Posted 12:00 AM by Howard Bashman

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.