Posted 12:00 AM by Howard Bashman

20 Questions for Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin: "How Appealing" is very pleased that Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin has agreed to participate in this web log's monthly feature, "20 Questions for the Appellate Judge."

Chief Justice Abrahamson was born in New York City on December 17, 1933. She received her bachelor's degree from NYU in 1953, her law degree from Indiana University Law School in 1956, and a doctorate of law in American legal history in 1962 from the University of Wisconsin Law School. She is the recipient of fourteen honorary Doctor of Laws degrees and the Distinguished Alumni Award of the University of Wisconsin -- Madison. She is an elected fellow of the Wisconsin Academy of Arts and Sciences, the American Academy of Arts and Sciences and the American Philosophical Society.

Following law school, Abrahamson worked at Columbia University Law School and then in Madison, Wisconsin in the private practice of law for fourteen years and was a tenured professor at the University of Wisconsin Law School.

In 1976, Abrahamson was appointed to the Supreme Court by Wisconsin Governor Patrick Lucey and became the first woman to serve on that court. Wisconsin voters elected her to a ten-year term on the court in 1979. She won reelection in 1989 and became the court's first female Chief Justice in 1996. She again won reelection in 1999 and, from 2003 until recently, presided over a court on which females constituted a majority.

Chief Justice Abrahamson currently serves as President of the National Conference of Chief Justices, as chair of the board of directors of the National Center for State Courts, and as a member of the board of directors of the New York University School of Law Institute of Judicial Administration and the Council of the American Law Institute. She was chair of the National Institute of Justice, National Commission on the Future of DNA Evidence and has also served on the State Bar of Wisconsin's Commission on the Delivery of Legal Services and American Bar Association's Coalition for Justice.

Chief Justice Abrahamson's chambers are located in Madison, which is also where the Supreme Court of Wisconsin sits in the State Capitol.

Questions appear below in italics, and Chief Justice Abrahamson's responses follow in plain text.

1. As the first female to serve on the Supreme Court of Wisconsin, and as that State's first female Chief Justice, you are a historic figure. It has been recently reported that Wisconsin's Governor has decided to appoint the first African-American to the court. In your view, do the press and public focus too much on the breaking of these gender and racial barriers, or is the attention merited and useful? Do you think that a jurist's gender or race makes a difference in how cases or decided or in how the justice system is perceived? And does it surprise you, for example, when the press reports that your court divided along gender lines in reaching a decision, as happened in 2001 in an article headlined "High court limits dad's procreation; Justices split on gender lines in child support case"?

"Firsts" that break records or break barriers are events to celebrate. It's newsworthy that I was the first female justice in the 128-year history of the Wisconsin Supreme Court, especially in light of the fact that the Court declared in 1875 that women lawyers could not even practice before the Court. Justice Louis B. Butler, just appointed to the court by Governor James Doyle, is the court's first person of color. There is bound to be public interest in and media attention to these firsts.

The composition of the judiciary and court staff affects the public's perception of the institution. People are more comfortable with and are more trusting of an institution that reflects the rich diversity of our population. Ultimately, however, it is the ability of the judges and the quality of their judgments that are most important. Fortunately, society is recognizing that good lawyers, good judges, and good people need not all look alike.

As far as I know, the article you cite noting the gender split in State v. Oakley, 2001 WI 103, 248 Wis. 2d 654, 635 N.W.2d 760, was the first article of its kind with respect to our court. It was surprising that the gender split in that case was emphasized. Divisions of the court on gender lines are not usual but have occurred occasionally probably before and after Oakley.

2. In April 1999, you won reelection to the court by a decisive margin in a contest that an editorial published in The Milwaukee Journal Sentinel characterized as "the Supreme Court campaign from hell; the political equivalent of death by 1,000 cuts; a black hole of intrigue and stealth, sucking whatever good is left in politics into the mire of negative campaigning." Four of your colleagues on the court on which you served as Chief Justice publicly endorsed your opponent, and an article published after the election was headlined "High-court race brings reform cries." To the surprise of some, two years later you spoke publicly about your continued support for judicial elections, and that speech was published as a law review article. Let's say, hypothetically speaking, that a 51st State is created and you are put in charge of deciding the method for selecting that State's appellate judges. What method would you select, and why? In your view, is it appropriate for sitting justices to announce a position on whether their colleagues should be elected or defeated at the polls, have you announced your views in that regard with respect to your colleagues' candidacies, and why or why not? And finally, was it necessary for the Court to use a mediator to overcome the "deep-seated disputes" that arose during your most recent campaign for reelection?

The method for selecting federal judges was debated at the founding of our country. The method for selecting Wisconsin state judges was vigorously debated in the Wisconsin constitutional conventions. Each state has adopted its own method for selecting judges, and the search continues for the "best" method. Wisconsin has always elected its judges. It probably always will because of the state's deep populist and progressive traditions. We're comfortable with this system, even though, like all others, it has flaws.

Scholars, lawyers and bar associations have been nearly unanimous in condemning judicial elections; they support the federal system of appointment and "life tenure." But the federal system isn't without its own warts. Judge Reinhardt graphically described some of the worst aspects of federal appointments in his 20 Questions interview on How Appealing.

There is no perfect system for selecting judges. No system guarantees the best qualified judges, even if we were to agree on what "best qualified" means. Each selection method has its strengths and weaknesses, and states have evaluated the pluses and minuses of each selection system differently. Nevertheless, over 80% of state trial and appellate judges in this country stand for election of some type.

The method for selecting judges in a particular state--and in your hypothetical new 51st state--necessarily reflects the legal and political culture of the state, as well as its geographical size, population, and media markets. If the 51st state were similar to Wisconsin, I would favor non-partisan judicial elections with "long terms" for the judges. I have reread my NYU article, and I continue (perhaps not surprisingly) to be persuaded by my reasoning. I favor elections because I favor transparent government. Too much of what goes on in the appointment and confirmation process is kept behind closed doors; the public does not have an opportunity for meaningful participation in the process. Ideally, the elective system can also be an educational experience for both the judges and the electorate.

I do not subscribe to the view that elected judges are more (or less) likely than appointed judges to tailor a decision to the wishes of the legislature, the executive, or popular opinion. Experience demonstrates that appointed judges, even those with life tenure, are not free from outside pressures, whether in the selection process or thereafter. Indeed in recent years some life-tenured federal judges have asserted that their independence is being threatened.

No constitutional or statutory safeguards can guarantee judicial independence. The qualities most needed in judges are courage and personal integrity, both of which are indispensable to independence. The stakes are higher for elected judges who do not have life tenure, but the best judges, whatever the selection or retention system, are those who resist threats to judicial independence.

Nevertheless, I recognize problems inherent in the elective system. Low voter turnout and inadequate information regarding judicial qualifications diminish the democratic significance of elections. Issues of campaign speech and campaign financing loom large. See Republican Party of Minnesota v. White. But rather than scuttle elections, we should attempt to minimize the problems and should use elections as vehicles for voter education about the judicial system--especially the core value of decisional independence.

Although Wisconsin justices have and may support candidates for the court, I have never done so. My task is to work with the justices appointed by the governor and elected by the people.

"Deep-seated disputes," if any, dissipated with their exposure to the "sunlight" of a campaign, an affirmative vote for the sitting chief justice of about two-thirds of the electorate, and a commitment by all members of the court to work for the public good. The "chemistry" on the Wisconsin Supreme Court today is good, the collegiality pervasive, and we're committed to keeping it that way.

3. The composition of your court has changed quite a bit from what it was in 1999, and only two of the Justices who publicly supported your defeat at the polls continue to serve on the court. Are you pleased with how the court is functioning today as a collegial body, is the court current with its workload, and what additional duties and responsibilities, if any, does the Chief Justice of your court have in comparison with the duties and responsibilities of the other Justices?

The court is current with its workload and is functioning well, although we are always open to changing our internal procedures to improve the system. Each year the court decides about 1000 petitions for review, resulting in about 90 cases on full appellate review. Additionally, we hear attorney and judge discipline cases and petitions for rule making on such matters as the code of judicial conduct, the code of judicial responsibility, and matters of practice, pleading and procedure.

As chief justice, I preside over oral arguments and the court's adjudicative and administrative conferences. I work closely with the director of state courts and court staff, chief trial judges and district court administrators, and chair or serve on numerous court committees. Under Article VII, � 4 of our state constitution, "the chief justice shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court."

Although these administrative duties take a tremendous amount of time, they are rewarding. I have made a prolonged effort during my tenure on the court to promote court programs that improve the administration of justice. These include increasing volunteers in the courts, providing assistance to pro se litigants, certifying court interpreters, creating unified family courts, improving the protection of children, developing new opportunities for judicial education within the state, nationally and abroad, establishing legislative-judicial seminars, improving relations among state, federal and tribal courts, and increasing public outreach.

The court's jurisdiction is statewide. All the justices travel across the state and speak to many audiences. The court has undertaken a significant program of educating students and teachers about the courts, including our court with class sessions and our teacher institutes. We sponsor court "ride-a-longs" for state and local legislators and media and sentencing exercises for media. These are just a few of our outreach programs. You can find them described on our website: www.wicourts.gov. Many state courts are engaged in public outreach, and the federal courts are starting their own programs--all to the good of the courts and the people.

4. The U.S. Supreme Court in June 2002 announced its ruling in Republican Party of Minnesota v. White, No. 01-521. By a 5-4 margin, the Court struck down as unconstitutional a judicial campaign restriction intended to prevent candidates for elected judicial offices from announcing views on disputed legal or political issues. Do you view the U.S. Supreme Court's ruling as a positive development, a negative development, or somewhere in between?

It is still too early to evaluate the impact of White on either elected state judges or appointed federal and state judges. The concern is that White is a threat to an impartial judiciary and will weaken public trust and confidence in the judiciary. Pending and future cases will clarify the meaning and scope of White.

5. One of your former colleagues recently left your court to join the U.S. Court of Appeals for the Seventh Circuit. While she achieved confirmation without much difficulty, that has not been the case in recent years for all nominees to federal appellate court vacancies. As someone who can watch these developments unfold at something of a comfortable distance, what are your views on the judicial confirmation battles underway in the U.S. Senate, the use of filibusters, and the use of recess appointments to place filibustered nominees onto the federal appellate courts?

It's good on a personal level to be "at something of a comfortable distance" from the process, and my interest is academic, not personal. Although much is written about the "horrors" of the elective system, not enough scholarship and attention is devoted to the "horrors" of the federal appointive system and how the President and the Senate can improve the appointive system.

6. What are your most favorite and least favorite aspects of being an appellate judge?

My favorite aspects of being an appellate judge on the highest state court are that I can work on important cutting edge legal issues and resolve them fairly and justly not only for the parties involved but also for the law of the state, that I discuss the judicial system with the public and listen to the people's concerns, and that I have opportunities to improve the administration of justice. My least favorite aspect of the job is my concern about whether we have given enough time to each case.

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

Chief Justice William Rehnquist. Chief Justice Rehnquist is widely viewed as being exceedingly fair as a chief justice in his relations with each justice and in presiding over the court's conferences and the federal system. Because I understand the difficulties of administering a court system and the variant interests that are necessarily involved, I have a tremendous respect for anyone that can earn such wide praise. The Chief Justice also has made the time to be an author and contribute to public understanding of the judiciary. Let's also not forget he is a son of Wisconsin!

8. How did you come to Governor Lucey's attention as a potential Supreme Court nominee, when did you first realize that you might be interested in being an appellate judge, what concerns if any did you have about becoming the first female to serve on the Supreme Court of Wisconsin, and did any of those concerns prove to have merit?

My first encounter with Patrick Lucey personally was around 1963�64, before he was governor. I was one of the drafters of Madison's open-housing ordinance making it unlawful to discriminate in the sale or rental of certain real estate on the basis of race. Almost every large realty company in Madison vehemently opposed the ordinance. Pat Lucey of Lucey Realty Co. was the lone realtor of a large company to appear at the city council meeting and publicly support the ordinance. (The proposed ordinance was very controversial; it passed on a tie vote of the council with the mayor casting the deciding vote).

I then met Pat Lucey again in the late 1960s when Madison was in turmoil over the Vietnam War. I was working with community leaders attempting to keep peace in the community and went to Pat's home late one night to urge him to offer the student community use one of his large vacant neighborhood lots as a garden. He agreed.

That was largely the extent of my interaction on a personal level with Pat Lucey until he appointed me in 1976. We did have a number of mutual friends.
I never considered becoming a judge until I saw my name in the newspaper in 1974 as a possible appointee to the Supreme Court. I did not get that appointment. I got the next one.

Because I do not think my gender negatively affects my ability to do any job I undertake, being a woman did not concern me when I became a judge.

9. The Journal Sentinel in early August 2004 published an article headlined "State's law students get free pass on bar exam; Despite detractors, age-old privilege likely to remain." According to the article, Wisconsin is today the only State to confer such a "diploma privilege" on its in-state educated law students, having outlasted the States of Mississippi, Montana, and West Virginia, all of which abandoned similar policies in the 1980s. Why does Wisconsin adhere to this policy, why should graduates of in-state accredited law schools be assured of the ability to practice law in Wisconsin while graduates of other fine out-of-state law schools are not, and what purpose does the bar exam serve in any event?

The diploma privilege makes good sense for Wisconsin. The Wisconsin Supreme Court (in charge of attorney admissions) is very familiar with the two excellent A.B.A. accredited schools in Wisconsin: the University of Wisconsin Law School and Marquette University Law School. Both schools have high standards for admission and graduation. To qualify for the diploma privilege, students must take certain courses (determined by our court as being fundamental) and achieve a certain average score for those courses. In short, we have confidence in the quality of graduates from these two schools.

Those graduates that do move out of state after graduation typically do very well on other states' bar exams. If there were any indication that graduates from UW or Marquette were less prepared for the practice of law compared with graduates from other schools, we would be the first to look for another system. There are currently no plans to alter the diploma privilege.

For states with only a few accredited law schools, the diploma privilege is a terrific system. In fact, some states are currently considering adopting the diploma privilege. Wisconsin should not be viewed as the last to retain the diploma privilege; I like to think of Wisconsin as the leader on this issue, not the holdout.

Wisconsin does give a bar examination to students who graduate from out-of-state law schools. I have served on the bar examination commission and have taken two bar exams. I do, however, have reservations about the traditional bar examination. I am not sure what the examination measures. Most students from accredited law schools end up passing a bar examination on at least the second attempt. While many law firms reimburse students for costs associated with taking the bar, the bar examination forces students who are already financially burdened to incur additional expenses; the bar exam delays students' entrance into the workforce while they study for the bar or wait for results.

As is the case with many systems, it is easy to criticize. The question of what is a better replacement looms large but is not easy to answer. The National Conference of Bar Examiners (headquartered in Madison and headed by a Wisconsin lawyer) is experimenting with different types of examinations. Until there is evidence of a better system (except for the diploma privilege of course), states will continue to use the traditional bar exams.

10. Congratulations on having recently begun your tenure as President of the National Conference of Chief Justices. Please explain what that organization exists to accomplish and whether you have any particular goals that you hope to achieve during your year as the organization's leader.

Thank you. I am quite honored to sit as this year's president of the Conference of Chief Justices. The organization was founded in 1949 as a means of getting the states' highest judicial officers together for discussions of issues affecting their respective judicial systems and learning from each other. Collectively we are able to exchange valuable information about current problems and possible resolutions, how various programs are working in different states and in what ways we might be able to improve the administration of justice in our own state. Each of us innovates and communicates.

The past, present and future presidents of the conference work together to achieve continuity of programs from one year to the next. I am therefore continuing the good work of my predecessors in streamlining the structure of the conference, improving our educational programs, increasing communication among the states, reviewing and commenting on the impact of proposed federal legislation on state courts, filing amicus briefs in appellate cases raising issues of concern to state courts, and moving forward with our activities in protecting children, promoting public trust and confidence, working with the federal judicial system, and tackling new and continuing issues in the administration of the criminal justice system.

11. When you joined the Supreme Court of Wisconsin, the state did not yet have an intermediate appellate court. How was your work on the Supreme Court, and the practice of law, different before the Wisconsin Court of Appeals came into existence? And please explain the direct review and bypass procedures that allow a case to come to your court without passing through the Court of Appeals, and how often and in what sort of cases are those procedures used?

The establishment of the court of appeals dramatically changed the work of the Supreme Court. Before the court of appeals, the Supreme Court decided several hundred cases a year and had a substantial backlog--perhaps two years' worth of cases. Now the Court focuses on the cases that raise significant legal issues of statewide importance and we are able to give those cases more time.

As you mention, we have two procedures, Direct Review and Petition to Bypass, in addition to a Petition for Review and Certification by the Court of Appeals. Both Direct Review and Bypass are rarely used.

Under Direct Review, this Court can reach down and give itself jurisdiction over a case, without any request from the parties or a court. As far as I can remember, the Court has never used this power.

In Bypass, a party to a circuit court case asks this court to hear the case before the court of appeals rules on it. Very few bypasses are requested, and in past years we have granted from zero and two bypasses.

12. What role should an appellate judge's personal and political ideology play in deciding cases, and when if ever is it appropriate for an appellate judge to decide how to rule based solely on his or her personal preference? Also, isn't it true that Justices serving on courts of last resort sometimes have little other than their own personal preference concerning the result to guide them in deciding cases?

An appellate judge's personal and political ideology or personal preferences should not play a role in deciding cases. In many cases I reach a decision that I would prefer not to reach. Nevertheless I feel compelled to reach that decision because of the facts and applicable law.

The justices of the Supreme Court of Wisconsin come from different political, ideological, social, geographical, and economic backgrounds. They bring their varied experiences in their personal lives and in their legal careers to the cases. The justices may have different jurisprudential views about the role of courts and about principles of statutory and constitutional interpretation. These experiences and different views of the law may very well play a role in decision-making. The key requirements of an appellate judge are to have an open mind and read (and check) all the materials submitted.

Decision-making involves judgment. If only one result was possible in every case, we would not need a court of seven persons, one judge would be sufficient. Indeed, we might not need any judges at all. A computer could spit out the decision.

13. You have taught at law schools, are regularly in the market for recent law school graduates seeking to be hired as law clerks, and review on a daily basis the work of people who graduated from one law school or another. In what ways should the Nation's system of legal education be reformed and/or improved?

Law schools keep changing their curriculum and practices. That's good. Law schools ought to be even more innovative and creative. Too many law schools follow other schools instead of making use of their own faculty and student talent and regional interests.

I like the approach taken at the school I know best, the University of Wisconsin Law School. I describe the school's approach as "eclectic." Students are exposed to traditional and non-traditional courses and methods of teaching and strong clinical programs. This cornucopia of offerings benefits not only the students, but also benefits Wisconsin's legal community, the general citizenry, other law schools, and other states.

14. How do you make use of your judicial law clerks, 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?

Wisconsin Supreme Court justices (including me) have only one full time, salaried law clerk apiece. We also have the opportunity to collaborate with law school students who, as part of their legal education, work in chambers. Selecting a law clerk for each one-year term is one of the most important decisions I make. I look for people who have strong research, writing and analytical skills and are willing to think and rethink positions and work long hours--all with a sense of humor. I value clerks who have had varied life and work experiences. I have been fortunate to get applicants from law schools all over the country, but would also welcome a more racially diverse pool of applicants.

15. What are the three most important suggestions you have for attorneys concerning how they can improve their written work product filed with the Supreme Court of Wisconsin?

Lawyers should let their briefs "rest" for a week or so and then reread and edit them. Lawyers should ask other lawyers and non-lawyers in their office to read and edit the briefs. Too often lawyers jump right into the legal nuances of the case without explaining, in clear terms, the legal context in which the case arises and they fail to persuade the Court why it should decide in their favor.

16. Similarly, what are the three most important pieces of advice you have for attorneys concerning how they can improve their performance at oral argument?

First, know the record, your brief, and the cases on which you rely. Second, moot the case with other attorneys in your firm or with law students or faculty (a group often overlooked as a valuable resource). In short, practice practice practice! During practice sessions you will probably be asked many of the same the questions the Court will ask. Third, decide the two or three major points you want to make with the court. Keep them firmly in mind and make them at least once but probably several times. These same suggestions are given over and over by appellate judges and they warrant repeating.

17. A couple of years ago, The Journal Sentinel reported on a day when you found yourself "perched in one of Milwaukee's most detested judicial assignments" filling in for a vacationing judge in small claims court. How did you enjoy your time on the bench at small claims court, and is that something that you might volunteer to do again?

Working as a judge in small claims court was one of the most difficult tasks I have undertaken, but I enjoyed it immensely. I had to hear and decide a case from the bench every 15-20 minutes, usually without the assistance of lawyers arguing the issues. But I got to meet people, hear their problems directly from them, and resolve disputes right from the bench, all while helping people. I'll do it again even though I know that it will be harder for me to sit a week in small claims court than to sit a week in the Supreme Court. The preparation for small claims court was horrendous. I read numerous statutes, pages of regulations I had never seen before, cases and the sparse case files. I was overwhelmed by the amount of law I needed to master and have readily available, just in case the issue arose. The volume of cases and the tumult of the courtroom was exhausting.

When I first offered to sit in small claims court I was not fully aware of the difficulty of the assignment. I am now wiser and have a much greater appreciation for the work done by judges at all levels of our state's judicial system.

In keeping with my belief that judges ought to experience the judicial system from different vantage points, I have sat as a juror in both civil and criminal cases and have initiated a program in which Wisconsin court of appeals judges can sit as trial judges and trial judges can sit as court of appeals judges.

18. Are the salaries now paid to state court judges in Wisconsin too low? What should those judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Judges' compensation in recent years has not kept up with the increase in the cost of living, and serving as a judge is therefore often not attractive to practicing lawyers. Some first year law graduates are paid as much as, or more, than experienced judges. Judges should be compensated reasonably so that judgeships attract good lawyers and are open to people who are not independently wealthy. Judges' compensation should be in line with the compensation of other state officials, with judges in other states, and with government lawyers. Any compensation system necessarily must reflect the state's fiscal situation.

19. Your biography shows that you were born and raised, and attended undergraduate and law school, outside of Wisconsin. At what point in your life did you become a resident of Wisconsin, and why? Also, if there is anything else that you would like to say about the quite lovely State of Wisconsin, please feel free to do so now.

My husband and I moved to Wisconsin in 1956 for his post-graduate work at the University of Wisconsin. We left Wisconsin from 1957-60, returned to Madison in 1960, and have been here ever since--more than 40 years. My son, now an attorney in California, was born and raised in Wisconsin.

I am always happy to talk about the great state of Wisconsin. While Wisconsin is often associated with its excellent sports teams and its tourism, it is a wonderful state to live in with a world-class university, a well-educated citizenry, a great history and a strong progressive tradition. Its people have sound values and a strong work ethic, and there is a consistent tradition of good government serving the people.

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

Whatever spare time I have I use to the maximum. I enjoy traveling and have visited much of the United States and all seven continents. I recently returned from a trip to China and Mongolia, where I combined judicial work (lectures) and tourism. The theater, art galleries, museums, and of course, shopping, are also activities I enjoy. My newest, and what promises to be my most consuming, spare time passion is my nine-month old grandson. As my law clerk and others will attest, no one is safe from having to view photos of him and hear about his feats in manipulating finger food.

Posted 12:00 AM by Howard Bashman

20 Questions for Circuit Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit: "How Appealing" is delighted that Circuit Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit has agreed to participate in this Web log's monthly feature, "20 Questions for the Appellate Judge."

Judge Easterbrook was born in Buffalo, New York in 1948. He attended undergraduate school at Swarthmore College, where he was elected to Phi Beta Kappa and received his degree with high honors. He then attended the University of Chicago Law School, where he was an editor of the Law Review and a member of the Order of the Coif.

Following law school, Easterbrook served as a law clerk to Levin H. Campbell of the U.S. Court of Appeals for the First Circuit. He then joined the Solicitor General's Office, where he served first as Assistant to the Solicitor General and later as Deputy Solicitor General of the United States. In 1979, Easterbrook became an assistant professor of law at the University of Chicago, in 1981 he became a full professor there, and in 1984 he became the Lee and Brena Freeman Professor of Law.

In August 1984, President Ronald Reagan nominated Easterbrook to fill one of the two seats on the U.S. Court of Appeals for the Seventh Circuit that Congress added in July 1984, when the number of active judges authorized to serve on that court increased to the current total of eleven. In April 1985, following President Reagan's reelection and Easterbrook's renomination, the U.S. Senate confirmed Easterbrook, who was then thirty-six years old, to the Seventh Circuit, where today he is next in line to serve as that court's Chief Judge.

Judge Easterbrook's chambers are located in Chicago, which is also where the Seventh Circuit has its headquarters.

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

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

The job is perfect for a generalist. You work on all kinds of federal issues, served up by facts that were proposed as soap opera scripts and rejected as too implausible--and when the breadth of the portfolio leads to the generalist's inevitable errors, you can blame them on the Supreme Court. What could be better?

I was attracted to law by the scope of its coverage and enjoyed the Solicitor General's Office for the same reason. Learning how the whole legal world works is attractive; and to make sense of the legal world you have to know about the economic and scientific domains as well. I enjoy these subjects (I read science journals as well as economics journals and law reviews in my spare time), so the appellate judiciary is an intellectually comfortable place. Subjects on which I would not have worked but for the appointment--tax, pensions, bankruptcy, trademarks, copyright, to name a few--have been particularly satisfying.

Paradoxically, the subject matter's breadth also is the least favorite aspect of the position. It means that a judge is an amateur at everything. All practicing attorneys develop some specialties; so do academics. When in the SG's Office I handled a bit of this and a dollop of that, but I also became a specialist in double jeopardy law, black lung issues, securities law, antitrust, and a few other subjects. When I moved to teaching, I added new areas of expertise. Now my intellectual capital is depreciating. (I'm sure that some lawyers think this happened remarkably swiftly.)

For ten years I served as an editor of the Journal of Law and Economics, but in 1991 I resigned because economic analysis of law is becoming increasingly technical, and I could not keep up with the literature in the depth required to select the best new work within a crowded field. A judge must shift rapidly from one topic to the next; it is hard to set aside weeks or months to master a subject and write interestingly about it. (My colleague Richard Posner is a one-off exception; not even Holmes was able to do the like after joining the appellate bench, and appellate judges carry much heavier workloads now than in Holmes's day.)

One other thing: judges can't practice law. I enjoyed appellate advocacy greatly--both the preparation of briefs and the give-and-take of oral argument. While in the SG's Office I briefed more than 100 cases on the merits in the Supreme Court and argued 17. The year before my appointment to the Seventh Circuit, I argued three more in the Supreme Court. Teaching is compatible with a little practice on the side: both scholars and students gain from practical experience. But today if I tried to argue a case in some other court, I'd find myself a guest of the federal government at the jail across the street from the Seventh Circuit. Such is life.

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

One should speak only of the dead. Holmes is too obvious an answer. Candidates from the 19th Century (other than John Marshall) would produce only a "Huh?" from many readers--and my specialty from that century is the trifling rather than the great. Compare David P. Currie, The Most Insignificant Justice: A Preliminary Inquiry, 50 U. Chi. L. Rev. 466 (1983) (plugging Gabriel Duvall as the most insignificant Justice in the Court's history), with Frank H. Easterbrook, The Most Insignificant Justice: Further Evidence, 50 U. Chi. L. Rev. 481 (1983) (empirical demonstration that Thomas Todd made Duvall look like a titan of the bench).

Hugo Black and Henry Friendly are the judges I most admire among those who worked in the 20th Century and are no longer living. (I know you asked for one selection. But 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.)

Black read widely after his appointment, transcending his roots as a populist from Alabama, and his absolutist approach to constitutional issues--that is, his willingness to take the Constitution seriously as law rather than as aspiration--is admirable. He reached principled decisions and stuck with them as times and politics changed. That's the right thing to do when issuing decisions in the name of an unchanging document. 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. Black stuck with these over time. His legacy and approach should be more popular today than they are.

Friendly was the most knowledgeable appellate judge of the 20th Century, managing to overcome the limits that time imposes on generalist judges. Combining intellectual integrity with prodigious effort and a powerful intellect, Friendly made a contribution to the law exceeding that of many who are promoted to the Supreme Court. And he managed to do this off the bench as well as through his judicial work. Both Benchmarks (1967) and Federal Jurisdiction: A General View (1973), remain splendid reading long after the work of his contemporaries has faded.

3. How did you come to President Reagan's attention as a potential Seventh Circuit nominee, when did you first realize that you might be interested in being a federal appellate judge, what concerns if any did you have about becoming a federal appellate judge at such a young age, and do any of those concerns persist today?

This is four questions, and the answers are:

a) Several people drew my name to the attention of the right officials. Robert Bork, with whom I worked when he was SG, learned enough about me to think that I might have the makings of a judge. Antonin Scalia, whom I first met when he was Assistant Attorney General for the Office of Legal Counsel (and came to know better when we were colleagues at the University of Chicago), said favorable things. Kenneth Dam, one of my colleagues at Chicago and Deputy Secretary of State in the Reagan Administration, also bears some responsibility. But illustrating the role that chance plays in all such appointments, credit (or blame!) also must go to Tom Campbell, who was Deputy Associate Attorney General (or was it Associate Deputy Attorney General, or Assistant to the Deputy Associate Attorney General?) in the early Reagan years. After service on the law faculty of Stanford and stints in Congress, Tom today is Dean of the Business School at UC Berkeley. We met in 1970 when he was in college and I in law school, covering my room and board as undergraduate debate coach. We kept up acquaintances as he entered law, earned a Ph.D., worked for the FTC, and went on the teaching market. That Tom became an insider in judicial selection, remembered me favorably, and knew my academic work, was indispensable in putting a youngster on the bench.

b) Law students learn by reading appellate decisions. Students, practicing lawyers, and professors all spend much time critiquing judicial decisions and claiming that surely one could do better. It is natural to imagine trying one's own hand at doing better. I've thought since before entering law school that it would be wonderful to have a career that included practice, service in the executive branch, teaching, and judging. By good fortune, things have worked out that way. (And one attraction of the bench is that it is possible to continue teaching.)

c) My appointment came too soon, because it meant a premature end to appellate practice and the kind of scholarly work that requires dedicated blocks of time. If it had been possible to plan a career, I would have stayed in the academy (practicing and consulting, say, 20% of my time) another 15 years or so. Most scholars have done their best work by then. But planning is not possible. If you turn down a judgeship, opportunity likely will not knock again. So, when the offer came, I said yes. (Gerhard Casper, my Dean at the time, was nonplussed; he said that he could understand jumping to the D.C. Circuit but not to a regional circuit. My view was and is exactly the reverse. Administrative law is enjoyable, but a varied diet is better. Robert Bork and Antonin Scalia, who joined the D.C. Circuit in the early 1980s both spent more than half of their time there reviewing decisions of the Federal Energy Regulatory Commission. I get to decide antitrust, securities, tax, discrimination, and intellectual-property cases, and some administrative matters too, along with the inevitable cocaine prosecutions. And I don't have to suffer through D.C.'s miserable six-month summers.)

d) After joining the court, it was too late to look back.

4. You have been described by someone who has seen many appellate arguments throughout the United States as one of the most aggressive questioners at oral argument now serving on the federal appellate bench. What do you seek to accomplish at oral argument, in what ways do you find oral argument helpful or unhelpful, and is there anything an appellate advocate can do, either at oral argument or earlier, to ensure that he or she is able to satisfy the standards that you expect from attorneys at oral argument?

This is three questions, which I'll answer at one go. I learned the trade as an advocate to a hot bench. Anyone who thinks that the questions from the Seventh Circuit are frequent should sit in on some arguments at the Supreme Court. And the Justices allocate one hour per case; we must get the same work done in 20 to 40 minutes. The Seventh Circuit hears argument in almost all appeals with counsel on both sides; to do this, we must devote less time to each. The tradeoff implies more questions per minute and can produce harried advocates, but it is worthwhile if you think oral argument helpful--as I do.

Argument is the court's time. The brief is counsel's monologue, argument the dialog. When judges behave like sponges, passively absorbing a stream of words tracking the brief, oral argument contributes little. We might as well have stopped with the written presentation. 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!")

Good appellate arguments are like conversations. It may be hard for lawyers to think this way, but it is vital: Counsel offer knowledge about the case and the corner of the law in which it must be resolved, while generalist judges can place the controversy within the web of similar or related principles. Gains from trade are to be had. Sometimes the back-and-forth, like exchanges among friends, can be pointed, but that's necessary to strip away irrelevancies and get to the core in the short time available. 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. Now that oral arguments are available online, "attendance" can be remote--though the visual adds to the aural.

5. The Seventh Circuit today has established a reputation, in part because of rulings you have written, of being a court where the rules are enforced almost mercilessly and amicus briefs are disdained greatly. Please say a few words to your colleagues on other circuits about why attorneys should be publicly called to task for violating court rules, and do you agree that it makes sense to strictly referee motions for leave to file amicus briefs instead of letting all such briefs be filed and simply ignoring the unhelpful ones?

I'm not even going to try counting how many questions this one entails.

I'll start with amicus briefs. Judge Posner has forcefully stated the view that most amicus briefs are worthless and that clients are not getting their money's worth. See, e.g., Voices for Choices v. Illinois Bell Telephone Co., 339 F.3d 542 (7th Cir. 2003) (in chambers). I find that a surprising attitude for a pioneer in economic analysis in law. Why would clients--many of them organizations with sophisticated general counsel to protect their interests--get taken to the cleaners by other lawyers trying to persuade them to pay for the preparation of worthless briefs? This is not a snake oil market! I am more favorably disposed to amicus briefs (perhaps having written too many of them to think the endeavor silly) and regularly permit their filing when serving as motions judge. Some of these briefs add little, but it is easier to skim them (or pitch them into the circular file) when preparing for the argument then to try ex ante to determine which briefs will facilitate accurate decision. I have found several amicus briefs quite helpful. Nonetheless, I share Judge Posner's view that "me too" briefs are useless; it is the quality of argument, not a list of which interest groups are on whose side, that matters.

As for rules: again, anyone who thinks the Seventh Circuit a stickler should try practice in the Supreme Court. The Clerk's Office of that institution enforces rules to the letter; we are more lax.

One man's "merciless" enforcement is another's "even-handed" enforcement. Equable enforcement promotes efficient disposition of litigation, generally a Good Thing--both national and local rules are the result of extended collaboration between bench and bar to determine how best to handle appeals--though we often waive enforcement when the alternative is excessive delay or expense. The greater the press of business, the more important is compliance with the rules. Judges must read approximately 1,000 pages to prepare for a day of oral argument; enforcing rules that make these materials legible, to the point, digestible, and easy to handle is good for everyone. If the rules are good, enforce them; if the rules are bad; change them; there's little point in having good rules but winking at noncompliance.

Rules can be complex, and the Clerk's Office of the Seventh Circuit does its best to help lawyers comply. The Clerk offers a valuable service that too few lawyers use: if a draft brief is tendered before the due date, the Clerk's staff will check it for conformity to national and local rules, so that counsel can made any necessary fixes before the brief is reproduced. But counsel who prepare a brief for this court however they please (or however things work in the state court where they usually practice), without consulting the rules, are in for a surprise, and the plea "I didn't know!" is self-condemnation rather than justification.

I care principally about two rules and call attorneys to task to reduce the number of violations in the future. (Judges who do not believe in deterrence should become architects or playwrights instead; most of the legal system relies on it.) Enforcing the rules is costly to the individual judge, who must write more in the opinion and then deal with the responses to the order to show cause. Like other exercises in deterrence it has benefits only for the future; but if everyone decided to let today's violation pass in silence there would be too many problems tomorrow. Embarrassment or a $1,000 fine are trifling as penalties go; small wonder violations continue.

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. Tenure comes with a limit: the judicial role must be authorized by both the Constitution and a federal statute. Lawyers who ignore these requirements--or, worse, seek to pull a fast one--are imposing intolerably on their adversaries, on the courts, and on other litigants farther back in the queue for judicial attention.

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...!" No, indeed; but lawyers who follow national and local Rules 28(a) will cover the subject on appeal. (I often use the metaphor when speaking to groups about appellate advocacy. 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.)

Inviolable Rule #2 is Circuit Rule 30(a) and (b), which requires counsel to supply copies of the decision under review (and, in collateral attacks, any written rulings supporting the original judgment being challenged). It is impossible to evaluate an appeal without knowing what the court or agency did, and why. Lawyers sometimes respond that the opinion is in the record, so why reproduce it. This isn't always true (sometimes the opinion or evidentiary ruling is oral, and occasionally counsel fail to order the transcript) and, more to the point, judges may not have ready access to the record. There is one record, in Chicago, and three judges per panel. Of our 11 active judges, only 6 have principal chambers in Chicago. (Two of four senior judges who continue to hear cases also are located away from the headquarters.) Moreover, even the judges with principal chambers in Chicago often prepare elsewhere--at home, in Michigan, in Paris, or in my case in Alaska, where I escape to relax and work. Counsel must file briefs and appendices electronically, see Circuit Rule 31(e), so that judges can read wherever they find themselves. Electrons are much easier to tote around than those heavy protons and neutrons that constitute paper! When lawyers fail to comply with Circuit Rule 30, however, preparation of the appeal may be delayed or frustrated.

6. Several readers have emailed me to suggest that I ask you to comment on the importance of civility and respect in the courtroom, between opposing attorneys and between judges and attorneys. Also, on a related point, have you ever written an opinion that criticized an argument, an attorney, or a trial court judge in a manner that you later regretted as too harsh?

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). Comments in opinions on the merit of arguments made or actions taken, by counsel or district judges, may help avert recurrence and so can produce benefits net of any personal sting. It also can help potential clients distinguish good attorneys from mediocre ones or, worse, attorneys who put self-interest ahead of clients' interests. If judges don't reveal these things, who will? But it is never appropriate for a judge to belittle anyone for the sake of expressing superiority (power corrupts, and underpaid judges--see Question 13 below--should not take out the difference by lording it over others), or for one lawyer to demean another rather than chalk up legal or factual points.

7. The name "Easterbrook" is commonly preceded by the words "Posner and." Yet just as practitioners and the press tend to overstate the extent to which Justices Scalia and Thomas share the same legal philosophy, there have been a number of significant cases in which you and Judge Posner have disagreed over the proper outcome. In what ways does your approach to judging differ from Judge Posner's, do you have any major philosophical disagreements with his overall view of the law, and, where such differences or disagreements exist, why are your positions the correct ones or, at a minimum, preferable to his? Finally, before I leave the subject of Judge Posner, what are your views on "baby selling"?

Judge Posner and I both support economic analysis of law. We've been academic co-authors, served on the same faculty, hold views in the tradition of John Stuart Mill about the proper roles of collective versus private choice, have edited economics journals and been officers of the American Law and Economics Association, and have been colleagues on the Seventh Circuit for an extended period. No surprise, then, that we should be associated. But as your question observes there are differences.

Judge Posner is the federal judiciary's pragmatist-in-chief (see, in addition to his judicial writings, Richard A. Posner, Law, Pragmatism, and Democracy (2003)), while I think that judges should be concerned less about wise policy and more about sources of authority for life-tenured officials to make decisions. Judge Posner calls me a "formalist"; I prefer "legalist" (though "textualist" will do). "Formalist" implies a view that syllogistic reasoning generates all important answers, which I don't believe. My main question is whether texts (and history) grant the judiciary the sort of powers over a given subject that justifies displacing the resolution of elected officials or compelling private citizens to surrender their wealth, their liberty, and sometimes their lives. Arguments based on wise policy do not suffice; concrete authority is required, so that decisions are based on law rather than even well-informed choice and we have (to use a good phrase) a government of laws and not of men.

I've made more extended arguments for this position in Abstraction and Authority, already cited, and some other articles, including Statutes' Domains, 50 U. Chi. L. Rev. 533 (1983); Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119 (1998); and Judicial Discretion in Statutory Interpretation, which will appear Real Soon Now in the University of Oklahoma Law Review. A book-length treatment is coming (see Question 17 below). Eventually.

How often do the differences in approach matter? Not as often as a bald statement of position might imply. See Daniel A. Farber, Do Theories of Statutory Interpretation Matter?: A Case Study, 94 Northwestern L. Rev. 1409 (2000). Still, interpretive method matters often enough. For a recent decision that found us on opposite sides, see United States v. Mitchell, 353 F.3d 552 (7th Cir. 2003). [Editor's note: that decision can be accessed online at this link.]

8. The First Circuit is authorized to have six active judges, while the Ninth Circuit is authorized to have twenty-eight active judges. The size of the U.S. Courts of Appeals fall between those two extremes, with the Seventh and Eighth Circuits having the second-smallest number of authorized active judges, eleven. What in your view is the optimal size of authorized judges for a federal appellate court, and would the Nation be better served by having Congress increase the number of judges authorized to serve on the federal appellate courts or by paring back on the jurisdiction of the federal courts? Also, what is your view on whether the Ninth Circuit -- which is already by far the largest federal appellate court and which 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?

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. It is larger than the original Senate. Add senior judges, plus visiting circuit and district judges, and the effective size of the Ninth Circuit is closer to 50 than to 28. 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. On average, more than two years pass between the time any given judge of the Ninth Circuit sits with any other, which frustrates the ability to operate as a single institution. And its record in the Supreme Court speaks eloquently. See Richard A. Posner, Is the Ninth Circuit Too Large?, 29 J. Legal Studies 711 (2000) (studying unanimous or summary reversals, which cannot be attributed to philosophical differences between the Justices and the appellate courts). 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?"

No scientific answer to the question "how hot must porridge be to be just right?" (or how large a circuit should be), but I'm confident that 20 and up is impossibly large. Fifteen is do-able, but only when the court actually operates at that size. For the last decade, the Seventh Circuit has had no visitors and has operated at an effective size of 13 (including senior judges). We try hard to make decisions consistent. One vital procedure is Circuit Rule 40(e), which permits one panel to overrule another's decision. This means that judges convinced that there is a problem in circuit law can clean things up rather than introduce a hair-splitting distinction of the kind that complicates life for bench and bar alike. Another helpful procedure is the court's practice of changing panel composition daily rather than weekly. This means that as a rule one judge of the Seventh Circuit will sit with another on six distinct occasions annually. Frequent mixing and meeting promotes the idea that judges serve as proxies for the full court, rather than as free agents.

I don't know whether the number of appellate judges (about 180 all told) is too few or too many. Other branches of government determine how many federal laws must be administered by the judiciary. But if Congress is determined to add new business, then it should make corresponding adjustments to the appellate structure. More appellate courts, with fewer judges on each, are better than bulking up the existing courts. Extra courts of appeals may create more inter-circuit conflicts, but 18 or 20 would not make appreciably more than the 13 existing courts of appeals do already. (Each incremental court adds proportionally fewer conflicts; a 14th or 15th matters only if the first 13 would have been unanimous, and when that condition holds the marginal court is unlikely to think differently.) The current level of conflict is tolerable; indeed, the Supreme Court hears only half as many cases annually as it did when I was in the SG's Office.

One way of splitting the Ninth Circuit would be to break off the Pacific Northwest as a Twelfth Circuit. The states left behind still would have too many judges, but the judicial business within the new circuit would be more manageable without making things worse anyplace else. Or the court could be split along the San Andreas fault, where division is happening naturally. If neither approach is feasible, perhaps the court could be divided at the judge level. I favor vertical; others support horizontal; but neither approach has much political currency.

9. Your opinions tend to be a pleasure to read, which is something that I cannot honestly say of the opinions written by the vast majority of your colleagues on the U.S. Courts of Appeals. Why, in your view, do not more of your colleagues endeavor to write opinions that are interesting and accessible? And perhaps you would be so kind as to list no more than a handful of your opinions that qualify as your all-time favorites.

Writing good opinions is hard work and cannot be delegated. Opinions (like briefs, see the next question) should be simple, direct, and addressed to intelligent generalists. I learned these skills from many teachers, primarily my reviewers and colleagues in the SG's Office. I have had a long time to practice, which is why opinions by my own hand are better than those drafted by law clerks, for they have the pallor of institutional products. Judges can be direct and even venturesome; clerks can't. They cover all bases; qualify all utterances; pile on the jargon, vogue phrases, euphemisms, and acronyms; confuse nouns with adjectives (Fowler called the disease "noun plague"); suppose that intensifying adverbs make propositions stronger; and often assume that whatever is novel to them is novel to everyone else. These collectively give opinions the consistency of bread pudding.

Every year I reread Strunk & White's Elements of Style and Bryan Garner's Elements of Legal Style to guard against backsliding. I don't agree with all of their recommendations, but at least I know when a recommendation is being spurned and have reasons for striking off independently. Lawyers tend to be wretched writers, which is odd given that the written word is their stock in trade. Perhaps the problem comes from reading principally the work of other lawyers. Judges and other lawyers should spend more time with books and magazines, where exposition is at a higher level. If all lawyers would read Strunk & White and Garner even once, the world would be a better place. A turn through Ambrose Bierce's Devil's Dictionary wouldn't hurt, either.

A "handful" of opinions would be ten to twenty (by the counting conventions mentioned in answer to Question 2), but I'll cite only seven. All are more than a decade old, which avoids entanglement with contemporary disputes. I've selected them for a combination of substantive and stylistic reasons. See American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), affirmed summarily, 475 U.S. 1001 (1986); Kirchoff v. Flynn, 786 F.2d 320 (7th Cir. 1986); In re Erickson, 815 F.2d 1090 (7th Cir. 1987); In re Sinclair, 870 F.2d 1340 (7th Cir. 1989); United States v. Van Fossan, 899 F.2d 636 (7th Cir. 1990); Miller v. South Bend, 904 F.2d 1081 (7th Cir. 1990) (en banc) (dissenting), reversed, 501 U.S. 560 (1991); United States v. Marshall, 908 F.2d 1312 (7th Cir. 1990) (en banc), affirmed under the name Chapman v. United States, 500 U.S. 453 (1991).

10. Before leaving the subject of writing, what suggestions do you have for attorneys who file briefs in the U.S. Courts of Appeals? More specifically, what distinguishes an effective appellate brief from one that is not, what percentage of briefs do you find to be especially helpful and well-written, and is good legal writing, in your view, an art or a science?

It is an art--and like other arts is best learned at the feet of masters. I learned from my superiors at the SG's Office, who had learned from theirs in turn. Appellate practice groups in firms such as Mayer Brown Rowe & Maw (often staffed by refugees from the SG's Office) also are great places to learn.

An effective brief is simple, to the point, easy to read (no passive subjunctive constructions, please), addressed to a generalist (no jargon; no unusual acronyms; don't assume that the reader knows your corner of the law), and honest to a fault. Lawyers who face up to factual or legal weaknesses win respect and win cases; lawyers who dodge or substitute bluster lose respect; lawyers who dissemble get the trap door. The section on brief writing in Stern, Gressman, Shapiro & Geller's Supreme Court Practice applies to all appellate courts and is the best I know of. The Seventh Circuit publishes some of its own advice at http://www.ca7.uscourts.gov/Rules/handbook.pdf, a handbook now a remote derivative from Robert Stern's original. A set of guidelines on good physical presentation, at http://www.ca7.uscourts.gov/Rules/type.pdf, is part of the full handbook but worth consulting separately.

11. What role should an appellate judge's personal and political ideology play in deciding cases, and when if ever is it appropriate for an appellate judge to decide how to rule based solely on his or her personal preference? Also, if some federal appellate judges are going to decide cases based largely on personal preference, can U.S. Senators be faulted for assuming that every appellate court nominee might adopt that approach if confirmed? Finally, does the current tenor of the confirmation process cause you any concern as a sitting federal appellate judge, do you think that your nomination would have been confirmed as quickly and smoothly today as it was in 1985, and what if anything realistically can be done to improve the nomination and confirmation process?

A judge's personal and political views should play as little a role as possible. Judges are human (though to many lawyers it must seem otherwise), and as Holmes said have their "can't helps." And sometimes a statute grants a power to create common law, which inevitably depends on pragmatic considerations. But judges should not readily assume that such a power has been placed in their hands. Judges have tenure so that they can implement the law even when the public favors something more expedient. Unfortunately the Dark Side of Tenure is that judges who are insulated from politics also have leeway to place their druthers over the law. Resistance is mandatory. See also my answer to Question 7 above.

When political officials assume that judges strive to implement their own views at the expense of the law (or at least do so whenever they have an opening), and appoint (or handle confirmations) accordingly, they may participate in a self-fulfilling prophesy. A politicized appointment process--and I refer to the role of both the Executive Branch and the Legislative Branch--is more attractive to people with political rather than legal goals, and these people also are more apt to survive it as they have more friends, in both of the elected branches. I would have had trouble today, because after six years in the academy I had published views that were bound to offend or disappoint some interest groups, and I had no political sponsors (other than the one in the Oval Office). Senator Percy was neutral at best. (It was Senator Dixon, a Democrat, who assisted me through the Senate's side of the process!) Yet judges who come from the academy have not been the big offenders; this is true about those generally on the left as well as those generally on the right, and placement of some academics on the bench has considerable benefits for the legal system.

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?

12. A law review article titled "Who Would Win a Tournament of Judges?" concludes with the observation that if someone other than you or Judge Posner is nominated to fill the next U.S. Supreme Court vacancy, President George W. Bush will have some explaining to do. Is serving on the Supreme Court something that you now or ever have aspired to? Would it be appropriate for a judge with a realistic chance of being nominated to serve on the U.S. Supreme Court to consider how ruling one way or another in a pending case could affect his or her changes of being nominated or confirmed to the High Court? And in this era of filibusters and recess appointments, would you agree that a President who is seeking to fill a Supreme Court vacancy might have the most success nominating someone whom the opposing political party is likely to find unobjectionable or someone about whom little is known.

I'm in no position to give Presidents and Senators advice about how to find and evaluate candidates for the Supreme Court. But I can say (a) any judge who claims not to fancy a position on that Court is a liar, and (b) any judge who trims his opinions to fit the political times and enhance his chance of promotion is not engaged in "good Behavior" and should be ejected if he lacks the decency to resign. Litigants are entitled to decision according to law, not decision that boosts a judge's career.

Honest discharge of judicial duties means that anyone who serves on an appellate court for very long undercuts his chances, for that judge is apt to issue opinions that displease almost every faction. It is no accident that promotions from courts of appeals to the Supreme Court tend to come early in a judge's career, or not at all. Think of Learned Hand and Henry Friendly, who never received the promotion despite serving in times when judicial appointments were less overtly political. On the other side are Justices Stevens, Scalia, Kennedy, Thomas, and Souter, all promoted after serving seven years or less. Robert Bork had done enough in even six years on the bench to provide ammunition for opponents; John Parker and Clement Haynsworth encountered similar problems, unjustly in both cases, on account of their decisions. Justices Ginsburg (13 years) and Breyer (14 years) are outliers.

13. 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?

There's a queue to join the bench, so the salary must be too high!

But the existence of the queue is misleading, so that inference is unsound. Many people want to become judges for the power of the position, just as others will take pay cuts to join the Legislative and Executive Branches. Because judges hold authority by reason rather than recent election, making the job attractive to power-seekers is unfortunate, even if each believes that he seeks power only to do good.
Courts ought to include a mix of the different roles in the profession. We have had no practitioners since Daniel Manion joined in 1986, and none from a large firm since Philip Tone and John Paul Stevens in 1970. More recently, the required pay cut has been too drastic to make the office acceptable. A bench filled with lifetime bureaucrats (the alternative to the private bar or the academy, which also should not dominate) is one that is staff-dependent, for people at the top of hierarchies rely on aides.

What is more, it is cruel to set salaries in a way that disappoints expectations. Someone who takes a 50% reduction in income shouldn't be told in a few years that he must now accept 30% of his peer's wages. As Robert Bork often observed: "You can't put your kids through school on psychic income."

Judicial salaries now are tied to legislative salaries, and the need to improve judges' pay then provides an excuse for legislators to increase their own. That's regrettable, and most other western nations have found a different benchmark. A good linkage would be to the nonprofit sector, avoiding any prospect of the government paying big-firm wages. For example, one could lock judicial salaries to the average pay of tenured professors at top-20 law schools. The ABA recently proposed such a benchmark, see Federal Judicial Pay Erosion: A Report on the Need for Reform (Feb. 2001); Federal Judicial Pay: An Update on the Urgent Need for Action (May 2003), but did not follow through with a proposal to create an automatic link. Making the process automatic is important. Note that even with this lockstep judges would make less than scholars--for professors supplement their income with consulting and endowed lectureships. It is hard to imagine that federal judges have a lower value than the average scholar (though the latter might disagree).

14. You teach at a law school, are regularly in the market for recent law school graduates seeking to be hired as law clerks, and review on a daily basis the work of people who graduated from one law school or another. In what ways should the Nation's system of legal education be reformed and/or improved?

I haven't a clue. Sorry. Maybe that's because I think that the system of legal education does a pretty good job--and it can't be blamed for lawyers' lousy writing habits, which they may have picked up while writing undergraduate term papers in sociology. Law schools have a comparative advantage at doctrinal analysis; other skills must be taught through the apprenticeship system.

My only proposed reforms are incremental. One is to shorten law school from three years to two. That's enough to get across the legal method and an adequate base of knowledge. Many schools would offer longer programs (as business and medical schools do) for those who planned to enter specialties or teaching, and I expect that three-year and even longer programs would be popular. More choice, less regimentation. The other is to increase emphasis on statistical and other means to verify (or refute) the factual hypotheses that underlie many legal propositions. Too often teachers play the game of "it can be argued that..." without showing the students how their arguments can be tested and confirmed or rejected.

15. How do you make use of your judicial law clerks, and in what respects does that differ from the clerkship that you had following law school?

I use clerks the old fashioned way: to do research and serve as sounding boards. Both of my clerks (I hire only two) work on every appeal. We read the briefs and do what other investigation is needed, then discuss matters about a week before argument. That may lead to follow-up work. After argument we discuss again, and sometimes more research is in order. Then I'll write something and ask for criticism--on facts, substance, organization, or style--and proposals for improvement.

Learned Hand once told a clerk, who had asked if he could write a memo on some subject: "of course you may, but I will not read it." I'm not that anti-memo, but I think that continual interchanges are superior to paperwork.

Each clerk gets to prepare one draft during the clerkship. I'm too lazy to let them try more; it is much more work to go through the editorial process than to write from scratch. Judge Campbell, for whom I clerked, was more comfortable with drafts from clerks. After receiving them he treated the text as a post-argument memo, took out his No. 2 lead pencil and yellow legal pad, and started writing himself. That admirable approach has influenced my own use of clerks. I left with great respect for Judge Campbell and a desire to be as rigorous and careful as he was (and is). He also taught me that although it was necessary to do the work to cover all issues, it is not necessary to write each up: "explain what matters, and not all you have learned" is a good standard for appellate opinions.

16. After clerking for Judge Campbell on the First Circuit, you went on to one of the best jobs an appellate lawyer can have, working first as an Assistant to the Solicitor General and then as a Deputy Solicitor General of the United States. How did you secure employment in that office, under which Solicitors General did you serve, and what do you regard as the most significant case or cases that you argued before the U.S. Supreme Court? Also, did you try to obtain a clerkship at the U.S. Supreme Court, and in retrospect is not having clerked at the U.S. Supreme Court something that you regret?

I got the job by writing a letter to Robert Bork, then the SG, who checked with some of my professors at Chicago and called me in for an interview. We hit it off when I criticized the glacial pace at which scholars were producing the Holmes Devise History of the Supreme Court (it's still not done!). So he hired me.

The Washington Post noted that around the same time the SG's Office had hired three lawyers either fresh from clerkships or lacking the customary appellate experience. None of us had clerked on the Supreme Court. The Post concluded that good lawyers were no longer willing to work for the SG and attributed this to Bork's role in firing Archibald Cox as Watergate special prosecutor. The paper thought that dark days lay ahead for the Office with a second-rate staff. The three bottom-of-the-barrel selections were Robert Reich (later Secretary of Labor in the Clinton Administration), Danny Boggs (now Chief Judge of the Sixth Circuit), and me.

Although Bork hired me, and I worked closely with him and A. Raymond Randolph (then Deputy SG, now on the D.C. Circuit) on many high-profile cases (such as capital punishment, the Federal Election Campaign Act, school desegregation, and other topics), I was promoted by Wade McCree, Solicitor General in the Carter Administration. That's a testament to the apolitical nature of the office and to Judge McCree's confidence that the staff would do its job the right way, which I think we did. There was no "political deputy" during the Bork and McCree years; that position did not come about until the Reagan Administration. Those appointed Deputy SG from outside the ranks of assistants (Jewel Lafontant in the Bork years, Stephen Barnett in McCree's time) worked with the career staff as equals. Until his appointment as Chief Judge of the Court of Claims, the principal Deputy SG was Daniel Friedman, a career public servant and straight arrow. He was also a wonderful editor, responsible for the simple and direct style of SG briefs.

The most important step in my career was not serving as a clerk at the Supreme Court. Clerks are barred for two years from involvement in litigation in that tribunal, and thus from working at the SG's Office. Had I clerked at the Supreme Court I probably would have gone directly into teaching and would have lost fascinating and valuable experiences--not only as an appellate advocate, but also as an appellate judge. Some people passed the two years after clerkships in the Office of Legal Counsel before moving to the SG's Office (Michael McConnell, now on the Tenth Circuit; David Strauss, now on the faculty at Chicago; and Sara Sun Beale, now on the faculty at Duke, are examples), but I do not think that I would have done the same, and today I would have regretted the loss.

Significant cases that I argued include Trans Alaska Pipeline Rate Cases, 436 U.S. 631 (1978) (regulatory authority over initial rates of oil pipelines); A&P v. FTC, 440 U.S. 69 (1979) (buyer liability under the Robinson-Patman Act); Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1 (1979) (antitrust status of ASCAP and application of per se rules to joint ventures); Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984) (antitrust analysis of tie-ins); NCAA v. Board of Regents, 468 U.S. 85 (1984) (antitrust analysis of network television contracts for college football). The latter two came after I had left the SG's Office. Cases in which I worked on the brief but did not argue include Buckley v. Valeo, 424 U.S. 1 (1976) (constitutionality of the Federal Election Campaign Act); Gregg v. Georgia, 428 U.S. 153 (1976) (constitutionality of death penalty); Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (attorneys' advertising under the antitrust laws and the First Amendment); Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977) (school desegregation); United States v. Scott, 437 U.S. 82 (1978) (Double Jeopardy Clause); Regents of University of California v. Bakke, 438 U.S. 265 (1978) (use of race in student admissions); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) (constitutionality of veterans' preferences; role of intent in constitutional law); Reiter v. Sonotone Corp., 442 U.S. 330 (1979) (consumers as antitrust plaintiffs); and Industrial Union Department v. American Petroleum Institute, 448 U.S. 607 (1980) (cost-benefit analysis under OSHA).

17. You have referred in the past to a planned book on textualism, forthcoming "one of these years," with the title "Legal Interpretation." How is the book coming, and what can you say about its contents and goals? Also, the U.S. Supreme Court from case to case applies sharply different approaches to textualism. What's a lower court judge to do while he or she awaits the helpful guidance that your book is sure to supply?

Ah, this is a sore spot. Finishing the book has been delayed, in part by other business and in part by my unease about selecting the level of generality at which to read statutes. I've made some progress on the latter front; see Judicial Discretion in Statutory Interpretation, mentioned in answer to Question 7. While waiting for the book, people can read that article and the others already mentioned.

18. In 1996, you gave a talk entitled "Cyberspace and the Law of the Horse" at the University of Chicago Legal Forum in which you argued that "cyberlaw" is likely little more than "multidisciplinary dilettantism" and that lawyers should "let the world of cyberspace evolve as it will." Eight years later, what is your assessment of how the law has treated cyberspace and whether there is, needs be, or is but shouldn't be a field of "cyberlaw"? Also, in what ways has technology changed how you perform the duties of appellate judge, and what changes do you anticipate in the future?

My views are unchanged, see Cyberspace versus Property Law?, 4 Tex. Rev. L. & Politics 103 (1999), despite the best efforts of Larry Lessig and other friends to enlighten me. See Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 501 (1999). Perhaps I'm uneducable.

Technology is a different matter. Better word processing equipment has enabled me to write pithier opinions by making it easier to experiment, rearrange, and delete. The Internet and Adobe Acrobat enable briefs to be filed electronically and make it possible to work from Alaska, at the base of Mt. Alyeska where I can see three glaciers less than two miles from my front window. Thanks to DSL service, electronic briefs, and legal resources online, I can work as easily in Alaska as in my chambers in Chicago. Of course, in Alaska I take the risks of living with avalanches, volcanoes, earthquakes, tsunamis, and the Ninth Circuit.

19. Your brother Gregg is, among his many talents, a funny and perceptive writer about professional football (his "Tuesday Morning Quarterback" column is now found online here). And you are mentioned occasionally as "Official TMQ brother Frank," in which capacity you have coined the term "festime halftivities"; pointed out that since only bad guys -- Darth Maul, Emperor Palpatine -- end up being thrown into the bottomless pits, their purpose is to trap bad guys, therefore safety railings around such pits would be counterproductive; and once even conducted "an incredibly scientifically advanced analysis of the relationship between performance and appearing on national television." Are you a devoted NFL fan? Do you cheer on your hometown Buffalo Bills or have you lived in Chicago long enough to become a Bears fan? Have you ever used football analogies in any of your opinions (or wanted to), or are you content to leave the sports-themed rulings to your colleague Circuit Judge Terence T. Evans? Finally, a blurb on law.com once attributed one of your rulings to "Sixth Circuit Judge Gregg Easterbrook." Do you think that your brother would be willing to join the sometimes contentious Sixth Circuit, and might a career swap be in the works for you two?

As a public official, I root impartially for the Chicago Bears, the Green Bay Packers, and the Indianapolis Colts, all located within the Seventh Circuit. But the Bills still hold a special place in my heart--as do the bottomless pits in Star Wars, which demonstrate that once civilizations have achieved sufficient technological progress OSHA will wither away. I hope that Judge Evans one day will show up on the bench wearing a cheese head (he is very partial to the Packers); I'll retaliate with clip-on moose antlers (or perhaps the Darth Vader helmet one pair of clerks gave me). I'd never want to enter a contest with Judge Evans (or my brother Gregg) about either sports knowledge or sports humor, however; both are masters. I keep hands off sports; Gregg leaves law to me. Fair trade.

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

Reading, music, and hiking in the Ninth Circuit.

Posted 12:00 AM by Howard Bashman

20 Questions for Circuit Judge Paul J. Kelly, Jr. of the U.S. Court of Appeals for the Tenth Circuit: "How Appealing" is delighted that Circuit Judge Paul J. Kelly, Jr. of the U.S. Court of Appeals for the Tenth Circuit has agreed to participate in this Web log's monthly feature, "20 Questions for the Appellate Judge."

Judge Kelly was born in Freeport, New York in 1940. He attended undergraduate school at the University of Notre Dame and law school at the Fordham University School of Law.

He began the practice of law in New York City but soon relocated to the Roswell, New Mexico area, where he practiced for many years. From 1977 through 1981, he served two terms as a state representative in the New Mexico legislature. Thereafter, he relocated to Santa Fe, New Mexico to become the founding and managing partner of his firm's Santa Fe office.

In 1991, President George H.W. Bush nominated Kelly to fill one of the two seats on the U.S. Court of Appeals for the Tenth Circuit that Congress added in 1990, when the number of active judges authorized to serve on that court increased to the current total of twelve.

Judge Kelly's chambers are located in Santa Fe, and the Tenth Circuit has its headquarters in Denver, Colorado.

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

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

My favorite aspect of being a federal appellate judge is the opportunity to work with some of the brightest judges and new lawyers (law clerks) in the country. We delve into the most interesting issues that anyone who really enjoys the law could ask for. No two days are alike; the variety of cases never ceases to amaze me, from review of federal agency action to federal criminal and civil law to diversity cases.

My least favorite aspect is the isolation from both the bench as well as colleagues located in other states. I enjoyed practicing law and participating in the bar immensely; although I still participate in bar activities and interact with members of the bar, my participation is necessarily more limited.

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

The Honorable George L. Reese, Jr., District Judge of the Fifth Judicial District in New Mexico from 1961 to 1970, is the judge that I most admire. He was, in addition to being a very good judge and a humble person, an excellent teacher. Though he certainly didn't have to, he made sure a new lawyer wasn't blindsided; he took the time to educate recent members of the bar who appeared before him, either during the proceeding or in chambers. He demanded preparation and would not settle for less. I would suggest that if judges of today would take the time to be more than judges, our profession would be better for it. Our obligation to train new lawyers and share our skills goes beyond our law clerks, though that surely is a commendable tradition of the state and federal judiciaries. If judges begin to feel "above" those who appear before us, I think we will pay the price--a more contentious judicial system with less accountable lawyers.

3. How did you come to President George H.W. Bush's attention as a potential nominee to serve on the U.S. Court of Appeals for the Tenth Circuit?

I had been active in the political arena in New Mexico and had worked on the campaigns of several seeking office, including President George H. W. Bush and Senator Domenici. In my own campaigns for the State Legislature, I developed relationships with many state and federal officeholders. The circuit judge position I now hold was newly created; I made inquiry and was fortunate to receive broad-based support. Senator Domenici communicated that support to President Bush.

4. Please explain what led you, shortly following after entry into the practice of law, to relocate to New Mexico, the impact on your career path that the move caused, and the advice you offer others concerning the merits of getting started in the practice of law in a smaller locale?

Having grown up in New York with a father who was a judge (and at one point the administrative judge of his court), I decided I would be better off out from under his shadow. New Mexico seemed like a place where a person could go as far as he or she wished. Not only was it a beautiful state, but also an ideal place to raise a family. I joined a small firm by New York standards. When I left that firm for the court in 1992, it was one of the largest firms in the area with six offices in two states.

There are exciting opportunities and challenges outside the large cities for both career as well as personal advancement. I was able to work nights at the office as needed, but still be home for dinner with my wife and five children. This enabled me to participate more fully in their lives than if I had been commuting to and from the City. I also was able to participate in state and community activities--the ability to contribute to the world around us is important to me and I think it should be to others. As you can tell, I have no regrets.

5. 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? Also, one proposal under consideration for dividing the Ninth Circuit would involve moving the State of Arizona into the Tenth Circuit. Please share your thoughts about whether, and why or why not, moving Arizona from the Ninth Circuit to the Tenth Circuit ought to occur.

Whether to create a new circuit is a matter of Congressional prerogative and my view is hardly of much moment. Because you asked, and also recognizing and respecting that there are a variety of views among Ninth and Tenth Circuit judges, I'll answer the question. The Ninth Circuit, with its intra-circuit conflicts and its large cadre of judges, is somewhat unwieldy and it seems to me that all would gain by creating two circuits. There is modern precedent for such a division--the Tenth Circuit was carved out of the Eighth Circuit and the Eleventh Circuit out of the Fifth Circuit. I have heard several proposals for dividing the Ninth Circuit and would not have objections to any of them. Arizona would, in my opinion, be a very logical addition to the Tenth Circuit. Many issues arising out of Arizona are similar to those arising in Tenth Circuit states. Of course, the additional golfing opportunities would be very attractive.

6. A proposed amendment to the Federal Rules of Appellate Procedure would allow citation to unpublished, non-precedential decisions in briefs filed in all federal appellate courts. That proposed rule appears to mirror in substance a local rule currently in effect in the Tenth Circuit. Where do you stand on the question of allowing citation to "unpublished" opinions? Do you believe that federal appellate court panels should be able to designate some of their rulings as "non-precedential" upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why? Finally, has the Tenth Circuit's local rule caused you to spend more or less time preparing "unpublished" opinions than you previously spent, and has the rule caused your court to treat its unpublished opinions as precedent?

I am not averse to letting parties use whatever authority they can find. Judges are quite capable of deciding what authority may be relied upon comfortably. Although each case is important, some are better suited for developing rules and are thus published and "precedential." While I believe that parties ought to be able to cite any decision available, I also think that judges ought to be able to designate decisions as precedential or non-precedential. This has two advantages: first, it is useful to the practicing bar, which already has more than enough reading from us; second, it requires the court to consider carefully the precedential nature of its opinions.

Regardless of how designated, I try to ensure that every disposition, whether published or unpublished, is the best that we can do. We engage in the same analysis and review regardless of whether the appeal is pro se or counseled by one of the largest law firms, though the ultimate decision in unpublished cases has been condensed. Consequently, our rule has not caused me to spend any more or less time on any given case.

While our rule states that unpublished decisions are not "precedent," I look to the analysis and reasoning in those cases to assist me in whatever case I am working on.

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

Let me preface this by saying that I have seen many great briefs as a circuit judge and I continue to be impressed by the quality of most submissions. I do have some suggestions though. First, carefully choose the issues you raise on appeal. Look critically at those issues and if they are marginal and have no real chance of success, either don't appeal or narrow the issues. Second, having chosen to appeal, develop each issue. Start at the beginning, get to the middle and reach a conclusion. Redundant materials with no apparent organization will lose most readers. Third, proofread your brief (more than once) before you file it. We review hundreds and hundreds of briefs every year; you don't want us distracted from the merits by missing verbs, misspelled names, incorrect citations, improper grammar or sentences that run for pages. Enough said.

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

Once again, the quality of oral arguments and the commendable level of preparation continually impress me. I appreciate the assistance provided by counsel. My suggestions would be as follows. Consider developing a theme that compliments (but is distinct from) your brief. Time flies, so hit your strongest one or two points--you won't have time to speed through all the issues. Know the facts of your case and how those facts integrate with the law so you don't find yourself unable to recall whether a key fact was alleged or proven. You also need to know your case well enough so you can answer a question directly and then flow back into your argument. This can only happen if you have prepared, rehearsed and prepared some more.

9. In researching your court, one of the themes that I found regularly repeated was the court's very high level of collegiality, a trait that would be welcome, but is not currently always found, throughout the entire federal appellate court system. What to your mind distinguishes the Tenth Circuit from the rest of the federal judicial system, and do you think your court's relatively low profile in the minds of political operatives at the national level has helped in gaining the confirmation of four judges during George W. Bush's tenure as President?

While I have enjoyed sitting with other courts, naturally I think the atmosphere on the Tenth is exceptional! So far every judge who has come to our court, regardless of background or philosophy, has made a conscious effort to get to know colleagues and to socialize when we sit together and at other times during the year. Collegiality is a product of respect before disagreement (and we do disagree on some issues). It takes real effort on the part of each judge to maintain collegiality. But the rewards far exceed the gains. I think that all of our judges really look forward to going to court terms and functions.

The four new judges on our court are exceptional in their own right. Though some would like to politicize the process, it bears noting that the Senators from the Tenth Circuit states (from both sides of the aisle) lined up behind them.

10. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as "pragmatic." How would you describe your judicial philosophy, and what sort of cases do you find the most difficult to decide?

I would like to think that it would be difficult to place me in any particular category. Let me explain why. As a lawyer, I had an extremely broad spectrum of clients, from indigents to Fortune 500 companies, and a general practice, from cases involving cattle rustling to public utility regulation. As a result, I simply try to decide each case that comes before me based on the applicable law applied to the particular facts of the case.

The most difficult cases for me are death penalty cases, both federal and state collateral attack. Regarding state death penalty sentences on collateral attack, we have a limited standard of review and must pay deference to most state court determinations. That said, it is quite traumatic to allow someone to be executed when it is evident that, while the person is probably guilty, the lawyering was not up to my standards, but it met the constitutional minimum.

11. What role should an appellate judge's personal and political ideology play in deciding cases, and when if ever is it appropriate for an appellate judge to decide how to rule based solely on his or her personal preference? Also, if some federal appellate judges are going to decide cases based largely on personal preference, can U.S. Senators be faulted for assuming that every appellate court nominee might adopt that approach if confirmed? Finally, does the current tenor of the 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?

Judges reach the court via different routes and from different backgrounds. We don't decide cases in a vacuum. But a judge's personal and political leanings should play no role in deciding a case. It is completely inappropriate to decide cases based solely on one's own personal preferences.

Having said that, I have yet to see a judge rule on a matter based largely on personal preference in my twelve plus years on this court. I am troubled that some involved in the confirmation process apparently do not recognize that good lawyers, by education and training, can become judges and fairly consider controversial cases and not be co-opted by one side or the other. The lower federal courts write against a rather prominent backdrop of statute and precedent. It is out of line (particularly for attorneys) to suggest publicly that, because a nominee argued on behalf of a particular client or position, he or she could not objectively decide a case in favor of an opposite position. It is equally specious to suggest that because a judge in a particular case came down on one side or another, he or she would favor that side forever more.

My concern with the current tenor of the confirmation process is that the process has become divorced from reality. The issue ought be whether the nominee is a first-rate and productive lawyer and a person of integrity, regardless of personal philosophy. If those were the criteria, a fair, competent and balanced judiciary would be assured. As the confirmation process becomes more contentious (and the ostensible concerns become more shallow), I fear that stellar potential nominees will not subject themselves to it and our federal judicial system will suffer.

Politicizing the confirmation process erodes respect for the judiciary by implying that what cannot be achieved legislatively may be achieved through judicial selection. The Constitution never intended that. Unfortunately, unless those on both sides of the aisle who "advise and consent" recognize the larger need for objectivity in the process, nothing realistically can be done to improve the process.

12. 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?

Although the salary may seem generous to the person on the street, I think almost all who know the facts would be persuaded that the salary paid to Article III judges is too low. An important tradition of the federal judiciary is its wealth of experience. Most recruited to the federal bench have spent many years acquiring broad-based experience in the legal system; nominees are at the peak of their earning capacities. Unless independently wealthy, they may very well forgo public service in the form of a judgeship because of the salary reduction it entails. Ultimately, the federal judiciary will be the worse for it. It is in the best interest of the country to have a stable, productive and diverse federal judiciary.

As anyone who follows the trends realizes, our term law clerks that serve for about one year after law school often receive starting salaries in the private sector that equal or exceed our own. University presidents and deans of top law schools command far higher salaries. Given the tremendous responsibility entrusted to federal judges and their accomplishments, I would suggest that the salary should be commensurate.

Congress should recognize that the people who we want to be judges are at the top of their profession and will make a contribution for decades. No one suggests that the salaries can (or should) equal those paid to top lawyers in the private sector, but the salaries need to be in line with those at the top of the public and academic sector where the mission is public service. As has been suggested, a commission to recommend salaries to Congress ought to determine objectively what is fair and just in this area. Once salaries are set, periodic and automatic adjustments for inflation would go a long way toward preventing a recurrence of this problem.

13. In what ways, if any, does having served as a state legislator influence your work as a judge?

Being a state legislator taught me how to read a bill. It also reinforced my strongly held belief that legislators make the law codified into statute, not judges. Finally, it reinforced my reluctance to read much into legislative history, given the myriad reasons why legislators vote for a bill. No one guarantees that a bill passed and signed into law will not be what some consider ill-advised or even absurd, but it is not the place of the courts to "fix it." Along that line, my legislative experience has made me cautious about superimposing the court's will for that of the people expressed through their duly elected representatives and executive.

14. Your father served as a trial judge in the New York State court system, and I understand that it was similarly your ambition to be a trial judge. Please explain the extent to which you have been able to serve as a trial judge by designation on the U.S. District Court for the District of New Mexico and how you have managed to fit that additional judicial service into your workload as an appellate judge?

It was my ambition to be a trial judge. As a practicing attorney I tried cases, all kinds of cases, all of the time. After joining the Court of Appeals and seeing how understaffed and overworked the district judges were, I began to offer my services as my schedule permitted and as needed. Though I have sat in several districts, my work now is confined mostly to New Mexico, having been "placed in the assignment wheel." I now carry a trial load equal to about 25% of what a senior district judge in New Mexico handles. How do I handle a dual caseload? As I tell my law clerks, "That's why God made nights." My clerks enjoy the opportunity to work on district court cases that culminate in a trial or hearing, and both my appellate docket and my district court docket are completely current.

15. I understand that you have long served as a volunteer firefighter and EMT, and that you are now the oldest active volunteer firefighter in your town. Are there any interesting stories you can share concerning these activities, how did you become involved in these activities, and why do you continue to pursue them?

Everyone needs a second childhood. I am in the eighteenth year of mine as a firefighter/EMT. There are millions of stories in this city--in my other life (as a firefighter/EMT) I have seen life as few judges have. I have worked structure and wild land fires, fatal car accidents, shootings, overdoses, suicides, domestic violence and the like. As you probably know, EMTs interface with law enforcement. Sometimes when I preside as a trial judge, a police officer will keep looking at me and I know that he's thinking "I know him from somewhere," but he can't make the connection. Or sometimes, as an officer leaves the witness stand, it suddenly dawns on him where he has seen me and he will say, "see you later, Paul."

I've even had professional contact with my children in my capacity as a firefighter/EMT. One night, I responded to a call involving a patient whose injuries from a very severe car accident and fire necessitated that she be airlifted to the University of New Mexico Trauma Center, sixty miles away in Albuquerque. We arranged for the transport, and the treating physician on the other end was Dr. Paul Kelly (my son), then a resident surgeon. When I told my wife, she said the patient had to survive--she had a Paul Kelly on either end of her treatment. Yes, the patient survived.

I live outside the city limits of Santa Fe and all fire and emergency medical service is volunteer. Having always been interested in both types of service and not realizing the hundreds of hours of training required, I just volunteered. I have to put in more hours of continuing education to keep up my EMT license than I do for my law license, but I think it is worthwhile.

16. You served on the three-judge Tenth Circuit panel that considered Timothy McVeigh's appeal from his judgment of conviction and death sentence. Because that case involved a direct attack on the federal government and the federal judiciary, did it present unusual challenges on a personal level? And what do you recall your reaction was, assuming you had one, to news reports that issued shortly before the date on which McVeigh's death sentence was to be carried out that the federal government had uncovered a significant amount of additional evidence that it should have turned over to McVeigh's defense attorneys before trial?

The McVeigh case was a tragic case for all involved. I did not feel any particular challenges on a personal level other than the challenge to get it right. The panel took each motion as it was filed and I feel confident that each was handled correctly. I make it a point not to listen, view or read news reports of cases in which I am involved.

17. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven't been? Also, how if at all did the new "Law Clerk Hiring Plan" change for better or worse your experience in hiring law clerks who will be reporting to work in the fall of 2004?

Like all federal judges, I try to hire the best and the brightest. Apart from solid academic achievement, demonstrated writing ability and the ability to complete tasks on time, I also look for well-rounded individuals who are fun to have around. A