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Interview with: Ben C. Connally
Date: April 2, 1975
Archive Number: OH 030
I: 00:17 Judge Connally, I want to thank you for taking the time to talk with me this morning, and I do have some questions that I’d like to jump right into.
BC: Well, I’m glad to visit with you and afford you this interview if you feel that it will be of any benefit in your project. As I’ve indicated to you earlier and now want to make of record, I have not done any research—I have not gone back over our records of the court or of my participation in cases about which you may see fit to ask me. And what I’m saying from here on out is simply off the top of my hat in so far as dates or specifics are concerned. They may be somewhat inaccurate in so far as the generalizations. I think you can assume that that’s the views that I entertain on these matters.
I: Well, the type of questions that I’ll be asking you wont be the type that you’ll really—
I: —have had to do any research on. One of the areas of interest, the method of appointing federal judges—most people are aware of the procedures according to the law that’s involved, but I was wondering if we might get some personal reflections on it. What is involved, behind the scenes, in the appointment of a federal judge?
BC: What is involved behind the scenes I think is simply this, you know of course that the Constitution provides that the president appoints the judges and the justices of the Supreme Court with the advice and consent of the Senate. (clock chimes) Obviously the president is not personally acquainted with those who ultimately are appointed except perhaps in very rare instances. Realistically it works like this, these appointments are what are known in the trade as patronage appointments, by which I mean that barring some unusual circumstance, the United States Senators from the state—if they are of the same political party as the president, that is if they are of the party in power—recommend to the president a name, and in the normal course of events, unless there is some reason to the contrary, that person is the nominee.
Now that’s relatively simple if you have 2 Republican senators from Texas for example, and if there’s Republican administration, as is presently the case. Of course that isn’t true—we have 1 Republican senator, Senator Tower, and 1 Democrat, Senator Bentsen. In those circumstances the way it works is this, the Republican senator actually makes the recommendation. If the other senator of the contrary political party has any real personal objection, there is a practice in the United States Senate that—except in most exceptional cases—the personal objection of the other senator will be recognized, and that particular individual will not be confirmed. And anticipating that, normally, is not even nominated by the president. Actually, sort of, behind the scenes, if the senators are of diverse parties, the senator of the party in power—Senator Tower now—I believe would consult informally with Senator Bentsen. He would get his tacit approval of 1 or 2 or 3 persons and the—Senator Tower would then make his recommendation to the president. An FBI check in meticulous detail is then initiated by the department of justice. They find out if the appointee has any skeletons in his closet, if there’s any question whatsoever of disloyalty or prior problems with Internal Revenue Service, things of that sort. And if he’s got a clean bill of health, the president sends that name to the Senate.
05:07 There are exceptions—I have known over the years of a number of cases where it hasn’t worked that way. The president in some instances will have an individual whom he personally wants to appoint irrespective of the recommendation of the senators from his party, and of course he has the power to do so. Those senators can, if they want to go all out, usually block the confirmation. The practice is, however, that where the president has a personal interest in an individual, that normally is not done. They have a, sort of, unwritten rule in the United States Senate which they call the senatorial privilege, I believe. And if a senator from the state of Texas for example—in connection with an appointment in the state of Texas—if one of the Texas senators gets up on the floor of the Senate and said, “This appointment is personally obnoxious to me,” as a, sort of, rule of courtesy that the rest of the senators will say, “Okay Mr. President, get somebody else.” Usually that is enough to defeat that confirmation. That’s why I said that in the routine case, the senators—even though of adverse parties normally—sort of, have a tacit understanding and will clear a suggested name before it goes as far as to be formally nominated and presented to the Senate for confirmation. That answer your question?
I: Sure does.
BC: Well, I might go a little farther if your interested. Suppose you don’t have a Republican senator from Texas at all—both senators from the different party than the administration. That then depends, sort of, on party practice. The National Committeeman under the Republican administration—that of course would be the Republican National Committeeman—is usually the one that makes the selection. Perhaps there might be a Republican congressman from that state who had considerable influence, in which event his recommendation would carry a great deal of weight. But that’s usually the way it works in practice.
I: 07:48 Are there—approximately how much experience is a candidate for federal judgeship expected to have? Now, in your own case, of course, you had a great deal of experience.
BC: Well, as a matter of fact, I didn’t have so much. I was appointed when I was 39, and I’d been practicing law for about 15 years with about 4 years out for military service. I think now there is a tendency to appoint younger judges than was the case 25 years ago when I was appointed. At that time, usually the appointee would be in the range of 50 to 55. We have had some considerably older—a few whose age was such a factor that serious question was given to their confirmation in the Senate. But in those days, usually, it was considered that a good deal of experience was highly desirable. Presently, I see a tendency to appoint younger people. That is due perhaps to the fact that we have a very favorable retirement system. If a judge has served for 10 years and reaches 70 years of age he can retire, and he continues to draw the salary of the office as long as he lives. He can work or not as he elects. That is what we call senior judge status. If he has served for as much as 15 years on reaching age 65 he can do the same thing. So I think it is, sort of, a present policy to appoint younger men on the theory that the government doesn’t get its money’s worth out of a judge who is, let us say 55, serves until 70 and then is retired for life, and the government pays him the same salary. The government hasn’t quite gotten its money’s worth. So I see a tendency to appoint younger people who will put in perhaps 20 years as active judges before they become eligible for retirement.
I: Have you noticed any—a difference or effect that appointment of younger men is having on the judiciary system?
BC: I do not believe I could see any difference between the philosophy, the theory, the net result between younger judges and older judges. Of course, I put myself in the category of an older judge—I’m now a few months over 65. I took advantage of the provision of retiring or taking senior status after 15 years of service on reaching age 65. I suppose all of us after serving a good many years on the court perhaps develop our own philosophy, or own theory, our own method of handling cases—the way we think about cases. But I think perhaps that is more from after we’ve served on the court a good many years rather than a distinction between a younger judge, as he comes aboard with us, and what I’ll call a middle-aged judge, as he comes aboard. I don’t see any distinction there, no.
I: Continuing along in this discussion, how is a new judge initiated into the system? Is he—do the older judges have an influence over him?
BC: 11:47 Well, of course that depends on the personalities concerned. When I was appointed we only had 2 judges in this district—Judge T. M. Kennerly and Judge Allen B Hannay. At the time I was appointed there were 2 vacancies. The work of the district had become of such size that a statute was passed creating 2 additional vacancies in this district. Judge James V. Allred and I were appointed on the same day in 1949. He took up residence in Corpus Christi and handled the 3, what we call, south Texas divisions—handled all the work in Corpus Christi, in Brownsville, and Laredo. The other 3 judges—Judge Kennerly, Judge Hannay, and I resided in Houston and handled the Houston docket—which of course has always been very heavy—plus Galveston, plus Victoria—which is relatively light. But I don’t know that I could say whether the philosophy of the older judges influences a young, new appointee. Of course we try and be of all the assistance we can mechanically, that sort of thing. In my case, having retired as of the first of the year—or more accurately on the 28th of December of last year because that happened to be my birthday—the president has sent in the name of a young man who resides in Laredo, Texas. He’s practiced before me for many years and I know him quite well, and of course I expect to give him all the help that I can. As far as trying to tell him how to decide his cases or things of that sort, obviously that is not included. There are many areas in which, of course, we can be of help—the mechanics, what his staff can consist of, what books to buy, the space that the government furnishes him for an office, and how he goes about getting his stationary and supplies, and things of that sort. Sure, we try and give him all the help we can.
I: What is your function now as a senior judge? Does this carry authority in your dealings with other— (both talking at once; unintelligible)
BC: I’m still a judge of this court and have all of the authority that goes with it. I’m no longer the chief judge and I’m not an active judge. I’m what we call on senior status. You are relieved, in senior status, of whatever moral obligation or legal, I suppose—of whatever obligation you had to carry your own load. I can work as much or as little as I elect. That comes about, of course, because the court is getting a replacement for me. The new man will be in the harness and supposed to carry his—pull his weight. And what work they get out of me will be gratis—so much the better. (laughs) Actually, I hope to work about 75% or 80% of the time. I hope to be relieved of the obligation to handle a particular docket, and to be of assistance to the other judges of the district when they happen to be snowed under at a particular time. One or 2 of our judges through a chain of circumstances are more inundated with work than some of the others. I expect first to help them out—take 50 or 100 cases off of their docket and set them down and dispose of them myself—things of that sort. Also incidentally, you have a greater freedom to sit outside of the district. You can sit in other districts or in other circuits if you wish and help out where needed.
I: What is the role of the chief judge?
BC: 16:21 Well, I’ve just finished about 12 or 13 years as chief judge of this district. The statutes, of course, set out in a general way what the chief judges duties are. You are the administrative head of the district. It has been my experience, I believe that most of those who have served as chief judge of a metropolitan district with 7 or 8 or more judges—I believe they would have same the experience that I have. That is that you have such demands on your time for administrative matters, for procedural matters, for matters that are not directly connected with your duties as a judge—that is, I mean by that the trial of cases—that after a while it becomes very, very tiresome and annoying, and your ability to sit and to try cases is diminished simply because of the demands on your time. For example, when additional space is needed, when additional personnel for any of our offices—the probation service, the clerk’s office, new magistrates, new bankruptcy judges—all of those are under our supervision and control. When our work becomes heavier, you need more deputy clerks. When you have more criminals whom have been convicted and you’ve given them probation, you need more probation officers. There’s certain procedures, of course, that we’ve got to go through before they can be allotted to us. The government’s go to—the Congress has to appropriate the money, the positions have to be authorized, the space has to be found. And in a building like this, for example, that means somebody else has got to be moved out. And all of those matters fall to the lot of the chief judge simply because he’s the administrative head of the court. And in an active court, sitting as we do in 6 different cities with judges living and sitting elsewhere—namely Corpus Christi and Brownsville as of now, and my successor will live in Laredo—it can be a very time consuming sort of thing, and detracts from your ability to carry your own weight as a judge. Most chief judges, particularly of larger districts, have been obliged to reduce their own case load by—very substantially. I am told that in some of the quite large districts—New York city—the chief judge really has time to do a relatively small amount of trial work.
I: 19:49 Are there opportunities for administrative innovation in the position of chief judge?
BC: Yes, of course we all have certain local practices, I suppose. How the cases are divided among the judges, that is one of the duties of the chief judge, and other things of that sort. We have what is known as the Conference of Metropolitan Chief Judges, that is the chief judge of all the districts which have 5 or more—or perhaps it’s 6 or more, I believe it’s 6 or more judges. That group meets about twice a year and, of course, talk over our several problems and try to get ideas from each other, and see if they have any practices or procedures that are more efficient and more time saving, and so forth, than ours.
The problem with the chief judgeship actually, and I think it really calls for some statutory changes, is simply this, the chief judge is charged with the responsibility of running the court, but under the statutes he really has no power to do so. Now, I’m not suggesting that it would be advisable to have a chief judge who was a dictator and never consulted with the other judges of the district. But on the other hand it is a waste of time every time a matter arises, relatively insignificant, to assemble the judges and discuss it, and that sort of thing. In practice it usually depends on the relation between the chief judge and the others of his district. If the relations are good, if they have confidence in him, he does a lot of the work, sort of, by tacit agreement of all concerned without discussing it. On matters of importance, of course we do discuss it.
In our situation here in Houston, I initiated many years ago a practice of having the 6 of us who live here take lunch together once a week on every Thursday. We all go to lunch for perhaps 30 minutes, we discuss our problems, and I would tell the other judges—I’d maintain a little agenda and whatever development there had been during the week. Much less frequently, we had the judges from Corpus and Brownsville to come in and visit with us every 2 or 3 months or something like that—we had a conference of all the judges of the district.
But actually, the judge is charged with the responsibility. He is held accountable to others for the operation of the court. If you get behind in your work—if some poor fellow charged with a crime stays in jail too long and all—it’s the chief judge who must explain and account for that, while he actually may have had nothing to do with the case, the problems may lie entirely with someone else. That’s why I say you’ve got a lot of responsibility but very little independent power. Most of the statutes that say the chief judge will do this or will do that say, “With concurrence of the court” or something of that sort, you see.
I: Perhaps we can move away from the problems of the administrative area and get back to the judgeship in the narrowest sense of the term. I’d like to talk with you for a few moments about the nature of federalism and how you have seen it change, if it has, since your appointment. Have you seen any changes in the expansion of federal power as seen through the courts?
BC: Oh, goodness yes. In 25—of course, that has been an increasing concept. You’re, I’m sure, a better historian than I am, but you’ll remember when the Constitution was adopted what, merely a few hundred years ago. The major objection was that too much power was being given to this new federal government that nobody knew anything about, and that the states wanted to retain the greater part of the power to run their own affairs. The Constitution provided that all powers not expressly given to the federal government are retained by the states. Almost ever since the document was adopted we have seen that particular provision eroded away. And as we’ve become a more populous and more industrialized society—as we have seen our cities grown and people live in closer proximity to each other—we have seen these changes to where really the states, in my judgment, have very little power anymore, and the federal government has practically taken over all of those areas which 100 years ago the states exercised. Is that enough on that?
I: 25:39 Well, I’m going to follow it through and ask you about the impact or the influence of the Warren Court and its decisions. Has it significantly broadened the scope of federal protection, for example, of individuals?
BC: Oh, I could talk to you from now until this time next Wednesday about—on that subject. We speak of the Warren Court, it’s generally considered it had been very liberal in the sense that they made many, many drastic changes in our—particularly in the administration of criminal justice. Actually, in my judgment, that simply was the culmination of a trend which perhaps had started years before. Mr. Chief Justice Warren was a most personable, pleasant individual. He was the sort of person that you couldn’t help but like personally, whether you agreed with his philosophy and his decisions or not. And in my own judgment, when he became chief justice, that fact—his personality—perhaps was persuasive in many of the matters that came before the court. Of course, he had just 1 vote when you get right down to brass tacks, but the court was pretty evenly divided at that time. And you would get some decisions that were pretty liberal and some that were considerably less liberal prior to his appointment. After that we saw, what I would call, nothing but a series of opinions designed, I think, to protect what we consider as individual rights—the right of an individual as distinguished from the rights of society.
Looking at the administration of criminal justice, of course, as is true in every other question that’s presented in our court, you have a balancing of interests. Dean Roscoe Pound of Harvard Law School, who was the greatest professor it was ever my privilege to know or to under whom I had an opportunity to study, defined law in the final analysis as a balancing of interests. Many people don’t quite see that in connection with a criminal case. Here’s some fellow that’s charged with a serious crime, and it is very easy to say that all of his constitutional rights must be protected. And I think it’s safe to say that no judge at least, and probably no lawyer, would ever deny the truth of that statement. He is entitled to have his constitutional rights protected. The other side of the coin, the balancing of interests, is the general public. Their constitutional right to be protected against a violent person, a criminal who may have committed murder, robbery, hijacking, and things of that sort. It isn’t a one-way street. And when you say that this man rights have been infringed and we must turn him lose and not convict him of this crime, then you, to the very same degree that you enlarge on what we have thought his rights consisted of--when you enlarge his individual rights, to the same degree you decrease the constitutional right of every other person in society to be protected. It’s the obligation of the government to protect us from predatory-type individuals.
30:18 And in the final analysis as I see it, what the Warren Court did—and perhaps it’s not fair to attribute it all to the Warren Court, but that’s normally done, we use that term in that way—was to drastically increase the so-called constitutional rights of the individual charged in criminal cases. The court during that period reversed in a number of cases, some of relatively recent origin, which the same court had decided within 8 or 10 or 15 or 20 years establishing what the law was. And perhaps that might have been the law since the founding of the Republic, but they would simply rewrite it, and because the majority of the court simply had the votes, that became the law from there on out.
You’ve heard a great deal about the Miranda decision—I might mention that to you. Everybody that’s charged with a crime when he’s arrested now, is or should be given his—what we call his Miranda warning. He is told, “You’re under arrest. It’s my duty to advise you that you do not have to make any statement. Any statement that you do make can be used against you. You’re entitled to have a lawyer present at the questioning if you want to answer any questions. If you can’t afford a lawyer, the judge or the magistrate will appoint a lawyer to represent you.” And what the Miranda—well, I’ll start over this way. It has been the law for time and memorial, that a statement which a defendant makes—a confession which he gives, was not admissible if it was involuntarily given. Now, 30 or 40 or 50 years ago, it was not unusual when a person was arrested for a serious crime, and let us use as an illustration (clock chimes) some rural community up in central Texas for example. The sheriff has strong reason to believe that this man is guilty but he won’t admit it. Those of us that have lived here are aware of the fact that it was not unusual for the sheriff to take him out in the back end of the jail and work him over with a piece of rubber hose or something like that, and the guy would ultimately sign a confession. No one, so far as I know, has ever considered that a confession exacted from a person under those circumstances should be used against him. So voluntariness of a statement is acceptable—everybody, I think, would concede, but a statement must be voluntary.
33:47 But what the Warren Court did in Miranda is to, in my judgment, forget about the question as to whether in truth and in fact a statement was voluntary, and to set out 4 or 5 of these specific warnings that must be administered to the defendant. And now in practice, law enforcement officers carry a little card around with them on which this is printed so they don’t leave out anything. And if they didn’t have the little card--if they warn the defendant that, “He doesn’t have to make a statement and any statement can be used against him, and that he may have a lawyer present at the interrogation if he wants,” but they forget to tell him that, “If you’re an indigent and can’t afford to have a lawyer, the court will appoint one for you—“ they fail to touch one of the bases so to speak—anything the man says thereafter cannot be used.
Now take a situation—again we’ll assume a rural county in central Texas—a serious crime is committed, a defendant is arrested. The sheriff gives him his warning, but he fails to touch one of the bases. He doesn’t lay a hand on the man—he doesn’t beat him up or get him off in a corner and sweat him or anything of that sort, but the guy makes a confession. He tells the sheriff where he—where the body is buried, he tells him where he threw the pistol with which he committed the crime. The sheriff goes out there and finds the body and he finds the pistol, and proves to a moral certainty that this is the guilty man. But nevertheless that can’t be used because that stemmed from the statement that the man made. And while in truth and in fact, it may have been entirely voluntary—nobody exerted any pressure, physical or psychological or any other on this defendant. Nevertheless, because you didn’t go through the mechanical procedure of giving him all of his points—because some sheriff who perhaps hadn’t read the latest Supreme Court decision wasn’t fully alert to that—a murderer may go free. That is an example of, where I say, that in their zeal to protect the constitutional rights of a criminal defendant, many lawyers and many judges think they went much too far and infringed on the constitutional right of the rest of us to be protected against a defendant of that sort.
I: Anyone listening to this tape would, I’m sure, be disappointed with me if I didn’t ask you the next question that’s related to that, which deals with the death penalty. How do you feel about that? Do you think the court again, perhaps went to far for the protection of individuals?
BC: Well, I haven’t read that opinion right recently. If I’d known you were going to question me about that, I would have refreshed my recollection. My criticism of the court—if I use that word, and perhaps that’s an unfortunate choice of terms because it is not for me as a judge of an inferior court to be critical. We accept these opinions whether we agree with them or not—we undertake to follow them to the letter, but in so far as our personal views, I take it that I still have the right to entertain them, and I do. The basis of that opinion, as I remember it, was that the death penalty, as utilized in the courts, was so unequal and so uncertain that it—in it’s application rather than in the statutory provision itself, that it was unconstitutional. They would—for example, one person who committed a serious murder might be given life in prison. Another who committed a—any murder of course is serious, but another person where there were perhaps some extenuating influences, nevertheless might receive the death penalty. My reaction to an opinion of that sort is that that isn’t an indictment of the death penalty as such, that’s actually an indictment of our jury system.
39:04 You know and I know, and everybody else who reads the papers or knows what goes on in a court knows, that juries are not consistent. We have seen cases where a person with what we now consider to be a relatively insignificant offense—he might have 2 or 3 marijuana cigarettes in his pocket—might be sentenced to 15 or 20 years in the penitentiary by the jury. Other jurors who don’t consider it very important, would give the guy a probation and he’d never serve a day in jail. That simply means that the jurors are human beings. They are not in consistent in the view they take as to the seriousness of a crime, but that don’t mean that the death penalty, as such, was unconstitutional.
Many lawyers and others who disagree with that opinion point to the great increase in the murder rate. Of course, I don’t know whether that is properly attributable to the fact the death penalty was abolished by that opinion or not. It is argued, if a man goes in to stick up a all night grocery store or a filling station—there’s no one there except the robber and the operator of the store—he’s inclined to kill the operator and destroy the only witness to his identity because he’s not risking anything more than a term in the penitentiary, which he risks anyway. And he doesn’t face the possibility of execution if he’s apprehended, so he decreases his chance of being caught and convicted. We’ve seen a great many of those here in our city—we read of something like that almost every day. Whether that’s—whether the criminals, the robbers, the murders are sufficiently sophisticated to know what the Supreme Court has done, I don’t know. But it does seem to me, that we have a great deal more cases of the kind. Perhaps we would have had them anyway, that’s speculation. I can’t answer anymore definitely.
I: Well that’s certainly adequate enough. I’d like to go on to an area involving the decision making process, the—perhaps a better way to put it would be the mental process of a judge in reaching a decision. I’m referring perhaps to your own experience with Ross versus Houston, which was a significant decision, and which I’m sure at the time you were aware that it would have an impact on the community.
BC: Oh well, of course the Houston school desegregation case was unusual type litigation. One city, thank God, can’t have more than one case of that kind, certainly, at a time. And that’s sort of a unique situation. Are you asking me particularly about that case?
I: 42:46 Yes, not the specifics of course, but was there—well, for example, the newspaper—whether it was a sensational comment or not—remarked that you paced the floor at night trying to make a decision in this case realizing it was important and you were taking various things into consideration. And that’s what I’d like to ask you.
I: What considerations were involved and—?
BC: —I’m not a floor pacer, and if that was in the newspaper, it was the result of the imagination of some creative or inventive reporter or columnists. Of course, you must project yourself back, gee, almost 20 years ago now. When did the thing—about ’56 as I recall. Would that be right?
I: Approximately, yes.
BC: Some 17 or 18 years ago, and the integration of the schools had very definitely not been accepted by popular opinion. We’d had Little Rock where the National Guard was called out and troops with bayonets were maintaining order. We’d had the situation in a—was it Mississippi?
BC: Where the governor stood in front of the university and said, “No black shall ever pass through the doors as a student” or something of that sort. Wasn’t that Wallace?
I: I think—
BC: If it was Wallace of course it wasn’t Mississippi.
BC: 44:35 But at any event, we had instances like that throughout the country. You want me closer to this thing? (recorder jostled) Houston of course was, and I suppose still is, the largest school district in the South. We had lots of problems, we had lots of feeling. I approached the matter, I suppose, in this light. The Supreme Court had laid down certain requirements. That was the law of the land and it was my responsibility to carry it into effect in Houston, and I undertook to do so. I was not blind to the fact, however, that this was a very disruptive—or it was calculated to be a disruptive situation. Of course, I’d seen what had happened in some other states. It was a very emotional issue. People felt very, very strongly. You wouldn’t know now, where integration has been accepted, how people felt. I got threatening letters, phone calls, things like that for months or perhaps for several years. Every time there’d be something new in the newspapers about it, I’d have to modify an order or something, it would start over again. I did, however, try to make the administration of this dose of medicine as palatable as possible under the circumstances. I tried to give Houston a little time to reflect on it and to adapt to it, rather than ordering it in to effect over night.
For a while, we tried what we called the freedom-of-choice plan. Of course, that is sort of ancient history now. But it seemed to me at the time—and as a matter of fact it seems to me now—an entirely fair and constitutional solution. Rather than saying, as we did, that because you’re a black child you can’t go to this particular school—which had been the situation before—and contrary to what we do now, saying because you’re a black child, you’ve got to go to this school because they don’t have enough blacks over there and your body has got to be used to increase the ratio, we took what, I thought, was a very common sense method, and gave the children or the parents of the children the right to go to whatever school they wanted to. If a black child wanted to go to an all white school he could do so. If he wanted to go to a school that offered a particular course of training that appealed to him, he could do that. And the same for the whites. That of course lasted—as a matter of fact, I’m not sure we ever put that into effect. If we didn’t, it was thoroughly discussed among the lawyers. And it’s my recollection that for perhaps a year or so we did have that plan, but it’s been a long time now. We’ve had lots of changes and I can’t be certain. But in those early days it was a very touchy situation. People felt very strongly. Many of my personal friends, that every time you’d see them at a party, they want to get you off in the corner and say, “Why are you doing this to us? You’ve been our friend and you’re not a bad sort of fellow otherwise, and why are you doing it?” Not recognizing that the law of the land required that it be done, and also not recognizing, as I’ve said, that I thought one service I could make was to make it—was to relieve the shock as best I could. And I tried to do so.
I: 49:37 I appreciate you answering that question because I think many people might have the misconception that a judge simply sits on the bench and hands down decrees without considering the human aspects of it. That’s why I wanted to go back on that case.
BC: Well, I was very sympathetic to both the white and the black children. I must say, that in all candor, that I feel like in many instances they have been used as pawns by some of the powers and forces that have been exerted in this thing. The Houston case started out by a Houston black child or I believe 2—1 or 2, it doesn’t matter—who lived here. They were represented by a Houston black lawyer. I had respect for him. He made a scholarly presentation. I might digress and say that by saying this, I do not mean to reflect on the other lawyers that have represented the plaintiff since. But the point I am making is in those days, it was a local problem. It was not very long before the plaintiff’s case was taken over by the National Association for the Advancement of Colored People out of New York. And while a Houston lawyer was of council, he seemed unable to or unwilling to discuss the case with the other lawyers and with me, to make any agreements, or to move it along except when the—an attorney from the New York office of the NAACP was here to hold his hand. And in truth and in fact, what has happened since is that the plaintiff’s case has been represented out of New York by the NAACP office there. I don’t believe they are conversant or particularly sympathetic to any local problems in Houston. It was there purpose, as I see it, to bring about an integration of the schools—whether the whites wanted it, whether the black wanted it, whether the browns wanted it, or anything else. And that has not made the situation any simpler or easier to work with.
I: Well, I just have a couple of more questions left. I don’t want to infringe on your time. One of them is the role of the judicial activist in shaping changes. Is there such a thing as a judicial activist? Have you seen this in operation during your years on the bench?
BC: 52:56 Well, of course, you can’t close your eyes to the facts that some judges appear, at least—and of course, that’s all I have to go on is appearances, what they do—to draw my conclusions as to why they do it from what they do—seem to be reformers at heart. Some judges seem to take the position that they can and should exercise the power that their position gives them to right what they conceive to be the social and economic wrongs of our present society. I think that’s what the term activist normally means or what it is used to mean. Is that what you require? Oh, certainly anyone who reads the papers would recognize that some judges seem to feel like it is their God-given right, duty, and obligation to correct everything which they consider to be a social or an economic wrong. They seem to reach out for authority and to initiate new processes and procedures for carrying it into effect that are certainly of questionable validity. I do not undertake to pass judgment on those persons if there are those that meet that description. They hold their office, and I hold mine, and I don’t profess to tell them how they should do their judging any more than I want them to tell me how I should do mine. But unquestionably, there are judges on the bench who consider their office as a means to correct what they consider to be social problems in the land, yes. I don’t think anybody can deny that if they read newspapers.
I: Following along with that point—and you’ve already touched on this in other questions—I’d like to ask you this. One of—a French observer in the 1840s noted that, or at least concluded that, the aristocracy in America consisted of the federal judiciary. And not long ago in an interview with a state district court judge, he mentioned—perhaps with a little envy—that the most powerful position in the United States was the federal judiciary. How do you feel about that? Do you feel that autocratic or powerful?
BC: Well, a statement like that, of course, has to be taken in perspective. For the inferior courts—the district court, the court of appeals—of course that’s not true. Everything that I do is subject to review, first by the court of appeals. And everything that they do, as well as everything I do, is subject to review by the Supreme Court. You were asking me about the Warren Court a while ago, and you also were asking me about judicial activists. In the last 25 years, I will grant you, there have been instances where it seemed to me the Supreme Court of the United States was exercising its power to reach out and settle what I, at least, had considered social or economic problems that the relief of which should be considered by the Congress. But as there is no appeal from the Supreme Court, perhaps that body is the most powerful in the land.
If you were speaking to a state judge friend and he made that statement, and if he were referring to our court—that is at the trial level—I would suspect that he had in mind the type of situation or the type of jurisdiction, perhaps I should say, that has been forced upon us by certain Supreme Court decisions. For example, 25 years ago when I came on the bench, we had few if any habeas corpus cases filed by state prisoners. Back in the early—well, not so far in the early days. I suppose 40 years ago—well, I begin over again. Habeas corpus as you know is a writ of the most ancient backgrounds—most respected—utilized in England to control the powers of the king. It means literally you have the body—habeas corpus. And it directs the warden of a penitentiary or the county sheriff who has a prisoner in jail—it says to him, “You have the body, produce the body in court so that the court may determine whether you properly hold him in custody.”
59:35 When I was going to law school and in the years that I practiced law, the warden of the penitentiary or the sheriff in that situation would bring the body of the defendant—of the prisoner into court, and what would be his justification for holding the man. He would present a valid final order of a court sentencing this man to 5 years in the penitentiary, for example. The case had been tried in the state court. If there had been an appeal, it would have been affirmed by the state appellate court. And he would offer the writ—the authority, the judgment of the state court by which the man was held there. The only questions after that that could be raised were these. Is this the man referred to in your judgment—do you by chance have the wrong man? That could be established. And second, did the court which tried him have jurisdiction of the case? If the man was charged with murder in a Harris County court, if the murder had been committed in Oklahoma or in Louisiana, of course, the court would have had no jurisdiction. So all that the warden was required to establish was that he had a final judgment of a court, that this is the man referred to, and that the court did have jurisdiction—no more no less. And by reason of that fact, it was very seldom that any question was ever raised. If a man was sentenced to a term in the state penitentiary, he would have been certain.
But now, you wouldn’t believe what we’ve got. The Supreme Court has handed down a number of opinions which have set out these constitutional rights of the accused. They have held, in some cases, that their opinions are retroactive. By that I mean, if the Supreme Court hands down an opinion today which says in so many words, “We are reversing all prior opinions which held to the contrary 10 years ago, and 20 years ago, and 30 years ago,” fine, they can do that if they—they have the power. But then they say, “And this is retroactive.” Hence, every case in which reliance has been had on these earlier decisions is placed in jeopardy.
The question about the right to council—no on has ever denied, at least in recent years, that an accused was entitled to have a lawyer to represent him, and if he couldn’t hire one he could have one appointed. The courts have now announced a proposition—and this is fairly recent—that this council must be adequate. (clock chimes) That ,of course, is not startling. If he has a lawyer, you’d expect him to be adequate. But to be realistic about it, here’s what’s happened—here’s what will happen. A prisoner in the state penitentiary with a very long sentence will wait 6, 8, or 10 years after he’s been in confinement, then he’ll come to us and say, “It’s true I had a lawyer, but my lawyer was completely inadequate. He didn’t give me the type of representation that I was entitled to.” Well, of course, you might say, “Well boy, why didn’t raise that at the time? Why do you wait 8 or 10 years?” There is no statute of limitations on habeas corpus matters. You can raise it any time. The Supreme Court has held that this right to council and the right to adequate council is constitutional in dignity and retroactive.
1:04:29 So we then, in that case, must do this. We must try to ascertain whether, in a trial in the state court 10 years ago, the guy got adequate representation. Well, suppose his lawyer has died or left the state. Suppose the district judge don’t remember anything about it, if he happens still to be on the bench. The district attorney that prosecuted him is gone. Perhaps there was no appeal, in which event no record would have been written up. And we are confronted with situations like that. I—there are many other similar examples, I simply point out that one to you. This retroactivity is one type case to which I take exception.
Others are this. When I became a lawyer long ago it was—a man was presumed to know the law. You’ll find that expression a thousand times in the books. A man cannot come into court, for example, and say, “I didn’t know it was against the law to steal,” or “I didn’t know it was against the law to—” commit some other offense. He is required and presumed to know the law. But with the expansion of these individual rights that the Supreme Court has enunciated within the last 20 years, they have put a little gimmick on that. One of the opinions of the Warren Court was this. A man cannot be presumed to have waived one of these rights unless he knew about it.
So another type of case. Suppose a prisoner comes before us complaining of his incarceration in the state penitentiary. He says to us, “Yes I had a lawyer, and yes I was tried, and yes I was convicted, but I didn’t know I had a right to appeal.” As I say, 25 years ago you would have laughed at a person that said that. In the first place, most everybody that ever goes to court knows of the right to appeal, and if he doesn’t he is presumed to. That’s what his lawyer is for. But he will testify, “Well, my lawyer never told me anything about a right to appeal, and I didn’t know it. So I sat there and let the time expire and I couldn’t take an appeal.” The Supreme Court has said in cases like that, either the state will give him an out-of-time appeal—10 years, 5 years later—or turn him loose.
1:07:58 So to get around that, we all must do other things now. We must give a criminal defendant a sort of a first-year law course in criminal law to be sure he knows all of these rights. Before I permit a man to plead guilty—though he may have a lawyer, he may be intelligent, he may have had ample time for legal council—before I can accept his plea of guilty, I must almost try and persuade him not to plead guilty. I must say to him, “Now, are you sure in fact you are guilty of this crime?” “Oh yes, I’m guilty.” “Nobody has tried to talk you into it, nobody’s tried to high pressure you, nobody has twisted your arm so to speak?” “Oh, no.” “Well now, before you plead guilty, I must tell you that you have a right to stand trial—” as though he didn’t know that. “You’re entitled to a jury, and if the case goes to trial, the government has got to prove that in truth and in fact you are the man who took a pistol and went into the bank and held it in the face of the teller and you took this money. That’s bank robbery. That’s what your charged with. They’ve got to prove all that beyond a reason—” “Yeah, I understand.” “You understand that if you plead guilty you are subject to sentence, and I could give you up to 25 years—” whatever the maximum is for his particular offense. “Oh yes, I know all that.” That’s what we now go through to be sure that the fellow cannot say 5 years from now, “Well, I didn’t know I had that right. I didn’t know I had a right to a trial by jury. I didn’t know you could give me as much as 25 years.”
Our administration of criminal justice has become mechanical now, and as I said before, is usually a question of touching all the bases. To me, that is unfortunate. I think the judge on the bench should be vested with discretion to handle matters of that sort. Obviously if a person is—appears to be of questionable mentality, if he’s slow or dumb or stupid, be certain that he knows what he’s doing. But you take a sophisticated con man, he probably knows more about the criminal law than I do. And he comes in there and it just, sort of, reduces the courts dignity to be going through all of that type of stuff needlessly every time you bring a person to the bar.
I: Has there been a sharp rise in the number of criminal cases which you have to preside over?
BC: Yes. Our criminal docket has increased every year, I suppose, with some exception. Now the last—bear in mind a heavy part of our criminal calendar is along the Mexican border—Brownsville and Laredo divisions. Houston is a city of substantial size and we have the usual city type or big city type crime. We have bank robberies, we have bank embezzlers, we have forgerers, we have what we call man act—bringing a prostitute across a state line for immoral purposes—Dyer act—taking a stolen vehicle across a state line—and all of that sort of stuff, just like Chicago, St. Louis, other cities. But on the Mexican border we have a very, very heavy narcotic traffic. And our volume of work there depends usually on one fact and one fact alone, how many narcotic agents does the government put in those cities. If the Drug Enforcement Administration—which is now in charge of those investigations primarily—has 20 men in Laredo, we’ll get X number of cases. If they put 30 men in Laredo, we may get twice as many cases. But the crime is there. The narcotics are coming across the river in large quantities. And the enforcement agencies—all of them, of course, are handicapped by money problems just like everybody else that works for the government. If they can place enough agents there, I’d venture to say we’d double our case load. Where they are restricted, as obviously they are, it’s not as high. The past year, year and a half, we have not had as many cases as we did prior to that time. We have, however, I think, on the average—perhaps have had more serious cases—the more hard narcotics, more sizeable dealers, things like that. But that’s sort of guesswork on my part. I can’t really support that by figures.
I: 1:13:40 Do criminal cases lead the types of cases in the increase that you’ve seen over the years?
BC: I don’t know if I understand what you’re asking me.
I: Okay. Of all the types of cases that you deal with, do the criminal cases—have criminal cases increased proportionally more than the other types?
BC: Oh, well no, I don’t know that I could say that. Our civil docket in Houston has been increasing practically every year since I’ve been here. I can’t certify that that’s true without exception, but Houston has been growing. It’s a business center—industry is here in tremendous number, and our civil calendar in Houston, our civil calendar in Galveston, our civil calendar in Corpus Christi has grown, I think, without exception every year since I’ve been here.
I: Well, I see that a lot of time has slipped by—it’s gone by very fast. I want to thank you very much for the time you’ve taken to—
BC: Okay. Have I answered all your questions?
I: You certainly have.
BC: 1:14:55 Okay. I hope it is of some use to you and that anyone who has occasion to use your library may find it of some little benefit.
I: I’m sure it will.
I: Thank you very much.