Charles Fahy (August 27, 1892 – September 17, 1979) was an American lawyer and judge who served as the 26th

Solicitor General of the United States The solicitor general of the United States is the fourth-highest-ranking official in the United States Department of Justice. Elizabeth Prelogar has been serving in the role since October 28, 2021. The United States solicitor general represent ...

and later served as a

United States circuit judge In the United States, federal judges are judges who serve on courts established under Article Three of the U.S. Constitution. They include the chief justice and the associate justices of the U.S. Supreme Court, the circuit judges of the U.S. ...

of the

United States Court of Appeals for the District of Columbia Circuit The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate co ...

Education and early career

Born on August 27, 1892, in

Rome , established_title = Founded , established_date = 753 BC , founder = King Romulus (legendary) , image_map = Map of comune of Rome (metropolitan city of Capital Rome, region Lazio, Italy).svg , map_caption ...

Georgia Georgia most commonly refers to: * Georgia (country), a country in the Caucasus region of Eurasia * Georgia (U.S. state), a state in the Southeast United States Georgia may also refer to: Places Historical states and entities * Related to the ...

, Fahy was the son of Thomas and Sarah (Jonas) Fahy. Fahy received an Artium Baccalaureus degree in 1911 from the

University of Notre Dame The University of Notre Dame du Lac, known simply as Notre Dame ( ) or ND, is a private Catholic university, Catholic research university in Notre Dame, Indiana, outside the city of South Bend, Indiana, South Bend. French priest Edward Sorin fo ...

and received a

Bachelor of Laws Bachelor of Laws ( la, Legum Baccalaureus; LL.B.) is an undergraduate law degree in the United Kingdom and most common law jurisdictions. Bachelor of Laws is also the name of the law degree awarded by universities in the People's Republic of Ch ...

in 1914 from

Georgetown Law The Georgetown University Law Center (Georgetown Law) is the law school of Georgetown University, a private research university in Washington, D.C. It was established in 1870 and is the largest law school in the United States by enrollment a ...

. He was admitted to the District of Columbia bar the same year. He entered private practice in

Washington, D.C. ) , image_skyline = , image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...

from 1914 to 1924, which included criminal defense in capital cases. He served in the

United States Naval Reserve The United States Navy Reserve (USNR), known as the United States Naval Reserve from 1915 to 2005, is the Reserve Component (RC) of the United States Navy. Members of the Navy Reserve, called Reservists, are categorized as being in either the Se ...

during

World War I World War I (28 July 1914 11 November 1918), often abbreviated as WWI, was one of the deadliest global conflicts in history. Belligerents included much of Europe, the Russian Empire, the United States, and the Ottoman Empire, with fightin ...

from August 1917 to January 1919 as a naval aviator attached to the British and American forces. Fahy was awarded the

Navy Cross The Navy Cross is the United States Navy and United States Marine Corps' second-highest military decoration awarded for sailors and marines who distinguish themselves for extraordinary heroism in combat with an armed enemy force. The medal is eq ...

. He served in the United States, England and France and attained the rank of

Lieutenant (junior grade) Lieutenant junior grade is a junior commissioned officer rank used in a number of navies. United States Lieutenant (junior grade), commonly abbreviated as LTJG or, historically, Lt. (j.g.) (as well as variants of both abbreviations), ...

. He resumed private practice in Washington, D.C. after the war. He moved his private practice to Santa Fe,

New Mexico ) , population_demonym = New Mexican ( es, Neomexicano, Neomejicano, Nuevo Mexicano) , seat = Santa Fe , LargestCity = Albuquerque , LargestMetro = Tiguex , OfficialLang = None , Languages = English, Spanish ( New Mexican), Navajo, Ke ...

from 1924 to 1933. He was city attorney for Santa Fe in 1932.

Executive branch service

Fahy was first assistant solicitor for the

United States Department of the Interior The United States Department of the Interior (DOI) is one of the executive departments of the U.S. federal government headquartered at the Main Interior Building, located at 1849 C Street NW in Washington, D.C. It is responsible for the ma ...

in 1933. He was a member of the Petroleum Advisory Board from 1933 to 1935, serving as chairman from 1934 to 1935. He was general counsel for the

National Labor Relations Board The National Labor Relations Board (NLRB) is an independent agency of the federal government of the United States with responsibilities for enforcing U.S. labor law in relation to collective bargaining and unfair labor practices. Under the Na ...

from 1935 to 1940. He was an Assistant Solicitor General with the

United States Department of Justice The United States Department of Justice (DOJ), also known as the Justice Department, is a federal executive department of the United States government tasked with the enforcement of federal law and administration of justice in the United Stat ...

in 1940. He was a member of the President's Naval and Air Base Commission to London in 1941. He was the 26th

from 1941 to 1945. He was Legal Adviser of the

Office of Military Government, United States The Office of Military Government, United States (OMGUS; german: Amt der Militärregierung für Deutschland (U.S.)) was the United States military-established government created shortly after the end of hostilities in occupied Germany in World War ...

Germany Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...

from 1945 to 1946. He was adviser to the American delegation to the

San Francisco Conference The United Nations Conference on International Organization (UNCIO), commonly known as the San Francisco Conference, was a convention of delegates from 50 Allied nations that took place from 25 April 1945 to 26 June 1945 in San Francisco, Calif ...

in 1945. He was Legal Adviser of the

United States Department of State The United States Department of State (DOS), or State Department, is an United States federal executive departments, executive department of the Federal government of the United States, U.S. federal government responsible for the country's fore ...

in 1946. He resumed private practice in Washington, D.C. from 1947 to 1949. He was a member of the Legal Commission of the

United Nations General Assembly The United Nations General Assembly (UNGA or GA; french: link=no, Assemblée générale, AG) is one of the six principal organs of the United Nations (UN), serving as the main deliberative, policymaking, and representative organ of the UN. Curr ...

from 1947 to 1949. He was Chairman of the President's Committee on Equality of Treatment and Opportunity in the Armed Services from 1948 to 1950. He was Chairman of the Personnel Security Review Board of the Atomic Energy Commission in 1949.

Federal judicial service

Fahy received a

recess appointment In the United States, a recess appointment is an appointment by the president of a federal official when the U.S. Senate is in recess. Under the U.S. Constitution's Appointments Clause, the President is empowered to nominate, and with the a ...

from President

Harry S. Truman Harry S. Truman (May 8, 1884December 26, 1972) was the 33rd president of the United States, serving from 1945 to 1953. A leader of the Democratic Party, he previously served as the 34th vice president from January to April 1945 under Franklin ...

on October 21, 1949, to the

, to a new seat authorized by 63 Stat. 493. He was nominated to the same position by President Truman on January 5, 1950. He was confirmed by the

United States Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and pow ...

on April 4, 1950, and received his commission on April 7, 1950. He assumed

senior status Senior status is a form of semi- retirement for United States federal judges. To qualify, a judge in the federal court system must be at least 65 years old, and the sum of the judge's age and years of service as a federal judge must be at leas ...

on April 17, 1967. His service terminated on September 17, 1979, due to his death in Washington, D.C.

Japanese American internment cases

Fahy defended the government in four cases that challenged aspects of

internment of Japanese Americans Internment is the imprisonment of people, commonly in large groups, without charges or intent to file charges. The term is especially used for the confinement "of enemy citizens in wartime or of terrorism suspects". Thus, while it can simpl ...

during

World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposing ...

. During preparations for the '' Hirabayashi v. United States'' and '' Yasui v. United States'' in 1943, Assistant Attorney General Edward Ennis presented Fahy with a

Naval Intelligence Military intelligence is a military discipline that uses information collection and analysis approaches to provide guidance and direction to assist commanders in their decisions. This aim is achieved by providing an assessment of data from a ...

report from 1942 that recommended limited internment of Japanese Americans over mass confinement. 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 Western Defense Command (WDC) was established on 17 March 1941 as the command formation of the United States Army responsible for coordinating the defense of the Pacific Coast region of the United States during World War II. A second major respo ...

's argument that it was impossible to determine Japanese American loyalty on an individual basis, Fahy withheld the information and won both cases.Irons. ''A People's History of the Supreme Court'' (New York: Penguin Books, 1999), pp 362-63. He also successfully argued the landmark case of '' Korematsu v. United States'' in 1944, 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. The fourth case, ''

Ex parte Endo ''Ex parte Mitsuye Endo'', 323 U.S. 283 (1944), was a United States Supreme Court ''ex parte'' decision handed down on December 18, 1944, in which the Justices unanimously ruled that the U.S. government could not continue to detain a citizen wh ...

'', was decided in the plaintiff's favor and effectively ended the incarceration. In the 1980s, researchers

Peter Irons Peter H. Irons (born August 11, 1940) is an American political activist, civil rights attorney, legal scholar, and professor emeritus of political science. He has written many books on the U.S. Supreme Court and constitutional litigation. Educ ...

and

Aiko Herzig-Yoshinaga Aiko Herzig-Yoshinaga (August 5, 1925 – July 18, 2018) was a Japanese American political activist who played a major role in the Japanese American redress movement. She was the lead researcher of the Commission on Wartime Relocation and Intern ...

uncovered evidence that Fahy deliberately suppressed information indicating Japanese Americans were not a threat to national security, and the ''Korematsu'', ''Yasui'', and ''Hirabayashi'' convictions were all overturned. In 2011, Acting Solicitor General Neal Katyal formally acknowledged Fahy's misconduct in the cases. Alternatively, Charles J. Sheehan, Fahy's grandson, argues that his grandfather did not withhold evidence.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. 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). Irons discounts the objectivity of Charles Sheehan, noting he 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, 'Brilliant Public Service as Solicitor General,' A Reply to Peter Irons"
''American Journal of Legal History'', Vol. 55, Issue 3 (September 2015). (The quote regarding Charles Fahy's "Brilliant Public Service as Solicitor General" is from Justice

William J. Brennan William Joseph "Bill" Brennan Jr. (April 25, 1906 – July 24, 1997) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1956 to 1990. He was the seventh-longest serving justice ...

"Charles Fahy"
54 ''Georgetown Law Journal'' 1 (1964–65)).

Hiss Case involvement

In August–September 1948, Fahy was one of many prominent lawyers who advised Alger Hiss on whether to file a defamation suit against

Whittaker Chambers Whittaker Chambers (born Jay Vivian Chambers; April 1, 1901 – July 9, 1961) was an American writer-editor, who, after early years as a Communist Party member (1925) and Soviet spy (1932–1938), defected from the Soviet underground (1938) ...

after Chambers stated on NBC Radio's ''

Meet the Press ''Meet the Press'' is a weekly American television news/interview program broadcast on NBC. It is the longest-running program on American television, though the current format bears little resemblance to the debut episode on November 6, 1947. ' ...

'' that Hiss had been a Communist. On August 31, 1948, Hiss wrote to his lifelong friend and fellow Harvard lawyer William L. Marbury, Jr.:

I am planning a suit for libel or defamation... The number of volunteer helpers is considerable: Freddy Pride of Dwight, Harris, Koegel & Casking (the offshoot of young Charles Hughes' firm), Fred Eaton of
Shearman and Sterling Shearman & Sterling LLP is a Multinational corporation, multinational law firm headquartered in New York City, United States. The firm's lawyers come from some 80 countries, speak more than 60 languages and practice US, English, EU, French, Spanis ...
, Eddie Miller of Mr. Dulles' firm, Marshall McDuffie, now no longer a lawyer; in Washington Joe Tumulty, Charlie Fahy, Alex Hawes, John Ferguson (Mr. Ballantine's son-in-law) and others–but the real job is get general overall counsel and that fortunately is now settled, but we must move swiftly as so far the committee with its large investigating staff and considerable resources has been able to seize the initiative continuously and regularly. Everyone has been most helpful...

Awards

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).

Family

Fahy was survived by his wife Mary Agnes Lane, whom he married June 26, 1929, in Washington, D.C., and four children.

References

External sources

Finding Aid to the Papers of Charles Fahy
(PDF). The Library of Congress.
Charles Fahy
Solicitor General. U.S. Department of Justice.
Fahy, Charles
Federal Judicial Center - Biographical Directory of Federal Judges.
Charles Fahy
at the U.S. Supreme Court. Oyez.com. * {{DEFAULTSORT:Fahy, Charles 1892 births 1979 deaths United States Solicitors General University of Notre Dame alumni Georgetown University Law Center alumni People from Rome, Georgia Judges of the United States Court of Appeals for the D.C. Circuit United States court of appeals judges appointed by Harry S. Truman 20th-century American judges Recipients of the Navy Cross (United States) United States Navy officers American World War I pilots United States Navy personnel of World War I United States Assistant Attorneys General for the Office of Legal Counsel