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Monday, September 13, 2004

20 Questions for Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin: “How Appealing” is very pleased that Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin has agreed to participate in this web log’s monthly feature, “20 Questions for the Appellate Judge.”

Chief Justice Abrahamson was born in New York City on December 17, 1933. She received her bachelor’s degree from NYU in 1953, her law degree from Indiana University Law School in 1956, and a doctorate of law in American legal history in 1962 from the University of Wisconsin Law School. She is the recipient of fourteen honorary Doctor of Laws degrees and the Distinguished Alumni Award of the University of Wisconsin — Madison. She is an elected fellow of the Wisconsin Academy of Arts and Sciences, the American Academy of Arts and Sciences and the American Philosophical Society.

Following law school, Abrahamson worked at Columbia University Law School and then in Madison, Wisconsin in the private practice of law for fourteen years and was a tenured professor at the University of Wisconsin Law School.

In 1976, Abrahamson was appointed to the Supreme Court by Wisconsin Governor Patrick Lucey and became the first woman to serve on that court. Wisconsin voters elected her to a ten-year term on the court in 1979. She won reelection in 1989 and became the court’s first female Chief Justice in 1996. She again won reelection in 1999 and, from 2003 until recently, presided over a court on which females constituted a majority.

Chief Justice Abrahamson currently serves as President of the National Conference of Chief Justices, as chair of the board of directors of the National Center for State Courts, and as a member of the board of directors of the New York University School of Law Institute of Judicial Administration and the Council of the American Law Institute. She was chair of the National Institute of Justice, National Commission on the Future of DNA Evidence and has also served on the State Bar of Wisconsin’s Commission on the Delivery of Legal Services and American Bar Association’s Coalition for Justice.

Chief Justice Abrahamson’s chambers are located in Madison, which is also where the Supreme Court of Wisconsin sits in the State Capitol.

Questions appear below in italics, and Chief Justice Abrahamson’s responses follow in plain text.

1. As the first female to serve on the Supreme Court of Wisconsin, and as that State’s first female Chief Justice, you are a historic figure. It has been recently reported that Wisconsin’s Governor has decided to appoint the first African-American to the court. In your view, do the press and public focus too much on the breaking of these gender and racial barriers, or is the attention merited and useful? Do you think that a jurist’s gender or race makes a difference in how cases or decided or in how the justice system is perceived? And does it surprise you, for example, when the press reports that your court divided along gender lines in reaching a decision, as happened in 2001 in an article headlined “High court limits dad’s procreation; Justices split on gender lines in child support case“?

“Firsts” that break records or break barriers are events to celebrate. It’s newsworthy that I was the first female justice in the 128-year history of the Wisconsin Supreme Court, especially in light of the fact that the Court declared in 1875 that women lawyers could not even practice before the Court. Justice Louis B. Butler, just appointed to the court by Governor James Doyle, is the court’s first person of color. There is bound to be public interest in and media attention to these firsts.

The composition of the judiciary and court staff affects the public’s perception of the institution. People are more comfortable with and are more trusting of an institution that reflects the rich diversity of our population. Ultimately, however, it is the ability of the judges and the quality of their judgments that are most important. Fortunately, society is recognizing that good lawyers, good judges, and good people need not all look alike.

As far as I know, the article you cite noting the gender split in State v. Oakley, 2001 WI 103, 248 Wis. 2d 654, 635 N.W.2d 760, was the first article of its kind with respect to our court. It was surprising that the gender split in that case was emphasized. Divisions of the court on gender lines are not usual but have occurred occasionally probably before and after Oakley.

2. In April 1999, you won reelection to the court by a decisive margin in a contest that an editorial published in The Milwaukee Journal Sentinel characterized as “the Supreme Court campaign from hell; the political equivalent of death by 1,000 cuts; a black hole of intrigue and stealth, sucking whatever good is left in politics into the mire of negative campaigning.” Four of your colleagues on the court on which you served as Chief Justice publicly endorsed your opponent, and an article published after the election was headlined “High-court race brings reform cries.” To the surprise of some, two years later you spoke publicly about your continued support for judicial elections, and that speech was published as a law review article. Let’s say, hypothetically speaking, that a 51st State is created and you are put in charge of deciding the method for selecting that State’s appellate judges. What method would you select, and why? In your view, is it appropriate for sitting justices to announce a position on whether their colleagues should be elected or defeated at the polls, have you announced your views in that regard with respect to your colleagues’ candidacies, and why or why not? And finally, was it necessary for the Court to use a mediator to overcome the “deep-seated disputes” that arose during your most recent campaign for reelection?

The method for selecting federal judges was debated at the founding of our country. The method for selecting Wisconsin state judges was vigorously debated in the Wisconsin constitutional conventions. Each state has adopted its own method for selecting judges, and the search continues for the “best” method. Wisconsin has always elected its judges. It probably always will because of the state’s deep populist and progressive traditions. We’re comfortable with this system, even though, like all others, it has flaws.

Scholars, lawyers and bar associations have been nearly unanimous in condemning judicial elections; they support the federal system of appointment and “life tenure.” But the federal system isn’t without its own warts. Judge Reinhardt graphically described some of the worst aspects of federal appointments in his 20 Questions interview on How Appealing.

There is no perfect system for selecting judges. No system guarantees the best qualified judges, even if we were to agree on what “best qualified” means. Each selection method has its strengths and weaknesses, and states have evaluated the pluses and minuses of each selection system differently. Nevertheless, over 80% of state trial and appellate judges in this country stand for election of some type.

The method for selecting judges in a particular state–and in your hypothetical new 51st state–necessarily reflects the legal and political culture of the state, as well as its geographical size, population, and media markets. If the 51st state were similar to Wisconsin, I would favor non-partisan judicial elections with “long terms” for the judges. I have reread my NYU article, and I continue (perhaps not surprisingly) to be persuaded by my reasoning. I favor elections because I favor transparent government. Too much of what goes on in the appointment and confirmation process is kept behind closed doors; the public does not have an opportunity for meaningful participation in the process. Ideally, the elective system can also be an educational experience for both the judges and the electorate.

I do not subscribe to the view that elected judges are more (or less) likely than appointed judges to tailor a decision to the wishes of the legislature, the executive, or popular opinion. Experience demonstrates that appointed judges, even those with life tenure, are not free from outside pressures, whether in the selection process or thereafter. Indeed in recent years some life-tenured federal judges have asserted that their independence is being threatened.

No constitutional or statutory safeguards can guarantee judicial independence. The qualities most needed in judges are courage and personal integrity, both of which are indispensable to independence. The stakes are higher for elected judges who do not have life tenure, but the best judges, whatever the selection or retention system, are those who resist threats to judicial independence.

Nevertheless, I recognize problems inherent in the elective system. Low voter turnout and inadequate information regarding judicial qualifications diminish the democratic significance of elections. Issues of campaign speech and campaign financing loom large. See Republican Party of Minnesota v. White. But rather than scuttle elections, we should attempt to minimize the problems and should use elections as vehicles for voter education about the judicial system–especially the core value of decisional independence.

Although Wisconsin justices have and may support candidates for the court, I have never done so. My task is to work with the justices appointed by the governor and elected by the people.

“Deep-seated disputes,” if any, dissipated with their exposure to the “sunlight” of a campaign, an affirmative vote for the sitting chief justice of about two-thirds of the electorate, and a commitment by all members of the court to work for the public good. The “chemistry” on the Wisconsin Supreme Court today is good, the collegiality pervasive, and we’re committed to keeping it that way.

3. The composition of your court has changed quite a bit from what it was in 1999, and only two of the Justices who publicly supported your defeat at the polls continue to serve on the court. Are you pleased with how the court is functioning today as a collegial body, is the court current with its workload, and what additional duties and responsibilities, if any, does the Chief Justice of your court have in comparison with the duties and responsibilities of the other Justices?

The court is current with its workload and is functioning well, although we are always open to changing our internal procedures to improve the system. Each year the court decides about 1000 petitions for review, resulting in about 90 cases on full appellate review. Additionally, we hear attorney and judge discipline cases and petitions for rule making on such matters as the code of judicial conduct, the code of judicial responsibility, and matters of practice, pleading and procedure.

As chief justice, I preside over oral arguments and the court’s adjudicative and administrative conferences. I work closely with the director of state courts and court staff, chief trial judges and district court administrators, and chair or serve on numerous court committees. Under Article VII, � 4 of our state constitution, “the chief justice shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court.”

Although these administrative duties take a tremendous amount of time, they are rewarding. I have made a prolonged effort during my tenure on the court to promote court programs that improve the administration of justice. These include increasing volunteers in the courts, providing assistance to pro se litigants, certifying court interpreters, creating unified family courts, improving the protection of children, developing new opportunities for judicial education within the state, nationally and abroad, establishing legislative-judicial seminars, improving relations among state, federal and tribal courts, and increasing public outreach.

The court’s jurisdiction is statewide. All the justices travel across the state and speak to many audiences. The court has undertaken a significant program of educating students and teachers about the courts, including our court with class sessions and our teacher institutes. We sponsor court “ride-a-longs” for state and local legislators and media and sentencing exercises for media. These are just a few of our outreach programs. You can find them described on our website: Many state courts are engaged in public outreach, and the federal courts are starting their own programs–all to the good of the courts and the people.

4. The U.S. Supreme Court in June 2002 announced its ruling in Republican Party of Minnesota v. White, No. 01-521. By a 5-4 margin, the Court struck down as unconstitutional a judicial campaign restriction intended to prevent candidates for elected judicial offices from announcing views on disputed legal or political issues. Do you view the U.S. Supreme Court’s ruling as a positive development, a negative development, or somewhere in between?

It is still too early to evaluate the impact of White on either elected state judges or appointed federal and state judges. The concern is that White is a threat to an impartial judiciary and will weaken public trust and confidence in the judiciary. Pending and future cases will clarify the meaning and scope of White.

5. One of your former colleagues recently left your court to join the U.S. Court of Appeals for the Seventh Circuit. While she achieved confirmation without much difficulty, that has not been the case in recent years for all nominees to federal appellate court vacancies. As someone who can watch these developments unfold at something of a comfortable distance, 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?

It’s good on a personal level to be “at something of a comfortable distance” from the process, and my interest is academic, not personal. Although much is written about the “horrors” of the elective system, not enough scholarship and attention is devoted to the “horrors” of the federal appointive system and how the President and the Senate can improve the appointive system.

6. What are your most favorite and least favorite aspects of being an appellate judge?

My favorite aspects of being an appellate judge on the highest state court are that I can work on important cutting edge legal issues and resolve them fairly and justly not only for the parties involved but also for the law of the state, that I discuss the judicial system with the public and listen to the people’s concerns, and that I have opportunities to improve the administration of justice. My least favorite aspect of the job is my concern about whether we have given enough time to each case.

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

Chief Justice William Rehnquist. Chief Justice Rehnquist is widely viewed as being exceedingly fair as a chief justice in his relations with each justice and in presiding over the court’s conferences and the federal system. Because I understand the difficulties of administering a court system and the variant interests that are necessarily involved, I have a tremendous respect for anyone that can earn such wide praise. The Chief Justice also has made the time to be an author and contribute to public understanding of the judiciary. Let’s also not forget he is a son of Wisconsin!

8. How did you come to Governor Lucey’s attention as a potential Supreme Court nominee, when did you first realize that you might be interested in being an appellate judge, what concerns if any did you have about becoming the first female to serve on the Supreme Court of Wisconsin, and did any of those concerns prove to have merit?

My first encounter with Patrick Lucey personally was around 1963�64, before he was governor. I was one of the drafters of Madison’s open-housing ordinance making it unlawful to discriminate in the sale or rental of certain real estate on the basis of race. Almost every large realty company in Madison vehemently opposed the ordinance. Pat Lucey of Lucey Realty Co. was the lone realtor of a large company to appear at the city council meeting and publicly support the ordinance. (The proposed ordinance was very controversial; it passed on a tie vote of the council with the mayor casting the deciding vote).

I then met Pat Lucey again in the late 1960s when Madison was in turmoil over the Vietnam War. I was working with community leaders attempting to keep peace in the community and went to Pat’s home late one night to urge him to offer the student community use one of his large vacant neighborhood lots as a garden. He agreed.

That was largely the extent of my interaction on a personal level with Pat Lucey until he appointed me in 1976. We did have a number of mutual friends.

I never considered becoming a judge until I saw my name in the newspaper in 1974 as a possible appointee to the Supreme Court. I did not get that appointment. I got the next one.

Because I do not think my gender negatively affects my ability to do any job I undertake, being a woman did not concern me when I became a judge.

9. The Journal Sentinel in early August 2004 published an article headlined “State’s law students get free pass on bar exam; Despite detractors, age-old privilege likely to remain.” According to the article, Wisconsin is today the only State to confer such a “diploma privilege” on its in-state educated law students, having outlasted the States of Mississippi, Montana, and West Virginia, all of which abandoned similar policies in the 1980s. Why does Wisconsin adhere to this policy, why should graduates of in-state accredited law schools be assured of the ability to practice law in Wisconsin while graduates of other fine out-of-state law schools are not, and what purpose does the bar exam serve in any event?

The diploma privilege makes good sense for Wisconsin. The Wisconsin Supreme Court (in charge of attorney admissions) is very familiar with the two excellent A.B.A. accredited schools in Wisconsin: the University of Wisconsin Law School and Marquette University Law School. Both schools have high standards for admission and graduation. To qualify for the diploma privilege, students must take certain courses (determined by our court as being fundamental) and achieve a certain average score for those courses. In short, we have confidence in the quality of graduates from these two schools.

Those graduates that do move out of state after graduation typically do very well on other states’ bar exams. If there were any indication that graduates from UW or Marquette were less prepared for the practice of law compared with graduates from other schools, we would be the first to look for another system. There are currently no plans to alter the diploma privilege.

For states with only a few accredited law schools, the diploma privilege is a terrific system. In fact, some states are currently considering adopting the diploma privilege. Wisconsin should not be viewed as the last to retain the diploma privilege; I like to think of Wisconsin as the leader on this issue, not the holdout.

Wisconsin does give a bar examination to students who graduate from out-of-state law schools. I have served on the bar examination commission and have taken two bar exams. I do, however, have reservations about the traditional bar examination. I am not sure what the examination measures. Most students from accredited law schools end up passing a bar examination on at least the second attempt. While many law firms reimburse students for costs associated with taking the bar, the bar examination forces students who are already financially burdened to incur additional expenses; the bar exam delays students’ entrance into the workforce while they study for the bar or wait for results.

As is the case with many systems, it is easy to criticize. The question of what is a better replacement looms large but is not easy to answer. The National Conference of Bar Examiners (headquartered in Madison and headed by a Wisconsin lawyer) is experimenting with different types of examinations. Until there is evidence of a better system (except for the diploma privilege of course), states will continue to use the traditional bar exams.

10. Congratulations on having recently begun your tenure as President of the National Conference of Chief Justices. Please explain what that organization exists to accomplish and whether you have any particular goals that you hope to achieve during your year as the organization’s leader.

Thank you. I am quite honored to sit as this year’s president of the Conference of Chief Justices. The organization was founded in 1949 as a means of getting the states’ highest judicial officers together for discussions of issues affecting their respective judicial systems and learning from each other. Collectively we are able to exchange valuable information about current problems and possible resolutions, how various programs are working in different states and in what ways we might be able to improve the administration of justice in our own state. Each of us innovates and communicates.

The past, present and future presidents of the conference work together to achieve continuity of programs from one year to the next. I am therefore continuing the good work of my predecessors in streamlining the structure of the conference, improving our educational programs, increasing communication among the states, reviewing and commenting on the impact of proposed federal legislation on state courts, filing amicus briefs in appellate cases raising issues of concern to state courts, and moving forward with our activities in protecting children, promoting public trust and confidence, working with the federal judicial system, and tackling new and continuing issues in the administration of the criminal justice system.

11. When you joined the Supreme Court of Wisconsin, the state did not yet have an intermediate appellate court. How was your work on the Supreme Court, and the practice of law, different before the Wisconsin Court of Appeals came into existence? And please explain the direct review and bypass procedures that allow a case to come to your court without passing through the Court of Appeals, and how often and in what sort of cases are those procedures used?

The establishment of the court of appeals dramatically changed the work of the Supreme Court. Before the court of appeals, the Supreme Court decided several hundred cases a year and had a substantial backlog–perhaps two years’ worth of cases. Now the Court focuses on the cases that raise significant legal issues of statewide importance and we are able to give those cases more time.

As you mention, we have two procedures, Direct Review and Petition to Bypass, in addition to a Petition for Review and Certification by the Court of Appeals. Both Direct Review and Bypass are rarely used.

Under Direct Review, this Court can reach down and give itself jurisdiction over a case, without any request from the parties or a court. As far as I can remember, the Court has never used this power.

In Bypass, a party to a circuit court case asks this court to hear the case before the court of appeals rules on it. Very few bypasses are requested, and in past years we have granted from zero and two bypasses.

12. 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, isn’t it true that Justices serving on courts of last resort sometimes have little other than their own personal preference concerning the result to guide them in deciding cases?

An appellate judge’s personal and political ideology or personal preferences should not play a role in deciding cases. In many cases I reach a decision that I would prefer not to reach. Nevertheless I feel compelled to reach that decision because of the facts and applicable law.

The justices of the Supreme Court of Wisconsin come from different political, ideological, social, geographical, and economic backgrounds. They bring their varied experiences in their personal lives and in their legal careers to the cases. The justices may have different jurisprudential views about the role of courts and about principles of statutory and constitutional interpretation. These experiences and different views of the law may very well play a role in decision-making. The key requirements of an appellate judge are to have an open mind and read (and check) all the materials submitted.

Decision-making involves judgment. If only one result was possible in every case, we would not need a court of seven persons, one judge would be sufficient. Indeed, we might not need any judges at all. A computer could spit out the decision.

13. You have taught at law schools, 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?

Law schools keep changing their curriculum and practices. That’s good. Law schools ought to be even more innovative and creative. Too many law schools follow other schools instead of making use of their own faculty and student talent and regional interests.

I like the approach taken at the school I know best, the University of Wisconsin Law School. I describe the school’s approach as “eclectic.” Students are exposed to traditional and non-traditional courses and methods of teaching and strong clinical programs. This cornucopia of offerings benefits not only the students, but also benefits Wisconsin’s legal community, the general citizenry, other law schools, and other states.

14. How do you make use of your judicial law clerks, what qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven’t been?

Wisconsin Supreme Court justices (including me) have only one full time, salaried law clerk apiece. We also have the opportunity to collaborate with law school students who, as part of their legal education, work in chambers. Selecting a law clerk for each one-year term is one of the most important decisions I make. I look for people who have strong research, writing and analytical skills and are willing to think and rethink positions and work long hours–all with a sense of humor. I value clerks who have had varied life and work experiences. I have been fortunate to get applicants from law schools all over the country, but would also welcome a more racially diverse pool of applicants.

15. What are the three most important suggestions you have for attorneys concerning how they can improve their written work product filed with the Supreme Court of Wisconsin?

Lawyers should let their briefs “rest” for a week or so and then reread and edit them. Lawyers should ask other lawyers and non-lawyers in their office to read and edit the briefs. Too often lawyers jump right into the legal nuances of the case without explaining, in clear terms, the legal context in which the case arises and they fail to persuade the Court why it should decide in their favor.

16. Similarly, what are the three most important pieces of advice you have for attorneys concerning how they can improve their performance at oral argument?

First, know the record, your brief, and the cases on which you rely. Second, moot the case with other attorneys in your firm or with law students or faculty (a group often overlooked as a valuable resource). In short, practice practice practice! During practice sessions you will probably be asked many of the same the questions the Court will ask. Third, decide the two or three major points you want to make with the court. Keep them firmly in mind and make them at least once but probably several times. These same suggestions are given over and over by appellate judges and they warrant repeating.

17. A couple of years ago, The Journal Sentinel reported on a day when you found yourself “perched in one of Milwaukee’s most detested judicial assignments” filling in for a vacationing judge in small claims court. How did you enjoy your time on the bench at small claims court, and is that something that you might volunteer to do again?

Working as a judge in small claims court was one of the most difficult tasks I have undertaken, but I enjoyed it immensely. I had to hear and decide a case from the bench every 15-20 minutes, usually without the assistance of lawyers arguing the issues. But I got to meet people, hear their problems directly from them, and resolve disputes right from the bench, all while helping people. I’ll do it again even though I know that it will be harder for me to sit a week in small claims court than to sit a week in the Supreme Court. The preparation for small claims court was horrendous. I read numerous statutes, pages of regulations I had never seen before, cases and the sparse case files. I was overwhelmed by the amount of law I needed to master and have readily available, just in case the issue arose. The volume of cases and the tumult of the courtroom was exhausting.

When I first offered to sit in small claims court I was not fully aware of the difficulty of the assignment. I am now wiser and have a much greater appreciation for the work done by judges at all levels of our state’s judicial system.

In keeping with my belief that judges ought to experience the judicial system from different vantage points, I have sat as a juror in both civil and criminal cases and have initiated a program in which Wisconsin court of appeals judges can sit as trial judges and trial judges can sit as court of appeals judges.

18. Are the salaries now paid to state court judges in Wisconsin too low? What should those judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Judges’ compensation in recent years has not kept up with the increase in the cost of living, and serving as a judge is therefore often not attractive to practicing lawyers. Some first year law graduates are paid as much as, or more, than experienced judges. Judges should be compensated reasonably so that judgeships attract good lawyers and are open to people who are not independently wealthy. Judges’ compensation should be in line with the compensation of other state officials, with judges in other states, and with government lawyers. Any compensation system necessarily must reflect the state’s fiscal situation.

19. Your biography shows that you were born and raised, and attended undergraduate and law school, outside of Wisconsin. At what point in your life did you become a resident of Wisconsin, and why? Also, if there is anything else that you would like to say about the quite lovely State of Wisconsin, please feel free to do so now.

My husband and I moved to Wisconsin in 1956 for his post-graduate work at the University of Wisconsin. We left Wisconsin from 1957-60, returned to Madison in 1960, and have been here ever since–more than 40 years. My son, now an attorney in California, was born and raised in Wisconsin.

I am always happy to talk about the great state of Wisconsin. While Wisconsin is often associated with its excellent sports teams and its tourism, it is a wonderful state to live in with a world-class university, a well-educated citizenry, a great history and a strong progressive tradition. Its people have sound values and a strong work ethic, and there is a consistent tradition of good government serving the people.

20. What do you do for enjoyment and/or relaxation in your spare time?

Whatever spare time I have I use to the maximum. I enjoy traveling and have visited much of the United States and all seven continents. I recently returned from a trip to China and Mongolia, where I combined judicial work (lectures) and tourism. The theater, art galleries, museums, and of course, shopping, are also activities I enjoy. My newest, and what promises to be my most consuming, spare time passion is my nine-month old grandson. As my law clerk and others will attest, no one is safe from having to view photos of him and hear about his feats in manipulating finger food.

Monday, August 02, 2004

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 case’s facts!”)

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 authority?”

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, a handbook now a remote derivative from Robert Stern’s original. A set of guidelines on good physical presentation, at, 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 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.

Tuesday, July 06, 2004

20 Questions for Circuit Judge Paul J. Kelly, Jr. of the U.S. Court of Appeals for the Tenth Circuit: “How Appealing” is delighted that Circuit Judge Paul J. Kelly, Jr. of the U.S. Court of Appeals for the Tenth Circuit has agreed to participate in this Web log’s monthly feature, “20 Questions for the Appellate Judge.”

Judge Kelly was born in Freeport, New York in 1940. He attended undergraduate school at the University of Notre Dame and law school at the Fordham University School of Law.

He began the practice of law in New York City but soon relocated to the Roswell, New Mexico area, where he practiced for many years. From 1977 through 1981, he served two terms as a state representative in the New Mexico legislature. Thereafter, he relocated to Santa Fe, New Mexico to become the founding and managing partner of his firm’s Santa Fe office.

In 1991, President George H.W. Bush nominated Kelly to fill one of the two seats on the U.S. Court of Appeals for the Tenth Circuit that Congress added in 1990, when the number of active judges authorized to serve on that court increased to the current total of twelve.

Judge Kelly’s chambers are located in Santa Fe, and the Tenth Circuit has its headquarters in Denver, Colorado.

Questions appear below in italics, and Judge Kelly’s responses follow in plain text.

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

My favorite aspect of being a federal appellate judge is the opportunity to work with some of the brightest judges and new lawyers (law clerks) in the country. We delve into the most interesting issues that anyone who really enjoys the law could ask for. No two days are alike; the variety of cases never ceases to amaze me, from review of federal agency action to federal criminal and civil law to diversity cases.

My least favorite aspect is the isolation from both the bench as well as colleagues located in other states. I enjoyed practicing law and participating in the bar immensely; although I still participate in bar activities and interact with members of the bar, my participation is necessarily more limited.

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

The Honorable George L. Reese, Jr., District Judge of the Fifth Judicial District in New Mexico from 1961 to 1970, is the judge that I most admire. He was, in addition to being a very good judge and a humble person, an excellent teacher. Though he certainly didn’t have to, he made sure a new lawyer wasn’t blindsided; he took the time to educate recent members of the bar who appeared before him, either during the proceeding or in chambers. He demanded preparation and would not settle for less. I would suggest that if judges of today would take the time to be more than judges, our profession would be better for it. Our obligation to train new lawyers and share our skills goes beyond our law clerks, though that surely is a commendable tradition of the state and federal judiciaries. If judges begin to feel “above” those who appear before us, I think we will pay the price–a more contentious judicial system with less accountable lawyers.

3. How did you come to President George H.W. Bush’s attention as a potential nominee to serve on the U.S. Court of Appeals for the Tenth Circuit?

I had been active in the political arena in New Mexico and had worked on the campaigns of several seeking office, including President George H. W. Bush and Senator Domenici. In my own campaigns for the State Legislature, I developed relationships with many state and federal officeholders. The circuit judge position I now hold was newly created; I made inquiry and was fortunate to receive broad-based support. Senator Domenici communicated that support to President Bush.

4. Please explain what led you, shortly following after entry into the practice of law, to relocate to New Mexico, the impact on your career path that the move caused, and the advice you offer others concerning the merits of getting started in the practice of law in a smaller locale?

Having grown up in New York with a father who was a judge (and at one point the administrative judge of his court), I decided I would be better off out from under his shadow. New Mexico seemed like a place where a person could go as far as he or she wished. Not only was it a beautiful state, but also an ideal place to raise a family. I joined a small firm by New York standards. When I left that firm for the court in 1992, it was one of the largest firms in the area with six offices in two states.

There are exciting opportunities and challenges outside the large cities for both career as well as personal advancement. I was able to work nights at the office as needed, but still be home for dinner with my wife and five children. This enabled me to participate more fully in their lives than if I had been commuting to and from the City. I also was able to participate in state and community activities–the ability to contribute to the world around us is important to me and I think it should be to others. As you can tell, I have no regrets.

5. What is your view on whether the Ninth Circuit — which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges — should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best? Also, one proposal under consideration for dividing the Ninth Circuit would involve moving the State of Arizona into the Tenth Circuit. Please share your thoughts about whether, and why or why not, moving Arizona from the Ninth Circuit to the Tenth Circuit ought to occur.

Whether to create a new circuit is a matter of Congressional prerogative and my view is hardly of much moment. Because you asked, and also recognizing and respecting that there are a variety of views among Ninth and Tenth Circuit judges, I’ll answer the question. The Ninth Circuit, with its intra-circuit conflicts and its large cadre of judges, is somewhat unwieldy and it seems to me that all would gain by creating two circuits. There is modern precedent for such a division–the Tenth Circuit was carved out of the Eighth Circuit and the Eleventh Circuit out of the Fifth Circuit. I have heard several proposals for dividing the Ninth Circuit and would not have objections to any of them. Arizona would, in my opinion, be a very logical addition to the Tenth Circuit. Many issues arising out of Arizona are similar to those arising in Tenth Circuit states. Of course, the additional golfing opportunities would be very attractive.

6. A proposed amendment to the Federal Rules of Appellate Procedure would allow citation to unpublished, non-precedential decisions in briefs filed in all federal appellate courts. That proposed rule appears to mirror in substance a local rule currently in effect in the Tenth Circuit. Where do you stand on the question of allowing citation to “unpublished” opinions? Do you believe that federal appellate court panels should be able to designate some of their rulings as “non-precedential” upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why? Finally, has the Tenth Circuit’s local rule caused you to spend more or less time preparing “unpublished” opinions than you previously spent, and has the rule caused your court to treat its unpublished opinions as precedent?

I am not averse to letting parties use whatever authority they can find. Judges are quite capable of deciding what authority may be relied upon comfortably. Although each case is important, some are better suited for developing rules and are thus published and “precedential.” While I believe that parties ought to be able to cite any decision available, I also think that judges ought to be able to designate decisions as precedential or non-precedential. This has two advantages: first, it is useful to the practicing bar, which already has more than enough reading from us; second, it requires the court to consider carefully the precedential nature of its opinions.

Regardless of how designated, I try to ensure that every disposition, whether published or unpublished, is the best that we can do. We engage in the same analysis and review regardless of whether the appeal is pro se or counseled by one of the largest law firms, though the ultimate decision in unpublished cases has been condensed. Consequently, our rule has not caused me to spend any more or less time on any given case.

While our rule states that unpublished decisions are not “precedent,” I look to the analysis and reasoning in those cases to assist me in whatever case I am working on.

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

Let me preface this by saying that I have seen many great briefs as a circuit judge and I continue to be impressed by the quality of most submissions. I do have some suggestions though. First, carefully choose the issues you raise on appeal. Look critically at those issues and if they are marginal and have no real chance of success, either don’t appeal or narrow the issues. Second, having chosen to appeal, develop each issue. Start at the beginning, get to the middle and reach a conclusion. Redundant materials with no apparent organization will lose most readers. Third, proofread your brief (more than once) before you file it. We review hundreds and hundreds of briefs every year; you don’t want us distracted from the merits by missing verbs, misspelled names, incorrect citations, improper grammar or sentences that run for pages. Enough said.

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

Once again, the quality of oral arguments and the commendable level of preparation continually impress me. I appreciate the assistance provided by counsel. My suggestions would be as follows. Consider developing a theme that compliments (but is distinct from) your brief. Time flies, so hit your strongest one or two points–you won’t have time to speed through all the issues. Know the facts of your case and how those facts integrate with the law so you don’t find yourself unable to recall whether a key fact was alleged or proven. You also need to know your case well enough so you can answer a question directly and then flow back into your argument. This can only happen if you have prepared, rehearsed and prepared some more.

9. In researching your court, one of the themes that I found regularly repeated was the court’s very high level of collegiality, a trait that would be welcome, but is not currently always found, throughout the entire federal appellate court system. What to your mind distinguishes the Tenth Circuit from the rest of the federal judicial system, and do you think your court’s relatively low profile in the minds of political operatives at the national level has helped in gaining the confirmation of four judges during George W. Bush’s tenure as President?

While I have enjoyed sitting with other courts, naturally I think the atmosphere on the Tenth is exceptional! So far every judge who has come to our court, regardless of background or philosophy, has made a conscious effort to get to know colleagues and to socialize when we sit together and at other times during the year. Collegiality is a product of respect before disagreement (and we do disagree on some issues). It takes real effort on the part of each judge to maintain collegiality. But the rewards far exceed the gains. I think that all of our judges really look forward to going to court terms and functions.

The four new judges on our court are exceptional in their own right. Though some would like to politicize the process, it bears noting that the Senators from the Tenth Circuit states (from both sides of the aisle) lined up behind them.

10. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as “pragmatic.” How would you describe your judicial philosophy, and what sort of cases do you find the most difficult to decide?

I would like to think that it would be difficult to place me in any particular category. Let me explain why. As a lawyer, I had an extremely broad spectrum of clients, from indigents to Fortune 500 companies, and a general practice, from cases involving cattle rustling to public utility regulation. As a result, I simply try to decide each case that comes before me based on the applicable law applied to the particular facts of the case.

The most difficult cases for me are death penalty cases, both federal and state collateral attack. Regarding state death penalty sentences on collateral attack, we have a limited standard of review and must pay deference to most state court determinations. That said, it is quite traumatic to allow someone to be executed when it is evident that, while the person is probably guilty, the lawyering was not up to my standards, but it met the constitutional minimum.

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, and what if anything realistically can be done to improve the nomination and confirmation process?

Judges reach the court via different routes and from different backgrounds. We don’t decide cases in a vacuum. But a judge’s personal and political leanings should play no role in deciding a case. It is completely inappropriate to decide cases based solely on one’s own personal preferences.

Having said that, I have yet to see a judge rule on a matter based largely on personal preference in my twelve plus years on this court. I am troubled that some involved in the confirmation process apparently do not recognize that good lawyers, by education and training, can become judges and fairly consider controversial cases and not be co-opted by one side or the other. The lower federal courts write against a rather prominent backdrop of statute and precedent. It is out of line (particularly for attorneys) to suggest publicly that, because a nominee argued on behalf of a particular client or position, he or she could not objectively decide a case in favor of an opposite position. It is equally specious to suggest that because a judge in a particular case came down on one side or another, he or she would favor that side forever more.

My concern with the current tenor of the confirmation process is that the process has become divorced from reality. The issue ought be whether the nominee is a first-rate and productive lawyer and a person of integrity, regardless of personal philosophy. If those were the criteria, a fair, competent and balanced judiciary would be assured. As the confirmation process becomes more contentious (and the ostensible concerns become more shallow), I fear that stellar potential nominees will not subject themselves to it and our federal judicial system will suffer.

Politicizing the confirmation process erodes respect for the judiciary by implying that what cannot be achieved legislatively may be achieved through judicial selection. The Constitution never intended that. Unfortunately, unless those on both sides of the aisle who “advise and consent” recognize the larger need for objectivity in the process, nothing realistically can be done to improve the process.

12. 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?

Although the salary may seem generous to the person on the street, I think almost all who know the facts would be persuaded that the salary paid to Article III judges is too low. An important tradition of the federal judiciary is its wealth of experience. Most recruited to the federal bench have spent many years acquiring broad-based experience in the legal system; nominees are at the peak of their earning capacities. Unless independently wealthy, they may very well forgo public service in the form of a judgeship because of the salary reduction it entails. Ultimately, the federal judiciary will be the worse for it. It is in the best interest of the country to have a stable, productive and diverse federal judiciary.

As anyone who follows the trends realizes, our term law clerks that serve for about one year after law school often receive starting salaries in the private sector that equal or exceed our own. University presidents and deans of top law schools command far higher salaries. Given the tremendous responsibility entrusted to federal judges and their accomplishments, I would suggest that the salary should be commensurate.

Congress should recognize that the people who we want to be judges are at the top of their profession and will make a contribution for decades. No one suggests that the salaries can (or should) equal those paid to top lawyers in the private sector, but the salaries need to be in line with those at the top of the public and academic sector where the mission is public service. As has been suggested, a commission to recommend salaries to Congress ought to determine objectively what is fair and just in this area. Once salaries are set, periodic and automatic adjustments for inflation would go a long way toward preventing a recurrence of this problem.

13. In what ways, if any, does having served as a state legislator influence your work as a judge?

Being a state legislator taught me how to read a bill. It also reinforced my strongly held belief that legislators make the law codified into statute, not judges. Finally, it reinforced my reluctance to read much into legislative history, given the myriad reasons why legislators vote for a bill. No one guarantees that a bill passed and signed into law will not be what some consider ill-advised or even absurd, but it is not the place of the courts to “fix it.” Along that line, my legislative experience has made me cautious about superimposing the court’s will for that of the people expressed through their duly elected representatives and executive.

14. Your father served as a trial judge in the New York State court system, and I understand that it was similarly your ambition to be a trial judge. Please explain the extent to which you have been able to serve as a trial judge by designation on the U.S. District Court for the District of New Mexico and how you have managed to fit that additional judicial service into your workload as an appellate judge?

It was my ambition to be a trial judge. As a practicing attorney I tried cases, all kinds of cases, all of the time. After joining the Court of Appeals and seeing how understaffed and overworked the district judges were, I began to offer my services as my schedule permitted and as needed. Though I have sat in several districts, my work now is confined mostly to New Mexico, having been “placed in the assignment wheel.” I now carry a trial load equal to about 25% of what a senior district judge in New Mexico handles. How do I handle a dual caseload? As I tell my law clerks, “That’s why God made nights.” My clerks enjoy the opportunity to work on district court cases that culminate in a trial or hearing, and both my appellate docket and my district court docket are completely current.

15. I understand that you have long served as a volunteer firefighter and EMT, and that you are now the oldest active volunteer firefighter in your town. Are there any interesting stories you can share concerning these activities, how did you become involved in these activities, and why do you continue to pursue them?

Everyone needs a second childhood. I am in the eighteenth year of mine as a firefighter/EMT. There are millions of stories in this city–in my other life (as a firefighter/EMT) I have seen life as few judges have. I have worked structure and wild land fires, fatal car accidents, shootings, overdoses, suicides, domestic violence and the like. As you probably know, EMTs interface with law enforcement. Sometimes when I preside as a trial judge, a police officer will keep looking at me and I know that he’s thinking “I know him from somewhere,” but he can’t make the connection. Or sometimes, as an officer leaves the witness stand, it suddenly dawns on him where he has seen me and he will say, “see you later, Paul.”

I’ve even had professional contact with my children in my capacity as a firefighter/EMT. One night, I responded to a call involving a patient whose injuries from a very severe car accident and fire necessitated that she be airlifted to the University of New Mexico Trauma Center, sixty miles away in Albuquerque. We arranged for the transport, and the treating physician on the other end was Dr. Paul Kelly (my son), then a resident surgeon. When I told my wife, she said the patient had to survive–she had a Paul Kelly on either end of her treatment. Yes, the patient survived.

I live outside the city limits of Santa Fe and all fire and emergency medical service is volunteer. Having always been interested in both types of service and not realizing the hundreds of hours of training required, I just volunteered. I have to put in more hours of continuing education to keep up my EMT license than I do for my law license, but I think it is worthwhile.

16. You served on the three-judge Tenth Circuit panel that considered Timothy McVeigh’s appeal from his judgment of conviction and death sentence. Because that case involved a direct attack on the federal government and the federal judiciary, did it present unusual challenges on a personal level? And what do you recall your reaction was, assuming you had one, to news reports that issued shortly before the date on which McVeigh’s death sentence was to be carried out that the federal government had uncovered a significant amount of additional evidence that it should have turned over to McVeigh’s defense attorneys before trial?

The McVeigh case was a tragic case for all involved. I did not feel any particular challenges on a personal level other than the challenge to get it right. The panel took each motion as it was filed and I feel confident that each was handled correctly. I make it a point not to listen, view or read news reports of cases in which I am involved.

17. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven’t been? Also, how if at all did the new “Law Clerk Hiring Plan” change for better or worse your experience in hiring law clerks who will be reporting to work in the fall of 2004?

Like all federal judges, I try to hire the best and the brightest. Apart from solid academic achievement, demonstrated writing ability and the ability to complete tasks on time, I also look for well-rounded individuals who are fun to have around. After all, my clerks are about my only professional associates in Santa Fe, so I really do not want sad sacks. I have had a good cross section of applicants and those selected have served with distinction, but I would like to see more applications from groups who are under-represented in the legal profession. Perhaps Santa Fe, New Mexico is too far out in the country, but I have always encouraged all who are interested to apply and do so now.

Some aspects of the new “Law Clerk Hiring Plan” I like. Waiting until the completion of two full years of law school has been good because it allows me to get a more representative view of academic performance. From the beginning I told all who would listen that, beyond that, I will not go. While an applicant can go to Los Angeles or New York, Chicago or Boston, without much difficulty, you just don’t “run over” to Santa Fe, New Mexico. Consequently, I take applications after the completion of two years of law school and will interview anytime during the summer, as opposed to waiting until after Labor Day. This saves the applicant considerable expense and permits me to manage my workload and run my chambers efficiently.

18. Word is that you sometimes ski and go on hikes with your law clerks and that you throw a memorable St. Patrick’s Day celebration. In what ways does a clerkship in your chambers differ from what law clerks might experience if they were working for a different boss or somewhere other than Santa Fe, New Mexico?

The question says it all. I enjoy my law clerks and my chambers are sixteen miles from a very good ski area, thus the occasional one-half day ski outing. I am also about 10 miles from several golf courses and thus the occasional golf outing. Santa Fe is a great place to live and although we all work hard, we try to have a little fun. I would hope that other judges, in their own way, enjoy having an occasional outing with their clerks, too.

As for our St. Paddy’s day party, let me say that as you climb the hill to my home from the road below, the clear notes of the bagpiper echoing across the valley bring back memories of the Emerald Isle. ‘Tis a fine occasion with a few hundred of our closest friends.

19. A law review article titled “Who Would Win a Tournament of Judges?” lists you as one of the most frequently cited judges now serving on this Nation’s federal appellate courts. Does this information come as a surprise to you, and why or why not? Also, which of your own opinions do you find most memorable?

I was quite surprised to be told of the article. I have never thought much beyond the particular case I was working on, but I am pleased that others may have been helped by my opinions.

Since the day I joined the court, I have tried to craft concise opinions that will be useful to the practicing bar and the district courts–both need to keep current, and I do not want to add to that burden. In that regard, my most memorable opinion of late has been Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir.), cert. denied, 124 S. Ct. 533 (2003), discussing the importance of an evidentiary hearing to resolve Daubert objections to expert testimony.

Law clerks tend to have a more expansive view of what needs to be said given their recent academic experience, and I have resisted that approach. In that regard, Senior Judge Robert H. McWilliams of the Tenth Circuit serves as a model–I was impressed with the brevity and clarity of his opinions when I practiced law–I have even more respect for those qualities now that I am performing the same task.

20. What do you do for enjoyment and/or relaxation in your spare time?

In my spare time, in addition to my volunteer efforts, I enjoy playing classical piano and a baroque recorder. I am always reading a good book. I like to hunt and fish. I ski, hike and play a little golf. My wife and I also enjoy camping and traveling to see our five children (two physicians, a college professor, an attorney and a professional dancer) and our ten (to date) grandchildren.

Monday, June 21, 2004

20 Questions for Justice William W. Bedsworth of the California Court of Appeal for the Fourth Appellate District, Division Three: “How Appealing” is so very pleased that Justice William W. Bedsworth of the California Court of Appeal for the Fourth Appellate District, Division Three, has agreed to participate in this Web log’s monthly feature, “20 Questions for the Appellate Judge.”

Justice Bedsworth was born in Long Beach, California in November 1947. He earned his bachelor’s degree cum laude from Loyola University of Los Angeles in 1968 and his law degree from the University of California at Berkeley (Boalt Hall) in 1971. Following law school, Bedsworth joined the Orange County District Attorney’s Office, where he served as a line deputy, felony trial deputy, appellate attorney, and finally as managing attorney in charge of the office’s appellate division. While serving as a prosecutor, he was twice chosen as president of the Association of Orange County Deputy District Attorneys and twice elected to the Board of Directors of the Orange County Bar Association.

In 1986, Bedsworth was elected to fill an open seat as a trial judge on the Orange County Superior Court. He was reelected in 1992. In February 1997, Governor Pete Wilson appointed Bedsworth to the California Court of Appeal. Voters retained Justice Bedsworth in 1998 for a term that will expire in 2010.

Justice Bedsworth’s always very funny monthly column, “A Criminal Waste of Space,” appears in over a dozen publications. American Lawyer Media has just published a collection of those essays in a book titled “A Criminal Waste of Time,” making Bedsworth the author of two books. And if all that were not enough to keep one person fully occupied, Justice Bedsworth also serves as a National Hockey League goal judge at all Mighty Ducks home games and at selected road playoff games.

Questions appear below in italics, and Justice Bedsworth’s responses follow in plain text.

1. You first came to my attention as a result of your wonderfully entertaining monthly column, “A Criminal Waste of Space,” published in the Orange County Lawyer Magazine and now syndicated nationwide via American Lawyer Media. When did you begin the column, and, beyond your tagline of “He writes this column to get it out of his system,” perhaps you can explain more fully why you began the column and have continued to write it? Has the success of your column come as a surprise to you? Do you feel any pressure to make your opinions as entertaining as your columns (or vice versa)? Finally, does it cause you any concern that you may be better known nationwide due to your hobby as a columnist than because of your day job as an appellate judge?

Thank you for the kind words. I really do write the column to “get it out of my system.” I’ve always enjoyed making people laugh, and it’s become a big part of my ego support system, but I’ve chosen professions that don’t allow for much laughter, so the column serves as a safety valve. It keeps me from writing, “Your $3 million judgment is reversed, but did you hear the one about the nun and the rabbi and the parrot?” If you keep that in mind, it’s less surprising that my opinions are rarely intentionally funny, something I hear remarked upon often.

I’ve been writing the column since 1981. It helped get me elected to the bench after I turned out to be way too conservative for an appointment by democrat governor Jerry Brown and then way too liberal for appointment by republican governor George Deukmejian. A lot of local lawyers I’d never met told me they supported my election because they were willing to take their chances with me after reading the column.

Governor Pete Wilson’s appointments secretary asked for a copy of my first book while I was under consideration for this job, and later told me he enjoyed it. And I’ve met a lot of very nice people through the column. So, while it sometimes bothers me, it would be churlish to gripe that people think of me more as the guy who writes the column than the guy who wrote the gay jurors opinion or the lawyer malpractice opinion or any of the others I�m proudest of.

And yes, its success surprises me. Every month.

2. What qualifications must someone possess to serve as an NHL goal judge, when did you first become involved in the sport of hockey and begin serving as an NHL goal judge, and how many games do you typically work during the NHL regular and post seasons? In what ways do you wish your work as an appellate judge was more like your work as a goal judge, and in what ways do you wish that your work as a goal judge was more like your work as an appellate judge?

The goal judge job is a lot like my day job: You’re expected to start out perfect and then improve with experience.

Judging is judging. Both jobs require me to show up, pay attention, and give my opinion. The main difference is that if I make a mistake in an opinion, the Supreme Court lets me know about it a couple of years later, and only a small number of colleagues and practitioners know about it (Supreme Court reversals do not include the names of the appellate panel); if I make a mistake at a hockey game, videotape replay determines it immediately and it is announced via loudspeaker to 16,000 beer-drinking fans.

3. Would hockey fans be correct in thinking — in an age of four on-ice officials, instant replay, a replay official, and cameras in the goal — that technology already has or is about to make the position of goal judge obsolete? And on a related note, in your letter opposing proposed Federal Rule of Appellate Procedure 32.1, you were critical of lawyers who would substitute technological skill for good, old-fashioned legal reasoning. Do you foresee a time when technology might likewise threaten to make appellate judges obsolete, and what are your concerns and/or predictions in that regard?

Wow, that’s a lot of ground to cover in one answer. The goal judge’s job is already obsolete. The on-ice officials and videotape replay can do it 99% of the time. The only reason it still exists is political: America has already hijacked the NHL from the Canadians (Winnipeg and Quebec City lost franchises they supported handsomely to Denver and Phoenix, and the western Canadian teams are hanging on by their financial fingernails), and they’re understandably touchy about any changes made in “their game.” Tradition includes goal judges, so the NHL includes goal judges. But probably not for long.

The second half of your question defies segue, so let me just say my position on FRAP 32.1 was not a Luddite one. I am very much in favor of technological skill in advocacy and technological advancements have made my research much easier and — I hope — much more complete.

What I am opposed to is a system in which there are literally hundreds of citable opinions on any issue, and attorneys and judges are reduced to searching all of them — and presumably billing their clients for that search — for the one that is “on all fours,” rather than finding the best-reasoned opinions from a much smaller sample, and explaining to a judge why they’re the best reasoned, why the differences between them and the instant case should not be determinative, and why the result of their application is wise and just. I feel the system is better served if there are five citable opinions and all the parties have time to analyze and consider them, than if there are 105 and all we argue about is which ones are closest to being exactly the same.

Reasonable minds will differ.

4. There was a time when California’s state courts were perceived throughout the Nation as a source for wacky legal rulings, in the same way that some today perceive the U.S. Court of Appeals for the Ninth Circuit. Based on your more recent experiences traveling outside of California, have you found that California’s state appellate courts are today perceived more favorably than they once were, and if so to what do you attribute that change in perception?

Plaintiff’s “wacky” is often defendant’s “visionary.” That hasn’t changed. It’s largely a matter of whose ox is being gored. But when I spoke in Alabama a few years ago, I told them I recognized it as an historic occasion. It was, I am reasonably sure, the first time anyone from Alabama had ever asked anyone from California for his opinion about anything.

5. Division Three of the Fourth Appellate District has been called the most liberal Court of Appeal in California. What was it like for you, a former prosecutor appointed to that court by a Republican governor, to join an appellate court that had been dominated by appointees of Governor Jerry Brown? And do you think that the press and the public have an inaccurate understanding of the role that politics plays in the decisionmaking process of an appellate court, and if so what role does politics play, and what role should it play?

The more I try to deal with these questions, the more impressed I am that your earlier interviewees were able to be so concise. I’m not.

I guess the best way to answer your question is to tell you that my two best friends on this court in my first five years were Dave Sills (a moderate Republican once married to Maureen Reagan) and Tom Crosby (a fire-breathing liberal whose depth of commitment made Bill Douglas look wishy-washy). We sat on at least a dozen cases a month together and in five years I ended up on the opposite side from Crosby ten times and on the opposite side from Sills eleven times. And my most recent reversal by the state Supreme Court was a premises liability case in which I wrote an opinion in which a democrat sided with me enthusiastically and Sills wrote what the pundits like to call a “stinging dissent.” Regardless of personal politics, our job is to determine what the law is, not what we want it to be.

While we have a long history in this country of making fun of legislators, they have access to a lot of expert opinion, they generally try hard, and most of what they do makes sense — regardless of your politics. So the political makeup of a panel at the intermediate appellate level is seldom critical. The reason that seems counter-intuitive is that the occasions when it is critical tend to be spectacular.

6. Division Two of the Fourth District has received nearly uniform raves for its practice of issuing tentative opinions before cases are argued. What are the pros and cons of this practice as you see them, why has Division Three, on which you serve, not adopted the practice yet, and do you think that Division Three should or will adopt the practice?

It would be inappropriate for me to comment on the administrative procedures of another court. They have developed a unique system. Having never appeared in or sat on their court, I would be among those least qualified to comment on it.

7. Under California law, parties on appeal are entitled to oral argument as a matter of right. As an original matter, would you prefer a system in which the litigants determine their own entitlement to oral argument or in which the decision whether to argue a case resides with the judges assigned to decide the case, and why? Also, in what percentage of cases do you find oral argument helpful to the decisionmaking process, and in what percentage of cases has oral argument caused you to change your vote on the outcome of an appeal?

Oral argument is the hardest and least productive part of my month, and if I were left to apportion it out, I’d likely deny it to some parties who should have it. “The spirit is willing, but the flesh is weak.” So the parties should decide whether they want argument. (See, People v. Pena (2004) 32 Cal.4th 389 [right of appellate litigants to argue].)

And, at the risk of being branded a quisling by my colleagues, I strongly advise against waiver of oral argument unless you’re just flat out no good at it. I can’t give you a percentage, but I know there are a lot of cases (keep in mind, I hear 30 a month) in which oral argument changes the outcome. It may not be a reversal-to-affirmance change. It may be something less significant. But after all the work you’ve put into getting to the Court of Appeal, even a small victory is better than none at all.

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

Benjamin Curtis has been lost in the history of the United States Supreme Court because he was there only a short time (1851-1857) and wrote nothing historic. But I can’t think of any jurist whose record I consider more admirable. He not only dissented from the Dred Scott opinion, but felt so strongly about the injustice of the opinion that he resigned from the court. That redefines “strength of character” in my book. A decade after leaving the Court, he served as defense counsel at Andrew Johnson’s impeachment trial, another job ill suited to the faint of heart.

This is a guy who clearly did what he thought was right and let the devil take the hindmost. I’d be prouder of either of those actions than anything I could write.

9. How would you describe the typical quality of the appellate briefs that you receive, and what advice do you have for lawyers on how to improve their briefs and make them more useful to the court?

The “typical” quality of the briefs I receive is good. I put “typical” in quotation marks because the quality varies so much in civil cases that it’s hard to generalize. In criminal cases, both sides are represented by appellate lawyers: the Attorney General’s staff and — usually — our appointed appellate panel, so the quality is pretty uniform. But in civil cases, we get work that runs the gamut from brilliant to wholly inadequate. And since my civil background has been developed entirely as a bench officer, those latter are very hard for me to deal with effectively.

10. The California Board of Legal Specialization is authorized to certify lawyers as “appellate specialists.” In your experience, is the appellate work of lawyers who have qualified as certified appellate specialists superior to the work of lawyers who have not so qualified? And, more broadly, what is the purpose of allowing such a specialization, and do you believe the purpose is being achieved?

Our state’s certification process for appellate specialists is meant to address the concerns voiced above. Any lawyer should be able to write an adequate brief. But just as you would expect an antitrust specialist to handle antitrust issues better than a probate lawyer, you expect appellate specialists to write generally better briefs than non-specialists. And, they tend not to misstate the standard of review or miss deadlines. I’m generally in favor of specialization for professionals, although I’ve seen brilliant briefing and advocacy by non-specialists.

11. How would you describe your own judicial philosophy? And would it trouble you more to apply a rule that you believe is generally just but that in the case before you produces an unjust result or to apply a rule that you believe is generally unjust but that produces a result in the case before you that you believe to be correct?

I wasn’t elected to make laws and I wasn’t elected to pass on their wisdom. My job is just to figure out what they say and decide whether that violates a constitution. If I had wanted to change the laws or make the world a better place, I could have run for the legislature. Having not done so, my ability to change what they do is limited to lobbying and grousing. If I forget that, I violate the trust reposed in me and I make myself and everyone else very unhappy.

I believe the law rarely leads to an unjust result if properly applied. If my analysis of the law leads me to an unjust result, I go back to square one and try to make sure I didn’t do something wrong in interpreting or applying it. If it’s still unjust, I have a responsibility to say so in my opinion, but I cannot change the holding. I don’t get to change the law just to arrive at what I perceive to be a good result in an individual case. I hate it when that happens, but I’m paid well to swallow hard and follow the law.

12. What opinion or opinions that you have written as an appellate judge do you find most memorable? And what is your track record in cases where you have written an opinion and the Supreme Court of California has granted review, and what if anything does that track record reveal?

I’m not sure what my track record is in our Supreme Court and would consider it a waste of time to find out. Offhand, I can think of two I won and three I lost, but those only come to mind because they were cases I cared a lot about; I’m sure there have been others I’m not recalling.

I’m in an intermediate court of appeal. I take my best shot at getting it right and move on. If I start worrying about whether our Supreme Court will agree with me, I not only complicate my work, I pollute it. Wilt Chamberlain was quite proud of never having fouled out of a game. Having watched — and rooted for — Wilt, I can tell you that once he got five fouls, he was useless defensively because he was less interested in winning than he was in not fouling out. Like Wilt, if I worry too much about being whistled down, I fail to do my job.

While I hate to make mistakes that cost the state and the parties time, money, and energy, I’m paid for my opinion. And if I don’t give it — if I start worrying about whether the Supreme Court will agree or disagree — I short-change the people who entrusted this job to me.

Besides, as Tom Crosby used to say, “All my best work gets reversed.” I’m especially proud of a case I wrote five years ago, defending the right of the court to control the grand jury. But the prevailing party imprudently argued it to the California Supreme Court as a case extending the right of the press to access to grand jury information and it was reversed. If you try to anticipate and prevent that kind of thing, you’ll lose your mind.

In addition to that opinion and the recent premises liability reversal mentioned above, I am probably proudest of my opinions in People v. Garcia (2000) 77 Cal.App.4th 1269 [gay or lesbian jurors constitute a cognizable class whose exclusion from the jury venire resulted in a jury which failed to represent a cross section of the community] which prompted a change in California law (See Code of Civil Procedure � 204; “It is the intent of the legislature to codify the decision in People v. Garcia“) and People v. Perez (1998) 30 Cal.App.4th 900, which included a footnote I’m told has kept a lot of people with Hispanic surnames from being unjustly incarcerated.

I’m not in the job to leave a legacy; I just want to get as many as possible right. I don’t publish much because I believe we already have so many cases on the books as to make the law unwieldy. But every so often you turn out something requiring publication that you’re particularly fond of for one reason or another. “A small thing, but mine own.”

13. What qualities do you look for in deciding whom to hire as a law clerk, and what qualities or traits other than a strong academic background are important to you?

Our research attorneys are not newly minted lawyers, but career employees. That’s one of the strengths of California’s system. When I have a question about the real world consequences of an opinion I’ve written in an area of the law I did not practice in, I can usually find a staff lawyer with the background to help me. The lawyers primarily responsible for educating me include one who was a successful civil litigator for a dozen years, one who taught law at Wake Forest and USF, and a former law review editor who was a criminal practitioner for seven years. My hope is that I won’t have to hire any others because these three are dynamite.

We bring aboard volunteer externs from law schools year-round. The primary criteria are good grades and an impressive writing sample.

14. Notwithstanding your opposition and the opposition of many other judges and lawyers based within the geographical boundaries of the U.S. Court of Appeals for the Ninth Circuit, the Advisory Committee on Appellate Rules of the U.S. Courts voted 7�2 in favor of a proposal that would allow citation of non�precedential rulings to all U.S. Courts of Appeals. Did the committee’s action, or the margin of the outcome, surprise you, and if so why? Don’t the uniformly positive experiences of those federal appellate courts that have already been following the proposed rule demonstrate that concerns about the rule are overblown? And what role if any did Ninth Circuit Judge Alex Kozinski play in recruiting you to write in opposition to the proposed rule?

I was not surprised by the vote on Proposed FRAP 32.1. I don’t have enough information about what’s going on in the federal courts to be surprised. As for Alex Kozinski’s role in my involvement, if you see your neighbor trying to put out a fire, your instinct is to reach for a hose. I reached for a hose.

15. On a somewhat related note, how did you achieve the good fortune of having Judge Kozinski write the introduction to your new book, how are sales of the book going, and is the book available for purchase at bookstores or is it only offered for sale online via

The book — thank you for asking — is going well, at least by my standards, which pretty much boil down to having someone who does not share my surname read it. It can be purchased at Amazon, though they swallow up a lot of the profits, or online at We should be getting it into some law school bookstores in the near future.

Alex Kozinski wrote the foreword because I asked him to. Although I’ve never met him, he seems to be a very nice man.

16. You have served as both a trial court and an appellate court judge. What aspects of each judgeship did you find preferable? And if the President of the United States were to call and offer you the choice between being nominated to serve on the federal district court or the U.S. Court of Appeals for the Ninth Circuit, which job would you prefer, and why?

I loved being a trial court judge. In exchange for calling “safe” and “out” occasionally, I got to watch some great ballgames for free. I got to associate with lawyers on a regular basis and I got to do work I thought was important. That’s a good deal. And I thought I was good at it, which is critical to job satisfaction.

But the job of an intermediate appellate court officer is absolutely the best one in the system — especially if you like to write. You have time to wrestle with the really difficult issues and staff to help you. You don’t have a jury waiting in the hallway while you try to pull legal rabbits out of factual hats in twenty minutes or less. And you have two colleagues working with you on every case and a state Supreme Court acting as your backstop so you don’t have to chase down every ball you miss.

You’re apparently the only person interested in me for federal court. Which is just as well. At my age, I couldn’t hack the learning curve.

So I’m here for the duration; they’ll have to hire someone to haul me away.

17. Speaking of the Ninth Circuit, what is your view on whether that federal appellate court is too large and therefore should be divided into two or more smaller circuits? And what are your views on a proposed division of the Ninth Circuit that would put northern California under the jurisdiction of a different federal appellate court from southern California?

As a general rule, northern Californians are in favor of anything that will separate them — physically, emotionally, procedurally, substantively, or metaphysically — from southern Californians. Those of us down here in socal don’t feel that way. I’m no exception. I don’t see a need for breaking up the Ninth Circuit, but — inexplicably — you’re the only person who seems to care how I feel about it.

18. Prosecutors often remark that sometimes their worst enemy on the appellate bench is an ex-prosecutor. (The “we never did it like that when I was a D.A. syndrome.”) What do you think of this adage?

I was a prosecutor for 15 years. I turned down offers to go into criminal defense work because prosecution was all I wanted to do. For one thing, the job description was miraculously simple: Give the guy a fair trial. That’s it. That’s the whole job. Not conviction, not maximum sentence, not re-writing the Penal Code. Just giving people fair trials.

Prosecutors who remember that greatly enjoy their jobs. They never have to argue anything they don’t believe in, they get to work with great people and do important work, and they have time to spend with their families. Prosecutors who forget it, who don’t trust the system and feel the need to “bend” the rules for the “greater good” find out that the adage you quote is absolutely correct: ex-prosecutors are their worst enemies. We know cheating when we see it, we see through the excuses for it, and we know how great is its potential to pollute the system. Nothing in my job disturbs me more than a well-founded prosecutorial misconduct argument. I’m fortunate to work in a jurisdiction where I don’t see many of them.

19. You may be the very first, and still the only, federal or state appellate judge to have his or her own Web log. How did you decide to become a blogger, and what is your relationship with the law firm that hosts the site? Do you anticipate that someday you might use the site as something other than merely a place to post your monthly column? Finally, do you regularly read any blogs, and if so which ones?

My relationship with J. Craig Williams, who hosts his own web log (, is that he is a very good friend who now hosts my blog, and is featured prominently on my conflicts list. Craig introduced me to blogging, and, though I can’t spend as much time as I’d like on blogs other than his and yours, it’s absolutely staggering how many people do. I get more response from any mention of me in blogs than I do from my paper-published material. If I win the lottery and can retire, I plan to do a lot more blogging.

20. What do you do for enjoyment and/or relaxation in your spare time (assuming you indeed have any)?

Spare time? Not a concept I’m familiar with.

I’ve been an NHL goal judge for 11 years. That�s about 160 hours a year (Imagine what you’d do with an extra four work-weeks). The column and the production of training videotapes for police officers (essentially, “How NOT to Violate the Law”) require a great deal of time. I love golf, softball, and country music and don’t have the discipline to cut down on any of them.

I have a sixteen-year-old daughter who is more fun than anybody should be allowed, and two grown children who, like the youngest, cause me to use up a lot of time thinking proud thoughts. And I have a nonpareil wife who shares virtually all my enthusiasms (except fantasy baseball, which she refers to as “baseball porn”) including the law. She’s an excellent attorney and a better friend.


1. With the possible exception of Cooley v. Board of Wardens (1852) 53 US 299.

2. Under California�s system, after I was appointed, I stood for election.

3. Think about that. They NEVER have to argue anything they don’t believe in. How many other lawyers can say that?

Monday, May 03, 2004

20 Questions for Judge Richard B. Teitelman of the Supreme Court of Missouri: “How Appealing” is pleased that Judge Richard B. Teitelman of the Supreme Court of Missouri has agreed to participate in this Web log’s recurring monthly feature, “20 Questions for the Appellate Judge.”

Judge Teitelman was born in Philadelphia, Pennsylvania. He earned his bachelor’s degree in mathematics from the University of Pennsylvania in 1969 and his law degree from Washington University in St. Louis in 1973. He worked as a solo practitioner until 1975, when he joined Legal Services of Eastern Missouri — an organization that seeks to assist individuals who cannot afford to hire lawyers in civil matters — where he worked for 23 years, including 18 as executive director and general counsel. While at Legal Services, Teitelman received The Missouri Bar President’s Award and the American Bar Association’s Make a Difference Award.

In 1998, Governor Mel Carnahan appointed Teitelman to the Missouri Court of Appeals, where Judge Teitelman served until February of 2002. In February 2002, Governor Bob Holden appointed Judge Teitelman to the Supreme Court of Missouri. Judge Teitelman is the first legally blind judge to serve on Missouri’s highest court, and also the first Jewish judge to serve on that court. In addition to his judicial responsibilities, he currently serves as chair of the American Bar Association’s Commission on Mental and Physical Disabilities Law and as an executive member of the American Judicature Society. The Washington University School of Law has awarded to Judge Teitelman the Distinguished Alumni Award, and he currently serves as jurist-in-residence at that law school.

Judge Teitelman’s chambers are located in St. Louis, Missouri, and the Supreme Court of Missouri has its headquarters in Jefferson City, Missouri.

Questions appear below in italics, and Judge Teitelman’s responses follow in plain text.

1. What caused you, first, to want to become a lawyer and, later, to decide to join the judiciary, and how were you able to overcome the obstacles, if any, that your disability presented on your career path? In particular, the job of an appellate judge is said to involve endless reading. How does someone who is legally blind manage to accomplish that?

I became a lawyer so that I could help poor people with their problems. I became a judge to try be just and fair on the judiciary.

With respect to overcoming obstacles due to being legally blind, I have a compensation — a very good memory. My law clerks read briefs and other materials to me, and I remember most of what they read to me.

2. As someone who has attained a position of great distinction in the legal profession, and as an advocate for people with disabilities, what changes if any do you believe are necessary in the law, the culture of the legal profession, or society in general to enable more people with disabilities to become, and succeed as, lawyers and judges?

I believe our society is far better off when everyone is given the opportunity to reach their potential regardless of their challenges due to disabilities. For example, except for flying a plane or driving a car, blind people can do almost anything else sighted people can and should not be denied opportunities.

3. Is it your understanding that lawyers with disabilities are more likely to work for the government or non-profit organizations than they are to join a large law firm, and if so why is that the case? Also, what, if anything, can and should be done to make the private practice of law at a large firm a more viable option for people with disabilities?

True, most lawyers with disabilities work for government or non-profit organizations. To address this dilemma we need to do a better job educating private employers on our abilities. Knowledge can overcome prejudice.

4. Some state and federal courts have appointed task forces to investigate the subjects of racial and gender bias within the judicial system. Have any judicial systems, to your knowledge, performed any similar investigations with respect to physical or mental disabilities, and do you think that such a task force would be worthwhile in Missouri?

Yes. Missouri does have a task force created by then Chief Justice Limbaugh. It has already made court documents such as subpoenas and jury summons more accessible to people with disabilities. We have also worked with some courts to make their facilities and services accessible. The work of this task force is ongoing.

5. Is the Missouri state court system able to accommodate jurors who are blind or deaf? And what was your reaction to the story of James Moynihan of Kansas City, Missouri, who showed up for jury duty and was told that he was excused because he was blind? His story has a happy ending, but others in that situation may not have been as knowledgeable of and insistent on exercising their rights.

With respect to accommodating blind and deaf jurors, we must do our best to accommodate the ability of citizens to perform, when possible, their constitutional duties to serve as jurors.

6. Under current federal equal protection jurisprudence, discrimination on the basis of disability is lawful if it satisfies the rational basis test, which is the least stringent standard of scrutiny, while classifications based on race and gender are more likely to be found unlawful because they are evaluated under more stringent standards. The laxity with which disability-based distinctions are evaluated may have been crucial to the U.S. Supreme Court’s ruling in Board of Trustees of University of Alabama v. Garrett that the U.S. Congress lacked the power to apply the Americans with Disabilities Act to state employees. Do you find the current difference in strictness of scrutiny applicable to disability, on the one hand, and race and gender, on the other hand, to be sensible, and why or why not?

Since this question may come before me at some point, I must refrain from commenting on it.

7. What are your most favorite and least favorite aspects of serving as a Judge on the Supreme Court of Missouri?

I enjoy the opportunity to serve the Court.

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

The Honorable A. Leon Higginbotham, Jr. Judge Higginbotham was a highly respected African-American judge on the United States Court of Appeals for the Third Circuit. He treated everyone with dignity and respect.

9. Missouri is not the only State that uses the title of “Judge,” rather than “Justice,” for those who serve on the State’s highest court. But on the New York Court of Appeals, the presiding jurist is known as “Chief Judge,” while on your court, everyone is known as “Judge” except for the “Chief Justice.” What is the history of your court’s system of titles, and what sense, if any, does it make for a court to consist of six Judges and one Chief Justice?

There is really no significance to whether we are called “judges” or “justices.” We are all here to serve the public fairly.

10. Before you joined the Supreme Court of Missouri, one of your current colleagues on that court — Chief Justice Ronnie L. White — accepted a nomination from President Bill Clinton to become a U.S. District Judge in Missouri. And another of your current colleagues, Judge Duane Benton, recently accepted President George W. Bush’s nomination to serve on the U.S. Court of Appeals for the Eighth Circuit. The U.S. Senate rejected then-Judge White’s nomination, and U.S. Senate action on Judge Benton’s nomination has been delayed due to partisan squabbling not targeted at him. Why has your court become such a popular source for federal judicial nominees, and do you have any interest in joining the federal bench? Also, perhaps you could explain why someone would agree to leave a judgeship on Missouri’s highest court to become a federal trial court judge?

Both Chief Justice White and Judge Benton are bright and well-qualified judges who have served on the Supreme Court of Missouri with distinction and would honor the federal courts with their service. I am also privileged to serve the people of Missouri as a judge on the Supreme Court.

11. Judges are selected to serve on the appellate courts of Missouri through what is known as the “Nonpartisan Selection of Judges Court Plan.” A commission nominates three candidates for an appellate court vacancy, and the Governor must then select one of those candidates for the position. After the judge has served in office for one year, he or she is the subject of a retention election. Being retained in office allows the judge to serve a complete twelve-year term, after which the judge must stand for retention again. There is no limit to time in office other than a mandatory retirement age of 70. Although the selection process may be nonpartisan in design, the Supreme Court of Missouri currently consists of four individuals selected by Democratic Governors and three individuals selected by Republican Governors, and the court is often divided 4-3 along party lines in high-profile cases. Is Missouri’s approach toward selecting judges better than the federal method or the method whereby appellate judges run for election to attain office? Are you surprised that a nonpartisan system has produced a seemingly partisan division among the judges on the court? And wouldn’t it make more sense to hold the initial retention election somewhat later, to give an appellate judge the opportunity to develop an adequate track-record on which to be judged by the voters?

Actually, approximately 98.5% of the decisions of the Supreme Court of Missouri are unanimous. All the judges who sit on our Court are nonpartisan and exercise their independent judgment on cases.

To clarify a point, retention occurs only after a judge has served at least one year on the bench, at the next general election following one year of service. In my case, I was appointed February 27, 2002 and will be on the ballot for retention on November 2, 2004, over two-and-a-half years after appointment.

12. In 1989, the Supreme Court of the United States ruled in Stanford v. Kentucky that the Eighth Amendment’s prohibition on cruel and unusual punishment did not prevent those who commit murder at the age of sixteen or seventeen from receiving the death penalty. In recent years, lower courts have refused to depart from that ruling, and the U.S. Supreme Court has turned down several requests from those who committed murder at the age of sixteen or seventeen to reconsider the Stanford decision. Last year, however, the Supreme Court of Missouri, in a 4-3 ruling in which you joined in the majority, held that imposing a sentence of death on someone who committed a murder at the age of 17 constituted cruel and unusual punishment. The U.S. Supreme Court in January 2004 agreed to review your court’s ruling in that case, and thus your court has managed to force the U.S. Supreme Court’s hand to reconsider the constitutionality of the so-called juvenile death penalty. Was forcing the U.S. Supreme Court to reexamine this issue one of the goals of the majority on your court, why did not your court simply base its outcome on Missouri’s state constitution, and why was it appropriate in your view to disregard the directly on point U.S. Supreme Court precedent on this issue?

Since this question may come before me at some point, I must refrain from commenting on it.

13. 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, isn’t it true that jurists serving on a state court of last resort sometimes have little other than their own personal preference concerning the result to guide them in deciding cases?

We should always be governed by precedent, the constitution and statutes in reaching our decisions.

14. How would you describe your judicial philosophy, and which judicial opinions that you have written stand out as your favorites?

I have no judicial philosophy. My goal is to be fair to all parties that come before me. I have no favorite cases or opinions; all the cases that we hear are important.

15. What qualities do you look for in deciding whom to hire as a law clerk, and what qualities or traits other than a strong academic background are important to you?

I strive to hire the best and brightest law clerks.

16. What are the three most important suggestions you have for attorneys concerning how to improve the quality of their appellate briefs filed with the Supreme Court of Missouri?

My three suggestions on writing briefs for the Supreme Court of Missouri are:

1. Read and understand the Supreme Court rules of appellate practice and procedure;

2. Be clear as to the issues; and

3. Remember these are ?briefs? not ?books.? Be clear and concise.

17. Similarly, what are the three most important suggestions you have for attorneys concerning how they can improve their performance at oral argument?

My three suggestions with respect to oral argument are:

1. Be candid and address the weaknesses in your case as well as the strengths;

2. LISTEN TO THE QUESTIONS from the bench and answer them as directly as you can; and

3. Be clear and concise. If you have made your argument and there are no more questions from the bench, SIT DOWN!

18. How much of your court’s caseload consists of cases that the court has discretion whether or not to hear and what percentage are cases in which an appeal exists as of right to your court. With regard to your court?s discretionary jurisdiction, what factors do you weigh in deciding whether a particular case should or should not be granted review? And what procedures does the court follow internally in determining whether to grant discretionary review?

The Supreme Court of Missouri hears direct appeals on tax and capital murder cases. Routinely, we also hear cases where there is a conflict between the appellate courts in the state. The other approximately 85% of the cases are heard constitutionally where there is an issue of “general interest or importance” or where an appellate court finds that the constitutional validity of a statute is at issue. Unlike the Supreme Court of the United States, in which 4 of 9 votes are required to hear a case, in the Supreme Court of Missouri we need a majority of the Court to take transfer.

19. What in your view are currently the most urgent issues facing Missouri’s system of justice, and what do you anticipate the most urgent issues will be twenty years from now? What can and should be done to address the issues currently of concern and to anticipate and perhaps avoid the issues you expect to arise in the future?

Every case that comes before the Supreme Court of Missouri is important to all parties and is treated with respect. We do not prioritize cases.

20. What do you do for enjoyment and/or relaxation in your spare time?

I enjoy music and sports.

Monday, April 19, 2004

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. at 1271).

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.

* * *

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.

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

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).

Shaw 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.

Monday, March 08, 2004

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8. Given that a reorganization of the entire federal appellate court system is unlikely to occur, please provide your view on whether the Ninth Circuit should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

13. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven’t been? Also, how if at all did the brand new “Law Clerk Hiring Plan” change for better or worse your experience in hiring law clerks who will be reporting to work in the fall of 2004?

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

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

14. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non-precedential decisions in briefs filed in all federal appellate courts. Not too long ago, the First Circuit began to allow lawyers to cite to its unpublished opinions. Where do you stand on the question of allowing citation to unpublished opinions? Has the First Circuit’s current practice caused you to spend more time preparing unpublished opinions, and has it compelled your court to treat unpublished opinions as precedent? Finally, do you believe that federal appellate court panels should be able to designate some of their rulings as “non?precedential” upon issuance, or should the precedential value of an opinion be left to later panels to determine, and why?

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

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

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

I hate to belabor the obvious, but here goes.

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

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

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

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

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

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

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

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

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

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

19. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

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

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

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

Monday, February 02, 2004

20 Questions for Circuit Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit: “How Appealing” is delighted that Circuit Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit has agreed to participate in this Web log’s recurring monthly feature, “20 Questions for the Appellate Judge.”

Judge Reinhardt was born in New York City in 1931. He attended undergraduate school at Pomona College and law school at Yale. After law school, he served as a Lieutenant in the Office of General Counsel of the Secretary of the Air Force and then as a law clerk to Judge Luther W. Youngdahl of the U.S. District Court for the District of Columbia. After that clerkship, Judge Reinhardt entered and remained in the private practice of law until he was confirmed to serve on the Ninth Circuit. During that period he also served in a number of civic posts, including President of the Los Angeles Police Commission and Secretary of the Los Angeles Organizing Committee for the 1984 Olympics.

In November 1979, President Jimmy Carter nominated Reinhardt to fill a newly created seat on the Ninth Circuit. The U.S. Senate confirmed Judge Reinhardt in September 1980.

Judge Reinhardt has his chambers in Los Angeles, California, and the Ninth Circuit has its headquarters in San Francisco, California.

Questions appear below in italics, and Judge Reinhardt’s responses follow in plain text.

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

My most favorite aspects include: (1) The ability to make a contribution to society, to promote fairness and justice, and to try to ensure that our Constitution stands strong and firm; (2) The opportunity to work on challenging and important legal problems; and (3) Sharing my working days (a majority of my waking hours) every year with a number of extremely bright, young, enthusiastic law clerks who then go on to make their own significant contributions to the law and the nation.

My least favorite aspects are: (1) The overly-restrictive view of individual rights and liberties that is prevalent in today’s judiciary and limits the ability of the federal courts to play their intended role properly; (2) The inability to spend enough time on each case due to the overwhelming workload; and (3) The inordinate number of hours it is necessary to work in order to try to do a decent job, and the resultant inability to spend as much time as I’d like with my family.

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

Justice William Brennan, whose philosophy of the constitution I admire deeply. He attempted, usually successfully, to apply the proper balance of factors in deciding constitutional questions so that the underlying principles and objectives would survive and flourish in our contemporary society. He had a broad and generous, rather than a cramped and niggardly, view of the law and its functions. He understood that the ultimate role of the law was to serve the interests of justice and, unlike many contemporary jurists, he possessed an essential qualification for the job: compassion. My next favorite is John Marshall, who had the vision to create a strong and independent federal judiciary and to give life to the essential concept of judicial review of the actions of the other branches of government. Finally, although neither a state nor federal judge, I’d add Aharon Barak, Chief Justice of the Supreme Court of Israel, to my all-time all-star list of jurists.

3. When did it first occur to you that your views concerning the proper resolution of important and controversial cases would often differ from the view taken by a majority of Justices serving on the U.S. Supreme Court, and do you believe it is appropriate for observers of the law to hold in higher regard those federal appellate judges whose decisions the Supreme Court commonly affirms and to hold in lesser regard those federal appellate judges whose decisions the Supreme Court commonly reverses?

Today’s federal judiciary is substantially more conservative than it was when I was appointed by President Carter. It takes a far narrower view of the Constitution and of individual rights; it is far more concerned with elevating the rights of states and of entrenched authority. When I was appointed, my views on constitutional interpretation and the role of social justice in adjudication were generally in accord with those of the majority of the Supreme Court and of the members of the federal judiciary. That has changed for the worse.

I suppose that I first realized that my views would often differ from those of the majority of the Supreme Court in 1986, when President Reagan elevated Justice Rehnquist to Chief Justice and appointed Antonin Scalia to be an Associate Justice. President Reagan made no secret of his desire to alter radically the composition of the federal judiciary from his first days in office. What these appointments did was make it plain that future Supreme Court opinions would not only reach different results, but would generally look and sound much different from those issued during the post-New Deal era of enlightenment — that there would be a retrenchment in the scope of the rights afforded all Americans. As the President appointed more and more federal judges — with very few exceptions individuals who passed the Reagan Administration’s various ideological and issue-specific litmus tests — the courts gradually shifted farther and farther to the right of the ideological spectrum. Even those who would argue that the shift was not radical would be hard pressed to say that the judicial system, as a whole, was not considerably more conservative and far more interested in states rights and less in civil rights in 1988 than it was in 1980 when I was appointed. This rightward turn was made complete in 1990 and 1991, when the first President Bush replaced Justices Brennan and Marshall with Justices Souter and Thomas, thereby replacing the last true liberals on the Supreme Court with one moderate and one extreme conservative. Unfortunately, the policy of “judicial restraint” that we were told would result from this transformation has paradoxically resulted in an increasingly active judiciary, willing to strike down a litany of congressional laws and executive regulations that previously would have been considered unexceptional. The casualty of this movement has been the concern for social justice and individual rights that once served as the guiding principle of the judicial branch.

I would like to think that observers of the law would hold in high regard all judges who perform their jobs with integrity, dedication, and intellectual rigor, regardless of disagreements over judicial philosophy or rates of reversal in the Supreme Court. To be sure, there are many times when we are forced to think about how the Supreme Court might resolve an unsettled question of law in a particular controversy that comes before us. In certain types of cases we will try to divine what the court will do in order to reach what we believe will be the appropriate decision. It is not, however, our job to anticipate when the current justices of the Supreme Court will cut back on individual rights and to rush to do the dirty deed for them. Many times when my court has been reversed, it is because we have properly applied existing law, but in reviewing our decision the Supreme Court has adopted a new and different interpretation than it had previously given a statute or constitutional provision — a new reading that is far more restrictive of individual or group rights. I certainly do not think that legal observers should hold in high regard those judges who are eager to anticipate how the Court will next choose to erode our rights and liberties and condemn those who respect stare decisis and apply the law as it exists at the time the case comes before them.

4. Some of your critics assert that you exemplify a discredited approach to judging whereby a judge decides how to rule based on his or her own personal preferences, divorced from precedent and other traditional tools of adjudication, and then manipulates the law to justify the result. Do you view that description of your approach to judging as accurate to any extent, and why or why not? Also, is this a criticism that in your view would sometimes appropriately be directed toward politically conservative judges, and what decisions would exemplify the use of that approach on the conservative side?

Conservative politicians eager to pack the courts with right-wing ideologues, and some of their camp followers in academia, have deliberately distorted the jurisprudence of judges who treat the Constitution as a living, breathing instrument. These distortions are nothing more than political slogans designed to vilify judges whose views differ from their own. This is regrettable. No judge I know, liberal or conservative, acts in the manner described in your question. Most, if not all, judges do their very best to follow the law as they understand it, to respect precedent, and to use the traditional tools of adjudication. The disagreements frequently result from differing views of what the Constitution mandates, of the proper role of the federal judiciary in a democratic society, or even of what legal principles apply to the construction of statutes. For example, when examining the purposes and objectives of a congressional enactment, one side may consider whether an interpretation that leads to unfairness and injustice is consistent with what Congress intended. The other may not care so much about what Congress may have had in mind, but instead may view the statutory question through a far narrower and more rigid set of legal rules. Usually, however, both sides are applying what they sincerely believe to be the proper jurisprudential principles. Each side may believe the other is misguided. Neither should accuse the other, however, of being dishonest or of refusing to follow the law.

We all frequently apply the law in ways we would prefer not to. I have sat on a host of cases in which, had I been imposing only a Solomonic sense of justice unconstrained by the Constitution, federal statutes, or precedent, I would have come to a different result than I was compelled to reach. It is not a happy task to have to uphold an unjust or unfair result. But it is one that, at least on some occasions, every appellate judge must perform. I am regularly required by law, for example, to affirm deportation orders and deny petitions for writ of habeas corpus in instances in which it appears to me that the result is unjust and in which I believe the individuals are being deprived of due process of law. However, the federal statutes involved, or an applicable precedent from this court or the Supreme Court, often leave me no choice.

None of this is to say that one’s personal life experiences play no role in what one does as a federal judge. As judges, we are called upon to bring our full range of such experiences to bear upon the cases we decide. Indeed, we are appointed and confirmed partially on the basis of the “diverse” experiences we bring to the bench. One aspect of every judge’s experience is, of course, his views of the proper role of courts in a democratic society, how the Constitution ought to be interpreted, how statutes should be read, and what judges ought to do in the face of manifest injustice.

So to answer your question directly, I do not view the description of my jurisprudence you have posited to be accurate or appropriate. Liberal judges — and we are a small minority these days — do not manipulate law to reach a predetermined result. We apply a particular philosophy of law — often infused by concepts like “rights” and “social justice” that may appear foreign to the admirers of the jurisprudential views of those who see the Constitution only as a technical framework for the allocation of powers. The jurisprudential views we espouse are those we believe to be most faithful to the text, structure, and history of the Constitution. Conservatives — be they “strict constructionists,” “texualists,” or “originalists,” — apply their own philosophy of law to the very same legal problems we face. It is naive, if not disingenuous, to assume that liberals are simply imposing a “personal preference,” while those conservative judges who continually reach the same restrictive result, in case-after-case, are simply “following the law.” Different legal philosophies produce divergent legal consequences. We can debate which constitutional philosophy is the more appropriate one, but it is intellectually dishonest, and ultimately a disservice to the law, to accuse those who subscribe to a competing philosophy of being lawless or engaging in misconduct.

5. You publicly criticized President Clinton and his administration for failing to nominate sufficiently liberal judges to counterbalance the conservative nominees that Presidents Reagan and Bush made in the 1980s and early 1990s. Such public criticism of a President’s judicial nominees is a bit unusual coming from a sitting federal judge. In retrospect, do you believe you acted appropriately in making that statement, and why or why not? Also, what reaction, if any, to those remarks did you receive from other judges and from the White House and the Senate?

Yes. I believe it is appropriate for members of the judiciary to educate both officeholders and the public with respect to what is transpiring in the judicial system. President Clinton’s immediate predecessors declared that they intended to bring about a judicial revolution which would reverse the dominant judicial philosophy then prevailing in the federal courts. They did so. When President Clinton, a graduate of the Yale Law School, and his wife, a fellow graduate of my alma mater, took over the White House, many persons inside and outside the legal profession assumed that the new president would attempt to restore the prior balance to the judicial system by nominating judges who were compassionate and were interested in protecting individual rights and liberties. This is not to say that the President did not choose a number of highly distinguished, qualified, and enlightened judges — indeed, we have several Clinton appointees on our court today who help provide an important counter-balance to the increasingly conservative drift of the federal judiciary, including our own circuit. Still, in the main, President Clinton’s appointments were not of the Warren-Brennan-Marshall-Blackmun school of jurisprudence. President Clinton’s principal interest lay in avoiding battles over judicial nominees — perhaps because he did not deem the composition of the judiciary sufficiently important to justify expending his political capital to fight in the Judiciary Committee and the Senate. And given that Senator Hatch, the Chairman of the Judiciary Committee, issued a number of “no liberals” ultimata, the President was deterred from nominating many highly qualified liberal candidates and too often accepted in their place individuals whose judicial philosophy was more akin to that of the opposing party. The few liberals, or perceived liberals, he was persuaded to nominate frequently saw their candidacies linger or die in the Judiciary Committee because the President refused to fight for their confirmations. To understand how far our courts have moved to the right, one need only note that three of the four former Justices named above, who exemplified the enlightened judicial philosophy rejected by the Reagan-Bush Court, were the appointees of Republican Presidents, and at the time of their appointment were considered moderates.

Finally, it is not uncommon for federal judges to be asked their opinions of potential judicial appointees by the White House, or the Justice Department, or even the Senate Judiciary Committee. In my view, it would have been hypocritical for me to have participated in that process without being willing to state publicly how the administration was conducting the important function of appointing judges, and what effect its policies would have on the administration of justice. Although I am aware that a number of politicians were unhappy with my comments and that some judges undoubtedly disapproved, no one ever directly expressed their disagreement to me either with regard to the substance of my comments or their appropriateness.

6. The U.S. Senate’s consideration of your nomination to the Ninth Circuit did not proceed to confirmation as rapidly or smoothly as did the federal appellate court nominations of others made at that time. How did you come to President Carter’s attention as a possible Ninth Circuit nominee? And what do you recall, positively or negatively, about your confirmation process?

I came to President Carter’s attention initially because I was one of a group of approximately twenty-one persons recommended for ten newly-created judicial positions on the Ninth Circuit by a merit selection committee appointed by the President and composed principally of local attorneys. All ten appointments were made from the list of twenty-one. I know that after the list was announced, the Mayor of Los Angeles, Tom Bradley, spoke to President Carter directly about my candidacy and urged him to appoint me. I was at the time serving as the president of the Los Angeles Police Commission, having been appointed as a commissioner by the Mayor, with the assignment of trying to bring a measure of civilian control to the Police Department, as called for by the city’s charter. I undoubtedly also came to the President’s attention because I was the only judicial candidate in the nation who represented organized labor rather than corporate institutions. I am aware of only two labor lawyers who had previously been appointed to the federal bench — Arthur Goldberg and Abner Mikva, who had practiced together in the same labor law firm in Chicago.

The confirmation proceeding was extremely unpleasant, but it taught me a lot about many subjects. Although my nomination was endorsed by the Republican attorney general of California, the elected Republican sheriff of Los Angeles County, and an extremely conservative Los Angeles Police Department chief of police with whom I had regularly and publicly disagreed, a group of extreme right-wing individuals and organizations opposed my confirmation by the use of perjury, false accusations, and even a fabricated police report, including a bizarre accusation that I was related to mobsters whose names I was familiar with only through the public media. Incredibly, I was also accused of a number of other acts, all of which were made up out of whole cloth, mainly by a confidential government informant who was then in the witness protection program under the jurisdiction of the FBI — a witness the government continued to rely on in subsequent years to obtain criminal convictions in various parts of the nation. After a long, thorough, and painful investigation, the charges were all found to be without substance by the Justice Department and the Senate. Although my nomination was held up for a substantial amount of time, in the end only Senators Thurmond and Hatch voted against me. All other Republican senators, including those on the judiciary committee, voted in favor of my nomination, perhaps because it ultimately appeared on the consent calendar pursuant to an agreement between the Republican and Democratic Senate leadership. One thing I learned, however, was to view politically-motivated charges with skepticism and to refrain from assuming that persons are guilty in the absence of objective and persuasive evidence, even when the rumors or stories are spread by individuals connected with law enforcement. Another lesson was that opposition to injustice is not the sole property of members of either political party. Among those who came forward to support me when the false charges became public were a number of Republican lawyers who disagreed with many of my views but cared more about the truth and the integrity of the confirmation process.

7. The filibustering of judicial nominees whom the Republican party depicts as the antithesis of you is likely, whenever the Democratic party regains the White House, to lead to the filibustering of nominees perceived as too much like you. Is a moderates-only judiciary something to be preferred over a judiciary filled with Borks and Reinhardts, and if not are you willing to urge Senators to stop filibustering judicial nominees on the basis of the nominees’ perceived ideology?

I do agree that a judicial system is better off with a mix of able, intelligent conservatives and liberals who may disagree on issues, than with a monolithic, mediocre group of moderates whose main virtue is acceptability. Nevertheless, I do not believe that it is in the interests of the country to have a president appoint only judges with extremely conservative views. So long as the president follows a policy of making his appointments for ideological reasons, and of appointing only judges who share his philosophical point of view, the opposing party has the right, if not the obligation, to block at least some of the most extreme of those nominees in order to attempt to bring some balance to the judiciary. If, on the other hand, a president decides to be a “uniter, not a divider,” by appointing some judges with independent or differing judicial philosophies, and to insure some balance in the federal courts, there would be less reason for the type of opposition that we have witnessed in the past two or three years. In short, given the present circumstances, I would be more inclined to urge the president to change his approach to judicial appointments than I would to urge the senators to stop filibustering the most extreme of his nominees. So long as appointments are made on ideological grounds, and there is no room for the appointment of persons with different points of view, opposition based on ideology is perfectly appropriate, as is the use of all proper procedural means to make that opposition effective.

Much of the purported outrage over the use of the filibuster to block nominees appears to me to be both hypocritical and cynical. It can best be explained as part of a purely partisan attempt to manipulate public opinion. The use of a filibuster is indisputably more democratic than the use of the one-Senator “holds” that were so often used, frequently in secret, to defeat nominees during the Clinton Administration. The Republican controlled Senate blocked 63 Clinton nominees between 1995 and 2000. Since 2001, the time at which the “filibuster crisis” allegedly began, the Senate has failed to confirm just 6 of the President’s 168 nominees.

Finally, after reading Slouching Towards Gomorrah: Modern Liberalism and American Decline, I reject any suggestion that I am in any way comparable to Judge Bork. I would not nullify the Bill of Rights by allowing Congress to overrule the courts’ constitutional decisions by a majority vote. And, unlike Judge Bork, who once analogized the Ninth Amendment to a text covered by an “ink blot,” I believe that each and every part of our Constitution has meaning that binds federal judges. Liberalism is still a part, a critical part, of the American mainstream; those who reject fundamental constitutional principles, such as judicial review, are not.

8. If you could reverse or alter the outcome of any single U.S. Supreme Court ruling, which ruling would you select and why?

For many years, the Supreme Court ruling I found most objectionable was Bowers v. Hardwick, 478 U.S. 186 (1986). In 1988, I dissented from two of my colleagues’ decision to strike down the military’s exclusion of homosexuals from service, as I felt bound to do by Supreme Court and Ninth Circuit precedent. In that dissent, I wrote that “history will view Hardwick much as it views Plessy v. Ferguson. And I am confident that, in the long run, Hardwick, like Plessy, will be overruled by a wiser and more enlightened Court.” Watkins v. U.S. Army, 847 F.2d 1329, 1358 (9th Cir.1988) (internal citations omitted). The fact that Lawrence v. Texas, 123 S. Ct. 2472 (2003), was decided by a 6-3 margin of a highly conservative Court is itself evidence that the odious view of liberty and privacy adopted by the Bowers Court was obviously wrong.

Other wrongly decided cases remain on the books, although few, if any, seem as evidently wrong to me as did Bowers. One I would reverse is Korematsu v. United States, 323 U.S. 214 (1944) (upholding the constitutionality of the internment of American citizens of Japanese descent), which, while it has been widely discredited, has never been explicitly overruled. I also find the Supreme Court’s interpretation of the Eleventh Amendment plainly wrong in terms of text, history, and structure. Thus, I would reverse the case that started it all, Hans v. Louisiana, 134 U.S. 1 (1890), and hold that the Eleventh Amendment does not bar a federal court from hearing a suit against a state by one of its citizens when such a suit is authorized by act of Congress. Finally, I would overrule the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), which unnecessarily imposed a constricted interpretation on the provision of the Fourteenth Amendment that was originally intended to do the most work — the “privileges or immunities” clause. The overturning of any one of these cases would be a significant victory for the Constitution and our nation.

9. You and other highly intelligent liberals have not hesitated to criticize the U.S. Supreme Court when you believe that it has unfairly curtailed the rights of convicted criminals or individuals seeking to enforce federal rights against the States. On the other hand, in recent years the Supreme Court has issued many decisions that have enraged conservatives, such as Lawrence v. Texas, Grutter v. Bollinger, and decisions upholding a constitutional right to abortion. Instead of depicting the Supreme Court as monolithically conservative or liberal, isn’t that Court more accurately viewed as moderate in an overall sense?

No. Even the Supreme Court’s harshest critics have not asserted that the Supreme Court is wrong in every case. So in that sense, I suppose it is correct to say that the Court is not “monolithically conservative.” But the fact that this Court has reached the plainly right result in some cases involving highly controversial social issues, as it did in Lawrence, and has crafted compromise solutions in others, as it did in Casey, and by reaching an obvious middle ground in the two recent affirmative action cases, is not evidence that this is a “moderate” Court. In fact, what has usually happened in the few cases in which the current Court has departed from its customary strict conservative views is that one member of the five judge conservative bloc has for one particular reason or another decided to agree in that particular instance with the four judge moderate minority. Such occasional individual switches do not mean that the Court as a whole is not deeply conservative, nor that it is not just one vacancy away from becoming “monolithically conservative” by any standard.

The fact that conservatives have been upset with one or two decisions in the past several terms says nothing about the overall ideological composition of the Court. The Supreme Court has moved far to the right in numerous areas of law — federalism, habeas corpus, the interpretation of federal civil rights statutes, the power of Congress to enact such statutes, Indian law, and criminal justice generally are only a few examples. Simply put, the conservative view is unquestionably dominant in today’s Supreme Court, as exemplified by the ever-shrinking Fourth Amendment (notwithstanding Justice Scalia’s property-oriented, but still surprising, decision in Kyllo). I think most people who say otherwise either aren’t being honest or are being disingenuous. I doubt that many conservatives would advocate a return to the Court on which Justices Brennan and Marshall sat in the 1970’s and 1980’s, to say nothing of how they would feel about a return to the Warren Court of the 1950’s and 1960’s. And just as the handful of examples of “conservative” decisions from the heyday of the Warren Court does not transform the ideological preferences of that Court, the occasional occurrence of a reasonable, or a compromise, decision does not make the current Court “moderate,” or anything other than a straight, unabashed, highly conservative institution.

10. A reporter who covers the Ninth Circuit advises me that you have never voted to uphold a death sentence. Is the reporter correct as a factual matter? And what do you perceive to be the most significant flaws in this Nation’s capital punishment system?

The reporter is correct only if one does not count the cases in which I have declined to call death penalty cases en banc, and have allowed executions to proceed without casting a vote in opposition.

It is true that I have not, since becoming a member of the Ninth Circuit, voted affirmatively to uphold a death penalty. But that is not in my view of particular significance. My review of the record indicates that in over twenty-three years on the bench I have participated in only twelve three-judge panels that decided to affirm or to reverse an individual’s death sentence. That rate amounts to just slightly more than one case every two years. In the vast majority of those cases, nine out of twelve, I voted with the majority to overturn the death sentence. In one of the three in which I dissented — a case involving clear racial bias against a black defendant — the en banc court overwhelmingly rejected the majority’s decision in an opinion written by the author of the reversed opinion, a Reagan appointee, who had experienced a well-deserved change of heart between the time he wrote the original opinion and the time he decided, correctly, that the death sentence imposed in the case was unconstitutional. See Coleman v. Risley, 839 F.2d 434 (9th Cir. 1988), rev’d en banc sub nom. Coleman v. McCormick, 874 F.2d 1280 (9th Cir. 1989). Thus, in only two cases in twenty-three years did I disagree with a court majority on the merits of whether a particular death penalty sentence comported with the requirements of the Constitution. In none of the cases in which I voted to reverse a death sentence did either the en banc court or the Supreme Court subsequently overturn the panel’s decision or hold that the death sentence at issue was constitutional. In my view, the constitutional violations in each of the cases in which I voted to reverse the death penalty were egregious. Each was dictated by the controlling law, and I remain firmly convinced that each was correct by any standard.

In almost all of the capital cases that come before us, there is no dispute that the state court committed some type of constitutional error. The question we are most frequently called upon to resolve is whether the person should be executed notwithstanding the errors committed below. In the two instances in which I have differed with a majority of my colleagues on the merits in a capital case, it has been over whether certain errors were substantial enough to warrant reversal. I do believe that “death is different” — a belief repeatedly mocked by some conservatives — not only because in our system taking the defendant’s life is the “ultimate penalty,” but also because once the penalty has been imposed, there is no way of rectifying a wrong decision. Perhaps fortunately, I have not yet been compelled to cast a vote in a case in which I believed that a proper application of the controlling law would require me to affirm a death penalty. If I were to confront such a case, I would have no choice but to so vote.

With respect to the flaws in our current system, a fundamental problem is the impossibility of arriving at objective standards for separating those society chooses to execute from those it decides to punish by lifetime incarceration. A regrettably large number of individuals commit crimes that make them eligible for death sentences under the various state laws. Yet few of them ever receive the ultimate penalty, and those who do are not in any objective sense more deserving of execution than those who do not. A multitude of subjective decisions are made along the way, by prosecutors, defense lawyers, judges and jurors. Standards are applied inconsistently and unequally from case-to-case. Frequently, geography determines whether a capital defendant lives or dies. Two crimes identical in every respect except the counties in which they were committed will result in a death sentence in one case and a sentence of life-without-parole in another.

The result of all these disparities and arbitrary inequalities is that those who are ultimately designated for execution are frequently society’s most vulnerable rather than its most culpable. Poverty, race, histories of family troubles, sexual abuse, and mental disabilities all end up playing unacceptably large roles in determining who lives or dies. In almost every case of which I am aware in which an individual has been executed, he had been a victim of serious and persistent sexual abuse as a child, usually at the hands of a close relative, and in addition possessed a severely limited mental capacity. An example is Rickey Ray Rector, who was missing half his brain at the time of his trial. Rector put aside his dinner on the evening of his execution so that he could enjoy it later. Earlier that afternoon he watched television and saw Governor William Jefferson Clinton, who had rushed back to Arkansas on the eve of the New Hampshire primary to be present in the state capital to avoid any hitches in the execution (and, some believe, to get his picture in the next day’s national press as a tough on crime, law and order kind of a guy). On seeing Clinton’s familiar face, Rector commented enthusiastically, “I like that man. I voted for him.” Finally, as if all of this were not enough, many capital defendants receive wholly inadequate defenses, resulting in death sentences for those whose offenses warrant only life imprisonment, and dramatically increasing the risk that the state will kill innocent defendants. In short, choosing those to be executed is not a science. It is an extremely subjective process, and thus an arbitrary one; the decision is all too often determined by the biases and prejudices of the decision-maker, and is, in the end, one that may be beyond the capacity of ordinary mortals to make.

When you have reviewed death sentences for over twenty years, you begin to see how irrational the line between state-ordered life and death is in our criminal justice system. Human life is too precious to have its continued existence depend on fortuities such as the geographical location of the crime, the individual proclivities of prosecutors, jurists, and other decision-makers, and the luck of the draw in the assignment of judges and of counsel who may or may not be sufficiently dedicated and experienced to do one of the most difficult jobs in the legal profession at considerable personal sacrifice in terms of time and money. If the Constitution does not tolerate inequalities in the standards used to recount ballots in a presidential election, it certainly should not tolerate disparities in the administration of the capital system that are far more troubling and consequential. It was a recognition of these truths that led Justice Blackmun to shun forever “tinker[ing] with the machinery of death.”

11. Should federal judges ever consider the likely public reaction to their rulings when determining what decision to render in a case? And what is your reaction to calls that some legislators have made, based at least in part on rulings in which you have joined, to strip the federal judiciary of the ability to decide cases involving certain subject matters?

It is plainly not the job of a federal judge to consider the likely public reactions to his decisions. We are required to resolve cases and controversies properly brought before us in accordance with the Constitution, relevant statutes, and precedents. We are often called upon to defend rights and liberties enshrined in the Constitution, and to provide protection against public passion or popular will, particularly when those rights are being exercised by unpopular individuals or groups. Indeed, the Bill of Rights was designed to protect unpopular minorities against the tyranny of the majority. Allowing ourselves to be influenced by what an unhappy majority might say would constitute a violation of our duties as federal judges. I would exclude from this, of course, those cases in which we are required as a matter of law to examine public attitudes. The Eighth Amendment cases provide one example. See Atkins v. Virginia, 536 U.S. 304, 312-14 (2002).

Calls for Congress to pass jurisdiction-stripping provisions are nothing new. In the 1950s, for example, the proposals were designed to prevent courts from interfering with states’ rights to discriminate against blacks. Since then, legislators have regularly offered bills to strip the federal courts of jurisdiction to hear cases involving the social issue du jour. As long as the federal courts act to defend constitutional liberties against legislative encroachment, I expect that some members of the political branches will continue to call for limitations on the judiciary’s power to hear cases in those areas. Fortunately, responsible legislators have always rebuffed such efforts, and I am confident that they will continue to do so.

12. Two of your colleagues on the Ninth Circuit — Diarmuid F. O’Scannlain and Andrew J. Kleinfeld — have previously answered “20 questions” here, and each explained the reasons why he favors splitting the Ninth Circuit into two (or perhaps three) smaller circuits. What is your view concerning whether the Ninth Circuit should be split into two or more circuits, and how do you respond to the reasons favoring a split that Judges O’Scannlain and Kleinfeld have raised? Also, do you deserve any credit for convincing Circuit Judge Alex Kozinski to oppose a split?

First, as a matter of fundamental judicial policy, I am opposed to splitting the circuit for partisan political reasons — and that indeed is the basis of the various current proposals. Second, a split would make little practical sense as close to eighty percent of the work of our circuit involves decisions by courts located in California. The most sensible of the proposals for a new separate northwest circuit would leave our old circuit with almost as much work as we now have and fewer judges. It would not accomplish any of the objectives cited by those who claim that the circuit is too large. Third, there is a substantial advantage to insuring against provincialism in judicial decisions. The breadth and depth of our circuit provides just such a guarantee. Notwithstanding the above, I am not entirely opposed to a split if the judges, public officials, and lawyers from the Northwest generally wish to secede, as opposed to just those who belong to one political party. I am not convinced that there is presently any such bipartisan desire in the northwest to sever relations with the remainder of the Ninth Circuit. We should all be willing, however, to examine the question afresh from time to time. Incidentally, I have never claimed credit for convincing Judge Kozinski of anything. He is very independent and makes up his own mind, which is why some people find him to be so unusual a jurist.

13. The Judicial Conference of the United States has recently asked Congress to authorize seven more active judges to serve on the Ninth Circuit, which would give your court a total of thirty-five authorized active judgeships. Would a Ninth Circuit with thirty-five active judges cause you to favor a split of the circuit? If not, is there some size, either in total number of judges or in caseload, or some other threshold that if reached would cause you to favor splitting the court into two or more circuits?

Again, the question of how large a circuit is feasible is one we should examine from time to time. We will find the answer only after we determine, on the basis of actual experience, how well or poorly the court is functioning in the particular circumstance. As of now, I believe our court is functioning well and that little would be served by splitting off a number of states. There are no figures of which I am aware that would cause me to say that the time to split has come, nor am I certain how we would handle the problem nationally if the caseload continues to increase as it has. As the population grows and litigation increases, there is more and more work for the federal courts. The obvious answer is more federal judges. More circuits, however, would mean more inter-circuit conflicts and more uncertainty in the law. Indeed, additional circuits might well lead to an intermediate appellate court and, thus, to another level of courts through which already overburdened litigants would be forced to wend their ways. Chief Justice Burger’s dream of such a multi-layered system may not be beyond resurrection, if we start on the course of circuit-splitting. Incidentally, I also don�t believe that it is an acceptable solution to give judges an unmanageable number of cases to handle and then simply stamp “affirmed” on habeas cases, immigration appeals, or pro se prisoner appeals.

14. The Ninth Circuit decides cases in which rehearing en banc has been granted using eleven randomly selected judges (from a potential total of twenty-eight active judges and any eligible senior judges). Not infrequently, none of the panel judges are selected to sit on the en banc panel. Only six judges are needed to form a majority on an en banc panel. Thus, fewer than one-fourth of the active judges can declare binding circuit law. Moreover, it is possible that those six judges may actually have been “outvoted” by up to eight other Ninth Circuit judges who have heard the same issue — five dissenters on the en banc panel plus the three judges on the original panel. Isn’t this procedure flawed, and how can it be justified?

To some extent there is randomness in the selection of the judges who make the decisions at every level below the Supreme Court. Most federal appellate courts hear cases en banc infrequently. While on average the Ninth Circuit hears approximately 18 or 19 cases per year en banc, the Second Circuit hears an average of one. The D.C. Circuit heard only a total of 33 cases en banc throughout the 1990s. Panels of three judges decide the remainder of the cases, often by the votes of two of the three panel members. The views of two or three judges are far more likely to be in conflict with those of a substantial number of their colleagues than are the views of our en banc court.

Our en banc system constitutes a practical compromise that works quite well. We have conducted statistical studies in an attempt to determine how frequently our decisions might be different if all of us sat together en banc rather than leaving the final decision to a representative number of our judges. The answer has been clear — only rarely might the result have been different. It is important to keep in mind that the en banc procedure is used in a very small percentage of cases. In most instances, binding circuit law is established in the circuits generally by the votes of judges who constitute somewhere between one-eighth and one-fifth of the full court, not, as in the case of our en banc court, between one-quarter and two-fifths of the court’s active members. Therefore, the problem you pose is a nice abstract one, but in reality the advantages of a representative en banc court far outweigh its disadvantages. Among other things, the use of en banc review along the lines developed by our court will ultimately help avoid a proliferation of circuits.

15. How did you happen to become Judge Kozinski’s close friend, what interests do you have in common with him, and how do you avoid letting the major disagreements the two of you have had over cases from becoming personal? Also, did you mind when Judge Kozinski suggested that you might try to obtain title to his Lamborghini through wrongful means or when Legal Affairs magazine called him, and not you, the Ninth Circuit’s “most controversial judge”?

My friendship with Judge Kozinski is a collegial and professional one. I believe that each of us has respect for the other’s intellectual integrity. Because our views differ so dramatically, we have frequently been asked to discuss our legal philosophies before audiences of lawyers or law students. We both feel that it is a part of our job to help educate the public in the workings of the judicial system. Accordingly, neither of us is reluctant to explain publicly why we possess the particular philosophies or jurisprudential attitudes we do or to examine the work the judiciary is currently doing. On occasion, our serious disagreements over important issues have indeed caused tensions, and one case in particular came close to causing a permanent rift. Nevertheless, our mutual respect allowed us to overcome our differences and to continue to share our views jointly with audiences as disparate as the ACLU, the American Constitution Society, and the Federalist Society.

Did I mind Judge Kozinski’s Lamborghini line in Kremen v. Cohen? Of course not. Judge Kozinski has long written opinions that are not only legally precise, but also entertaining. He is free to use my name in his opinions any time — particularly if he prefaces it with the words: “I have decided once again to follow the principle so wisely articulated by my able colleague . . .”

Nor do I mind that Judge Kozinski has been identified by Emily Bazelon, a talented and brilliant young writer, as our Circuit�s “most controversial” judge. I have never desired to be controversial. I would hope, rather, to be one of many judges who share the same enlightened legal philosophy and values. I would enjoy my job more were I one-of-many than I do in my current role as one-of-a-few.

16. You have previously defended the Ninth Circuit’s local rule that prohibits citation to your court’s non-precedential decisions. Currently, a proposed amendment to the Federal Rules of Appellate Procedure is under consideration that, if approved, would allow citation to non-precedential and unpublished opinions in all federal appellate courts beginning in December 2005. Why does the Ninth Circuit prohibit citation to its non-precedential decisions, do you continue to support your court’s current practice, and what impact if any do you anticipate the new rule will have on the way the Ninth Circuit operates?

As I said earlier, I often find the work overwhelming. Most of us spend a tremendous amount of time on published opinions. We do so, in part at least, because we know that each aspect of our opinion may someday serve as precedent in circumstances which we may not have foreseen or to which we may have given insufficient thought. We must be particularly careful that what we think we are deciding not have unintended and undesirable consequences in future cases. That takes careful writing. Over eighty percent of our decisions are unpublished. If we were required to give those cases the attention we currently give to published opinions, we would not be able to do a proper job in any case. I would suspect that if a mandatory rule passes requiring all circuits to allow all decisions to be cited, even if only for their persuasive value, you will see a huge number of dispositions that provide far less information than they do under our present procedure. If the new rule is adopted, we will have little choice but to avoid saying much at all in the overwhelming majority of our cases, and in the end the quality of our published opinions will likely suffer as well. The losers would be the litigants who now receive a far fuller explanation of how we decide their cases, for or against them, in our unpublished dispositions than they will receive in the future.

17. 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?

Yes, the salary paid to federal judges is far too low. Our law clerks frequently make more the first year after they leave us than we do. Judges who wish to send their children to college have a difficult time unless they have independent incomes. More judges have left the federal bench in recent years than in our entire prior history, and the reason has been that they are simply unable to meet their obligations, given the current unwillingness of Congress to pay judges anything near what successful lawyers in most major cities receive. An even greater concern is that younger lawyers with family responsibilities, including providing for their parents, will be unable to accept judicial appointments and only the wealthy will become jurists. The bipartisan commission recently appointed by President Bush, the Volcker Commission, described the current level of judicial salaries as “the most egregious example of the failure of the federal compensation policies.” That same commission found that American judges make far less than our counterparts in England and Canada. As to what the appropriate salary should be, I am willing to leave that to independent bodies such as the Volcker Commission and the earlier bipartisan quadrennial commissions.

18. Of all of the many opinions you have written since joining the Ninth Circuit, which opinion or opinions stand out as your favorites?

It is difficult for me to single out one opinion as my favorite. Were I forced to choose a few, however, I might well select from among the following: my probable all-time favorite is Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1994) (en banc), a case involving physician-assisted suicide which I predict will someday become the governing law in this country; the dissent I wrote in Campbell v. Wood, 18 F.3d 662, 692 (9th Cir. 1994) (en banc), in which I, joined by several of my colleagues, wrote that executing people by hanging was unconstitutionally cruel and unusual under the Eighth Amendment; Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1991) (en banc), another en banc opinion of mine in which our court struck down as facially overbroad under the First Amendment a provision of the Arizona Constitution which prohibited state officials from using any language but English while performing official acts;[FN.1] Armster v. United States District Court for the Central District of California, 792 F.2d 1423 (1986), an opinion I authored in which I and two of my colleagues held that civil jury trials were a matter of constitutional right under the Seventh Amendment and that the Administrative Office of the U.S. Courts was without the power to order district courts to withhold such trials from litigants because of the anticipated unavailability of Congressional funding; and, most recently, my majority opinion in Gherebi v. Bush, 2003 U.S. App. LEXIS 25625 (9th Cir. Dec. 18, 2003), a case in which we held that district courts have jurisdiction to hear habeas petitions filed by persons detained at Guantanamo Bay.

FN.1: The Supreme Court vacated our decision for reasons unrelated to the merits, but the Arizona Supreme Court subsequently followed our analysis in holding the measure unconstitutional in Ruiz v. Hill, 191 Ariz. 441 (1998).

19. What are the most significant ways that attorneys practicing before the Ninth Circuit can improve their appellate briefs and their appellate oral arguments?

Attorneys should become more familiar with the facts and the record. It would also be helpful if they would arrange for moot courts in which they could practice their arguments; if they did, they would be less likely to be surprised by the questions we ask and better able to answer them. Finally, lawyers would do better if they answered the questions we ask rather than told us that the issues in their case are different. We already know that when we ask the question.

20. What do you do for enjoyment and/or relaxation in your spare time?

For enjoyment and relaxation, I attend sporting events or watch them on television. I also attend movies, plays and occasional concerts, usually classical. I am a Yankees fan, a Raiders fan, and a Lakers fan. I love almost all movies, good and bad, and go to the theater almost every evening when my wife and I are in New York. Perhaps my greatest pleasure is spending time with my wife, my children, and my grandchildren. I am presently trying to watch a one-year-old and a one-and-a-half-year-old granddaughter grow and develop during their early childhood. Although they both live within a mile of my home, I have far too little time to spend with them because I work most evenings and every Saturday. I have even less chance to see my three grandchildren who live in Massachusetts. Perhaps upon retirement I will have a greater opportunity to enjoy the role of grandfather, as well as father and husband, before it is too late.

Monday, January 05, 2004

20 Questions for Chief Judge Deanell Reece Tacha of the U.S. Court of Appeals for the Tenth Circuit: “How Appealing” is so very pleased that Chief Judge Deanell Reece Tacha of the U.S. Court of Appeals for the Tenth Circuit has agreed to participate in this Web log�s recurring monthly feature, “20 Questions for the Appellate Judge.”

Tacha joined the Tenth Circuit in December 1985 at the age of 39. She attended undergraduate school at the University of Kansas and law school at the University of Michigan. Following law school, she served as a White House Fellow. For the next several years, she engaged in the private practice of law, first in Washington, DC and then in Concordia, Kansas. In 1974, she joined the faculty of the University of Kansas School of Law, where she remained until she joined the Tenth Circuit in 1985. From 1974 through 1977, she also served as director of the Douglas County Legal Aid Clinic in Lawrence, Kansas. In addition to teaching law, Tacha also served in several administrative positions at the University of Kansas, culminating in her service from 1981 through 1985 as Vice Chancellor for Academic Affairs.

On January 26, 2001, Judge Tacha became the Tenth Circuit�s Chief Judge, a post that she will remain entitled to hold through January of 2008. Chief Judge Tacha has her chambers in Lawrence, Kansas, and the Tenth Circuit has its headquarters in Denver, Colorado.

Questions appear below in italics, and Chief Judge Tacha�s responses follow in plain text.

1. Although several former chief judges of federal appellate courts have participated in this “20 questions” feature, you are the first currently-serving chief judge to participate. Please explain how the role and responsibilities of the chief judge of a federal appellate court differ from the role and responsibilities of other judges in regular active service. In the course of your answer, perhaps you could touch on whether you have reduced your caseload due to your other responsibilities as chief judge, whether you have taken advantage of the ability to have an extra law clerk, your role in considering judicial misconduct complaints, and your participation as the Tenth Circuit’s representative in the Judicial Conference of the United States.

Although I have served in leadership capacities in many organizations, serving in leadership in the federal judiciary is one of the greatest challenges and most interesting assignments I have ever taken on. Sometimes it is said that trying to lead federal judges is like “herding cats.” I prefer to think of it as convening and facilitating the work of a group of remarkably bright, committed, and interesting colleagues. Sometimes reaching consensus on a policy or administrative matter among such an appropriately independent and knowledgeable group is a good crucible in which to hone one’s administrative skills! With all due respect, I have found no shrinking violets in the federal judiciary. Unlike the corporate world — or even the law firm world — there is simply no “bottom line” in the administration of justice other than trying to provide the fairest possible system in which judges are free to exercise their independent judgment as fully as possible in the context of the constraints of budget, staff, space, and all of the other necessary support systems in the institution. I have greatly enjoyed this challenge and have grown from the experience.

The Chief Judge of a federal circuit is charged with significant administrative responsibilities in addition to a regular caseload. As chief judge, I serve as Chair of the Judicial Council of the Tenth Circuit and as a member of the Judicial Conference of the United States. It is an honor to serve on both. I have enjoyed so much working under the leadership of Chief Justice Rehnquist and the many able chairs of the Executive Committee of the Judicial Conference. Judge Carolyn King, the current chair of the Executive Committee, has shown remarkable leadership in this very difficult past year. Among the many other administrative responsibilities that chief judges carry are responsibilities relating to space and facilities, security, libraries, budget and resource allocation, personnel, judicial conferences, judicial misconduct issues, and a host of representative ceremonial duties. For example, in the current budgetary climate, we are each working with our Circuit Executives to make tough budgetary decisions for the various units within our courts. I welcome these many challenges. Before I came to the bench, I was the Vice Chancellor for Academic Affairs at the University of Kansas, so I have had significant administrative experience. More important, I have been fortunate to have had a very able Circuit Executive and great assistance from the Administrative Office of the United States Courts in fulfilling my administrative duties.

I have slightly reduced my caseload, but I consider it very important to keep an almost full caseload so that I continue to assist my court. Although I am entitled to an additional law clerk, I have not taken advantage of that. I felt it more important to use that position to assist the whole circuit. Following the lead of the two chief judges ahead of me in our circuit, Judges Monroe McKay and Stephanie Seymour, we “donate” that law clerk position to the central circuit staff.

Perhaps one of the most important responsibilities of the chief judge is working with judicial misconduct complaints. These matters are very important to the judicial system and to the administration of justice generally. I think I can speak on behalf of all of the chief judges in the nation in saying that we take these complaints very seriously, and that we are cognizant of our special duty to foster the public’s trust in the judiciary. Therefore, we devote a great deal of time to these matters and vigilantly investigate every complaint. The rule of law depends, under our system of government, on an independent judiciary that is in fact impartial, free from bias or pressure from outside sources, dedicated to its public service, and is so perceived. Safeguarding the public’s trust in our judicial system is one of my most important duties as chief judge.

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

I would list several things as my most favorite aspects of being a federal appellate judge. The first is that I never get bored! Almost every set of briefs raises issues that require me to learn something new or something more about a particular legal issue. Judging is the quintessential job that requires you to keep up with developments in the law. Indeed, we have the great luxury of confronting cases that often are on the cutting edge of societal controversies and must learn as much as we possibly can about the facts and law that underlie those controversies. Second, I like the fact that federal judges are generalists. I often say that judges may be the last generalists left in professional life, and I have resisted mightily any suggestion that the federal courts become specialized in any particular area. Third, I like what I can only best describe as the inferno of the real world. When you are charged with the responsibility of deciding cases that affect the lives and fortunes of the litigants and many others, you inevitably feel the weight of those decisions. You, therefore, impel your intellect and energy toward trying to do the very best you can in interpreting the law and reaching an appropriate result. When you are constantly aware of the responsibility with which you have been entrusted, I think you cannot avoid pushing yourself to do more — more research, more work, more thought, more analysis.

I also list among my favorite aspects of the job the opportunity to work with my law clerks. I have had a series of extraordinarily bright, very personable, and just terrific people as law clerks. They are like part of my family. I keep in regular touch with all of them. My personality and preferred way to operate is very informally and very openly with my law clerks. Thus, we form a team in my chambers that is very rewarding to me. I learn as much from them as they do from me. In my relationship with my law clerks, I always try to model a well-rounded professional life. I encourage them to do things other than their law clerking responsibilities — community service, church work, family time. I am the mother of four, the youngest of which was born right before I came on the bench. As far as she is concerned, all mothers are federal judges. As I have observed attorneys and judges, I have become increasingly aware that the legal profession is a hard taskmistress and that, unless we are very deliberate, we can allow our professional responsibilities to obscure or even obliterate those other aspects of our personalities that brought us to our positions in the profession. I feel very strongly that lawyers and judges alike have a responsibility to their communities, the nation, their families, and their profession to devote significant time outside of their work responsibilities to these other endeavors. It is very easy to become so immersed in work as lawyers and judges that we lose touch with personal and community ties. Thus, in my work with my law clerks, I attempt to encourage them early in their careers to develop habits that foster excellent legal work and a broad range of personal interests.

My least favorite aspect of being a federal judge is related to my commitment to public service and other responsibilities outside of the judicial realm. I work with many philanthropic groups. I find it at times taxing to always draw the appropriate lines between my judicial duties and my philanthropic activities — especially with social service and education agencies that must raise money for their causes. I am like a broken record when I am asked to be on nonprofit boards or commissions. I always have to remind them that I cannot raise money and cannot be involved in any fundraising efforts. Although I think I have been meticulous in trying to draw these lines, it is a difficult and confining aspect of the job always to remain outside of the vital fundraising aspects of the work of these wonderful charitable organizations — especially for a naturally gregarious person.

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

I have two favorite judges. They are at opposite extremes of the spectrum. One of my favorite federal judges historically was Justice John Harlan. I admire him for several reasons. His position on the United States Supreme Court at that time was a very important one but one that found him in dissent on some very important cases. I have often been reminded of a time when I sat with Judge Leon Higginbotham on a moot court panel at Yale when he said something like, “Think how the course of history would have been changed had John Harlan been in the majority in Plessey v. Ferguson.” I also think of his dissents in The Civil Rights Cases, in several Commerce Clause cases, and many others. In my view, although he often found himself in dissent during his tenure on the Court, history has proven that his was a strong intellect and one of the Court’s more influential jurists.

The other judge that I admire was a state district court judge in Concordia, Kansas. I had been with Hogan & Hartson in Washington, D.C., working on some fairly significant securities matters. When I returned to Kansas, I went in with one other lawyer and had not been to court really at all. The Honorable Marvin Brummett was the local district judge. There had, of course, not been any women attorneys in that town in the early 1970s, so I was a bit of a novelty. Judge Brummett treated me with the utmost respect and professional care, and, more important, he modeled a judicial demeanor that I have attempted to emulate since that time. He was dignified, kind, entirely professional, and ever so thoughtful. My best example of his demeanor is the first time I went into court on a divorce case. I had over-prepared entirely and thought that I was on top of all of the appropriate questions and issues. After I had fully questioned my client on the stand, Judge Brummett very quietly and thoughtfully said, “Counsel, you may wish to ask her where she resides.” Of course, I had failed to ask the most important question in a divorce case — the domicile question. Instead of embarrassing me in front of the client, Judge Brummett so thoughtfully educated me without a shred of disrespect. I always remember that incident when I think about how to treat lawyers and how to educate them in the norms of the profession.

4. How did you come to President Ronald Reagan’s attention as a potential nominee to serve on the U.S. Court of Appeals for the Tenth Circuit?

I am absolutely certain that it was Senator Bob Dole who brought me to the attention of President Reagan. Senator Dole was an influential majority leader at the time and had been a friend of my family since I was a very young child. Indeed, my mother worked on his first campaign for the House of Representatives. I was very happy as Vice Chancellor for Academic Affairs at the University of Kansas, but the Senator called me on a number of occasions urging me to put my name in the hat for the court of appeals position. At the time, there were at least a couple of other people in the State of Kansas who were interested in the position. I was junior to them and they had been important to my career, so I hesitated to throw my name into competition with them. I finally was convinced to do so, and both Senator Dole and Senator Nancy Kassebaum were extraordinarily supportive of my candidacy. In light of some of the confirmations in recent years, I have felt very fortunate indeed to have had that kind of support.

5. The confirmation process that nominees for U.S. Court of Appeals vacancies must undergo is quite a bit more politicized today than it was when you experienced it in 1985. Does the current tenor of the confirmation process cause you any concern as a sitting federal appellate judge, and what if anything realistically can be done to improve the nomination and confirmation process?

I share the concern that many have expressed about the apparently more politicized confirmation process than I experienced in 1985. The tenor of that process concerns me for a very different reason than the effect that it has on the judge. I worry about how it affects the public. There is ample evidence that the public has very little understanding of the court system, the judicial process generally, and even of the way that we decide cases. When candidates for the judiciary are so publicly questioned about their personal views on various controversial issues of our day, I feel that the public is increasingly convinced that judges base their decisions on their personal views rather than case law, statutes, and relevant facts. In my view, the confirmation process is an excellent example of one of the places where the public could be educated appropriately about the role of an independent judiciary, the true meaning of a government of laws and not of people, and some of the basic tenets upon which this nation was founded. Regrettably, when the public is only exposed to such rancorous questioning about personal viewpoints, it reinforces the cynicism about whether the judicial process is fair for all people. I fully recognize and applaud the constitutional role that the Senate has in the confirmation process. I only wish that all three branches of government would spend some time taking the high ground of educating the public about some of the basic first principles upon which this nation was founded. Regrettably, I think the confirmation process as it stands today is counterproductive in that respect.

6. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as “pragmatic.” How would you describe your judicial philosophy, and what sort of cases do you find the most difficult to decide?

I have always found “judicial philosophy” questions troublesome and difficult to answer. I know that I am described in various publications with some of the labels that people inevitably place on judges. I think this whole question of judicial philosophy is a much overblown concept. In my view, if judges are doing their jobs appropriately, they adhere with careful precision to the law and facts of the case before them. They do not stray into policy or what should be. They stick with the text of the Constitution, statute, or regulation that they are interpreting. Judges quite simply cannot fix problems in our country. Judges can only decide the controversies in front of them. I have found very few cases in which I thought there was ever the legitimate flexibility in the applicable law to bring to bear anything other than that law itself.

I am not, however, naive. I understand that the vantage point from which we see some of these issues may affect our interpretation, but that is why we have a diverse group of judges who bring unique backgrounds and experiences to the questions before them. On any federal appellate court, there will be judges who were appointed by several administrations and who come from a host of different backgrounds and beliefs. In my judgment, this is a somewhat hidden check in the court system that the public, and perhaps even the lawyers, rarely appreciate. It is that mix of analytical vantage points that is one of the great strengths of the federal courts.

With respect to what cases are the most difficult to decide, I find it difficult to identify any one category of cases. I think it should be said, however, that almost any judge in the nation would say that death penalty cases are among their hardest and greatest responsibilities. The law in these cases is typically quite well established, but I think a judge would be remiss indeed if he or she did not single out death penalty litigation as among the most difficult things that we do.

7. What is your view on whether the Ninth Circuit — which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges — should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best? Also, one proposal under consideration for dividing the Ninth Circuit would involve moving the State of Arizona into the Tenth Circuit. Does the Tenth Circuit have any official view on whether putting Arizona into the Tenth Circuit is a good idea, and if so what is it? And please share your own individual thoughts about whether, and why or why not, moving Arizona from the Ninth Circuit to the Tenth Circuit ought to occur.

I take no position on the split of the Ninth Circuit. I think that Ninth Circuit judges and policymakers are in the best position to make that judgment. I will say, however, that some of the proposals include adding some of the Ninth Circuit states to the Tenth Circuit. My circuit and I oppose those proposals. This position against adding any states to our circuit is not an objection to any particular judges or states but rather a strong view that the size of the Tenth Circuit is about right. We currently have twelve active judges and seven senior judges. We continue to be able to read each other’s proposed opinions and keep up fairly adequately with the development of the law in the circuit. Consistency within the circuit is, to me, one of the highest values, and I believe that increasing the size of our circuit could endanger this highly desirable value.

8. In your role as Chair of the Committee on the Judicial Branch, you have no doubt worked tirelessly to convince Congress to authorize much-needed pay raises for members of the federal judiciary. Once again, however, Congress has failed to take any action. What if anything more can the federal judiciary do to press its case for pay raises, and how much hope to you hold out for improvements in the short term?

As Chair of the Committee on the Judicial Branch, I have been very much involved in the effort to address the inadequacy of judicial compensation. We were gratified indeed that the Volcker Commission last year identified federal judicial salaries as “the most egregious example of federal compensation policies.” There is absolutely no doubt that many lawyers in practice choose not to come into the judiciary because the sacrifice for their families is too great. Similarly, an increasing number of Article III judges have left the judiciary because the opportunities in the private sector were so attractive and the sacrifice for their families so great. We all understand that public service requires some sacrifice. The question is, however, whether the sacrifice has become so great that it threatens the quality of the judiciary. In my judgment, it is incumbent upon those of us who see this problem from the inside to communicate the problem to Congress and to the people of the United States. That is what we attempt to do in our work on the Committee on the Judicial Branch. We recognize that members of Congress, too, are making extraordinary sacrifices financially. We have remained committed to the proposition that senior people in all three branches of government should be paid adequately to ensure the continuing quality of public servants. The President this year recognized the problem, and he and the Chief Justice recommended to Congress that judicial salaries be increased by 16.5%. Although we were disappointed that Congress failed to act on this recommendation, we are hopeful that by continuing to talk with members of Congress about this important issue we will make some progress in upcoming years.

9. Judge Richard A. Posner last month in his “20 questions” interview stated, with respect to federal judicial salaries, “in any event there ought certainly be a cost of living differential to reflect the very large difference in the cost of living between large cities and semi-rural areas.” As someone who does not reside in a large city, what is your reaction to that proposal? And to what extent, if any, is it relevant to the quest for higher federal judicial salaries that several well-known lawyers in private practice have agreed to accept federal appellate court nominations at the cost of forgoing millions of dollars of earnings that they would have received had they remained in private practice?

With all due respect to my colleague, Judge Richard Posner, I oppose vigorously any attempt to provide cost of living adjustments to the judiciary on the basis of some difference in cost of living between large cities and semi-rural areas. I recognize fully that this is somewhat self-serving on my part! I think, however, that there are a very important philosophical and pragmatic problems with such an approach. The philosophical issue is that we should treat all Article III judges equally. We have equal responsibility. We have equal duties. Our votes each count the same. It would be, in my judgment, antithetical to the entire Article III underpinnings to distinguish in salary among judges who have been appointed and confirmed in exactly the same way. The pragmatic problem is that although it is obviously true that there is a difference in cost of living between Lawrence, Kansas, and Chicago, Illinois, that does not change the fact that many of our children go away to college all over the country. The single most troubling aspect of the salary issue has nothing to do with our living arrangements and basic necessities as judges. It has everything to do with what we are able to do for our children and families. The two issues most often cited are paying for college education and the ability to leave some estate for those we love. The judges I know are far less worried about where they live and what they eat personally than whether they have provided as fully for their families as they had the potential to do. I live in Lawrence, Kansas, but I have four children — two of whom are currently in private education and one of whom has been in private education. I know firsthand about the agonizing questions that a judge must ask about whether the sacrifice is too much. Though I love my job and have no intention of leaving, I have experienced several fairly sleepless nights over how to meet various tuition responsibilities. Therefore, I think that this is much more than a cost of living issue.

I cannot respond to how many well-known lawyers in private practice have accepted federal court nominations, but I know that there is something of an increasing trend toward nominees who have already been in public service or in academic life. Although these people often make excellent judges, it is important to the diversity on the federal bench that some of our judges come from private practice. Some of the very best judges on my court are those who have had active private practices and have a very firm understanding of litigation in the private law firm context. It would be a serious blow to the federal judiciary if those people were less inclined to come into the judiciary.

10. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven�t been? Also, how if at all did the new “Law Clerk Hiring Plan” change for better or worse your experience in hiring law clerks who will be reporting to work in the fall of 2004?

Although their academic credentials are, of course, important, I look to hire law clerks that have exhibited interests that go well beyond the law. Many of my clerks have received other advanced degrees and have done significant community and volunteer service. Also, because I received my entire education at public institutions, I feel a real responsibility to look carefully at applicants who come from public institutions. My experience as a faculty member and as a judge tells me that there are excellent candidates who come from a wide range of schools. As is no doubt evidenced from my list of law clerks, I also tend to be as loyal as I can be to those institutions with which I have been affiliated. So far as I can tell, I am getting exactly the kind of applicants that I would like to hire. Indeed, for me, the hardest part is saying no to some who apply.

I very much like the new Law Clerk Hiring Plan. I received exactly the same kind of applicants I always have, but I had much more information on which to rely. I think it is exceedingly important to wait until well after the second year to hire law clerks. I am not among those who think that there is any particular downside to the new hiring plan. I appreciate the work that Judges Ed Becker and Harry Edwards have done on that plan and support it fully. In the interest of fairness, I should say that there are judges on my court who dislike the system and think that it has some regional disadvantages. My personal experience, however, is that we get excellent law clerk applicants no matter what the plan is.

11. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non-precedential decisions in briefs filed in all federal appellate courts. That proposed rule appears to mirror in substance a local rule currently in effect in the Tenth Circuit. Where do you stand on the question of allowing citation to “unpublished” opinions? And do you believe that federal appellate court panels should be able to designate some of their rulings as “non�precedential” upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

The Tenth Circuit local rule on unpublished opinions is, as I understand it, consistent with the proposal being considered. I like our rule. I think it is important to have the opportunity to cite to unpublished opinions but that they should not be precedential. I, however, make it a personal practice rarely to cite to unpublished cases in my opinions.

I do have a personal “gripe” about unpublished opinions. Unpublished decision should be very short and limited strictly to the facts of that particular case. To the extent that they add any new gloss to the law, I think the opinion should be published.

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

Suggestions to improve the quality of briefs: (1) Make them concise; (2) work on clarity; and (3) do not obfuscate.

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

My suggestions are much the same as above. I would only add do not argue as if arguing to a jury. Have a relaxed conversation with the bench and answer all questions directly.

14. Perhaps it is simply my misimpression, but while certain federal appellate courts appear to be in the national headlines regularly, the Tenth Circuit does not seem to be one of them. In researching your court, one of the themes that I found regularly repeated was the court’s very high level of collegiality, a trait that would be welcome, but is not currently always found, throughout the entire federal appellate court system. What to your mind distinguishes the Tenth Circuit from the rest of the federal judicial system, do you think your court’s relative anonymity in the minds of political operatives at the national level has helped in gaining the confirmation of four judges during George W. Bush’s tenure as President, and perhaps you can say a few words about how your circuit reacted to and rebounded from one of the greatest tragedies ever perpetuated against a federal judicial building when the Alfred P. Murrah Federal Building was attacked in April 1995.

The Tenth Circuit has worked very hard to maintain a high level of collegiality among our judges. For the most part, I think we have been very successful. It is important to stress that this collegiality is not about agreeing or even necessarily getting along. It is instead about fostering an atmosphere of mutual respect and understanding, encouraging open dialogue, and facilitating opportunities for the judges to be together to discuss both legal and non-legal issues. Much has been written about the importance of collegiality on an appellate court, so I will not repeat that. I will, however, say that I believe that after almost eighteen years of watching this process, I am increasingly convinced that this elusive but important concept of collegiality makes a difference in the quality of the law. We work very hard at attempting to find consensus. We make suggestions about opinions — both when we are and are not on the panel. We exchange views openly. By and large, the exchange is refreshingly professional, thoughtful, and careful.

We engage in several practices that help maintain collegiality. We schedule all of our oral argument sessions for the same week when all of the judges in the circuit gather in Denver. We have regular administrative meetings together and many social opportunities that most or all of the judges attend. Although some might label this superficial, we find it a very helpful way to become better acquainted and to understand more fully the perspective of each judge. Kindness and professional behavior is simply easier among friends.

I am somewhat surprised that you have asked about our court’s anonymity. When you look back over some of the major cases of the last decade, and indeed of the last century, it is important to be reminded that the Tenth Circuit was the place where Brown v. Board of Education arose, where the Oklahoma City bombing case arose, and the no-call list cases were filed — to just cite a few! I prefer to think of our reputation not as anonymous but as one that is low on controversy. The collegiality to which I have referred saves us from some of the internal court issues that have plagued other circuits. The fact that we have recently added four new judges speaks more, it seems to me, about good nominees and good political support than about anything internal to the court.

Perhaps the darkest day in Tenth Circuit history was the day of the bombing of the Alfred P. Murrah Federal Building in 1995. The namesake of the building, Alfred P. Murrah, was one of the most revered federal judges in our circuit during his time on the bench. I remember exactly where I was when I learned about it — just as I do those infamous dates of the Kennedy assassination and September 11. We all lost friends. Our judges were profoundly affected. Indeed, Judges William Holloway and Robert Henry, both from Oklahoma, were personally affected. In some ways, we knew ahead of the rest of the nation of the horrors of terrorism. I think the experience of that day and the resulting litigation had a sobering and thoughtful impact on all of the courts in the circuit. We understand with great clarity the enormous responsibility that courts have to make sure that we accord defendants all of the constitutional and statutory protections while, at the same time, providing the victims a full and fair adjudication of even the most egregious criminal acts. All of the judges involved in the resulting litigation bore their responsibility with great dignity and seriousness.

15. I understand that you are working with federal judges throughout the nation to encourage increased contact between the judiciary and the press. What is the goal of that effort, and in what ways do you currently view the press as doing a good or not so good job of covering the courts? Also, if I may return to the topic of judicial misconduct complaints, some have criticized the process of investigating and resolving such complaints as too cloaked in secrecy. Do you agree?

Working with the Freedom Forum and the First Amendment Center, the Committee on the Judicial Branch has hosted small colloquia around the country between judges and journalists. These have been very successful meetings in which prominent judges and journalists have convened to discuss issues of common interest to the press and the judiciary. As I indicated above, in my view, the public’s perception of the role of judges and the judicial process is exceedingly important to continuing respect for and understanding of the law. Thus, we have been working with journalists around the country to understand each other’s vantage points on covering court proceedings and court issues.

Coverage of court issues varies considerably around the country. In some media markets, court coverage is a very high priority while in others less so. In general, I think the national coverage of the United States Supreme Court is reasonably good. I do not, however, know what the Justices would say about that. We find that coverage of the courts is particularly difficult for the broadcast media because of the need for “sound bites” in broadcast. These short sound bites are rarely long enough to give the proper context to the complex issues that courts address. On the whole, we have found these judge/journalist seminars to be very effective ways for judges to learn more about the concerns of journalists and vice versa.

On the issue of judicial misconduct complaints, I think it is exceedingly important that these continue to be done internally and without any publication. The vast majority of judicial misconduct complaints are meritless or are more properly the subject for a motion for disqualification rather than a judicial misconduct complaint. In either case, it would be an extreme disservice, both to the judge and to the system, to publicize the fact of a complaint. Any publication would give an entirely misleading sense of the seriousness of the issue. In those misconduct complaints that have merit and are not related to the merits of litigation, chief judges and judicial councils are involved in very important investigation and analysis. It is many times most constructive for the judge and the council to have a full and candid evaluation that occurs principally between the chief judge and the judge involved. Very few of these misconduct complaints would ever reach the level of impeachable offenses. Thus, the interests of the public and the interests of the judiciary are best served by constructive remedial action rather than by any public disclosure. Finally, and perhaps most important, our system of government requires an independent judiciary. Thus, it falls to the judiciary to make certain that it investigates fully every complaint, but that it does so without compromising the independence of a judge or of the judiciary as a whole.

16. Recently there has been press coverage that cutbacks in the federal judiciary’s budget have necessitated and will necessitate the elimination of non-judicial positions within the federal court system. Can you explain whether these job losses are expected to impact the ability of the federal courts to deliver justice in a timely and cost-effective manner, and what effort, if any, is underway to try to obtain additional funding from Congress to avoid these or other threatened cuts?

The federal judiciary is exceedingly concerned about its budgetary status for 2004. The Budget Committee, under the able direction of Judge John Heyburn, has worked tirelessly to try to communicate with Congress about the essential nature of some of the tasks of the judiciary. A current supplemental request is pending. If there are job losses, we will make every attempt to assure that the federal courts can deliver justice as fully and effectively as possible, but it is inevitable that budgetary cuts will impact service. For example, it is essential that we continue to be able to provide defense counsel where necessary, to provide adequate security, to have safe and efficient courtrooms, to provide probation and pretrial services, and to keep up with the civil caseload. These are very large orders in the current budgetary climate.

17. You previously served on the U.S. Sentencing Commission, which among other things is involved in issuing and amending the U.S. Sentencing Guidelines. Some current and former federal judges have spoken out in opposition of the so-called “Feeney Amendment,” a recently-enacted law that has been perceived as further restricting judicial discretion under the Sentencing Guidelines. As simply a matter of policy, what are your views on that amendment?

My immediate concern with the Feeney Amendment is more process-oriented than substance. I share the concern of the Judicial Conference that the Feeney Amendment was promulgated without sufficient consultation with the judiciary. As I understand it, the appropriate committees of the Judicial Conference and the judiciary in general were not informed prior to the promulgation of the Feeney Amendment. As with almost all matters affecting the courts, I firmly believe that the nation is best served when all three branches of government work together prior to the passage of statutory changes — particularly those that affect the criminal justice system so profoundly.

I also share the concern expressed by many of my colleagues regarding the collection of downward departure information on individual judges. Although it is important for Congress to have information about how the Sentencing Guidelines operate as they make legislative judgments on possible amendments to the Guidelines, my experience is that the Sentencing Commission fulfills this function ably. I believe that we should view the authority of Congress to legislate and gather information in the important context of the duty of every judge to perform his or her judicial duties without a hint of intimidation or retribution. Judges cannot be removed from office for their judicial acts. Systematic collection of judge-specific data carries the unfortunate implication of some effort to affect the judge’s performance of his or her judicial duties. Certainly, Congress would have been better informed about this important concern if a dialogue between Congress and the Judiciary had occurred prior to the passage of the Feeney Amendments.

18. During your tenure on the Sentencing Commission, a proposal was considered to eliminate the disparity in sentencing between drug offenses involving crack cocaine and powder cocaine. As I understand it, a majority on the Commission agreed with the proposal, and you were among a minority that dissented in favor of retaining some degree of longer sentences for offenses involving crack, as opposed to powder, cocaine. These disparities in sentencing have been challenged as racially discriminatory in their impact. Would you please explain the arguments for and against having longer sentences for crack-related offenses, and also whether you continue to believe that crack-related offenses are deserving of longer sentences under the Guidelines.

Rather than respond, I simply provide you a copy of that dissent. [The dissent can be accessed here, at “How Appealing Extra.”]

19. What is the proper pronunciation of your name?

I have been asked often about the derivation and pronunciation of my last name. Tacha is my married name. My husband’s family is Czech and the surname is of Czech derivation. We are told that the name originally in Bohemia was spelled “Ptacha.” At some point during their immigration to America, the family dropped the “p” but kept the “c.” The “c” is silent so Tacha is pronounced “Ta-ha.” I have wished many times that they had dropped the “c” out of it as well. It would have made pronunciation much easier. My maiden name is Reece � a good Welsh name which is much easier to pronounce! My first name also confounds many people. Rather than being a misinformed corruption of the French “Danielle,” it is a very Americanized combination of my two grandmothers’ names: “Dean” and “Nell”!

20. What do you do for enjoyment and/or relaxation in your spare time, and please be sure to mention your enthusiasm for Kansas Jayhawks basketball?

Everyone who knows me knows that I am an absolutely fanatical Kansas Jayhawk basketball fan. I attend every game that I possibly can and follow the facts and lore of college basketball with great commitment. In my spare time, I am involved in a number of community activities. I am currently chairing the sesquicentennial celebration of Kansas’s entrance into the United States as a territory. With the passage of the Kansas-Nebraska Act in 1854, the Kansas territory became the site of some of the bloodiest early battles that predated the Civil War. Several East Coast newspapers described Kansas as the crucible in which the Civil War boiled. Indeed, in 1863, Quantrill’s Raiders came to Lawrence and burned the entire city down and murdered countless people. This is also the year of the fiftieth anniversary of Brown v. Board of Education, which will be commemorated throughout the year 2004. I am enjoying working with Kansas’s rich history and with the many people involved in that endeavor. I have been active in many arts and educational organizations and currently serve on the Board of Trustees of the University of Kansas Endowment Association and am actively involved in the work of the United Methodist Church. In my true spare time, I love to cook, get away to the lake, and just be with my husband and children whenever I can.

Monday, December 01, 2003

20 Questions for Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit: “How Appealing” is so very pleased that Circuit Judge Richard A. Posner 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.”

According to a biography accessible online here, Judge Posner was born in New York City in January 11, 1939. He attended undergraduate school at Yale, where he was elected to Phi Beta Kappa his junior year and graduated summa cum laude. He then attended law school at Harvard, where he served as president of the Harvard Law Review and graduated first in his class. After law school, he clerked for Associate Justice William J. Brennan, Jr. of the Supreme Court of the United States. Thereafter, Posner served from 1963-1965 as assistant to Commissioner Philip Elman of the Federal Trade Commission, from 1965-1967 as assistant to Solicitor General Thurgood Marshall, and from 1967-1968 as general counsel to President Lyndon B. Johnson’s Task Force on Communications Policy.

From 1968-1969, Posner taught as an associate professor at Stanford Law School. In 1969, he became a professor of law at the University of Chicago, a job he held until 1981 when he was confirmed to the bench. Since 1981, Judge Posner has continued to teach at the University of Chicago Law School part-time as a senior lecturer, and this Web page provides many more details about his academic and professional accomplishments.

On October 27, 1981, President Ronald W. Reagan nominated Posner to fill a vacancy on the U.S. Court of Appeals for the Seventh Circuit. In less than one month’s time, the U.S. Senate confirmed him for the post. From 1993 through 2000, he served as the Seventh Circuit’s Chief Judge.

Judge Posner has his chambers in Chicago, which is where the Seventh Circuit has its headquarters.

Questions appear below in italics, and Judge Posner’s responses follow in plain text.

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

Most favorite aspects: the variety of cases, which has greatly broadened my knowledge of law, government, and human nature, and given me the opportunity to write judicial opinions, a rhetorical exercise that I greatly enjoy along with the give and take of oral argument. Least favorite aspects of the job: some of the cases are dull, and the average quality of briefs is pretty low.

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

Oliver Wendell Holmes (who was both), probably the only genius in the history of American law, whom I greatly admire for his candor, eloquence, wit, toughmindedness, and judicial creativity. Think only of his labor opinions for the Massachusetts Supreme Judicial Court, his Supreme Court dissents in Abrams and Lochner, and in other free speech and substantive due process cases, and a number of great tort cases.

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 becoming a federal appellate judge, and what concerns if any did you have in 1981 about giving up some or all of your other work to become a judge?

I believe that William F. Baxter, the head of the antitrust division and a former colleague of mine at Stanford, suggested my name. I hadn’t previously had any thought of becoming a judge. My principal concern in accepting the judgeship was the financial sacrifice, because I had a large income from consulting.

4. The confirmation process that nominees for U.S. Court of Appeals vacancies must undergo is quite a bit more politicized today than when you experienced it in 1981. Does the current tenor of the confirmation process cause you any concern? Had your nomination come before today’s U.S. Senate, do you fear that it would have been filibustered? What if anything realistically can be done to improve the nomination and confirmation process, or do you believe the process is working as it should given the significant role that you say an appellate judge’s ideology plays in reaching decisions?

I would have some trouble being confirmed today, though I might squeeze through the way Mike McConnell did, with support from liberal law professors like Cass Sunstein. (My notorious “baby selling” article had been published before I became a judge, yet didn’t block me. And, by the way, let me take this opportunity to correct the record: neither in the article, nor in my subsequent writing on family law and economics, have I ever advocated “baby selling.” I have merely pointed out the consequences of the present legal regime, in which monetary transfers incident to adoption are (nominally) capped, and have suggested, by way of experiment only, that some adoption agencies be permitted to pay women contemplating abortion to carry the fetus to term and put the newborn child up for adoption. I continue to think it would be a worthwhile experiment.) I don’t object to the fact that Senators are concerned about the ideology of judicial candidates; the President is concerned, so why shouldn’t the Senators be? Anyone who is realistic about the American judicial process knows that ideology affects decisions, especially the “hot button” decisions that engage the attention of politicians; and Senators are politicians. What is objectionable about the current process is the length of time it takes. I don’t see why it couldn’t be compressed. Between the time that I agreed to accept appointment as a judge, which was near the end of June 1981, to the time I was confirmed by the Senate, which I think was sometime in November, about five months elapsed, and I don’t see why the process should take any longer than that.

5. You have for many years described your judicial philosophy as one of “judicial pragmatism.” For those readers of this interview who have not previously encountered your description of what that means, would you please explain the term and how your approach to judging works in practice.

There isn’t space enough for me to answer this question fully, and instead let me refer readers to my book Law, Pragmatism, and Democracy (Harvard University Press, 2003), and to an earlier book, Overcoming Law (Harvard University Press, 1995). The essence of judicial pragmatism, or at least my version of it, is recognition that difficult cases–and they are legion in our system–cannot be resolved at the appellate level by a distinctive process of reasoning called “legal reasoning,” emphasizing careful parsing of text and scrupulous adherence to precedent and an analytical method that resembles deductive logic. Those methods do not resolve difficult legal cases, but merely conceal the true springs of decision in such a case, which involve a careful examination of the practical consequences of a decision for or against the appellant. The pragmatist emphasizes the continuity of facts and law, and the importance of common sense, experience, values, and yes, ideology in resolving cases when the conventional materials of judicial decision making–authoritative texts, precedent, deduction, and so forth–run out, as they so frequently do. This is not to deny the virtues, which are thoroughly pragmatic, of logic, fidelity to text, and adherence to precedent, techniques that can resolve most cases–only not the most challenging ones. The pretense that they can is particularly threadbare in the Supreme Court, which decides a very high percentage of cases that are in fact indeterminate from the standpoint of orthodox legal analytics. In any split decision by the Supreme Court, to say that one side is “right” and the other “wrong” is usually a na�ve reaction.

6. A 1998 study of federal appellate judicial opinions issued between 1982 and 1995 found that your opinions were, by an “unusual” statistical margin, cited by judges in other circuits more often than opinions written by any other judge. The study argued that citation by judges in other circuits is the best indicator of judicial influence, making you the most influential federal appellate judge in the country. Given that you are yourself a student of citation studies — having prepared them to analyze the influence of opinions by Cardozo and Hand, and having critiqued citation studies elsewhere — to what do you attribute your top ranking? To your practice of writing opinions yourself, to your issuing more opinions than other judges, to your wide-ranging extracurricular writings and speeches, or to something else entirely?

I don’t see how I can answer this question without seeming to brag. You really ought to ask the judges who cite me why they do so. Obviously one factor in my being cited a lot is that I write more opinions than other federal appellate judges, and it may help as well that I do write my own opinions and that I try to be clear and frank and practical, and if I am right that pragmatism is the secret story of our courts these are qualities in a judicial opinion that should appeal to other judges.

7. Would Justice Posner of the U.S. Supreme Court have been as distinguished a jurist as Judge Posner of the U.S. Court of Appeals for the Seventh Circuit, keeping in mind, to pick one example, how Justice Cardozo’s output on the U.S. Supreme Court differed from Judge Cardozo’s output on the New York Court of Appeals?

Cardozo didn’t have a chance to show his stuff on the Supreme Court. He served for only six years, and actually did quite well–his opinions are heavily cited, as I pointed out in my book Cardozo: A Study in Reputation (University of Chicago Press, 1990). Because he served three times as long on the New York Court of Appeals, it is inevitable that his work on that court should have overshadowed his work on the Supreme Court. I have no idea how I’d do as a Supreme Court Justice. I think the Court is short in political experience, and I would add nothing from that angle. I also note that judges who do well on lower courts sometimes disappoint as Supreme Court Justices.

8. How have you benefited in your work as an appellate judge from serving on occasion by designation as a trial court judge? Might not trial court judges likewise gain worthwhile insights by serving by designation as appellate court judges? Why has the Seventh Circuit not recently allowed its trial court judges to have that experience?

I think I’ve learned a lot from my ventures into the trial court, particularly about the limitations of the adversarial model of factfinding, about the psychological pressures of trials on district judges, and about the differences between the facts as they are developed in a trial and the facts as they appear in the briefs and record of a case when it reaches the court of appeals. The academic work that I’ve done on the law of evidence, and, more recently, academic work that I’ve done with the economist William Landes on patent law, and still more recent academic work that I am doing on the law’s response to the complexities of modern science, stem directly from my experiences presiding at trials.

I have no objection in principle to designating district judges to sit on the court of appeals. The practical objection to any visiting judges, trial or appellate, is that by increasing the de facto size of the court the use of visiting judges makes it more difficult to maintain a reasonable uniformity of approach and decisions–to anticipate the next question.

9. What is your view on whether the Ninth Circuit — which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges — should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best? Also, in your June 2000 article titled “Is the Ninth Circuit too Large: A Statistical Study of Judicial Quality” published in the Journal of Legal Studies, you concluded that the Ninth Circuit’s size was not the direct cause of that circuit’s uniquely high rate of summary reversals by the U.S. Supreme Court. What else may explain the Ninth Circuit’s summary reversal rate on which your article focused?

I think it should be split, not so much because the size per se of an appellate court is inimical to quality, although I think it is, though I cannot prove it, as you note; the larger the court, the more difficult to maintain coherence and collegiality. The particular virtue of splitting would be that it would remedy the worst feature of the Ninth Circuit, namely its bobtailed en banc procedure, whereby the chief judge plus 10 judges chosen at random constitute the en banc panel, leaving 17 judges out, who may include all the judges of the original panel! It is an absurd system, which encourages fission because the three-judge panel that decides the case initially knows that, with luck, the en banc panel will not overturn the three-judge panel’s decision even if the decision is contrary to the views of the court’s majority as a whole. In the opposite case, in which an unrepresentative en banc panel overturns a representative three-judge panel, the judges of the court as a whole are unlikely to take the en banc decision entirely seriously in later cases. So you have a formula for infighting and doctrinal incoherence; and remember that the pragmatist does not deny the value of adherence to precedent in most cases. The article of mine that you mentioned made I think a compelling case that the Ninth Circuit is performing badly, a case reinforced by the impressions that almost everyone has who appears before the Ninth Circuit or reads its opinions.

10. 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 now that you have written somewhere in the ballpark of 2,000 opinions, please list between one and five of them that are your all-time favorites.

I’m glad you like my opinions, but of course other judges also write opinions that are interesting and accessible. (Not that you said I did; but I wish to be clear on the point.) In general I think you’d find that the most interesting and accessible opinions are those that are judge-written rather than clerk-written, or if the clerk wrote a first draft the judge rewrote it thoroughly. The reason is not that the judges are smarter than the law clerks, though obviously they are more experienced, but that law clerks write as it were defensively, conscious of their inexperience and reluctant to produce something that looks like an individual product. Clerk-written opinions tend to a dreary uniformity and often fail to disclose the considerations that actually moved the court to its decision.

I can’t pick out my five favorite opinions; that would require me to have all 2000-odd in my head, or to reread them all, which would be impossible. It’s almost as if you were asking me to choose among my children. But I’ll name a few that I think of fondly, most of which involve art (in however debased a sense) and intellectual property: Mucha, Piarowski, Gracen, Douglass, Nelson, and my absurdly frequent beanie-baby opinions. I would also count among my favorites several of my tort and contract opinions, my dissent in the partial birth abortion case (Hope Clinic), some of my class-action opinions, like Rhone-Poulenc, my recent IP opinions in Apotex (a district court opinion) and Aimster, my privacy opinion in Haynes, and my recent antitrust opinion in the High Fructose case–but I could extend the list quite a bit, to include a number of tax, ERISA, religion, and Indian cases, without going back and reading all 2000+.

11. You were criticized in some quarters for writing and speaking publicly about the Clinton-Lewinsky matter before it was known whether criminal charges against President Clinton would be pursued. Were your critics correct that your comments were in violation of the constraints that apply to federal judges? Are the existing rules clear enough concerning what matters of public interest sitting federal judges may comment on? And finally, if you could scrap the current system and replace it with a set of rules that made the most sense to you, what rules would you choose?

I think the current rules are fine. A judge is not permitted to comment publicly (except in a classroom) on a pending or impending case. I interpret “impending” narrowly, to mean a case that is about to be filed. Interpreted broadly, to mean a case that may someday be filed, it would gag judges, because almost no public issue is not a candidate for an eventual lawsuit. By the time my book on the Clinton-Lewinsky scandal and its aftermath was published, the impeachment trial had ended, in Clinton’s acquittal. And while it was theoretically possible that he would be indicted, the probability was remote, and of course he was not, in the event, indicted. I took pains in the book to make clear that in the unlikely event of further proceedings of some sort, the decision would be based on the record compiled in those proceedings rather than on the record available to me when I wrote my book.

12. What advice do you have for lawyers who practice before your court about how they could improve the quality of their written briefs and their oral arguments? Also, a Westlaw search indicates that you may have argued several U.S. Supreme Court cases long before you became a judge. Which argument of yours would you rank as your best performance at the lectern, and how good of an appellate oral advocate were you?

My advice for lawyers practicing before me and my colleagues is threefold: always explain the purpose of a rule that you want us to apply in your favor, because the purpose of a rule delimits its scope and guides its application; always give us practical reasons for the result you are seeking; and don’t overestimate the knowledge that an appellate judge brings to your case, because we have very little time to prepare for argument in depth, and the breadth of jurisdiction of the federal courts is such that we cannot possibly be experts in all or most of the fields out of which appeals arise.

I argued six cases when I was in the Solicitor General’s office (1965�1967) (and one later). Two of the antitrust cases, Von’s and Schwinn, that I argued when I was in the Solicitor General’s office were the highlights of my brief career as an appellate advocate. I won’t try to assess my performance in that role. My batting average was .600.

13. In the February 2003 installment of my monthly appellate column, I evaluated the quality and usefulness of federal appellate court Web sites. I ranked the Seventh Circuit’s Web site as one of the two best, because of the easy access the site provides not only to published opinions but also to briefs, oral argument audiotapes, and free docket entry information. What role, if any, did you play in making the Seventh Circuit’s Web site such a useful resource? Who else was involved in the effort? And please explain how and why the Seventh Circuit continued to offer online docket entry access free of charge, even after every other federal appellate court decided to follow the Judicial Conference’s edict to charge a per-page access fee.

I can’t take any credit for the Web site. The credit belongs to Gino Agnello, formerly the head of the Seventh Circuit’s IT staff and now the court’s Clerk, but still very active in technical matter, and the members of the IT staff, now headed by Mark Knoll. I don’t remember why we decided not to charge an access fee, although I supported the decision when I was chief judge.

14. I must have read too many Judge Posner opinions before starting my judicial clerkship for a judge serving on the U.S. Court of Appeals for the Third Circuit, because early on I added into a draft opinion a passage that would have ordered an attorney to show cause for violating an important rule. I recall my judge’s response was that we don’t treat attorneys that way in the Third Circuit. Yet even as a practitioner I remain envious of the Seventh Circuit, 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 why 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 think it’s enormously important to maintain discipline in a court’s bar. The rules have a purpose, most of them anyway, and if the judges allow the lawyers to flout them, the lawyers will flout them, gumming up the works. And lawyers who know they can get away with violating the court’s rules develop a contemptuous attitude toward the court, reflected in their briefs and oral arguments, and contributing to docket congestion. Federal judges who do not enforce rules treat lawyers as if they were the judges’ constituents, which they are not, because we are not elected officials.

Amicus curiae briefs are for the most part a complete waste of time and a complete waste of the amici’s money. If an amicus curiae has some distinctive information or perspective to contribute to the consideration of the appeal, fine, but 99 out of 100 times the amicus curiae briefs filed with our court rehash the arguments in the brief of the party whom the amicus is supporting. My views on amicus curiae briefs are set forth at greater length in a recent opinion, Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542 (7th Cir. 2003) (in chambers).

15. Time for a law and economics question. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

I think the salary is too low, not because I consider myself underpaid, but because the current salary makes it difficult to hire successful lawyers from elite law firms, especially in cities in which the cost of living is very high, such as New York; and as a result the diversity of the federal judiciary is reduced along with the judiciary’s sophistication in commercial cases. Not that there aren’t plenty of qualified candidates even at the present salary level, which is about that of a second-year associate at a New York firm; I am concerned specifically about the judiciary’s lacking the particular kinds of knowledge, experience, and perspective that the elite practitioners at such firms could bring to the court. But in any event there ought certainly be a cost of living differential to reflect the very large difference in the cost of living between large cities and semi-rural areas. That would alleviate the problem to a certain extent.

16. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non-precedential decisions in briefs filed in all federal appellate courts. Where do you stand on the question of allowing citation to “unpublished” opinions; do you believe that federal appellate court panels should be able to designate some of their rulings as “non-precedential” upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

I don’t like the idea of allowing unpublished opinions to be cited, which is another way of saying that I think courts should be permitted to designate some of their decisions as nonprecedential and therefore not worth citing. (Apparently under the new rule, we won’t be allowed to forbid citation of unpublished opinions, but will be allowed to deny precedential force to them, a combination that seems to me to make no sense.) Caseload pressures are such that judges cannot give adequate scrutiny to every decision. I predict that if courts were forbidden to designate certain decisions as nonprecedential, they would cease issuing reasoned opinions in such cases but instead would just say “Affirmed,” which is already the practice in the busier circuits. Our court has always given reasons for its decisions, but if those reasons can come back to haunt us, even though they were actually reasons furnished by staff rather than by judges, we might stop doing so.

17. The Economist magazine recently reviewed your latest book, “Law, Pragmatism, and Democracy.” The review, accessible here, describes you as “loony,” states that your effort to explain your views suffers from their “incoherence,” and then concludes with the following: “More troubling still is Mr Posner’s view that judges should impose their own policy choices on a case whenever ambiguity in the law gives them the discretion to do so. Many judges do this, though nearly all deny it, justifying their decisions instead by reference to laws and court precedents. Mr Posner thinks this is usually legal flim-flammery, and that frank judicial activism would be better. Few people, on the right or the left, would swallow this. Mr Posner is a spirited analyst of contemporary politics, and he can be an entertaining and provocative thinker. His account of the controversial Supreme Court decision awarding George Bush the presidency is well worth reading. But as his book also makes clear, he is not much of a legal theorist, and he might have made a better legislator, academic or even political campaigner than a judge.” Your response?

The (anonymous) author of the review doesn’t know anything about the American judiciary (the Economist is an English magazine), and I would be surprised if he or she had ever read my opinions, or for that matter Law, Pragmatism, and Democracy. It is an academic book that the reviewer was incompetent to evaluate, and the use of the word “loony” reveals the reviewer’s level of taste and sophistication. If you want to read a fair-minded review of the book, read the review in the New York Times Book Review (I think in September) by the distinguished English (!) philosopher Alan Ryan. [Editor’s note: Alan Ryan’s review can be found at this link.]

18. In December 2001, The New Yorker magazine published a profile of you. Were you pleased with how that turned out, and did the profile contain anything about you that you found to be incorrect or misleading? Also, my audience would be disappointed if I did not ask you to mention your celebrity cat.

I never miss an opportunity to mention Dinah, who is not only a celebrity, but is pedigreed, a beauty, and a serial mouser (52 mice to her credit), and in all these respects very much the superior of her nominal master. The New Yorker profile, which is by a fine journalist, Larissa MacFarquhar, was witty, perceptive, and on the whole accurate, though there are a few points that I would take issue with (including the reference–inevitable, I suppose, in any article about me in the popular media–to baby selling.) It is critical, and makes me out to be rather an eccentric, but criticism is bracing and praise dangerously relaxing, and since the Economist thinks I’m loony, I am happy to be thought merely eccentric. MacFarquhar also exaggerated my role in the law and economics movement, but that’s fine!

19. In January 2004, you will turn 65 years old, thereby qualifying to elect senior status if you wish. What are your thoughts about when you would consider cutting back on your workload at the court, providing you with more time to pursue other interests? Also, in March 2003, The Harvard Crimson mentioned you as among the candidates under consideration to become the next Dean of Harvard Law School. As you know, that job has since gone to someone whom the U.S. Senate did not get around to confirming as a federal appellate judge. Had you been offered the job of Dean of Harvard Law, would you have accepted?

I have no interest in taking senior status. At some point I will run out of steam, but not I think on my sixty-fifth birthday.

I would not enjoy being an academic administrator.

20. If you could add a few more hours to each day, how would you spend them?

I’d like to have more time to read.

Monday, November 03, 2003

20 Questions for Senior Circuit Judge Richard S. Arnold of the U.S. Court of Appeals for the Eighth Circuit: “How Appealing” is delighted that Senior Circuit Judge Richard S. Arnold of the U.S. Court of Appeals for the Eighth Circuit has agreed to participate in this Web log’s recurring monthly feature, “20 Questions for the Appellate Judge.”

Judge Arnold was born in Texarkana, Texas in 1936 and was raised in Arkansas. He attended undergraduate school at Yale and law school at Harvard, graduating first in his class from both schools. After law school, he clerked for Associate Justice William J. Brennan, Jr. of the Supreme Court of the United States. After that clerkship, Arnold practiced law for several years at Covington and Burling in Washington D.C. and then returned to Texarkana to practice at Arnold and Arnold. In 1973, he joined the staff of Arkansas Governor Dale Bumpers and continued working for U.S. Senator Dale Bumpers in 1975.

In 1978, President Jimmy Carter nominated Arnold to fill a vacancy on the U.S. District Court for the Eastern and Western Districts of Arkansas. In late 1979, President Carter nominated Judge Arnold to fill a newly-created seat on the U.S. Court of Appeals for the Eighth Circuit. The U.S. Senate confirmed Judge Arnold in February 1980. From 1992 through 1998, he served as the Eighth Circuit’s Chief Judge. He took senior status in April 2001.

Judge Arnold has his chambers in Little Rock, Arkansas, and the Eighth Circuit has its headquarters in St. Louis, Missouri.

Questions appear below in italics, and Judge Arnold’s responses follow in plain text.

1. Both you and your younger brother, Morris Sheppard Arnold, serve as judges on the U.S. Court of Appeals for the Eighth Circuit, and both of you first served as U.S. District Judges. Your brother, however, was nominated to the district court by President Ronald W. Reagan and to the Eighth Circuit by President George H.W. Bush, while President Carter was responsible for your nominations. What was it about the household in which you and your brother were raised that produced two federal appellate judges, one from each major political party? Also, please explain your family’s connection to Morris Sheppard, who from 1913 to 1941 served as a U.S. Senator from Texas.

I don’t know that the household or family can be blamed for my brother’s and my having once belonged to different political parties. I think it is more the result of free choice that we made after becoming adults.

Thank you for asking about my grandfather, Morris Sheppard. At the time of his death, in 1941, he was Dean of the Congress and Chairman of the Senate Committee on Military Affairs. His oldest daughter, Janet, was my mother. I am very proud of his record of public service. I would like to add that my cousin, Connie Mack, the son of my mother’s sister, served two terms in the Senate.

2. In 1998, the U.S. Congress amended the statute codified at 28 U.S.C. sec. 458 to prohibit the appointment to any U.S. District Court or U.S. Court of Appeals any person “who is related by affinity or consanguinity within the degree of first cousin to any judge who is a member of the same court.” As far as I am aware, you and your brother are the only brothers to have ever served together on a federal appellate court. As a matter of policy, do you support or disagree with the prohibition contained in Section 458?

I think I should not comment on whether I approve or disapprove, as a matter of policy, of a statute. I will say that when my brother was nominated for the Court of Appeals, no objection whatever was raised, at least to my knowledge, on the basis of our relationship. The statute was enacted in the aftermath of the confirmation of Willie Fletcher to be a United States Circuit Judge for the Ninth Circuit. Judge Fletcher’s mother, Betty, is also a member of that Court.

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

The aspect of the job I like most is that all I have to do is do right. Every day when I come to work and pick up a file, that is my only job. Let right be done.

My least favorite aspect of the job is the volume. It often does not leave one with enough time to think about cases properly. I am grateful that the problem is less acute now that I have taken senior status.

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

Mr. Justice Brennan. Not only did he give me a job, he gave me an example of a unique combination of intellect and compassion. He was a superb judge. He started as my boss, and ended as a loving friend.

5. The confirmation process that nominees for U.S. Court of Appeals vacancies must undergo is quite a bit more politicized today than it was when you experienced it in 1980. Does the current tenor of the confirmation process cause you any concern as a sitting federal appellate judge, and what if anything realistically can be done to improve the nomination and confirmation process?

Yes, the current tenor of the confirmation process does cause me concern. I think it is much too highly politicized, on both sides. People who are qualified and ought to be confirmed are being rejected, or simply not voted on, for what seem to me to be insufficient reasons. I don’t know what can be done realistically to improve the process. As a practical matter, it helps for the President and the Senate to be of the same party, but there will necessarily be times, like the present, when that isn’t true.

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

Personal preferences should be laid aside, and mostly, I believe, they can be. All judges are human, and we can’t achieve perfection, but we should strive to follow the law according to neutral principles (and I believe they exist). A judicial activist is someone who writes his own preferences into the result of cases without thinking about much else.

7. In 1994, you were widely reported to be a finalist to fill the vacancy created on the Supreme Court of the United States when Harry A. Blackmun announced his intention to retire. Why, to the best of your understanding, did President Clinton not pick you, and in retrospect are you pleased, disappointed, or some combination of the two about not having had the opportunity to serve as a Justice on the Court on which you once clerked?

I will tell you what the President told me, and I believe it is accurate. I have had a form of lymphoma since 1975. From time to time, it needs to be treated, though it does not usually interfere with judicial functioning. The problem was doubts about longevity. No physician acceptable to the White House was willing to give sufficient assurances on that score. I also had some political opposition, but I believe that health was the dispositive factor.

I would like to add two things. First, I have no complaints about how the President treated me. He was very considerate of me, and he has been a good friend to me. Second, I said at the time that Chief Judge (as he then was) Breyer would be a wonderful justice, and events have proved me right.

As to whether I was disappointed, I think you know the answer.

8. Tony Mauro, who once covered the U.S. Supreme Court for USA Today and who now covers the Court for The American Lawyer, wrote in 1994 that the only reason President Clinton did not nominate you to replace Justice Blackmun was that physicians were unable to assure the White House that you would be able to serve on the Court for at least fifteen years given your medical history of cancer. The article went on to note that under the Americans with Disabilities Act, covered businesses would have been prohibited from refusing to hire someone on that basis. Is it correct to say that the reason you were not nominated to the U.S. Supreme Court was because of concerns about how long you could serve on the Court, and if indeed that were the reason, would you consider yourself to have been a victim of discrimination?

I don’t know about 15 years, but Mr. Mauro’s statement is otherwise accurate, to my knowledge. I don’t feel discriminated against, however. In the first place, as a matter of law, the Americans with Disabilities Act applies only to employment, not to appointment to federal office. In the second place, an expectation of longevity has been, for a long time, a practical political consideration in appointing judges, especially justices of the Supreme Court. The factor has received more weight, in my opinion, than it deserves, but it is an aspect of political life.

9. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as “pragmatic.” How would you describe your judicial philosophy, and what types of cases have you found the most difficult to decide?

I doubt that I am a pragmatist in the sense that Dick Posner uses the word. (Incidentally, I admire him greatly. He is a true legal genius.) I regard myself as more of a “constitutionalist” or “legalist.” In this regard, Justice Black is a model of mine. The job of judges, in most cases, is to ascertain and apply the will of other people, for example, the Framers of the Constitution or of a statute. In the case of the Constitution, of course, it’s hardly ever possible to determine with certainty what the Framers intended about a particular question. So we lower-court judges are occupied mainly with applying precedent and, in default thereof, such scraps of history and tradition as we can lay our hands on.

10. What is your view on whether the Ninth Circuit — which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges — should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

I have many friends on the Ninth Circuit, most of whom are opposed to splitting it, so I hate to answer the question. The question is for Congress. I prefer not to express a view.

11. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven’t been? Also, how if at all did the new “Law Clerk Hiring Plan” change for better or worse your experience in hiring law clerks who will be reporting to work in the fall of 2004?

The best quality to have in a law clerk is good writing ability, and it’s impossible to determine in advance whether a person has that. I don’t know of any sorts of candidates that I wish were applying but haven’t been. The new hiring plan, to which I am voluntarily adhering, changes the process simply by moving it forward one year, which is a good thing. I was not hired as a law clerk until December of my third year of law school, with the job to begin in July. I don’t see why judges should be in a big hurry to hire law clerks.

12. Let me begin by disclosing that I am an enthusiastic supporter of the view that federal appellate courts should not be able to issue decisions identified as “non-precedential.” You are perceived, rightly or wrongly, as at the forefront of that cause, having raised the subject as an addenda in 1998 to your letter to the Commission on Structural Alternatives for the Federal Courts of Appeals, in your 1999 law review article titled “Unpublished Opinions: A Comment,” and in your decision for a three-judge panel of the Eighth Circuit in 2000 in Anastasoff v. United States holding that the Eighth Circuit acted unconstitutionally in adopting a local rule providing that unpublished Eighth Circuit opinions were non-precedential. Of course, the Eighth Circuit granted rehearing en banc in Anastasoff and dismissed the case as moot because the federal government, in the interim, had changed its position and decided that Ms. Anastasoff was in fact entitled to receive the tax refund she was seeking in her lawsuit. The en banc opinion also vacated your panel opinion. As a result, the Eighth Circuit local rule that your panel opinion condemned as unconstitutional remains in effect today. On the other hand, in 2002 the U.S. Court of Appeals for the D.C. Circuit abolished prospectively the concept of non-precedential rulings, the Federal Rules of Appellate Procedure are on the verge of being amended to allow appellate briefs to cite unpublished and non-precedential decisions, and Congress recently passed a law that will soon require the federal appellate courts to post all unpublished opinions online as they are issued. How satisfied are you with the current state of affairs concerning non-precedential rulings by federal appellate courts?

I wrote the opinion dismissing the Anastasoff case as moot. Whether rehearing en banc would have been granted had the only issue before the Court been the merits, I just don’t know, nor do I think it would be appropriate to speculate on the subject. As to the current state of affairs, I believe it is moving in the right direction. The most vulnerable part of current practice, in some circuits, is the rule against citation. This rule and attempts to enforce it are doomed to fail. Entirely apart from any legal difficulties or theoretical problems, it is just not possible to put that much of a restraint on the availability of information.

13. Knowing what you know today, are foes of non-precedential federal appellate court opinions better advised to focus their efforts on achieving changes through the rulemaking process (keeping in mind that it was the rulemaking process that gave birth to non-precedential opinions) or on achieving changes through the adjudicatory process?

I don’t know the answer to this question. Experience up to now indicates that the rulemaking process may be the best avenue. A lot of people who agree with me that there should be no such thing as a non-precedential opinion don’t agree with my Article III approach. Incidentally, there is also a good equal-protection argument to be made, but I didn’t feel it necessary to reach it.

14. Had the Anastasoff case not become moot before the en banc Eighth Circuit could reach the merits, was it your prediction that the en banc court would have agreed with you the local rule declaring unpublished opinions non-precedential should be abolished, and why has the Eighth Circuit not repealed, via the rulemaking process, the rule your panel opinion condemned as unconstitutional?

I don’t have a prediction on this subject. As to why the Eighth Circuit has not repealed its rule, the answer is that a majority of the Court does not want to. I will add, however, that we have never sanctioned a lawyer for citing an unpublished opinion, or even threatened to.

15. Even some who are sympathetic to your view that non-precedential federal appellate opinions should not exist believe that Ninth Circuit Judge Alex Kozinski demolished the foundation of your panel opinion in Anastasoff in his decision in 2001 for a unanimous three-judge Ninth Circuit panel in Hart v. Massanari. Did Judge Kozinski�s opinion in Hart demonstrate to you that you had either reached the wrong decision in your panel opinion in Anastasoff or had reached the right decision but for the wrong reasons, and where if at all did Judge Kozinski err in his opinion in Hart?

No, I not convinced by Hart. The opinion, which is a fine job of scholarship, proves, if it proves anything, that the concept of precedent was somewhat fluid in the 18th Century. That is not the point. The question is whether certain kinds of opinions, in this case, opinions that a court does not send to certain legal publishers, can be declared a priori to be without precedential value. Such an idea would have been entirely foreign to the 18th-Century legal mind.

16. Tony Mauro, in an article published in May 2003, paraphrases you as saying that the proposed rule allowing citation to unpublished and non-precedential federal appellate opinions “would lead almost inevitably to giving unpublished opinions substantial weight as precedents.” He also quotes you directly as saying that you “hope the slope is very steep and very slippery” toward the widespread use of unpublished opinions and that “I don’t know what judges are afraid of.” What in your view is the best argument those in favor of retaining non-precedential federal appellate opinions have to offer, which side in this battle do you expect to emerge victorious, and when and how do you expect the battle to be resolved?

There isn’t any good argument. It’s my opinion that judges who believe that unpublished opinions should be without precedential value are driven to that conclusion by the sheer volume of work. I don’t know how the battle will be resolved, but ultimately I hope and believe that the idea of non-precedential opinions of any kind will be consigned to the dust bin.

17. 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?

Yes, I confess to a bias on this subject, and not just the bias that all judges hold. I am now serving as Vice Chairman of the Committee on the Judicial Branch of the Judicial Conference of the United States. One of the main jobs of the Committee is to advocate a pay raise, in accordance with Judicial Conference policy. We are supporting proposals in Congress to raise the salary of all judges by about $25,000. The President has endorsed this proposal. As to how to determine what the proper salary would be, it should be said that we are not asking for what partners in big-city law firms make. A point of comparability might be the salaries of law-school deans or chaired professors. As Justice Breyer has pointed out in a masterful presentation, the average law-school dean at a top law school makes about $300,000.

18. What is the best advice you ever received on being an effective federal appellate judge, and from whom did you receive it?

Most of the work we do is hidden. The opinions are only the tip of the iceberg. Perhaps the best advice I ever received came from one of my colleagues, Judge Gerald Heaney. He said that the best opinion is one you sit down and write immediately after the argument.

19. What are the most significant ways that attorneys practicing before the U.S. Courts of Appeals could improve their appellate briefs and their appellate oral arguments?

Many briefs are ungrammatical and poorly proofread. These are elementary respects in which briefs could be improved. Also, the statement of facts is the most important part of the brief, because it is the part of the case about which the judges know least. It should receive more emphasis.

Oral arguments should get to the point. The time is short. Don’t be irritated with judges who ask questions. You may hear something that is the key to your case.

20. What do you do for enjoyment and/or relaxation in your spare time?

Pray and play golf.

Tuesday, October 07, 2003

20 Questions for Circuit Judge Stanley F. Birch, Jr. of the U.S. Court of Appeals for the Eleventh Circuit: “How Appealing” is delighted that Circuit Judge Stanley F. Birch, Jr. of the U.S. Court of Appeals for the Eleventh Circuit has agreed to participate in this Web log�s recurring monthly feature, “20 Questions for the Appellate Judge.”

Judge Birch joined the Eleventh Circuit in May 1990 at the age of 44. He attended undergraduate school at the University of Virginia and law school at the Emory University School of Law, from which he received both his J.D. and LL.M. in Taxation degrees. Following law school, he served as a first lieutenant in the U.S. Army for two years with the Special Forces and is a Vietnam Veteran. Thereafter, he began a two�year judicial clerkship for Chief U.S. District Judge Sidney O. Smith, Jr. of the Northern District of Georgia. Following that clerkship, Birch entered the private practice of law, working first in Gainesville, Georgia and then, beginning in 1985, in Atlanta.

Judge Birch has his chambers in Atlanta, which is where the Eleventh Circuit has its headquarters.

Questions appear below in italics, and Judge Birch’s responses follow in plain text.

1. I see that you and a colleague of yours on the Eleventh Circuit, Chief Judge J.L. Edmondson, both clerked for the same U.S. District Judge in the early 1970s, and your clerkships appear to have overlapped for one year. Now your former co�clerk is Chief Judge of the Eleventh Circuit, and you are in line to become the next Chief Judge when his tenure in that post ends in 2009. If someone had told District Judge Smith back in 1973 that his two law clerks would go on to serve together as Judges on the federal court of appeals, do you think he would have believed it? And what, if anything, did both you and Chief Judge Edmondson take away from your clerkship experiences that enabled you to end up where you both are today?

With little doubt, absent the inspiration of Chief Judge Sidney O. Smith, Jr., Chief Judge J.L. Edmondson (“Larry”) and I, probably would be country lawyers in the hinterland of North Georgia — or practicing law in Samoa, where we seriously considered applying for clerkships on the High Court after leaving Judge Smith! In annual bar polls conducted in Atlanta, Judge Smith was consistently ranked first — and that was no accident. We both learned much from his quiet, concerned and competent approach to judging.

Judge Smith displayed to himself a plaque on his desk and on his bench bearing the acronym “KYDMS.” After awhile I inquired as to its meaning. “Keep your damn mouth shut” was his answer and his approach — one that many judges should embrace. A Georgia small-town native, Judge Smith had been educated at Middlesex School and Harvard College (where he played football), served in the military, and graduated first in his class at the University of Georgia Law School. He returned to his hometown as a lawyer, eventually becoming an elected Superior Court (trial) judge, and was then appointed by President Lyndon Johnson as an Article III Judge.

Judge Smith could “cut through the crap” as we often heard from lawyers — he got to the heart of the matter before him. His hallmark was the application of common sense in every case. He treated everyone, from the janitor to his fellow judges with dignity and respect. He counseled me as I departed for service in the Army and to Vietnam (after law school, but not as a JAG) that the experience with “my men” would teach me a great deal about human nature and myself. The experience, he noted, would stand me in good stead later as a trial lawyer. He was so wise. As he predicted, I formed relationships and bonds with men I would never otherwise have encountered in my life — and I am a better person (and probably judge) for it.

When Judge Smith left the bench at the conclusion of my clerkship to become a senior partner in Alston, Miller & Gaines (now Alston & Bird) I shared the sadness and sense of loss that the bar experienced. Judge Smith had been frustrated by Congress in not providing the Northern District with enough trial judges for its exploding complex caseload and in failing to pay judges a liveable wage — his son was on the way to Harvard and he also had two daughters to educate.

You ask whether he would have believed that we would one day become judges. I think that he was not really surprised. One of his other law clerks became a Georgia Superior Court Judge and another the director of Georgia Indigent Legal Services. Others all went on to be successful in law practices and have made contributions in public service as well. His confidence in us, the great trust and responsibility he placed in us, and his kindness nurtured an attitude of self-confidence — but a humble self-confidence born of spending two years with a truly remarkable man and role model.

On a recent visit to Judge Smith for lunch in Gainesville, his now-deceased wife and magnificent lady, Patsy, called out as Larry and I walked up to the porch: “Sid, the boys are here.” We are here in many ways because of Judge Smith. I only hope that I can also inspire, to some small degree, my clerks to aspire to the bench and public service as well.

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

The interaction with my law clerks, the time spent dissecting good legal arguments and drafting an opinion, and the collegial time spent with my fellow judges are the favorite aspects of this “job.” The least favorite aspects include dealing with issues and gaps in legislation that an increasingly partisan Congress causes to be considered by the courts. Another negative aspect of the job is the constant prioritizing and re-prioritizing of our work in order to afford the time and focus needed to properly address the ever-growing number and complexity of cases we confront. When I began this job our twelve active judges faced case filings totaling about 4,475. Now, the same twelve active judges (and several fine senior judges) must resolve over 7,000 cases. We are all very tired. Many of us are also frustrated with the manner in which we are treated by Congress — both as to our cost-of-living increases (few) and the budget of the Third Branch of government. More than a few in Congress appear to view us as another administrative agency. Our entire budget is less than that of the Justice Department. But then, nobody promised us a rose garden.

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

I come to work each day in the courthouse named for my most admired judge (other than Judge Smith), Elbert Parr Tuttle. Upon arrival on my first day of work as a new judge with no judicial experience, before the coffee got warm Judge Elbert Tuttle walked in to the office to say “hello” and to welcome me. We had met at the festivities surrounding my investiture, but really had no occasion to “visit.” He let me know that he was just below on the next floor and that he would be pleased if I would call on him for any advice that I thought he might have for me. Judge Tuttle and his life-partner, Sara, were some of the most warm, wonderful, elegant, and accomplished people I will likely ever know. He came to his chambers everyday and worked — well into his 90’s. Together with Sara, Judge Tuttle, the quintessential southern gentlemen, set the tone of collegiality and conviviality that still pervades our court and makes it a wonderful place to work. I had the privilege, together with Judge John Fullam (sitting as a senior judge by designation) of sitting with Judge Tuttle on his last oral argument panel. His body had slowed down, but his mind and quiet wit were razor sharp. I encourage those who do not know this Medal of Freedom and Devitt Award recipient, Army General (fighting in hand-to-hand combat against the Japanese as a 40+ colonel), confidant of President Eisenhower, pro bono advocate in Johnson v. Zerbst, and one of the “Unlikely Heroes” in Professor Jack Bass’s recounting of the civil rights era, to become acquainted with this great American. See his tribute in Volume 82 of the Cornell Law Review (1996); and, the many articles and forthcoming biography by Professor Anne S. Emanuel (one of his former law clerks).

4. How did you come to President George H.W. Bush’s attention as a potential nominee to serve on the U.S. Court of Appeals for the Eleventh Circuit?

After clerking for Judge Smith I concentrated on a path to best position myself for selection to the federal bench. Aside from furthering my legal education (a masters of law in taxation) and involving myself in a practice focused primarily in the federal courts, I realized that active involvement in the political process was essential.

For me this was not difficult since I have always believed that for a democracy like ours to work, dedicated citizens must become involved in a positive way in solving our nation’s problems and maintaining it on the correct course. I had, when politically active, the greatest respect for folks with different or even opposing political views. We all wanted what was best for our nation — we just advocated a different approach to the solutions needed to accomplish that goal. The greatest threat to our form of government is apathy.

I became active in the Republican Party because, at a national level, I was more in tune with its philosophy for good government. I say at “the national level” because when I became active in Georgia there were few in Georgia who would admit to being a Republican. However, the Republican approach to governing was truly what most Georgia Democrats embraced and practiced while clinging to the name “Democrat.” History has validated my early observation. I directed Senate candidate Mack Mattingly’s campaign in North Georgia when, to the surprise of many, he defeated Herman Talmadge, an entrenched southern senator. During the following years, I remained active in building the Republican Party in Georgia. This State has become a two-party state which is a good thing for Georgia. Becoming active politically lets the President have a good idea of your political philosophy. If you combine that with becoming known as a solid lawyer otherwise involved in your community and in bar work, you have laid the ground-work you need to be considered for judicial appointment. I did that.

After being on the “short-list” for three district court vacancies, the powers-that-be in Washington knew of me when the vacancy for the Eleventh Circuit occurred. After written submissions, I was invited to Washington to spend a day at the Justice Department being interviewed by about ten people, including a long session with then-Solicitor General Ken Starr. I can honestly report that no one asked me how I would vote on any ideological issue. The closest that anyone came was a question from a high-ranking Justice Department official inquiring as to how I viewed the separation of church and state. My reply was that while I had little opportunity to think about such a lofty issue in my mundane practice, I thought the founding fathers wise to insist upon a clear division, but that I worried that the state might be coming hostile to all things religious — which I believed to be a mistake.

After vetting my work and my background, hearing what I had to offer, and meeting with me for that day, I heard from the White House a month later that I would be President Bush’s nominee. I was at once humbled and elated. I will never forget the personal telephone call I received from the President inviting me to serve.

5. Your official Federal Judicial Center biography indicates that President Bush nominated you to fill a vacancy on the Eleventh Circuit on March 22, 1990 and the U.S. Senate confirmed you to serve as a U.S. Circuit Judge fewer than two months later, on May 11, 1990. Today, not too many of the least controversial federal appellate court nominees make it through the process that quickly, and for those who have, or are perceived to have, views that the opposing political party finds objectionable, the wait for confirmation can be interminable. Now there’s no doubt plenty of blame to be shared between both political parties for the current state of things, but when you look at the situation facing Eleventh Circuit nominee William H. Pryor, Jr. or other stalled nominees, what is your reaction, and how if at all could the process for selecting and confirming nominees be improved?

I wish I had the answer because the courts need to fill vacancies quickly and with solid folks. In most human endeavors where conflict exists one constant for improving the situation is usually enhanced communication — both in quantity and quality. I am not sure that the three branches of government communicate well with one another. In fact, there seems to be precious little informal communication between the Third Branch and the two other branches. I don’t suggest that it is anyone’s fault, we are all busy doing our respective jobs, but more understanding of each others’ problems, concerns, and ideas garnered in a less formal setting than testifying before a Congressional committee could not hurt. Judges leave this type of communication too often to the Administrative Office of the Courts who deal with Congressional staffers. While that is necessary and helpful, a more personal and structured dialogue between judges, Members of Congress and the Executive Branch may be one of the answers to many of the problems characterized as “partisan gridlock.” Perhaps I am just naive and unsophisticated in the ways of Washington, but to me it is as plain as the nose on my face that government seems to be pulling apart instead of pulling together. Perhaps that is not so and the media focuses us only the negative, but I suspect my colleagues inside the Beltway may concur in my opinion.

6. You and I are both graduates of the Emory University School of Law, as are several of your colleagues on the Eleventh Circuit. I remember feeling proud back in 1990 when I learned, while in the midst of my own judicial clerkship, that President Bush had chosen one Emory Law graduate to fill the Eleventh Circuit vacancy created when another Emory Law graduate, Circuit Judge James C. Hill, took senior status. Around the time of my law school graduation, Emory was placing its law students in judicial clerkships not only on federal appellate courts in the South, but also on the D.C., Second, and Third Circuits. Someone who graduated two years before me went on to clerk at the U.S. Supreme Court from a Second Circuit clerkship. This is an admittedly long-winded way of offering you the opportunity, if you’d like, to say something nice about the Emory School of Law that perhaps might cause federal and state appellate court judges from throughout the Nation to look even more favorably on clerkship applicants from our law school.

Some of my finest law clerks have come to me from the Emory Law School — they have performed on a par with clerks from the high profile institutions such as Harvard, Yale, Columbia, Chicago, Virginia, Duke and Georgetown. I have remained active in the life of the law school, serving recently as president of the alumni association and on the alumni council. The school has marvelous, modern, handsome, and fully-automated facilities; a scholarly, dedicated and teaching-oriented faculty and a diverse and interesting student body. Its placement in the finest city on earth doesn’t hurt either. Many of my judicial colleagues have assured me that prospecting for diamond quality clerks at Emory is easier and more often rewarding than mining the often depleted resources of other better known fields. If I say too much I will be working against my own self interest — enough said.

7. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as “pragmatic.” How would you describe your judicial philosophy, and what types of cases have you found the most difficult to decide?

Thanks for mentioning Judge Posner in my question — he is a fine author and jurist! I would describe my “judicial philosophy” as one centered on common sense and stare decisis (and when the two diverge, stare decisis with criticism). In many ways I suppose I am more of an idealist then an ideologue. Some of my colleagues and law clerks, I suspect, think that I am naive and not nearly as cynical as some situations warrant. However, in this job I think we have a duty to maintain the purity of the law and where possible differentiate between the correct and the wrong by drawing the lines of legal demarcation as clearly as possible. We are sometimes unfairly criticized as being removed from reality and encased in an ivory tower. I have always viewed the courthouse as a temple of justice where our job is to keep the flame of the rule of law burning brightly. Temples are places where high ideals and lofty ideas are worshiped. It is the harmonizing of such ideals and ideas, embodied in our Constitution and the rule of law, with the trials of daily life that I view as our challenge. As long as that harmonizing process is undertaken with the catalyst of common sense, then I feel we have succeeded in discharging our trust.

I have found those cases where a balancing process must always be employed between sometimes conflicting fundamental rights to be the most difficult. The collision of First Amendment free speech rights and any number of other personal liberties always produce for me the greatest anxiety.

8. You are considered one of the foremost experts on copyright and intellectual property law serving on the federal appellate bench. What has caused those areas of the law to be of such great interest to you, which of your own opinions do you view as your most important contributions to that area of the law, what type of copyright and intellectual property issues do you expect to be grappling with five to ten years from now, and do you think that the U.S. Supreme Court reached the right result for the right reasons in Eldred v. Ashcroft?

I appreciate your compliment — but there are other judges who have contributed greatly to the development of intellectual property law; I am privileged to have made a contribution as well.

To quote my good friend, Professor L. Ray Patterson: “There is no legal concept so important to so many that is understood by so few as copyright.” To that I say AMEN! Copyright affects core activities of a democratic republic — learning and communication. Copyright places limits on what, where and when citizens may read, see and hear. But those limits are carefully circumscribed. Copyright was born out of censorship in England and the response to that censorship, the statute of Anne, was incorporated into our Constitution (Article I, Section 8, Clause 8). That clause together with the complementary free speech clause of the First Amendment stand as a bulwark in protecting the free flow of ideas in a free society. In our society of free men (and women) and free markets, the necessity for informed citizens and consumers is essential. Uninhibited access to information and the ability to process it, critically, is central to our way of life — politically and economically. But therein lies the problem, the marketing monopoly that inheres in copyright represents a conflict between two fundamental tenets of American society: free speech (and the concomitant right to hear it) and free enterprise. With the advent of the transmission copyright and the technological age of communication and learning, we are called upon to reconcile, balance and harmonize these forces in a manner true to our history and enriching to our future. From a legal standpoint I cannot think of a more challenging and exciting place to be — that is why copyright holds such interest for me. To some degree, the same may be said of trademark, trade secret, and unfair competition law as well. As I tell my clerks — in the law this is “where the action is”! That is why I find the law of copyright so fascinating and why I attempt to stay “current” in that body of law.

As to my opinions that I view as important contributions to that area of law, I would hope they are all important contributions — I certainly worked hard on them with that in mind. Whether “history” treats them that way will be for others to decide. In a recent opinion I had the opportunity of examining the important, and often overlooked, relationship between copyright and the First Amendment. Because I am a “son of the South” I enjoyed the opportunity to write about copyright in the context of Margaret Mitchell’s “Gone With the Wind” in Sun Trust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) (an opinion that Judge Stanley Marcus refined even further in his artful concurring opinion). I also enjoyed crafting opinions in several other cases: Greenberg v. National Geographic Society, 244 F.3d 1267 (11th Cir. 2001); Bateman v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996); Warren Publishing Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997) (en banc); BellSouth Adv. & Pub. Corp. v. Donnelley Info. Pub., 999 F.2d 1436 (11th Cir. 1993) (en banc); and a case where my opinion (of which I remain proud) was vacated by our going en banc and then dismissing the appeal on other grounds, Cable News Network v. Video Monitoring Services, 940 F.2d 1471 (11th Cir. 1991), vacated and reh�g en banc granted, 949 F.2d 378 (11th Cir. 1991), appeal dismissed, 959 F.2d 188 (11th Cir. 1992) (en banc). Those are just a few of the opinions that I have enjoyed writing in the intellectual property arena.

In five years we will undoubtedly be grappling with more technologically induced collisions and disputes in the copyright and First Amendment areas of the law, again confronting issues of harmonization and adaptive application.

With regard to Eldred v. Ashcroft, had I been on the Court, I would have been a respectful dissenter (if I could not have persuaded my colleagues to follow the correct path as Justice Breyer gallantly attempted to do). I will briefly explain my concerns with the Eldred decision (although much more could and will be said).

In Eldred v. Ashcroft, the Supreme Court upheld the constitutionality the Copyright Term Extension Act, which extended the term of all extant copyrights for a twenty-year period. Euphemistically it was called the “Mickey Mouse Protection Act.” With all respect, Eldred was wrongly decided. A larger concern is that the majority justices, a fortiori, may not know why they decided it wrongly. The most logical reason is that they misunderstood the source of Congress’ Copyright Power, the Copyright Clause of the U.S. Constitution.

The Copyright Clause contains three policies significant for a free society: (1) the promotion of learning (because the clause so states); (2) the protection of the public domain (because copyright is available only for original works only for a limited time; thus copyright cannot be used to capture works in the public domain and all copyrighted works go into the public domain); and (3) the right of public access (because in 1787, copyright was available only for published books, which, of course, ensured public access.)

Eldred, in holding that Congress did not exceed its copyright power by extending extant copyrights (without exception) for 20 years, approved Congress’ rejection of the three constitutional policies. The CTEA obviously inhibits learning, freezes the public domain, and burdens the right of access by continuing the copyright holder’s (not necessarily the author, usually a publisher) control of access, which returns us to the first point — that the CTEA inhibits learning.

The question is why the Court made such a fundamental error, and the answer seems to be the majority ignored a fundamental — the difference between a condition and a requirement. The former cannot be waived, the latter can. The Court treated the constitutional policies of copyright as requirements rather than conditions. The advantage, of course, was that it enabled the Court to ignore the promotion of learning, the protection of the public domain, and the right of public access. If one takes the position that constitutional requirements are by definition conditions, the magnitude of the error is manifest. At the least, one can ask what public interest was served by the arbitrary extension of the copyright term. Much can be debated about “conditions” and “requirements” and which the copyright policies are. There is, however, one question that needs to be answered by those on the “requirement” side. Is a Constitution for all the people or only the privileged few?

The result with Eldred is that it provides a windfall profit for a few monopolists (usually publishers, not creators) that results in a seismic fault in the structure for learning that is the framework for a free society. One can only hope that the Court will realize the error of its ways and correct a fundamental faux pas. Again, my criticism is made with great respect for the Court.

9. You wrote a letter dated November 5, 1998 to the Commission on Structural Alternatives for the Federal Courts of Appeals opposing a proposal to send all copyright-related appeals to the U.S. Court of Appeals for the Federal Circuit. That proposal, of course, was not implemented. The last page of your letter mentions that as a lawyer in private practice, you represented the owner of the “Cabbage Patch Kids” copyrights and trademarks. Tell us a little bit about what that was like and about the other types of work you handled as a lawyer before you joined the Eleventh Circuit.

I began practicing law with a small firm in Gainesville, Georgia where I lived and worked while clerking for Judge Smith (see response to 1 above). All firms were small in that rural city (population 20,000). Our firm represented Hall County and specialized in litigation, principally for insurance companies. Consequently, I was able to try a lot of jury trials early on — much sooner than my contemporaries in the large cities. While I litigated by day, I continued my education several evenings each week that I had begun while clerking: first, in the MBA program at Georgia State University; and, later in the Master of Laws in Taxation program at Emory University (both 60 miles away in Atlanta). I finally received my LL.M. degree from Emory in 1976.

I was developing my firm’s business practice when a young man named Xavier Roberts walked into my office carrying several soft sculpture dolls that he referred to as “babies” and were initially commercially known as “Little People.” I registered his copyright claims in the soft sculptures, his birth certificates and adoption papers, incorporated his company, and generally helped him to organize his business. It was truly a Horatio Alger story. That small company, Original Appalachian Artworks, Inc., initially made the sculptures by hand and sold to only high-end gift shops around the country. Its sales climbed from just over $500,000 in 1978, to gross sales of over $1.5 billion by its over 120 world-wide licensees (the sculptures and assorted paraphernalia) in the early 1980’s — generating a handsome royalty flow. Watching that growth and participating in that success was invigorating and inspiring. It also allowed me to develop an expertise in copyright and trademark law. A lifelong love of copyright law followed and eventually took me back to Atlanta to join a firm formed by classmates that focused on the computer industry. We were pioneers in the early 80’s in the South in computer industry representation. I actually tried the first computer source code infringement case in Atlanta. My background allowed me to do both litigation and transactional work in that practice. It was from that firm that I left to take the bench.

10. What is your view on whether the Ninth Circuit — which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges — should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

I have no informed opinion on that subject. The senior judges from the Ninth Circuit who sit with us on oral argument panels from time to time do not think a split would work. I would defer to their judgment. However, I just cannot imagine operating with 27 colleagues.

11. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven’t been? Also, how if at all did the brand new “Law Clerk Hiring Plan” change for better or worse your experience in hiring law clerks who will be reporting to work in the fall of 2004?

The qualities I look for in a law clerk are as follows (and not necessarily in order of importance): intellectual integrity; demonstrated ability; collegiality; maturity; conscientiousness; dedication to the rule of law; and, generally emanating “good vibes” during the personal interview. My law clerks also have to be self-starters and self-sustainers because I am not a hard-task-master type of manager.

The new “hiring plan” works just fine (better if begun in July). I always thought it was ludicrous to initiate the hiring process so early. I also disdain any of the “competition” between judges for clerk candidates — my experience is that there are plenty of fine folks to go around. I can only wonder if those judges who feel compelled to capture the perceived “top” graduates of the “best” schools have a self-confidence problem.

12. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non-precedential decisions in briefs filed in all federal appellate courts. Where do you stand on the question of allowing citation to “unpublished” opinions; do you believe that federal appellate court panels should be able to designate some of their rulings as “non�precedential” upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

Our circuit “allows” citation to unpublished opinions as persuasive authority and only designates our published opinions as precedential. Given the volume of work that we accomplish it would be unrealistic to expect us to scrutinize each opinion with the thorough rigor that we utilize when we understand that we are addressing an issue of first impression or extending or modifying such a ruling. By limiting the precedential value to certain published opinions we can better keep the law clear and certain. All of our “unpublished” opinions are in reality open to public view and scrutiny — they are freely available to the public.

Currently we hear oral argument in only about 25% of our cases. It is generally out of these cases that our carefully crafted and vetted published, precedential opinions flow. During the year ending 30 June 2003 each active judge (we also have 5 “active” senior judges) wrote an average of 165 opinions. The number of opinions written by each individual judge ranged from a low of 149 opinions to a high of 184 opinions. During that same period, each active judge wrote an average of 24 published opinions (from a low of 15 to a high of 38). During that same period our circuit had 757 merits terminations per active judge (2d among the circuits) and 370 procedural terminations per active judge (1st among the circuits). Our circuit has the largest caseload per active judge of any circuit (654; the next is the Fifth at 579). Our total number of filings have risen from 4,476 appeals when I came on the court in June of 1990 to 7,198 as of June 2003. During the last five years we have decreased our median time of disposition (notice of appeal to issuance of opinion) by 5.7 months. We now rank third among the circuits with a time of 8.4 months (all circuit average is 10.6). In a number of significant categories our court leads all circuits: total appeals filed per panel (1,800); criminal appeals per panel (420); civil appeals per panel (excluding prisoner) (670); total appeals terminated by panel (1,826); merits terminations per panel (802); and, merits terminations per active judge (292). We all work pretty hard around here.

In the final analysis, if each opinion had to be considered precedential, there is no way that we could resolve that many disputes in a reasonable time-frame. Moreover, additional judges would hinder our efficient operation rather than help it. Given our caseload the Administrative Office of the Courts has suggested that we could request an additional 12-14 judges based on its workload statistics. As a court we have almost unanimously rejected adding even a single more judge. A collegial court operates most efficiently and effectively by remaining as small as possible. See Judge Gerald Bard Tjoflat (a former Chief Judge and a current active judge), “More Judges, Less Justice,” July 1993 issue of The ABA Journal.

13. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is also in the process of approving a new rule that would end the Eleventh Circuit�s practice of counting recused judges, in essence, as having voted against granting a petition for rehearing en banc. Do you support this proposed change, and do you believe the Eleventh Circuit currently grants rehearing en banc too frequently, too infrequently, or about as often as it would occur if whether to grant rehearing en banc were solely up to you?

The proposed change makes sense and I would wholeheartedly support such a change. I am satisfied that we do not grant rehearing en banc too frequently and that our current practice of en banc rehearing, on the average about 6-10 cases per year, is working quite well. We are a very collegial court and many differences or concerns are addressed outside of the formal en banc process. Over the last 5 years we have heard a total of 29 en banc arguments (some involving consolidated cases) — on average 6 per year. We typically have en banc sessions in February, June and October. Moreover, the only cases that I ever recall hearing initially en banc (i.e., before a panel opinion issues) were the 2001 presidential election cases. Many potential en banc cases are worked out by modifications of opinions by the panel after a member of the court voices a concern. As I noted above, and emphasize again, we are a very collegial court and work well together — we disagree very agreeably.

14. In one of your law review articles, you wrote that “the actual composer of the law firm’s work may be the ‘associate’ toiling away in the catacombs for little more pay than that of a federal circuit judge * * *.” That passage provides a nice introduction for the following question: Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Alexander Hamilton, in Federalist No. 78, wrote that “there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprize us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.”

Not only for judges, but also for top-level Federal employees including Members of Congress and their staffs, the failure of government salaries to maintain parity with changed economic conditions has affected our government’s ability to attract and retain qualified, experienced people in today’s highly competitive marketplace. Given the gravity and significance to our nation of the decisions made by these people in government, we are facing or will soon confront a crisis in attracting our best and brightest into government service — particularly at points in their lives when their earning potential and family responsibilities are greatest.

Earlier this year, the National Commission on Public Service ( the “Volcker Commission”), after an exhaustive study, succinctly summarized the gravity of the problem when it observed:

The lag in judicial salaries has gone on too long, and the potential for diminished quality in American jurisprudence is now too large. Too many of America’s best lawyers have declined judicial appointments. Too many senior judges have sought private sector employment — and compensation — rather than making the important contributions we have long received from judges in senior status. Unless this is revised soon, the American people will pay a high price for the low salaries we impose on the men and women in whom we invest responsibility for the dispensation of justice . . . .

The core problem with the current procedure for setting judges’ pay is the statutory linkage of judicial salaries (as well as those of high-ranking Executive Branch officials) to the salaries of Members of Congress. This linkage causes Federal judges to suffer the consequences of Congress’ reluctance to award itself a pay increase or even to accept cost-of-living adjustments that have been provided for by statute. Such reluctance stems largely from lawmakers’ concern over adverse public reaction to pay increases for themselves. This dynamic has suppressed the pay of judges and other Federal executives and subjected it to the ravages of inflation. The media only exacerbates the problem by inevitably, and unfairly, labeling Congress’ cost-of-living adjustments a “pay raise.” While that makes for “good copy” it undermines the already eroding pool of talented and committed public servants. When I write to my Congresspersons I request that they just treat me like my postman — just give me the same COLA as enjoyed by other federal workers each year. But that has not happened very often in the last 10 years. Judicial salaries have not kept pace with inflation over the past decade. As a consequence of receiving just five cost-of-living adjustments since 1993, judges have suffered a 9.8 percent decline in the purchasing power of their salaries from 1993 through 2002. Salary erosion over the last 10 years has offset the benefit derived from the “catch-up” raise that went into effect in 1991. Even that raise was not sufficient to restore judicial salaries to their 1969 benchmark level and only temporarily arrested the downward trend. Between 1969 and 2002, when adjusted for inflation, Supreme Court justices experienced a 37.3 percent loss in purchasing power, while circuit court and district court judicial salaries lost 23.5 percent.

There are two bills currently pending in Congress, S.1023 and H.R. 2118, that would raise judicial pay by 16.5 percent. While helpful, particularly to the low morale among the judiciary as to this issue, it too would only be a good beginning. Certainly no judge expects to be paid wages comparable to successful practitioners. However, in a free enterprise culture, pay is a measure that cannot be ignored. The Volcker Commission used the salaries of leaders of academia or nonprofit institutions as reference points because the level of education and expertise required of leaders of these institutions is similar to that required of federal judges, and these leaders, like judges, derive non-monetary rewards from the work they perform. The differential between Federal judicial salaries and salaries of leaders in the academic world is large. In 2002, The Chronicle of High Education reported that the median compensation of presidents of private doctoral institutions had increased 18 percent from 1996 to 2001 to reach $356,092. Many presidents and chancellors of the best public universities are receiving comparable compensation packages. Nationwide, the average salary of law school deans for 2002-03 was approximately $200,000 while deans of law schools at public and private doctoral institutions earned more $209,000. The Volcker Commission reported that the average salary for deans of the 25 top-ranked law schools was $301,639. Regardless of the selectivity of the group of law schools surveyed, law school deans make substantially more than district court judges. Furthermore, their compensation has not remained stagnant: 2002-03 salaries were approximately $9,000 higher than 2001-02 salaries. Even though market conditions alone should not be the measure of the adequacy of judicial salaries, they do demonstrate the growing disparity in salaries, the extent of the financial sacrifice Federal judges make to serve the public, and the lure of alternative private employment for those who have significant financial responsibilities. These sizeable disparities cannot continue without causing harm to our nation’s Third Branch.

In fact, between 1990 and 2003, 77 Article III judges resigned or retired from the Federal bench, with many returning to private practice. When an experienced Federal judge retires or resigns, the caseloads of the remaining judges on that court, by necessity, increase until the resulting vacancy is filled (a process that can take months, and sometimes years). In addition, the judiciary loses the valuable skills and insights of the departing jurist — assets that are not quickly or easily replaced. Rarely do new appointees join the bench with the range of judicial capabilities and experience that years of service confer. Moreover, the loss of the services of judges who elect complete retirement from judicial office rather than senior status is especially costly to the government. Not only does the judiciary lose experienced jurists, but, in addition — because judges who take senior status and continue to work part time receive essentially the same salary as judges who elect complete retirement — the judiciary loses the labor that would have been provided at no extra expense had the judges leaving the bench instead taken senior status.

The reason for their departures and the many more that are sure to follow is plain. The average age at time of judicial appointment is 52 years for circuit court judges and 50 years for district court judges. By that age, most individuals who have been tapped for the bench have spent 20 to 25 years building their careers. Most, if not all, are stars in their profession and at the pinnacle of their earning power. And, like many other individuals entering their sixth decade, they face mounting expenses because of big-ticket items, such as college tuition for their children or long-term health care of their parents or in-laws (often both). Yet, this is the time we ask them to forego their private-sector salaries and accept a salary that is a fraction of the size and not even protected from the deleterious effects of inflation. It is no wonder that salary considerations weigh heavily in the decision to join the Federal bench — or, as recently witnessed, leave it.

Had I not been blessed with great clients and a lucrative law practice (and a spouse willing to continue working), I could not have afforded to be a federal judge. Moreover, my capable and committed colleagues who have always been in public service as U.S. attorneys and state court judges, deserve better than they are receiving from a nation to which they have devoted their lives. They should not have to mortgage their homes to send their children to college — it is just not right! Moreover, no survivor’s pension is at all provided to federal judges — we have to purchase an annuity that maxes out at 50% and then only after many years of service.

Finally, while I understand that these are tough economic times, because it costs taxpayers less than 1% of the U.S. budget to run the entire federal court system (the Third Branch of government — putatively a co-equal branch), a pay raise for judges, even during today’s economic climate, would virtually have no impact on the nation’s ability to fund key programs. I sincerely and respectfully urge those reading this to contact your Senators and Members of Congress and urge them to support S.1023 and H.R. 2118.

15. From mid�November 2000 through early December 2000, the en banc Eleventh Circuit was in the midst of the court battles over the Bush vs. Gore recount in Florida. What memories do you have of your involvement as a judge in that matter, and what was it like to have to decide such difficult questions of such great importance in such a short timeframe?

Given the short time-frame involved and importance of the many issues presented, it was a daunting challenge. We allowed counsel to “lodge” copies of pleadings with our court electronically when they were filed in the district courts so that we could be up-to-speed on the issues by the time they reached us. We literally worked day and night for several weeks. Our group of published opinions, I thought, were well-developed and hopefully were of some benefit to the Supreme Court in resolving those issues by way of its review of the Florida Supreme Court case. It was only after those opinions were published and the Supreme Court ruled that we really appreciated our involvement in that historical undertaking.

16. Your “‘Helpful Hints’ on Appellate Practice” is aptly titled, yet perhaps those hints will prove most useful to lawyers who don’t handle appeals all that frequently in the Eleventh Circuit. What suggestions would you offer to more experienced appellate advocates when it comes to brief-writing, so that their appellate briefs might qualify as among the best you receive instead of just being very good?

That is a tough question. The truly outstanding briefs are those that succinctly and with straight-forward clarity relate the existing law to their case. Too much time is spent, even in good briefs, reviewing legal principles with which most judges are familiar. I have proposed that each circuit publish a web-site on which the “boilerplate” for each area of law in that circuit is contained and referenced by an identifying number — much like standard jury charges. A committee of judges and/or staff attorneys could maintain the currency of the citations and text. In briefs all of those familiar legal principles could simply be enumerated (and perhaps “jump-cited” for the benefit of law clerks or new judges) thereby reducing the volume of reading and compelling counsel to focus on applying the law to the circumstances in the case before us. I have waded through pages chronicling the shifting burdens in an employment discrimination case only to be presented with a couple of paragraphs relating all of that law to the facts in the case on appeal.

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

In our circuit oral argument is typically a question and answer session. Accordingly, knowing the record inside out, being prepared to cite “your best case” for a legal proposition key to your arguments on each issue, and an ability to get to the core of your opponent’s arguments and refute them would serve a presenter well in our circuit.

18. If I remember correctly, during the two years that I was clerking for a judge on the U.S. Court of Appeals for the Third Circuit, my judge confronted only one last-minute stay request in a death penalty case. I imagine that such cases must arise with greater frequency in the Eleventh Circuit. Can you describe how such last-minute stay of execution requests are handled in the Eleventh Circuit, whether, in your view, some alternate procedure might be preferable to the current practice of litigating significant life or death issues at the eleventh hour, and whether fewer serious last-minute challenges arise now as compared to when you joined the court in 1990?

We have had and do have a significant number of death penalty habeas appeals in our circuit. We have developed a procedure that typically ensures no hurried “eleventh hour” reviews are required. The first time a prisoner’s appeal is filed in our court a panel of three active judges is assigned to remain with that prisoner through that appeal and all subsequent appearances. This promotes familiarity with the issues and history. Any subsequent or successive filings return to the same panel. Usually death penalty appeals, at least the first time around, are heard on oral argument after briefing and are specially set. Should a new appeal be presented after entry of a death warrant setting execution, we request that the filings in the state courts and federal district court be forwarded to us (or, as we say “lodged”) with the panel assigned to the petitioner so that by the time the appeal reaches us we are totally conversant with the issues and the dispositions below. We have found this approach to be fair to both the petitioner and to the state. Because of AEDPA we are beginning to see fewer last-minute challenges.

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

“Judicial activism” to me has the connotation of placing a personal agenda or view of the law over stare decisis. There have been quite a few cases where I have followed the existing precedent but have voiced my disapproval in an opinion suggesting how it should be different (as to our circuit precedent — with Supreme Court precedent I do not do that). If an issue is of first impression and I am not in the majority, I respectfully dissent.

20. What do you do for enjoyment and/or relaxation in your spare time (and please be sure to mention your background as a musician)?

“Spare time” — what’s that?? In the time that I do have I spend as much of it as possible with my wife and young son, daughter, son-in-law and two grandchildren. I do pick up my trumpet occasionally to literally “blow-off-steam” but my “lip” does not last as long as it did in years past. I treadmill daily and work out with a weight trainer twice each week. I enjoy tennis when I have time to play. I follow the UVA Cavaliers, Braves and Falcons. Good food, fellowship and fire-water (particularly of the single malt Highland variety) are always welcome distractions. And Howard, on your next visit to Atlanta, you’re buying!

Tuesday, September 02, 2003

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11. What is your view on whether the Ninth Circuit — which now is authorized to have twenty-eight active judges and may soon be expanded to thirty-five active judges — should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

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

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

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

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

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

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

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

15. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non-precedential decisions in briefs filed in all federal appellate courts. Where do you stand on the question of allowing citation to “unpublished” opinions; do you believe that federal appellate court panels should be able to designate some of their rulings as “non-precedential” upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, August 04, 2003

20 Questions for Circuit Judge Gerald Bard Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit: “How Appealing” is very pleased that Circuit Judge Gerald Bard Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit has agreed to participate in this Web log’s recurring monthly feature, “20 Questions for the Appellate Judge.”

Judge Tjoflat joined the former U.S. Court of Appeals for the Fifth Circuit in November 1975 at the age of 45. He attended undergraduate school at the University of Virginia and the University of Cincinnati. He began law school at the University of Cincinnati Law School, but his studies were interrupted by military duty when he served for two years in the U.S. Army as a special agent of the Counterintelligence Corps. Thereafter, he completed law school at Duke University School of Law, receiving his degree in 1957. Following law school, he worked as a lawyer in private practice in Jacksonville, Florida for just over ten years.

In 1968, Judge Tjoflat was appointed to the bench of the Circuit Court for Florida’s Fourth Judicial Circuit. In October 1970, he was nominated and confirmed to fill a new judgeship on the U.S. District Court for the Middle District of Florida, where he served for a little more than five years before joining the former Fifth Circuit. On October 1, 1981, Judge Tjoflat was reassigned to serve on the newly-created U.S. Court of Appeals for the Eleventh Circuit, where he served a full term as chief judge from 1989 through 1996. Judge Tjoflat has his chambers in Jacksonville, Florida, and the Eleventh Circuit has its headquarters in Atlanta.

Questions appear below in italics, and Judge Tjoflat’s responses follow in plain text.

1. The July 1993 issue of The ABA Journal contained your article entitled “More Judges, Less Justice.” For those many readers who may not be familiar with that article, can you briefly describe your thesis and what you rely on in support of your conclusions. Now, some ten years later, with even more cases pending before the U.S. Courts of Appeals, do you still adhere to those views, and why or why not?

The focus of “More Judges, Less Justice” is on the federal courts, although my thesis applies to state courts as well. My thesis is that as we increase a court of appeals’ size, we decrease the stability of the rule of law within the judicial circuit. In some areas of the law, the decrease may be exponential. As the law becomes less predictable, more law suits are filed and in time more judges are needed to try them. Since more lawsuits generate more appeals, more appellate judges are required. As judges are added to a court of appeals, the potential for conflicting decisions necessarily increases. To keep this potential to a minimum, the judges devote a portion of each day to reading the court’s decisions. As additional judges come aboard, this task consumes more of a judge’s time — meaning that the time devoted to working on the cases assigned to the judge diminishes. In theory, a court of appeals can become so large and the judge’s need to monitor the court’s decisions can become so burdensome that the creation of one more judgeship to meet the demand (for more judges) actually decreases the number of cases the court is able to decide in, say, one court year. The solution to this problem lies with Congress. Congress must recognize that because there is a size limit beyond which the courts of appeals cannot be expanded, the Article III courts are a scarce dispute resolution resource. Congress must therefore remove from the courts’ jurisdictions disputes that could be resolved more efficiently in other forums.

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

The answer to this question will vary from judge to judge. What I like most is writing opinions and teaching. And I get great joy interacting with my elbow law clerks. Each August, when the new law clerks come aboard, is like the fall semester of law school. They have a new professor and I have a bunch of new students.

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

This is a difficult question to answer because in thirty-five years on the bench, I have come to know some great judges. But you ask me to pick one, and I select the late Justice Byron R. White. Our friendship began when the late Judge Edward J. Devitt asked us to serve with him on the committee to select the recipient of the Devitt Distinguished Service to Justice Award. To borrow an expression one doesn’t hear much these days, Byron White was a man’s man. Rock solid, a giant of a human being. You would want him in your fox hole when the bullets started flying.

4. How did you come to President Richard M. Nixon’s attention as a potential nominee to serve on the U.S. District Court for the Middle District of Florida, and how did you come to President Gerald R. Ford’s attention as a potential nominee to serve on the former U.S. Court of Appeals for the Fifth Circuit?

I don’t know how I came to President Nixon’s attention; that I was one of the few Republican lawyers in North Florida was no doubt a factor. I came to President Ford’s attention through the good efforts of several of his supporters in this area of the State.

5. Your official Federal Judicial Center biography indicates that President Ford nominated you to fill a vacancy on the former Fifth Circuit on November 3, 1975 and the U.S. Senate confirmed you to serve as a U.S. Circuit Judge just seventeen days later, on November 20, 1975. In what ways did the federal judicial confirmation process differ in 1975 from what it is today? Also, which approach � then or now — do you find preferable, and why?

I was in the midst of a five-month securities fraud trial in Ocala, Florida when President Ford nominated me to the Fifth Circuit. Two days before my confirmation hearing, John Duffner of the Department of Justice (whose job it was to usher nominees through the confirmation process) called me on a Monday to say that my hearing would be on Wednesday at 10:00 a.m. When I arrived at the Senate Judiciary Committee hearing room at 9:30 on Wednesday, a committee staff member told me that my hearing had been moved to a room in the basement of the Capitol. I was met there by Senator Roman Hruska. The hearing was held in a small storage room; he presided as a subcommittee of one. In a few minutes — after informing me of the results of the investigations conducted by the FBI and the ABA Standing Committee on the Federal Judiciary — he took me to the Senate Cloakroom where he told me to wait. In what seemed like five minutes he returned to say that I had been confirmed. I am sure that others who came to the bench prior to the late 1970s had similar experiences. Today’s process is intolerable, inexcusable. It deters scores of highly qualified lawyers from even considering an appointment to the Article III bench. A short time ago, only three lawyers applied for a district court judgeship in one of the most desirable locations in the Eleventh Circuit. When a bankruptcy judgeship became available in essentially the same location, the list of applicants was lengthy and contained several of the State’s most outstanding lawyers. That the pool of applicants for bankruptcy judgeships has been far superior to the pool of applicants for Article III judgeships in the Eleventh Circuit has been the trend for more than a decade. The reason for this is obvious. Bankruptcy judges are appointed by the court of appeals; they don’t have to undergo Senate confirmation.

6. Some court-watchers have said that the judges serving on the Eleventh Circuit today are much more conservative when it comes to civil rights claims than were the judges who served during the last years of the former Fifth Circuit and the early years of the Eleventh Circuit. As someone who has served on the Eleventh Circuit for nearly thirty years, have you perceived any shift in the court’s ideological center of gravity, and, if so, to what do you attribute the shift?

In answering this question, one must bear in mind that the composition of the civil rights docket over the past thirty years has changed considerably. When I came to the bench in 1970, the district courts were flooded with school desegregation cases, class actions challenging the conditions of state jails and prisons and state mental institutions, and voting rights cases — cases that received a great deal of public attention for lots of reasons, one being that they challenged long-standing societal structures. Those cases have all but disappeared from our dockets, the changes they sought having been accomplished. Court observers say that the judges responsible for those changes were “liberal.” I would say that the judges were simply good judges, who approached the task at hand with considerable courage and the desire to follow the law. Nowadays our dockets are crowded with Title VII employment discrimination cases and damages actions brought against deputy sheriffs and jailors under 42 U.S.C. sec. 1983. Some contend that the results in those cases indicate that the court has become more conservative. I disagree for this reason: were today’s judges called upon to handle the high-profile cases of yesteryear, they would bring to the task the same courage and devotion to the rule of law as their forebears. Regarding the center-of-gravity matter, my experience has been that when a judge seemingly leans far to the left or to the right, someone leans in the opposite direction — such that the center of gravity tends to move one way or the other perhaps a tad or two.

7. In 1978, Congress increased the number of active judges authorized to serve on the former Fifth Circuit from fifteen to twenty-six. Less than two years later, the former Fifth Circuit was divided and the Eleventh Circuit came into existence. What were the arguments for and against dividing the former Fifth Circuit, and which of those proved accurate and which did not?

It took less than six months for the judges of the Fifth Circuit to conclude that a “jumbo court” of twenty-six would not work. Twenty-six judges — try as hard as they might — cannot maintain a stable, predictable rule of law. In addition, a court of twenty-six is far less efficient than a court of fifteen. Appellate judges have to be able to “mind read” one another if they are to operate efficiently. Twenty-six judges coming and going (with that number normal attrition keeps changing the court mix) cannot mind read one another. I think I explained that in “More Judges, Less Justice.” Our present court of twelve (although we are one judge short at this moment) can do far more work than the Old Fifth could do with twenty-six. I could write a book on this subject.

8. What is your view on whether the Ninth Circuit — which now is authorized to have twenty-eight active judges and may soon be expanded to thirty-five active judges — should be split into two or more smaller circuits, is there a particular manner of dividing the Ninth Circuit that you view as best, and to what extent does having experienced the division of the former Fifth Circuit influence your views?

In 1996, I appeared before the full Senate Judiciary Committee at a hearing on a bill to split the Ninth Circuit. I was there at the behest of the Committee because I had been a member of the Old Fifth, had testified as a designated representative of the Old Fifth (along with Judge John Godbold) before the House Judiciary Committee in favor of a bill to split the Old Fifth Circuit, and had significant experience with a jumbo court. In response to a question from Senator Heflin, “What should we do with the Ninth Circuit,” I said, “split the circuit.” What should we do with California, he asked. I said that I would divide California in two; I expressed no opinion as to which states would be linked to the two halves. Then Chief Judge Wallace said that this wouldn’t work, because California law might be applied differently in the two resulting circuits. That could be avoided I said if legislation were passed enabling the courts of appeals to certify questions of California law to the California Supreme Court — a device that has been available to the Eleventh Circuit in each of its states, Florida, Georgia and Alabama. I am convinced that the benefits that would accrue from splitting the Ninth Circuit — not the least being judicial and parajudicial efficiency and stability and predictability of the rule of law — would far outweigh the temporary inconvenience the split would involve.

9. 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, are you adhering to the “Law Clerk Hiring Plan” that supposedly has the overwhelming support of federal appellate judges, and why or why not?

I am adhering to the “Hiring Plan.” What qualities do I look for? An unquenchable thirst for the law. A zest for tackling legal problems objectively — those with hidden agendas need not apply. I expect them to be like leeches — take everything I might have to offer and leave here with a full belly, raring to go.

10. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non�precedential decisions in briefs filed in all federal appellate courts. Where do you stand on the question of allowing citation to “unpublished” opinions; do you believe that federal appellate court panels should be able to designate some of their rulings as “non-precedential” upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

“Unpublished” opinions are supposed to be non-precedential because they do not plow new ground; rather, they simply apply settled law to a set of facts. It does not bother me when a litigant cites an unpublished opinion. In nearly every situation, the opinion adds nothing to the dialogue. In short, I have no strong views regarding the matter.

11. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is also in the process of approving a new rule that would end the Eleventh Circuit’s practice of counting recused judges, in essence, as having voted against granting a petition for rehearing en banc. Do you support this proposed change, and do you believe the Eleventh Circuit currently grants rehearing en banc too frequently, too infrequently, or about as often as it would occur if whether to grant rehearing en banc were solely up to you?

In my view, we do not rehear too many cases en banc. The law of the circuit is fairly stable — remarkably so, I would say — which explains why we grant oral argument in less than 30 percent of our cases. I am in favor of the rule that would not count disqualified judges in tallying the en banc votes. Thus, if three of twelve judges are disqualified, five judges should be able to en banc a case.

12. Is the salary now paid to federal appellate judges too low? Has this been the case during your entire tenure as a federal appellate judge? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

The salary is atrociously low; there can be no dispute about that. It was too low when I came to the Fifth Circuit in 1975. Congress had done nothing to increase it for over five years. I have given no thought as to exactly what the salary should be, but I can say that in light of the sensitive work we do and the magnitude of our responsibilities to the public we serve, the salary should be at least as high as the average salaries paid to the full law professors at our nation’s leading law schools, which exceeds $200,000.

13. You entered the judiciary as a state court trial judge. Recently, the method of choosing judges by election has come under much criticism from various groups, and of course the federal model of selecting Article III judges has experienced challenges of its own. If you were put in charge of picking the most sensible method of selecting judges for a State or the Nation, what method would you choose?

The Missouri Plan (created by the American Judicature Society and first adopted in Missouri) provides a far better method for selecting judges than the ballot box. That plan calls for a commission to submit a slate of qualified candidates to the governor, appointment by the governor (from that slate), and an uncontested election near the end of the term in which the electorate votes on the judge’s retention in office. In some States, the responsibility for choosing judges is shared by the executive and legislative branches, as in the Federal model. I lack sufficient information to form an opinion as to whether such method of selection is better than using the ballot box.

14. You have been described by someone who has seen many appellate arguments throughout the United States as perhaps the most aggressive questioner 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 and unhelpful, and is there anything an appellate advocate can do, either at oral argument or earlier, to stay on your good side while at the podium?

My purpose is to get to the bottom of the case — to dismantle the case, to squeeze it down to size. Too many cases — especially civil cases in which the issues have been framed by notice pleading — come to us in a state of disarray because the district judge failed to narrow the issues. Lawyers should be mindful that a court of appeals engages in two discrete functions: correcting trial court error and law making. When the thrust of an appeal is that the trial court erred in the manner in which it conducted the pretrial proceedings or the trial, we need to know the record intimately; only then can we determine with confidence whether an error prejudiced the appellant’s “substantial rights.” Nothing is more frustrating for an appellate judge than being confronted by counsel who do not know the record. Knowing the record is vital; yet, many lawyers are unable to tell us during the course of an argument whether, for example, they objected to the jury instruction they are challenging on appeal. When the appeal involves the trial court’s application of the rule of decision and asks the court to fashion a new rule of substantive law, we need all the help we can get. We are looking for a sound rationale, one that could command the respect of the legal profession and in some cases the public at large. I expect appellate counsel to have thought about this before putting pen to paper. Counsel’s brief should contain the ingredients of a good opinion and the oral argument should expound on the same theme. In questioning counsel in such cases, I am testing counsel’s rationale — to determine whether it makes sense. You ask what counsel can do to stay on my “good side while at the podium.” My response is be prepared and then articulate a basis for decision that makes sense and could withstand critical scrutiny by the lawyers and judges who will have to implement our mandate and the academy that monitors our work. No judge wants to fashion a rule — whether substantive or procedural — that won’t work in the real world.

15. I see that Jacksonville, Florida has recently received a very attractive brand new federal courthouse. Are you pleased with your new working quarters, why was a new courthouse needed there, and could you share some of the advantages and perhaps even disadvantages that a brand new federal courthouse presents over one that has been in existence for many years?

We have a new courthouse, which was badly needed. The old courthouse was built seventy years ago, as a post office, federal office building, and courthouse. Over the years, the federal agencies left one by one until all that remained were the courts and a slimmed down post office. Had the new courthouse not been built, some of our courts and clerks offices would have been moved to rented quarters at great cost to the government. The new courthouse eliminates the serious security problems that faced us in the old building and permits all court and parajudicial personnel, including the U.S. Attorney’s office (which had moved out of the old building some time ago), to be under one roof once again.

16. While reporting on a very interesting opinion that you recently delivered involving Major League Baseball’s antitrust exemption, Jonathan Ringel of The Fulton County Daily Report wrote that you “reportedly flirted with playing pro [base]ball in the 1940s.” Ringel’s article went on to note, “But a 2001 story in his hometown newspaper, the Florida Times-Union in Jacksonville, reported that in 1948, Tjoflat attended the University of Virginia on a partial baseball scholarship. The story quoted Tjoflat, a pitcher, as saying, ‘I worked out one summer with the Cincinnati Reds at the old Crosley Field…. The Reds made me an offer, but you had to break up your schooling in those days. I opted not to do that.'” Here’s your chance to put all speculation to rest about your “flirtation” with a possible career in baseball, and are there ever days when you wonder if you made the right choice?

Flirting with a baseball career was heady stuff. I was wisely counseled to end the flirtation. For one thing, my curve ball (we didn’t throw “sliders” in those days) didn’t have much snap. For another, the chance of injuring my throwing arm was too great. The multitude of procedures now available to rehabilitate an arm — like “Tommy John” surgery — were not even in their infancy.

17. You have been involved in the Boy Scouts of America organization for quite some time. Recently, the Supreme Court of California adopted a rule that will require state court judges who are members of the Boy Scouts and who are selected to hear cases involving workplace discrimination against homosexuals, cases involving homosexual adoption, or cases in which the sexual orientation of the litigants is in issue either to recuse themselves or to notify litigants of the existence of this basis on which to seek recusal. Do you agree as a matter of policy with the Supreme Court of California’s new recusal procedures, and do you think that judges outside of California who belong to the Boy Scouts voluntarily should follow similar guidelines?

Boy Scouts of America is the finest program for young boys I have ever seen. What would our society be like if most boys became Eagle Scouts? I am so biased in favor of Scouting — for girls as well as boys — that I would have to recuse in a case challenging the implementation of Scout Oath and the Scout Law.

18. In 1991, you wrote an article entitled “The Untapped Potential for Judicial Discretion Under the Federal Sentencing Guidelines: Advice for Counsel.” Recently, the U.S. Congress passed and President George W. Bush signed into law the AMBER Alert bill containing the so-called Feeney Amendment. As I understand it, that amendment greatly curtails the discretion available to trial judges under the U.S. Sentencing Guidelines, and on that basis a number of federal judges have denounced the amendment. Putting aside any question of the amendment’s legality, what are your views on the amendment as a matter of policy?

In 1984, as part of the Comprehensive Crime Control Act, Congress enacted the Sentencing Reform Act, which committed to the United States Sentencing Commission the task of drawing guidelines for use in sentencing. I’d rather not express a view as to the merits of the Feeney Amendment, but I will say this: Congress should avoid circumscribing the Commission’s jurisdiction with ad hoc legislation.

19. How did you come to be one of two sitting federal appellate judges who testified in December 1998 before the House Judiciary Committee on the topic “The Consequences of Perjury and Related Crimes” in connection with possible impeachment proceedings against President Clinton? And, in retrospect, would providing that sort of testimony to a congressional committee be something that you would do again if asked, and why or why not

I had authored the only appellate opinion (I was told) that addressed the question of whether perjury in a civil case is as reprehensible as perjury in a criminal case, United States v. Holland, 22 F.3d 1040 (11th Cir. 1994). During the months that led up to the impeachment hearings before the House Judiciary Committee, columnists had referred to the opinion in several op-ed pieces. The Committee chair eventually asked me to appear before the committee. I agreed with the understanding that I would neither be asked nor would I suggest what the Committee should decide. My testimony would be limited to commenting on how perjury obstructs justice. In my opening remarks, I said that for justice to be done in a case three things are required: (1) a fair and impartial judge; (2) lawyers who adhere to the highest ethical and professional standards; and (3) witnesses who testify truthfully. I likened these requirements to a three-legged stool. If one leg breaks, the stool collapses. You ask whether I would provide this sort of testimony to a congressional committee again. I assume that you are not referring to a House Judiciary Committee considering a bill to impeach the President. My answer is that for several years, going as far back as the mid-1970s, I appeared before the House and Senate Judiciary Committees, or subcommittees thereof, on numerous occasions to testify about a variety of matters affecting the administration of justice in the courts of the United States. I would welcome the opportunity to appear in such capacity again.

20. What do you do for enjoyment and/or relaxation in your spare time, where are your favorite places to go fishing in the Eleventh Circuit, and who are the best anglers serving on the Eleventh Circuit and the federal district courts under its jurisdiction?

I love the game of golf. I also love to fish. The best fishermen on our court by far are Joel Dubina and Lanier Anderson. The district courts have several great anglers: Bill O’Kelley, Owen Forrester, Jack Camp, Tom Thrash, Charles Pannell, and Chris Hagy. The best places in the circuit in Florida for salt water fishing are Suwannee, Homosassa, Florida Bay, and most anywhere along the east coast. For fresh water fishing, I would go anywhere Lanier Anderson or Bill O’Kelley took me in Georgia; in Alabama, I prefer Joel Dubina’s bass pond.

Monday, July 07, 2003

20 Questions for Senior Circuit Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit: “How Appealing” is especially pleased that Senior Circuit Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit has agreed to participate in this Web log’s recurring monthly feature, “20 Questions for the Appellate Judge.”

Judge Aldisert joined the Third Circuit in July 1968 at the age of 48. He attended both college and law school at the University of Pittsburgh. After college, but before completing law school, he served as a Major in the United States Marine Corps. Following law school, he worked as a lawyer in private practice for almost fifteen years. In 1961, he was elected to serve as a Judge on the Court of Common Pleas of Allegheny County, Pennsylvania. In 1968, he was nominated and confirmed to fill a vacancy that existed on the U.S. Court of Appeals for the Third Circuit. Judge Aldisert has his chambers in Santa Barbara, California, and the Third Circuit has its headquarters in Philadelphia.

Questions appear below in italics, and Judge Aldisert�s responses follow in plain text.

1. In 1992, you published a wonderfully informative and useful book entitled “Winning on Appeal: Better Briefs and Oral Argument.” I see that you are now in the process of preparing a revised edition of that book, to be published later this year. Why did you originally decide to publish this book, what feedback have you received on the book over the past decade or so from judges and attorneys, and why have you decided to produce a revised edition?

In 1990, West Publishing Company commissioned me to write a book on opinion writing for distribution to judges as a public service. This was based not only on my personal experience as an appellate judge since 1968 but the views of other appellate judges that I learned from 12 years as a faculty member of the Institute of Judicial Administration�s Senior Appellate Judges Seminars at New York University. West distributed Opinion Writing to all federal trial and appellate judges, including magistrate and bankruptcy judges and all state appellate judges. Because it was so successful, I decided to write a book for lawyers — Winning on Appeal: Better Briefs and Oral Argument.

The feedback received in the past decade has been splendid. My publisher, the National Institute for Trial Advocacy, considers it one of its bestsellers. It has been adopted by many law schools as the text for courses in appellate advocacy, and I am told that most large law firms have the book in their library.

I wrote a revised edition for several reasons: to update statistics on reversals and granting oral argument; to solicit views from current leading appellate judges and determine if their views changed over 13 years (they didn’t); to revise the format; and to make the text more reader-friendly as a how-to manual. The statistics reveal a trend of fewer published opinions, fewer reversals and less oral argument than in 1990.

As in the previous editions, there is more than one judge offering advice in these pages. Nineteen current chief justices of state courts, nine chief judges of U.S. Courts of Appeals, and more than a score of other U.S. circuit judges and state appellate judges have graciously offered excellent suggestions. Additionally, I devoted a new chapter entirely to advice from the nation’s outstanding appellate lawyers on how to prepare for oral argument.

2. Unlike the other active and senior judges currently serving on the Third Circuit, who have their chambers located in one of the following places — Wilmington, Delaware; Newark or Trenton, New Jersey; or Erie, Johnstown, Philadelphia, Pittsburgh, or Wilkes�Barre, Pennsylvania — your judicial chambers are based in perhaps an even more desirable location, Santa Barbara, California. What were the circumstances that led to the relocation of your chambers to California, was it a bureaucratically complicated change to accomplish, and is it difficult to recruit law clerks who are interested in working for a Third Circuit judge whose chambers are located in the Ninth Circuit?

My long time home was Pittsburgh, Pennsylvania. I had to undergo triple bypass surgery in 1983, but unlike the fantastic success of so many open heart surgeries, my experience turned out to be a disaster. All three grafts became occluded, and being informed that I was not a good surgical risk for a second operation, I was told that I had to rely on medication, exercise and a change of climate. “In Pittsburgh, the winters are too cold for you, and the summers are too hot. Find a more pleasant climate.” And I did — Santa Barbara, California.

It wasn’t a bureaucratically complicated change to accomplish. With the headquarters of the Los Padres National Forest already in Santa Barbara, I was able to cut through the red tape of preparing chambers in a federal facility there. The chambers were prepared by carpenters, painters, plumbers and electricians from the regular Forest Service staff without incurring tremendous expenses.

I have not found it difficult to recruit law clerks for a Third Circuit judge whose chambers are located on the West Coast. Law clerks like the job because they travel with me and end up with experience in three or four different courts of appeals. Then, too, they like working with me on my writings.

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

I turned 83 last November, and I would not continue to be sitting as a federal appellate judge if I did not enjoy reading briefs, hearing arguments and writing opinions. My least favorite aspect is sitting in those circuits where neither tradition nor court rules require judges to be reasonably prompt in writing their opinions. In one case, I had to wait more than two years before the opinion writer circulated his opinion to the panel in a case where there was complete agreement in the panel on a rather straightforward, uncomplicated issue. I have also had experience in two circuits where there are no time limits in voting on rehearing en banc. Sometimes, these votes can last longer than a year.

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

My answer isn’t totally responsive, but I’ll give you more than you bargained for — an all-star court containing the nine greatest American appellate judges of my time. I list them in alphabetical order: William J. Brennan, Jr., U.S. Supreme Court; Henry J. Friendly, Circuit Judge, U.S. Court of Appeals, Second Circuit.; Stanley H. Fuld, New York Court of Appeals; William Henry Hastie, U.S. Court of Appeals for the Third Circuit; Frank R. Kennison, New Hampshire Supreme Court, Samuel J. Roberts, Pennsylvania Supreme Court; Walter V. Schaefer, Illinois Supreme Court; Roger J. Traynor, California Supreme Court; and Elbert P. Tuttle, U.S. Courts of Appeals for the Fifth and Eleventh Circuits.

The easiest part of compiling the all-star court was to define the current era. I decided upon the last 42 years — a period roughly coinciding with my own time on the bench. The next step also limited the inventory — the judges had to be active for a substantial portion of that time. This excluded relatively recent judicial immortals, such as Learned Hand, Robert H. Jackson, Horace Stern, Arthur Vanderbilt, John Biggs, Jr. and Albert B. Maris.

But the real difficulty began with the next step. How do you define that elusive or intangible quality known as “greatness”? What standards of measurement do you use? How do you document? How do you prove? Often greatness in the judiciary is often nothing more than a reputation for greatness; judges or courts are “great” because they have been proclaimed to be so. Probably the biggest difficulty is to separate the truly great from those reputed to be so. And here is where attorney Charles Horsky’s canny observation is so important: “Among lawyers and certainly among laymen, judicial stature has tended to be equated with quotability.” Masters of legal literary style, masters of clarity, authors of the magnificent epigram are not necessarily the great judges; most great ones, however, qualify as literary masters.

Rufus Choate said of a great judge: “In the first place, he should be profoundly learned in all the learning of the law, and he must know how to use that learning.” In addition, I turned to a two-fold test that Dean Roscoe Pound taught in another context: to determine (1) how thoughtfully and disinterestedly the judge weighs conflicts involved in the cases and (2) how fair and durable the adjustment of the conflict promises to be.

My all-star court does Pound, Choate and Horsky extremely proud.

5. How did you come to President Lyndon B. Johnson�s attention as a potential nominee to serve on the Third Circuit?

I am not certain how the name of any particular judge came to the attention of President Lyndon B. Johnson. This I do know. When a vacancy occurred in the Third Circuit when Austin Staley took senior status, I received a call from Joseph Clark, the Democratic senator from Philadelphia. He told me that he had been impressed by my work as the calendar control judge of the Court of Common Pleas in Allegheny County (Pittsburgh), where in two years I reduced the time from 48 to 11 months for a case to come to trial. I had known Senator Clark, but we weren’t yet on a first-name basis. He told me, “I know that you�re a good friend of my colleague, Hugh Scott, and I have already mentioned you to him.” At that time, Senator Scott was the Republican Minority Leader in the Senate. Thereafter, Senators Clark and Scott approached Warren Christopher, then Deputy Attorney General, who in turn recommended me to the President.

6. Your official Federal Judicial Center biography indicates that President Johnson nominated you to fill a vacancy on the Third Circuit on July 17, 1968 and the U.S. Senate confirmed you to serve as a U.S. Circuit Judge twelve days later, on July 29, 1968. In what ways did the federal judicial confirmation process differ in 1968 from what it is today? Also, which approach — then or now — do you find preferable, and why?

I am not certain that the official Federal Judicial Center Biography contains the correct date, but I do know that my commission reads July 9, 1968. Previously, there had been very few public hassles about appointments to the courts of appeals. I think that we have a serious problem today caused by both political parties, that an appellate court nominee has to be tasteless, odorless and colorless. If nominees have written law review articles or books, or asserted positions on substantive law or the judicial process, they are virtually doomed. They can be expected to be interrogated vigorously, if not viciously, on their views as well as to many otherwise aspects of their private lives. I am convinced that many able men and women prefer not to have their names submitted because they refuse to go through a public torture.

7. The confirmation process for federal appellate judges today certainly seems more overtly politicized than ever. For example, in early 2000, President Clinton nominated one of your former law clerks to fill a Third Circuit vacancy, but the U.S. Senate failed to act on the nomination. Through the grapevine I hear that some judges are noticing that the increased politicization of the nomination and confirmation processes has had an effect on sitting judges, in that they start thinking of themselves or their colleagues as “Clinton judges” or “Reagan�Bush judges.” Is this something that you have noticed and, even if not, do you view it as a legitimate concern?

I can speak only of the Third Circuit because I sit by designation only on the other courts of appeals. It was my experience as an active judge that our judges have not thought of themselves and their colleagues as Johnson judges, Nixon judges, Carter judges, Reagan judges or what have you. In the sense that the label “liberal” is used, two of the most liberal judges with I sat on the court were appointed by Nixon and Reagan.

8. Not only do you reside in the Ninth Circuit, but you have sat by designation hearing appeals on that court with some frequency. What is your view on whether the Ninth Circuit — which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges — should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

Because I have often sat with the Ninth Circuit since 1987, I think I know the extent of the problems there. If any court reaches the point that the volume of published cases is so high that it is impossible an active judge to read the published opinions of his or her court, then the time has come to split the circuit. That is precisely the situation that exists today. Notwithstanding published analyses to the contrary, it has been my experience that there are too many panel conflicts. What is more, many of these conflicts go to the heart of the standard of review. I note that Judge Kleinfeld has publicly said, “Our court is much too big for us to read all of each other�s decisions and it is too big for us to sit together to rehear en banc. There are well over 3,000 combinations of judges, not including senior and visiting judges, so a pair of active judges on the court can go three or four years without sitting with each other on a regular panel.” To me that is a serious problem.

One of the biggest stumbling blocks of dividing the circuit is the fear that the state of California would be split. This is a non-starter. California is already split culturally and politically on a geographic basis. Moreover, there are so many splits in panel decisions today that a split California would not make too much of a difference. As to the possibility of California diversity cases being decided by two different courts of appeals, I see no problem because diversity cases — which are not binding on the state court system — are seldom the subject of precedential opinions. I agree with Judge Diarmuid O’Scannlain that the present size of the court jeopardizes decisionmaking consistency and that the matter will be exacerbated with the addition of five additional judges. Judge O’Scannlain notes, “On a court with 50 judges, 19,600 different three judge panels are possible.”

Years ago, the Hruska Commission recommended a split that I think should be seriously considered today. One half of California and Nevada and Arizona in one court and the rest of California and the other states in another circuit. The Commission made the decision on the basis of the caseload. If the statistics have changed, make a re-alignment to even out the caseload for the split circuits. As far of the judges are concerned, a formula could be established on a permanent basis; on a temporary basis, existing judges could be assigned where needed.

9. In January 1997, the Federal Lawyer published an article of yours under the headline “Then and Now: Danger in the Courts.” In the article, you expressed your concern that the large number of appeals pending for decision in the Nation’s federal appellate courts posed the threat of “assembly line justice.” You wrote that the need for drastic reform was dire. Since then, the number of appeals filed has continued to grow. Do you still perceive a dire need for drastic reform, and what solutions do you view as deserving of consideration?

When I became a member of the Third Circuit in 1968 each active judge was responsible for deciding 90 appeals a year. The national average was 93. That was “Then.”

But “Now” in the Third Circuit, each active judge was responsible for deciding 381 cases in 2002, 327 in 2001, 330 in 2000; and 381 in 1997. That’s fully briefed cases on the merits. The national average in 2002 was 485 per active judge, up from 429 in 1997. Divide 485 cases by 255 working days a year and you start to get the message I have been preaching for years — to no avail. One-A-Day is a great name for vitamins, but I doubt that it’s equally great in describing the caseload for U.S. Circuit judges.

You must understand that the case you file with us moves along an assembly line of over one case every 4.9 hours. Think about it. That’s the time allotted to your case. In that time, the judge must read the briefs, research the law, perhaps hear argument, conference with colleagues, make a decision, write an opinion or order, examine draft opinions written by other judges, and at the same time study motions in other cases or petitions for rehearing. And, of course, travel to the court, check into the hotel. Answer the phone. One fully briefed case for decision every 4.9 hours.

All of this in the highest court to which a federal litigant has a right to take an appeal. Today there is no quiet library time. The circuit judge is on a treadmill, and your case comes to him or her in the midst of a gallop. No time to taste the morsels you dish up for a leisurely dinner here — a fast-food menu is all that’s available. With this fast-food menu, are you receiving justice, or a kind of jurisprudential indigestion?

I use the U.S. Courts of Appeals as an example, but what is true with us is equally true in many state appellate courts, especially in the intermediate courts of appeals in large states. The present U.S. Court of Appeals system is not only unhealthy, but is kept alive only by artificial life support. And it’s about time that we face up to it. And please, additional judges are not the answer.

No words of mine can demonstrate the extent of the problems more than the sheer number of cases terminated by each active U.S. circuit judge. We have a system that cries out for drastic reform — a reform that can be brought about only by a re-examination of fundamental concepts of federal appellate review.

As a principal speaker in 1994 before the American Law Institute, I pleaded with the lawyers and the public to do something monumental. I asked for a study that will examine the anatomy of an appeal, not the structure of a court. That the study begin where the common law left off. That it begin before any statutes gave English litigants and then American litigants a right to appeal from a trial court.

That’s how basic any investigation has to be if we are to come to grips with treadmill justice. In 1994, I was a voice crying in the wilderness. I am still crying.

10. You have sat as a federal appellate judge not only with the Third Circuit, but also by designation with the Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits. What have you learned from sitting by designation on these other federal appellate courts that you might not have learned had you limited your judicial service to the Third Circuit?

I have had a rich and valuable experience sitting by designation with so many U.S. courts of appeals. I’ve read the briefs and heard the voices of lawyers from all parts of the country. I’ve been fortunate to get “the feel” of the claims, wants and demands of the litigants of environments totally different from those in Pennsylvania, Delaware, New Jersey and the Virgin Islands. And I have had the experience of sitting with judges and have heard lawyers of backgrounds other than those in “the effete East.” From this experience, I have learned that although we live in a mammoth country of diverse environments and culture, a dedicated, uniform desire to do justice abides throughout this nation.

11. Another of your books is entitled “Logic for Lawyers: A Guide to Clear Legal Thinking.” Often in your published opinions, you mention principles of logic in deciding cases; one recent example is your decision in In re: Linerboard Antitrust Litigation, 305 F.3d 145 (3d Cir. 2002). What role does logic occupy in the resolution of legal disputes, do you find that lawyers commonly fail to examine the logical underpinnings of their arguments on appeal, and would you suggest that logic be made a mandatory part of the curriculum in the Nation�s law schools?

It is tragic that our law schools do not have an orientation course in logic. We had that great line from Professor Kingsfield in The Paper Chase: “You come in here with a head full of mush and you leave thinking like a lawyer.” The Socratic method is the most valuable tool to train students to think like a lawyer. Yet the students — and unfortunately too many of their professors — apparently do not know the elements of deductive and inductive reasoning. They do not understand that a fallacy of form occurs when the structure of a categorical deductive syllogism is violated. A discussion of every point in a brief must take the form of a deductive syllogism. Too many briefs urge us to accept the conclusion of a point raised without setting forth the major and minor premises leading to it. Students and lawyers do not become acquainted with the fallacies of irrelevant evidence, of distraction, as well as a host of miscellaneous fallacies — from dicto simpliciter to begging the question and the linguistic fallacies.

12. 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, are you adhering to the “Law Clerk Hiring Plan” that supposedly has the overwhelming support of federal appellate judges, and why or why not?

I go through a rather elaborate process in selecting a law clerk. I look at the whole person and want to know the applicant’s academic record, his or her hobbies, his or her extracurricular activities as an undergraduate and whether he or she has had any “real-world,” non-legal work experience. Because we are not in a bustling courthouse, but rather alone in a small shop in Santa Barbara, I also try to filter out those applicants who never remove their noses from their books. I have to be certain that clerks can satisfy the intellectual rigors of chambers life without drowning in them. I search for applicants who are outgoing, well-rounded, and affable and who get along with the co-clerk and the secretary. I have been extremely satisfied within the pool of applicants that I have been receiving.

Yes, I am adhering to the “law clerk hiring plan.” I voted against it because I think that the plan favors the judges and most law professors, who really don’t know students after only one year. I have always been able to get a good idea of the academic progress from the first-year marks of any law student. I think it is grossly unfair for a law student to wait until the end of his second year to interview for a law clerk’s position at the same time he or she is seeking other post-law school employment.

13. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non�precedential decisions in briefs filed in all federal appellate courts. I know that you have previously expressed the view that federal appellate courts publish too many opinions. Where do you stand on the question of allowing citation to “unpublished” opinions; do you believe that federal appellate court panels should be able to designate some of their rulings as “non�precedential” upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

I am totally opposed to allowing citation of “non-precedential opinions.” These are truncated opinions. Very seldom are the material and adjudicative facts set forth. Indeed, in the Ninth Circuit the specific rule prohibits setting forth facts. You cannot assume that a non-precedential opinion in any circuit, with little or no facts, has the efficacy to announce a rule of law in any case. Roscoe Pound taught us that a rule of law is a detailed legal consequence to a detailed set of facts. How can we determine a rule of law from a non-precedential opinion that does not have an accurate statement of material facts to support the holding?

14. Is the salary now paid to federal appellate judges too low? Has this been the case during your entire tenure as a federal appellate judge? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Of course, the salary paid to federal appellate judges is too low. As a senior judge with grown children, I have no problem with it. The present salary structure is such that the pool of nominees draws primarily from those who are already in government service or serving in the state court systems. A federal judge should be paid a salary at least equivalent to a full professor in a national law school or a mid-range partner in a prestigious metropolitan law firm.

15. You have written that ninety percent of all appeals tend to be relatively straightforward to decide. How should judges go about deciding the remaining ten percent, and what role, if any, should their personal or political preferences play in those close calls? Also, is there an objective way to identify judicial activism, or is it all in the eyes of the beholder?

I have said that 90 percent of all appeals tend to be relatively straightforward to decide. They come within Judge Cardozo’s first two categories: (1) the law is clear and the application of the facts equally plain; or (2) where the law is clear and the sole question is its application to the facts found by the factfinder. I turn to Roscoe Pound for assistance in deciding the remaining ten percent — where the law is not clear. In the first category of this inquiry, we must find the law by using inductive generalization from a host of decided cases to form a guiding principle or to make a choice between competing principles. Involved in the former is inductive reasoning. The latter involves the exercise of a value judgment which should be supported by reasons why. In the second category of cases where the law is not clear, the legal precept may be identified, but the problem is interpreting — the fertile field of statutory construction or interpreting clauses of the Constitution.

Max Weber, the important European social theorist, suggested that the term “value judgment” refers to “practical evaluation of a phenomenon which is capable of being . . . worthy of either condemnation or approval.” He distinguished between “logically determinable or empirically observable facts” and “the value judgments which are derived from practical standards, ethical standards or . . . views.”

I think we draw the same distinction here. Each judge has his or her own preferences among a sea of legal standards, any one in principle respectable. And we make our selections. Sometimes we select extra legal standards, making a choice from ethical, moral, social, political or economical concepts offered by diverse teachers or philosophers. Because a value judgment figures in the choice of competing precepts interpretations and application how can a judge arrive at this decision without being considered arbitrary? Roger J. Traynor reminded us that “one entrusted with decision, traditionally above base prejudices, must also rise above the vanity of stubborn pre-conceptions, sometimes euphemistically called the courage of one’s convictions. He knows well enough that he must severely discount his own predilections of however high grade he regards them, which is to say he must bring to his intellectual labors a cleansing doubt of his omniscience, indeed of his perception.”

In the law, as well as in life itself, judging is the act of selecting and weighing facts and suggestions as they present themselves, as well as deciding whether the alleged facts are really facts and whether an idea suggested is a sound idea or merely a fancy.

What we should expect from our judges, at a minimum, is a willingness to consider alternative solutions to a problem. A “result-oriented” judge, in the sense condemned, is one who consistently resists considering arguments contrary to initial impression or pre-existing inclination. We cannot expect judicial minds to be untainted by their first impression of a case. What we can expect is that the initial impression will be fluid enough to yield to later impressions. We can also expect that judges will be intellectually interested in an outcome based on sound reasoning. What we can demand is that judge employ logically sound techniques of intellectual inquiry and reflection when making value judgments, and then explain both their premises and their conclusions to us in clear language evidencing impeccable logical form.

I recognize that this is a long answer to your question. More extensive discussion can be found in the second edition of my book, The Judicial Process: Text, Materials and Cases.

16. You are currently the longest�serving Third Circuit judge on that court. As you approach your thirty�fifth anniversary on the Third Circuit later this month, including several years of service as Chief Judge, what memories of that court and your current and former colleagues do you hold most dear?

I answer your question by referring to two periods on the court. First, my early days on the court. When I joined, we had six active judges: Chief Judge Bill Hastie, Harry Kalodner, Collins Seitz, Abe Freedman, Frank Van Dusen and me. Our senior judges were men of historic proportions. John Biggs, Jr., had been a roommate of F. Scott Fitzgerald at Princeton. (“And Rugi, I was a better writer than Scotty, and he knew it.”) Albert Maris, probably the best opinion writer our court ever had — crisp and clean writing with an economy of words. I was star-struck because I had studied the opinions of Biggs and Maris in law school. Then there was Phillip Foreman, who was appointed U.S. District Attorney for New Jersey by Calvin Coolidge and U.S. District Judge by Herbert Hoover, both appointments when I was still in grade school. Bill Hastie was the first African-American governor (Virgin Islands), federal judge (District Court of the Virgin Islands), and Article III judge (Third Circuit). Not to take anything away from Thurgood Marshall, but Bill should have been the first African-American Supreme Court Justice.

The second period was with a group that was together for many years — Collins Seitz, Frank Van Dusen, Arlin Adams, John Gibbons, Max Rosenn, Jim Hunter, Joe Weis, Leonard Garth, and later in 1977 when Leon Higginbotham replaced Van Dusen. We were the consummate collegial court. To be sure, we did not always agree on the law, but this never interfered with the strong bonds of friendship in this “band of brothers.”

17. Several months ago on my appellate Web log, I linked (see here and here) to a newly-issued Ninth Circuit opinion that involved a tax dispute pertaining to Johnston Island, a small island in the Pacific Ocean that the United States acquired under the Guano Islands Act of 1856. Shortly thereafter, I received an email from a former law clerk of yours who wrote that Judge Aldisert had been stationed there for a time while serving in the U.S. Marine Corps. What if any memories do you have of that place and your assignment there?

I arrived on Johnson Island a little over a year after Pearl Harbor. After Wake had fallen in December 1941, the last two outposts guarding the approach to the Hawaiian Islands were Midway and Johnson. Johnson is and was a low-sand and coral island — 1,000 yards long, about 200 yards wide and, after leveling for protection, 17 feet high. A mile and a half to the northeast of the main island is a small pile of sand and coral reef known as Sand Island, about 200 yards in diameter and eight feet high. Both islands are enclosed by a semi-circular reef, nearly continuous on the north but open to the south. Things were still a little touch-and-go when I arrived on Johnson — General Quarters an hour before dawn and an hour before sunset every day, total blackout at night. I was an officer in a half-strength Marine defense battalion. The other half had been captured on Wake Island and were then prisoners of war. At first, our air protection consisted of two PBYs who went on dawn and dusk patrols at a top speed of 110 knots. Gradually the Navy CBs were able to extend the island to 1,000 yards so that we could have a runway to accommodate a squadron of Dauntless Dive Bombers.

The two 90-millimeter batteries were named after our comrades from the Wake detachment — Captain B.D. Godbold and Lt. Lewis. I served most of my time on Johnson Island as an officer in Godbold battery and later became battery commander of Lewis battery, located on Sand Island. We staged from Johnston Island in January 1944 for the invasion of the Marshall Islands.

About 30 years would pass before I would meet Judge John Godbold of the Fifth Circuit. (He later became Chief Judge of both the Fifth and the Eleventh Circuits.) I told him about my experience with his name. He smiled and told me that the Marine captain captured on Wake Island was his brother, that he survived internment, remained in the Marine Corps and retired as a Lieutenant General in the Marines.

18. You entered the judiciary as an elected state court trial judge. Recently, the method of choosing judges by election has come under much criticism from various groups, and of course the federal model of selecting Article III judges has experienced challenges of its own. If you were put in charge of picking the most sensible method of selecting judges for a State or a Nation, what method would you choose?

I would retain the practice of having state trial judges stand for election with a caveat. I would have a trial lawyer section of local bar associations have input into the qualification of candidates similar to the ABA’s stamp of approval on federal nominees. No one should be permitted to run for office unless he or she were marked qualified. I would eliminate election of state appellate judges, have appointments made by the governor for a 10-year term, after approval by a committee of experienced appellate lawyers in the state bar associations. In the case of both state trial and appellate judges, I would have subsequent terms based on a retention vote.

I have no trouble with the method of choosing federal judges — appointment by the President with the advice and consent of the Senate. This means the Senate — not its Judiciary Committee. For that committee to refuse to send a name to the full Senate is probably unconstitutional. The posturing about approving nominees to the courts of appeals is a relatively new phenomenon, and I think that this silly season will soon pass. Unlike the situation in the U.S. Supreme Court, more than 90 percent of our caseload is ideologically neutral.

19. You and your wife were close friends with U.S. Supreme Court Justice William J. Brennan, Jr. and his wife. When Justice Brennan retired from the Supreme Court, and since then, a more “conservative” approach to judging seems to have come into ascendancy at the Supreme Court. Would you share some of your memories of Justice Brennan, and do you think that it is unfair to malign the Warren Court as activist without acknowledging that the Rehnquist Court has also been activist in its own way?

Justice Brennan was one of the kindest men I ever met. Running throughout all his opinions was an effort to improve justice and eradicate discrimination throughout America. By injecting safeguards in criminal procedures, strengthening federal habeas corpus, and assisting in the resurrection of 42 U.S.C. sec. 1983, he forced many states to choose state judges who would understand and effectuate the great promise of the Constitution for fear that their decisions would not stand up if reviewed in the federal courts. I think that the state judiciary is a more respected institution than it was before Justice Brennan began his crusade.

I do not use the word “activist” to describe any past or present justice of the United States Supreme Court.

20. What do you do for enjoyment and/or relaxation in your spare time?

When she saw this question, my wife laughed, “You don�t have any spare time.” For enjoyment (and health), my wife and I take a brisk four-mile walk on the beachway four mornings a week (she does five days), and once a week I play golf. I love to read and write. I have taken several extension courses at UCLA in fiction writing. For years, I have been simultaneously writing two novels which, of course, will never see the light of day, but I have great fun with the creative process. My wife and I are now slowing down, but for many years we traveled a lot — to all fifty states and, until recently, to Europe every year.

Monday, June 02, 2003

20 Questions for Circuit Judge Michael Daly Hawkins of the U.S. Court of Appeals for the Ninth Circuit: “How Appealing” is very pleased that Circuit Judge Michael Daly Hawkins of the U.S. Court of Appeals for the Ninth Circuit has agreed to participate in this Web log’s recurring monthly feature, “20 Questions for the Appellate Judge.”

Judge Hawkins joined the Ninth Circuit in September 1994 at the age of 49. He attended both college and law school at Arizona State University. After law school, he joined the United States Marine Corps. Thereafter, following a brief stint in private practice, he was confirmed as United States Attorney for the District of Arizona while in his early thirties, making him the youngest U.S. Attorney then serving in the Nation. After working as U.S. Attorney from 1977 to 1980, he returned to private practice, where he remained until he joined the Ninth Circuit in 1994. Judge Hawkins has his chambers in Phoenix, Arizona, and the Ninth Circuit has its headquarters in San Francisco.

Questions appear below in italics, and Judge Hawkins’s responses follow in plain text.

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

Favorites would start with my judicial assistants Vangie Valdez and Laura Ferguson and my permanent clerk, Julia Rasnake Morse, who keep me on task and out of harm’s way. The two rotating law clerks — currently Kate Kelly (Virginia) and Colleen Kennedy (Yale) — are a wonderful part of the experience. This job is unique in allowing continuing contact with the best and brightest minds coming out of the nation’s law schools. The rotating clerks spend one year in chambers, but become part of your extended family for the rest of their lives. I really enjoy my fellow judges. They are a terrific group — high achievers, intellectually curious and just downright interesting people. The Ninth Circuit also has the best clerk in the world in Cathy Catterson. She has assembled a talented and diverse staff that astounds me with the quality and quantity of work they are able to produce. Least favorite? E-mail. We must have it to survive in the tsunami of paperwork that assaults us each day, but it is a great time eater and can, if you let it, erode collegiality with the temptation to respond too quickly.

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

I would identify two: former Ninth Circuit Judge Thomas Tang and former Arizona Supreme Court Justice Evo DeConcini. I followed Tom Tang on this court when he took senior status. He was the soul of decency and a model of civility. Son of a pioneer Arizona family, Judge Tang was the first Asian-American President of the State Bar of Arizona. As a state court judge, he faced a difficult decision involving two juvenile defendants who were involved in an incident which tragically took the life of another young person. Judge Tang decided not to try the pair as adults. The decision was loudly criticized in the press and ultimately led to Judge Tang’s defeat at the polls (we elected state court judges in those days). He never wavered, never apologized and never held a grudge for what happened. As a young lawyer, Tom Tang clerked for Justice Evo DeConcini on the Arizona Supreme Court. Anyone who spent any time around Judge DeConcini (what everyone called him, even after he left the bench) for any period of time could learn a great deal about civility and decency, even someone possessed of Tom Tang’s natural grace. Evo’s son Dennis DeConcini, a prosecutor in Tucson when I met him, became a three-term United States Senator. The new U.S. Courthouse in Tucson bears Evo DeConcini’s name. If I were able to carry myself with half the grace and dignity of a Tom Tang or Evo DeConcini, I would be quite content.

3. How did you come to President Clinton’s attention as a potential nominee to serve on the Ninth Circuit, and do you have positive, negative, or mixed memories of the confirmation process that followed your nomination?

Your last question provides a nice transition. Senator Dennis DeConcini recommended me to the White House shortly after Judge Tang took senior status. There was some initial discussions about whether to keep the seat in Arizona. Once that resolved itself, my name went over the President along with two others from Arizona. Once the President identified me as the intended nominee, I was interviewed by Deputy White House Counsel Vicky Radd (now Rollins) and Assistant Attorney General Eleanor Dean Acheson, among others. The first question was about where I grew up and I responded by asking if anyone remembered The Eagles’ song “Take It Easy.” (See Question No. 20). The nomination process could not have gone more smoothly: I was nominated in July 1994, had a confirmation hearing that August and was confirmed a few weeks later in September. I was treated very well by everyone in the process, including Senator Orrin Hatch, the ranking Republican on the Judiciary Committee at the time and Senator John McCain from Arizona.

4. Two of your colleagues on the Ninth Circuit — Diarmuid F. O’Scannlain and Andrew J. Kleinfeld — have previously answered “20 questions” here, and each explained the reasons why he favors splitting the Ninth Circuit into two (or perhaps three) smaller circuits. You are on the record as opposing a division of the Ninth Circuit. Why do you hold that view, and how do you respond to the reasons favoring a split that Judges O’Scannlain and Kleinfeld have raised?

The first thing to remember about the Ninth Circuit is that it is much more than the Court of Appeals. It also consists of 160 district judges, 69 bankruptcy judges, 105 magistrate judges and all of them play extremely important roles in the administration of justice in the West. Divide the Circuit and you take away the ability to make use of excess resources in one part of the circuit when another part is in need. When Montana was down to one district judge, district and circuit judges traveled there to help out. When Arizona was drowning in drug and immigration cases, judges from Washington and Alaska pitched in.

On the general subject of whether there should be a division of the Ninth Circuit, I see three schools of thought: There are those, like Judges O’Scannlain and Kleinfeld, who believe that there should be a split. There are those who say “If it ain’t broke, don’t fix it.” There are also those to subscribe to what I call Wake’s corollary, which is “If it’s too hard to fix, leave it broken.” My guess is that some combination of the last two represents the current majority of our judges.

For me, the case has simply not been made for the need to split the Circuit. Splitting will not cure delay, it will enhance it. It will not lessen the influence of California, it will increase it. At the end of the day, we all recognize that this is a question that will be decided by Congress. One would hope that the decision would take into account the views of our judges. As I understand it, that is what happened when the 5th Circuit eventually split into the current 5th and 11th Circuits and when the 8th Circuit was divided, creating the 10th Circuit.

The problem of growing caseloads is very real. While we might all dream about being on a court with 10 to 15 judges we agree with all the time, that is unlikely to happen. All the projections tell us that if caseloads continue to grow in the way they have in the past and circuit judgeships are created to meet the caseload demand — most if not all of the circuits will grow beyond what has been identified as the ideal size for a circuit (12-15 judges). If circuits were divided each time that number were reached, we could have something like 45 circuits by the year 2030. I just don’t think that the “Circuit of South Florida” or the “Circuit of Southern California” makes any sense. To me, the answer for now is to keep the vacancies filled and create more judgeships when and where needed.

5. The Judicial Conference of the United States has recently asked Congress to authorize seven more active judges to serve on the Ninth Circuit, which would give your court a total of thirty�five authorized active judgeships. Would a Ninth Circuit with thirty�five active judges cause you to favor a split of the circuit? If not, is there some size, either in total number of judges or in caseload, or some other threshold that if reached would cause you to favor splitting the court into two or more circuits?

The judges of this court are realistic and sophisticated folks. When the Circuit reaches a size where its business cannot be effectively managed — a point I do not think we have reached — we will consult the rest of the Article III family in the Circuit and approach Congress with a sensible plan of division. As mentioned earlier, that is what happened when the 10th and 11th Circuits were created.

The conventional wisdom is that size can destroy civility. I have a good friend who served on a state supreme court. Serving with the same judges every day, he got to the point where he knew what they would say or write before they opened their mouths or put a pen to paper. I had lunch with him one day and told him how the Ninth Circuit randomly rotated judges for sittings. His response: “I would kill to be on a court like that.” There is a civility built into a large court. In a typical year, I will sit with 16 other judges and rarely with any repeats. There is sense to the old saw that familiarity breeds contempt — and also to the one that distance can make the heart grow fonder. I think the Ninth Circuit has achieved a good balance to gain the best of both.

6. Lastly on this issue, if the Ninth Circuit is divided, what should be done with the State of Arizona, and why? And what is your reaction to proposals that would make Arizona part of the U.S. Court of Appeals for the Tenth Circuit?

Reasonable minds can differ on the general question of whether to split the Ninth Circuit. The real problem appears when one tries to come up with a sensible way to accomplish a split — hence the Wake corollary. Nothing shows that better than some of the configurations that have been suggested. Putting Arizona in the Tenth Circuit would appear on any short list of the worst of those suggestions. It would, in my judgment, work an unmitigated disaster for Arizona litigants, subjecting them to a new and unfamiliar body of law. Whether we may like it or not — and I will confess that having California in your Circuit is sometimes like having an older brother or sister who is a rock star — Arizona’s commercial and legal ties are to California. Pull any volume of the Arizona Revised Statutes off the shelf and look at the source of a particular Arizona statute; more often than not, it is California. The majority of states in the Ninth Circuit, like Arizona, are community property states. The Tenth Circuit has only one (New Mexico). Arizona, Nevada and California all border the Colorado River and its water, governed by different policies and law hammered out over a century of battle and compromise, is our life blood.

At no time in American history has one state has been pulled out of one circuit and placed in another and the Arizona lawyers I talk to do not want our state to be the first. I have nothing but respect for the Judges of the Tenth Circuit, but I don’t think they want us any more than we want them.

Forced to identify a particular division of the Ninth Circuit, my candidate would be the same as the one you earlier suggested: leave Arizona, California, Nevada, Hawaii & the Pacific Islands Territories (Guam & the Marianas) in the Ninth and put the remaining states (Oregon, Washington, Idaho, Montana & Alaska) in a new 12th Circuit.

Geographically logical as this proposal might seem, it would instantly create a real disparity in caseloads. According to the latest figures, the national average of cases terminated each year per circuit judge is 485. That figure for the Ninth Circuit is currently 492. This proposal would create a new 12th Circuit with 164 cases per judge, while the 9th Circuit would be burdened by a caseload of 692 cases per judge. Given the current pace of judicial confirmations, it is no answer to suggest that Congress can simply create new judgeships. Even if it could and would, just to bring the 9th Circuit down to the national average would require an additional 8 judges — once filled, these additional judgeships would mean the 9th Circuit, even after being divided, would have 21 judges. Assume that Nevada and Arizona continue to grow at their current rate — and they are among the fastest growing states in the nation — certainly the caseload will grow, as will the need for more judges. Does this mean there will be a need to divide the 9th once again in a few years? You get the picture.

7. You have served on a number of eleven-judge en banc panels where the result has been determined by a 6-5 vote. In such instances, do you ever wonder whether the same outcome would have been reached if all of the Ninth Circuit’s active judges had participated in the matter? And are there any changes to the Ninth Circuit’s en banc procedures that you believe would make the court’s en banc process work better?

The first thing to understand about our en banc process is that every active judge participates in the process of deciding whether a three-judge panel decision should receive en banc review. They send or receive memoranda arguing the pros and cons and, unless recused, cast a vote on whether a case should go en banc. We have judges who come with a wide variety of experiences and viewpoints. As a result, it is very difficult for a controversial case to slip under the radar screen. And when en banc votes fail, you often see dissents like Judge Kozinski�s in Suzuki Motors v. Consumers Union of the U.S., Inc., ___ F.3d ___, 2003 WL 21137731 (9th Cir. 2003).

Where our practice differs from that of other circuits is that all of our active judges do not sit on the en banc court. As authorized by Congress, our en banc court consists of the Chief Judge and ten other Ninth Circuit Judges drawn at random. The rules provide that if a judge is not drawn three times consecutively, that judge is automatically “drawn” for the next court.

While it is statistically possible for six judges to embrace a position at odds with the remainder of the court (game theorists call this “the tyranny of the minority”), there is a safeguard: any judge can request review by the full court. If a majority of the active judges agree, the case is then reviewed by all of our active judges (26 as we speak).

A few years ago, I served on a committee that studied our en banc process. I went into it thinking that we should consider expanding the number of judges from 11 to 13 or even 15 judges. The committee consulted some of the brightest statisticians and game theorists at some of the leading universities. We told them we were particularly concerned about the possibility of “the tyranny of the minority” and wanted to know if expanding the en banc court would reduce the statistical probability of that happening. In a response demonstrating that fact can sometimes defy expectation, these experts told us that the “tyranny” had a very small probability of occurring and expanding the en banc court by 2 or 4 judges would not reduce that probability in anything but a very marginal way.

8. Some may believe that the Ninth Circuit is unfairly maligned in the popular press, especially when the press reports on the latest U.S. Supreme Court reversal or the latest Ninth Circuit ruling to provoke a public outcry of one sort or another. What are your views on the press coverage that the Ninth Circuit has been receiving, and would you characterize the coverage, generally speaking, as fair or unfair?

Article III courts are prime targets for criticism and I see that as a fair trade-off for the life tenure we enjoy. Because it is unrealistic to expect that every reporter is going to be Linda Greenhouse of The New York Times or Nina Totenberg of National Public Radio, there will always be some coverage that might be felt to be lacking in some respect. But that is part of the territory. After the 2001-02 Supreme Court term, when the Ninth Circuit’s reversal rate was 76 percent (average was 75 percent and four Circuits had 100 percent reversal rates), a San Francisco newspaper had this headline: “Ninth Circuit Reversal Rate Plunges to Near Normal.” (I am actually quite fond of that headline). I have no complaints about the way the media covers us and find the vast majority of reporters fair-minded people doing what is a very difficult job: trying to distill often quite complex issues into reporting for a general audience.

9. What, if anything, does the reversal rate that a particular federal appellate court or federal appellate judge has experienced at the hands of the U.S. Supreme Court reflect about that federal appellate court or federal appellate judge? Also, the U.S. Supreme Court has considered a number of cases in which you have written an opinion, either for your court, or concurring or dissenting. Which ruling by the U.S. Supreme Court in any one of those cases surprised you the most?

I attended a Ninth Circuit Judicial Conference in the mid-1980s as a lawyer delegate. During one of the sessions, then Associate (now Chief) Justice Rehnquist was asked about the Ninth Circuit’s reversal rate. Here is the sense of what he said in response: First of all, the Supreme Court does not ordinarily take cases to affirm the result in the appellate court. Second, the appellate court is obligated to apply the extant law — even if it feels the Supreme Court might rule differently if and when it addresses the issue. Justice Rehnquist then said: “Those two factors would explain a reversal rate of about 75 percent — anything above that can only be explained by the Ninth Circuit’s inability to turn down a hard luck story.” While what the Chief Justice described as “hard luck” others might characterize as injustice, certainly his first two observations are correct. Finally, it cannot be ignored that judges are often (but not always) something of a mirror of the President who appointed them. Although this is changing, the Ninth Circuit currently has a majority of judges appointed by Democratic Presidents while the Justices of the Supreme Court have largely been appointed by Republican Presidents. It should not be surprising that we see some things differently, but as members of an institution described in the Constitution as “such inferior courts,” we are ever mindful that the Supreme Court has the last word.

10. Where would you locate yourself on the wide spectrum of ideological and political viewpoints represented by the judges currently serving on the Ninth Circuit?

I think you would really have to ask someone else this question to get an objective answer. I think of myself as being entirely moderate in all things, but others might say otherwise. My judicial philosophy is really pretty simple: people involved in the legal process should be treated fairly and judges should decide cases on the merits.

The ideological face of the Ninth Circuit is a work in progress. When I arrived on the scene in 1994, the court had ten vacancies. Since that time, seventeen new judges have been appointed. Every one of them is a unique individual. The appointees of former President Carter are different from the appointees of former Presidents Reagan and Bush, and the Clinton appointees different from one to another and the appointees of this President will make their own mark over time.

11. You were the first of fourteen nominees that President Bill Clinton placed onto the Ninth Circuit. One of your colleagues, Circuit Judge Stephen Reinhardt, has been quoted as saying that President Clinton, by failing to nominate only liberal judges, squandered the opportunity to reverse the conservatism that the Reagan revolution brought to the federal judiciary. Do you concur in Judge Reinhardt�s criticism of President Clinton in this respect, and why or why not?

My first response is a practical one. For six of the eight years of presidency, President Clinton faced a Senate controlled by the opposing political party. By definition, that makes the confirmation process different. Each administration approaches the nomination of judges in its own way, and the confirmation process will often have a great deal to do with what a President wants to accomplish through judicial appointments. History shows that when the White House and the U.S. Senate are in the hands of the same party, nominees are often readily confirmed.

Of the judges nominated by President Clinton to the Ninth Circuit, I alone sailed on such smooth seas. All 13 others went through a confirmation process where the opposition party was in charge of the Judiciary Committee. That had an impact then just as it did during the first two years of the current administration. My colleague Richard Paez, for example, waited more than four years to be confirmed and one of the current nominees has been waiting almost two years.

12. 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, are you adhering to the “Law Clerk Hiring Plan” that supposedly has the overwhelming support of federal appellate judges, and why or why not?

I look for bright, energetic people who are full of life; people with wide-ranging interests, who love to read and are fascinated by the endless stream of life stories that appear through the cases we see, people who enjoy the outdoors, good food, good books & movies and, of course, baseball. Clerks report back to law schools about their experience and that may explain why I have had so many clerks from East Coast law schools (Yale, Harvard, Columbia, NYU, Virginia). I would like to see more applicants from law schools in the West and perhaps this column will help in that regard.

I am a supporter of the Law Clerk Hiring Plan and look forward to interviewing people with two full years of law school completed. The judges who came up with this idea (Judge Harry Edwards of the D.C. Circuit and Judge Edward Becker of the 3rd Circuit) deserve a standing ovation.

13. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is giving serious consideration to a rule that would allow the citation of unpublished, non-precedential decisions in briefs filed in all federal appellate courts. The Ninth Circuit appears to stand alone in actively opposing that rule change. Where do you personally stand on this issue, and do you think that the Ninth Circuit’s opposition to the possible rule change stems from the large size of the court and its inability to ensure that its non-precedential decisions are adequately considered?

The purpose of an unpublished disposition is simply to inform the parties to the appeal the basis for the decision reached. As such, they are relatively useless as a guidepost for deciding future cases. There are, however, instances in which citation to them may be helpful. When a party asks a panel to consider publication of a decision, it can be helpful to identify potentially conflicting unpublished decisions that could be cleared up by publication. Similarly, a party seeking en banc review ought to be able to demonstrate conflicts or confusion that might be out there. This is essentially the rule in the Ninth Circuit and I think it has real promise in clearing up any confusion that might impact the work of district, magistrate or bankruptcy courts receiving the result of an appeal in individual cases.4

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

Ideally, the goal should be to attract the best lawyers to the Article III bench and to avoid the loss of that talent because of economic pressures.5 Increasing salaries is a very important part of that process. Members of the recently-created Accounting Oversight Board are to be paid $450,000 per year — a lot of money by any measure, but reflective, one would think, of Congress’ considered judgment that such a salary was necessary to attract the best available accountancy talent. Certainly Article III judges, including the Chief Justice of the United States — the head of a coordinate branch of government — should merit that same consideration. My own law clerks — young lawyers who have never tried a case or even taken a deposition — often go to jobs that pay them more than the salary of circuit judges.

The good news is that people are hard at work on the problem. The Chief Justice has spoken eloquently on this subject,6 the report of the Volcker Commission helped, and the tireless efforts of colleagues like Circuit Judges Grady Jolly, Deanell Tacha and John Walker on behalf of the Federal Judges Association have contributed mightily. The President’s recent announcement of support for a pay increase is truly welcome. Legislation co-sponsored by Senators Hatch and Leahy recently passed out of the Senate Judiciary Committee to accomplish that goal. I understand a companion House bill has also been introduced.

15. Of the many opinions that you have written since joining the Ninth Circuit in 1994, what single opinion — unanimous, majority, concurring, dissenting, or other — do you find to be the most memorable?

In this job, your memory tends to be about 6 months long. Also, a case thought to be important 6 or 8 years ago, might not seem so important now. A judge’s job is to resolve the case in front of you fairly and appropriately. When a case not only accomplishes that purpose but also has at least the potential for making the system work better, it is an added bonus. On that criteria, I identify the following two cases decided in the last year.

I was gratified by the response of the Chief Counsel of the Internal Revenue Service following the opinion in Dixon v. IRS, 316 F.3d 1041 (9th Cir. 2003), in which the IRS was taken to task for the actions of two of its lawyers leading up to and in a Tax Court trial. Rather than whine or complain, he acknowledged that the panel got it right and stated publicly that corrective actions would be taken.

United States v. Leonti, 326 F.3d 1111 (9th Cir. 2003) establishes that the sentencing process in which something like 85% of federal cases are resolved is, for Sixth Amendment purposes, a critical stage where there is a right to competent counsel in not only negotiating the plea, but also in working with the government to insure favorable treatment when sentencing occurs.

16. How do you define the term “judicial activism,” and is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule?

H.L. Mencken once defined an alcoholic as “someone you don’t like who drinks as much as you do.” All too often “activist” is used to define a judge who writes an opinion with which you disagree. The Warren Court was considered quite active in the civil rights and civil liberties fields, but there was little if any criticism from the Left about that Court being too “active.” The current Supreme Court is quite “active” in overturning Congressional legislation,7 but very little “activism” criticism emanates from the Right. Perhaps activism, like beauty, is in the eye of the beholder.

Eight out of ten appeals I see would be decided the same way by any three judges of our court. The remainder often involve policy choices as to which reasonable minds could (and often do) differ. For a case where I thought the majority was being overly active, see my dissent in Thomas v. Anchorage Equal Rights Comm., 165 F.3d 692, 718-727 (9th Cir. 1999).8

17. President Jimmy Carter nominated you, and the U.S. Senate confirmed you, to be U.S. Attorney for the District of Arizona when you were quite young. How did that nomination come about?

I worked on a U.S. Senate campaign in 1976 for Dennis DeConcini, whose family I had known and admired for many years (See Questions 2 & 3). When he was elected, the Senator asked me if I wanted to be considered for the job. I remember being interviewed at the Justice Department by then Associate Attorney General Mike Egan and him saying something like: “My God, you�re only 31!” It was a dream job. I had two of the greatest bosses anyone could ask for, Attorneys General Griffin Bell and Benjamin Civiletti. Most of all, I worked with some truly outstanding Assistant U.S. Attorneys, individuals deeply dedicated to public service in the highest sense. Some measure of this is that in an office of about 40 lawyers, 16 have gone on to become judges, six to positions on the federal bench. Several others went on to successful careers in private practice and a number made public service their career.

18. Phoenix, Arizona is home to a brand new federal courthouse, known as the Sandra Day O’Connor U.S. Courthouse. I’m told that some people absolutely love it, while others don’t. What’s your opinion of the new building, and have you moved your office there yet? Also, what’s the current status of the pesky technical problems that have been plaguing the building since it opened?

We moved into the O’Connor Courthouse about three years ago. I think anyone who appreciates modern architecture would be attracted to any building designed by Richard Meier (designer of the Getty Museum in Los Angeles). The sight lines are stunning and its openness quite appealing. Whether it made sense to put an essentially all-glass and steel building in the middle of the desert is a question above my pay grade. Our workspace is comfortable and spacious and the GSA building managers and District Court personnel are a joy to work with. I leave all the technical problems in their very able hands.

19. For a little while, you had the only opinion on Westlaw’s federal or state court databases to explain the game known as “Dizzy Izzy.” Recently that decision of yours, which had set aside a defendant’s criminal conviction, was withdrawn, and a new decision issued in its place that affirmed the criminal conviction under review. The new decision omits any mention of “Dizzy Izzy.” Is there any hope that you might once again fill this “Dizzy Izzy” caselaw void to which you have returned us? And for those of us without easy access to the docket entries, can you explain what happened in that case between the time of the panel’s original unanimous decision reversing the defendant’s criminal conviction and the panel’s later unanimous amended decision reaching an entirely opposite result?

The appeal involved a questionnaire for a pilot’s license which, among other things, asked if the applicant had ever experienced dizziness. At argument, I asked the government lawyer if it would be possible for one to innocently and honestly answer “no” if that person had once played Dizzy Izzy. He was candid enough to agree that one could. Ultimately, the panel became convinced in the rehearing process that the opinion should be withdrawn and re-written and Dizzy Izzy bit the dust.

20. I see from your official Federal Judicial Center biography that you were born in Winslow, Arizona, a town made famous in a song performed by The Eagles. Did you grow up there, and if so what was that like? Finally, what do you do for enjoyment and/or relaxation in your spare time?

Standing on a corner in Winslow, Arizona

It’s such a fine sight to see. It’s a girl

My Lord in a Flatbed Ford staring

back to take a look at me.

Winslow is a town of about 8,000 located on the Colorado Plateau in Northeastern Arizona near the Navajo Indian Reservation. I was born there and went through its public schools. I cannot imagine a better place in which to have grown up. It was a place somewhat like Garrison Keeler’s Lake Wobegon, except that the people that were above average were the teachers. They were considered important citizens of our little town and they taught their children well, sending future Ambassadors (William Mahoney, Ambassador to Ghana in the Kennedy Administration), a future U.S. Attorney General (Richard Kleindienst, A.G. in the Nixon Administration) and a War Hero (Marine Colonel Jay Vargas, Vietnam Medal of Honor winner and my former American Legion baseball coach) out into the world.

And, oh yes, there was a girl in a Flatbed Ford (or something like it). Her name was Phyllis and, almost 40 years later, I still enjoy it when she looks back at me.

As far as hobbies, I am an avid baseball fan. For years in Arizona, that meant trying to attend as many Cactus League Spring Training games as possible. Now that there is a major league team here � the Arizona Diamondbacks � I can spread the pleasure (or frustration when they lose) across several months. I also enjoy running, hiking and helping Phyllis train for triathlons.

I also love to read, especially about history. After going through the LL.M. program at the University of Virginia, I began doing a good deal of reading about the first son of a President to be elected President in his own right, John Quincy Adams. Quincy kept a detailed diary, from about age 11 to his death at 81� carefully edited by his son and grandson, both prominent historians. Quincy lived a fascinating life. He knew Czars (Alexander I), Emperors (Napoleon), served in both Federalist (George Washington & John Adams) and Republican (James Monroe) Administrations and had a life long friendship with John Marshall.10 Quincy was also one of the few former Presidents to return to active public life (as a Member of Congress) or to argue a case before the Supreme Court (the Amistad slave ship case).11

Howard, thanks for the opportunity to do this — it was fun and I hope your readers enjoy it as well. I do have one question for you: When do you sleep?


1. Credit where it is due: this is a quote from Phoenix lawyer Neal Wake.

2. Arizona, California, Idaho, Nevada and Washington are all community property states.

3. Justice Consuelo Callahan of the California Court of Appeal was confirmed by the U.S. Senate on May 22, 2003 and took office on May 28, 2003. She joins Richard Clifton of Hawaii and Jay Bybee of Nevada as appointees of President George W. Bush on the Ninth Circuit.

4. For an example of a published opinion clearing up this kind of confusion, see United States v. Rivera-Sanchez, 222 F.3d 1057, 1062-63 (9th Cir.2000) (citing 20 unpublished opinions on a sentencing issue in which panels had given differing directions to district courts).

5. “Prior to 1990, only a handful of judges ever left the bench. Since 1990, over 70 Article III judges have left, and they have done so at an increasing pace.” Chief Judge Deanell Tacha (10th Cir.) “President Endorses Senate Bill to Raise Pay of Federal Judges” Vol. 35, No. 2 The Third Branch at 4 (May 2003).

6. See, “Justices Urge Raises for Federal Colleagues,” New York Times, May 29, 2003 at A-23; E. Walsh “Federal Judicial Pay Called Too Low,” Washington Post, May 29, 2003 at A-23.

7. Since Marbury v. Madison (1803), the Supreme Court has held acts of Congress unconstitutional in 156 cases. 37 of those have occurred since 1986.

8. The panel opinion from which I dissented was taken en banc and reversed. Thomas v. Anchorage Equal Rights Comm., 220 F.3d 1134 (9th Cir. 2000) (en banc), cert. denied, 531 U.S. 1143 (2001).

9. “Take It Easy” by Glen Frey and Jackson Browne. © Warner Bros. Music and Red Cloud Music (1972).

10. I wrote about this relationship in “John Marshall Through the Eyes of an Admirer: John Quincy Adams,” 43 William and Mary Law Review 1453 (2002).

11. I wrote about this also (and in more detail about Quincy Adams’ career) in “John Quincy Adams and the Antebellum Maritime Slave Trade: The Politics of Slavery and the Slavery of Politics,” 25 Oklahoma City Univ. Law Review 1 (2000).

Monday, May 05, 2003

20 Questions for Circuit Judge Andrew J. Kleinfeld of the U.S. Court of Appeals for the Ninth Circuit: “How Appealing” is very pleased that Circuit Judge Andrew J. Kleinfeld of the U.S. Court of Appeals for the Ninth Circuit has agreed to participate in this Web log’s recurring monthly feature, “20 Questions for the Appellate Judge.”

Judge Kleinfeld joined the Ninth Circuit in September 1991, when he was in his mid-40s. His first stint at judicial service occurred from 1971 to 1974, while he was in his mid- to late-20s, when he served as a part-time U.S. Magistrate in the U.S. District Court for the District of Alaska. In 1986, President Ronald Reagan nominated, and the U.S. Senate confirmed, Judge Kleinfeld to serve as a U.S. District Judge for the District of Alaska. He remained a district judge until he joined the Ninth Circuit in 1991. Judge Kleinfeld attended college at Wesleyan and law school at Harvard. His chambers are based in Fairbanks, Alaska, and the Ninth Circuit has its headquarters in San Francisco.

Questions appear below in italics, and Judge Kleinfeld’s responses follow in plain text.

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

The most enjoyable part of the job is studying the excerpts of record and the briefs, and studying the relevant law. I especially enjoy the scholarly research, and the chance to delve into the details of lives, occupations and industries other than my own. The most satisfying part is being able to go home feeling like what I do is worthwhile.

My least favorite aspect of the job is that there is so much volume.

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

The judge I admire the most is the first Justice Harlan. I admire his independence of mind and the great courage that he had to stand against both his Court and the society of his times to do the right thing in Plessy v. Ferguson.

3. How did you come to President Reagan’s attention in 1986 to fill a brand new judgeship on the U.S. District Court for the District of Alaska and to President Bush’s attention in 1991 to fill a vacancy on the Ninth Circuit, and do you have positive, negative, or mixed memories of the confirmation processes that followed those nominations?

In 1986, Senator Murkowski took the lead on the nomination. He used a merit selection system. After obtaining expressions of interest from a number of people, he asked the Alaska Bar Association to poll the bar members by region on suitability of those who’d expressed interest. I came in highest on the bar poll in my region of the state. Senator Murkowski sent three names to the White House, as the President then required, and when President Reagan selected me, Senator Stevens, Senator Murkoswki and Representative Young all endorsed my nomination. So I suppose you could say that the way I came to President Reagan’s attention in 1986 is that the lawyers in Alaska, in response to Senator Murkowski’s decision to consider their views, brought me to his attention through the Senator.

In 1991, Senator Stevens had obtained an agreement with the Executive Branch that Alaska would get the next seat on the Ninth Circuit. After calling me, Senator Stevens put my name forward.

The confirmation process itself is extremely unpleasant. From the time the FBI and ABA investigations make it known that the President has tentatively decided to nominate a person, the prospective nominee dangles in the cold wind while the President’s adversaries look for dirt. At least that’s how it was when I experienced it. No doubt some good potential nominees decide to avoid the whole process, and the courts lose talent.

4. In a letter that you submitted in May 1998, you endorsed a division of the Ninth Circuit that would place the States of Alaska, Idaho, Montana, Oregon, and Washington into a new Twelfth Circuit. Do you continue today to view that proposed split as the best possible division, if not what proposed split do you favor today, and please explain the reasons for your answer.

I continue to strongly favor a split of the Ninth Circuit. The most important reason why is purely administrative, that the circuit is just too big for effective appellate decision making.

As to the details of how the split is done, I don’t think it matters all that much. Placing just about any combination of states in the Twelfth Circuit, and apart from California, would improve the quality of justice in both by making both the Ninth and the new circuit smaller. When the Eighth Circuit was split into the Eighth and Tenth Circuits, and the Fifth Circuit was split into the Fifth and Eleventh Circuits, the people in all of those new circuits benefitted from a more coherent and predictable decision-making process.

I agree with the conclusion of the Commission headed by Justice Byron White (and two-thirds of the appellate and district judges that they surveyed) that the Ninth Circuit has far too many judges for an optimally functioning appellate court. Currently, we have twenty-eight seats for active judges on this court, and forty-six judges on the court counting those who have taken senior status (almost all senior judges still participate quite substantially).

Our court is much too big for us to read all of each other’s decisions and it’s too big for us to sit together to rehear a case en banc. There are well over 3,000 combinations of judges, not including senior and visiting judges, so a pair of active judges on the court can go 3 or 4 years without sitting with each other on a regular panel. Our “limited en banc” consists of 11 judges out of 28. If you have a majority of 6 judges in those cases (as we often do), then a “majority” that is less than one-fourth of the whole court purports to be acting for the full court in rehearing our most important and controversial cases.

5. If the Ninth Circuit is indeed divided, what are the three things about the current Ninth Circuit that you expect you will miss the most, and what three things will you miss the least?

The three things I’ll miss the most are:

1. My very capable colleagues and friends in whatever states are no longer in my circuit.

2. Working on the diverse and interesting problems that arise out of California.

3. The pleasure of the people and places I regularly get to visit when hearing cases in San Francisco and Pasadena.

The three things I’ll miss the least are:

1. Too many cases, with the consequence that a judge just can’t read all the slip sheet opinions from the court. As a result, the law becomes somewhat incoherent and unpredictable. I once tried to carry a year’s worth of slip sheets up to a podium to give a speech about the Ninth Circuit, but there were so many that the carton broke and the slip sheets fell like snow all around my feet and up to my ankles in a huge pile. That proved my point better than anything I could have said.

2. The rarity with which I get to work on the important legal concerns of my own state, and other states with which Alaskans have more contact and similarity than California.

3. The “crapshoot” aspect of en banc panels drawn randomly from our much larger court.

6. You are the first former trial court judge to participate in the 20 questions feature. I have heard some federal appellate judges who formerly served as federal district judges remark that they enjoyed the job of federal district judge more than they enjoy the job of federal appellate judge. How do the two jobs compare in your opinion, and what things if any do you miss about being a district judge?

For me, anyway, it’s not true that I enjoyed the district judgeship more than the appellate judgeship. They are both great privileges and I quite frequently think how fortunate I am to be doing this work. I like the Circuit Court better, because my own tastes run to reading briefs and records and researching the law, and I didn’t get to do as much of that as a district judge. A district judge’s work is kind of lonely, because he exercises most of his authority in the court room, and does it by himself.

As for how the two jobs compare, being an appellate judge is more like being back in law practice. Your daily work consists in significant part of trying to persuade judges to accept your view of the law. Although I am not writing memos supporting or opposing summary judgment any more, writing suggestion memos, en banc memos, and to some extent the process of writing opinions is a lot like the part of law practice that isn’t conducted on the telephone. Studying and writing about the law, and trying to come up with an analysis of the facts and the law that will satisfy the other two judges on the panel, is a lot like what I did when practicing in front the Alaska courts.

As for what I miss most about being a trial judge, I liked supervising a case in pretrial, frequently on matters that I understood well and with lawyers on both sides that I knew. I enjoyed being able to adjust the conditions and limitations on discovery and trial in such a way that the case would be resolved fairly, on the merits, with attorney’s fees and expenses that were reasonable in relationship to the stakes on both sides. The ability to bring about justice in an individual case, and to recognize how to do that, is often much greater as a trial judge than as an appellate judge. The discretionary decisions of trial judges shape most cases, and it’s nice to be able now, as an appellate judge, to understand and appreciate those exercises of discretion.

7. Some may believe that the Ninth Circuit is unfairly maligned in the popular press, especially when the press reports on the latest U.S. Supreme Court reversal or the latest Ninth Circuit ruling to provoke a public outcry of one sort or another. What are your views on the press coverage that the Ninth Circuit has been receiving, and would you characterize the coverage, generally speaking, as fair or unfair?

I have no criticisms of the press coverage of the Ninth Circuit, any more than I have criticisms of press coverage of any major institution. Of course, lay journalists often do not understand technical matters in the law. But I certainly see nothing wrong with critical reporting on a public institution, whether it’s a court or not. When we are wrong about something, and we get reversed, there’s no reason why it should be our little secret.

8. While today you don’t have to travel hundreds of miles by dogsled to hear cases as your predecessor judges based in Alaska once did, you probably now have the most grueling commute of any federal appellate judge to arrive at the locations where your court regularly hears oral arguments. When you weigh the substantial costs of oral argument against its benefits, do you find oral argument to be over-valued? And do you have (or if not would you favor) the option of participating in oral argument via videoconference, which even the rather geographically compact U.S. Court of Appeals for the Third Circuit uses when its judges can’t justify a trip to Philadelphia?

Oral argument is worth the trouble.

We have occasionally had oral arguments by conference call, typically on a comeback case that we are not hearing during a regular argument week (it would not be practical for all three judges to travel just for one case). In my experience, it works reasonably well, though not quite as well as live argument. Videoconferencing would be a little better. I didn’t know about the videoconference oral argument in the Third Circuit. Thanks for telling me.

Despite its inconvenience, I find oral argument extremely valuable and worth the very considerable effort it takes for me to get there. The effort is no joke: it’s 8 � hours to San Francisco and 10 � to Pasadena when everything goes right, and as long as 22 hours when it doesn’t (which is often).

The value of oral argument differs for different judges, because judges have different learning styles. Some prefer to learn things and develop their opinions as they read, others as they listen and talk. I’m in the “listen and talk” camp. On a case where some aspect is troubling or difficult (and that’s many of the orally argued cases), I just don’t make up my mind until I have to; and I don’t have to, even tentatively, until we confer after oral argument. There is no point to making up my mind sooner, because I learn a lot from the dialogue with the lawyers. The value comes not just from answers to my own questions, but from the loosely structured back-and-forth when a three judge panel conducts oral argument, and the dialogue that the other two judges have with the lawyers. Even when I come in with a fairly well-set, tentative view, the lawyers often educate me on matters I did not fully understand from the briefs or the excerpts. Ordinarily, a lawyer knows more about his or her own case than the judges can possibly know, and they educate judges. Sometimes we don’t really understand the case from the briefs, particularly if they are not that well written, and the issues become clear at the oral argument.

9. After growing up in Brooklyn, New York and attending college and law school on the east coast, you traveled to Fairbanks, Alaska to take a judicial clerkship with Justice Jay A. Rabinowitz of the Supreme Court of Alaska. What strategy did you employ in seeking a judicial clerkship, how did you come to accept this one, and what were the reasons why you decided to make your home in Alaska following your clerkship’s conclusion?

Although I was born in the Bronx (not Brooklyn), I mostly grew up in the Washington, D.C. suburbs. I had thoughts about a political career and Alaska looked like a good place for it, but I abandoned those thoughts after discovering that law was much more interesting for me than politics. I had no strategy for seeking a clerkship. I chose to apply to Jay Rabinowitz after reading a large number of Alaska Supreme Court decisions and deciding that of the three justices who were then on the court, he was the one with whom I was most impressed and with whom I resonated the most. I was most impressed with some dissents Justice Rabinowitz wrote in a case that went up and down to the U.S. Supreme Court, because of his lucid and effective defense of freedom of speech in the face of a majority that got the answer wrong.

The only clerkship I applied for was with Justice Rabinowitz. While finishing it, I thought about going back to Boston where I had an offer lined up at a very fine firm I had clerked for after my second year, Rackemann, Sawyer & Brewster. Before I went back I decided to hang out my shingle in Fairbanks to see what it would be like. Back then, Fairbanks was just a small frontier town. What happened was that from the start I was making more money and having more fun then I expected to have in Boston, so I never went back. And the camaraderie of the bar in Fairbanks was delightful (and still is – I have lunch with the Tanana Valley Bar Association every Friday unless I’m out of town).

10. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven’t been. Also, are you adhering to the “Law Clerk Hiring Plan” that supposedly has the overwhelming support of federal appellate judges, and why or why not?

When looking at potential clerkship applicants, I look first for a very high level of intelligence. I prefer that the person have had a good undergraduate education, so that the law clerk will be well-rounded in history, economics, political science, and literature, with some general scientific and mathematical understanding. It is not at all unusual for us to have to think together about Reconstruction politics or statistical significance as well as legal doctrine.

I don’t limit myself to hiring applicants from the top law schools. Some highly capable people don’t go to the top law schools because they can avoid incurring a six figure debt by accepting a good financial package from a law school a little further down on the U.S. News & World Report‘s list. And some people just have more talent at the law than they did at their undergraduate subjects and blossom in law school. I prefer to give a chance to a broader range of people, and it gives me the benefit of a broader market.

My clerks and I spend a lot of time together, and we have daily conferences where they have to present cases to me orally. We also have lunch together frequently. So I look for clerkship applicants who speak clearly and concisely about complex matters, and who I will enjoy talking with. I like law clerks who share my view that judges should perform an intellectually honest analysis of the law and apply it to the facts of the particular case, rather than imposing their policy preferences. Resume entries such as participation in the Federalist Society or with organizations like the Institute for Justice also pique my interest. And I look for nice people, so that through an entire year working closely together in a small office at a remote subarctic outpost we will continue to like each other and enjoy each other’s company.

I don’t follow the law clerk hiring plan, because it is impractical for Alaska. I hire before, during, and after the officially stated times. As a practical matter, I now expect to do much of my hiring during the summer following second year and during the fall of third year. Applicants applying in advance of the law clerk hiring plan shouldn’t wait on recommendations from their professors before sending applications.

The reason I don’t follow the plan is that it would be too great an imposition on an applicant to make them travel to Fairbanks, Alaska for an interview, so I squeeze in a very few interviews when I am Outside on calendars. Often the interview is a long dinner at a good restaurant. The timing of my calendar trips and the sparseness of interview slots requires that I spread them out more than the hiring plan allows for. Also, I make better judgments on whom to hire when I can spread out the decisions and hire the law clerks one at a time.

11. In researching these twenty questions for you, I’ve enjoyed learning about Fairbanks, Alaska (which is now celebrating its centennial) via this online visitors’ site and from the Web site of the local newspaper, The Fairbanks Daily News-Miner. Do the clerkship candidates who apply to work for you generally view the opportunity to live in Fairbanks, Alaska for a year as a positive or negative feature of the job, and what do you tell candidates from the lower forty-eight States who are not sure whether Fairbanks is the place for them about what it’s like to visit or live there?

Among those who apply, Fairbanks seems to be a positive draw. Few other clerkships of this caliber give the clerks a chance to go to the Chatanika Outhouse Races, or walk from chambers onto the frozen Chena River to see dogs finishing the 1,000-mile Yukon Quest dog sled race, and get rewarded with big slabs of raw steak. If applicants are not sure if Fairbanks is the place for them, I encourage them to read and think about it, and not to clerk for me if they would rather be somewhere else, because there are a lot of people who think it would be a real treat to be in Fairbanks, Alaska.

12. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is giving serious consideration to a rule that would allow the citation of unpublished, non-precedential decisions in briefs filed in federal appellate courts. The Ninth Circuit appears to stand alone in actively opposing that rule change. Where do you personally stand on this issue, and do you think that the Ninth Circuit’s opposition to the possible rule change stems from the large size of the court and its inability to ensure that its non-precedential decisions are adequately considered?

I stand in the very uncomfortable position of having a leg on each side of the fence on this issue. On the one hand, we owe it to people to treat like cases alike and, in that sense, all cases ought to be precedential. On the other hand, we simply cannot supervise our own court’s output adequately for publication because of the size of the court. If we did publish all our decisions, it would not accomplish the purposes of achieving consistency, because we could not read them all. Universal publication would make the law less predictable, because there would be too many decisions going too many ways, and neither the judges nor the lawyers could keep up with them and develop a coherent body of law.

A very substantial percentage of our unpublished decisions are written by staff attorneys at our San Francisco headquarters. They are reviewed by the judges in “motions and screening panels,” in which we decide an enormous number of cases in a few days, based on oral presentations by the staff attorneys and such examination of the briefs, record, and unpublished dispositions as we feel we can do in a very few minutes. Within chambers as well, our unpublished dispositions are a way for us to cope with excessive volume by avoiding the very time consuming process of writing an opinion in what appear to be easy cases. The care one takes with the language in a published opinion is extremely time consuming and requires many drafts. The unpublished dispositions are necessarily not as careful. It is not at all unusual for them to have sentences that, taken out of the context of the particular case, would give a mistaken view of the law.

My personal preference would be to change the name from “memorandum” and “unpublished disposition” to “summary disposition,” and to make the dispositions so summary in form that publication and citation could do no harm. Summary form is in fact what our circuit’s general orders call for, although some judges issue longer dispositions. There’s really no such thing as an unpublished disposition, since they are all published electronically and in West’s Federal Appendix. Calling them “summary” would encourage the writers to make them summary, with fewer articulated errors that spread to other cases.

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

For me, salary doesn’t matter. I saved enough money while in private practice to provide for my wife, to send my three children through college and, if they want, graduate or professional school, and to continue to live well despite the judicial salary. If I die broke, that’s just a good estate tax avoidance scheme. This is easy for me to say because housing in Fairbanks is a lot cheaper than in Seattle, San Francisco, or Los Angeles.

I do think the salary should be raised. Prestige in our society tends to be linked with salary. As the salary of judges falls compared with lawyers, law professors, law school deans, university presidents, and others in conspicuous positions, it affects our ability to draw the most accomplished and capable lawyers into the federal judiciary. A lot of lawyers can’t afford to be judges.

Also, in the long run, if judges are paid more like clerks than like highly successful lawyers, then people are more likely to treat their decisions as being more like those of clerks, than those of highly respected officials in our government. I think there is a tendency in this direction in the Continental system. Most of our compliance with the law is voluntary and based on respect for the law, so this would be an unhealthy development.

As for how high the salary should be, it seems appropriate to draw comparisons with the relevant market, such as law firm partners and law school deans. It’s ridiculous that our law clerks make more than their judges within a couple of years.

14. You were the author of a decision which held that a jury’s award of $5 billion in punitive damages arising out of the Exxon Valdez oil spill against the oil company and the ship’s pilot was constitutionally excessive. I imagine that like most federal appellate judges, you generally labor in anonymity. Did you receive more feedback than usual from other Alaska residents following your ruling in that case, and was it mostly positive, mostly negative, or evenly divided?

Anonymity is great. I knew when I was writing the decision in the Exxon Valdez case that it would be very unpopular in Alaska, and it was. There were some very intense feelings, though the most intense feelings were in South Central Alaska, not in the Interior where I live. Nevertheless, life tenure and anonymity are just great when you have to make a decision that you know people won’t like.

15. Of the many opinions that you have written since joining the Ninth Circuit in 1991, what single opinion — unanimous, majority, concurring, dissenting, or other — do you find to be the most memorable?

An especially important opinion for me was a short dissent I wrote in our court’s “right to die” case, Compassion in Dying, which was later reversed by the Supreme Court. In my view, liberty and democracy are the two most important aspects of our form of government, and the Constitution sets up what the boundaries are between majoritarian control over individual choices and individual protection from majoritarian governance. There is an unfortunate tendency among people who don’t think about it too deeply to think that if something is very important, then it must be a matter of constitutional law. That implies that if something is very important, power is transferred from the majoritarian institutions to the courts. “The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary.” Compassion in Dying v. State of Washington, 79 F.3d 790, 858 (9th Cir. 1996).

I have also been particularly interested in working out the application to changing times of our unchanging constitutional protection of freedom of speech and freedom of religion, as in Finley v. National Endowment for the Arts, 100 F.3d 671 (9th Cir. 1996), K.D.M. v. Reedsport School District, 196 F.3d 1046 (9th Cir. 1999), Ex rel Lavine, 279 F.3d 719 (9th Cir. 2002), and others. Another case of considerable interest involved protecting families from unconstitutional searches and seizures by social workers as well as by police. Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999).

It’s also hard to beat relatively trivial cases that gave me the opportunity to plant in the law procedural determinations that increase fairness and reduce arbitrariness. For example, I took a lot of satisfaction in the holding in Carmen v. San Francisco Unified School Dist., 237 F.3d 1026 (9th Cir. 2001), that in order to prevent a summary judgment, a respondent has to include the evidence or a reference to it in the opposition papers, instead of rescuing the case on appeal with some document buried hundreds of pages earlier in the file that neither the judge nor the movant were alerted to.

16. Public outcry in reaction to judicial decisions is no longer a seldom-seen occurrence. Two examples are the annual protests that accompany the anniversary of the U.S. Supreme Court’s ruling that recognized a constitutional right to abortion and the protests that followed the Ninth Circuit’s recent Pledge of Allegiance ruling written by Senior Circuit Judge Alfred T. Goodwin, whose decision to take senior status opened up the Ninth Circuit seat that you now hold. What weight, if any, should an appellate court judge give to the general public’s actual or expected reaction to a ruling under consideration or reconsideration?

The value of having life tenure is that we can reject the general public’s expected reaction when the law requires rejection, instead of following public sentiment as we would usually have to do were we elected legislators rather than judges. But that doesn’t mean that public reaction, both actual and expected, should be ignored. When the law leads me to a conclusion that I know would cause public concern or outcry (if the reporters picked it up, which they usually don’t), then I check my work carefully. Of course, I check my work carefully anyway, but I would have to say I check it more carefully to see whether the law really compels the conclusion, if I know that most laypeople would think that the conclusion was idiotic. When most people think something, it’s often right — but not always. If the law compels a result, that’s the way it is, and being able to reach that result without being beholden to public opinion is what life tenure is good for. Nevertheless, I do not think judges ought to affect disdain for public opinion.

17. How do you define the term “judicial activism,” and is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule?

I don’t use the term “judicial activism” myself, because I am uncomfortable with the imprecision of its definition.

We are bound to determine whether the law compels a result, whether it is consistent with the judges’ preferences or not, and when the law does compel a result, a judge is obligated to apply it. For example, if someone is in litigation against a union and you’re reviewing a summary judgment, you don’t decide the case based on being pro-union or anti-union. You decide whether the summary judgment papers establish that there were no genuine issues of material fact and that the appellee was entitled to judgment as a matter of law.

As judges, we are just as bound by the law as everybody else in society. The people are entitled, except where they are barred by constitutional limitations, to make the law through democratic processes, and they are entitled to have us follow it. As I wrote in Compassion in Dying, this is a democratic republic, and the people are entitled to have their elected legislators and executives, not us, make policy judgments. If we don’t like the laws and regulations, we can vote for the other guy, just like other citizens. To my mind, the judge who simply decides upon the outcome he or she prefers rather than deciding upon an intellectually honest application of the law, is himself or herself an outlaw. “The courts must declare the sense of the law; and if they should be disposed to exercise Will instead of Judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.” The Federalist No. 78 (Alexander Hamilton). Also, there just isn’t the satisfaction of a craft performed well, if we substitute our policy preferences for the law. Judging like that is just an exercise in despotism, rather than the intriguing, difficult and satisfying craft that an honest judge practices.

18. I see that in your published opinions, you follow the method of legal writing that recommends putting all citations to authority in the footnotes rather than in the body of the text. What reasons can you offer to other federal appellate judges for why they should join you in that practice, and would you recommend that appellate advocates who file briefs in the Ninth Circuit follow your approach or use the more common approach, whereby citations to authority often appear in the text rather than exclusively in footnotes?

I’ve been putting my citations in footnotes because I was persuaded by Brian Garner’s argument that this makes the opinions more readable and leads to clearer reasoning and writing. Footnote citations require judgment, though. Often it’s important for the reader to know the name of the case you are talking about, or what court it came out of, or what date it came down, without having to look at the footnote, and it’s important to put these things in the text when they’re necessary to the reader. The idea of using footnotes is that no one has to read them unless they are writing something, a decision or a brief, and need to check the cites. Because my process can’t be mechanical and involves a lot of writing judgments, it requires more work. It’s possible that I will drop the practice because it has not spread.

The real attraction of it to me is not just a matter of writing style. There is a deeper underlying philosophy. I require all my law clerks to read George Orwell’s essay, Politics and the English Language. Orwell describes bureaucratic and academic writing as “a mass of Latin words [that] falls upon the facts like soft snow, blurring the outlines and covering up all the details.” To my mind plain language and clear writing are essential to clear thinking and are a protection against judicial error and government abuse. A layperson should be able to pick up one of my opinions and understand it. It’s important that people be able to know the justifications for the decisions judges make in the exercise of their power. That’s the real reason why I use Bryan Garner’s footnote style, and why I write in such a plain-spoken way when I can take the time to reduce my less easily understood early drafts to plain English.

As for what the briefs do, I don’t have a recommendation. You never want to stand out too much for your style or form in a brief, because you don’t want to distract from the substance of what you are saying or risk annoying a judge who is reading it. Because of the volume of briefs, being clear and succinct is most important.

19. In the early 1990s, while you were still serving as a federal district judge, you sat by designation of the Secretary of the Interior as an Acting Associate Justice on the High Court of American Samoa, Appellate Division (see here and here for two opinions noting your service on that court). How did that assignment happen to come your way, and what memories do you have of serving on that relatively obscure court?

The High Court of American Samoa gets its Acting Associate Justices for appeal by asking them to serve as volunteers and getting the Secretary of the Interior to appoint them. The judges try to pick out visitors who they think will do a good job and will appreciate the opportunity. I had a friend who was one of the regular resident justices on the court, and he called me. It was among the especially pleasurable experiences I’ve had as a judge.

The cases were exotic and required me to learn a lot of interesting law about how one gets to be a chief or a “talking chief” (like a lawyer) in Samoan society, and how the complexities of communal land tenure there distinguish it from the individual land tenure system we have in our common law system. I had the satisfaction of writing the decision in one land dispute that had gone on for the better part of a century, a Bleak House of the South Pacific. And I like the other judges and lawyers in Samoa. It was fun sitting with judges who wear a necklace, lavalava (a kind of skirt worn by men in Tonga and in American and Western Samoa), and sandals on Fridays, the traditional dress days in court. I bought a lavalava myself and wore it to the luau that the Governor gave for the court.

20. What do you do for enjoyment and/or relaxation in your spare time? And do any special obligations accompany the distinction of being the northernmost federal appellate judge in the United States?

If you drive north out of Fairbanks for a half hour, you are in some of the most beautiful wilderness on the planet. I enjoy that a lot, as well as puttering around, photography, and teaching myself new things like assembly language programming and Photoshop. I especially enjoy having lunch every Friday with our local bar association, as I have for the last 34 years. I enjoy sitting in my chair in my log house in the hills, reading, listening to music, and looking out my window at the woods, the valley, the Alaska Range and Mount McKinley a couple of hundred miles away. As for special obligations arising from being the northernmost federal appellate judge in the United States, I feel a special obligation to release my staff from work and encourage them to walk outside to see the North American Championship dog mushing race that starts right outside my chambers.


1. Watts v. Seward School Board, 454 P.2d 732 (Alaska 1969), cert. denied, 397 U.S. 1071 (1970); Watts v. Seward School Board, 421 P.2d 586 (Alaska 1966), reh’g denied, 423 P.2d 678 (Alaska 1967), vacated, 391 U.S. 592 (1968).

2. Available at

3. Tavete v. Laisene, 19 Am. Samoa 2d 40 (1991).

Monday, April 07, 2003

20 Questions for Justice Kay B. Cobb of the Supreme Court of Mississippi: “How Appealing” is very pleased that Justice Kay B. Cobb of the Supreme Court of Mississippi has agreed to be the third participant in this Web log’s new monthly feature, “20 Questions for the Appellate Judge.”

On April 1, 1999, then�Governor Kirk Fordice appointed Justice Cobb to fill a vacancy on the Supreme Court of Mississippi. She won a retention election in 2000 and is now serving an eight-year term that will expire in January 2009. Justice Cobb received her undergraduate degree from the Mississippi University for Women and her law degree from the University of Mississippi School of Law. She resides in Oxford, Mississippi, and the Supreme Court of Mississippi has its headquarters in Jackson, Mississippi.

Questions appear below in italics, and Justice Cobb’s responses follow in plain text.

1. What are your most favorite and least favorite aspects of serving as a Justice on the Supreme Court of Mississippi?

Every day brings a new challenge and new knowledge. Whether studying an obscure law or a complex case, or trying to anticipate the interpersonal dynamics of the eclectic group of nine justices known as the Mississippi Supreme Court, there is certainly never a dull moment! Knowing that what we do as a Court is important not only to the individual citizens of our state but also to the State as a whole, is both humbling and energizing.

The least favorite aspect for me is the heavy workload. Our Court is not a discretionary court, so anyone who wishes to challenge a decision of our trial courts is allowed to file an appeal. Although we have authority to deflect cases to the Court of Appeals, which relieves much of the load, the more difficult and complex cases, plus all cases involving constitutional questions, death penalty, first impressions, newly developing law and a whole litany of special subjects (election contests, utility rates, annexations, bar and judicial discipline matters, etc.) are assigned to our Court. In addition, we have the administrative responsibility and rule making authority for the entire state judicial system. The result of all that is a “very full plate.” To top it off, we operate under a statutorily imposed mandate to issue a decision in every case within 270 days after the final briefs have been filed with the Court. So there is no rest for the weary . . . and there’s often not enough time to prepare the more difficult cases as thoughtfully and thoroughly as I would like.

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

Justice Sandra Day O’Connor is the first name that comes to mind, and after thinking through a number of other possibilities, she remains my first choice. The list of “judicial reasons why” is long: clear and well-reasoned writing; balanced approach to issues; insightful questions at oral argument; judicial restraint; more concerned about reaching the right result than about controversial theories of jurisprudence; strong belief in our federal system of government and respect for the role of the states; moderate to conservative viewpoint; practical application of the law; and many other positive attributes which are well known to the bench and bar.

The list of “personal reasons” is more detailed. Justice O’Connor was appointed to the Supreme Court four years after I graduated from law school, and she instantly became a role model for me and thousands of other women attorneys. Because she was the first woman to serve on the Supreme Court, I have followed her with special interest through the years. Our backgrounds have a number of similarities: we each have served in all three branches of government – the executive, as assistant attorneys general in our respective states; the legislative, as state senators; and the judicial, as appellate justices. For at least part of our appellate careers, we each served as the only woman on a court of nine justices. We each have had long marriages blessed with children and grandchildren. We each have lived on cattle ranches. And we each have fought and won a battle with breast cancer. Thus I can identify with her as well as look up to her as a marvelous representative of women attorneys and judges throughout the nation. Only once have I had an opportunity to meet her personally and then for only a very brief time, but she remains an inspiration and role model, both professionally and personally, for me today.

3. How did you come to be selected to fill a vacancy that existed on the Supreme Court of Mississippi in 1999, and do you think your likelihood of winning the 2000 retention election played any role in Governor Fordice’s decision to select you?

First let me correct you in your designation of my election as a retention election. In Mississippi, Supreme Court Justices are elected in popular, district-wide elections. I was elected from the Northern District of Mississippi, which is comprised of 33 counties and covers more than one-third of the state.

There is no question that my likelihood of winning the 2000 election played a major role in Governor Fordice’s decision to appoint me. In fact, he had no litmus test regarding issues, and made no inquiry as to my philosophy on any issues. He did, however, ask me one (and only one) question: “Will you run for the office in 2000 if I appoint you?” My affirmative answer, plus the fact that I had twice been elected to the state senate, and had been active several years earlier in my husband’s congressional race in the same geographical area, all played a significant role.

How I came to be selected is more difficult to answer. I had not met Governor Fordice until he ran for governor, and won, in 1991. We were from different parts of the state, and although we were in the same political party, our paths had not crossed. He was elected governor and I was elected to the state senate that same year, and because we had similar views on a number of issues, we worked together to accomplish some important fiscally conservative changes in state government. When an abrupt and immediate vacancy occurred on the Supreme Court, my name was already on his “short list” for consideration for appointment to an impending vacancy on the Court of Appeals. Thus, when “the call” came, it was to offer me the position on the Supreme Court. Although it has never been articulated, in retrospect, I believe there are three basic reasons why I was selected: first, not being a lawyer himself, he was comfortable with my style because I was (and am) a rather non-traditional lawyer; second, as a senator I had the reputation of being the one who actually took the time to read and understood the bills that came before us; and third, I stood up for what I discerned was right and best for our entire state, and did not bow to special interest groups, or to powerful local interest groups (which ultimately led to my defeat as senator).

4. In Pennsylvania, as in Mississippi, state appellate court judges are elected, and I’m therefore familiar with many of the criticisms raised against using that method to select judges. Of course, the federal system for selecting and installing appellate judges can present its own difficulties, as we are once again seeing in Washington, D.C. Let’s say, hypothetically speaking, that a 51st State is created and you are put in charge of deciding the method for selecting that State’s appellate judges. What method would you select, and why?

Well, first let me say that I would hope that the 51st state would not come into being for another several months, maybe even as late as January 1, 2004, because at this moment I am still researching and comparing the various options and have not yet reached a conclusion as to how the ideal system should be structured.

We have informally discussed various options administratively, within our Court, and we have been provided with basic research and materials by our central legal and court administration staff. I lean toward some form of appointment-retention plan, with a very broad-based nominating commission which would screen and recommend the best qualified candidates to the governor (or whoever would make the appointment). To date, I have not seen a model which meets all my criteria. And unless some lawful way can be found to reduce the huge amount of money that is being put into judicial races by special interest groups, I’m not sure it will matter which method is chosen.

5. The U.S. Supreme Court last June issued a ruling in Republican Party of Minnesota v. White, No. 01-521 (U.S. June 27, 2002), that struck down as unconstitutional a judicial campaign restriction intended to prevent candidates for elected judicial offices from announcing views on disputed legal or political issues. As someone who has run as a candidate in a contested judicial election and voted in other such elections, do you view the U.S. Supreme Court’s ruling as a positive development, a negative development, or somewhere in between?

On the whole, I view it as much more positive than negative, and I believe it was correctly decided. As a judicial candidate, it was difficult for me, and frustrating to the voters, to be limited to saying only that I would faithfully and impartially perform the duties of my office. The voters felt, and I agreed, that they needed more information in order to cast an informed vote. Any explanation of the limitations imposed by our Code of Judicial Conduct often fell on deaf ears. I think Justice O’Connor was correct, in her concurring opinion, when she said that elections are not the best system, but if we are going to have them, then they must be treated as what they are, elections. It is certainly better to be able to discuss issues than to be restricted to smiling and waving.

6. Why did you decide to attend law school twelve years after finishing college, and when did it first occur to you that serving as a Justice on the Supreme Court of Mississippi was something you would like to do?

My life was fairly predictable for a woman in my generation, until that fateful decision was made: graduated from college; married a great guy I met during college; traveled with him to far away places where he served as an AF fighter pilot; gave birth to two beautiful daughters; and was a stay-at-home mom. His tour of combat duty over North Vietnam was a wake-up call for both of us. We both learned the importance of politics and the need for good citizens to take an active role, even if only in some small way, in the improvement and preservation of our great nation. It was at that point that we decided that knowledge of the law would provide a solid foundation on which to build our future, so we returned to our native Mississippi, and I enrolled in the University of Mississippi School of Law in 1975. (He, at the time, was flying internationally for Braniff Airlines, and was not at all interested in being the one to tackle the books and undertake the rigorous task of law school!)

It was a good decision, although I must confess that being a judge was not one of my goals at the time. I envisioned, at most, being a law professor but thought it best for our family that I simply go into the private practice of law in our small town. The various turns in my career were actually never planned, but occurred as the result of being in the right place at the right time to fill a need and provide a service.

The idea of seeking an appellate judgeship actually first occurred to me in 1995, while I was still in the Senate, when I was advised that I was on the governor’s “short list” of potential nominees for an anticipated vacancy on the Supreme Court. I was not the one selected, but the idea was planted in my mind that perhaps I could be a viable candidate in the future. The first realistic opportunity came in 1999, when the pending vacancy in the Court of Appeals was announced, as discussed in question 3, and the rest is history.

7. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven’t been?

I look first to an applicant’s academic record and LSAT score. There is no doubt that a sharp mind is the solid foundation on which a good law clerk is built. Because analysis and writing is a major part of what we do, I also look for law journal experience, particularly positions which require extensive use of those two skills. Two of my recent clerks had been in charge of the briefing service provided by their law journal, and because they were very familiar with the opinion process, having read all opinions handed down by our appellate courts every week, they were particularly well prepared to be immediately productive clerks. Because we work so closely with our clerks, it is also important that there is some degree of compatibility in personality. Last, but certainly not least, work ethic is extremely important. This is certainly no place for clock-watchers and minimum-effort mentalities.

While there is no particular kind of candidate I’d like to see applying (except more like those described above), there is no doubt that we face tough competition from the firms in our area which offer starting salaries to new lawyers almost double what we are able to pay. That significantly reduces the number of top-notch candidates who apply.

8. In September 2002, I published online a letter from a Mississippi-based reader of my appellate Web log who thought odd the practice of one or more of your colleagues on the Supreme Court of Mississippi to dissent, in whole or in part, without opinion from majority opinions of your court. Why would an appellate judge dissent or dissent in part without providing an explanation, and what are your views of the practice?

Having read that letter, I can sense and appreciate the frustration of the writer, and am glad to have an opportunity to shed some light on this matter. While I wouldn’t go so far as to agree that this is a “plague” in our Court, and that it is “intellectual dishonesty,” I do agree that it is not at all helpful. I can only speak for myself, and there may be many other reasons which the other justices would give, but in my case it is simply a matter of time constraint. As I explained in my first answer above, we are not a cert court, but rather we must take all appeals filed, and then can deflect cases to the Court of Appeals. However, that still leaves us with a heavy caseload, plus the ever-present 270 day statutory deadline to hand down opinions.

In order to meet the 270 requirement, cases must move rapidly through our system. My first responsibility is to the opinions which are assigned to me to write, so most of my time must be spent on them. Every week we have deadlines for voting on anywhere from 10 to 20 (or more) opinions from other justices. If I disagree with an opinion in circulation, I can vote either to dissent, or dissent in part and concur in part. If I agree with the result but disagree with the application and analysis of the law by which the author reached his conclusion, I can vote concur in result only. The problem is that I have only 3 weeks in which to write that separate opinion. And if, in the same circulation, there are two or three opinions with which I disagree, all of the separate opinions must be completed within that three week period. Depending on the ebb and flow of my other responsibilities here at the Court, I may simply not have time to write one, much less two or three proper separate opinions. If no one else writes a separate opinion that I can comfortably join, I am forced to simply be shown as dissenting (or whatever) without written opinion.

I ordinarily put in 13 hours per day working at the Court (only 10 on Fridays), with lunch at my desk. At night, I take home my “light” reading (all the things which justices should read that are not directly linked to the opinions we write.) I regret that there are not more hours in the day, so that I could always do everything that needs to be done in a timely manner. Since there are not, I hope that your reader who practices in Mississippi will better understand why sometimes even I am shown as dissenting, or concurring in part, without written opinion.

9. I understand that the Supreme Court of Mississippi is divided into three geographic districts — Northern, Central, and Southern — and that three Justices serve in each district. Moreover, I note that only voters in the district in which the Justice serves vote to elect Justices who serve in that district. Readers of “How Appealing” would be interested to learn from you about your court, its history, how cases reach it, and whether it always sits en banc or sometimes sits using smaller panels.

Mississippi became a state in 1817, and our constitution established a three member Supreme Court. Through the years the number was expanded to six, and then to nine, which is the number we have today.

As I stated in answer 1 above, all cases in which appeals are filed are assigned to our Court, and we deflect a significant number to the Court of Appeals. We seldom hear oral argument en banc, as most of our work is done by three judge panels. Cases are assigned on a purely random basis, insofar as subject matter is concerned. Every ninth case retained by our Court is assigned to me. There are some equalization factors that come into the assignment equation, for cases with an exceptionally large number of volumes.

All death penalty cases are assigned on a separate rotation, so that I also receive every ninth death penalty case. Initially all cases, even death penalty cases, are reviewed by a three judge panel.

The composition of the three judge panels changes every two months, by a computer-driven random assignment which assures that we seldom serve with the same three justices more than once each year. The writing justice presents a memo or proposed opinion to the panel and those are discussed at panel conferences. If the panel agrees on the disposition of the case, the writing justice finalizes the opinion and it circulates to the entire Court. Any one justice can vote to take any case en banc. If the panel is split, the dissenter may either write immediately and both opinions are circulated together, or the dissenter may wait until the votes are cast in the initial circulation, and then prepare and circulate a separate opinion with the original.

10. What are the three most important suggestions you have for attorneys concerning how they can improve their written work product filed with the Supreme Court of Mississippi?

First, keep it simple. That’s hard to do, especially in more complex and difficult cases, but it’s worth the effort. Organize it logically, generally with your most favorable and crucial issues addressed first. Spend the time necessary to reduce the key points to simple statements. Remember that you can write a brilliant and scholarly brief, but if it’s too difficult to follow, you may lose your reader’s attention and focus. Outline your theory clearly and concisely at the beginning, in simple terms.

Second, make it easy to read. We don’t have any absolute restrictions (other than number of pages) as to how you present your case on paper, but it’s not a good idea to crowd as much as you can onto the allotted number of pages. One of the most effective briefs I’ve seen was written by a former member of this Court. It was in slightly larger than normal type, using a font with clear, block letters. He used indentions, bold face type, italics, etc. to make his main points stand out. He provided the law, but did not belabor the analysis of the cited cases. What a refreshing change from extra-long sentences filled with too many adverbial phrases, and pronouns which leave you guessing which �him� or �her� is being discussed.

Third, don’t be disingenuous with the Court. We do read the briefs, and the cases cited. If counsel stretches the truth, or cites cases for propositions which are simply not to be found in those cases, then his or her credibility is lost. It’s hard, then, to take seriously the remainder of the brief, after discovering one or two of those kinds of “mischaracterizations.” It certainly can jeopardize your client’s case.

11. What are the three most important pieces of advice you have for attorneys concerning how they can improve their performance at oral argument?

First, be prepared. Remember that you should know more about the case than anyone else in the courtroom. If you don’t fully understand the law which you are asking us to apply to the case, as well as how it applies to the facts, how can you possibly expect to persuade us that the law is on your side? Some specifics that will be helpful include: (a) give us citations to the record for all key points you make, because all of us will not have read the entire record, and will not have the time to read it before voting on the opinion; and (b) if you don’t know the answer to a direct question you are asked, simply say so, and then smoothly carry the discussion back to whatever else you wanted to say.

Second, speak clearly, slowly and loud enough to be easily understood. Repeat key points occasionally. You may know exactly what you’re saying and where you’re heading, but we may not stay with you if you race through your argument. It’s better to clearly state your case, even if you don’t have time to put in every detail, than to get it all in, but leave us with a blurred understanding of the points you were trying to make.

Third, don’t dwell on the facts, even though a brief recitation of them initially will help set the stage for your arguments on the law. We are there to hear about the law, not the facts.

12. How do you define the term “judicial activism,” and isn’t it true that Justices serving on courts of last resort sometimes have little other than their own personal preference concerning the result to guide them in deciding cases?

Judicial activism, to me, means making decisions based on personal preference, rather than on the rule of law. Another similar meaning might be making decisions that are legislative in nature and effect. Maybe even simpler put: judicial activism is the opposite of judicial restraint. Again, I can only speak for myself and not for my fellow justices, but I find myself on occasion slipping toward judicial activism without even realizing it, much less intending to do so. Maybe it’s the former senator in me; maybe it’s because I want to “do good” for society. Whatever the reason, I must always be on guard.

I disagree somewhat with your statement that justices on courts of last resort sometimes have little other than our own personal preferences concerning the result to guide us. Even when there is no precedent in our jurisdiction “on point,” there are a number of other places to turn for direction/instruction rather than just saying, “Well, I think this is probably the best or fairest outcome, so I will vote to affirm the trial court.” I would hope that we would first exhaustively research the law in our sister states, both state and federal courts. If applicable law is found, then the only “personal preference” might be whether, based on all the knowledge gleaned from my research and analysis, I believe that State A’s law on the issue is better than State B’s, as applied to the case before us. Only when there is no law found, should I go to the next tier, which would be to make a decision based on public policy. Stated another way, after researching all related law, looking at the impact on the citizens of our state (as opposed to the individual litigants) which would occur if we establish precedent in one direction or the other. Let’s face it: this job is much easier when there is a solid case on point that controls. Of course, if that was the usual situation, there would be little need for a Supreme Court, right?

13. I see that before you became a Justice you served in the Mississippi State Senate. How if at all does having served in the legislative branch influence you in your work as a judge?

It helps to have been a part of the law-making process; to have a thorough understanding of that process. It certainly makes it easier to understand why some statutes are so unclear and imprecise. Occasionally I have “flashbacks” to arguments on the floor of the senate when a convoluted bill was passed, and the chairman of a committee would say something to the effect of “don’t worry about the details . . . we’ll let those lawyers and judges figure them out.” However, in the pure sense of the word “influence,” I believe that it has very little effect on my work as a judge. Because our state has very scant records of legislative matters, we basically do not get into the discussion of legislative intent in our opinions construing statutes. Having been in that body, and realizing the misinterpretations which could all too easily be made, I am comfortable with our system.

14. On November 26, 2002, the Mississippi State Legislature passed the Mississippi Tort Reform Act, which became effective January 1, 2003. Before this Act became law, some regarded Mississippi as a haven for products-liability plaintiffs who were seeking large damage awards. Do you think that pre-2003 view was accurate or not, and how quickly do you expect judicial challenges to the Act to reach your court?

Much of the publicity was blown out of proportion, but I admit that there are some problem areas in our state. It will be awhile yet before challenges reach our desks, but it is just a matter of time. Both “sides” in the tort reform debate rumbled about the final version being unconstitutional. Because it likely will be tested on interlocutory appeal, which would be assigned initially to a three-judge motion panel, it’s hard to predict how soon we will see it.

15. What’s the status of the recommendations for judicial salary increases and judicial campaign reforms that the Study Commission on the Mississippi Judicial System provided to Mississippi’s Legislature in December 2001?

Our legislature, which adjourns sine die on April 6, has sent to the governor a bill which has a rather modest salary increase for trial and appellate judges, as well as all statewide elected officials. It is seriously anticipated that he will veto it, and it isn’t clear whether the votes are there for an override. Other recommended items did not fare so well. The effort to increase terms for trial judges to from four to six years failed. The commission’s recommendation that judges and justices appointed to fill an unexpired term should be appointed for the entirety of the remaining term failed, but the amended version did give some relief to the appointed appellate judges and justices in that they will not have to run immediately, but rather will run at the next regular judicial election year. Our Court substantially revised the Code of Judicial Conduct effective April 2002, and addressed some of the campaign issue recommendations by rule. It is interesting to note that, several months before the decision in Republican Party v. White, our Rules Committee (a three-justice committee on which I serve) deleted the �announce� clause in our revision of our Code of Judicial Conduct.

16. What are your views concerning the confirmation battle over Mississippi-based U.S. District Judge Charles W. Pickering, Sr.’s nomination to serve on the U.S. Court of Appeals for the Fifth Circuit?

I have known Judge Pickering and his wonderful family for many, many years, since long before I had even thought of becoming an attorney. Based on my personal knowledge, as well as the enormous amount of testimony and reports from various sources during the many months since his confirmation process began, I cannot think of a single person who is more capable, more qualified, more fair to all people, and more dedicated than Judge Charles Pickering. The political posturing and in-fighting has reached absurd levels with regard to his nomination, to the detriment of the process and the nation.

17. Right now you are the only female serving as a Justice on the Supreme Court of Mississippi. Should voters, Governors, or Presidents consider a judicial candidate’s gender in deciding which candidate to vote for or nominate, and why? Also, your court’s Gender Fairness Task Force in November 2002 reported that gender bias is not a widespread problem in the Mississippi judicial system. Do you agree with that finding, and have you personally experienced any instances of gender bias during your career as a practicing lawyer?

I strongly believe that voters or appointing authorities should consider gender in deciding which candidate to vote for or to appoint. With regard to the trial bench, I believe that women can do the job as well as, if not better than, men, although possibly in somewhat different style. With regard to the appellate bench, I believe our “feminine traits” are arguably even more important.

Realizing that these are all generalizations, based on my experiences and observations of 60+ years, I offer the following reasons, which come to mind quickly: we bring a different perspective to the bench and to the conference table – men and women simply think differently and approach analysis and problem solving differently; we are more attentive to detail, which is quite important in the work we do; we bring gentility to the debate; we are accustomed to having to work harder just to be equal, thus having established a strong work ethic which is an important asset to the Court; and we tend to try harder to weigh all sides of an issue, and resolve conflicts rather than being combative and hostile.

Although I was not on the Gender Fairness Task Force, I was very interested, and somewhat surprised, at the results found in its report. GFTF surveyed judges, attorneys, court personnel, jurors, and the public, conducted statewide public hearings, and solicited written comments. Its findings are supported by reliable data and represent the product of four years of study and investigation, so I would be citing anecdotal evidence if I personally reached a different conclusion. The GFTF found that there were patterns of gender bias in the judicial system, but they are perceived to be relatively low and non-systemic. It is troublesome, however, that among those who witnessed or heard about incidents of gender bias, most believe that it unfairly influenced the outcome of the case. Although the GFTF concluded that gender bias is not widespread, it did recommend that the lingering perceptions of gender bias be addressed by the Supreme Court as well as other groups such as the Mississippi Bar and the Mississippi Judicial College. Our Court has already taken some specific actions, such as the revision in the Code of Judicial Conduct to require judges themselves, lawyers appearing before them, and all court staff, to refrain from any manifestation of gender (or other) bias.

As to whether I personally have experienced any instances of gender bias during my career as a practicing lawyer, the answer is “yes,” but fortunately they were minor, and few and far between. And because they were not unexpected, maybe I was “programmed” to see it more of an inconvenience to work around, rather than a hurdle to leap or a mountain to climb. Although we’ve come a long way, there still are subtle (and for the most part, I believe, unintended) actions or inactions which indicate that work still needs to be done.

18. Your biography shows that before arriving at the Supreme Court of Mississippi you focused on the issue of illegal drugs, both as a prosecutor and as a legislator. How if at all has your service as an appellate judge changed your views on that difficult issue, and do you believe that lengthy prison sentences for what some see as relatively minor drug offenses are a useful tool in the war against illegal drugs?

First let me clarify that I never have served as a prosecutor myself. In the early 80’s I was the director of the Mississippi Prosecutor’s College which was an adjunct program at the University of Mississippi Law School, responsible for training, providing research and assistance with legislative matters for the district attorneys and other prosecutors of our state.

I don’t think my service as an appellate judge has changed my views on the difficult issue of illegal drugs. If anything, it has just heightened my awareness of the substantial impact which illegal drugs have on our society. Although “minor drug offenses” could be said to be in the eye of the beholder, I agree that lengthy sentences, without treatment and rehabilitation, are a costly and ineffective remedy in the long run.

Our Court has become aware of unique successes which have occurred in special Drug Courts established in some counties in our state in the last year or two. We gave our blessing to the expansion of that project and the 2003 legislature has sent to the governor a bill which provides for the establishment of Drug Courts throughout the state, although state funding is not provided. This program seems to offer the first real hope for breaking the cycle of using, then stealing to buy, then selling, etc. but it can only deal with one life at a time. Notwithstanding the fact that it will require extra time as well as personal involvement by the judges, most who will be adding this special project to their already heavy workload are enthusiastic. I am hopeful.

19. For those of us unfamiliar with Oxford, Mississippi, where you live, and Jackson, Mississippi, where the Supreme Court of Mississippi has its headquarters, would you please recommend a few things that a visitor to those areas should do or see.

Oxford is a beautiful, quiet, safe and friendly small Mississippi town which is absolutely glorious this time of year. The daffodils and other bulbs, as well as the Japanese magnolias, have been in full bloom, and the dogwood and cherry trees are just beginning to blossom. Other indigenous shrubs are also beautiful, and spring is in the air. Oxford is the home of author William Faulkner, and his home, Rowan Oak is a favorite tourist stop. Another famous author, John Grisham, is also from Oxford, and still maintains a home here, but there is nothing yet enshrined for him. The University of Mississippi is the cultural center of the town, and the new Gertrude C. Ford Center for the Performing Arts on campus has just had its inaugural gala this past weekend. It is a beautiful structure, and compares favorably with like facilities in major cities around the country. For the usual concerts, speakers, and theatre events which come to the campus, plus new ones which will be drawn there, attendance at any event at the Ford Center promises to be worth traveling to see and hear. And, of course, there are great SEC athletic events on campus the year around. There are many restaurants here comparable to those found in large cities, with true small town hospitality tossed in for good measure.

Jackson has even more points of interest. Our state capitol building is incredible with its beautiful stain glass windows and marble surroundings. The Mississippi Museum of Art and the Agriculture Museum each display many items of interest every day of the year. Every four years the International Ballet competition is held in Jackson and thus 2006 will bring visitors from all over the world.

20. What do you like to do for fun or relaxation when you are not busy performing your duties as a Justice on Mississippi’s highest court?

My family is the most important aspect of my life outside the Court. I spend my weekends with my husband in Oxford, and we try to visit the children and grandchildren often. I have even learned to fly in the past year, so that I can be a “pinch hitter” pilot if needed when my husband flies us to see them. I teach 2 and 3 year old children in Sunday School each week, and they keep me humble. They don’t know, of course, that I’m a justice, or anything other than “Miss Kay” who loves to teach and play with them. I truly delight in listening to good symphonies on CD as I commute 3 hours each way on the weekends. Finally, I enjoy aerobics and toning classes and walking each day at the fitness center.

Monday, March 03, 2003

20 Questions for Circuit Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit: “How Appealing” is very pleased that Circuit Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit has agreed to be the second participant in this Web log’s newest feature, “20 Questions for the Appellate Judge.”

Judge O’Scannlain joined the Ninth Circuit in September 1986, when he was just shy of the age of 50. He attended college at St. John’s and law school at Harvard. His chambers are based in Portland, Oregon, and the Ninth Circuit has its headquarters in San Francisco.

Questions appear below in italics, and Judge O’Scannlain’s responses follow in plain text.

1. Among active and senior Ninth Circuit Judges, you have become the leading voice in favor of splitting the court in two. How did you achieve that role, and what in your view are the three most persuasive reasons favoring a split?

The three most persuasive reasons favoring a split are: (1) size, (2) size, and (3) size. Size of the court of appeals, present and future; size of caseload, especially after the bulge of the last two years; and size of population, present and projected. Let me issue the standard disclaimer that, of course, I speak only for myself and not for my court in responding to these questions.

The Ninth Circuit is by far the largest of the circuits, and is more than double the national average with respect to number of court of appeals judges, case filings, population, and geographic area. Our caseload has reached a record 11,421 filings for the 12-month period ending September 30, 2002, an increase of over 20 percent in two years; compare that with an average of 4,796 for all other circuits. (Actually we hit 12,209 filings for calendar year 2002). The next busiest circuit is not even close — the Fifth Circuit at 8,784 filings in the same period. Our output as a court is similarly enormous. In the same period, over 5,000 cases were terminated on the merits in the Ninth Circuit; compare this to an average of 2,312 for all other circuits. During that time we published 837 precedential opinions; the sheer volume of decisions makes it difficult, for us as judges, just to stay abreast of current developments in our own law, never mind developments in other circuits or in academia. Essentially, we are losing the ability to keep track of our own precedents.

Compare this to my experience when I first came on the court in 1986. Back then, my colleagues and I were producing about 180 dispositions per judge, per year. In other words, we were each responsible for writing about 60 opinions and memorandum decisions, the equivalent of five dispositions a month. But the pressure on individual judges has relentlessly increased since then. By 2002, we averaged 492 cases per judge that year, each responsible for producing about 164 dispositions, at the rate of over 13 opinions and memorandum decisions per month. (Compare that with the Supreme Court of the United States which renders about 80 opinions a year, each justice being responsible for about 10). Somewhere along that progression, I became persuaded that we were heading for a train wreck as a court if we didn’t respond to the implications of these numbers.

I don’t know whether it is accurate to say I am the “leading voice” but there are many voices, both on the court and outside, who feel that we must restructure the circuit, either into two separate circuits or possibly three.

2. Your views concerning whether to divide the Ninth Circuit have evolved over the nearly seventeen years that you have served on the court, even though the court’s total number of authorized active judges has remained at twenty-eight during that period. Explain how and why your views on the issue have changed.

When I first came on the court, some senators from the northwest states were very active in promoting a split of the circuit for very clearly stated political reasons, typically in reaction to specific environmental decisions. This included my own home state senator, Mark Hatfield, with whom I had many discussions. I had to tell my good friend Senator Hatfield that I disagreed with him and opposed a split of our circuit. I could not support the principle that a circuit should be restructured simply because of perceived public dissatisfaction with its jurisprudence.

My views on the issue have, of course, evolved over the years as I became persuaded that we were developing very serious administrative issues generated by the relentless increase in caseload. My views probably crystallized during the time I was pursuing an LLM in Judicial Process at the University of Virginia Law School from 1990-1992. This was a program for appellate judges, which permitted considerable opportunity for research and where, indeed, I wrote my thesis “On Governance of the Federal Judiciary,” which, in turn led to much more refined notions about the role of the circuit. While the number of authorized active judges has always been 28 during my tenure, the number of senior judges increased rapidly, occasionally exceeding the number of active judges at a given time. Today, we stand at 45 total judges (senior and active) and shortly, assuming that the President’s nominees will be confirmed and an impending vacancy will be promptly filled, we will reach a total of 50 judges on our court. A court of appeals with 50 judges looks, to me, more like a legislature than an appellate judicial body with error correction and law declaring responsibilities.

3. What in your opinion is the single most persuasive argument against dividing the Ninth Circuit, and what is your response to it?

The single most persuasive argument against division, I suppose, is “if it ain’t broke, don’t fix it.” My response is “if it ain’t broke yet, it soon will be, so why wait?” We should be proactive in planning for the future restructuring of a circuit that is already over double the average size of all others in population, geographic area, number of court of appeals judges, and, most importantly, appellate caseload. Nevertheless, the most common argument advanced for keeping the Ninth Circuit together has been the necessity for a consistent maritime law for the Pacific Rim and a single law of the West. This is not much of an argument, considering the fact that there are five circuits for the Atlantic and Gulf States. I don’t think freighters are colliding more frequently off Cape Cod than they are off the Marin headlands. Nor has the fact that three circuits straddle the Southern states been deleterious to the development of the law of the South.

At bottom, the opposition to the split boils down to a sort of curious devotion to the notion of a single “Jumbo Circuit” for the West. But there’s nothing sacred about the Ninth Circuit keeping its same boundaries for over 100 years. In my view, the only legitimate consideration is the optimal size and structure for judges to perform their duties. As other circuits became unwieldy because of size, they were restructured, like the Tenth carved out of the Eighth in 1929, and the Eleventh carved out of the Fifth in 1980. There is no logical reason to oppose the natural evolution of our judicial structure as we grow into a colossus.

4. In my view, at least, there seem to be three plausible proposals to split your court. One is to make California — home to more than sixty percent of the Ninth Circuit’s population and source of approximately sixty percent of the caseload — its own circuit. The second is to put the States of Arizona, California, and Nevada in one circuit and the remaining States and Territories in the other. Under this second proposal, however, the circuit with California would have twenty active judges, which exceeds the maximum number of authorized active judges — seventeen — that you have said is advisable for a federal appellate court. The third proposal, sometimes called the “even split,” involves putting Southern California under the jurisdiction of one federal appellate court and Northern California under the jurisdiction of another. Previously, you have expressed your preference for this third option. Do you still prefer the “even split,” and how under this option would conflicting rulings that involved California be resolved?

You put your finger on the real dilemma: how to split? The honest answer is there is no ideal solution and it can’t be done without adding judges. You have identified three of the four options.

Option 1: California as its own circuit. I was originally inclined to the predominant view of the legal academy that “one cannot have a circuit with less than three states” but I am no longer persuaded. First of all, a “California only” circuit, with its four very busy district courts, has an appellate caseload which would constitute the second largest in the country (8,224 filings), only a shade behind the Fifth Circuit (8,784 filings). Next, California’s population now exceeds 34 million people, which would make it, again if it were its own circuit, the most populous circuit in the country. To those who say a one-state circuit can’t work, what about the District of Columbia Circuit with only one district court, compared to the State of California with four federal district courts?

Option 2: Arizona, California, Nevada. This is probably the most frequently discussed proposal for the “new Ninth Circuit” and there is no question but that such a circuit would have to exceed 17 judges. The number 17, is, of course, an ideal maximum, which is no longer realistic in my view.

Option 3: Arizona, Southern California and Nevada. This “even split” proposal, came from the Hruska Commission report of 1974, which was quite prescient. If northern California were put with the northwestern states and southern California were put with Nevada, Arizona and the Pacific islands, there would have been two almost exactly equal size circuits in terms of both population and caseload. Circuit equality would essentially still exist today, although the southern portion has enjoyed a faster population growth than the northern. While I still believe this option has a lot of merit and that there would be acceptable devices to solve the intra-California federal law problem, I no longer support it because of one political barrier which I respect. It is quite clear that Senator Dianne Feinstein has very strong reasons to oppose such an approach and I fully respect the wishes of the senior Senator of that state. This proposal is a political nonstarter.

Option 4: Arizona to the Tenth Circuit. You failed to mention a fourth possibility which has been bandied about with increasing vigor in recent years. This would put Arizona with the Tenth Circuit (which has relatively light caseload per judge), make a new Ninth Circuit comprised of California and Nevada, and put the rest into a new Twelfth Circuit headquartered in Seattle or Portland. There would be some technical issues to be resolved regarding pre-realignment law affecting Arizona in its new setting, but again, the legal experts would have various solutions to that issue.

5. In July 2002, during your most recent congressional testimony on splitting the Ninth Circuit, you stated that six other Ninth Circuit judges (two active and four senior) had authorized you to say that they support a circuit split. Your remarks implied, however, that other judges on the court favor a split but are unwilling to express their support publicly. Why, as best you can tell, would some of your colleagues who favor a split be unwilling to express that position publicly?

There are now nine members of my court (including myself) who have permitted their names to be listed as supporting a split: Judges Sneed (California), Beezer (Washington), Hall (California), Trott (Idaho), Fernandez (California), T.G. Nelson (Idaho), Kleinfeld (Alaska), and Tallman (Washington).

The position of chief judge of our circuit for some reason seems to impose upon its occupant an obligation that he or she be the “Defender of the Faith,” i.e., staunch opposition to any efforts to “break up our circuit.” The fact that there may be pro-split judges and leaners who prefer not yet to be identified publicly may very well reflect a sensitivity to the wishes of chief judges over the years.

I should point out that our chief judge and her administrative staff have done, and continue to do, an admirable job in effectively managing the circuit in what can properly be characterized as extremely challenging circumstances. Managing the Ninth Circuit is a Herculean task, and our chief judge is to be congratulated on a magnificent job. None of us takes any delight in going against the wishes of our chief; but, on this issue, it seems to me hardly much different than expressing an independent view on the merits of a legal issue in a pending case.

6. Why has a split of the Ninth Circuit not yet happened, and when, realistically, do you expect it will happen?

For the reasons I have tried to explain in my earlier answers, a split of the Ninth Circuit is inevitable. Over the years, various proposals have passed one chamber or another. The Senate has twice passed circuit split proposals since I became a member of the court. Congressman Mike Simpson of Idaho has just introduced a bill similar to H.R. 1203 which he sponsored last session and was the subject of House Judiciary hearings last year. If more of my colleagues on the court face up to the underlying need for restructuring, it could happen very promptly, in a design exactly in accordance with the court’s wishes. If the court does not officially change its policy on this issue, it is possible that Congress will pass its own split bill or hold the creation of additional judgeships hostage to a serious consideration of restructuring.

7. In April 1998, in your prepared testimony before the Commission on Structural Alternatives for the Federal Courts of Appeals [“the White Commission”], you stated that “When a court grows too large, it is more likely to resemble a legislative body in which strong-willed individuals are prone to developing policy rather than, to paraphrase Chief Justice Marshall, saying what the law is.” Can you explain more fully what you mean, and are you intending to suggest that the view an individual judge reaches on the merits of a case may depend on the size of the court on which he or she serves?

Maintaining consistency of appellate law requires an environment in which a reasonably small body of judges has the opportunity to sit together frequently. Interaction enhances understanding of one another’s reasoning and decreases the possibility of misinformation and misunderstandings. The White Commission concluded that a court with more than eleven to seventeen judges lacks the ability to render consistent decisions. The Ninth Circuit currently has 45 active and senior judges, and it is soon to be 50. On a court with 50 judges, 19,600 different three-judge panels are possible. Combine this with our huge output of published decisions and maintaining consistency becomes a serious problem. The point is that our size, and our size alone, jeopardizes our decision-making consistency. As the counter-majoritarian branch of our government, precedent is the most important limitation on our judicial discretion. When our precedent is inconsistent, that limitation is lacking, and our decisions can start to resemble those of a legislative rather than judicial body.

8. Some may believe that the Ninth Circuit is unfairly maligned in the popular press, especially when the press reports on the latest U.S. Supreme Court reversal or the latest Ninth Circuit ruling to provoke a public outcry of one sort or another. What are your views on the press coverage that the Ninth Circuit has been receiving, and would you characterize the coverage, generally speaking, as fair or unfair?

The press coverage of the U.S. Court of Appeals for the Ninth Circuit is most welcome, so far as I am concerned. It is true that the coverage has not always been accurate or incisive and frequently tends to be somewhat superficial. Our batting average before the Supreme Court should not, by itself, be an indicator of a dysfunctional court. On the other hand, when the Supreme Court reaches out to take 29 cases in one Term only to reverse 28 of them, perhaps it is telling us something. And, when the Supreme Court takes three of our cases and reverses them, unanimously, without oral argument, on the same day, as it did just a few months ago, I believe it is telling us something. It is reasonable to expect the press to cover such developments as well as our less controversial decisions.

9. The Ninth Circuit is the only federal appellate court to hear and decide cases en banc using panels that consist of fewer than all of the court’s active judges. More specifically, the Ninth Circuit uses eleven�judge en banc panels, which would allow a mere six judges to declare what the law of the circuit should be in cases decided en banc. As you know, the White Commission concluded that the Ninth Circuit’s limited en banc system is not functioning effectively. Do you agree with that conclusion, why or why not, and what changes to the present system would cause the en banc process to work more effectively?

I agree with the White Commission and I sense an increasing concern within our court about the 11-judge limited en banc device. The principal problem is that the result will always depend on the luck of the draw. There have been quite a number of 6 to 5 or 7 to 4 decisions on important issues which might not necessarily represent the views of the full court. While it is true that we do have the authority to rehear a case with the full court (24 judges at the moment or 28 if we were at full strength), there have only been two times during my tenure when such calls have been made and in neither event did the call receive a majority. I think there is very deep-seated reluctance on the part of our court to sit as a full en banc, notwithstanding the fact that we have a very elegant en banc courtroom in Pasadena with three tiers of benches and 28 chairs. Indeed, we also have a less elegant en banc courtroom with four tiers of benches and 28 chairs in San Francisco.

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

I won’t identify a living judge but among those that I admire historically are Justice Felix Frankfurter and Judge Learned Hand. I studied Constitutional Law under Professor Paul Freund at Harvard and came through that experience with an enormously high appreciation of the craft of judging as exemplified by Judge Hand and Justice Felix Frankfurter. Apart from Judge Hand’s superb craftsmanship, I admire his skepticism with respect to his proper role as an unelected judge in a democratic society, which led to his modest approach to judging, and to his advocacy of judicial restraint. On the Supreme Court, of course, Justice Frankfurter was the leading proponent of judicial self-restraint. I have always adhered to a more restrained notion of the judiciary, as did Justice Frankfurter.

11. How did you come to the attention of President Ronald Reagan in 1986 to fill a vacancy that then existed on the Ninth Circuit, and do you have positive, negative, or mixed memories of your confirmation process?

In light of the current confirmation environment, I feel I am the luckiest member of the entire federal appellate judiciary. President Ronald Reagan called me at home on the morning of August 8, 1986 (when I was still in the shower before leaving for work). The nomination arrived in the Senate on August 11. My hearing took place on September 10 and lasted about 20 minutes, including questions from senators on both sides of the aisle. Senator Hatfield called me at home on the night of September 25 to tell me that I had been confirmed unanimously. The whole process, from presidential nomination to confirmation, took about six weeks. My heart goes out to several of my colleagues, Judges Willy Fletcher, Richard Paez and Marsha Berzon, in particular, for what they had to endure over several years. I don’t think, as a lawyer in private practice in a relatively small town, that I could have survived such an extended confirmation process.

As to how I came to the President’s attention, I had the privilege of meeting President Reagan and some of his senior advisors on many occasions when I was involved in his presidential campaigns and when I was Oregon Republican chairman from 1983-1986. Indeed, I had recommended someone for the vacancy but after my letter arrived in Washington, I got a call asking me (although I had no previous interest in becoming a judge) to consider the possibility instead.

12. You were born in New York City and attended college at St. John’s. What caused you to become a resident of Oregon, and for those of us unfamiliar with Portland, Oregon, would you please recommend a few things that a visitor to the area should do or see?

I met my wife at Harvard Law School. We were married in Maura’s home town of Tacoma, Washington a few months after I had graduated in 1963. After practicing for awhile in New York City, I took a vacation with Maura back to her parents’ home, during which I talked to law firms in Seattle, Tacoma, and Portland, coming back to New York with offers from all three places. We chose Portland and came out in 1965 and have never looked back and have never regretted our decision. Portland sits almost equidistant between superb year round skiing on Mt. Hood and a delightful sea coast on the Pacific Ocean. We have spent many vacations in the high desert country of Central Oregon around Sisters, especially Black Butte Ranch, which I would highly recommend. I also recommend the spectacular Columbia River Gorge, which one can reach in about 35 to 45 minutes from downtown Portland.

13. Many of your law clerks have gone on to clerk at the U.S. Supreme Court. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven’t been. Also, are you adhering to the “Law Clerk Hiring Plan” that supposedly has the overwhelming support of federal appellate judges, and why or why not?

Of course, I am proud that eight of my clerks will have gone on to clerk for Justices on the Supreme Court and that others are pursuing successful careers in private law practice, law teaching and public service.

I do adhere to the “law clerk hiring plan” and hope that it will be unanimously observed, although I know that there will be some evaders. I think that judges get a much better sense of the applicants’ abilities by waiting the extra year. The most important qualities are the ability to write with clarity and to display very effective legal research skills. I have been blessed with applicants having exceptionally strong academic records from fine national and regional law schools.

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

There would not even be a federal appellate judicial salary issue if Congress would only maintain parity with inflation. If the salary set in the time of President Lyndon Johnson were never reset but only cost of living adjustments added in every year, there would be nothing to complain about today. Indeed, if White House Chief of Staff Don Regan (at the behest of Senator Bob Dole) had not slashed the recommendation of the salary commission from $135,000 down to $95,000 in 1987 and annual COLAs were allowed since then, all would be fine. The problem arises because while Congress routinely allows cost of living adjustments for the general federal work force it very frequently denies it to judges (and to be fair, to themselves as well) which has lead to the calls by the Chief Justice and the Volcker Commission to try to remedy the situation. “Linkage” has been a bane for the judiciary. Congress seems to feel that district judges and members of Congress salaries should always be identical. Former Senator Dole, who strongly enforced that idea when he was Senate Majority and Minority leader has recently publicly changed his mind and now supports the Volcker Commission recommendations and feels that congressional and judicial salaries should no longer be linked.

15. The Ninth Circuit was one of just a few federal appellate courts to participate in a pilot program for televising federal appellate court oral arguments. Did you serve on any panels whose arguments were televised, and if so what was your experience? Also, do you support or oppose the broadcasting of federal appellate court oral arguments, and why?

I do support telecasting of federal appellate court arguments and have indeed participated in several televised three-judge panels and at least one eleven-judge en banc argument. On balance, things went quite well. There is always the concern that either the oralist or a judge may be playing to the camera but on the whole, this is a relatively minor issue. I don’t think “Appellate TV” will ever be a ratings threat to “Survivor” or even to “The Practice.”

16. As a matter of sound judicial administration, should federal appellate courts be able to prohibit citation in briefs to a category of information — say, unpublished, non-precedential opinions? And what are your views on the Solicitor General of the United States’ proposed amendment to the Federal Rules of Appellate Procedure that would allow parties to cite to unpublished, non-precedential opinions in all federal appellate courts?

I generally subscribe to the views of my colleagues Judges Reinhardt and Kozinski, that we should maintain the distinction between unpublished (nonprecedential) dispositions and published opinions. At the moment, we publish only about 16% of our decisions. The sheer volume of our output has created an enormous task of maintaining consistency. There is no question that, in drafting the language of the disposition, opinions for publication get much more care and attention than unpublished dispositions which, in my mind, justifies the distinction between the two in this less than perfect appellate world.

17. You are of course no stranger to blockbuster rulings. In 1996, in Compassion in Dying v. Washington, 85 F.3d 1440 (9th Cir. 1996) (O’Scannlain, J., dissenting), you dissented from the denial of “full court” en banc to review further an en banc panel’s decision that stuck down a Washington state statute outlawing assisted suicide. The U.S. Supreme Court thereafter unanimously reversed the decision at issue in your dissent. In Coalition for Economic Equality v. Wilson, 122 F.3d 692 (9th Cir. 1997), you wrote the decision holding that the California Constitution’s prohibition of public race and gender preferences does not violate the Equal Protection Clause of the United States Constitution. What single o’pinion of yours — majority, concurring, dissenting, or other — do you find to be the most memorable?

The opinions you cited would be among those that I would recall favorably. I am told that my opinion in Brookfield Communications Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999), involving the intersection of trademark law and web domain name registrations, has been very widely cited and has appeared in a number of case books involving cyber law.

18. You are the author of a fascinating essay entitled “On Judicial Activism” published in Open Spaces Quarterly in 2000. You wrote there that “judicial activism encourages political interference both in the process of judging and selection of judges. One need look no further than the current battle between the White House and the Senate over judicial nominees for a glimpse of the extent to which the judicial appointments process has become politicized.” Truer words may never have been spoken. What are your thoughts about the federal appellate judicial confirmation process in 2003, and what suggestions, if any, do you have concerning how the process could be improved?

Like so many of my colleagues, I am dismayed by the political infighting which has characterized the judicial confirmation process in recent years. The only suggestion I might make, which is probably in vain, is that both the Republicans and the Democrats declare a “truce” and go back to the careful reflection that seems to have prevailed in the confirmation process regardless of party prior to the last fifteen years.

19. I would be remiss if I didn’t ask you about your name — Diarmuid Fionntain O’Scannlain — which is certainly one of the most distinctive names in the entire federal judiciary. What can you tell us about your name, and do you have any affiliation with a “Journey Through Ireland” Web site accessible online at, which I discovered while researching my questions for you?

Diarmuid was the last pagan king of Ireland who reigned about the time of St. Patrick in the Fifth Century. Fionntain is the name of a very pious monk who translated gospels with illuminated writing at the Abbey of Iona in the Irish Sea. I am a Manhattan-born son of Irish immigrants (Dad from Sligo, Mom from Derry), both of whom were strong Gaelic scholars and had the practice of speaking Gaelic at home. Indeed, my first spoken language was Gaelic. While I still have some remnants (hello, thank you, do you speak Gaelic?, prayers, etc.), I largely lost fluency when I started to go to a neighborhood school. The “Journey Through Ireland” website is owned entirely by my brother Conn, who has an Irish travel and touring business. The reference in the URL address to “Diarmuid” (which I didn’t know about until now) must be to one of several tours of Ireland which are available to his clients; he has also named tours for my other brothers “Fergus” and “Colm.”

20. Other than reading “How Appealing,” what do you do for enjoyment and/or relaxation in your spare time?

You will have to ask my wife Maura and my eight children and my seven-plus grandchildren. They keep me busy outside of chambers.

Friday, February 28, 2003

[What appears below is the first ever installment of How Appealing’s 20 questions for the appellate judge. It originally appeared online here at How Appealing on January 24, 2003.]

20 Questions for Circuit Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit: “How Appealing” is exceptionally pleased that Circuit Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit has agreed to be the first participant in this Web log’s newest feature, “20 Questions for the Appellate Judge.”

Judge Smith joined the Fifth Circuit in January 1988 at the age of 41. He attended college and law school at Yale. His chambers are based in Houston, Texas, and the Fifth Circuit has its headquarters in New Orleans.

Questions appear below in italics, and Judge Smith’s responses follow in plain text.

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

The most favorite aspect is having the privilege of working closely with the exceptionally high quality of judges we have on our court and with the extremely talented law clerks I have had working for me, and having a great deal of control over my own time, to work at my own pace, in depth, on cases and issues. The least favorite aspect of the job is the huge drag on family income, for a lawyer who was used to working in a prominent, prosperous law firm.

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

I don’t know whom I would name of all the judges I have ever heard of. But, one who is high on my list is The Honorable Halbert O. Woodward, deceased, the federal district judge (Northern District of Texas) for whom I clerked. He combined incredible horse sense with an impressive work ethic and fairness. Many lawyers have told me he was the best trial judge they ever saw. (And yes, he was a Democrat appointed by his good friend, Lyndon Johnson.)

3. How did you come to the attention of President Ronald Reagan in 1987 to fill a brand new judgeship that then existed on the Fifth Circuit, and do you have positive, negative, or mixed memories of your confirmation process?

I was active in Republican politics and had worked hard for Ronald Reagan’s election. A number of my college friends from Yale were well placed in the Reagan Administration. When a vacancy occurred, and the Administration hadn’t found the sort of prospect it wanted, these friends asked me whether I would be interested.

There is a funny story connected with that, as reported to me by the Reagan Administration people who knew me, and it shows how the selection of circuit judges differs from selections for the district bench. The Reagan people were meeting with a Texas Senator to discuss how to fill some district court vacancies. They mentioned my name. The Senator said that I was o.k., but the Senator had some other Texas lawyers whom the Senator preferred. Ever observant of Senators’ prerogative to pick their own district court nominees, my friends asked, “Well, how about Smith for the Fifth Circuit?” To which, the Senator reportedly replied, “That’s fine, the circuit is up to you guys to decide, and Smith is fine.” The rest is history, and I got the consolation prize.

I have mixed memories of the confirmation process. I was the longest-pending circuit nominee in the U.S. for calendar 1987. That is because this was a new seat (created in 1984 but never filled), and a Louisiana Senator claimed it for his state. Although stating that he had nothing against me personally, he put a hold on the nomination for several months, promising to block it forever unless the President would nominate someone from Louisiana. That was frustrating. Also, Robert Bork was nominated to the Supreme Court about a month after I was nominated to the Fifth Circuit; Professor Bork’s pending confirmation battle interjected a lot of uncertainty into the process. As it turned out, one of the Fifth Circuit judges from Texas tragically died from an asthma attack, and the Administration agreed to shift that vacancy to Louisiana, whereupon the Louisiana Senator promptly released the hold on me, and I was confirmed on a Saturday afternoon, right before adjournment, in mid-December. (It’s interesting to compare the time lags then and now. I was pending about six months, and was the longest-waiting nominee in the whole country that calendar year, even with different parties holding the Senate and White House.)

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

The Ninth, I guess (despite my answer to Question 10 below). It would be cool to go to conferences and court sessions in Alaska and Hawaii, not to mention Seattle, San Francisco, and San Diego. Plus, the Ninth Circuit is so different in many important ways from the Fifth. It is much larger, with a different mix of judges and different way of handling cases. The sheer geography of great distance, not to mention the challenge of dealing with the large number of states in the circuit, would be interesting. (My answer here may be influenced by the fact that as I write this on my laptop, I am at a meeting in Phoenix, looking at the beautiful scenery of the Desert Southwest.) But I wouldn’t voluntarily trade a Fifth Circuit position for anything. I think it’s the most interesting circuit of all, and the best job in the world, with the best judges and staff the federal system has to offer.

5. Some news reports from 2000 listed you as a possible U.S. Supreme Court nominee and mentioned that then-Governor George W. Bush was a friend of yours. How is it that you came to be friends with President Bush?

It is true that President Bush and I were only a year apart at Yale. But, aside from meeting him at some point, I am sorry to say I didn’t get to know him personally. I will say that he was well known, as the son of a popular Congressman at a fairly small college, and from what I can remember, he was well liked.

It’s interesting how reporters and news writers pick up ideas like this (my supposed friendship with the President) and report them as fact; I’m sure it was an honest mistake, but it would be interesting to know how it occurred. I enjoyed working with the Bush family in the 1980 General Election campaign, in which I was one of the Houston area co-chairmen for Reagan/Bush, but even then I didn’t have a real chance to get to know anyone really well. (I will add that, in addition to being on the same campus with now-President Bush, I was fortunate enough also to be an undergraduate or law student with (in no particular order) Bill Clinton, Hillary Rodham, Clarence Thomas, George Pataki, J. Harvie Wilkinson, and many other talented persons who, to say the least, have made their mark. Several of my law school classmates are Article III judges.)

6. I’ve never spent any significant time in either Houston, Texas or New Orleans, Louisiana. Please recommend two restaurants that one shouldn’t miss in Houston and two things to do or places to see there, and, while you’re at it, please also recommend two restaurants worth a visit in New Orleans.

This is the toughest question on the list. I don’t often go to the famous restaurants in Houston, so I’ll punt on that category. I also think it might be improper for a judge publicly to endorse a particular commercial establishment, so I should refrain from mentioning any specific places in Houston or New Orleans. Visitors to Houston should spend a day in Galveston, and should visit the Johnson Space Center. In February of each year, don’t miss the Houston Livestock Show & Rodeo for an unforgettable cultural experience.

7. After attending college and law school at Yale, you returned to Texas to accept a judicial clerkship with Judge Halbert O. Woodward of the U.S. District Court for the Northern District of Texas. What strategy did you employ in seeking a judicial clerkship, and how did you come to accept this one?

As is true with so many law students today, I was dumb enough just to haul off and write to a bunch of circuit judges in places where I thought I would like to spend a year. I didn’t do any research into the particular judges. They all turned me down. I had already sent an application to Judge Woodward, because he was the federal judge in my hometown of Lubbock. He knew my family, and asked me to interview over the Christmas break, and offered me a clerkship, which was a thrill for me, and I readily accepted. It was a fabulous experience, and I have never regretted it. (District and appellate clerkships, although very different, are equally valuable for those who want to litigate.)

8. Several of your law clerks have gone on to clerk at the U.S. Supreme Court. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven’t been?

I get splendid applicants, a good sampling of the best talent in the country, mostly from the top schools, so I can’t imagine that could get any better. The main credential is just plain “smarts,” because it’s very hard work. People without the intelligence level to do the work would be very frustrated. Because I have a very close working relationship with my clerks, personality and compatibility are also important. A good work ethic helps, because the work load is pretty steep, though far from impossible. Although I don’t have any litmus tests, being against the Designated Hitter Rule is a plus.

9. Why have you decided not to adhere to the “Law Clerk Hiring Plan” that supposedly has the overwhelming support of federal appellate judges, and has your decision made it easier or more difficult to attract the sort of law clerks that you are seeking?

The current hiring plan, proposed by a group of resourceful, well-intentioned judges, will fail, sooner or later, because a “one size fits all” scheme isn’t suited to the diverse body of federal judges in the various circuits. When the system collapses, the judges will find themselves scurrying around to hire two sets of clerks in one year; that will be chaotic, and some very well qualified law students will find themselves out in the cold.

There was never a formal vote of the judges to adopt any plan, but only a survey to find out whether there was enough inertia that a critical mass of judges would agree “not to oppose” the plan if it were tried. Already, a number of judges are receiving applications, and professors from many schools, including a few from some of the top schools, are sending letters. (I don’t know how much hiring there will be this school year, however, because of the uncertainties generated by the plan. I have not interviewed or hired anyone yet for 2004-05.)

Any plan with tightly defined deadlines benefits mostly the judges in the I-95 corridor between Boston and Richmond, where students can schedule a large number of interviews in a compacted period of time. A system without deadlines is the best market, because it recognizes the geographical and personal differences among judges, law schools, and students, and affords the greatest opportunity for judges and applicants to evaluate each other.

The drafters of the proposed plan candidly recognize their failure to eliminate the very worst element of the present law clerk hiring system, which is the “exploding offer,” whereby an applicant is given no time, or only a day or so, to accept a judge’s offer. I don’t give exploding offers, because they are unfair to the applicants. I want anyone applying to me to take whatever time he or she needs to explore other options before deciding to accept my offer. Exploding offers are largely (but not exclusively) a product of judicial ego; there are too many judges who can’t stand the thought that an applicant would hesitate before accepting his or her offer. That offensive element of the present system needs to be abolished.

The existence of the proposed plan has substantially affected the pool of applicants so far this year, especially because most of the leading law schools have succeeded in intimidating their students from applying in the second year, mainly by denying faculty recommendations; many students feel they will be blackballed if they dare to apply, even to the judges who are accepting applications. I nonetheless have in the neighborhood of one hundred applications already this year, some from students with stellar credentials, and some from the top ten law schools. Some have been able to obtain recommendation letters, and others have not. (I should add that the proponents of the suggested plan are conscientious judges with whom I have an honest difference of opinion on this subject. I commend them for the extra effort they have made to put together a plan they sincerely believe is an improvement.)

10. Should the U.S. Court of Appeals for the Ninth Circuit be divided into two circuits, and why or why not?

Yes, the Ninth Circuit should be divided. I find that even the Fifth Circuit, with 17 authorized judgeships, is too large for efficient functioning as a collegial body. Probably, about 12 or 13 judges is the ideal number for that. It is too hard to maintain uniformity and predictability in decisionmaking if a court becomes larger than that. It is also next to impossible to be familiar with the district, magistrate, and bankruptcy judges in one’s own circuit when the circuit is too large. Geographical distances also need to be considered. Finally, the Ninth Circuit�s practice of having “limited en bancs” of only 11 of the 28 judges is contrary to the very idea of an en banc, which is to obtain a decision by the entire court on the most significant cases. Because judges for the limited en bancs are chosen more or less at random, the results are less predictable, which is not good for the administration of justice.

11. The Fifth Circuit makes it next to impossible to access its non-precedential opinions. They are not available on the court’s Web site, they are not available on Westlaw or Lexis, and they are not published in West’s Federal Appendix. Why are the Fifth Circuit’s non-precedential opinions so difficult to access, and do you support making them more accessible?

This is a pet peeve of mine. The Fifth Circuit’s non-precedential opinions are hard to access because those of us who feel otherwise have been unsuccessful in getting a majority of the Fifth Circuit judges to change the policy. In my view, the court should (1) make all opinions precedential, (2) make all opinions available on the court’s web site, (3) furnish all opinions to LEXIS, Westlaw, U.S. Law Week, and anyone else who wants them, and (4) place into the Federal Appendix all “unpublished” opinions that don’t appear in the Federal Reporter.

There are good-faith differences of opinion on these questions, and I respect the opposing point of view. I conclude, however, that evolving technology makes it easy to furnish all opinions, easily and inexpensively, to the public and the legal community. This is beneficial especially to the small practitioners and the pro se litigants who cannot afford expensive subscriptions or special services. All issued opinions are technically “public” anyway, so our court should not maintain a system that limits their ready availability to only a limited segment of those who may have an interest in what we do.

Eventually, the court’s policy will change; it is just a matter of time. I predict it won’t take that long, but we’ll see. Already, a new federal statute will require courts of appeals to post unpublished opinions on their web sites by April 2005.

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

When I finished clerking for a federal district judge and went to work as an associate at a large firm (Fulbright & Jaworski) paying top dollar in the Houston market, I made, in my first year as a lawyer, one-third of what the district judge was making. Today, law clerks who go to leading firms regularly make, including bonuses, almost as much as (and sometimes even more than) the judge for whom they clerked is making. Something is wrong with this picture.

Judges should not make anywhere near as much as they could make in major law firms. Given, however, that almost all judges are appointed after at least 12, and often 20 or more years of practice, and likely would be well into a firm partnership or would be senior law school faculty, they should make considerably more than the current level of about $160,000 for circuit judges.

The point about higher judicial salaries is not that there aren’t plenty of good lawyers willing to take a lifetime job paying $160,000, which is a lot of money. Instead, the salary needs to be high enough to make the pool of willing lawyers large enough that the judiciary attracts and keeps the necessary number of applicants of sufficiently high quality. The public should ask itself, “Would you trust yourself or a loved one to a $160,000-a-year brain surgeon?” I believe most people would say no.

What if, indeed, all brain surgeons were arbitrarily limited to $160,000 per year? Surely, there would be some extremely capable doctors who would answer the call for love of the work, despite the limitation. But, the pool of top-notch aspirants likely would not be large enough, and less-qualified physicians would fill the void. There would still be plenty of brain surgeons, but would they all be good enough that you would trust them with your life? Would enough good new doctors choose brain surgery as a specialty if they saw their colleagues making three or four times as much in other specialties? (I recently heard of a former federal circuit judge who makes $13,000 per day as a mediator.)

13. A lawyer with five years’ experience is going to deliver his or her first appellate oral argument in any court before a three-judge panel that includes you. What advice do you have for this lawyer?

Know the record cold. Remember that you’re talking to judges, not jurors. Remember the proper standards of review, and don’t attempt to re-try the whole case at the appellate panel. Know when to yield ground on less important issues, and be ever candid with the court. Strike a conversational, not hortatory, tone. Go into the argument with the goal not only of winning for your client, but also of helping the court do its job of rendering a respectable decision that will apply reasonably to the world beyond the immediate parties. Don’t even think of trying to avoid a judge’s question; the judges will always have the last word. Avoid sarcasm, hyperbole, and lofty rhetoric. And finally, don’t assume every question is unfriendly; judges can throw home run balls as well as curves.

14. What percentage of appeals with counsel on both sides are argued in the Fifth Circuit, and is that number too high, too low, or just right, and why? How do you decide whether to request oral argument in a case? And how often does oral argument change your views as to the outcome of an appeal?

I don’t know the percentage, but it is way less than half, but that is appropriate. The main criterion for argument should be whether argument will assist the court in deciding the case properly. There is no reason to require counsel and the court to spend time and money engaging in argument that won’t accomplish that. It is better that the court spend its argument time on the cases in which argument is not just an automatic ritual, but is a means of accomplishing the work of the court.

Most of the judges I have heard discussing argument agree with my estimate that oral argument affects the outcome in about ten percent of the cases. It undoubtedly affects the court’s reasoning and the details of the opinion in a significantly greater percentage than that, however.

15. In a span of just over two months in 1996, you issued two blockbuster opinions: Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (holding that the University of Texas Law School could not use racial preferences in deciding which students to admit); and Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996) (decertifying the largest class action ever attempted in federal court). What single opinion of yours — majority, concurring, dissenting, or other — do you find to be the most memorable?


16. How do you define the term “judicial activism,” and is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule?

Judicial activism could mean many things, but primarily it is the substitution of the court’s view for the policymaker’s view, in cases where the decision properly should rest with the policymaker, or substituting the court’s view for what the Constitution says, where a constitutional provision is at stake. A judge should not consider his or her personal preference as to outcome, any more than an umpire should call balls and strikes based on which team is his or her favorite.

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

I would look for nominees who have both high intellect and good common sense. Complex and close cases require a keen analytical mind, but good judges also need common sense to appreciate how the decisions they make will operate outside the realm of legal theory. They need to have a high work ethic, self-motivated, with a limited ego. I always would be wary of anyone who shows the tendency to abuse power or position. They must be able to work well with others.

18. In 2002, Congress confirmed two additional U.S. Court of Appeals judges who have the last name “Smith.” Lavenski R. Smith joined the Eighth Circuit in July 2002, and D. Brooks Smith joined the Third Circuit in August 2002. Aside from suggesting to these new Circuit Judge Smiths that they sign their opinions using their full names, what other advice would you offer to a new federal appellate judge, especially one who has not worked previously as a state or federal court judge.

Always sit with your back to the wall.

19. During your fifteen years on the bench, in what ways, if any, has technology changed how you perform your duties as a federal appellate judge, and what changes do you anticipate technology will bring over the next fifteen years?

When I joined the court, we already had e-mail and computerized legal research. So, the biggest change has been the expanded use of the internet. I predict the biggest change in the next fifteen years will be a migration to paperless litigation based on electronic case filing at every level. There also will be a greater use of remote court proceedings similar to teleconferencing, with judges and participants in widely separate geographical locations. That’s not necessarily a good development, but it will happen nonetheless.

20. Other than reading “How Appealing,” what do you do for enjoyment and/or relaxation in your spare time?

I don’t have the usual specific hobbies, such as golf or gardening, although I do mow my fairly large yard myself. I greatly enjoy my family (wife Mary Jane and children Ruth Ann, Clark, and J.J.), and taking some trips, usually by car, each year. Mary Jane says I never read anything but baseball books, and although that’s not quite true, I do enjoy pretty much anything related to that sport. (And in answer to the question I wish you had asked, Pete Rose should not be admitted into the Hall of Fame, ever or under any circumstances. But if the All-Star Game can end in a tie because the players are “tired,” I guess anything can happen.)

“20 Questions” for:

Fifth Circuit Judge Jerry E. Smith

Ninth Circuit Judge Diarmuid F. O’Scannlain

Mississippi Supreme Court Justice Kay B. Cobb

Ninth Circuit Judge Andrew J. Kleinfeld

Ninth Circuit Judge Michael Daly Hawkins

Third Circuit Judge Ruggero J. Aldisert

Eleventh Circuit Judge Gerald Bard Tjoflat

Federal Circuit Judge William Curtis Bryson

Eleventh Circuit Judge Stanley F. Birch, Jr.

Eighth Circuit Judge Richard S. Arnold

Seventh Circuit Judge Richard A. Posner

Tenth Circuit Chief Judge Deanell Reece Tacha

Ninth Circuit Judge Stephen Reinhardt

First Circuit Judge Bruce M. Selya

U.S. District Judge Milton I. Shadur
(N.D. Ill.)

Missouri Supreme Court Judge Richard B. Teitelman

California Court of Appeal Justice William W. Bedsworth (4th Dist., Div. 3)

Tenth Circuit Judge Paul J. Kelly, Jr.

Seventh Circuit Judge Frank H. Easterbrook

Wisconsin Chief Justice Shirley S. Abrahamson

Seventh Circuit Judge Diane S. Sykes