With All Deliberate Speed: The Life of Philip Elman

4. A Regulatory Interlude

CHAPTER 4 A Regulatory Interlude THE SUPREME COURT USUALLY ENDED in those days in early June, and in June 1940 at the end of the Court term, I came to Washington with the expectation that I would see Justice Murphy and that he would anoint me. And I'd get the job and go to work. But it turned out that Murphy had gone back to Michigan. He had heen governor of Michigan and he was a graduate of the University of Michigan Law School. The dean of the law school went to work on him and talked him into taking a Michigan guy, which he did. So there I was high and dry-no Murphy. Ed Prichard was Frankfurter's law clerk in the 1939-1940 year. He was a wonderful witty man, whose career later became very tragic when he made the mistake of doing some things that put him in jail, destroying what would have been a great career in law and politics. And Phil Graham was finishing up his year as law clerk to Justice Reed that year, and he was going to be Frankfurter's law clerk the following year, 1940- 194I. They turned to me to succeed Phil Graham. So instead of becoming Murphy's law clerk for the 1940 term, I was chosen to become Frankfurter 's law clerk for the 1941 term. I spoke earlier about the role of accident and luck in being at the right place at the right time. Well, I lost out on Murphy, but I wound up with Frankfurter. And what would they do with me during the 1940 term while I was waiting to go to work for Frankfurter? That was easy. Joseph Rauh had been Frankfurter's first law clerk and remained very close to Frankfurter the rest of his days. Well, Joe and Telford Taylor had just gone to the Federal Communications Commission to work for James Lawrence Fly, the new chair60 A Regulatory Interlude 61 man of the Federal Communications Commission, the FCC. Roosevelt was then running for president for a third term. Now Morris Ernst was a friend ofFranklin Roosevelt, who shared his hatred of the big newspaper publishers, who had been against Roosevelt in 1932 and 1936. Ernst was a great proponent of diversity in media communications. Ernst thought it was a bad thing that in most of the cities of the United States the local radio station was owned by the local newspaper publisher. Ernst told Roosevelt that the Federal Communications Commission ought to do something about that. Of course that was music to Roosevelt's ears. He brought in Mr. Fly, who had been at the Tennessee Valley Authority, the TVA. Before that he had been an antitruster trying cases for Thurman Arnold. Fly was told to do something about the newspaper ownership of radio stations. The FCC was an old-line dormant agency which hadn't really done very much in the way of effective or vigorous regulation of radio. Fly brought in the same kind of lawyers who had been at the SEC and the Labor Board: New Dealers. Telford Taylor was general counsel and Joe Rauh was associate general counseL So it was easy. Frankfurter said to me, "You work for Joe Rauh for one year." I didn't apply for a job. I've never-well, hardly ever-applied for a job. I've always been told what I should do, where I should go, and it's always worked out just fine. I have no complaints. I went to work for Joe Rauh and I did everything there. I did regular FCC legal work. My immediate superior was a man named Rosel Hyde, who later became the chairman of the Federal Communications Commission . He was an old-time bureaucrat. He ran the New Stations Applications Section of the Broadcast Bureau. There weren't very many competing applications for the same frequency, so it was usually a simple matter of processing an application, making sure the applicant was financially qualified, was a citizen, that operation of the station would not interfere with any other station, and so on. The job of the lawyer was to take the file and reduce it to a one-page memorandum for the commission. These old-time lawyers at the commission would take a file and a week later would produce a memorandum for the commission. That With...