Posted 9:40 AM by Howard Bashman

20 Questions for Circuit Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit: "How Appealing" is delighted that Circuit Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit has agreed to participate in this web log’s monthly feature, "20 Questions for the Appellate Judge."

Judge Edwards was born in New York City in 1940. He attended undergraduate school at the Cornell University School of Industrial and Labor Relations and then attended the University of Michigan Law School.

He entered the practice of law in 1965 in Chicago at the law firm of Seyfarth, Shaw, Fairweather, and Geraldson. Thereafter, he served as a tenured member of the faculties at the University of Michigan Law School, where he taught from 1970 to 1975 and 1977 to 1980, and at Harvard Law School, where he taught from 1975 to 1977. He also taught at the Harvard Institute for Educational Management between 1976 and 1982.

Edwards served as a member and then Chairman of the Board of Directors of Amtrak from 1978 to 1980, and also served as a neutral labor arbitrator under a number of major collective bargaining agreements during the 1970s. Judge Edwards has co-authored four books and published scores of law review articles on labor law, higher education law, federal courts, legal education, professionalism, and judicial administration.

In December 1979, President Jimmy Carter nominated Edwards to fill a vacancy on the U.S. Court of Appeals for the D.C. Circuit. A little over two months later, Edwards received Senate confirmation. From 1994 to 2001, he served as the D.C. Circuit's Chief Judge. During his time on the court, Judge Edwards has taught law at Harvard, Michigan, Duke, Pennsylvania, Georgetown, and, most recently, NYU Law School.

Judge Edwards's chambers are located in Washington, DC, which is where the D.C. Circuit has its headquarters.

Questions appear below in italics, and Judge Edwards's responses follow in plain text.

1. Some have called the U.S. Court of Appeals for the D.C. Circuit "the second most important court" in the Nation. Do you agree or disagree that the D.C. Circuit is the second most important court in the United States, and please provide the reasons for your answer.

2. In September 2002, the Judiciary Committee of the U.S. Senate held a hearing titled "The DC Circuit: The Importance of Balance on the Nation's Second Highest Court." The thesis behind the title of the hearing seemed to be that it is important for the D.C. Circuit to have an equal number of conservative and liberal judges and an equal number of Republican and Democratic appointees. In your view, as someone who has served on the D.C. Circuit for nearly twenty-five years, is such balance indeed important to the proper functioning of the court on which you serve? Also, has the D.C. Circuit always reflected such a balance during your time as a judge on that court, and if not did the quality of the court's rulings suffer when such a balance was lacking?

3. In 1978, the number of authorized active judgeships on the D.C. Circuit increased from nine to eleven, and in 1984 that number increased from eleven to twelve. The court currently has nine active judges in service. One of your colleagues on the court was quoted as saying, when President Clinton was in office, that the D.C. Circuit needs only ten active judges to complete its work. Is it true, at the present time, that the D.C. Circuit needs only ten active judges to complete its work? And have the longstanding active judgeship vacancies that have existed during your time on the court had any impact on the court's ability to perform its work well and in a timely manner?

4. Three judges who joined the D.C. Circuit after you did -- Ruth Bader Ginsburg, Antonin Scalia, and Clarence Thomas -- have gone on to serve on the U.S. Supreme Court, and two others who joined the D.C. Circuit after you -- Robert H. Bork and Kenneth W. Starr -- have also become quite well-known among the general public. Just months from now you will celebrate a quarter-century of service on the D.C. Circuit. When you look back at your time on that court and the judicial colleagues with whom you have served, how has the D.C. Circuit changed over that period, and what do you remember most fondly and least fondly about your time on the court.

5. What are your most favorite and least favorite aspects of being a federal appellate judge?

6. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

7. How did you come to President Jimmy Carter's attention as a potential nominee to serve on the U.S. Court of Appeals for the D.C. Circuit?

8. Does the current tenor of the judicial confirmation process cause you any concern as a sitting federal appellate judge, and what if anything realistically can be done to improve the nomination and confirmation process? Also, in determining whether to allow confirmation votes on nominees to your court, some in the U.S. Senate have sought to determine the nominees' personal and political views about controversial issues that sometimes come before the courts. I understand you to have observed that the D.C. Circuit's high level of collegiality serves to significantly reduce if not eliminate the impact of an individual judge's ideology on the results the court reaches. Please explain further.

9. You are one of the co-chairs of the Ad Hoc Committee on Law Clerk Hiring, which is the group that has promulgated the federal Law Clerk Hiring Plan. Many students now in law school may be unfamiliar with the judicial law clerk hiring procedures that existed before the Plan took effect. Please explain what you view as the problems with the former system of law clerk hiring, the major changes the Plan sought to implement, and whether you think that the Plan is working as it should?

10. Other efforts to reform the process through which judicial law clerks are hired had previously failed. Why has the current plan succeeded unlike those previous efforts, do you expect the success to persist, are you disappointed that some federal appellate judges openly refuse to abide by the Plan, and why is it proper for the federal appellate judges to abide by a hiring cartel that would probably be illegal if entered into by highly-selective employers in the private sector?

11. In reading about your background, I see that your grandfather was an attorney and that your admiration for him played a large role in your decision to become a lawyer yourself. One of your former colleagues on the court, Clarence Thomas, has spoken often about the role his grandfather played in his life and the obstacles he faced after graduating from one of the Nation's finest law schools. Please comment further about the role your grandfather played in your life and also about whether you encountered any difficulties in securing a job that was to your liking following graduation from law school.

12. In 1992, you published a law review article titled "The Growing Disjunction Between Legal Education and the Legal Profession." What is the problem you perceive, does it still exist today, and if so what if anything can be done to address it?

13. On January 1, 2002, the D.C. Circuit eliminated from that point forward the concept of non-precedential rulings. Thereafter, certain opinions would be identified as for-publication and others not-for-publication, but all opinions issued on or after that date would bind the court as precedent. Why did the D.C. Circuit decide to adopt that rule change? Has the new system altered the amount of time you spend preparing "unpublished" opinions. Also, do you favor or oppose the proposed amendment to the Federal Rule of Appellate Procedure that would preclude federal appellate courts nationwide from prohibiting citation to unpublished opinions, and why?

14. You joined the D.C. Circuit at the age of 39, and today that doesn't even entitle you to the distinction of being the youngest person ever to join that court. At the time, did you view yourself as too young for the job? Today, should a nominee who is 39 and has experience similar to what you had when you joined the court be viewed as an appropriate candidate for confirmation to your court?

15. What is your view on whether the Ninth Circuit -- which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges -- should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

16. What three suggestions would you offer to attorneys concerning how to improve the quality of their appellate briefs?

17. Similarly, with respect to oral argument, what suggestions can you offer that might help a good appellate advocate become even better?

18. You have a reputation of being particularly tough on advocates who appear before you at oral argument. How would you describe your style of questioning, and what do you seek to accomplish by it?

19. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

20. What do you do for enjoyment and/or relaxation in your spare time?

Posted 1:23 PM by Howard Bashman

FOR IMMEDIATE RELEASE

PRESS RELEASE OF DISTRICT JUDGE
ALFRED M. WOLIN IN RESPONSE TO
THE THIRD CIRCUIT'S OPINION IN
IN RE KENSINGTON INT'L et alia

May 18, 2004
A panel of the Third Circuit Court of Appeals has decided by a two-to-one vote that my joint administration of three major chapter 11 asbestos cases should be terminated. These cases were assigned to me by former Chief Judge of the Third Circuit Court of Appeals Edward Becker. My responsibility was to take an intractable litigation problem cloaked with a sense of urgency and to dispose of it with dispatch.

The Court of Appeals, after a full examination of the record has found that I did nothing wrong, unethical, or biased. Moreover, their review has not revealed the slightest hint of any actual bias or partisanship by me. On the contrary, they found that throughout my stewardship over these asbestos cases, I exhibited all of the judicial qualities, ethical conduct and characteristics emblematic of the most experienced, competent and distinguished Article III jurist.

These cases presented diverse issues from a management point of view and it was readily apparent that a single method of case management would be unworkable. Moreover, it was recognized by all concerned that in order to resolve these cases outside the tort system an innovative approach to case management would have to be adopted. The case management methodology implemented by me focused on the gathering of information from a myriad of sources in order to develop a plan of case management consistent with the needs of each individual case. In doing so I abandoned strict adherence to formulaic principles that the Court of Appeals now finds unacceptable, notwithstanding the fact that the abandonment of these well-known principles remained unchallenged for approximately twenty-two months. It is unnecessary to recount all the issues that were presented to the Third Circuit Court of Appeals over a protracted period of six months other than to remark that the litigation was spirited, costly, and the procedural path it traveled was unorthodox if not bizarre.

The Court of Appeals gave lip service approval to the concept of experts employed to advise a district judge, but held that such confidential advice necessarily crosses the line into extra-judicial or ex parte knowledge. It is unclear how expert advisors are to be used, if at all, following the Court of Appeals' opinion in this case. The dissenting opinion criticized the majority for excusing the delay of almost two years before an objection was filed to my management of these complex cases. The majority refused to recognize the significance of the fact that attorneys representing committees of creditors and indeed the entire asbestos bar knew long ago of the supposed conflicts of my advisors.

The Court of Appeals' focus on complete transparency and actual notice to the exclusion of other considerations is an unfortunate development in the jurisprudence of complex litigation. These principles were developed in simpler times and for cases with but a few parties. Here, where the parties number in the hundreds of thousands, the decision in this case was profoundly impractical. I am convinced that it will work to the detriment of legitimate creditors – injured persons, commercial creditors, and debtors – willing to play by the rules and avoid the scorched earth tactics of a few, distressed-debt traders. The trust the judiciary has earned over centuries of honorable service is not wasted by the case management techniques I put in place. On the contrary, that trust is put to its highest use to solve one of our society's most difficult and intractable problems.

Nevertheless, I accept the appellate court's decision, not because I agree with it, but because, from a pragmatic point of view, I recognize that this type of internecine and peripheral litigation is counter-productive in the resolution of these important chapter 11 cases. Each and every day approximately 15 claimants exposed to asbestos fibers die. Further delay in the processing of their claims is intolerable. The stark reality of this statistic requires this Court to stand aside and permit these cases to be reassigned to another judicial officer without delay, and without recrimination.

Posted 10:15 AM by Howard Bashman

Legal Affairs Welcomes "How Appealing" to its Website;
Howard Bashman's Weblog is Premier Portal to Legal News
NEW HAVEN, Conn., April 20, 2004 -- Legal Affairs is pleased to announce that its website is the new host of "How Appealing," Howard Bashman’s popular legal weblog. The site can now be visited at legalaffairs.org/howappealing.

"How Appealing," which offers links to legal news and information about the world of appellate law, is considered one of the best legal blogs in the country. Bashman is a nationally known appellate lawyer who appears regularly before the U.S. Court of Appeals for the Third Circuit and Pennsylvania's state appellate courts. He writes a monthly column for The Legal Intelligencer and his essays about the law have appeared in The Los Angeles Times and Slate. Like Legal Affairs, "How Appealing" is celebrating its second anniversary in May.

"We're thrilled to be partnering with Howard Bashman to bring 'How Appealing' to Legal Affairs' readers, as well as to the many lawyers, judges, law students, journalists, and others who are already loyal fans of the blog," said Lincoln Caplan, the editor and president of Legal Affairs. "The magazine is pleased that Howard has decided to join us as a contributing editor and to produce on our website the wonderful, high-quality blog that he's known for."

Legal Affairs is an independent non-profit publication that publishes bi-monthly. It is the winner of the National Headliner Award for Magazine Feature Writing and was named the silver medal winner of an Ozzie Award for Best Design of a New Magazine. It has been favorably reviewed by publications such as The Nation, The Weekly Standard, The Boston Globe, the New York Daily News, The Washington Post, The Chronicle of Higher Education, C-SPAN, and CNN. Nat Hentoff, the legal columnist for The Village Voice, said, "Legal Affairs is now by far the best legal magazine in the business."

For more information, visit Legal Affairs' website at www.legalaffairs.org or contact Amanda Harvey at 203-789-1510, x14.

###

Posted 12:00 AM by Howard Bashman

Disclaimer.

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These terms shall be governed by and construed in accordance with the laws of the State of Pennsylvania or Connecticut. You agree that any action at law or in equity arising out of or relating to these terms shall be filed only in the state or federal courts located in Philadelphia County, Pennsylvania or New Haven County, Connecticut, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.

Posted 4:30 PM by Howard Bashman

VIEW OF COMMISSIONER TACHA JOINED BY COMMISSIONERS GOLDSMITH AND CARNES, DISSENTING, IN PART, FROM AMENDMENT FIVE AND RELATED LEGISLATIVE RECOMMENDATION
We respectfully dissent and write separately to express our dismay that this question has been publicly framed by some as a racial issue. In our view, the sentencing issue turns on trying to craft a race-neutral sentencing policy that appropriately accounts for the societal harms associated with a particular crime. We deplore the socioeconomic factors associated with crack cocaine (as opposed to powder) that lead to different marketing patterns, different street-level dosages and prices, and the exploitation of vulnerable populations. We cannot, however, ignore the harms that are peculiarly associated with crack. The market, the dosages, the prices, and the means of distribution are elements of the drug's harm, and they cannot be discounted by simply saying that crack and powder cocaine are the same substance pharmacologically.

We joined in the Commission's Special Report to Congress: Cocaine and Federal Sentencing Policy, in which the Commission concluded, "the 100-to-1 quantity ratio that presently drives sentencing policy for cocaine trafficking offenses should be re-examined and revised."[FN.1] We write separately on Amendment Five and the proposed legislation to equalize statutory mandatory minimum penalties for crack and powder cocaine offenses, however, because we cannot endorse the proposed one-to-one quantity ratio for distribution offenses.[FN.2] Sentencing crack distribution offenses identically to powder cocaine distribution offenses fails to account for the increased harms associated with crack. Moreover, adjusting crack distribution sentences downward to parallel powder cocaine sentences provides for penalties that are, in our opinion, often too low.

FN.1: U.S. Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 197 (Feb. 1995) [hereinafter Special Report].

FN.2: The reasons for retaining differential penalties for crack and powder cocaine distribution offenses, see infra, do not apply to possession offenses. Thus, we fully endorse equalization of sentences for crack and powder cocaine possession offenses.

In the Special Report, the Commission concluded that an inference can be drawn that "crack cocaine poses greater harms to society than does powder cocaine."[FN.3] At that time, the Commission stated that it may be possible to develop specific guideline enhancements to account for some or all of the increased harms associated with crack.[FN.4] The Commission also indicated, however, that "[i]f guideline enhancements cannot sufficiently account for harms associated with crack, the guidelines can provide an increased ratio through the base offense level."[FN.5]

FN.3: Special Report, supra note 1, at 195.

FN.4: Id. at 198-200.

FN.5: Id. at xv.

The Commission has now completed its self-appointed task of developing guideline enhancements. While the Commission has proposed new enhancements that take into account the use of a firearm and a defendant's use of a juvenile in the offense, in addition to bodily injury departure language, the Commission has been unable to account fully for the increased harmfulness of crack through guideline enhancements. Thus, consistent with the Special Report, a differential quantity ratio is required.

In the Special Report, the Commission identified several dangers associated to a greater degree with crack than with powder cocaine. Most importantly, the Commission found that, based upon common route of administration, crack is more addictive than powder cocaine.[FN.6] Because smoking crack produces more intense physiological and psychotropic effects than snorting powder cocaine, the Commission found that the crack user is more vulnerable to binging and dependency than persons who snort powder cocaine.[FN.7] Moreover, although powder cocaine, if injected, is equally as addictive as crack, injection of powder cocaine does not pose the same danger to society as does crack. Indeed, over three times as many people smoke crack than inject powder cocaine.[FN.8] This statistic confirms the common sense observation that a substance that can be smoked will always be inherently more appealing, particularly to first time users, than one which must be injected through a vein with a hypodermic needle.

FN.6: Id. at vi, 24-28.

FN.7: Id. at 28, 195.

FN.8: Id. at vi.

Addictiveness, however, is but one of the harms associated to a greater degree with crack than with powder cocaine. Another significant danger of crack is that, because of its ease of manufacture and relatively low cost-per-dose, crack is more readily marketable than powder cocaine to a greater segment of the population.[FN.9] That crack can be administered easily and sold cheaply has made it particularly appealing and accessible to the most vulnerable members of our society--i.e., the poor and the young.[FN.10] Indeed, 12- to 17-year-olds choose crack over powder cocaine more than any other age group.[FN.11] Additionally, more criminal activity, including violent crime, is associated with crack than with powder cocaine.[FN.12] Crack is also accountable for more emergency room visits than powder cocaine,[FN.13] and evidence suggests a high correlation between crack and a host of social harms including parental neglect, child and domestic abuse, and high risk sexual behaviors.[FN.14]

FN.9: Id. at viii.

FN.10: Id. at 195.

FN.11: Id. at 187.

FN.12: Id. at viii.

FN.13: Id. at 184. Although our Special Report also found, based upon very limited data, that "most cocaine-related deaths result from injection of powder," id., this factor alone does not convince us that crack is less dangerous to society than powder cocaine. In comparing the relative harms of these two substances, we have considered a variety of factors, some of which may offset one another. In our view, the higher death rate associated with powder cocaine is one of the factors that justifies bringing crack and powder penalties more in line with each other. In other respects, however, the higher death rate from powder is outweighed by the multitude of increased harms occasioned by crack.

FN.14: See id. at 189-91.

The Commission was unable to account for all of these harms through guideline enhancements. Indeed, the proposed enhancements only address, to a limited extent, the systemic crime associated with crack. Thus, a one-to-one quantity ratio allows crack distributors to go virtually unpunished for the addictiveness, ease of use, marketability, and physical and social harms associated to a greater degree with crack than with powder cocaine.[FN.15] We cannot support this result.[FN.16]

FN.15: The majority asserts that under a one-to-one ratio, "crack offenders will receive sentences that are, on average, generally at least twice as long as powder cocaine offenders involved with the same amount of drug." Statement of Commission Majority in Support of Recommended Changes in Cocaine and Federal Sentencing Policy 3 (May 1, 1995) [hereinafter Commission Majority]. This difference reflects the fact that crack defendants are more likely to have extensive criminal histories and are more likely to use weapons than powder cocaine defendants. The difference does not, however, reflect the fact that crack offenders sell a substance that is far more dangerous than powder cocaine.

FN.16: Interestingly, in the Special Report, the Commission indicated that crack's addictiveness and ease of use alone could support heightened penalties for crack distributors. See id. at 183 ("the higher addictive qualities associated with crack combined with its inherent ease of use can support a higher ratio for crack over powder").

Moreover, a one-to-one quantity ratio at the powder cocaine penalty level provides for insufficient punishment of crack distributors.[FN.17] For example, under a one-to-one quantity ratio, a criminal history category I mid-level dealer who distributes 100 grams of crack to other mid- or street-level dealers and pleads guilty,[FN.18] will face a guideline sentence of only eighteen to twenty-four months imprisonment. In addition, if the proposed one-to-one quantity ratio had been applied to federal crack defendants in 1994, over 73% would have been eligible for quantity-based sentences of less than five years imprisonment, and only 10% would have been subject to sentences of ten or more years.[FN.19] Conversely, of the federal powder cocaine defendants sentenced in 1994, less than 19% were eligible for quantity-based sentences of less than five years imprisonment, and over 45% were subject to sentences of ten or more years. Indeed, under a one-to-one penalty scheme, crack distributors may be eligible for lesser sentences than similarly situated powder cocaine defendants.[FN.20]

FN.17: The sentence calculations in this paragraph are guideline sentences based solely upon drug quantity. They do not take into account the current statutory 100-to-1 quantity ratio which, for example, subjects a crack dealer who distributes fifty or more grams of crack to a mandatory ten-year sentence.

FN.18: In 1994, over 75% of all crack defendants and over 80% of all powder cocaine defendants received sentence reductions for acceptance of responsibility.

FN.19: By comparison, under the 100-to-1 ratio, only 15% of federal crack defendants sentenced in 1994 were eligible for guidelines sentences of less than five years imprisonment, while 59% were eligible for sentences of ten or more years.

FN.20: This is so because, based upon Commission data, crack traffickers who occupy roles similar to their equally culpable powder cocaine counterparts, distribute smaller quantities of drugs. See View of Commissioner Goldsmith Dissenting from Amendment Five 3-4 (May 1, 1995).

Furthermore, even if Congress retains the current 100-to-1 statutory ratio for purposes of mandatory minimum sentencing, the proposed one-to-one ratio still has the potential of dramatically decreasing sentences for some crack distributors. Under §5C1.2 ("the safety valve"), drug offenders meeting certain criteria are exempt from statutory mandatory minimums and are instead sentenced directly under the guidelines. In the legislation authorizing the Commission to promulgate a safety valve guideline, Congress indicated that the guideline "shall call for a guideline range in which the lowest term of imprisonment is at least 24 months." Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 80001, 108 Stat. 1985, 1986 (1994) (emphasis added). But, under the proposed one-to-one ratio, many crack defendants who qualify for the safety valve will not, as Congress intended, receive guideline sentences of at least twenty-four months. Instead, all safety valve crack defendants who distribute less than 100 grams of crack (a quantity associated with more than 40 percent of federal crack defendants in 1994) will be eligible for prison terms of less than twenty-four months. In our opinion, this is contrary to both congressional intent and sound public policy.

The majority's rationale for a one-to-one quantity ratio appears to be that fairness dictates identical treatment of crack and powder cocaine defendants because crack and powder cocaine are pharmacologically the same drug.[FN.21] This is not the end of the inquiry, however. Penalties for drug offenses are not solely based on pharmacology. Instead, penalties are fashioned to account for the amount of societal harm attributable to a particular drug or form of drug.[FN.22]

FN.21: See Commission Majority, supra note 15, at 4-5.

FN.22: Indeed, providing varying penalties for different forms of the same drug based upon relative harmfulness is not unprecedented in the guidelines. See, e.g., U.S.S.G. §2D1.1(c) (assigning base offense levels for Methamphetamine, as compared to "Ice" [a different form of Methamphetamine] at a ten-to-one quantity ratio). We note that Methamphetamine bears a five-to-one ratio to powder cocaine and that "Ice" has a ten-to-one ratio to Methamphetamine, or a fifty-to-one ratio to powder. Thus, if a one-to-one ratio between powder and crack is adopted, crack will be punished at a ratio of fifty times less than "Ice."

Sentencing policy is not an exact science. It can only reflect our best judgment as to the appropriate sentences for particular criminal acts, taking into consideration the harms resulting from those acts and the related societal interests in deterrence and prevention. Regrettably, statistical evidence demonstrates that sentencing policy based on thoughtful, appropriate, and race-neutral factors may result in differing impacts on defendants according to race, socioeconomic group, and geographic area. These disparities in impact, however, cannot divert attention from our objective judgments about the underlying criminal activity and the attendant societal interests. In sum, because, as the Commission unanimously concluded in the Special Report, crack poses a greater threat to society than does powder cocaine, and because a one-to-one quantity ratio provides insufficient punishment for crack distributors, we respectfully dissent.