Posted 12:00 AM by Howard Bashman

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.