Numbers appearing in square brackets (ex. ) within the transcript indicate the pagination in the original, hardcopy version of the oral history interview.
Oral History Interview with
Joseph L. Rauh, JR.
June 21, 1989
Niel M. Johnson
JOHNSON: Mr. Rauh, I'm going to start by asking you to
tell us where you were born, when you were born and what your parents'
RAUH: I was born in Cincinnati, Ohio on January 3, 1911,
making me 78 now. My father's name was Joseph Rauh; I'm a junior. My
father was born in Bamberg, Bavaria, Germany; he was an immigrant. My
mother's name was Sarah Weiler. She was born in this country, but her
ancestors came from Germany. We were German Jews; Cincinnati was quite
a home for German Jews and still is.
JOHNSON: That's where you got your education?
RAUH: Yes. Actually my father was an education nut. He
was a small businessman, but he anted to make enough money to give his
kids the best education. Of course,
in those days, and maybe it's still
true, the prestige lay with Harvard, and the happiest thing in my father's
life was that he had enough money to send both my brother and me to
Harvard. So we got the best education possible.
JOHNSON: You had one brother. Did you have any sisters?
RAUH: Yes. My brother's dead. My sister is alive; she
is 87 years old. She's a pediatrician. She doesn't practice anymore,
but she was a very wonderful, successful pediatrician in Cincinnati,
setting up her office in the poor districts. She was a liberal, a Truman
liberal, all the time.
JOHNSON: So there were three children.
RAUH: Three children.
JOHNSON: And you're what, the oldest, youngest?
RAUH: I'm the youngest of the three.
JOHNSON: What was your brother's name?
RAUH: Carl. He went into my father's business, but the
business folded. It was a shirt business and you couldn't make apparel
in the north after a while because of the southern competition in wages.
So my brother sold out. He got out of the business rather
he died rather young. He was just 67 when he died.
JOHNSON: Your father's occupation then was . . .
RAUH: A small shirt manufacturer. He was a died-in-the-wool
Republican who marched in the 1896 gold parade of McKinley in Cincinnati.
He was a died-in-the-wool, conservative Republican, and all three children
JOHNSON: Did he mellow as he got older?
RAUH: Well, the joke in our house always was, and my mother
would tell the joke; he would denounce Roosevelt, and then say to my
mother, "Sarah, go upstairs and get that clipping about Joseph and the
New Deal." I mean he was proud of his kids even if he disagreed with
them. We had a happy family.
JOHNSON: What was your major in college?
RAUH: Economics, although I don't know a damn thing about
it. I don't know why I did that. When I went into college it was before
the Depression; I matriculated in 1928, September of '28. October of
'29 is Black Monday, and that's when people started worrying and that's
when I went into law. So I went into law school rather than anything
else. There was no room in this
little [family] business for anybody
else, so my father said, "Why don't you go to law school?" I was sort
of treading water, going to law school.
JOHNSON: Are you saying now that your father was probably
the most important influence on you in these years?
RAUH: Up to the time I went to college, there's no question,
he was the most important influence. College and law school changed
JOHNSON: Okay, what influences did you come under there?
RAUH: Well, the most important influence, of course, was
Felix Frankfurter. I am what they called back in the thirties one of
the Frankfurter "happy hot dogs." I don't think there were terribly
many influences that I had in college. I did fairly well; I was not
a bad student. But going to law school, the chief influence was Felix
Frankfurter and that's how I came here to Washington.
One day in my third year in law school, he stopped me
and said, "What are you going to do next year?" I said, "Well, I've
been hired by the best Jewish law firm in Cincinnati." And he said,
"Well, you're not going there." I said, "What do you mean, sir?" He
said, "Well, you're going to Washington. You'd just be silly not to."
And he got me a job; he got me the law
clerkship to Justice [Benjamin]
Cardozo, and the law clerkship of himself when he took Cardozo's spot
three years later. So, yes, that was the greatest influence in my career.
JOHNSON: And Frankfurter was a reformist.
RAUH: He was a reformist. Hugh Johnson, the head of NRA
[National Recovery Administration] hated Frankfurter, but he said--and
this wasn't necessarily right--"He is the single most important person
in Washington after the President." There's some truth in that. I mean
that's obviously an overstatement, but it wasn't so ridiculously an
overstatement. He was a tremendous figure down here. Well, there weren't
many people that were closer to Roosevelt than Frankfurter.
So, my father's belief in the prestige of Harvard and
my going to Harvard Law School affected my life. I mean it changed it
completely. I always say if it wasn't for Felix Frankfurter, I'd be
an overstuffed corporate lawyer like most everybody else.
JOHNSON: So you came into Washington and became a law
clerk . . .
RAUH: To Justice Benjamin Cardozo. There are some pictures
there, and there [pointing to the wall]. Then when Cardozo died, Frankfurter
got the job. I actually
volunteered for law clerk because it was in
the middle of the year that he was appointed to Cardozo's seat, and
it's hard to get a law clerk right in the middle of the year, so I just
volunteered. Of course, Frankfurter took up the volunteer offer, because
he knew me. Also he said, "You've got more experience on the Supreme
Court than I do," because I'd been there for two years with Cardozo.
So I went back for a few months with Frankfurter, and then I went back
into the Government.
JOHNSON: In what year did you start with Cardozo?
RAUH: I came here in '35 and I would have been Cardozo's
law clerk that year, starting in the fall of '35, but Cardozo decided
for the first time to keep his then-law clerk, a fellow named Alan Stroock.
His father was a big Jewish lawyer in New York. Since Alan was staying
an extra year, Felix told me, "You go work for Ben Cohen and Tom Corcoran
for the year while you're waiting to be the law clerk to Justice Cardozo."
So I worked for Ben Cohen and Tom Corcoran; it's described a little
bit in Joe Lash's book on Dealers and Dreamers. I worked there
for a year. Then in '36 I went to work for Justice Cardozo, and I was
there until '38. Then there were a few months, after Cardozo died, when
there were no appointees. Roosevelt then appointed
Frankfurter in December
of '38, and he took the seat in January of '39. I was his law clerk
for a few months, and then I went back to the New Deal and was there
until the war.
JOHNSON: Were you involved in drafting any of the arguments,
as in 1937, to defend the New Deal legislation?
RAUH: No. I was working for Cardozo, for example, when
he had the Social Security decision to write; that was in 1937, but
I was working for the Court, not for the outside. Cardozo wrote the
decision upholding Social Security. There was a big attack on Social
Security. There was an attack on everything the New Deal was doing,
but after the Court packing plan, why the Court made quite a shift.
JOHNSON: Of course, one of those conservative justices
retired at a propitious time.
RAUH: Yes, that was in May of 1937.
JOHNSON: Yes, I think they talk about '37 as the time
of revolution in the Supreme Court.
RAUH: That's right.
JOHNSON: And Cohen was one of the drafters of the Social
Security Act, was he not?
RAUH: Cohen had been drafter of a lot of the legislation:
the Securities Act, the Securities and Exchange Act, the Holding Company
Act, the Minimum Wage Act, he drafted all those, and he helped with
some of the others, including Social Security. But as far as the Court
packing plan was concerned, he and Tommy Corcoran were not consulted
on the Court packing plan until it went up to Congress. Then they were
consulted and they changed the whole strategy, those two. What happened
was that Roosevelt had this ridiculous strategy that Homer Cummings
the Attorney General had worked out, saying, "The Court's too old, and
they can't do their work. We're going to appoint one new judge for every
judge on the bench over 70 who doesn't resign."
That was ridiculous because there wasn't anything wrong
with these guys' brains, what was wrong was their goddamn views. They
were knocking statutes out right and left. Cohen really was the architect
of this, but he and Corcoran always worked together. They said, and
they persuaded the President, that the age of the Justices was not the
way to get the packing plan adopted. What you had to do is just say,
"We need minimum wages now. The only way to get them is this
way. We need a maximum hours law now. We've got to stop child
labor now. We've got to have a labor relations act now."
So the emphasis was on the word
"now." If you wanted to have
these things that people wanted, you had to change the Court. The Court
changed and then, of course, interestingly enough, the Court not only
changed but then Roosevelt's plan got defeated. I think that was divine
intervention; this was the perfect outcome. The New Deal was saved by
the Court changing its views,, but there's no precedent for the future
of packing the Court by increasing the numbers. You may say that Reagan
packed the Court, but he packed it by the people he put on; he didn't
add people. So, I think the result in 1937 was perfect. The New Deal
was saved, and Roosevelt's Court packing bill was defeated. See my article
in the November, 1990, North Carolina Law Review.
JOHNSON: So, it didn't set a bad precedent.
RAUH: That's right.
JOHNSON: You know, I think that Truman was critical of
that Court packing bill. He was about 98 percent in line with New Deal