Alan Kay

Summary of Oral History of Alan Kay

by James E. Rocap, III

Magistrate Judge Alan Kay (1934 – 2024) served as a Magistrate Judge for the United States District Court for the District of Columbia from 1991 to 2016, serving the court afterwards in a senior capacity. In 1997, Professor Dan Ernst (Georgetown University Law Center) sat down with Judge Kay over four sessions to record his oral history. It is rich in history, both of Judge Kay’s life and career, as well as of life in the District Court in the 1960s. In the last session, Judge Kay provides significant and valuable insight into his approach to mediation, professionalism among lawyers, and the expanding scope of Magistrate Judges in the 1990s.

Judge Kay was born in London, England on July 6, 1934, a descendant of Russian Jews who had emigrated earlier in the century to London. He was an only child when World War II commenced. His father entered the British army and served throughout the war. His mother tragically died during the war, when he was 8 years old. Until his father returned, Kay was raised by an unmarried family member, and he attended grade school and high school in London. After the war, his father returned and remarried. In 1952, when Judge Kay was on the cusp of entering the London School of Economics, his parents decided to emigrate to the United States. While disappointed in their decision, he agreed to stay with his family. Not yet to his 18th birthday, he arrived to the Washington D.C. area on his own in May 1952, living with a relative in McLean Gardens until his father’s arrival in 1952 and his stepmother’s arrival in 1953., He applied for admission to George Washington University (GWU) on the recommendation of an individual at the American Embassy in London.

With only $125 in his pocket and no financial assistance available from his parents, Kay worked hard to have enough money for tuition and other college costs. He took a succession of jobs until February 1953, when he entered GWU. While in school, he continued working as a security guard at the British Embassy to make enough money to sustain himself and his education. Judge Kay discusses these and other challenges at length, including his awareness of his “differences” (a British accent and Jewish heritage), his need to assimilate into American culture, his initial fascination with the sport of baseball, and his impressions of Americans and America (“so many cars” “such informal dress”).

At the end of his undergraduate studies, Judge Kay decided to enter law school, despite his fascination with economics, having concluded that his statistical skills were lacking and that the job market for economists was a thin one. He had no sense of what type of law he might pursue after law school, until GWU Dean Potts advised him of an open position that launched his career in litigation. Judge Alexander Holtzoff, “a giant certainly in this community,” was looking for a law clerk. After an interview, he began working for Judge Holtzoff in November 1959, even though he was not yet a naturalized citizen (a status Judge Holtzoff strongly advised him to change). Judge Kay’s recollections and observations of Judge Holtzoff in the courtroom and as a judge are well worth reading: “supremely confident in his own judgment”; “a martinet in the courtroom”; enamored with the British system of barristers and solicitors; his view that the court of appeals was not a superior court, just a reviewing court; and of course his well-known willingness to comment on the evidence in front of the jury. Judge Kay explains candidly the qualities of Judge Holtzoff that he admired and those that he did not.

In the Fall 1960, Roger Robb, then in private practice and not yet on the USCA bench, approached Kay about joining a new agency, to be called the Legal Aid Agency, as one of three staff attorneys. The Agency’s purpose was to represent a portion of the many criminal defendants who at that time were being represented pro bono by private attorneys, who in turn were chafing under the burden. He became the first hire of the organization that would later become the Public Defender Service, and worked closely with the young attorneys in Georgetown’s Prettyman Fellowship Program to provide a defense to those who could not afford one. His description of the beginning of the office, the types of cases they handled, the excitement from the then-ongoing dramatic expansion of an accused’s rights by the Supreme Court and the Court of Appeals, the sudden importance of the insanity defense in criminal cases, and the many logistical challenges they faced, is historically fascinating.

One year later, Chief Judge McGuire approached Kay to ask if he would consider clerking for a new federal court judge, William B. Jones. Judge Jones was a legendary civil trial attorney, with little to no criminal experience. The idea was that Kay would spend a couple of months with Judge Jones to acclimate him to criminal trial work in the courthouse. Initially wary of the idea, he ended up staying for 9 months with Judge Jones, and developed deep admiration for him. “If I was going to model myself on a judge, it would be Judge Jones. . . . Rarely did I see him do anything in the courtroom that I would feel could in any way be criticized. . . . A model of real impartiality.”

He was then approached by the Principal Assistant U.S. Attorney about the possibility of joining the U.S. Attorney’s Office. Judge Kay explains why he agreed to do so, but only if he were assigned to the Civil Division. Following three years in that office, some of it in the Appellate Division (leading to 17 separate appeals), Kay was approached about opening and heading a litigation practice in D.C. of a small law firm. He took that opportunity, and then was an active litigator in Washington D.C. until he became a Magistrate Judge in 1991. At the beginning of this period he served on the Bar’s Board of Admissions and Grievances, and he relates in detail the issues raised in the late 1960s and early 1970s surrounding the bar admission process, and particularly its impact on minorities.

In the late 1980s, Judge Kay relates, he was looking for something different. A judge approached him about the possibility of applying to become a federal magistrate judge. At first, the idea was not attractive to him, because of his concern that the scope of work would not be sufficiently varied. In 1990, however, he was approached again, was convinced that the scope of responsibility of a Magistrate Judge was expanding greatly, and so he applied and ultimately was appointed.

With great insight, Judge Kay discusses the qualities of a good Magistrate Judge, his approach to mediation and settlement (for which he rightly became highly acclaimed), the need for civility and professionalism in court (and the negative impact when a lawyer fails to practice either), and the expanding role and importance of Magistrate Judges in the federal courts.

It is an oral history well worth reading, both for its historical value and Judge Kay’s insights into the job of judging well.