NYU Institute of Judicial Administration (IJA) Newsletter Winter-Spring 2020

t h e n e w s l e t t e r o f t h e i n s t i t u t e o f j u d i c i a l a d m i n i s t r at i o n at t h e n y u s c h o o l o f l aw

IN THIS ISSUE

1

IJA Oral History of Distinguished American Judges Project

3

Tribute to Patricia M. Wald by Professor Cynthia Estlund

4

Chief Justice Nathan L. Hecht Focuses on Judicial Independence

5

Judicial Independence, Collegiality, and Dissent in Multi-Member Courts— Judge Bernice Donald

6

Aspiration, Ambition and My 25 Years at the ALI— Chief Judge Lee Rosenthal

12

Untethered Textualism— Professor Samuel Estreicher

14

“The Chief” by Joan Biskupic

14

IJA Board News

17

Spotlight on IJA Summer Fellows

18

IJA’s 61st Annual New Appellate Judges Seminar

23

Annual Employment Law Workshop for Federal Judges

w inter |spring 2020

IJA to Unveil Oral History

of Distinguished American

Judges Project

I

JA is pleased to announce The IJA Oral History of Distinguished American Judges.

The project memorializes the contributions of the men and women who make the US

judiciary a bulwark of freedom and source of

pride for all Americans. Although judges are often known by their opinions, they are human beings who reflect their education, career, and philosophy in their work. These interviews go beyond the written opinions to consider also their shaping influences and views of the judicial role. The interviews are conducted by former clerks who are, themselves, prominent legal scholars, attorneys, and judges. The professionally produced Continued on page 2.

UPCOMING

Tuesday, February 25, 2020: IJA’s 26th Annual William J. Brennan, Jr. Lecture on State Courts and Social Justice featuring Chief Justice Maite Oronoz Rodríguez, Supreme Court of Puerto Rico, on Gender Equality and the Rule of Law. Maite Oronoz Rodríguez is the first openly LGBT chief justice in United States history.

She is the third woman to preside over the Supreme Court of Puerto Rico and the youngest person to do so. She served as associate justice of the Supreme Court of Puerto Rico from 2014 to 2016 and began her professional career as a law clerk to former Chief Justice Federico Hernández-Denton. She served as deputy solicitor general and acting solicitor general of the Commonwealth of Puerto Rico and as general counsel of the City of San Juan. She also engaged in the private practice of law, especially in the fields of commercial and civil litigation. The chief justice is a member of the Permanent Commission on Gender and Access to Justice of the Ibero-American Judicial Summit and received the “2018 LLSA IMPACTO Award” in recognition of her inspiring leadership and com­ mitment to public service and justice for all. In 2019, the National Center for State Courts presented her with its “2018 Distinguished Service Award” for her leadership in overseeing the restoration of court services following hurricanes Irma and María. TO REGISTER: http://bit.ly/IJA26thBrennanLecture

Continued from page 1.

IJA is grateful to all of the project participants to date, and

video interviews will be available online and accompa-

particularly for the opportunity to gain insights from Justice

nied by annotated transcripts. The project will serve

John Paul Stevens and Judge Patricia M. Wald before their

as a valuable and definitive resource on the American

recent deaths. With special thanks to Carol F. Lee, who, as

judiciary, not just for scholars but for all who are inter-

one of the initial interviewers, helped IJA develop a highstandard model for the ongoing project. The launch of this

ested in our legal system.

project has been made possible in part with the generous support of the Comfort Family Foundation, and an anony­

IJA Report / Winter | Spring 2020

mous gift in the memory of Helen Ann Bryman.

2

Justice Stephen Breyer US Supreme Court Interviewer: Julia Fong Sheketoff ’10

Justice Ruth Bader Ginsburg

Judge Guido Calabresi US Court of Appeals for the Second Circuit Interviewers: Catherine Sharkey (NYU Law) and Kenji Yoshino (NYU Law)

Justice Sandra Day O’Connor US Supreme Court Interviewers: Samuel Estreicher (NYU Law), Marci A. Hamilton (University of Pennsylvania), and Barbara Woodhouse (Emory School of Law)

US Supreme Court Interviewer: Trevor Morrison (Dean, NYU Law)

Justice Sonia Sotomayor US Supreme Court Interviewer: Matthew Shahabian ’11 (Orrick Herrington & Sutcliffe, former IJA Summer Fellow)

Chief Judge Diane P. Wood US Court of Appeals for the Seventh Circuit Interviewers: Steven Art (Loevy & Loevy) and Katherine Minarik (cleverbridge)

Justice John Paul Stevens US Supreme Court Interviewers: Carol F. Lee (Taconic Capital Advisors) and Troy A. McKenzie ’00 (NYU Law)

Judge J. Harvie Wilkinson III US Court of Appeals for the Fourth Circuit Interviewer: Leslie Kendrick (University of Virginia School of Law)

Forthcoming Interview

Judge Frank H. Easterbrook US Court of Appeals for the Seventh Circuit Interviewer: Nicholas Q. Rosenkranz (Georgetown Law)

Judge Diarmuid O’Scannlain US Court of Appeals for the Ninth Circuit Interviewer: Michael T. Reynolds (Cravath, Swaine & Moore)

Judge Patricia M. Wald US Court of Appeals for the DC Circuit Interviewer: Nancy Morawetz ’81 (NYU Law)

Judge Harry T. Edwards US Court of Appeals for the DC Circuit Interviewer: Judge Pamela A. Harris (US Court of Appeals for the Fourth Circuit)

Judge Laurence H. Silberman US Court of Appeals for the DC Circuit Interviewer: Paul D. Clement (Kirkland & Ellis, former US Solicitor General)

Judge Jack B. Weinstein US District Court for the Eastern District of New York Interviewers: William B. Bonvillian (MIT) and Oscar Chase (NYU Law)

Chief Justice Stewart G. Pollock New Jersey Supreme Court, ret.

Interviewer: John Sivolella ’92 (Columbia University)

Tribute to Patricia M. Wald

by Professor Cynthia Estlund, Catherine A. Rein Professor of Law, NYU School of Law

The Honorable Patricia M. Wald sat for an IJA Oral History interview in February 2018 conducted by her former clerk, NYU Law Clinical Professor Nancy Morawetz ’81. Judge Wald passed away just months later at age 90. Another former clerk and NYU Law Professor Cynthia Estlund shares this tribute with the IJA Report.

I

am honored to offer this too-brief

tribute to Judge Patricia M. Wald,

for whom I served as a law clerk

early in her tenure on the US Court of Appeals for the DC Circuit. She

was a role model par excellence, not only for the lucky scores of law clerks who got to work closely with her on a daily basis at a formative stage of our careers, but for public-spirited lawyers and citizens more generally.

After graduating at the top of her Yale Law School class, Judge Wald had at least five careers, and accomplished more in each of them than most people accomplish in their whole adult lives. Before joining the DC Circuit, she had a 10-year career raising five thriving, active, and

water and toilets because the Department of Labor refused

reportedly mischievous children, and then a decade and

to issue a field sanitation standard.

a half as a leading public interest lawyer in and out of

There was never any question that Judge Wald was

the government, focusing on issues of bail and criminal

committed to finding and following the law, and to trac-

justice, drug abuse, and mental health, among others.

ing the technical commands of statutes and the factual

Perhaps most remarkable were her careers after leaving the DC Circuit. Those of us who are fortunate to land

complexities of voluminous records. But sometimes she found room for... well, judgment.

a rewarding job with tenure have a tendency to settle in

Toward the end of her tenure on the court, she com-

and hold on. But Judge Wald was more restless. After

mented on studies showing that judges’ political predi-

becoming its chief judge, she left the DC Circuit for The

lections tended to influence their decisions:

Hague to serve as the US judge on the International Criminal Tribunal for the former Yugoslavia. She went on to

After almost 20 years on the DC Circuit ... I register something of a ho-hum reaction to the notion that judges’ personal philosophies enter into their decision-

and Civil Liberties Oversight Board, on the governing

making when statute or precedent does not point their

council of the American Law Institute, and on the Open

discretion in one direction or constrain it in another.

Society Justice Initiative as chair of its Board of Directors.

Judges would be rudderless ships if we did not steer

But I knew her as an extraordinary judge on a politically

through uncharted and murky waters by some sense

divided DC Circuit, where Judge Wald often went to bat for

of conscience or some core of personal beliefs.1

the ordinary people behind even arcane administrative review cases—the employees who were left without an

Continued on page 23.

adequate remedy for egregious employer coercion; the retirees who were denied pension insurance coverage; or the farmworkers who lacked access to clean drinking

1 Patricia M. Wald, “A Response to Tiller and Cross,” 99 colum. l. rev.

235, 236 (1999).

law.nyu.edu/centers/judicial

serve on the bipartisan commission investigating the intelligence behind the invasion of Iraq, on the Privacy

3

In IJA’s 25th Annual Brennan Lecture, Texas Supreme Court Chief Justice Nathan Hecht Focuses On Judicial Independence

C

urrent threats to judicial independence were the subject of the Institute of Judicial Administration’s 25th annual Brennan Lecture on State

Courts and Social Justice, delivered on March 6, 2019, by Chief Justice Nathan Hecht of the Texas Supreme Court.

Hecht pointed to a long line of US presidents who have publicly criticized the judiciary, from Donald Trump and

Barack Obama to Franklin Roosevelt, and all the way back to Thomas Jefferson. Last November, when Trump denounced Judge Jon Tigar of the US District Court for

Chief Justice Nathan Hecht delivering the IJA Brennan Lecture

the Northern District of California as an “Obama judge,” Chief Justice John Roberts of the US Supreme Court issued a rare public defense of the judiciary’s independence.

Criticism from the executive branch, Hecht argued, is not the biggest threat to US judges. The pressures exerted by political polarization, he suggested, constitute a greater hazard, whether in increasingly contentious confirmation hearings or in state-level elections.

State judicial selection is not uniform, with some holding partisan and others nonpartisan elections, while still others have systems of appointment. Texas is one of

IJA Board Member and former Texas Supreme Court Chief Justice Thomas R. Phillips of Baker Botts introduces the lecture

the states that select judges through partisan elections, a practice Hecht has long opposed. But the nonpartisan judicial elections conducted by other states are not necessarily a complete safeguard, he said, invoking a 2012 study that concluded those elections still put pressure on judges to yield to popular opinion on hot-button issues.

In the end, Hecht asserted, attempts such as Roberts’ to defend the judiciary from attacks from other branches of government will be perceived as self-interested. “Selfdefense necessarily draws the judiciary into the very IJA Report / Winter | Spring 2020

political arena it is trying to avoid,” said Hecht.

Justice Sue Walker, ret., Texas Court of Appeals for the Second District; Professor Samuel Estreicher, NYU Law; and Chief Justice Nathan L. Hecht, Texas Supreme Court

in the executive and legislative branches have loud voices

This article is derived from NYU Law News online.

4

augmented by the media’s megaphone, especially social

Watch the IJA Brennan Lecture here: https://youtu.be/

Hecht beseeched the bar to help defend the judiciary as its independence is important to our justice system. He

media’s. The profession must be as effective in caution-

also encouraged use, albeit carefully, of social media to

ing the public against public officials’ denigrations of

counter criticisms. “People are perfectly free to criticize

the third branch that, if effective, will deny people the

judicial decisions with which they disagree, but leaders

protections of an independent judiciary.”

rLq5O7I9t3o.

Judicial Independence, Collegiality, and Dissent in Multi-Member Courts Judge Bernice Donald of the US Court of Appeals for the Sixth Circuit has been a valued faculty member on “Implicit Bias” in IJA’s Annual Employment Law Workshop for Federal Judges and is an alumna of IJA’s New Appellate Judges Seminar. She also addressed issues of judicial independence as well as collegiality on multi-member courts in her James Madison Lecture at NYU Law last fall.

Below is a reprint from NYU Law News online posted November 26, 2018. Listen to her remarks on video: https://www.youtube.com/watch?v=yA_FVaQJYVo

O

ver the last century, some legal commentators have criticized judicial dissent as a sign of disunity that diminishes the public’s confidence

in the courts, while others have praised it as a tool for shaping history and foreshadowing positive changes to the law.

“The right to dissent is precious,” said Donald, “and the reasons are often compelling.”

Donald, a former criminal defense lawyer who has also served as a bankruptcy judge and as a state court judge in Tennessee, quoted US Supreme Court Justice

Charles Evans Hughes on the risks of dissents: “Published dissents detract from the force of the judgment, while unanimity promotes public confidence in the judgment.”

But Donald also cited dissents that anticipated changes to come. In Plessy v. Ferguson, for example, when the US Supreme Court upheld the constitutionality of “separate but equal” segregation laws, Justice John Harlan disagreed with the 7-to-1 majority, arguing that “our Constitution is colorblind… In respect of civil rights, all citizens are equal before the law.”

Dissenting opinions can be prophetic, argued Donald. “[They] suggest the importance of the stakes when it comes to a judge’s decision.”

Selected remarks by Judge Bernice Donald: “Sometimes, having that threat of dissent, or that proposed

Judge Bernice Donald, US Court of Appeals for the Sixth Circuit “Rather than thinking of collegiality and dissent as binary, as mutually exclusive, it is possible and salutary to regard collegiality as a quality that may be present or absent, even in the face of dissent. It’s important for judges to have a wonderful command of the language, so that we can per­ suasively, eloquently, and respectfully make those dissents.”

dissent, will cause the court to mute certain positions and

something people can do by moderating views, or by adding

they are instructed never to use that judge’s name. Now if

different things, the would-be dissenter can help shape that

we are affirming and praising, we can use the name…but

law.nyu.edu/centers/judicial

majority opinion so that it comes out a little more muted.”

if we are reversing it, we don’t put that name in there.”

5

the majority opinion that might have been made, or back

“I talk to my clerks all the time about the process. We can dis­

away from something… Judges really don’t want to draw a

agree with outcomes, but we don’t disparage and demean

dissent. They don’t want to lose the third judge. The court

the people who hold those different views. And if, in fact, we

wants to issue majority opinions if it can. And if there’s

are writing something where a judge is going to be reversed,

Aspiration, Ambition, and

My 25 Years with the ALI

by Judge Lee H. Rosenthal The following is a permitted reprint of luncheon remarks at the American Law Institute (ALI) by the Honorable Lee Rosenthal, chief judge of the US District Court of the Southern District of Texas.

The remarks draw upon her address at Marquette University Law School’s Hallows Lecture in March 2019, which has also appeared in that school’s publications. Chief Judge Rosenthal is a valued faculty member in IJA’s Annual Employment Law Workshop for Federal Judges co-sponsored with the Federal Judicial Center (FJC) and the NYU Center for Labor and Employment Law.

I

t is a great pleasure to be here, and I thank President

1.Ambition and Aspiration

Levi for the honor. I was intimidated when I looked at

Like all good ALI members, I start by trying to define

the glittery roster of the prior speakers at this event.

terms. What is ambition? I think of ambition as the desire

I did not want to be in the position of the woman who

for external validation for what you already know you

left a dinner party apologizing for dominating the con-

want. For law students, it can be ambition to win the

versation. Don’t worry, replied the dinner-party host, a

approval of parents or professors. For lawyers, to win

renowned law-school professor, scholar,

the approval of more senior associates,

ALI member, and father of David Levi,

partners, and clients—those with power

“You didn’t say anything.”

to promote and reward. For academics,

It has been almost 150 years since

it can be to win the approval of those

the most famous observations on what

hiring, making decisions to publish, to

I do hope to say something about today.

promote, to grant tenure, and perhaps

In the 1880s, Justice Oliver Wendell

to confer that oh-so-coveted named

Holmes wrote about what we should

chair. For judges, it can be the desire for

be ambitious for, and what we should

appointment or nomination; then for

aspire to, as lawyers, as law teachers, as

high rankings in bar polls; being cited

judges. Although it is hard to overstate how much practicing, teaching, and deciding legal disputes have changed since 1880, what he called the “main

and affirmed; and reelection, retention,

Chief Judge Lee Rosenthal, US District Court of the Southern District of Texas

IJA Report / Winter | Spring 2020

to make money, that is to accumu-

question” remains fresh. “How can the laborious study

late wealth, not just financial security. For all, ambi-

of a dry and technical system, the greedy watch for cli-

tion includes the desire to have a secure reputation for

ents and practice of shopkeepers’ arts, the mannerless

excellence and influence in the profession. We all have

1

conflicts over often sordid interests, make out a life?”

ambition. We all need it. It got you all where you are; it

What does it mean today to have ambition and aspiration

made David Levi first Judge, then Dean, now President

to “live greatly in the law?”2 And how should we, after

Levi; it made me “Judge.”

25 years as ALI members, describe our ambitions and

6

or, best of all, promotion. Ambition for all but judges can include the desire

aspirations for the ALI and for our roles in it?

Is ambition enough for a satisfying and gratifying life in law? Holmes didn’t think so. He recognized the economic realities of the profession and the “wish to make a living and to succeed.” He recognized that “we all want those things.” But he also saw that financial suc-

1 Lecture by Oliver Wendell Holmes Jr. to Undergraduates of Harvard Univ., “The Profession of the Law,” reprinted in oliver wendell holmes, the collected works of justice holmes: the complete public writing of oliver wendell holmes 471–72 (Sheldon M. Novick ed., 1995).

2 oliver wendell holmes jr., The Profession of Law, in speeches 22, 22–23 (Boston, Little, Brown & Co. 1891).

cess was not enough. “Happiness,” he said, “cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars.” “An intellect great enough to win the prize needs other food besides

success.”3 Holmes thought that there was something

I think that the search for this “something more” is

more to the study and the practice of law, and that is

aspiration, and it is different from ambition. I credit the

the something more that lets one studying law, practic-

philosopher Agnes Callard of the University of Chicago

ing law, teaching law, or judging legal disputes, to “live

for her articulation of aspiration. It is a distinctive form of

greatly in the law as elsewhere.”4

purposeful action directed at acquiring new values,9 and

Holmes gave us only a general description of what the

these values are not abstract, but deeply practical and

“something more” might be. Inadequately summarized,

active. Ambition, by contrast, does not seek to acquire a

it is striving to see the broader principles and ideas in

new value or the knowledge necessary to do so. Ambition

the quotidian facts and problems of specific matters,

tries to acquire what we already value—whether money,

disputes, or cases. The key is to see the general beyond

praise, publication, tenure, or promotion. Ambition

the particular, to search for the “remoter and more gen-

helps propel us down a path we already want to travel.

eral aspects of the law.” This is what allows the lawyer,

It does not help us explore a new path or go to a new

law professor, or judge to “connect [their] subject with

place. Professor Callard describes aspiration as a “form

the universe and catch…a hint of the universal law.”

of agency in which one acts upon oneself to define and

To do this requires “complex and intense intellectual

create a self with substantively new values[,] by allow-

efforts,” 6but it is those efforts, and the insights they

ing oneself to be guided by the self, one is bringing into

bring, that provide the hope of personal fulfillment.

being.”10 It can be an aspiration to expand understanding

Holmes explained that “[j]urisprudence, as I look at it,

or knowledge into a new area. It can be an aspiration to

5

is simply law in its most generalized part. Every effort

become a more effective counselor, a gifted teacher, a

to reduce a case to a rule is an effort of jurisprudence,

wise judge. Not because it will bring material reward or

although the name as used in English is confined to the

external praise, but to change oneself.

broadest rules and most fundamental conceptions. One

A lawyer chasing a partnership or clients, a professor

mark of a great lawyer is that he sees the application of

chasing tenure, or a judge chasing promotion, does not

the broadest rules.”7 And Holmes’ rhetoric went beyond

count as an aspirant; these targets are marks of ambition,

lofty. Viewed in this way, in “the law…as in a magic mirror,

not aspiration. Even before starting to practice, teach, or

we see reflected, not only our own lives, but the lives of

adjudicate, we know that we value good grades in what-

all men that have ever been! When I think of this magic

ever form, including professional status and badges of

theme, my eyes dazzle.”

success, like money. We do not hope that we will learn

8

Interestingly, Holmes did not prescribe going out to do good as the best way to achieve the “something more,”

the value of these things; we hope that we can satisfy the values that we already have. As aspirants, we try to

although he acknowledged there is nothing wrong with

see the world through other people’s eyes, especially

improving justice. But he found “altruistic and cynically

through the eyes of people who have the values we aspire

selfish talk…[a]bout equally unreal.” And pro bono work,

to acquire. In aspiration, it is the striving toward this

no less than other work, has its tedium, stresses, and its

created self, the self with the desired values, that makes

mannerless conflicts over what can be sordid interests,

intelligible the path we may want our lives to take. Aspira-

and it too requires the practice of “shopkeepers’ arts.”

tion is purposive value-acquisition, and it is hard work.

Like other legal work, pro bono matters do not routinely

Learning to value something requires engaging with it

require the lawyer or professor or judge to look beyond the

in a way that takes time, effort, and practice, and trial

specifics to find the connections to the larger principles,

and error. Holmes’ own life shows this and shows both

to where the “something more” may live.

ambition and aspiration.

After 14 years, Holmes had ambivalent feelings about

3 Id.

law practice. He acknowledged that it may be “unhappy, often seems mean, and always challenges your power to

5 Id.

idealize the brute fact.” At the same time, “it hardens

6 Speech at a dinner given for Chief Justice Holmes by the Boston Bar Association, “Life as Joy, Duty, End” (March 1, 1990), in the mind and faith of justice holmes 42 (Max Lerner, ed., 2010).

the fibre and I think is more likely to make more of a

7 oliver wendell holmes jr., The Study of Jurisprudence, in the fundamental holmes: a free speech chronicle and reader 149 (Ronald K.L. Collins, ed., 2010).

8 oliver wendell holmes jr., The Law, in the occasional speeches of justice oliver wendell holmes 20–21 (Mark DeWolfe Howe ed., 1962).

man [or woman] of one who turns it to success.” In the idiom of the day, “to engage in the world of affairs with 9 agnes callard, aspiration: the agency of becoming 2 (2018).

10 Id. at 183.

law.nyu.edu/centers/judicial

4 holmes, supra note 2, at 23.

7

success is to become “more of a man.”11 After only one

out what does, or should, make for liability, fault, or guilt,

semester teaching at Harvard, Holmes expressed dis-

and what remedies or punishments do or should follow.

missive feelings about the legal academy; it was a “half

He was both ambitious and aspirational.

life,” a “withdrawal from the fight in order to utter smart

Learning from the combination, I want to look at

things that cost you nothing except the thinking them

ambition and aspiration in the world I know best—the

from a cloister.”12 He left because he concluded that his

world of judges and judging. All judges I know have both.

opportunity for generalization—moving from the specific to the universal, from the meaningless details to the animating principles—inside the academy was small.

2.The Ambitious Judge and the Aspirational Judge

“[T]he day would soon come,” he wrote, “when one felt

There are many ways to be ambitious as a judge, and we

that the only remaining problems were ones of detail.”13

all have some, if not most, of them. One is to want rec-

Holmes spent 20 happy years on the Massachusetts

ognition as a jurist of distinction or impact, as someone

Supreme Judicial Court, but he was never accused of

who is developing the law in ways he or she hopes will

modesty, and he was a famously ambitious man. In 1902,

be recognized as novel, creative, and even profound.

Holmes was appointed to the United States Supreme

Citations of the judge’s opinions, and the number and

Court,14 resigning 30 years later from ill health. Despite

kinds of requests to give speeches, matter here.

his achievements, he hungered for external recognition.

Another way is to be ambitious for promotion, as an

At age 68, on the Supreme Court, he wrote, “I have not

appellate judge from the trial court, or by the gold ring:

as much recognition as I should like.”15 He extolled the

a nomination to the Supreme Court. One negative type

joys of thinking about the law, but his own experience

of this ambition in a judge, as Judge Carolyn King, an

of those joys was apparently diluted by what he saw as

esteemed Fifth Circuit judge, has noted, is to rule with

the lack of attention to “what one [— read ‘Holmes’—]

one eye on the obituary and retirement announcements,

thinks most important.” As one biographer, G. Edward

and one eye on what appeals to those who most control

White, has observed, Holmes’ life was colored by his fear

the judicial promotions.18

16

of “powerlessness” and his intense “power-seeking.”

A third way is to seek the satisfaction one deeply

He was ultimately powerless to achieve his ambition

committed to an overarching political, philosophical,

17

of ensuring that others would adequately appreciate the

or moral set of beliefs might get from opportunities to

quality of his achievements. That’s a big problem with

reach results that will entrench or expand these beliefs.

the dependence on external validation that character-

I count this as ambition in a negative sense if the judge

izes ambition. The goals of professional recognition and

strives for this preferred outcome when the facts, or

eminence—position, advancement, wealth, and reputa-

law, or both, do not justify it. I count this as aspiration,

tion—are determined by others and beyond our own

even if serendipitous, when the facts, the law, and the

power to control. But Holmes also aspired to understand

context converge with the judge’s preferred outcome,

the fundamentals of the law, to figure out if studying

and that preference is based on a sincerely held belief

jurisprudence, history, and philosophy would show that

that it, and it alone, is the right outcome in the larger

law was the record of the struggles for supremacy among

and more fundamental framework.

powerful interests or of gradual efforts to improve the

All of these aspects are present to some degree in all

rationality of judicial decision-making. He wanted to

judges. I offer a few examples that might show ambition,

replace vague moral-sounding phrases and instead figure

or aspiration, or both, at work. One example is from a recent case challenging Texas regulations for dispos-

IJA Report / Winter | Spring 2020

11 Id.

8

12 Letter from Oliver Wendell Holmes Jr. to Felix Frankfurter (July 15, 1913), quoted in white, law and inner self, supra note 15, at 206.

ing of fetal remains. Several Texas licensed abortion providers challenged the regulations under 42 U.S.C. § 1983, seeking an injunction on the ground that the

13 white, law and inner self, supra note 15, at 198–207; Letter from Oliver Wendell Holmes to James Bryce (Dec. 31, 1882), quoted in howe, proving years, supra note 21, at 280.

required method was so expensive as to unduly burden

14 white, law and inner self, supra note 15, at 296, 304–06.

before a highly experienced district judge. The judge

15 Letter from Oliver Wendell Holmes Jr. to Clara Stevens (Mar. 6, 1909), quoted in white, law and inner self, supra note 15, at 1462.

16 Letter from Oliver Wendell Holmes Jr. to Canon Patrick Sheehan (Apr. 1, 1911), reprinted in holmes-sheehan correspondence 32 (David H. Burton ed. 1976).

17 See White, Life Span, supra note 18, at 1474.

the rights of women seeking abortions. The case was

18 The Honorable Carolyn Dineen King, Challenges to Judicial Indepen­ dence and the Rule of Law: A Perspective from the Circuit Courts, 90 marq. l. rev. 765, 776–77 (2007).

A lawyer chasing a partnership or clients, a professor chasing tenure, or a judge chas­ ing promotion, does not count as an aspirant; these targets are marks of ambition, not aspiration.

…. And unlike appellate judges on a divided panel who can trade barbs back and forth, a district judge has no opportunity to respond to personal attacks in an appellate opinion. They deserve our respect and collegiality even when, or especially when, they err as we all do at times. Speculating that malice is behind his decisions seeking to expedite a high profile case with a rapidly approaching trial date is not the award [the district judge] is due.21 The dissent is aspirational. It seeks to strengthen the integrity and respect that judges earn by being aspirational, not ambitious. District judges everywhere stood up and cheered. Fortunately, aspirational appellate-court defenders of aspirational lower-court judges are not often needed. It is reassuring to see one willing to take on the burden, because that is what it is.

had granted a preliminary injunction and set a bench

The ambitious sides of judging can cover all ends

trial date, ordering some discovery from a third-party

of the political spectrum. A Ninth Circuit case of some

religious organization. This party took an interlocutory

years ago held that the Equal Protection Clause forbids

appeal from the discovery order. The panel majority

a party from striking a juror based on the juror’s sexual

found that in ordering the discovery, the district court

orientation. The court concluded that heightened scru-

had abused its discretion in a number of ways, including

tiny applies to equal protection claims involving sexual

violating the party’s First Amendment rights.

orientation. The lower court, according to the appellate

19

I want to focus on the concurrence and the dissent.

court, had erred22 in not applying Batson v. Kentucky,

In the concurring opinion, one of the two members of

23

which held unconstitutional using a venire person’s

the panel majority wrote again, and separately, both to

race to exercise a peremptory strike and keep that person

agree with himself in reversing the district judge, and

off the jury. The appellate court opinion has a feature

to accuse—not too strong a word—the district judge of

characteristic of ambition to reach a particular result,

compelling the discovery “to retaliate against people of

in that the appellate court challenged the district court

faith for not only believing in the sanctity of life—but

judge’s fact findings without deference and without

also for wanting to do something about it.”20

acknowledging the unsettled nature of the law in the

In an elegant opinion, the dissent took on the con-

area. The Supreme Court’s precedent was not as clear on

curring opinion’s accusation that the district judge was

heightened scrutiny as the Ninth Circuit opinion sug-

biased in his discovery management. I quote:

gested. I would call the district judge ruling aspirational

Even more troubling are the potshots directed

in its cautious approach to what was a novel legal ques-

at the district court, and the concurring opinion

tion and the frank acknowledgement of the murkiness

then piles on. That the pecking order of the sys-

of the law. The cases showing ambition may include

tem allows appellate judges’ view of the law to

judges stating with complete confidence a particular

ultimately prevail should be satisfaction enough

interpretation of facts or reading of the law that oth-

for us. While vigorous disagreement about the law

ers would find debatable. The district judge here knew

is part of the judicial function, there is no need to

what the judge did not know, and she had the honesty to say it. The appellate majority was confident. This

tioning the motives of our district court brethren.

recognition of uncertainty can be a sign of aspiration.

That is especially true when the legal issue is one

Judge Learned Hand said it most eloquently, in a 1944

that the majority opinion concedes is novel, and when the ill motives are pure conjecture.

21 Id. at 382 (dissent).

19 Whole Woman’s Health v. Smith, 896 F. 3d at 365-67, 376.

22 Id. at 484.

20 Id. at 376 (concurrence).

23 476 U.S. 79 (1986).

law.nyu.edu/centers/judicial

go beyond the identification of legal error by ques-

9

speech entitled, the “Spirit of Liberty.”24 Learned Hand explained it as “the spirit which is not too sure that it is right.”25 The spirit of ambition, unalloyed by aspiration, is either sure it is right, or uncaring. Judge Hand’s spirit of liberty is “the spirit which seeks to understand the minds of other men and women.”26 Aspiration seeks to do this; ambition without aspiration either assumes that it knows the minds of others, or, worse, does not care.

I do not mean to end on a note of pessimism about the judiciary. Instead, I will conclude with a salute to an aspirational judge’s opinion. The subject was the Affordable Care Act,27 and the issue was whether it represented a valid exercise of Congressional power under the Commerce Clause of the Constitution.28 Two panel members disagreed.29 The tie-breaking judge endorsed the constitutionality of the law against the facial preenforcement challenge in a legally cautious and nonpolitical opinion that defies pigeonholing as “liberal” or “conservative.” Why does this balanced, technical exposition shine as the work of an aspirational judge?

Because when this judge wrote it, he was on every short list for a Republican president’s Supreme Court nomination. When this judge voted to reject the constitutional challenge to the Affordable Care Act, I assume he knew that he was likely to drop way down on those lists. And that is just what happened. This is judicial courage along the lines shown decades ago by trial judges like Frank Johnson in Alabama and appellate judges like Elbert Tuttle and John Minor Wisdom in the Fifth Circuit, who enforced desegregation rulings despite shunning in their communities, burning crosses on their front yards, and other personal attacks.

Reasonable minds can, and certainly do, disagree legitimately about many issues. If an ambitious judge is willing to reach a particular result, or follow a particular approach, even if the record and law do not support it,

Reasonable minds can, and certainly do, dis­ agree legitimately about many issues. If an ambi­ tious judge is willing to reach a particular result, or follow a particular ap­ proach, even if the record and law do not support it, this can weaken the primary constraints on judges—the constraints that keep us from reach­ ing a result we might per­ sonally prefer, but which the facts, and the law applied to those facts, do not support.

this can weaken the primary constraints on judges—the constraints that keep us from reaching a result we might

the specific facts and the record of each case and the prec-

personally prefer, but which the facts, and the law applied

edents that bind or limit a court. Ambition can undermine

to those facts, do not support. These constraints include

these sources of judicial constraint and accountability.

Judicial independence is vital, but without the constraints

IJA Report / Winter | Spring 2020

that are important to accountability, ambitious indepen-

10

24 Judge Learned Hand, Address at “I Am an American Day” ceremony in New York City: The Spirit of Liberty (May 21, 1994), reprinted in our nation’s archives: the history of the united states in documents (Erik Bruun & Jay Cosby, eds. 1999).

25 Id. 26 Id. 27 The minimum coverage provision of the Patient Protection and Affordable Care Act, 26 U.S. Code § 5000A. 28 Thomas More Law Ctr., 651 F.3d at 541–49.

29 Id. at 566–73 (Graham, D.J., concurring in part and dissenting in part).

dence may be seen as political. Only when we judges are aspirational do we deserve, and are we likely to get and to keep, “the continuing consent of the governed,” which Richard Arnold, a wonderful court of appeals judge and nearly a Supreme Court justice, identified as the key to a judge’s legitimacy and independence.30 30 polly j. price, judge richard s. arnold: a legacy of justice

My best lessons in aspiration have come from my work on the Rules Committees and with you at the ALI. The

written exchanges swirl all year.

My hope is that the ALI stays the ALI, only even stron-

group effort to wrestle with the large issues, to improve

ger and braver. It must steadfastly continue to resist

the quality of how a justice system answers the questions

being political or politicized. It must continue to be one

those large issues present, is among the most gratifying

of the few places where bench, bar, and academy come

work I have done as a judge. It can be, and is, done by

together to debate hard issues, implicitly united in the

judges, lawyers, and academics working together, and

ultimate aspiration: to be right, fair, and just, free of any

even law students can participate. One of the reporters to

duty of advocating for a particular client’s interest. It

the Civil Rules Committee, and a great judge, law profes-

must steadfastly resist the lure of the popular or trendy

sor, and writer, Benjamin Kaplan, said it best and with

approach, while staying firmly connected to today’s

the honest acknowledgement of what could not be done:

realities, practicalities, and the limits of feasibility.

“No one, I suppose, expects of a Rule that it shall solve its

I don’t like the fashionable words-du-jour, like “cabin,”

problems fully and forever. Indeed, if the problems are

“curate,” “bespoke,” and most recently, “rearchitect.” But

real ones, they can never be solved. We are merely under

I do have a good, invented word, that may serve to sum

the duty of trying continually to solve them.” Meeting

up my aspirations for the ALI. It is “recombobulate.” The

that duty is for me, the stuff of aspiration.

word is on a sign at the Milwaukee airport just after the

31

TSA security area. It refers to recovering from the dis-

3. The ALI and Me and Us

combobulation of whatever you had to do to get through

So at the end of the day, aspiration and ambition may

security. Perhaps, after bravely taking on some of the

meet. They seem to have done so for Justice Holmes,

most important, and difficult, subjects—sex; policing;

who I think got it right. Whether we practice, teach, or

the death penalty; liability insurance—and passionately

judge, looking for the larger themes, the larger questions,

exchanging passionately held different views, we, and

the acquisition of skills and competence to understand

the ALI, need some recombobulation.

what those questions are, is the best way to give meaning

I leave it to Bryan Garner to decide if we can make

to the specific problems we are all asked to help resolve.

recombobulate a “real” word, meaning he approves of its

And my ambitions and aspirations, shaped in part

use. But in the meantime, it is not a bad way to try to say

by 25 years with the ALI? I’ve been a district judge for

what I mean. I want the ALI to stay the ALI, but tucked

28 years. I am not getting a promotion or a big raise. So

back in, all clothing restored, and well turned out to meet

what do I do with my ambition. It doesn’t just vanish. I

the stresses of travel down our next shared 25-year road.

am ambitious, and I aspire, to work on interesting and

I congratulate you all. And I thank all of you, for the

important issues that matter, with people smarter than

chance to think about why I love my work—my aspira-

I am, who I respect and admire. The ALI—the people in

tion—and to share my hope that you love your work,

this room—completely fits that bill.

But what do I, and perhaps we, want the ALI itself to

especially for and with the ALI, and that you bring aspiration to it and all you do.

be ambitious for, and aspire to? Ambition means that the ALI survives and prospers, financially strong. Ambition means that the ALI attracts the best new members of the profession. Ambition means that the ALI is adopted and cited and used, that it shapes the law. Aspiration and ambition together mean that the ALI’s work deserves to, and does, influence legislators and law interpreters.

Together, they mean that our members are not only paying their dues, but they are engaged in our work, the Advisers, and the Annual Meeting rooms, and the virtual rooms where the emails and conference calls and

on the federal bench 352 (2009).

31 Benjamin Kaplan, A Prefatory Note, 10 b.c. indus. & com. l. rev.

497, 500 (1969).

law.nyu.edu/centers/judicial

that they are in the rooms where it happens—the MCG,

11

Untethered Textualism in the Seventh Circuit’s Kleber Ruling on Age Bias in Hiring

by Professor Samuel Estreicher Published on Justia.com, Verdict, March 21, 2019. The opinions expressed in Verdict are those of the individual columnists and do not represent the opinions of Justia. © 2019 Justia. Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment Law and Co-Director, Institute of Judicial Administration, NYU School of Law.

T

extualism in statutory interpretation is a good

under ADEA. These stereotypes have more force at the

thing because, as the late Justice Antonin Scalia

hiring stage than when the employer has experience with

repeatedly and wisely cautioned, legislators vote

the worker. Although the older job seeker can still sue for

on text, not diffuse emanations of policy discernible only

intentional discrimination, such “failure to hire” suits

to (certain) judges and academics; in statutory cases the

are very difficult to win. The effect of the Seventh Cir-

court’s ruling must be based on a reason-

cuit’s ruling is to prevent job seekers from

able interpretation of the text. But a judge

challenging on impact grounds rules

can take a good thing too far if he ends up

and policies that present no evidence

being shackled to a reading of the text that

of intentional age discrimination but

is divorced from any consideration of the

create “headwinds” against the older job

purpose legislators had in mind in enact-

seeker—such as “maximum salary,” “no

ing the statutory language into law. Con-

more than five years of experience,” and

sideration of purpose cannot do the work

“no lateral hiring” rules that discourage

of statutory text, but to ignore purpose is

even applying. Employees barred from

to engage in a highly abstract interpretive

consideration for promotion by these

venture bearing little resemblance to what the legislators were trying to do.

rules can mount a disparate-impact chal-

Sam Estreicher

lenge, but not the job seeker who never

I call textualism without proper consideration of pur-

previously had a position with the particular employer.

pose “untethered textualism” and there is considerable

The appeals court’s decision is thus difficult to

evidence of it in the Seventh Circuit’s recent decision

square with the “evil” Congress had in mind in enact-

in Kleber v. CareFusion Corporation, No. 17-1206 (en

ing ADEA, as set forth in the statute’s statement of

banc; decided January 23, 2019). In that case, the court of

findings (§ 2)—prohibiting “the setting of arbitrary age

appeals, sitting en banc, held that the disparate-impact

limits” making it difficult for older workers “to regain

provision of the 1967 Age Discrimination in Employment

employment when displaced from jobs” and contribut-

Act (ADEA), 29 U.S.C. §§ 621, 623(a)(2), applicable to non-

ing to a high “incidence of unemployment, especially long-term unemployment” among older workers. 29

ably former employees, but not outside job applicants.

U.S.C. § 621(a)(1)–(3). It is also difficult to square with other provisions in ADEA itself that allow job seekers

of the law. Older job seekers face considerable prejudice

to sue under disparate impact unions, employment

in the job market—by employers who assume that the

agencies, and federal-sector employers; only outside

older worker will be less flexible, more likely to expect

applicants seeking positions with non- federal employ-

IJA Report / Winter | Spring 2020

federal employers covers only employees, and presumKleber does considerable damage to the regulatory reach

pay comparable to what his previous employer provided,

ers are barred. Kleber also cannot be easily reconciled

less willing to be supervised by younger people, less

with aspects of the Supreme Court’s landmark ruling

mobile and less nimble than younger applicants, and

in Griggs v. Duke Power Co., 401 U.S. 424 (1971), which

12

further not easily dischargeable because he can bring suit

strongly suggest that § 703(a)(2), the provision in Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. directly analogous to § 4(a)(2) of ADEA, authorized disparate-impact challenges even by job seekers. The class action certified in Griggs included job seekers; the Court’s decision in Griggs specifically referred to job seekers; and other Supreme Court decisions that issued prior to 1972 amendments to Title VII referred to outside job applicants as being within the group of individuals affected by the particular employer practice challenged in the case. A 1972 Title VII amendment, avowedly as a clarificatory matter, expressly added reference to “applicants” to § 703(a)(2).

How did the en banc majority in Kleber arrive at its interpretation? It first looked at § 4(a)(2) of ADEA, which makes it unlawful for an employer to limit, segregate, or classify his employee in any way which would deprive or tend to deprive

I call textualism without proper consideration of purpose “untethered textualism” and there is considerable evidence of it in the Seventh Cir­ cuit’s recent decision in Kleber v. CareFusion Corporation…

any individual of employment opportunities or adversely affect his status as an employee, because

The textual argument, however, was not as clear as

of such individual’s age.

the majority suggested because if one assumed, as the

29 U.S.C. § 623(a)(2) (emphasis supplied). In the court’s

majority acknowledged, that § 4(a)(1) authorized job

view, “[t]his language plainly demonstrates that the

seekers to challenge practices with unjustified dispa-

requisite impact [“depriv[ing] or tend[ing] to deprive any

rate impact, that would suggest that the protected party

individual of employment opportunities or adversely

in that provision (“any individual”) must include job

affect[ing] his status as an employee”] must befall an

seekers as well as employees. If that is the case, then it

individual with ‘status as an employee’.” The court drew

is hard to understand how “any individual” in § 4(a)(2)

additional support from § 4(a)(1) of ADEA, which deals

excludes job seekers. As Judge Easterbrook noted in his

with intentional age discrimination and makes it unlaw-

dissent, “[t]he majority does not explain why the statute

ful for an employer “to fail to hire or to discharge any indi-

would use ‘individual’ in dramatically different ways

vidual or otherwise discriminate against any individual

within the space of a few words.” In sum, individuals—

with respect to his compensation, terms, conditions, or

whether current or previous employees or outside job

privileges of employment, because of such individual’s

applicants—would be able to invoke the disparate-impact

age.” U.S.C. § 623(a)(1). The absence of similar “fail to

approach but only insofar as the employer’s rule or policy

hire” language in §4(a)(2), the majority reasoned, was

affected their status as a present, previous, or prospective

conclusive proof that an employer’s failure to hire an

employee “because of such individual’s age.” At the very

older worker could not be challenged under the provision

least, the court should have said that the meaning of §

authorizing the disparate-impact approach.

4(a)(2) was ambiguous on whether it applied to outside

But why would Congress draw the line between coverage and non-coverage in the manner suggested by the

job applicants thus allowing even the strict textualist to consider evidence of legislative purpose.

court—protecting older job seekers from intentional

Congress certainly did not write a crystal-clear provi-

discrimination but not from disparate-impact discrimi-

sion in § 4(a)(2), and when it chose in 1972 to expressly

nation; protecting job seekers from rules and policies

provide that § 703(a)(2) of Title VII did indeed cover job

adversely affecting older workers when unions, place-

applicants, it would have been wise to do the same for§

ment agencies, and federal sector employers employ such

4(a)(2) of ADEA even though changes to ADEA were not

rules and policies but not when non-federal employers

on the agenda of the 1972 amendments. The Seventh

implement the very same rules and policies? Neither the

Circuit’s majority cannot necessarily be criticized for

majority nor the employer offered evidence that Congress

being a bit confused, but it can be for parsing § 4(a)(2)

intended the line to be drawn in this way. Presumably,

without asking whether there was any evidence of Con-

no evidence was needed because the statute was not

gress’ purpose to draw the lines where the court was

law.nyu.edu/centers/judicial

ambiguous; evidence of purpose was not required.

drawing them.

13

IJA Board News

Joan Biskupic Discusses “The Chief” at the IJA Annual Advisory Board Meeting

IJA Report / Winter | Spring 2019

Judge Patricia Millett, US Court of Appeals for the DC Circuit, and author Joan Biskupic

14

The Annual IJA Advisory Board Meeting was hosted by Paul D. Clement, at the Washington, DC, office of Kirkland & Ellis in May 2019. At the meeting, CNN commentator Joan Biskupic discussed her new book, THE CHIEF: The Life and Turbulent Times of Chief Jus­ tice John Roberts (Basic Books; March 26, 2019). Biskupic said she originally conceived the idea when the justices seemed caught off guard by the public protests at the one-year anniversary of Citizens United. She considered, How does a chief bring order and control to eight colleagues and their disparate demands and personalities? Biskupic described Chief Justice Roberts as an academic-oriented history buff who was inspired to pursue government and law after hearing President Reagan’s inauguration speech.

THE CHIEF’s publisher describes the book as “an incisive biography of the Supreme Court’s enigmatic Chief Justice, taking us inside the momentous legal decisions of his tenure so far…. In THE CHIEF, Biskupic contends that Roberts is torn between two, often divergent, priorities: to carry out a conservative agenda, and to protect the Court’s image and his place in history. Biskupic shows how Roberts’ dual com­ mitments have fostered distrust among his colleagues, with major consequences for the law. Trenchant and authoritative, THE CHIEF reveals the making of a justice and the drama on this nation’s highest court.”

Welcome New Advisory Board Members

Elaine Goldenberg is a partner in the DC office of Munger, Tolles & Olson. She focuses her practice on appeals and com­ plex litigation. She joined the firm in 2017 from the US Depart­ ment of Justice (DOJ), where she served as an assistant to the solicitor general. She has argued 12 cases in the US Supreme Court. Goldenberg has extensive experience in financial services law, securities law, foreign-state immunity, constitutional law, and extra­ territoriality questions. In recognition of her work in the Solicitor General’s Office, Goldenberg was awarded the DOJ’s John Marshall Award for Outstanding Legal Achievement for Handling of Appeals. Prior to her government service, she spent more than a decade in private practice, and had clerked for Judge Sandra Lynch in the US Court of Appeals for the First Circuit, as well as for Judge Jed Rakoff in the US District Court for the Southern District of New York.

The Honorable Raymond J. Lohier Jr. ’91 is a judge on the US Court of Appeals for the Second Circuit, nominated by President Obama and unanimously confirmed by the Sen­ ate in 2010. For the decade prior to his appointment, Judge Lohier was an assistant US attorney in the Southern District of New York, where he served as senior counsel to the US attorney, deputy chief, and chief of the Securities and Commodities Fraud Task Force, and deputy chief and chief of the Narcotics Unit, where he was respon­ sible for overseeing the Bernard Madoff prosecutions, and other hedge fundrelated insider trading and high-profile fraud cases. From 1997 to 2000, Judge Lohier served as a senior trial attorney with the Civil Rights Division of DOJ, where he spearheaded employment discrimination-related litigation and worked on other civil rights matters of importance to the federal govern­ ment. From 1991 to 1992 and from 1993 to 1997, Judge Lohier was with the law firm of Cleary, Gottlieb, Steen & Hamilton in New York. In 1992 and 1993 he clerked for the Judge Robert P. Patterson Jr. of the US District Court for the Southern District of New York. Judge Lohier earned his JD in 1991 from NYU School of Law, where he received a Vanderbilt Medal. Prior to his appointment, Judge Lohier was a member of the Board of Directors of the Black, Latino, Asian Pacific American Law Alumni Association and of the Board of Directors of the NYU Law Alumni Association. He also served as first vice chair of

Brooklyn Community Board 6 and is currently a member of the ALI, the Federal Bar Council Inn of Court, and the NYU Law Board of Trustees, as well as an adjunct professor of law at NYU Law. He is a recipient of the NYU Alumni Association’s Eugene J. Keogh Award for Distinguished Public Service.

Michael Kimberly is co-chair of the Supreme Court and Appel­ late Practice at McDermott Will & Emery and a co-director of the Yale Law School Supreme Court Clinic. In his private law practice, Kimberly handles complex appeals and trial court motions with a primary focus on admin­ istrative law and constitutional law. He has argued appeals in courts throughout the country, including six times in the US Supreme Court, four times before en banc courts of appeals, and many other times in the federal courts of appeals and state appellate courts. Among other recognitions, he has been identified

by Bloomberg (2019) as a Supreme Court “heavyweight” and

by Law360 (2016) as a top appellate advocate with “a yearslong track record of effective advocacy before the nation’s highest court.” Kimberly graduated in 2008 from Yale Law School, where he was among the first cohort of students in the Yale Supreme Court Clinic—a program that he now co-directs as a visiting lecturer in law. Kimberly clerked for Judge Michael Daly Hawkins on the US Court of Appeals for the Ninth Circuit. Thereafter, he worked for 10 years in the distinguished Supreme Court and appellate practice at Mayer Brown before founding his own practice with partner Paul Hughes at McDermott Will & Emery.

The Honorable Roy W. McLeese III ’85 was appointed to the District of Columbia Court of Appeals in 2012 by President Barack Obama. He received his BA cum laude in 1981 from Harvard College, and his JD cum laude in 1985 from NYU School of Law, where he was editor-in­ chief of the Law Review. Judge McLeese served as a law clerk to then-Judge Anto­ nin Scalia, on the US Court of Appeals for the DC Circuit. He then clerked for Justice Scalia on the Supreme Court of the United States. In 1987, Judge McLeese joined the US Attorney’s Office for the District of Columbia. After rotating through various sections of that Office, he became deputy chief of the Appellate Division in 1990. From 1997 through 1999, Judge McLeese served as an assistant to the US solicitor general, briefing and arguing cases in the US Supreme Court.

After returning to the US Attorney’s Office, he became chief of the Appellate Division. In 2010, Judge McLeese served for five months as acting US deputy solicitor general, supervising the criminal litigation of the United States in the Supreme Court. He then returned to the US Attorney’s Office, where he again served as Chief of the Appellate Division until he was appointed to the DC Court of Appeals. While working in the Department of Justice, Judge McLeese twice received the Attorney General’s Distinguished Service Award. He also received the John Marshall Award for Outstanding Legal Achievement for Handling of Appeals.

Melissa Arbus Sherry is a member of the Supreme Court & Appellate Practice at Latham & Watkins and the deputy managing partner of the Washington, DC, office. Sherry has argued 10 cases in the Supreme Court and several cases in the courts of appeals. She has also filed hundreds of Supreme Court and appellate briefs on a broad range of issues. She formerly served as an assistant to the solicitor general of the United States, and as a law clerk to Justice John Paul Stevens on the Supreme Court and Judge Diana Gribbon Motz on the Court of Appeals for the Fourth Circuit.

Sherry has been recognized by Chambers USA and The Legal 500 in their nationwide appellate categories and, in 2015, Law360 named her as a “Rising Star” in appellate law. She has appeared in the Washingtonian and on PBS NewsHour, and often speaks to organizations, schools, judges, and clients about the Supreme Court and appellate advocacy.

law.nyu.edu/centers/judicial

Jeremy C. Marwell ’06 Jeremy C. Marwell is a partner at Vin­ son & Elkins in Washington, DC, and an appellate litigator, with a focus on constitutional and administrative law. His practice involves civil, administrative, and criminal matters in the US Supreme Court and federal and state appellate and trial courts, as well as regulatory and legal counseling.

Before joining the firm, Marwell served in the Office of Legal Counsel at the US Department of Justice, where he pro­ vided legal advice and analysis to the White House and federal agencies on a wide range of constitutional and statu­ tory issues. Marwell has authored dozens of appellate and trial briefs in federal and state courts, and at the certiorari and merits stages in the US Supreme Court, and has argued cases in state and federal appellate courts. He has particular experience in constitutional, administrative, environmental and tax law, energy regulatory issues, complex commercial litigation and the False Claims Act. Marwell clerked for Judge

Stephen F. Williams of the US Court of Appeals for the DC Circuit, and for Associate Justice Sonia Sotomayor of the Supreme Court of the United States.

15

News of Board Members:

Faculty and Friends of IJA

Chief Justice Shirley Abrahamson retired from the Wisconsin Supreme Court, where she served as chief jus­ tice for 19 years. Abrahamson was the first woman to serve on the Wisconsin Supreme Court, the first woman to serve as that court’s chief justice, and the longest-serving state supreme court justice in the US. As noted by the mayor of Madison, Wisconsin, Abrahamson championed justice for all Wisconsites, regardless of race, gender, sexuality, or income.

Her former law clerks compiled a book of remembrances and accolades to present to her upon her retirement, entitled Hail to the Chief. She is also a valued friend of IJA, having served on the IJA Advisory Board and as a frequent faculty member of IJA’s New Appellate Judges Seminar.

IJA Advisory Board President Evan R. Chesler ’75, Cravath Swaine & Moore, was recognized as a 2020 Lawyer of the Year for “Bet-the-Company Litigation” in New York City by The Best Lawyers in America.

He was honored with the Town Hall Friend of the Arts Award in recognition of his support of the arts and contributions to the advancement of culture, and with the Whitney North Seymour Award by the Federal Bar Council for his outstanding public service as a private practitioner.

IJA Report / Winter | Spring 2019

IJA Advisory Board Member Rex S. Heinke, Akin Gump Strauss Hauer & Feld, was the recipient of the Beacon of Justice award by the Friends of the LA County Law Library and was selected by the Daily Journal as one of the top 100 lawyers in California for 2018.

16

IJA Advisory Board Member Chief Judge Robert A. Katzmann, US Court of Appeals for the Second Circuit, was honored in an unveiling ceremony of his portrait at his alma mater, Yale Law School. The ceremony was attended by many, including his Yale Law classmate, Supreme Court Jus­ tice Sonia Sotomayor, colleagues from the Second Circuit, his family, and the IJA faculty directors and executive director.

Chief Judge Carl E. Stewart of the United States Court of Appeals for the Fifth Circuit received the 2019 Edward J. Devitt Distinguished Service to Justice Award in a ceremony at the US Supreme Court. The Devitt Award honors an Article III judge who has achieved a distinguished career and made significant contributions to the administration of justice, the advancement of the rule of law, and the improvement of soci­ ety as a whole. Stewart has been a valued faculty member of IJA’s Annual Employment Law Workshop for Federal Judges.

AJS alumnus Chief Judge Edward J. Cleary of the Minnesota Court of Appeals announced he will retire in 2020, having served as chief judge since 2013.

Faculty in the news Impeachment of the President Normally Requires a Crime,

by Professor Samuel Estreicher, Justica.com, Verdict, January 7, 2020. https://verdict.justia.com/2020/01/07/ impeachment-of-the-president-normally-requires-a-crime Pretext and Review of Executive Decision-Making in the Citi­ zenship Census Questions Case, by Professor Samuel Est­ reicher, Justia.com, Verdict, July 9, 2019. https://verdict. justia.com/2019/07/09/pretext-and-review-of-executive­ decisionmaking-in-the-citizenship-census-question-case Justice Dept. Brief Calls for Invalidation of all Obamacare Without Justification, by Professor Samuel Estreicher, Justia.com, Verdict, May 30, 2019. https://verdict.justia. com/2019/05/30/justice-department-brief-calls-for-invali­ dation-of-all-of-obamacare-without-justification Dealing with Repetitive Claims in Employment Arbitration: A Role for Non-Mutual Issue Preclusion, New York Law Journal, Oct. 30, 2019, by Professor Samuel Estreicher

Spotlight on 2019 IJA Summer Fellows

Each year, IJA selects three to four outstanding first-year NYU Law students to serve as IJA Summer Fellows. Selected students have the opportunity to work under the direct supervision of IJA faculty directors to prepare for AJS. Such work includes researching questions of judicial ethics and preparing a bench memorandum for the AJS moot court. IJA Fellows attend the weeklong seminar and have the opportunity to interact with seminar attendees and faculty. Prior IJA Fellows have gone on to clerk in federal and state courts, as well as the US Supreme Court. 2019 Summer Fellows were rising 2Ls Thomas Jackson Brake, Timothy Lyons, Matthew Rublin, Jeffrey Tonge, and Michael Yoon, some of whom share their insights on the fellowship below:

Thomas Jackson Brake ’21 I graduated from the University of Vir­ ginia in the spring of 2018 and began as a first-year student at NYU Law the fol­ lowing autumn. My position with IJA was my first entry into the legal field. I was motivated to apply to IJA because of my desire to be a trial lawyer. This position not only enhanced my legal research and writing skills but also allowed me to meet with countless esteemed judges from around the nation. As an IJA Fellow, I assisted Professor Oscar Chase in researching recent updates to judicial ethics. This work fascinated me not only because it explored an area of the law which my first year did not touch upon, but also because of the many timely issues present in judicial ethics today. My summer with the program was insightful and highly enjoyable, and I wholeheartedly recom­ mend it to any rising second-year at NYU.

Timothy Lyons ’21

I greatly enjoyed my experience as an IJA Fellow because the seminar afforded me a wonderful, rare opportunity to meet and interact with federal, state, and military appellate judges from across the country.

I have an interest in clerking after law school, and attending the seminar enabled me to gain valuable insights concerning the clerkship experience. As an IJA Fellow, I wrote the bench memo for the seminar’s moot court under the guidance of Professor McKenzie. The case, Kansas v. Glover, raises fasci­ nating Fourth Amendment questions and I enjoyed engaging with the arguments presented by each side. It was exciting to watch the case come alive at the moot court and hear the judges reference my memo in their discussions. I felt incred­ ibly proud when numerous judges congratulated me for a job well done on the memo—it is something that I will never forget. I am thankful that I had this experience and I highly recommend it to any NYU Law student.

Michael Yoon ’21 During my first year at law school, I found the inner workings of the judiciary to be one of the more fascinating aspects of the law. By joining the IJA, I was given a first­ hand insight into this matter and much more. I received an opportunity to prepare a memo detailing updates in criminal law at the Supreme Court and, under the guidance of faculty who were both intelligent and a pleasure to work with, I was able to develop my own student note. This was an excellent and productive way to spend my summer.

IJA welcomes the class of Summer 2020 Fellows: Daniel Folsom ’21, Christopher Ioannou ’22, Samuel Krauss ’22, and Aaditya Tolappa ’22.

IJA is deeply saddened by the untimely death of 2012 IJA Summer Fellow Thomas (Tom) Isaac Maher Gottheil on May 11, 2019, at the age of 32. He was born August 28, 1986, in Massachusetts to parents Sheila Maher and Ezra Gottheil. Tom’s kindness and contributions to the institute and the administration of law will be remembered fondly.

law.nyu.edu/centers/judicial

I graduated from Georgetown University in 2015 with a BS in mathematics and economics, and I worked in data analyt­ ics and modeling before coming to NYU. As an IJA Fellow, I enjoyed preparing a memorandum on recent developments in state constitutional law, an extremely valuable assignment that offered me both a chance to hone my legal research and writing skills and exposed me to a fascinating area of the law I might not have studied otherwise. I had the pleasure of working with Judge Gary Katzmann (US Court of International Trade), Justice Anne Patterson (New Jersey Supreme Court), and Judge Jeffrey Sutton (US Court of Appeals of the Sixth Circuit), as well as Professors Chase, Estreicher, and McKenzie, in constructing my assignment. I look forward to continuing to develop the relationships with professors and judges that I was able to build this summer at IJA.

Matthew Rublin ’21

17

IJA’s 61st Annual New Appellate Judges Seminar IJA’s New Appellate Judges Seminar (AJS) for federal, state, and military appellate judges is offered in cooperation with the FJC’s orientation program for new Article III appellate judges.

AJS combines training on a range of skills and issues essential to new appellate judges, such as opinion writing and editing, conferencing and group dynamics, judicial ethics and independence, and statutory interpretation. A moot oral argument of a pending US Supreme Court case is used as an exercise in the process of decision-making. The seminar affords an informal and interactive training program where attendees gain not just from the experienced faculty of senior judges and academics, but also from sustained and small group interaction with their judicial peers.

From July 14 to 19, 2019, 61 appellate judges from across the country attended IJA’s 61st Annual New Appellate Judges Seminar. For information about the next seminar, please visit www.law.nyu.edu/centers/judicial.

U

S Deputy Solicitor General Jeffrey B. Wall gave

Meyer (US District Court of the District of Connecticut),

the opening dinner address. Full-time judicial

and Anne Patterson (New Jersey Supreme Court).

faculty were Gary Katzmann (US Court of Inter-

The seminar was hosted and supervised by IJA Faculty

national Trade, formerly of the Massachusetts Appeals

Directors and NYU Law Professors Oscar Chase, Samuel

Court), Patricia A. Millett (US Court of Appeals for the

Estreicher, and Troy McKenzie ’00 with NYU Law Profes-

DC Circuit), Diarmuid O’Scannlain (US Court of Appeals

sors Adam Samaha and Andrew Schaffer teaching panels

for the Ninth Circuit), Cleo E. Powell (Virginia Supreme

on Statutory Interpretation and Current Developments

Court), Rosalyn Richter (NY Supreme Court, Appellate

in Criminal Law, respectively.

Associates Lena Hughes and Seth Lloyd from Morrison

Sixth Circuit). Other judicial faculty included Anne Laza-

& Foerster argued the appeal of then-pending Supreme

rus (Pennsylvania Superior Court), Robert A. Katzmann

Court case Kansas v. Glover under the supervision of part-

(US Court of Appeals for the Second Circuit), Jeffrey A.

ner and IJA Advisory Board Member Deanne Maynard.

IJA Report / Winter | Spring 2020

Division), and Jeffrey Sutton (US Court of Appeals for the

18

Faculty and attending judges of IJA’s 61st Annual New Appellate Judges Seminar 2019

Here is what some attending judges had to say about the seminar: “…revelatory in many ways about approach differences. Eight methods to address this amazingly difficult and rewarding role. A must-do for any judge new or old (esp. new).”

“Stellar faculty, participants and staff. Excel­ lent, very impressively organized.” “...my compliments for such an extraordinary conference. In all my years as a judge and as a lawyer, I have never attended one that was as well-conceived (those of us in attendance heard what we needed to hear) or as wellexecuted (the faculty was truly the pinnacle of our profession). Thank you again!”

US Deputy Solicitor General Jeffrey B. Wall addresses the judges at the AJS Opening Dinner

IJA Faculty Director Oscar Chase shares a moment with Virginia Supreme Court Justice Cleo Powell

“It was a distinct honor and pleasure attend­ ing. Thank you for your work to improve the judiciary in our country.”

Left to right: Judges Paul Matey (US Court of Appeals for the Third Circuit), Stuart Duncan (US Court of Appeals for the Fifth Circuit), Angela Tang (US Navy-Marine Court of Criminal Appeals), Neomi Rao (US Court of Appeals for the DC Circuit) and Ryan Nelson (US Court of Appeals for the Ninth Circuit).

law.nyu.edu/centers/judicial

Judges Roy W. McLeese, Gary Katzmann, Diarmuid O’Scannlain, Cleo Powell, and Patricia Millett

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IJA Report / Winter | Spring 2020

2019 Appellate Judges Seminar Attendees

20

The Honorable Robyn Ridler Aoyagi Oregon Court of Appeals

The Honorable Amanda K. Brailsford Idaho Court of Appeals

The Honorable Jennifer L. Attrep New Mexico Court of Appeals

The Honorable Derrick H.M. Chan Hawaii Intermediate Court of Appeals

The Honorable Allison M. Danner California Court of Appeal for the Sixth District

The Honorable Paula A. Brown Louisiana Court of Appeal for the Fourth Circuit

The Honorable Susan L. Christensen Iowa Supreme Court

The Honorable Patrick E. Donovan New Hampshire Supreme Court

The Honorable Bridget S. Bade US Court of Appeals for the Ninth Circuit

The Honorable Kurt J. Brubaker US Coast Guard Court of Criminal Appeals

The Honorable Jeanne Cochran Minnesota Court of Appeals

The Honorable Mark Bennett US Court of Appeals for the Ninth Circuit

The Honorable Robert Burns Texas Court of Appeals for the Fifth District

The Honorable Daniel P. Collins US Court of Appeals for the Ninth Circuit

The Honorable Lynne Boomgaarden Wyoming Supreme Court

The Honorable Elissa F. Cadish Nevada Supreme Court

The Honorable Rebecca Frank Dallet Wisconsin Supreme Court

The Honorable Stuart Kyle Duncan US Court of Appeals for the Fifth Circuit

The Honorable Joseph L. Falvey Jr. US Court of Appeals for Veterans Claims

The Honorable John M. Harris Florida Court of Appeal for the Fifth District

The Honorable Michael A. Lewis US Air Force Court of Criminal Appeals

The Honorable Eric D. Miller US Court of Appeals for the Ninth Circuit

The Honorable John R. Freudenberg Nebraska Supreme Court

The Honorable Thomas M. Hruz Wisconsin Court of Appeals for the Third District

The Honorable Lino S. Lipinsky de Orlov Colorado Court of Appeals

The Honorable Gregory W. Moeller Idaho Supreme Court

The Honorable Paul B. Matey US Court of Appeals for the Third Circuit

The Honorable John J. Molaison Jr. Louisiana Court of Appeal for the Fifth Circuit

The Honorable Mark Klappenbach Arkansas Court of Appeals

The Honorable David McCarty Mississippi Court of Appeals

The Honorable Arnold L. Natali Jr. New Jersey Superior Court, Appellate Division

The Honorable Dana Kuehn Oklahoma Court of Criminal Appeals

The Honorable Deborah McDonald Mississippi Court of Appeals

The Honorable Ryan D. Nelson US Court of Appeals for the Ninth Circuit

The Honorable Gordon Goodman Texas Court of Appeals for the First District

The Honorable Kari Jo Gray Wyoming Supreme Court

The Honorable Matthew D. Grove Colorado Court of Appeals

The Honorable James E. Key US Air Force Court of Criminal Appeals

law.nyu.edu/centers/judicial

The Honorable Lisa A. Firko New Jersey Superior Court, Appellate Division

21

The Honorable Jonathan Papik Nebraska Supreme Court

IJA Report / Winter | Spring 2020

The Honorable Judy C. Parker Texas Court of Appeals for the Seventh District

22

The Honorable Neomi J. Rao US Court of Appeals for the DC Circuit

The Honorable Randall Slieter Minnesota Court of Appeals

The Honorable Angela Tang US Navy-Marine Corps Court of Criminal Appeals

The Honorable Paula I. Schasberger US Army Court of Criminal Appeals

The Honorable Mark W. Snauffer California Court of Appeals for the Fifth District

The Honorable Elizabeth F. Tavitas Indiana Court of Appeals for the Third District

The Honorable John R. Stegner Idaho Supreme Court

The Honorable David K. Thomson New Mexico Supreme Court

The Honorable William N. Pedersen III Texas Court of Appeals for the Fifth District

The Honorable William B. Sellers Alabama Supreme Court

The Honorable W. Brent Powell Missouri Supreme Court

The Honorable Scott A. Shorr Oregon Court of Appeals

The Honorable Steven R. Powers Oregon Court of Appeals

The Honorable Michelle Slaughter Texas Court of Criminal Appeals

The Honorable David R. Stras US Court of Appeals for the Eighth Circuit

The Honorable Richard J. Sullivan US Court of Appeals for the Second Circuit

The Honorable Lawrence E. Welch Nebraska Court of Appeals

The Honorable Don R. Willett US Court of Appeals for the Fifth Circuit

Tribute to Patricia M. Wald

Continued from page 4 Life experiences mattered, too. Judge Wald was once asked whether it made a difference to have women judges.

It was true, she said, that “a wise man and a wise woman [will often] come to the same conclusions”; but it was also true that “different wise women will [often] come to different conclusions.”

Nearer the truth, I think, is that being a woman and being treated by society as a woman can be a vital element of a judge’s experience. That experience in turn can subtly affect the lens through which she views issues and solutions. I can think of a few cases where being a woman entered into my conscience, but I can think of just as many where having worked in a factory,

“There was never any question that Judge Wald was committed to finding and following the law, and to tracing the technical commands of statutes and the factual complexities of voluminous records. But sometimes she found room for... well, judgment.”

having been a Legal Services lawyer and having been a government official who dealt with Congress affected

The sum of Judge Wald’s experiences—as a working-

my perspective just as much. A judge is the sum of her

class kid, as a public interest lawyer, and as a woman,

experiences, and if she has suffered disadvantages or

among other things—led her to different views than some

discrimination as a woman, she is apt to be sensitive

of her colleagues on the bench. And they greatly enriched

to its subtle expressions or to paternalism.

the law and the lives of her colleagues, her law clerks, and

2

the litigants whose cases she decided.

2 Patricia M. Wald, “Six Not-So-Easy Pieces: One Woman Judge’s Journey to the Bench and Beyond,” 36 u. tol. l. rev. 979, 989 (2005).

IJA Co-Hosts 22nd Annual Employment Law Workshop for Federal Judges

I

JA hosted its 22nd Annual Employment Law Work-

evolving issues of transgender rights, medical issues

shop for Federal Judges in cooperation with the

and disability in the workplace, evolving workplace technology, the use of data analytics in management decisions, and electronic discovery. Other faculty

workshop provides the opportunity for federal judges

judges included: Helen Adams (US District Court for

from around the country to learn about updates and

the Southern District of Iowa), Patty Shwartz (US Court

elements of labor and employment cases, as well as to

of Appeals for the Third Circuit), George C. Hanks Jr.

gain practical insight for managing them. Each panel is

and Lee Rosenthal (US District Court for the Southern

comprised of a federal judge, an experienced employee-

District of Texas), John Koeltl, Colleen McMahon, and

side attorney, and an experienced management-side

Laura Taylor Swain (US District Court for the Southern

attorney. Subjects ranged from staples such as “Implicit

District of NY), and Jack Zouhary (US District Court for

Bias” with Judge Bernice Donald and “Retaliation and

the Northern District of Ohio).

Whistleblowers” featuring Judge Carl E. Stewart to

law.nyu.edu/centers/judicial

Federal Judicial Center (FJC) and the NYU Center

for Labor and Employment Law in March 2019. The

23

IJA Board of Advisors Sheila L. Birnbaum LLB ’65 Dechert

Evan R. Chesler ’75, President Cravath, Swaine & Moore

Paul D. Clement Kirkland & Ellis

John S. Cooke Federal Judicial Center

Chief Judge Janet DiFiore New York Court of Appeals

John Elwood Vinson & Elkins

Meir Feder Jones Day

Ian Gershengorn Jenner & Block

Elaine Goldenberg Munger Tolles & Olson

Lauren R. Goldman ’97 Mayer Brown

Sarah Harrington Goldstein & Russell

Rex S. Heinke Akin Gump Strauss Hauer & Feld

Chief Judge Robert A. Katzmann

Michael Kimberly

Chief Justice Stuart Rabner

McDermott Will & Emery

New Jersey Supreme Court

Thomas C. Leighton

Melissa Arbus Sherry

Thomson Reuters

Latham & Watkins

Martin Lipton LLB ’55

IJA Faculty Directors

Wachtell, Lipton, Rosen & Katz

Judge Raymond J. Lohier Jr. ’91 US Court of Appeals for the Second Circuit

Oscar Chase Russell D. Niles Professor of Law oscar.chase@nyu.edu

Samuel Estreicher

Robert A. Long

Dwight D. Opperman Professor of Law samuel.estreicher@nyu.edu

Covington & Burling

Jeremy C. Marwell ’06 Vinson & Elkins

Troy McKenzie ’00

Deanne E. Maynard

troy.mckenzie@nyu.edu

Morrison & Foerster

Judge Roy W. Mcleese III ‘85 DC Court of Appeals

IJA Executive Director Torrey L. Whitman

James Meza WarnerMedia

Judge Patricia Ann Millett US Court of Appeals for the DC Circuit

Executive Director torrey.whitman@nyu.edu

IJA Deputy Director Allison H. Schifini ’95

Trevor W. Morrison New York University School of Law

Judge Thomas R. Phillips

Deputy Director allison.schifini@nyu.edu

Baker Botts

US Court of Appeals for the Second Circuit

Save the Date Thursday, October 29, 2020

IJA Report / Winter | Spring 2020

Proposed NYS Court Reforms featuring Chief Judge Janet DiFiore 5:30pm in Greenberg Lounge

24

Oscar Chase

Sam Estreicher

Troy McKenzie ’00

About IJA Founded in 1952, IJA’s mission has been to bring judges, practitioners, government officials, and academics together in a nonpartisan forum to promote judicial education, access to justice, and public awareness of issues relating to our nation’s legal system and the administration of justice.

Institute of Judicial Administration New York University School of Law | Wilf Hall, 139 Macdougal, Room 420 New York, NY 10012 | (212) 992.6289 | ija.admin@nyu.edu