Getting His Clerkship

Below is an essay by John Q. Barrett for our thirty-day series on John Paul Stevens. Barrett is a professor of law at St. John’s University in New York City and Elizabeth S. Lenna Fellow at the Robert H. Jackson Center in Jamestown, New York.  He is writing the biography of Supreme Court Justice and Nuremberg chief prosecutor Robert H. Jackson (1892-1954).  Justice Jackson’s Supreme Court service included the 1947-48 Term when John Paul Stevens was a law clerk to Justice Wiley Rutledge.

In 1945, John Paul Stevens, age twenty-five, returned to his native Chicago.  Stevens was a 1941 graduate of the University of Chicago.  He had served in the United States Navy for the duration of World War II. Now he turned toward what would become his profession.

Northwestern University’s School of Law was then, as it is now, a strong school with a national reputation.  Its graduates were leaders in private practice and public service, particularly in Chicago and throughout the Midwest.  Its dean, Leon Green, was a prominent, well-connected figure in legal academia.  He had been leading the school for almost twenty years.

In the aftermath of World War II, John Stevens and many other veterans felt that military service had put them behind and they were in a hurry to get on with their lives.  At Northwestern, Stevens enrolled in the accelerated law school program.  By matriculating through regular and summer sessions, he would be able to complete law school in just two years.

At Northwestern, Stevens ranked at the top of his class.  Apparently his only true scholastic peer among classmates was another veteran, Arthur R. Seder, Jr., who became his close friend.  Dean Green and other professors urged Seder and Stevens to work on the Illinois Law Review (later the Northwestern Law Review).  In their senior (second) year, they were the Review‘s two Editors-in-Chief.

One mark of Northwestern’s strength and its connections was the success that a top graduate, Francis A. Allen, experienced in 1946 when he was hired as a Supreme Court law clerk.  The key connection was a young Northwestern professor, Willard H. Pedrick.  A few years earlier, Pedrick had served as a law clerk to Judge Fred M. Vinson at the United States Court of Appeals for the District of Columbia.  When Vinson left the bench for the executive branch to manage the country’s economic mobilization during World War II, he arranged for Pedrick, then serving in the Marine Corps, to be detailed to assist him.  When Vinson was appointed Chief Justice of the United States in summer 1946, Pedrick recommended Northwestern’s top graduating student, Frank Allen, to be a law clerk, and Chief Justice Vinson promptly hired him.

The Pedrick-Vinson relationship was not the only close tie between Northwestern and a Supreme Court justice.  Another young law professor, W. Willard Wirtz, was a close friend of Justice Wiley Rutledge, as dean at the University of Iowa law school in the late 1930s, had hired Wirtz to begin his teaching career there.  They remained close after Rutledge was appointed in 1939 to the D.C. Court of Appeals, where he was Vinson’s judicial colleague and first got to know Vinson’s then-law clerk Pedrick. The Wirtz-Rutledge friendship continued when Rutledge was appointed to the Supreme Court in 1943, and when Wirtz three years later became a law professor at Northwestern.

With regard to the Supreme Court, Francis Allen’s clerkship with Chief Justice Vinson during his first year as chief (1946-47) gave Northwestern an important presence in that elite setting.  Indeed, Vinson was such a satisfied customer that he arranged for Allen to stay for the 1947-48 Court Term (as the Chief Justice’s Senior law clerk).  At Northwestern, Dean Green and the faculty hoped to place more alumni as Supreme Court law clerks.  But given Chief Justice Vinson’s decision to keep Frank Allen for a second year and Vinson’s preference then (which later changed) to employ trios of law clerks representing Harvard, Yale and Northwestern, there was no prospect for another Northwestern alumnus to become a Vinson clerk in 1947-48.

But Green, Pedrick and Wirtz also knew Wiley Rutledge.  Subsequent events suggest that one of them asked Justice Rutledge during 1946-47 if he might hire a Northwestern graduate to be his next law clerk.  Rutledge’s reply must have been encouraging.  That spring, the professors informed their top seniors, Art Seder and John Stevens, that there was an opportunity for a Northwestern graduate to clerk for Justice Rutledge during 1947-48.  (In the meantime, and apparently unbeknownst to his friends at Northwestern, Rutledge in April 1947 interviewed a former Columbia Law School valedictorian, Stanley L. Temko, and hired him to be his next law clerk. Rutledge probably was motivated by Temko’s strong recommendations, and by learning that Temko twice had been selected by the late Chief Justice (and former Columbia law dean) Harlan Fiske Stone to be his law clerk, only to have those plans upset, by the Army in 1943 and by Stone’s sudden death in 1946.)

Art Seder and John Stevens, meanwhile, were both interested in the alleged Rutledge clerkship possibility. Dean Green and his colleagues gave the young men the impression that Northwestern could not or would not recommend one of them over the other. Seder and Stevens thus were told to decide between themselves, by flipping a coin, which of them would be the school’s nominee to Justice Rutledge.  They did so, just the two of them, in private, at the law school and without particular drama.  Stevens won the flip. And his friend Seder abided by that result, he did not ask, for instance, to change the contest to the best two out of three flips.

It seems that Professor Willard Pedrick was the first to recommend John Stevens by name to Justice Rutledge.  On May 7, 1947, Pedrick wrote a very direct letter:

Dear Justice Rutledge:

If you have not yet made arrangements for your law clerk for this next year, you may be interested in one of our men, John Stevens. We regard him as one of our best products and think a very long day’s journey would not reveal any better.

To enlarge on personal data concerning Stevens, during the war, he served in that auxiliary of the Marine Corps and the Navy.  Following his release from active duty, he entered our law school where his record gives him an average in the straight A class.  In addition, he has been a key man on the Illinois Law Review serving this past term as Associate Editor.

In his Review work, Stevens has demonstrated his capacity for imaginative, careful analysis and sustained effort.  He expresses himself clearly and has a direct and understated style of writing.  In my Law Review seminar, I largely delegated to him the matter of organization and I have found him completely dependable.  One of the best liked men in school, he has a ready wit and a seemingly unfailing store of good humor.  In short, I think he is preeminently qualified for a clerkship and commend him to your consideration.

Pedrick closed his letter by stating that he hoped to be in Washington, and to visit Rutledge at the Court, on May 19.

Justice Rutledge did not wait for Pedrick’s visit to deliver news that was not, at least in the short term, encouraging.  Rutledge promptly wrote back to Dear Willard that he was

“glad to have the suggestion of John Stevens'[s] name, although I am not sure whether it can do me any good for next year.  I have already selected my clerk [Stanley Temko] for the 1947 term.  There is still a possibility, however, that before the end of this session Congress may provide the funds for appointment of an additional clerk.  I doubt that we will know about this until in June or possibly later.  If the appropriation should come through I shall be very glad to keep Stevens in mind”

Pedrick did, just days later, visit Justice Rutledge in his Supreme Court chambers.  When Rutledge mentioned again his hope that the appropriation for a second law clerk would pass Congress, Pedrick reiterated that John Stevens would make an excellent clerk.  Pedrick also told Rutledge that their mutual friend Professor Bill Wirtz knew Stevens well.  Rutledge said he was interested in learning more, and that Pedrick should have Wirtz write to Rutledge about Stevens.

When Pedrick returned to Chicago, he told Wirtz of this conversation.  Within days, Wirtz wrote a compelling letter to Rutledge:

“Let me simply say that I consider Stevens to be one of the two most outstanding students whom I have ever worked with.  The other is a classmate of his [Art Seder] who is here with him now.  The members of the faculty who were here during the war add Francis Allen to this group, and are then almost unanimous in their feeling that these are the three most promising men ever to attend this school. I know that this must sound like exaggerated praise, and yet it is literally true.

Stevens has the quickest, and at the same time balanced, mind I have ever seen at work in a classroom.  I have worked with him, too, in connection with two or three law review projects.  The man is just as solid as he is brilliant.  Beyond all this he has a personality which makes it a pure delight to work with him.  I suppose that he is undoubtedly the most admired, and at the same time, the best liked man in school.

I guess it would be foolish for me to try to say more.  I could add a number of details but they would all be of so much the same character that you would begin to apply a general discount rate. I can’t tell you how much I hope that your plans will work out so that you can take advantage of Stevens’s abilities and that he may, at the same time, enjoy what I should consider the finest single opportunity that any man could possibly have.”

In July 1947, Congress passed and President Truman signed the bill authorizing some Supreme Court justices, including Rutledge, to employ second law clerks.  Rutledge communicated this to Wirtz and asked him to offer the job to Stevens. Wirtz did, Justice Rutledge had hired Stevens, sight unseen, to be his law clerk.  Stevens promptly wrote the Justice to accept, adding that he would not finish law school until September.  Rutledge wrote back, telling Stevens he would be expected to stay as a law clerk for two years, and that he should take a week of vacation in September before moving to Washington to begin his clerkship.

When Stevens wrote back, he thanked Justice Rutledge for his consideration in encouraging Stevens to take a week off between law school and clerking.  Stevens also pushed back a little bit against the Justice’s preference that Stevens clerk for two years:

“If you decide that you would like to have me stay on for a second year, I shall be happy to do so.  Frankly, my personal preference would be to stay for only one year, but this preference is by no means strong enough to cause me to reconsider my decision.  I definitely want to accept the position whether it be for one year or two, and you may be sure that I will do my utmost to do the kind of work that will persuade you to keep me for two.”

John Stevens did, as a Rutledge law clerk, exactly that kind of excellent work.  Stevens also, however, persuaded the Justice to let him go after only one year.  In summer 1948, Stevens finished his clerkship.  He explored the possibility of entering law teaching but ultimately decided to enter law practice.  In September 1948, he became associated with a Chicago law firm.

And what of Art Seder?  In spring 1947, he thought that his coin flip loss meant the end of his chances to clerk at the Supreme Court.  Seder, a married man with two children, knew that when he finished law school in September 1947, he could not afford professionally or economically to wait around for the prospect of a Supreme Court clerkship starting one year hence.  Seder planned to get on his life, which meant starting to practice law, and thus beginning to root, in Chicago.

Dean Green intervened to keep Seder’s options open.  The Dean gave Seder a spring 1948 teaching appointment at Northwestern.  Green also gave him, for fall 1947, a stipend and an office in which to prepare to be a rookie law professor.  In spring 1948, Seder taught Contracts.  He also traveled to Washington to interview with Chief Justice Vinson for a clerkship. Frank Allen took Seder in to meet the Chief and it all went well, Seder was hired to succeed Allen as a Vinson law clerk.  In time, Seder was, like Allen, such a success that the Chief Justice kept him on for a second clerkship year.

When Art Seder arrived in Washington in mid-1948 to begin his Vinson clerkship, he crossed paths briefly with John Stevens, who was finishing his Rutledge clerkship and preparing to return to Chicago.  On one evening, Seder and Stevens, along with Stevens’s co-clerk Stan Temko and each of their wives, met for drink on a Washington hotel rooftop.  For John Stevens, it was a farewell to Washington.  Soon, in Chicago, he would get on with the rest of his life.

Of course he, as Justice John Paul Stevens, returned to Washington and has become one of its monuments.  Art Seder, by contrast, made his career marks entirely in the Midwest.  He first practiced corporate law in Chicago and then, based in Detroit, was an executive in a natural gas pipeline and distribution company.

While the geographic and professional paths traveled by John Paul Stevens and Arthur Raymond Seder, Jr., have diverged over the decades, these accomplished men have been two sides of a coin since long before they flipped one in spring 1947.  Incredibly, they were born on the same day.  On April 20, 2010, each celebrated his ninetieth birthday.  The next day, they got together at the Supreme Court.  In the morning, they both were in the courtroom, albeit seated in different sections hear oral arguments much like those they had witnessed as law clerks in the 1940s.  Later, in Justice Stevens’s office, they spoke about birthdays and other topics.

Each recalls, with pleasure, a distant coin flip.

This post builds upon John Paul Stevens Leaves Too Soon essay that Professor Barrett sent to his “Jackson List” — which covers topics including the Supreme Court and Nuremberg — earlier this month.  To subscribe to the Jackson List, send a note to barrettj@stjohns.edu.