Alaska's Kleinfeld ponders the Ninth Circuit
By Howard J. Bashman
This lengthy interview with U.S. 9th Circuit Court of Appeals Judge Andy Kleinfeld is reprinted with permission. Footnotes are denoted in parentheses. Author Howard Bashman's online "How Appealing" series of appellate judge interviews can be found at http://appellateblog.blogspot.com/
Judge Andrew Kleinfeld joined the Ninth Circuit in September 1991, when he was in his mid-40s. His first stint at judicial service occurred from 1971 to 1974, while he was in his mid- to late-20s, when he served as a part-time U.S. Magistrate in the U.S. District Court for the District of Alaska. In 1986, President Ronald Reagan nominated, and the U.S. Senate confirmed, Judge Kleinfeld to serve as a U.S. District Judge for the District of Alaska. He remained a district judge until he joined the Ninth Circuit in 1991. Judge Kleinfeld attended college at Wesleyan and law school at Harvard. His chambers are based in Fairbanks, Alaska, and the Ninth Circuit has its headquarters in San Francisco.
Questions appear below in italics, and Judge Kleinfeld's responses follow in plain text.
Q: What are your most favorite and least favorite aspects of being a federal appellate judge?
A: The most enjoyable part of the job is studying the excerpts of record and the briefs, and studying the relevant law. I especially enjoy the scholarly research, and the chance to delve into the details of lives, occupations and industries other than my own. The most satisfying part is being able to go home feeling like what I do is worthwhile.
My least favorite aspect of the job is that there is so much volume.
Q: Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.
A: The judge I admire the most is the first Justice Harlan. I admire his independence of mind and the great courage that he had to stand against both his Court and the society of his times to do the right thing in Plessy v. Ferguson.
Q: How did you come to President Reagan's attention in 1986 to fill a brand new judgeship on the U.S. District Court for the District of Alaska and to President Bush's attention in 1991 to fill a vacancy on the Ninth Circuit, and do you have positive, negative, or mixed memories of the confirmation processes that followed those nominations?
A: In 1986, Senator Murkowski took the lead on the nomination. He used a merit selection system. After obtaining expressions of interest from a number of people, he asked the Alaska Bar Association to poll the bar members by region on suitability of those who'd expressed interest. I came in highest on the bar poll in my region of the state. Senator Murkowski sent three names to the White House, as the President then required, and when President Reagan selected me, Senator Stevens, Senator Murkoswki and Representative Young all endorsed my nomination. So I suppose you could say that the way I came to President Reagan's attention in 1986 is that the lawyers in Alaska, in response to Senator Murkowski's decision to consider their views, brought me to his attention through the Senator.
In 1991, Senator Stevens had obtained an agreement with the Executive Branch that Alaska would get the next seat on the Ninth Circuit. After calling me, Senator Stevens put my name forward.
The confirmation process itself is extremely unpleasant. From the time the FBI and ABA investigations make it known that the President has tentatively decided to nominate a person, the prospective nominee dangles in the cold wind while the President's adversaries look for dirt. At least that's how it was when I experienced it. No doubt some good potential nominees decide to avoid the whole process, and the courts lose talent.
Q: In a letter that you submitted in May 1998, you endorsed a division of the Ninth Circuit that would place the States of Alaska, Idaho, Montana, Oregon, and Washington into a new Twelfth Circuit. Do you continue today to view that proposed split as the best possible division, if not what proposed split do you favor today, and please explain the reasons for your answer.
A: I continue to strongly favor a split of the Ninth Circuit. The most important reason why is purely administrative, that the circuit is just too big for effective appellate decision making.
As to the details of how the split is done, I don't think it matters all that much. Placing just about any combination of states in the Twelfth Circuit, and apart from California, would improve the quality of justice in both by making both the Ninth and the new circuit smaller. When the Eighth Circuit was split into the Eighth and Tenth Circuits, and the Fifth Circuit was split into the Fifth and Eleventh Circuits, the people in all of those new circuits benefited from a more coherent and predictable decision-making process.
I agree with the conclusion of the Commission headed by Justice Byron White (and two-thirds of the appellate and district judges that they surveyed) that the Ninth Circuit has far too many judges for an optimally functioning appellate court. Currently, we have 28 seats for active judges on this court, and 46 judges on the court counting those who have taken senior status (almost all senior judges still participate quite substantially).
Our court is much too big for us to read all of each other's decisions and it's too big for us to sit together to rehear a case en banc. There are well over 3,000 combinations of judges, not including senior and visiting judges, so a pair of active judges on the court can go 3 or 4 years without sitting with each other on a regular panel. Our "limited en banc" consists of 11 judges out of 28. If you have a majority of 6 judges in those cases (as we often do), then a "majority" that is less than one-fourth of the whole court purports to be acting for the full court in rehearing our most important and controversial cases.
Q: If the Ninth Circuit is indeed divided, what are the three things about the current Ninth Circuit that you expect you will miss the most, and what three things will you miss the least?
A: The three things I'll miss the most are: 1. My very capable colleagues and friends in whatever states are no longer in my circuit. 2. Working on the diverse and interesting problems that arise out of California. 3. The pleasure of the people and places I regularly get to visit when hearing cases in San Francisco and Pasadena.
The three things I'll miss the least are:
1. Too many cases, with the consequence that a judge just can't read all the slip sheet opinions from the court. As a result, the law becomes somewhat incoherent and unpredictable. I once tried to carry a year's worth of slip sheets up to a podium to give a speech about the Ninth Circuit, but there were so many that the carton broke and the slip sheets fell like snow all around my feet and up to my ankles in a huge pile. That proved my point better than anything I could have said.
2. The rarity with which I get to work on the important legal concerns of my own state, and other states with which Alaskans have more contact and similarity than California.
3. The "crapshoot" aspect of en banc panels drawn randomly from our much larger court.
Q: You are the first former trial court judge to participate in the 20 Questions feature. I have heard some federal appellate judges who formerly served as federal district judges remark that they enjoyed the job of federal district judge more than they enjoy the job of federal appellate judge. How do the two jobs compare in your opinion, and what things if any do you miss about being a district judge?
A: For me, anyway, it's not true that I enjoyed the district judgeship more than the appellate judgeship. They are both great privileges and I quite frequently think how fortunate I am to be doing this work. I like the Circuit Court better, because my own tastes run to reading briefs and records and researching the law, and I didn't get to do as much of that as a district judge. A district judge's work is kind of lonely, because he exercises most of his authority in the courtroom, and does it by himself.
As for how the two jobs compare, being an appellate judge is more like being back in law practice. Your daily work consists in significant part of trying to persuade judges to accept your view of the law. Although I am not writing memos supporting or opposing summary judgment anymore, writing suggestion memos, en banc memos, and to some extent the process of writing opinions is a lot like the part of law practice that isn't conducted on the telephone. Studying and writing about the law, and trying to come up with an analysis of the facts and the law that will satisfy the other two judges on the panel, is a lot like what I did when practicing in front of the Alaska courts.
As for what I miss most about being a trial judge, I liked supervising a case in pretrial, frequently on matters that I understood well and with lawyers on both sides that I knew. I enjoyed being able to adjust the conditions and limitations on discovery and trial in such a way that the case would be resolved fairly, on the merits, with attorney's fees and expenses that were reasonable in relationship to the stakes on both sides. The ability to bring about justice in an individual case, and to recognize how to do that, is often much greater as a trial judge than as an appellate judge. The discretionary decisions of trial judges shape most cases, and it's nice to be able now, as an appellate judge, to understand and appreciate those exercises of discretion.
Q: Some may believe that the Ninth Circuit is unfairly maligned in the popular press, especially when the press reports on the latest U.S. Supreme Court reversal or the latest Ninth Circuit ruling to provoke a public outcry of one sort or another. What are your views on the press coverage that the Ninth Circuit has been receiving, and would you characterize the coverage, generally speaking, as fair or unfair?
A: I have no criticisms of the press coverage of the Ninth Circuit, any more than I have criticisms of press coverage of any major institution. Of course, lay journalists often do not understand technical matters in the law. But I certainly see nothing wrong with critical reporting on a public institution, whether it's a court or not. When we are wrong about something, and we get reversed, there's no reason why it should be our little secret.
Q: While today you don't have to travel hundreds of miles by dogsled to hear cases as your predecessor judges based in Alaska once did, you probably now have the most grueling commute of any federal appellate judge to arrive at the locations where your court regularly hears oral arguments. When you weigh the substantial costs of oral argument against its benefits, do you find oral argument to be over-valued? And do you have (or if not would you favor) the option of participating in oral argument via videoconference, which even the rather geographically compact U.S. Court of Appeals for the Third Circuit uses when its judges can't justify a trip to Philadelphia?
A: Oral argument is worth the trouble.
We have occasionally had oral arguments by conference call, typically on a comeback case that we are not hearing during a regular argument week (it would not be practical for all three judges to travel just for one case). In my experience, it works reasonably well, though not quite as well as live argument. Videoconferencing would be a little better. I didn't know about the videoconference oral argument in the Third Circuit. Thanks for telling me.
Despite its inconvenience, I find oral argument extremely valuable and worth the very considerable effort it takes for me to get there. The effort is no joke: it's 8 and one half hours to San Francisco and 10 and a half to Pasadena when everything goes right, and as long as 22 hours when it doesn't (which is often).
The value of oral argument differs for different judges, because judges have different learning styles. Some prefer to learn things and develop their opinions as they read, others as they listen and talk. I'm in the "listen and talk" camp. On a case where some aspect is troubling or difficult (and that's many of the orally argued cases), I just don't make up my mind until I have to; and I don't have to, even tentatively, until we confer after oral argument. There is no point to making up my mind sooner, because I learn a lot from the dialogue with the lawyers. The value comes not just from answers to my own questions, but from the loosely structured back-and-forth when a three-judge panel conducts oral argument, and the dialogue that the other two judges have with the lawyers.
Even when I come in with a fairly well-set, tentative view, the lawyers often educate me on matters I did not fully understand from the briefs or the excerpts. Ordinarily, a lawyer knows more about his or her own case than the judges can possibly know, and they educate judges. Sometimes we don't really understand the case from the briefs, particularly if they are not that well written, and the issues become clear at the oral argument.
Q: After growing up in Brooklyn, New York and attending college and law school on the east coast, you traveled to Fairbanks, Alaska to take a judicial clerkship with Justice Jay A. Rabinowitz of the Supreme Court of Alaska. What strategy did you employ in seeking a judicial clerkship, how did you come to accept this one, and what were the reasons why you decided to make your home in Alaska following your clerkship's conclusion?
A: Although I was born in the Bronx (not Brooklyn), I mostly grew up in the Washington, D.C. suburbs. I had thoughts about a political career and Alaska looked like a good place for it, but I abandoned those thoughts after discovering that law was much more interesting for me than politics. I had no strategy for seeking a clerkship. I chose to apply to Jay Rabinowitz after reading a large number of Alaska Supreme Court decisions and deciding that of the three justices who were then on the court, he was the one with whom I was most impressed and with whom I resonated the most. I was most impressed with some dissents Justice Rabinowitz wrote in a case that went up and down to the U.S. Supreme Court, because of his lucid and effective defense of freedom of speech in the face of a majority that got the answer wrong.(1)
The only clerkship I applied for was with Justice Rabinowitz. While finishing it, I thought about going back to Boston where I had an offer lined up at a very fine firm I had clerked for after my second year, Rackemann, Sawyer & Brewster. Before I went back I decided to hang out my shingle in Fairbanks to see what it would be like. Back then, Fairbanks was just a small frontier town. What happened was that from the start I was making more money and having more fun then I expected to have in Boston, so I never went back. And the camaraderie of the bar in Fairbanks was delightful (and still is - I have lunch with the Tanana Valley Bar Association every Friday unless I'm out of town).
Q: What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven't been. Also, are you adhering to the "Law Clerk Hiring Plan" that supposedly has the overwhelming support of federal appellate judges, and why or why not?
A: When looking at potential clerkship applicants, I look first for a very high level of intelligence. I prefer that the person have had a good undergraduate education, so that the law clerk will be well-rounded in history, economics, political science, and literature, with some general scientific and mathematical understanding. It is not at all unusual for us to have to think together about Reconstruction politics or statistical significance as well as legal doctrine.
I don't limit myself to hiring applicants from the top law schools. Some highly capable people don't go to the top law schools because they can avoid incurring a six figure debt by accepting a good financial package from a law school a little further down on the U.S. News & World Report's list. And some people just have more talent at the law than they did at their undergraduate subjects and blossom in law school. I prefer to give a chance to a broader range of people, and it gives me the benefit of a broader market.
My clerks and I spend a lot of time together, and we have daily conferences where they have to present cases to me orally. We also have lunch together frequently. So I look for clerkship applicants who speak clearly and concisely about complex matters, and who I will enjoy talking with. I like law clerks who share my view that judges should perform an intellectually honest analysis of the law and apply it to the facts of the particular case, rather than imposing their policy preferences. Resume entries such as participation in the Federalist Society or with organizations like the Institute for Justice also pique my interest. And I look for nice people, so that through an entire year working closely together in a small office at a remote subarctic outpost we will continue to like each other and enjoy each other's company.
I don't follow the (federal) law clerk hiring plan, because it is impractical for Alaska. I hire before, during, and after the officially stated times. As a practical matter, I now expect to do much of my hiring during the summer following second year and during the fall of third year. Applicants applying in advance of the law clerk hiring plan shouldn't wait on recommendations from their professors before sending applications.
The reason I don't follow the plan is that it would be too great an imposition on an applicant to make them travel to Fairbanks, Alaska for an interview, so I squeeze in a very few interviews when I am Outside on calendars. Often the interview is a long dinner at a good restaurant. The timing of my calendar trips and the sparseness of interview slots requires that I spread them out more than the hiring plan allows for. Also, I make better judgments on whom to hire when I can spread out the decisions and hire the law clerks one at a time.
Q: In researching these 20 questions for you, I've enjoyed learning about Fairbanks, Alaska (which is now celebrating its centennial) via this online visitors' site and from the Web site of the local newspaper, The Fairbanks Daily News-Miner. Do the clerkship candidates who apply to work for you generally view the opportunity to live in Fairbanks, Alaska for a year as a positive or negative feature of the job, and what do you tell candidates from the Lower 48 States who are not sure whether Fairbanks is the place for them about what it's like to visit or live there?
A: Among those who apply, Fairbanks seems to be a positive draw. Few other clerkships of this caliber give the clerks a chance to go to the Chatanika Outhouse Races, or walk from chambers onto the frozen Chena River to see dogs finishing the 1,000-mile Yukon Quest dog sled race, and get rewarded with big slabs of raw steak. If applicants are not sure if Fairbanks is the place for them, I encourage them to read and think about it, and not to clerk for me if they would rather be somewhere else, because there are a lot of people who think it would be a real treat to be in Fairbanks, Alaska.
Q: The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is giving serious consideration to a rule that would allow the citation of unpublished, non-precedential decisions in briefs filed in federal appellate courts. The Ninth Circuit appears to stand alone in actively opposing that rule change. Where do you personally stand on this issue, and do you think that the Ninth Circuit's opposition to the possible rule change stems from the large size of the court and its inability to ensure that its non-precedential decisions are adequately considered?
A: I stand in the very uncomfortable position of having a leg on each side of the fence on this issue. On the one hand, we owe it to people to treat like cases alike and, in that sense, all cases ought to be precedential. On the other hand, we simply cannot supervise our own court's output adequately for publication because of the size of the court. If we did publish all our decisions, it would not accomplish the purposes of achieving consistency, because we could not read them all. Universal publication would make the law less predictable, because there would be too many decisions going too many ways, and neither the judges nor the lawyers could keep up with them and develop a coherent body of law.
A very substantial percentage of our unpublished decisions are written by staff attorneys at our San Francisco headquarters. They are reviewed by the judges in "motions and screening panels," in which we decide an enormous number of cases in a few days, based on oral presentations by the staff attorneys and such examination of the briefs, record, and unpublished dispositions as we feel we can do in a very few minutes. Within chambers as well, our unpublished dispositions are a way for us to cope with excessive volume by avoiding the very time consuming process of writing an opinion in what appear to be easy cases. The care one takes with the language in a published opinion is extremely time consuming and requires many drafts. The unpublished dispositions are necessarily not as careful. It is not at all unusual for them to have sentences that, taken out of the context of the particular case, would give a mistaken view of the law.
My personal preference would be to change the name from "memorandum" and "unpublished disposition" to "summary disposition," and to make the dispositions so summary in form that publication and citation could do no harm. Summary form is in fact what our circuit's general orders call for, although some judges issue longer dispositions. There's really no such thing as an unpublished disposition, since they are all published electronically and in West's Federal Appendix. Calling them "summary" would encourage the writers to make them summary, with fewer articulated errors that spread to other cases.
Q: Is the salary paid to federal appellate judges too low, and if your answer is "yes," what should the salary be or, perhaps less controversially, how would one determine what the proper salary should be?
A: For me, salary doesn't matter. I saved enough money while in private practice to provide for my wife, to send my three children through college and, if they want, graduate or professional school, and to continue to live well despite the judicial salary. If I die broke, that's just a good estate tax avoidance scheme. This is easy for me to say because housing in Fairbanks is a lot cheaper than in Seattle, San Francisco, or Los Angeles.
I do think the salary should be raised. Prestige in our society tends to be linked with salary. As the salary of judges falls compared with lawyers, law professors, law school deans, university presidents, and others in conspicuous positions, it affects our ability to draw the most accomplished and capable lawyers into the federal judiciary. A lot of lawyers can't afford to be judges.
Also, in the long run, if judges are paid more like clerks than like highly successful lawyers, then people are more likely to treat their decisions as being more like those of clerks, than those of highly respected officials in our government. I think there is a tendency in this direction in the Continental system. Most of our compliance with the law is voluntary and based on respect for the law, so this would be an unhealthy development.
As for how high the salary should be, it seems appropriate to draw comparisons with the relevant market, such as law firm partners and law school deans. It's ridiculous that our law clerks make more than their judges within a couple of years.
Q: You were the author of a decision which held that a jury's award of $5 billion in punitive damages arising out of the Exxon Valdez oil spill against the oil company and the ship's pilot was constitutionally excessive. I imagine that like most federal appellate judges, you generally labor in anonymity. Did you receive more feedback than usual from other Alaska residents following your ruling in that case, and was it mostly positive, mostly negative, or evenly divided?
A: Anonymity is great. I knew when I was writing the decision in the Exxon Valdez case that it would be very unpopular in Alaska, and it was. There were some very intense feelings, though the most intense feelings were in South Central Alaska, not in the Interior where I live. Nevertheless, life tenure and anonymity are just great when you have to make a decision that you know people won't like.
Q: Of the many opinions that you have written since joining the Ninth Circuit in 1991, what single opinion -- unanimous, majority, concurring, dissenting, or other -- do you find to be the most memorable?
A: An especially important opinion for me was a short dissent I wrote in our court's "right to die" case, Compassion in Dying, which was later reversed by the Supreme Court. In my view, liberty and democracy are the two most important aspects of our form of government, and the Constitution sets up what the boundaries are between majoritarian control over individual choices and individual protection from majoritarian governance. There is an unfortunate tendency among people who don't think about it too deeply to think that if something is very important, then it must be a matter of constitutional law. That implies that if something is very important, power is transferred from the majoritarian institutions to the courts. "The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary." Compassion in Dying v. State of Washington, 79 F.3d 790, 858 (9th Cir. 1996).
I have also been particularly interested in working out the application to changing times of our unchanging constitutional protection of freedom of speech and freedom of religion, as in Finley v. National Endowment for the Arts, 100 F.3d 671 (9th Cir. 1996), K.D.M. v. Reedsport School District, 196 F.3d 1046 (9th Cir. 1999), Ex rel Lavine, 279 F.3d 719 (9th Cir. 2002), and others. Another case of considerable interest involved protecting families from unconstitutional searches and seizures by social workers as well as by police. Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999).
It's also hard to beat relatively trivial cases that gave me the opportunity to plant in the law procedural determinations that increase fairness and reduce arbitrariness. For example, I took a lot of satisfaction in the holding in Carmen v. San Francisco Unified School Dist., 237 F.3d 1026 (9th Cir. 2001), that in order to prevent a summary judgment, a respondent has to include the evidence or a reference to it in the opposition papers, instead of rescuing the case on appeal with some document buried hundreds of pages earlier in the file that neither the judge nor the movant were alerted to.
Q: Public outcry in reaction to judicial decisions is no longer a seldom-seen occurrence. Two examples are the annual protests that accompany the anniversary of the U.S. Supreme Court's ruling that recognized a constitutional right to abortion and the protests that followed the Ninth Circuit's recent Pledge of Allegiance ruling written by Senior Circuit Judge Alfred T. Goodwin, whose decision to take senior status opened up the Ninth Circuit seat that you now hold. What weight, if any, should an appellate court judge give to the general public's actual or expected reaction to a ruling under consideration or reconsideration?
A: The value of having life tenure is that we can reject the general public's expected reaction when the law requires rejection, instead of following public sentiment as we would usually have to do were we elected legislators rather than judges. But that doesn't mean that public reaction, both actual and expected, should be ignored. When the law leads me to a conclusion that I know would cause public concern or outcry (if the reporters picked it up, which they usually don't), then I check my work carefully. Of course, I check my work carefully anyway, but I would have to say I check it more carefully to see whether the law really compels the conclusion, if I know that most laypeople would think that the conclusion was idiotic. When most people think something, it's often right — but not always. If the law compels a result, that's the way it is, and being able to reach that result without being beholden to public opinion is what life tenure is good for. Nevertheless, I do not think judges ought to affect disdain for public opinion.
Q: How do you define the term "judicial activism," and is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule?
A: I don't use the term "judicial activism" myself, because I am uncomfortable with the imprecision of its definition.
We are bound to determine whether the law compels a result, whether it is consistent with the judges' preferences or not, and when the law does compel a result, a judge is obligated to apply it. For example, if someone is in litigation against a union and you're reviewing a summary judgment, you don't decide the case based on being pro-union or anti-union. You decide whether the summary judgment papers establish that there were no genuine issues of material fact and that the appellee was entitled to judgment as a matter of law.
As judges, we are just as bound by the law as everybody else in society. The people are entitled, except where they are barred by constitutional limitations, to make the law through democratic processes, and they are entitled to have us follow it. As I wrote in Compassion in Dying, this is a democratic republic, and the people are entitled to have their elected legislators and executives, not us, make policy judgments. If we don't like the laws and regulations, we can vote for the other guy, just like other citizens. To my mind, the judge who simply decides upon the outcome he or she prefers rather than deciding upon an intellectually honest application of the law, is himself or herself an outlaw. "The courts must declare the sense of the law; and if they should be disposed to exercise Will instead of Judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body." The Federalist No. 78 (Alexander Hamilton). Also, there just isn't the satisfaction of a craft performed well, if we substitute our policy preferences for the law. Judging like that is just an exercise in despotism, rather than the intriguing, difficult and satisfying craft that an honest judge practices.
Q: I see that in your published opinions, you follow the method of legal writing that recommends putting all citations to authority in the footnotes rather than in the body of the text. What reasons can you offer to other federal appellate judges for why they should join you in that practice, and would you recommend that appellate advocates who file briefs in the Ninth Circuit follow your approach or use the more common approach, whereby citations to authority often appear in the text rather than exclusively in footnotes?
A: I've been putting my citations in footnotes because I was persuaded by Brian Garner's argument that this makes the opinions more readable and leads to clearer reasoning and writing. Footnote citations require judgment, though. Often it's important for the reader to know the name of the case you are talking about, or what court it came out of, or what date it came down, without having to look at the footnote, and it's important to put these things in the text when they're necessary to the reader. The idea of using footnotes is that no one has to read them unless they are writing something, a decision or a brief, and need to check the cites. Because my process can't be mechanical and involves a lot of writing judgments, it requires more work. It's possible that I will drop the practice because it has not spread.
The real attraction of it to me is not just a matter of writing style. There is a deeper underlying philosophy. I require all my law clerks to read George Orwell's essay, Politics and the English Language.(2) Orwell describes bureaucratic and academic writing as "a mass of Latin words [that] falls upon the facts like soft snow, blurring the outlines and covering up all the details." To my mind plain language and clear writing are essential to clear thinking and are a protection against judicial error and government abuse. A layperson should be able to pick up one of my opinions and understand it. It's important that people be able to know the justifications for the decisions judges make in the exercise of their power. That's the real reason why I use Bryan Garner's footnote style, and why I write in such a plain-spoken way when I can take the time to reduce my less easily understood early drafts to plain English.
As for what the briefs do, I don't have a recommendation. You never want to stand out too much for your style or form in a brief, because you don't want to distract from the substance of what you are saying or risk annoying a judge who is reading it. Because of the volume of briefs, being clear and succinct is most important.
Q: In the early 1990s, while you were still serving as a federal district judge, you sat by designation of the Secretary of the Interior as an Acting Associate Justice on the High Court of American Samoa, Appellate Division. How did that assignment happen to come your way, and what memories do you have of serving on that relatively obscure court?
A: The High Court of American Samoa gets its Acting Associate Justices for appeal by asking them to serve as volunteers and getting the Secretary of the Interior to appoint them. The judges try to pick out visitors who they think will do a good job and will appreciate the opportunity. I had a friend who was one of the regular resident justices on the court, and he called me. It was among the especially pleasurable experiences I've had as a judge.
The cases were exotic and required me to learn a lot of interesting law about how one gets to be a chief or a "talking chief" (like a lawyer) in Samoan society, and how the complexities of communal land tenure there distinguish it from the individual land tenure system we have in our common law system. I had the satisfaction of writing the decision in one land dispute that had gone on for the better part of a century, a Bleak House of the South Pacific.(3) And I like the other judges and lawyers in Samoa. It was fun sitting with judges who wear a necklace, lavalava (a kind of skirt worn by men in Tonga and in American and Western Samoa), and sandals on Fridays, the traditional dress days in court. I bought a lavalava myself and wore it to the luau that the Governor gave for the court.
Q: What do you do for enjoyment and/or relaxation in your spare time? And do any special obligations accompany the distinction of being the northernmost federal appellate judge in the United States?
A: If you drive north out of Fairbanks for a half hour, you are in some of the most beautiful wilderness on the planet. I enjoy that a lot, as well as puttering around, photography, and teaching myself new things like assembly language programming and Photoshop. I especially enjoy having lunch every Friday with our local bar association, as I have for the last 34 years. I enjoy sitting in my chair in my log house in the hills, reading, listening to music, and looking out my window at the woods, the valley, the Alaska Range and Mount McKinley a couple of hundred miles away. As for special obligations arising from being the northernmost federal appellate judge in the United States, I feel a special obligation to release my staff from work and encourage them to walk outside to see the North American Championship dog mushing race that starts right outside my chambers.
Howard J. Bashman chairs the Appellate Group at Buchanan Ingersoll, P.C., is co-chair of the Appellate Courts Committee of the Philadelphia Bar Association, and writes a monthly appellate column for The Legal Intelligencer. His appellate Web log, "How Appealing," can be accessed at http//appellateblog.blogspot.com/
1. Watts v. Seward School Board, 454 P.2d 732 (Alaska 1969), cert. denied, 397 U.S. 1071 (1970); Watts v. Seward School Board, 421 P.2d 586 (Alaska 1966), reh'g denied, 423 P.2d 678 (Alaska 1967), vacated, 391 U.S. 592 (1968).
2. Available at http://www.resort.com/~prime8/Orwell/patee.html.
3. Tavete v. Laisene, 19 Am. Samoa 2d 40 (1991).