Posted 12:01 AM by Howard Bashman

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.⁹

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).