Joseph L. Rauh, Jr. (1911–1992)

2012-08-22 16:12:39

Joseph L. Rauh, Jr. was born in Cincinnati, Ohio, the son of a clothing manufacturer. He graduated from Harvard College (1933) and the Harvard Law School (1935), where he ranked first in his class and came under the influence of Professor Felix Frankfurter. At the latter’s urging, he joined the administration of Franklin Roosevelt in 1935 and served briefly in the general counsel’s office at the new Securities and Exchange Commission. Soon, however, he was recruited by Benjamin V. Cohen and Thomas G. Corcoran, among the New Deal’s keenest legal minds, to help defend the constitutionality of the Public Utilities Holding Company Act, a victory eventually secured in the U.S. Supreme Court.

Joseph L. Rauh, Jr. (1911–1992)Joseph L. Rauh, Jr. (1911–1992)In 1937, Rauh served as law clerk to Supreme Court Justice Benjamin Cardozo during the turbulent term in which Roosevelt announced his ‘‘court-packing’’ plan, and the justices sustained major state and federal laws directed at the nation’s economic problems, including minimum wage legislation, the National Labor Relations Act, and the Social Security Act. He nursed Cardozo through his final, fatal illness a year later, and when his old mentor Frankfurter took Cardozo’s seat on the Supreme Court in 1939, Rauh became his first law clerk.

He served in three other government posts before enlisting in the Army following Pearl Harbor. In the general counsel’s office of the Wage and Hours Division of the Department of Labor, he drafted and defended broad interpretations of the Fair Labor Standards Act that extended the scope of its coverage over American workers. At the Federal Communications Commission, working closely with chairman Lawrence Fly, he vigorously defended Supreme Court decisions that narrowed the government’s authority to engage in wiretapping (see Nardone v. United States [1937]). And in the Lend Lease Administration, where he first met labor leader Walter Reuther, he sided with those New Dealers who sought rapid conversion of domestic industries to war production.

In the Pacific theatre from 1942 to 1945, he served as a civil affairs officer on the staff of General Douglas MacArthur, most notably as the temporary mayor of the city of Manila following the Allied defeat of the Japanese in the Philippines. In that capacity, he negotiated a political truce among contending Filipino groups and saved the city’s inhabitants from immediate starvation by distributing excess flour stored in military warehouses.

Returning to Washington, D.C. in 1945, Rauh went into private practice with a former Harvard classmate, Irving Levy, both specializing in labor, civil liberties, and Civil Rights Cases. He raised funds that year for Reuther’s United Automobile Workers Union (UAW) in their strike against General Motors, but declined the union’s invitation to become its general counsel in Detroit, a position soon filled by Levy. Following the latter’s death, Rauh became Reuther’s top lawyer at the UAW and acquired a brilliant new partner, John Silard, as well as a talented young associate, Dan Pollitt, a future law professor at the University of North Carolina.

Although labor litigation and the UAW account kept the Rauh firm solvent in the 1950s and 1960s, its senior partner devoted the greater part of his energy to defending clients ensnared in the expanding government machinery of the domestic cold war. Along with Arthur M. Schlesinger, Jr., Eleanor Roosevelt, James Loeb, and others, he launched Americans for Democratic Action (ADA) in 1948, a staunch anticommunist, liberal organization dedicated to expanding the domestic agenda of the New Deal, defending civil liberties, and defeating Henry Wallace’s thirdparty campaign for the presidency. While attacking Wallace and his communist supporters, Rauh leveled equally harsh criticism against the FBI, its director J. Edgar Hoover, and President Truman’s Loyalty and Security Program that permitted the government to fire employees accused of disloyalty on grounds of their ‘‘sympathetic association’’ with persons or organizations listed as subversive by the U.S. attorney general.

Representing clients before assorted federal loyalty boards, Rauh became an outspoken critic of their procedures, which denied to those accused the right to see incriminating FBI files or to confront and cross-examine their accusers. He successfully defended James Kutcher, a disabled, decorated veteran, whose speeches on behalf of the American Trotskyites had led to his dismissal from the Veterans Administration. He won vindication in loyalty hearings as well for William Remington, an economist in the Commerce Department, who had been accused by Elizabeth Bentley of spying for the Soviet Union. Remington, however, was later charged with perjury, convicted, and sent to prison where other inmates murdered him.

Rauh took two major loyalty/security cases to the Supreme Court, where he narrowly missed achieving a constitutional milestone. Representing Dr. John Peters, blacklisted by the U.S. surgeon general, and Charles Allen Taylor, denied security clearance by the Pentagon, he asked the justices to rule that the government’s failure to allow both victims access to FBI files denied due process of law, a ruling that would have seriously crippled the entire program. The justices held for Peters, but only on technical grounds (Peters v. Hobby [1955]). The Defense Department, fearing defeat, restored Taylor’s clearance before oral argument. The Supreme Court therefore dismissed his suit for mootness (Taylor v. McElroy [1959]), but on the same day endorsed Rauh’s due process argument in the companion case of Greene v. McElroy (1959).

Before the red hunters who ran the House Committee on Un-American Activities (HUAC), Rauh defended three notable clients—Lillian Hellman, Arthur Miller, and John Watkins—all of whom faced the unpalatable legal choice of cooperating with their interrogators, risking contempt if they refused, or invoking their privilege under the Fifth Amendment. The third choice would brand them ‘‘a Fifth Amendment communist.’’ He devised Hellman’s strategy of offering to speak frankly about herself, but not others, an offer rejected by HUAC, which forced the playwright to take the Fifth. Doing so, she also issued a statement to the press, drafted by Rauh, that cast the Committee in the negative role of witch-hunting tyrants. She escaped further harassment by the Committee or legal consequences.

Miller and Watkins both refused to respond to questions from the Committee, were found in contempt, and convicted. On appeal, Rauh prevailed. The Court of Appeals for the District of Columbia overturned Miller’s conviction on grounds that HUAC had failed to inform him of the consequences of his refusal to testify. Watkins became a Supreme Court landmark when the Warren Court reversed his conviction and reprimanded HUAC for employing its powers of investigation solely for the purposes of exposure and humiliation (Watkins v. United States [1957]).

A longtime labor lawyer, with close ties to Reuther and the autoworkers, Rauh incurred the wrath of many union leaders in the 1970s and 1980s, when he skillfully used the Landrum-Griffin Act to promote union democracy and fair elections for insurgent candidates inside the United Mine Workers Union (UMW), the United Steelworkers, and the UAW itself. He won a new election for Jock Yablonski, the reform leader in the UMW, including critical access to union publications, shortly before the union leadership hired gunmen who murdered Yablonski, his wife, and daughter. He represented Ed Sadlowski in his bid to topple the old guard in the steelworkers’ union and he nearly prevailed in a major Supreme Court case that would have allowed union reformers to seek financial support outside the existing union membership (United Steelworkers of America v. Sadlowski [1982]). His endorsement of Jerry Tucker’s campaign inside the UAW made him an outcast among his old union allies in Detroit.

Although ill health prevented him from carrying his last civil liberties case to its conclusion in the early 1990s, Rauh’s tenacity and skill won a significant victory for a group of Canadian citizens for whom he sued the Central Intelligence Agency (CIA) for negligence, and forced the agency to a financial settlement rather than a public trial. The Canadians had been subjected to illegal and dangerous drug experiments at McGill University during the 1960s when they sought legitimate medical treatment at a clinic funded by the CIA as part of its experiments in brainwashing. The Canadian government, also implicated in the cover-up of the program, made restitution to its own citizens shortly after Rauh died in 1992.


References and Further Reading

  • Parrish, Michael E., A Lawyer in Crisis Times: Joseph L. Rauh, Jr., the Loyalty-Security Program, and the Defense of Civil Liberties in the Early Cold War, North Carolina Law Review 82 (2004): 1799.

Cases and Statutes Cited

  • Greene v. McElroy, 360 U.S. 474 (1959)
  • Nardone v. United States, 392 U.S. 379 (1937)
  • Peters v. Hobby, 349 U.S. 331 (1955)
  • Taylor v. McElroy, 360 U.S. 474 (1959)