337 ..337 in my time it seemed as if the costs of public office were running so high that an officeholder had to be very rich or very poor to hold it. if he was rich, his predilections would usually run with his investments. if he was poor, he might be sorely tempted to become an adventurer. that is why I felt the salaries for public officials should be high, not miserly, but every effort to get a pay raise stirred up momentous opposition.
there probably has always been some corruption in Washington, DC. when I was there, the lobbies were well financed and active. big Business promised large sums to political parties and pretty much had their way - whether the Republicans or Democrats were in power. by the 1970s the industrial interests had 3.200 advisory committees in Washington and they were the watchdogs over the federal agencies. they waxed particularly strong under Richard Nixon, who upped the secret levy on corporate givers, who in turn exacted their prices.
one of the most powerful of these behind-the-scenes corporate advisory committees sa with the Bureau of the Budget, it would, for example, slash funds that would serve he conservation cause by cleaning up the rivers because of the increase in the costs of the industrial polluters. the control of that committee was so great that for years we had no monitoring of industrial poisons entering our waterways.
338 another device was the infiltration of industrial personnel into agency positions, one of the most notorious being the staffing of the pesticide Division of the Department of Agriculture with chemical company employees.
other, more subtle practices prevailed. Pentagon officials on retirement became officers of companies doing doing a big procurement business with the United States. how can a government official be vigilant to protect the public interest against these contractors if he knows that as a reward for friendly behavior he may one day become vice president of such a company and draw a huge salary in addition to his federal retirement pay? Forrest Service employees on retirement frequently become officers of lumber companies. how can an agency employee adequately represent 'We, the People' if his reward on retirement is to go with a company over which he is supposed to be a watchdog?
I debated this subject on television with General Omar Bradley after WW II. in the discussion I submitted that an officer who took such a post should give up his retirement pay. Brad held the opposite view. Bread, an honest person, saw absolutely nothing wrong with the practice. at the time he himself was retired and was a high officer in a company making large sales to the pentagon. I thought it was as wrong for him to do that as it would be for a member of the Securities and Exchange Commission to resign to become president of the New York Stock Exchange or for a commissioner on the Interstate Commerce Commission to leave his job to head a railroad or a member of the Federal Aviation Agency or the Civil Aeronautics Board to depart government service to head an airline. GOVERNMENT SERVICE, TO HAVE INTEGRITY, CAN NEVER BE THE STEPPING STONE TO PROFESSIONAL ADVANCEMENT. it is an end in and of itself.
General Bradley was hurt to the quick by my jibes....the system that regards men for serving 2 masters is inherently wrong.
in 1346 in England a law was passed that required judges to take an oath that they would not take a 'gift nor reward by themselves, nor by other privily nor apertly (def - openly, publicly), of any Man that hath to do before them by any Way, except Meat and Drink and that of small Value'. Canon 5 (C) (4) of the American Bar Association's Code of Professional Ethics reflects the same philosophy.
in the days of Queen Elizabeth, public officials were paid nominal
339 salaries and were expected to make up the difference on their own. the end result was that officials levied taxes, so to speak, on those wealthy enough to have favors to ask. consequently, the custom evolved of having in Parliament only members of the upper classes. endowed with riches. but a legislator with interests in commercial enterprises and financial institutions often has conflicting interests, for a bill regulating his empire might be good for the people but a setback to him and his investments.
the Nixon-Agnew regime reflected both crude and subtle corruption. the Agnew activities were those of a common crook - receiving kickbacks from contractors and not reporting the revenues as income. the Nixon activities, among others, ran to cutting income tax corners to profit a President. beyond that was the use of the Office of the President not 'to execute the laws faithfully', as required by the Constitution, but to badger, beat and destroy anyone who asserted a First Amendment right to disagree with the Administration or register a protest against its policies or acts. this was the first time in history that both President and Vice President polluted and desecrated their high positions of trust and public confidence.
Roger Cramption, a law clerk for Justice Burton in 1956 and 1957, was bright, conscientious, principled lawyer with a conservative cast of mind. he headed the Administrative Conferences for a few years and did a commendable job. he worked hard for the election of Nixon and especially for this re-election in 1972. he was rewarded by a position as Assistant Attorney General in the Department of Justice. after serving a few weeks, he was relieved of his job and in due course became Dean of the law school at Cornell. I asked him why he had been let go. he said that he was told that he was not sufficiently 'malleable' to suit the Administration.. principled men are not 'malleable' when it comes to questions of the proprieties of morality and of honesty. Nixon could not fulfill his manifest destiny if those around him were not 'malleable' enough to carry through his clandestine and unethical projects. the example of hones Roger Crampton is, in miniscule, the entire story of Nixon's life.
I first knew Nix in the 30s when he was a law student at Duke University. I had gone there on invitation to give a lecture to the law school. I talked about predatory practices in finance, with special emphasis upon the disclosures that emerged after the many autopsies of companies and syndicates following the 1929 crash, some years later
340 Nix told me that I had been an inspiration to him, that my lecture had affected his life. I did not ask in what way, for the uneasy thought crossed y mind that predatory practices had inspired him.
at the beginning of world War II Nix was an obscure lawyer in a vast pool of attorneys who worked for the Office of Price Administration. the person in charge was David Ginsburg, who has no recollection of the young lawyer shortly to start his climb up the political ladder. in 1946 the Republican candidate for Congress from the 12th District of California died and the committee called Nix to see if he was interested - and he was. his opponent in the race was Congressman Jerry Voorhis, a staunch liberal.
the Bill of Rights and the Jeffersonian tradition were a part of his very being. he had served on the House Un-American Activities Committee (HUAC) and, as a member, had protested some of its most extreme and shocking tactics. in Congress from 19376, he had promoted Social Security, unemployment insurance, legislation protective of labor, First Amendment rights of witnesses called before investigative committees, and the right of those people to have and enjoy due process of law as respects the mode of the investigation, the right of counsel and the like.
RMN took his political formula from Murray Chotiner, a Los Angeles lawyer. the Murray Chotiner method was,
first, to discredit one's opponent in every possible way;
second, to associate one's opponent with a subversive or treasonous program;
third, always to attack , never defend and
fourth, if your opponent tries to defend himself against untrue charges, whimper and accuse him of using unfair political tactics when he calls you a liar.
356 prior to my time, impeachment proceedings as respects members of the Court had been started only against Chase - and these failed. 2 attempts against me also failed. I do not attribute predestination to this line of Justices. but i do suggest that if my record is to be broken, the successor will have to be prepared to turn back 3 times the assaults on him. I would remind him that the cause is great - the independence of the judiciary that in many ways sets us apart.
368 ...I told the Conference what my principles were:
1. I would not speak to an industry group for expenses or for a fee, because they would be apt to have cases coming to the Court.
2. University groups or lecture forums were different - they were not litigants; the propriety or what a Justice did was dependent on what he said.
369 3. some members of eh Court - notably Warren, Stewart and Marshall - went overseas at the State Department's expense. I thought that was improper, as it implicated a Justice in the Executive's overseas policies. I traveled at my own expense.
the Court was divided and decided to defer action. I had prepared a dissent that read as follows:
'I have long favored full disclosure by all elected or appointed federal officials of the amount of their income and the source of it. I have never owned any stocks or bonds or other securities - apart from federal government bonds - since I have been on the Court. I indeed disposed of the small amount of government bonds I owned, as the Government is the largest litigator in the federal courts. the full disclosure requirements of the Judicial Conference therefore meet with my approval.
I strongly oppose the permit system by which one group of judges determines whether it is in the 'public interest' for a judge to write a book or article or give a lecture or make a speech.
that system of surveillance is plainly unconstitutional for the reasons stated by Mr. Justice Black dissenting in Chandler V. Judicial Council, 382 US 1003, 1004.
I have no plan or project which would collide with the new permit system. but I protest with all my being the principle of surveillance, control and censorship now saddled on judges. apart from constitutional procedures for disciplining them, judges can no more be controlled respecting their thoughts and ideas than can preachers, editors, or authors. what judges do with their private lives is their own business.
while the Court did not adopt Warren's recommendation, the Judicial Conference (representing the circuit and district judges) did adopt it in substance. each circuit and district judge was to disclose his income twice a year. from stocks and bonds? No. from trust funds? No. from real estate or other market transactions? No. the only disclosure required was of income from lectures or income from book royalties. (note - Douglas had written many books.)
370 Hugo Black (another Justice), true to principle, refused to file I felt philosophically the same way, but i was under attack and the whole Nix power was out to remove me. So I compromised -I did file; but with each filing I protested the discrimination being shown against some judges and the favor being shown the rich judges who fattened on dividends from stocks, on interest from bonds, on capital gains and on real estate investments.
when in June 1975, I received the John Muir Award from the Sierra Club I raise the question of whether acceptance of that award should disqualify me from sitting as a judge in any future Sierra Club case. I said,
I have resolved that it should not, so long as I have had nothing whatsoever to do with any of these cases. at times in the past Mrs. Douglas and I have hiked or in other ways protested certain government projects. in such cases the protester should not sit as judge because he has at least a partial commitment on the merits. the question of conflict of interest is not always easy to resolve. the disclosure rules covering federal judge's income from stock investments, in trading in securities, or in interest in banks. he must, however, disclose all income for books, articles, reviews and the like. what rational difference can be made between the two is difficult to state. income, whether in royalties or in dividends from a particular company would be relevant only if the judge contemplated sitting in the case.
if we turn the clock back 100 years and find the future of a federal judge in the slave trade, disclosure of that fact would have had an acute bearing on his fitness to sit in slave cases. I know a judge whose family owned practically the entire equity in a railroad, yet he sat in cases involving that railroad and so far as is apparent he did a fair and impartial joy. but the present disclosure rules do not require disclosure of the nature of the interest in business or industrial enterprises - only the amount of income from them regardless of their number or size.
if the target is the prejudices of the judge, what he writes or puts into speeches is relevant, but producing a Zane Grey movie would hardly be revealing in that respect. if prejudice
371 of the judge were the target, then the category of his investments would be the most revealing. I was once a director of the Sierra Club. I received no salary and I ceased being a member because the meetings were usually in San Francisco and I could not attend many meetings.
being a director made me realize that my views as to policy in environmental matters do not always jibe with those of others, but my views are patterned after models. John Muir was a powerful influence in my early years, so were Gifford Pinchot, Clarence Darrow, Hiram Johnson, and William Borah. but I would not dream of stepping out of a case merely because Borah's name or Darrow's name was on the brief. a lawyer who is friendly with someone on the bench carries a heavy burden of proving he is right on the merits. for a friend on the bench bends over backwards to take that factor out of his decision.
the appearance of fairness is to me as important as fairness itself. for example, television and radio programs often pay small fees to those who appear on them. my practice has been not to accept them, no matter how small. the Court sits in judgment on FCC orders that are very important to the industry and it is important that no one with the power of final decisions have a financial interest with the applicant.
the New Testament was a powerful influence in my life; so was Thorstein Veglen, such prejudices are the reason why confirmation by the Senate is important in the federal system. they are often components in the forces leading to a particular decision. yet it would have been a gross erosion of judicial independence to have undertaken to drive Hugo Blackout of a case involving First Amendment rights merely because he felt passionately that the First Amendment was the heart of our constitutional system.
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