John D. Bates

Summary of Oral History of Judge John D. Bates

By William Marmon

The Oral History of Judge John Bates, who has had a remarkable career in the law, took place over two years, commencing in January 2020 and ending in April 2022, when Judge Bates was a Senior Judge in the D.C. District Court. At the time of this Summary, July 2024, Judge Bates remains active as a Senior Judge. The Oral History, with interviewer John Cooney, was done in eight two-hour sessions for a substantial 290 pages.

Judge Bates tells of his birth in Elizabeth, New Jersey in 1946, where his father was a “white collar” production engineer with Singer Sewing Machine Company, and his Mother raised John and three siblings, an older sister and two brothers, one older and one younger. Judge Bates went to Wesleyan University, where his father had gone, and then into military service as a lieutenant, including time in Vietnam in a finance job in Qui Nhon Province. He was spared any serious combat and tells the funny story of riding through a somewhat dangerous mountain pass with a friend who mistook backfires from the Jeep as enemy fire, grabbed his rifle, and was ready to fight until Judge Bates explained the situation.

After law school at the University of Maryland, a clerkship with U.S. District Judge Roszel Thomsen in Maryland and three years as an associate at Steptoe & Johnson in Washington, D.C., he joined the U.S. Attorney’s Office in D.C. as an Assistant United States Attorney in 1980. In 1987 he was promoted to Chief of the Civil Division of the U.S. Attorney’s Office. He continued to hold that position while detailed as Deputy to Independent Counsel Kenneth Star during the Whitewater investigation from 1995 to 1997. He examined Hillary Clinton in the grand jury during that period and notes that notwithstanding that experience, she voted for his confirmation as District Judge in December 2001, along with 97 other senators in unanimous approval of his nomination by President George W. Bush just a few months earlier.

The nomination and confirmation process for federal judges was much more relaxed then as opposed to now. “It is a different world,” said Judge Bates, as he explained how informal and relatively stress free his confirmation was – no “murder board” prep and only one softball question at his Judiciary Committee hearing, where he sat with two other district court nominees.

Judge Bates then provides a long and interesting inside view of his impressions of and preparations for his new position, including the role of his Deputy Clerk Tim Bradley and his Court Reporter Bryan Wayne, both of whom stayed with Judge Bates for over twenty years and were with him at the time of this Oral History. The biggest adjustment for him as a newly appointed Judge was the immediate assignment of 300 civil cases, which Judge Bates remembers as “a pretty daunting dump of responsibility.” One way to manage an overwhelming docket, Judge Bates found, was to prohibit written discovery motions in favor oral requests to law clerks with opposing counsel present, only after which he resolved the issues.

Interviews Five and Six of the Oral History include discussion on: (1) Judge Bates’ judicial philosophy and principles and how they evolved over twenty years; (2) an important habeas corpus case where, over the objection of the Department of Justice, Judge Bates established that the writ was available to a U.S. citizen held in Saudi Arabia; and (3) Judge Bates’ appointment by Chief Justice Roberts to the Foreign Intelligence Surveillance Act Court (FISC) in 2006, serving as Presiding Judge from 2009 to 2013, with extensive commentary on the activities and structure of the FISC (to the extent possible without disclosing matters still classified.)

Later in the Oral History Judge Bates discusses notable and high-profile cases, often with inside information and color, including:

1. Committee on the Judiciary of the House of Representatives vs Miers, 2006, where Judge Bates held that a House committee could investigate certain activities of the executive branch, and that Harriet Miers had to comply with a subpoena to appear before House committee. The issue of whether she had to answer questions was not resolved.

2. Shelby County vs Holder, 2011, where the Supreme court, in a 5-4 vote, reversed Judge Bates (and others), who had upheld the constitutionality of key sections of the Voting Rights Act. The Shelby County case monopolized Judge Bates’ Chambers for months, starting with a thorough analysis of the 15,000 page Congressional record. Judge Bates produced a 45-page opinion, of which he remains proud. Even though he recognizes the supremacy of the Supreme Court, and that “my opinion is really in the trash bin of history,” he takes some solace from Ruth Bader Ginsburg’s dissent, which noted his attention to the record. And, he says in hindsight, “Shelby County [as decided] really helped to open the door to a lot of State-sponsored voter changes that had discriminatory impact…that continues today.”

3. DACA (Deferred Action for Childhood Arrivals). Judge Bates says that along with Shelby County, his DACA case, also ultimately decided by the Supreme Court in June 2020, were “the most challenging and impactful” cases of his career. The DACA case came in response to President Trump’s order to terminate the program, popularized as a way to protect children brought to the country illegally. Judge Bates’ opinion, with no intervening circuit court of appeals decision, was upheld by the Supreme Court 5-4, winning the day for “dreamers” who had signed up for the program. (Subsequent troubles for the DACA program are not discussed in this Oral History.)

Also covered in the Oral History are Judge Bates’ service as director of the Administrative Office of the United States Courts and his service on the Advisory Committee on Civil Rules, including his thoughts about how they worked and should work. He was later named by Chief Justice Roberts as Chair of the Standing Committee (formally known as the Judicial Conference Committee on Rules of Practice and Procedure), described by Judge Bates as “the umbrella committee that all the rules advisory committees report to and through.” One area of study by the Standing Committee involves rules to insure smooth functioning of the judiciary in emergency situations like the COVID pandemic.

Judge Bates’ oral history is a fascinating review of a remarkable career that took place among many notable events over the past four decades.