Appendix to Opinion of FRANKFURTER, J., dissenting.

Honor has sat on this bench in the Federal courts and has seen in operation a system which to the naked eye reveals the kind of discrimination and exclusions that have been taking place and your Honor has done nothing about it. (P. 242.)

The Court: Mr. Dennis has a little suggestion for you there that Mr. Sacher is looking at. I think he means to give it to you.

Mr. Sacher: No. This is a private communication. Thank you.

The Court: I had no idea of desiring to see it, Mr. Sacher.

Mr. Sacher: Oh, I understand that.

The Court: I thought he intended it for Mr. Gladstein and I attempted to do what I thought was a courteous thing in calling his attention to it.

Now, please, don't try to misunderstand things like that. You may assume that when I say things I say them in good faith. I have no desire to do otherwise, and I think you gentlemen will do better to recognize that.

Mr. Sacher: I don't like to get the feeling that the clients are under the surveillance of the Court.

The Court: Well, all right. I am sorry that you take it that way. (P. 244.)

Mr. Gladstein: The key to the difference between what you have just said, your Honor, and what I am contending is a little magic phrase consisting of four words that you slipped into that last statement. I think it was "regardless of the justification”

The Court: I don't think you ought to say "slipped in” now.

I gather you meant that colloquial expression in a nice way.

Appendix to Opinion of FRANKFURTER, J., dissenting. 343 U.S.

Mr. Gladstein: Oh yes. Everything I say to the Court is always meant in a nice way, your Honor.

The Court: I know. (P. 247.)


Mr. Sacher: ... I heard your Honor say a few minutes ago that the witness did not look like a banker.

The Court: No, I said he did not look like a mechanic. Mr. Sacher: Oh, I beg your pardon. All right.

Now, the point I want to get at is this, that what the decisions of the Supreme Court are concerned with are not the appearances, for I have seen many workers and mechanics who look a darn sight more handsome and more personable and pleasant than a lot of fat bankers.

The Court: Well, we won't go into the question of how good-looking everybody is. We might not come out so well on that.

Mr. Sacher: That may be. (P. 383.)

(Conduct involved in Specification 11 ?-pp. 384-385; Jan. 21, 1949.)


Mr. Sacher: Well, I don't think you would have called him if you had anything to do with the trial. You were too good a lawyer to do any such thing.

2 Since Specification I charged generally "a wilful, deliberate, and concerted effort to delay and obstruct the trial," Specification II charges the first specific act of contempt in the principal trial. See 182 F. 2d at 431-432. The portions of the trial record reproduced in the specifications of the contempt certificate give, because of their brevity, only a mutilated picture of the trial. The places in the record where the alleged contempts occurred are indicated in order that each incident of contempt may be viewed in relation to the record excerpts set forth here.


Appendix to Opinion of FRANKFURTER, J., dissenting.

The Court: Well, it is quite flattering to have you keep talking about me as a lawyer, and I am glad to hear your comments on the subject as long as they are favorable. And if not I will preserve my equanimity in any event. (P. 399.)

The Court: You can reopen the matter of consideration when I hear from Mr. Isserman who doubtless is about to add something of importance in just a moment.

Mr. Isserman: I object to your Honor's remark. I think it is sarcastic. It doesn't show the respect that this Court should show to counsel. I object to it.

The Court: Well, I intended no disrespect to counsel. I will listen to what you have to say.

Mr. Isserman: I once more object to your Honor's ruling on matters affecting the clients I represent in this proceeding before hearing my position in respect to those matters. (P. 404.)

Mr. McCabe: Just take, for instance, an employee of the McGraw-Hill Company. The fact that he got a salary somewhat less than $5,000 I do not think would put him in the class of those whose economic outlook or whose economic philosophy would be at variance with that expressed by that of his employer. An employee of the National Association of Manufacturers might very well be drawing a salary which would, under the arbitrary rule which we are just toying with here I don't say we are setting it up arbitrarily, but we have tried to come around

The Court: You are certainly toying with it all right.

Mr. McCabe: Well, maybe it will be like my grandchild—when she toys with toys there isn't much left of the toys after about ten minutes.

Appendix to Opinion of FRANKFURTER, J., dissenting. 343 U.S.

The Court: Well, I seem to be surviving all right. (Pp. 428–429.)

The Court: ... After all this [is] not the trial in chief. This is the preliminary challenge, and the situation is a little bit different. I suppose I should take it under advisement. I do not want to act hastily about it. I must say that my study of this record in this interval has indicated to me, has for the first time put in my mind the thought of a series of concerted and deliberate moves to delay the case. I am exceedingly reluctant to take the view that any lawyer would do that, and even press by this occurrence this morning

Mr. Sacher: I would like to deny that we have ever done it or that we are doing it now, your Honor.

The Court: I have put that thought from my mind for the present, but I will say that it is a rather difficult situation that has been brought up here by the conduct of counsel. (P. 465.)

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Mr. Crockett: I think the Court is aware that my arguments are usually pretty short and to the point, though I must confess they have not been any too convincing to your Honor

The Court: Yes, much better than Mr. Sacher and Mr. Isserman who have been—well, shall I say, prolix and vociferous and repetitious, but all in good taste, and I have listened, although I must say, as I said a few moments ago, that the thought has finally entered my mind that all this business that has been going on is just a series of wilful and deliberate maneuvers for delay.

Mr. Sacher: I resent that and I want to deny it once again. (Pp. 467-468.)



Appendix to Opinion of FRANKFURTER, J., dissenting.

Mr. McCabe: Your Honor told us to saw wood the other day.

The Court: Yes.

Mr. McCabe: And it seems to me that the sawdust is getting in somebody's eye. We are sawing wood a little bit too rapidly.

The Court: If you mean by that that you have perhaps got me in an ill humor, you are entirely mistaken, because I feel very pleasant and genial, and I have no desire or no thought of feeling disturbed at all; so if you meant by your comment that my attitude was perhaps changed or different, I think you are mistaken.

Mr. McCabe: I did not infer that at all, your Honor. The Court: What did you mean?

Mr. McCabe: What I said, that the sawdust was getting in somebody's eyes?

The Court: Yes. Whose eyes were you talking about?

Mr. McCabe: I say the eyes of anybody who is interested in defending a system of selection of jurors which is as we claim it to be. I will say this, your Honor

The Court: But you did not mean my eyes, I take it, did you? You could either say yes or no.

Now which is it?

Mr. McCabe: Well, when sawdust starts flying around I guess it gets in everybody's eyes.

The Court: So you didn't mean me?

Mr. McCabe: No, I will say I did not. I will say this: Your Honor, if I walked into this courtroom and told you that the legs of that chair you are sitting on were cracked and were about to fall, or if I said that this wall had a big crack in it, and that the whole system looked bad

The Court: It wouldn't scare me.

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