Baseball Crank
Covering the Front and Back Pages of the Newspaper
August 10, 2004
LAW: Easterbrook

I'm a little late to this particular party (what else is new?), but you owe it to yourself to read Howard Bashman's interview with Seventh Circuit Judge Frank Easterbrook in its entirety (and weep that this man does not sit on the Supreme Court). Don't know how I missed this, but I actually didn't know he was the brother of Gregg Easterbrook, the New Republic writer and Tuesday Morning Quarterback and one of the most entertaining politics/sports writers in the business. But which brother is more entertaining is debatable, as Judge Easterbrook has some great lines here. I'd emphasize that you should read the whole thing; here are some excerpts:

*How can you not be impressed by a guy who says, "I read science journals as well as economics journals and law reviews in my spare time"

*Easterbrook catches Bashman at one of his tricks in this feature: "although the interview is captioned '20 Questions for the Appellate Judge,' you propounded more than 40, with multiple interrogatory sentences per paragraph and compound inquiries per sentence. So a two-to-one ratio must be acceptable."

*On judicial legitimacy:

Judges must explain not only why their views are sound but also why on debatable issues only the judges' views count. Unless the Constitution encodes principles that can be applied using the approach of Marbury v. Madison, then the political resolution must prevail. (I expatiate on this in Abstraction and Authority, 59 U. Chi. L. Rev. 349 (1992).) Justices are fond of saying that all power must be checked, but where is the check on the Supreme Court's? It lies in text, logic, and history.

*On oral argument:

Argument is the court's time. The brief is counsel's monologue, argument the dialog. . . If the lawyer is lucky, he will hear the doubts that the judge noted in red ink in the margins while reading the brief; a skillful advocate elicits those from the bench. Far better to learn of the judge's qualms while time remains to give the answer, than to be shocked when the opinion appears.

I use argument to grasp details about the case (such as whether particular arguments were preserved in the district court or what the record shows about some potentially important fact) and test my tentative legal impressions. The latter, especially, means laying out for counsel the difficulties with that side's position and seeing whether counsel has a riposte. If yes, I must go back to the drawing board (which is fairly common); but if the lawyer lacks an answer, or tries to weasel out of meeting the question, then I'm more inclined to think the difficulties insuperable. That's one reason why an oral advocate should never say "I'm coming to that later" (the time is now, when it matters to the judge) or "That's a hypothetical; the facts of this case differ" (the judge knows it is a hypothetical; the goal is to abstract away from the facts and test the legal issue at a more general level). Lawyers who say "just decide this case on its own facts" are asking for a law-free zone, which we don't offer. (I sometimes mutter under my breath: "Whew! Until that reminder, I had been planning to decide this appeal on some other case's facts!")

. . . The best way to prepare is to follow John W. Davis's Rule #1 of appellate advocacy: change places mentally with the court and imagine what a generalist judge would find troubling about your position. Friends who have had nothing to do with the case (other than to read the briefs) can help you by supplying the outsider's perspective. Visits to the court also help. Watching other oral arguments before yours commences introduces you to the court's style. Assistants in the SG's Office regularly watched their colleagues' arguments in the Supreme Court and sometimes attended oral arguments in private litigation. By the time they stood up to argue their own cases, they knew what the process was about, what worked, and what didn't.

*On the importance of jurisdiction:

One of the two rules on my short list is Fed. R. App. P. 28(a)(4), and its parallel Circuit Rule 28(a). These demand vital details about subject-matter jurisdiction and appellate jurisdiction. Determining whether jurisdiction exists should be the first order of business for every federal judge. Without jurisdiction, judges are just pundits. . . .

Last year my clerks gave me a sketch, done by a cartoonist, that captures my attitude: a lawyer is disappearing through a trap door, which I opened by pushing a button on the bench. On his way down (way, way down; the Seventh Circuit's courtroom is on the 27th floor of the Dirksen Courthouse) the lawyer exclaims: "BBUT, YOUR HONOR, JURISDICTION WASN'T RAISED BELOOOOOWWW...!" . . . (The phrase "Your Honor, I wasn't trial counsel so I don't know what’s in the record" also opens the trap door. A voice-activated switch should automate the process, but I can't persuade the General Services Administration to install a trap door. GSA expresses concern about disrupting ongoing trials if an appellate lawyer should pass through district courts on the way to the street.)

*On civility:

Civility is overrated. There is no place for mean or petty conduct (in the courtroom or in depositions, where the problem is worse), but if maintaining a genteel atmosphere means pussy-footing around problems, then the trade is a poor one. Pointed questions, and insistence that they be answered, serve vital ends--especially when time is limited, as it must be for the court to hear oral argument in all counseled appeals. A judge's job is to protect the litigants' rights, not to shelter the feelings of advocates (who are paid for their services).

*On the frequently reversed 28-judge Ninth Circuit:

When I clerked for Judge Campbell, the First Circuit had only three judges and thus always sat en banc. That was too slim; more points of view promote deliberation. Twenty-eight, by contrast, is morbidly obese. . . . Town-meeting size makes coordination difficult and can conduce to town-meeting conduct. It is smaller than the mob that condemned Socrates, but that's not saying much. . . When I was in the SG's Office, we contemplated filing a cert. petition that began: "This is a petition to review a judgment of the United States Court of Appeals for the Seventh Circuit, and there are other reasons to issue the writ." Now that dubious mantle has passed to the Ninth Circuit. A few years ago, a lawyer who propounded some farfetched proposition was asked: "Do you have any authority for that point?" Counsel cited a decision of the Ninth Circuit, and the questioner (not me!) continued: "All very well, but do you have any legal authority?"

*On the judicial appointment process:

I am especially distressed about a recent development in the nomination and confirmation process: holding against nominees the positions taken in litigation. It used to be understood that lawyers serve as advocates and make arguments in the interests of clients. It is not that we trust newly appointed judges to leave their old views behind them; the mind doesn't work that way. But statements in briefs are not the lawyers' "own" views to begin with (when in the SG's Office I filed briefs taking positions that I would not have supported as a judge).

It is bad enough to assume that a scholar who writes an article opposing rent control would automatically think as a judge that rent control is unconstitutional--the subjects are unrelated--but terrible to assume that a lawyer who (say) represents persons accused of committing securities fraud would then favor securities fraud while on the bench. Nonsense. Ex-prosecutors on the bench acquit defendants; former defense lawyers appointed to the bench convict defendants; proponents of public support for religious instruction still apply the Establishment Clause after appointment; and so on. There is a nasty side effect of condemning the lawyer on the client's account: ambitious lawyers will shy away from representing controversial clients. And as almost any cause or client can be depicted as controversial from some perspective... Do we really want this?

*"[T]he bottomless pits in Star Wars [hold a special place in my heart, as they] demonstrate that once civilizations have achieved sufficient technological progress OSHA will wither away."

Posted by Baseball Crank at 8:33 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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