by Howard Bashman
20 Questions for Circuit Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit:
"How Appealing" is delighted that Circuit Judge Frank H. Easterbrook
of the U.S. Court of Appeals for the Seventh Circuit
has agreed to participate in this Web log's monthly feature, "20 Questions for the Appellate Judge."
Judge Easterbrook was born in Buffalo, New York in 1948. He attended undergraduate school at Swarthmore College, where he was elected to Phi Beta Kappa and received his degree with high honors. He then attended the University of Chicago Law School, where he was an editor of the Law Review and a member of the Order of the Coif.
Following law school, Easterbrook served as a law clerk to Levin H. Campbell of the U.S. Court of Appeals for the First Circuit. He then joined the Solicitor General's Office, where he served first as Assistant to the Solicitor General and later as Deputy Solicitor General of the United States. In 1979, Easterbrook became an assistant professor of law at the University of Chicago, in 1981 he became a full professor there, and in 1984 he became the Lee and Brena Freeman Professor of Law.
In August 1984, President Ronald Reagan nominated Easterbrook to fill one of the two seats on the U.S. Court of Appeals for the Seventh Circuit that Congress added in July 1984, when the number of active judges authorized to serve on that court increased to the current total of eleven. In April 1985, following President Reagan's reelection and Easterbrook's renomination, the U.S. Senate confirmed Easterbrook, who was then thirty-six years old, to the Seventh Circuit, where today he is next in line to serve as that court's Chief Judge.
Judge Easterbrook's chambers are located in Chicago, which is also where the Seventh Circuit has its headquarters.
Questions appear below in italics, and Judge Easterbrook's responses follow in plain text.
1. What are your most favorite and least favorite aspects of being a federal appellate judge?
The job is perfect for a generalist. You work on all kinds of federal issues, served up by facts that were proposed as soap opera scripts and rejected as too implausible--and when the breadth of the portfolio leads to the generalist's inevitable errors, you can blame them on the Supreme Court. What could be better?
I was attracted to law by the scope of its coverage and enjoyed the Solicitor General's Office for the same reason. Learning how the whole legal world works is attractive; and to make sense of the legal world you have to know about the economic and scientific domains as well. I enjoy these subjects (I read science journals as well as economics journals and law reviews in my spare time), so the appellate judiciary is an intellectually comfortable place. Subjects on which I would not have worked but for the appointment--tax, pensions, bankruptcy, trademarks, copyright, to name a few--have been particularly satisfying.
Paradoxically, the subject matter's breadth also is the least favorite aspect of the position. It means that a judge is an amateur at everything
. All practicing attorneys develop some specialties; so do academics. When in the SG's Office I handled a bit of this and a dollop of that, but I also became a specialist in double jeopardy law, black lung issues, securities law, antitrust, and a few other subjects. When I moved to teaching, I added new areas of expertise. Now my intellectual capital is depreciating. (I'm sure that some lawyers think this happened remarkably swiftly.)
For ten years I served as an editor of the Journal of Law and Economics
, but in 1991 I resigned because economic analysis of law is becoming increasingly technical, and I could not keep up with the literature in the depth required to select the best new work within a crowded field. A judge must shift rapidly from one topic to the next; it is hard to set aside weeks or months to master a subject and write interestingly about it. (My colleague Richard Posner is a one-off exception; not even Holmes was able to do the like after joining the appellate bench, and appellate judges carry much heavier workloads now than in Holmes's day.)
One other thing: judges can't practice law. I enjoyed appellate advocacy greatly--both the preparation of briefs and the give-and-take of oral argument. While in the SG's Office I briefed more than 100 cases on the merits in the Supreme Court and argued 17. The year before my appointment to the Seventh Circuit, I argued three more in the Supreme Court. Teaching is compatible with a little practice on the side: both scholars and students gain from practical experience. But today if I tried to argue a case in some other court, I'd find myself a guest of the federal government at the jail across the street from the Seventh Circuit. Such is life.
2. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.
One should speak only of the dead. Holmes is too obvious an answer. Candidates from the 19th Century (other than John Marshall) would produce only a "Huh?" from many readers--and my specialty from that century is the trifling rather than the great. Compare David P. Currie, The Most Insignificant Justice: A Preliminary Inquiry
, 50 U. Chi. L. Rev. 466 (1983) (plugging Gabriel Duvall as the most insignificant Justice in the Court's history), with Frank H. Easterbrook, The Most Insignificant Justice: Further Evidence
, 50 U. Chi. L. Rev. 481 (1983) (empirical demonstration that Thomas Todd made Duvall look like a titan of the bench).
Hugo Black and Henry Friendly are the judges I most admire among those who worked in the 20th Century and are no longer living. (I know you asked for one selection. But although the interview is captioned "20 Questions for the Appellate Judge," you propounded more than 40, with multiple interrogatory sentences per paragraph and compound inquiries per sentence. So a two-to-one ratio must be acceptable.)
Black read widely after his appointment, transcending his roots as a populist from Alabama, and his absolutist approach to constitutional issues--that is, his willingness to take the Constitution seriously as law rather than as aspiration--is admirable. He reached principled decisions and stuck with them as times and politics changed. That's the right thing to do when issuing decisions in the name of an unchanging document. Judges must explain not only why their views are sound but also why on debatable issues only the judges' views count. Unless the Constitution encodes principles that can be applied using the approach of Marbury v. Madison
, then the political resolution must prevail. (I expatiate on this in Abstraction and Authority
, 59 U. Chi. L. Rev. 349 (1992).) Justices are fond of saying that all power must be checked, but where is the check on the Supreme Court's? It lies in text, logic, and history. Black stuck with these over time. His legacy and approach should be more popular today than they are.
Friendly was the most knowledgeable appellate judge of the 20th Century, managing to overcome the limits that time imposes on generalist judges. Combining intellectual integrity with prodigious effort and a powerful intellect, Friendly made a contribution to the law exceeding that of many who are promoted to the Supreme Court. And he managed to do this off the bench as well as through his judicial work. Both Benchmarks
(1967) and Federal Jurisdiction: A General View
(1973), remain splendid reading long after the work of his contemporaries has faded.
3. How did you come to President Reagan's attention as a potential Seventh Circuit nominee, when did you first realize that you might be interested in being a federal appellate judge, what concerns if any did you have about becoming a federal appellate judge at such a young age, and do any of those concerns persist today?
This is four questions, and the answers are:
a) Several people drew my name to the attention of the right officials. Robert Bork, with whom I worked when he was SG, learned enough about me to think that I might have the makings of a judge. Antonin Scalia, whom I first met when he was Assistant Attorney General for the Office of Legal Counsel (and came to know better when we were colleagues at the University of Chicago), said favorable things. Kenneth Dam, one of my colleagues at Chicago and Deputy Secretary of State in the Reagan Administration, also bears some responsibility. But illustrating the role that chance plays in all such appointments, credit (or blame!) also must go to Tom Campbell, who was Deputy Associate Attorney General (or was it Associate Deputy Attorney General, or Assistant to the Deputy Associate Attorney General?) in the early Reagan years. After service on the law faculty of Stanford and stints in Congress, Tom today is Dean of the Business School at UC Berkeley. We met in 1970 when he was in college and I in law school, covering my room and board as undergraduate debate coach. We kept up acquaintances as he entered law, earned a Ph.D., worked for the FTC, and went on the teaching market. That Tom became an insider in judicial selection, remembered me favorably, and knew my academic work, was indispensable in putting a youngster on the bench.
b) Law students learn by reading appellate decisions. Students, practicing lawyers, and professors all spend much time critiquing judicial decisions and claiming that surely one could do better. It is natural to imagine trying one's own hand at doing better. I've thought since before entering law school that it would be wonderful to have a career that included practice, service in the executive branch, teaching, and judging. By good fortune, things have worked out that way. (And one attraction of the bench is that it is possible to continue teaching.)
c) My appointment came too soon, because it meant a premature end to appellate practice and the kind of scholarly work that requires dedicated blocks of time. If it had been possible to plan a career, I would have stayed in the academy (practicing and consulting, say, 20% of my time) another 15 years or so. Most scholars have done their best work by then. But planning is not possible. If you turn down a judgeship, opportunity likely will not knock again. So, when the offer came, I said yes. (Gerhard Casper, my Dean at the time, was nonplussed; he said that he could understand jumping to the D.C. Circuit but not to a regional circuit. My view was and is exactly the reverse. Administrative law is enjoyable, but a varied diet is better. Robert Bork and Antonin Scalia, who joined the D.C. Circuit in the early 1980s both spent more than half of their time there reviewing decisions of the Federal Energy Regulatory Commission. I get to decide antitrust, securities, tax, discrimination, and intellectual-property cases, and some administrative matters too, along with the inevitable cocaine prosecutions. And I don't have to suffer through D.C.'s miserable six-month summers.)
d) After joining the court, it was too late to look back.
4. You have been described by someone who has seen many appellate arguments throughout the United States as one of the most aggressive questioners at oral argument now serving on the federal appellate bench. What do you seek to accomplish at oral argument, in what ways do you find oral argument helpful or unhelpful, and is there anything an appellate advocate can do, either at oral argument or earlier, to ensure that he or she is able to satisfy the standards that you expect from attorneys at oral argument?
This is three questions, which I'll answer at one go. I learned the trade as an advocate to a hot bench. Anyone who thinks that the questions from the Seventh Circuit are frequent should sit in on some arguments at the Supreme Court. And the Justices allocate one hour per case; we must get the same work done in 20 to 40 minutes. The Seventh Circuit hears argument in almost all appeals with counsel on both sides; to do this, we must devote less time to each. The tradeoff implies more questions per minute and can produce harried advocates, but it is worthwhile if you think oral argument helpful--as I do.
Argument is the court's time. The brief is counsel's monologue, argument the dialog. When judges behave like sponges, passively absorbing a stream of words tracking the brief, oral argument contributes little. We might as well have stopped with the written presentation. If the lawyer is lucky, he will hear the doubts that the judge noted in red ink in the margins while reading the brief; a skillful advocate elicits those from the bench. Far better to learn of the judge's qualms while time remains to give the answer, than to be shocked when the opinion appears.
I use argument to grasp details about the case (such as whether particular arguments were preserved in the district court or what the record shows about some potentially important fact) and test my tentative legal impressions. The latter, especially, means laying out for counsel the difficulties with that side's position and seeing whether counsel has a riposte. If yes, I must go back to the drawing board (which is fairly common); but if the lawyer lacks an answer, or tries to weasel out of meeting the question, then I'm more inclined to think the difficulties insuperable. That's one reason why an oral advocate should never say "I'm coming to that later" (the time is now
, when it matters to the judge) or "That's a hypothetical; the facts of this case differ" (the judge knows
it is a hypothetical; the goal is to abstract away from the facts and test the legal issue at a more general level). Lawyers who say "just decide this case on its own facts" are asking for a law-free zone, which we don't offer. (I sometimes mutter under my breath: "Whew! Until that reminder, I had been planning to decide this appeal on some other
Good appellate arguments are like conversations. It may be hard for lawyers to think this way, but it is vital: Counsel offer knowledge about the case and the corner of the law in which it must be resolved, while generalist judges can place the controversy within the web of similar or related principles. Gains from trade are to be had. Sometimes the back-and-forth, like exchanges among friends, can be pointed, but that's necessary to strip away irrelevancies and get to the core in the short time available. The best way to prepare is to follow John W. Davis's Rule #1 of appellate advocacy: change places mentally with the court and imagine what a generalist judge would find troubling about your position. Friends who have had nothing to do with the case (other than to read the briefs) can help you by supplying the outsider's perspective. Visits to the court also help. Watching other oral arguments before yours commences introduces you to the court's style. Assistants in the SG's Office regularly watched their colleagues' arguments in the Supreme Court and sometimes attended oral arguments in private litigation. By the time they stood up to argue their own cases, they knew what the process was about, what worked, and what didn't. Now that oral arguments are available online, "attendance" can be remote--though the visual adds to the aural.
5. The Seventh Circuit today has established a reputation, in part because of rulings you have written, of being a court where the rules are enforced almost mercilessly and amicus briefs are disdained greatly. Please say a few words to your colleagues on other circuits about why attorneys should be publicly called to task for violating court rules, and do you agree that it makes sense to strictly referee motions for leave to file amicus briefs instead of letting all such briefs be filed and simply ignoring the unhelpful ones?
I'm not even going to try counting how many questions this one entails.
I'll start with amicus
briefs. Judge Posner has forcefully stated the view that most amicus
briefs are worthless and that clients are not getting their money's worth. See, e.g., Voices for Choices v. Illinois Bell Telephone Co.
, 339 F.3d 542 (7th Cir. 2003) (in chambers). I find that a surprising attitude for a pioneer in economic analysis in law. Why would clients--many of them organizations with sophisticated general counsel to protect their interests--get taken to the cleaners by other lawyers trying to persuade them to pay for the preparation of worthless briefs? This is not a snake oil market! I am more favorably disposed to amicus
briefs (perhaps having written too many of them to think the endeavor silly) and regularly permit their filing when serving as motions judge. Some of these briefs add little, but it is easier to skim them (or pitch them into the circular file) when preparing for the argument then to try ex ante
to determine which briefs will facilitate accurate decision. I have found several amicus
briefs quite helpful. Nonetheless, I share Judge Posner's view that "me too" briefs are useless; it is the quality of argument, not a list of which interest groups are on whose side, that matters.
As for rules: again, anyone who thinks the Seventh Circuit a stickler should try practice in the Supreme Court. The Clerk's Office of that institution enforces rules to the letter; we are more lax.
One man's "merciless" enforcement is another's "even-handed" enforcement. Equable enforcement promotes efficient disposition of litigation, generally a Good Thing--both national and local rules are the result of extended collaboration between bench and bar to determine how best to handle appeals--though we often waive enforcement when the alternative is excessive delay or expense. The greater the press of business, the more important is compliance with the rules. Judges must read approximately 1,000 pages to prepare for a day of oral argument; enforcing rules that make these materials legible, to the point, digestible, and easy to handle is good for everyone. If the rules are good, enforce them; if the rules are bad; change them; there's little point in having good rules but winking at noncompliance.
Rules can be complex, and the Clerk's Office of the Seventh Circuit does its best to help lawyers comply. The Clerk offers a valuable service that too few lawyers use: if a draft brief is tendered before the due date, the Clerk's staff will check it for conformity to national and local rules, so that counsel can made any necessary fixes before the brief is reproduced. But counsel who prepare a brief for this court however they please (or however things work in the state court where they usually practice), without consulting the rules, are in for a surprise, and the plea "I didn't know!" is self-condemnation rather than justification.
I care principally about two rules and call attorneys to task to reduce the number of violations in the future. (Judges who do not believe in deterrence should become architects or playwrights instead; most of the legal system relies on it.) Enforcing the rules is costly to the individual judge, who must write more in the opinion and then deal with the responses to the order to show cause. Like other exercises in deterrence it has benefits only for the future; but if everyone decided to let today's violation pass in silence there would be too many problems tomorrow. Embarrassment or a $1,000 fine are trifling as penalties go; small wonder violations continue.
One of the two rules on my short list is Fed. R. App. P. 28(a)(4), and its parallel Circuit Rule 28(a). These demand vital details about subject-matter jurisdiction and appellate jurisdiction. Determining whether jurisdiction exists should be the first order of business for every federal judge. Without jurisdiction, judges are just pundits. Tenure comes with a limit: the judicial role must be authorized by both the Constitution and a federal statute. Lawyers who ignore these requirements--or, worse, seek to pull a fast one--are imposing intolerably on their adversaries, on the courts, and on other litigants farther back in the queue for judicial attention.
Last year my clerks gave me a sketch, done by a cartoonist, that captures my attitude: a lawyer is disappearing through a trap door, which I opened by pushing a button on the bench. On his way down (way, way
down; the Seventh Circuit's courtroom is on the 27th floor of the Dirksen Courthouse) the lawyer exclaims: "BBUT, YOUR HONOR, JURISDICTION WASN'T RAISED BELOOOOOWWW...!" No, indeed; but lawyers who follow national and local Rules 28(a) will cover the subject on appeal. (I often use the metaphor when speaking to groups about appellate advocacy. The phrase "Your Honor, I wasn't trial counsel so I don't know what�s in the record" also opens the trap door. A voice-activated switch should automate the process, but I can't persuade the General Services Administration to install a trap door. GSA expresses concern about disrupting ongoing trials if an appellate lawyer should pass through district courts on the way to the street.)
Inviolable Rule #2 is Circuit Rule 30(a) and (b), which requires counsel to supply copies of the decision under review (and, in collateral attacks, any written rulings supporting the original judgment being challenged). It is impossible to evaluate an appeal without knowing what the court or agency did, and why. Lawyers sometimes respond that the opinion is in the record, so why reproduce it. This isn't always true (sometimes the opinion or evidentiary ruling is oral, and occasionally counsel fail to order the transcript) and, more to the point, judges may not have ready access to the record. There is one record, in Chicago, and three judges per panel. Of our 11 active judges, only 6 have principal chambers in Chicago. (Two of four senior judges who continue to hear cases also are located away from the headquarters.) Moreover, even the judges with principal chambers in Chicago often prepare elsewhere--at home, in Michigan, in Paris, or in my case in Alaska, where I escape to relax and work. Counsel must file briefs and appendices electronically, see Circuit Rule 31(e), so that judges can read wherever they find themselves. Electrons are much
easier to tote around than those heavy protons and neutrons that constitute paper! When lawyers fail to comply with Circuit Rule 30, however, preparation of the appeal may be delayed or frustrated.
6. Several readers have emailed me to suggest that I ask you to comment on the importance of civility and respect in the courtroom, between opposing attorneys and between judges and attorneys. Also, on a related point, have you ever written an opinion that criticized an argument, an attorney, or a trial court judge in a manner that you later regretted as too harsh?
Civility is overrated. There is no place for mean or petty conduct (in the courtroom or in depositions, where the problem is worse), but if maintaining a genteel atmosphere means pussy-footing around problems, then the trade is a poor one. Pointed questions, and insistence that they be answered, serve vital ends--especially when time is limited, as it must be for the court to hear oral argument in all counseled appeals. A judge's job is to protect the litigants' rights, not to shelter the feelings of advocates (who are paid for their services). Comments in opinions on the merit of arguments made or actions taken, by counsel or district judges, may help avert recurrence and so can produce benefits net of any personal sting. It also can help potential clients distinguish good attorneys from mediocre ones or, worse, attorneys who put self-interest ahead of clients' interests. If judges don't reveal these things, who will? But it is never appropriate for a judge to belittle anyone for the sake of expressing superiority (power corrupts, and underpaid judges--see Question 13 below--should not take out the difference by lording it over others), or for one lawyer to demean another rather than chalk up legal or factual points.
7. The name "Easterbrook" is commonly preceded by the words "Posner and." Yet just as practitioners and the press tend to overstate the extent to which Justices Scalia and Thomas share the same legal philosophy, there have been a number of significant cases in which you and Judge Posner have disagreed over the proper outcome. In what ways does your approach to judging differ from Judge Posner's, do you have any major philosophical disagreements with his overall view of the law, and, where such differences or disagreements exist, why are your positions the correct ones or, at a minimum, preferable to his? Finally, before I leave the subject of Judge Posner, what are your views on "baby selling"?
Judge Posner and I both support economic analysis of law. We've been academic co-authors, served on the same faculty, hold views in the tradition of John Stuart Mill about the proper roles of collective versus private choice, have edited economics journals and been officers of the American Law and Economics Association, and have been colleagues on the Seventh Circuit for an extended period. No surprise, then, that we should be associated. But as your question observes there are differences.
Judge Posner is the federal judiciary's pragmatist-in-chief (see, in addition to his judicial writings, Richard A. Posner, Law, Pragmatism, and Democracy
(2003)), while I think that judges should be concerned less about wise policy and more about sources of authority for life-tenured officials to make decisions. Judge Posner calls me a "formalist"; I prefer "legalist" (though "textualist" will do). "Formalist" implies a view that syllogistic reasoning generates all important answers, which I don't believe. My main question is whether texts (and history) grant the judiciary the sort of powers over a given subject that justifies displacing the resolution of elected officials or compelling private citizens to surrender their wealth, their liberty, and sometimes their lives. Arguments based on wise policy do not suffice; concrete authority is required, so that decisions are based on law rather than even well-informed choice and we have (to use a good phrase) a government of laws and not of men.
I've made more extended arguments for this position in Abstraction and Authority
, already cited, and some other articles, including Statutes' Domains
, 50 U. Chi. L. Rev. 533 (1983); Textualism and the Dead Hand
, 66 Geo. Wash. L. Rev. 1119 (1998); and Judicial Discretion in Statutory Interpretation
, which will appear Real Soon Now in the University of Oklahoma Law Review. A book-length treatment is coming (see Question 17 below). Eventually.
How often do the differences in approach matter? Not as often as a bald statement of position might imply. See Daniel A. Farber, Do Theories of Statutory Interpretation Matter?: A Case Study
, 94 Northwestern L. Rev. 1409 (2000). Still, interpretive method matters often enough. For a recent decision that found us on opposite sides, see United States v. Mitchell
, 353 F.3d 552 (7th Cir. 2003). [Editor's note: that decision can be accessed online at this link.]
8. The First Circuit is authorized to have six active judges, while the Ninth Circuit is authorized to have twenty-eight active judges. The size of the U.S. Courts of Appeals fall between those two extremes, with the Seventh and Eighth Circuits having the second-smallest number of authorized active judges, eleven. What in your view is the optimal size of authorized judges for a federal appellate court, and would the Nation be better served by having Congress increase the number of judges authorized to serve on the federal appellate courts or by paring back on the jurisdiction of the federal courts? Also, what is your view on whether the Ninth Circuit -- which is already by far the largest federal appellate court and which 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?
When I clerked for Judge Campbell, the First Circuit had only three judges and thus always sat en banc. That was too slim; more points of view promote deliberation. Twenty-eight, by contrast, is morbidly obese. It is larger than the original Senate. Add senior judges, plus visiting circuit and district judges, and the effective size of the Ninth Circuit is closer to 50 than to 28. Town-meeting size makes coordination difficult and can conduce to town-meeting conduct. It is smaller than the mob that condemned Socrates, but that's not saying much. On average, more than two years pass between the time any given judge of the Ninth Circuit sits with any other, which frustrates the ability to operate as a single institution. And its record in the Supreme Court speaks eloquently. See Richard A. Posner, Is the Ninth Circuit Too Large?
, 29 J. Legal Studies 711 (2000) (studying unanimous or summary reversals, which cannot be attributed to philosophical differences between the Justices and the appellate courts). When I was in the SG's Office, we contemplated filing a cert. petition that began: "This is a petition to review a judgment of the United States Court of Appeals for the Seventh Circuit, and there are other reasons to issue the writ." Now that dubious mantle has passed to the Ninth Circuit. A few years ago, a lawyer who propounded some farfetched proposition was asked: "Do you have any authority for that point?" Counsel cited a decision of the Ninth Circuit, and the questioner (not me!) continued: "All very well, but do you have any legal
No scientific answer to the question "how hot must porridge be to be just right?" (or how large a circuit should be), but I'm confident that 20 and up is impossibly large. Fifteen is do-able, but only when the court actually operates at that size. For the last decade, the Seventh Circuit has had no visitors and has operated at an effective size of 13 (including senior judges). We try hard to make decisions consistent. One vital procedure is Circuit Rule 40(e), which permits one panel to overrule another's decision. This means that judges convinced that there is a problem in circuit law can clean things up rather than introduce a hair-splitting distinction of the kind that complicates life for bench and bar alike. Another helpful procedure is the court's practice of changing panel composition daily rather than weekly. This means that as a rule one judge of the Seventh Circuit will sit with another on six distinct occasions annually. Frequent mixing and meeting promotes the idea that judges serve as proxies for the full court, rather than as free agents.
I don't know whether the number of appellate judges (about 180 all told) is too few or too many. Other branches of government determine how many federal laws must be administered by the judiciary. But if Congress is determined to add new business, then it should make corresponding adjustments to the appellate structure. More appellate courts, with fewer judges on each, are better than bulking up the existing courts. Extra courts of appeals may create more inter-circuit conflicts, but 18 or 20 would not make appreciably more than the 13 existing courts of appeals do already. (Each incremental court adds proportionally fewer conflicts; a 14th or 15th matters only if the first 13 would have been unanimous, and when that condition holds the marginal court is unlikely to think differently.) The current level of conflict is tolerable; indeed, the Supreme Court hears only half as many cases annually as it did when I was in the SG's Office.
One way of splitting the Ninth Circuit would be to break off the Pacific Northwest as a Twelfth Circuit. The states left behind still would have too many judges, but the judicial business within the new circuit would be more manageable without making things worse anyplace else. Or the court could be split along the San Andreas fault, where division is happening naturally. If neither approach is feasible, perhaps the court could be divided at the judge level. I favor vertical; others support horizontal; but neither approach has much political currency.
9. Your opinions tend to be a pleasure to read, which is something that I cannot honestly say of the opinions written by the vast majority of your colleagues on the U.S. Courts of Appeals. Why, in your view, do not more of your colleagues endeavor to write opinions that are interesting and accessible? And perhaps you would be so kind as to list no more than a handful of your opinions that qualify as your all-time favorites.
Writing good opinions is hard work and cannot be delegated. Opinions (like briefs, see the next question) should be simple, direct, and addressed to intelligent generalists. I learned these skills from many teachers, primarily my reviewers and colleagues in the SG's Office. I have had a long time to practice, which is why opinions by my own hand are better than those drafted by law clerks, for they have the pallor of institutional products. Judges can be direct and even venturesome; clerks can't. They cover all bases; qualify all utterances; pile on the jargon, vogue phrases, euphemisms, and acronyms; confuse nouns with adjectives (Fowler called the disease "noun plague"); suppose that intensifying adverbs make propositions stronger; and often assume that whatever is novel to them is novel to everyone else. These collectively give opinions the consistency of bread pudding.
Every year I reread Strunk & White's Elements of Style
and Bryan Garner's Elements of Legal Style
to guard against backsliding. I don't agree with all of their recommendations, but at least I know when a recommendation is being spurned and have reasons for striking off independently. Lawyers tend to be wretched writers, which is odd given that the written word is their stock in trade. Perhaps the problem comes from reading principally the work of other lawyers. Judges and other lawyers should spend more time with books and magazines, where exposition is at a higher level. If all lawyers would read Strunk & White and Garner even once, the world would be a better place. A turn through Ambrose Bierce's Devil's Dictionary
wouldn't hurt, either.
A "handful" of opinions would be ten to twenty (by the counting conventions mentioned in answer to Question 2), but I'll cite only seven. All are more than a decade old, which avoids entanglement with contemporary disputes. I've selected them for a combination of substantive and stylistic reasons. See American Booksellers Ass'n v. Hudnut
, 771 F.2d 323 (7th Cir. 1985), affirmed summarily, 475 U.S. 1001 (1986); Kirchoff v. Flynn
, 786 F.2d 320 (7th Cir. 1986); In re Erickson
, 815 F.2d 1090 (7th Cir. 1987); In re Sinclair
, 870 F.2d 1340 (7th Cir. 1989); United States v. Van Fossan
, 899 F.2d 636 (7th Cir. 1990); Miller v. South Bend
, 904 F.2d 1081 (7th Cir. 1990) (en banc) (dissenting), reversed, 501 U.S. 560 (1991); United States v. Marshall
, 908 F.2d 1312 (7th Cir. 1990) (en banc), affirmed under the name Chapman v. United States
, 500 U.S. 453 (1991).
10. Before leaving the subject of writing, what suggestions do you have for attorneys who file briefs in the U.S. Courts of Appeals? More specifically, what distinguishes an effective appellate brief from one that is not, what percentage of briefs do you find to be especially helpful and well-written, and is good legal writing, in your view, an art or a science?
It is an art--and like other arts is best learned at the feet of masters. I learned from my superiors at the SG's Office, who had learned from theirs in turn. Appellate practice groups in firms such as Mayer Brown Rowe & Maw (often staffed by refugees from the SG's Office) also are great places to learn.
An effective brief is simple, to the point, easy to read (no passive subjunctive constructions, please), addressed to a generalist (no jargon; no unusual acronyms; don't assume that the reader knows your corner of the law), and honest to a fault. Lawyers who face up to factual or legal weaknesses win respect and win cases; lawyers who dodge or substitute bluster lose respect; lawyers who dissemble get the trap door. The section on brief writing in Stern, Gressman, Shapiro & Geller's Supreme Court Practice
applies to all appellate courts and is the best I know of. The Seventh Circuit publishes some of its own advice at http://www.ca7.uscourts.gov/Rules/handbook.pdf
, a handbook now a remote derivative from Robert Stern's original. A set of guidelines on good physical presentation, at http://www.ca7.uscourts.gov/Rules/type.pdf
, is part of the full handbook but worth consulting separately.
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? Finally, does the current tenor of the confirmation process cause you any concern as a sitting federal appellate judge, do you think that your nomination would have been confirmed as quickly and smoothly today as it was in 1985, and what if anything realistically can be done to improve the nomination and confirmation process?
A judge's personal and political views should play as little a role as possible. Judges are human (though to many lawyers it must seem otherwise), and as Holmes said have their "can't helps." And sometimes a statute grants a power to create common law, which inevitably depends on pragmatic considerations. But judges should not readily assume that such a power has been placed in their hands. Judges have tenure so that they can implement the law even when the public favors something more expedient. Unfortunately the Dark Side of Tenure is that judges who are insulated from politics also have leeway to place their druthers over the law. Resistance is mandatory. See also my answer to Question 7 above.
When political officials assume
that judges strive to implement their own views at the expense of the law (or at least do so whenever they have an opening), and appoint (or handle confirmations) accordingly, they may participate in a self-fulfilling prophesy. A politicized appointment process--and I refer to the role of both
the Executive Branch and the Legislative Branch--is more attractive to people with political rather than legal goals, and these people also are more apt to survive it as they have more friends, in both of the elected branches. I would have had trouble today, because after six years in the academy I had published views that were bound to offend or disappoint some interest groups, and I had no political sponsors (other than the one in the Oval Office). Senator Percy was neutral at best. (It was Senator Dixon, a Democrat, who assisted me through the Senate's side of the process!) Yet judges who come from the academy have not been the big offenders; this is true about those generally on the left as well as those generally on the right, and placement of some academics on the bench has considerable benefits for the legal system.
I am especially distressed about a recent development in the nomination and confirmation process: holding against nominees the positions taken in litigation. It used to be understood that lawyers serve as advocates and make arguments in the interests of clients. It is not that we trust newly appointed judges to leave their old views behind them; the mind doesn't work that way. But statements in briefs are not the lawyers' "own" views to begin with (when in the SG's Office I filed briefs taking positions that I would not have supported as a judge).
It is bad enough to assume that a scholar who writes an article opposing rent control would automatically think as a judge that rent control is unconstitutional--the subjects are unrelated--but terrible to assume that a lawyer who (say) represents persons accused of committing securities fraud would then favor securities fraud while on the bench. Nonsense. Ex-prosecutors on the bench acquit defendants; former defense lawyers appointed to the bench convict defendants; proponents of public support for religious instruction still apply the Establishment Clause after appointment; and so on. There is a nasty side effect of condemning the lawyer on the client's account: ambitious lawyers will shy away from representing controversial clients. And as almost any cause or client can be depicted as controversial from some perspective... Do we really want this?
12. A law review article titled "Who Would Win a Tournament of Judges?" concludes with the observation that if someone other than you or Judge Posner is nominated to fill the next U.S. Supreme Court vacancy, President George W. Bush will have some explaining to do. Is serving on the Supreme Court something that you now or ever have aspired to? Would it be appropriate for a judge with a realistic chance of being nominated to serve on the U.S. Supreme Court to consider how ruling one way or another in a pending case could affect his or her changes of being nominated or confirmed to the High Court? And in this era of filibusters and recess appointments, would you agree that a President who is seeking to fill a Supreme Court vacancy might have the most success nominating someone whom the opposing political party is likely to find unobjectionable or someone about whom little is known.
I'm in no position to give Presidents and Senators advice about how to find and evaluate candidates for the Supreme Court. But I can say (a) any judge who claims not to fancy a position on that Court is a liar, and (b) any judge who trims his opinions to fit the political times and enhance his chance of promotion is not engaged in "good Behavior" and should be ejected if he lacks the decency to resign. Litigants are entitled to decision according to law, not decision that boosts a judge's career.
Honest discharge of judicial duties means that anyone who serves on an appellate court for very long undercuts his chances, for that judge is apt to issue opinions that displease almost every faction. It is no accident that promotions from courts of appeals to the Supreme Court tend to come early in a judge's career, or not at all. Think of Learned Hand and Henry Friendly, who never received the promotion despite serving in times when judicial appointments were less overtly political. On the other side are Justices Stevens, Scalia, Kennedy, Thomas, and Souter, all promoted after serving seven years or less. Robert Bork had done enough in even six years on the bench to provide ammunition for opponents; John Parker and Clement Haynsworth encountered similar problems, unjustly in both cases, on account of their decisions. Justices Ginsburg (13 years) and Breyer (14 years) are outliers.
13. 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?
There's a queue to join the bench, so the salary must be too high!
But the existence of the queue is misleading, so that inference is unsound. Many people want to become judges for the power of the position, just as others will take pay cuts to join the Legislative and Executive Branches. Because judges hold authority by reason rather than recent election, making the job attractive to power-seekers is unfortunate, even if each believes that he seeks power only to do good.
Courts ought to include a mix of the different roles in the profession. We have had no practitioners since Daniel Manion joined in 1986, and none from a large firm since Philip Tone and John Paul Stevens in 1970. More recently, the required pay cut has been too drastic to make the office acceptable. A bench filled with lifetime bureaucrats (the alternative to the private bar or the academy, which also should not dominate) is one that is staff-dependent, for people at the top of hierarchies rely on aides.
What is more, it is cruel to set salaries in a way that disappoints expectations. Someone who takes a 50% reduction in income shouldn't be told in a few years that he must now accept 30% of his peer's wages. As Robert Bork often observed: "You can't put your kids through school on psychic income."
Judicial salaries now are tied to legislative salaries, and the need to improve judges' pay then provides an excuse for legislators to increase their own. That's regrettable, and most other western nations have found a different benchmark. A good linkage would be to the nonprofit sector, avoiding any prospect of the government paying big-firm wages. For example, one could lock judicial salaries to the average pay of tenured professors at top-20 law schools. The ABA recently proposed such a benchmark, see Federal Judicial Pay Erosion: A Report on the Need for Reform
(Feb. 2001); Federal Judicial Pay: An Update on the Urgent Need for Action
(May 2003), but did not follow through with a proposal to create an automatic link. Making the process automatic is important. Note that even with this lockstep judges would make less than scholars--for professors supplement their income with consulting and endowed lectureships. It is hard to imagine that federal judges have a lower value than the average scholar (though the latter might disagree).
14. You teach at a law school, are regularly in the market for recent law school graduates seeking to be hired as law clerks, and review on a daily basis the work of people who graduated from one law school or another. In what ways should the Nation's system of legal education be reformed and/or improved?
I haven't a clue. Sorry. Maybe that's because I think that the system of legal education does a pretty good job--and it can't be blamed for lawyers' lousy writing habits, which they may have picked up while writing undergraduate term papers in sociology. Law schools have a comparative advantage at doctrinal analysis; other skills must be taught through the apprenticeship system.
My only proposed reforms are incremental. One is to shorten law school from three years to two. That's enough to get across the legal method and an adequate base of knowledge. Many schools would offer longer programs (as business and medical schools do) for those who planned to enter specialties or teaching, and I expect that three-year and even longer programs would be popular. More choice, less regimentation. The other is to increase emphasis on statistical and other means to verify (or refute) the factual hypotheses that underlie many legal propositions. Too often teachers play the game of "it can be argued that..." without showing the students how their arguments can be tested and confirmed or rejected.
15. How do you make use of your judicial law clerks, and in what respects does that differ from the clerkship that you had following law school?
I use clerks the old fashioned way: to do research and serve as sounding boards. Both of my clerks (I hire only two) work on every appeal. We read the briefs and do what other investigation is needed, then discuss matters about a week before argument. That may lead to follow-up work. After argument we discuss again, and sometimes more research is in order. Then I'll write something and ask for criticism--on facts, substance, organization, or style--and proposals for improvement.
Learned Hand once told a clerk, who had asked if he could write a memo on some subject: "of course you may, but I will not read it." I'm not that anti-memo, but I think that continual interchanges are superior to paperwork.
Each clerk gets to prepare one draft during the clerkship. I'm too lazy to let them try more; it is much more work to go through the editorial process than to write from scratch. Judge Campbell, for whom I clerked, was more comfortable with drafts from clerks. After receiving them he treated the text as a post-argument memo, took out his No. 2 lead pencil and yellow legal pad, and started writing himself. That admirable approach has influenced my own use of clerks. I left with great respect for Judge Campbell and a desire to be as rigorous and careful as he was (and is). He also taught me that although it was necessary to do the work to cover all issues, it is not necessary to write each up: "explain what matters, and not all you have learned" is a good standard for appellate opinions.
16. After clerking for Judge Campbell on the First Circuit, you went on to one of the best jobs an appellate lawyer can have, working first as an Assistant to the Solicitor General and then as a Deputy Solicitor General of the United States. How did you secure employment in that office, under which Solicitors General did you serve, and what do you regard as the most significant case or cases that you argued before the U.S. Supreme Court? Also, did you try to obtain a clerkship at the U.S. Supreme Court, and in retrospect is not having clerked at the U.S. Supreme Court something that you regret?
I got the job by writing a letter to Robert Bork, then the SG, who checked with some of my professors at Chicago and called me in for an interview. We hit it off when I criticized the glacial pace at which scholars were producing the Holmes Devise History of the Supreme Court (it's still
not done!). So he hired me.
The Washington Post
noted that around the same time the SG's Office had hired three lawyers either fresh from clerkships or lacking the customary appellate experience. None of us had clerked on the Supreme Court. The Post
concluded that good lawyers were no longer willing to work for the SG and attributed this to Bork's role in firing Archibald Cox as Watergate special prosecutor. The paper thought that dark days lay ahead for the Office with a second-rate staff. The three bottom-of-the-barrel selections were Robert Reich (later Secretary of Labor in the Clinton Administration), Danny Boggs (now Chief Judge of the Sixth Circuit), and me.
Although Bork hired me, and I worked closely with him and A. Raymond Randolph (then Deputy SG, now on the D.C. Circuit) on many high-profile cases (such as capital punishment, the Federal Election Campaign Act, school desegregation, and other topics), I was promoted by Wade McCree, Solicitor General in the Carter Administration. That's a testament to the apolitical nature of the office and to Judge McCree's confidence that the staff would do its job the right way, which I think we did. There was no "political deputy" during the Bork and McCree years; that position did not come about until the Reagan Administration. Those appointed Deputy SG from outside the ranks of assistants (Jewel Lafontant in the Bork years, Stephen Barnett in McCree's time) worked with the career staff as equals. Until his appointment as Chief Judge of the Court of Claims, the principal Deputy SG was Daniel Friedman, a career public servant and straight arrow. He was also a wonderful editor, responsible for the simple and direct style of SG briefs.
The most important step in my career was not
serving as a clerk at the Supreme Court. Clerks are barred for two years from involvement in litigation in that tribunal, and thus from working at the SG's Office. Had I clerked at the Supreme Court I probably would have gone directly into teaching and would have lost fascinating and valuable experiences--not only as an appellate advocate, but also as an appellate judge. Some people passed the two years after clerkships in the Office of Legal Counsel before moving to the SG's Office (Michael McConnell, now on the Tenth Circuit; David Strauss, now on the faculty at Chicago; and Sara Sun Beale, now on the faculty at Duke, are examples), but I do not think that I would have done the same, and today I would have regretted the loss.
Significant cases that I argued include Trans Alaska Pipeline Rate Cases
, 436 U.S. 631 (1978) (regulatory authority over initial rates of oil pipelines); A&P v. FTC
, 440 U.S. 69 (1979) (buyer liability under the Robinson-Patman Act); Broadcast Music, Inc. v. CBS, Inc.
, 441 U.S. 1 (1979) (antitrust status of ASCAP and application of per se rules to joint ventures); Jefferson Parish Hospital District No. 2 v. Hyde
, 466 U.S. 2 (1984) (antitrust analysis of tie-ins); NCAA v. Board of Regents
, 468 U.S. 85 (1984) (antitrust analysis of network television contracts for college football). The latter two came after I had left the SG's Office. Cases in which I worked on the brief but did not argue include Buckley v. Valeo
, 424 U.S. 1 (1976) (constitutionality of the Federal Election Campaign Act); Gregg v. Georgia
, 428 U.S. 153 (1976) (constitutionality of death penalty); Bates v. State Bar of Arizona
, 433 U.S. 350 (1977) (attorneys' advertising under the antitrust laws and the First Amendment); Dayton Board of Education v. Brinkman
, 433 U.S. 406 (1977) (school desegregation); United States v. Scott
, 437 U.S. 82 (1978) (Double Jeopardy Clause); Regents of University of California v. Bakke
, 438 U.S. 265 (1978) (use of race in student admissions); Personnel Administrator of Massachusetts v. Feeney
, 442 U.S. 256 (1979) (constitutionality of veterans' preferences; role of intent in constitutional law); Reiter v. Sonotone Corp.
, 442 U.S. 330 (1979) (consumers as antitrust plaintiffs); and Industrial Union Department v. American Petroleum Institute
, 448 U.S. 607 (1980) (cost-benefit analysis under OSHA).
17. You have referred in the past to a planned book on textualism, forthcoming "one of these years," with the title "Legal Interpretation." How is the book coming, and what can you say about its contents and goals? Also, the U.S. Supreme Court from case to case applies sharply different approaches to textualism. What's a lower court judge to do while he or she awaits the helpful guidance that your book is sure to supply?
Ah, this is a sore spot. Finishing the book has been delayed, in part by other business and in part by my unease about selecting the level of generality at which to read statutes. I've made some progress on the latter front; see Judicial Discretion in Statutory Interpretation
, mentioned in answer to Question 7. While waiting for the book, people can read that article and the others already mentioned.
18. In 1996, you gave a talk entitled "Cyberspace and the Law of the Horse" at the University of Chicago Legal Forum in which you argued that "cyberlaw" is likely little more than "multidisciplinary dilettantism" and that lawyers should "let the world of cyberspace evolve as it will." Eight years later, what is your assessment of how the law has treated cyberspace and whether there is, needs be, or is but shouldn't be a field of "cyberlaw"? Also, in what ways has technology changed how you perform the duties of appellate judge, and what changes do you anticipate in the future?
My views are unchanged, see Cyberspace versus Property Law?
, 4 Tex. Rev. L. & Politics 103 (1999), despite the best efforts of Larry Lessig and other friends to enlighten me. See Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach
, 113 Harv. L. Rev. 501 (1999). Perhaps I'm uneducable.
Technology is a different matter. Better word processing equipment has enabled me to write pithier opinions by making it easier to experiment, rearrange, and delete. The Internet and Adobe Acrobat enable briefs to be filed electronically and make it possible to work from Alaska, at the base of Mt. Alyeska where I can see three glaciers less than two miles from my front window. Thanks to DSL service, electronic briefs, and legal resources online, I can work as easily in Alaska as in my chambers in Chicago. Of course, in Alaska I take the risks of living with avalanches, volcanoes, earthquakes, tsunamis, and the Ninth Circuit.
19. Your brother Gregg is, among his many talents, a funny and perceptive writer about professional football (his "Tuesday Morning Quarterback" column is now found online here). And you are mentioned occasionally as "Official TMQ brother Frank," in which capacity you have coined the term "festime halftivities"; pointed out that since only bad guys -- Darth Maul, Emperor Palpatine -- end up being thrown into the bottomless pits, their purpose is to trap bad guys, therefore safety railings around such pits would be counterproductive; and once even conducted "an incredibly scientifically advanced analysis of the relationship between performance and appearing on national television." Are you a devoted NFL fan? Do you cheer on your hometown Buffalo Bills or have you lived in Chicago long enough to become a Bears fan? Have you ever used football analogies in any of your opinions (or wanted to), or are you content to leave the sports-themed rulings to your colleague Circuit Judge Terence T. Evans? Finally, a blurb on law.com once attributed one of your rulings to "Sixth Circuit Judge Gregg Easterbrook." Do you think that your brother would be willing to join the sometimes contentious Sixth Circuit, and might a career swap be in the works for you two?
As a public official, I root impartially for the Chicago Bears, the Green Bay Packers, and the Indianapolis Colts, all located within the Seventh Circuit. But the Bills still hold a special place in my heart--as do the bottomless pits in Star Wars
, which demonstrate that once civilizations have achieved sufficient technological progress OSHA will wither away. I hope that Judge Evans one day will show up on the bench wearing a cheese head (he is very
partial to the Packers); I'll retaliate with clip-on moose antlers (or perhaps the Darth Vader helmet one pair of clerks gave me). I'd never want to enter a contest with Judge Evans (or my brother Gregg) about either sports knowledge or sports humor, however; both are masters. I keep hands off sports; Gregg leaves law to me. Fair trade.
20. What do you do for enjoyment and/or relaxation in your spare time?
Reading, music, and hiking in the Ninth Circuit.