In that class of cases, they are no more supreme than the Court of Appeals circuit. But, the Court of Appeals on the circuit is deciding much more under federal statutes and within the body of law, which is created basically by the Supreme Court of the U.S.  There is a lot of overlap. For instance, a bank robbery can be a criminal prosecution in the state and the federal system because both state and federal law apply to that particular criminal act. The federal courts have what's called diversity jurisdiction. A citizen of one state can sue a citizen of another state in a federal district court. If that goes on appeal, eventually that goes to the Court of Appeals and decides state law questions and must decide them the same way as they can tell that the state court would have decided.

Q:          Would you be willing to discuss some of your more famous decisions on the circuit? [unsure of last one or two words]

A:          Well, I mention of them but can't think of too many that you'd call famous. But, in discussion of a case, there's a hard and fast limit in terms of trying to say what it means. All lawyers know about the parol evidence rule in testifying to what you 've meant in a document because the document controls, generally speaking. That parol evidence rule applies with any greater strength, in my opinion, than it does to a judge talking about a case that he was on, or wrote, or an opinion he wrote. When a newspaper person calls about a case, I might read a part of it to them but would certainly never try to tell that reporter what the case meant, because for that they should be dependent, and are, upon the text of the opinion that was written. That is what is supposed to tell what you're deciding and why it's that way. There have been a few that we can talk about alright in the sense of what they generally involve.

One interesting case, a criminal case that grew out of activities of people who were basically protesting the war in Vietnam and other social issues back in the time of the 1968 democratic convention in Chicago. The case is called the Chicago 7, originally the Chicago 8 until somebody got taken out, and was tried back in 1970 or 1971 in Chicago's District Court. Then the appeal from it came to the Court of Appeals and as it happened I was on the panel for that appeal and I presided on that panel since I was the senior of the three judges on it. I wrote the opinion, because I was presiding judge, and assigned it to myself.

The case involved a whole bookcase of transcript running around 21-22,000 pages. I had to familiarize myself with that more so than others because if you looked at the briefs you'd find that the statements of facts by the parties were minimal, both the prosecution, U.S. Attorney and the defense. It was an interesting case and the citation is called U.S. vs. Dillinger and a fairly long opinion. We reversed for a new which the people were prosecuted was valid. There were those contentions and others as to the propriety of the judge’s rulings on evidence and the log or in the trial. In our decision we found a number of errors, sufficient to require in our judgment retrial, as the conviction could not stand and it was reversed with possible retrial and never held.

There was a great deal of press attention and the identity of the panel, as all are, is kept confidential until the day of argument. This is not true in all Courts of Appeals in all parts of the country. Some announce their panels' hearing a particular case some considerable time in advance, whereas we do not. We took various steps to keep it confidential in the sense that there are motions and this case was pending in our court for a number of months. A number of motions are made and early on it was decided that these motions would be decided by the panel that had been selected to hear the case. The panel was selected a long time in advance, but to keep it confidential the orders on the motions were all issued either in the name of the chief judge of the court, alone, or just by the court. This would be instead of disposing the names of the judges on the panel. There have been some others of some interest and the ones you best remember are those reversed. We didn't get reversed in that one and I'm not certain if there was an application for cert in that case or not but it was granted if it was. Since becoming a senior judge in 1981, I've been in a group of senior judges who are fair game for other trial which was never held. The government did not see fit to hold a second trial on it. It involved a lot of contentions concerning First Amendment with a particular statute under which the people were prosecuted was valid. There were those contentions and others as to the propriety of the judge’s rulings on evidence and the log or in the trial. In our decision we found a number of errors, sufficient to require in our judgment retrial, as the conviction could not stand and it was reversed with possible retrial and never held.

I've done a certain amount of this sitting on other circuits. One I sat on the first circuit which is basically New England, or the eastern part of New England. It sits in Boston. And we had a case arising, it was interesting because just the other day our Wisconsin Supreme Court decided a case arising out of Waunakee. But this was a case that arose out of Pawtucket, Rhode Island. The district judge had held that it was an infringement of the first amendment, for Pawtucket to do what it did with respect to this display in the city. We, I happened to be on a panel which was assigned to hear that case on appeal, and I wrote the opinion with one judge agreeing with me and one disagreeing which affirmed the district court holding that this indeed was a violation of church/state separation under the first amendment. The case went to the Supreme Court and by a 5 to 4 decision in which Justice Burger, Chief Justice Burger, wrote the opinion, the decision was reversed. It's a case that gets mentioned once in a while because you get a fair number of these church/state cases. Lynch against Donnelly is the name of it in the Supreme Court and, as I say, you remember best the ones in which you got reversed.

Another one which I got reversed was one which I sat on in the District of Columbia circuit. And that involved the, a case involving the prisons in the sense that the prisoners were complaining of the fact that the, that they were not permitted to subscribe to particular magazines or news materials, periodicals of various sorts. And the district court had, we did change somewhat the decision of the district court, not entirely. The district court in the city of Washington, District of Columbia and it came to the Court of Appeals. We held that the prison practice was, did violate the first amendment rights of the persons who were really, pre-press rights of the people who were making these, wanting to make these publications available in not permitting the prisoners to subscribe to them without a closer examination, I'm speaking quite generally of the publications by the President and the prison officials making determinations that these would be hurtful to prison discipline or something of that sort. Again, I won’t go into the details of the decision other than I described it: interestingly enough, one of my, it is more interesting now because that one of the members of the panel who sat with me on that case and who concurred on the opinion has more recently become a member of the Supreme Court and now Justice Ruth Ginsberg, but that's a matter of interest in terms of the effect that it's always, there's always a certain amount of fun to get a personal acquaintance with somebody who had that type of lightning strike them.

Anyway, the Supreme Court reversed and said that we had applied the proper construction of the statute and rules involved and that the prison didn't have to do what we said they had to do. Incidentally, the other person on the Supreme Court that I get this same kind of satisfaction of, as personal and close and in this case longer association is Justice Stevens who was a member of the 7th Circuit Court of Appeals during the time I was there. Actually got his, I remember the exact day that he got the call from President Ford saying that President Ford would nominate him for the Supreme Court. He was on our court from 1970 to 1975 so there were five years of close association with him. As I say, it's kind of, you get a kind of a personal satisfaction out of having the, as I said the lightning strike. It's a very distinct honor which doesn't come to very many people, come to somebody that you have worked with as a colleague.

Q:          What would make a decision particularly difficult for you as a judge?

A:          There are just all kinds of difficulties in cases and it's hard to categorize. I have a difficult time making up my mind sometimes, I think more difficult than some other colleagues. Not that I come out any more nearly right than they do, but I think some of them find it easier. You have to come to the conclusion as to what's really the critical issue in a case, and sometimes it's not what really has been argued as the critical issue. Lawyers have put in their arguments as to why, on the side of the appellant, why should the court find that the, the court being reviewed was wrong. On the part of the appellee, that they have a lot of arguments as to why the District Court was right, or why the result was right but the district court had the wrong reason. They present those points. But the lawyer's point of view is quite properly in that, an interest in his client prevailing in that case, he may not be very much interested in the generality of the legal principle that has to be applied. Sometimes a lawyer for an insurance company, for instance just as an example, may be as much interested in the principle that the court is going to announce because that principle may be applicable in a great number of cases that that lawyer is going to be interested in, or at least that his client will be interested in. Because insurance companies are in that business. For the most part, the lawyer is trying to prevail in that case for that client. So maybe he doesn't see the case in terms of the law as a general thing. The judge gets to see it in that way. The judge not only has to decide between arguments that the lawyers have advanced, but really, he's got to decide some issues of law. A lot of people, generally I mean non-lawyers, lay people, have the conception that an appeal is a device by which somebody can get a right result that that person didn't get in the trial court. This lay person maybe thinks that the Court of Appeals has a lot of scope in reaching what can be referred to as the right result. Which isn't true, really. You've got, the appellate court has to review for error that was done at the trial level. It does not have open season on the entire result. For instance, we are in review of a fact question. The District Court or the jury has decided the district court has entered a judgment on the basis of the verdict that says a certain conversation was had in which somebody agreed to something. In our review of it, we can't say “no, that wasn't the agreement.” The only way we can say it is if we can say that the district judge was clearly erroneous if the district judge made the finding, or that the jury had no evidence on which to base its verdict if it made that finding. So, we don't have the right to change that sort of part of the decision except on those very limited grounds. We've got to find legal error or we've got to affirm the decision. There are just all kinds of difficulties. I don't know that I can categorize it. sometimes you get a statute, and this is very true in the federal court because so much of the federal type of litigation depends upon your application of federal statutes, but you get a statute and you have a feeling that a particular result ought to come out a certain way, but you've got a statute that really doesn't say that. Can you construe that statute to achieve that result or are you just stuck with what the statute said and you can't come out the way that appeals to your sense of justice? If the statute says a certain thing has to happen, why that controls, unless you can say the statute itself is unconstitutional.

Q:          What did you find particularly satisfying while you were a judge in the seventh circuit?

A:          That's again not an easy question. You like to, in terms of getting your work done, you like to get through with a particular case and just be real confident in the result that you’ve reached. Confident in its rightness in the sense of being decided on the basis of the proper principles, that your legal principle that you've applied is the right one and you’ve gotten it right, and that the statute if it's a statute that governs it, that you've gotten really a sound interpretation. Sometimes you have to be less than 100% sure because you’ve been having trouble with this decision right down to the very last end. Until you decided that affirmance, you’ll say affirmance comes from the fact that a certain rule was correctly applied by the district judge, that's the right rule but you, and you think that's the better of the two arguments, but you still have to see that there is another side to it. But the more sure you are that you've done a decent job of it, have that satisfaction, that's what you like to feel about cases. There are great satisfactions in the interplay between yourself and your colleagues. Even the colleagues that may dissent in a particular case should have the feeling that you and that dissenter have understood each other.  And that each one has decided his way or expressed his view on a sound basis with legal underpinnings. You respect that person and you deal with them and you get along with them. There's a great satisfaction in that interpersonal relationship. And then of course there are friendships that grow out of these things. You are, you have a warmer relationship with some of your colleagues than you do with others because perhaps your personalities go together better or for whatever reasons that cause friendships in any sort of an area of work. Those are satisfactions that you get. And I feel great satisfactions in the personal relationships on both courts, the Wisconsin court and the court of appeals. As I've said about the conference part of it, maybe I could be a little happier if the conferences and the federal system were a little more meaningful, but that's just the way the tradition goes.

Q:          I'm gonna run out of tape in about 15 minutes, because that's about an hour and 15 minutes, so is there any particular thing that you'd like to talk about before I ask you another question, that we might not have covered?

A:          No, I don't think so. The only thing we haven't covered, and I don't think it's necessary at all, I thought maybe you might have been approaching this from the point of view of what I knew about Dane County or Madison.

Q:          Oh, I'd love to hear that too, but in an hour and a half at most, you just can't cover everything.

A:          It's just a matter of what aspect of the history you were…

Q:          People are much more interested to know about you and what you think then really what you, maybe memorable people that you practiced with, that sort of thing. I'm likely to ask you the final questions I usually ask everyone. What advice they would give or what they see, how the practice of law has changed? You can have your choice of question. One question I often ask is what advice do you give to people who are beginning judges today, as you've spent most of your career as a judge. Or beginning lawyers today. Or I might ask you about the most memorable people that you've met in your career. You get your choice what kind of a question. You might have time for both but I not sure. Which one would you prefer to answer?

A:          Well, it might be more fun in a way to talk about people.  

Q:          People love to hear about other people, too and that gives us other ideas. Let's talk about that. Some of the most memorable people you've met in your career.

A:          OK.

Q:          Can we talk a little about some of the more memorable people that you‘ve met in your extremely interesting career?

A:          Well, there've been a lot of interesting people so it's a little problem to sort out and talk about some of them. I always acknowledge what a lot I owe to my dad who was certainly a memorable person. A self-made man who didn't have any education beyond high school and became State of Wisconsin Chief Justice. Dan Grady who was a character all by himself for whom I worked in Portage. As I mentioned, Dan had these, his practice, it was built in large respect from people coming to him from all over the state to ask his opinion. He used to come into my office about every morning and ask me if I'd ever thought of a particular legal proposition, which most of the time, it never occurred to me there even was such a thing. I learned as time went on that usually he was finishing his morning cigar at that time and, coming in to talk to me, he was going to be able to leave the stub of that cigar in my ashtray. That aside, he did have that habit of raising these questions. Back in 1938, Julius Heil had been elected Governor and defeated Phil LaFollette. There was a movement to claim that Julius had spent too much money under the corrupt practices act of Wisconsin. If he'd violated that, why the court could have ousted him from his office. Dan came in one morning and he said, "Tom, did it ever occur to you if the Governor was ousted from office before he took office, before he was inaugurated, who would be Governor?" The logical possibles were the Lieutenant Governor, either the one that had been just elected or the one from before, or maybe the legislature, you could dream up that the legislature could name somebody, or maybe the Governor who had been such as Phil LaFollette in that instance, would carry over. And those were, I think, the three main possibilities that we discussed. And we chewed that out for an hour or so that morning. I don't remember what result we came to. But it didn't happen with Heil. He got himself inaugurated. He never was ousted, and actually got himself re-elected and served two terms. But in 1942, he didn't get re-elected. He was defeated by a progressive, Spike Loomis. And Spike had run in '40 and been defeated by Heil, and then he'd run in ‘42 and been elected. And this was back in the shoestring type campaigning that I had referred to, and maybe not all the resources in the world. Spike had literally worn himself out going to school districts and court houses and meetings all over the state. He contracted pneumonia and died before he, before inauguration. He died in early December of ‘42.

So the question that Dan and I had discussed was up.  Who was going to be governor? Would it be Julius Heil carryover, would it be the Lieutenant Governor who had just been elected, or actually it was the same one as had been, Walter Goodland. Or would the vacancy be filled some other way, by the legislature or something like that? So that exact question had now arisen. And who do you suppose represented Walter Goodland who was the successful guy in the, before it was decided the Supreme Court take original jurisdiction? The Supreme Court decided it. And who represented Walter Goodland who was successful? It was Dan Grady. Whether he got anything out of the long discussion or thought that he had, I don't know. That's one of my favorite Grady stories although there are lots of them.

Politics certainly got some interesting associations. Jim Doyle who was later judge of the district court here. A friend since university days. Politics and everything else being along the way. A memorable person. Gaylord Nelson, Bill Proxmire, who were Senators for a long time and whom I knew in the early democratic revitalization days. Horace Wilke who became Chief Justice of the Wisconsin Supreme Court. Died at an unseasonable age. Real interesting national figures. The ‘52 campaign, one of the compensations of being in that campaign certainly was a little association with Adlai Stevenson who was a memorable person all by himself. Memorable to meet and to be with on the basis that I was. Going to Milwaukee when Stevenson was here, at noon in Milwaukee and the evening on the campaign. And state candidates went along with him and Knute Minnow, a lawyer in Chicago, tells me that his assignment, he was in the open car, his assignment in those parades was to hold my feet so I wouldn't fall out the back of the car, Somebody else was holding Stevenson's feet in another car. Those associations were interesting and fun and are kept alive to a little extent, not a great deal, by a few letters, things of that nature.

Stevenson, quickest person in that way that I ever associated with, during that speech in the auditorium in Milwaukee that night, there was an explosion. And everybody thought it was a shot and everybody looked at Stevenson to see whether he was going to fall over. He was speaking, giving a speech at that moment. He didn't fall over and of course it developed it was a camera bulb, or something of that sort, of a reporter that had exploded. But there was a shot and there was that moment of silence and the people wondering what it was and looking at the guy on the platform and wondering what was going to happen to him. An interruption to his speech. There'd been a lot in the campaign about who was going to liberate Poland and so forth, that was one of the issues, talks in '48, issues talked about. Just like that, Stevenson came back and said, "Well, somebody has been liberated.” He was that way. In a later speech in Milwaukee when I was not running for anything, I was a lawyer at that time, but in order to keep peace in the party I was asked to be the one to introduce Stevenson at his speech, mid-term speech. I did. Just before we went on the platform, he retired back somewhere backstage and made some little changes in his talk. And one of the changes that he made, he was talking a little critical of Eisenhower, who was then President. He said Eisenhower was taking the high road and he was leaving.  I don't know if he said character assassination, but that was the idea, he was leaving the other part of it to the vice president, who of course was Richard Nixon. When the speech was delivered, he did not say he left, that Eisenhower left the character assassination or whatever to the vice president. What he said was, to Snow White. It brought down the house. That was around the hotel room afterwards when one of the newspaper reporters from I think the New York Times or something was trying to convince his editor who had an advance copy of the speech that Stevenson had actually said Snow White. But that's what he had said. And then there was the fact that Truman, President Truman stands out in many ways. My wife and I were, rode on the train with him from Sparta to Madison and Madison to Milwaukee in the 1948 campaign when nobody but Truman himself I guess expected him to win and he did. That was an experience. And then we got better acquainted with him later, and in the '52 campaign, had a little session in the oval office with him. He said “Now I want to help you, I don't want to hurt you. Would it help you or hurt you if you had your picture taken with me? Do it either way.” Thank God I said it would help me, because all he did was snap his fingers and from all entrances into the oval office newspaper photographers came in. What a terrible thing I'd have said if I'd said it would hurt me. We thought we were going to get a real inside story at that same meeting. He said, "Well, how's it going out in the country? How's the campaign going?" Somebody who was there, it may even have been Jim Doyle because he was there, said "Well, Mr. President, they're saying a lot about Potsdam disapproving." And Truman said "Potsdam, Potsdam, yeah. They should remember who was advising me at Potsdam.” And we all thought “Gee, we 're going to get a scoop here on why he thinks Eisenhower isn't living up to what he advised him or whatever.” He quick as a wink, he never followed that up. He changed. He said, "Ike was there.” And he said old Patton. And then he went on with a story about Patton. He said, "That guy wore, had four on each lapel and four on each sleeve and four on each holster. Count them up, that's 28. He says that's more stars than the President of the United States. The President only has 13.” In those days the seal just had the original 13 for the president. And he said "I made up my mind right then no goddamn general is going to have more stars than the President of the United States. The first thing I did when I got back here was to redesign the seal and the flag.” And he got up, he stood up and he went over and there's a flag that sits there next to the president's desk. He pulled it out and he said, "See? 13 are on the middle and 48 are outside. No general ever beat that one."

Q:          It’s been such a pleasure talking to you. This is going to be absolutely wonderful. Wish I could go longer, but that's all the longer the camera will go.

A:          It's how much the technique allows you.

Q:          I wish I had some other tape, but unfortunately that’s the only tape that I‘ve got with me. I’ve taken enough of your time, I think. This is still running, if you have any final remarks that you might like to make. I'd love to hear some more of the stories about the people that you you’ve met. You’ve been influential in so many people's lives, too.

A:          Well, anyway it's been fun.

Q:          It's been great fun.

A:          There's an oral history being made on the seventh circuit. A project of it. Collins, I don't know if you know Collins Fitzpatrick. He's a circuit executive. And he is interviewing various people. He has interviewed a number besides myself and I think some since. He has interviewed some of the older ones.  In fact, two of the older ones that he's interviewed have already passed on, it’s more court oriented, although with me he goes into some of this political background stuff.

Q:          That's all real interesting. We all consider that part of the Madison heritage and so much of it did take place there.

A:          The Collins thing, I mean mine is not complete. He did, some of it is. Theres bound books which he gave me, his copies of before I had any interviews, to see what type of stuff they were doing. As of now, I think we've basically completed unless there's something that he or I want to add. We're in the editing process and it's very slow going to get this tape typed. This is not video. It's purely audio. My secretary, I think, doesn't readily get at this. I've only seen a couple of segments of it. It's a small fraction. But I've done a lot of editing of that and some additions here and there where I touched upon something or have something that really was appropriate and should have been said, I just added it. That's at least my end is not yet complete. But it is going on.

A:          Our committee is trying to write a brief history of the Dane County Bar Association itself which should be, which is a project. We have a volunteer that’s taken it on. A retired gentleman who's just interested in history.  So the committee is trying to encourage that, get us some funds to help. Unfortunately, the Dane County Bar Association is very tight right now.