Transcript of Interview with Judge Stewart Dalzell
Blumenthal: Good morning, my name is Jeremy Blumenthal. We’re speaking today with Judge Stewart Dalzell of the Eastern District of Pennsylvania. Today is Friday, October 29, 1999; we’re speaking in Judge Dalzell’s chambers about 10 a.m.
Blumenthal: I want to thank you for doing this, and for meeting with us, and helping out with this archive.
Dalzell: A pleasure to meet you and to participate in the project.
[Pause for technical arrangements.]
Blumenthal: As I mentioned, I’d like to start with some background, preliminary questions. Where were you born?
Dalzell: I was born in Hackensack, New Jersey, in 1943.
Blumenthal: When is your birthday?
Dalzell: September 18
Blumenthal: Where were your parents born?
Dalzell: They were both … my father was born in Pittsburgh, PA; he came to Northern New Jersey as a boy when his father got a job in NYC, my grandfather. My mother was born and raised in northern New Jersey also, and they met in 1936 or 1937 when they lived across the street from one another. They eloped, and I guess they got married in 1937, and I came along in 43.
Blumenthal: Do you have siblings?
Dalzell: Yes, I have a sister who, an older sister who is deceased, and a younger sister who was born in 1951 and lives in the Princeton area.
Blumenthal: And what did your parents do?
Dalzell: My mother worked in the home, my father was a salesman; he had a variety of jobs but he ended up in the steel business selling steel to people. He died in 1971; he was 63.
Blumenthal: And did you stay in that area to grow up?
Dalzell: Yes, I grew up in Bloomfield, New Jersey, which is 14 miles due west of New York City. I went through the Bloomfield public school system, K through 12, and graduated from Bloomfield High School in 1961; and, whereupon I came down to Philadelphia to the U of Penn, the Wharton School, from which I graduated in 1965; and then I took a year to work in New York City in the National Broadcasting Company, at 30 Rockefeller Plaza, and I came back to Philadelphia in 1966. I had been accepted at the Law School, Penn Law School, when I was still at the Wharton School, but I had wanted to try this opportunity at NBC which I enjoyed very much, but it seemed to me that I might enjoy the law better; so I came back, and the law school allowed me to make that deferral, and so that’s why I took the year off and then graduated in 1969.
Blumenthal: Going back to when you were younger, did you have interests, hobbies — did you have time for interests and hobbies when you were a child?
Dalzell: Well, I, as a young fellow, I was very interested, from a very early age, in media — television, movies; I guess my hobby was I used to make movies when I was a kid. Eight millimeter movies, and I don’t really know where they are right now. But I had a lot of fun doing that, and I was also pretty accomplished goofer-offer, I would say; nothing in the way of, beyond a little movie-making that I used to do; you know, I’d hang around with my friends, and that sort of thing, and my … when I was at that age, outside of school I used to bowl, I was a very good bowler, shoot pool, hang out in pool halls, which was an interesting experience, to say the least, and met a lot of picaresque characters, if you will, and as I did in bowling alleys…if you saw “The Big Lebowsky” you get a picture of that world. But I look back on that fondly; there were some very nice, interesting, colorful people that I knew in those days. And then, of course, I sort of wandered through school. I think things are different now, I think kids are more focused, you know, where they have to go, and getting ready for college, and doing well on the SAT and all that sort of stuff … neither of my parents went to college, and so I basically sleepwalked through all that, and … I ended up at the University of Pennsylvania basically because the father of my best friend, who had gone to I forget what college, said to me that … “Well where you gonna go to college?” And I said, “Mr. Spingard, you know I really don’t have any idea, what do you think I should do?” And he said, Mr. Spingard did, he said “Well you know, I think if you go to the Wharton School, down at University of Pennsylvania,” he said, “if you do well there you can get a good job anywhere.” “Oh, well, that sounds like a good idea.” And do you know that I was so out of it in those days, I applied to one college, the University of Pennsylvania, and lucky for me I got in! And, I don’t know what I would have done if I hadn’t gotten in. And…so that serendipity, however, has, has been providential, because coming down here to Philadelphia proved to be an extremely happy turning point in my life.
Blumenthal: Was it for that reason that you chose to major in economics?
Dalzell: Well, I, yes, I did, you know, I was at the Wharton School, that’s what they do after all…. When I was at Wharton, though, one was able to take a lot of courses outside of Wharton. So while I certainly took the basic Wharton core curriculum, you know, economics, finance, accounting, statistics, that sort of thing, history of business, very interesting course, I took a lot of courses, I mean a lot of courses outside of Wharton. So I would take six, seven courses a semester, way more than I had to, because, I must tell you I found it an absolutely intoxicating experience, and I had a great intellectual feast in college; I just, I really couldn’t get enough of it. And so, so, I had a very rich educational experience at Penn — beyond economics, I mean; I found that fascinating, and I still do, and many of those courses served me very well, like statistics and that kind of thing — very useful course to take. But I took lots of literature courses, history courses, philosophy courses — I loved it. I couldn’t take enough!
Blumenthal: Are there any that stand out; any professors that stand out?
Dalzell: Oh yeah, oh yeah. I mean…the…coming down to Penn was a big turning point for me, because in the spring semester of my freshman year, I took the basic sociology course that one was required take and the man who taught that was an extraordinary teacher named E. Digby Baltzell. And Baltzell, who died just three years ago, wrote a number of very very famous books — The Protestant Establishment, he coined the term WASP, White Anglo-Saxon Protestant, Philadelphia Gentlemen; and he was very interested in authority, and what is authority — not legal authority, but social authority, and morals, and that sort of thing. And he was an extremely accessible teacher, and so his door was always open to his students, and — I mean it’s really no exaggeration to say that Digby Baltzell became my intellectual father, and indeed my moral father, because he was an extremely moral man. When he died, he got a full-page obituary in The Economist magazine, in the New York Times, the Philadelphia Inquirer put it on the front page — he was that big a figure for so many people that he touched. And it was from Digby that … and I became very close to him. He had two daughters and his widow said to me after his death that I, you know, that I was sort of the son he never had; so I was very fortunate that he regarded me that way, and so we kept up the contact, right up to the time of his death in August of 1996. But it was from Digby that I learned that the really important things in life have nothing to do with money, and have to do with what you can contribute to others and what’s outside yourself, and not acquiring things for inside yourself. And just a tremendously … I can’t overstate the influence that Digby had on me, as a person … so I am forever in his debt. And I might add a lot of people feel that way who were his students; he was just … he shows you what a teacher can do, what a great teacher can do, in materially changing, and in my case, hugely improving the quality of my life. So I have a huge debt to him.
Blumenthal: Were you taking any courses, any other courses directed towards law?
Dalzell: That directed me to the law? Well, you know, I didn’t … I wasn’t sure what I was going to do. I mean I thought I might go into business, that’s why I went to NBC — I was always fascinated, and am still fascinated, by, in particular the movie industry. And … so I thought that the NBC thing was an opportunity to, (a) they were interested in me ‘cause I did well at Wharton, and (b) you know, it was in the … it was a blue chip, still is a blue chip company, and that I could learn about the entertainment business. And, which I did, certainly, didn’t learn everything, you can’t learn everything in just a year of course. But as fascinating as that was, it just seemed to me, and maybe it was Digby’s influence, there was something about it that was not … as intellectually nourishing as I … ‘cause I had such an extraordinarily rich intellectual experience at, in college, that as interesting as the network TV business was, and it was very interesting, there was a shallowness, a certain shallowness to it, that, you know …. Yeah, it was interesting to learn about the Tonight Show — okay, when I was there the Tonight Show was becoming the national show that it ultimately became … you know it from Jay Leno, but before that it was Johnny Carson, and I was there when Carson took over. And it was really interesting how it was that became so profitable for — enormously profitable for NBC when I was there, and I’m sure thereafter, and that explains why they paid so much money over the years to Johnny Carson. It was just a cash machine. That’s all very interesting, but that doesn’t exactly edify you, you know, it doesn’t make you a better person. So, so it seemed to me I ought to go back to the law. I — Digby certainly had a high regard for the legal profession, and what the legal profession could do if a lawyer would get outside himself and not just look to acquiring as much money as possible. And so I was intrigued by that. So I — I came back to law school, and I, much as I loved college, I loved law school even more! It was — I just couldn’t believe how stimulating it was. And you know I had so many great teachers at Penn Law School, and just as Digby was for me morally and as a, as a person — I better say it in the totality — as a lawyer, and as a member of the legal profession, Professor Paul Mishkin, who’s now at Boalt Hall, occupied that role for me. I took every course Professor Mishkin ever gave; I took four courses with him. And I’m sitting here right now because of Paul Mishkin. When I took Federal Courts with Professor Mishkin, which was a one-year course, four days a week — I don’t know if it still is — I was just completely swept away, with how extraordinarily rich and fascinating the federal system is, and how the federal courts fit in that rich tapestry of federalism that we’ve had since 1787, or 1789 when the Constitution was ratified. And Mishkin really — I got the bug from him, and from that point, sitting in his Federal Courts class, is when it — the thought first crossed my mind, you know, it would be really interesting to be actually in the middle of that, as a judge, and that’s where it came from. Paul Mishkin. Now it’s not to say I didn’t have — I had some other fabulous teachers, Professor Lou Schwartz, for whom I worked as a research assistant, Criminal Law, and I also had him for Antitrust … spectacularly wonderful teacher … Tony Amsterdam, who’s now at NYU, I had Advanced Criminal Procedure with him — he is without question, I’ve met a lot of brilliant people in my life; he is number one, without a doubt. And, as I said — the people I’ve named are all brilliant, brilliant people — they all happen to be men — that I’ve mentioned, but Tony Amsterdam is in a class by himself, intellectually — just a genius.
Blumenthal: What were — do you remember the first year at Penn —
Dalzell: How can anyone forget their first year in law school? Of course I do. It was stimulating, at times humbling…you know most of the people who were sitting there, I’m sure this is not different from your experience, most of the people who were sitting there had done extremely well in law school — or in college rather — and the old joke at Harvard was, look to your left, look to your right, one of you is not in Phi Beta Kappa. Well, at the Wharton School, because it wasn’t a college, we didn’t have Phi Beta Kappa, we had Beta Gamma Sigma, which was even more restrictive than Phi Beta Kappa, okay, so that worked at the law — when I was there too at Penn Law School, there were a lot of hugely bright people, and … so people who had had a great time through college, and done very well, and then all of a sudden they come up against law professors — and I have a feeling this hasn’t changed a whole lot — and all of a sudden you find yourself humbled by a fiercely superior capacity to argue, and law school classes are sometimes quite humbling. I bet that may have happened to you once or twice —
Blumenthal: Once or twice.
Dalzell: Once or twice. See, that doesn’t really happen too often in college. First of all, you’re not as exposed in college, the way you are in law school, when the professor calls on you to talk about a case, and “Do you think the case was rightly decided?” “Well, hmm…” And, of course, whatever you say, the professor can, certainly in the first year, can just have a little bit of fun with, and make you look rather silly, as a matter of fact. So, but of course it’s a great experience; very stimulating.
Blumenthal: Do you remember who you had first year?
Dalzell: Pardon me?
Blumenthal: Do you remember who you had first year?
Dalzell: Oh, sure I do. I had Professor Gorman for Contracts, he tells me I — this may have been his first year of teaching — and that was a year course in those days. I had Professor Schwartz for Criminal Law; I had Professor Bender for Civil Procedure, I think he’s at Arizona now; he had left — he had come back from being in the Solicitor General’s Office and then he went back to the Solicitor General under Clinton as a matter of fact, and I think he may be at Arizona now. Professor Mishkin for Judicial Process, that’s when I first came under his spell, and then in those days you had Property, and for Property I had Professor Kostones, who I think is in private practice now, maybe in Chicago, and I remember those courses as though they were yesterday. And in fact — I mean they really — they all made an impression on me. They really did.
Blumenthal: What struck you then about Professor Mishkin? That first year?
Dalzell: What struck me about Professor Mishkin was, as bright as all of the individuals I’ve named were, there was a level to his understanding; he was so deep. He thought things through so far, way beyond — I mean he was the antithesis of the sound bite, if you will. And he would just be able to peel off layer upon layer upon layer of significance to seemingly trivial cases. And I was just so impressed with the depth of this man’s perceptiveness — I mean he was so perceptive, and I was just really in awe of him, totally in awe of him. And so the next year I had him for Constitutional Law, which was a dazzling experience, just a dazzling experience. And then as I mentioned, Fed Courts, which in those days was a third-year course, and then I took a seminar with him on Federal Court enforcement of federally secured rights, and wrote a paper for him.
Blumenthal: Do you remember, was your — the student body, the class — was large?
Dalzell: Yes, in my time the class was about 180 students. And, so it was in two sections, and first year — I don’t know if it still is, Section A, Section B, and I was in Section A, and this — it was — then I would say females were maybe 15 or 20% of the class, which of course is, now it’s much more. There certainly were some members of minorities in the class; I suspect, if you counted noses, it would be fewer than there are now, but there were a number of very able African-American, both male and female, students when I was there. So I think it was more male than it is now, no question about that, you know, young women in those days for whatever reason, didn’t go into law as much as they do now, but there certainly were a number of them, and they — some did extremely well.
Blumenthal: Was it a close student body?
Dalzell: Well, you know, it’s sort of a foxhole experience. And you know, you share a foxhole with somebody you get to know them pretty well. And we were a — yes we were a cohesive group; certainly our Section A, those relationships in the first year were very strong, very strong, and endured through law school. Of course you made friends from Section B but — well, you know, you’d have your study klatches and what have you, and you’d all suffer indignity at the hands of some professor, which — so you had, you were all wounded to some extent. And that brought you together. And you know, classes were very electric — so you’d come out and you’d be — it was never, for me it was never boring. I mean, it was always, you know, in a sense exhausting because it was very intense, certainly for some of them it was — and like with Professor Mishkin, who’s always pushing pushing pushing your thinking beyond where you really had ever thought — it was quite an experience to say the least. And it tended to bring us all together.
Blumenthal: It was also a very politically active time.
Dalzell: It was. You’re quite right. It — it’s funny because what people now say is the 60’s was actually (having lived through it I can say with some authority) was actually about 1966 through the mid-70’s, because having been in college from 1961-1965, I can tell you that that experience was indistinguishable from what it would have been under President Eisenhower. But then, when the war in Vietnam heated up, which was the catalyst of all of this, which happened to coincide when I went back to law school, certainly the undergraduate campus at Penn became very energized by that, and the law school was more remote from that, I mean after all we’re — it was a professional school. There were a couple days, I guess it was in our second or third year, the so-called moratorium day would happen, in other words they would take a day when regular classes wouldn’t occur, and you would talk about issues like disarmament. The whole university did, and so I remember — and you could take different — the law school tried to make it an educational experience. So for example Professor Leach, who I think is now retired, Noise Leach, who’s still very much with us, but he’s I think pretty much retired — Professor Leach, who was a specialist on international law anyway, had a seminar on disarmament treaties, like the Treaty of Lucarno, and so forth. So he tried to make it substantive, because he was — Professor Leach was not interested in what he regarded as the sort of modish interest in, in “peace.” I mean he was certainly interested in international arrangements that would promote peace, but the notion of an abstraction of “peace,” of “make love not war”-type grooviness, was of no interest to him. But he was interested professionally in that. So it affected our experience in that respect, and it certainly affected our experience in terms of the draft, because in those days if you were a male under 26 you were subject to the draft, and so that was very much on the minds of the guys in the class, I can assure you. So to that extent it was omnipresent, no question about it. And of course, as you know, the war in Vietnam was not a popular war to say the least. And — although I’m certainly a — no one would ever call me a radical, I always — the war seemed misbegotten; it was always very hard to see what exactly we were achieving doing that. Interestingly a book just came out by Michael Lind, who is rather a left-wing fellow, who surprised a lot of people in his book by saying that maybe the war was worth it. At the time it was going on it was pretty hard to see how it was worth it for us, and of course a lot of people my age went over there and many of them never came back.
Blumenthal: Did you become active — [pause for technical arrangements]
Dalzell: — I became active in the anti-war movement, is that your question?
Blumenthal: In politics generally —
Dalzell: In — when?
Blumenthal: Politically. In — while in law school.
Dalzell: Okay. *** What was your question?
Blumenthal: Did you become active politically at that time?
Dalzell: In law school? Not too much. I mean, as you know yourself, law school is a jealous mistress, and I was not — I was always interested in politics, I was very interested and active when I was in college, but in law school was probably the least active of any time until I became a judge, when of course I had to give it up. Because I was so — you know, it was very consuming. But I followed it with great interest, surely.
Blumenthal: A similar question — did you have a job during law school? You mentioned you did research.
Dalzell: Well, the summer between my first and second year, I was a full-time researcher for Professor Schwartz, and I also under his — it was his idea to do this — with my colleague Susan Stern, now Susan Ross, we spent the summer doing field research on what we published in the Law Review on the public defender, and we wrote a piece together, a Note, on client service in a Defender organization. So we spent a lot of time doing the field research for that, and then we wrote that up, and I guess it was published in our third year; yes, it was published I think — early in our third year I think it was published. And then in the fall ‘cause I needed every penny I could get, I was part on loans and part on scholarship, at Penn Law School, so I needed to earn money for spending money, I worked for Professor Schwartz, you know, working on whatever he was interested in. He was the Reporter for the Model Penal Code, for example, and so there was innumerable research needs that he had that I did. And then between second and third year, I had fully expected to work for Professor Schwartz again, but, you know, I was still in this sort of somewhat sleepwalking phase, and someone said to me, “What are you gonna do over the summer? You know, what firm you gonna work at?” I said, “Firm? I’ll work for Professor Schwartz.” They said, “You should, well, why don’t you just interview?” So about — we’re in second year, “Oh, okay,” so I interviewed with one firm — just like going to one college — and why did I interview with Drinker Biddle & Reath. Because, when I applied to the Law School, the Dean of Admissions was afraid I was going to go to either Harvard or Yale. And so, he wanted to show me how great it would be to be in Philadelphia, and part of doing that, Dean Shane arranged an interview with a lawyer at Drinker Biddle & Reath, when I was in college. And so I had this interview with a partner there, a guy named John Ballard, now deceased, and I was so startled by this guy, because, you know, Drinker Biddle & Reath, what did I know about that, except I knew it sounded very old Philadelphia. And I figured it’d be really stuffy. And this guy was anything but stuffy. He was very funny; he was a bit disheveled; he had funny pictures on his wall, abstract pictures on his wall, in his office. His shoelace was untied. And I thought, “Hey, this isn’t so bad.” So when my classmate, whoever it was, said “Well Stewart, aren’t you gonna interview?” So I looked at the list, and I saw Drinker Biddle & Reath — “Oh, that — I had that great experience with Mr. Ballard, I’ll meet them.” That’s the only firm I ever interviewed with, do you believe that? So I got the opportunity to work there over the summer, and Professor Schwartz was completely supportive of that; he knew Henry Sawyer, who was a partner there, who just died. And — so he was very encouraging that I should go there in the summer. And of course the nice thing about that was they actually paid real money by comparison to what I could make as a research assistant for Professor Schwartz. And so I worked there the summer between my second and third year. And they made me an offer, and I basically accepted it. I say “basically accepted it” because I also at the same time got an offer from the Wharton School; they have a law department also, and they invited me to be a lecturer while one of the professors was on sabbatical. And so the Drinker people were very nice about that, ‘cause I always wanted to try teaching. So when I graduated from the Law School of course I had the deadening experience of taking the bar exam and more accurately preparing for taking the bar exam, which was — just as law school was the most electrifying intellectual experience of my academic life, like that I had the most deadening intellectual experience — if you can call it that — of my life, which was bar review preparation, which I hated beyond words, because it was like being back in first grade — it was all rote. So I got that behind me, and then I taught for a year, both undergraduates, in Legal Process, and MBA’s, in basically rudiments of commercial or Uniform Commercial Code, that kind of stuff, contract law. And, and I just had the greatest time, I mean I loved teaching. It was just so much fun. The students were great, both the undergraduates and MBA’s. The undergraduates because — I taught it just like a first year contracts course in law school, Socratically. And of course, in college, nothing is taught Socratically, and so the students were stunned by this. But — but they got turned on to it, and I had some really wonderful students, undergraduates. And then for the MBA’s, of course, it’s so quantitative for them, that, they had this one little island of non-quantitative knowledge, to wit law, and they loved it, you know, ‘cause for them it was so refreshing. And — which I also taught Socratically, perhaps a little more nuts and bolts-y for them, thinking that as business leaders, that they might want to have a feel that — you know, when they oughta call outside counsel. And I had the greatest time doing it. And — but. Why didn’t I — and they offered me, the law department offered me a tenure-track position. I was very tempted but I ultimately decided not to do it because I felt a bit of a fraud, because as much as I was — I mean I certainly was an honest teacher, and all that, but nevertheless I hadn’t actually practiced law except, you know, in the summer. And I wasn’t really practicing, I was just spending most of, spending my time in the library, writing memos for the lawyers at Drinker. So I felt that I was — particularly the MBA’s I was holding myself out as a, as though I was a lawyer — I wasn’t a lawyer technically, I was a member of the Bar and all that, but I hadn’t practiced. And I just felt that wasn’t right, so I decided to go back to Drinker, as they had offered and, leaving open the possibility that I might go back and teach. Well, of course that didn’t happen, as it turns out, and so I stayed at Drinker. But that year teaching was just pure pleasure for me. I loved it.
Blumenthal: Was the field of law and economics influential at that point?
Dalzell: No. It was just — it was just getting off the ground at that point. You know, today it would be a different ball game, I think. No, I think it probably was just starting at Chicago about the time that I graduated, it was just starting, you know, Posner and company.
Blumenthal: Did you become familiar with it since then?
Dalzell: Somewhat. You know, when you go into practice, you’re so caught up in the immediacy of your own cases, and your clients’ problems, that while I was aware in general of the law and economics movement, I didn’t get into it with the detail that I would now, for example, if I had the time.
Blumenthal: Do you see it fitting into the judicial —
Dalzell: Well, I have to tell you that what I learned in the Wharton School has been very useful to me; first, as a practitioner for 21 years, but also as a judge. All the time — economic concepts, understanding what’s really at issue in terms of economics or, if you will, a law and economics cost-benefit calculus, wealth transfer calculus, transaction cost calculus — is very, very useful to me, and it enables me to talk with lawyers and business people — because often I have the business people sitting here — in a language that they understand, which perhaps gives me a credibility with them, and helps me resolve their cases, which after all is what we’re here to do, is resolve disputes.
Blumenthal: In law school, what was the Sharswood Law Club?
Dalzell: What was the Sharswood Club like? It was, you know, it would gather, I don’t know, fairly sporadically, and it would do substantive things like drink beer, cocktails, maybe go to a football game on Saturdays, and then come back and — camaraderie, and, there was a good group there. Does this — does it still exist?
Blumenthal: I don’t know.
Dalzell: It was a good — it was a good group. And it was — no one — I’m not saying it was a drinking society, but it was a — purely social, you know, it was not — we didn’t sit around and talk about the latest issue of the Law Review, let’s put it that way. But it was — it was a good group, and I met — the nice thing about Sharswood was I met some upperclassmen when I was asked to join it, who I otherwise wouldn’t meet, because as I’m sure is still the case, you tend to hang around with your classmates, of your year, and you don’t have as much of a relationship with the upperclassmen or lowerclassmen. Sharswood was nice from that point of view, and particularly because there was one fellow in it who later became a State Court judge named Bill Nower, who was a terrific guy. Regrettably he died of cancer in his early 40’s. Heroic figure, but Bill was a senior I guess I was finishing my first year when I was asked to join, I think that’s what it was, and Bill introduced me to other people. It was very helpful, to get to know, you know, some upperclassmen, and get a feel for what was to come, and what to look out for, who to avoid….
Blumenthal: Do you think law school has changed since that time?
Dalzell: Oh, yes. Oh, yes — I think that — you know, it’s changed, the curriculum, certainly, is very different from when I was there. I had the standard Langdell, classic Langdell curriculum, first-year curriculum, for example. That’s changed a lot. And also, as we’ve already talked about, the class was different; the, of course the faculty’s very different now; in those days, I don’t know if there was a single female teacher … maybe … offhand I can’t think of one; they were all male. That’s obviously not the case any more, and that reflects the change in the legal profession itself. There’s more interdisciplinary work now, that goes on; I mean, Dean Mundheim was very interested in that from the law and economics point of view, for example; that we didn’t have. The Law School now, as you may know, I’m very active in the Law School Inn of Court, and I wish, when I was there, that they had had something like that, because to have every month a group of lawyers and judges come in and talk about real world situations, and to work with them, as I just worked with two third-year students for our presentation last week, is a very enriching experience that didn’t exist when I was there. So I, you know, based on what I know — and I follow it fairly closely, and of course, I guess about half of my law clerks have been from the Law School. So I feel fairly current on what’s going on there, you know, I think that as wonderful as my experience was, your experience is better — it’s more rounded, it’s more real world-y, and, you know, it equips you very well. The graduates — you know, when I see the people coming through the interviewing process, for example, for clerkships — and I’ve said this to Dean Diver — now former Dean Diver — and Professor Woodhouse, who’s in charge of the program — I’m just very, very impressed with the quality of the people coming out of — out of the Law School. So they’re doing something right.
Blumenthal: After you graduated, did you consider clerking?
Dalzell: You know, that’s a very good question. You know, I think because I came from a non-professional background — my family was non-professional — I don’t think I ever even considered it. Of my whole experience in the legal profession, that would be the one regret, because, you know, other than being a judge yourself, it’s the second best thing. Certainly at the District Court level. And — at least the way I operate. And, and I know from my partners at Drinker, who did it, you know, they always thought it was the best experience, bar none, of their legal career, and in fact in some cases I’ve met lawyers who regarded it that everything was downhill after that, which is a little sad, but …. So I did miss that. Fortunately I made up for it by becoming a judge myself.
Blumenthal: Was there — did you ever consider looking elsewhere besides Drinker or besides Philadelphia?
Dalzell: I had worked in New York City, at NBC. I was very much aware of the costs of living in New York City. Both the economic costs, the cost of living was much higher, but also the human costs, because New York is just so consuming, whatever field you’re in, whether it’s TV, or publishing, advertising, investment banking, law is just so totally consuming. I mean, I wanted to have a life beyond just practicing law, and I knew from my experience with NBC when I was there for 14 months, that there was no possibility that if I had gone to one of the big Wall Street firms, which is what I would have done, that was the option, that’s all I’d do. And I didn’t — I never wanted to do that — life is too interesting, and — I love the law, but there are other things that I like to do. So I decided not to go to New York. That was the only option for me. And also I had a very good summer at Drinker Biddle & Reath; they were very nice to me; I met some people I like — partner, young partners — I liked a lot. So — and they seemed to have an extremely interesting practice, so I didn’t feel that I was getting a second-rate professional experience, so I decided to stay here in, in Philadelphia. I mean, I knew nobody, you know, in terms of a network, as they would now say, but I figured that they seemed to like me, and they were so — seemed quintessentially Philadelphia, I’m gonna live in Philadelphia, and that this would be a route to expand my own experience in, in the community, which I very much wanted to do. And — so that certainly proved to be a — a good decision, as it turned out.
Blumenthal: What was your early time there like? As an associate?
Dalzell: At Drinker? It was fascinating. The young partner I worked the most for, at first, was a guy named Ray Denworth, who was, went to Penn Law School, and who just — I keep seeming to say this but he died this past summer, 67 years old, a sudden and tragic death — and Ray was a sensational mentor. And I had worked for Ray in the summer, and so when I came in June of 1970, back to the firm from teaching, Ray reco— said (I’ll get to in a second) that he really wanted me to work with him on this big matter that had come up. And the big matter that came up was that on June 21, 1970, the Penn Central Transportation Company, the Penn Central Railroad, which was the merged entity of the New York Central and the Pennsylvania, filed for reorganization under the bankruptcy laws. On June 22, 1970, I started at Drinker Biddle & Reath. By July 1, 1970, there were many, many suits under the Sec—10(b)(5) Securities Laws, derivative suits, against the former directors of Penn Central. And as it turned out, Drinker Biddle & Reath represented 21 of the outside directors, and ultimately became, in the multi-district litigation, the liaison counsel for all the defendants. And the head of the pyramid at Drinker was Mr. Van Dusen, who is still very much with us, I’m happy to say, a lawyer named John Williams, who was not a litigator, but a corporate type, Ray Denworth, and then several associates, with me at the bottom of the totem pole. Because I had just started there. But Ray got me involved in that, and so for my first four and a half years at the firm, 90% of what I did was the Penn Central securities litigation, MDL 56. And a very very rich experience, because I was exposed to some of the best lawyers you could ever want to see as a young lawyer in action. For example, the late Ed Rome, of Blank Rome Klaus and MacCauley. Ed Rome represented the Trustees of the bankrupt entity, and his two-week deposition of Stuart Saunders, the former Chairman of Penn Central — I wish that it had been videotaped like this, because law students ought to see how Ed Rome took this deposition. It was absolutely masterful — at once deferential to Mr. Saunders, and then rather scornful of Mr. Saunders, then ridiculing Mr. Saunders, deferential again — of course the object when you’re taking a deposition is to get him to talk, and — and Rome did it brilliantly. He had a leitmotif in this long deposition, which was, “How does Stuart Saunders spend his day?” Simple question. At least after the merger, because he was — he certainly worked hard to make the merger happen, but then when it happened, what did he actually do? And I think I can say to you that of all the lawyers who worked on that litigation, my job was to know every single document and fact you could possibly know about this matter. And if my life depended on it, I could not tell you how Mr. Saunders spent his day. I can tell you because I learned from Ed Rome’s deposition, that he always kept the first two weeks of his calendar open, in June every year, so that he’d have time to accept honorary degrees. I can also tell you that he was more faithful at attending board meetings at, for example, Chase Manhattan Bank, than he was at attending board meetings of the Penn Central sec—subsidiaries. Beyond that, I can’t really tell you, and that’s a tribute to what Ed Rome taught us all in that deposition. So that — I go into some detail about that to show you how it was that that could be such a rewarding experience, even though he was opposing counsel. A brilliant, brilliant lawyer. And a great, great gentleman, too, a model for a practitioner…. So I worked on that for four years, and — and by the time of the settlement, which was at the time the biggest securities settlement — securities class action settlement ever — we had the closing on December 2 1974, and I was very very flattered, when Ray was gonna be out of town, with his family, ‘cause it was right after Thanksgiving, and so they said Stewart why don’t you handle the closing? Well, the closing on the settlement started at 7:30 in the morning, and it was not concluded until about 7:30 at night. And we had lawyers from all over the country there, including for example Warren Christopher, who later became Secretary of State, was there, representing one of the interests, and I was the ringmaster of this thing! And — and I look back and I still kind of scratch my head, because, you know, Mr. Van Dusen was there, but he just said, “Well, Stewart, you tell me where I should sign, and when I should sign.” Okay…. Mr. Van Dusen at the time was the head of the firm, head of the American Bar Association Committee on Ethics, a very big cheese! And he’s just sitting there waiting to sign when I tell him and where. Very heady experience for somebody who’s only been in practice for four or five years! Four years, at that point. So we successfully concluded the settlement, and that was one of those foxhole experiences — to this day, I run into lawyers who were involved in the Penn Central securities litigation, and we all have stories to swap, because we had this wonderful — more than a foxhole, I mean, it was a war. But you know what, it was a war that was conducted sort of in a nineteenth century way — I mean, it was very hard fought, but all the lawyers came out of it with a very high regard for one another, and to this day are quite friendly — even though we were fierce adversaries, but it was never, you know, a burn-the-trees strategy, on either side. And — it was — it was quite an experience.
Blumenthal: That begs the question: Do you think it’s changed — how has it changed since that time?
Dalzell: Oh, it’s changed tremendously. It’s changed tremendously. In my time in the legal profession, I would venture to say — and I’ve thought a lot about this — that the legal profession changed more in the 20 year period from, let’s say, 1975 to 1995, than it had in the 200 years before that. You know — why is that? At the core I think is Bates v. Arizona Star State Bar, where the Supreme Court held that it was subject to the antitrust laws, because the legal profession was part of “commerce.” And the erosion of the legal profession, and it is most assuredly a profession, in the direction of commerce, you know, has had its benefits, for the consumer of legal services, it prob—it has unquestionably increased choices, maybe lowered costs, if you take the constant dollars, that’s possible. But, you know, when I started practicing law, there were firms in this city that would not allow their lawyers to carry business cards, because business cards were considered a form of advertising, and one didn’t do that. We had business cards, but we were not encouraged to use them with anyone except an existing client, and only so that the client would have our phone number. That — in case you haven’t noticed — has changed — radically — and I think…of course, the legal profession has also expanded immensely — there’s just a lot of lawyers now, and, and that means, you know, more people competing for the business, and so forth, so you have this tug going on in the legal profession between “profession” and “business” that we see all the time now. So it has changed radically since, since I was there. When I started at the firm we hired maybe at most four to six people per year. Now they hire, what, 20 or 30; there’s no possible way 20 or 30 people are going to become partners. Okay? When I was there, when they hired you, the presumption was you’d become a partner, unless you screwed up. And…so that’s changed, the experience from the associate’s point of view has changed radically. But I must tell you, I think at it’s core, though, for all the changes that have occurred, that it really still is a profession. And the lawyer who does not see his or her role as a professional is making a mistake. Not only for the lawyer but for the clients of the lawyer. You’re more than just a business, a cog in a business machine. Much more. So it’s changed a lot.
Blumenthal: How did you become involved in Pennsylvania politics?
Dalzell: I started out in politics almost as soon as I got out of law school. It was part of what I had learned from Digby about … I mean, Digby was a life-long Democrat and proud of it, and as it turns out, that’s one area he didn’t quite persuade me on — I was a life-long Republican. But the notion of…that politics was something noble and worth doing, and Digby believed that very much — and I certainly bought that one, and I still do by the way. And so I got active in the local — the local scene pretty much. And — first as a committeeman, working down where I lived, which was a terrific experience. Actually go door-to-door, and meet people, and talk to them and — about current issues and so forth. And I was not a doctrinaire committeeman but I certainly … I would try to get as many Republicans elected, but I knew if I had somebody who was just hopeless running against a popular Democrat, what’s the point of pushing that point. But the other thing that I learned was, you know Speaker Tip O’Neill said that “All politics is local,” and he is absolutely right. And - the first big campaign that I worked on was the Longstreth campaign against Frank Rizzo in 1971, and that’s when I learned a really interesting lesson about “local politics.” Because Thacher Longstreth, was unquestionably — the Republican candidate — was unquestionably The Liberal. Frank Rizzo was unquestionably The Conservative. And there’s not a person who lived through that era who would disagree with that statement. In a sense we have that right now. Since we’re on the eve of another mayoral election. In a sense, it’s fair to say that John Street, the Democrat, is the Conservative, in the sense that he wants to conserve things the way they are. The Liberal is Katz, the Republican, because he says let’s consider changing some things. That’s a classic Liberal posture. The reason I tell those two stories is because what I learned very early in the game is that terms like “Republican,” “Democrat” are not as meaningful as you might think, at least in this part of the country. Another example would be in 1986, Governor Casey, the man who became Governor Casey, the Democrat, was clearly the Conservative. And young Bill Scranton, the son of the former Governor, was clearly the Liberal. Casey was anti-abortion, and Scranton was pro-choice. You know — classic hot button issue. So I learned that, at least in Pennsylvania, and certainly in Philadelphia, that politics was not ideological, and it was very practical. Just what Tip O’Neill says. And — so then, I got active, because of my experience in that campaign, in the local Nixon campaign of ‘72. I met a lot of people in that, including then District Attorney Arlen Specter, who was the State-wide Chairman. And after that experience, I had heard about a Congressman in Western Pennsylvania named John Heinz, who might be running for governor in 1974, and he looked like the kind of person I’d be comfortable with, so I wrote him a letter and said I’d like to meet him. And — they knew nobody in Eastern Pennsylvania at that time, so I later learned from his scheduler, when they got that letter, they said “Oh my god! This is somebody from Philadelphia!” So they immediately responded, and I met then 35 year-old Congressman Heinz, and I liked him very much, and I guess he liked me, because, although he didn’t run for Governor in ‘74, in 1975 he decided he would run for Hugh Scott’s open Senate seat in the Republican primary. So it was natural that he would reach East — and I was one of the few people he knew — and through his then campaign manager, a guy named Ken Chanzer, who like seemingly everyone else in that campaign was a Democrat, he — Senator — Congressman Heinz asked me to be his general counsel and treasurer, which I accepted. Which then began the most — in some ways the most amazing year of my life, 1976, because I was then still an associate at Drinker, Biddle, and Reath. We had an extremely hard-fought primary campaign. Six candidates, 3 of them were serious — Congressman Heinz, Arlen Specter, and a guy named George Packard, who had been the editor of the local, now defunct newspaper The Bulletin. And it was very, very hard-fought. And — Congressman Heinz won it by 3%. In fact, we went to — I was out in Pittsburgh, and it looked at about 2 a.m. that we had lost. And at 4 a.m. we had won. I mean it was one of those resurrection experiences. Then we had an incredibly hard fought general election against Congressman Bill Green from Philadelphia. It was a very expensive race. Congressman Heinz put a lot of his own money into it — we raised a fair amount, but he put a lot in — and it’s fair to say that it was like a second full-time job for me — plus. I was single at the time. So I basically was sleeping 6 hours a night if that. And I also found that it was easier to move around depositions and that kind of thing — law stuff — I didn’t have any trials, mercifully. So during the day I was doing a lot of the political stuff. And to my absolute amazement — I was feeling very guilty about this, I was doing my work as an associate, but I was — had this major responsibility in the campaign with Congressman Heinz, and the year before the firm had changed the rule that if you were there 6 years, you automatically become partner, and they said “No, not anymore, automatic, and it could be 7, 8 years before you become partner.” So, when that changed, I was then a fifth-year associate going into my sixth year, I figured “Well, okay, that’s off”. I was disappointed and I never thought that in my sixth year, 1976, that they’d — particularly because I was so distracted with the Heinz campaign and everybody knew it, because it was a rather high visibility assignment that I had. So, to my astonishment, in mid-October of 1976, (the firm’s fiscal year began November first ), Mr. Van Dusen and Mr. Williams called me into Mr. Van Dusen’s office and said “Welcome to the partnership.” You could have knocked me over with a feather. Because A) the conventional wisdom then was Bill Green was going to — was gonna win, B) I knew I was spending all this time on the Heinz campaign and I was not giving as much as I did prior years to law practice. But notwithstanding that, they invited me into the partnership effective November first. That was a huge relief. But then, we had Election Day, and Congressman Heinz beat Congressman Green, fairly handily — I think the margin was 6 or 7 points — and then that began a relationship with Senator Heinz that lasted right up to the time of his death, so tragically, in the plane crash in April of 1991. So I got very involved through that, and that also I guess gave me some credentials for other candidates and so I was involved in other campaigns, such as the Charter fight in 199— 1978. Precisely because I was a Republican I was asked to be the chief spokesman against Mayor Rizzo’s attempt to change the City Charter so he could run every year — you know, be Mayor for life. So that was also like — almost like the Heinz campaign, in that — because I was the face of the anti-Charter-change group, the “No” group. And, you know, I’d appear on television a lot in debates with the Rizzo people. It’s the closest I ever came to being a candidate. It’s an interesting experience, because people recognize you on the street, “Great job,” and all this stuff. So of course we beat Rizzo on that, and the Charter was not changed. Some people had talked about my running for Mayor. My position in that was the Liberal position — see, here we go again — and the thought was as a Liberal Republican that I might have a shot at Mayor. And I just — flattered as I was that people suggested that, I didn’t think so. I liked being a lawyer, and I had just become a partner a couple years ago, I was starting to make some real money, which I really needed to — I came out of law school, as I’m sure many of your classmates, maybe you will — with a lot of debt, and I had — just had to pay it off. In fact, I think I paid it off that year, ‘78. I just didn’t feel that I could do it, so I didn’t do it.
Blumenthal: Would you have considered running —
[pause for technical arrangements]
Blumenthal: Did your appointment to the bench come as a surprise?
Dalzell: No. You know one of the dividends of being as close as I was to Senator Heinz, was that I always knew that if we had a Republican president, that if I expressed an interest to Senator Heinz, and assuming I could go through his Merit Selection Commission, which actually, his then legislative aide, and I, Jeff Guerin (ph), wrote — our very first act when he became Senator, the very first thing we did — we persuaded then Senator Schweiker to form a Merit Selection Commission for the selection of federal judges. For example, I’m proud to say that Judge Pollak, my colleague and dear friend, former Dean of Penn Law School, you know, who had no political backing at all — I mean he’s not a political person — became a judge, precisely because of that merit selection process. The way it worked was, you’d go through it, a list of about four people were given to the two Senators, and when it started, of course, the President was President Carter, so they were Democrats, we understood that’s what — that was the ground rule that Attorney General Bell had set — that’s fine. So one of the four was Professor Pollak, Dean Pollak. Since he’s now deceased, I feel I can tell you this story. The other 3 individuals who were nominated were very qualified, but Senator Heinz and I had a really great relationship when it came to this subject, because he was not a lawyer. He went to Yale, and then Harvard Business School. What’s interesting, maybe because he wasn’t a lawyer, he thought that the most important thing he did was recommend people for judgeships, because he saw it as an enduring legacy of what he and whoever his colleague would be — then, Senator Schweiker — to the people of the Commonwealth. So he — he took it very seriously. And I said to him, “You know, John, this is a no-brainer”. I mean, yeah, these other people are nice, and they all have some political horse-power behind them, but I just, you know, in 3 sentences, 4 sentences, described Louis Pollak and that was enough for him. It was a no-brainer for him. So the Senators agreed on Dean Pollak, and President Carter wisely nominated him and he breezed through the Senate. So the Merit Selection Commission mechanism was a really, really good one when I was involved with Senator Heinz. Not because of me, but because of Senator Heinz. He was so honestly, genuinely committed to merit selection. He just — of course, if there were people who were recommended by political forces, if the person was qualified, that’s great. That’s — more power to him or her. He was not at all cynical about that process. Many people in the process are very cynical, very cynical about it, but he never was, god bless him. You know … it was a great privilege to, I was always flattered, that he’d really listen, he’d really listen. And there are other tales I could tell of people who are sitting on this court who would not be sitting on this court, who had very little political horse-power behind them, who in one instance was going to be deep-sixed by the Reagan administration, but Senator Heinz just dug in his heels and said, “O.K., if he doesn’t get the nomination, I’m not going to release anybody else”. And that impasse lasted almost 2 years. And then President Reagan needed Senator Heinz’s vote for something, I forget what, and it was a debatable matter, and part of the deal was, “O.K., you support Judge so-and-so (the person wasn’t a judge at the time, he was a lawyer) and Reagan backed off. As to someone who had been described as, quote, not philosophically attuned to the president, close quote. Translation: too liberal. This person turned out to be, one of the truly — in my judgment, one of the truly great judges of this court as a result. And that’s all because Senator Heinz dug in his heels for this person. So, when — after the ‘88 election, and President Bush won, a vacancy was going to come up in 1990, when Judge McGlynn was turning 65 and was gonna take senior status thereby creating a vacancy, the merit selection commission entertained applications in the fall of — late fall of ‘89, and, so I told Senator Heinz that — you know. He was — I’ll never forget his reaction. He was just — I think he always hoped that I would do it. I had never said a word to him, never said a word to him about it, and he was just tickled pink, god bless him. So I went through the process, and I was on the short list, and at that point, I don’t think there was much doubt that he would see to it that Senator Specter, his colleague at that point, the junior Senator, would see the wisdom of recommending me to President Bush. And so, so they did, and then there were a long delay, for reasons I’m not sure of, but then I got the call from President Bush, and the rest is history.
Blumenthal: What was the confirmation process like?
Dalzell: Interminable. I mean, people today talk about how long it takes, and so forth, and — and it does, it’s ridiculous. But that’s nothing new. In other words, it’s not because it’s President Clinton in the White House, or the Republicans controlling the Congress, because when I went through, it was the Republicans had the White House, and the Democrats had the Congress, and the Senate in particular. And there was just as much delay as there is now. It was ridiculous. I was recommended, the Senators sent their letter to President Bush in like March second or so, 1990. I got the call from President Bush in July 24, 1991. And — and then, by that point, Senator Heinz was deceased and through the good offices of his widow, a terrific woman, Theresa Heinz, now married to Senator Kerry of Massachusetts, and the good offices, I might add, of Senator Biden — see, here we go again. In a sense, sure, Senator Heinz supported me for this, he was a Republican. But I don’t think I’d be sitting here if it weren’t for Mrs. Heinz, now a Democrat, I suspect, and certainly Senator Biden, then the Chairman of the Senate Judiciary Committee, of course, a life-long Democrat. And — and Biden was just terrific, just terrific to me, as I went through the process, there, and it went through like that in the Senate, and that was entirely because of Senator Biden. So I recognized, I specifically mentioned that fact when I got sworn in here, about how much I owed to the Democrats — and, so, you know, partisanship really — of course now is a moot issue for me, simply not an equation — in the equation for me, but I’m most grateful for what Senator Biden did, ‘cause I wouldn’t be sitting here if it weren’t for him.
Blumenthal: And what was your early time on the bench like?
Dalzell: My early time on the bench … was intoxicating. I had very, very high expectations for this job when I came into it. And that’s because when I was in practice, least 90% of my practice was in federal court. Around the country. And, as I like to say, on all three coasts. ‘Cause we have the Gulf of Mexico, don’t forget. And, so I had some matters in Louisiana, in federal court, as well as in Florida, and I got a very high regard for the federal judiciary, wherever I went. Wherever I went. Had a lot of cases in Boston, for example, and … very impressed with the judges up there. California, and San Francisco, very impressed. Both with the district judges and the judges that I was before on the Ninth Circuit. And — so I had — based on that experience in federal court litigation, I had a pretty high expectation for this job. And the fact of the matter is — and I can still say this — I learned almost out of the gate, those expectations were gonna be exceeded; it was better even than I thought, and I thought it was gonna be pretty good. It’s just been an extraordinarily wonderful experience in this job. It’s — it’s just been beyond belief wonderful.
Blumenthal: Has the sort of case that you see changed since — over the last decade?
Dalzell: What was that?
Blumenthal: Has the type of case you see as a judge changed since —
Dalzell: From what?
Blumenthal: — since the early time.
Dalzell: No…. The — if I had to characterize, if I had to put in one word what’s so fabulous about being a judge in this particular district, it would be the word “variety.” You know, in some districts they’re just drowning in drug prosecutions; in other districts they — I mean in this district, thirty years ago, they were drowning in maritime suits. But that’s no longer the case. We have the most diverse imaginable docket in this Court — I just got a case yesterday, involving a fellow who the Government says was a member of the Totenkopf of the SS — the Waffen SS, who they want to revoke his citizenship, okay. The man’s 75 years old now. I don’t know how — I haven’t the faintest idea how that’s going to come out, but — what a case! You know, that just happened yesterday. I would never have seen a case like that as a practitioner. Ever. And, you know, the drama of that case, and the — the history; so much is wrapped up in that case. But there has never been a time since I’ve been down here, that there hasn’t been several, at least several cases that are compelling like that. And sometimes in a very surprising way. Where you least expect it. That are — cases that are so compelling. And, obviously, the case of the Waffen — the Totenkopf guard, anyone could see that’s an interesting case, however it comes out. It’s a very dramatic case, however it comes out. But there are lots of — lots of cases that may be less so, less obvious, are just absolutely fascinating. And it’s been nonstop here since I’ve come down here. There have never been two days the same. It’s — it’s astonishing.
Blumenthal: Do you find then a difficulty in balancing, I guess, a rigorous, formalist, legal approach, with this background and history of all the people in every case?
Dalzell: Well, you know it’s a very interesting question you just asked. And — I wrote a piece in the Law Review, it was published last year, in ‘98, called “Faces in the Courtroom.” And the thrust of that piece that’s relevant to your question is that of course we have to be principled down here. We — and I submit — are involved in an intellectually respectable discipline. But part of what we do, and part of my view of what makes a good judge, is to get the whole story in every case. And part of the whole story of every case are “Who are these people?” Because remember, we’re not dealing with theorems in geometry here. We’re not dealing in pure Aristotelian logic here. While my admiration for Justice Holmes is not that of many of my colleagues, I mean he is right that the life of the law is not logic it’s experience. And — but part of that experience is, is allowing to see who’s really before you. And the thesis of my piece was — and my theory, my philosophy of judging remains — that we ill serve the people before us if we don’t take note of the faces. It doesn’t mean that you’re just gonna rule for the most sympathetic person, of course not. But what it does show is that if you know who they are, and what’s really going on, you’re getting the whole story. And you can’t do justice in the case unless you have the whole story. And as I hope I point out in our Law Review, that the disasters of our jurisprudence — and I cite some of our disasters, Carrie Buck’s case, with Justice Holmes; Korematsu and the Japanese interment case. Dred Scott and his wife and daughters. Okay. You look at those cases, and ask yourself “What went wrong here?” And what I argue in that, and what I believe in my core, what went wrong, is that they were not seen as people. In the case of Dred Scott and his wife and daughters, they were literally referred to by Chief Justice Taney as quote, articles of merchandise. Well, when you’re dealing with an “article of merchandise” anything is possible. With this desk, okay, and certainly this desk is not a citizen of Pennsylvania, right. Just so therefore the property of these slaves, articles of merchandise, couldn’t be citizens of Missouri! Korematsu was never — and, interesting, the majority opinion was by Justice Black, who we now think of as a great civil libertarian — he never mentions Korematsu’s name. Never. He’s just a petitioner. But Justice Jackson, in his dissent, talks about this real person, who — who made the mistake of — who committed the “crime” of living in a place where he had been born and grew up and lived. Very different. Or, you know, Carrie Buck, was just “an imbecile.” Of course we now know she wasn’t an imbecile. But, so, she’s, if you’re an imbecile you’re certainly not worthy of human — basic human dignity. And god knows, Holmes didn’t give her any of that. So you see I think — I cite those examples — and of course the Communist jurisprudence, where people’s reputations were ruined, who had no threat to anybody, librarians, schoolteachers, and so forth, who in their past had been members of the Communist Party, or sympathized with the Communist Party, threatened nobody — but their lives were ruined. And the Supreme Court was not so nice to them until long after Senator McCarthy had died. That’s what I mean about the faces. Of — getting the whole story the way Justice Jackson did in Korematsu. He got the whole story. And the whole story of that case was that that conviction should have been reversed. That that internment was unconstitutional. Not — didn’t escape his attention that we didn’t intern German-Americans; Italian-Americans. We were at war with them too, after all. But only Japanese-Americans — well, I think we now see what was really going on there. And so did Justice — but the point that I try to make is that in every one of those cases there were dissenters. And so it wasn’t just a question of the Zeitgeist leading them — certainly the Zeitgeist confirmed what the majority did in every one of those cases but the fact that you had dissenters showed that there are judges who recognized that the benefit of life tenure and an independent judiciary and — are not afraid to take it on the chin. I’m sure that some unpleasant things were said about Justice Jackson in Korematsu when he decided it. But he was right. He was clearly right. ‘Cause he saw Korematsu’s face.
Blumenthal: Do you see the law work as an educational tool as well, then, as an arbiter?
Dalzell: Oh, absolutely. Absolutely. I see every case as — at least two levels. One is the level of the people involved. Okay. We’re here to resolve disputes, either civil disputes or between the Government and a defendant. And there’s a story, every case is a story, okay, and the idea is to understand that story, and apply the law consistently to what the real story is. But I think also when you decide a case, there is this powerful educational aspect of it. Immediately for the parties and their lawyers, but particularly the parties. I mean, I try very hard when I write my opinions to make them understandable, to — by non-lawyers. Because at a minimum the parties — you know, we have very good data on this — fifty per cent of the people involved in our cases, when we decide our cases, are unhappy with what we do. And fifty per cent are very happy with what we do. I want a hundred per cent at least to understand why we do what we do. And so I try if at all possible not to get involved in legalisms and try and write with nouns and verbs and simpler words rather than complex words. And — so that people will understand it, the parties will understand it. But also, because we’re not a private dispute resolution mechanism, so that interested members of the public, and not just lawyers, can understand what’s going on here. So I think we have a very powerful need to address this educational aspect of what we’re doing. And to work hard to make what we do accessible, to not just the lawyers but to the general public.
Blumenthal: Do you think that’s been received well? That approach?
Dalzell: I — I know that the parties — I sometimes get letters — and the lawyers and members of the press appreciate it. They’ve gone out of their way to tell me that. And so that’s the best gauge — you know, others have to gauge that than I. All I can tell you is what I’m trying to do.
Blumenthal: Has your perception of the role of a judge and the role of the judiciary changed?
Dalzell: Yes. You mean from before I became a judge?
Blumenthal: From before, and your early time.
Dalzell: Yes. It’s much more complex than I had thought. I mean, certainly the view that one gets in law school and then the view that develops as a practitioner is very different when seen from my side of the bench. Very different. And it’s very complicated business. Much more complicated than one might think. And the — I mean, I don’t want to go on interminably on this, but, for example. There’s a sense that — well, lawyers are fungible. And that it doesn’t matter so much who the lawyers are. Well people who think that — and a lot of general counsel, I think, and large buyers of legal services tend to think, you know, “Let’s look for the best hourly rate,” for example. Very foolish. Because — I’ve learned over and over again here that a bad lawyer can do very great harm to his or her client, and a really good lawyer can make a huge difference to his or her client. You know, lawyers are dealt the cases their clients bring with them. They’re not all good cases. But the trick a lawyer has is to make the best of whatever hand the lawyer is dealt. And a good lawyer — I mean I have gone into court sometimes, you know — I prepare very thoroughly for anything, however significant it may seem, I prepare very thoroughly when I go in — and I’ve gone into that courtroom prepared to zig, and a lawyer really turns me around, and I zag. Because of what he or she brings to my attention. Lawyers can make a big difference, and lawyers who are feeling that they’re just cogs in a machine, something like — do themselves a great disservice. They can do a lot of good. But I have to hasten to add they can do a lot of bad. Because when you come out of Penn Law School you have a sense of, a level of what the profession can be, that I wish it were, at that level, of Penn Law School graduates. But I regret to tell you, it’s not. And even down here, where you’d think the cases, you know, the stakes are higher, sometimes, or a lot of the times, than they might be in other venues — we seem some unbelievably awful lawyers. And they can do a lot of harm. And sometimes our task is — certainly in the criminal area — we deal with — there’s a minimum level that they have to achieve. You gotta be really careful to make sure that justice is done. So that — that’s been a shocker. The other shocker has been the — I mean it’s not a shocker — but judges themselves are as varied as everybody else is, let’s put it that way. And, which is to say there’s some very good ones and some that are not very good. And — and the judges can make a big difference. I mean the other thing I would stress is just as a lawyer can do a lot of damage, a judge can do a tremendous amount of damage. And that — that’s why every case is important. Literally, every case is important. It doesn’t have to involve the constitutionality of a statute to be important, because if you — if you get it wrong, you can do a lot of harm. And, you know, just as in the medical profession the first rule is “Do no harm,” that should be our first rule too. “Do no harm.”
Blumenthal: Are there cases that you’re most proud of for how you approach them then?
Dalzell: Oh, sure. I mean, take an obvious one is ACLU v. Reno, where we — and it was upheld by the Supreme Court — holding the Communications Decency Act unconstitutional. I’m very proud of that. Extremely proud of that. I was extremely flattered when Chief Judge Sloviter asked me to be on the three-judge panel. I had to pinch myself. ‘Cause she had a lot of good candidates for that task, and then she entrusted me with the management of the case, and the reception of my opinion in that case, you know, world-wide — I just couldn’t believe it. I just couldn’t believe it — that — I was very gratified and touched that it was so well received. World-wide. It’s funny to see your stuff in a foreign language; somebody sent me … oh, I forget, was it Der Spiegel, or one of the German magazines, and there was my picture and — I took a few years of German in school, I can assure you I was never as eloquent as that fellow in the, Der Spiegel. But they just translated what I wrote into German and — that was pretty extraordinary. But then, you know, the other cases that I’m very proud of are cases that don’t involve a lot. That seemingly don’t involve a lot. I had a case involving fifty dollars. And a petty officer named McDermott, was in the Willow Grove National Air Station. And he was in the non-commissioned officers’ club, and he drank too many beers, by his own admission, and he went to sleep in his car, with his dog. And in the middle, three o’clock in the morning or something, “Knock-knock-knock.” The MP’s knock, and — I don’t mean to be vulgar, I’m just quoting what he said — “What the fuck is this?” They said “Would you please get out the car?” He gets out of the car, he says “What is this shit? Why the fuck are you bothering me?” And because of the language, the vulgar language that I just used, they charged him with disorderly conduct. And because it was on a military, a federal reservation, you know, it’s federal. And the federal — we follow State law on this, on disorderly conduct. And because it’s a petty offense it’s tried before a U.S. Magistrate; McDermott was found guilty; and he appealed. And, you know, it was in July of — I think two or three years ago. And my law clerk says, “Judge you won’t believe what we just got. An appeal from a fifty dollar fine.” I said, “You’ve gotta be kidding me.” So we look at the case. And, lo and behold, there’s a very interesting First Amendment issue here. That the Pennsylvania courts, and the federal courts, had never addressed. Could this be disorderly conduct? He didn’t resist arrest, there was no physical resistance; he just used the F-word. And a few other barnyard words. So I reversed his conviction. Saying that while it was impolite, it was coarse, it was vulgar — that he had a right to say “What the fuck is going on here?” A basic right. And I wrote an opinion, and …. The footnote is that it got picked up nationwide by the Associated Press, because of course, from their point of view what was newsworthy was “Judge holds that drunken sailor can talk like a drunken sailor.” But what I found so interesting was the follow-up. I ran into the Public Defender who represented McDermott at — the appeals period is over and so forth — and I said “That was an interesting case, wasn’t it.” And he said “Yes”; I said, “By the way, why did he care about a fifty dollar fine?” And he said “Well you know he was applying to another branch of the service,” (I think the Air Force, doesn’t matter what, but he was gonna change to another —) and if the fine had stuck, he would have had, even though it was a misdemeanor, a conviction, that he felt would have ruined his military career. So. Fifty dollar case. Is career threatening for the individual involved. And brings before the judge, at a very busy time, some very interesting and important First Amendment issues. I’m very proud of that case. So, you see, they don’t have to involve cosmic — that case involved fifty dollars. So there’s a lot of little cases like that that I’m very very proud of. ‘Cause we took the time to see his face. We took the time to see what’s really going on here. Instead of just the easy thing to do in that case would have just been — it was — there was lots of Pennsylvania cases that said it was disorderly conduct. Do that. Is it really worth any effort over fifty dollars? Well the answer is: Yes. Because every case is important. And I’m very proud of that case. Another case in — I have a case in January of this year involving one hundred Cuban cigars. And A) we had a lot of fun with that case, B) that was the first and only case, reported case, involving the Cuban Trade Embargo to an individual, non-criminal case. And, boy, we had an interesting time with that. The market value of those cigars was, you know, less than — a thousand dollars, let’s say. By the way, they were — they’re now just smoke.
Blumenthal: What would you say was your most difficult case?
Dalzell: Two cases. Most difficult. The first was a — an extradition case, early in my career, involving a man of Portuguese — he’s an American, but he’s of Portuguese descent, naturalized, I think. And he was gonna be extradited to Portugal. He had a contracting business here, and there was a very — this man’s life was about to be shattered. And there were amendments to — that Congress adopted — statutory — that purported to amend a treaty, an extradition treaty we had with Spain. And that case was extremely difficult because it looked to me that it was unconstitutional. I had been a judge for less than a year, I was not anxious to make a decision that would find its way on the front page of the New York Times. But on the other hand I thought that the way to amend a treaty is the normal way to amend a treaty, which is the President submits it, the Senate ratifies it. Two-thirds. There was no record of a two-thirds vote. And it was just treated as a normal statute. And so what I ended up doing was, I said that the law as applied would have been retroactive, so to avoid the constitutional issue, I held that it was not retroactive, which meant that he was not extradited. Footnote. And I — I — that was torture writing that. It was a very, very tough opinion to write. And to this day I — I put that on a par, intellectually speaking, with what I did in ACLU v. Reno. Footnote. Whatever happened in Portugal? ‘Cause the guy was — attempted counterfeiting in Portugal. So when he’s not extradited from this shore, he works out a deal that the charges — he’s gonna go to jail in Portugal for five — I think it was five years. But since he wasn’t extradited, but he wanted to remove it — ‘cause he still had family in Portugal. He worked it out, and he effect pled guilty to a lesser offense and paid a hundred and forty dollars. And that was the outcome of that case. That was a really tough one, though. That poor man, his life was shattered. He was crying uncontrollably on the witness stand; he was — when the case came to me, on a writ of habeas corpus, he was less than twelve hours away from being sent up to the airport at Kennedy and flown to Lisbon. That got my attention. And of course the other one which I can’t go into any detail about, ‘cause it’s still pending, is Lambert. Suffice it to say those were three weeks of the most difficult time I’ve had here. I — I’m very proud of what I did in that case, I wouldn’t change a word of what I wrote in that case, but since it’s — it’s still pending in the U.S. Supreme Court, I can’t go beyond that, except to say that they were the three most difficult weeks I’ve spent down here, it was just — it was no fun. [Pause for technical arrangements.]
Blumenthal: What advice would you give to people coming out of law school now and starting in the legal profession?
Dalzell: What advice would I give. I would say … that you should stay in the profession. It’s a noble profession. That as much as you give to it, it will give back to you. I would also say that you should try and practice in a situation which will permit you to do things outside of the law. In the community. However you want to define that. Whether it’s working, you know, for pro bono cases, whether it’s, you know, representing a homeless shelter, whether it’s assisting your favorite candidate for whatever office, representing your church or synagogue — whatever it is, get involved in the community. In other words, you have a great skill, as a lawyer, and it’s a very valuable skill, in our society. That’s why they’re — lawyers are so important. People — all the lawyer jokes are there in a, I submit, because everybody knows lawyers are important. And when things go bad, the first thing they do is “I wanna call my lawyer.” So lawyers have a lot to give in this society. And I think they should give it. A) Of course, they’ve gotta make a living, there’s nothing wrong with making a living, and they can make a good living, and there’s nothing wrong with making a good living. But it’s not the whole story. And the skills you have as a lawyer can be put to use for the benefit of others in many many other contexts. And whatever your interests — wherever your interests may lie, follow them. And allow yourself to become a better rounded person, make you a better lawyer, too, and to get back to the beginning of this, I was a better lawyer because of the time I spent in those pool halls, and bowling alleys, than the people who never set foot in them. I mean, I was enriched by those people. Just as I’m enriched now, by people like Petty Officer McDermott. So stay the course, and have fun doing it, because it can be a lot of fun.
Dalzell: What’s your other question?
Blumenthal: My other question was bas— I see all the movie posters in your hall, and around the chambers —
Blumenthal: — and I wondered, do you regret not going into movies?
Dalzell: An anecdote. Will answer your question. One of my former law clerks, who is now at O’Melveny and Myers, that represents a lot of movie interests; when he got married, he, on his honeymoon, went to the Napa Valley. And one of the wineries he visited was Francis Coppola’s winery. And Ron had often heard that the only person who I thought had a better job than I do was Francis Coppola. I’d specifically mentioned Francis Coppola’s name. Although Martin Scorsese would do as well. And so Ron and his bride were looking at Mr. Coppola’s winery, and Ron says to his new bride, “Margaret, I think that’s Mr. Coppola.” And Ron later reported to me, that he went up, and said, “Excuse me, are you Mr. Coppola?” And he said “Yes I am.” He introduced himself, and said “I’m really glad to meet you, because my old boss is a federal judge in Philadelphia, who always said that the only person in America who had the better job than he does was Francis Coppola.” And according to Ron, Mr. Coppola said, “Well, your boss is wrong.” So I think that may sum it up.
Blumenthal: Great. I have to thank you; this was terrific, and it’s a wonderful contribution, and you’ve spent more time than expected, and I just thank you very very much.
Dalzell: It was a pleasure. Really a pleasure. And I think it’s a wonderful project that you’re doing. Thank you.