by Howard Bashman
20 Questions for Circuit Judge Stanley F. Birch, Jr. of the U.S. Court of Appeals for the Eleventh Circuit:
"How Appealing" is delighted that Circuit Judge Stanley F. Birch, Jr.
of the U.S. Court of Appeals for the Eleventh Circuit
has agreed to participate in this Web log�s recurring monthly feature, "20 Questions for the Appellate Judge."
Judge Birch joined the Eleventh Circuit in May 1990 at the age of 44. He attended undergraduate school at the University of Virginia and law school at the Emory University School of Law, from which he received both his J.D. and LL.M. in Taxation degrees. Following law school, he served as a first lieutenant in the U.S. Army for two years with the Special Forces and is a Vietnam Veteran. Thereafter, he began a two�year judicial clerkship for Chief U.S. District Judge Sidney O. Smith, Jr.
of the Northern District of Georgia. Following that clerkship, Birch entered the private practice of law, working first in Gainesville, Georgia and then, beginning in 1985, in Atlanta.
Judge Birch has his chambers in Atlanta, which is where the Eleventh Circuit has its headquarters.
Questions appear below in italics, and Judge Birch's responses follow in plain text.
1. I see that you and a colleague of yours on the Eleventh Circuit, Chief Judge J.L. Edmondson, both clerked for the same U.S. District Judge in the early 1970s, and your clerkships appear to have overlapped for one year. Now your former co�clerk is Chief Judge of the Eleventh Circuit, and you are in line to become the next Chief Judge when his tenure in that post ends in 2009. If someone had told District Judge Smith back in 1973 that his two law clerks would go on to serve together as Judges on the federal court of appeals, do you think he would have believed it? And what, if anything, did both you and Chief Judge Edmondson take away from your clerkship experiences that enabled you to end up where you both are today?
With little doubt, absent the inspiration of Chief Judge Sidney O. Smith, Jr., Chief Judge J.L. Edmondson ("Larry") and I, probably would be country lawyers in the hinterland of North Georgia -- or practicing law in Samoa, where we seriously considered applying for clerkships on the High Court after leaving Judge Smith! In annual bar polls conducted in Atlanta, Judge Smith was consistently ranked first -- and that was no accident. We both learned much from his quiet, concerned and competent approach to judging.
Judge Smith displayed to himself a plaque on his desk and on his bench bearing the acronym "KYDMS." After awhile I inquired as to its meaning. "Keep your damn mouth shut" was his answer and his approach -- one that many judges should embrace. A Georgia small-town native, Judge Smith had been educated at Middlesex School and Harvard College (where he played football), served in the military, and graduated first in his class at the University of Georgia Law School. He returned to his hometown as a lawyer, eventually becoming an elected Superior Court (trial) judge, and was then appointed by President Lyndon Johnson as an Article III Judge.
Judge Smith could "cut through the crap" as we often heard from lawyers -- he got to the heart of the matter before him. His hallmark was the application of common sense in every case. He treated everyone, from the janitor to his fellow judges with dignity and respect. He counseled me as I departed for service in the Army and to Vietnam (after law school, but not as a JAG) that the experience with "my men" would teach me a great deal about human nature and myself. The experience, he noted, would stand me in good stead later as a trial lawyer. He was so wise. As he predicted, I formed relationships and bonds with men I would never otherwise have encountered in my life -- and I am a better person (and probably judge) for it.
When Judge Smith left the bench at the conclusion of my clerkship to become a senior partner in Alston, Miller & Gaines (now Alston & Bird) I shared the sadness and sense of loss that the bar experienced. Judge Smith had been frustrated by Congress in not providing the Northern District with enough trial judges for its exploding complex caseload and in failing to pay judges a liveable wage -- his son was on the way to Harvard and he also had two daughters to educate.
You ask whether he would have believed that we would one day become judges. I think that he was not really surprised. One of his other law clerks became a Georgia Superior Court Judge and another the director of Georgia Indigent Legal Services. Others all went on to be successful in law practices and have made contributions in public service as well. His confidence in us, the great trust and responsibility he placed in us, and his kindness nurtured an attitude of self-confidence -- but a humble self-confidence born of spending two years with a truly remarkable man and role model.
On a recent visit to Judge Smith for lunch in Gainesville, his now-deceased wife and magnificent lady, Patsy, called out as Larry and I walked up to the porch: "Sid, the boys are here." We are here
in many ways because of Judge Smith. I only hope that I can also inspire, to some small degree, my clerks to aspire to the bench and public service as well.
2. What are your most favorite and least favorite aspects of being a federal appellate judge?
The interaction with my law clerks, the time spent dissecting good legal arguments and drafting an opinion, and the collegial time spent with my fellow judges are the favorite aspects of this "job." The least favorite aspects include dealing with issues and gaps in legislation that an increasingly partisan Congress causes to be considered by the courts. Another negative aspect of the job is the constant prioritizing and re-prioritizing of our work in order to afford the time and focus needed to properly address the ever-growing number and complexity of cases we confront. When I began this job our twelve active judges faced case filings totaling about 4,475. Now, the same twelve active judges (and several fine senior judges) must resolve over 7,000 cases. We are all very tired. Many of us are also frustrated with the manner in which we are treated by Congress -- both as to our cost-of-living increases (few) and the budget of the Third Branch of government. More than a few in Congress appear to view us as another administrative agency. Our entire budget is less than that of the Justice Department. But then, nobody promised us a rose garden.
3. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.
I come to work each day in the courthouse named for my most admired judge (other than Judge Smith), Elbert Parr Tuttle. Upon arrival on my first day of work as a new judge with no judicial experience, before the coffee got warm Judge Elbert Tuttle walked in to the office to say "hello" and to welcome me. We had met at the festivities surrounding my investiture, but really had no occasion to "visit." He let me know that he was just below on the next floor and that he would be pleased if I would call on him for any advice that I thought he might have for me. Judge Tuttle and his life-partner, Sara, were some of the most warm, wonderful, elegant, and accomplished people I will likely ever know. He came to his chambers everyday and worked -- well into his 90's. Together with Sara, Judge Tuttle, the quintessential southern gentlemen, set the tone of collegiality and conviviality that still pervades our court and makes it a wonderful place to work. I had the privilege, together with Judge John Fullam (sitting as a senior judge by designation) of sitting with Judge Tuttle on his last oral argument panel. His body had slowed down, but his mind and quiet wit were razor sharp. I encourage those who do not know this Medal of Freedom and Devitt Award recipient, Army General (fighting in hand-to-hand combat against the Japanese as a 40+ colonel), confidant of President Eisenhower, pro bono advocate in Johnson v. Zerbst
, and one of the "Unlikely Heroes" in Professor Jack Bass's recounting of the civil rights era, to become acquainted with this great American. See
his tribute in Volume 82 of the Cornell Law Review (1996); and, the many articles and forthcoming biography by Professor Anne S. Emanuel (one of his former law clerks).
4. How did you come to President George H.W. Bush's attention as a potential nominee to serve on the U.S. Court of Appeals for the Eleventh Circuit?
After clerking for Judge Smith I concentrated on a path to best position myself for selection to the federal bench. Aside from furthering my legal education (a masters of law in taxation) and involving myself in a practice focused primarily in the federal courts, I realized that active involvement in the political process was essential.
For me this was not difficult since I have always believed that for a democracy like ours to work, dedicated citizens must become involved in a positive way in solving our nation's problems and maintaining it on the correct course. I had, when politically active, the greatest respect for folks with different or even opposing political views. We all wanted what was best for our nation -- we just advocated a different approach to the solutions needed to accomplish that goal. The greatest threat to our form of government is apathy.
I became active in the Republican Party because, at a national level, I was more in tune with its philosophy for good government. I say at "the national level" because when I became active in Georgia there were few in Georgia who would admit to being a Republican. However, the Republican approach to governing was truly what most Georgia Democrats embraced and practiced while clinging to the name "Democrat." History has validated my early observation. I directed Senate candidate Mack Mattingly's campaign in North Georgia when, to the surprise of many, he defeated Herman Talmadge, an entrenched southern senator. During the following years, I remained active in building the Republican Party in Georgia. This State has become a two-party state which is a good thing for Georgia. Becoming active politically lets the President have a good idea of your political philosophy. If you combine that with becoming known as a solid lawyer otherwise involved in your community and in bar work, you have laid the ground-work you need to be considered for judicial appointment. I did that.
After being on the "short-list" for three district court vacancies, the powers-that-be in Washington knew of me when the vacancy for the Eleventh Circuit occurred. After written submissions, I was invited to Washington to spend a day at the Justice Department being interviewed by about ten people, including a long session with then-Solicitor General Ken Starr. I can honestly report that no one asked me how I would vote on any ideological issue. The closest that anyone came was a question from a high-ranking Justice Department official inquiring as to how I viewed the separation of church and state. My reply was that while I had little opportunity to think about such a lofty issue in my mundane practice, I thought the founding fathers wise to insist upon a clear division, but that I worried that the state might be coming hostile to all things religious -- which I believed to be a mistake.
After vetting my work and my background, hearing what I had to offer, and meeting with me for that day, I heard from the White House a month later that I would be President Bush's nominee. I was at once humbled and elated. I will never forget the personal telephone call I received from the President inviting me to serve.
5. Your official Federal Judicial Center biography indicates that President Bush nominated you to fill a vacancy on the Eleventh Circuit on March 22, 1990 and the U.S. Senate confirmed you to serve as a U.S. Circuit Judge fewer than two months later, on May 11, 1990. Today, not too many of the least controversial federal appellate court nominees make it through the process that quickly, and for those who have, or are perceived to have, views that the opposing political party finds objectionable, the wait for confirmation can be interminable. Now there's no doubt plenty of blame to be shared between both political parties for the current state of things, but when you look at the situation facing Eleventh Circuit nominee William H. Pryor, Jr. or other stalled nominees, what is your reaction, and how if at all could the process for selecting and confirming nominees be improved?
I wish I had the answer because the courts need to fill vacancies quickly and with solid folks. In most human endeavors where conflict exists one constant for improving the situation is usually enhanced communication -- both in quantity and quality. I am not sure that the three branches of government communicate well with one another. In fact, there seems to be precious little informal communication between the Third Branch and the two other branches. I don't suggest that it is anyone's fault, we are all busy doing our respective jobs, but more understanding of each others' problems, concerns, and ideas garnered in a less formal setting than testifying before a Congressional committee could not hurt. Judges leave this type of communication too often to the Administrative Office of the Courts who deal with Congressional staffers. While that is necessary and helpful, a more personal and structured dialogue between judges, Members of Congress and the Executive Branch may be one of the answers to many of the problems characterized as "partisan gridlock." Perhaps I am just naive and unsophisticated in the ways of Washington, but to me it is as plain as the nose on my face that government seems to be pulling apart instead of pulling together. Perhaps that is not so and the media focuses us only the negative, but I suspect my colleagues inside the Beltway may concur in my opinion.
6. You and I are both graduates of the Emory University School of Law, as are several of your colleagues on the Eleventh Circuit. I remember feeling proud back in 1990 when I learned, while in the midst of my own judicial clerkship, that President Bush had chosen one Emory Law graduate to fill the Eleventh Circuit vacancy created when another Emory Law graduate, Circuit Judge James C. Hill, took senior status. Around the time of my law school graduation, Emory was placing its law students in judicial clerkships not only on federal appellate courts in the South, but also on the D.C., Second, and Third Circuits. Someone who graduated two years before me went on to clerk at the U.S. Supreme Court from a Second Circuit clerkship. This is an admittedly long-winded way of offering you the opportunity, if you'd like, to say something nice about the Emory School of Law that perhaps might cause federal and state appellate court judges from throughout the Nation to look even more favorably on clerkship applicants from our law school.
Some of my finest law clerks have come to me from the Emory Law School -- they have performed on a par with clerks from the high profile institutions such as Harvard, Yale, Columbia, Chicago, Virginia, Duke and Georgetown. I have remained active in the life of the law school, serving recently as president of the alumni association and on the alumni council. The school has marvelous, modern, handsome, and fully-automated facilities; a scholarly, dedicated and teaching-oriented faculty and a diverse and interesting student body. Its placement in the finest city on earth doesn't hurt either. Many of my judicial colleagues have assured me that prospecting for diamond quality clerks at Emory is easier and more often rewarding than mining the often depleted resources of other better known fields. If I say too much I will be working against my own self interest -- enough said.
7. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as "pragmatic." How would you describe your judicial philosophy, and what types of cases have you found the most difficult to decide?
Thanks for mentioning Judge Posner in my question -- he is a fine author and jurist! I would describe my "judicial philosophy" as one centered on common sense and stare decisis (and when the two diverge, stare decisis with criticism). In many ways I suppose I am more of an idealist then an ideologue. Some of my colleagues and law clerks, I suspect, think that I am naive and not nearly as cynical as some situations warrant. However, in this job I think we have a duty to maintain the purity of the law and where possible differentiate between the correct and the wrong by drawing the lines of legal demarcation as clearly as possible. We are sometimes unfairly criticized as being removed from reality and encased in an ivory tower. I have always viewed the courthouse as a temple of justice where our job is to keep the flame of the rule of law burning brightly. Temples are places where high ideals and lofty ideas are worshiped. It is the harmonizing of such ideals and ideas, embodied in our Constitution and the rule of law, with the trials of daily life that I view as our challenge. As long as that harmonizing process is undertaken with the catalyst of common sense, then I feel we have succeeded in discharging our trust.
I have found those cases where a balancing process must always be employed between sometimes conflicting fundamental rights to be the most difficult. The collision of First Amendment free speech rights and any number of other personal liberties always produce for me the greatest anxiety.
8. You are considered one of the foremost experts on copyright and intellectual property law serving on the federal appellate bench. What has caused those areas of the law to be of such great interest to you, which of your own opinions do you view as your most important contributions to that area of the law, what type of copyright and intellectual property issues do you expect to be grappling with five to ten years from now, and do you think that the U.S. Supreme Court reached the right result for the right reasons in
I appreciate your compliment -- but there are other judges who have contributed greatly to the development of intellectual property law; I am privileged to have made a contribution as well.
To quote my good friend, Professor L. Ray Patterson: "There is no legal concept so important to so many that is understood by so few as copyright." To that I say AMEN! Copyright affects core activities of a democratic republic -- learning and communication. Copyright places limits on what, where and when citizens may read, see and hear. But those limits are carefully circumscribed. Copyright was born out of censorship in England and the response to that censorship, the statute of Anne, was incorporated into our Constitution (Article I, Section 8, Clause 8). That clause together with the complementary free speech clause of the First Amendment stand as a bulwark in protecting the free flow of ideas in a free society. In our society of free men (and women) and free markets, the necessity for informed citizens and consumers is essential. Uninhibited access to information and the ability to process it, critically, is central to our way of life -- politically and economically. But therein lies the problem, the marketing monopoly that inheres in copyright represents a conflict between two fundamental tenets of American society: free speech (and the concomitant right to hear it) and free enterprise. With the advent of the transmission copyright and the technological age of communication and learning, we are called upon to reconcile, balance and harmonize these forces in a manner true to our history and enriching to our future. From a legal standpoint I cannot think of a more challenging and exciting place to be -- that is why copyright holds such interest for me. To some degree, the same may be said of trademark, trade secret, and unfair competition law as well. As I tell my clerks -- in the law this is "where the action is"! That is why I find the law of copyright so fascinating and why I attempt to stay "current" in that body of law.
As to my opinions that I view as important contributions to that area of law, I would hope they are all important contributions -- I certainly worked hard on them with that in mind. Whether "history" treats them that way will be for others to decide. In a recent opinion I had the opportunity of examining the important, and often overlooked, relationship between copyright and the First Amendment. Because I am a "son of the South" I enjoyed the opportunity to write about copyright in the context of Margaret Mitchell's "Gone With the Wind" in Sun Trust Bank v. Houghton Mifflin Co.
, 268 F.3d 1257 (11th Cir. 2001) (an opinion that Judge Stanley Marcus refined even further in his artful concurring opinion). I also enjoyed crafting opinions in several other cases: Greenberg v. National Geographic Society
, 244 F.3d 1267 (11th Cir. 2001); Bateman v. Mnemonics, Inc.
, 79 F.3d 1532 (11th Cir. 1996); Warren Publishing Inc. v. Microdos Data Corp.
, 115 F.3d 1509 (11th Cir. 1997) (en banc
); BellSouth Adv. & Pub. Corp. v. Donnelley Info. Pub.
, 999 F.2d 1436 (11th Cir. 1993) (en banc
); and a case where my opinion (of which I remain proud) was vacated by our going en banc
and then dismissing the appeal on other grounds, Cable News Network v. Video Monitoring Services
, 940 F.2d 1471 (11th Cir. 1991), vacated and reh�g en banc granted
, 949 F.2d 378 (11th Cir. 1991), appeal dismissed
, 959 F.2d 188 (11th Cir. 1992) (en banc
). Those are just a few of the opinions that I have enjoyed writing in the intellectual property arena.
In five years we will undoubtedly be grappling with more technologically induced collisions and disputes in the copyright and First Amendment areas of the law, again confronting issues of harmonization and adaptive application.
With regard to Eldred v. Ashcroft
, had I been on the Court, I would have been a respectful dissenter (if I could not have persuaded my colleagues to follow the correct path as Justice Breyer gallantly attempted to do). I will briefly explain my concerns with the Eldred
decision (although much more could and will be said).
In Eldred v. Ashcroft
, the Supreme Court upheld the constitutionality the Copyright Term Extension Act, which extended the term of all extant copyrights for a twenty-year period. Euphemistically it was called the "Mickey Mouse Protection Act." With all respect, Eldred
was wrongly decided. A larger concern is that the majority justices, a fortiori, may not know why they decided it wrongly. The most logical reason is that they misunderstood the source of Congress' Copyright Power, the Copyright Clause of the U.S. Constitution.
The Copyright Clause contains three policies significant for a free society: (1) the promotion of learning (because the clause so states); (2) the protection of the public domain (because copyright is available only for original works only for a limited time; thus copyright cannot be used to capture works in the public domain and all copyrighted works go into the public domain); and (3) the right of public access (because in 1787, copyright was available only for published books, which, of course, ensured public access.)
, in holding that Congress did not exceed its copyright power by extending extant copyrights (without exception) for 20 years, approved Congress' rejection of the three constitutional policies. The CTEA obviously inhibits learning, freezes the public domain, and burdens the right of access by continuing the copyright holder's (not necessarily the author, usually a publisher) control of access, which returns us to the first point -- that the CTEA inhibits learning.
The question is why the Court made such a fundamental error, and the answer seems to be the majority ignored a fundamental -- the difference between a condition and a requirement. The former cannot be waived, the latter can. The Court treated the constitutional policies of copyright as requirements rather than conditions. The advantage, of course, was that it enabled the Court to ignore the promotion of learning, the protection of the public domain, and the right of public access. If one takes the position that constitutional requirements are by definition conditions, the magnitude of the error is manifest. At the least, one can ask what public interest was served by the arbitrary extension of the copyright term. Much can be debated about "conditions" and "requirements" and which the copyright policies are. There is, however, one question that needs to be answered by those on the "requirement" side. Is a Constitution for all the people or only the privileged few?
The result with Eldred
is that it provides a windfall profit for a few monopolists (usually publishers, not creators) that results in a seismic fault in the structure for learning that is the framework for a free society. One can only hope that the Court will realize the error of its ways and correct a fundamental faux pas
. Again, my criticism is made with great respect for the Court.
9. You wrote a letter dated November 5, 1998 to the Commission on Structural Alternatives for the Federal Courts of Appeals opposing a proposal to send all copyright-related appeals to the U.S. Court of Appeals for the Federal Circuit. That proposal, of course, was not implemented. The last page of your letter mentions that as a lawyer in private practice, you represented the owner of the "Cabbage Patch Kids" copyrights and trademarks. Tell us a little bit about what that was like and about the other types of work you handled as a lawyer before you joined the Eleventh Circuit.
I began practicing law with a small firm in Gainesville, Georgia where I lived and worked while clerking for Judge Smith (see response to 1 above). All firms were small in that rural city (population 20,000). Our firm represented Hall County and specialized in litigation, principally for insurance companies. Consequently, I was able to try a lot of jury trials early on -- much sooner than my contemporaries in the large cities. While I litigated by day, I continued my education several evenings each week that I had begun while clerking: first, in the MBA program at Georgia State University; and, later in the Master of Laws in Taxation program at Emory University (both 60 miles away in Atlanta). I finally received my LL.M. degree from Emory in 1976.
I was developing my firm's business practice when a young man named Xavier Roberts walked into my office carrying several soft sculpture dolls that he referred to as "babies" and were initially commercially known as "Little People." I registered his copyright claims in the soft sculptures, his birth certificates and adoption papers, incorporated his company, and generally helped him to organize his business. It was truly a Horatio Alger story. That small company, Original Appalachian Artworks, Inc., initially made the sculptures by hand and sold to only high-end gift shops around the country. Its sales climbed from just over $500,000 in 1978, to gross sales of over $1.5 billion by its over 120 world-wide licensees (the sculptures and assorted paraphernalia) in the early 1980's -- generating a handsome royalty flow. Watching that growth and participating in that success was invigorating and inspiring. It also allowed me to develop an expertise in copyright and trademark law. A lifelong love of copyright law followed and eventually took me back to Atlanta to join a firm formed by classmates that focused on the computer industry. We were pioneers in the early 80's in the South in computer industry representation. I actually tried the first computer source code infringement case in Atlanta. My background allowed me to do both litigation and transactional work in that practice. It was from that firm that I left to take the bench.
10. 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?
I have no informed opinion on that subject. The senior judges from the Ninth Circuit who sit with us on oral argument panels from time to time do not think a split would work. I would defer to their judgment. However, I just cannot imagine operating with 27 colleagues.
11. 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, how if at all did the brand new "Law Clerk Hiring Plan" change for better or worse your experience in hiring law clerks who will be reporting to work in the fall of 2004?
The qualities I look for in a law clerk are as follows (and not necessarily in order of importance): intellectual integrity; demonstrated ability; collegiality; maturity; conscientiousness; dedication to the rule of law; and, generally emanating "good vibes" during the personal interview. My law clerks also have to be self-starters and self-sustainers because I am not a hard-task-master type of manager.
The new "hiring plan" works just fine (better if begun in July). I always thought it was ludicrous to initiate the hiring process so early. I also disdain any of the "competition" between judges for clerk candidates -- my experience is that there are plenty of fine folks to go around. I can only wonder if those judges who feel compelled to capture the perceived "top" graduates of the "best" schools have a self-confidence problem.
12. 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?
Our circuit "allows" citation to unpublished opinions as persuasive authority and only designates our published opinions as precedential. Given the volume of work that we accomplish it would be unrealistic to expect us to scrutinize each opinion with the thorough rigor that we utilize when we understand that we are addressing an issue of first impression or extending or modifying such a ruling. By limiting the precedential value to certain published opinions we can better keep the law clear and certain. All of our "unpublished" opinions are in reality open to public view and scrutiny -- they are freely available to the public.
Currently we hear oral argument in only about 25% of our cases. It is generally out of these cases that our carefully crafted and vetted published, precedential opinions flow. During the year ending 30 June 2003 each active judge (we also have 5 "active" senior judges) wrote an average of 165 opinions. The number of opinions written by each individual judge ranged from a low of 149 opinions to a high of 184 opinions. During that same period, each active judge wrote an average of 24 published opinions (from a low of 15 to a high of 38). During that same period our circuit had 757 merits terminations per active judge (2d among the circuits) and 370 procedural terminations per active judge (1st among the circuits). Our circuit has the largest caseload per active judge of any circuit (654; the next is the Fifth at 579). Our total number of filings have risen from 4,476 appeals when I came on the court in June of 1990 to 7,198 as of June 2003. During the last five years we have decreased our median time of disposition (notice of appeal to issuance of opinion) by 5.7 months. We now rank third among the circuits with a time of 8.4 months (all circuit average is 10.6). In a number of significant categories our court leads all circuits: total appeals filed per panel (1,800); criminal appeals per panel (420); civil appeals per panel (excluding prisoner) (670); total appeals terminated by panel (1,826); merits terminations per panel (802); and, merits terminations per active judge
(292). We all work pretty hard around here.
In the final analysis, if each opinion had to be considered precedential, there is no way that we could resolve that many disputes in a reasonable time-frame. Moreover, additional judges would hinder our efficient operation rather than help it. Given our caseload the Administrative Office of the Courts has suggested that we could request an additional 12-14 judges based on its workload statistics. As a court we have almost unanimously rejected adding even a single more judge. A collegial court operates most efficiently and effectively by remaining as small as possible. See
Judge Gerald Bard Tjoflat (a former Chief Judge and a current active judge), "More Judges, Less Justice," July 1993 issue of The ABA Journal.
13. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is also in the process of approving a new rule that would end the Eleventh Circuit�s practice of counting recused judges, in essence, as having voted against granting a petition for rehearing en banc. Do you support this proposed change, and do you believe the Eleventh Circuit currently grants rehearing en banc too frequently, too infrequently, or about as often as it would occur if whether to grant rehearing en banc were solely up to you?
The proposed change makes sense and I would wholeheartedly support such a change. I am satisfied that we do not grant rehearing en banc
too frequently and that our current practice of en banc
rehearing, on the average about 6-10 cases per year, is working quite well. We are a very collegial court and many differences or concerns are addressed outside of the formal en banc
process. Over the last 5 years we have heard a total of 29 en banc
arguments (some involving consolidated cases) -- on average 6 per year. We typically have en banc
sessions in February, June and October. Moreover, the only cases that I ever recall hearing initially en banc
(i.e., before a panel opinion issues) were the 2001 presidential election cases. Many potential en banc
cases are worked out by modifications of opinions by the panel after a member of the court voices a concern. As I noted above, and emphasize again, we are a very collegial court and work well together -- we disagree very agreeably.
14. In one of your law review articles, you wrote that "the actual composer of the law firm's work may be the 'associate' toiling away in the catacombs for little more pay than that of a federal circuit judge * * *." That passage provides a nice introduction for the following question: Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?
Alexander Hamilton, in Federalist No. 78
, wrote that "there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprize us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity."
Not only for judges, but also for top-level Federal employees including Members of Congress and their staffs, the failure of government salaries to maintain parity with changed economic conditions has affected our government's ability to attract and retain qualified, experienced people in today's highly competitive marketplace. Given the gravity and significance to our nation of the decisions made by these people in government, we are facing or will soon confront a crisis in attracting our best and brightest into government service -- particularly at points in their lives when their earning potential and family responsibilities are greatest.
Earlier this year, the National Commission on Public Service ( the "Volcker Commission"), after an exhaustive study, succinctly summarized the gravity of the problem when it observed:
The lag in judicial salaries has gone on too long, and the potential for diminished quality in American jurisprudence is now too large. Too many of America's best lawyers have declined judicial appointments. Too many senior judges have sought private sector employment -- and compensation -- rather than making the important contributions we have long received from judges in senior status. Unless this is revised soon, the American people will pay a high price for the low salaries we impose on the men and women in whom we invest responsibility for the dispensation of justice . . . .
The core problem with the current procedure for setting judges' pay is the statutory linkage of judicial salaries (as well as those of high-ranking Executive Branch officials) to the salaries of Members of Congress. This linkage causes Federal judges to suffer the consequences of Congress' reluctance to award itself a pay increase or even to accept cost-of-living adjustments that have been provided for by statute. Such reluctance stems largely from lawmakers' concern over adverse public reaction to pay increases for themselves. This dynamic has suppressed the pay of judges and other Federal executives and subjected it to the ravages of inflation. The media only exacerbates the problem by inevitably, and unfairly, labeling Congress' cost-of-living adjustments a "pay raise." While that makes for "good copy" it undermines the already eroding pool of talented and committed public servants. When I write to my Congresspersons I request that they just treat me like my postman -- just give me the same COLA as enjoyed by other federal workers each year. But that has not happened very often in the last 10 years. Judicial salaries have not kept pace with inflation over the past decade. As a consequence of receiving just five cost-of-living adjustments since 1993, judges have suffered a 9.8 percent decline in the purchasing power of their salaries from 1993 through 2002. Salary erosion over the last 10 years has offset the benefit derived from the "catch-up" raise that went into effect in 1991. Even that raise was not sufficient to restore judicial salaries to their 1969 benchmark level and only temporarily arrested the downward trend. Between 1969 and 2002, when adjusted for inflation, Supreme Court justices experienced a 37.3 percent loss in purchasing power, while circuit court and district court judicial salaries lost 23.5 percent.
There are two bills currently pending in Congress, S.1023 and H.R. 2118, that would raise judicial pay by 16.5 percent. While helpful, particularly to the low morale among the judiciary as to this issue, it too would only be a good beginning. Certainly no judge expects to be paid wages comparable to successful practitioners. However, in a free enterprise culture, pay is a measure that cannot be ignored. The Volcker Commission used the salaries of leaders of academia or nonprofit institutions as reference points because the level of education and expertise required of leaders of these institutions is similar to that required of federal judges, and these leaders, like judges, derive non-monetary rewards from the work they perform. The differential between Federal judicial salaries and salaries of leaders in the academic world is large. In 2002, The Chronicle of High Education
reported that the median compensation of presidents of private doctoral institutions had increased 18 percent from 1996 to 2001 to reach $356,092. Many presidents and chancellors of the best public universities are receiving comparable compensation packages. Nationwide, the average salary of law school deans for 2002-03 was approximately $200,000 while deans of law schools at public and private doctoral institutions earned more $209,000. The Volcker Commission reported that the average salary for deans of the 25 top-ranked law schools was $301,639. Regardless of the selectivity of the group of law schools surveyed, law school deans make substantially more than district court judges. Furthermore, their compensation has not remained stagnant: 2002-03 salaries were approximately $9,000 higher than 2001-02 salaries. Even though market conditions alone should not be the measure of the adequacy of judicial salaries, they do demonstrate the growing disparity in salaries, the extent of the financial sacrifice Federal judges make to serve the public, and the lure of alternative private employment for those who have significant financial responsibilities. These sizeable disparities cannot continue without causing harm to our nation's Third Branch.
In fact, between 1990 and 2003, 77 Article III judges resigned or retired from the Federal bench, with many returning to private practice. When an experienced Federal judge retires or resigns, the caseloads of the remaining judges on that court, by necessity, increase until the resulting vacancy is filled (a process that can take months, and sometimes years). In addition, the judiciary loses the valuable skills and insights of the departing jurist -- assets that are not quickly or easily replaced. Rarely do new appointees join the bench with the range of judicial capabilities and experience that years of service confer. Moreover, the loss of the services of judges who elect complete retirement from judicial office rather than senior status is especially costly to the government. Not only does the judiciary lose experienced jurists, but, in addition -- because judges who take senior status and continue to work part time receive essentially the same salary as judges who elect complete retirement -- the judiciary loses the labor that would have been provided at no extra expense had the judges leaving the bench instead taken senior status.
The reason for their departures and the many more that are sure to follow is plain. The average age at time of judicial appointment is 52 years for circuit court judges and 50 years for district court judges. By that age, most individuals who have been tapped for the bench have spent 20 to 25 years building their careers. Most, if not all, are stars in their profession and at the pinnacle of their earning power. And, like many other individuals entering their sixth decade, they face mounting expenses because of big-ticket items, such as college tuition for their children or long-term health care of their parents or in-laws (often both). Yet, this is the time we ask them to forego their private-sector salaries and accept a salary that is a fraction of the size and not even protected from the deleterious effects of inflation. It is no wonder that salary considerations weigh heavily in the decision to join the Federal bench -- or, as recently witnessed, leave it.
Had I not been blessed with great clients and a lucrative law practice (and a spouse willing to continue working), I could not have afforded to be a federal judge. Moreover, my capable and committed colleagues who have always been in public service as U.S. attorneys and state court judges, deserve better than they are receiving from a nation to which they have devoted their lives. They should not have to mortgage their homes to send their children to college -- it is just not right! Moreover, no survivor's pension is at all provided to federal judges -- we have to purchase an annuity that maxes out at 50% and then only after many years of service.
Finally, while I understand that these are tough economic times, because it costs taxpayers less than 1% of the U.S. budget to run the entire federal court system (the Third Branch of government -- putatively a co-equal branch), a pay raise for judges, even during today's economic climate, would virtually have no impact on the nation's ability to fund key programs. I sincerely and respectfully urge those reading this to contact your Senators and Members of Congress and urge them to support S.1023 and H.R. 2118.
15. From mid�November 2000 through early December 2000, the en banc Eleventh Circuit was in the midst of the court battles over the Bush vs. Gore recount in Florida. What memories do you have of your involvement as a judge in that matter, and what was it like to have to decide such difficult questions of such great importance in such a short timeframe?
Given the short time-frame involved and importance of the many issues presented, it was a daunting challenge. We allowed counsel to "lodge" copies of pleadings with our court electronically when they were filed in the district courts so that we could be up-to-speed on the issues by the time they reached us. We literally worked day and night for several weeks. Our group of published opinions, I thought, were well-developed and hopefully were of some benefit to the Supreme Court in resolving those issues by way of its review of the Florida Supreme Court case. It was only after those opinions were published and the Supreme Court ruled that we really appreciated our involvement in that historical undertaking.
16. Your "'Helpful Hints' on Appellate Practice" is aptly titled, yet perhaps those hints will prove most useful to lawyers who don't handle appeals all that frequently in the Eleventh Circuit. What suggestions would you offer to more experienced appellate advocates when it comes to brief-writing, so that their appellate briefs might qualify as among the best you receive instead of just being very good?
That is a tough question. The truly outstanding briefs are those that succinctly and with straight-forward clarity relate the existing law to their case. Too much time is spent, even in good briefs, reviewing legal principles with which most judges are familiar. I have proposed that each circuit publish a web-site on which the "boilerplate" for each area of law in that circuit is contained and referenced by an identifying number -- much like standard jury charges. A committee of judges and/or staff attorneys could maintain the currency of the citations and text. In briefs all of those familiar legal principles could simply be enumerated (and perhaps "jump-cited" for the benefit of law clerks or new judges) thereby reducing the volume of reading and compelling counsel to focus on applying the law to the circumstances in the case before us. I have waded through pages chronicling the shifting burdens in an employment discrimination case only to be presented with a couple of paragraphs relating all of that law to the facts in the case on appeal.
17. Similarly, with respect to oral argument, what suggestions can you offer that might help a very good appellate advocate become even better?
In our circuit oral argument is typically a question and answer session. Accordingly, knowing the record inside out, being prepared to cite "your best case" for a legal proposition key to your arguments on each issue, and an ability to get to the core of your opponent's arguments and refute them would serve a presenter well in our circuit.
18. If I remember correctly, during the two years that I was clerking for a judge on the U.S. Court of Appeals for the Third Circuit, my judge confronted only one last-minute stay request in a death penalty case. I imagine that such cases must arise with greater frequency in the Eleventh Circuit. Can you describe how such last-minute stay of execution requests are handled in the Eleventh Circuit, whether, in your view, some alternate procedure might be preferable to the current practice of litigating significant life or death issues at the eleventh hour, and whether fewer serious last-minute challenges arise now as compared to when you joined the court in 1990?
We have had and do have a significant number of death penalty habeas appeals in our circuit. We have developed a procedure that typically ensures no hurried "eleventh hour" reviews are required. The first time a prisoner's appeal is filed in our court a panel of three active judges is assigned to remain with that prisoner through that appeal and all subsequent appearances. This promotes familiarity with the issues and history. Any subsequent or successive filings return to the same panel. Usually death penalty appeals, at least the first time around, are heard on oral argument after briefing and are specially set. Should a new appeal be presented after entry of a death warrant setting execution, we request that the filings in the state courts and federal district court be forwarded to us (or, as we say "lodged") with the panel assigned to the petitioner so that by the time the appeal reaches us we are totally conversant with the issues and the dispositions below. We have found this approach to be fair to both the petitioner and to the state. Because of AEDPA we are beginning to see fewer last-minute challenges.
19. 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" to me has the connotation of placing a personal agenda or view of the law over stare decisis. There have been quite a few cases where I have followed the existing precedent but have voiced my disapproval in an opinion suggesting how it should be different (as to our circuit precedent -- with Supreme Court precedent I do not do that). If an issue is of first impression and I am not in the majority, I respectfully dissent.
20. What do you do for enjoyment and/or relaxation in your spare time (and please be sure to mention your background as a musician)?
"Spare time" -- what's that?? In the time that I do have I spend as much of it as possible with my wife and young son, daughter, son-in-law and two grandchildren. I do pick up my trumpet occasionally to literally "blow-off-steam" but my "lip" does not last as long as it did in years past. I treadmill daily and work out with a weight trainer twice each week. I enjoy tennis when I have time to play. I follow the UVA Cavaliers, Braves and Falcons. Good food, fellowship and fire-water (particularly of the single malt Highland variety) are always welcome distractions. And Howard, on your next visit to Atlanta, you're buying!