How Appealing Extra

How Appealing Extra

Monday, September 27, 2004

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?