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Monday, March 08, 2004

20 Questions for Circuit Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit: "How Appealing" is so very pleased that Circuit Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Selya was born in Providence, Rhode Island in 1934. He attended undergraduate and law school at Harvard. After law school, he served a two-year clerkship with Chief Judge Edward W. Day of the U.S. District Court for the District of Rhode Island. Following that clerkship, Selya engaged in the private practice of law in Providence from 1960 through 1982 and from 1965 through 1972 also served as a probate judge.

In 1982, President Ronald Reagan nominated Selya to fill a vacancy on the U.S. District Court for the District of Rhode Island. In September 1986, President Reagan nominated Judge Selya to fill one of the two seats on the U.S. Court of Appeals for the First Circuit that Congress added in 1984, when the number of active judges authorized to serve on that court increased from four to six. In less than one month's time, the U.S. Senate confirmed Judge Selya's nomination to serve on the First Circuit.

Judge Selya's chambers are located in Providence, Rhode Island, and the First Circuit has its headquarters in Boston, Massachusetts.

Questions appear below in italics, and Judge Selya?s responses follow in plain text.

1. It would be struthian to contend that your command of obscure words is anything other than Babe Ruthian. How and why did you decide that using obscure words in judicial opinions would be your shtick, and how is it that you developed such a command of words that are unknown to most native speakers of our language? Also, would you share one or more obscure words that even you view as too grandiloquent to use in an opinion of the court?

I don't believe there are obscure words -- just neglected ones. That said, two main things account for my love of language. First, I was subjected early in life to an education that included forced exposure to many years of Latin, which inculcated in me a love of language. Second, I spent twenty-two years being paid extravagant sums for work that included reading judicial opinions and often found myself struggling to stay awake. Upon my appointment to the bench, I made a commitment to myself that I would attempt to prove that sound jurisprudence and interesting prose are not mutually exclusive.

I am unapologetic about my word choices. Words are merely vehicles for conveying messages. There is no point in putting certain words off limits: if a word fits the need -- if it conveys the message -- I will use it. If it does not fit, I won't submit. I may be incurably lexiphanic -- but lexiphanicism for its own sake is not my style.

2. Although I am firmly in the camp that appreciates your efforts to keep judicial opinions interesting, there are others who criticize your use of obscure words because, in their view, judicial opinions should be open and accessible even to those readers who lack access to an unabridged dictionary. How do you respond to such criticism, and what negative reaction (if any) have you received to your use of obscure words from other judges and the lawyers and litigants in the cases in which you have written opinions?

I have received very little criticism on this issue from other judges, which is perhaps due in part to collegiality. I have received almost no criticism from lawyers or litigants, which may be due to the in terrorem effect of my office. There has, of course, been a raised eyebrow or two -- but in the end, I'm pretty much indifferent to whether other people appreciate my writing style. As I said, if a word fits and I use it properly, I'm comfortable. I might add that I tend to use unfamiliar words in contexts that make their meanings fairly clear -- certainly as clear as some of the stilted language that lawyers and judges have used for centuries.

3. If Bruce M. Selya were a lawyer briefing an appeal in the First Circuit instead of one of that court's judges, would you recommend that he curtail his usage of obscure words? Relatedly, is it of concern to you that passages from your opinions that contain unfamiliar words might be less likely to be quoted by appellate advocates and by other judges?

Hmmm . . . I tend to think that I am a lawyer, and that I have briefed and argued several appeals in the First Circuit and a number of other appellate venues. I used words that the uninitiated might term "obscure" throughout my career at the bar, and I believe that I had a pretty good track record before a variety of appellate courts. The proof of the pudding is in the mastication.

I doubt that I am less quoted by appellate advocates and other judges because of my word choices. However, if diminished citation is the price of liberty, so be it.

4. Back in March 1992, The New York Times published a short item that mentioned your penchant for obscure words. That same article also discussed criticism you had received for sometimes including in your opinions puns based on the names of the parties. Since that article appeared, I detect that you have refrained from including such puns based on parties' names in your opinions. Am I correct that this is a practice you have been avoiding, and if so why? Also, what reaction if any did you have to The New York Times article to which I am referring?

I found The New York Times article generally agreeable and more interesting than much of what usually appears in The Times. While I do have a penchant for puns, I also have an instinct for self-restraint. I do agree that basing puns on the names of the parties in a case is an undesirable practice and, having made the mistake once or twice, I will not make it again. Witness my ability to resist -- until now -- the impulse to refer to these questions as "judge-Bashing."

5. Recognizing that any attempt on my behalf to match your command of obscure words would be ultracrepidarian, allow me to move on to other subjects. What are your most favorite and least favorite aspects of being a federal appellate judge?

Without any question, my favorite aspect of my job is the variety of the intellectual challenges that I face. The continual flow of new questions and problems and the widely diverse mix of subject matters are rejuvenating; I often feel as if I am back in law school on a permanent basis. Hand in hand with that aspect of the job, I enjoy the opportunity to approach legal problems front-to-back. Judging is a profession that asks its practitioners to start with the problem and to work forward to reach the answer. That is directly contrary to the typical mode of work in the practice of law, where one starts with the client's desired outcome and works backwards from the result to uncover a feasible solution to the problem.

My least favorite aspect of the position is its essentially isolated nature. I have managed to overcome this, however, by involving myself in community affairs, teaching, and the like.

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

In answering a question of this genre, there is a temptation to reach for the stars -- and I have great admiration for Holmes, Brandeis, Jackson, and a pantheon of others. But the judge whom I most admired and who had the greatest influence on me was the judge for whom I clerked, Edward W. Day. Judge Day, by word and deed, taught me to respect the power of the federal court -- to use great authority humbly, circumspectly, and with utmost care. He also taught me the importance of subrogating personal preferences to the rule of law. He valued hard work, intellectual integrity, and courtesy. He believed that his court was a significant institution and that everything that he did -- from deciding cases to the way in which he comported himself -- reflected on it. It was my experience with Judge Day that first instilled in me an interest in becoming a federal judge one day -- and I am a better judge because of my efforts, sometimes subconscious, to follow in his footprints. Ed Day was a man who combined uncommon wisdom with common decency. Can we ever hope for more in a judge?

7. The First Circuit is authorized only to have six active judges. The next smallest U.S. Courts of Appeals are authorized to have eleven active judges. And the Ninth Circuit, of course, is currently authorized to have 28 active judges and might soon be expanded to a total of 35 authorized active judges. What are the advantages and disadvantages of working on the federal appellate court with the smallest number of authorized active judges? How might your days at work be different if you served on a twenty-eight judge federal appellate court? And how do you respond to those who say that the best way to remedy the problems associated with the Ninth Circuit's large size is to reorder the size and composition of all the federal appellate courts, a remedy that would increase the number of judges serving on, and the geographical boundaries of, the First Circuit?

The advantages of working on a small court are virtually limitless. It is much easier to ensure that the court speaks with a consistent voice, so that lawyers and litigants do not receive mixed signals. I might add that, in a small circuit, judges necessarily get to know each others' thought processes better, and this tends to make it easier to reach consensus.

Never having been a member of a larger court, it is difficult to say how my days would be different. I suspect the best answer is that I really don't know and that I'm happy there is no realistic possibility that I'll ever have to find out.

As to the third subpart of this question -- these 20 questions are more like 40, but who's counting? -- I join in part and dissent in part. I do agree, from my outside coign of vantage, that the Ninth Circuit has grown so large as to be virtually unmanageable. I would certainly approve of a reduction in its size if that could be done sensibly, but I would not support a plan to re-engineer the boundaries of all of the federal circuits to achieve that end. Most circuits constitute quite efficient operating units, and I see no reason to throw the baby out with the bath water.

8. Given that a reorganization of the entire federal appellate court system is unlikely to occur, please provide your view on whether the Ninth Circuit 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?

Do I sense a redundancy? In all events, it makes sense to divide the Ninth Circuit into two smaller circuits, honoring state boundaries -- the same general approach that was used when the Fifth Circuit was split. Each of these new circuits would be about the same size as the Fifth. And although this is probably the outer limit of size, it seems to work reasonably well. The proposals to divide California and put the pieces into separate circuits offends my sense of orderliness. Moreover, it would be a complete departure from accepted practice. It would be difficult to convince me that this is a wise -- or even tenable -- idea.

Exactly how the two new circuits should be configured is a matter beyond my pay grade. Perhaps this question is best addressed to those judges who sit on the Ninth Circuit.

9. How did you come to President Ronald Reagan's attention as a potential nominee to serve on the U.S. District Court for the District of Rhode Island and again as a potential nominee to serve on the First Circuit? Also, how is being an appellate judge better and/or worse than being a trial judge, and what if anything that you learned during your service as a probate judge has influenced your service as a federal trial and appellate judge?

I would like to tell you that my nomination was due solely to my brilliance, but the truth is that it came about on the recommendation of Senator John H. Chafee. I had been a practicing attorney for 22 years at the time I was appointed to the bench and was involved in both the community and the politics of the state of Rhode Island. I had the great good fortune to have known Senator Chafee for many years. I numbered him among my closest friends and benefitted greatly from his good opinion of me.

Being a judge on a district court is quite different from judging on a court of appeals. Appellate judging is more reflective and, in some respects, more intellectually challenging. It is much more conducive to the written exposition of ideas. A trial court is much faster moving and more interactive. Being a trial judge also includes the luxury -- and the concomitant responsibility -- of making decisions on your own, without the need to persuade colleagues to adopt your view.

In my mind, the differences are similar to the differences between ping-pong and pool. In ping-pong, the ball keeps coming back across the table, and one strikes it almost reflexively. In pool, one has the time to plan each shot carefully. I happen to enjoy both games. I do want to add, however, that the two jobs complement one another: my service on a district court has made me a more proficient appellate judge, and service on an appellate court enhances the perspective of any trial judge.

I have never had any sort of job or position from which I have not learned something of value. That includes my position as a probate judge (a part-time post that involved very little heavy lifting). One thing I learned from that experience is that I prefer live legal problems to dead ones.

10. The confirmation process that nominees for U.S. Court of Appeals vacancies must undergo is quite a bit more politicized today than it was when you experienced it in 1986. Indeed, the U.S. Senate confirmed you quite rapidly to both the district court and the court of appeals. Does the current tenor of the confirmation process cause you any concern as a sitting federal appellate judge, and what if anything realistically can be done to improve the nomination and confirmation process?

I am terribly troubled by the way in which the confirmation process has deteriorated in recent years. I think that trend -- if unchecked -- will make it more difficult to attract the best and the brightest to the federal bench. People simply do not want to expose themselves to an escalating level of hostile scrutiny and gratuitous political attack. These developments will inevitably devalue the federal judiciary in the public's eyes and detract from the respect in which the federal judiciary historically has been held.

I wish I knew what to do about this sorry situation. Regrettably, however, this is only one manifestation of a larger problem: the polarization that exists in Washington is inimical in many ways to the public interest. We have reached a state that Jimmy Carter might have termed a malaise.

I am an equal opportunity blame-caster. The right and left have contributed in equal parts to this malaise. Both sides of the aisle have become so convinced of the virtue of their own positions and so deeply suspicious of contrary views that they look for the worst each time a nominee is sent to the Hill.

11. What role should an appellate judge?s personal and political ideology play in deciding cases, and when if ever is it appropriate for an appellate judge to decide how to rule based solely on his or her personal preference? Also, if some federal appellate judges are going to decide cases based largely on personal preference, can U.S. Senators be faulted for assuming that every appellate court nominee might adopt that approach if confirmed?

As an abstract matter, personal or political ideology ought not to play a part in judicial decisionmaking. As a practical matter, however, judicial decisionmaking is much more art than science, and every judge is a product of his or her experience. Inevitably, one's belief structure and value structure will affect how one sees the law. That isn't necessarily a bad thing: the alternative is that only those whose sum experiential and philosophical total is zero will be nominated to the federal bench. That would be dreadful.

I don't accept the premise that federal appellate judges decide cases based largely on personal preference. In my experience, the opposite is true. Most people rise to the challenge upon appointment and do not make decisions based solely on ideology. A very good example of this is Justice Hugo Black, who was strongly against civil rights while in the Senate, but then became very much of a liberal upon his nomination to the Court. When one's role changes, one recognizes that his responsibility is no longer to advocate his personal preferences, but, rather, to uphold and honor the rule of law.

12. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as "pragmatic." How would you describe your judicial philosophy, and which judicial opinions that you have written stand out as your favorites?

I have become accustomed over the years to my inability to improve upon anything Richard says. I see judges as problem-solvers who must act within a set of rules and work to clarify that set of rules. I think that pragmatic is an apt way to describe that philosophy.

As to the second part of your question, my opinions are akin to my children. I like them all -- and hope that, in my waning years, they will support me (or, at least, support my reputation).

13. 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?

I have no particular set of specifications for law clerks. My hiring decisions tend to be instinctive, ad hoc, and (fortunately) have brought me a steady stream of wonderful law clerks. They have contributed significantly to any success that I have had during my years on the bench. One thing is very clear and graphic; they keep me safe from passing traffic.

The new hiring plan is a huge improvement because it gives the judge more relevant information: two full years of law school experience on which to base hiring decisions. It's a step in the right direction.

14. 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. Not too long ago, the First Circuit began to allow lawyers to cite to its unpublished opinions. Where do you stand on the question of allowing citation to unpublished opinions? Has the First Circuit's current practice caused you to spend more time preparing unpublished opinions, and has it compelled your court to treat unpublished opinions as precedent? Finally, 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?

The First Circuit now permits citation to unpublished opinions, but still regards those opinions as having no precedential value. I have not noticed any significant difference in the amount of time spent preparing unpublished opinions since we changed our local rule. I am happy with the rule as it stands. In my view, reliance on unpublished opinions is highly problematic. Attorneys who cite such opinions know full well that they lack precedential force. Thus, a wise attorney will only cite such an opinion if there is no directly applicable precedent and if the unpublished opinion is extremely valuable to his case. I generally give no weight to unpublished opinions unless I find their reasoning persuasive.

I am a firm believer in the ability of courts to designate rulings as non-precedential. Given the volume of judicial business and the number of cases in which the issues and decision are of no import except to the parties, declining to publish an opinion often will be the best practice. I will not dwell on this subject other then to note that those who thirst for my insights may slake that thirst by reading what I previously have written on the subject. See Bruce M. Selya, Publish and Perish: The Fate of the Federal Appeals Judge in the Information Age, 55 Ohio St. L.J. 405 (1994). It is well-known that I am a bit of a curmudgeon, so it should come as no surprise that my views on the subject have become more entrenched with the passage of time.

15. What three suggestions would you offer to attorneys concerning how to improve the quality of their appellate briefs?

I hate to belabor the obvious, but here goes.

1) A lawyer without credibility is like a ship without a rudder: don't misrepresent the holdings of cases; don't indulge in half-truths about the facts; and don't leave the bad news to be used as a bludgeon in your opponent's brief.

2) Shorter is better (or, if you prefer, less is more). When the rules provide a page limit, it should not be considered a sign of weakness to conclude your effort without equaling that limit. Avoid string citations that do nothing more than take up space.

3) Manner of presentation counts. The brief is the court's first introduction to your case, and first impressions matter. Inscrutable cite forms, grammatical errors, and copious footnotes can be detrimental to your client's case.

16. Similarly, with respect to oral argument, what suggestions can you offer that might help a good appellate advocate become even better?

The question is tricky because it envisions a good appellate attorney -- and a good appellate attorney already knows the things I might mention. Most of them are variations on the points mentioned anent the briefs. Credibility is the advocate's stock and trade. She should neither exaggerate the strengths of her case, nor attempt to glide past its weaknesses. She should not feel compelled to use all the time allotted for oral argument. Most important, she should not fight the judges' questions; they are her window into the court's thought processes. A judge's question is sometimes a life preserver rather than a hand grenade.

17. I understand that your eyesight is particularly poor, and that you have difficulty reading text unless it is significantly magnified. What can you tell us about your ocular condition, is it likely to get better or worse over time, and how if at all does it impact your daily work as a federal appellate judge?

I have a number of eye problems, which have left me with no conventional reading vision and some limitations on my distance vision. By employing a variety of coping mechanisms -- enlarged text and video magnification are two -- I can perform all the duties essential to my work. My disability is something I have come to terms with but it sometimes puts unusual demands on my staff, my clerks, and my colleagues, which I regret but find unavoidable. My ocular condition is progressive, although the rate of degradation is unpredictable. Barring some scientific miracle, my vision is not likely to improve. I hope that as my vision ebbs, my capacity to cope with it will grow.

18. You are currently the only U.S. Court of Appeals judge serving on the Judicial Panel on Multidistrict Litigation. What sort of work, and what demands on your time, does that job assignment entail? And how significant would the additional strain on the federal court system be if Congress were to make it easier for federal courts to possess subject-matter jurisdiction over large class action cases?

The panel sits at various places in the country, on average six to eight times a year. We dispose of forty to fifty dockets in a typical sitting. That assignment places significant demands on my time (witness my being one week late with these answers) but it is important and interesting work. I am grateful to Chief Justice Rehnquist for asking me to undertake it.

The MDL process has been an enormous boon to the federal courts' ability to handle and adjudicate complex litigation. I favor the legislation currently before Congress, which would augment the federal courts' jurisdiction over certain large class action cases. That legislation, plus the passage of the bill that would effectively overrule the Supreme Court's decision in Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), would enhance the efficiency and effectiveness of the MDL process.

19. 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?

Surely, you jest. There is no question that federal judges are grossly underpaid. The proper salary should be to some extent commensurate with the market, but I don't think that private practice provides a relevant comparator. As a public servant, it would be unrealistic to expect to earn as much as a private-practice attorney. Academia, however, has many more similarities to judicial work. Accordingly, I favor the proposal made by many, most notably Justice Breyer, to raise salaries to a level roughly commensurate with, or even slightly below, those of deans or senior law professors at major law schools.

20. To provide an eschatol of sorts, after which we need go no further, please describe what you do for enjoyment and/or relaxation in your spare time.

I don't have much spare time, and my ocular problems have conspired to deprive me of many of my favorite pursuits, such as leisure reading, tennis and the like. I do spend time with my wife, children, and grandchildren, play an occasional round of bad golf, and dabble in poetry. So here goes: I have the feeling that "How Appealing" is through with me -- and I am free.

"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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