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Tuesday, September 02, 2003

20 Questions for Circuit Judge William Curtis Bryson of the U.S. Court of Appeals for the Federal Circuit: "How Appealing" is especially pleased that Circuit Judge William Curtis Bryson of the U.S. Court of Appeals for the Federal Circuit has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Bryson joined the Federal Circuit in October 1994 at the age of 49. He attended college at Harvard and law school at the University of Texas. The Federal Circuit has its headquarters in Washington, D.C., and the court's judges are all based there.

Questions appear below in italics, and Judge Bryson's responses follow in plain text.

1. The U.S. Congress established the U.S. Court of Appeals for the Federal Circuit in 1982, and that court is the only U.S. Court of Appeals defined exclusively by the subject matter of the cases it hears rather than by geographic boundaries. What cases does the Federal Circuit have jurisdiction to hear and decide, is the jurisdiction of the Federal Circuit statutorily described in a clear enough manner so that attorneys of reasonable intelligence can determine when an appeal must be taken to that court, and do you believe that the Federal Circuit is serving adequately the purposes for which it was created?

Roughly speaking, our jurisdiction extends to (1) appeals from district court actions in which a patent claim is included in the complaint; (2) appeals from district court actions brought under the "Little Tucker Act," i.e., non-tort monetary claims against the government not exceeding $10,000 in amount; (3) appeals from decisions of the Patent and Trademark Office on a variety of patent and trademark issues; (4) appeals from the Court of International Trade; (5) appeals from the Court of Federal Claims (a wide range of types of claims against the government for money other than tort claims); (6) review of certain determinations of the International Trade Commission; (7) review of decisions of the Merit Systems Protection Board (involving federal employment and employment benefit issues); (8) appeals from the various agency Boards of Contract Appeals (government contract issues); (9) review of decisions of the Court of Appeals for Veterans Claims (mainly disputes over claims for VA benefits); and (10) several other sources of occasional work, such as review of certain decisions arising under the Congressional Accountability Act and cases that were previously within the jurisdiction of the Temporary Emergency Court of Appeals.

For the most part, the jurisdictional lines seem to be reasonably clear. We have had occasional problems with questions as to whether particular cases belong to us or to one of the regional circuits, see, e.g., Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988), but I think it is fair to say that problems as to whether jurisdiction lies in this court or in another appellate court do not pose major difficulties for us or for the regional circuits, and my impression is that lawyers generally find their way to the right court without undue difficulty. Occasionally a lawyer will file an appeal in a regional circuit that should be filed with us, but that is usually because the lawyer is unaware that we exist, and the regional circuits are pretty savvy about shooting those appeals over to us.

As to whether this court is serving the purposes for which it was created, I am not in the best position to say. You are asking the cook to comment on the quality of the food served in the restaurant. To the extent that the Federal Circuit was created to bring greater uniformity to the field of patent law, simply having one court handle all (or most) of the cases in a substantive area necessarily reduces the potential for doctrinal variances and the likelihood that similar cases will be decided differently. Still, lawyers sometimes complain that outcomes in patent cases are unpredictable and results are panel-dependent. I have two observations in that regard. First, the number of close and hard cases in the patent area seems especially large, and close cases, by their nature, result in unpredictable outcomes. Second, I see less panel dependency in our decisions than some of the lawyers claim to see. I suspect that some of those who follow our decisions have persuaded themselves that particular judges have tendencies or predispositions that are just not there, or are not there to the same degree as the commentators would have you believe. Some commentators, and even some judges on regional circuits, have criticized the idea that any federal appellate court should be specialized with respect to subject matter. In response, I would point out (1) that we have enough different areas of substantive work that we are not really "specialized" in the usual sense of that term, even though our jurisdiction is defined by subject matter, and (2) even before our creation there was some de facto subject matter specialization in federal appellate courts: for example, the D.C. Circuit has always gotten a very large proportion of the administrative rulemaking challenges, and in other substantive areas such as copyright, securities, and admiralty, cases have always tended to be concentrated in a couple of circuits.

2. One of the reasons why the Federal Circuit exists is to advance uniformity in patent law. Yet in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., the U.S. Supreme Court ruled that the Federal Circuit only has jurisdiction over appeals in which the plaintiff's well�pleaded complaint alleges a patent law claim. Thus, where a plaintiff's complaint contains no patent law claim but the defendant's answer asserts a patent law counterclaim, an appeal of a trial court's patent law ruling would properly be heard by a regional U.S. Court of Appeals instead of the Federal Circuit. Have you noticed any increased lack of uniformity in patent law in the aftermath of Holmes Group? Also, as a matter of policy, would you favor an amendment by Congress to the relevant jurisdictional statutes to give the Federal Circuit exclusive appellate jurisdiction over all patent claims, whether asserted by the plaintiff or defendant?

It is too soon to tell whether the Vornado case will introduce a significant amount of non-uniformity into patent law because of the fact that regional circuits will now be deciding some patent issues. My guess is that the effect will be marginal and that the regional circuits, which have been out of the patent business for the past 20 years, will not be leaping to seize the opportunity to create circuit splits with us. A congressional fix would have the useful effect of returning us to where we were before Vornado, and it is difficult for me to see any strong policy reasons against making that change.

3. Before becoming a judge, you served for many years in the Office of Solicitor General, including nearly ten years as Deputy Solicitor General and a short time as Acting Solicitor General. You have argued 31 cases in the U.S. Supreme Court and more than 150 cases in the federal appellate courts. Also, you have been described as one of the leading criminal law experts in the Nation. How, of all courts, did you end up as a judge on the Federal Circuit, which hears no criminal cases and which has a rather specialized docket? Also, what sorts of cases have proved most interesting and most challenging so far during your tenure on the court?

On several occasions during the latter stages of my 17-year tenure at the Department of Justice, I expressed interest in being considered for a court of appeals judgeship, but of course there are not many such opportunities and the odds against being selected for such a position are long, especially for a career government lawyer with no political connections. When the Federal Circuit opening arose, I put my name in for the position and was delighted when I was selected. The prospect of working in substantive fields that were largely new to me was intimidating, but also enticing. I anticipated that even though I would have a lot to learn, the process would be very stimulating, and I have not been disappointed. As for leaving the criminal law behind, I had some regrets, mainly because I had developed some sense of how things fit together in the criminal law area, and I knew that it would be a long time before I had that same familiarity with the various new areas of civil law in which I would be working. Yet, while I had practiced mainly in the criminal area, I always considered myself more of an appellate lawyer than a criminal lawyer. I felt that while the substantive law would be new, the appellate process would be familiar to me, and that has proved to be true.

As for the kinds of cases that have proved interesting and challenging, I have no particular favorites. I have enjoyed working on, and have learned from, a wide variety of the cases I have encountered. Our docket has high percentage of complex cases, such as patent cases from the district courts, tax cases from the Court of Federal Claims, antidumping duty cases from the Court of International Trade, just to mention a few examples. The patent cases are often interesting because they give insight into technical fields that about which I had little previous knowledge. I like science, and the opportunity to learn something about genetics, or pharmaceuticals, or medical procedures, or telecommunications technology, is always eye-opening. At our best, we humans are a clever species, and the patent cases give one a glimpse, from a spectator's perspective, of just how clever we can be. But at the same time, the patent cases can be very challenging, as they typically involve two levels of difficulty: mastering the technology sufficiently to understand the legal issues, and then mastering the legal issues sufficiently to decide the case. That is not to say, however, that the patent cases are always the most challenging or interesting. Cases from other areas, such as international trade cases, often involve complex administrative proceedings but also offer insight into areas of law and economic activity of which I knew next to nothing when I started. And cases such as Takings Clause actions from the Court of Federal Claims present fascinating legal issues in a field that is rapidly evolving. I even enjoy tax cases (to the invariable surprise of my law clerks) because they typically present pure legal issues that can be resolved with some confidence in light of the internal logic of The Code. In short, what I like the best are cases from which I learn something new. And I find that I encounter those kinds of cases quite frequently.

4. If you had to abandon your seat on the Federal Circuit but in exchange could serve as a judge on any other U.S. Court of Appeals, which circuit would you choose and why?

Hard question. I very much enjoy the appellate process, and would be delighted to serve on any court of appeals. I suppose if pressed, and if forced to abandon my seat here, I would choose the D.C. Circuit, not for any particularly profound reasons, but because (1) I know and like a number of the judges on that court; (2) as in my present position, I wouldn't have to travel to attend oral arguments, which is a real luxury for someone with two school-aged children and a wife who travels frequently; and (3) the D.C. Circuit, like the Federal Circuit, is relatively small (12 authorized judgeships for both courts), which is something I have come to value.

5. You are one of the most experienced appellate litigators currently serving as a federal appellate judge. Now that you are behind the bench, in what ways could even experienced appellate advocates improve their brief writing and oral argument skills so as to be more effective?

That's an invitation to write a treatise, but I will try to resist. It is easy for judges to criticize those who appear before us (just as they criticize us), and perhaps we are too quick to do so. There is a story about the late Judge Harold Leventhal of the D.C. Circuit, who, when one of his colleagues was complaining about the quality of the lawyers who appeared before that court, responded, "Yes, fully 50 percent of them are below average." Notwithstanding Judge Leventhal's observation, I am still surprised that the quality of brief-writing and especially of oral argument in our court is not better than it is. Some of our cases involve quite a lot of money, and you would think that those cases, at least, would attract highly competent counsel who would know how to present their cases effectively. And some of them do. But many others do not.

Just about all of the things I would say about improving brief writing and oral advocacy have been said before. I have no great insights here, but perhaps offering further support for points made elsewhere may have some utility, so here goes:

As for brief writing, the value of clarity and economy of expression cannot be overstated. Sometimes I think lawyers assume that judges are going to spend as much time studying the briefs as the lawyers spend writing them. They aren't. Just look at the numbers. In a typical sitting week, a judge on our court will have, perhaps, sixteen argued cases and another eight submitted cases. We sit every month, and I spend the first week and a half to two weeks of each month working on opinions. So that leaves a week to a week and a half to read briefs in preparation for the week of sitting. That means I have five to seven working days to read and digest 48 briefs, not counting reply briefs. A dense, 60-page brief that is hard to plow through is not a very welcome sight in the middle of that process. It would be lovely if we had only four or five cases to prepare for each month and could devote days to each one, but there is no appellate court in the land that has that luxury. You can imagine how refreshing and effective a lucid, simple, nonrepetitive presentation can be in that setting. That is particularly true of an appellant's brief. The fact of the matter is that, as appellate court dockets get larger and larger, the presumption of correctness attached to lower tribunal decisions gets stronger. The default position is to affirm, and it is easy for an ineffective presentation to mask decent appeal points so that a case gets tossed into the "probable affirmance" pile early on. That's a hard pile to escape from, and you normally can't count on your brilliance at oral argument to save you. So the main message is, keep it simple, make it clear, don't lard it up with footnotes that head off on tangents that are of interest to you but are not going to affect the court's decision in the case. Don't put something in just because you did the work and don't want it to go to waste. And, most importantly, remember that the purpose of the brief is to persuade, not to impress. I see briefs all the time that strike me as having been written to demonstrate the diligence and learning of the brief writer rather than to persuade the court to rule in the party's favor.

As for appellee briefs, I see too many of them that begin with an assertion such as, "This is a simple case," and then follow with 60 pages of dense briefing, much of which is repetitive, or is not on the main path to affirmance but addresses alternative grounds for upholding the judgment. I am not advocating short-arm briefs that pretend there is nothing to the appeal, cite a few broad legal principles and then stop, in the hope and expectation that the court of appeals will assume from the presence of a 10-page appellee's brief that there is nothing to the case. We do see that sort of thing from time to time. But what I am saying is that you must recognize that you pay a price for every additional argument you put into a brief; you need to be confident that the benefit to your prospects for success is worth that price.

Of course, I add my voice to the chorus of judges and advocates who have said that attacks on opposing counsel, including the stupid adverbial characterizations of the other side's position ("Appellant desperately contends . . .," etc.) do nothing to advance the brief writer's cause. When I read such things I ask myself, "Do these people think we are such morons that we will be swayed by the vehemence of the insults?" A neutral, dispassionate characterization of the facts and the contentions of the opposing side is much more effective than disparagement and disdain, especially if the other side is busy ranting and raving. If you must get this stuff out of your system, put it into the first draft and then take it out.

A first cousin to this point, and perhaps even more important, is to be scrupulous about avoiding overstatement or distortion in characterizing the facts or the law. We really do look at appendix citations, and we really do read cases that the parties represent as strongly favoring their positions. When we find that a party's appendix cites or cases do not live up to their billing, it does enormous damage to that party's credibility. This happens a lot. I don't know whether such distortions occur because the lawyer so wishes that the case or the transcript excerpt in question said what the lawyer would like it to say that the lawyer becomes persuaded that it actually does say that, or whether the lawyer just has a extremely broad view of justifiable inference, or worse. But whatever the reason, it poisons the well and makes the court skeptical of everything the lawyer is trying to sell.

Oral argument: The thing that most surprises me the most about oral arguments is how unprepared lawyers are. By and large, the judges on our court prepare pretty thoroughly for oral argument (my experience is that the same is true of other federal appellate courts as well). As a result, a lawyer's lack of preparation sometimes has the awkward consequence that the lawyer knows less about the case than the judges do. We have had stunning instances of lack of preparation in cases before us, such as the failure on the part of one lawyer to have read the case on which the other side principally relied or, on many occasions, the failure to anticipate questions that are so obviously presented by the case that two or more of the judges trip over themselves asking the same question at the outset of the argument. All I can conclude is that people just don't appreciate the need for preparation or don't understand the kind of preparation that is necessary. In particular, lawyers do not seem to prepare by examining their own positions critically. I frequently see lawyers react with surprise and annoyance when the judges begin to ask questions that suggest some skepticism about the lawyer's position. Some of those lawyers become combative and surly rather than leaping to the opportunity to engage the court. I suspect that reaction comes from the lawyer's never having really thought critically about the weaknesses in his or her own case. The judges are not likely to ask about the strong points in your case; they will ask those questions of the other side. It is the weak points that you need to concentrate your efforts on, yet I think many lawyers don't do it.

I tell my law clerks that even though the comic book version of oral advocates is that they have to be silver-tongued orators, that is not at all the case. Lord knows, I was not. Preparation is everything, or nearly everything. If you are fully prepared, it is hard to be really bad, even if you consider yourself a miserable courtroom performer. And if you are not prepared, it doesn't matter if you are the second coming of Cicero; even Cicero is in trouble if he doesn't know what's in the joint appendix.

Moot courts can be very useful in this regard, but again I suspect that in some quarters what purports to be a moot court actually turns into a cheerleading session. I can imagine that some senior partners gather associates about them for a "moot court" in which the associates are reluctant to embarrass the boss in front of others and therefore do not ask the tough questions. But a proper moot court--a "murder board" if you will--can be the best antidote to holes in your preparation. At the Solicitor General's office, certain lawyers became highly valued for their skill in skewering lawyers who were presenting a moot court argument. Even though an hour being pummeled with hostile questions by a room full of such folks could be deflating and disheartening, I can personally attest that on many occasions--not just a few, but many--a question that surprised me at moot court, and which I then had a chance to think about, came up during the real oral argument in court. Highly recommended.

There is a list of closely related sayings that come up, in one form or another, in every discussion of oral advocacy, and every one of them is true: don't fight with the court, but assume the posture of trying to help the court; answer questions first, then explain; an oral argument is not Meet the Press, and a question from the court is not an invitation to give a speech on a subject loosely related to the question; do not duck hypothetical questions--the line "that is not this case" is almost as universally detested among appellate judges as the line "I didn't try this case." Hypothetical questions, of course, can be dangerous, as I discovered on several occasions when Justice Stevens, a renowned master of the hypothetical question, used them to expose weakness in my case. But that is a big part of what preparation is about: what hypothetical questions are the judges likely to ask, and what is my best answer, i.e., where do I draw the line between my case and the hypothetical cases that seem to call for a different legal answer from the one I am urging the court to adopt. A well-prepared advocate should be able to address the hypothetical questions that are reasonably predictable, and may even be able to dress up his or her argument with his or her own hypothetical, which can be a very effective technique. I am surprised at how many lawyers, even experienced lawyers, are not prepared to deal with hypothetical questions. We do not ask those questions to torture lawyers, but because they are very useful tools for refining the legal principle on which the lawyer is relying--discovering what is essential to the lawyer's position and what is window dressing. But many lawyers either won't deal with them at all or stumble badly in trying to deal with them.

There is much more that could be said on these subjects, but having urged economy of expression, and having probably violated my own injunction, I shall stop.

6. After law school, you clerked for Second Circuit Judge Henry J. Friendly, and from there you went on to clerk for U.S. Supreme Court Justice Thurgood Marshall. Both men are historic figures in the law. What do you remember the most about each individual, and is there any way in which those two judges influence your own work as a judge?

I have been very lucky in my life in many respects. One, in particular, is the judges for whom I was privileged to clerk. Both Judge Friendly and Justice Marshall were, as you have said, historic figures in the law. In the case of Justice Marshall, he was an historic figure, period. Although the two men were good friends, they were very different in many ways, but each of them greatly influenced my life and I treasure my memories of the years I spent in their chambers.

Judge Friendly was probably the ablest lawyer I have ever known. He had all the qualities a very good lawyer has, only in greater abundance. He had remarkable depth of understanding in a huge variety of legal disciplines, from regulatory, securities, and corporate law, the fields in which he mainly practiced, to criminal law and admiralty, fields to which he was exposed mainly after joining the bench. He was a phenomenally fast and focused worker. He would retire to his study at the beginning of a day and late in the day a completed draft opinion would emerge in handwritten form on a couple of legal pads. His secretary would type the opinion in draft form (pre-word processing days), and the opinion would go to the law clerk for further work, which included any suggestions, analysis, additions, deletions, citations, and other changes that the law clerk thought appropriate subject, of course, to the judge's close scrutiny. While his legal prowess was intimidating, the thing that impressed me the most was his willingness to listen to suggestions from his law clerks and his colleagues. Because he was not an insecure man, he had no problem with a 25-year-old law clerk telling him that something in one of his draft opinions didn't seem to make sense and should come out. In fact, if the law clerks did not make many suggestions for changes in his work, he would be unhappy and insist that the law clerk scrub the opinion more closely.

When I became a judge, I modeled the operation of my chambers on the system Judge Friendly used. I use law clerks in much the same way, although because I am nowhere nearly as fast or as focused as he was, the law clerks play a larger role in the process in my chambers than they did in his. I also encourage my law clerks to question and challenge me, as Judge Friendly did. The results may not be the same, but the methods work very well for me.

Justice Marshall made a huge contribution to this country and will properly be remembered as a true hero. For years he, along with a small group of others, conducted a fight that was unfashionable, dangerous, difficult, often lonely, mostly frustrating, and maddeningly unfair. Although his most famous achievement, the Brown case, was a great victory, the years leading up to Brown, when he was litigating civil rights cases in courtrooms throughout the south, saw much less by way of success. He persevered through adversity that would have wilted most of us, but as a result of his exceptional courage and endurance, he played a pivotal role in what is probably the most important event in this country during my lifetime, the civil rights revolution. To hear him tell stories of the early, really tough times provided a wonderful insight into that dark phase of American history. I think it was as much Justice Marshall's example as anything else that inspired me to go into public service, although I have never had any illusions that my contribution could match his. But how many can make that claim?

As a judge, Justice Marshall had an exceptional capacity to cut to the essence of a case, using his excellent legal instincts and common-sense judgment. I can't say that I learned legal instincts and common sense from him; those attributes cannot be taught. But it was an education during his case discussions with the clerks to see how he would listen patiently to our elaborate and "learned" expositions and then respond with one sentence that cut to the essence of the case. For all of his achievements, Justice Marshall was a remarkably unpretentious man. When he left the Court he was asked how he would like to be remembered. He replied by saying something to the effect of "I'd like them to say 'He did the best he could with what he had.'" I'd take that as an epitaph myself if I thought I could live up to it.

7. In an editorial published March 26, 2003, The Washington Post called on Congress to abolish the U.S. Court of Federal Claims. The editorial was based on a law review article advocating that same result. Appeals from the U.S. Court of Federal Claims fall within the Federal Circuit�s jurisdiction. As a matter of policy, do you believe that the U.S. Court of Federal Claims should be abolished?

I am not sufficiently knowledgeable to offer an informed view on the policy question of whether abolishing the Court of Federal Claims would be a net plus for the federal judicial system. But then, I'm pretty sure the editors of the Washington Post aren't, either. I can say this much, however: The work I have seen from the judges of that court is of very high quality, and I have the impression that the court handles its caseload efficiently and skillfully. If I were a litigant, I would be happy to have my case before the Court of Federal Claims. The consequences of abolishing the court would, of course, be to transfer all of the court's cases to the federal district courts. Given the specialized nature of many of the court's cases and the backlogs of civil cases that plague many district courts, I wonder if the litigants in those cases would be as well served as they are now. While those who have done the math and argued that the cases now in the Court of Federal Claims could be dispersed among the district courts without greatly increasing the workload of any district court, I'm not sure that the numerical analysis takes account of the fact that many of the cases in the Court of Federal Claims are complex and many arise in areas of law as to which the Court of Federal Claims has developed expertise, but which would be new and unfamiliar to the district courts.

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

I enjoy many aspects of the decisional process. Perhaps my favorite part of the job is the process of working through the legal and factual analysis in the course of writing an opinion. That process is very similar to the process of writing a brief, which I found to be the best part of being an appellate lawyer. The difference is that if, while writing your brief, you come to the conclusion that your position is a loser, you normally just have to soldier on. As a judge, you have the luxury of turning the page over and writing the opinion to come out the other way. Your colleagues might not join you, but that's just part of the process and no cause for undue alarm.

The overall appeal of this job can probably be best summed up by saying that it has a very high signal-to-noise ratio. Almost everything we do is directed at getting the substantive work of the court out, i.e. moving the cases and trying to get them decided correctly. The amount of administrative work is negligible; the amount of squabbling over irrelevancies is pretty much zero; the unpleasant phone calls, the endless meetings, and the turf battles that are part of a lawyer's life in both the private and public sectors are nonexistent. These things are particularly true on this court, partly because the court happens to consist of a very collegial group of judges and partly because we have had a series of chief judges who have taken on the administrative work themselves and have run the court very smoothly. I come to work in a pleasant environment, sit down at my desk to work on cases, and when it is time to go home, I leave. That is my idea of a great job. The phone doesn't ring, people don't race in saying that Mr. Peterson is on the phone and is in a rage, and I don't have to worry about whether I'm keeping my billings up or the clients are paying the bills. It would drive some people nuts, but it works for me.

Independence is also one of the best aspects of the job. The freedom to decide cases on the merits as you view them, without having to answer to clients, a bureaucracy, or political considerations is a luxury that I had not sufficiently appreciated before arriving here.

As for what I don't like, there is honestly not much to complain about. I guess if I had to pick my least favorite aspect of the job it would be watching the delivery of the next month's briefs. Each month, the clerk's office brings up a large cart--we call it the tumbrel--which is loaded down with briefs for the following month's sitting. It is an intimidating sight, particularly when you see piles of cases involving multiple parties and cross-appeals in which each side has submitted a 60-page opening brief and two lengthy reply briefs, and a multi-volume appendix. There is a huge amount of reading in this job, and that moment reminds you of just how much there is. I sometimes wish lawyers who feel they have to use all 14,000 words that they are allowed for their opening briefs could share the experience. They might realize how much judges appreciate economy of expression and resent the garrulous, wandering presentations that we often encounter.

9. What qualities do you look for in deciding whom to hire as a law clerk, must someone have a patent law-type background to work as a judicial law clerk on the Federal Circuit, are their any sorts of candidates whom you wish were applying but haven't been, and would someone diminish his or her chances of a U.S. Supreme Court clerkship by choosing to clerk first on the Federal Circuit?

Some of the judges on our court like their clerks to have technical backgrounds, but patent-law backgrounds, as such, are not ordinarily required, although many of our applicants have an interest in, and sometimes experience in, the intellectual property field.

I do not insist that my law clerks have a patent-law background or even a technical degree. Although a technical background can be helpful in some cases and I have frequently hired clerks with such backgrounds, I would always prefer to have a good lawyer who knows nothing about patent law (or any other of our areas of specialized jurisdiction) than a poor lawyer who has been doing patent law for years. As for the qualities I look for, I value what I call "diggers," people who have a compulsion to get to the bottom of problems rather than stopping as soon as they have done what they regard as enough to get by. A related trait, attention to detail, is also very valuable. I try to stay away from the "big picture" folks, who have disdain for details. I can generally figure out the big picture for myself. What I need in a law clerk is someone on whom I can rely for thoroughness in research and precision in thinking. I also look for clerks who are willing to disagree with me, even to the point of quarrelsomeness, if the clerk thinks I'm wrong. I have often been saved from error or sloppy thinking by a clerk who has come in with one of my draft opinions saying, "This just doesn't make sense to me, and here's why."

I have been very pleased with the quality of the law clerk applications we get and the clerks I have been able to hire. Among the applicants, there are clearly more highly qualified candidates each year than we can possibly hire. I can't say that there is any sort of candidate who is not applying but should be. I suppose the one thing I would say to potential applicants is that to the extent people think the experience here is very different from the experience of being a law clerk on a regional circuit, they are mistaken. My impression is that the experience of being an appellate clerk is very similar from one court to another; I have had a couple of clerks who had previously clerked on a different court of appeals and they have expressed the same view.

As for Supreme Court clerkships, the Supreme Court has not taken clerks from this court in the past. I haven't asked any of the justices why that is, but I suspect that the reason is not that our clerks are perceived as having less ability than clerks from other circuits, but rather that they get no exposure to criminal cases during their tenure here. Criminal cases are a huge part of the Supreme Court's work--especially reviewing the cert. petitions. For that reason, the year's exposure that regional circuit law clerks get to criminal cases is of great value to the justices.

10. Have you decided to adhere to "Law Clerk Hiring Plan" that supposedly has the overwhelming support of federal appellate judges, and why or why not?

I have adhered to the plan. It is much more sensible for us and for the applicants than the chaotic system that preceded it. I will stick with it until and unless it comes completely unglued, which I very much hope it does not. With the current system, we have more information about the applicants, and they have had an extra year to figure out what they ultimately want to do, where they want to go, and whether they really want to clerk or not.

11. What is your view on whether the Ninth Circuit -- which now is authorized to have twenty-eight active judges and may 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?

I have no particular view as to whether the Ninth Circuit should be split. That is a question as to which I would defer to the judges of that court. The issue of size is really a matter of court administration, and if the judges find that the size of the court is not a problem, I would be inclined to give great weight to their views on the matter. If they find that the size of the court interferes with their ability to do their work, that would be a sufficient reason to seek another solution. If the court is divided, and if politics do not end up dictating how that is done, the question, of course, is what to do with California. It doesn't make much sense to me to divide California between two different circuits, and I'm not taken with the idea of a single-state circuit. That suggests a dividing line in which, say, California, Arizona, Nevada, and Hawaii would go one way and the northwestern states would go another, although I recognize that the four southern states would still constitute a very large circuit.

12. The Federal Circuit is the only federal appellate court that still posts its opinions to the Internet either in Microsoft Word format or as "EXE" files that require the user to download the file and then open it on his or her computer's hard disk before the decision in question can be viewed. Is there any hope in the near future that Federal Circuit might begin making its opinions available on its Web site either in HTML or PDF format?

I take this to be more of a suggestion than a question. I know nothing about our posting practices, or at least I knew nothing about them until you asked. I have passed along your observation about the other circuits to the people who post our opinions on the Internet and they will look into whether it is practical for us to post the opinions in another format for those who would find it more convenient. For what it is worth, I don�t think they have gotten any format-related complaints in the past, but that does not mean that we could not do better. The e-world is constantly evolving, so perhaps we can improve our website in this respect.

13. Is the salary paid to federal appellate judges too low, and if your answer is "yes," what should the salary be or, perhaps less controversially, how would one determine what the proper salary should be?

I may not be the best person to answer this question, since I am one of the few federal judges who got a raise upon taking the job. As for whether the pay for judges is too low, it is tricky business to say that one group of people "deserves" more money than another. It could well be said that teachers "deserve" more money than baseball players, but the invisible hand has taken care of that decision. When comparing judges' salaries with the money made by lawyers, federal judges seem undercompensated, since law clerks make nearly as much as their judges on the day they join a firm, and many law professors and others in the profession, sometimes not even particularly senior practitioners, make more than federal judges. Of course, one could argue that the judges are not underpaid, but instead that lawyers in general are overpaid. The key question for me is not the elusive issue of equity, but the very practical question whether as a result of the compensation issue some of the most qualified lawyers are deciding not to seek positions as federal judges. There is some indication that that is happening, and that would be a very unfortunate development. In various other countries, judges are regarded as relatively low-level bureaucrats, and from my impressions of the operation of the judicial system in those countries, that is not a path we want to take. A current legislative proposal is to increase the judges' salaries by about 16 percent, I believe. That seems to me to be a reasonable number--large enough to have a material effect, but not so large as to seem outlandish.

14. Some judges on the Federal Circuit are regarded as having more expertise in patent law matters than others, and a look at the biographies of all the judges suggests that some have more extensive patent law backgrounds than others. Does the Federal Circuit require that all precedential opinions be circulated internally before they are issued, thereby giving all judges on the court a chance to comment before the rulings are released to the parties and the public?

Yes, and the practice is very valuable, not just in patent matters, but in all of our cases. Comments are fairly common, both from judges and law clerks in other chambers, and the comments serve to improve the quality of the opinions, to avoid embarrassing mistakes or omissions, and to minimize the need for en bancs.

15. 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. 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?

Because this matter could arise in litigation, I will refrain from addressing the legal issues relating to the use of nonprecedential opinions. What I can do is to describe our practice and the reasons for it. Our court's rules allow panels to designate opinions as precedential or nonprecedential, or to enter a judgment of affirmance without opinion. Our rules further provide that nonprecedential opinions will not be cited to the court as precedent, although they can be cited for purposes such as claim preclusion, issue preclusion, judicial estoppel, or law of the case. Nonprecedential opinions are used in cases in which the panel determines that issuing a precedential opinion would not add significantly to the body of the law. After issuance of a nonprecedential opinion, any party may request that the opinion be reissued as a precedential opinion, and such requests are not infrequently granted. A judgment of affirmance without opinion will issue when the panel concludes that the decision below is correct and an opinion would have no precedential value.

The Appellate Rules Committee has proposed to require all circuits to allow citations to opinions designated as nonprecedential, although the Committee has stopped short (for now) of requiring courts to give those opinions precedential weight. Obviously, this amendment will require a change in our rules to permit citation of nonprecedential opinions if it is adopted, but it will not require us to alter our practice of issuing nonprecedential opinions in appropriate cases and declining to give those cases precedential weight. Whether the present proposal will prove to be merely a first step along the path to abolition of nonprecedential opinions, as some would like, remains to be seen.

When I was in practice, I hated nonprecedential opinions, and I can understand why lawyers dislike them. A losing lawyer hates to return to his client with a large bill and a short nonprecedential opinion, or worse yet, a one-line judgment order. In addition, such dispositions make it even harder to get en banc or certiorari granted than it already is. Even winning lawyers don't like nonprecedential opinions, as they seem to denigrate the significance of the lawyer's achievement and leave the lawyer with no trophy to point to in the Federal Reporter. Also, virtually every lawyer (including me when I was in practice) has a story about having found a perfect precedent in a case, or a perfect case to create a circuit conflict, only to discover that it was embodied in a nonprecedential opinion and therefore lay tantalizingly out of reach. There is also the dark suspicion among some lawyers that courts use judgment orders to bury cases that, for some reason, they don't want to have to address in the light of day. And then, in favor of making everything precedential, there is the argument that if a court is not willing to live by the rule of precedent, it is necessarily abandoning the principle that like cases should be treated similarly and thus surrendering to a regime of arbitrary decisionmaking.

Of course, designating certain cases as nonprecedential is not the same as embracing arbitrariness. If a court attempts to apply a principle in the same way in each case to which it applies, a rule of precedent is not necessary to ensure that the court will apply the principle faithfully. In fact, in some situations precedent can actually get in the way of consistent application of a principle by effectively modifying the principle over time. There is, after all, some truth to Swift's sardonic definition of precedent: "It is a Maxim among these Lawyers, that whatever hath been done before, may legally be done again." But setting aside lofty debates about the relationship between precedent and the rule of law, there are a variety of reasons that courts have found it valuable to be able to designate some opinions as nonprecedential. Let me provide a couple of examples from our court's work. We get a lot of federal employee cases from the Merit Systems Protection Board. Many of those appeals are handled pro se. The claims in many of those cases are without any arguable merit, and we frequently dispose of them in nonprecedential opinions. We could issue judgment orders in those cases, but we consider it useful to lay out for the pro se litigant why he or she has lost in this court. It seems unlikely that there would be any benefit to adding these largely repetitive and fact-based cases to our body of precedent. Similarly, in the patent law area we frequently encounter cases in which the only issue is the meaning of a particular term in a claim of a particular patent. Sometimes such claim construction cases can involve a principle of general application, but often they do not. In such cases, the particular term, as used in the particular patent, is sui generis. We frequently designate those cases as nonprecedential. Again, it is difficult to point to any concrete benefit that would flow from adding those cases to our body of precedent.

So what are the tangible benefits of using nonprecedential opinions? Mainly, they save time. How much time they save is open to debate, but they clearly save some. Nonprecedential opinions don't have to be vetted with the other members of the court, and because the opinions are directed solely to the parties, there is often less that needs to be said than would be the case with a precedential opinion. And time is a valuable commodity here, as elsewhere. When I joined the court I asked some practitioners what they thought were the biggest problems with the way the court did its work. Several of them said the main problems were (1) there were not enough precedential opinions, and (2) the opinions took too long to come out. Oddly, the lawyers who made those comments did not seem to recognize the tension between the two points. Sure, you could say to the judges: "Row harder!" But I work pretty hard at this job and I can barely keep up with the opinion-writing load. I figure I now write about 55 to 60 opinions a year, many of which (but not a majority) are nonprecedential. If I had to make all of my opinions precedential, the time required to do so would have to come from somewhere else. It would have to come from the time I now spend on brief-reading and preparation for oral argument, from the time I now spend in polishing, researching, writing, and preparing other precedential opinions, or from the time I spend on the activities discussed in response to question 20, below. The Appellate Rules Committee may ultimately require us to make all of our opinions precedential, but I doubt they will hand out a few hundred extra hours for us to use each year to do it.

Another consideration in favor of the use of nonprecedential opinions is that they provide some help in the effort to keep within manageable bounds the volume of precedent that we (and counsel) have to consult. The volumes of the Federal Reporter are already rolling out at breathtaking speed. It would only make legal research more difficult and more expensive if we added materially to the number of precedential opinions that had to be examined as part of any detailed research project.

One aspect of the debate over nonprecedential opinions that often seems to get overlooked is the role of judgment orders. As I noted earlier, we use judgment orders in a fair number of cases and thereby avoid writing opinions in those cases altogether. Even if judgment orders were made precedential, they would not be worth much as precedents in that they say nothing other than that the decision of the lower tribunal was upheld. One concern that I would have regarding the ultimate abolition of nonprecedential opinions is that courts might respond simply by increasing the number of judgment orders. I'm not sure the system as a whole would be well served by such a change, as those who now get explanations of why they lost would simply get a one word disposition: "affirmed."

16. What considerations guide you in deciding whether to request oral argument of an appeal, what advice can you provide to lawyers who argue cases before you, and does the Federal Circuit provide any alternatives (such as arguing via videoconference) to lawyers who wish to deliver oral argument but cannot, or do not wish to, travel to Washington, D.C.?

We have a relatively simple system for determining when to allow oral argument. In just about any case in which the parties are represented by lawyers, an oral argument is available unless the parties chooses to waive it. Occasionally in a represented case we will decide to cancel oral argument when it is clear that it will not be helpful, but we don't do that often. In cases in which one of the parties is proceeding pro se (normally these are federal employee cases from the Merit Systems Protection Board), argument is not held unless the court decides it would be helpful.

As for advice to lawyers who argue before us, I have discussed the subject of oral argument at perhaps tiresome length above. I would add here only that our general practice is to allot only 15 minutes per side for argument. That is a very short time, and we frequently begin our daily argument sessions by urging lawyers to skip the facts and the procedural background of the case and to go right to the key issues in the case, but lawyers nonetheless frequently insist on walking us through the facts. We are normally quite familiar with the cases by the time of argument, so such recitations only waste time and should be skipped. If I were arguing before this court, I think my opening line in every case (probably as either appellant or appellee) would start "The central issue in this case is . . . ." We also typically ask a lot of questions, so anyone arguing before us should expect to spend most of the argument time answering questions rather than on uninterrupted exposition.

We do not have videoconferencing facilities, but I am not aware that there has been any great demand for some such service.

17. In 1992, the U.S. Court of Appeals for the Third Circuit ruled in United States v. Knox that a defendant could be liable for receiving and possessing child pornography even though the children involved were wearing opaque clothing over their private parts. When Knox filed a petition for writ of certiorari in the U.S. Supreme Court, you filed a brief in opposition as Acting Solicitor General arguing that the conviction should be upheld. The Court granted certiorari, and, before the government�s brief on the merits came due, Drew S. Days, III was confirmed as Solicitor General. He filed a brief which asserted that the Third Circuit applied the wrong standard and that its ruling should be vacated. Your name did not appear on that brief on the merits. The Supreme Court followed the Solicitor General's suggestion, and on remand the Third Circuit again affirmed the defendant's conviction. When the defendant sought U.S. Supreme Court review of the Third Circuit's latest affirmance, the government's opposition brief bore the name of Attorney General Janet Reno, and no one from the Solicitor General's Office was listed on that brief. Is this factual recitation correct? Why did your name not appear on the government's merits brief after certiorari was granted? If you are unwilling or unable to answer that question, would you instead describe generally what your personal view was while working in the Solicitor General's Office concerning when it was appropriate for you to refuse to sign an appellate brief?

The facts you recite are correct, as far as I know. I left the Department before the November 1994 opposition brief was filed, so I am not privy to any information regarding that brief, which was signed by the Attorney General, the Assistant Attorney General for the Criminal Division and a lawyer from the Criminal Division. As for why I did not sign the merits brief that was filed in September 1993, I was asked that question at my confirmation hearing, so I will give you the same answer that I gave then. During the period that I served as acting Solicitor General, in the spring of 1993, I signed the original brief in opposition to certiorari in the Knox case, on the first appeal from the Third Circuit. When the merits brief was filed, I was no longer Acting Solicitor General, and the office took a different position on the legal issues in the case. Pursuant to an informal practice in the office, I did not sign the second brief. It is a little awkward for the same lawyer to be telling the Supreme Court two different things in the same case, so where the lawyer is not counsel of record, not signing one of the briefs avoids that awkwardness.

While I was in the Solicitor General's office, I was not uncomfortable signing briefs that I did not agree with. In fact, I signed a number of briefs advocating positions that, as a judge, I would not have adopted. Most of the time when I did not sign a brief it was simply because I did not feel that I had contributed enough to the final product to warrant taking credit for the work. Others took a different view. There was no pressure on lawyers in the office to sign briefs, so if someone chose not to sign a brief, for whatever reason, that was fine. It created an issue only if the counsel of record (the Solicitor General or the Acting Solicitor General) had a problem with signing the brief.

18. How do you define the term "judicial activism," is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule, and do you believe there is any way that the U.S. Senate can determine in the confirmation process whether a nominee is likely to engage in judicial activism if confirmed to the bench?

"Judicial activism" is the approach taken by those judges who disagree with me. Another definition, less facetious but probably not much more useful, is that judicial activism is the practice of taking judicial action based on a personal preference as to outcome without regard to other pertinent actors, whether they be the legislature, the pertinent administrative agency, other members of the court, prior decisions of the court, or prior decisions of the Supreme Court. For the most part, the role of a judge on an inferior court is that of rule enforcer, not rule maker. An unwillingness to enforce rules one does not like, or a penchant for engaging in rule making while purporting to engage in rule enforcing would also qualify as a definition of judicial activism, but again that distinction can be so subjective as to be nearly useless in practice.

The question you ask about whether it is ever proper for a judge to decide a case based on personal preference is easy if you leave out the parenthetical part of your question. Setting aside the inevitable Nazi Germany hypothetical, not too many judges would advocate basing their decisions on personal preference even though the law dictates a different result. The catch is that usually when a judge does something that others consider "activist" it is because the judge is following what he or she thinks the law requires, even though many others might disagree.

At the risk of gross oversimplification, I believe in hewing closely to precedent on constitutional matters, doing my best to ascertain what the legislature was trying to achieve in matters of statutory construction, and deferring to lower tribunals where appropriate under the governing standards of review, regardless of my personal preferences or my assessment of what constitutes enlightened policy. To focus on the last of these, I have often been in the position of upholding a finding or a decision that differs from the conclusion I would have reached if I had been sitting as the finder of fact or the official to whom we are instructed to defer. I take standards of review and requirements of deference seriously, and where the law instructs us to defer, I believe we are obligated to do so. But even in that setting, my response is really not an adequate answer to your question, because at some point the principles of deference are exhausted and a court must conclude that the lower tribunal has erred. If I reach that point in a particular case before someone else would, I could be termed an "activist" even though I insist that I am adhering strictly to the rules of the game.

As to your question about how to determine whether a judge is likely to be an "activist," George Orwell once said that "by the time a man is 40 he has the face he deserves." By analogy, I think that by the time a lawyer is 40, a reasonably careful inquiry into the lawyer's background should produce all the information that needs to be known about that lawyer's character, legal abilities, and personality traits sufficient to predict what kind of judge that lawyer would be likely to be, not only with respect to judicial activism, but also with respect to many other pertinent traits bearing on fitness for judicial service. On the other hand, the current practice of asking a nominee whether he or she is going to be a judicial activist seems to me to be a piece of kabuki theater that is not likely to produce much insight unless someone inadvertently strays from the script.

19. If you were placed in charge of selecting nominees for U.S. Court of Appeals vacancies, what qualifications and attributes would you view as important, and why?

I would start with the proposition that we should put the best lawyers available on appellate courts and work from there. A degree of humility and an even temperament are desirable qualities. "Robitis" is an occupational hazard for judges, and a person who is arrogant and irascible to start with is at heightened risk of succumbing. Although most of an appellate judge's work is solitary, the appellate function is still collegial in essential respects, so an ability to work with colleagues is important. In addition, a fair dose of plain old horse sense is always useful. It is easy to get a little ethereal when parsing the precedents and counting the prongs of the multi-pronged tests, which can lead to a loss of perspective regarding the real world effect of what we are doing. Finally, I would like to see the time come when political considerations would not play a large role in judicial selection. But I would also like to see the Red Sox and the Cubs play each other in the World Series, yet I recognize that neither event is likely to occur in my lifetime or that of my grandchildren.

20. What do you like to do for enjoyment and/or relaxation in your spare time (and please be sure to mention astronomy)?

You have found me out! I am an avid (my wife would say fanatical) amateur astronomer. I have several fairly large telescopes and go out to dark sky locations to observe the heavens as often as I can. I have also gotten into telescope building in a modest way, and am now in the process of grinding my third telescope mirror. Although I have done quite a lot of observing, especially over the past 15 years or so, I continue to find it a fascinating and most relaxing hobby. There is something magical to me about looking through the telescope at a galaxy cluster hundreds of millions of light years away containing trillions of stars in a single eyepiece field. When you are taking in photons that have been traveling for half a billion years on their way to your retina, it puts into some perspective questions such as whether particular regulatory action was consistent with the agency's authorizing statute and whether the statute of limitations was equitably tolled.

"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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