HLS in the World | A Conversation with Federal Judges About Federal Courts

HLS in the World | A Conversation with Federal Judges About Federal Courts

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right, everybody. Welcome to a very
literally titled panel called, “A Conversation
with Federal Judges About Federal Courts.” My colleague,
Professor Fallon, and I will spend about 45
minutes interrogating. I just want to make
sure that’s not me. [LAUGHTER] No, but I’m putting myself
on airplane mode right now. [LAUGHTER] We’re going to talk
for about 45 minutes and ask some questions of this
very distinguished panel, whom I’ll introduce in a moment. And then we’re going to open the
floor for questions from you. And so without
further delay, I’m just going to say very
brief introductions of the three judges
we have, all of whom are from the DC Circuit. And I’m going to go in order of
their seniority on the bench. So first is Judge Kavanaugh. Judge Kavanaugh went
to the Yale Law School. [COUGHS] [LAUGHTER] No, no, no, no, no, no, no. BRETT KAVANAUGH:
I’ve overcome it. [LAUGHTER] JOHN MANNING: He clerked
for Judge Stapleton on the Third Circuit and Judge
Kaczynski on the Ninth Circuit. He spent a year as a– what’s now called
a Bristow Fellow in the Office of the
Solicitor General and then went to clerk
for Justice Kennedy. After that, he’s done a bunch
of interesting jobs too. He was an associate and a
partner at Kirkland and Ellis. He was associate counsel in the
office of independent counsel Ken Starr. He was an assistant to the
president and staff secretary and an associate counsel to the
president during the Bush 43 administration. And he’s been a circuit
judge since 2006– really? Wow, time really flies. OK. And next is Judge Pillard. Judge Pillard graduated
from this law school in 1987 and clerked for Judge
Pollak on the Eastern District of Pennsylvania. She was a Marvin Karpatkin
Fellow at the ACLU and then assistant counsel
at the NAACP Legal Defense and Education Fund. She was then an assistant
to the Solicitor General, and I should say, I’ve worked
with both judge Kavanaugh and Judge Pillard in the
solicitor general’s office at different times. And then she was a professor
at Georgetown Law School and briefly a couple of years
as a deputy assistant attorney general in the Office of Legal
Counsel during the Clinton administration. And Judge Pillard
has been on the bench since December of 2013. And then Judge Wilkins– Judge Wilkins is also
a graduate of this law school, Class of 1989. He clerked for Judge Gilliam
on the Southern District of California and then went
to be a public defender in the District of Columbia for
a dozen years, at which point he went to join the law
firm of Venable, LLP. Judge Wilkins was
the lead plaintiff in a case called Wilkins
versus State of Maryland, which is a landmark civil
rights case that has inspired nationwide reform
of police stop-and-search practices. He’s also been important– a
key player in the establishment of the Smithsonian
National Museum of African-American
History and Culture. And we’re delighted to have
all three– oh, I’m sorry. And he’s been on the DC
Circuit since January of 2014. So you both joined very
close after each other. OK, there you go. CORNELIA PILLARD:
Don’t minimize it. I’m two weeks senior. [LAUGHTER] ROBERT L. WILKINS: She
never lets me forget it. [LAUGHTER] JOHN MANNING: And
we’re delighted to have all three of them here, this
very, very distinguished panel. And we’re going to start
by asking some questions. So Professor Fallon, you
have seniority over me. RICHARD H. FALLON JR: Yes, I do. JOHN MANNING: Would you like
to ask the first question? RICHARD H. FALLON JR:
I would be thrilled to ask the first
question, and I’ve been thinking hard to get
something to really stump them. And so I would
like to ask, what’s it like to be a federal judge? [LAUGHTER] We sit here, and we
teach judges’ opinions. But I think most of us–
and students study them, but I think most
of us don’t have much of an idea
what it’s like to go to work in the
morning– what you do, how many cases you’re dealing
with at a time, how often you hear arguments–
whatever you think is interesting and
informative along those lines. BRETT KAVANAUGH: I’ll start. I guess seniority
means something. First of all, thanks to Dean
Manning and Professor Fallon and to all of you
for being here. The reason I think I was
able to crash this pad is because I’ve taught
here for the last 10 years as a Harvard professor, and
many former students are here. And so thanks to Dean
Manning for allowing me to be part of this panel. In terms of– even despite
my school that I attended. So on a daily basis, on
a regular basis, what’s it like to be a federal judge? Appellate judge is much
different from trial judges. Judge Wilkins had been a trial
judge, federal district judge before. I had not. It’s very different experiences,
as he can talk about. For me and for all of us
now, we read a lot of briefs. And there’s a ton of reading
of briefs of difficult cases. Our court is distinctive for
its administrative law docket, so a lot of regulatory cases,
important regulatory cases, a lot of statutory
interpretation, occasional
constitutional separation of powers kinds of issues. But it is a lot of reading. And then it’s a lot of writing. We have to write– we hear oral
argument, which is my favorite, actually, part of the job. I love oral argument. Then, we write our opinions. And writing is pain. “Writing is pain,” as
Justice Scalia used to say. People said to Justice
Scalia, oh, you must love writing, Justice Scalia. You’re such a stylist. And he would say,
I hate writing. It’s painful. It hurts. And it does hurt. It’s hard. But you love having written. You love having written. And that’s part of our
jobs on a regular basis. So at any given point on
a day, to your question, I’ll be reading some briefs. I’ll be working on some
opinions or an opinion, and I’ll probably be
responding to another opinion. So those are kind of the three
things I’ll be doing at once– reading briefs for the next oral
argument, working on opinion, responding to an opinion. RICHARD H. FALLON JR: Just
as a concerned taxpayer now, to make sure you’re working
hard enough, how many cases at a time are you dealing with? How many cases in a month or
a year or some framework that would give us a ballpark
sense of what you do? [LAUGHTER] CORNELIA PILLARD: Go for
Pillard on the statistics. I would say that in
a year, each of us is probably hearing something
between 60 and 80 cases? BRETT KAVANAUGH: It’s higher. CORNELIA PILLARD: Higher? It’s higher than that. 100 cases maybe? I think that– I, in the past few years,
have written probably upward– over 20 opinions in a year. But I would have to take issue
with the unit measurement. Because if you
compare the DC Circuit with some of the other
courts of appeals– I think any other court of
appeals around the country– our case numbers are way lower. And we have a very
different case load. And when I was a student
and looking at clerkships, I had no idea how different
the caseloads were. DC Circuit is very
distinctive in that we get cases against the
government, cases dealing with big regulatory records. I remember when I first
walked into my chambers, one case had a record
that was stacked on the floor up to my waist. And a lot of the case
volume in the other circuits we don’t have. We don’t have a prison, so
we don’t have prisoner cases. We don’t have immigration
cases in our court. So a lot of the high
volume individual cases, sometimes the cases where
they’re pretty much legally foreclosed or legally the
questions are more routine, we just don’t have that
whole volume of work. We also have in the DC Circuit– and it’s interesting to
me how un-uniform not only the nature of the
substantive dockets but also the way the circuits are
managed varies greatly from court to court. And we do have a
permanent legal staff that helps to sort cases so
that there are some that can be dealt with on
a more summary basis, and those are not among the
ones that we would be dealing with briefing an argument. We deal with them, but we deal
with them on a more summary basis and routine basis. ROBERT L. WILKINS:
So I can give you a little bit of a
perspective of what it’s like both to
be a district court judge and a court
of appeals judge, because it’s very different. My life as a
district court judge was much more unpredictable. Because as I drove
in to work that day, I didn’t know whether
I might get a TRO or whether there might be some
sort of a discovery dispute or a motion to compel or some
sort of emergency that might arise that I had to deal with. And that made the job kind of
fun, because nothing was rote. But the thing that
I didn’t really understand until I went on
the bench as a district judge is how much of a
manager you have to be as a US
district court judge, because you’ve got to
manage your docket. You’ve got to get that
case, the civil cases, from complaint filing to
disposition, whether it’s going to be resolved
by dispositive motion or by trial or by settlement. You’ve got to move
that case along, and the case doesn’t really
always just move itself. So that was a part
of the job that I thought that I would
really not like when I started, dealing with
the civil docket and keeping up. But I actually ended up really
liking that part of the job, because I got some
satisfaction from seeing a complaint getting filed. And then I would read
it to just make sure that there was no conflict
issue or a recusal issue for me, and I might read the
complaint and say, oh, that’s a very
interesting complaint. I wonder if he’s going to be
able to prove any of that. [LAUGHTER] And then 16 months
later or whatever, presiding over the
trial of that complaint and seeing the jury render its
verdict and then feeling like, wow, I helped that case
move from beginning to end and was intimately involved
in all of the things that happened along the way. In the Court of
Appeals, it’s much more we’re dealing with an issue,
and we decide that issue. And we send it back to the
agency or the court below, or we dismiss it. And we don’t know what
happens after that. And it’s all very
much more antiseptic. We deal with the issue,
and we don’t really know or have a sense of
the parties or what the resolution of anything is. JOHN MANNING: So
Professor Fallon and I both were law
clerks on the DC Circuit. And, of course, it’s in
the nation’s capital. And so it’s the
seat of government. And so you get a lot
of government cases. And that’s one of
the things that makes that court distinctive
from other circuits. And so we were kind of curious. In this day and age,
what percentage of cases would you say are
constitutional cases? What percentage are
statutory cases? And we’re going to, I think,
include in statutory cases– and if you want to
disaggregate it, you can– the kind
of APA-style cases. So how does it all
break down for you all? BRETT KAVANAUGH:
This is guesswork, because it fluctuates
and changes over time, but maybe 10%
constitutional cases, a lot of statutory
interpretation. And I don’t think I
can really disaggregate the statutory interpretation
from the APA-style cases, because usually you’ll get a
claim that what the agency did contravened a statute
and at the same time was arbitrary and capricious. Or if not, a
violation of statute was arbitrary and capricious. So those are usually
mixed together. And that’s a good 50%, 60%,
70% of our docket, I think. We get some just
civil disputes that don’t involve the government–
not a ton, frankly. But we get some of those cases. And then we have
a criminal docket that’s been shrinking
over my time on the court, in part because there’s
less crime in the District of Columbia, which
is a good thing, in part because more
cases are being brought in the local courts of
the District of Columbia, given the unique
dual jurisdiction of the District of Columbia. We’ve just had a lighter
criminal docket– also in part because sentencing guidelines
cases are far fewer than they were when I started
in the wake of Booker and the sentencing regime
being more discretionary now than it was under the
sentencing guidelines. So that’s, I think,
the basic breakdown. CORNELIA PILLARD:
That’s another area in which we’re a real outlier. I think that our– if I recall correctly–
recent annual statistic for criminal cases was it
was only 6% of our docket. And that’s far below–
the US attorney in DC can prosecute either
in the DC court system or in the federal
court system, so it’s very unique in that sense. So most federal judges
around the country are doing a lot
of criminal work. We’re not. That said, I would
say a big chunk of our actual
constitutional issues are ones that come up in the
criminal procedure context, whether they’re Fourth
Amendment or issues about notice and charging. And we don’t have a lot
of constitutional cases. I would say the other issue–
and I don’t know if Brett would even include these
in his breakdown– but I think the most common
constitutional issue that we see is standing, which we see a
lot of tricky standing issues, just a huge number
of questions about– BRETT KAVANAUGH: A lot
of frivolous ones too. CORNELIA PILLARD: Well,
sometimes he finds standing, and I try to convince
him it was frivolous. BRETT KAVANAUGH: No, I
meant that even-handedly. It’s raised quite a bit by
the government, even when– CORNELIA PILLARD: When there
clearly is standing there. BRETT KAVANAUGH: When there
clearly is standing there. CORNELIA PILLARD:
It’s a tough area. I don’t think either
of my colleagues here would deny that
that’s a tough area. And we get very few
diversity cases. We do get them, but– which are going to be a case
that has a contract dispute– some major construction or– I guess I’ve had a few that
were construction-related issues but not very many. ROBERT L. WILKINS:
We don’t get a lot, but we have a fair number
of employment-related cases and Title
VII cases or other employment-related cases– not a lot but a
significant number. BRETT KAVANAUGH: Yeah, I agree
with that, a large number. Usually from a
government agency, discrimination in a government
agency, an allegation of that. JOHN MANNING: And
so the way I think about your court, it seems to– well, it seems to me that you
get a lot of national security and separation of powers cases. Is that right, or does it
not feel that way to you? Or are they just
high-salience cases? BRETT KAVANAUGH:
Well, numbers-wise, it’s probably not a huge number. But when they come, they’re big,
and they occupy a lot of time. So in terms of time and
effort, because they’re usually huge cases– so the national security
docket when I started was enormous, because we were
dealing with the Guantanamo aftermath, the aftermath
of Boumedienne, which for our court, that
was a huge three or four-year effort following
the district courts who also had a huge effort. We kind made it through that
in one piece, I would say. I’m proud of how
the courts handled that and got through it. That part of the
docket’s not gone, but it’s dropped
off significantly. But we still have a lot of
national security cases, as you say, separation of
powers cases of a lot of kinds. We have a lot of
First Amendment cases, I think more than I
would have anticipated when I went on the court–
all sorts of First Amendment claims. Again, with the government
being there, people, and the First Amendment– free speech claims
and some religion, but a lot of free speech claims. RICHARD H. FALLON
JR: So if that’s what your docket’s like–
and I certainly find this fascinating– which kinds of cases keep
you up at night, if any do? Does it vary with
subject area, or is it something just
peculiar to the case? BRETT KAVANAUGH: The
one I’m working on now. [LAUGHTER] You try to focus on each
case and give it your all. That’s one of the important
things about our job, I think, is to treat
them all as important, because they’re all
important to the people who are affected by it. They all can be important
to the government agencies. Obviously, some are more
difficult than others. Some kinds of questions,
for me, at least, are more difficult than others. A lot of our cases will come,
the Supreme Court precedent is not exactly on point. If it were exactly on
point, it wouldn’t be hard. But you have to interpret
the scope of a Supreme Court precedent– very challenging at times, and
the scope of a prior precedent of our court– also very challenging at times. And I’m huge on vertical stare
decisis in letter and in spirit and also horizontal
stare decisis to prior panels in
letter and in spirit. And I know my
colleagues are too. But saying that is easy. Actually doing that
in a particular case and trying to figure
out what the Supreme Court said and meant or
what a prior panel did can be very hard. So those are some of– that’s something that
recurs for me a lot and I would identify something
very challenging for me. CORNELIA PILLARD: I
would really second what Brett says about the
cases that keep you up at night are the ones you’re
working on at the time. And it’s funny, because
the way the press covers it, they cover only
a very select, small group of the cases. They tend to be
the cases that are the most politically polarized. They tend to be cases
that don’t really represent the full depth
of all the different things that we work on. But I would say
that we’re really dealing with precedent
more than with, let’s say, the Constitution simpliciter. One of the questions one
thinks about when one’s going to be asked
about judging is, what’s your theory of the
Constitution or your theory of statutory interpretation? JOHN MANNING: That’s coming. [LAUGHTER] CORNELIA PILLARD: That’s coming. Yeah. And let me just say as a– BRETT KAVANAUGH: Answer it now. CORNELIA PILLARD: –presage
to that, that cases– I don’t think I’ve
had a case yet that asked– that really
called on me to figure out the answer to that question. It’s just not the way
the issues are served up. BRETT KAVANAUGH:
Judge Wilkins, what– ROBERT L. WILKINS:
So it’s interesting answering the question about
what keeps me up at night. When I was a law clerk for
my judge on the US District Court in California,
we had this case that I was struggling
with what to recommend to do to the judge. And I went and talked to him. And then, he suggested that
I research something else. And then I kind of went back
and forth two or three times and then ultimately
said, well, Robert, we’ve talked this through. And this is the way
I want to decide it. So I want you to address
something along these lines. And he concluded by saying, I’m
a United States District Judge. The American people pay
me to make decisions. They pay the Ninth
Circuit to get it right. [LAUGHTER] And what I took from that
conversation, especially when I went on to district
court was that of course you’re trying to get it right,
and Judge Gilliam always was very diligent
about wanting to try to find the right answer. But you had to kind of balance
that against just moving your docket. And there was this fail-safe,
the Court of Appeals, that if you screwed something
up, whatever, then they would fix it. And your decisions
weren’t precedential. A decision in the F-Sup
doesn’t bind anyone anywhere. CORNELIA PILLARD: Except,
importantly, the parties. ROBERT L. WILKINS:
Yeah, the parties. And so I guess I took
some solace from that. And then when I went on to the
DC Circuit, then I realized, oh, shoot, I’ve got
to get it right now. So now, I’m staying up
late at night a lot more, thinking about my cases. BRETT KAVANAUGH: The
other kind of case that I would identify as
particularly challenging, as I thought about
this, recurring cases, not just interpreting
precedent, but then– are statutory cases. Statutory interpretation
is such a large part of what we’re doing, even if
it’s in a regulatory context. And statutory interpretation
has improved dramatically, in my view, over
the last generation. But there’s still, if the text
is clear, follow the text. OK, we all got that. But there’s a lot of times,
is the text really that clear? And how do you determine
whether the text is ambiguous? This is something I’ve obsessed
about for the last few years, about how can two
judges agree on whether something is clear or
ambiguous in the first place? That’s actually an unbelievably
challenging question, but it affects the resolution
of our Chevron kind of cases and a number of
other kinds of cases. And then the canons
of construction that you resort to
in statutory cases, there’s a lot of debate
about which canons apply at which times, what’s
the trigger for a canon. What if you have two
conflicting canons? So that’s statutory
interpretation. It’s still quite
challenging to me. And I think we all agree now
if the text is that clear, OK, that’s it. But there’s a lot of
challenges that are in the cases at the margins. And most of the cases we get
are at the margins of that. So that’s a recurring
challenge as well for me. JOHN MANNING: So this
leads to another question. And it’s– I guess I’d say,
on a scale of 1 to 10– so let’s start at this
end and go that way– on a scale of 1 to 10, how
much do you love Chevron? Judge Wilkins? ROBERT L. WILKINS: I’m
going to need a bigger boat. Love is a strong word. [LAUGHTER] I guess I haven’t
thought about it. Because as a member
of an inferior court, it doesn’t matter
whether I love it or not. It’s the law of the land,
and I’m stuck with it. So I haven’t really
given it much thought. I mean, I’ve heard
conversations and have been in debates with some of
my colleagues about Chevron and its wisdom or
logic or lack thereof. But I don’t have any major
problems with Chevron. I guess I would say a 7. [LAUGHTER] CORNELIA PILLARD: So
I agree, of course. It’s binding, law of the land. But the logic of Chevron
became clear to me. As I mentioned, I
came into my chambers and found case files that
reached up to my waist– and really, also not
just administrative records but entire
statutory schemes that I had not
studied in law school and that were not
familiar to me. So the learning curve is steep. That’s what keeps
us up at night. And also, I mean, it’s the
most stimulating thing. That docket is fantastic. It’s so interesting. And even when the legal issue
is yet another Chevron issue, it’s on a different
factual background. It’s, oh, this how
they decide where to drill on the outer
continental land shelf. Oh, this is how the
wireless spectrum is allocated among different
businesses that are trying to offer you broadband. This is how medical
devices get cleared for marketing as science is
developing– really, really interesting, amazing stuff. And I am a big believer
in understanding the real-world facts about what
the agency is grappling with. What is the science
claiming here? What’s it doing? What’s the economics
claiming here? What’s it doing? At the end of the
day, though, I’m not the de novo decision
maker about which filters are appropriate to
achieve x level of clean air in such and such an industry. Of course we have
Chevron, because there are teams of hundreds,
if not thousands, of specialists lawyers
and scientists, who have– and policymakers, who
have made judgments. And and they bring it to us
for a relatively shallower dive to figure out whether
they are doing– fulfilling their responsibility
under their statute and fulfilling their
explanatory responsibility, their responsibility to consider
all the different perspectives. So it’s a little
bit hard to imagine a system of courts that doesn’t
include lots of PhD scientists somewhere on a staff that
could operate without it. JOHN MANNING: Yeah, I
clerked for the year after Chevron was decided. And by the middle of
the year, my judge was using it as a verb. John, can’t we just
Chevron this thing? Judge Kavanaugh? CORNELIA PILLARD: I’m sure
there was Chevron before there was Chevron, though. JOHN MANNING: Right. BRETT KAVANAUGH: So I’ll give
you a few different pieces of this as quickly as I can. If a statute says a term
like reasonable, feasible, appropriate, practicable,
I’m in full agreement with what Judge Pillard,
with what Nina just said, in terms of that’s not really
our job to second guess, other than making sure they
stay within some bounds. I really view that
as much the State Farm doctrine as the
Chevron doctrine, really, in application. And I’m tight– I would describe
myself as pretty tight on pushing agencies on
their statutory interpretation. I think I’m pretty deferential
on their policy choices. Of course, a lot of cases,
that is the question. Is this the statute
or a policy choice? But that’s how I
think of myself. But on applying Chevron
in terms of its clarity, yes, it’s precedent,
so we apply it. But there are two aspects of
it that are very challenging. One right now, there’s
a major questions doctrine exceptions
sort of to Chevron that the Supreme Court, in
my view, has articulated. What does that cover? When does that apply? That’s, for me,
a real challenge. I’ve had cases where
I’ve written about that. Secondly– and this piggybacks
on a point I made a minute ago– you only defer to the agency
if the statute is ambiguous. If the statute is
clear, you decide the meaning of the statute. And if the agency has
not corresponded to that, then the agency loses the case. Well, that raises the
question, is the statutory term ambiguous or clear? And that, I’m telling
you, is a debate that there is no
objective standard for. Is certain language
ambiguous or clear? Where’s the trigger? Is it 80-20 clear, 60-40 clear? What is the appropriate
trigger to defer? And then let’s
just say we agree– JOHN MANNING: 60-40 No, sorry. BRETT KAVANAUGH: OK, let’s
just say it’s 70-30– CORNELIA PILLARD:
Your next article. BRETT KAVANAUGH: Let’s say–
we say if it’s 70-30 clear, then it’s clear. Otherwise, it’s ambiguous. Defer to the agency. Or the other way around. And how do you apply that to
a particular set of facts, to a particular
statutory interpretation? That is a very, very
challenging issue on which two people who are
conscientious judges trying to do the best
they can and trying to be the judges umpire to the
nth degree will still disagree. And that’s important, because
those cases, that one trigger, is it clear or
ambiguous, could affect the fate of clean air
regulations, billions of dollars– and I’m not exaggerating. B– billions of dollars. Securities regulations–
that one question, is it clear, or is it ambiguous? Because if it’s ambiguous,
the agency is going to win. If it’s clear, the agency
is going to lose, say, in a particular case. That’s an unbelievably
difficult thing. And it’s a problem, I think,
in the Chevron doctrine, a real “chink in the
armor,” to use a phrase Justice Scalia once said. I’ll mention two other very
quick points about Chevron. One is, having worked for five
and a half years in the White House, knowing that you
can get away with things, the courts incentivizes
the executive branch to push the envelope on
statutory interpretation. You run for office through the
snows of Iowa and New Hampshire for policy, not
saying, when I get in, we’re just going
to follow the law. No president who runs for
office isn’t out there saying, we’re going to do clean air. We’re going to fix the
immigration system. When you get in, you
have a statutory scheme that constrains you. But you say, well, can’t
we just say it’s ambiguous and push the envelope and
see what the courts say? This is a big shift of
power, kind of a judicially orchestrated shift of power,
from the legislative branch to the executive branch. And I’ve seen it firsthand. It incentivizes the
executive branch to really push the
envelope on its policies and then to backfill
trying to fit it into the statutory scheme. I’ll stop there. So those are issues
about Chevron. It is precedent. I apply it. Even as precedent,
it has murky issues. And then the real-world
impacts, it’s a big shift of power to
the executive branch. CORNELIA PILLARD: I would
say also even if we could say 70-30, 40-60 level of clarity
is enough for something to be clear, we all have
experience that the terrain– it depends, to some
extent, what kind of issue you’re talking about. Is the issue an issue
that’s relatively more sort of accessible to judges? Or is it an issue
that really is– the very question
of clarity or not is going to be something
that a specialist is going to have a better
ability to get a handle on? And so you couldn’t
overemphasize enough what difficulties that
poses, and then– so that if something is more
judge-like, it’s going to be– we’re going to be
a little bit more– have a little bit more
hubris about saying, you know, it’s something
we can have access to. We’re not going to defer. Whereas if it’s
something that really is in the heartland of
the agency’s expertise and they appear to be
using their expertise, it’s going to be something
more comfortable. RICHARD H. FALLON JR: So
if my dean, with whom I want to stay in good, were
asking the next question, I’m sure it would be,
on a scale of 1 to 10, how do you rate textualism? But instead of taking it
that squarely head on, I would angle into it
slightly differently, by way of something like
a judicial philosophy. So Judge Pillard, you
said at one point– I’m sorry, Judge Pillard. You said– she was my student. This is how clever I am. It’s taken me 30 years, and
I still haven’t got it right. So you said at
one point that you don’t have any need for a grand
theory of the Constitution. That doesn’t come up. Do you need a grand theory
of statutory interpretation? Or is it possible
that you don’t have either a grand theory
of the Constitution or a grand theory of
statutory interpretation, but you still have
something you might call your judicial philosophy? CORNELIA PILLARD: I would
say it’s very circumstantial. I don’t have a grand theory
of statutory interpretation either. And that may partly
be that I don’t have enough years of experience
to have enough salient repeat cases to build up a sense of,
like, in this category case, I’m coming out this way. I would say on the
textualism front, everybody agrees that
we follow the text. Everybody agrees that
there are canons, tools, structure is high up
there– that there’s sort of a hierarchy
of tools that we use. And I think one of the
most important lessons that the new textualism
has brought on is to appreciate that we
don’t go straight to purpose in some broad sense– oh, this is environmental
law, or this is labor law. Therefore, the purpose is
to protect unionization. Therefore, I’m going
to read it broadly in light of that purpose. Because as everybody knows,
legislation is a compromise. And the purpose was
achieved, but only up to– only in as far as the
purpose was achieved. And if the language isn’t
better for the party in whose interest
the legislation was putatively adopted, well then,
it’s not better language. So sometimes you can
identify that it’s plausible that the text isn’t
clear for that kind of reason. And then there are
other cases where that’s not what is being– what manifest in
language that is unclear. So I think it’s– again, there are sort of
particular theories that are very helpful that– some of
them produced from this very law school– that are very helpful to
us in particular cases. But I guess I’m just
not sure that there’s that much controversy
among my colleagues about the available
tools, about the fact that each rule has certain
cases where it breaks down. And then we do have
difficult judgments about, which extra canons
do we draw on? And why is one more appropriate? But I do really resist
the idea, partly because it’s just
not my experience, that it is very helpful to me
to have– and I was an academic. So you’d think if
anybody’s going to come in with grand
theory, I was an academic before I became a judge. And I did teach constitutional
law and statutory courses as well. But that’s not whether I’m
sitting around thinking about most of the time. It’s really getting
the answer right and learning a lot about the
law in a real-world setting. JOHN MANNING: Judge Wilkins? ROBERT L. WILKINS: I think
that one question that’s a vexing one, that I think
impacts probably subconsciously all of us as judges in thinking
about statutory interpretation and textualism is
really, I guess, what prior experience
perhaps we have or we don’t have with
Congress and actually seeing how the sausage is made. Because depending
upon your framework there and your experience, I
think different judges expect Congress to really, really be
super clear about something, because they should
write a sentence the way I would write a sentence. But the hurly-burly of
legislative decision-making and drafting isn’t necessarily
the same as the way that we operate in
a judicial chambers. I think also people’s
thoughts about these things might vary depending
upon how easy they think it is for Congress
to correct something. Well, if we say that the statute
doesn’t really cover this and Congress really wanted it to
cover it, then they can fix it. Because they can just pass a law
next year changing the language and adding it back. Well, if your view
of that possibility differs on how well you
think Congress functions or not or whether the Congress
now is in the same place as it was then as
far as its mindset and making this a priority
or its views on this issue– and so I think all of
those things probably– I mean, we’re human. I think all those
things subconsciously affect how we look at statutes
in defining whether something is clear or whether we’re
going to require Congress to be really, really, really clear as
opposed to 70% clear something on an issue. BRETT KAVANAUGH: I think first
and foremost is precedent. If there’s a statutory precedent
from the Supreme Court on point and that reaches a result
that you don’t think is a textualist result,
that doesn’t matter. You follow the precedent
of the Supreme Court on the issue in question. If there is not a precedent
from our court that binds us or from the Supreme
Court, I would– I am a textualist. As Justice Kagan
said here a year ago, we’re all textualists
now, in many respects. And I think of that for both
formalist and functionalist reasons. As a formal matter, the law is
what’s written in the statute. As a functional matter, as
Robert just pointed out, the law is a compromise. And no law is written
by one person. And so inevitably,
the law may look like it’s got
conflicting points, or it may not be the way
you would have written it. But it is a compromise. And Dean Manning’s, of
course, written the most and been so influential
on this topic. But you upset the
compromise that Congress has struck if you don’t stick
to the words that are actually written in the statute. But to say you’re
a textualist really still leaves a lot
of tough cases. Because what if the text, as
I said before, is ambiguous and the canons kick in? Then, there’s a lot of debate
about whether it’s ambiguous and what canons
to apply as well. The other thing I’d say
about textualism right now– one of the big things I know
Dean Manning is focused on and others– is interpreting the
text in light of the context. That’s a big thing right now. To what extent does
the context show that the literal
words of the text might not actually mean
what they exactly say because of the broader context? I think what exactly
that means in practice is a little bit
of a debate right now in particular cases and
something to keep your eye on. And to Robert’s
point, the Congress can always fix a thing. To my mind, judges
do say that sometimes in court in oral arguments,
sometimes at a conference. It’s not a neutral
principle based on our separation of
power system, which makes it much harder, of course,
to pass legislation than it does to block legislation. It takes the House, the
Senate, and the President to pass legislation. The framers wanted it to be
hard to pass legislation. And it is hard to
pass legislation, as we all experience every day. That was the system
they designed. So to just say, “Well,
I’ll go with A rather than B. Congress
can always fix it,” is really not a neutral
principle at all, given our broader separation
of power system. JOHN MANNING: I want to
follow up on something that you just said. So you’ve said in
this set of remarks and in some earlier
ones, sometimes you’re bound by what the
Supreme Court says. You believe in
horizontal stare decisis. Sometimes, you’re bound by
what your court has said. Sometimes, you feel bound by
the text when the text is clear. But then, there are those
times when you’re not bound. So you’re not bound by the text. You’re not bound by precedent. You’re not bound by a horizontal
precedent, vertical precedent. And ultimately, you
have discretion. And so when you
have discretion, how conscious are you of exercising
a policymaking function? JOHN MANNING: Right. So that’s a great question. There’s always this debate. Is it all law like
you’re robots, or is it all common law, just
do what you want as a judge? And like most
either-or questions, it’s a false question. Because there are
a lot of cases, as we’ve been discussing,
where, I think, you’ve got to follow
the precedent. You’ve got to follow
the statute as written. And that’s our job as
judges, balls and strikes. Judges umpire, not
a lot of discretion. There are cases where
the statute itself may– or the Constitution itself may
give the judges discretion. Rule 501 of the Federal
Rules of Evidence, create privileges in light
of reason and experience. That’s just a broad grant
of discretion to the courts. Unreasonable searches
and seizures– there’s no code
book you can look to say, OK, give me the list
of unreasonable searches and seizures. That’s going to be based in
practice on your experience, on the precedent. You’re going to be exercising
a common law-like power in a case like that. There is going to be
judicial discretion. What is good cause? There are a lot of statutes
that have good cause exceptions. What constitutes good cause? You’re going to be
developing a body of common law-like exceptions
that fit within the statute. It’s not that you’re
ignoring the statute. It’s that the statute grants
to the judge, in those cases, I think, a common
law-like power. And so in those cases,
what are you trying to do? You’re still trying to be the
judge’s umpire in my view. And what that means is being
consistent, being prudent, explaining your
reasons, developing a coherent body of
common law-like decisions that make some sense. But you do have more
discretion in those cases, undoubtedly, just as umpires
in baseball when there’s a play not covered by the rules
have more discretion, like when the Washington Nationals
got ripped off in game five by the call– by the call that the ball–
the bat hit the catcher’s mask. The play was dead anyway. Sorry. [LAUGHTER] I’m still very bitter
about game five of the Nats’ playoff series. I’m a big– CORNELIA PILLARD: We could all
get riled up over that one. JOHN MANNING: You’re
hiding it well. Judge Pillard, how about you? When you have discretion,
are you conscious that you’ve got a
policymaking function? CORNELIA PILLARD: Yes,
but I think that Brett’s use of the term common law– BRETT KAVANAUGH: Like. CORNELIA PILLARD: –common
law-like is really apt. I think a lot of the
times when we’re doing that, it feels very guided. But I would also
say that I think there’s a kind of
diversity on the bench that is I think underappreciated. And we talk about diversity
in terms of gender diversity and racial diversity
and religious diversity. But I think a really
important kind of diversity is the prior
experiences that you’ve had in life and as a lawyer. And we have really,
really stupendous diversity of experience among
the judges on our court– people who have done specialized
regulatory work in energy law and antitrust
law, people who have been in White
House counsel, been in criminal law
prosecutors, defense lawyers, people who’ve
worked in big firms and smaller firms, academics– just a really,
really wide range. Not so present on
the federal courts are people who have
represented plaintiffs. And it’s one of the
things that is– we all bring when
we’re thinking, is this result sensible? Is this result workable? Is this result
something that is going to facilitate the fair
resolution of not only this case but future cases? And I think that we just
have a real resource in sharing our
intuitions about fairness in light of the,
really, very multiple and deep past
experiences that we have. And in light of that,
I just would note, one of the things that struck
me when I came on the bench was how little hobnobbing
we do outside of conference. I was deep into preparing
my first several cases, and I thought, gosh, I’d like
to talk to the other judges who are deep in the same process. And people don’t really
do that in our building. And over time, I’ve really come
to appreciate and embrace that. And that’s really
for two reasons. One is sort of an
obvious reason that, am I going to call up both
of the other people that are on the panel and talk to them? And it’s a little
awkward and formal. And if I’m not, then
how would I feel if the other two
judges on that panel were talking about
it without me? There’s something a
little awkward about that. But much more importantly,
it’s that each of us independently comes to
our own best judgment of what we think the case– how we think the case
should be decided. And then, we come
together and engage. And we’ve really
gone all the way to, if I had to decide this
alone, where would I be? And then, we come together. And that is, I
just think, such– you know when you mentioned the
taxpayer before– such value added for the taxpayer. You would be astounded,
I think, if you realized how many judges
who are appointed by the same party, presidents
of the same party, come together and how differently
they see cases and just how much work
we do in figuring out where to go with the
different contributions that we bring to that table. It’s really one of
the tools we have in dealing with these very
difficult and quite momentous issues where this sort
of authoritative guidance does eventually run out. JOHN MANNING: Judge Wilkins? ROBERT L. WILKINS: I think
that probably the hardest cases are the ones
where we explicitly have a lot of discretion. Because really then, we have
to figure out how to use it and how to define what is
reasonable, what is good cause, or what is– what should be the
balance of a privilege or something of that nature. Because then the
task is really trying to figure out how to see down
the road and around the corner and in years ahead of how, if
you articulate it this way, how is that going to be used? And how is some
very smart lawyer coming from this law school
or some other fine institution going to take this– perhaps this one sentence
in this one nugget and then run with it, and
where will that go? So those are the cases
that I think are the most challenging for that reason. BRETT KAVANAUGH: There
are cases that if you’re a real textualist, the
Religious Freedom Restoration Acts talks about compelling
government interests. That’s what it says. OK, I read it. It says, compelling
government interests. But what are the compelling–
what are acceptable compelling government interests? There’s no code book
that lists those when you’re interpreting
something like that statute, which is so important. And there are lots
of statutes that have things like that in them. So it becomes very, very hard. And then your policy views,
your views of fairness don’t trump the statutory text. But when you’re explicitly
told by Congress that the judge is making
the determination of what’s reasonable, you need to do that. But if you’re just following the
tax and you think it’s unfair– this is something Nina said– you say that. And I think in my opinions,
I always try to say, I realize this may be
seen as creating problems or that there should
be a fix here. But this is the way we read
the statute as written. And to something Robert
said about workability, that’s a critical part
of our opinion writing. That always keeps
me up at night. Fear really keeps
me up at night, which is the fear of writing
an opinion that is, I think, beautiful opinion and is not
workable in the real world of the agencies, the people
who have to apply this. So getting it wrong
keeps me up at night. But also doing something
where someone says, they didn’t get it,
that’s a huge fear of mine when I’m writing an opinion. I work really hard to fall on
Robert’s point of explaining as clearly as possible so
that it will be workable, identifying the flaws, if
there are, that we can’t fix, but also explaining how it
should work in the real world. That’s a hard part
of the job, I think. RICHARD H. FALLON
JR: OK, with fear having emerged as the
central motivation here, I have 17 more questions
I would like to ask. But I’m afraid of
what would happen to me if I tried to do that. And so I think it is time
to go to the audience and see what some of our
distinguished participants here have to ask about. And so, do I have to choose? JOHN MANNING: Yes. RICHARD H. FALLON JR: I saw
this gentleman’s hand first. And then there are some
other hands over here. AUDIENCE: Yeah, Justice
Pillard stated that– RICHARD H. FALLON JR: Can you
get your microphone on there? CORNELIA PILLARD: Elevate it. AUDIENCE: OK. Justice Pillard stated
that you folks don’t really hobnob, brainstorm other
than in conference. Do your clerks do it? What happens if
after the conference you’re in charge of writing
the majority opinion and it’s a two-one
case, how does somebody communicate that
paragraph 15 is going to cause him or her to flip? Do your clerks
communicate or what? CORNELIA PILLARD: It’s really
a surprisingly formal process. Sometimes we do talk. Well, we definitely–
we conference. And conferences last
from, in my experience, I would say, on the
very short end maybe 10 minutes for three cases to three
and a half hours, four hours. It really depends
on how important the case is, how hard
it seems, how much we’re coming with very different
perspectives, how motivated we are, frankly. I have colleagues who– every colleague is
dedicated, unbelievably able. The longer I work with these
people, the more respect I have for the abilities
of all of my colleagues. People have different levels
of patience and appetite for working through
things together. BRETT KAVANAUGH: It’s
a human institution. CORNELIA PILLARD: It’s
a human institution. But what we’ll do
is we’ll conference, and we’ll try to resolve,
at least in gross form, what each element of an opinion
is, how it’s coming out. And if a judge has
strong feelings about, I do not want to
rely on ground A, let’s do it on
ground A-prime, they will say it in the conference. And we all take notes. The senior judge at that
conference who’s presiding will then circulate what
we call a disposition memo. And I think it’s a relatively– they’re trending to being
a little bit more meaty, those disposition memos. But still, we’re talking
a couple sentences to a paragraph–
very, very short. But for just those reasons,
so that the person who is drafting the
opinion doesn’t go stumble into a hornet’s
nest that then makes the whole majority fall apart. But then we circulate
a draft opinion just among those panel members. And we have an online
system for doing that. And you’re supposed to drop
everything else you’re doing and within five days– that’s
calendar days, including weekends– you’re supposed
to get back to your colleague on their draft opinion. And that all happens
before it gets then circulated for seven
days to the full court before it goes
out to the public. So there are these
are two-stage process. Then, the panel process
is a very engaged– can be a very engaged process. And then the full
court circulation is really just so
people– so that we know one another’s
work more or less before it goes to the public. Although, you can look
at a panel opinion and tell a colleague on a
panel that you didn’t serve on, hey, you know, when they
petition for en banc, I’m planning to
vote for en banc. I think you got
that really wrong. Courtesy? Some might think
that’s a courtesy. BRETT KAVANAUGH: Courtesy, yeah. Candor. Candor. Candor. CORNELIA PILLARD: But I
mean, again, the range– sometimes, an
opinion comes round, and the other two judges
say, great, great. Sometimes, an opinion comes
around, and you know– I had one that I
thought I’d written in a very plain vanilla way. And it was going to be one
joining me and one dissent. And the judge who was joining
me said, that sounds, so– to me, so tendentious,
I can’t join it. And I thought, wow,
I thought I wrote a really plain vanilla opinion. But that’s tendentious. What are you referring to? And the judge told me, well,
you described the standard in this way. And it was a
miscarriage of justice. I said, well, that was actually
just quoting the Supreme Court. But the tone, to my ear,
was very sort of flat and to this other judge’s
ears sounded like we were condemning the district judge. I rewrote the whole opinion
and satisfied my colleague. So that’s a process that
can be more labor intensive, can be less. It’s critically important to
the legitimacy of the opinions that we issue. And I also would
say, you can quickly imagine it generates
typically narrower opinions. If you’re going to try to
keep everybody on board and if everybody
feels that they have to be on board in order to sign
off, then you go in narrower. And I tend to think that
that is a good thing. I know we have a history of
lauding certain judges who write in grand terms. But I really appreciate
that we are not omniscient, that we are deciding
the cases before us, and we do a responsible and
sound job when we kind of stick to the case by case. BRETT KAVANAUGH: On
the hobnobbing point, I just want to
say, the reason we don’t hobnob before oral
argument is what, in my view, is exactly what Nina
said, which is we want three independent voices
coming into oral argument. Group think can develop
quickly before– if you converse
before oral argument if one person’s prepared
more than the other, and the other two,
yeah, sounds good. And then, you really haven’t all
three prepared independently. After oral argument,
the conference. But even after that, there isn’t
in-person hobnobbing as much. But if you think of
texting and emailing as the modern equivalent
of hobnobbing, there is a ton of
hobnobbing in terms of our written communication, in
a lot of cases, back and forth. It’s not person
to person as much as it might have once been. CORNELIA PILLARD: There’s a lot. And we have a special dedicated
place where you post things– your comments on someone’s
draft, and they go to all three so that if the three of
us are sitting together and Robert circulates an opinion
and I have comments on it, I can give them to him
within that five-day window. And then Brett can
see what I’ve said. And he can say, well,
I agree with Pillard on one, two, and three. But actually, I would go
absolutely the other way on four. And then dear Robert has
to figure out how he’s going to make us both happy. [LAUGHTER] And I would also
say we have very– one of the things about it
being a human institution is sort of figuring
out the culture but also helping
the culture grow. When I came on– I told you, I came
from academia. And when you’re reading
colleagues’ work, you’re not doing your job
if you don’t give colleagues a lot of feedback. And this got me
into some trouble when I came on the bench. And I gave one of my
colleagues some feedback. And when you post
it to the panel, it also goes to the clerks
of the panel members. And one day I was at
my desk, and I look up. And my clerk has appeared at
the door, green in the face. And I said, yes, Matt? What’s up? And he said, did you see
Judge so-and-so’s comment. And I turned, and I
look at my computer. And the judge was mad. Something like, I can’t
believe the audacity to comment on such and such. I just laughed, and I
called my colleague. I said, you know I
come from academia. I’m not doing my job. But this is what’s important
to me, and let’s talk about it. But I think the culture is a
contribution of many people. And I personally
appreciate more engagement. I feel like you’re
the only other two people on the planet
who have thought about this from the perspective
of a court as deeply as I have. Can you please engage? But other people feel
like it’s insulting. It’s not– you know,
I’m doing my job. Where do you get off? But I also learned,
sort of incidentally, from a different colleague
who said, oh, just because you join the opinion
doesn’t mean you agree with everything in it. And I thought, oh, bingo. That’s how you can
sign on to an opinion when you don’t agree
with everything in it. So then the question
becomes, well, what’s dictum and what’s holding? And I thought,
boy, I wish I knew when I was a student
and a practitioner why that difference can be
considered so important. If it’s coming out of a court
where the judges are saying, whatever the author
wants to write, as long as the holding is
one I agree with, well then, that dictum is a lot
less authoritative than if it’s coming
out of a court where people are acting
like Professor Pillard and really wanting to only sign
on to what they agree with. And believe me, I’ve signed
on to plenty of things where I didn’t agree
with every part of it, because that’s the nature
of the multi-member court. RICHARD H. FALLON JR: Yes. So why don’t we come over here? And then we’ll go over there. Yes, please, sir. AUDIENCE: Thinking about the
public perception of the court, I know Justice
Roberts, people say, thinks about the public
perception of his court a lot more than previous chiefs. And you see on the New York
Times some of your opinions. The PDFs are posted there
for the public to look at. At the same time, we
think of judges as– it’s not a political
branch that you serve on. So how do you think about
the public perception of your court? And do you ever
really see yourself– when you’re writing
an opinion, do you see yourself talking to the public? Do you think about how
non-lawyers or even non-specialists will
think about your cases and what you have to say? ROBERT L. WILKINS:
I do think about it. And something that I try to
do but I don’t implement this regularly as I should– there are some judges who are
very good at writing an opening paragraph that is a great
summary of both kind of the capsule summary of
what the facts are of the case and what the issue is, the core
issue that’s being presented, and how it’s being
resolved and why we are resolving it in that fashion. That’s something
that’s very hard to do. And I’ll just confess that
sometimes I just don’t always take the time or feel like I
have the time to really pour into something like that. But it’s important,
because I think, especially in the information
age that we live in, we are speaking more
directly to the public, because they can download our
opinions within five minutes after we issue them, than
in prior generations. And people are a lot more
savvy and sophisticated now. And having something
like that in the opinion, either at the
beginning or the end, I think is very
helpful for the public and for the press
and others who are trying to understand and
explain and communicate what we’re doing. And I think that we do need
to be cognizant of preserving the goodwill that we have
with the American people and our stature
and the confidence that people have in our branch. BRETT KAVANAUGH: I think about
all the different audiences that will be reading the opinion
when I’m writing the opinion– and so the affected
parties, of course, the parties to the case, future
affected parties, lower court judges who will have
to follow our opinion, future panels of our court. The Supreme Court, in case they
review that particular case, I’m thinking about them. I want them to pick it
up and say they get it. I want the academic community
to understand it, the public at large to understand it. And what I’m looking
for is, obviously, to explain the law as
clearly as I possibly can and to write and write and
rewrite until I can do that. I’m also looking for the
losing party, or the party that hates the result
that I’ve reached, to at least be able
to say, he gets it. I hate how he resolved
it, but he gets it. He understood the issue. He grappled with it. And so I’m looking to
do that in my opinions. And I think that’s an
important value for the losing party in the case. This is also true
to oral argument, to make them feel like
they’ve got a voice and actually give
them the voice. It’s not just appearances. It’s reality. But in the opinion, I
want the losing party to think they got a fair shake. And that’s very important. So I’m thinking about
all those audiences simultaneously when
I’m writing an opinion. And that can make it
challenging, to Robert’s point, about trying to convey it
as clearly as possible. CORNELIA PILLARD: I really
liked when you were saying, do you even think
about non-lawyers? Because one piece of advice
I used to give to students and that I give to clerks and
I try to follow myself is, is this something that you
know Uncle Cedric could read and understand? And my first summer after I had
been sitting for a few months, I went up to visit my dad
in a break in the summer. And I brought a folder
with all my opinions. And it was so hilarious,
because he actually read them, and he was talking
to me about them. So I think, I have to say
two things about the legacy as an opinion writer
of Justice Scalia. He really brought clarity of
opinion writing to a new level. And I have to say that
we new judges aspire– I have to say Judge Kavanaugh is
a wonderful opinion writer who takes that clarity, that
tradition, and really, really manifests it in
the work that he does. I think clarity is
really important. I would say, though,
that I’m quite critical of another aspect
of Justice Scalia’s legacy as an opinion writer,
which is the snarky sort of low blow for laughs. I think it’s really problematic
when judges try to be cute, try to be clever,
and certainly, when they do it at the expense of
either colleagues or a party. It is an extremely serious
business that we’re in, and I think Brett gets
it exactly right when he says that the confidence in
the judiciary and our ability to play a constructive
role in our government is greatly affected
by how the people who are coming away without
their favored result feel about the process. And we’re really
not doing our job if we don’t leave
people with a sense that we’ve given them
honestly and comprehensibly the real reasons
for our opinions and that we’ve done it in a way
that really respects the stakes that all parties have. And that is such a
pleasure to be trying to– but also, it’s a
lifelong project to try to get there where you
can actually write something that’s readable and
that’s clear and that really gives the process the
dignity that it deserves. I would also say one
other thing about when we think about the public. And this varies, I think,
among Court of Appeals judges. We’re a multi-member court. And I have become
increasingly motivated, in my time on the bench, to
reach a unanimous opinion when we can. When you talk about what’s
hard about the job, deciding– I come into something. I have a view of it. It’s pretty confident. I find out at
conference that I have two colleagues who disagree. And I have a decision
to make there. How important is this to me? Is there a path that they
would agree to that I could feel I could stand? What is to be gained
from writing a dissent? I certainly think
something’s to be lost. I think that the
constantly riven panels make the public think,
well, the law is not one thing. And you’re lawyers. You wouldn’t have a profession
if the law were really mechanically one thing. But at the same time, I think
we really owe it to people. I think about this. I was on a jury in
DC some years ago, and we deliberated
for a long time. And we couldn’t come,
at first, to a verdict. And we had what’s
called an Allen charge. We went back to the
courtroom, and the judge read to us– this is a
charge based after this case. United States versus Allen
is an 1896 case where there was a deadlocked jury. And so the judge says to
the jurors, try harder. And I think about this when
I’m working with my colleagues, because the substance
of it is fantastic. And I’m gonna make it
as if it’s to judges. “If you are
outnumbered, you should reconsider whether your doubt
is a reasonable one, since it appears to make no
effective impression on the minds of the others. If you are in the majority,
then your colleague who are holding
out should ask them should ask himself
or herself again, and most thoughtfully,
whether she should accept that which fails
to convince her fellow judges.” And the last part of the
charge says, “You’re not expected to give up an honest
belief that you may have, but you have a duty
to agree if you can.” So this is telling jurors,
break your deadlock. And I think that’s a really
great instruction also for a Court of Appeals
judges to think, OK, you don’t have to
give up an honest belief. But you have a duty
to agree if you can. And so just sort of
figuring that out is tough. And sometimes– Brett
and I have talked about this– sometimes
you don’t write a dissent, and later you think,
that was the one where I should have done it. And other times you
think, well, you know, I really sweated that one. Why did I– who cares? But then there are other
times when I’ll be reading, here’s a dissent on a
panel from another circuit. And I’ll think, oh, it wasn’t– yes, this is a close issue,
and that might become the majority in our court. So there are some reason, some
good reasons to write dissents. But when we think
about the public at large and what
are we doing and how is our product received, I
think that that whole question about the quest for
unanimity, for me, anyway, is part of what’s going on. RICHARD H. FALLON JR:
So I promised that I would go over to this side. And so, yes? AUDIENCE: First of all,
thank you three all so much for being here, for taking
the time to come celebrate and to speak with us. I have a question
that I am sure is on the minds of a lot
of my fellow classmates, which is, what are some of
the characteristics that really make a clerk stand out
as a really exceptional clerk? JOHN MANNING: Clerk. BRETT KAVANAUGH: Law clerk. Law clerks. ROBERT L. WILKINS: Let’s see. I think we’re blessed with these
brilliant people who come to us with an abundance of talents. And so just trying to figure
out what makes one special or what makes a
really good clerk, obviously, we’re
relying upon our clerks for their analytical ability
and also, to a large degree, their writing ability. And so the clerks who, to
me, have been my best clerks are ones who really excel
in that fashion, who really can help me think through
how best to analyze this case. Because as Nina
was saying, we have to figure out how we
can navigate and get to two and hopefully three
votes and write something that everyone can agree with and
keep everyone on the bandwagon, so to speak. And so really figuring
out analytically how to navigate the
landmines is important. And obviously, also,
being a strong writer. CORNELIA PILLARD: One thing
I’m looking for is people that are different from me. And it’s funny, because
when I became a judge, I got all these letters
of recommendation from former colleagues in
academia, who would say, oh, you’ll like this person. She’s a civil rights background. She wants to do women’s rights. I’m like, yeah, I
got that covered. How about some national
security, somebody who is into environmental law? I often really like
to have somebody who has done work
on Wall Street, who has an economics background. I had one clerk
once who had been a chemistry major undergrad. And we had an
environmental case, and we were trying to
figure out something about the use of a
liquid bath for purposes of diminishing vapors. And it was unbelievable. I couldn’t figure out why
surface tension was important, but we had a whole
conversation in the chambers. And we could have decided
the case without that. But just part of my quest to
really know what’s going on makes me want to
have people who have different intellectual
interests, but also different
life experiences. You know I’m really,
really looking for people who are
different to me and not ideologically homogeneous,
not going the same place. But there’s also some
self-selection that goes on, frankly. I do think that we get slightly
different pools, because people are motivated to work for people
that they style themselves on. And judgment– people
who are a little bit– have other life
experiences, have done other things is a huge plus. BRETT KAVANAUGH: As
briefly as I can, because I could talk for about
five hours about that question. And I would like
to, but I won’t. I said the favorite
part of the job was oral argument in terms
of the mechanics of the job. My favorite part
of being a judge is relationships with the
law clerks, undeniably. It’s fantastic. CORNELIA PILLARD:
Oh, come on, Brett. You like us too. BRETT KAVANAUGH: Yes,
and my colleagues. Yes, and my colleagues too. [LAUGHTER] Yes, of course. But the ability to have a year
to spend with four people who have done well in law school
and have this ability to do great things in the future
and have this opportunity– I actually view it more as
a responsibility, actually. It’s like the professors here,
your great professors here, who teach you, and I have
this responsibility to do it to four people for one year. And again, I have a huge
influence on them the same way my judges had on me. And so I take it very seriously
in terms of the responsibility that I have. And I’m looking for people who
have the talents and ability. And we do the best we can
and assess the character, the personality fit. I don’t want people
with sharp elbows. I’m not looking for that. But also a desire to
do things in the future that involve public service
and making the country a better place and someone who sees– and I can play some
small part in that. Like Nina said, I’m looking
for people different from me. I’ve had more women clerks
than men clerks in my 11 years. I’ve spoken to a lot of– I’ve had a lot of
clerks who have different judicial philosophy
or political background than I had, including
at the moment. And that’s been
part of what I’ve shared Nina’s view on that. Just this year, I have clerks
that span the spectrum from– kind of a pretty wide spectrum. And that’s been
very valuable to me to hear those
different perspectives on some complicated cases we
have, so that’s important. But the overall– I love
the relationships with them. It’s great. And I feel it is a
huge responsibility, and so I take it just
unbelievably seriously. Because I know it’s also an
opportunity from the student end to be on our court. CORNELIA PILLARD: I’d say
one other thing about it. And this is something to think
about if you’re temperamentally more suited to clerk in District
Court or Court of Appeals. I know a lot of people do both. And they really
challenge different parts of your lawyerly skill set. And Robert really
summed it up when he was talking about
the District Judge role versus the Court
of Appeals role. I have, right now, three
clerks out of my four who have clerked
for district court. And sometimes, I
feel like they’re still in the mode of like,
OK, there’s the right answer. Done. And this is not what we do. This is not what we do. It’s all about, can you continue
to sort of keep the skein unraveling until you get down to
the last level you finally can? You really want to get it right. And so I once had
someone actually who interviewed
herself out of a job. I was all but ready to
hire this applicant. And I asked, if you were pressed
to identify a weakness, what would you say it is? And this person said, well, I
think when I come to a decision that I tend to– I’m very efficient,
and I move on. And sometimes maybe I’m
a little too confident in my own decisions. And I thought, that
is not what I need. JOHN MANNING: Remember
so you’ve had your hand up. CORNELIA PILLARD:
Keep your finger down. JOHN MANNING: Hold in. AUDIENCE: Finger down, OK. CORNELIA PILLARD:
No, it’s not working. RICHARD H. FALLON JR: At
the base of it, I think. AUDIENCE: Ah. OK, got it. So thank you. What you have described,
each in your own way, is the life of an appellate
judge, which is very isolated. Judge Kavanaugh, you
talked about a day that consists of reading
briefs and writing opinions and considering a
draft opinion from a colleague. And Judge Pillard, you
talked about experience. And we know many
great legal minds have said the law is greatly
influenced by experience. But you talked about
prior experiences before coming to the bench. And Judge Wilkins,
of course, you were both a district
court judge. A district court judge deals
with jurors and counsel and witnesses and a lot
of interaction there. Appellate judge is
very, very different. And there are
restrictions on what you can do in terms of
joining organizations and that kind of involvement. So not that any of
this startles me, because I’ve always
thought that that would be an issue for appellate judges. But how do you
deal with that kind of intellectual and
philosophical isolation? BRETT KAVANAUGH: The
day I was confirmed, the day President Bush signed
my commission, which was May 30, 2006, at 7:00 AM– not
that you forget the– I went up to the Supreme
Court, and my former boss, Justice Kennedy, swore
me in in his chambers with just my family there. And the Chief Justice
came, and that was it. And then he sat me down
and my family down. He said, you’re going to
go over to your chambers on the DC Circuit, and
they’re going to give you a phone and a computer. And no one is going to
ever call you again. [LAUGHTER] And what he told me at that
moment, he said, you need to– he said, you’re young– at
the time I was, at least– teach. You need to teach. You need to get out and speak. You need to go to
events, bar events. You need to be out
in the community, or you’re going to find
yourself really strained. And he had done that. He’s taught every summer the
whole time he’s been a judge. That’s why I talked
two days after that to, then, Professor Manning– still Professor Manning
but now Dean Manning. And he talked to Dean Kagan
and arranged for teaching. And so I started
teaching soon after that and kept that up, why I
like being at these events. So you have to, I
think, you’ll go– I coach sixth grade basketball. I actually obsess
about that a lot too. So you’ve got to do
things outside of just– or you will kind of lose it
after a certain point, I think. The second thing about
the isolation of the job, I love the clerk relationship. Nina alluded to this– the satisfaction you
have in terms of– or enjoyment, I should say–
the enjoyment of your job is going to depend a
lot on your colleagues. And in our line
of work, you don’t get to pick your colleagues. The President and the
Senate pick your colleagues. So you’re always
holding your breath when you get new colleagues. How’s this going to fit in? And as one of my
colleagues likes to say, one of my older
colleagues, the older you get, the more
like yourself you get, which he did not
mean as a compliment. [LAUGHTER] So I will just say,
it’s luck of the draw. But I’m just going to
say this, because I think it’s important to say. I consider myself
very, very lucky to be on the court I am,
because the cases we get, the responsibility we have. But the colleagues I have are
really tremendous in terms of not just their intellect,
but you can tell from this panel today, their thoughtfulness,
their friendliness, their willingness to work
together, with each other, with me, and me with
them, hopefully. I’m a sinner on
all of this, but I try to do my best when
I can and all the time. And that makes a
huge difference. And I’m lucky. And we disagree on
cases, certainly. We’re not supposed to always
agree, as Nina pointed out. We do disagree. But as Judge Ed Becker on the
Third Circuit liked to say, yeah, you’re
supposed to disagree. But when that case ends,
you say, next case. You don’t let the
past case control how you’re going to
view the next case or ruin relationships
on the court. And I’ll say, since there
are the newer colleagues, I consider myself very
lucky with my newer colleagues on the court and with
the colleagues who were there when I got there,
who welcomed me even when I was young and
writing separately too much. [LAUGHTER] CORNELIA PILLARD: I second
everything that Brett said. One of the things that– I once heard a very wise
lawyer say something as a kind of offhand, as
if everybody knew this, that oh, one of the professional
characteristics of lawyers is that they know how to talk
and disagree about very, very important things about which
people, including we lawyers, feel very passionately
without personalizing. And I thought, yes, that
is one of the things that I think is
extremely important and that is something that
lawyers can personify. It is not something that
lawyers always personify or judges always personify. But just being able to
think about that, that is is not in derogation of the
seriousness of your commitment to something to
nonetheless be decent and appreciate and have
fun with the people who you disagree with. And I just consider that to be
one of the most exciting parts about being on the
court that I’m on is that we have a real
genuine range of different takes on a lot of things and
that we do really work together constructively, deeply, and that
we really do enjoy one another. It’s just I find that to
be really important, really moving, and I’m really
privileged to be part of that. In terms of how do you
stand the isolation? It’s so funny, because
the White House counsel when I was interviewing
said, are you ready for this? This is a really isolated job. And I thought, oh, you
know, I’m a law professor. I teach my classes alone. I write my articles alone. I don’t have any staff. Piece of cake. It’s not going to
be any different. And it is really different. It is really different. You just can’t talk
to people about what you’re thinking about. And when you’re a
law professor, you’re constantly talking
to people about what you’re thinking about. And so the clerks
are really important. But I also think that
people outside the field are really important. I have a group of
friends, several of whom have nothing to do with the
law, and reading outside the law I find to be really helpful. Volunteer work
with people, again, who are really different
to me is something that I feel like
keeps perspective, keeps my feet on the ground. But yeah, it is isolated. And it’s also really
striking how certain people stop calling, because they just
feel like, ah, she’s a judge. I can’t call. And other people, suddenly
you’re their best friend, and you were just an
acquaintance before. So it has an impact
on our gregariousness. And so it is a bit of a– JOHN MANNING: Judge Wilkins
gets the last word here. ROBERT L. WILKINS: Oh. I think that it is hard. And I think I would
go bonkers if I didn’t have some outside interests and
friends who were non-lawyers that I could engage with
and just have an ability to both have some
human interaction but also to be able to put the
job aside for a while, which I think is very important. But I also think that it’s
important to find a way to engage with the
legal community as much as possible outside
of the court setting. I guess it’s the part of
me that’s the realist. I’m very concerned and
try to be cognizant of the real impact of our work. And so it’s hard to really be
on top of that if you’re not out and talking to
people and reading some of the commentary–
not all of it, but some of the commentary
out there about what the courts are doing. Because I think that
we can’t be siloed. I don’t think we can do
our job as effectively as we should if we are siloed. JOHN MANNING: So I
want to take a moment and say thank you to this
very, very distinguished panel of judges. Thank you very much for
the candid and wonderful, interesting conversation. [APPLAUSE]

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