Charles Fahy

Charles Fahy
Judge of the United States Court of Appeals for the District of Columbia Circuit
In office April 7, 1950 – April 17, 1967
Nominated by	Harry S. Truman
Preceded by	Seat established
Succeeded by	George MacKinnon
26th Solicitor General of the United States
In office November 1, 1941 – September 1945
Appointed by	Franklin Roosevelt
Preceded by	Francis Biddle
Succeeded by	J. Howard McGrath
Personal details
Born	Charles Fahy August 17, 1892 Rome, Georgia
Died	September 17, 1979 (aged 87) Washington, D.C
Spouse(s)	Mary Agnes Lane
Alma mater	Notre Dame (A.B.) 1912 Georgetown University Law School (LL.B. )1914

Charles Fahy (August 27, 1892 – September 17, 1979) served as Solicitor General of the United States and later as a United States federal judge on the United States Court of Appeals for the District of Columbia Circuit.

Early life, education, and career

Born in Rome, Georgia, Fahy was the son of Thomas and Sarah (Jonas) Fahy. Charles attended the University of Notre Dame and then went to Georgetown University Law School. There he received his LL.B. in 1914 and was admitted to the D.C. bar in the same year. He served the United States in World War I as a naval aviator attached to the British and American forces. Fahy was awarded the Navy Cross. After the war he returned to Washington, D.C. and practiced law until 1924, before moving his practice to Santa Fe, New Mexico, where he resided until 1933. While in Sante Fe, Fahy served as the city attorney in 1932.

Executive branch service

J. Warren Madden (left), Chair of the National Labor Relations Board (NLRB), is shown going over testimony with Charles Fahy (right), General Counsel of the NLRB, and Nathan Witt, NLRB Executive Secretary, prior to testifying before Congress on December 13, 1937.

In 1933, Fahy returned to Washington when he was appointed first assistant solicitor to the Department of the Interior. That same year he was appointed as a member of the Petroleum Administrative Board, and then served as its president from 1934-1935. As general counsel of the National Labor Relations Board from 1935–1940, Fahy began his career in Supreme Court litigation on behalf of labor rights. Upon the enactment of the Wagner Act in 1935, Fahy, on behalf of the NLRB, often appeared in front of both Houses of Congress to offer testimony and litigated cases in the Supreme Court brought against the government. By the time he was appointed assistant solicitor general in 1940, Fahy had already appeared eighteen times in front of the Supreme Court, where his arguments were wholly sustained sixteen times and partially upheld twice.

Fahy was appointed Solicitor General by President Franklin D. Roosevelt on November 1, 1941. While Solicitor General, Fahy continued to advocate for worker's labor rights, and was involved in cases regarding the constitutionality of wiretapping and the citizenship of American Communists.

Fahy served as Solicitor General until 1945, after having argued more than 70 cases in front of the Supreme Court before being called upon by General Dwight D. Eisenhower to serve as director of the legal division of the U.S. Group Control Council in Germany in the aftermath of World War II. After returning from his tour of duty in Germany, Fahy became the Legal Adviser of the Department of State. He was also a member of the U.S. Legal Committee of the General Assembly of the United Nations, held in New York City in 1946.

Japanese American internment cases

Fahy defended the government in four cases that challenged aspects of the World War II internment of Japanese Americans. During preparations for Hirabayashi v. United States and Yasui v. United States, Assistant Attorney General Edward Ennis presented Fahy with a Naval Intelligence report from 1942 that recommended limited internment of Japanese Americans over mass confinement.^[1] The plaintiffs in both cases had been arrested and convicted for violating the curfew and exclusion orders related to Executive Order 9066, and both men separately filed appeals that eventually landed in the Supreme Court. Ennis urged Fahy to submit the ONI report as evidence, but because it directly contradicted the Western Defense Command's argument that it was impossible to determine Japanese American loyalty on an individual basis, Fahy withheld the information and won both cases.^[2][3][4] He also successfully argued the landmark case of Korematsu v. United States, in which the Supreme Court validated the constitutionality of the executive and military orders forcing the relocation of Japanese Americans into camp. Ennis and other aides brought to Fahy's attention FBI and FCC reports that disproved the claims of Japanese American sabotage key to the government's argument; Fahy inserted an ambiguously worded footnote in his court brief that did not specifically mention the contradicting evidence, and the Court ruled against Korematsu.^[2][4][5] The fourth case, ex parte Endo, was decided in the plaintiff's favor and effectively ended the incarceration.^[6][7]

In the 1980s, researchers Peter Irons and Aiko Herzig-Yoshinaga uncovered evidence that Fahy deliberately suppressed information indicating Japanese Americans were no threat to national security, and the Korematsu, Yasui and Hirabayashi convictions were overturned in 1983, 1986 and 1987, respectively.^[8] In 2011, Acting Solicitor General Neal Katyal formally acknowledged Fahy's misconduct in the cases.^[9][10]

Alternatively, Charles J. Sheehan, Fahy's grandson, argues that his grandfather did not withhold evidence in a recent American Journal of Legal History article, "Solicitor General Charles Fahy and Honorable Defense of the Japanese-American Exclusion Cases."^[11] See: http://ajlh.oxfordjournals.org/content/ajlh/54/4/469.full.pdf. Also see Peter Irons, "How Solicitor General Charles Fahy Misled the Supreme Court in the Japanese American Internment Cases: A Reply to Charles Sheehan," American Journal of Legal History, Vol. 55, pp. 208-226 (April 2015). Sheehan notes that Charles Sheehan is Fahy's grandson. The Department of Justice and the Solicitor General's Office have not changed their position on Fahy's misconduct. Additionally, see Charles Sheehan's reply: "Charles Fahy's 'Brilliant Public Service as Solicitor General,' A Reply to Peter Irons," American Journal of Legal History, Vol. 55, Issue 3 (September 2015). See: http://ajlh.oxfordjournals.org/content/ajlh/55/3/347.full.pdf. (The quote regarding Charles Fahy's "Brilliant Public Service as Solicitor General" is from Justice William J. Brennen, 54 Georgetown Law Journal (1964-65)).

Federal judicial service

Fahy returned to private practice in 1947, but was again called to serve the federal government as chairman of the President's Committee on Equality of Treatment and Opportunities in Armed Forces, from 1948-1950. On October 21, 1949, Fahy received a recess appointment from Harry S Truman to a new seat on the United States Court of Appeals for the D.C. Circuit created by 63 Stat. 493. Formally nominated on January 5, 1950, Fahy was confirmed by the United States Senate on April 4, 1950, and received his commission on April 7, 1950. He assumed senior status on April 17, 1967, and served in that capacity until his death.

Death and commemoration

Commissioned bust of Fahy

Fahy was the recipient of a number of awards, including the Navy Cross (1917), a medal for military merit (1946), the Robert S. Abbott Memorial Award (1951), John Carroll Award from the Georgetown University Member Alumni (1953), and the D.C. Distinguished Service Award (1969). Charles Fahy died on September 17, 1979, at the age of 87 in Washington, D.C. He was survived by his wife Mary Agnes Lane, and children Charles (Dom Thomas Fahy O.S.B.), Anne Marie (Sheehan), Sarah Agnes (Sister Sarah Fahy S.N.D.), and Mary Agnes (Johnson).

The Washington Post wrote this editorial at his death (published Sept. 19, 1979 and written by Meg Greenfield):

Of those who have devoted their lives to public service, none gave more and

asked less in return than Charles Fahy, who died Monday night. A quiet, unassuming, self-effacing man, Judge Fahy was easily mistaken for the kind of person who is content to stand aside and watch the world go by. But he was something completely different. That shy manner cloaked an intellect so powerful that his imprint has been fixed on the law for years to come. His intellect was matched by his compassion.

Over the years, Mr. Fahy was a naval aviator in World War I, the first general counsel of the NLRB, solicitor general, a member of the American delegation to the San Francisco conference and later to the United Nations, legal adviser to the military governor of Germany, chairman of President Truman's committee to eliminate discrimination from the armed forces and, after 1949, a judge on the United States Court of Appeals. Of all the things he did in these and other jobs, Judge Fahy was proudest of two. One was his acknowledged large role in desegregating the military. The other was his dissent, soon after he became a judge, in the Thompson restaurant case. That dissent, like many others he wrote in later years, became the basis for a Supreme Court opinion. But this one was the basis for a unanimous decision that struck down segregation in the District of Columbia's restaurants, theaters, and other public places.

Judge David L. Bazelon has called Charles Fahy "the conscience of our court." Judge Skelly Wright says he was a "gentle man who was loved by everybody who knew him." Both are right. Judge Fahy had no enemies, even among those with whom he disagreed so wholeheartedly during those turbulent years of the 1950s and 1960s when his was a strong voice on the Court of Appeals on behalf of civil rights, individual liberties and personal freedom.

These words of the late J. Warren Madden, chief judge of the Court of Claims for many years, sum up his life: "Charles Fahy's part in the making of the law has not, we think, been surpassed by any lawyer of his generation....This unpretentious human being could, but would not, point to many fundamental features in the present day structure of American constitutional law and say,

'The work of my hand is there.'"

 This article incorporates public domain material from websites or documents of the Office of the Solicitor General.

References

• The Library of Congress - Fahy, Charles, 1892-1979
• US Department of Justice - Charles Fahy
• Federal Judicial Center - Biographical Directory of Federal Judges - Fahy, Charles

Footnotes

1. Yamamoto, Eric K.; Chon, Margaret; Izumi, Carol L.; Kang, Jerry; Wu, Frank H. Race, Rights and Reparation: Law and the Japanese American Internment (New York: Aspen Law & Business, 2001), pp 306-07.
2. Niiya, Brian. "Charles Fahy". Densho Encyclopedia. Retrieved 21 August 2014.
3. Irons, Peter. Justice at War: The Story of the Japanese American Internment Cases (Berkeley: University of California Press, 1983), pp 195-98, 202-07.
4. Irons. A People's History of the Supreme Court (New York: Penguin Books, 1999), pp 362-63.
5. Irons. Justice at War, pp 285-86.
6. Irons. Justice at War, pp 318-19, 324.
7. Yamamoto, et al. Race, Rights and Reparation, p 169.
8. Niiya, Brian. "Coram nobis cases". Densho Encyclopedia. Retrieved 21 August 2014.
9. Savage, David G. (May 24, 2011). "U.S. official cites misconduct in Japanese American internment cases". Los Angeles Times.
10. Russo, Tracy (May 20, 2011). "Confession of Error: The Solicitor General's Mistakes During the Japanese-American Internment Cases". The Justice Blog. Department of Justice. Retrieved 25 June 2013.
11. Sheehan, Charles J. "Solicitor General Charles Fahy and Honorable Defense of the Japanese-American Exclusion Cases," American Journal of Legal History (54:4), October 2014.

Bibliography