by Howard Bashman
20 Questions for Senior District Judge Milton I. Shadur of the U.S. District Court for the Northern District of Illinois:
"How Appealing" is delighted that Senior District Judge Milton I. Shadur
of the U.S. District Court for the Northern District of Illinois
has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."
Judge Shadur was born in St. Paul, Minnesota in 1924. He attended undergraduate and law school at the University of Chicago. Between college and law school, he served in World War II as a Lieutenant (j.g.) in the U.S. Navy. After law school, he entered the private practice of law in Chicago.
In April 1980, President Jimmy Carter nominated Shadur to fill a vacancy on the U.S. District Court for the Northern District of Illinois. In June 1992, Judge Shadur took senior status. Since taking senior status, Judge Shadur -- in addition to retaining a full civil and criminal calendar on the district court -- has sat regularly three or four times a year by invitation with U.S. Courts of Appeals around the country. In all, he has sat by designation with the U.S. Courts of Appeals for the D.C., First, Second, Third, Seventh, Ninth, and Tenth Circuits, and he is scheduled to sit with the Sixth Circuit soon. Judge Shadur's chambers are located in Chicago.
Questions appear below in italics, and Judge Shadur's responses follow in plain text.
1. How, in your experience, does a U.S. District Judge benefit from sitting by designation on a U.S. Court of Appeals? Conversely, what benefit, if any, might a court of appeals judge who never sat as a trial judge gain by sitting by designation on a district court? And do you believe that the U.S. Court of Appeals for the Seventh Circuit made an error in judgment when it stopped inviting district judges from within the circuit to sit by designation, and why or why not?
It's difficult for me to identify the substantive benefits derived from sitting with a Court of Appeals, apart of course from such matters as experiencing an occasionally welcome change of pace from activity on the District Court, the opportunity to enjoy some warm interpersonal relationships and like intangible rewards. My sense, though, is that I've also gained some insights into what's important from the appellate perspective that merely reading Court of Appeals opinions may not convey fully (especially when, as is regrettably sometimes the case, such opinions portray a lawsuit that is quite different from the one that the District Judge has lived through at his or her level). My hope is that thus being exposed to the appellate perspective, and to what an appellate panel finds persuasive or unpersuasive, may help me to shape my District Court rulings in a way that will articulate my views both accurately and persuasively. Finally, I confess that my Court of Appeals sittings, however much I enjoy them, regularly reconfirm that my "day job" is the right one for me -- that my nature and abilities are better suited, in terms of full-time or principal activity, to laboring in the District Court vineyards than to appellate court work.
As for the other side of the coin, I don't believe that occasionally presiding over a District Court trial provides a very valuable experience for a Circuit Judge who has not had prior experience as a trial judge. Instead it seems to me to be not much different in value from the periodic visit by the board of visitors to the poorhouse in Oliver Twist
, with one possible exception: the need for a visiting appellate judge to rule on evidentiary and other issues instantly, without the luxury of going back to the books to render decisions at greater leisure, should give the judge a more realistic view of what it means to provide what has often been termed "a fair trial, not a perfect trial." It should also be remembered that only a small part of the District Judge's time is spent in the conduct of trials, so that an occasional stint by a Circuit Judge in the conduct of a trial doesn't come close to conveying a full appreciation of the many other things that District Judges must deal with that may ultimately find their way onto the appellate docket.
Lastly, because I'm unaware of the policy reasons that led to the change in the invitation practice from the time that I was first invited to sit with the Seventh Circuit (more than ten years before I took senior status), I'm reluctant to opine in terms of any possible "error in judgment" vel non. But I am satisfied that in many cases there are affirmative benefits to a Court of Appeals panel in being able to draw on the experience of a trial judge to gain insights that Circuit Judges who lack such experience may not have -- and I suspect that the Courts of Appeals that do extend invitations to District Judges may well share that view.
2. Some academics at The Ohio State University performed a study, whose methodology I cannot vouch for, which concluded that visiting U.S. District Judges who sat on U.S. Court of Appeals panels did not participate as fully in the decision-making process as did their appellate court colleagues. In your experience, both first-hand and based on what you have heard from others, is this true? Is it nonetheless a legitimate concern? And more specifically, are visiting judges more reluctant to advocate bold pronouncements on the development of the law, less active at oral argument, and are they afforded any input into how a court of appeals should dispose of a petition for rehearing en banc?
Although I don't pretend to know what kind of methodology could arguably support the kind of conclusion that you report (no academic can be a fly on the wall during the course of the post-argument conferences among appellate panel members), and though I freely confess that no statistical significance can be attached to my personal experience or that of any other individual District Judge, I have never had any such lesser-participation experience anywhere. In light of your question, I had one of my law clerks who is an electronic search guru run a couple of lists, and I then did a quick scan of the published opinions that I've written (as you know, a later question deals with the subject of unpublished and noncitable orders). Even though I've made no effort to distill the results of that examination into precise numbers, what they reflect generally is that I've written something over 100 published opinions at the appellate level, which represent (as you might expect) a third of the published opinions issued by the panels in which I've participated. About one-fourth of my opinions have been written in cases that have involved dissents, and those in turn are divided in almost exactly equal numbers between situations in which I have been the dissenting judge and those in which I have written for the panel and another member of the panel has dissented. As you can readily see, that picture is totally at odds with the conclusions of the study that you mention.
As for your other questions, very few District Judges whom I know fit into the shrinking violet category, so I would guess (but I confess it is only a guess) that few if any who are invited to sit with a Court of Appeals would be either "more reluctant to advocate bold pronouncements on the development of the law" or "less active at oral argument." That's certainly not my own self-perception, although -- as always -- you could probably get a more accurate reading from judges who have served on panels with me. As for en banc petitions, in my experience every Court of Appeals excludes visiting judges (even visiting Circuit Judges, I believe) from voting on such petitions. Because a Court of Appeals normally encounters a combined motion for panel rehearing and petition for en banc hearing, I'm always meticulous in voting on the former but not the latter. Nonetheless a number of Circuit Judges have chosen to report my views as to en banc consideration in the form of framing those views as recommendations (even though I've refrained from making any).
3. What are the procedures for a federal district judge to become a visiting judge by designation on a U.S. Court of Appeals? Do such visitors volunteer for these assignments, or are they invited? What roles, if any, do the Chief Justice, the Chief Circuit Judges, and a judge's colleagues on the district court play in the process?
Under 28 U.S.C. sec. 292(d) it is the Chief Justice of the United States who is assigned the power to designate and to assign temporarily a District Judge for service in another circuit, including service with a Court of Appeals. That potential designation and assignment are statutorily triggered by the presentation of a certificate of necessity by the Chief Judge of the requesting circuit. And that procedure is mirrored as to senior judges ("retired judges" is the technical term) in 28 U.S.C. sec. 294(d), which provides for the Chief Justice to maintain a roster of retired judges "who are willing and able to undertake special judicial duties from time to time outside their own circuit."
As a practical matter, that roster of senior judges is maintained by a Judicial Conference committee designated as the Committee on Intercircuit Assignments. Each year that Committee sends out a questionnaire that inquires of senior judges about their willingness to serve, including any indication of their preferences in terms of the courts involved. Maintenance of that roster is of course consistent with the provision of 28 U.S.C. sec. 294(b) that permits every senior judge to "continue to perform such judicial duties as he is willing and able to undertake," with the only limitation being the nonstatutory setting of certain minimum levels of activity to be entitled to specified levels of staffing as to law clerks, secretaries, minute clerks and court reporters.
As for your question regarding volunteering v. being invited, as I've just said any senior District Judge who expresses his or her willingness to serve elsewhere is also free to express preferences in that regard in his or her filing with the Committee on Intercircuit Assignments. Although I don't know whether others may have undertaken direct communications with the Chief Judge of another circuit to pursue those preferences, to my recollection I have never done so in the first instance. Instead the original invitation to sit with each circuit has come from the then Chief Judge, rather than from a request on my part. Sometimes the Chief Judge or one of the other members of the Court of Appeals has been someone whom I know, but in some instances that has not been the case. Once I have ended up on a panel with a Court of Appeals, of course, I may follow up with inquiries about future years. But to return to my earlier point, in no instance have I specifically sought out -- or refrained from seeking out -- any court.
Finally, to my knowledge the senior judge's colleagues on the District Court play no role in the process -- remember that they have no control as to the amount of work that a senior judge may choose to undertake.
4. You cast the deciding vote against President Bush on a three-judge Ninth Circuit panel in the case known as Gherebi v. Bush (issued Dec. 18, 2003), a decision holding that Guantanamo Bay detainees in the war on terror are entitled to some measure of judicial review in the United States courts. Ninth Circuit Judge Stephen Reinhardt's majority opinion explains that one of the disagreements between the majority and Ninth Circuit Judge Susan P. Graber, in dissent, was whether the Ninth Circuit should announce a ruling given that the U.S. Supreme Court had already granted review in a case presenting the same question from the D.C. Circuit. Did it concern you at all, given Judge Reinhardt's less than perfect track record before the U.S. Supreme Court, that issuing a ruling against the President in that case might in fact prove counter-productive? And what are some other especially significant cases that you have participated in by designation on the U.S. Courts of Appeals, and in any of those did you cast the deciding vote on a divided panel?
In the best tradition of the aphorism that "timing is everything," the D.C. Circuit cases that presented the same question that our panel dealt with in Gherebi v. Bush
have been argued before the Supreme Court on April 20 (these answers are being written just a few days before that date). Cert. has been applied for recently in Gherebi
, and the latest issue of Law Week
hasn't reported any action on the application as yet.
Now to turn to your direct question, no consideration was given by any of our panel members (including dissenting Circuit Judge Susan Graber) as to whether what you refer to as Steve Reinhardt's "less than perfect track record" should lead to any different handling of the case, on the premise that our decision might create a backlash. In my view any such consideration would be totally out of place on the part of a Court of Appeals panel -- and that possibility is one that I would surely not ascribe to the Supreme Court either. Instead, I believe that one important consequence of the issuance of our ruling, rather than our simply abstaining pending the Supreme Court's decision in the cases originating in the D.C. Circuit, is to make it clear that the view that habeas jurisdiction does exist in the Guantanamo Bay situation is one that has been thoughtfully considered and answered affirmatively by a court at the appellate level, and not merely by lawyer advocates who have a stake in the outcome.
As for "other especially significant cases" in which I have participated by designation, it's difficult for me to single out specific cases because I'm not sure what criteria ought to be applied. But one other case in which I cast the deciding vote on a divided panel was United States v. Morros
, 268 F.3d 695 (9th Cir. 2001), a high-profile case in which our panel majority held that the District Court had abstained improperly in a suit brought by the United States Department of Energy to challenge the Nevada State Engineer's denial of water permit applications to evaluate the suitability of the Yucca Mountain site for use as a nuclear waste repository. Another case that would probably be considered as "especially significant" from any perspective would be the Third Circuit decision that first addressed the constitutionality of the widely prevalent statutes that require the registration of sex offenders -- in that case, Artway v. Attorney General
, 81 F.3d 1235 (3d Cir. 1996), the masterful and comprehensive panel opinion was written by Ed Becker without dissent, though I wrote a short concurrence addressing one facet of his opinion (id.
5. What are your most favorite and least favorite aspects of sitting by designation as a federal appellate judge, and what are your most favorite and least favorite aspects of serving as a federal district judge?
My most favorite aspects of sitting by designation with Courts of Appeals have really been addressed in my response to your question 1. My least favorite aspect, though in some quarters this might be considered a strength of the appellate process, is encountered in cases in which I have to "rise above principle" to write in a way that will command a second vote or even unanimity -- to trim my own firmly-held views by reshaping them into a form that I consider less satisfactory.
As for my regular job as a District Judge, I confess that everything about it is richly rewarding, except for the distorted type of criminal sentencing that has been thrust upon us by the Sentencing Guidelines and congressionally-mandated minimum sentences. Forty five years ago Charles Wyzanski, Jr., a fine District Judge from Massachusetts, wrote a letter to then Senator Leverett Saltonstall (a letter reprinted at page 456 of a book by Walter Murphy and C. Herman Pritchett, Courts, Judges and Politics -- An Introduction to the Legal Process
(3d ed. 1979)) explaining why Judge Wyzanski was declining his proposed nomination to the First Circuit (by chance, when I was in the practice of law I had the privilege of arguing a case that successfully challenged, in First Amendment terms, the Northern District of Illinois' rule that impermissibly limited lawyers' ability to comment on pending litigation -- and Judge Wyzanski was a member of the panel, sitting by invitation in the Seventh Circuit). It's impossible for me to improve on Judge Wyzanski's explanation of the special joy of judicial service at the District Court level -- after characterizing as "the classic example" of the scope of a judge's initiative and discretion as the "width of choice of sentencing defendants" (something that no longer exists in the federal courts), he said in part:
In civil litigation a District Judge has a chance to help the lawyers frame the issues and develop the facts so that there may be a meaningful and complete record. He may innovate procedures promoting fairness, simplification, economy, and expedition. By instructions to juries and, in appropriate cases, by comments on the evidence he may help the jurors better to understand their high civic function. He is a teacher of parties, witnesses, petitioners for naturalization, and even casual visitors to his court. His conduct of a trial may fashion and sustain the moral principles of the community. More even than the rules of constitutional, statutory, and common law he applies, his character and personal distinction, open to daily inspection in his courtroom, constitute the guarantees of due process.
6. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.
* * *
While it may well be true that the highest office for a judge is to sit in judgment on other judges' errors, it is perhaps a more challenging task to seek, from minute to minute, to avoid one's own errors. And the zest of that task in enhanced by the necessity of reacting orally, instead of after the reflection permitted under the appellate judge's uninterrupted schedule of reading and writing.
It is of course difficult to avoid listing Chief Justice John Marshall as a near-Pavlovian response, given his enormous accomplishments in shaping an institution that was shapeless when he came to it, in much the same way that George Washington really created the office of President of the United States. But if I may choose a judge closer in time -- someone whose work I have read when it was fresh rather than simply read about, and someone before whom I have had the opportunity to argue and to observe oral argument, my choice would be Justice William Brennan. To me he had all of the attributes that I most admire in a judge, including the ability to shape dissents that are at least as powerful as his opinions for the Court. And if I were compelled to choose one opinion that for me epitomizes him as a Justice, it would be his dissent in Atascadero State Hosp. v. Scanlon
, 473 U.S. 234, 247 (1985), which for me proved the analytical bankruptcy of Hans v. Louisiana
and its progeny in defining the scope of federal jurisdiction and the Eleventh Amendment. If that opinion, written for four dissenting Justices, had been able to capture one more vote, our ongoing jurisprudential trend curbing federal judicial power in favor of states' rights would have followed a very different course.
7. Not only are you the first participant in the "20 questions for the appellate judge" feature who has never been a full�time appellate judge, but you are also the first participant who has served as a judge on so many different U.S. Courts of Appeals. Perhaps you can say a word or two about what distinguishes each of the federal appellate courts with which you have sat from the others? And is there any reason why you have avoided federal appellate courts based in the south, or are you merely saving the best for last?
It is certainly true that each Court of Appeals with which I've had the opportunity to sit has had its own institutional personality -- not simply in terms of procedures but in terms of such characteristics as collegiality. That being said, I would view it as an abuse of the hospitality with which I have always been greeted everywhere to venture on any comparisons (let alone comparisons that might be thought of as invidious). As for the omission from my appellate stopover points of three Courts of Appeals based in the south (the Fourth, Fifth and Eleventh), one based in the north (the Eighth) and the D.C.-based Federal Circuit, that is purely a matter of chance rather than of choice. As I've already said in response to question 3, my out-of-circuit sittings have always stemmed in the first instance from invitations that I've had extended to me (that has most recently been the case with the Sixth Circuit, when such an invitation to sit with that court for the first time -- unbidden, though very welcome when it arrived -- came from its Chief Judge last summer; that initial sitting is scheduled for this June 17 and 18).
8. Based on your experiences sitting with the U.S. Court of Appeals for the Ninth Circuit, what are your views 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?
My understanding is that when the Courts of Appeals were first created they served essentially equivalent populations. With the population explosion that has taken place in California and Arizona, as well as the addition of Hawaii, the Ninth Circuit has become truly unwieldy in terms of the size of its judicial complement. Even though I suspect that everyone agrees on that score, any attempt to divide the circuit in a rationally acceptable way strikes me as extraordinarily difficult. Anything that would attempt to address the problem by splitting California between two circuits is really an unacceptable alternative, and no other proposals that I have seen would seem to work either. From the jurisprudential point of view, the principal difficulty that I see is encountered when a case must be considered en banc, for the need to have fewer than all of the judges participate creates the possibility of an en banc decision that does not truly reflect the circuit's majority view.
9. How did you come to President Jimmy Carter's attention as a potential nominee to serve on the U.S. District Court for the Northern District of Illinois?
To my knowledge I never came to President Carter's attention at all. My path to the federal bench was an odd one, beginning with a telephone call out of the blue from then Illinois Senator Charles Percy in the spring of 1974 (at that time I was a practicing lawyer, having been with the same small firm for a quarter century), asking whether I would be interested in being on his short list (six in number) for a then-anticipated vacancy on the Seventh Circuit. Because that would have represented the fulfillment of a boyhood dream, I said �yes� to the invitation in a nanosecond. When a vacancy did arise a few months later, Bill Bauer (then a District Judge, with a distinguished background including service as a state court judge and then as the United States Attorney here) was selected as the nominee to replace the late Otto Kerner, and I cheerfully resumed the practice of law. Then a year later, still during the Ford administration, Senator Percy called once again to ask whether I had an interest in being considered for the District Court -- but both because my practice was not that of a trial lawyer and, more importantly, because I then had five people in college and could not afford to take the vows of poverty, I declined with gratitude.
One year later, during the last year of President Ford's term, Senator Percy called again, said he didn't want to take "no" for an answer and sent my name in to the Senate Judiciary Committee -- although he was careful to tell me that in the summer preceding a presidential election it was customary for a freeze to set in (those were the days when the differences between the party in power and the party out of power manifested themselves only a few months before the election, rather than today's pattern of perpetual conflict). What the Senator told me was that although he had never asked anything about my politics and did not propose to do so then, his hope was the then junior Senator -- Democrat Adlai Stevenson -- would not �blue slip� me (exercise a veto) if the Senate were able to consider the nomination actively. But the presidential-year freeze did set in a couple of months before the November 1976 election, and once again I continued with the practice of law.
It was a couple of years later, during President Carter's administration, that I received a similar call from Senator Stevenson (who had then acquired the power of recommendation, although Republican Senator Percy was still serving) -- and that was what actually led to my District Court appointment. At least in those days the President played a much less active role (if any) in District Court appointments, which is why I began this answer by disclaiming any involvement (so far as I know) by President Carter himself.
10. Experience teaches that it is much easier for an individual to achieve U.S. Senate confirmation for a U.S. District Court judgeship than it is for a U.S. Court of Appeals judgeship. Isn�t it true, however, that the most powerful individual position in the entire federal judiciary is U.S. District Judge? Please explain why you agree or disagree, and do you believe that the U.S. Senate should scrutinize district judge candidates more closely or appellate court candidates less closely?
It's nice to hear that you regard the District Judge as occupying "the most powerful individual position in the entire federal judiciary" -- but that's only because you've inserted "individual" into that proposition. All of the things that Judge Wyzanski has said tend to demonstrate why, with that qualification, the proposition is an accurate one. And as I've suggested, for me one of the most satisfying (and at the same time most challenging) aspects of the job is that I have the sole responsibility for calling things as I see them, after what I hope has been full deliberation. In practical terms, moreover, the caseload numbers and the numbers of judges operating at the two levels are such that a Court of Appeals can't effectively monitor all of the things that a District Judge does, and that enhances (or certainly should enhance) the sense of responsibility that ought to weigh on the conscience of the District Judge with every decision.
As for any notion of increased scrutiny by the Senate, again the sheer logistics of the process get in the way of any realistic way to accomplish that. It seems to me as a practical matter that the system must depend, as it has traditionally, on the efforts of the sponsoring Senator or Senators to choose wisely. Though admittedly less than an ideal solution, I know of no better alternative.
11. What role should a federal judge's personal and political ideology play in deciding cases, and when if ever is it appropriate for a judge to decide how to rule based solely on his or her personal preference? Also, if some federal judges are going to decide cases based largely on personal preference, can U.S. Senators be faulted for assuming that every judgeship nominee might adopt that approach if confirmed?
Every judge -- indeed, every human being -- has attitudes and predilections that have been shaped by background, education, experience and all of the other things that enter into the human equation. My view of the difference between the "activist" judge and the "conservative" judge has always been that the former permits (or even intends) those predilections to drive the engine of his or her judicial opinions, while the latter is keenly aware of those predilections and makes a conscious effort -- by affirmative action, if you will -- to avoid having them shape the conclusions and results that he or she reaches. For me the first alternative, when practiced by a judge of any ideology, undercuts the very concept of justice. By contrast, the second type of effort, which I regard as a sort of judicial equivalent of the "dynamic tension" concept expounded by famed (or more accurately once-famed) bodybuilder Charles Atlas, provides the model that I try to follow. To be sure, I recognize that my view may be regarded as idealistic or perhaps even naive, but the suggestion that you pose at the end of your question strikes me as overly cynical -- as potentially feeding the demonstrated tendency of too many Senators to pursue their own predilections and biases in the process of confirming or rejecting judicial nominees.
12. What are your views on the judicial confirmation battles underway in the U.S. Senate, the use of filibusters, and the use of recess appointments to place filibustered nominees onto the federal appellate courts?
For me any President who views it as his or her function to load up the federal judiciary with ideologues of any stripe -- with activists in the sense described in my last answer (whichever end of the political spectrum they happen to occupy) -- poses an ultimate threat to the proper role of a truly independent judiciary in a government comprising three branches and predicated on a system of checks and balances. If the minority-party Senators in any administration perceive that to be taking place, I cannot fault them for using an established legislative practice -- the filibuster -- to block the confirmation of extremist candidates. Unfortunately, extremes tend to beget greater extremes, and the increased resort to filibusters as an essentially defensive or holding device has generated the use of recess appointments that in my view do violence to the Constitution's requirement that presidential appointments must be made with the advice and consent of the Senate.
13. How would you describe your judicial philosophy, and which judicial opinions that you have written stand out as your favorites?
My judicial philosophy is best expressed in terms of engaging in the exercise of dynamic tension as described in the answer to question 11, followed by reaching what my intellect tells me is the right result when arrived at via thorough analysis. As for my favorite opinions, you'll no doubt remember the exchange in Mel Brooks' 2000 Year Old Man in which Carl Reiner as the interrogator asks Brooks if he has any children, to which Brooks responds: "Two thousand, and not one calls me on my birthday!"
In a sense my opinions are my children, except that they number more than 6,000 retrievable on Westlaw (including those at the appellate level in addition to my far more numerous District Court opinions), with that number being increased by a third when nonretrievable opinions are taken into account. Singling out a few favorite trees from that vast forest is well nigh impossible, but two opinions that I do recall with fondness are my dissents in Shaw v. Dow Brands, Inc.
, 994 F.2d 364, 371 (7th Cir. 1993) and Brown v. Phillip Morris Inc.
, 250 F.3d 789, 806 (3d Cir. 2001).
dealt with what I considered the impropriety of treating a litigant's pro forma pleading admission that the requisite amount in controversy existed for removal purposes as conclusive in establishing the existence of diversity jurisdiction, even in the face of actual evidence to the contrary (after all, litigants cannot confer federal jurisdiction by waiver if it is really lacking). Since then the Tenth Circuit has expressly approved my Shaw
dissent and disapproved the majority holding, while the Second Circuit has viewed the Shaw
majority view with skepticism while specifically noting my dissent (though the court was not called on to speculate as to its ultimate position under the circumstances before it).
As for Brown
, it addressed what I perceived to be the improper dismissal under Rule 12(b)(6) of a complaint by African-Americans under 42 U.S.C. secs. 1981 and 1982 that tobacco companies had engaged in racial targeting in the marketing of mentholated tobacco products while at the same time concealing the companies' knowledge of the far greater dangers that those products posed to smokers' health.
But having spoken of those two opinions, I freely acknowledge that if I had the time (or inclination) to go back to review the decisional output of more than two decades, I'd very likely substitute (or at least add) some other candidates for the "favorite" label.
14. 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, I understand that you use an untraditional letter to send regrets to those applicants you have not chosen to hire. Please explain.
Because the self-selection process on the part of the many outstanding clerkship applicants carries the assurance of a universally high level of mental horsepower, I look for such things as a solid understanding of the English language and how to use it well, a good sense of humor and -- perhaps most important -- a really good human being. As I frequently say, I head up the equivalent of a three-lawyer law firm, one of much the same size as when I began at the bottom of a four-lawyer totem pole that made up the small firm that I joined after leaving law school 55 years ago. For that kind of relationship to be successful, it's essential to have people with whom you can work comfortably. So I rely heavily on faculty members whom I know well at a substantial number of law schools to give me their sense, or to learn from colleagues' views and then tell me, about the qualities of those applicants to whom I am giving serious consideration. Typically I winnow down the hundreds of applicants, all of whose materials I review personally, to no more than a half-dozen personal interviews, then choose two of those.
As for what you call an untraditional letter, I feel that the young people who take the trouble to apply deserve a personalized kind of response, so I try to frame my two types of letters -- one to those who appear to be in the special star category and to whom I'd therefore want to extend offers if I were a law firm's hiring partner, and the other to the rest of the applicants -- so as to convey my appreciation in a way that sounds sincere because it is.
15. You have expressed opposition to the proposed Federal Rule of Appellate Procedure that would allow litigants to cite to non-precedential opinions in all U.S. Courts of Appeals. But, with respect, some of the reasons that you offer are not persuasive. The proposed rule would not eliminate non-precedential opinions, and federal appellate courts would remain free to ignore non-precedential opinions if they so choose. Some of the federal appellate courts with which you have sat by designation -- the D.C., First, Third, and Tenth Circuits come readily to mind -- have decided to allow citation to non-precedential opinions without any untoward experiences, meaning that such opinions have not magically become precedential nor have they become more time-consuming to prepare. If you found a non�precedential Seventh Circuit opinion that your law clerk told you was directly on point to decide a question pending before you in the district court, would you refuse to take a look? And since such non-precedential opinions can as easily be found by federal district judges as any other legal researcher, why shouldn't the parties have a chance to discuss such rulings if they so choose?
As I write, the Judicial Conference's Advisory Committee on Appellate Rules has just voted for the adoption of proposed Fed. R. App. P. 32.1, which would abolish any restrictions on the citation of unpublished opinions and which in the most meaningful sense targets the concept of nonprecedential opinions. Although the enormous volume of comments received on the proposal (over 500 in number) demonstrate that there are cogent considerations on both sides of the debate, I tend to disfavor the real thrust of the change (though not its literal language) for both jurisprudential and practical reasons. For now I'll address just a couple of those.
But before I turn to those reasons, let me say that the form
of the rule masks the true problem that it would generate. Mere citation as such obviously poses no concerns. After all, we regularly receive and consider citations from a wide range of sources: law review articles and (as, for example, in Brown v. Board of Education
) social science works and input from other disciplines are only examples of those. So the rhetorical questions with which you conclude question 15 get easy affirmative answers. Instead I view the true difficulty as stemming from the goal sought to be accomplished by those who cite such opinions and what that in turn would presage for the preparation of the opinions themselves.
For me there is no better way to explain how legal precedent evolves than that contained in the late Edward Levi's small book titled Introduction to Legal Reasoning
. That evolution rests heavily on being able to point to the similarities and dissimilarities between earlier cases and the one under consideration, a process that determines the direction in which legal concepts will be reshaped.
Having just completed a half-dozen nonprecedential opinions coming out of my sitting with the Third Circuit a month and a half ago (a rate of production that I could not possibly have managed, in addition to my other duties, if full precedential opinions had to be generated), I can tell you that such opinions frequently say little about the facts of the cases, because the audience for which we write -- the litigants themselves -- already knows them. That then enables the writing judge to devote just as much thought and care to analyzing the legal problems and writing about them as with precedential opinions, but with the expenditure of far less time -- a key consideration, given the high volume of cases with which Courts of Appeals must deal. Indeed, the writing is often bobtailed because less needs to be said to apprise the litigants of what the court is ruling and why. But the consequence of that different approach is to reduce materially the value and utility of nonprecedential opinions for the evolutionary development that I've described.
By contrast, if all opinions had to be written in the same manner as precedential opinions are prepared, the inevitable result would be a material reduction in their quality because of their sheer volume and the fact that judicial time is the scarcest resource in the justice system. And for me the other likely consequence -- that more opinions would then become the work product of law clerks rather than the Article III judges who sign them -- is both unthinkable and unacceptable.
16. Some appellate judges profess that the skills necessary to be a successful appellate advocate differ meaningfully from the skills needed to be a successful attorney in the trial court. In your experience as a judge, is this observation correct, and in what ways do the skills needed to excel in the trial court and on appeal differ or remain the same?
Because of the sharp decline in the number of trials in the federal District Courts, it really begs the question to speak of them as "trial courts." Instead I believe that in large part there is really no difference in the primary skills needed for success in the first two levels of the judicial system: keen analytical and language skills, together with the ability to convey effective legal analysis and argument in writing. And to the extent that oral (rather than written) effectiveness is involved, it is I think tautological to say that what will work well for examining and cross-examining witnesses, and for presenting matters to a jury, scarcely coincides with what will work in oral argument before a panel of judges.
17. The U.S. District Court for the Northern District of Illinois currently has two of the youngest federal district judges in the Nation. Both are comfortably below the age of 40. Is there some minimum age or level of experience that you believe it is necessary to attain before one can successfully serve as a U.S. District Court Judge or a U.S. Court of Appeals Judge?
My two newest colleagues, each of them extraordinarily able, fit the description in your question. By definition each has had far less experience than I did when I came to the court after 30 years as a true generalist -- not a trial lawyer -- in the private practice of law. But what you must realize is that no one
comes to the District Court bench fully equipped to fill that role -- all of us have gaps of varying depths and widths to fill. What are therefore most important, as long as a new judge has the requisite intelligence and the other qualities that I've mentioned earlier, are the willingness and ability to fill those gaps through hard work and experience acquired on the job. That formulation, rather than the adoption of any bright line rules, seems to me to hold the key to success as a District Judge.
Ironically, in many ways the young judge is better suited to the appellate bench than to the District Court bench, in the sense that all of us have been accustomed to dealing with appellate opinions from our first days in law school. But in candor, I fear that the problem there lies in the fact that experience on the appellate bench never fills in the gaps with which the newly minted judge always comes burdened.
18. The Seventh Circuit has a rather unusual local rule whereby if a case on appeal is sent back for a new trial, the case is automatically reassigned to another U.S. District Judge. What, to the best of your understanding, is the rationale for that rule, does the rule make sense in your view, and why haven�t more federal appellate courts adopted such a rule?
It should first be made clear that Circuit Rule 36 in the Seventh Circuit calls for automatic reassignment only when reversal follows a full trial, not when a remand is ordered after a review and reversal of any other District Court order (as, for example, the grant of summary judgment). My guess, and it is only a guess, is that the rule stems from a concern that the trial judge might have a subliminal tendency to reinforce his or her earlier disposition of a case (for example, in the course of evidentiary rulings) in the handling of the second trial. At least I would hate to think that the rule stems from any distrust of what the District Judge might do other than by way of such unintended subliminal influence.
To the extent that your question amounts to asking whether I would vote for the adoption of such a rule if I were part of the rulemaking process, my answer would be "no" because I have greater confidence in a judge's ability to separate the past from the present. Indeed, it would strike me that any perceived concerns in this area would be more logically applied to situations in which, for example, the District Judge has previously granted summary judgment but the case must now be tried because the grant was erroneous.
19. You have received federal appellate court rulings that reverse your decisions as a trial judge, and you have written and joined in federal appellate court rulings that reverse the decisions of other trial judges. How can trial judges avoid taking it personally when their decisions are reversed or vacated? Does it make a difference how respected the federal appellate judge is who issued the ruling? And does a trial judge's reputation play any factor in an appellate court's review of a decision that has been appealed?
When I first joined our court, one of my colleagues was the late Joseph Sam Perry, who had been a merchant seaman during World War I and who came to law school, and thus began his legal career, quite late in life -- so that I thought of him as awfully old when I took the bench (though my perspective now, viewed through the lens of my own advanced years, would no doubt be different). Sam frequently said that he had never made a mistake as a judge, although he'd often been reversed.
For the most part I suspect that we District Judges take reversals personally only in the sense that we are often unconvinced by such reversals for any of a number of reasons, although there are of course other situations in which we may nod in agreement when reading a Court of Appeals opinion that reverses us. In the limited sense that I've described, it doesn't strike me as at all necessary for us to avoid that natural reaction.
As for the next part of your question, of course one's view of the quality of the author of a reversal affects which of the two reactions that I've just described takes place. And as to the last question you pose, my experience with Courts of Appeals elsewhere has been that the other judges on the panel will frequently express their views as to the degree of reliability they attach to particular judges whose work product they have been reviewing over the years -- and to that extent I believe that the review process may indeed be impacted by that sense of general reliability (or perhaps its absence).
20. What do you do for enjoyment and/or relaxation in your spare time?
For one thing, I'm a certifiable sports nut across a wide range of spectator sports (my last active sports participation ended when I gave up golf several years ago because the slow play tended to kill too much of the day on both Saturday and Sunday, though I stopped just when I was playing my best golf ever, having brought my weekend player's handicap down into single digits for the first time). Classic music (listening, not playing) has been an important part of my life ever since childhood, and I remain a life trustee of the Ravinia Festival Association after having been on its Board of Trustees for many years, culminating in its Vice-Presidency (of course I had to decline consideration for the Presidency because of the prohibition against participating in fundraising activities that applies to federal judges). Reading, both fiction and nonfiction, continues to occupy me a great deal, even though in a sense that's a busman's holiday from the great amount of reading that I must do in my judicial capacity. Most important, though, is the time that I spend with my wife and family -- children, grandchildren and now two great-grandchildren.