Erwin N. Griswold, Solicitor General of the United States and former Dean of the Harvard Law School, spoke informally to a group of Stanford Law School alumni on August 15, 1972 during the American Bar Convention in San Francisco. Following is a partial transcript of his talk.

People sometimes ask, “Which do you like best-being Dean or being Solicitor General?” I’m very greedy; I say I like both. The succession has been ideal for me. I loved it at the Harvard Law School. I’ve always been lucky. I’ve always had fun at my work, whatever I was doing.

I liked being dean of a law school very much. It was hard work. I left in 1967 which I guess for me was a very fortunate time to leave because I don’t think I would have been very flexible or very successful at dealing with the student problems which blew up at that time and which, I must say, had neither any intellectual nor any emotional appeal for me. I would probably have tried to stand firm, which I think would have been wise and the correct thing to do, but I would have been bowled over and I would have been very unhappy and, as a result, it has turned out, I think, to have been a very good time for me to move on. I had been dean of the Harvard Law School for 21 and 1/2 years and that was long enough for them and long enough for me. As I told the faculty at the time, Ramsey Clark called me on the telephone and asked if I would be willing to have my name submitted to the President as one for consideration for appointment as Solicitor General-I later learned it was the only one that was being submitted, but he didn’t tell me that at the time-and I told the faculty that I took 15 agonizing seconds and said yes.

So I went back to Washington. I say went back because I spent five years in Washington right out of Law School and in the same office. I had always expected to spend my life in Cleveland where I had been practicing law for three months when I got the invitation to start as the junior junior in the Solicitor General’s office. I accepted for two years. They told me that they didn’t want me unless I would stay two years, so I said I would come and stay for two years for experience. I stayed five years when Dean Pound called me on the telephone and asked me if I would like to come and teach at the Harvard Law School; they would give me an appointment as assistant professor for three years. I said, “Well, I don’t know whether I’ll like it or not. I’ll take an appointment for one year because I don’t want to be under any obligation, express or implied, to stay longer than one year.” I stayed 33 and 1/2 years, and finally came back to Washington.

I suppose the lawyers here all know what a Solicitor General is. I sometimes put it this way, again hoping that the press won’t print it in headlines-I do what you think the Attorney General does. The Attorney General has a very important post, but it is a political post and I use that term in the highest sense because I think that politics is one of the highest arts that men have to deal with. The Attorney General advises the President; he carries on relations with the press; he has press conferences; he makes speeches; he deals with congressmen and senators; he prepares and appears before Congressional committees with respect to bills which the administration wants; he has the special responsibility of advising the President on judicial appointments, which means really working with the senators; and he just has no time to be a lawyer.

On the other hand, the Solicitor General has no political responsibilities. He does try to keep from causing too much trouble for his superiors, but he is not expected to be a politician. His function is solely professional; he is expected to be a lawyer. And that I find very pleasant and, indeed, in many ways not greatly dissimilar from the kind of work that one does when he is dean of a law school. Even as a dean I used to write an article now and then, although it got harder in the later years. Well, I work now on briefs which is the same kind of work. I used to have to negotiate and deal with faculty members, university authorities, particularly the controller’s office (which was always trying to steal money from the law school and unless I looked at the accounts line by line something would be slipped over on me). I now have to deal with all the divisions of the Department of Justice and with the general counsel and other officers of other government departments and agencies like the Federal Trade Commission and the Federal Communications Commission. All of these things with respect to their legal activities focus on the Solicitor General’s office.

The Solicitor General has two primary responsibilities. One is the representation of the United States and its officers and agencies before the Supreme Court of the United States and the other is one which is not widely known, but which is of really considerable importance, which is that it is the Solicitor General who determines whether any case the government loses anywhere, in any court, will be appealed or not. My office has a coordinating function designed to keep the government from making one contention in one court and another contention in another court in another case which would happen if the various cases did not focus through the Solicitor General’s Office.

This is, by common consent, and I do not dissent at all, the ideal professional job in the federal government. The volume of work is very large. We have over 1500 cases a year in the Supreme Court. That is a mildly misleading figure because the overwhelming proportion of those are with respect to briefs opposing the other side’s petition for certiorari; but we also have the cases in which we file petitions and we also have something like sixty-five or seventy cases a year on the merits, for all of which I am responsible. I can’t personally argue all of ing ever happens there until two years later, and, moreover, not only does it not happen for two years, but by the time it gets to the Supreme Court it’s always different in some way or other so it doesn’t do any good to worry about it too much in advance. So I really didn’t pay any attention to it and read the newspaper articles the same as anybody else did.

We flew back to Washington and I heard that there would be a hearing before Judge Gesell on Monday, and I thought, well, the boys working on that case are going to have a very busy weekend, aren’t they. Then I read in the paper Tuesday morning that Judge Gesell had decided against the government and that it would be heard in the United States Court of Appeals for the District of Columbia at 2: 00 that afternoon. I thought that was very interesting and went to my office and went about my business; at ten minutes after eleven the Attorney General asked me to come in to see him. That happens every once in a while and I them, but I did argue sixteen cases at the most recent Term.

Some of the cases are spectacular, some are very routine.

We have such things from time to time as the case involving the Pentagon Papers. A year ago last June I was committed to go to speak to the Florida State Bar near Miami and while I was down there I read in the New York Times the first of the articles based on the Pentagon Papers. I said to myself, “Well, it looks as though there might be a case out of this some time.” But one of the things you learn in the Solicitor General’s Office is that nothing ever happens there until two years later, and, moreover, not only does it not happen for two years, but by the time it gets to the Supreme Court it’s always different in some way or other so it doesn’t do any good to worry about it too much in advance. So I really didn’t pay any attention to it and read the newspaper articles the same as anybody else did.

We flew back to Washington and I heard that there would be a hearing before Judge Gesell on Monday, and I thought, well, the boys working on that case are going to have a very busy weekend, aren’t they. Then I read in the paper Tuesday morning that Judge Gesell had decided against the government and that it would be heard in the United States Court of Appeals for the District of Columbia at 2:00 that afternoon. I thought that was very interesting and went to my office and went about my business; at ten minutes after eleven the Attorney General asked me to come in to see him. That happens every once in a while and I went in to see him and he said, “This Pentagon case is going to be argued in the Court of Appeals this afternoon.” I said “Yes, I read about it in the paper.” He said, “I’d like to have you argue it.” I said, “Mr. Attorney General, I don’t know anything about the case; I’ve never seen the papers; if there is a record I’ve never seen it; if there’s a brief nobody’s talked with me.”

“Well, of course, if you’d rather not I’ll see if I can get somebody else.” And I said, “Mr. Attorney General if you want me to argue it I will argue it.” And so I came back to my office, called my wife and said, “I don’t want to be fussy, but I’ve got brown shoes and I don’t wear brown shoes to court and I’ve got a pretty loud tie for me; if you could pick up some black shoes and a quieter tie and, while you’re at it, if you could put a couple of sandwiches in a bag and bring them down to me, it would be quite a help.” Between 11 :20 and a quarter to two I jotted down some notes and at a quarter to two, having meantime got the shoes and the tie and sandwiches, I walked over to the Court of Appeals building where I had never been. I finally found my way up to the courtroom, having a terrible time getting in because there were just millions of photographers all over the place and newspaper reporters. When I got in some deputy clerk of the court came up to me and said, “Are you going to argue this case?” I said, “Yes, I guess so,” still trying to think what I was going to say, and he said, “Who is going to move your admission?” I guess at that point I got rather stuffy and pulled myself up to my full five feet eleven and said, “Well, if your records go back that far I was admitted to practice before this court more than 40 years ago.”

I then had to appear before the full bench of the Court of Appeals, still never having seen even the outside of the Pentagon Papers, still having no idea of really what was in it and never having consulted or conferred with anybody as to what the legal grounds might be. I went ahead and made my argument. You know sometimes you realize that you’ve stumbled badly and this time I didn’t. Somehow or other it seemed to go fairly well. We lost the case but that wouldn’t be the first time I made a good argument and lost the case. I may say this was a very excellent dress rehearsal and gave me confidence for the later period.

I then went back to my office and had a chance to confer with my deputy, Daniel Friedman. We figured we were probably going to lose in the Court of Appeals for the District of Columbia; we also knew that a parallel case was going on with respect to the New York Times in New York and we felt we ought to keep both of them together. On Thursday afternoon we were told that the New York Times had filed a petition for certiorari. On Thursday at about six o’clock we filed with the Supreme Court an application for a stay in the Washington Post case simply for the purpose of keeping that case parallel with the New York Times case because we thought it wasn’t fair to have the New York Times enjoined from printing the stuff while th~ Washington Post could go ahead and print it. Just at the last minute I suggested that we put in at the end a sentence to the effect that if the Court wished to treat this application for a stay as a petition for certiorari, that was all right with us.

The next morning, Friday at about noon, the Chief Justice called me personally on the telephone and said, “The Court has granted your petition for certiorari. The case will be argued at 11:00 tomorrow morning and briefs will be exchanged at the beginning of the argument.” I still hadn’t seen even the outside of the Pentagon Papers. But I then immediately got in touch with the Internal Security Division. I found they had a set of them and I got the 47 volumes delivered to my office. They contained seven million words. If I read them at 200 words a minute it would take me seven weeks to read all of them. I don’t know how I got all this done. I really wasn’t very nervous about it. When you get under this kind of pressure you just kind of go ahead and do what you can do. I got the head man in these matters from the State Department, from the Defense Department and from the National Security Agency into my office for an hour each from 2:00 to 5:00 p.m. and I said to each one of them-now you tell me what is really bad here. I made longhand notes and when I got through with all of them I had 41 items that they said were really serious. I then leafed through those 41 items: they had given me the page references. I quickly concluded that a lot of them weren’t really serious and I finally reduced it to eleven items on which I then decided we were going to stand-and I started working with my secretary to dictate the secret or closed brief.

In the meantime I said to my deputy, Daniel Friedman, “now you write the brief on the law; if you don’t bother me that’s all right with me; if you can just go ahead and do it that’s fine. If you feel that you must talk with me, why that’s all right too.” He went ahead and wrote twenty legal-size pages with his secretary staying until 3:00 a.m. I dictated the so-called secret brief dealing with these eleven items. I finally left at about 3:30 a.m., figuring that if I was going to argue the case the next day I’d better get some sleep. My secretary is married and she said her husband would come and get her. She stayed to about 4:30 when she finished typing it.

I may say that one of the events of the afternoon was that, very shortly after the 47 volumes had been delivered to my office, a man came in and pointed to my secretary and asked, “Who’s she?” And I told him she was my secretary. “Is she cleared?” I said I did not know. “Well, she can’t work on this if she isn’t cleared.” And I said, “Well that’s very interesting because she is going to work on this. I am in charge of the case; I know you have your duty to do and if you don’t like the way I’m doing mine will you please go and report to whomever you’re supposed to report to, and don’t bother me any more.” Just as I was going to go home at 3: 30 a.m. it suddenly dawned on me that I had the 47 volumes there and I did not quite figure how I could take them home, which I did not want to do anyway. Then the bright light dawned-the F.B.I. is just down the corridor. But I could not find the F.B.I. in the Department of Justice phone book. It isn’t in the Department of Justice phone book; it has a separate telephone switchboard. I finally got that number and I called it and the very polite man said, “that’s fine, we’ll take care of it.” Pretty soon two agents came down, took away the 47 volumes (I don’t know whether they sat on them all night or not) and redelivered them at 9:00 o’clock the next morning.

We were both back at 8:30. I then proof read what ‘she had typed. She corrected it. This was Saturday morning in the Department of Justice; I know how wonderful things are in law offices in San Francisco, but in the Department of Justice there isn’t 7 anybody there on Saturday morning. My secretary ran the Xerox machine and I assembled the pages. We finally got twenty copies of this thing put together.

In due course, I went up to Court with these copies of the brief, ten to be filed with the clerk. The security man was there. He said, “What are you going to do with those.” I said, “I’m going to file them with the Clerk.” “Is the Clerk cleared?” Finally, after I had kind of just brushed past him and filed them, I had two more copies left. One of these was for Alex Bickel, counsel for the New York Times and the other was for counsel for the Washington Post, and I said I was going to give them to counsel for the other side. “Why that’s treason,” he said, “that’s giving it to the enemy.”

We had the argument, it was all transcribed, printed in the New York Times the next day. With great trepidation I read it. It read pretty well. I spent Sunday morning on the golf course and felt quite relaxed from the strain and when I got to my office Monday morning, there was Mr. Glendon, counsel for the Washington Post. I said, “Mr. Glendon, what brings you here?” He said, “I’ve never read your secret brief.” The curious thing about it was, despite this security man, our only avenue to get across to the papers what we really didn’t want them to print was through getting this brief into the hands of their counsel and hoping that their counsel would suggest to them that on the whole it might be just as well if they didn’t print those eleven items. And that pretty much worked out for a long time, although most of them have now come out. I said, “Mr. Glendon, I personally handed you a copy in the Court last Saturday morning.” He said, “Yes, I know you did, but as soon as the argument was over that security man came and took it away from me.”

As I have indicated, I could go on and on. This work is constantly interesting, yet occasionally one allows oneself to feel that it may be important. When I was in the Solicitor General’s Office forty years ago there were five lawyers altogether and now there are fourteen plus the Solicitor General. That, of course, is a misleading figure because all of our cases have been handled by the various divisions of the Department or by other agencies in the lower courts and we build on the work they have done and use their personnel to a considerable extent, but we are still able to have a fairly close knit and very congenial group and for me, it’s the ideal law practice.

Thank you very much.