APPEALS AND FEDERAL POLITICS
Appellate jurisdiction is an intricate subject not much taught in law schools. I became for a time one of the poo-bahs of the topic. For those not familiar with its delicacies. I wrote an encyclopedia article a few years ago. Appeals. It is the product of forty years of engagement in federal judicial politics, an engagement having almost no results of which I can speak. I have also been involved at times in state politics. See Judicial Independence and Accountability.. I have also at times served as critic of the role played by the Supreme Court of the United States. In 2010, that is my primary concern.
In 1965, not long after I had moved to the University of Michigan, Geoffrey Hazard, then the Director of the American Bar Foundation, invited me to direct a study of the United States Courts of Appeals, institutions beginning to show stress from excessive caseloads and responsibility delegated by the Supreme Court. He asked me if I might be unduly intimidated by having my former teacher Archie Cox as chair of my advisory committee. I admitted having a high regard for Archie and that led him to recruit Bernie Segal as chair of my advisors. An elegant committee was recruited; it included Leon Jaworski (later the prosecutor of President Nixon), Thurgood Marshall (then 2d cir), Carl McGowan (DC cir), and Paul Mishkin (Berkeley). We met seven times over a three year period. During that time, Bernie was elected President of the ABA.
Among the first issues we confronted was circuit splitting. We thought that both the 5th and 9th should be split and I made the case to Congress for the committee, along with others. The 5th was split; the 9th abides.
Bernie frequently referred to me in meetings as the Reporter for the Committee. I never challenged the term, in confidence that we would all agree at the end, anyway. But it was not to be. Bernie insisted that we should recommend that panels of the courts of appeals should be reduced from three to two, a third judge being called only if the first two were in disagreement. So far as I could tell, he was the only member of the committee who wanted to recommend that, but no one was willing to say so bluntly. It was left to me to refuse to include that in my final report to the ABF. The outcome was that the ABF did not publish my study, but a very short monograph I wrote as a committee report and that included Bernie's favorite notion. Bernie had been my patron in securing my election to the American Law Institute, and he never quite forgave my ingratitude.
The main point on which our committee had easily reached agreement was that the nation needed a new national court and should not rely on regional institutions to elaborate national law. That was the theme of my article, which was published in the Harvard Law Review.
While the ABF Project was underway, the Chief Justice appointed an elegant committee chaired by Paul Freund to study ways to lighten the burden on the Supreme Court. That committee quickly reached the same conclusion as the ABF committee, although its scheme differed in the details. They attracted enough interest to inspire a nationally televised discussion in which I participated with Yale's Alex Bickel, who represented the Freund Committee. Strangely, nothing happened.
Then came a commission appointed by the United States Senate chaired by Senator Hruska and staffed by Leo Levin from Penn. They came to a conclusion similar to that of the two preceding groups. In due course, a committee appointed by the Judicial Conference of the United States would come to a similar conclusion and recommended the creation of another national court in the distant future.
Meanwhile, in 1970, we organized the Advisory Council on Appellate Justice. Columbia's Maury Rosenberg led the way. Dan Meador of Virginia was the other mainspring. We were summoned by the Federal Judicial Center led by Al Murrah and usually met in its office. It was an especially amiable group that included Seth (LA) and Shirley Hufstedler (9th cir at the time), Harold Leventhal (DC cir), John Frank (Phoenix), Murray Schwartz (UCLA), Griffin Bell (11th cir), John Minor Wisdom (5th cir), Al Tate (then Supreme Court of Louisiana), Roger Cramton (then an Assistant Attorney General), and Erwin Griswold (Solicitor General at the time). Erwin, who had been a daunting teacher, became a close friend whose company I learned to enjoy very much.
While we were meeting, I spent a year at Columbia with an office next to Maury's. That year I also did an empirical study of appeals taken by the United States. Erwin arranged for me to have access to confidential memoranda by Justice lawyers recommending that appeals be taken or not. I demonstrated the unsurprising fact that the government's appeals were based almost solely on professional judgments regarding their merit.
Also, at that time, I was recruited by Howell Heflin, then Chief Justice of Alabama, to serve as Reporter to his committee advising on appellate law reform. They got a lot done because their courts were in dismal condition and Heflin was an energetic and commanding law reformer, perhaps the most effective of the age.
In 1975, we presented the Advisory Council views to a national conference held in San Diego. I was program chair and edited four volumes of readings containing every possible idea about appellate process and organization. The conference was attended by 360 lawyers, judges, and scholars, and was a smashing critical success. But it resulted in scant reform.
Rosenberg, Meador and I then produced a book, Justice on Appeal, that expressed the advice of the Advisory Conference. West published and circulated the book for free. While we were working on the book, Dan lost the vision in one eye.
When Carter was elected in 1976, Griff became Attorney General, and Maury became Asst AG for law reform. He remained for two years and was succeeded by Dan. Dan lost his other eye while in DOJ, but Griff made him stay on the job and he maintained an admirable career notwithstanding his disability.
On Dan's watch, at last Congress created the Federal Circuit. But, alas, that was not precisely what most of us had in mind, and the nature of its jurisdiction made it a mistake of a sort foreseen by many, most especially by John Frank. As specialists, the judges of that court are enamored of intellectual property because it is the form of entitlement they create. They are seldom inspired by the idea of the public domain. If they keep going, they may confer a patent on Christopher Columbus for discovering America.
At least since the advent of Chief Justice Taft, Congress has largely washed its hands of responsibility for the structure and organization of the federal courts. Mostly, that is a good idea. But a conference of judges, like a conference of any other professional group, is incapable of giving serious consideration to reforms that would subordinate its members. Because subordination is sometimes what is needed, and won't be done without their approval, nothing happens. On these issues, law reform is not merely a sport for the short winded, it is one for Superman.
. I did not altogether forsake the subject of Appeals. I worked with the staff of Law and Contemporary Problems to restate the law of appellate jurisdiction as an encouragement to Congress to authorize the rulemakers to clarify that badly muddled subject. It did and they did, although not, to be sure, just because we told them to. And I have continued on occasion to be invited to speak about these matters. When Dan retired, I wrote in his honor one more expression of thoughts he and I have now entertained for almost forty years. The Obsolescence of the United States Courts of Appeal.
Meanwhile Dan, by then blind, assembled a casebook on Appellate Courts to which he attached my name and Maury's. My contribution to that work was miniscule, and I had no occasion to teach from it until 2005. Undaunted by his disability, Dan went on to publish two novels. He is surely the most admirable person with whom I have worked, and that includes some very, very admirable folks.
I did not forsake the subject, but in the 1990s began to redirect my interests to the state courts. See Judicial Independence and Accountability: State Courts.
In 2005, Tom Baker and Joan Steinman undertook to revise the Meador casebook on Appellate Courts. I undertook to teach from it in the spring of 2006. But as I was preparing the course, I got a postcard from Mike Tigar calling attention to the fact that he has moved his home to Pittsboro, North Carolina, only twenty miles away. Because he has published the definitive work on Federal Appeals, I enlisted him to take over the course. I sat through all the classes but one, and conducted the last two meetings for discussions of the politics of appellate jurisdiction and judicial selection. In 2007, I reviewed the casebook for the Journal of Appellate Practice and Process; I strongly urged other law schools to offer the course to future appellate law clerks as a means of assisting the appellate judiciary in keeping a clear head about their role.
In 2004, as a result of Dan Meador's initiative, I became a Fellow of the American Academy of Appellate Lawyers. We conducted a national conference in 2005 to celebrate the 30th anniversary of the 1975 Conference. My remarks at the 2005 Conference were an echo from 1975. My ideas are not those the federal judiciary generally take seriously. But I continue to give them voice. I have in 2008 urged this organization, among others, to seek the removal of Justice Gabelman from the Supreme Court of Wisconsin to enforce the law of professional responsibility that he violated beyond measure in his campaign for election. He is, alas, still on the court as a disgrace to his state.
In 2009, I participated in two conferences on this subject. At Marquette, we discussed criminal appeals. There I argued for the lost value of transparency and the duty of appellate judges to demonstrate that they take personal responsibility for their courts' decisions. At the Federal Circuit Conference, I urged that other institutions similar to the Federal Circuit be established to provide greater stability in the interpretation and enforcement of other federal laws. Both of these presentations were a recall of the work of the Advisory Conference that had been completed, with little effect, three decades earlier.
These ideas are of course related to those that I have since 2005 participated in advancing regarding the role of the Supreme Court of the United States, especially the idea of replacing the "cert pool" of law clerks with a panel of senior circuit judges.
My published writings on this subject are:
Accommodating the Workload of the United States Courts of Appeals (American Bar Foundation, 1968)
Crowded Dockets and the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 Harv. L. Rev. 542 (1969)
The Power of the District Judge, 3 Ga. L. Rev. 507 (1969)
United States Appeals: A Field and Statistical Analysis, 11 Houston L. Rev. 1104 (1974)
A Foreword to the Study of the New Alabama Rules of Appellate Procedure (West 1974)
Appellate Justice: 1975 (editor) (National Center for State Courts, 5 vols.)
Justice on Appeal (West Pub. Co., 1976) (with Meador & Rosenberg)
Current Developments in Judicial Administration, 80 F.R.D. 180 (1978)
Cultural Narcissism in Law, 93 F.R.D. 734 (1982)
Federal Appellate Jurisdiction, 47-2&3 Law & Contemp. Prob. (1984) (Editor) (double issue)
Toward a Federal Interlocutory Appeals Act, 47-3 Law & Contemp. Prob.165 (1984)
The Function of the Civil Appeal: A Late Century View, 1978 S.Car.L. Rev. 411 (1987)
Courts of Appeals - District Court Relations, in The Federal Courts in the Twenty-First Century (Federal Judicial Center, 1990)
The Unknown Court, in Restructuring Justice (Hellman, ed., 1990)
Appeals (Michie & Co. 1994) (edited with Meador and Rosenberg)
Virtual Civil Litigation: A Visit to John Bunyan’s Celestial City, 98 Colum. L. Rev. 501 (1998), republished as Virtuelles Ziviverfarhren in den USA: Ein Besuch in John Bunyans Himmlischer Statt in ZZZ International (Spring 1999) and in American Bar Association Judicial Division, The Improvement of the Administration of Justice 477 (7th ed 2001)
Judicial Independence and Democratic Accountability, 61-3 Law & Contemp. Prob 79 (1998)
The Obsolescence of the United States Court of Appeals, 15 J. Law & Politics 515 (1999)
Appeals, 1 Encyclopedia of Social Sciences 585 (2001 ed)
A Critical Assessment of the Cultural And Institutional Roles of Appellate Courts: The Second Edition of Appellate Courts: Structures, Functions, Processes and Personnel (Meador, Baker & Steinman), to be published by 9 J. App. Prac & Process 231 (2008)
Justice on Appeal in Criminal Cases: A Twentieth Century Perspective, 93 Marquette L. Rev. 458 2010)
The Federal Circuit: A Model for Reform (with Paulina Orchard) 78 George Washington L. Rev. 574 (2010)