Judge Tatel has served on the U.S. Court of Appeals for the D.C. Circuit since 1994. The 5-page article is his remarks delivered at the LSC’s 45th anniversary luncheon and focuses on the transition from the OEO Legal Services Program to the LSC.
Item details
| Focus organization: | LSC |
|---|---|
| Publisher: | Tatel, David |
| Date (approx.): | Apr 9, 2019 |
| Actual title: | "The Beginnings of the Legal Services Corporation" |
| Creator: | Tatel, David |
| Collection: | |
| Format: | Speech |
| State: | National |
| Law type: | Civil |
| Purpose(s): | |
| Lists: | |
| Topics: | Civil legal aid: General, LSC: Restrictions, and OEO Legal Services |
| Content availability: | Full text: HTML here and Full text: PDF here |
| File: | Download |
| External link: | |
| Last modified: | 2023-01-02 04:55 |
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The Beginnings of the Legal Services Corporation
The Honorable David S. Tatel*
*Judge Tatel has served on the U.S. Court of Appeals for the D.C. Circuit since 1994. The following is a lightly edited version of remarks delivered at the Legal Services Corporation’s 45th anniversary luncheon on April 9, 2019. Those interested in learning more about the Legal Services Corporation are referred to Earl Johnson Jr.’s comprehensive history, To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States.
John Levi and Jim Sandman asked me to serve as historian today and talk about the origins of the Legal Services Corporation. In particular, they asked me to speak about the transition from the Legal Services Program under the Office of Economic Opportunity—later renamed the Community Services Administration—to the LSC.
John Levi and Jim Sandman asked me to serve as historian today and talk about the origins of the Legal Services Corporation. In particular, they asked me to speak about the transition from the Legal Services Program under the Office of Economic Opportunity—later renamed the Community Services Administration—to the LSC.
Before turning to that task, I want to go back to 1965 when Sargent Shriver, the Director of OEO, the nerve center of President Johnson’s War on Poverty, announced the creation of a federally funded Legal Services Program. Shriver explained the initiative with a few simple words, which today, over fifty years later, still perfectly capture the mission of legal services:“The extension of legal services to the poor is only a means to a more universal end—…the establishment of the rule of law.”
Flash forward almost ten years, to July 25, 1974, when President Nixon signed into law the Legal Services Corporation Act. It was one of the last bills he signed before resigning. But Nixon never got around to appointing the Board, so that task fell to President Ford, who after a few false starts, nominated and ultimately secured the confirmation of the Corporation’s first Board of Directors.
On July 14, 1975, Justice Lewis Powell administered the oath of office to the new Board at what was then called the U.S. Court of Claims, just off Lafayette Square. Justice Powell’s administration of the oath was especially meaningful because of the crucial role he had played in building bipartisan support for the expansion of legal services during his tenure as ABA President.
The oath triggered the beginning of a 90-day statutory transition period during which the Board was to create the Corporation, organize it, and assume responsibility for providing legal services to the poor. Although many individuals from OEO Legal Services, the National Legal Aid and Defender Association, Congress, and the Board itself played an important role in this transition, three were especially critical.
The first, Roger Cramton, was Chairman of the Board. The dean of Cornell’s law school,Roger had a great deal of experience in Washington, having served both as chairman of the Administrative Conference of the United States and as Assistant Attorney General in charge of the Justice Department’s Office of Legal Counsel.
The second was Louis Oberdorfer, a partner at what was then known as Wilmer, Cutler &Pickering. Lou had served as an Assistant Attorney General in the Kennedy Justice Department,and he was a founder of the Lawyers’ Committee for Civil Rights Under Law. Roger and the Board asked Lou, then on sabbatical, whether he would be willing to head the Corporation’s transition team. Were you fortunate enough to have known Lou Oberdorfer, you won’t be at all surprised to learn that he accepted instantly.
The third critical person was Dan Bradley. Dan eventually became the Corporation’s second president but, at the time, he was serving as OEO Legal Services’ Southern Regional Director. Deeply admired throughout legal services and viewed by all as a leader of the program,Dan had begun his career as a “Reggie” at Florida Migrant Legal Services. I’m sure there are a few Reggies here today. For you younger folks, the “Reggie” fellowship program—which began under OEO Legal Services and was named after early legal aid advocate Reginald Heber Smith—recruited bright young graduates of top law schools, trained them in poverty law, and placed them in legal services positions across the country.
It was Roger and Lou who asked me to help out. At the time, I was a partner at Hogan & Hartson. Lou and I had worked together at the Lawyers’ Committee, and I had met Roger right after law school when I was an instructor at the University of Michigan, where Roger was then teaching.
Lou and I began work the moment the Board was sworn in. We moved into a tiny office at 19 th and L, where we were joined by several staff detailed by OEO Legal Services and a few“transition experts” detailed by OMB. We were also assisted by two especially interesting characters: Bob Shea, head of the American Red Cross’s International Disaster Relief Program,and Don Coppock, former head of the U.S. Border Patrol. Lou had gotten to know Bob and Don at the Justice Department when Robert Kennedy tasked him with collecting and delivering the food and medicines Fidel Castro demanded in exchange for releasing the Bay of Pigs prisoners. Fortunately, Bob’s disaster relief skills were not needed during the LSC transition.
Our work began with the nuts and bolts. First and foremost, we created the Corporation as a D.C. not-for-profit, and then we applied for and received a tax exemption. You are looking at the fellow who personally delivered both applications to the appropriate offices.
We turned next to two quite tricky issues: first, how to get $85 million of appropriated funds through the Treasury Department and into a D.C. non-profit corporation, and second,whether the Corporation was subject to the Antideficiency Act, which controls the flow and expenditure of federal funds and subjects violators to criminal sanctions. To resolve these two issues, we turned to the Justice Department, which happened to be headed by John’s father,Attorney General Ed Levi, who sent us to none other than then-Assistant Attorney General in charge of the Office of Legal Counsel, one Antonin Scalia. With Scalia’s help, we resolved both issues and moved on to four critical organizational tasks.
First, we had to write the Corporation’s regulations—its DNA, so to speak. It was through these regulations that we implemented the LSC statute, including its various restrictions:limitations on handling school desegregation and abortion cases, engaging in legislative advocacy, and bringing class actions, among others. The regulations also structured the relationship between the Corporation and its grantees. We were helped enormously by the fact that a task force of legal services stakeholders headed by Alan Houseman—Alan is here today—had prepared a complete set of proposed regulations. Now, we didn’t agree with all aspects of their draft. But after a lot of debate, public hearings, and consideration of comments in response to our drafts, the Board settled on a final body of regulations that largely enjoyed the support of interested groups. In fact, some of those regulations still exist today, 45 years after we wrote them.
Second, we had to staff the Corporation. Under OEO, the roughly 3,000 lawyers providing legal services to eligible clients were not employees of the agency. Instead, they were employed by non-profit organizations operating under OEO grants. In order to transfer these legal services lawyers to the Corporation, we revised the documents governing the grantor/grantee relationship and signed new contracts with each grantee.
We followed a different process with respect to OEO headquarters and regional employees. Because of the important role the regional directors played under OEO Legal Services, Lou and I interviewed every one of them, and I believe we hired them all. Our very first hire was none other than Dan Bradley, who agreed to move to San Francisco and run the troubled Regional Office in that city. Dan’s deputy, Bucky Askew—also here today—agreed to replace him as our Southern Regional Director.
Now, it’s worth noting that at the outset, there was a certain degree of mistrust between the Corporation and the legal services community. The community was suspicious of the new corporation, and the members of the Board were not so sure about some of the legal services lawyers. But as they worked together on these initial undertakings—drafting the regulations and hiring staff—you could sense the legal services lawyers growing more confident in the Board’s leadership and the Board developing a deep respect and admiration for the legal services lawyers. Critical to this whole process was Dan Bradley, for it was his leadership that helped bridge the gap between the legal services community and the Board.
Our third and most fraught task was navigating the battle over backup centers. To understand this issue, you need to know that at the time of its transition to the Corporation, OEO Legal Services consisted of far more than dedicated lawyers in neighborhood offices helping clients with routine housing, consumer, and welfare problems. It was also a hotbed of law reform, symbolized in my mind by the OEO-funded law-reform unit of the Chicago Legal Aid Bureau. Marshall Patner, a dear friend and a legendary public interest lawyer, ran the office, and two of my University of Chicago Law School classmates, George Ranney and Bob Berger, went to work there as Reggies after completing prestigious appellate clerkships. Believe it or not, the sign on the front door read “Test Cases and Appeals Division.” Jim, I suspect that if an LSC office put up a sign like that now, you’d be hauled up to the Hill and the Corporation defunded in a New York minute!
OEO’s law reform activities were based in twelve or so backup centers. These grant-funded centers were elite units staffed by talented, committed young attorneys who provided specialized assistance on many different substantive areas of law to neighborhood legal services lawyers from all over the country. Just to name a few, the Center for Law & Education was at Harvard; the National Housing Law Project was at Berkeley; the National Consumer Law Center was in Boston; and the Migrant Legal Action Program was here in Washington.
As you can imagine, the backup centers were, in addition to being extraordinarily effective, extraordinarily controversial. Indeed, the opposition to legal services in Congress was largely aimed at the backup centers, and many think that their continued existence contributed to Nixon’s decision to veto the first LSC bill. A few years later, when Congress was once again considering creating a Legal Services Corporation—this time in the middle of Watergate—Nixon’s congressional supporters warned him that their continued support during impeachment proceedings depended on his commitment to eliminating funding for the backup centers.
Thus was born the Green Amendment. Named after Representative Edith Green of Oregon, a committed opponent of legal services, and then known as “Section 1006(a)(3)”—a number seared into my memory—the Amendment authorized the Corporation to conduct training and technical assistance “directly, and not by grant or contract.” Proponents of the Green Amendment believed that the backup centers simply provided technical assistance, research, and training—not legal services to eligible clients—and that the restriction on funding “by grant or contract” would sound the death knell for the centers.
Well, they hadn’t done their homework. The backup centers actually were engaged in client work, supporting cases brought to them by legal services lawyers in the field. Because the centers did much more than provide technical assistance and training, the restrictions contained in the Green Amendment by no means spelled the end for them. We knew that, but we also knew that we’d have to prove it. So Lou Oberdorfer came up with an idea. He called one Saturday morning—I was home with three little kids—and he asked, “David, what do you think of the Polikoff Report?” “I never heard of it,” I responded. “That,” Lou explained, “is because it hasn’t yet been written.”
Lou’s idea was to ask Al Polikoff, one of the country’s leading public interest lawyers,who had also been a partner at a major Chicago law firm and had enormous credibility, to work with the staff to demonstrate that the backup centers were, in fact, providing much more than training and technical assistance. Al enlisted Marshall Patner, and the three of us, along with several other staff members, visited every backup center, reviewing their files and interviewing their lawyers. In the end, Al prepared a 500-page report that proved what we all knew: that the backup centers were primarily providing direct legal services to eligible clients.
On the basis of that report, along with a legal memorandum I prepared regarding the inapplicability of the Green Amendment to most backup center activities, the Board decided to continue funding all twelve backup centers. We also changed the name of the backup centers to“support centers.” Presto, problem solved—at least for a while. The support centers continued their important work as LSC-funded entities until the mid-1990s, at which point Congress administered the coup de grace and prohibited any further funding for them. Fortunately, several have survived with financial support from non-LSC sources. These include the National Consumer Law Center, the National Employment Law Project, and the National Housing Law Project.
The final aspect of the transition that bears mention was the question of the Corporation’s leadership. At the very outset, the Board created a search committee to find a president. By September 1975, the committee had zeroed in on Tom Ehrlich, the highly-regarded dean of the Stanford Law School. Tom agreed to accept the position, but only if the Board would also hire Clint Bamberger, then dean of the Catholic University of America’s law school, as his executive vice president. Tom wanted Clint in that position because Clint had once headed OEO Legal Services and was widely respected in the legal services community.
But at that time, nothing was easy. When word leaked out that Tom was insisting on bringing Clint on board, opponents of legal services who considered Clint too powerful a force mobilized to derail his appointment. Indeed, just days before the Board was to consider Tom and Clint’s appointments—it was early October by this point, right before the end of the 90-day transition period—conservative Washington Post columnist James J. Kilpatrick called Clint a“real pinko” and declared that the Board would be crazy to appoint him as vice president.
Kilpatrick’s column had its intended effect. When the Board, meeting in executive session at the George Washington University’s Marvin Center, took up the appointments, it was split five to five. Roger came out of the meeting and told Tom, Lou, and me, “Well, I don’t have the votes: The Board’s tied. Tom, what do you want to do? Do you want to do this without Clint?” “No way,” Tom responded, “It’s either Clint and me or the Board will have to find someone else.” Fortunately, after several more hours of stalemate, the eleventh Board member showed up and cast the deciding vote for Tom and Clint. By then, Justice White, who was thereto administer the oath, had gone home.
In the end, of course, Tom and Clint took the oath, the Board assumed full responsibility for the provision of legal services, and the rest, as they say, is history.
In that spirit, I want to share a final story about my friend Lou. One day during the transition, we were all sitting around his desk musing about our work, and I said, “Lou, you’ve had so many great experiences, including at the Justice Department. When do you know if what you’re doing is historically important?” Answered Lou: “Right now!”
I began this talk with Sarge Shriver, and I’d like to end with my dear friend and colleague Judge Patricia Wald. Pat served on my court for over twenty years, including five as our chief. She began her remarkable career as a staff attorney in the law reform unit of the OEO-funded Neighborhood Legal Services Program right here in Washington. “Under a government of laws,”Pat once wrote, “ordinary people have a right to expect that the law will apply to all citizens alike.” “Unfortunately,” she reminded us, there is “much more that remains to be done before we can begin to claim that our system provides equal justice for all.” Pat died last year, but if she were here today, I’m confident that LSC’s exciting and promising efforts to strengthen legal services for the poor, many discussed at this very meeting, would leave her optimistic that someday our legal system might actually offer “equal justice for all.”
END