Friday, February 22, 2013

Louis F. Oberdorfer Dies (2/22/13)

The news reports are the Judge Louis F. Oberdorfer has died at age 94.  See the Legal Times Blog here, which has a good bio summary.

The Wikipedia summary, here -- very short -- is pretty good, with the Tax Division experience highlighted:
Professional career 
After working as a law clerk, Oberdorfer went into private practice in Washington D.C. with the firm Paul, Weiss, Wharton & Garrison as a tax attorney until his friend Deputy Attorney General Byron White asked him to join the Robert Kennedy Justice Department in 1961. He was hired as Assistant Attorney General, Tax Division but, since the division was largely organized and self-sustaining, he focused his energies on many legal issues, particularly civil rights. 
He returned to private practice in 1965 with Wilmer, Cutler, & Pickering. Oberdorfer remained friendly with the Kennedy family and personally represented Jacqueline Kennedy in a 1966-1967 public legal battle with historian William Manchester over the ownership of interview materials and their publication in his book The Death of a President about the John F. Kennedy assassination. In 1968, Oberdorfer was elected co-chairman of Lawyers' Committee for Civil Rights Under Law. He served as president of the District of Columbia Bar Association in 1977-1978. When Griffin Bell became attorney general in 1977, Oberdorfer was considered for the deputy position, but was instead appointed to the United States District Court for the District of Columbia. He has championed opposition to mandatory sentencing policies, especially with respect to drug offenders. He assumed status as a senior judge in 1992. He also taught part-time at Georgetown Law Center from 1993 until his death.
Also, the D.C. Bar had a series on Legends in the Law, including one on Judge Oberdorfer, here.   I cut and paste the part on his tenure in the tax division (with the predicate part about his entry into the field of tax law; I also highlight some things of interest, at least to me).
BR: How did you enter private practice? 
LO: I had an offer from the firm of Paul Weiss Wharton & Garrison. Lloyd K. Garrison, who was serving as special master appointed by the Supreme Court in the case of Georgia v. The Pennsylvania Railroad, came into Black’s chambers one day and invited me to come into the New York office of Paul, Weiss. I didn’t want to go to New York, but they then had a small tax office in Washington headed by Randolph E. Paul who wrote the first scholarly treatise on the federal income tax and the first scholarly treatise on the federal estate tax. At the time Paul and his partners were the ultimate pros in the tax field. I went down to the office to talk to them and they said they do only tax work, which I wasn’t interested in. Paul said, "I turned down around a hundred thousand dollars of non-tax business last year. Why don’t you come down here and take care of the non-tax cases." I took the job and I never saw a non-tax case! By default I became a tax lawyer.
I didn’t know anything about tax law. I thought it was like accounting, a drudgery sort of thing. But taxes are involved in every transaction. It’s a switching point for everything that’s going on. This was not a counseling practice so much as it was a tax controversy practice. We would go to the IRS for rulings and then we had litigation in Tax Court and the Courts of Appeals. 
I was there up to 1951 when I moved to what was then Cox, Langford, Stoddard and Cutler. Lloyd N. Cutler, whom I had known through Yale relationships, invited me to come over there because they didn’t have anybody doing tax work. I stayed there until 1961 when I went into the government. 
BR: What brought you to the Justice Department? 
LO: Byron White and I had been law school classmates. We were both interrupted—he by playing football, me by going into the army. We both came back to law school after the war and went from there to clerkships. He clerked for [Chief Justice Fred M.] Vinson the year I clerked for Black; White and his wife, Marion, became and remain very close friends. When he came back here from Denver to be deputy attorney general, he stayed with us and invited me to join this group he was putting together for Robert Kennedy. White recruited a senior staff at Justice that included Burke Marshall, Nick [Nicholas deB.] Katzenbach, Bill [William H.] Orrick [Jr.], and me because he knew us and he had sold Robert Kennedy on the idea that he should not staff Justice with political people. He should get the best young professionals he could to run the divisions. 
I was in charge of the Tax Division. Before I started down there, I was given an excellent briefing by the permanent staff. They were still recovering from the shock of having one of my predecessors several times removed convicted of obstruction of justice. After his mess-up, the Republican administration brought in a straight-arrow highly respected tax practitioner from Boston named Brian Holland who had reorganized that place and had it working like clockwork. The briefing went on all day long and at the end of it the senior fellow, Manny Sellers, said, "Mr. Oberdorfer, we’ve told you about what everyone else does, but we haven’t said anything about what the assistant attorney general does. As far as your job is concerned, you can be an administrator and supervise everybody on everything, or you can try cases out in the country, or argue in the Courts of Appeal. The solicitor general will let you argue all the tax cases in the Supreme Court if you want to because the solicitor general’s office doesn’t like tax cases. You can work just on compromises. You can write articles or books. Or, you can go out and play golf because this place is so well-organized that your old grandmother could run it." Which was true. I did some of everything, but with the Tax Division capable of running itself I felt quite free to engage very heavily in working with Marshall and the attorney general on all aspects of civil rights business as it emerged, and many other matters outside the Tax Division. 
One of the sensitive cases the old pros briefed me about concerned Sergeant York from Tennessee who had won the Congressional Medal of Honor in World War I for having killed or captured 108 Germans with his rifle, all in one morning. Sergeant York, as it was explained to me, on the bad advice of some country lawyer, filed a refund claim for some small amount of taxes that he had paid. Whoever advised him either didn’t know, or didn’t understand the consequences of, the fact that York had written (or had written in his name) a book that he had sold and he had never paid any tax on it. (It was also made into a movie starring Gary Cooper.) When he filed this refund claim, for $3,000 or $4,000, the government counterclaimed for something like $50,000 capital gains tax due from the book sale. When I’d been there only about two weeks, I was going over this list of important, sensitive cases I had received in the briefing and decided to talk to the IRS about the case. I found that it was being handled at IRS by an official named Singleton Wolfe. I called him and in a few minutes he was in my office with his case file. Wolfe happened to be from the same county as York and knew all about the case. While he was sitting there the phone rang; it was Robert Kennedy saying, "There’s a Congressman here from Tennessee talking to me about the Sergeant York case. You know anything about it?" I said, "Well, it so happens…" Robert Kennedy must have thought I was an absolute genius. So Wolfe and I went up, and here’s this congressman who knew Wolfe (as well as York) from way back. Kennedy said "What can we do about it?" I said, "There’s no way we can compromise at this point. The liability is plain. The man’s ability to pay is plain." Then Kennedy thought of this himself and said to the Congressman: "Why don’t you call Sam Rayburn to see if he will pass the hat to raise the money to pay old Sergeant York’s tax for him?" And that’s what they did. 
BR: Did you pick up where you left off when you returned to private practice. 
LO: While I was at Justice, Cox, Langford reorganized and merged with another firm and formed Wilmer, Cutler & Pickering. I began to get away from tax work, partly as a matter of interest and partly—like most everything else in my career—by accident. The firm had just taken on an engagement to the state of Wisconsin, Milwaukee County, and the City of Milwaukee to sue the National League and the owners of the Milwaukee Braves to enjoin them from transferring the franchise to Atlanta. My new partners knew that I was a baseball fan and that it would avoid conflicts and protect me from being one of those revolving-door tax people if I took on the case. Back in the 1920s the U.S. Supreme Court had ruled that baseball was not commerce within the meaning of the federal antitrust laws. So we sued in the state court under the Wisconsin antitrust laws. We won an injunction in the trial court and it was appealed by the league to the Wisconsin Supreme Court. Our principal client, in a sense, was Bud Selig, who is now Acting Commissioner of Baseball. On appeal, a divided Supreme Court of Wisconsin ruled four to three that enforcement of the Wisconsin antitrust law to prevent the movement of the franchise violated the commerce clause of the federal constitution. Baseball was defended in this case by Bowie Kuhn who subsequently became Commissioner of Baseball, and I’ve always said he got the job by beating us on the appeal.
Of course, tax and the Tax Division were only small parts of a very large life.  I recommend to all the full interview.


  1. Louis Oberdorfer had a signal, but unusual, impact on my career. While working as an IRS Agent in Miami, I went to night law school but, after graduating first in my class in 1964 and being on law review, I was planning to work for Chief Counsel in DC because I could not get an interview with D/J. Than, as fate would have it, my mother was President of the Sisterhood at her temple in Miami, and Judge Gladstone was President of the brotherhood. She casually mentioned my situation to Judge Gladstone at lunch. Judge Gladstone's father was a law partner of Louis Oberdorfer's father in Alabama and he and Judge Oberdorfer had grown up together. Unbeknownst to me, Judge Gladstone contacted Judge Oberdorfer, then Asst. Attny Genl.,who took the trouble to vet me and have C. Guy Tadlock, !!!, long time Chief of the Tax Section Personnel Office, send me a letter offering me a job in Refund Lit under Mike Baum. Since I had not been interviewed by DJ, I thought it was a gag promoted by the guys in my IRS Audit Group, and didn't answer him, which was something that he had never experienced before. So he called me, and I made outrageous demands on Mr. Tadlock thinking it was still a gag. Dismayed, but unperturbed, Mr. Tadlock acquiesced to my demands and sent me a new offer. When I realized what I had done, and that the offer was real, I called Mr. Tadlock to apologize, and received a personal call back from Judge Oberdorfer assuring me that he appreciated the circumstances and that it would not be held against me. Judge Oberdorfer was most helpful to me during my stint with DJ, and was directly instrumental in my achieving a long and successful career in tax law. I owe him a lot. Chuck Ruffner, Miami

  2. I came to DOJ in 1964 directly after graduating law school and taking the New York bar exam. A requirement for admission to the New York bar was a recommendation from an attorney on the Character Committee of the New York Bar (comprised of prominent New York attorneys). I came from a middle class family in the Bronx with no connections to any lawyer let alone to a prominent attorney on the Character Committee. Not knowing how to obtain the critical recommendation, I took my dilemma to Judge Oberdorfer. Happily, he graciously came to my aid and obtained the requisite recommendation for me.

    Leonard Togman


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