Editor's Note: Part Two appears in the October 2002 interview.
Q: Where were you raised as a child?
A: I was born and raised in Parkman in Piscataquis County, Maine. Do you know where Guilford is? Yes? I like to say that Parkman is a suburb of Guilford.
Q: Would you be willing to share any childhood memories that contributed to your sense of civic commitment?
A: I have an identical twin, Victor McKusick, University Professor of Medical Genetics at Johns Hopkins. We grew up on a dairy farm. Our parents instilled a sense of civic commitment in us. My father was a Bates graduate and had taught in a high school in Vermont and then came back to his hometown of Parkman and went into dairy farming. And my mother ... she was a schoolteacher in her earlier years and within the family remained our schoolteacher right through our high school days.
My father was in the state legislature, in both the house and the senate, a total of 12 years, and during the last seventeen years of his life he was on the state board of education, for some years its chairman. His example showed us the way to public responsibility.
Our farm upbringing gave us a strong work ethic and a healthy respect for education as a way to get ahead in life.
Q: You were raised during the Depression. How did that affect your upbringing?
A: We were relatively isolated from the Depression. The farm was largely self-sufficient. It didn't affect us in the same way that it did many people. As Eisenhower said of his Kansas youth, "we were poor but didn't know it."
Q: You attended Bates College and MIT?
A: Yes. MIT was somewhat accidental because of my military service. I graduated from Bates in 1943 and then I went right into service. I took infantry basic training. Then I was sent into ASTP, the army specialized training program, in engineering at Drexel Institute of Technology in Philadelphia and then at VPI, Virginia Polytechnic Institute. From there I was sent to the Manhattan Project in Los Alamos. I spent about fourteen months in Los Alamos.
Q: What did you do in Los Alamos?
A: I was an enlisted man working as a technician in a research group. I was a very small cog in a very large research wheel. My small group specifically tested the timing on the detonators that set the bomb off. This work was completely on the explosive side, not the nuclear side.
Q: Did you know what its purpose was?
A: We knew we were working on a device ... not very much beyond that, really. The Manhattan Project was a remarkable demonstration of how a tremendously big job can be carved down into enough separate small pieces so as to be individually manageable and also protected, so far as security is concerned. A tremendously big job becomes much easier. Obviously, somebody at the top has to know how the pieces fit together.
Q: What was your reaction after you found what it was put to use for?
A: We were awestruck, as everybody else was. I'm often asked, "What did you think about using it?" Of course, at the time we were all perfectly convinced that it was necessary to bring the Japanese war to a quick end or there would otherwise be a heavy loss of life. The Japanese homeland was going to be invaded. That was the next step.
Q: What led you to decide to pursue a legal career?
A: I had always planned to go to law school. I would have gone directly to law school from Bates if it hadn't had been for the war. Because of the GI bill and because I could get a masters degree in electrical engineering, I went to MIT when I got out of the service in February of 1946. I was in the cooperative electrical engineering program for five terms, until September of 1947. I received both a BS and a MS degree in electrical engineering. I worked two summers, the summers of 1946 and 1947, with General Electric Company in the MIT cooperative program.
Q: If you wanted to pursue a legal profession, why did you go to MIT?
A: I guess I thought I would become the "world's greatest" patent lawyer. In fact, in the summer after my first year in law school I worked for a patent law firm in Boston that did the patent work for MIT. That started to wean me away from patent law. Patent law, so far as contracting and litigation, is just as interesting as any contracting and litigation work. But the patent application work to me would be deadly. Actually, what weaned me away from patent law were broader opportunities. When they present themselves, you grab them.
Q: What were those opportunities?
A: Not the least, making the Harvard Law Review and then becoming its president.
Q: How did you find Harvard?
A: Demanding. It's a great institution.
Q: What year did you graduate from Harvard?
Q: What after that?
A: I clerked the first year, 1950-51, in New York City for Learned Hand (Chief Judge of U.S. Court of Appeals, Second Circuit) and I went from there to be one of the two clerks for Justice Frankfurter (US Supreme Court). My fellow clerk was Abram Chayes. He spent most of his career back at Harvard Law School as a professor. He served in the Kennedy administration as the Legal Advisor to the State Department.
Q: Would you like to share what Judge Hand and Justice Frankfurter were like?
A: I remember once visiting a distinguished law professor in England who was roughly a contemporary of Learned Hand. He said when he first heard that name he thought Learned Hand must be an Indian chief!
Clerking for both judges was a wonderful experience, each in its own way. Judge Hand would at times break into a rendition of Gilbert & Sullivan or would join in an old time hymn played at noontime by the chimes of a church near to Foley Square.
Frankfurter was always very much the academic, holding impromptu graduate seminars with his law clerks. He would draw in law clerks from other chambers, sometimes to the dismay of his colleagues. We worked on all the cases together and he would prod us to extend our thinking.
Q: You were clerking for Frankfurter in the early 1950's?
A: Yes, in 1951-1952.
Q: Did you feel any of the repercussions from the beginnings of the Cold War?
A: The Korean War was under way at that time. The big case in the term was the steel seizure case, the seizure by the government under President Truman of the steel mills, which were threatened with a strike. The Supreme Court held that the seizure was unconstitutional. That was the big case in the spring of 1952.
Q: What did you do after you clerked?
A: I came here to Portland exactly fifty years ago this August and was sworn into the Maine bar on August 18. Our first child Barbara was born just a week later. My wife Nancy of course had played a part in deciding to come back to the State of Maine. She's from Massachusetts but has now lived in Maine much longer than Massachusetts.
Q: Was it the quality of living that brought you back?
A: Yes, and the quality of lawyers such as Leonard Pierce and Fred Scribner and all the rest here at this firm. This firm, now known as Pierce Atwood, has been my whole professional life in Maine except for the fourteen and one-half years that I served as chief justice. It was Hutchinson Pierce Atwood & Scribner when I came to it. I was Number Eight Lawyer. Mr. Hutchinson was along in years and substantially inactive at that time, so I was really the seventh lawyer.
Partnership in the law firm came much faster in those days than it does today. On January First, 1953 I became a partner. I was proud that Sigrid Tompkins became a partner of the firm on the very same date, the first woman to become a partner of any significant law firm in Maine.
Fred Scribner went to Washington in 1955. He'd been a Republican national committeeman and was active at the 1952 Republican Convention that nominated Eisenhower. He went to Washington as the general counsel of the Treasury Department and then became deputy undersecretary of the Treasury. Bill Smith, who came to the firm in 1955 right from law school, specialized in tax and went to Washington with Fred in a tax group, so that the firm shrunk in the mid 1950's. Ralph Lancaster came to the firm in 1959, by then only the seventh lawyer.
Mr. Hutchinson died on Memorial Day of 1960 and Leonard Pierce died on Labor Day of 1960. Then Fred Scribner, with the change of administration in January 1961, came back, as did Bill Smith. The firm's name was changed to Pierce Atwood Scribner Allen & McKusick in January 1962. And that was its name until September of 1977 when I went on the bench and the firm became Pierce, Atwood, Scribner, Allen, Smith & Lancaster.
Q: Did you focus on any particular areas of law?
A: That wasn't possible at first. We did everything. Fairly quickly, however, I became involved in public utility law. In the 1950's and early 1960's there was a succession of rate cases involving electric, telephone, and water companies. Their rates had been set before World War II and with tremendous inflation and increased cost of doing business, those rates had become completely out of line.
The Public Utilities Commission (PUC) was very busy in holding rate hearings and developing accounting principles. As a result there were three large Central Maine Power rate cases tried before the PUC and then before the Maine Law Court. PUC decisions are appealed directly to the Law Court (as Maine's supreme court in its appellate function is called). I was involved in all three of those appeals. And in the last one I was also involved in the proceedings before the PUC. The cases are in 150 Maine Reports, 153 Maine Reports and 156 Maine Reports.
The cases involved a lot of accounting issues: How do you determine the rate base, how do you determine the rate of return? By law a public utility is entitled to a fair return on the property that it commits to the public use. It is a battle of experts. Also it's a battle of lawyers in the sense of identifying the legal principles for determining a fair return.
In 1952 Leonard Pierce was called in as a senior advisor on the appeal by the New England Telephone Company in its rate case in Maine. That case introduced us to that utility. They were represented by Jim Reid, an excellent lawyer in Augusta. In 1960 he went on the Superior Court, and the New England Telephone Company came to us to take over their representation in Maine.
Thus, public utility law became an active part of my practice. But I also did estate planning and lectured to the Chartered Life Underwriters group on that subject. I also did a lot of general corporate law. Before he went to Washington, Fred Scribner had been Treasurer of Bates Manufacturing Company, as well as its counsel, and I took over his job as counsel for Bates, but of course not treasurer, when he went to Washington. I also did corporate work for smaller companies.
I was not a trial lawyer even though I was on the rules committee that wrote the so-called new rules. I tried only a couple of cases that I can remember. But I did a great deal of appellate work before the Law Court, much outside public utilities.
Q: You were also an active member of the American Bar Association (ABA)?
A: Yes. My ABA work started in a serious way in the early 1960's when I went on the ABA Standing Committee on Federal Rules. Later in the 1960's I became the chairman of the committee. Then in 1971 I went on the board of editors of the American Bar Association Journal and served a total of three terms, nine years, one term more than was usually allowed. At the end of my second term, I was the chairman of the board of editors and that entitled me to hold over another term. It was very enjoyable because the president, the president-elect, the treasurer and the secretary, the four top officers of the ABA, are ex-officio members of the board of editors, so I got a look-in to the successive leadership of the ABA.
Q: What other national exposure did you have?
A: In the late 1970's I went on the board of the American Bar Foundation. Terms are five years and I served two terms. In 1962 I became a member of the American Law Institute (ALI) and in 1968 I was elected to the ALI Council where after 34 years I still am active.
As you know the ALI was the co-author of the Uniform Commercial Code and produces the Restatements of Law, which strive to make the principles of law more understandable and uniform. My ALI Council membership has presented me a splendid opportunity to satisfy my desire to promote law reform, similar to the opportunity I earlier enjoyed in helping draft new rules of procedure for Maine.
Another opportunity along the same line came in 1968. Governor Curtis named me as one of Maine's three commissioners on uniform state laws. I had two four-year terms and enjoyed it very much, helping to draft and promote uniform laws. It is a wonderful organization where practicing lawyers, judges and professors come together from every state to work to improve the statutory law and to make it more uniform across the country. The lawyers leave their clients at the door and approach the law reform task in an impartial way.
In the last year of my second term I was secretary of the National Conference of Commissioners on Uniform State Laws on the way up through the chairs to be president. Governor Longley, the governor at the time I came up for reappointment in 1976, held the belief that the State was best served by changing the membership of State commissions from time to time. Accordingly, in August 1976 he appointed someone else to Maine's uniform laws commission. The next year Governor Longley more than made it up to me by appointing me Chief Justice. Obviously, I am much indebted to Governor Longley for "reassigning" me as he did to the job of Chief Justice.
Q: I understand you also served as President of the Conference of Chief Justices. Tell me about that.
A: The Conference of Chief Justices ("CCJ" it's called) is the organization of the heads of all the State Judicial Branches and thus is the counterpart of the National Governors Association that is comprised of the heads of all the State Executive Branches. I served as CCJ President in 1990-91 and at the same time served as Chairman of the Board of the National Center for State Courts headquartered in Williamsburg, Va. Since then, as a member of the CCJ's Standing Committee of Past Presidents, I have continued to participate in the work of the CCJ, including attending the 2002 meeting here in Maine at the Samoset that was hosted in July by Chief Justice Saufley.
Q: You also went outside the United States?
A: Yes. I made two trips to China under two different auspices. In July of 1978 the top leadership of the ABA made up a group of twelve to go on a so-called study visit to the People's Republic. I was fortunate to be the state chief justice on the trip, one of only two judges to go, the other being a federal district judge from San Francisco. It was an opportune time to go because it was six months before normalization of diplomatic relations between U. S. and China. The "Gang of Four" was a very recent memory. All that the U. S. had in Beijing at the time was a charge d' affaires. We were the guests of the Chinese Friendship Association, a semi-official body.
Then in 1983 I led a People-to-People International delegation of federal and state judges to China. People-to-People is a citizen ambassador program headquartered in Spokane that Eisenhower was instrumental in fathering in the mid-1950's. The trip came at another good time, just five years after substantial opening-up changes in China.
In 1988 I led a group of state and federal judges to the Soviet Union on another People-to-People trip. Glasnost had just started. It was before the Soviet break-up. We visited Moscow, Riga, Kiev, and Leningrad (as it then was) and came out by train from Leningrad to Helsinki and met with the supreme court of Finland. Nancy joined me in both of the People-to-People delegations.
Q: Did you have a sense that the break-up was going to happen?
A: Yes, definitely. We were eager to see how they were going to move.
In December 1992, just after I retired, I was asked by the State Department to lead a small professional group to the Republic of Georgia to talk about revising their judicial system. And that was a wonderful experience. This was the so-called Rule of Law Project of the State Department. My colleagues were a relatively young federal judge from Detroit, a very able lawyer who spoke Russian from the State Department, and a deputy United States attorney from the eastern district of Virginia. Again Nancy joined our delegation.
Shevardnadze had come back to Georgia in only March of that year. In the preceding December/January a great civil war had destroyed a lot of the buildings in the capital Tbilisi. We were hosted by the chief justice of the Georgian supreme court, who spoke fairly good English and had been a law professor at Tbilisi State University, and also by the recently appointed U.S. Ambassador to Georgia.
Q: You became chief justice of the Maine Supreme Judicial Court in 1977?
A: Yes on September 16, 1977. On that same day Dan Wathen, who is now my colleague of counsel to Pierce Atwood, was sworn in to the Superior Court. He served there until August 1981, and then he joined me on the Supreme Judicial Court. In 1992 he succeeded me as chief justice. In 2002 he has joined me at Pierce Atwood.
Q: What was it like being the chief justice?
A: I had a wonderful time. Yes, I did. To me no lawyer can have a better job than being the head of a state court system. It has its frustrations, but it has much greater satisfactions. The Maine judicial system is small enough to be manageable. The chief justice knows every judge and almost everyone else working in the courts. In addition to the administrative duties I had the chance to write about 650 opinions.
Q: Did you enjoy the research and the writing?
A: Very much. I often said my opinion work was R & R from the administrative side of the Chief Justice's job. It's the collegiality of the Law Court that makes the Chief's job a pleasure. My Court colleagues are some of my closest friends.
Q: Then you decided to retire?
A: Right. That time came. I'd had some discussions with my colleagues about proposing a mandatory retirement age for judges. Up until 1983 Maine had a de facto mandatory retirement age. Our retirement program, started in 1911, paid a retired judge, I believe, sixty percent of what the judge of the same level was receiving currently. The pension was subject to the condition that it was available only if the judge retired before reaching the age of 71. That was a pretty effective mandatory retirement provision.
In 1983 we prevailed on the legislature to institute a modern kind of retirement program, a pension plan similar to what other Maine State employees have. At the same time the retirement age condition went by the board. Then I thought that an express mandatory retirement provision ought to be enacted.
But just at that time the mandatory retirement provisions existing in other states came under attack as violating the federal age discrimination act. Massachusetts, New Hampshire and Vermont have, I believe, mandatory retirement of judges at age 70. Ultimately, in a Missouri case the US Supreme Court held that there were reasons that justify imposing a mandatory retirement age for judges and that the provision was not a violation of the federal age discrimination act. But by then I was approaching the retirement age of 71 that had become traditional since 1911.
As I approached the end of my second term in early October 1991, I concluded that I really ought to practice what I preach. Fortunately, for me, the constitutional provision for the terms of Maine judges had been amended to provide that a judge's term is seven years, but that a judge holds over for up to six months until a successor is duly elected and qualified. So I worked out an arrangement with Governor McKernan for me to hold over until the end of February 1992, which was just short of six months, so that I could give my annual State of the Judiciary address to the legislature and I could attend the mid-year meeting of the Conference of Chief Justices as its immediate past president. That's why I served fourteen and one-half years rather than fourteen years. Perhaps there was a bit of personal pride involved in this. The extra six months made me the longest serving chief justice in the 20th century.
Editor's Note: Part Two appears in the October 2002 interview.