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Monday, July 07, 2003

20 Questions for Senior Circuit Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit: "How Appealing" is especially pleased that Senior Circuit Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Aldisert joined the Third Circuit in July 1968 at the age of 48. He attended both college and law school at the University of Pittsburgh. After college, but before completing law school, he served as a Major in the United States Marine Corps. Following law school, he worked as a lawyer in private practice for almost fifteen years. In 1961, he was elected to serve as a Judge on the Court of Common Pleas of Allegheny County, Pennsylvania. In 1968, he was nominated and confirmed to fill a vacancy that existed on the U.S. Court of Appeals for the Third Circuit. Judge Aldisert has his chambers in Santa Barbara, California, and the Third Circuit has its headquarters in Philadelphia.

Questions appear below in italics, and Judge Aldisert�s responses follow in plain text.

1. In 1992, you published a wonderfully informative and useful book entitled "Winning on Appeal: Better Briefs and Oral Argument." I see that you are now in the process of preparing a revised edition of that book, to be published later this year. Why did you originally decide to publish this book, what feedback have you received on the book over the past decade or so from judges and attorneys, and why have you decided to produce a revised edition?

In 1990, West Publishing Company commissioned me to write a book on opinion writing for distribution to judges as a public service. This was based not only on my personal experience as an appellate judge since 1968 but the views of other appellate judges that I learned from 12 years as a faculty member of the Institute of Judicial Administration�s Senior Appellate Judges Seminars at New York University. West distributed Opinion Writing to all federal trial and appellate judges, including magistrate and bankruptcy judges and all state appellate judges. Because it was so successful, I decided to write a book for lawyers -- Winning on Appeal: Better Briefs and Oral Argument.

The feedback received in the past decade has been splendid. My publisher, the National Institute for Trial Advocacy, considers it one of its bestsellers. It has been adopted by many law schools as the text for courses in appellate advocacy, and I am told that most large law firms have the book in their library.

I wrote a revised edition for several reasons: to update statistics on reversals and granting oral argument; to solicit views from current leading appellate judges and determine if their views changed over 13 years (they didn't); to revise the format; and to make the text more reader-friendly as a how-to manual. The statistics reveal a trend of fewer published opinions, fewer reversals and less oral argument than in 1990.

As in the previous editions, there is more than one judge offering advice in these pages. Nineteen current chief justices of state courts, nine chief judges of U.S. Courts of Appeals, and more than a score of other U.S. circuit judges and state appellate judges have graciously offered excellent suggestions. Additionally, I devoted a new chapter entirely to advice from the nation's outstanding appellate lawyers on how to prepare for oral argument.

2. Unlike the other active and senior judges currently serving on the Third Circuit, who have their chambers located in one of the following places -- Wilmington, Delaware; Newark or Trenton, New Jersey; or Erie, Johnstown, Philadelphia, Pittsburgh, or Wilkes�Barre, Pennsylvania -- your judicial chambers are based in perhaps an even more desirable location, Santa Barbara, California. What were the circumstances that led to the relocation of your chambers to California, was it a bureaucratically complicated change to accomplish, and is it difficult to recruit law clerks who are interested in working for a Third Circuit judge whose chambers are located in the Ninth Circuit?

My long time home was Pittsburgh, Pennsylvania. I had to undergo triple bypass surgery in 1983, but unlike the fantastic success of so many open heart surgeries, my experience turned out to be a disaster. All three grafts became occluded, and being informed that I was not a good surgical risk for a second operation, I was told that I had to rely on medication, exercise and a change of climate. "In Pittsburgh, the winters are too cold for you, and the summers are too hot. Find a more pleasant climate." And I did -- Santa Barbara, California.

It wasn't a bureaucratically complicated change to accomplish. With the headquarters of the Los Padres National Forest already in Santa Barbara, I was able to cut through the red tape of preparing chambers in a federal facility there. The chambers were prepared by carpenters, painters, plumbers and electricians from the regular Forest Service staff without incurring tremendous expenses.

I have not found it difficult to recruit law clerks for a Third Circuit judge whose chambers are located on the West Coast. Law clerks like the job because they travel with me and end up with experience in three or four different courts of appeals. Then, too, they like working with me on my writings.

3. What are your most favorite and least favorite aspects of being a federal appellate judge?

I turned 83 last November, and I would not continue to be sitting as a federal appellate judge if I did not enjoy reading briefs, hearing arguments and writing opinions. My least favorite aspect is sitting in those circuits where neither tradition nor court rules require judges to be reasonably prompt in writing their opinions. In one case, I had to wait more than two years before the opinion writer circulated his opinion to the panel in a case where there was complete agreement in the panel on a rather straightforward, uncomplicated issue. I have also had experience in two circuits where there are no time limits in voting on rehearing en banc. Sometimes, these votes can last longer than a year.

4. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

My answer isn't totally responsive, but I'll give you more than you bargained for -- an all-star court containing the nine greatest American appellate judges of my time. I list them in alphabetical order: William J. Brennan, Jr., U.S. Supreme Court; Henry J. Friendly, Circuit Judge, U.S. Court of Appeals, Second Circuit.; Stanley H. Fuld, New York Court of Appeals; William Henry Hastie, U.S. Court of Appeals for the Third Circuit; Frank R. Kennison, New Hampshire Supreme Court, Samuel J. Roberts, Pennsylvania Supreme Court; Walter V. Schaefer, Illinois Supreme Court; Roger J. Traynor, California Supreme Court; and Elbert P. Tuttle, U.S. Courts of Appeals for the Fifth and Eleventh Circuits.

The easiest part of compiling the all-star court was to define the current era. I decided upon the last 42 years -- a period roughly coinciding with my own time on the bench. The next step also limited the inventory -- the judges had to be active for a substantial portion of that time. This excluded relatively recent judicial immortals, such as Learned Hand, Robert H. Jackson, Horace Stern, Arthur Vanderbilt, John Biggs, Jr. and Albert B. Maris.

But the real difficulty began with the next step. How do you define that elusive or intangible quality known as "greatness"? What standards of measurement do you use? How do you document? How do you prove? Often greatness in the judiciary is often nothing more than a reputation for greatness; judges or courts are "great" because they have been proclaimed to be so. Probably the biggest difficulty is to separate the truly great from those reputed to be so. And here is where attorney Charles Horsky's canny observation is so important: "Among lawyers and certainly among laymen, judicial stature has tended to be equated with quotability." Masters of legal literary style, masters of clarity, authors of the magnificent epigram are not necessarily the great judges; most great ones, however, qualify as literary masters.

Rufus Choate said of a great judge: "In the first place, he should be profoundly learned in all the learning of the law, and he must know how to use that learning." In addition, I turned to a two-fold test that Dean Roscoe Pound taught in another context: to determine (1) how thoughtfully and disinterestedly the judge weighs conflicts involved in the cases and (2) how fair and durable the adjustment of the conflict promises to be.

My all-star court does Pound, Choate and Horsky extremely proud.

5. How did you come to President Lyndon B. Johnson�s attention as a potential nominee to serve on the Third Circuit?

I am not certain how the name of any particular judge came to the attention of President Lyndon B. Johnson. This I do know. When a vacancy occurred in the Third Circuit when Austin Staley took senior status, I received a call from Joseph Clark, the Democratic senator from Philadelphia. He told me that he had been impressed by my work as the calendar control judge of the Court of Common Pleas in Allegheny County (Pittsburgh), where in two years I reduced the time from 48 to 11 months for a case to come to trial. I had known Senator Clark, but we weren't yet on a first-name basis. He told me, "I know that you�re a good friend of my colleague, Hugh Scott, and I have already mentioned you to him." At that time, Senator Scott was the Republican Minority Leader in the Senate. Thereafter, Senators Clark and Scott approached Warren Christopher, then Deputy Attorney General, who in turn recommended me to the President.

6. Your official Federal Judicial Center biography indicates that President Johnson nominated you to fill a vacancy on the Third Circuit on July 17, 1968 and the U.S. Senate confirmed you to serve as a U.S. Circuit Judge twelve days later, on July 29, 1968. In what ways did the federal judicial confirmation process differ in 1968 from what it is today? Also, which approach -- then or now -- do you find preferable, and why?

I am not certain that the official Federal Judicial Center Biography contains the correct date, but I do know that my commission reads July 9, 1968. Previously, there had been very few public hassles about appointments to the courts of appeals. I think that we have a serious problem today caused by both political parties, that an appellate court nominee has to be tasteless, odorless and colorless. If nominees have written law review articles or books, or asserted positions on substantive law or the judicial process, they are virtually doomed. They can be expected to be interrogated vigorously, if not viciously, on their views as well as to many otherwise aspects of their private lives. I am convinced that many able men and women prefer not to have their names submitted because they refuse to go through a public torture.

7. The confirmation process for federal appellate judges today certainly seems more overtly politicized than ever. For example, in early 2000, President Clinton nominated one of your former law clerks to fill a Third Circuit vacancy, but the U.S. Senate failed to act on the nomination. Through the grapevine I hear that some judges are noticing that the increased politicization of the nomination and confirmation processes has had an effect on sitting judges, in that they start thinking of themselves or their colleagues as "Clinton judges" or "Reagan�Bush judges." Is this something that you have noticed and, even if not, do you view it as a legitimate concern?

I can speak only of the Third Circuit because I sit by designation only on the other courts of appeals. It was my experience as an active judge that our judges have not thought of themselves and their colleagues as Johnson judges, Nixon judges, Carter judges, Reagan judges or what have you. In the sense that the label "liberal" is used, two of the most liberal judges with I sat on the court were appointed by Nixon and Reagan.

8. Not only do you reside in the Ninth Circuit, but you have sat by designation hearing appeals on that court with some frequency. What is your view on whether the Ninth Circuit -- which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges -- should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

Because I have often sat with the Ninth Circuit since 1987, I think I know the extent of the problems there. If any court reaches the point that the volume of published cases is so high that it is impossible an active judge to read the published opinions of his or her court, then the time has come to split the circuit. That is precisely the situation that exists today. Notwithstanding published analyses to the contrary, it has been my experience that there are too many panel conflicts. What is more, many of these conflicts go to the heart of the standard of review. I note that Judge Kleinfeld has publicly said, "Our court is much too big for us to read all of each other�s decisions and it is too big for us to sit together to rehear en banc. There are well over 3,000 combinations of judges, not including senior and visiting judges, so a pair of active judges on the court can go three or four years without sitting with each other on a regular panel." To me that is a serious problem.

One of the biggest stumbling blocks of dividing the circuit is the fear that the state of California would be split. This is a non-starter. California is already split culturally and politically on a geographic basis. Moreover, there are so many splits in panel decisions today that a split California would not make too much of a difference. As to the possibility of California diversity cases being decided by two different courts of appeals, I see no problem because diversity cases -- which are not binding on the state court system -- are seldom the subject of precedential opinions. I agree with Judge Diarmuid O'Scannlain that the present size of the court jeopardizes decisionmaking consistency and that the matter will be exacerbated with the addition of five additional judges. Judge O'Scannlain notes, "On a court with 50 judges, 19,600 different three judge panels are possible."

Years ago, the Hruska Commission recommended a split that I think should be seriously considered today. One half of California and Nevada and Arizona in one court and the rest of California and the other states in another circuit. The Commission made the decision on the basis of the caseload. If the statistics have changed, make a re-alignment to even out the caseload for the split circuits. As far of the judges are concerned, a formula could be established on a permanent basis; on a temporary basis, existing judges could be assigned where needed.

9. In January 1997, the Federal Lawyer published an article of yours under the headline "Then and Now: Danger in the Courts." In the article, you expressed your concern that the large number of appeals pending for decision in the Nation's federal appellate courts posed the threat of "assembly line justice." You wrote that the need for drastic reform was dire. Since then, the number of appeals filed has continued to grow. Do you still perceive a dire need for drastic reform, and what solutions do you view as deserving of consideration?

When I became a member of the Third Circuit in 1968 each active judge was responsible for deciding 90 appeals a year. The national average was 93. That was "Then."

But "Now" in the Third Circuit, each active judge was responsible for deciding 381 cases in 2002, 327 in 2001, 330 in 2000; and 381 in 1997. That's fully briefed cases on the merits. The national average in 2002 was 485 per active judge, up from 429 in 1997. Divide 485 cases by 255 working days a year and you start to get the message I have been preaching for years -- to no avail. One-A-Day is a great name for vitamins, but I doubt that it's equally great in describing the caseload for U.S. Circuit judges.

You must understand that the case you file with us moves along an assembly line of over one case every 4.9 hours. Think about it. That's the time allotted to your case. In that time, the judge must read the briefs, research the law, perhaps hear argument, conference with colleagues, make a decision, write an opinion or order, examine draft opinions written by other judges, and at the same time study motions in other cases or petitions for rehearing. And, of course, travel to the court, check into the hotel. Answer the phone. One fully briefed case for decision every 4.9 hours.

All of this in the highest court to which a federal litigant has a right to take an appeal. Today there is no quiet library time. The circuit judge is on a treadmill, and your case comes to him or her in the midst of a gallop. No time to taste the morsels you dish up for a leisurely dinner here -- a fast-food menu is all that's available. With this fast-food menu, are you receiving justice, or a kind of jurisprudential indigestion?

I use the U.S. Courts of Appeals as an example, but what is true with us is equally true in many state appellate courts, especially in the intermediate courts of appeals in large states. The present U.S. Court of Appeals system is not only unhealthy, but is kept alive only by artificial life support. And it's about time that we face up to it. And please, additional judges are not the answer.

No words of mine can demonstrate the extent of the problems more than the sheer number of cases terminated by each active U.S. circuit judge. We have a system that cries out for drastic reform -- a reform that can be brought about only by a re-examination of fundamental concepts of federal appellate review.

As a principal speaker in 1994 before the American Law Institute, I pleaded with the lawyers and the public to do something monumental. I asked for a study that will examine the anatomy of an appeal, not the structure of a court. That the study begin where the common law left off. That it begin before any statutes gave English litigants and then American litigants a right to appeal from a trial court.

That's how basic any investigation has to be if we are to come to grips with treadmill justice. In 1994, I was a voice crying in the wilderness. I am still crying.

10. You have sat as a federal appellate judge not only with the Third Circuit, but also by designation with the Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits. What have you learned from sitting by designation on these other federal appellate courts that you might not have learned had you limited your judicial service to the Third Circuit?

I have had a rich and valuable experience sitting by designation with so many U.S. courts of appeals. I've read the briefs and heard the voices of lawyers from all parts of the country. I've been fortunate to get "the feel" of the claims, wants and demands of the litigants of environments totally different from those in Pennsylvania, Delaware, New Jersey and the Virgin Islands. And I have had the experience of sitting with judges and have heard lawyers of backgrounds other than those in "the effete East." From this experience, I have learned that although we live in a mammoth country of diverse environments and culture, a dedicated, uniform desire to do justice abides throughout this nation.

11. Another of your books is entitled "Logic for Lawyers: A Guide to Clear Legal Thinking." Often in your published opinions, you mention principles of logic in deciding cases; one recent example is your decision in In re: Linerboard Antitrust Litigation, 305 F.3d 145 (3d Cir. 2002). What role does logic occupy in the resolution of legal disputes, do you find that lawyers commonly fail to examine the logical underpinnings of their arguments on appeal, and would you suggest that logic be made a mandatory part of the curriculum in the Nation�s law schools?

It is tragic that our law schools do not have an orientation course in logic. We had that great line from Professor Kingsfield in The Paper Chase: "You come in here with a head full of mush and you leave thinking like a lawyer." The Socratic method is the most valuable tool to train students to think like a lawyer. Yet the students -- and unfortunately too many of their professors -- apparently do not know the elements of deductive and inductive reasoning. They do not understand that a fallacy of form occurs when the structure of a categorical deductive syllogism is violated. A discussion of every point in a brief must take the form of a deductive syllogism. Too many briefs urge us to accept the conclusion of a point raised without setting forth the major and minor premises leading to it. Students and lawyers do not become acquainted with the fallacies of irrelevant evidence, of distraction, as well as a host of miscellaneous fallacies -- from dicto simpliciter to begging the question and the linguistic fallacies.

12. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven't been. Also, are you adhering to the "Law Clerk Hiring Plan" that supposedly has the overwhelming support of federal appellate judges, and why or why not?

I go through a rather elaborate process in selecting a law clerk. I look at the whole person and want to know the applicant's academic record, his or her hobbies, his or her extracurricular activities as an undergraduate and whether he or she has had any "real-world," non-legal work experience. Because we are not in a bustling courthouse, but rather alone in a small shop in Santa Barbara, I also try to filter out those applicants who never remove their noses from their books. I have to be certain that clerks can satisfy the intellectual rigors of chambers life without drowning in them. I search for applicants who are outgoing, well-rounded, and affable and who get along with the co-clerk and the secretary. I have been extremely satisfied within the pool of applicants that I have been receiving.

Yes, I am adhering to the "law clerk hiring plan." I voted against it because I think that the plan favors the judges and most law professors, who really don't know students after only one year. I have always been able to get a good idea of the academic progress from the first-year marks of any law student. I think it is grossly unfair for a law student to wait until the end of his second year to interview for a law clerk's position at the same time he or she is seeking other post-law school employment.

13. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non�precedential decisions in briefs filed in all federal appellate courts. I know that you have previously expressed the view that federal appellate courts publish too many opinions. Where do you stand on the question of allowing citation to "unpublished" opinions; do you believe that federal appellate court panels should be able to designate some of their rulings as "non�precedential" upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

I am totally opposed to allowing citation of "non-precedential opinions." These are truncated opinions. Very seldom are the material and adjudicative facts set forth. Indeed, in the Ninth Circuit the specific rule prohibits setting forth facts. You cannot assume that a non-precedential opinion in any circuit, with little or no facts, has the efficacy to announce a rule of law in any case. Roscoe Pound taught us that a rule of law is a detailed legal consequence to a detailed set of facts. How can we determine a rule of law from a non-precedential opinion that does not have an accurate statement of material facts to support the holding?

14. Is the salary now paid to federal appellate judges too low? Has this been the case during your entire tenure as a federal appellate judge? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Of course, the salary paid to federal appellate judges is too low. As a senior judge with grown children, I have no problem with it. The present salary structure is such that the pool of nominees draws primarily from those who are already in government service or serving in the state court systems. A federal judge should be paid a salary at least equivalent to a full professor in a national law school or a mid-range partner in a prestigious metropolitan law firm.

15. You have written that ninety percent of all appeals tend to be relatively straightforward to decide. How should judges go about deciding the remaining ten percent, and what role, if any, should their personal or political preferences play in those close calls? Also, is there an objective way to identify judicial activism, or is it all in the eyes of the beholder?

I have said that 90 percent of all appeals tend to be relatively straightforward to decide. They come within Judge Cardozo's first two categories: (1) the law is clear and the application of the facts equally plain; or (2) where the law is clear and the sole question is its application to the facts found by the factfinder. I turn to Roscoe Pound for assistance in deciding the remaining ten percent -- where the law is not clear. In the first category of this inquiry, we must find the law by using inductive generalization from a host of decided cases to form a guiding principle or to make a choice between competing principles. Involved in the former is inductive reasoning. The latter involves the exercise of a value judgment which should be supported by reasons why. In the second category of cases where the law is not clear, the legal precept may be identified, but the problem is interpreting -- the fertile field of statutory construction or interpreting clauses of the Constitution.

Max Weber, the important European social theorist, suggested that the term "value judgment" refers to "practical evaluation of a phenomenon which is capable of being . . . worthy of either condemnation or approval." He distinguished between "logically determinable or empirically observable facts" and "the value judgments which are derived from practical standards, ethical standards or . . . views."

I think we draw the same distinction here. Each judge has his or her own preferences among a sea of legal standards, any one in principle respectable. And we make our selections. Sometimes we select extra legal standards, making a choice from ethical, moral, social, political or economical concepts offered by diverse teachers or philosophers. Because a value judgment figures in the choice of competing precepts interpretations and application how can a judge arrive at this decision without being considered arbitrary? Roger J. Traynor reminded us that "one entrusted with decision, traditionally above base prejudices, must also rise above the vanity of stubborn pre-conceptions, sometimes euphemistically called the courage of one's convictions. He knows well enough that he must severely discount his own predilections of however high grade he regards them, which is to say he must bring to his intellectual labors a cleansing doubt of his omniscience, indeed of his perception."

In the law, as well as in life itself, judging is the act of selecting and weighing facts and suggestions as they present themselves, as well as deciding whether the alleged facts are really facts and whether an idea suggested is a sound idea or merely a fancy.

What we should expect from our judges, at a minimum, is a willingness to consider alternative solutions to a problem. A "result-oriented" judge, in the sense condemned, is one who consistently resists considering arguments contrary to initial impression or pre-existing inclination. We cannot expect judicial minds to be untainted by their first impression of a case. What we can expect is that the initial impression will be fluid enough to yield to later impressions. We can also expect that judges will be intellectually interested in an outcome based on sound reasoning. What we can demand is that judge employ logically sound techniques of intellectual inquiry and reflection when making value judgments, and then explain both their premises and their conclusions to us in clear language evidencing impeccable logical form.

I recognize that this is a long answer to your question. More extensive discussion can be found in the second edition of my book, The Judicial Process: Text, Materials and Cases.

16. You are currently the longest�serving Third Circuit judge on that court. As you approach your thirty�fifth anniversary on the Third Circuit later this month, including several years of service as Chief Judge, what memories of that court and your current and former colleagues do you hold most dear?

I answer your question by referring to two periods on the court. First, my early days on the court. When I joined, we had six active judges: Chief Judge Bill Hastie, Harry Kalodner, Collins Seitz, Abe Freedman, Frank Van Dusen and me. Our senior judges were men of historic proportions. John Biggs, Jr., had been a roommate of F. Scott Fitzgerald at Princeton. ("And Rugi, I was a better writer than Scotty, and he knew it.") Albert Maris, probably the best opinion writer our court ever had -- crisp and clean writing with an economy of words. I was star-struck because I had studied the opinions of Biggs and Maris in law school. Then there was Phillip Foreman, who was appointed U.S. District Attorney for New Jersey by Calvin Coolidge and U.S. District Judge by Herbert Hoover, both appointments when I was still in grade school. Bill Hastie was the first African-American governor (Virgin Islands), federal judge (District Court of the Virgin Islands), and Article III judge (Third Circuit). Not to take anything away from Thurgood Marshall, but Bill should have been the first African-American Supreme Court Justice.

The second period was with a group that was together for many years -- Collins Seitz, Frank Van Dusen, Arlin Adams, John Gibbons, Max Rosenn, Jim Hunter, Joe Weis, Leonard Garth, and later in 1977 when Leon Higginbotham replaced Van Dusen. We were the consummate collegial court. To be sure, we did not always agree on the law, but this never interfered with the strong bonds of friendship in this "band of brothers."

17. Several months ago on my appellate Web log, I linked (see here and here) to a newly-issued Ninth Circuit opinion that involved a tax dispute pertaining to Johnston Island, a small island in the Pacific Ocean that the United States acquired under the Guano Islands Act of 1856. Shortly thereafter, I received an email from a former law clerk of yours who wrote that Judge Aldisert had been stationed there for a time while serving in the U.S. Marine Corps. What if any memories do you have of that place and your assignment there?

I arrived on Johnson Island a little over a year after Pearl Harbor. After Wake had fallen in December 1941, the last two outposts guarding the approach to the Hawaiian Islands were Midway and Johnson. Johnson is and was a low-sand and coral island -- 1,000 yards long, about 200 yards wide and, after leveling for protection, 17 feet high. A mile and a half to the northeast of the main island is a small pile of sand and coral reef known as Sand Island, about 200 yards in diameter and eight feet high. Both islands are enclosed by a semi-circular reef, nearly continuous on the north but open to the south. Things were still a little touch-and-go when I arrived on Johnson -- General Quarters an hour before dawn and an hour before sunset every day, total blackout at night. I was an officer in a half-strength Marine defense battalion. The other half had been captured on Wake Island and were then prisoners of war. At first, our air protection consisted of two PBYs who went on dawn and dusk patrols at a top speed of 110 knots. Gradually the Navy CBs were able to extend the island to 1,000 yards so that we could have a runway to accommodate a squadron of Dauntless Dive Bombers.

The two 90-millimeter batteries were named after our comrades from the Wake detachment -- Captain B.D. Godbold and Lt. Lewis. I served most of my time on Johnson Island as an officer in Godbold battery and later became battery commander of Lewis battery, located on Sand Island. We staged from Johnston Island in January 1944 for the invasion of the Marshall Islands.

About 30 years would pass before I would meet Judge John Godbold of the Fifth Circuit. (He later became Chief Judge of both the Fifth and the Eleventh Circuits.) I told him about my experience with his name. He smiled and told me that the Marine captain captured on Wake Island was his brother, that he survived internment, remained in the Marine Corps and retired as a Lieutenant General in the Marines.

18. You entered the judiciary as an elected state court trial judge. Recently, the method of choosing judges by election has come under much criticism from various groups, and of course the federal model of selecting Article III judges has experienced challenges of its own. If you were put in charge of picking the most sensible method of selecting judges for a State or a Nation, what method would you choose?

I would retain the practice of having state trial judges stand for election with a caveat. I would have a trial lawyer section of local bar associations have input into the qualification of candidates similar to the ABA's stamp of approval on federal nominees. No one should be permitted to run for office unless he or she were marked qualified. I would eliminate election of state appellate judges, have appointments made by the governor for a 10-year term, after approval by a committee of experienced appellate lawyers in the state bar associations. In the case of both state trial and appellate judges, I would have subsequent terms based on a retention vote.

I have no trouble with the method of choosing federal judges -- appointment by the President with the advice and consent of the Senate. This means the Senate -- not its Judiciary Committee. For that committee to refuse to send a name to the full Senate is probably unconstitutional. The posturing about approving nominees to the courts of appeals is a relatively new phenomenon, and I think that this silly season will soon pass. Unlike the situation in the U.S. Supreme Court, more than 90 percent of our caseload is ideologically neutral.

19. You and your wife were close friends with U.S. Supreme Court Justice William J. Brennan, Jr. and his wife. When Justice Brennan retired from the Supreme Court, and since then, a more "conservative" approach to judging seems to have come into ascendancy at the Supreme Court. Would you share some of your memories of Justice Brennan, and do you think that it is unfair to malign the Warren Court as activist without acknowledging that the Rehnquist Court has also been activist in its own way?

Justice Brennan was one of the kindest men I ever met. Running throughout all his opinions was an effort to improve justice and eradicate discrimination throughout America. By injecting safeguards in criminal procedures, strengthening federal habeas corpus, and assisting in the resurrection of 42 U.S.C. sec. 1983, he forced many states to choose state judges who would understand and effectuate the great promise of the Constitution for fear that their decisions would not stand up if reviewed in the federal courts. I think that the state judiciary is a more respected institution than it was before Justice Brennan began his crusade.

I do not use the word "activist" to describe any past or present justice of the United States Supreme Court.

20. What do you do for enjoyment and/or relaxation in your spare time?

When she saw this question, my wife laughed, "You don�t have any spare time." For enjoyment (and health), my wife and I take a brisk four-mile walk on the beachway four mornings a week (she does five days), and once a week I play golf. I love to read and write. I have taken several extension courses at UCLA in fiction writing. For years, I have been simultaneously writing two novels which, of course, will never see the light of day, but I have great fun with the creative process. My wife and I are now slowing down, but for many years we traveled a lot -- to all fifty states and, until recently, to Europe every year.

"20 Questions" for:

Fifth Circuit Judge Jerry E. Smith

Ninth Circuit Judge Diarmuid F. O'Scannlain

Mississippi Supreme Court Justice Kay B. Cobb

Ninth Circuit Judge Andrew J. Kleinfeld

Ninth Circuit Judge Michael Daly Hawkins

Third Circuit Judge Ruggero J. Aldisert

Eleventh Circuit Judge Gerald Bard Tjoflat

Federal Circuit Judge William Curtis Bryson

Eleventh Circuit Judge Stanley F. Birch, Jr.

Eighth Circuit Judge Richard S. Arnold

Seventh Circuit Judge Richard A. Posner

Tenth Circuit Chief Judge Deanell Reece Tacha

Ninth Circuit Judge Stephen Reinhardt

First Circuit Judge Bruce M. Selya

U.S. District Judge Milton I. Shadur
(N.D. Ill.)

Missouri Supreme Court Judge Richard B. Teitelman

California Court of Appeal Justice William W. Bedsworth (4th Dist., Div. 3)

Tenth Circuit Judge Paul J. Kelly, Jr.

Seventh Circuit Judge Frank H. Easterbrook

Wisconsin Chief Justice Shirley S. Abrahamson

Seventh Circuit Judge Diane S. Sykes

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