Michael Farrell Complete Oral History Package

HONORABLE MICHAEL W. FARRELL
Oral History Project
The Historical Society of the District of Columbia Circuit

Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
HONORABLE MICHAEL W. FARRELL
Interviews conducted by Lory Barsdate Easton, Esquire
July 30, 2013, November 10, 2014,
August 11 and 27 and November 12, 2015 and April 26, 2017

TABLE OF CONTENTS
Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
Honorable Michael W. Farrell ………………………………………………………………………. iii
Lory Barsdate Easton, Esquire …………………………………………………………………………v
Oral History Transcripts of Interviews
July 30, 2013 …………………………………………………………………………………………………1
November 10, 2014 ………………………………………………………………………………………39
August 11, 2015 …………………………………………………………………………………………..71
August 27, 2015 …………………………………………………………………………………………107
November 12, 2015 …………………………………………………………………………………….141
April 26, 2017 ……………………………………………………………………………………………177
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
Honorable Michael W. Farrell …………………………………………………………………..C-1
Lory Barsdate Easton, Esquire …………………………………………………………………. D-1
NOTE
The following pages record interviews conducted on the dates indicated. The interviews were
recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded
an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to,
the Oral History Agreements included herewith.
© 2018 Historical Society of the District of Columbia Circuit.
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the
Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer
attorneys who are trained by the Society. Before donating the oral history to the Society, both
the subject of the history and the interviewer have had an opportunity to review and edit the
transcripts.
Indexed transcripts of the oral histories and related documents are available in the
Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of
the Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on
the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most
interviews, as well as electronic versions of the transcripts, are in the custody of the Society.
i

/
Standard Form for Interviewee
INTERVIEWEE ORAL HISTORY AGREEMENT
Historical Society of the District of Columbia Circuit
Oral History Agreement of
I. In consideration of the recording and preservation of my oral history memoir by
the Historical Society of the District of Columbia Circuit, Washin$ton, D.C., and its employees
and agents (hereinafter, “the Society”), I, Mic.ii i’l i l✓ lJ. flt/’-? EC(, do hereby grant and
convey to the Society and its successors and assigns all of my rights, title, and interest in the
voice recordings ( digital recordings, cassette tapes) and transcripts of my interviews as described
in Schedule A hereto, including literary rights and copyrights. All copie? of the voice recordings
(digital recordings, cassette tapes) and transcripts are subject to the same restrictions herein
provided.
2. I understand that the Society may duplicate, edit, or publish in any form or
format, including publication on the Internet, and permit the use of said voice recordings (digital
recordings, cassette tapes) and transcripts in any manner that the Society considers appropriate,
and I waive any claims I may have or acquire to any royalties from such use.
3. I reserve for myself and to the executor of my estate only the non-exclusive right
to use the voice recordings (digital recordings, cassette tapes) and transcripts and their content as
a resource for any book, pamphlet, article or other writing of which I or my executor may be the
author or co-author.
GlOAIA BAAOSH.-‘.W-Hf:R8eRT NoTAR:’ PUPL!C ?STRICT OF 001 !JM31A My CommbW, gpire? Allg.;$1 14, :i.i2I
(
Schedule A
Voice recordings (digital recording, cassette tapes) and transcripts resulting from six interviews
of Honorable Michael Farrell, conducted on the following dates:
Interview Number and Date Description of Media
Containing Voice Recordings
Pages of Transcript
No. 1, July 30, 2013 MP3 file 1-38
No. 2, November 10, 2014 MP3 file 39=70
No. 3, August 11, 2015 MP3 file 71-106
No. 4, August 27, 2015 MP3 file 107-140
No. 5, November 12, 2015 MP3 file MP3 file 141-176
No. 6, April 26, 2017 177-207
The transcripts of the three interviews are contained on one CD.
iv
The Historical Society of the District of Columbia Circuit
Oral History Agreement of Lory Barsdate Easton
1. Having agreed to conduct an oral history interview with Judge Michael W. Farrell
for the Historical Society,ofthe District of Columbia Circuit, Washington, D.C., and
its employees and agents (hereinafter “the Society”), I, Lory Barsdate Easton, do hereby grant
and convey to the Society and its successors and assigns all of my rights, title, and interest in the
voice recordings (digital recordings, cassette tapes) and transcripts of the interviews, including
literary rights and copyrights.
2. I understand that the Society may duplicate, edit, or publish in any fonn or format,
including publication on the Internet, and pennit the use of said voice recordings (digital
recordings, cassette tapes) and transcripts in any manner that the Society considers appropriate,
and I waive any claims I may have or acquire to any royalties from such use.
3, I agree that I will make no use of the oral history or the information contained
therein until it is concluded and edited, or until I receive permission from the Society.
KRVSTYN BAAUNINQ
NOTARYPUBLIO
REG. #7532&08
COMMONWEALTH Of VIRGINIA
MY COMMISSION EXPIRES APRIL 30, 2020
ACCEPTED this lj? day of fu? , 201!, by Stephen J. Pollak, President of
the Historical Society of the Dishict o Columbia Circuit.
sSfr!?k?,
Schedule A
Voice recordings (digital recording, cassette tapes) and transcripts resulting from six interviews
of Honorable Michael Farrell, conducted on the following dates:
Interview Number and Date Description of Media
Containing Voice Recordings
Pages of Transcript
No. 1, July 30, 2013 MP3 file 1-38
No. 2, November 10, 2014 MP3 file 39=70
No. 3, August 11, 2015 MP3 file 71-106
No. 4, August 27, 2015 MP3 file 107-140
No. 5, November 12, 2015 MP3 file MP3 file 141-176
No. 6, April 26, 2017 177-207
The transcripts of the three interviews are contained on one CD.
iv
ORAL HISTORY OF JUDGE MICHAEL W. FARRELL
FIRST INTERVIEW
JULY 30, 2013
The interview is being conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewee is Judge Michael W. Farrell. The
interviewer is Lory Barsdate Easton. The interview is taking place on July 30, 2013, at the
District of Columbia Court of Appeals. This is the first interview.
Mrs. Easton: So, I guess that I’ll more officially start this, even though this is an
unofficial preliminary get-together with Judge Michael Farrell.
Judge Farrell: Pleasure to be here.
Mrs. Easton: Well thank you! Thank you! You know that the classic way to begin
an oral history is at the beginning, and so— (laughter)
Judge Farrell: You don’t really want to embarrass me, do you?
Mrs. Easton: Oh certainly not, certainly not, but I do want to get to know you, and
so I’d like to find out where you grew up.
Judge Farrell: Well, I grew up in the state of New Jersey in Essex County. This is
sort of in north central New Jersey. I was born—do I have to give this
kind of confidential data? I was born in 1938. I was the second
youngest of a family of eight children, and I, to this day, remember the
day when my little sister, the last, came home from the hospital. It
was traumatic and never left my memory because as you can imagine
at that moment I was displaced.
Mrs. Easton: Absolutely.
Judge Farrell: In the affections of my mother.
Mrs. Easton: Oh dear.
2
Judge Farrell: And never got over it. I spent most of my, all of my childhood in the
Oranges, West Orange New Jersey, which is part of Essex County. I
went to high school locally, in a private Catholic school. I went to a
college out in Indiana, Notre Dame.
Mrs. Easton: I’ve heard of it.
Judge Farrell: You’ve heard of it? They once upon a time had a good football team,
so that’s why you may have heard of it. And, when I came back from
college to the East, I decided I would wander around for seven or eight
years, in my twenties, and I spent a good deal of time in Europe and so
forth. We can talk a lot about that.
Mrs. Easton: I’d like to.
Judge Farrell: Yeah and eventually way down the road toward the end of the Sixties,
I came to Washington D.C., we’ll talk about what brought me here,
where I met my first wife, who told me I should change careers. I was
teaching then, she was also teaching. She told me I was a terrible
teacher, I’ll tell you why. And she suggested I do something else if I
was going to support her in the way she was accustomed to being
supported. And so I went to law school then, night school, while I was
still the chairman of the English Department at a prep school. And
that kind of started my legal career and the rest is what we have here, a
number of steps along the way, until finally they put me out to pasture
as a semi-retired judge.
Mrs. Easton: They keep you very busy as a “semi-retired judge,” by all reports.
3
Judge Farrell: Thank you.
Mrs. Easton: Let’s go back to Essex, New Jersey and talk about your family. What
did your parents do?
Judge Farrell: My father was a newspaper editor for the Newark Evening News,
which at the time was one of the, I think, premier evening newspapers,
in the East anyway. There were such things as evening newspapers
then, there are no longer, really, but this one was in Newark, New
Jersey and he had been with them for twenty or thirty years. My
mother was a ”domestic engineer,” a stay-at-home mom who had a
hell of a time, excuse me, raising eight children, including myself, five
girls and three boys. It was your kind of normal, large, secondgeneration
or third-generation immigrant family, Irish-Americans:
Large families, a lot of kids running around. It was somehow rather
easier then; I should say it’s never easy to raise eight children, but for
my mother it was somewhat easier than it would be today because the
kids just had the neighborhood to themselves, the mother didn’t have
to worry about them, we were out playing all the time with one another
or our friends. I grew up in a very conventional, middle class
existence in West Orange New Jersey. My father was not wealthy by
any means, newspaper people have never been paid well, at least other
than the owners. But we were reasonably well off. He could afford to,
for example, get all of the girls braces on their teeth, because that was
very important in those days, in the Thirties and Forties, you can
4
imagine why: to make them presentable. The boys, on the other hand,
got no braces; I didn’t get braces, which my dentist keeps telling me I
should have had years ago. On the other hand, the boys got—and this
is kind of a sad commentary in a way—the boys got first dibs at going
to college. In that time, the Thirties and Forties and into the Fifties,
unless a girl in the family showed some promise academically, she was
kind of nudged in the direction of two-year programs. Remember they
used to have things like secretarial school? A lot of friends of the
family used to come down to Marymount in Arlington which was then
a two-year girls’ school. We used to call them “finishing schools,” I
don’t know quite what they were. But because the parents could
afford those, it was two years for the girls in the family, whereas for
the boys it was expected you’d have to do four years. This was in
order for you to catch the right mate, that kind of thing. This sounds
like another century, but it wasn’t so long ago. So that’s the kind of
upbringing we had, it was very conventional. It was customary then
for children of Catholic families, immigrant families to go to public
schools for the first seven or eight grades, but then when you reached
an age where you started thinking about the other sex, for example,
and marriage might come down the road some years later, it was kind
of thought important that you maybe shift over to Catholic school.
Plus you were at an age where you were starting to get ideas of your
own and the parents wanted to be sure they kept you on the straight
5
and narrow. So after eighth or ninth grade they sent me to a
preparatory school in South Orange, New Jersey, Seton Hall
Preparatory School, it’s associated with what is Seton Hall University.
Believe it or not, this will be shocking to you, I used to hitchhike every
day about seven or eight miles from home as a high school student to
my high school classes. You could do it in those days, safely, and it
was a thrill, it was an adventure. You can’t believe it nowadays that
that would have occurred but it was the case.
Mrs. Easton: Did you hitchhike home too?
Judge Farrell: Yes, hitchhiked home, occasionally I would get a ride part way and
then get a bus, but normally. My high school career, four years, was
interesting, kind of uneventful. I will say I was an ordinary student,
probably better than average student, because I dutifully did what I
was told to do and studied hard. I was also a sports person at the time,
because my older brothers were sports people. I played basketball in
high school. And occasionally my father would wonder why I was
spending so much time practicing basketball, he didn’t really think I
had much future there, and not enough time on the books. But I rather
disagreed with him, I thought the basketball was more important then.
I graduated from high school in 1956. This is during the Eisenhower
administration, and we can talk more about that because it has
something to do with whether or why not, why I wasn’t really
interested in being a lawyer at that time.
6
Mrs. Easton: Well, I definitely want to know that. But I’m interested in just a
couple more things about your high school career. Were on the
school’s varsity basketball team?
Judge Farrell: I was on the varsity basketball team, I was All-Essex County in my
senior year. I was quite a jock. Because as you know, back in those
days, white men did not have to jump, (laughter) in order to be good
basketball players. We couldn’t jump, but the game was different and
you didn’t have to be able to jump and you could still kind of
distinguish yourself.
Mrs. Easton: What position did you play?
Judge Farrell: I was the kind of the center under the old way they used to play
basketball, because I was about six foot one or two, still growing, and I
sort of fit into that position even though I was skinny. I was not
muscular, nobody was in those days. Very few people were. It was
fascinating, although as I look back, it was in some ways very sad,
because most of the teams we would play in high school were
suburban white basketball teams. Occasionally, we would play against
the African American black kids from Newark or Southside Newark or
Eastside or Orange, and it was—it reflected the segregation of the
times. Not necessarily de jure segregation but de facto segregation in
neighborhood patterns. And the truth of the matter is almost every
time we ran up against the good black basketball teams from the inner
city, they beat the heck out of us because they could jump (laughter)
7
and they could shoot and they were good! And some of those fellows
who I got to know in those games went on to become outstanding
African American basketball players in college and so forth. I never
kept in touch with them, but I knew them at the time and I was proud
to know them and they succeeded in basketball, far better than I ever
did. But I had some distinction at the time: I was recognized as a
fairly good shot, I could shoot reasonably well.
The result of this is that I got a couple of scholarship offers. One of
them was from William and Mary down here in Virginia. And I very
much wanted to go there, first because it was an honor to have been
offered a scholarship there and I thought maybe I should do it. I knew
about it from friends, it’s a good small school at the time. My father
would have nothing to do with that, he said “I’m not sending you off
to some secular school where you will lose the one and only true
apostolic faith, you’re going to Notre Dame in Indiana.” I’ve known
Notre Dame from childhood as a football place and of course I liked
them, but I really didn’t want to go to Indiana. I had never been west
of probably Philadelphia. (Laughter.) And he said, “You’re going out
there.” Now Notre Dame did not offer me a basketball scholarship,
and I thought it would be totally demoralizing to go there without a
scholarship because even if they let me on the team, I’d be considered
a second-class basketball player. They used to call them “walk-ons,”
people who were not given scholarships but would try out for the team
8
and so forth. So I didn’t go to William and Mary, I went to Notre
Dame.
That gets us into my college experience but maybe, what else do we
need to talk about regarding my high school? Not really much. I was
a reasonably good student, I think I was, I think this was generally
true, even in college and after college, I matured intellectually very
slowly. It may have been a result of the fact that, you know, my
parents really didn’t have the time with eight children to spend a lot of
time with each boy or girl reading to them, reading with them, testing
them. We weren’t a family like, oh I always think of this as an
extreme example, the James family, Henry James and William James,
the New Englanders [The Bostonians] and so forth, whose father was a
theologian philosopher. Every night the father kind of made them
perform at the dinner table, they had to recite poetry, they had to
answer philosophical questions, they had to do everything. None of
that at our table: My father just wanted to know, basically, did you
behave today? So I dutifully went about what I was required to do in
high school and I studied and learned my lessons; education then was
very rote, you basically memorized facts and so forth.
Mrs. Easton: Did you have any favorite subjects in high school?
Judge Farrell: Not at the time. It was all a matter of just pleasing my parents by
doing as best as I could with my grades. I had never any gift in the
sciences, I don’t know why that was. Nobody in the family had a gift
9
in the sciences; I don’t think it’s genetic, I think it’s simply the fact
that my parents knew nothing about the sciences, they weren’t
involved in that, or in math. There was also a cultural kind of thing
then back in the Forties—the fear that somehow the sciences could
lead you astray from the proper path of religion and things like that.
This was a pervasive kind of cultural thing in the Northeast in
immigrant communities. And that’s one reason why historically some
of the greatest lawyers, for example, have come from the immigrant
communities, like the Irish and so forth. But very few physicists,
chemists, biologists, scientists, mathematicians generally. I think that
has been overcome greatly now, but that was the kind of thing back
then. So my parents didn’t really—it didn’t bother them too much if I
got B’s or a C+ in math, as long as I got B’s and A’s in History,
English and things like that, and in Latin.
Mrs. Easton: Clearly, your father was literate and attuned, and the newspaper editor
is somebody who is probably going to be appreciating the liberal arts
anyway.
Judge Farrell: Exactly, exactly. He was—his obsession, not only his profession, his
obsession was politics. He came from, in a way, a political family.
His father had grown up in Trenton, New Jersey, as a—not a lawyer,
but as a kind of a political know-it-all and do-it-all who knew the
legislative system of the state of New Jersey intimately, so much so
that when Woodrow Wilson became governor of New Jersey, fresh out
10
of being president of Princeton, Wilson hired my father’s father as
what they called a “secretary” back then, his personal secretary. For
the four or five years when Wilson was governor, my father’s father
was his right hand man, which basically meant showing him how the
legislature works, so that he could get along with those fools over in
the state house. Wilson was a very patrician guy and it was hard for
him to kind of press the flesh with grubby politicos who had come up
though the political system in the state house, and my father’s father
was kind of a mediator with that.
Mrs. Easton: Now had your father’s father immigrated himself?
Judge Farrell: His parents had immigrated, so it’s kind of a second, I’m—
Mrs. Easton: So your grandparents—
Judge Farrell: My grandparents—
Mrs. Easton: Or your great-grandparents?
Judge Farrell: My great-grandparents immigrated in the 1860s or so, at the time of
the Potato Famine and everything else in Ireland. And they all—and
they settled in the North Jersey area, mostly in and around Newark,
New Jersey, and then down into Trenton, particularly on my mother’s
side. And it was all very ethnic, and they—for a number of
generations, they lived in this tight little world of the people that they
knew best and feared and disliked any other ethnic group. You know,
this was kind of the way it was.
11
Mrs. Easton: Right, yeah. Same in my mother’s extended family. You know, not
the Italians. (Laughter.) Or whatever.
Judge Farrell: It was amazing as I look back, how my parents could share these
subtle distinctions of class, not to mention race, goodness, but even
class. So that even among the Irish, there are these gradations.
Mrs. Easton: Oh.
Judge Farrell: There were the—there were the “lace curtain Irish.” They were the
really snooty ones, and my mother was proud she was not one of them.
Mrs. Easton: Okay.
Judge Farrell: I don’t know where that comes from. They had lace curtains on their
lovely homes. And then there were the “shanty Irish” at the other
extreme. You can imagine what that is.
Mrs. Easton: Okay.
Judge Farrell: They kind of lived down the hill—because there are a series of hills
going out from Newark—
Mrs. Easton: So literally—
Judge Farrell: Literally, in New Jersey out toward the Delaware Valley. And
depending on what kind of status you had reached, how reasonably
successful you were, you were able to move up one hill, over to
another hill. (Laughs.) This is kind of crazy. So that it became easy
to sniff at the poorer folks, including the poorer Irish who hadn’t made
it up the hill and still lived down in the valley. And of course, the
Italians, they lived down in Orange.
12
Mrs. Easton: Right.
Judge Farrell: They haven’t even made it to the valley, you know. But this was the
kind of things you grew up with and you took for granted. And when
you look back at it, you say, “Oh, my Lord, bless them, but uh—”
Mrs. Easton: I’m curious, if you know, how your father’s father, as a child of
immigrants, got so politically knowledgeable and connected.
Judge Farrell: I don’t know in detail, but I suspect what happened was that he was—
probably grew up in and around the Newark area, somehow or other
migrated down to the state capitol, which was Trenton. Probably
began at a very early age, right out of high school, which is all
anybody ever attended then, generally. Probably became something
like a page boy or something in one of the state house offices down
there. Learned the trade, learned the mechanics, never went on to any
more formal education, but probably apprenticed in a number of law
firms or elsewhere, but never became a lawyer. And just learned the
political system at the state level and made a kind of a career out of it.
You know, nobody asked him, “Where’s your Ph.D.? Where’s your
law degree?” It was basically, you just—if you knew your way
around, if you were a combination of being a nice person who got
along, but also somebody who was intelligent enough to know how to
get around and operate in a legislative milieu like that, you could
succeed. And he succeeded, within limitations, and did a pretty good
job.
13
Mrs. Easton: Did he move on with Wilson through Wilson’s career?
Judge Farrell: I don’t know what happened after that. I mean, a few years ago when
I kind of gave a little eulogy for my oldest brother when he died, I did
just a little research, but my little speech kind of ended with Wilson
passing on to the White House. And obviously, my grandfather didn’t
go with him. He stayed in Jersey and that became—that’s all I knew
about him. In the meantime, though, my father—I don’t know really
what, other than happenstance, caused him to gravitate toward the
newspaper business. And he began, I think, with the Newark Evening
News, the paper he ended up with. He began with them in the early
1900s, maybe 1915. He was born right at the turn of the century. He
probably began with the newspaper as what they called a cub
reporter—the junior-most kind of person who went out and, you know,
covered social events in the neighborhood and reported on them and so
forth. He was a reporter for some time—five, ten, fifteen years or
so—then went into management, became the assistant editor, associate
editor, and was managing editor at the time he retired in 1959. So it
was his entire career. And it was very interesting for us, not only
because he would come home—he worked incredibly hard, he used to,
basically, because they had a Sunday paper and a weekly paper, and he
was managing editor of both, so he was always there. But he would
come home with these fascinating stories about people they had
interviewed and so forth. So it was an interesting thing. It also made
14
an interesting childhood for me in a way, although I think I appreciate
it more now than I did before, because my father acquired an
enormous number of friends in New Jersey politics and in New Jersey
law and things like that. In fact, my brother—one of my brothers used
to refer to it as the “Irish mafia” that got together every Friday night at
the house of one or more of these people for poker games.
Mrs. Easton: Ahhhhh.
Judge Farrell: So my father, you know, once a month, or once every six weeks or so,
would have a Friday evening poker game with some fascinating
people. And when I tell people this, they say, they don’t understand
why I didn’t acquire a burning desire to become a lawyer, because four
or five of the people in this revolving poker game were lawyers and
judges, in this little “Irish mafia”—some people who in later years, I
came to recognize as pretty good jurists in the state of New Jersey.
One of them was John J. Francis, whom I got to know as a kid, but
only as a kid. He was then [later] on the New Jersey Supreme Court
and was very influential, and indeed—I realized later on—was the
author of one of the first major products liability cases, Henningsen v.
Bloomfield Motors [32 N.J. 358, 161 A.2d 69 (N.J. 1960)] was a
famous strict liability and tort case. And there were others. One, John
Mulligan [William Hughes Mulligan], went on to the Second Circuit
some years later. And these people were around the house quite a bit,
you know, for the poker games, and they would pat me on the head
15
and say, “law.” But somehow or other, I never ingested anything from
these contacts that made me say, “Gee, I wanna be a judge or a
lawyer.” It often has to do with the kind of influences you undergo
after your earliest years, that is, like when you get into college: Who
are the teachers in college who influence you most, who you took as
your models, who you liked most. That often steers you in
directions—including blind alleys, in my case. But, so, there was
never an early desire to practice law, even though there was a lot of
law around the house. There was also very little interest in going into
the newspaper business because my father could see, even beginning
in the early Fifties, that the newspaper business, particularly the
evening newspaper business, was becoming a dead end—and we can
talk more about that in time. So he used to come home and say, “None
of my kids is going to be a newspaperman. There’s just no future
there.”
Mrs. Easton: So that wasn’t encouraged?
Judge Farrell: That was not encouraged, no. But our parents, I must say, they
basically did not steer us in any particular direction. They felt that it
was their duty, their God-given duty, to send their children as best they
can, particularly the boys, to the best schools that they could afford,
and then let the people in the colleges steer them in the right direction
or train them to do something. And I think eventually—it’s kind of
sad in a way, but it’s the fact—I became kind of the black sheep of the
16
eight because, somehow or other they mistakenly came to view me as
kind of ‘the intellectual one” or at least, let’s say, the perennial student
among them. And that indeed was part of my life in the Sixties,
wandering around and so forth, whereas my other siblings, my two
brothers and sisters, all of them got married very early, reasonably
early, dutifully went to work for the bank or in a training program for
some company. Higher education, advanced degrees were not
something any of them really wanted or found themselves pursuing.
Mrs. Easton: Now did your brothers go to Seton Hall Prep?
Judge Farrell: They all went there. It was the local place, the Catholic school. There
were others, but it was the one that my parents somehow or other
liked.
Mrs. Easton: And where did they go to college?
Judge Farrell: Umm, well, one of them, Richard, my nearest next, went—came down
to Georgetown back in the Fifties. Georgetown was a very different
school then. It was a very parochial kind of small Catholic college
where the—
Mrs. Easton: It’s hard to imagine, but like—
Judge Farrell: Hard to imagine. A very different place. It was not academically on
anyone’s radar screen. He came down there, but he had a little
problem, partly because of basketball. Georgetown was also a party
school. (Laughter.) He tried to combine basketball—he was on the
team—he tried to combine basketball with partying, got suspended for
17
too much partying. My father yanked him out of there and made him
finish up at Seton Hall College back in New Jersey, at night school.
My older brother, Jack, continuing the trend, the Catholic education
trend, went to Holy Cross College, which is up in Worcester,
Massachusetts, and a small school, I think it’s as small now as it was
then. It had a good basketball team. He played some basketball there
but was never outstanding. Got married fairly early, went into the
Army at the time of Korea, married young, and went into business, and
spent the rest of his life in the shipping business—stevedoring business
and so forth—a very different career path from mine in some ways but
a man whom, you know, I always admired.
Mrs. Easton: What did Richard do?
Judge Farrell: Richard had, was in—a very interesting career, at least in the sense
that he’s made me very proud. He struggled. He had a lot of problems
in his twenties and Thirties, he really didn’t know what he wanted to
do. I think he had some psychological problems at a time when people
didn’t really have the magic fix for psychological problems. But
somehow or other he found his way into social work. And he ended
up having a career of some forty years with New York City Social
Services, a wonderful organization. I don’t know what it’s exactly
called now. But he rose into management, out in Long Island and in
Brooklyn and so forth, in social work. Went on got his master’s degree
at night in social work, so he did do advanced education. And one of
18
my proud moments about twenty years ago before he died—he died
young, at age 61—was to go up to New York for a ceremony in which
Mayor David Dinkins, then mayor of New York, presented Richard—
Dick, we called him—with an award, only one of five people awarded
from the whole city’s social work network, for longevity and for
service, for outstanding service. So, he found his niche there. And,
you know, I always felt that one proof that life isn’t really fair is that
this guy killed himself for so many years doing this job for meager
pay, he was looking forward to being able to retire and have a nice life
with his wife after that and, of course, he didn’t make it because of
cancer. But that’s the way it is. But he had a good life.
Mrs. Easton: And is Jack still alive?
Judge Farrell: No, Jack died about seven or eight years ago. He died at age 71.
Mrs. Easton: And how about your sisters? There any of those left?
Judge Farrell: I have two left. I lost some. There was in the family apparently some
form of cancer associated with women more than men, and several of
them succumbed to that. But two of them remain. In fact, I just went
up to see them this last weekend in New Jersey. They live on the New
Jersey shore, in a town called Manasquan. One is eighty seven. The
other one is my youngest—the one I was insanely jealous of when she
came from the hospital.
Mrs. Easton: Right.
19
Judge Farrell: She’s four years younger than I am. And I hadn’t seen them in a
while. I got a chance to see them.
Mrs. Easton: Were they affected by [Hurricane] Sandy?
Judge Farrell: They weren’t personally, but everybody they know was, in one way or
another. They did not lose property, because they live back from the
coast. But I was astonished how—probably not really astonished, I
shouldn’t say—to see how successfully this coastal community, some
of them anyway, have rebuilt. And the reason it’s not so astonishing is
because it’s an enormous source of income for those communities, so
the money is going to be found to build the boardwalks over again, to
pump new sand onto the beaches and make it nice for the summer
folks. And they’ve done a good job of it.
Mrs. Easton: Do your sisters live together or are they just in the same area?
Judge Farrell: In the same area with their hordes of grandchildren now. It’s a very
large extended family. I mean, I must have fifty or sixty nieces and
nephews and by now probably, I don’t know, probably thirty, forty,
fifty grandnieces and nephews. And occasionally, they drop by down
in Washington and I don’t even know who they are. (Laughs.)
Mrs. Easton: I can imagine. Do you all ever gather?
Judge Farrell: Rarely these days. Not so much as we used to. My older brother was
kind of the majordomo of these kind—organizing these kind of social
events, family reunions. And, of course, the, you know, as the
generations grow up, they scatter around the country, so it’s not easy
20
to get them together. But I think the folks who have continued to live
up in New Jersey stay together more often than those of us who’ve
moved away. I mean, I’ve lived more than half my life in Washington
now. But I do get home from time to time. It’s nice to get into the
New Jersey ocean, the Atlantic Ocean, and do some swimming.
Mrs. Easton: Absolutely. Well, I’m interested if there were—you mentioned this
wonderful, this “Irish mafia” that gathered in your home regularly.
But I’d like to know to the extent that you did have people that were
influences on you early. Were any of your father’s friends, or teachers
at school, or a priest—anybody else?
Judge Farrell: I have to say—maybe it was a defect in my personality. I was not
really influenced—I was probably influenced unconsciously by an
enormous number of people, but nobody stands out at the high school
level and earlier than that as being an extraordinary influence on me. I
think probably the strongest influence was simply my father. I mean,
to the extent that a father who worked six days a week, you know, with
his nose to the grindstone, is a role model for people in the way of
making something out of yourself. I suppose that I internalized that in
some way, and it made me—you know, maybe it was only in those
days that you were scared of disappointing your parents. It wasn’t so
much that you saw yourself as somebody who was special and could
be special, but you didn’t want to disappoint your folks. That was an
important thing back then—probably still is now with children.
21
Mrs. Easton: Sure. It’s hard to imagine that your mom had any time for things other
than parental—
Judge Farrell: She really didn’t. She had her social network. They would play
bridge or something else. There was a time when my father and she
belonged to a local golf country club. Those things were more
affordable then than they are now. I think they gave that up after a
while. But her life was basically her children. And her grandchildren,
when they came along. And in her last years—my father retired quite
early, he retired at fifty-nine. He was forced to retire, and we can go
into that—it’s nothing of major importance, but it’s interesting—when
I was still in college. I was a junior in college in 1959 when he was
forced into retirement, partly because of the change in the newspaper
business, and I will explain that in a minute. And he would have been
fifty-nine, my mother would have been fifty-four. My father died at
age eighty, but the next twenty years between fifty-nine and eighty
were very difficult for him and therefore very difficult for my mother.
He really couldn’t find anything else that he was suited for in the way
of work. He tried a number of things, politics and so forth, and my
mother was with him all the way—encouraging him but also pushing
him. You know, there is a little bit of truth in every stereotype, and
one of the stereotypes is about Irish mothers and wives who love their
spouses dearly, but when they have the sense that their spouse is kind
of failing in some way to be the perfect person, they’re not always the
22
most charitable people in the world. And my mother adored my
father, but in his weaknesses—and it also had to do with alcohol
consumption eventually—it was very difficult for her to, you know,
twenty-four hours a day, to support him, rather than finding fault with
him part of the time. So, his last twenty years were not the most
happy, although he had the family and moved various places—did
various things. They traveled. That was about it.
But, you know, when you’ve been in a business like the newspaper
business for your whole adult life, and you retire young, at least at that
time it was very difficult to venture into something else. He didn’t
know what else to do with himself. He wasn’t the kind of person who
had books in him to write. He wasn’t that kind of a newspaperman.
He was basically a managing editor, an editor of other people’s
writing. So my mother, I think, pushed him in that direction, to try to
write a couple of books on people he’d known. It never worked. He
worked as secretary, so to speak, or principal assistant for one or two
political candidates in New Jersey running for governor. They were
short-term jobs. And I think boredom and other things basically made
his last twenty years not terribly happy, although he did live to age
eighty. And my mother was basically, as I said, in those twenty years,
helping to take care of him—had a series of operations and things like
that. But I think, on the whole, they looked back at the end of their
time and said, “We did what we were put on this Earth to do. We did
23
it very well. We raised kids who by and large have made something of
themselves and, you know, what more could anyone ask of us?”
Mrs. Easton: Tell me about the circumstances of your dad’s forced retirement.
Judge Farrell: It was the newspaper business. He was the managing editor, not the
editor-in-chief. The whole editorial staff was basically forced out.
There were a number of reasons, partly because the owners of the
newspaper, the Newark Evening News, were a German family going
back several generations who had struck it rich in something different,
and that was the newspaper recycling business. This was the very
beginning of it, where you took old newspapers, you recycled them,
you produced new, useable newsprint. Until then, all the of the
newsprint had to come from Quebec Province, you know—
Mrs. Easton: From forests—
Judge Farrell: Yeah, from forests. The Scudders was their name, S-c-u-d-d-e-r-s.
They discovered, and I think patented, one of the first processes for
taking old newspaper, de-inking it, and converting it to reusable paper.
They struck it rich with that, as I say, and at the same time—maybe as
a result—sort of lost interest in the newspaper side of the enterprise,
the actual print. That coincided with the fact that, as I suggested
before, evening newspapers were dying. And they were dying for a
number of reasons; books have been written about it. One of the
reasons, of course, is you had the beginnings in around 1960 of
urban—not flight, that was later on—but slow urban move out into the
24
suburbs, largely by white people, growing populations out in the
suburbs. Most of the audience, the readership for evening newspapers,
lived out there. The problem was with increased congestion around
cities—this was not just in Newark, but a hundred other cities—it took
a long time, increasingly, to get the trucks out there in the evening to
get the newspaper. By the time you got them out there to the
household, Walter Cronkite was on TV, and people got their news
from TV, and said, “Who needs the paper?” Thus the demise of
evening newspapers. It was a slow process, but it was inexorable.
Habits changed—people—the morning newspaper when I was a child
and grew up was—nobody really paid too much attention to it. You
didn’t read it. You waited for the evening news because then you got
that day’s news and so forth.
But to kind of exemplify the situation, there was a morning newspaper
in Newark called the Newark Star-Ledger. As the Newark Evening
News declined, withered away, the morning newspaper, the Newark
Star-Ledger, grew in size and grew in fortune. It was sold to a man by
the name of Samuel Newhouse [Samuel Irving Newhouse Sr., founder
of Advance Publication], who became one of the real moguls of
morning newspapers in the nation for a while. The Newhouse chain
still exists I think. These were a number of reasons, in combination,
why the Scudder family, which owned the Newark Evening News,
wanted to make some dramatic change. My father always thought that
25
the reason they basically canned the entire editorial staff was that they
wanted to go more tabloid. They wanted to go more like the New York
Daily News, the New York Post, the tabloid papers, big headlines,
sensational stuff, and my father resisted that tooth and nail because he
thought newspapers should be honorable and should report the news
and not scandalize and sensationalize. I don’t know how much truth
there was in that. He and the people in the editorial board were, I
think, became progressively estranged from the owners, and finally the
owners just decided, “We’re just gonna do something new.” Well, I
mean, as it turned out, five years after they basically fired the editorial
staff, the paper closed. So, it was the writing on the wall.
Mrs. Easton: Right.
Judge Farrell: But as I have—
Mrs. Easton: Well, you were at Notre Dame.
Judge Farrell: I’m at Notre Dame as an undergraduate.
Mrs. Easton: Was it a financial hardship for your tuition?
Judge Farrell: Well, you know, tuitions were not high in the Fifties. I don’t
remember what they were, but I think my father had just saved and put
it away. Looking back at it, I kind of regret that I didn’t seek financial
aid out of there. While I was playing basketball, I probably could have
gotten a little bit of assistance. I never did. But he never complained
about it. He felt that he could go ahead and do it. That was never a
thing that weighed on me—on my mind. And possibly because my
26
older brother had already finished college—my oldest brother. So it
was only one at a time. And as I said, the girls didn’t cost him too
much because they were in secretarial school or out elsewhere—
nursing school, things like that. And so that was not a problem.
Mrs. Easton: So you go off to Notre Dame, and—you had not been to Indiana?
Judge Farrell: No, I had never been west of Philadelphia. (Laughter) As I said, I
wanted to go down to Virginia because I had heard of William and
Mary, I knew somebody that had gone there and thought it would be
nice. And I thought I could play basketball down there and be
respected and get a decent education. Anyway, I went to Notre Dame.
I saluted and I went. And it was, I think, probably a good experience
for me. I was influenced there by some—as we all are—by a few
professors who may have steered me in the wrong direction ultimately,
but I was hugely impressed with their credentials and with their
abilities and they sounded like very smart people. And several of them
thought that I had something of a gift for being able to express myself
in writing. I was in the humanities. I majored in English. I took a few
obligatory science courses. I’m sure I did terribly in the math and had
really no interest in science. So I became interested in literature, and a
little bit of history, and some languages. But still I would say, and this
is in keeping with what I mentioned earlier, that I was kind of a slow
maturer intellectually. I think college for me, in the main, at least
consciously, was a continuation of the high school experience of being
27
dutiful, going to all of your classes, studying as hard you could, doing
what most of the rote learning you could, trying in your—particularly
in the English courses, the literature courses—to impress good
teachers by being able to read literature with a little bit of
sophistication and express my thoughts and write compositions. And I
did very well.
I graduated, I guess, magna cum laude, not the highest thing but
magna cum laude. Notre Dame was a small school of seven or eight
or nine thousand people. It had no academic reputation at the time.
Certainly nothing comparable to the Ivies. Nonetheless, it was a
stimulating place. It enjoyed a better reputation I think in the Middle
West than it did in the East academically. In football, I think it had a
good reputation everywhere, although they had four years of losing
sports when I was out there. (Laughs.) Sorry about that. So, I
enjoyed it. I think that I probably got a lot out of it. But I think it was,
in a sense, more of the same thing that high school was of people
disciplining me to—to do my assignments and try to succeed in them
and send home good report cards to my parents and make them proud
of me. And, looking back at it, I want to be very generous and fair to
my alma mater, and I suppose it had a very good influence on me in a
lot of ways I probably couldn’t consciously articulate. But I don’t
look at it as a place that really awakened in me—kind of enkindled in
me—some kind of passion for ideas. Maybe it was the beginning and
28
I just don’t recognize it. These kind of things came a little later, I
suppose, to the extent they came at all. And if people tell me, “Do you
regret having gone to Notre Dame?” as opposed to, say, Harvard or
Yale or Princeton—Princeton, New Jersey, my response is often, “I
don’t know whether I could have gotten into those schools, coming
from a not very distinguished small Catholic school with pretty good
grades,” but even if so, I don’t know whether I had the maturity at the
time, maybe simply from my upbringing, to do well at a tier one
college. Although I always add to that saying, “In a way, I regret that I
never had the chance.” But, nonetheless, it—I had a pretty good
record out there, and looking back at it, I made some friends. I have
not kept very close to that college over the years. And that may be
simply a reflection of the fact, while the school tried to make a good
person out of me and a bright young man, they succeeded, but not
overwhelmingly. The result was, I think, a lot of wandering around
after college before I found my feet.
Mrs. Easton: Right. I want to hear about—how did you get to Indiana? Did you
drive all the way out there?
Judge Farrell: You know, it was a combination of taking the train and hitchhiking.
Mrs. Easton: Oh my gosh.
Judge Farrell: Every Christmas for four years, I would hitchhike home on the Indiana
Turnpike, the Ohio Turnpike, the Pennsylvania Turnpike, right into
Newark. And you know, nobody ever worried about anything at the
29
time. The world has shifted seismically since then. I didn’t hitchhike
out too often, probably because my parents were nervous enough
about it that they would give me the money, put me on the train. And
maybe once they drove out there, I don’t know. But for four years,
two or three times a year, I would hitchhike home, and you know, it
was—it wasn’t considered hard. It was just a nuisance of a night. You
know, overnight, basically, to do it.
Mrs. Easton: Well, when you got to West Bend for the first time? I mean—
Judge Farrell: South Bend.
Mrs. Easton: South Bend.
Mrs. Easton: So, what was your impression? I mean, how did it strike you coming
from New Jersey to—
Judge Farrell: Well, I had never been on a college campus before, except I had gone
down to U Penn on a couple of occasions because I had a brother-inlaw
who was at U Penn. I’d gone down and gone to one of his
fraternity parties. And I’m surprised I didn’t say to myself after the
fraternity party, “U Penn is the place for me.” My father would not
have sent me there. (Both laugh.) But I knew nothing about what
colleges were. I’d seen the Seton Hall college campus but it was
basically a commuter school. Notre Dame was this little enclave—
five, six, seven thousand students in a gritty, little industrial town,
South Bend, Indiana, where they made Studebakers. Remember the
Studebaker? (Laughs.) And I wasn’t shocked because, you know, you
30
were kind of—you were enfolded. You were welcomed into the
bosom of the school, and you were nurtured to the extent that you
could be nurtured without your parents around. You were there with a
thousand other beginners who were in the same boat. Sort of like
anyone else’s college experience. It—I wasn’t really homesick that
much.
Mrs. Easton: Okay.
Judge Farrell: And that maybe in a way is a product of the fact that as one of eight
children you never really were mothered and cushioned and spoiled in
the way that you might be if you’re only, the only child or so. So
going away was not a difficult experience for me. And besides, right
from the get-go you were in class doing your work to get good grades
and impress your parents. You didn’t have a lot of time to feel
homesick.
Mrs. Easton: So did you try to walk on? Did you walk on?
Judge Farrell: I walked on. Oh my goodness, you get me into my basketball
experience—one of the more dismal things in my career. (Both
laugh.) I walked—my first and second year, I did not play. Of course,
freshman and sophomore, you didn’t—you didn’t play in sophomore
year unless you were very good, and I wasn’t that good. Junior year, I
tried out. They had learned a little bit about me from gymnasium play
in the second year. I tried out in my junior year and I made the team.
And they obviously saw something in my game that they liked because
31
in the first game of the season, here’s this walk-on guy from New
Jersey, they put me in toward the end of the game, we were playing an
easy team and we were winning by quite a bit, and I distinguished
myself right off the bat—I’m forewarning you now, my narrative of
my college basketball experience is going to be very short, so I don’t
want you nodding off.
Mrs. Easton: (Laughs.) Okay.
Judge Farrell: And we’re not gonna revisit it.
Mrs. Easton: (Laughs.)
Judge Farrell: So, the first game of the season, they put me in and I threw up four
shots—they called them “jump shots.” This “jump shot” was a fairly
new thing then where you actually lifted yourself off the ground and
shot. I could tell you an hour’s worth of story about old basketball but
I won’t. And I made four in a row! And I was dazzling—I dazzled
them, and the next morning the South Bend Tribune had a very
flattering story about this skinny guy from New Jersey who has quite a
wicked jump shot.
Mrs. Easton: (Laughs.)
Judge Farrell: (Clears throat.) Boy, did that go to my head. Well, anyway, the next
game came along against a really good team, Northwestern, from
Chicago—Evanston— and you can kind of imagine what happened
there. They put me in because we were losing, badly, and they thought
that, uh, that Mickey Farrell from New Jersey was gonna turn things
32
around. Well, Mickey Farrell threw up about three shots or four shots,
and probably none of them went near the basket. (Interviewer laughs.)
I was benched after that for the next five games, the coach was trying
out other things, and, he put me back in about the eighth or ninth
game, and to be charitable to myself I didn’t distinguish myself, and
that kind of ended my career for the year. I warmed the bench. Good
preparation for being a judge—
Mrs. Easton: (Laughs.)
Judge Farrell: —for the rest of the season. In my senior year I was so enthralled to
my English mentor-professor and was writing what they called a
“senior thesis” that I decided I wasn’t gonna go out for the team
because I knew I’d be warming the bench, and I didn’t want to put up
with it—I didn’t think I could do justice to both. And I wasn’t getting
a scholarship, so, who needed it. So my career was one year in my
junior year, and I was a flash in the pan.
Mrs. Easton: For two spectacular games.
Judge Farrell: Well, one spectacular game positively, one spectacular negatively.
But nonetheless, the interesting thing is, that year, the junior year, we
had been ranked nationally to be among the top ten teams, but we
ended up with a terrible record. Nonetheless, it was a lot of fun
because I loved the road trips, you know, we would go around the
country and play in these different colleges and go out partying at
night, and anyway, a lot of fun. That was my basketball career, and,
33
uh, many people—I have a picture in my office and I’m happy to show
it to everybody. All the young law clerks come through, and they say,
“Gee, you looked like that then? You had such short pants!”
“Yeah, well, that’s the way—”
“You must have been good, Judge!”
“Yeah, well, we’ll skip the rest.”
(Both laugh.) In other words, college was an experience for me where
I think I was still kind of enslaved to sports, particularly basketball,
because I played it in high school and I grew up in a family that loved
sports, but I think I was gradually weaning myself from that because I
recognized my limitations, and I was starting to realize, through the
influence of some good professors, that there are a hell of a lot of other
things in life that are more important, and more interesting, and more
human, than being able to throw up a basketball. And I probably
didn’t realize it at the time, but the school did, I think, have that effect
of ultimately persuading me that life had much bigger challenges than
trying to be an All-American basketball player.
Mrs. Easton: Wow.
Judge Farrell: (Laughs.)
Mrs. Easton: Well, this may be a good stopping point—
Judge Farrell: Yeah, I don’t want to take your time because (speaking at same time)
No, we could go on forever, but I think you—you’ve more than done
your duty for today.
34
Mrs. Easton: Oh, I’ve just enjoyed this so very much. I’ll go ahead and turn off the
recorder. [Brief break in the recording] so we don’t miss any of this.
Yes?
Judge Farrell: Yeah, back in that era, and this is—goes together with people’s
question to me of “Well, why weren’t you interested in the law?
When did you become interested in law?” and so forth. It was a very
different era then because, you recall, this was the sleepy Fifties, late
Fifties. This was before civil rights, this was before the Kennedy
assassination, this was before the Warren Court and the great decisions
in criminal jurisprudence, the kinds of things that really whetted the
appetite for young people to go into law. And then of course by the
time—and this is the sad thing from my point of view, and we’ll talk
about that more—by the late Sixties when Vietnam came along, the
kinds of things that I had been pursuing in graduate work, like English,
philosophy, languages—I came to love languages, some anyway—had
lost all of their currency in the colleges. Those departments were
downsizing because everything was politics, with the result that by the
early Seventies the best and the brightest in the humanities, where did
they go? They went to law school. And in the Fifties that was
unheard of. There were great people who went to law school in the
Fifties and Sixties, but the number of good law schools you could
count on two hands back then. And there were reasons for that. It was
35
a cultural thing. My little thesis is that it all started with Sputnik, but
we’ll talk more about that.
Mrs. Easton: I do want to hear more about that because that’s intriguing, because I
would have—I thought you were going towards that everything was
going, rather than toward politics, toward science—(speaking at the
same time)
Judge Farrell: You would think, but the interesting thing is that it’s the kind of
American way of doing things. Once Sputnik was launched the
government decided we need more brainiacs; we need more people
with advanced degrees, not just in science, biology, chemistry,
physics, and things like that, but in everything, including foreign
language, because now it’s a big world out there. And so the
government—at that time we weren’t fighting wars, Korea was over—
began lavishing money on people to do graduate work, to get masters
and get Ph.D.s. So higher education, the Ph.D., if you aim for it, was
the thing to do, the way to go. And I’m sad to say, but, among most of
the people that influenced me, my professors mainly, law was
considered a kind of a compromise. If you were very bright, but had a
kind of a “pedestrian” mind or a “prosaic” mind, then you sold
yourself to corporate America or to Wall Street, and you went off to
Harvard Law. Are you Harvard Law by chance?
Mrs. Easton: No, I’m Yale. (Both laugh.)
36
Judge Farrell: Same thing. It is—it was a sea change. I don’t know if you
experienced it later on, but in the Fifties law was—great people went
there, but it was a minority. And the people in my era, in the Sixties,
chased after the golden ring of the Ph.D. to land a job teaching at Yale,
philosophy, English, history, modern languages, and so forth—a huge
number. But the wind went right out of the balloon when the Vienam
War came in the early Seventies. And so many of those people, many
of whom I knew afterwards, ended up struggling, starting careers over
again. The number of people—it still happens now—who went on to
law school in their late Thirties and Forties, after they had picked up
useless Ph.D.s, you know; it was astonishing. But that’s a whole story,
and it partly accounts for—looking back I probably would have been a
better person if I had gone into law earlier, but I didn’t. I went quite
late—and who knows.
Mrs. Easton: Well, next time we get together—
Judge Farrell: Yep.
Mrs. Easton: —I probably want to talk just a little bit more about Notre Dame,
classes, and your senior thesis, what you wrote about, and then I’d like
to move into the “wandering years.”
Judge Farrell: Uh!
Mrs. Easton: (Laughs.) And hear where you went, what you did, whatever it flows
to, so and how you matured, and then how you ended up. I mean, I
37
gather from wandering about, getting a Master’s degree and becoming
a teacher and becoming the head of an English department.
Judge Farrell: Yeah, yeah—
Mrs. Easton: I want to hear about the languages you studied and the places you
went, and then we’ll sort of make the transition into law—
Judge Farrell: —into law—
Mrs. Easton: —and that phase.
Judge Farrell: It’s a very interesting thing for people. They kind of listen to me with
their mouth wide open when they hear me explain how I wasted the
years between twenty and thirty, because so many of them came out of
college and knew what they want to do, they were into graduate school
or law school at the age of twenty-four and went right on from there.
But, you know, it doesn’t happen to everybody. And in my case I
think it was part, largely a function of the fact that I think I matured
quite late.
Mrs. Easton: Well, what I’ll be curious to know, also, as you look back on it,
because the other half of the story is I know a whole lot of lawyers
who wish they had gone to teach.
Judge Farrell: Yep.
Mrs. Easton: You know, there’s a —there’s sort of a flip side of it, you know, for
those who drove straight through and now look back and say, boy it
could have very rewarding to really have a really important influence
on a forming high school mind. (Laughs.)
38
Judge Farrell: Yeah, yeah, yeah, well— (laughter)
Mrs. Easton: So, I wonder if looking back now you see some value in those times
even though it was sort of an eddy in your current. (Laughs.)
Judge Farrell: Well we can talk more about that. I’ll give you a little short intro to it.
And that is that my wife, my first wife, was kind of the peer supervisor
at the prep school where I ended up teaching before I started law. And
she was the one who told me that I was a lousy teacher because she’d
come around and do class visitation. And she said, “Michael, you
are—you think you should be teaching college, and the result is you’re
teaching the good students, they don’t need you, you’re not teaching
the kids who need you.” And that thought kind of stuck with me, and
was one of the things that—I think I’d already begun night school
law—but that kind of was one of the things that made me decide that I
wasn’t cut out for high school teaching. And I wasn’t going to make it
in college teaching. I was in my Thirties, I was still sitting on my
dissertation—two-thirds finished, I never finished it—in German
literature, and so I made the career switch. But that’s kind of a prelim.
Mrs. Easton: Oh, good, well, that’s good to have that, that sort of teaser. Now I’m
very eager to get back into the story.
39
ORAL HISTORY OF JUDGE MICHAEL W. FARRELL
SECOND INTERVIEW
NOVEMBER 10, 2014
This interview is being conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewee is Judge Michael W. Farrell. The
interviewer is Lory Barsdate Easton. The interview is taking place at the District of Columbia
Court of Appeals on November 10, 2014. This is the second interview.
Mrs. Easton: Yes, we’re [back to the University of Notre Dame].
Judge Farrell: What inspired me at Notre Dame were a couple of teachers in the
English department who taught me, really for the first time in my life,
to read novels, to read fiction, to read literature. So, I majored in
English, and at the end of four years I graduated with a degree in
English. I was magna cum laude because I was dutiful, I studied, did
all my work, I wasn’t a rebel, and, as I say, I don’t think the courses
were so demanding, and I succeeded in doing fairly well. But at the
end of four years I was about as immature as I was when I started
college. I had no idea what I wanted to do. These professors, who
evidently thought they saw something in me as an ability to write and
to read literature and to interpret literature and to be a literary scholar,
urged me to go on to graduate school and try to get a Ph.D. in English.
You probably don’t remember because it was, I think it was before
your time, a little bit, but at the end of the Fifties, beginning of the
Sixties, everybody who had any—not everybody but many, many
people who had any kind of intellectual pretentions went to graduate
school with the anticipation that they would get a master’s and a
doctorate and teach in college. The government was throwing money
40
at people to do graduate work. There were grants all over the place,
particularly after the Russians launched Sputnik and our country
decided we gotta get a little more intellect, and so the government was
making money available. Foundations had tons of money for graduate
studies. Law schools didn’t enter my mind because the teachers that
influenced me so much considered law school to be selling yourself out
to the world of commercialism and business. So, to make this part of
the story short, I packed up and, after a year in the Army—I’ll tell you
just a little bit about that—but after a year in the Army as a reserve
officer, I went off to the University of Chicago with a Woodrow
Wilson Fellowship to study English and to begin the process of getting
a Ph.D. in English, even though I really didn’t think I wanted to do that.
I really didn’t think I had the ability at that point at the ripe old twentytwo
to do serious literary criticism and make something of myself in
that way. But first let me, before I get to that and the thereafter, yes,
indeed I was in the Army Reserve while in college. I graduated with a
commission of second lieutenant. There was no war going on then, so
we all had our choice of what branch of the military, of the Army, we
wanted to go to. I was an Army officer, and I said, well, I want to go
into the Signal Corps because Fort Monmouth, New Jersey, was the
headquarters of the Signal Corps and it was fifty miles from my home.
I had nothing in the world that qualified me for the Signal Corps, which
was electronics, radio technology. I didn’t know AC from DC. But it
41
looked like a good place to spend six months, which is all I had to
serve, followed by several years of reserve. So I spent six months at
Fort Monmouth, after minimal basic training, and I was the head,
basically, of the Signal Corps Museum for six months, which consisted
largely of babysitting for stuffed pigeons. You remember during the
Second World War, carrier pigeons were very important, they
transmitted messages. After they died they would send them to
taxidermists, stuff them, put them in the Signal Corps Museum, and my
job was basically to dust them off occasionally and do things like that.
I’m exaggerating only slightly. So, a rather boring six months. Nice
little job as a second lieutenant. Very, very fortunate, pure luck,
because the Korean War was long over, the Vietnam War had not
begun. I was a reserve officer, owed the government only six months
active duty. My classmates, when I graduated from Notre Dame in
1960, a number of them, similarly in ROTC, signed up for regular
Army, they had three-year tours of duty that took them up to 1963-64.
Their duties were extended, they ended up in Vietnam, and at least two
of them got killed. So you know it was just pure accident that I wasn’t
one of them. But I had no desire to be a regular Army officer. So that
was that.
I finished that up in ‘61, started at the University of Chicago because it
was paid for by a fellowship, and I found out in the course of the year
that I really didn’t like it. As I said, I was beginning what I will call
42
seven or eight or nine years of “drift.” I was pretty immature. I didn’t
really enjoy reading literature at that time. I really didn’t think I was
very good at reading poetry and interpreting poetry and things like
that. And, while I did okay in my classes at Chicago, I really didn’t
think that I wanted to be there very much, so I only lasted a year and I
terminated the program, I didn’t continue. I liked Chicago. It was a
very nice city. The campus is very nice. The professors I had were
wonderful, including one professor who wrote a book you may
remember about trout fishing in Montana—Norman Maclean, A River
Runs Through It, Robert Redford made a movie. Wonderful man,
Maclean, I can still remember his face, taught a fine course in
American Literature. But at the end of March or April or May, I said
to myself, I don’t know what I’m doing here. I really don’t know
whether this is what I want. Because a Ph.D. meant two more years of
classes and a thesis and so forth. So I came back home and my mother
and father said, well what the hell are you gonna do with your life now
at the age of twenty-two or twenty-three? I said, “You know, Dad,
what I think I’m going to do is to go off to Europe and learn a foreign
language,” and he said, “Well, you know you got your B.A. in English,
you don’t want to teach?” I said, I don’t see myself doing that for the
rest of my career. And so I went to Germany, because, through
college, I had had a certain amount of exposure to philosophy, as you
would at a Catholic college, and I developed a kind of an interest in
43
particularly some German philosophers like Immanuel Kant, Hegel,
people like that. So I said why not go to Germany, spend a little time
learning the German language and reading these people—but still not
having any idea what I wanted to do with my life. I had saved some
money, from working summers and so forth, and it was very cheap
then in Europe as a student living in the hostels and things. So in 1961
or 1962 I went over to Germany. I got myself a job teaching English
at the Berlitz School of Languages in Frankfurt. Eventually I went up
to Hamburg, then down to the University of Mainz and took courses. I
attended interpreter school, learning German, and then took college
courses. ’Stayed there for about two years just learning the German
language. Enjoying it. No responsibilities at all. The kind of thing a
young person now couldn’t possibly do, having $100,000-200,000 of
student loans. Nobody had that kind of debt back then. We were so
lucky and we didn’t realize it. And it was so cheap to live, particularly
in European countries, because the dollar was king, and so I just
basically wondered around Germany for a year and half or two.
’Worked partly teaching, going to school, making a lot of friends,
having a lot of fun, and then finally my father called one day and said
isn’t it time to come back and get serious? And so I said okay, I’ll
come back and get serious. About ‘63 or ’64, after Kennedy died,
came back and said well what the hell am I going to do? I have to
have some kind of job. So I took a job teaching German at a high
44
school in New Jersey. Private school, Saint Peter’s Preparatory School
in Jersey City. ’Taught German there. Liked it. Decided I liked it
enough to go over to Columbia University, enroll in a course in a
master’s degree program for teaching of German. ’Picked up that
masters in a year and a half, that wasn’t very hard. I enjoyed
Columbia. And then I enrolled at NYU, New York University, in their
Ph.D. program in German. Still deep down inside maybe not certain
this is what I wanted to do, but I had developed a certain fluency in
German. I liked German literature. I loved to dabble in German
philosophy and things like that as a hobby and read that kind of stuff.
So I enrolled and spent two, three years continuing my teaching in the
high school up there in Jersey City and doing night classes at NYU.
And in about ‘67 or ‘68—you see I’m rushing you through the Sixties
because nothing really happened of interest—I went over, I finished
my comprehensives for the doctorate at NYU in ‘67 or ’68. I picked
up another fellowship—remember I told you these fellowships were
there for the taking—went over to Europe to write my dissertation,
and, like so many young people in that era, never finished my
dissertation. One reason was that I discovered that the subject I was
going to write my dissertation in, I didn’t know anything about. It was
nominally about a wonderful Swiss novelist by the name of Max
Frisch, F-r-i-s-c-h. But the topic I had chosen with the advice of a few
teachers at NYU had to do with Max Frisch and depth psychology and
45
how it influenced his novels, his frame of mind. He was a neurotic as
a novelist, and I discovered quickly I didn’t know a damn thing about
depth psychology and—
Mrs. Easton: Now this is depth—
Judge Farrell: D-e-p-t-h, depth psychology, psychology of the mind and of the
unconscious, not you know rats running around a maze, not
experimental psychology, but clinical psychology. I didn’t really
know much about it. I think the topic was a little bit over my head that
I chose for myself. But I worked away and plugged away at it for year
and a half. Came back in ‘69 and discovered the job that I thought I
had teaching at NYU as an instructor, provided I finish up my
scholarship, was gone. I was teaching as a graduate assistant at NYU
in a wonderful little campus they had up in the Bronx, called
University Heights campus. You clerked in New York, but you’re not
a New Yorker, or are you?
Mrs. Easton: I’m not.
Judge Farrell: No. They had a wonderful campus up there. But this was the late
Sixties, we’re in the thick of the Vietnam War. Modern languages fell
off the table in terms of interest, nobody was signing up for them
among the undergraduates. Undergraduates wanted to discuss politics.
And so the enrollments were way down. NYU was in a financial crisis
at the time, for a lot of reasons, and they sold their campus up there to
the City College of New York. It’s now the City University of New
46
York. They consolidated their humanities departments down to
Washington Square where their headquarters was and abolished my
department where I was supposed to have a job. So I came back, had
no job, had my dissertation about half done, didn’t know what to do,
didn’t like the subject of my dissertation—I think I had gotten through
about two of Frisch’s novels and had about three more to go through
and I wasn’t sure whether I even understood what I was writing, but I
was doing it because I wanted to finish up the damn thing if I could.
In the back of mind I was saying to myself, do I have a future here
when enrollment in languages is way down? I’m not going to be the
most gifted scholar in German literature on the earth. I’m not going to
get probably hired by Harvard and the others who will survive in this
area. And I was not alone; there were a lot of people at that time on
the Ph.D. career teaching path in college who were having serious
second thoughts in the humanities because the jobs just weren’t there.
In a way the bottom fell out of the humanities in the end of the Sixties,
probably because of the war. And the best and the brightest, strange to
say, started thinking law school. So by the early Seventies, the focus
had really shifted heavily toward—for humanities specialist
graduates—toward law school because you had a career there, and so
many of the Ph.D.s in the languages and so forth ended up managing
McDonald’s restaurants and things because the jobs weren’t there in
languages.
47
Well, anyway, not to dwell too long on this, I was confronted with what
do I do next when that job wasn’t there. I had happened to meet a
woman in France, French woman, little bit older than myself but we
had just met casually, she was from the Washington, DC area. She was
over there chaperoning a group of American students on some kind of
thing and I ran into them when I was in Paris, just wandering around to
make a visit, my first visit to Paris. We talked and we got—I couldn’t
say we really got to know one another, but we exchanged addresses and
so forth. When I came back, I had some communication with her from
New York, as I was trying to figure out what to do next, and she said,
you know there’s a job opening down at the place where I teach now.
She had just finished her first year teaching at a prep school out in
Rockville called Georgetown Preparatory School, not connected with
the university, but same religious order, the Jesuits. She had previously
been the president of the school in Falls Church called Congressional
Schools of Virginia, a private school. So she said, you know, why
don’t you apply, you got nothing else to do. You’re not really wedded
to New York. You’re not even sure you want to stay in German as a
career. You can come down here, teach for a couple of years, and
decide what the hell you want to do. And now it gets fun, because I did
that. I disappointed my folks up at NYU, they thought I should just
kind of hang around up there, get the dissertation done come hell or
high water, and then get a college job. I wasn’t confident I could get a
48
college job anywhere I wanted to be. The jobs weren’t there. So I
packed up and came down to Washington in ‘69. Have I brushed
through the Sixties too fast? Those ten years?
Mrs. Easton: It’s a pretty rapid tour for a pretty long and exciting decade.
Judge Farrell: Yeah, I just basically was teaching high school and doing graduate
school and it was costing me almost nothing. Impossible now, I was
spoiled in that way. I have no doubt that if I was really struggling
financially, I would have been more productive, maybe accomplished
more. As it turns out I think I accomplished a lot from the standpoint of
my life because during those ten years, what I call my “wander years,”
you know my Wanderjahre—like Wilhelm Meister, his Wanderjahre
[referring to Johann Wolfgang von Goethe’s novel Wilhelm Meister’s
Journeyman Years]—I got exposed to an enormous amount of stuff that
you could only get exposed to if you were a young man of leisure, if
there weren’t pressures on you. I was able to read widely in German
literature and in German philosophy and I fell in love with Nietzsche
and Freud and Marx and Wagner and Darwin and all the things I had
never really been exposed to at the University of Notre Dame where
they didn’t want you reading stuff like that. (Laughs.) But anyway, it
was a wonderful kind of escape from an upbringing that was fairly
restrictive.
Mrs. Easton: But you ended up teaching at a Jesuit school. (Both laugh.)
49
Judge Farrell: I had to, because it was there. And it was very difficult for me in a way
because I, you know, I wasn’t religious by that time. They were very
good to me. I came down there, they thought that I kind of qualified
because I had taught at a Jesuit school—high school in Jersey City. So
they didn’t have any worry about me polluting the minds of the
children with secular ideas, I was just there to teach German. Anyway,
the interesting thing is that–[Brief interruption as someone enters the
room.] Hi Frank!
Frank: I put a legal journal on your desk. You need to take a look at it.
Judge Farrell: Very good! Thank you. I came down, I taught for a year, guess who
my boss was at Georgetown Preparatory School. She was now the
chairman of the modern languages department, this woman I had
known from Europe! Within a year and a half we were married. She
had been divorced for a number of years. We just got along very, very
well. She was somewhat older than I, but I didn’t care, I was in my
mid-Thirties and the interesting thing is that as the chairman of the
department she was the one who came around to monitor my classes as
I was teaching these young men German, it was a boys’ school. And
she said to me fairly quickly after about six months, she said you’re a
lousy teacher. You think you should be teaching college. You’re not
teaching college, you’re teaching high school, she said. And I also
was teaching English at the time, literature, because they needed
somebody there, and she said you are teaching the best students. She
50
was very perceptive. “I see, you know, I come in and watch; you’re
teaching the best students, unconsciously—you’re putting the
questions, then you’re engaging in dialog. They don’t really need
you.” It was an exaggeration, but it’s the kids who aren’t that gifted
who need you and you’re not really happy being with them. “Michael,
why don’t you really think about something else?” And I thought
about that a good deal. I stayed another year or two there. Eventually
no more German, I became chairman of the English department
because there was need for that. And meanwhile though, at her
suggestion, I started looking around for law school. Because I started
thinking, wait a minute, English didn’t go anywhere, German really
didn’t go anywhere, Ph.D.—you didn’t have a career there ahead of
you. You’re a reasonably smart guy. You’re married now, or you’re
engaged, you’re going to be married. You’re probably not going to
have kids, because she had already [pretty much raised hers], and I
was thirty-five, I wasn’t really looking to raise kiddies. I said, but
nonetheless, you’ve got to help support a wife, you’ve got to have a
family, you’ve got to do something to finally make your father
satisfied that you’re doing something with yourself. So I looked
around for law schools. And I said, why not American University,
because American University was ten blocks from where I lived, and it
didn’t matter where I went at that point. Harvard wasn’t going to let
me in at thirty-five. Yale wasn’t going to let me in at thirty-five. It
51
was going to be night school anyway because at that point I had to
support myself and I had this nice job as chairman of the English
department, it paid okay, and so I said, why not go to American
University Law School at night. And I did. I enrolled there in 1970
and succeeded over the next three and a half years, nights and
summers, in getting my law degree—in all honesty, without having, at
the time, fallen in love with the law. I was schizophrenic, you know:
You spend your whole day teaching literature, fiction and things like
that, and poetry, and at the same time studying contracts. It was a little
bit hard to know what your loyalties and interests were. Nonetheless,
and I don’t mean to be self-deprecating, but American University
wasn’t at that time the shining-est star in the firmament academically.
You could do reasonably well there as a night student by being a little
bit of a grinder, doing your work, reading your cases. And I managed
to do okay. I don’t think I was in the top of my class but I succeeded.
The courses weren’t, as I remember, hugely demanding, but they were
okay. Within five or six years, American University became much
more selective, like many law schools. Why? Because the
competition was greater. More and more kids were going into law
school, and now I think it’s a damn good law school, but at the time it
wasn’t so great, particularly the night school. So I did that for three
years while I finished up my little tour of being an
administrator/teacher at a pretty good private high school, with my
52
wife nagging me all the way to stick with law school. You didn’t stick
with your English, she said, you didn’t stick with your German, you’re
going to stick with this and you’re going to get a law degree and then
we’re gonna— you’re going to practice law or do something. And I
owe it all to her. Because she really was—I think she wakened my
mind and my eyes to the idea that I was kind of a frustrated college
teacher who wasn’t going to teach college because he never got the
doctorate, so law may be the kind of the thing to do. And that kind of
then ends my academic career and begins my professional career.
Before we go forward, you may want to fill in gaps; if you do—
Mrs. Easton: Well I want to go back to a couple of things. But, I’m particularly
interested actually in your going to night school, which at that time, I
mean how big was your class? How many students?
Judge Farrell: You know, there may be forty or fifty in each class, thirty, forty or
fifty. It was mostly adjunct professors, a few of the regular faculty.
They had some good people. But American U. was really at the
beginning of a transition. Half a dozen of my teachers had been there
from the beginning of American University Law School, going back
into the Fifties or earlier, and were at the end of their careers. There
wasn’t a lot of scholarship or publications, it was kind of a third tier
law school, I think. But there were some gifted people in my classes,
very hard working because they were night students. A few people
who ended up becoming judges: Reggie Walton, of the United States
53
District Court here. Irma Raker, who became a judge on the Maryland
Court of Appeals. They were all in my class, struggling night students
like myself, and we had fun, but you really only had so much time in
the day to devote to your law studies.
Mrs. Easton: Well this is a pretty exciting era. You’re in law school in a time when
there are really significant developments in the law, in civil rights and
you’re at American right here in D.C., so—being a night student and
having a day job, did you have time to even think about those things?
Judge Farrell: No, no, and when I kind of began, we were at the end of the Warren
Court era. There was the excitement of criminal law and so forth, that
kind of intrigued me. But I think there later on became more
excitement associated with American University because the
succession of deans then became very much interested in international
law and the way Washington related to international law and so forth.
But, at my time, I can’t sincerely say that being a student at American
U. engaged me more with the political life of Washington than if I had
been at UVA or anywhere else. It was essentially just a—almost a
chore to get the degree and to move on and do something different. As
it turned out, being in Washington was very much a help to me
because the wife of a judge in Montgomery County was secretary to
the president of the high school, so, you know, this is where
connections help. I was fortunate enough by that time, probably
thirty-six years old, to get a clerkship the next year for this judge who
54
was a trial judge in Montgomery County, and who immediately got
moved up to the Court of Special Appeals, their [Maryland’s]
intermediate court of appeals. And that’s how my law career began.
But you still want to fill in my “wander years” in my twenties [and
Thirties]. But AU was—I don’t think there was a lot for me, a lot of
excitement associated with it. Maybe for the day students more, that
had more time. I was just so filled with responsibilities of teaching
and administering and also being a student that I was basically—you
did what you had to do and you hoped you passed your courses.
Mrs. Easton: So, you mentioned criminal law kind of caught your attention in law
school. Do you remember anything about your professor, or what was
it that—
Judge Farrell: No, I think it was largely because we were kind of studying cases— I
took a couple of criminal procedure, criminal law—I think we were
studying these cases, almost as they came out because of the Warren
Court. A number of the Warren Court decisions had been in the
mid-Sixties and earlier, but they were still very fresh and this was a
kind of a little revolution in criminal law. So, people found it very
interesting and your classes would be kind of sitting around and
waiting, when’s the next case going to come down, to make that kind
of excitement. And I remember going up to a few oral arguments in
the Supreme Court at the time, when I could squeeze out the time, and
watching Justice Douglas and others, great men, and even Hugo Black,
55
I think I remember was still there. I remember being excited by the
whole thing but that was basically it. Other areas of the law really
didn’t attract me that much at the time; it was just a matter of studying
what you needed to study to get out. The question, of course, in my
mind at the time, all the time, is, “What’s the next step? Am I going to
go into practice, be a trial lawyer, that kind of thing, or what else is
there?” The advantage of being in Washington is that you had options,
and one of them came along for me. While I was clerking in Maryland
for—I loved the clerkship in Maryland for a year, it was just the most
wonderful fit because I discovered that, after all, I did know how to
write. It’s just that it wasn’t writing dissertations on literary
interpretation, it was writing judicial opinions. My judge, who was a
trial judge at heart, he had filled a position on—Governor Marvin
Mandel of Maryland appointed him to the intermediate court of
appeals because John Moore, my boss, the judge, was a big democratic
politician in Montgomery County. [INTERVIEWER’S NOTE: Per
the Maryland State Archives, available at
http://msa.maryland.gov/megafile/msa/speccol/sc3500/sc3520/002900/
002973/html/2973bio.html, John P. Moore was in the Montgomery
County House of Delegates (1962-1966) and then served as a judge on
the Montgomery County Circuit Court from 1966 to 1973 and then on
the Court of Special Appeals from 1973 to his death in 1982.] Marvin
Mandel was going to move a Democrat from Montgomery County,
56
and he did up there. I don’t think my judge was ever terribly happy in
his six or seven or eight years on the appellate bench before he died,
because he had spent so many years as a trial lawyer and a trial judge,
and he found appellate work kind of dull, I think. The result was for
me, he would trust me with an enormous amount [of writing], not like
Judge Winter [for whom the interviewer clerked] who had a scholarly
background and who probably had his own writing style. Judge
Moore basically trusted me a lot as a mature young man who he
recognized could put ideas together fairly well, could read legal briefs,
and give him a pretty good sense of how cases should be decided. So
he’d say, “Mike, go ahead and draft the opinion.” I did that all year. I
had another clerk, too. And there was a certain luxury associated with
it, because if you got it wrong, as I did on a couple of the cases, you
had a higher court in the state to reverse you to pick up your mistakes.
You know, not like here in the Washington, there’s only one. (Both
laugh.) But anyway, that’s how I transitioned slowly into professional
law from law school, because I had the luck of that connection with
the judge through his wife. And then, as I started to say, the advantage
of being in Washington came next because an old college friend of my
boss’s, the judge’s, was a senior attorney at the Department of Justice,
in—guess what—the Criminal Division. And I got in touch with him,
had dinner with him, and he said, “Mike, you know, from the judge, it
sounds like you’re a pretty good writer, you like appellate work,
57
you’re thirty-five or thirty-six years old, you’d probably make a
crummy trial lawyer, partly because you’re so used to being able to go
home at four o’clock in the day as a school teacher!” (laughs) where
for a trial lawyer, everything begins after five o’clock and so forth. So
at that time, I was trying to decide what to do. I had an offer from a
couple law firms in Montgomery County to get into their trial practice,
personal injury and stuff, didn’t really excite me, and so I took this job
at the Department of Justice because it seemed to be a good fit. After
a year of writing opinions, I had become confident in my ability to
write pretty well. And it’s the sense of the judge—you’re advocating a
position, or you think it’s the right one. And, that led then to my next
career, part of my career, at the Department of Justice. But we do
want to finish up back filling on before that—anything?
Mrs. Easton: I wanted to find out—so this old college friend, now it was Judge John
Moore—
Judge Farrell: John Moore from Montgomery. M-o-o-r-e, yeah.
Mrs. Easton: Who was his college friend, who was at DOJ, do you remember?
Judge Farrell: He was at DOJ, his name was Phil Monahan, M-o-n-a-h-a-n, a veteran
Department of Justice attorney who was in the Appellate Section,
Criminal Division.
Mrs. Easton: He was in the Appellate Section?
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Judge Farrell: Appellate Section of the Criminal Division, yes, that’s why it was such
a natural fit. That’s why Phil Monahan said to me, “Mike, you’ll be
able to go home at four o’clock.”
Mrs. Easton: That predictability of the appellate calendar.
Judge Farrell: He was not telling me the truth; actually, I burned a lot of midnight oil
there. But nonetheless, you know, you didn’t have to worry about
clients, you didn’t have to worry about witnesses, whether they were
going to show up. It was paper record stuff.
Mrs. Easton: So, what was your first job there in the—
Judge Farrell: So, there I was an assistant in the—I forget what my title was, but just
an assistant in the Criminal Division of the Appellate Section of the
Department of Justice, one of the staff of twenty or twenty-five
lawyers, who did basically two things. And it was really very, very
interesting. In a way it was the most interesting stuff I found myself
doing for the first time in my life—at thirty-five years old! It was a
combination of what to some people would seem dull, much of it was
writing oppositions to petitions for certiorari in the Supreme Court.
Can you imagine? Telling the Supreme Court why they should not take
a case. And of course, since they don’t take many anyway, it probably
didn’t matter whether you wrote an opposition. But the government
wrote an opposition in every criminal case in which somebody
petitioned for certiorari. Later on, they got wise and said we’re not
going to respond to certiorari petitions unless (a) we think we have to,
59
or (b) the Court orders us to, and that’s the way it’s been ever since.
That was one part of my job. More interesting was when the Supreme
Court granted certiorari. Then we would write what they call the merits
brief for the Supreme Court—for the government in the Supreme Court
cases. And that consisted of two areas. Your admiration for me is
going to soar when I tell you this. One of them is criminal cases, and I
wrote over, over five years, from ‘74-‘78, four years, I wrote maybe a
dozen drafts of briefs in criminal cases in the Supreme Court—I’ll tell
you more about that in a minute—in criminal cases. The other part:
Somewhere along the way, somebody decided I should work on Indian
cases, and so I acquired a little, mini-mini-mini expertise in issues of
law affecting the Indian tribes. Because, in some way I never figured
out, the Criminal Division Appellate Section had responsibility for
those cases, even though the Civil Rights Division should have and
probably did in other years. So, I was doing these kinds of cases, and I
wrote a couple of Supreme Court briefs in Indian cases too, although to
this day I don’t really think I knew very much about the subject. The
interesting thing about these merits briefs is that—this is the way the
Department of Justice is already [still] operating, or it always operated.
What they call the operating division — civil, criminal, environmental
is the lands divisions, and things like that—they write the first draft of
the briefs for the Supreme Court, when the Supreme Court has a case.
Then you send that draft up to the Solicitor General’s office. And what
60
we used to say, only half-jokingly, was the assistant solicitor general
would then proceed to throw your draft in the trash can and start all
over. (Both laugh.) Right? Because this was our cynical view of it, if
you wanted to really be a hot shot in the Solicitor General’s office and
impress your bosses, you had to show them that you were more original
and more gifted than anybody else, and the only way you did that was
by starting all over again. Something of an exaggeration because by
the time I finished there, I think a few of my briefs were good enough
that they went through sort of unscathed. But not many of them. There
were a lot of egos in the Solicitor General’s office at that time. One of
them was Judge Frank Easterbrook, now on the Seventh Circuit. And
Frank knew that he was smarter than most people, and so he would give
your drafts a look, but he wouldn’t feel bound by them. And there
were other people, too. But it was a fun experience. The other part, the
most interesting part about my job there was, we also did appeals, we
wrote briefs and argued cases for what they used to call the “Strike
Forces” which were kind of elite groups set up within the Department
of Justice to prosecute organized crime around the country. How did
they relate to U.S. Attorney’s Offices? In many areas, they took over
the organized crime cases from U.S. Attorney’s Offices, prosecuted
them from Washington, and then we did the appeals. In other offices,
like in New York—the Southern District, the Eastern District—they
really weren’t welcomed very much because the prosecutors up there,
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you may know from experience, thought that they were the cat’s meow.
They thought they were pretty smart. They knew what organized crime
was. They knew how to prosecute it. They didn’t need, you know,
these little pointy-headed intellectuals from Washington to come up
there and take the cases. The result is I didn’t get much to do in New
York, but I got a lot to do in districts all over the country for four years
in the way of briefing appeals for the government in criminal Strike
Force cases, and going out and arguing them, and it was a lot of fun. I
mean, it taught me an enormous amount about legal writing, appellate
writing, in a fairly short four-year period of time because we were
busy. We did a lot of these things. And it was just the excitement of
appearing in all the circuits, or most of them, and being beaten up by
the succession of panels of judges, many of whom would ask you, the
only thing on their mind was—California for example, the Ninth
Circuit—what are you doing here? Why is the government wasting
money sending a Washington lawyer out here to argue this case? Can’t
a U.S. attorney from San Francisco argue this? And you’d have to say,
“Your Honor, we’re from the Department, we do the Strike Force
appeals.” They couldn’t have cared less if we did, you know.
Mrs. Easton: How interesting that they were protecting their local prosecutors’
appellate experience. (Both laughing.)
Judge Farrell: So, that was the four years there. It was interesting stuff I think. I got
to know some wonderful people whom I really revered as lawyers.
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One fellow’s name was Andrew Frey from the—oh you’ve had contact
with him one way or another?
Mrs. Easton: Oh yes, definitely.
Judge Farrell: Yeah, Andy Frey was the chief deputy responsible for criminal cases, a
marvelous legal mind, who I think more than anybody else, shaped
significant parts of the criminal law during the Seventies into the
Eighties because there was a lot of it. [INTERVIEWER’S NOTE: Per
his bio on the website of law firm Mayer Brown, available at
https://www.mayerbrown.com/people/Andrew-L-Frey/
Andrew L. Frey served as Deputy Solicitor General in the U.S.
Department of Justice from 1973 to 1986.] The Supreme Court was
doing a lot of law-making in areas, like double jeopardy law—you
know, there aren’t many criminal law issues around anymore, like the
olden days. There were then; Frey had an enormous amount of
influence on the way the federal government’s position was developed
in these cases, and I kind of revered him, because he was up there on
the fifth floor, in the SG’s office, and I was down here in the Criminal
Division, but we had contact through time. He read some of my briefs.
And I just thought he was—I would go up and watch him argue cases,
and he was just a wonderful example of fine appellate advocacy. But
not only he, there were other great people in the department at that
time. Ed Levi [Edward H. Levi, U.S. Attorney General 1975-1977]
was the attorney general when I began, from Chicago. I actually got to
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know him mildly at a social event once and touched this guy who I
thought was really an impressive professor type. There were other
wonderful people, Dan Friedman [Daniel M. Friedman] in the solicitor
general’s office, and Ken Geller [Kenneth Steven Geller], and people
like this I got to know somewhat. So, I kind of enjoyed the experience.
I missed one of the great luminaries in the Department of Justice
because she had retired by that time or moved on, [namely] Beatrice
Rosenberg. Bea Rosenberg, who was legendary up there, had headed
the Criminal Division Appellate Section but left shortly before I began.
But I met interesting people, and they valued my work. I became a
kind of a supervisor deputy in my last two years, reviewing other briefs
and so forth. And then, the question became what to do next. ’Always
does, you know? Andy Frey called me up one day, it’s an amazing
coincidence, and said, “Come on up and talk with me.” He was
simultaneously doing the same thing with a woman who was the head
of the Lands Division, Lands and—I forget what they call it,
Environmental, whatever. Her name was Kathryn Oberly.
Mrs. Easton: Oh, yes.
Judge Farrell: Who happened to succeed me on this court a few years ago. Andy
called us both up there, we didn’t even know one another at the time,
and he said, “I’d like you both to come up to the SG’s office.” He had
had some departures, and I said give me time to think about it. Number
one, I knew what a dreadful grind that is. It’s exhilarating to work
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there, but it’s around-the-clock work in the SG’s office. I was thirtyeight
years old, thirty-nine years old. I wasn’t sure I wanted to. He
said, “You can do it. You won’t kill yourself.” I said, “I’m not so
sure.” About two weeks later, I got a call from a gentleman by the
name of Earl Silbert, who was the United States Attorney for the
District of Columbia [1974-1979], who said, “Mike, I want you to
come over here and be deputy chief of the appellate section in the U.S.
Attorney’s Office because the head of it, John Terry”—a judge on our
court, and this is all incestuous, you know (laughter)— “John is losing
interest in arguing cases, in the big cases in court, and besides that he
has ambitions to get on the D.C. Court of Appeals. How about coming
over and being deputy for a couple years and then taking over our
appellate section and arguing our main cases.” I agonized with it, I
agonized with it. My wife, it was very simple to her: Which of the
choices is going to get you home at seven o’clock at night for dinner.
The more important thing—I made a rational decision, I think, at the
time. I said to myself, “I want to be a judge.” By this time, I was
convinced I wanted to be a judge. I had clerked for a judge and loved
it; I had done appellate work, nothing but; I hadn’t the slightest
qualification to do trial work; and I knew that going to work in the
Solicitor General’s office did, does nothing for you in terms of a
judgeship down the road because the only people that, at that time, and
I think since, who have ever gotten judgeships from that court, were put
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on what is now the Federal Circuit—the business court, the patent
court. It used to be the Court of Customs and Patent Appeals. Dan
Friedman, Oscar Davis— these are great DOJ legendary names—and
finally my friend William Bryson, Bill Bryson, who is on the Federal
Circuit now, just took senior status I think. These are the only jobs
they could get because they had no constituency, they had no senator,
no rabbi, as a SG pointy-headed intellectual. So I told Andy, “I’m
sorry.” He said, “You’re making a big mistake.” I said, “Yeah, easy
for you to say.” (Laughs.) So, in 1978 or 1979, around then, I left after
four years, four and a half years of DOJ and came over here to the U.S.
Attorney’s Office. Before we move on from there, anything you’re
missing?
Mrs. Easton: Well I want to be respectful of your time, because we are at forty-nine
minutes.
Judge Farrell: I want to be respectful of your time, you’re not, you have—
Mrs. Easton: This has been a wonderful session, and I think what makes sense is, if
you know, because we surpassed your forty-five minute stretch, we can
pause here and resume in a couple of weeks after I’ve had a chance to
go through and see if there are gaps?
Judge Farrell: That might be good, because we’ve covered about fifteen years, and
when we come back, you might have some questions and things to fill
in.
66
Mrs. Easton: That sounds great, why don’t I get this transcribed, and if we can
calendar a date in December to get together and go through and finish
up all of the pre-law and go into more depth—
Judge Farrell: That would be wonderful.
Mrs. Easton: –in the DOJ transition and first jobs, because I think it’s a very
interesting thing to start a legal career at a point when you’re mature
enough to really be able to make decisions.
Judge Farrell: Well, it is true. When I look back, if I had gone to law school in 1961
or 1962 when I got out of college, I would have had no idea why I was
there. Because I would have had no sense of what the law is. I had no
passion for it. I had no real interest in it. As I told you, people
regarded law back then as somewhat grubby—at least the professors
did. And so in a way, from the standpoint of a career, it is much better
that I moved into that, or got moved into that, career path fifteen years
later. The other side of it is, it kind of makes you seem like you’ve lost
fifteen years of your life by wandering around in academia and
achieving not a hell of a lot there. But, I’ll tell you, the older I get, the
more I realize that years are not wasted. I mean, I have talked more
about this. I have an ongoing passion that I’ve always had for things
like German literature and literature of other languages, Italian, and
things like this, and a passionate interest in philosophy an avocation, as
a hobby. I can’t talk intelligently to professors about it, I’m sure, but I
enjoy it and I read it. And I’ve always kept this interest. And, that
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wouldn’t have been possible without the ten or twelve years at
somebody else’s expense. To wander around and expose yourself to
these, to good minds, to courses, to professors, without having the
pressure of having to pay off debt and get a job—so I’ve been the most,
one of the most, fortunate people in that sense.
Mrs. Easton: Now, your father was a newspaper man.
Judge Farrell: He was a newspaper man.
Mrs. Easton: And, he clearly was a very significant influence in your undergraduate
education, decided where you would go.
Judge Farrell: He did.
Mrs. Easton: What was his view of your turn to law?
Judge Farrell: I think he was bewildered by it. He was getting older. I was second
youngest of eight children, so by the time I was out of college and into
graduate school, he had lost his job and the newspaper had fired upper
management. He had an alcohol problem. He had all kinds of
problems in his own life. I think he was just bewildered by the fact that
this young man, his son—without costing my father much—was
wandering around in Germany and in Europe through a good part of the
Sixties, not seeming to accomplish anything, when my two older
brothers went right into business and were married by then and so forth.
So, I think he felt kind of fearful for what was going to become of me.
He didn’t really know why I seemed to take an interest in these kind of
unpractical subjects. But he wished me well. And so I had this
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reputation among the family, the grandchildren, everybody else, of
being kind of the wandering student. You know, Uncle Mike, someday
he’ll settle down, but he’s the kind of free spirit in the family. That
kind of thing. But, they never put any pressure on me, God bless them.
They never tried to force me to come back and do something
meaningful, like go to law school. But, they may have been a little
disappointed that it took me so long to kind of find my footing.
Mrs. Easton: And, during law school, which was while you were still in the high
school and—
Judge Farrell: Teaching high school, yep.
Mrs. Easton: —running a department, as well as teaching, and then in an incredibly
busy time, clerking for a judge, working at DOJ, learning to be an
appellate lawyer, doing both appellate briefing and Supreme Court
briefing and arguments, and Indian law as well as criminal law, did you
have time to read any German literature?
Judge Farrell: Oh, yeah!
Mrs. Easton: How did you stay in touch with that?
Judge Farrell: Oh, yes, I did. Oh, yeah! In a way, once the pressure got off me, of
picking up the Ph.D., finishing the damn dissertation—I’ll tell you,
incidentally, the dissertation was sitting in my closet about half finished
for many years thereafter. And my wife after a number of years—we
were married for twenty-five years—at some point during that, she said
to me, “Why don’t you dust off the dissertation, do something about
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it.” I made inquiry at NYU and discovered that they had what they
called a “matriculation fee.” For each year that you didn’t complete
your Ph.D. work, the fee was $1,500 or something like that. And that
was to discourage people from doing exactly what I did: Letting it
hang around and not finish up, going off to Europe, cavorting, you
know, running around, having fun, and not getting serious and finishing
it. And so it would have cost me, over ten years, it probably would
have cost me $15-20,000, a lot of money then, to get it, and I said,
“Who needs it?” But in a sense being freed of that freed up my
curiosity, my interest in German literature just as a fun thing, as a
passion, so that I still read it regularly now. I read—I have my old
favorites, Thomas Mann and people like this, and Kafka. I do that and
I enjoy it. Although I’m still convinced I would have been a lousy
teacher of it. And, I also—it gave me an abiding interest in languages
so that when my first wife died back in 1995, I taught myself Italian,
and I’m an equally avid reader of Italian fiction now. But it’s just a
hobby. Everybody has their hobbies; this happens to be mine. And my
view is that once you’ve learned one language, foreign language, the
second one is not that much more difficult, at least to read it. I can’t
speak Italian very well, but German I can. Anyway, that was kind of
fun.
Mrs. Easton: Oh, that’s wonderful.
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Judge Farrell: And then, there’s my great passion which I must have got from college,
despite myself. I’m an avid reader of Henry James. And this is my
life, in a way. A mini-part of my life but I, for some reason, as I’ve
gotten older, have fallen in love with his fiction for the last twenty-five
years.
Mrs. Easton: Oh, how wonderful.
Judge Farrell: But, anyway—
Mrs. Easton: Well, thank you.
Judge Farrell: There’s something nice about being a dilettante.
Mrs. Easton: Well, and being relieved of any pressure to pursue it.
Judge Farrell: As my wife tells me, my second wife, she says you are one of the
luckiest people who’s ever walked this earth for all the reasons that I’ve
explained to you. Between wars, you lived in an era when it wasn’t
expensive to be an endless student. You lived in an era—this is where
she gets kind of nasty—where white guys had all the opportunities, all
the judgeships went to white guys whether they were talented or not.
And it’s hard to say no to any of that. She’s not wrong.
Mrs. Easton: Sounds like it puts you in a place of gratitude. (Both laughing.)
Judge Farrell: So, I’ll walk you down, and then we’ll, at your convenience strictly,
we’ll meet again.
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ORAL HISTORY OF JUDGE MICHAEL W. FARRELL
THIRD INTERVIEW
AUGUST 11, 2015
The interview is being conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewee is the Honorable Michael W.
Farrell, Jr. The interviewer is Lory Barsdate Easton. The interview is taking place at the District
of Columbia Court of Appeals on August 11, 2015. This is the third interview.
MRS. EASTON: I just wanted to make sure that was on. Okay. We are now recording and
I want that to be unobtrusive and non-distracting.
JUDGE FARRELL: Good.
MRS. EASTON: So, you graduated in 1973 from the American University and went to
work for Judge Moore for a year.
JUDGE FARRELL: Correct.
MRS. EASTON: —and through him met Phil Monahan, who had gone into the Appellate
Section at DOJ.
JUDGE FARRELL: DOJ.
MRS. EASTON: And you told me the last time we were together that your work consisted
of oppositions to cert petitions and some merit briefs for the Supreme
Court—
JUDGE FARRELL: —Supreme Court.
MRS. EASTON: —when you could get them past the SG’s office. (Both laughing.)
JUDGE FARRELL: That’s right. That’s right, past Frank Easterbrook and many of the other
luminaries.
MRS. EASTON: That’s exactly right. And you also were doing appeals for the Strike
Force, so that took you all over the country.
JUDGE FARRELL: Most of the Circuits, probably six or seven, but not all of them.
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MRS. EASTON: And then also you were doing Indian law, which I think is fascinating.
JUDGE FARRELL: Well, I did about three or four merits briefs and have succeeded in
forgetting everything I ever knew about Indian law. But it was important
stuff at the time because —I was sort of proud, in a way, of one case I
worked on, which established indirectly what people had come to doubt,
which was that the Indians are regarded under our constitutional system as
separate sovereigns. And that reinforced an idea that had kind of been lost
in the past, when everybody over the decades was trying to assimilate the
Indians. But this was a case in which, for criminal law purposes, it helped
the government to establish that the tribes were sovereigns, the equivalent
of a sovereign nation, because it allowed the federal government to
prosecute crimes even though the tribes had already prosecuted somebody
for the same offense. If they’re separate sovereigns there’s no double
jeopardy problem. It’s sort of like comparison of the states and the
federal. There’s no double jeopardy because they’re regarded as separate
sovereigns. And so the indirect good in that decision was that it helped—
the Supreme Court had occasion to say that the tribes are to be taken
seriously because they have their own system of governance. That was
one. There are others, but that’s the only one I think I remember.
MRS. EASTON: Oh, but that’s fascinating.
JUDGE FARRELL: Yeah.
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MRS. EASTON: That’s really great. Well, I did want to ask you about some of your work
on the Strike Force cases too, because that would have been organized
crime.
JUDGE FARRELL: Organized crime. None that really stands out as terribly memorable for
me. There was one memorable little event, which was I think my first oral
argument down in the Fourth Circuit. They rode circuit down there then.
In the summer they would go out to Asheville, for example, because one
of the judges had a summer place. So my first oral argument was in the
courthouse—in the post office building out there, because there was no
courthouse. And I stood up to argue on behalf of the government as
appellee. And a buzz saw of a judge, who later became chief judge on that
court, his name was Harrison Winter [Harrison Lee Winter, Judge of the
U.S. Court of Appeals for the Fourth Circuit from 1966 to 1990] from
Baltimore. First question out of his mouth was, “Mr. Farrell, is this part of
the cover-up?” And I should explain. This was at the time of Watergate
and the word “cover-up” was in everybody’s mind, covering up things
going on. And the case I was arguing had to do with an issue under Brady
v. Maryland [373 U.S. 83 (1963)] of alleged suppression of evidence by
the government which should have been disclosed to the defense. So the
words came tripping off Judge Winter’s tongue, “[Mr.] Farrell, you being
here, is this part of the cover-up, the suppression?” And I was kind of
puzzled because I was new. My stomach was churning, and I probably
muttered something like, “Could you help me out, I don’t quite understand
74
what you’re saying,” and so forth. And he immediately shifted in a way
and said, “Where’s the trial lawyer?” —who was part of the cover-up, in
his thinking. And I said, “Well, Your Honor, the appeals from convictions
involving the Strike Forces are handled out of the Department of Justice in
Washington, a separate section, so the trial lawyer is not here.” And he
said, “Oh, great,” with considerable regret. He said, “Oh, I’m sorry that
he isn’t because I had some questions for him.” Well, things didn’t get
particularly better in the oral argument. But it’s nice to remember that at
the end of the argument, after my being eviscerated, they came down and
shook my hand and said, “I hope you won’t take it personally.” (Both
laugh.) Because that’s what the Fourth Circuit did and I think still does.
And of course they affirmed the conviction about five days later in an
unpublished opinion. Maybe he had a sense that I was a rookie lawyer
and he wanted to take it out on me. (Both laugh.) Not a lot of memorable
oral arguments; fairly routine cases, sometimes with four or five
defendants in a drug conspiracy or something. I argued a couple of cases
out in San Francisco in the Ninth Circuit. They were not friendly to—
particularly friendly to prosecutors at the time. And a government
attorney arguing a case right before me was asked by one of the judges,
“Why are you out here from Washington? Can’t you find a lawyer out
here in California to argue this case? The taxpayers have to pay for this?”
And of course the lawyer then had to pick himself up off the ground and
make the kind of pitch that I had made in Asheville. So there were some
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good times, but not terribly memorable cases—some routine, some more
interesting, a few government appeals.
MRS. EASTON: Oh, so you got to be the appellant from time to time?
JUDGE FARRELL: Yes indeed. Not often. Some of the U.S. Attorney’s Offices around the
country guarded their cases, even the Strike Force appeals they insisted on
handling. So, I didn’t get any arguments in New York, for example.
’Didn’t get any arguments in Chicago, in the Seventh Circuit, because
they argued their own cases. But I was happy. I got a chance to see
Cincinnati four or five times. Had never been there. Have never been
there since. (Interviewer laughs.) But New Orleans, a few other places—
it was fun. I only did that for about three years, three and a half years I
suppose. And then came over to the U.S. Attorney’s Office.
MRS. EASTON: Right. Right. So Andy Frey calls you or comes to see you and says, “I
want you in the Solicitor General’s office.”
JUDGE FARRELL: Well, he said—he said, “I want to make you an offer, I think you’d
probably do it, would you really want it?” And I said, “Yeah.” I wasn’t
kind of sure, because it’s a brutal, brutal job in terms of preparation, and I
wouldn’t have been one of the younger people. It was a thrill to be offered
the job. But I had to think down the road, and I had ambitions to be a
judge, and I had this offer from the U.S. Attorney’s Office to basically
eventually take over their appellate section—not quite yet, but come over
as a deputy. And it seemed to me that that was more likely to offer me a
path to a judgeship than working, even in the Solicitor General’s office,
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because at that time there was not much of a history of people in that
office being able to get judgeships. The reason is you had no—you had no
rabbi, you had no state senator who was particularly interested in you,
because you were a Washington lawyer. And at that time I think the only
people from that office who had moved into judgeships had moved to
what was then the Court of Patent and Customs Appeals, now the Federal
Circuit. Dan Friedman [Daniel Mortimer Friedman, former United States
Solicitor General (Acting) and judge on the Court of Claims and US.
Court of Appeals for the Federal Circuit] and Oscar Davis [Oscar Hirsh
Davis, former assistant to the Solicitor General and judge on the Court of
Claims and Federal Circuit], people like that. They had gotten those kinds
of jobs. It’s changed since.
MRS. EASTON: But at the time, in the mid Seventies, it seemed more likely going from the
U.S. Attorney’s Office?
JUDGE FARRELL: I could get a judgeship on the local court, and that was kind of my interest
in going over there.
MRS. EASTON: So you went to work, and who was the chief of the appellate division?
JUDGE FARRELL: John Terry, who is a senior judge on this court. He had been there for a
number of years. [Note: Judge John A. Terry was appointed to the
District of Columbia Court of Appeals in 1982. Prior to his appointment
as a judge he had served as the Chief of the Appellate Division of the
United States Attorney’s Office for the District of Columbia for thirteen
years.
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http://www.dccourts.gov/internet/documents/DCCA_Bio_Terry.pdf] It’s
very incestuous. There’s a long tradition of people going from chief of
that appellate division onto this court of appeals, or its predecessor back in
the Sixties. Judge [Frank] Nebeker is still a senior judge; he had been
chief of the appellate division earlier. So Judge Terry was my boss when I
went over there, but everybody was nudging him to try to apply for a job
on this court. ’Took a while to nudge him, because he seemed
comfortable with what he was doing, but about 1982 we succeeded in
nudging him hard enough. He put his hat in the ring, and he got picked.
And he’s had a long career on this court. So, between 19—maybe 78,
79—and 1982 I was deputy chief. And my main job—beside reviewing
briefs written by the attorneys in a section that had maybe twenty lawyers,
twenty-five lawyers—was to argue the big cases. Judge Terry preferred to
give them to me to argue. I think he felt less comfortable arguing in that
kind of setting than I did. And so I got a chance to argue quite a few en
banc cases and some significant cases that came up over that time.
It was a time when there were some interesting cases. One of the first
things I had was the constitutionality of what they call preventive
detention, pretrial detention. There had been a statute in the District of
Columbia allowing that. It was passed during the Nixon administration.
But it was never used, because everybody had doubts whether detaining
somebody before trial for a period of a couple months or more was
constitutional, and so there was reluctance to test it. Finally, we did test it,
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and I got a chance to argue that before the court en banc and it was
upheld. And the Supreme Court later upheld it. And I think the reason
why they upheld it, indeed the federal government passed a pre-trial
detention statute, was because throughout the land people were in fact
being detained before trial, for significant periods of time, under the
pretense that they couldn’t make money bonds. Judges were imposing
high money bonds on defendants, you know, partly as a risk of flight but
also as a danger to the community, knowing full well that they couldn’t
make those money bonds. And so it was a kind of a cynical system in
which people were locked up pre-trial because they couldn’t write a check
or get a bondsman to post a bond for them. Finally, Congress passed a
statute, first in the District of Columbia, which is the statute I had to
defend, and then later a federal statute, led by Senator Ted Kennedy and
others, some very liberal senators, who saw the problem with money
bonds and decided better before trial to have an evidentiary hearing and
decide whether this defendant is in fact dangerous to the community, in
which case you can detain him for a limited period of time. Better that
than posting—requiring him to post a one hundred thousand dollars bond,
which he could never meet, and locking him up anyway.
MRS. EASTON: Or, in some instances, failing to.
JUDGE FARRELL: Well, in the routine case, nobody could make the bond, so judges were just
locking people up before trial and thinking it was not pretrial detention,
which it was. That was one of the interesting cases. Then we had a whole
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series of cases, some of which I argued. You may have seen the movie
recently, I can’t remember the name, involving the old Abscam. [Note:
The movie American Hustle was released 2013.] Did you see that movie?
MRS. EASTON: I didn’t see the movie, but I know the sting.
JUDGE FARRELL: Yeah. It went back to the Eighties, the various congressmen who were
lured to what they called the “honey pot,” where in return for promises to
introduce some legislation to help some Arab sheiks, and things like that,
they were offered money and they took the “honey.” It was a very
colorful scenario that the government adopted because they—these FBI
agents would come in dressed as sheiks and things like that. And the lead
person in this sting operation was a gentleman by the name of Mel
Weinberg who could put on a great appearance of being a New York
representative of all the sheiks and so forth, and he’d sit down with a cigar
in his mouth and talk to all these congressmen and senators and so forth.
And they’d take the bait, some of them. And so it resulted in a handful of
convictions in New York and Pennsylvania and in D.C. Two of them
involved one congressman John Jenrette from, I think South Carolina,
another one, Richard Kelly from Florida, a congressman also. They were
convicted and I had to handle their appeals, and they were interesting
things. And there were some interesting issues that arose out of them:
Entrapment, due process violation, and—so, those cases had some
inherent interest but also a lot of publicity surrounding them. Other than
that, what I did over the next three years in the way of oral arguments was
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what you would do in any U.S. Attorney’s Office. There were some
serious cases and a lot of routine ones. We argued, of course, and briefed
cases in both courts, the D.C. Court of Appeals and the D.C. Circuit—
more in the local court system than in federal, but cases in both. And it
was an enjoyable part of my experience. And then in 1982, Judge Terry
was promoted to the D.C. Court of Appeals, and I took over there for the
next seven years.
MRS. EASTON: Did your job change much?
JUDGE FARRELL: Not really, no. In good part it was reviewing drafts of briefs, rewriting in
many cases, but in other cases trying not to rewrite so as to discourage the
junior attorneys. And occasionally arguing cases. I probably argued
fewer over the next five or six years because I had two or three deputies
then, but I still managed to argue a few cases of a little bit of visibility, I
guess, in the courts. But it was what you would expect for an appellate
division which has a lot of work and a lot of good young people who can
write but some who don’t write so well and so you had to kind of, as best
you could, train them in the art of appellate writing.
MRS. EASTON: From your time as the chief, do you remember deputies or junior lawyers
that you worked with that are still people that you see in the legal
community?
JUDGE FARRELL: Yes, I do see them. One is a good friend of mine by the name of Judith,
Judy Hetherton. She worked with a number of government agencies
[Note: including as general counsel to the inspector general of the U.S.
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Department of Housing and Urban Development] and a couple of law
firms and then ended up being I think an assistant bar counsel in the
District [Office of Bar Counsel for the D.C. Bar] for a while, I think she’s
retired now. I had a young friend. I had a friend by the name of Thomas
Tourish, T-o-u-r-i-s-h, who died a few years ago. He was a very able
lawyer there. [Note: Thomas J. Tourish served as deputy chief of the
appellate division for 25 years, according to his 2009 Washington Post
obituary. http://www.washingtonpost.com/wpdyn/
content/article/2009/07/11/AR2009071100037.html] And a young
lady by the name of Elizabeth Trosman, T-r-o-s-m-a-n, who has made a
career over there and is now the chief of the appellate division. The
interesting thing is, and I already kind of tipped you off about it earlier, it
is kind of incestuous, because the young man who succeeded me, young
man then, John Fisher, F-i-s-h-e-r, became and stayed as head of the
appellate division after me for about ten years. He’s now on our court.
(Both laugh.) And the young man who succeeded him, Roy McLeese, Mc-
L-e-e-s-e, after about ten years he was put on this court. (Laughter.) So,
there are currently five of us, including senior judges on this court, who
came from that same job.
MRS. EASTON: That’s quite a line of succession.
JUDGE FARRELL: Yes. And there were times when I think it annoyed the heck out of the
defense bar, the criminal defense bar, and the public defender service,
because they say, “When is our turn gonna come?” Well, a few years ago,
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two or three years ago, their turn came. And there are now two young
ladies on our court from the public defender service, Judge [Corinne]
Beckwith and Judge [Catharine] Easterly, E-a-s-t-e-r-l-y. So, you know,
what goes around comes around. But—
MRS. EASTON: But we are waiting for Elizabeth, is that it? (Interviewer laughs). —for
Elizabeth Trosman?
JUDGE FARRELL: Oh! (Laughs.) No, no I don’t think—I think her time has come and
passed. Don’t tell her, but I think she recognizes that, probably. I’m not
sure she would want the job anyway at this point. So, the Eighties were
spent as—mostly as chief of the appellate division, trying to nurture and
discipline and educate young attorneys in the craft of saying the right
things to the Court of Appeals. In a way it was a lot easier for the young
lawyers to be, in most cases, on the side of the appellee. As you know
from your experience it’s harder being the appellant because then you’ve
got to imagine and devise and figure out the best arguments to make. The
appellee, you’re kind of responding. Nonetheless, it was—we had our
share of wins, our share of losses. But I think we established and
maintained a pretty good reputation as an appellate office. Most
U.S. Attorney’s Offices in the country don’t have separate appellate shops.
Chicago does, New York does, probably San Francisco, L.A., and the
District. But ours was and is an independent office, and that allows
lawyers to come in and just concentrate on doing appellate work for a
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year. I’m not sure doing appellate work makes them terribly marketable,
but it’s a good experience.
MRS. EASTON: And your entire career has been appellate.
JUDGE FARRELL: My entire career has been appellate. My only appearances in the trial
court have been where over the years in the U.S. Attorney’s Offices, on
about maybe seven or eight or nine occasions, to go in and argue motions
before judges, where the U.S. Attorney would call me up and would say,
“I want you to go in and argue that motion on a legal point.” One of those
was the old problem—which came up in our court and was eventually
decided by the Supreme Court—of one-house vetoes, whether one house
of Congress could veto legislation that the president had proposed and the
other house had passed, and the Supreme Court said, “No. Laws require
both houses to act and the president to sign.” That was an interesting issue
for a time and then it disappeared.
MRS. EASTON: That came up through the U.S. Attorney’s Office in D.C.?
JUDGE FARRELL: Yeah, it came up, I can’t remember how—I think it was involving a
reform of our laws involving sex crimes. They had been passed by
Congress under Article I, which is the part of the Constitution they operate
under in enacting legislation for the District, but apparently only one
house had passed the statute, and the other house had not gotten around to
doing it, and the president had signed it, and people thought that was
enough, and I think we argued—I can’t remember. I’m kind of drawing a
blank on exactly how it came up in this court system. But we defended
the one-house veto and seemed to prevail for a while until the Supreme
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Court got the issue and said, “No.” [Note: See Gary v. United States, 499
A.2d 815 (D.C. 1985) (Michael W. Farrell, Asst. U.S. Attorney, lead
counsel for appellee) and McClough v. United States, 520 A.2d 285 (D.C.
1987) (same).]
MRS. EASTON: Well, so with the exception of these rare arguments where it was clearly
going to become an appellate issue so you were arguing the legal point
before the trial court, not only was your entire career appellate, but it was
also criminal.
JUDGE FARRELL: It was also criminal. When I began in the U.S. Attorney’s Office, the
appellate section handled the criminal and the civil appeals.
MRS. EASTON: Oh, it did!
JUDGE FARRELL: It did both. And that became a problem, because you had young men
whose experience in U.S. Attorney’s Office—and women, more men than
women at that time—whose only experience had been handling, trying
misdemeanor cases. And then they came to the Appellate Section. And
then they were asked to write a brief defending a decision, summary
judgment, say, in the trial court in a civil matter that had been handled at
trial by the civil division. So civil cases and criminal appeals were
funneled up through the appellate division, which handled both. What
happened is that, more often than you’d like, the attorneys would write a
decent brief in the civil case, they’d go over to the Circuit Court [the
United States Court of Appeals for the District of Columbia Circuit],
where the civil appeals were handled, and they would be outclassed by
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civil lawyers who had a long background, a lot of experience doing civil
law. They’d be embarrassed by hostile questions by very, very gifted
judges over there, like Judge [Harold] Leventhal and others, who were
disappointed to find out that this young assistant U.S. Attorney knew so
little about, for example, government contracts, disappointed bidder cases,
things like that. And of course they knew very little about it because this
case was the only one in which they’d ever heard of the subject!
Eventually it was decided soon after John Terry, Judge Terry, joined the
D.C. Court of Appeals, I think the U.S. Attorney—maybe then it was
Charles Ruff [U.S. Attorney for the District of Columbia 1979-81], ’can’t
remember—decided that the civil appeals would be done by the civil
division. So they established their own civil team. So, I had civil
background for about four or five years doing civil appeals, but relatively
little. ‘Little to no trial experience, little to no civil experience, and still
they put me on this court. (Laughter.) And so I spent a couple of years
here—my first couple of years on this court, of course, I was recused from
a lot of criminal cases. So I got my fill of civil cases.
MRS. EASTON: Those first two years I bet.
JUDGE FARRELL: And probably did no end of mischief. But managed to learn what
summary judgment was and things like that. (Both laugh.)
MRS. EASTON: That’s very interesting. You know, you talk about the attorneys. It
sounded as if there was a rotation through, so every new assistant
U.S. Attorney—
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JUDGE FARRELL: —would go through a sequence of assignments. You would start at that
time, it’s been changed I think since, they would start with misdemeanor
cases, then they would come to the appellate division and learn a little law.
Then they’d go back to the felony trial division.
MRS. EASTON: Oh, interesting. They brought them to you before they went to try
felonies.
JUDGE FARRELL: To teach them a little law, the hope was. And then after felony trial they
would graduate to Felony 1, so-called, murder cases. Some would go over
to federal district court and try the cases over there. And then after four or
five years many, most, would move on to private practice because they
had become somewhat marketable. That was kind of the tour in the
U.S. Attorney’s Office. It’s a pretty prestigious office. It differs from
every other U.S. Attorney’s Office in the country in that it handles local
matters, local prosecutions. On the civil side, it doesn’t. The only civil
matters it handles are federal. The city handles civil. Except for juvenile
cases, though, and traffic offenses, the U.S. Attorney’s Office handles
local crime. ’Doesn’t anywhere else in the land. Which made it
interesting in a way because you got a broad variety of crime, not just
federal crime, but you got everything from drugs to larceny and things like
that.
MRS. EASTON: Sure.
JUDGE FARRELL: Over the years, it’s been a subject of dispute; various mayors have made
efforts to, perhaps, transfer prosecutorial authority for local crimes to a
87
separate city attorney general. We now have a separate attorney general’s
office. Maybe that will happen one day. It hasn’t happened so far, partly
because it would be a huge cost for the city to set up another three hundred
person shop and so forth. Who knows, though? It became a home rule
thing.
MRS. EASTON: Good. So, how big was the U.S. Attorney’s Office during this time?
JUDGE FARRELL: Oh, I don’t know. When I was there, maybe, it was probably 150 lawyers
or so, now it’s probably twice that many.
MRS. EASTON: And so you would have, when you were the chief, you had two or three
deputies—
JUDGE FARRELL: And twenty lawyers or twenty-five.
MRS. EASTON: But all twenty or twenty-five of the lawyers were on rotation? None of
them were career appellate lawyers?
JUDGE FARRELL: Not really, no. A few stayed a little longer. And one of the few things I
suppose I should take credit for at the time was, I was a little bit
instrumental in allowing people to do job sharing. That was a time when
job sharing was starting to be popular, where women, and in a couple
cases men, wanted to do the child rearing, or the wife insisted (laughs),
where they would work part-time and be able to raise their children. And
that meant you had to have kind of two people doing the job of one. And
we managed to work that out, because you can work that kind of thing out
in appellate work. You can’t do it in trial work. So I think probably for
the first time in the history of the office, we developed that process where
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lawyers could work part-time and have somebody else do the other half of
their job and accept part-time pay. And it was always a wonderful thing
for the U.S. Attorney’s Office because you knew that the lawyers were
good, and they never worked only part-time. (Laughs.) You always
worked more than part-time, even if you were a part-time employee. And
we had some superb women who were doing that for a number of years.
A few—Elizabeth Trosman did it for a while, Ann Simon (Ann Simon
Hadley) still is with the U.S. Attorney’s Office and does part-time work
even though her kids, I think, are grown up. But that worked in wonderful
ways to the advantage of the appellate division of the U.S. Attorney’s
Office because it allowed us to keep some very, very gifted women,
especially. Men also who were doing part-time, but mostly women and—
MRS. EASTON: Who otherwise would have left, right?
JUDGE FARRELL: —otherwise would have left. And I think it continues, because you can do
it in appellate work in a way you can’t do it in trial work.
MRS. EASTON: Well that was extremely progressive for the early Eighties.
JUDGE FARRELL: Oh, yeah. There was a lot of resistance to it early, in part because the
sense was we are a prosecutor’s office, you know? And prosecutor’s
office in the first instance means, trying cases and getting convictions,
right? The appellate work—it’s not that the appellate work was
secondary, it’s just that people’s mindset was in terms of, “We want
people who will work sixty hours a week here or not at all,” because that’s
what the job requires. Well, then finally people discovered that, (a) you
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had more and more gifted young women coming out of law school. You
didn’t have that before the Sixties in those numbers, you know better than
I. And [(b)] you would lose people if you didn’t offer that kind of
opportunity to them, because for some reason the women had the brains to
realize that working seventy hours a week isn’t all that life is. You know?
(Laughs.) And so I would get calls periodically as deputy chief, and then
chief, from women saying, “Hey, Mike, have you got any openings in the
appellate division because things are happening in my life and I’m looking
for kind of a part-time thing.” We managed to work it out and it worked
out very well and it’s continued ever since.
MRS. EASTON: That’s fantastic.
JUDGE FARRELL: Yeah, I mean I can’t take all the credit for it. I think the U.S. Attorneys
evolved into recognizing this was an effective way of keeping some of
their best lawyers.
MRS. EASTON: But you had to have the foresight—and show that to them.
JUDGE FARRELL: Yeah.
MRS. EASTON: Overcoming prosecutorial machismo by demonstrating productivity.
(Laughs.)
JUDGE FARRELL: Yeah, yeah, yeah, yeah, yeah.
MRS. EASTON: Well that’s fascinating. So the U.S. Attorney, the first U.S. Attorney you
had worked with was Earl—
JUDGE FARRELL: Silbert, S-i-l-b-e-r-t. Still is practicing and—
MRS. EASTON: Do you know where?
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JUDGE FARRELL: Yes, I believe—I don’t know whether he’s wound down his practice, but I
think he’s still there [at DLA Piper]. In fact, I have a friend, a relative by
marriage, who was a prosecutor here for quite a while who joined Piper
about two or three years ago, and he says, “You know, that Earl Silbert, I
don’t know what kind of case load he carries at his age,” he said, “but
every morning there are four or five lawyers lined up outside his office for
counsel.” (Laughs.)
MRS. EASTON: Wow.
JUDGE FARRELL: Because, you know, people like that have an institutional knowledge that
can’t be replicated.
MRS. EASTON: Right, exactly. Now, was he—he was one of the Watergate prosecutors?
JUDGE FARRELL: Exactly.
MRS. EASTON: Did that start—
JUDGE FARRELL: Exactly.
MRS. EASTON: —while you were there? Tell me about the—some of those things that
came through the office.
JUDGE FARRELL: Uh, that was before my time there. That was well before my time. I
mean, I can only have vague memories of Judge Sirica and people like
that, but Earl was very much involved in that at the time.
MRS. EASTON: You were just catching the fallout with the Fourth Circuit. (Laughs.)
JUDGE FARRELL: Yeah, that’s right, that’s right, yeah. I mean, at that time my connection
with the D.C. U.S. Attorney’s Office was nonexistent. I was at the DOJ.
MRS. EASTON: Right, right. And then, after Earl—
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JUDGE FARRELL: Earl, then Chuck Ruff, Charles Ruff, bless his soul, he died some years
ago, came over before going to a distinguished career at Covington, I
think. And, I think Jimmy Carter may have appointed him, if I’m not
mistaken. Chuck was a wonderful man to work for. After him—Stan
[Stanley S.] Harris [1982-83], and then Joe diGenova, Joseph diGenova,
was the U.S. Attorney in the Nineties for a while [Note: 1983-88], from
Republican administrations. And then a succession of people after that
whom I really haven’t gotten to know very well. But I think I worked
under probably four or five U.S. Attorneys, all with different notions of
how you operate. But in general, they were clever enough to leave the
appellate division alone, either on the theory that it wasn’t all that
important or that they knew their job. So, I had an enjoyable ten years
over there, and I learned an enormous lot, which enabled me, when I did
get this job, to fit in fairly easily without too much trauma of learning it,
because I had been doing that kind of work for all those years.
MRS. EASTON: So you had a tremendous advantage—
JUDGE FARRELL: Yeah.
MRS. EASTON: —from that wealth of experience. You came to law essentially as a
second career.
JUDGE FARRELL: Oh yes, indeed. Yeah.
MRS. EASTON: Do you think the—tell me about how you think your maturity, and the
wandering—your “wandering years”—
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JUDGE FARRELL: Oh, well, I think it helped. All the years that I spent, wasted time,
studying the various things that we probably went through in the last
interview, and all the reading I had to do, and the writing and thinking,
probably gave me a certain maturity—I won’t say sophistication of
thought, I would say maturity of thinking—that helped me when I started
law. I think the writing I had done in graduate work and in clerking for a
judge over in Maryland and so forth, and the writing that I did at the
Department of Justice, made me a fairly good mentor for young lawyers
when I started in the late Eighties, as deputy chief and then chief,
reviewing the work of other attorneys. I think I had—by that time I had
developed a certain style of writing, and a certain sense of what good
writing is, and a certain economy of writing. And, to a limited extent, I
could kind of pass that on to our young lawyers, who would often
grumble, I’m sure, when they gave me a fifty-page draft and I gave it back
to them in thirty pages, or something like that, telling them, “You’ve gotta
learn to think and write shorter,” you know, and compress and compress
and compress. And I think I had a certain amount of success in being able
to pass that on to younger lawyers. It is a sad thing that I’ve learned in
my—a lot of years now on this court—that I, as a judge on a very, very
busy court, you kind of lose that ability to sit down with your law clerks
and get drafts from them, and kind of take them through draft after draft
after draft and to work the best product and develop the best product you
can. You really don’t have the time for that. Judge Abner Mikva, who
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was on the D.C. Circuit for a number of years, used to say that he liked to
work that way. He had a round table in his office and he’d sit down with
the clerk, take the clerk’s draft of an opinion, take out a red pen or
something like that, and go through it line by line, paragraph by
paragraph, kind of teaching him what’s right, what’s wrong about it, and
send the clerk back to do another draft and give it to him. It’s a wonderful
way, if you can do it. It’s a huge learning experience for the young lawyer
that way. The sad thing is that in most appellate courts—particularly ours,
kind of an intermediate appellate court for many purposes—you can’t do
that. The time is not there. You’re almost like a four- or five-person little
law shop. Everybody’s working on something at the same time. So I used
to end up over many years telling my law clerks when they began, or
when I was interviewing them, look, you work for Judge Farrell, you’re
gonna learn by example. Less than by—you’re going to learn by doing
and by example. That is, you’re going to give me some kind of input into
the case early on, maybe a memorandum, maybe a drafted opinion,
although that not so often. And you’re going to end up at the end of the
process seeing what comes out. And you can compare the way you
analyzed, the way you thought about the case upfront, and how the judge
ended up issuing the opinion. And at least you’ll have a sense of what one
judge considers to be good analysis and good writing. What you won’t get
from me, because I don’t have the time, is that kind of pedagogy that
Judge Mikva liked, where you sit down, and you kind of mentor the clerk
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through successive drafts. Federal judges have fewer cases, so, here there
wasn’t that time. But, I think that I was—because of my teaching
background, and my educational background, I had a kind of a
pedagogical instinct. I had a kind of an ability, I think, to—if not by
actual teaching, at least by an example, to give a sense to young people of
what I think good writing is. I remember when I first applied for this job,
in 1987 or ’88, it was pretty clear I wasn’t going to get it because there
was another lawyer by the name of Fred Abramson [Frederick B.
Abramson], and we thought the fix was in for him. He subsequently
died—nice, very nice guy, and was highly qualified. And so, at the
meeting of the Judicial Nomination Commission, one of the members of
the Commission asked me, “Well Judge Farrell, wouldn’t you like to be a
trial judge?” In other words, “You’re not going to get it. The appellate
judge job is taken care of, you’re not going to get it. Wouldn’t you like to
be a trial judge?” And I had to tell him, I said (a) I really am not
interested in being a trial judge, and (b) I’d be terribly unqualified for it,
because my whole background has been in writing and— (laughs)
MRS. EASTON: I’d have to go learn the rules of evidence (interviewer laughs)—
JUDGE FARRELL: I’d have to go learn the rules of evidence. (Both laugh.) And I don’t think
I have a quick mind, which you need at the trial court. I think I need time,
and given time, I think I can think with a little bit of sophistication about
things. But I probably wouldn’t be a—and she, the member of the
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Commission, smiled and said, “I understand.” (Laughs.) So I had to
come back a second time.
MRS. EASTON: (Laughs.) When you were in the U.S. Attorney’s Office, did you have that
kind of more pedagogical time? I mean, it’s a busy office.
JUDGE FARRELL: Yes, in two respects. I had a good deal more. It is a busy office, but bear
in mind, you had a couple of deputies, and they were also very good at
working with the lawyers. And you managed to make the time, because
you really felt that was your job there. Your primary job was to file the
best product you could in the Court of Appeals, but it was also to educate
the young lawyers in what good appellate work was. And you had more
time available for that. It was sad when I came on the court and realized
you don’t. Because in a way it’s an assembly line: The things keep
coming, you don’t want to really get behind, and so you have to do an
enormous amount of work yourself, and that means there’s less time for
the law clerks. But, as chief of the appellate division, U.S. Attorney’s
Office, and as deputy chief, that was a primary obligation I had, which
was to teach young people, as best I could, to do the kind of writing that
judges expect on courts of appeals.
MRS. EASTON: Well, I’m going to ask you a philosophical question, but is it possible to
teach writing?
JUDGE FARRELL: Well, yes and no. I think it is possible to take somebody who is fluent,
and who can put sentences together, and is not just stuck at their word
processor not being able to put things down—it’s possible to teach them
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after the fact on how you can compress and do it much more concisely and
much more economically. That you can do. If people simply have no gift
of writing, if they can’t simply put paragraphs together, they’re not likely
to—my experience was they weren’t likely to have been hired by the U.S.
Attorney’s Office, because there was a pretty good recognition in the
hiring process that these people had to come from pretty good
undergraduate careers and law schools and must have learned the basics of
pretty good writing. I can probably remember four or five instances of
people in my years there who really couldn’t write well and clearly and
logically. But that was almost a sense of their being unable to think
clearly, and you wondered why they had been hired, and I’m not sure their
careers lasted very long there. Most young people came with that kind of
skill at least from three years of law school and four years of college,
where they could basically write. I think, within limits, you can teach
writing. You can teach people, as I said, to say things in many fewer
words. What you can’t—what you can’t really teach them, except by an
example, is, “What are the three things I need to say,” in other words, to
really come up with the insights and the ideas. That they only pick up, in
a sense, by experience. And some are just highly gifted. I’ve had a few
clerks over the years who were of that nature. I was astonished in the
way, at such an early age and just out of law school, they had an ability to
get their teeth into legal issues and give you the four reasons why you
should reach this decision—or not. That’s a rarity, that’s a very gifted
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person. Those kids tend to end up on the federal courts and in the
Supreme Court clerking, and in the law school professions. But if a kid
had the basics, the basic analytical skills, and had basic writing ability,
you can teach some things. Or at least you can teach them a little bit of
the craft of appellate writing, which is not the craft of writing law review
articles. It’s not the craft of writing legislation, things like that. It’s
different. But it’s an art, and you can teach it.
MRS. EASTON: I see, actually a really lovely full circle from your first wife telling you
that you were a frustrated college teacher—
JUDGE FARRELL: Yeah, yeah.
MRS. EASTON: —you needed to be with the right students.
JUDGE FARRELL: Right.
MRS. EASTON: (laughs) —and actually, it sounds like at the U.S. Attorney’s Office you
found the right students.
JUDGE FARRELL: I think I did, yeah. You know, I compare my experience with the
experience of a friend of mine, James Klein, who is the head of the Public
Defender Service [appellate division chief] in D.C., and has been for thirty
years now practically. [Note: James W. Klein joined the D.C. Public
Defender Service in 1978 and became head of the appellate division in
1983, see https://www.dcbar.org/bar-resources/publications/washingtonlawyer/
articles/june-2007-legal-beat.cfm. As of 2015 he was serving as an
Appellate Training Director for the CJA appellate panel. See
http://www.pdsdc.org/about-us/historical-timeline.] A marvelous lawyer,
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appellate lawyer he’s been for all these years. We were competitors back
in the U.S. Attorney’s Office. I was chief of mine, he was chief of his,
and so forth, or deputy chief, I can’t remember. And in a sense, it’s a
similar situation: He has some of the most gifted young lawyers in the
country, coming out of some of the best law schools, who want to work
for his office, who come through his appellate division. And he gets a
chance to learn from them, to teach them. And, in a way, what better job
could you have? Because you have a lot to teach them. And they revere
him over there, because he has such a gift of helping them craft and polish
their briefs. But he learns from them, too, because you have kids who
come up with insights day in and day out that you don’t think of,
particularly as you get older, you know. But it’s a wonderful kind of mix,
if you’re anybody with my kind of background, who likes writing and has
done it over the years and wants to help mold a good product. And it’s
wonderful when you’re working with young people who can give you the
raw materials of that in such a good way, without requiring you to take the
brief and rewrite it from the beginning. I had many times over the years,
in the U.S. Attorney’s Office, I would have to basically rewrite the brief.
That was just unfortunate, that the things didn’t work out. But in the vast
majority of cases you were able to work from a good draft by good young
lawyers, and you got pleasure in working together with them to produce a
good product. I’ve said to Jimmy Klein over the years, “Why don’t you
go up and teach at Harvard?” He said, “Why the hell should I go up and
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teach at Harvard? I’ve got the best people down here. I’ve got the best
students here to work with, you know, the cream of the crop.”
MRS. EASTON: Who’d already been trained?!
JUDGE FARRELL: Who had already been trained and—(laughter)
MRS. EASTON: (laughter) —you make the point of meeting the right student. Once
they’ve made it to the Office of the Federal Public Defender or the U.S.
Attorney’s Office, they’ve been vetted. My philosophical question
actually arises, thinking about someone coming into law school.
JUDGE FARRELL: Yeah.
MRS. EASTON: Because now, in most law schools, legal writing is a mandatory course in
the first year, and I—I look at that somewhat askance, I’m not sure what it
is you can teach at that point.
JUDGE FARRELL: Yeah. It is true. I think the kids nowadays, the young people who come
to work as law clerks for judges and so forth, and the young people who
come out of law school, have gifts that we never had. I think they have—
number one, they’ve mastered the basics of electronic research.
Therefore, they can produce a ton of research in a short time, which would
have taken us a week to come up with. And they have the fluency that
comes with having grown up now in composing rather than writing. You
know, composing on a computer. And it’s almost as though the words and
the sentences trip off their tongues, because it’s such an easy process. I’m
putting aside the problem of cell phones and tweeter and things like that,
but assuming that they’ve done writing in college, it seems to come easily
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to them. The problem becomes the discipline that we all recognize that
the young people need now, of—call it of “overfluency,” in a way,
overwriting. And so that’s the problem of getting fifty pages on a subject
in a draft opinion, and when you know that eighteen pages might be
enough, or twenty-five might be more persuasive, and you’ve got to try to
persuade them to be their own best critic and cut it down.
MRS. EASTON: And not demonstrate all that they’ve learned.
JUDGE FARRELL: Yeah, yeah. That’s the thing. I must say, in my first two years on the
court, probably, I was guilty of overwriting. We all are. Because you do
research, particularly for me it was in civil matters, and you almost feel
that part of your education is to put it all down on paper in a coherent
order. And only later do you recognize that most of the world to which
that opinion would be directed—your audience—didn’t need all that
because they knew the stuff; they just want the right result. And you learn
to become more concise. I think all of the judges over the years learn to
trim their work down.
MRS. EASTON: The instances in which they don’t are rather sad.
JUDGE FARRELL: Yeah, yeah, yeah, yeah. (Laughs.)
MRS. EASTON: Well, I’m going to ask a little bit about some of the changes. You
mentioned the technology and the fluency of young lawyers. In the
Seventies and Eighties you were—all of this was being done, what, by
hand?
JUDGE FARRELL: By hand, with carbon copies and, you know, it was—there was no email.
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MRS. EASTON: When did you make the transition to having lawyers writing for you who
were using either the [IBM] Mag Card or some of the earliest word
processing? It would have happened during your time as chief.
JUDGE FARRELL: Yes, maybe not even then very much. We still—when—up to ’89, when I
became a judge, we still had a large platoon of secretaries, they called
them then, who would receive drafts from the lawyers in appellate cases,
sometimes typed up on the early versions of computers, but more likely on
typewriters, and would get them and then would convert them into some
kind of electronic format, or would simply type them up from stuff being
written out on yellow pads, and would actually do the composing of the
opinion and give the draft back to them. So I think until the end, we still
had a big cadre of people who were doing the actual preparation of the
opinions. Nowadays, as you know, I mean, that’s basically gone. When I
started with the court in ’89 and ’90, I think that was still the early days,
the early kind of primitive computers. And what we call now a judicial
administrative assistant, my secretary then, had come over with me from
the U.S. Attorney’s Office. She was one of the very first people to really
learn computers and became kind of an educating force here for other
secretaries in the court. And it evolved then over the years for most
judges; not for me, I regret to say. I’ve never become terribly fluent with
computer technology, because it hasn’t really been necessary for me to do
it. But most of the judges, particularly the younger judges now, it’s
embarrassing to me how sophisticated they are in that, to the point where
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they don’t even have secretaries in the office. They hire a paralegal
instead of the secretarial position, who can, in effect, give them another
half of a law clerk, and also a kind of administrator, and the two or three
law clerks, plus this legal assistant they have, end up managing the office
themselves. And everybody just does their own work on their computer
and you don’t have the need for giving it to somebody else to work on.
It’s become a very, very complicated world for old people like me, but for
them it’s the most natural thing in the world.
MRS. EASTON: Do you have a recollection of when electronic research became the reality
for your work? Was it while you were a chief? I mean, that would have
been about the time.
JUDGE FARRELL: About the time, in the Eighties, you think it was that early?
MRS. EASTON: I know I was doing it in the Eighties, so—
JUDGE FARRELL: I guess, but basically, I—to the extent that I had to actually get into
writing, I was probably an old barnacle who would go down to the library
and look up the digests. Remember the digests they had? I would do that
because I didn’t have to do too much of it, and I had the time and I could
do it. And I knew my own ways of getting cases. I am sure that the young
lawyers who were producing drafts for me were doing it far more
efficiently electronically, because they had already mastered the earlier
versions of West and Lexis and whatever research they had. But not for
me. I just never—I wasn’t forced into the situation like you would have
been, say, in practice, where time is money. You’ve got to learn the stuff
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to do it fast. You didn’t have to do it as chief of the appellate division,
because you had the people doing it for you. And what you brought to
bear on the ultimate product was judgment and some sophistication in
shaping the final product. Yeah, but the research changed enormously.
And now one of the pleasures about the job—sometimes you think it may
be a little bit of a curse, too—is when you tell a law clerk to go out and
find me the law on a kind of a thing, a day later, in your case maybe a half
a day later, because you tell them, they’ve—you’ve got the product,
you’ve got it there. Sometimes I think they work too fast and you’re not
sure they have it all. But the change began, and I was the beneficiary of it,
because I had very good young people, particularly as a judge, young law
clerks who could do the stuff so well. And I think they just shook their
heads throughout my twenty-x years as an active judge, or my twenty
years as an active judge. While they were doing all this, applying all these
state-of-the-art tools to producing what they produced for me, there was
poor Judge Farrell sitting there down in with his yellow pad, writing out
his opinions and so forth. But there are only a couple of us. One of them
is my dear colleague Judge Frank Schwelb, who died last year. We were
colleagues for fifteen, eighteen years here. He never learned the computer
stuff. He was older than I am, but not by much. He could never really
learn it. He either would depend on the clerks to do the research for him,
or he would go down to the text books in the library—we still do have the
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books—and go down to the hornbooks, to the Restatement. We grew up
with the Restatement, things like that, you know.
MRS. EASTON: I know. Young lawyers now don’t know what the Restatements are,
unless I send them to look at them. (Both laugh.)
JUDGE FARRELL: Yeah, so the change has been monumental. Fortunately it’s a change that
affects appellate judges less than I think trial judges for example. You
cannot be a good trial judge now, with a busy docket, without having
mastered all this electronic stuff and being able to have it up on the bench
with you. And you know, you see it all the time, being able to get to the
stuff immediately, and control electronic filing. And all that is something
that we are just getting around to in our court of appeals. And my quip to
them whenever they threaten with, “The day is here when it’s all going to
be electronic!”—my quip is, “Well, you better get a lot of printers,
because there are a lot of judges on this court who are going to insist that
their clerks print out every piece of electronic information that comes
before us.” (Both laugh.)
MRS. EASTON: It’s true, it’s true. It’s just, it is convenient to be able to take the file from
one place to another, but I still prefer to read the hard copy.
JUDGE FARRELL: (Laughs.) Yeah.
MRS. EASTON: And I suspect—
JUDGE FARRELL: (Laughs.) Yeah.
MRS. EASTON: —there are quite a few judges that are the same. (Both laugh.)
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JUDGE FARRELL: Right. But I think I was just a little bit too late to really benefit from the
education I would have had in electronic research and everything to do
with computer technology as it relates to the law. Or maybe, as my wife
tells me, I was just, in a way, lazy. I prefer—“You prefer to do it your
way, Michael,” she says. “And you’ll never change.” And my response
is, “If the chief judge over the years had been willing to send me off to La
Jolla for a month of learning Lexis and West and computer analysis and
research, I would have done it, but short of that, I’m doing it my way.”
(Laughter.)
MRS. EASTON: Exactly, in order to get it done. (Laughs.) Well, I want to ask you if you
would think about anything else from your U.S. Attorney years that we
should be sure to talk about next time. And then when we get together
next time, I will want to talk about the application form that—you
mentioned that you—you were put up once—
JUDGE FARRELL: Right.
MRS. EASTON: And then decided to do it again—
JUDGE FARRELL: Right.
MRS. EASTON: —before starting on the bench. And then start, at least, talking about your
years on the bench.
JUDGE FARRELL: Right, right.
MRS. EASTON: But I’ll go back and do this transcribing and we’ll see if we can move on
into your judicial years.
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JUDGE FARRELL: Well, we should—maybe we can finish the whole thing in one more
session, although it’s twenty years of judicial stuff.
MRS. EASTON: And the more recent things, we can, you know, actually sit and talk about
some opinions if you’d like.
JUDGE FARRELL: Yeah, sure.
MRS. EASTON: So, I’ll give you a little bit of homework in that, if there are some things
from your U.S. Attorney days, or particular opinions you want to discuss,
let me know about it so I can get up to speed and ask questions about
them.
JUDGE FARRELL: Wonderful. Maybe I’ll do—I’ll send you a list of a few of them and we
can talk about them.
MRS. EASTON: I’d really enjoy that. That would be fantastic. Well, let’s go ahead and go
off the record.
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ORAL HISTORY OF JUDGE MICHAEL W. FARRELL
FOURTH INTERVIEW
AUGUST 27, 2015
This interview is being conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewee is Judge Michael W. Farrell. The
interviewer is Lory Barsdate Easton. The interview is taking place at the District of Columbia
Court of Appeals on August 27, 2015. This is the fourth interview.
[Recording started midway in discussion of a production of the musical The Fix staged at the
Signature Theater in Shirlington (Arlington, VA).]
JUDGE FARRELL: In Shirlington, down there.
MRS. EASTON: Right. And how did you—
JUDGE FARRELL: Oh, it’s alright except I have become increasingly annoyed with—I was
never a great fan of musicals, ever since Rogers and Hammerstein passed
from the scene. But nowadays, everybody’s miked. Have you
experienced that?
MRS. EASTON: Even in the small theaters.
JUDGE FARRELL: Even in the small theaters. And the result is you don’t have any sense of
whether the person can carry—the voice is big or small because they all
come out monochromatic and all the same. And if somebody’s standing
in the back of the stage singing, it’s as though they are up front. It’s just
kind of disconcerting. Anyhow, enough of that.
MRS. EASTON: How did you find the drama?
JUDGE FARRELL: I didn’t care much for it. I thought it couldn’t make up its mind whether it
wanted to be just what we used to call “Capital Steps,” that was the local
satirical political group, or something deeper and more serious about—
MRS. EASTON: Yeah, and they can’t go both ways on something like that.
JUDGE FARRELL: No, no, no.
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MRS. EASTON: No. Well, let’s go ahead and start our fourth session together.
JUDGE FARRELL: Sure.
MRS. EASTON: What is today, the twenty-seventh of August?
JUDGE FARRELL: Fifth, six, seventh, yeah.
MRS. EASTON: Oh, excellent. Well, I’m delighted to be here. If I may go back to ask you
about immediately after law school, I assume at some point between law
school, clerking, and starting at the U.S. Attorney’s office in the appellate
section, you took a bar exam?
JUDGE FARRELL: I took a bar exam. I was clerking in 1973 for a judge then on the Circuit
Court for Montgomery County, Maryland, a trial judge. In the course of
the summer, two months after I began, he got appointed to fill an opening
on the Maryland Court of Special Appeals. I’ll tell you, just anecdotally,
the judge he succeeded had been appointed by Governor Marvin Mandel
of Maryland. His predecessor, the attorney [judge], was a fairly wellknown
appellate lawyer in Maryland and Washington, D.C., but also a
trial lawyer, and who really liked the action. Well, it turned out, after a
year on the court of appeals, he didn’t like the “action” so much and his
secretary told me he was taking longer and longer naps in the afternoon.
He finally retired. My judge got promoted to replace him on the
intermediate court of appeals. During my first couple of months working
for him, I took the bar exam in some cavernous convention hall in
Baltimore. And lo and behold two or three months later I passed. I don’t
know whether I passed with flying colors. It didn’t matter.
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MRS. EASTON: Right.
JUDGE FARRELL: I always had the sense that—and there was some rumor to support it—that
Maryland graded the exams depending on how many new lawyers they
thought they needed in the bar that year. And perhaps they needed a lot
that year, and so I passed with sufficient colors. (Both laugh.)
MRS. EASTON: Oh, excellent. So you took the Maryland bar. And what was the process
at that time for practicing in D.C.?
JUDGE FARRELL: Well, it didn’t really matter for me, although I joined the D.C. bar—I
waived into the D.C. bar within the next year because everyone did. I was
working my first job as I think I’ve mentioned, with the Department of
Justice. So, you didn’t have to be a member of the D.C. bar, a
membership of any state’s bar would suffice. But since I always, I think at
the time, had ambitions of doing work in the district, particularly as a
judge, I knew I had to join the bar, and so I waived in based on my
Maryland bar passage. I don’t know when that was but at some point.
MRS. EASTON: I’m curious, why did you end up interested in D.C. rather than the
Maryland system?
JUDGE FARRELL: Well, I was living in D.C. or right around there at the time. I guess it’s
that I spent three or four years with the Department of Justice in D.C. And
then you recall, I was invited to come over to the U.S. Attorney’s Office in
D.C., and that solidified my connection with the District. Now, had I
gotten an offer from somewhere in Maryland, I think during my DOJ
experience, maybe I would have moved over to Baltimore somewhere and
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become attached to Maryland. But, no, I think I became pretty early—my
wife and I decided we wanted to live in and around the District Columbia
area. Her children were here and so that started the connection. Basically
though, when I went to the U.S. Attorney’s Office, it made the decision
for me to practice in and around this area.
MRS. EASTON: And while you were in DOJ or when you moved into the U.S. Attorney’s
Office, were you involved in the D.C. Bar or any bar organizations?
JUDGE FARRELL: Not a lot. Not while I was at the Department of Justice, no. I had my
hands full with my job. Once I came over to the U.S. Attorney’s office, in
the course of time, I became a member of various committees, most of
which I have forgotten. But one: We had a rules committee—a District of
Columbia rules committee, mostly on civil but also occasionally on
criminal [rules], which would take uniform laws recommended around the
country by the uniform commissioners of laws, and decide whether the
District should enact similar legislation. We would make
recommendations to the Council of the District of Columbia, and
occasionally they would adopt something that we proposed. I had that
[committee] for three or four years.
I was on various other committees related to court work. We had a
committee at one point, interestingly enough, on whether the District
Columbia courts should adopt the Federal Rules of Evidence, because we
have never adopted them except piecemeal, individually. And we thought
it would be a good idea, at least some of us on the committee, for the sake
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of uniformity in the District that lawyers and judges should adhere to the
same playbook, follow the same rules of evidence. That never reached the
stage of a recommendation to do it, partly because there was a lot of
uncertainty as to whether the court could do it without input from the D.C.
Council or without some fairly dramatic changes in statutes in the District
of Columbia. Some of the evidentiary rules in the District have been
created by the legislature over the years, and some of them differ rather
significantly from Federal Rules of Evidence, for example, impeachment
with prior convictions and things like that. So, a lot of changes by the
D.C. Council would have been necessary to effect this kind of wholesale
reform. And there may have also been some political uncertainty as to
whether the Council thought the judges really had the business of doing
this or whether the Council should do it. That kind of issue comes up
from time to time over the decades. That was another committee I was on,
then a handful of others.
We had a committee once—I think I was vice-chair, I’m not sure—on
whether the District should create an intermediate court of appeals like
most states have, not all. We are the busiest court of appeals, and have
been for a long time, among those states or quasi-states that have only one
court of appeals. There are probably five or six smaller states that have
only the one. Most other states have the two. So periodically there would
be a committee set up to consider whether we should adopt an
intermediate court of appeals. Some thought that it was a good idea.
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Some thought that a city of, then, fewer than five hundred thousand
residents really didn’t need a second-tier court of appeals and probably
couldn’t afford it anyway, and Congress might not be willing to provide
the money in any event. It never really went anywhere. Various people
proposed it, others opposed it. And that was an interesting experience.
But it never led to anything much.
MRS. EASTON: Did you have a strong view on the issue?
JUDGE FARRELL: No, I didn’t have a strong view. I think, at that time, I was a deputy chief
of the appeals section, probably leaned toward the view that there wasn’t
really enough business to occupy what would be a certiorari court, the
highest court of the jurisdiction. Maybe—this is a little bit of telling tales
out of school, but maybe I was influenced a bit by my experience clerking
on the intermediate court of appeals in Maryland, the Maryland Court of
Special Appeals, where some judges, I can’t name names, were unhappy
over the years over the fact that the high court of the state, the Maryland
Court of Appeals, wasn’t busy enough, they thought. So, what they would
do, under their statutory authority in Maryland, would be to reach down
and cherry pick, pluck away interesting cases from the intermediate court
of appeals, take them as a matter of initial decision-making in the high
court, and leave the intermediate court with all the—
MRS. EASTON: The other ninety percent—
JUDGE FARRELL: —the other ninety-five percent of the cases. So, as a prosecutor in the
appellate division, naturally your instincts said to you that most of this
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stuff is not worth en banc or plenary consideration by a high court.
There’s a lot of junk. You don’t need it. It creates just another review
tier. You need more lawyers to do the work. And there’s very little
certainty that you have enough issues to justify a high court. I probably
leaned in that direction, although I could see arguments on the other side,
particularly as I’ve worked as a judge over the years. Every appellate
judge just wishes she/he had more time, fewer cases, and therefore more
time to sit and look out the window and ponder and think deep thoughts
and create better opinions that don’t simply correct errors in the process
but enunciate new law. Everybody would like to have more time to do
that kind of thing, but it’s not practical in many cases.
And on the whole, my sense is probably that, in a city of our size, we’ve
done pretty well with a single court of appeals. It has helped in the
criminal law area that we don’t have the death penalty, because what
occupies in the South state supreme courts an awful lot—Florida comes to
mind as an example, in the past—is death penalty cases. Over the years
I’ve talked to judges on high courts in the South who say, “All this death
penalty stuff comes to us, if not originally, it eventually comes to us, and
we spend an enormous amount of time agonizing over it.” We don’t have
that in the District, so that’s one less big project that the court of appeals
here has to deal with. On the other hand, we are a court that is kind of
unique in that there’s really no federal habeas corpus in the District of
Columbia—someday we can talk about that—unlike in the fifty states, so
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that people who have their criminal convictions affirmed here by our
court, basically have only one remedy and that’s to go to the United States
Supreme Court. They can’t go over to the U.S. District Court, file a
federal habeas like in the states and get another chance.
MRS. EASTON: I didn’t realize that.
JUDGE FARRELL: It’s true. Of course, Congress has made federal habeas corpus a lot more
difficult in the last few decades anyhow. But that is a sense in which the
District of Columbia is unique. It was actually challenged in the Supreme
Court some years ago, and they basically said that as long as the District
of Columbia has its own collateral attack avenue to give you a second
chance, which we do, then you don’t have to have federal habeas. But
I’ve gotten you sidetracked there.
MRS. EASTON: It’s an interesting aspect of the work of the D.C. Court of Appeals.
JUDGE FARRELL: We have a lot of responsibility, because we are the last resort in these
criminal cases especially, as a practical matter. On the other hand, we
don’t have quite the burden that some state courts have that have to decide
these death penalty issues.
MRS. EASTON: So, were there other civic activities or charitable activities that I should
also note?
JUDGE FARRELL: I don’t think so, because I think I was basically—I was a worker-bee, and
a workaholic, and a nose-to-the-grindstone kind of individual. And I
thought I served the city best by doing the best possible job I could as a
deputy chief of the appeals section and producing the best product we can
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for the courts. I’m sure those who are on the commission that picked the
judges back in the late Eighties when I finally applied, some of them
perhaps wished I had been more active in civic activities than I was. But I
had to confess that I basically did my job as well as I could and they’d
have to take me as I was.
MRS. EASTON: (Laughs.) So I take it that meant you weren’t politically active
particularly—
JUDGE FARRELL: No, I was an Independent then, I’m an Independent now, and my politics
largely consists of voting when I’m called to vote and reading the papers
and keeping well informed and arguing with my wife about politics, which
can be a full time occupation.
MRS. EASTON: (Both laugh.) Well, having grown up in such a political atmosphere in
your childhood home—
JUDGE FARRELL: That is true. It is interesting that I really didn’t kind of ingest or
internalize my father’s newspaper man kind of political obsessions. I
think it was just a part of the business he was in. I went off to college and
school and became more interested in other things than in politics. I went
to college in the Fifties when General Eisenhower, later President
Eisenhower, was presiding, and it was kind of a quiet, dull time. Things
got more interesting with JFK. Your juices started to flow a little bit more
about the political arena with a New Frontier and things like that. [Note:
See https://en.wikipedia.org/wiki/New_Frontier for discussion of the John
F. Kenney acceptance speech and New Frontier policies.] And then we
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had the Sixties, with everything that happened then, the assassinations and
all the rest. I have never though really been an acutely political person.
I’ve often thought too that it befits the role of a judge, including a judge on
a court of appeals, to keep his politics to himself and not get too active in
that kind of area. I don’t think any of our judges feel that it’s really
consistent with their role as a judge to be out there in the community doing
too much politicking. Hand shaking, yes, chief judge has to shake a lot of
hands, but politicking—no.
MRS. EASTON: When you accepted to chief the appellate section did you find yourself
shaking more hands?
JUDGE FARRELL: Not really. Number one, nobody was interested in the appellate section.
Appeals—nobody quite knows what appellate sections do or what
appellate lawyers do. Many don’t know what courts of appeals do. You
know, it’s not quite the same as Judge Jones, the trial judge, who you
think can fix your traffic ticket or something. So not really, no.
MRS. EASTON: So you had had ambitions to be a judge even when you went to the U.S.
Attorney’s office. How did you decide that it was time to put yourself up
for appointment? Or did you get invited?
JUDGE FARRELL: Well, no. I had ambitions? That’s a rather dramatic word, but I certainly
had an interest in doing it because I had done a lot of writing in graduate
school. I’d done a lot of writing in the appellate division, of course. And
I thought I’d probably be a pretty good court of appeals judge, not a good
trial judge. So, from the beginning, it was within my sights, I think. But I
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recognized that I had to pay my dues and I had to work over there for quite
a while, and there was no guarantee that you would do it. And indeed, the
first time I applied [to the Nominating Commission], they said, thank you
very much but come back next time. I was very fortunate that the stars
aligned and at a particular point when they were looking for somebody, I
qualified, and they hired me. As I said, perhaps earlier, there has been a
tradition of taking people who are chief of the appeals section in the U.S.
Attorney’s office and moving them to the Court of Appeals. Not
everybody has always been happy about that in the bar, but that’s the way
it’s been, and I happened to be one of them. And as I mentioned to you,
since I came on the court, two more of my predecessors [successors] have
joined the court and are now on the court.
MRS. EASTON: Well, at the time, let’s see—this must have been ’88, ’89?
JUDGE FARRELL: Yeah.
MRS. EASTON: What was the process for—
JUDGE FARRELL: It was a situation where you had a commission. It’s the modified Missouri
Plan, I think, where an independent commission consisting of people
appointed by the Council, by the mayor, by Congress, one federal judge—
don’t ask me why they insisted that he or she be put on there, harkening
back to when the District was just a kind of an extension of the federal
government. And members of the bar would be appointed, and that
commission would pick three names, send them to the White House, and
the White House had to pick one. So, it’s kind of a home-rule
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compromise. And I think it’s an excellent system because it takes a lot of
the—not entirely—but it takes a lot of the politics out of the situation.
You get a lot of voices who get to be heard. I don’t think the president in
my memory has ever resisted in some way picking one of three. Nobody’s
ever tested the matter. I’m not sure that any president has ever had any
particular person that he keenly wanted to put on our local court bench.
They seemed to be more interested in federal judgeships. I’m not sure
why, but it does seem to be the case. So it’s a system that worked.
From time to time, there are people who are seen as kind of a natural for
the job and the first time, because they’ve been important people, say, in
the bar. The first time I applied, there was a gentleman who had earned
his right to be considered for a judgeship, trial or appellate, and he was
being, I think, groomed for the job in the eyes of many people. And they
basically told me I’d have to wait because it was really his chance. Well,
it turned out he didn’t pursue it or wasn’t ultimately picked, somebody
else was picked. And in a couple years later my turn came. And my wife
always reminds me of how fortunate I was to pull the wool over their eyes,
but it worked.
MRS. EASTON: (Laughter.) Was there a vetting process with questions?
JUDGE FARRELL: Yes, you have to—you have to do an awful lot. You fill out an intensive
questionnaire for the Judicial Nomination Commission. And you’re
interviewed by them. If the White House picks you, or if the White House
indicates to you that it intends to pick you or would like to pick you, you
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fill out a questionnaire for them. If you’re nominated, you fill out a
questionnaire for the Senate. And as I used to say, the White House’s
questionnaire wants to know what you do on Monday, Wednesday and
Friday. The Senate says, “What do you do on Tuesday, Thursday and
Saturday?” So, you have to give a good accounting of your life to get
through that kind of screening and hope that you get confirmed. And I
was eventually confirmed in 1989. But before that there was an
interesting little hitch in the process. After my name got sent up to the
White House, President Reagan, in his last year in the office, nominated
me in maybe October or so. Well, nothing happened. Congress went out
of session in 1989 when Reagan’s term expired. The election took place;
Bush won. George Bush was elected. The process had to start all over
again. He re-nominated me. But interestingly enough, sometime around
in February of 1989, I received a call from the Deputy White House
Counsel who told me that, “Unfortunately Mr. Farrell, all of your papers
have disappeared. It would appear that President Reagan took all of his
papers west to what was going to be the new presidential library” in
California—somewhere out there where the Reagans lived, Santa Barbara,
in that area. And I had this image of President Ronald Reagan, as his last
act, going through Mr. Farrell’s resume and deciding this is very important
and it should go to Santa Barbara. (Laughter.) In any event they said,
“Please send us another copy of your resume and your application,” which
I had to do, and then things went from there. [Note: Records on
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Congress.com reflect that Michael W. Farrell was nominated on January
3, 1989, and confirmed by unanimous consent of the Senate on June 7,
1989. https://www.congress.gov/nomination/101stcongress/
62/actions?q=%7B%22search%22%3A%5B%22farrell%22%5D
%7D&r=6&overview See also Senate Hearing 101-40 (April 21, 1989),
Hearing before the Senate Committee on Governmental Affairs, available
at https://babel.hathitrust.org/cgi/pt?id=uc1.b5139429;view=1up;seq=1.]
I was not confirmed for a good five or six months, until almost the
summer of 1989, because Senator Sasser from Tennessee was the chair of
our committee, and he was not in town all that time because he was
running for reelection. [Note: Senator James Ralph “Jim” Sasser of
Tennessee chaired the committee hearing for Judge Farrell’s nomination;
it appears that Senator John Glenn of Ohio was the chairman of the Senate
Committee on Governmental Affairs at the time of Judge Farrell’s
confirmation.] So things sometimes can move slowly. ’Nothing political;
unlike the Senate Judiciary Committee, our committee was a different
committee that handled the Article I confirmations. But things sometimes
worked slowly.
MRS. EASTON: So that’s a fairly extended period during which you just continued to serve
as chief?
JUDGE FARRELL: Yeah, much easier for a government lawyer, as you can imagine, than for
a lawyer in practice. And it happens again and again. It almost is a
disincentive for people to apply for federal judgeships and state judgeships
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around the land because you can get tied up so long in the legislature for
confirmation and meanwhile your practice is sort of on hold. It’s easier
with a government employee.
MRS. EASTON: The work kept coming. (Both laugh.)
JUDGE FARRELL: That’s right. In fact, our poor ninth judge nominee [Todd Sunhwae Kim,
Solicitor General for the District of Columbia from 2006], the White
House has nominated him the second time, has been under consideration
by the Senate for the better part of two years now. I won’t even go in to
the reasons, assuming I even have an idea of what they are. Meanwhile,
we’re functioning with eight judges when we could dearly use a ninth.
MRS. EASTON: Oh, absolutely. Once you were confirmed, what happened next?
JUDGE FARRELL: Once I was confirmed, I was vacationing in Florida with my wife and her
brother from Paris, France. He came over. We had brought him to Miami
for an eye operation and we were at Disney World, I think, and I received
a call from the White House saying, “You’re it!” That was during the
winter before the confirmation. And I said, “Thank you.” The actual
confirmation, I can’t even remember, it happened maybe in May or June.
And I came over about two or three weeks later, maybe took a little
vacation and started right in.
MRS. EASTON: Now, did you have a hearing with that?
JUDGE FARRELL: Oh, yes. Yeah, I had a hearing when Senator Sasser was able to make his
way back to Washington, probably in May. And it got to the floor very
quickly, because these things were not controversial then for our court.
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And there was not much time because I was one of these people who
always wanted to be ahead of the project. I didn’t want to get behind. I
spent the summer working on the cases that I would begin to decide in
September. So, I had a good summer to kind of prepare.
MRS. EASTON: So, you had a sitting that fall, your first fall?
JUDGE FARRELL: Not until September of 1990, I guess, was the—
MRS. EASTON: 1989?
JUDGE FARRELL: Well, let’s see. It was ’89 still. Yes, ’89, right.
MRS. EASTON: Was there a judicial college? Training?
JUDGE FARRELL: No. No, you learned by the seat of your pants. You learned by doing.
Yes, there is a one-week seminar that we traditionally have sent our judges
to up in New York at New York University Law School, which basically
invites judges and other speakers from around the world to talk about
some subjects. But, it’s nothing like what many states use, for example,
which is a judicial college, I think it’s out in Reno, where judges will go
out for three weeks, a month or so and actually get some hands on training
on being a trial judge. Appellate judging, you basically learn through the
experience of doing it. You can learn it through various seminars that the
ABA puts on—you attend those. But no, I think that may be a
shortcoming in our whole system: that judges kind of have to learn by
doing. And there is no real—that I’m aware of—advanced training that
you can do of any length.
MRS. EASTON: So, when you—when you were confirmed, did you go about hiring clerks?
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JUDGE FARRELL: Yes, I did. I have a little difficulty remembering how I ended up hiring
one. Maybe I just looked at a bunch of applications that were there,
people who were interested. Word gets out that a new judge is beginning
and you get applications. And then, a professor out at Catholic University
Law School, who I knew through an Inn of Court—I had been a little bit
active in Inns of Court—called me and said, “I have a young man out here
who is exceptionally good. He’s decided at the last minute that he’d like
to clerk next year, would you be interested in him?” I hired him and he
was my second hire or first hire, I don’t know. And he was actually one of
them who was in pari delicto, you know that old phrase? He was an
accomplice in what you mentioned, that forty-page opinion that you pulled
out before—hugely over long. (Both laugh.) But he was a very gifted
young man. And he and I worked very hard together in the first year.
MRS. EASTON: So you had two clerks—
JUDGE FARRELL: I had two clerks. That’s what we have on our court. The trial judges get
one, we get two. Two clerks and a—we used to call them “secretary,”
now they are judicial administrative assistants. The way things have
evolved now, some judges, not only in our court, but elsewhere, don’t
even have secretaries or administrative assistants; they have an extra law
clerk, who can also be a paralegal to help them to keep tabs on the cases.
MRS. EASTON: I heard that recently. That’s amazing to me.
JUDGE FARRELL: Yeah, it’s wonderful for a federal appellate judge if you could have four
clerks instead of three, if they can do the work. And of course, the young
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people all do their own composing now, so you don’t need anybody to do
the typing.
MRS. EASTON: Right. Wow. So, you and your two clerks, there you are with a stack of
briefs.
JUDGE FARRELL: There you are, learning. As I said, I had the advantage of having a month
and a half, two months in the summer, to kind of figure out some of this
stuff with the help of the clerk. So I was able to hit the ground running
pretty well come September because I had worked up several of the cases.
I had introduced myself to the arcane subject matter of things like
worker’s compensation. Actually the first opinion I think I wrote, I did a
draft—I shouldn’t tell this—before the case was argued in September. I
had worked my way through it and I had written an overlong draft on
worker’s compensation, very proud of myself at having discovered I could
figure out that law, which is not so easy to figure out sometimes.
MRS. EASTON: There was a total prohibition on criminal—
JUDGE FARRELL: Oh, for at least a year and a half, there was no significant criminal
participation. There was a little bit because occasionally you would get
misdemeanor cases that went through the system in the U.S. Attorney’s
Office very quickly and would come up on appeal, cases that had begun
after I left. But by and large, at most it took a year and a half for me to get
past cases that had been in the system while I was in the U.S. Attorney’s
Office, and as to which I felt obliged to recuse myself.
MRS. EASTON: How did you keep track of that?
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JUDGE FARRELL: Oh, you could tell it by case numbers. Not the appellate number but the
actual case jacket number would tell you. And some judges are more
rigorous in doing this than others, but I felt that as long as it was in any
stage in the U.S. Attorney’s Office at the time, I should recuse, and I did,
which was also good because it gave me a nonstop diet for a year and a
half or two years of civil and administrative law. And helped me to learn
my way around a little bit.
MRS. EASTON: It’s like a crash course.
JUDGE FARRELL: I’m sure there were plenty of civil practitioners out there who were saying,
“Why do we trust these complex civil matters to somebody whose whole
experience has been criminal?” But someone has to do it, and you have to
learn it. And you do learn it.
MRS. EASTON: So were any of the other judges on the court helpful to you as you were
setting up chambers?
JUDGE FARRELL: Absolutely, I mean a lot of them would come around and offer whatever
assistance they could. A lot of them offered advice. Much of which I
probably ultimately should have followed but didn’t. (Laughs.) The
result is that, from my vast learning, I try to teach similar advice to each
new judge who comes on the court. And by and large, I think they
respectfully listen to it and take it to heart and probably don’t follow a lot
of it. But we all think we can help. And they did help me enormously. I
got tremendous support from them. And I think they were happy to have
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me on the court, because I had appeared before them so often, and I knew
most of them, that they recognized I could probably make a contribution.
MRS. EASTON: Well, that’s pleasant and that’s right, you have been appearing before
them for—
JUDGE FARRELL: This had been my job for many years—not many years but for quite a few
years, eight or nine. And so we got to know one another informally. It’s,
I think, why some people refer to the incestuous relation between the U.S.
Attorney’s Office and the Court of Appeals, these judges who just change
seats and put on different hats. But it is a remarkable transfer—it’s a
remarkable change from what I had been doing to what I had to learn to
do.
MRS. EASTON: And tell me about going from being an advocate to being a judge. That’s
a big change. But I also want to hear about how the collegiality was
different. Did you feel isolated from your colleagues at the U.S.
Attorney’s Office? Or the bar?
JUDGE FARRELL: Well, I think you inevitably go a couple of years, two or three years,
where you almost self-consciously distance yourself from your former
colleagues. Just as a part of the problem of trying as best you can to purge
yourself of any kind of particular leanings, biases that you might have
acquired, perhaps inevitably acquire. So, there’s a certain amount of that
detachment. You do, nonetheless, continue to see them at events, annual
meetings of the former assistant U.S. attorneys association. They know
fully well your new position and that your relations with them have to
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change and have changed. But, it’s not as dramatic a change in a small
city like this. As you can imagine, you bump into people all the time.
MRS. EASTON: Well, that’s another question I have for you. My own experience from
moving to D.C. is that this is a very small town for lawyers. So when you
took the bench, did you meet new practitioners that you had not previously
known, from the civil side?
JUDGE FARRELL: Yes. Yes, I did. Except that you know, as an appellate judge, you’re
considerably more cloistered, perhaps is the word, than as a trial judge,
generally speaking. You don’t have that much contact with lawyers
informally. And even formally in the sense that in trial courts [lawyers]
come into the chambers to file motions and things and there’s inevitably
back and forth. There’s relatively little socializing on the part of appellate
judges—at least my experience has been, on our court—with members of
the bar. So, my learning to know new people, civil practitioners and so
forth, largely consisted of seeing them in court, hearing them argue,
reading their briefs, occasionally seeing them and congratulating them on
their work, but not a lot of socializing. A court of appeals judge, my
experience has been, is a sort of a monastic kind of existence in many
ways. Your job is a limited one and it’s not one in which you’re really
called upon to reach out to the world around you and engage. You’re
confined to that darn cold record that comes before you.
MRS. EASTON: Unless you’re just posting on the internet.
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JUDGE FARRELL: (Both laugh.) That—well, that’s right. Unless you write books and do
everything like that. There are exceptions. (Both laughing.)
MRS. EASTON: Well, then, tell me about the substantive change. You obviously were
excited to do it.
JUDGE FARRELL: Oh yeah, I was excited. Actually I was interviewed shortly after I was
appointed by a young man who still writes, I think, for the Washington
Post. And I made the mistake, in a way, of saying it would be nice to take
this new job because I’ll get a chance really to call them as I see them. I
don’t think the U.S. Attorney at the time, when he read that in the
newspaper, warmed to it too much, because that kind of suggested I was a
hired gun or a shill or something when I worked in the U.S. Attorney’s
Office and wasn’t calling them as I see them. [See B. Gellman, “Three
Names Forwarded for D.C. Court of Appeals, But No Action Expected
Soon,” Washington Post, Nov. 11, 1988, at
https://www.washingtonpost.com/archive/local/1988/11/11/3-namesforwarded-
for-dc-court-of-appeals-but-no-action-expectedsoon/
ab2c6a82-520c-4e3a-b4c0-
ba2115006185/?utm_term=.34d62cb3054b]
Well, nonetheless, there is a very big difference between being an
advocate and having to do the decision-making of a judge once you get on
the court. I mean, for so many years as an advocate, particularly an
appellate advocate, your job was to burrow yourself into the law and the
facts far enough to construct an honest, presentable, reputable argument on
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behalf of your client and argue it as best you could to reach the result you
wanted, consistent with the record and consistent with the law. But you’re
an advocate. Everything you did in your written presentation, like in your
trial work, is designed to lead the court, if you can, to a certain result,
which is the result your client wants. And that’s a fascinating career. I
mean it’s wonderful. At the same time that it calls for a lot of skills, it
develops a lot of skills in you—among those being, I guess, using rhetoric
well, particularly when you’re writing for a court of appeals trying to
persuade, or at least trying to make the court uncomfortable with your
opponent’s argument. These are skills that you learn as an appellate
lawyer.
But they are skills that you just kind of—in the main, put behind you when
you become a judge. And one of the first things I think I discovered once
I started analyzing cases with the view towards deciding them was just
what a complicated world it is. How hard legal issues can be. How rarely
it is that there is one side—the side that your client represents—that has all
the virtue, with all the non-virtue on the other side. And that makes for a
difficult job, because there’s relatively little perfection in what the law
provides to you. So, you’ve got to make judgments that as a lawyer you
really didn’t have to make. As a lawyer, once you decide ethically that the
law supports a position that you’re maintaining, you maintain that position
as vigorously as you can. Because it is not your job to decide the case.
When you’re the decision maker, you suddenly realize that there are few
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legal issues where good things can’t be said on both sides of the equation.
And especially in my situation, starting out in civil law, where I knew
relatively little anyway, when you start going into the texts or into the case
law, you may find out, at the end of a tedious process of trying to instruct
yourself in it, that the case could be decided either way, maybe with a
balance one way or another. It becomes a difficult task, and you have to
learn it, and you have to learn to do it, and it’s not something you learn
easily. So, I think that was kind of the hardest thing for me at the
beginning. Oh, I anticipated the job exactly required that. But just to
recognize how darn complex the law is and how hard it can be to reach the
correct result.
This is all in addition to the complications you find as a judge, particularly
an appellate judge, that the facts create, and the process of the trial or the
proceedings in the trial court create. You find that not only is the law
complicated, but it’s darn hard to apply to the facts of this case, because
the facts turned out to be terribly messy, not fitting the particular legal
matrix that you think you’ve identified. And so you spend hours trying to
figure out how do you deal with this, how do you kind of fit a messy set of
facts—with objections made, objections not made—to certain legal
principles that you have to apply to the facts and reach what you hope is
the right decision. That was one of the difficult things for me, quite apart
from just learning the subject matter of partnership law or res judicata or a
hundred other subjects that got put on my plate in the first year in the
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court. But, you do, you do your best. You’ve been trained as a lawyer.
You’ve worked as a lawyer. You ultimately come to recognize that all
you can do is create the soundest kind of legal logical chain of reasoning
that you can that will lead to what you think is the right result. Hope
you’ll persuade at least one other judge, since we sit in panels of three.
Ideally, hope you’ll persuade both. And then, even more, hope that when
you send that draft opinion around to the whole court, they’re not going to
tell you, “Do it over again,” or something like that because, “We don’t
agree with you.”
So, the second lesson you learn pretty quickly in becoming a judge,
especially an appellate judge, and that differs from being an advocate is
that you have a different audience. In the first instance, in a collegial
court, you’ve got to work with other judges. We sit in panels. You’re not
the lone decision maker. So you’ve got to write for them. You have to
learn fairly quickly, if you’re going to be any good at it, how little to say
or how much is important to say in order to get that kind of collegial
unanimity that you aim for and that the bar really wants. The bar doesn’t
want a lot of split decisions.
And then there’s the audience of the—you got to learn to recognize who
you’re writing for. You’re writing for the public. You’re writing for the
bench and the bar. And you have to learn, and this sometimes takes time
to learn, to be careful not to say things in written opinions that can mislead
the bar, can cause them to think that you’re writing more than you’re
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writing, and can create mischief down the road by unnecessary,
unnecessarily broad language that they may misinterpret and think, “Gee,
the Court of Appeals is telling us we can do this,” when you didn’t really
mean that.
That relates to another of my lessons you learn, I think, which is how to
use your law clerks. Law clerks fresh out of law school who are learning
the intricacies of a particular subject matter want to give you everything in
a draft or in a memorandum. And you have to come to recognize, perhaps
only over time, that the more you say about a particular subject in a
written opinion, the more you can perhaps create problems down the road,
if not landmines, misleading inducements to people to make arguments,
and things like that. And a judge with a little bit of experience, I think,
acquires the ability to decide better than a young person just out of law
school what’s enough to decide a case without leaving too many things
open and creating too many promises that you don’t mean to.
So, these are a couple of things you have to learn through just doing. But
maybe I had an advantage over some of the other judges who, for
example, have come up to the court from the trial bench, because I had
been doing appellate work for eight or nine years. So, on the whole I
would have to say, and I don’t mean this immodestly, I think it was fairly
easy for me to change hats from being an advocate to an independent
decision maker. I’m sure many lawyers over the years thought I never
took off my prosecutor’s hat. Maybe it’s not possible to completely do it.
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I think that I did from years of working as an appellate lawyer acquire a
pretty healthy sense of the prerogatives of a trial judge and of the fact that
the justice is administered primarily in the trial courts and not in the Court
of Appeals. And that trial judges have an enormously difficult job, and
that interfering with particularly discretionary calls that they make ought
to be something the Court of Appeals shouldn’t do lightly. I think I came
to that sense of a kind of initial deference to the decision-making by the
trial judges. But, nonetheless, you have to learn also that—especially
when you’re interpreting statutes and things—you’re the decision maker,
and you’re the person that the law entrusts with the job of reading those
statutes.
MRS. EASTON: Well, especially on the civil side, if the answer were really clear, it’s
unlikely it would be making its way up to you.
JUDGE FARRELL: That’s right.
MRS. EASTON: Because business does not love litigation.
JUDGE FARRELL: No. No. That’s why—I mean I learned fairly quickly that—it was partly
because of my background. I was so familiar with the criminal justice
process that the civil cases, all of the civil cases, seemed novel and hard.
And then gradually I realized that there is a winnowing out process, and
that stuff—civil cases in general—doesn’t come up to the Court of
Appeals unless somebody thinks there’s something there, otherwise
they’re wasting their client’s time and money. But the most difficult thing
for me was just the number of new issues that you experience for the first
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time as a judge. And then you just have to roll up your sleeves, sit down
with your law clerks, decide how you’re going to research the matter, and
send them to the right sources to try to get the answers, and then give it the
best judgment you can and hope that you’ve got it right. When I clerked
in Maryland on the intermediate court of appeals, you at least had the
sense that, well, we’re not the last voice on this matter. If we do get it
wrong, somebody else is going to correct it, even if it doesn’t happen that
much because they [the higher courts] don’t take all the cases on review.
On our court, you’re the last resort, so there’s a certain additional
incentive to try to take the extra time to get it right.
MRS. EASTON: How did you allocate time? As a very experienced appellate advocate,
you would have a sense how long it would take you to prepare a brief.
JUDGE FARRELL: Yeah. I don’t know whether I sat down in advance when I started my
appellate work and tried to map out a schedule and so forth. I think I
basically just plunged into it with a determination to keep ahead of the
crunch, the crush, all the time, by just hard work. And I had an advantage
that some people don’t have. Sometimes, as I said, it’s trial judges who
have spent a long or short career judging cases, but not doing a lot of
analysis and writing, particularly having to substantiate your thinking in a
written document. I had had that—at least as an advocate—that writing
experience. So I started out, I think, with the determination to do as much
of the work as I could myself. That’s not all judges, and it doesn’t work in
all courts. On the Supreme Court of the United States, for example,
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constrained as they are to get their opinions out by the end of a term, it’s
virtually impossible for a justice to write everything himself or herself. It
just couldn’t work. It can’t work on most federal courts of appeals with
the voluminous administrative records and things they get.
But to the extent I could, I decided at the outset I was going to try to run a
little four-person law shop. Each of us—each of the lawyers, since the
clerks were now fresh, baby lawyers, or were going to be—we’d be
working on some legal project at the same time. I might be doing the first
draft of an opinion on a case we had just heard, whereas each of the law
clerks was preparing me a memo, called it a “bench memo” or whatever,
on upcoming cases, things like that, or research assignments I had given
them. And there were often many of them, particularly in civil matters.
But the critical thing I decided, in order for me to be able to stay on top of
a busy court operation, would be for all of us to be actually engaged from
the beginning in the actual analysis and drafting of opinions. And I think
that ultimately worked for me over the years. And that’s one of the bits of
advice I’ve tried to give to other judges—often not observed, for their own
reasons—and that is to get your hands involved very early in the project of
actually putting your own thoughts down on paper as soon as you can after
the case is submitted to you, while your memory is still fresh, rather than
waiting to get a draft from a law clerk, who might be very gifted, but still
thinks differently than you do.
MRS. EASTON: And is junior.
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JUDGE FARRELL: And is junior, and doesn’t have the experience, and then going to work
trying to work from a draft. Other judges who are masterful on the Court
of Appeals work very differently. One judge I won’t name—I’ve admired
him over the years—number one, had the gift of getting terrific law clerks
through his friends who were teaching in good law schools, and he
entrusted them with probably a lot more actual drafting of opinions than I
ever felt comfortable with doing, particularly after my first year on the
court. We’ll talk about that in a moment. But nonetheless, he knew—he
had almost a preternatural kind of ability to give instructions to them as to
exactly how he wanted the thing shaped. I had the feeling that, sort of like
a little Mozart, he had the things sketched out in his mind before he
actually wrote down the music, and he could give them the marching
orders, the instructions, and they would give him something. He would
then work on it, and at the end of the day, the end of the process, you
knew it was his opinion.
Some work that way. But from the beginning decided I would make most
progress if I took on most of the [drafting] responsibility myself. This is
partly a result of my appellate experience, that is, I had my own sense of
what good writing was. I had a kind of a bias in favor of more
compression, more concision than some. Inevitably, in the first year or
two, I wrote overlong, because I was learning so much civil law matter.
And it’s a kind of a human instinct: As you learn something, you put it
down, because you think you’re educating yourself and others, when
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others probably don’t need all of that. But I took it as one of my goals to
try to—besides being prompt—to try to learn to write short. Shorter, at
least, than I did in my first few opinions in my first year. And you can do
that better, you can maintain better control over what you ultimately write,
I think, when you’re the actual drafter as much as you can be.
So I developed the practice early on of requiring from my law clerks
basically three things. Number one, most importantly, that they be
available when I want them to be available to talk about issues. Often at
nauseating length, when they wanted to go out and play tennis or
something like that. Into the night. To try to use their bright, young
minds to figure out issues. Then, two, to give them particular research
assignments and get research products from them in particular areas. And
then the third thing: After I took their work product and worked it into a
draft opinion, make them my best critic, on the theory that you’d much
rather have a law clerk tell you in your chambers that, “This doesn’t work,
judge,” than to have another judge tell you, “This doesn’t work, Mike.”
Every judge wants the thing that comes out of his or her chambers to be
the best they can produce—rarely happens, but that’s what they aspire to.
And you depend on your clerks for that. They may not have the judgment
you have, they may not have the writing ability you have—some may,
they certainly don’t have the experience you have, but they have a pretty
keen eye for seeing logical defects in writing. And, after familiarizing
themselves with a subject matter, seeing defects in the way you’ve applied
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the law to the facts. So I decided I was going to use them for that function
too, to keep my conscience working in a sense, you know. And I think
every judge wants to do that. Oftentimes the law clerks and I would
disagree ultimately, but I think they always had the feeling that I was
treating their perspective seriously and that I learned from it.
MRS. EASTON: Now you mentioned that you had worked up for the first year, worked up
at least one of the cases. Did you have your clerks do an outline or a
bench memo for you before you—
JUDGE FARRELL: No, because my clerks I think were still coming on during the summer. I
was alone for a month or two, so I was just working at my own pace on
my own because I didn’t have the pressure of a case or even arguing.
Once I got the clerks and saw what the array of cases was going to be
coming down the pike, with so many new subject matters, all civil and
administrative, I had to put them to work pretty quickly on researching
subjects, such as dissolution of a partnership in which there is no
partnership agreement, and how you settle accounts and wind up and all
that stuff—can you imagine a poor criminal appellate lawyer trying to get
into that stuff?
And you depended on the clerks, particularly at the beginning, to just find
out what the law is for you in that area and to kind of crystallize it for you.
So that one of the first opinions, which is the one you mentioned, this
partnership dissolution case, forty-some pages, came to me in a form of a
memo—could have been a draft, you could’ve just put a heading on it—
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from this very gifted young lawyer I hired from Catholic University. And
the draft was about 130 pages. And there were still two or three trial type
issues that hadn’t been resolved. And I think his thinking was, “I’m
smarter than this judge. He’s a criminal guy, he doesn’t know civil. I’ll
leave those little trial issues to him. I’ll give him the stuff on partnership
law.” And he did, with a vengeance. Gave me over a hundred pages.
That opinion has so much in there on partnership law, this and that. I
think one of the most difficult tasks I had in my first year was taking that
140 page analysis and whittling it down to forty. And you think that’s too
much! (Interviewer laughs.) I thought I did a masterful job of reducing it
to forty or so.
MRS. EASTON: (Both laughing.) Somebody cited that case within the last month or two.
JUDGE FARRELL: I cannot believe it! (Both laugh.) There’s a venerable lawyer, Jake Stein
[Jacob A. Stein], in the District of Columbia—he’s getting older now, but
he was a wonderful civil lawyer for many years. I think he commented at
one point, “This is an encyclopedia on partnership law and dissolution.
But like most encyclopedias, people will do nothing but reference it
maybe once in a decade.” (Judge laughs.) And as I mentioned to you, I
think, in my little e-mail to you, my colleague, Judge [John M.] Steadman,
who came to the court some years before myself, not too many, but from a
professorship at Georgetown University Law School, he read my draft and
was convinced that it was ninety percent dictum. And he even concurred,
saying, “I would decide this case on A, B, and C, rather than A through Z
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like Judge Farrell.” So that was kind of mortifying, to think that he didn’t
quite like my analysis.
MRS. EASTON: He didn’t appreciate it, huh?
JUDGE FARRELL: Right. (Both laugh.)
JUDGE FARRELL: But I couldn’t worry about that, those naysayers who thought I was writing
too much. Because I was onto to my second, third, fourth, and fifth
[opinions]. Some of which were equally long, because I think the other
clerk caught the disease. (Interviewer laughs.) And gave me some long
drafts. And I had to work on cutting them down. But it just so happened,
in that first year I got a succession of, I think, tough civil cases on
immunity. And I probably lost fifteen pounds that year and only
recovered in time. And thank goodness, two years later, criminal cases
started coming along, and I regained my weight and my sanity.
MRS. EASTON: (Laughs) Wow! Well, why don’t we take this as a point for our pause?
JUDGE FARRELL: Yeah. —Absolutely.
MRS. EASTON: Thank you very, very much.
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ORAL HISTORY OF JUDGE MICHAEL W. FARRELL
FIFTH INTERVIEW
NOVEMBER 12, 2015
This interview is being conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewee is Judge Michael W. Farrell. The
interviewer is Lory Barsdate Easton. The interview is taking place at the District of Columbia
Court of Appeals on November 12, 2015. This is the fifth interview.
JUDGE FARRELL: [Describing a recent trip to Italy] We spent about two weeks there, the
first half of it up in Tuscany. We rented a place at one of the two—
what do they call these—agriturismo. Rebuilt, upgraded, updated,
fancified farmhouses on an actual practicing farm, most of them are—
raise grapes, that’s about it, but a lot of them, right near San
Gimignano, one of the leading hill top towns that people go to, and
within driving distance of three or four others. So, it was a nice central
place. And we spent four or five days there. The weather was
glorious, and we had a lot of fun. The one thing I didn’t like, and it’s
the last time I’ll do it probably, is the driving in Italy. You know, we
went just the two of us. And the windy roads and the pressure of being
pushed off the road by Italian drivers at every turn kind of got to me
after a while. But we survived it and had fun. And then we went to
Florence just for a day. I’d been to Florence before, a couple times.
And it’s so, so, so, crowded. God, it’s incredible. Then we took a
train from there down to Naples, and spent three, three and a half days
in the town of Amalfi on the Amalfi Coast.
MRS. EASTON: Oooh!
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JUDGE FARRELL: Yep. You have to get a driver to take you over the mountains and
down over to the coast. They call it the Amalfi Coast. And that was
very nice, although the temperature was in the nineties. But, it’s not
bad at night. It drops down and you have the glorious view of the sea
and you go up to Ravello and you can swim, and we swam every day
in the Mediterranean. It was nice.
MRS. EASTON: Oh, nice!
JUDGE FARRELL: And then the high point for me, we went over to Florence—to Naples
for three and a half days or so. I’d never been to Naples and I loved it.
It’s a wonderful city. It’s like all these old historic, huge cities. Eighty
percent of the city you don’t see and you don’t really want to see, and
it’s got enormous problems of unemployment, crime, and mob control
and everything else, I assume, from what they tell me. But the ten,
fifteen plus percent that tourists see is very nice. It’s a city that’s
overwhelmingly rich in history. You know, all the dynasties that were
in there, and the French, and the Austrians, and everybody. So, the
museums are just a treasure trove of interesting things, particularly
wonderful marble sculpture, because they have great marble down
there in the southern part of the country. And we stayed in the old
city, which was nice, and got a chance to do a lot of things, including
taking a funicular up to a fort way up at the top of the city from where
you get one of the wonders of the world, in my view: a view of the
Bay of Naples. On a nice day, you can see Vesuvius over on your left
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and you can see all the way out to Sorrento, and it’s just a spectacular
azure blue view of the Mediterranean, polluted or not.
MRS. EASTON: Yeah.
JUDGE FARRELL: And you really just kind of luxuriate in it because it’s so—it’s so nice.
And the food is great in southern Italy. It’s simple, but it’s all fresh.
And it was nice because not that many tourists in Naples, enough, but
not nearly as many. I had read a couple novels or one and a half
novels on Italy—Naples during the war, or immediately after the war,
and what a dreadful, dreadful place it was where thirty thousand
people were killed from Allied bombing alone, not to mention what
the Germans did. And it was just dirt poor. And it was all
degradation—prostitution, starvation, you name it. And here sixty
years later it’s come back pretty nicely. It’s a very, very nice city. But
that was it, and it was quite enough. I was ready to come home.
MRS. EASTON: (Laughing.) And you brushed up on your Italian while you were there?
JUDGE FARRELL: Oh, yeah! I got huge plaudits from my wife, I guess, and other people
that we took taxis with because I was sitting up front chatting away
with the taxi driver, and of course, the others in the car didn’t know
that some of it I was faking.
MRS. EASTON: (Laughing.)
JUDGE FARRELL: But, so, they were hugely impressed with what appeared to be my
Italian, you know.
MRS. EASTON: Your fluent Italian!
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JUDGE FARRELL: A lot of it was my hands and stuff. (Both laugh.)
MRS. EASTON: Had you learned Italian back when you were studying European and
German literature?
JUDGE FARRELL: No, no, I had no knowledge of Italian then. I only learned Italian as
something to do; in 1995 I started after my first wife died. And I was
bored, and I was just, you know, kind of aimless, wandering. I was
still working full time. But as a pastime, since I had always known
languages—French, some through my marriage with her, and German
from my years of teaching, I figured well, here’s another language I
like because I’ve always liked opera and had read some Italian fiction
of the post-war era in translation and enjoyed it, so I said, “Why not?”
So I just picked up books and studied and with a view toward learning
to read it. I knew I’d never have a great deal of opportunity to speak
it, though I did actually for about six months do some tutoring,
conversational, with a professor at the Georgetown University who
was kind of moonlighting and needed some cash. But anything I
learned from him in the way of speaking, I forgot over the years after
that from lack of opportunity. So, when people ask me, I say, “I can
read it fluently. Give me a book and I’ll show you. But if you want to
carry on a conversation, you know, make it simple.” (Judge laughs.)
MRS. EASTON: Oh, fantastic. (Laughs.) Well, when we concluded the fourth session
last time, we had gotten to just about the point in your first year on the
145
bench when you were switching over and with great relief welcoming
some criminal cases onto your docket. (Both laugh.)
JUDGE FARRELL: That’s right. The first year and a half there was none.
MRS. EASTON: Right. (Laughs.)
JUDGE FARRELL: And I think I sent you some opinions, which you—with your busy
schedule you probably had no time to even look beyond the heading.
MRS. EASTON: I did look at them, but they were not short.
JUDGE FARRELL: No, they were not short. I had a long—there were two sins that I
committed that first year: one, to hire a law clerk who loved to write,
and second, to have him do drafts. And believe me I learned my
lesson that year. (Laughter.) We’ll talk more about that. But he
produced long, long stuff, which more often than not, I had to spend an
inordinate amount of time cutting down to a third of the space, or half,
and even then they ended up fairly long. And of course, too, because
they were all civil and involved issues that I had no familiarity with. I
mean, I didn’t remember the stuff about res judicata from law school.
There’s a sense in which when you pick up something to learn for the
first time, and to write an opinion on it the first time, you kind of put
down the fruits of your education on paper—because you’re kind of
teaching yourself, and you want to be as sure as you can that A is
followed by B, by C logically, and so forth. So, they tend to be longer
than they ought to be, but they were and it’s largely a function of my
not knowing the subject matter and having to learn it. And it was a
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very intense first year because I just got a succession of, I thought,
fairly complex civil cases involving issues I had no familiarity with,
and then, as you say, things got a little easier the second and a half
year, third year when I got criminal cases and got an even mix.
MRS. EASTON: And is the docket for the court fairly even?
JUDGE FARRELL: I’d say it’s about roughly fifty percent criminal, and the rest is a
combination of civil and administrative law (a lot of administrative
law because we get the appeals from virtually all of the administrative
agencies). Often—frequently they go through the superior courts, so
we’re kind of the second appeal. But in many cases they come directly
to us, and so that’s a good sizeable part of our docket. And the usual
civil cases, too—medical malpractice, different kinds of things like
that.
MRS. EASTON: So, tell me more about how you used your clerks then differently and
how that evolved.
JUDGE FARRELL: I think a general statement of it would be that over my, well, twentysix,
-seven years now on the court, I have tended to regard my
relationship with my clerks as a little bit like a three-or four-person
little law practice where everybody is working on something at the
same time. What that meant in year one, back in 1989, was more
dependence on the law clerks to do initial drafts for me, which I would
then take, and as I say, I’d edit and rewrite and so forth to get them
down to something that looked like me. That is the way many judges
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operate, particularly in busy courts, you kind of depend on your clerks
oftentimes to do a first draft. I don’t—can’t imagine how Supreme
Court justices could function in ten months, whatever, without relying
on clerks to do first drafts in cases. Of course, they’ve got the best
legal talent in the world to do them for them. But, I came to learn
fairly quickly (laughs), by about the beginning of my second year or
so, or a little later than that, that I could function a lot better if I used
them this way: I would have the clerks, and have continued to have
the clerks, give me kind of bench memos in certain cases in advance of
the oral argument, if the case is going to be argued. And I’d tell them
to be comprehensive and tell me everything that they think the senior
partner in the law firm would want to know about the case, and to err
on the side of being more comprehensive than less. But I didn’t want
them to be, you know, an amicus curiae. I wanted them to tell me
what the issues were, what the problems were on either side, but then
give me their best judgment on how the case ought to be decided.
That’s the rule I’ve tended to follow over the years so that they will
give me that four or five days in advance of argument. We’d then sit
down and discuss it before argument. They come into oral argument
with me. We have two clerks, so one clerk would work on each
particular case. After oral argument, I’d sit down and talk to them
about it and say, “Well, we decided not to go the way of your memo,”
or “We want to go the way of your memo, and thank you very much,
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but the next thing you’ll hear from me on this case is when I give you
a draft.” And then I’ll sit down—this is my rule, which I have
followed as best I could—as soon as I could after that case had been
argued, I would sit down and rough out a first draft for myself as
thoroughly as I could without having done, say, extra burrowing into
the case law if I felt that wasn’t necessary. I want to get my thoughts
on the case down, my initial impressions, so that you don’t run into the
situation that a lot of judges do of having forgotten so much about the
case by the time you finally get around to it seven or eight months
later. You clerked, right? You know the drill.
MRS. EASTON: Oh, yeah. I know exactly what you mean.
JUDGE FARRELL: You know the drill.
MRS. EASTON: You’re starting all over again.
JUDGE FARRELL: You’re starting all over again. And the law clerk is starting all over
again and everything. So, that did not always work, but it was a
practice I’ve tried to follow, and I was pretty well prepared to follow
because I had been doing appellate writing for so many years before
that. So, I had a natural sense of what I thought needed to be said in
the case, how much needed to be said, how little needed to be said.
And after I finished drafting it, I would do one of two things: One, I’d
call up the clerk—or back then we didn’t even have email I don’t
think—I’d tell the clerk, here’s an outline, here’s my initial draft. You
got to find me some case law that either supports some of my
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propositions or refutes them. You know, I would take what I could
from the briefs, but they’re not always there. And the clerk would
then have the first crack at the final draft, and what I told them was
that: “What I want from you is your absolute honest judgment as to
whether I’m right or wrong and where the gaps are in my reasoning
and how we can correct them.” And more often than not, the clerks
would come back and, with the appropriate deference of course, say,
“Wonderful job, Judge, I just have these following comments.” But in
a significant number of cases over the years, clerks would come back
and say, “I really can’t accept the analysis. I really think it’s weak on
the following point,” and so forth, and they’d make me go back to the
drawing board. Sometimes, quite often over the many years, if the law
clerk had given me something analytically sound and good and
reasonably well written in their memo for me in advance, that would
make its way into the opinion, and as you know from experience,
clerks love that because they feel they’re being recognized.
Meanwhile, the other law clerk of my two would be working on the
next case and the same kind of a thing. But of course, since law
clerking is kind of a prelude to practice in law firms and law practice,
they would have three or four other things to be working on at the
same time. You know, the triage, the juggling five or six things you
had to do. Opinions would come in from other judges where I would
want the clerk’s input into whether I should join and so forth. Specific
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legal issues would come up in cases that weren’t argued, or so-called
summary calendar cases where I needed help from a clerk. By and
large though, my practice tried to be what I had learned over in
Maryland clerking on the Court of Special Appeals there, working for
a judge who basically wanted as much as possible for me to
concentrate my efforts on one matter at a time, to focus my work as
much as I could on a single project, get it done, and get it done
satisfactorily. Now that’s a luxury you don’t have in law firm practice
by and large. And you don’t have it in the court of appeals either if the
judge is really requiring the clerk to do almost everything, to do bench
memos, first drafts, second drafts. My sense was that I felt that I
would have been, as a law clerk, driven from pillar to post if the judge
was continually coming into me with these different kinds of things.
So I tried to focus the clerk’s attention on a particular thing. In that
way, I was always working on a draft, a clerk was always working on
a draft of mine or a bench memo in the next case. And it was like
three lawyers with a wonderful secretary—we called them
“secretaries” then, now they’re judicial administrative assistants—who
basically ran the administration of the office and did it beautifully and
would keep us in line as to when cases are coming up and all the rest
of the stuff. So, that was the model I tried to follow over the years.
And that’s the model I’ve preached to almost all of my new colleagues
in the ensuing years as to the way they might want to think about
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running their practice. There is a way that gets the maximum done in
the least amount of time and to leave them time for another life, and
that is to get into the habit very early of doing your own writing as
much as you can because it becomes second nature to you in a way.
You’re never going to do it perfectly because you’re always going to
need more work on it by a law clerk, more research, second drafts,
third drafts, but I found that there were real advantages in doing it that
way myself. I felt much more responsible for the work rather than
working from a lengthy draft. I had a good idea of how much I
thought the opinion needed to give good guidance to the bar for the
present case and future cases, but also how little needed to be said
without, you know, planting the seeds of future confusion and future
misunderstandings by lawyers who might think you’re saying more
than you’ve said. Because that’s a wonderful gift of lawyers: They
can take whatever is said in footnotes and anywhere else and treat
them as an authoritative statement by the court when, in fact, it may
have been an afterthought, it may have been something a clerk put in a
footnote, or it may have been something the judge really didn’t
consider and wasn’t essential to the case. So, I always thought I could
be not only more streamlined, more concise, but also have greater
control over the opinion and the analysis if I did the first draft myself
and traced out in as much detail as I could the line of reasoning that I
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thought we should follow—subject to the clerks having this, you
know, the kind of the next crack at it.
MRS. EASTON: It’s so much more efficient than having a clerk start from scratch—
JUDGE FARRELL: Absolutely, especially in the criminal law. If you put clerks—law
clerks to work, you know, given my background—if you put law
clerks to work on getting into an issue they’ve never seen before and
writing up a lengthy kind of a first draft or something—
MRS. EASTON: By definition, every issue they see. (Laughs.)
JUDGE FARRELL: That’s right. They’re going to spin their wheels. They’re going to
waste a lot of time, whereas I can do it a lot more economically. And
also another rule I followed was: When you were preparing a memo
for Judge Farrell in anticipation of oral argument, if you had the least
difficulty about where you were going, if you felt your wheels were
really spinning and you were just in a corner, you know, don’t get
writer’s block, don’t get scared. The door is open, come in and let’s
talk about it. And with all the experience I’ve had, especially in
criminal cases, more often than not I can kind of free up your writer’s
juices and tell you where the hurdles are and how you can avoid them.
What I have always needed the clerks more over the years for I think
in general was to do me the kind of hard research that you need for
civil litigation at the appellate level where so much of the law is
uncertain, where so often (a) I never had any exposure to it and (b)
there’s reasonable things to be said on both sides. You know, things
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like the Restatements of Law, as you know, in some ways, they’re
wonderful, but in other ways, they’re so general that it’s hard—that
each side can take something from them to support their position.
MRS. EASTON: Exactly. And do.
JUDGE FARRELL: Yeah, and do. And those were the kind of cases, and have been over
the years, where I really needed the clerks to go out and get me the
best research they could and do it thoroughly, because in a way, I’d
have to say, over the years, more and more as the years have advanced
particularly with computerization, I have found that the clerks in a way
are much more gifted than I am in doing basic research.
MRS. EASTON: Well, they’re efficient at that.
JUDGE FARRELL: They’re efficient at that as long as they can spot the issues and find the
relative material and not a lot of extraneous stuff, they can dig it all up
for you. They can tell you what the Supreme Court of Iowa said in a
case that factually looks a little bit like this or something. And that’s
critically important. But the main thing is that my guiding rule has
always been that the legal analysis should be as clear and as logical as
it could be. I mean, we can’t duplicate it, but it’s as though we were
doing a report or an analysis at the end of a laboratory experiment. As
a scientist, you want to lay it all out in a way that anybody can, what’s
the word—can replicate. So anybody can repeat your steps of your
analysis and reach the same conclusion. The law is much more
(laughs) uncertain and vague and ambiguous, but that’s what any, I
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think, self-respecting appellate judge aims for: to be simple, to be
clear, to be logical, to give guidance to the trial bench without
overwhelming them with a lot of ponderous legal case law citation—
but to be convincing and persuasive. And, you know, whether I’ve
succeeded over the years, anybody else can judge, but I learned that
fairly early on. I have to say that I preached to the judges over the
years two rules: One, do it yourself as much as you can, and second
rule, pick your cases. We’re a busy, busy court, which combines
intermediate appellate functions with Supreme Court functions. You
can’t write a masterpiece, a Marbury v. Madison, on every case. You
got to pick the cases that you think—where it’s necessary. And the
other cases occasionally maybe you would be willing to accept, for
your own purpose or your own pride, second best, as long as you’re
satisfied that the result is correct and the analysis basically sound.
Now, I’m not sure how much I’ve succeeded. I think that in my
preaching— I think over the years more of my judges that I’ve seen on
the court than not have chosen to work from first drafts. Maybe that’s
the way they did it in their prior jobs and in law firms and so forth.
MRS. EASTON: Well, that’s one thing I wanted to ask about. Because you came from
a background where you were drafting appellate briefs constantly—
JUDGE FARRELL: Right.
MRS. EASTON: —so you understood—
JUDGE FARRELL: Drafting or reviewing them, yeah.
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MRS. EASTON: Exactly, and then you were reviewing them, and so you were very
comfortable in either mode, but you found it to be optimal use of your
clerks and efficient to do your own initial rough draft—
JUDGE FARRELL: Right. But—
MRS. EASTON: Somebody who’s coming—
JUDGE FARRELL: Judge Jones from the superior court bench who has never written an
opinion, or written very few, [it’s not] easy to tell them to do that.
They may just not have the writing in their fingertips, you know, or on
their keyboard. Nonetheless, I told them [my colleagues], you know,
“If you continue—if you rely too much [on your clerks] you’re going
to get in trouble because you’re going to fall behind.” You’ve got to at
least make the effort early on, maybe increasingly over the years, to
make it your own product as an original matter. Think it through and
get it down on paper, at least a rough outline for the clerks to follow so
that they don’t go astray, so that they have enough guidance to begin
with. Some judges, I have to say, on the court, I won’t name them,
over the years I have sensed from a distance, were—are masters—
have been masters, and there are probably many federal appellate
judges are too—at, after oral arguments, sitting down with the law
clerk and giving them chapter and verse guidance. You know, almost
meticulous kind of guidance so it’s as though the clerk can simply put
it on a recording and then sit down and write and it—and there’s the
logic, there’s the outline. Not always the case, but many judges can do
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that well. I didn’t think I could ever do that. Ever since I began
writing as an appellate lawyer, I have found that I really don’t know
what I’m writing and where I’m going until I begin to draft. It’s an
odd thing to say because you have to have a general idea of where
you’re going. But when you sit down and start writing, things look
very different and they lead you in different directions from where you
thought you were going originally. At the end of an opinion I could
often look back and say, “Gee, I never thought of all that stuff
beforehand,” it just kind of came as I burrowed into the subject and
had to defend my thinking by putting it down on paper. So, you kind
of learn by doing. It’s the old John Dewey message, you learn by
actually doing something. And I think some of the judges who’ve
come from the trial bench have picked up that habit fairly easily.
Others did a lot of writing when they were on the trial bench like
Judge Frank Schwelb who died last year, one of my colleagues. He
had been a trial judge, but he had written a lot while on the bench.
Judges who have come from law firms generally have had to do a
good deal of writing. They found it an easier task to—to kind of start
doing it themselves. But there are different ways of running chambers,
and for all I know, others have run their chambers magnificently—and
acting in very different ways. We get good law clerks. We do not get
law clerks who are of the caliber of Supreme Court law clerks, stands
to reason. We struggle to get good law clerks because there’s a natural
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inclination on the part of young people coming out of law school, if
they want to clerk and if they have the stuff to clerk, they take federal
clerkships. And their law professors often tell them, “Why clerk for
Judge Farrell on the D.C. Court of Appeals or someone, when you
could clerk for District Judge Jones in Iowa.” And we say, “What are
you thinking?” But they say, “There’s a prestige component to it that
is hard to duplicate.” So, we—while we get very good clerks, there’s
always a certain gamble that a given clerk in a given year is not really
going to be well equipped to sit down and do original drafts, first
drafts. And a judge who can say, “Okay, I’ll use that clerk for other
things in a different way,” has an advantage, if the judge can say, “I’ll
take over the writing and you, clerk, take over the critiquing for me.”
MRS. EASTON: Right, right. One point I’m intrigued by, this is a very busy court.
Tell me, sort of over the arc of your career here, how has that changed
and how do you manage that? How many—from one sitting to the
next, there isn’t enough time—
JUDGE FARRELL: Yeah.
MRS. EASTON: —to complete the work. (Laughs.)
JUDGE FARRELL: Yeah. (Both laugh.) Recently, the court has changed on an
experimental basis to bunching the oral arguments in say the first two
weeks of the month to free up more time for the judges to actually sit
down and work in the last few [weeks]. Over the years generally,
though, we have scattered the oral arguments out over the month, on
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the theory that it’s not productive for a judge to spend the first two
weeks entirely in court or entirely immersed in those particular cases.
The judge needs that time also to work on drafts, past cases, and so
forth. We are a very busy court. We’re the busiest appellate court in
the land among states that have only one appellate court. Now, that’s
not many, there are only a handful. Most states have the two-tiered
appellate system. But there are a handful that have only one. And for
a city of only 600,000 people we get a lot of stuff and more than
Rhode Island and some of these other states that only have the one tier.
So, we’re a busy court. On the other hand, you know, courts whose
business is mostly intermediate court of appeals work—appeals of
right, not discretionary appeals—an awful lot of what comes up to us
doesn’t require deep thoughts on the part of the judge, pondering it by
looking out the window and just turning the issues over in his mind,
her mind. A lot of them we place on our so-called summary calendar,
and unless the parties ask for oral argument and give us a reason there
is no oral argument. That saves time, less court time. And many of
those cases, all of us—myself included—feel confident in giving to
law clerks to take the first crack at it. That is probably, in any given
year, that can be 70 percent or more of the actual cases that come to
you, cases that don’t need oral argument. But they don’t—that doesn’t
mean that they occupy 70 percent of your time. You need to leave at
least half your time, or more, for the tough cases, the cases that are
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argued. So, that’s where I have always felt comfortable using the law
clerks to do an initial draft—on a summary calendar case, which in all
likelihood means an affirmance, or we can reverse in summary
calendar cases, but work can be done usually in three or four pages
with the instruction that, “If you, law clerk, think there’s something
complicated there, because you’re getting the first crack at it, tell me.
We can set it for oral argument or we can talk about it as long as you
need to talk about it, and then I can send you back and you can do the
work on it.” That’s another important aspect of what I call the three-to
four-person law shop. They are always working on the summary
calendar cases, too. And that’s the only way in which we can be as
efficient as possible. Given the volume of cases that we have, it’s the
fortunate thing in a way that so many of the cases on appeal don’t
require lengthy opinions. We pride ourselves in this court, I think, on
giving reasons for any decision. You’ll find state courts around the
country, you may have, you know, in your many years of practice seen
state court appellate opinions, particularly from the intermediate court,
that are a little more than a statement of the issues and a judgment.
MRS. EASTON: A decision.
JUDGE FARRELL: And a decision. And you say, “Well, okay. Did they read my brief?
Do they have any understanding?” We do our absolute best to at least
give reasons. They may not be fully substantiated with all the case law
we could put in there. They may leave certain ambiguities in some
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instances. But in general, we are satisfied with the result, and we are
satisfied we’ve given the losing litigant a fair explanation for the
decision. And that takes time. But that’s something we’ve kind of
prided ourselves on. And we also allow people to ask us to publish an
unpublished opinion. They can come in and give us a reason. More
often than not, we will publish it. Some judges are reluctant to do that
because they feel that now I have to kind of sign it. I don’t want to
hide behind a per curiam opinion, and people will recognize that
maybe my logic, while it’s sound, you know, there are steps in
between that I would have fleshed out if I were writing an opinion for
a publication. But generally, we allow people that safety valve.
Because over the years, as you know, there have been complaints in
the bar in almost every state about secret law, about courts of appeals
not publishing everything—“do not cite,” no citation rules and so
forth. And it’s especially annoying to litigants now with the internet,
where virtually everything is out there, unpublished or published, and
to see something that seems to fit your case well, but that has a
heading up on top, this is governed by the no citation rule of our court,
it kind of irks you, but that’s generally the practice. And our answer is
if you want to cite it, move to publish it.
MRS. EASTON: Uh-hum. How complicated is that process to ask for something to be
published?
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JUDGE FARRELL: Oh, it’s not complicated at all, but the difficulty, and why it’s not an
adequate answer for many litigants, is because you have to do it fairly
contemporaneously. You can’t do it five years after the fact. There’s
an MOJ I can’t— we call it an MOJ, a “memorandum of judgment,”
unpublished opinion, that, “Gee, I wish I could rely on it.” You can’t
come in and ask the publication. That, it is said by some, provides an
unfair advantage to the institutional litigants, like the U.S. Attorney’s
Office, the Public Defender Service, the Attorney General for the
District, because they have appellate staffs who read all these cases
and they can make a judgment, should we ask to have it published, or
not? But, frankly, we don’t get a lot of motions to publish, I’d say no
more than five or six or seven a year, and that is, I think, because most
lawyers recognize that we’re fairly honest in distinguishing between
published and not published. That is, the published opinions, by and
large, the great majority of them, really do not say anything new,
they’re just factually slightly different applications of principles that
are agreed on. And they’re judgment calls. And while they might
look close enough to the case you’re litigating now, the court of
appeals is not going to be persuaded that the facts really make a
difference. It’s the legal principles that control your case and the other
case as well, and those are basically the same. So, we are a busy court.
But being a busy court has the effect that we really cannot go en banc,
sit en banc, very often. This year the court is doing it four or five
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times, which is a record in recent history. And that’s because of the
fact that we are both a supreme court of the jurisdiction and the
intermediate appellate court, with a heavy caseload of mandatory
appeals. There’s only so much time for the entire court to take—to
replay and repeat an issue, or issues, that have been dealt with by a
three-judge panel. And so we pick our cases fairly carefully. One
they have coming up soon for oral argument, the active judges, will
involve whether the court should at long last adopt the federal rule for
expert evidence, the Daubert rule. So, unless a case is one that’s going
to really give necessary guidance going forward to others at a fairly
general level, we are a court that mainly relies on three-judge panel
decisions, and that doesn’t prevent lawyer after lawyer from
petitioning us for rehearing en banc. But the Supreme Court gets the
same thing, thousands of them a year.
MRS. EASTON: Exactly. Is the civil docket made more complicated by the relatively
small population of the state? I mean, do you have to look to other
jurisdictions for legal principles more often than a typical state court?
JUDGE FARRELL: Yeah, but we have no difficulty doing that. In the civil cases, more
often, as much as not, we do look to the states rather than, say, the
federal courts, because these are common law civil actions, often
breach of contract, employment termination, at-will doctrine,
negligence of various kinds. And so we do look to state courts, and we
have no hesitancy doing it, but I always tell the law clerks in those
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kind of cases, look to the commentators first, because the truth of the
matter is, you can find a lot of at least initial groundwork in the
Restatement and things like that, or the good hornbooks on negligence,
Prosser on Torts, and things like those. They’re a good starting point.
Yeah. Over the years, we’ve developed our own body of law in these
common law type cases. But as you know, the variables of litigation
are infinite and so cases come up that—this is one of the astonishing
things about the job, and the clerks shake their head after a couple of
months, of how novel everything is. It’s rarely a case where you can
say, at least a case that’s going to require oral argument, where you
can say, “I’ve seen that before and I know the answer.” The variations
are astounding. And the gift of the law clerk and the gift of the judge
is to basically decide which body of case law—often where there are
two competing bodies of case law—controls this particular fact
situation, this particular issue. I mean, the first thing you learn as an
appellate judge is how much more complicated it is in a way than—oh,
I shouldn’t say this to you, because you’re in the litigant situation, as
best you can you’re going to follow what the client wants. That’s what
you’re paid to do, and that’s your professional obligation. But you get
on a court of appeals like this or a district judge even, ruling on legal
issues, and you’ve got to try to get it right as best you can, and people
have to be able to see that you’ve gotten it right. And so often the
difference between right and wrong, between this result and that result,
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is almost paper thin or marginal, and those are the truly hard cases.
And when the law clerks come in to me and say, “Judge, you know,
there’s something to be said on both and, you know, there’s six cases.”
I say, “Welcome to the world of judging.”
MRS. EASTON: That’s why the case is here. If it were really lopsided, in most
instances the parties would have—
JUDGE FARRELL: That’s right, especially in the civil area. Although not so much in our
jurisdiction, because we don’t charge a lot for appeals. (Laughs.) But
nonetheless, the point is valid that civil parties, more often than not,
are not gonna to spend the time—the money—to have a lawyer waste
the time on appeal, unless they have a reasonable chance of prevailing.
Having said that, I have seen, too many over the years, instances
where what you get in civil appeals from the losing side in the trial
court is the same thing that they file before the trial judge in
opposition, say, to summary judgment, you know? They lost in
summary judgment; they’re taking an appeal in a bold statement at the
beginning, [saying] the judge erred in granting summary judgment,
summary judgment is not normally granted, blah blah blah. They give
you the boilerplate, and then the rest of it [the appellate brief] is just
verbatim what they prepared in the trial court. And it’s partly because
they know the client does not want them to spend that much more
money on the appeal. It’s a remarkable thing at the appellate level—
and maybe I shouldn’t say this, but I’ll say it anyway—where you get
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interesting issues involving big litigants, even in our state court
system, insurance companies for example, a lot of cases, where you
think, “Why haven’t they gone out and got—your firm, why haven’t
they gone out and got Hogan or somebody else?” Because the issue
needs to be really developed and briefed. And the answer is, the client
has basically said, “It’s not worth it,” and so a little law firm out in,
bless their soul, Fairfax or somewhere else, gets the case and comes in
and does a respectable job, but in a way is at a disadvantage. But this
is the nature of practice. And that often—that sometimes means that
we end up having to do all the work because we recognize it as a hard
issue of negligence or contributory negligence, and we haven’t gotten
the best work we should have gotten from the law firm challenging the
result below or defending it, and so they become hard cases. But I’ll
tell you they often are the most interesting cases, the civil ones,
because when you’re not dealing with issues of constitutional law or
complex judgmental issues in criminal cases, you’re often involved
with, much of what you’ve already seen before, was the evidence
sufficient to support the verdict, and things like that. And there’s not a
lot of excitement attached to it, even though it’s important to the
litigants. So, but on the whole, it’s been a fun experience because I’ve
learned an enormous amount over the years about my shortcomings
and about my skills and the things that I still needed to learn. One of
the things that I regret, I think, over the years used to be, when I had
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my own clerks, one of the first things I would tell the clerks when I
was interviewing, I’d say, “When you clerk for me, if you clerk for
me, you’re not going to get—I’m not going to be a very good mentor
to you in the sense of being a good pedagogue, in the way I would like
to be and the way I was able to be in the U.S. Attorney’s Office, where
you would write something for me, and we’re going to sit down, and
I’m going to go over it with my red pen line by line with your
paragraph structure and all that and send you back to rework it. I don’t
have that time and frankly I don’t have the interest anymore. I’m too
busy working on my own stuff. So the way you’re going to learn from
Farrell, basically, is by seeing your first crack at the case in a memo to
me, seeing the final product, and comparing. And you’ll get a sense of
at least what one appellate judge thinks is good appellate writing. So
you’ll get the example of learning by imitation or by that kind of
mimicry.” I know judges who—I don’t know where they ever found
the time—they had a little table and they’d bring the clerk in and
they’d go line by line with the draft, because they felt that they had
that obligation, almost pedagogical, to train that kid in good writing.
I’ve often felt I haven’t been very good at that with the law clerks; at
the end of the year, they probably felt that maybe Farrell didn’t
appreciate my work enough because he did so much of the stuff
himself and because he didn’t really rely on me. But my second
maxim that I would always recite to them at the beginning was, “You
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give me something in what you write for me that is quotable and
citable, it’s gonna be in the opinion, because I have no pride of
authorship, and I want you to do your best to give me stuff I can use,
even though you’re doing it in a memorandum, not in a draft.” And I
think they appreciated that. But I’ve often felt I haven’t been a very
good mentor to the kids.
MRS. EASTON: Oh, but it’s frankly a reflection of much more what they see. It’s a
rarified and special instance where—
JUDGE FARRELL: Yeah.
MRS. EASTON: —both participants can take the time to sit down and learn.
JUDGE FARRELL: Right. Right.
MRS. EASTON: You know, the pressures of private practice, the pressures of
government practice—
JUDGE FARRELL: Same thing. So many times over the years you probably wished that
whoever you were working for on a case, when you were, you know,
answering to somebody, I could have taken the time to sit down and
tell [you] where you’ve gone wrong and then give [you] you know—
what is your—what is your view of my work on this little project?
Rather than end-of-year review on all your work globally.
MRS. EASTON: I try—you know one change in technology that helps somewhat with
this, I don’t know if you’ve used it in chambers, is redlining.
JUDGE FARRELL: Yeah. Yeah.
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MRS. EASTON: Because, you know, if you can see actually where things move and
what it is that I’ve changed from your draft—
JUDGE FARRELL: Right.
MRS. EASTON: —there’s a pedagogical aspect to that that I try very hard to preserve in
the document’s flow (laughs) so that somebody who’s interested—
JUDGE FARRELL: Right.
MRS. EASTON: —can go back and look. Now, what I’ve not ever done research on
empirically is how often the associates who wrote things for me went
back to see.
JUDGE FARRELL: Ah. (Laughs.) Yeah yeah yeah.
MRS. EASTON: Because they may be just under as much time pressure. (Both laugh.)
JUDGE FARRELL: Yeah, yeah, that’s right. And there also is a human instinct among
bright young people who have gone into the law not to like it very
much when they see a lot of redlining on their product. And you can
tell them you have an obligation to go carefully compare, but still,
they’re a little bit—they’re basically saying, “It’s in the partner’s
hands now.”
MRS. EASTON: Right. Exactly. Exactly. (Laughs.) Well, in your years on the bench,
I do want to start talking about any particular arguments, advocates,
cases, issues, that you know, really marked high marks or low marks
through the course of your career. I know you served on committees
for the court—
JUDGE FARRELL: Yeah.
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MRS. EASTON: —and got involved in, you know, rule making and if there are things
like that that you want to explore in this history, I want to be sure that
we talk about that.
JUDGE FARRELL: Yeah, well, I— to start kind of at the end there, I have been fairly
successful over the years because I developed a little bit of an ability
to be fairly, to be fairly prompt in getting my cases out and
maintaining a fairly small backlog.
MRS. EASTON: Um-hm.
JUDGE FARRELL: In fact, I told the Commission in 19—in 2005, I think when I came up,
or 4, when I came up for reappointment that I had set a goal for myself
when I started not to leave any case undecided—case assigned to
me—undecided for more than ninety days, three months at the outside,
and I had succeeded pretty well.
MRS. EASTON: Oh, my heavens! That’s so fast. I thought—
JUDGE FERRELL Well—
MRS. EASTON: —you were going to say a year.
JUDGE FARRELL: No, no, no. I tried long—look, occasionally longer than that, but
ninety days was what I aimed for, and I was pretty much able to keep
that up, partly because, you know, partly because so much of what we
do can be done without a lot of time and investment of effort. So there
is, despite what people say who are working too hard on this court,
there is time to devote to the cases that need full attention and full
analysis. Anyway, I managed to keep pretty much to that rule. And as
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a result, a couple of the chief judges in succession came to think that I
would be an ideal candidate to do administrative law stuff, since I
must have had the time left over. And despite my protest that I would
like that time to go to the opera and the theatre, they said, well, you
serve on the—for example, the joint committee on judicial
administration, which administers the two courts.
MRS. EASTON: Right.
JUDGE FARRELL: And I served on that from 1992 to 2008, sixteen years or so. There
may have been some other reasons why, maybe this chief judge or that
chief judge preferred me to the next person in line, who knows. But—
or maybe just they felt that I was a good person, I said yes a lot. But I
thought I had made a contribution, and I kind of enjoyed that in a way,
although I can’t say I ever got very good at the court’s budget work.
That is one of the main responsibilities of the chief judge. The main
reason why I did not put my hat in the ring for chief judge some years
ago when I had the opportunity was because I have no interest and no
real ability to do budgeting. And I don’t have a numbers mind, and I
didn’t have any interest in that. But I did continue to serve on the
administrative body for all those years because I felt it was a
contribution to the court and I could do it. And we did some good
things, even as mundane and prosaic as revising the court’s rules and
procedures and system for, you know, procurement, for contracts, you
know, vendors and so forth, which is very important to a court on a
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tight budget. So, we were able to do things like that. I also had the
time to serve over the years as head of various of our committees, our
rules committee I served on for quite a few years. And we did some
major things during that time back in the early 2000s. We are
continuing the process of revising our rules to conform, or not
conform, to the federal rules of procedure. We also have our appellate
rules that I had to be responsible for redoing with the committee. We
have our internal operating procedures, which the public can find
online, that are separate, and we had to revise those, so at one point I
had to kind of take over the drafting of those significantly. And also,
as important as anything else, we have the disciplinary rules. We are
the body that imposes discipline in the District of Columbia, and there
are, you know, seventy thousand or more lawyers. And particularly
with computerization, there’s an awful lot of stuff that comes up to us
involving lawyers not practicing here, but lawyers practicing in other
jurisdictions, where they get disciplined, comes to us alerted to by the
computer system nationwide as to their discipline in Wyoming and so
forth, and we have to decide whether to impose reciprocal discipline
here. It is a very big part of our job, although it results only in a
relative handful of opinions each year, bar discipline opinions.
MRS. EASTON: Is there a specialized staff within the court that handles that, or does—
JUDGE FARRELL: No, no these come to us as ordinary cases. Some of them come up—
the way we revised our rules, but just to finish the one point first: I
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had to take a big responsibility in the revision of the disciplinary rules
some years back before I took senior status —in about 2005 and 6—
involving some tough issues, but important issues. One of them was
whether we should give bar council the authority to negotiate
discipline. Many states, most states may have it, kind of plea
bargaining in discipline cases, right? And then there were other issues
like, for example, there’s been a perennial delay complained about
over the years by people in the bar about how somebody will be
disciplined for serious misconduct, but the discipline doesn’t take
effect until there’s been a challenge at the Board of Professional
Responsibility level, that’s the peer organization, and then up to the
court of appeals, which may take two years to decide it. Meanwhile
the attorney practices, continues to practice, even though he may have
engaged in some serious misconduct. We got that rule changed too,
and in some serious cases, to require immediate discipline unless the
attorney can show the contrary why it shouldn’t happen. I played a
role in those kind of things and I took a certain amount of pride in that,
but at every step I had very able co-members of my committee. So I
think I have done an awful lot of administrative stuff over the years
that I can take some credit for, but it’s nice to have very good people
working with you, and good colleagues who can make it easier for
you. Those have been chiefly my administrative [contributions]. The
rest has been writing opinions, um—gosh, I don’t know, any particular
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case I picked out would be—would sound kind of arbitrary. I have
done quite a few in the—in my nineteen years as an active judge and
then thereafter. I’ve done my fair share of en banc cases, in which the
whole court gets together, and then we have to—sitting in this room or
in one of the other rooms—decide where we’re going to go, and who’s
going to write, and who’s going to write the dissent. And I think I
acquired a little bit of a reputation over the years, without bragging, of
being a fairly suitable candidate for a sizable number of those en banc
opinions because of a gift or a knack I had of trying to find the
analysis, the route that would command the maximum attention among
the judges. Frank Schwelb, a colleague, once called me “the Henry
Clay of the court, the Great Compromiser,” which was silly, but it’s
something I often aimed for. And when you think of it, intelligent
people sitting around in a room where you find that there are widely
divergent points of view, can think that maybe the best way to resolve
this case is to aim for a lower profile, to aim for an opinion that says
less rather than more, but one that can command eight or nine votes
rather six or five or four or, you know, unanimity if you can, if for no
other reason than to give guidance to the bar and to the trial court.
That maxim, that rule, is not followed at the U.S. Supreme Court, it
hasn’t been for years, decades, because people feel—and I’m talking
there about the controversial cases. The Justices feel they have an
obligation to state their position rather than—I sparingly use that
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word—trim their position, or you know, refine down their position in a
way that you can get a six to three vote rather than a five to four vote.
Partly because they feel that even if I’m in the two-judge minority
here, or three-judge minority here, who’s to say that five years from
now, my little dissent may not be adopted as kind of the way—the
right rule by a future court. But on a court like ours, it’s always been
important, we think, in en banc cases to try to speak with one voice as
best we can—easier at our level than the state court system and at the
Supreme Court level. And somehow or other I attracted—it was
recognized that I had a knack for doing that. And so I wrote a number
of en banc opinions over the years, which we even wrote—issued as
per curiams because, frankly, they said so little.
MRS. EASTON: (Laughs.)
JUDGE FARRELL: All they were doing was kind of ironing out an inconsistency in prior
decisions of ours. They weren’t stating broad, important principles for
the future, but simply clarifying. And I found a way to do these in a
fairly short way and in a fairly simple way. In other cases, I guess, my
criminal background made me the right candidate to write the en banc
opinion if we’re in the majority, if I was in the majority, and so we
wrote some fairly significant ones over the years, and I happen to be
the author of them. One case was a case called Winfield v. U.S., which
is very important in criminal law felony cases involving violence and
so forth, where the defendant wants to put on evidence, as you can
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imagine, that he didn’t do it, but a third party did it. They call it thirdparty
culpability evidence, and there are standards for that. So we had
to take this case fifteen years ago to kind of lay out the basic ground
rules for when that kind of evidence is admissible, and what kind of
discretion the trial judge has. That would be an example. Civil cases
I’ve written a number of. For the moment I can’t remember them
(laughs), but I’ve had my share of important cases, but I said—and
interesting cases in the civil area too. But, as I said, so much of civil
law is novel that virtually every other court, a judge on the court can
say, “I’ve written some of the most interesting, some of the most
important civil cases that the court has had in that area.” If we were to
meet again—although I really don’t think I want to prevail on your
time any more.
MRS. EASTON: I think we should have at least one more meeting—
JUDGE FARRELL: All right. Yeah, I could jot down a few more cases.
MRS. EASTON: Well, why don’t we turn to that now? We can—we can kind of wrap
up this segment and then talk about what our—
JUDGE FARRELL: Yeah.
MRS. EASTON: —agenda is for the next session.
JUDGE FARRELL: Right.
MRS. EASTON: Because, you know, maybe the next session could be our wrap-up one
or one more after that to finalize.
JUDGE FARRELL: Yeah.
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MRS. EASTON: But I think that I’ve made you go on for long enough now— (Both
laugh.)
JUDGE FARRELL: No, that’s good, we can talk about this and more cases next time.
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ORAL HISTORY
JUDGE MICHAEL W. FARRELL
APRIL 26, 2017 Interview
This interview is being conducted on behalf the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewee is Judge Michael W. Farrell. The
interviewer is Lory Barsdate Easton. The interview is taking place at the District of Columbia
Court Appeals on April 26, 2017. This is the sixth and final interview.
MRS. EASTON: Well, it is so good to see you again, Judge, and I would like to pick up on
our oral history—
JUDGE FARRELL: Right.
MRS. EASTON: —when your first fifteen-year appointment was winding down. I have the
documentation that you were highly recommended and automatically
renewed.
JUDGE FARRELL: I must have sent you that. I only sent you flattering things. (Both
laughing.)
MRS. EASTON: Well, it was definitely flattering. It was definitely flattering. But then in
2004, you re-upped for what would have been a fifteen-year—
JUDGE FARRELL: Another fifteen-year term. But I think around 2008, by then I had been on
the court for nineteen years. I thought of holding out for twenty as an
active judge. I still had two more years during which I could be an active
judge because the deadline when you have to either leave the court or
become a senior judge is seventy-four, I believe, now. But I went down to
Virginia—William & Mary—to participate in a moot court conference.
’Ran into a judge from the Virginia Supreme Court [Justice Elizabeth B.
Macy]. We talked a little bit, and she said she was retiring, and I said,
“Well, how many years have you got in?” She said, “Nineteen years.” I
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decided if she can retire after nineteen years, why not myself? So I took
senior status in 2008, just to give me a little bit more flexibility in
scheduling, a little bit more freedom to do some traveling with my wife
and to just pursue some other things—hobbies that interest me. And since
2008—we’re now in 2017—I’ve been a senior judge. In general, the
senior judges work about half the schedule that the active judges do.
Occasionally, there are months where you work a little bit more. There
are some where you work a little less. There’s perhaps a little bit more
pressure on us at the moment since we only have seven active judges. So,
the senior judges are fairly important to the court. The problem has
become slightly more acute in the last year or so because we lost one
judge—Judge Schwelb died, S-C-H-W-E-L-B [Frank E. Schwelb]. A
wonderful judge died, and we’ve had three retirements. The former Chief
Judge Wagner retired [Annice M. Wagner]. Recently a former Chief
Judge, Theodore Newman, he retired. He decided he likes his home in
Virgin Islands too much to come up here and labor away. And most
recently Judge Warren King retired. So, we’re down to about maybe five
or six senior judges to help out the active judges. And, with an active
judge compliment of only seven, the court has kind of shrunk
substantially—for the moment, we hope, we hope. And that means that
the senior judge is required to pinch hit, do a little extra duty. But it still
remains roughly half the workload of the active judges. And that means
probably in a given month you have—you’re assigned one regular
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calendar, the cases that qualify as “regular,” which are argued
automatically. And maybe you have two summary calendars, sometimes
maybe only one summary calendar, but for each summary calendar you
have two cases. So that’s about half of what the active judges do and
it’s—frankly for me, it’s quite enough.
MRS. EASTON: And you have no clerks as a senior judge, is that correct?
JUDGE FARRELL: We do have clerks as a senior judge. We have a pool of clerks, of five or
six I think we’re up to six now. Although with our recent retirements it’s
not clear that we need six. But they are a pool; they work for each of the
senior judges under a little system that they follow for parceling out the
cases among the judges. And at any given time, they’re doing projects for
two or three judges, sort of like a low-rank associate at a law firm who
could be working for three or four supervisors or partners.
MRS. EASTON: But at least then you have help with the research.
JUDGE FARRELL: You have help with the research. You don’t have the same personal
relationship with your clerks that you had as an active judge. You don’t
have as much control over them. You may, for example, have something
with a little bit of a timed deadline that you would like the law clerk to
research, only to learn that the clerk has one or two projects that are even
more urgent than yours, so you have to be patient. But it’s wonderful
learning for law clerks, this experience of working for multiple bosses.
Because they really have the experience of having to juggle three or four
balls in the air at the same time. When I was an active judge, I was
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probably a softy because I tried to have my two law clerks each work on
only one or maybe two projects at a time. I thought that was the most
advantageous way of getting the best work out of them. With a senior
judge pool arrangement, it’s not possible to do that. The clerks have to
really learn to, multitask is the word, I guess, these days. And so they
spend a lot of time late at night trying to service multiple judges.
MRS. EASTON: Which is excellent training.
JUDGE FARRELL: (Both laugh.) Yeah.
MRS. EASTON: Are the pool clerks for a one-year period or—
JUDGE FARRELL: Just one-year period, yeah. And I think, in general, my experience has
been they’re pretty much of the same quality as the clerks who clerk for
the active judges. My sense is that the average law clerk coming out of a
good law school would probably prefer to clerk for an individual judge.
But not all can and not all are hired to do so, so sometimes our senior
judge law clerks, this is kind of their second-best, clerking for the senior
judges, but it’s still a wonderful experience for them.
MRS. EASTON: It’s terrific, it’s one I’ll remember to recommend.
JUDGE FARRELL: Yeah, absolutely if you know one. Yeah.
MRS. EASTON: It would be great training.
JUDGE FARRELL: Yeah.
MRS. EASTON: So you are writing opinions actively now about one a month?
JUDGE FARRELL: Yes. Uh, well yes. Not all of them are for publication. A great many of
them are not for publication, but that’s been true of my career throughout.
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We don’t publish everything, by any means. But it’s—you’re probably
writing two to three a month, including a regular calendar case opinion
and a couple of summary calendar case opinions. The unpublished
opinions, we call them memorandum of judgement, MOJs, and there are
quite a few of those. Still, you have to apply yourself to several cases a
month. That’s in addition to, of course, preparing the other cases where
you aren’t the assigned judge but on which you’re expected to participate
with the same degree of diligence and thoroughness. So it’s, it’s all the—
all the work that I feel I need at this stage in my career.
MRS. EASTON: Maybe a bit more. (Both laugh.)
JUDGE FARRELL: Ha, yeah.
MRS. EASTON: Some months.
JUDGE FARRELL: Some months, yeah, it depends entirely how complicated the cases are and
since the cases are assigned by luck, by draw, there’s nothing preassigned
about them, you can, in any given case, in any given month, be assigned
some fairly substantial litigation to work on.
MRS. EASTON: And the caseload of this court has not dropped at all even though the
number of actives judges has dropped.
JUDGE FARRELL: I don’t think it’s dropped. I don’t think it has increased, but I think it’s
been fairly constant, with the same number or the same percentages as
there were before: probably nearly 50 percent criminal and then the rest
divided among civil, administrative, disciplinary, and the usual things. I
think it’s stayed the same. But fortunately the caseload has not increased.
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MRS. EASTON: How are you doing with your 90-day rule?
JUDGE FARRELL: Oh, my own? The Farrell Ninety-Day Rule? In general, I’ve been able to
adhere to it. It’s easier, I think, as a senior judge with a slightly, or
substantially, reduced caseload it makes it easier. It gets harder if you
luck on to a very tough case that may take a little longer. But I think I’ve
managed to adhere to my three-month rule.
MRS. EASTON: So, in 2008, you went senior and that was to have more freedom for
hobbies and travelling. I want to hear about your top hobbies and travel
JUDGE FARRELL: Oh, well, it’s always been a passion for reading, my rather maybe
idiosyncratic reading tastes. Not to mention the arts. I’ve always been a
kind of a devotee of the arts since I majored in English, and humanities,
and have been an opera fan for many years, chamber music, and things
like that. But, you know, all judges have their own particular things that
they like and dislike. These things kind of interest me; as a senior judge, I
am able to get out more in the evening to go to things like this without
worrying that I have to be in court at 9:30 the next morning to sit.
Reading is also—it leaves you more time. And, above all, until recently,
it’s been travel. During the last seven or eight years my wife and I have
travelled quite a bit. I think we’re beginning to cool on the idea of longdistance
travelling because it—it becomes a burden in many ways
nowadays to drag yourself off to Italy or France or Germany or
somewhere like that.
MRS. EASTON: Looking for sympathy? (Both laugh.)
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JUDGE FARRELL: Somebody has to do it, I know (laughing). But it’s—uh, sometimes you
reach a certain age where the disadvantages of travelling, the burdens, the
annoyances, threaten to outweigh the pleasures. And so I think we may be
doing less travelling in the future. Particularly as we develop these
physical ailments that we have. But nonetheless, the advantage—an
advantage of being a senior judge is that in any given month, you can say,
“I’m not available for assignments because I plan to be somewhere, not
here.”
MRS. EASTON: Now, your wife [Ellen Bass] was a government lawyer—
JUDGE FARRELL: She was a government lawyer for a long time, and then she did five years
with a nationwide law firm in their D.C. office, Kutak Rock, she did civil
work with them. After that, she then went back into government, so to
speak; she became the chief of investigations in the inspector general’s
office at WMATA and did that for six or seven years. [Ellen Bass served
as the Assistant Inspector General for Investigations and Counsel to the
Inspector General since August 2007 and retired in November 2011, per
https://www.wmata.com/about/inspector-general/upload/semiannualreport-
03-12-12.pdf.] You know, investigating the usual: fraud, graft,
mismanagement and things. WMATA, like any agency, has these kind of
problems. She did that and then she just finally got tired of it because she
had been doing inspector general work at the Department of Education for
ten years earlier, just tired of that. She never really, I think, had a deep
passion for litigation, so she didn’t want to do that; five or six years at
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Kutak Rock doing that was enough for her. And then she just decided to
retire and let her husband support her. (Laughs.) No, she, she’s not in the
situation where she financially had to work so she has spent the last six or
seven years doing a lot of things, including a good deal of tutoring in the
D.C. public school system. She has tutored French, and English to foreign
students, so forth. She keeps busy.
MRS. EASTON: Wow. Have you been doing any tutoring, given your teaching
background?
JUDGE FARRELL: I have not been doing any tutoring. I have the feeling that I paid my dues
to the teaching profession many years ago. I used to, in my early years as
a judge, go to the local law schools on invitation of people I knew, and I’d
occasionally talk about various things, little lectures and so forth. But that
kind of stopped eventually. I kind of—maybe the people I knew there
stopped teaching or whatever then, and I just found less time available to
do that kind of thing.
MRS. EASTON: Well, I know you did CLE courses for the D.C. Bar.
JUDGE FARRELL: I did them for a number of years.
MRS. EASTON: When I was first being admitted here in D.C., you were the instructor in
one of my required courses. (Laughs.)
JUDGE FARRELL: Oh, really. Although, we require much less CLE than any other
jurisdictions really. It’s uh—yeah, so I haven’t done any teaching in
years.
MRS. EASTON: And what are your tastes in opera? Do you go off to Ring cycles?
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JUDGE FARRELL: My tastes are pretty comprehensive. Ever since I studied German, way,
way back in the dim, distant past, I’ve had a passion for Wagner. I don’t
tell that to everybody because occasionally the conversation stops when
you say something like that. So, German opera, of course, I’ve liked. But
in the last thirty years I’ve acquired a passion for Italian opera as well—
Verdi, Puccini, and all the greats. So, I like most of it!
MRS. EASTON: Do you find the offerings of the Kennedy Center—
JUDGE FARRELL: Yeah, I find them very interesting. Occasionally, they have new stuff,
some of which I missed this year, but they experiment. They’re
desperately trying to attract new audiences because the demographic for
opera—for concert going—is getting older and older. I always joke with
people and say, if you want to see the audience for opera these days, go to
the telecasts from the Metropolitan Opera that you can find in movie
theaters around the area. And when they pan the camera around the
audience, you’ll see that what you have is a combination, at least among
the men, of either no hair or gray hair. So, concert going, opera going is a
serious problem in this age—attracting young people. And nobody quite
knows the answer to it. One is to do newer things or interesting things,
cross-genre kind of things, combining classical with popular and so forth.
And I enjoy a lot of that, although I’m old enough that my tastes are still—
are probably fairly set in traditional classical music and opera.
MRS. EASTON: I have to ask if you’ve seen Hamilton.
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JUDGE FARRELL: I have not seen Hamilton. I don’t know whether I ever could have gotten
a ticket if I wanted. (Both laugh.) I always had doubts that even if I got a
ticket whether I’d understand very much without first reading the text.
MRS. EASTON: Yeah, well, you have to read the libretto. (Laughs.)
JUDGE FARRELL: You have to read the libretto on events. I have not seen it. We do get to
New York, my wife and I, for three or four times a year to see a show or
two and musicals if we can find a good one. But Hamilton, I just haven’t
maybe pursued it enough; t will eventually come here, and I’ll see it.
MRS. EASTON: Exactly.
JUDGE FARRELL: And then I mentioned travelling. It’s of no interest of anyone where we
like to travel but we tend to prefer either the United States or Europe.
Only because I refuse to travel to Asia, where my wife would love to go to
again, because she spent—before I married her, she spent a lot of time in
various countries in Asia and loved them. And in the Middle East. But
those distances for me and my long legs and my bad back are a little bit
hard to cover without being very uncomfortable.
MRS. EASTON: At one time, you were an avid hiker.
JUDGE FARRELL: I was an avid hiker but since I had cancer in 2014, prostate cancer and
rather rigorous treatment for it, the hiking days are essentially over. I am
sorry about that but it’s just a fact. I’m happy to be alive. (Laughs.) So,
when we do take hikes, I find myself looking for the park bench fairly
quickly. So there’s not much hiking left. And my wife was never an avid
hiker either, so (laughs) she’s quite satisfied with not hiking.
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MRS. EASTON: Did you go up into the Shenandoah or—?
JUDGE FARRELL: Not often, a few times. What I used to do, I was kind of a passionate
supporter of the national parks and probably over twelve, fifteen years, I
probably had visited two-thirds of them and did some hiking in all of
them.
MRS. EASTON: Oh, wow.
JUDGE FARRELL: Yeah. Nothing very rigorous, no overnight hiking. I was always sure—
made sure there was a hotel there somewhere to camp in at night. But I
just like the outdoors and enjoyed that. I feel I’ve done much of it, most
of it, so I don’t really miss it that much now.
MRS. EASTON: And how is your health now?
JUDGE FARRELL: My health, I think, is excellent. I have relatively little stamina, that’s the
result of the kind of treatment of radiation and other things. But I’m able
to exercise. I go to the gym a couple, three or four times a week, and I do
light exercise. And I’m able to come to work and work, and I eat a
healthy diet and I take care of myself. So, on the whole, I can’t complain.
The doctor seems to shake his head and think that I’ve fooled him or
something because I am still reasonably healthy.
MRS. EASTON: I’m delighted to see that.
JUDGE FARRELL: I mean, at my age, you know, you don’t know whether it’s your medical
condition or just advancing age that tells you, you can’t do the things you
used to do.
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MRS. EASTON: Well, from the time that you’ve been a senior judge, are there any cases or
experiences on the court that stand out?
JUDGE FARRELL: I don’t think anything more really unusual than when I was an active
judge. Indeed, what you generally don’t have as a senior judge is the
experience of participating in the en banc decisions of the court where all
nine judges, or now seven, convene to decide cases of special importance.
You don’t sit on that; you can’t even vote whether to go en banc or not as
a senior judge, unless you were on the panel whose decision is being then
reviewed en banc. In that case, you can participate en banc, and some of
our judges do. That’s an experience that I miss in a way. Although we
don’t go en banc very much because we can’t really afford the time to go
too often given how busy we are as an ordinary intermediate kind of
appellate court. You also miss, perhaps, the experience of the
administrative policymaking that the court undertakes and has to pursue
every month with their monthly meetings to decide administrative
questions and so forth. But I’m happy to be free of that. I was on the
Joint Committee on Administration for seventeen, sixteen, well from 1992
to 2008, that’s sixteen years. That was enough of worrying about the
budget and things like that. I’m happy to have turned that over to other
judges. I’ve had some significant cases since 2008, but I don’t think
they’re really markedly different than the cases I had earlier. I would
think, on the average maybe once a year, or maybe a little bit more than
once a year, you have to write an opinion in a case where you really think
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it’s worth talking about or that somebody might be interested. All of them
are interesting to the litigants, the winner and the loser. But beyond that,
much of what we decide doesn’t have any kind of resonance with the legal
community at large.
MRS. EASTON: Have you ever been involved in the associations of state court judges?
JUDGE FARRELL: No, I really never was that much. Um, our chief judges get very involved
in the Council of Chief Justices. Beyond that, what there has been over
the years is the ABA’s appellate judges kind of conference and appellate
judges’ annual meetings and so forth. I’ve gone to a couple of those, but I
never became active in that. I never really felt I had the time or wanted to
devote the time to that kind of extracurricular activity. It’s immensely
valuable; you learn from judges in other courts better ways to kind of
handle difficulties, like how to get judges to produce their opinions. But
in the kind of balancing that I really undertook as to how I was going to
spend my time, I felt that it was more valuably spent just trying to do my
own job as best I could. And so I really didn’t participate a lot in the kind
of bar activities of the appellate judges’ bar. And not many of my
colleagues did either. I think when you’re on a court that has a heavy
caseload like ours, I mean, traditionally we have had probably the heaviest
caseload of courts around the nation in states that have only one court of
appeals. There isn’t a lot of time to, um, to do that kind of fraternizing in
the judges’ bar, the judges’ community. Maybe it’s something if I were to
do it again, I would have participated in more. But my experience, my
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limited experience, in doing it is that it has been a lot of socializing. Not a
huge amount of judicial education that I couldn’t pick up otherwise. What
I have done over the years, although not in recent years, was take part in
moot courts at the universities around the country, law schools and so
forth. I always found that interesting. I went down to William & Mary
periodically over the years, they have a very good moot court, and the
local law schools also have moot court panels. Those are interesting; you
meet judges from other jurisdictions and you get to see the—you’d like to
think the best and the brightest in the coming lawyer community. But
sometimes all you get to see is the glibbest among the new lawyer crop,
not necessarily the best.
MRS. EASTON: Have you observed changes in the qualifications or personalities of the
young lawyers?
JUDGE FARRELL: Young lawyers—that’s a difficult question. I don’t know whether my
exposure to law practice is wide enough that I can really make a
judgement on that. I think the quality of the advocacy that we see has
remained pretty constant. The kinds of people who get attracted to
appellate work remains pretty much constant. A lot of lawyers, if they
don’t think they have that really analytical quality and writing ability for
appellate work, shy away from it. So we tend to get the self-selecting
lawyers who like to do appellate work. And we get a lot of appellate cases
from institutions like the U.S. Attorney’s Office, Public Defender Service,
the Attorney General for the District of Columbia. These are pretty
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selective organizations. They don’t send lawyers in to do appellate work
unless they’ve given them some reason to believe that they’re going to do
good appellate work. And so we tend to get often the best of our
lawyering from those institutions, and they remain good.
Now everybody, I’m sure, particularly people in law practice, have their
own views as to whether the young lawyers are as good as they used to be.
Everybody kind of recites the cliché that lawyers now, young lawyers, are
a thousand miles wide and an inch and a half deep, when in the past they
used to be narrower in their ability to gather information but they could
analyze it more deeply and more probingly. I don’t know whether that’s
true or not. You do get a sense that there has been some effect due to the
fact that everything is done by young lawyers on a computer now—all of
their research, all of their composing, the word “writing” doesn’t even
exist in their vocabulary. I don’t know how that influences behavior,
really, except to recite kind of the cliché or the truism that young lawyers,
young people, spend so much time on the internet, surfing it, are exposed
to such an extraordinary amount of information, that there really isn’t the
time or the interest in concentrating on specific little topics and subjects. I
do know that when I give my senior law clerks an assignment to do some
research they do it thoroughly and they seem to have the skills and the
ability to do it. They do tend, it seems to me, to give you longer
memoranda than they did when they had to write them out in hand.
(Laughs.) Because it’s easier to write twenty, thirty, forty pages if you’re
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composing rather than having to write it in longhand. I think there is a
periodic complaint from judges who have law clerks draft opinions for
them that they’re too darn long and the judge has to spend all his or her
time in cutting it down by two-thirds. I think maybe that’s always been a
problem. But I have no reason to think that the lawyers, the young
lawyers, at least the young lawyers we see, aren’t just as good as they ever
were and maybe, in fact, because they’ve grown up in the information age,
grasp matters, grasp issues quicker than their predecessors, I don’t know.
I will say that they’re very smart. And, again and again, going into oral
argument and watching young lawyers and seeing the poise they have and
the self-possession and the self-confidence makes me envious, because I
wish I would have had that when I began doing that kind of stuff. And I
don’t know where they get it, but they seem to have it. Hard to say; I
think it’s partly because, particularly in a city like Washington, which
attracts very good, young lawyers—they seem to like to come to the big
cities—we may not get a fully fair sampling of what the younger
generation of lawyers is like. But what we see is awfully good.
MRS. EASTON: I’m interested, did you ever make the switch to composing on the
computer?
JUDGE FARRELL: You would ask that question, wouldn’t you?
MRS. EASTON: I’m just curious because uh, it is—you’re probably right on the cusp
where—
193
JUDGE FARRELL: I’m going to give you anecdote which or—a little story which will tell you
the answer to that. Not long ago, one of our senior judges, who has kind
of made the switch, was unhappy because he came back from oral
argument and found that on the bench for oral argument were long legal
pads. He sent around an email to the clerk of the courts, saying “I would
think we ought to substitute letter size pads; legal size pads have gone out
of fashion. You can’t put them in your case file as easily as letter size
because everything else is letter-sized nowadays. Can’t we get rid of the
long yellow pads?” I immediately sent out an email, tongue-in-cheek, and
said I want to go en banc on that issue, because although I may be the last
judge on the court to do it I’m still a fan of long yellow pads. I have only
partially made the switch to the information age. I’m perfectly adept at
doing email, but I don’t compose opinions on the computer generally.
Sometimes I do, but more often I stick to my old habit of just writing them
out. And I’m probably one of about a dozen judges in the country who
still do that. It’s a remarkable thing; it’s the kind of thing that sometimes
tells you maybe your judicial career oughtn’t last all that much longer
when you see the younger judges, and we have a number of them, who
march onto the bench with their laptop computer. No such thing like just
a fountain pen, or a ballpoint pen. Everything is done on their little
computer there and they work, I’m sure, far more efficiently with that than
does Judge Farrell who brings out a sheaf of handwritten notes from his
research and thinking about the cases. It’s simply part of a general
194
mutation in our culture toward the electronic age. I’ve made the transition
much more slowly, if at all, than some of my colleagues. But I think it’s a
problem in general for older judges—older appellate judges and trial
judges. We have gone more and more towards strict electronic filing.
We’re going to be within, I think, fairly short order strictly electronic
filing. Judges will no longer get copies of the parties’ briefs in their
chambers; parties will not be required to file paper briefs. What it
currently means, to the extent we have already gone over to that practice,
is that the older judges tend to overwork the printing machines. You get it
online and you print it out because you like to read the briefs on Metro or
something like that, or you don’t feel as comfortable as the younger judges
do reading forty, fifty, sixty pages on that little screen. I find it personally
very difficult to read at length, whether it’s transcripts or briefs, online.
Maybe it’s just my posture, for a lot of reasons I’m just used to—and, of
course, I haven’t even begun to master the idea of how to electronically
make notes online, reading things and bookmarking and things like that.
My wife says I’m just lazy in that respect, that I refuse to change my
habits. And I plead guilty.
MRS. EASTON: (Both laughing.) I might counsel you to not leap into that plea. I still—I
mean, I’ve been doing things, composing electronically since law school,
but I strongly prefer to read long things on paper. And I—so I’m a
dinosaur right there with you. Do you use a Kindle or any other device?
195
JUDGE FARRELL: I use a Kindle. My wife has a Kindle. I found it very valuable, although
selectively. I tend to still prefer to get my books from Amazon or
somewhere else or a bookstore —they still have a few—and read them
between covers. But I confess, I’ve read, in the last three or four years,
quite a few things on Kindle. You get used to it. There’s something
sentimental, something nostalgic, about closing the covers of a book that
you’ve just finished of three or four hundred pages and putting in on the
shelf somewhere knowing you can go back to it and you can look at it and
remembering where you made a note in it and so forth. When you finish
your book on Kindle, it’s as though it disappears into the ether. ‘Not
necessarily true, you can call it up again and reread it if you want. But I
think I use my Kindle reading for things that I really don’t feel I’m going
to ever look at a second time.
MRS. EASTON: Aside from that nostalgia, I’d be curious if you think that browsing for
books has become more difficult in the electronic age. It’s delightful, of
course, to search on Amazon or elsewhere, but I miss the stacks.
JUDGE FARRELL: Ah, yeah. In the bookstores, just coming across things that you didn’t
even know were out there. If you’re any good at computer research, at
Googling things, you can no doubt find a dozen ways of looking for books
in any area you’re interested in. But still, it’s nice to go to a bookstore and
look at the heading for history books and just start with A and go through
Z and find something interesting. But how long the bookstores are going
to survive is anyone’s guess.
196
MRS. EASTON: Sad but true. Well, up until fairly recently, there were more senior judges
than active judges on the court here.
JUDGE FARRELL: There were, but I think it’s almost fifty-fifty now, because we’re down to
about seven seniors and have seven actives currently.
MRS. EASTON: So tell me about your observations on the collegiality of this court.
JUDGE FARRELL: Well, I think, like most courts that—a lot of whose work is, call it, error
correcting, intermediate appellate court kind of work, it’s fairly easy and
fairly important to maintain a very high level of collegiality, because a lot
of the issues that are presented aren’t the kinds that tend to deeply divide
people. You don’t have the kinds of social issues that come to the
Supreme Court of the United States. That’s not our bread and butter work;
it can’t be for any intermediate appellate court. The number of cases
where there are potential divides because of the backgrounds of people or
because of their personal kind of beliefs and thinking, on our court—the
number of cases that present that kind of issue is fairly small. We have
disagreements. We have dissents, fairly often. But they’re often just
judgmental questions about, you know, whether the trial court really got it
correctly here, or whether the police did what they’re supposed to do
before they entered the home and searched the refrigerator, things like
that. And there can be deep divisions, but I think they’re not the kinds of
things that make people not want to talk to one another anymore. We all
get along quite well. We disagree. We come from different backgrounds.
In recent years we’ve had two people come from—very gifted young—
197
younger than myself, “youngish” lawyers, come from the Public Defender
Service. One come from the U.S. Attorney’s Office. They come from
different backgrounds where it’s been almost internalized into their system
to think a certain way. But they swear an oath to do it objectively and call
the cases as accurately and honestly as they can. They all do their best.
Inevitably certain predilections, certain inclinations, certain attitudes come
into play in the way they look at cases. Some judges, perhaps if they have
come from the trial court bench and then moved up to the court of appeals,
have a slightly different sensitivity toward deferring to honest exercises of
discretion by a trial judge. Others may be less moved to give them that
kind of deference. And they stress more—a little bit more—the kind of
function of this court to announce general rules. But collegiality has not
been a significant problem here. I don’t think it’s a problem in most
courts nationwide. For years, people used to point out that a few of the
federal circuit courts tended to, where the appointees reflect the particular
president who is in the White House, have been marked by fairly sharp
divisions. But, as many have pointed out over the years, those kind of
divisions emerge in a tiny, tiny class of cases, even on courts like the
District of Columbia Circuit Court, the Ninth Circuit Court of Appeals.
Most of the work, the judges have very little difficulty in sitting down and
in a very collegial fashion arguing over and either agreeing on or politely
disagreeing on. The bigger problem that I have is that the younger judges
on our court are just too smart.
198
MRS. EASTON: (Laughs.) How does that cause you a problem?
JUDGE FARRELL: (Both laughing.) I mean, not only do they come into oral argument with
their desktop, but they come in there loaded with information and loaded
with analysis and quick thinking. And you have some trouble as your
mind gets a little bit more, uh—it starts to slow down a little bit, you have
some trouble keeping up with them. But you try. You do your best. And
you at least delude yourself into thinking that what you lack in terms of
quickness of mind, which they possess, you have—you have in the way of
judgement, experience, and, dare we say, wisdom. And you can bring that
to bear in judging these cases.
MRS. EASTON: All of great value.
JUDGE FARRELL: But it’s nice to have the younger judges who have not only the enthusiasm
but the skills and the analytical smarts to tell you where you’re wrong.
MRS. EASTON: What is it going to take to get a full complement on this court? Because
it’s been years—
JUDGE FARRELL: Anyone’s guess. Anyone’s guess. We have some hopes that within the
next six months, maybe we’ll get at least one. But, you know, the first
hundred days of the present administration have been busy, at least some
say. And I don’t think they’ve been spending much time thinking about
filling openings on our court. There are a very sizable number of openings
on federal district courts including in the District of Columbia. Those jobs
have yet to be filled. They will be filled, I think, fairly soon. My guess is
the administration will probably give priority to the federal judgeship
199
openings. On the other hand, in a way, their task should be easier, in the
case of our court and our superior court, our trial court, which also has
openings, because the President for each judgeship is given a list of three,
under our system, and just has to pick one, and is probably required to
pick one by statute. So it should not be that difficult. I think the opening
that we had for a year and a half or two depended on a particular situation
involving a lawyer who was nominated by the—by President Obama to
fill the position. There was some opposition to him on the Senate side,
where the confirmations take place, because of positions that he had taken
as an advocate working for the Attorney General of the District of
Columbia. My own view is it’s kind of unfair in the way that they have
kind of—some may have held against him taking those positions. He was
an advocate. He was doing his job. But there’s very little you can do
about it, because Congress is under no time restraint in confirming judges
and apparently they’ve decided to take their time.
MRS. EASTON: Have—now you were caught with a presidential change reappointment
situation back in ‘88 and ‘89.
JUDGE FARRELL: That’s true.
MRS. EASTON: Do you know if there have been even new issues —
JUDGE FARRELL: Well, yes. This one nominee who I talked about, when we were down by
one, was appointed by President Obama; that lapsed after the first term of
Obama. President Obama then reappointed him, and that has lapsed, of
course. His name is still before the White House, because the same list is
200
there from our nominating commission. And it’s up to the new
administration. They don’t have to pick him, they can pick somebody
else.
MRS. EASTON: From the list of—
JUDGE FARRELL: From the list of three. Or indeed, there will now be two lists up there
before long. And they can pick both judges from either list, if they want.
We hope that they’ll be happy with at least two and pick them and so we
can get back to nine. Many of the courts of appeals in the country, or at
least the high courts of appeals in the country, state courts’, only have
seven judges. So it’s not unusual to be down to seven. But we are—we
have become used to doing our job with nine over the years, and it makes
it a lot easier. We’re optimistic that now there’s some signs that we may
be able to pick up one judge before long. But nobody knows for sure.
MRS. EASTON: Well, are there any issues involving the court, or the state of the courts in
the nation, or anything else that we should cover?
JUDGE FARRELL: I don’t know, I think I should probably guard my speech when it comes to
talking about Farrell on the judiciary in general. But these things, of
course, go cyclically. Each administration has its preferences. It’s
entirely conceivable that on the federal side, including our court—we’re
an Article I Federal Court—you will see appointments that mirror the likes
and dislikes of this administration. And courts will become more
conservative. But eventually the wheel turns, and the next administration,
or whenever the Democrats are in office again, the balance will shift back.
201
The wonderful thing about the system of—about being an appellate judge
is you have very little room, day in and day out, to exercise any biases that
you have either consciously or unconsciously. Because you’re constrained
by an enormous number of, uh, limitations, some of which I’ve discussed
in previous interviews, including, darn it, the need to persuade at least one
other judge, and the constraints imposed by the record in the case, and
imposed by stare decisis. As I said, we cannot go en banc all the time to
overturn prior decisions and, therefore, we are kind of bound by the law in
general that is developed in our court. And you work within those
constraints. On the one hand, they make the job a little bit easier, because
they kind of give you the guidelines, at least the guidelines, that you
follow in trying to reach the right result. On the other hand, they can be
irksome if you don’t particularly like those guidelines and if your feeling
is that the law of the jurisdiction should be going in another direction.
Well, you have only limited capacity to send it in another direction as an
individual judge. And I think that’s true in the courts around the country.
Generally, people tend to exaggerate the sense in which individual judges
or courts are perceived as going off the reservation or being too activist
and so forth. There isn’t really, day in and day out, a lot of ability of
judges, individual judges, to kind of send a court in a different direction.
Appellate courts, in that sense, are very conservative, in the sense that
they’re bound by the past in very significant ways. Which is why, like
probably I mentioned this once before, the old anecdote of the trial judge
202
who ran into the appellate judge at a conference, and the appellate judge
said to the trial judge, “John, I’m sorry I reversed you recently in that
case.” And the trial judge said, “Fred, I reverse you every day in my
courtroom.” (Both laugh.) The trial judges, at least, think they have more
ability to make decisions day in and day out that are not going to be
second-guessed by anybody. So. No, to me it’s been a wonderful
experience, an extraordinary learning experience. And part of it is just—
part of it which makes you, uh, like it or not try to remain active and
interested and on top of things, is that you’re always getting younger
judges who come along and who test you. You do your best to keep up
with them in terms of their intellect and their skills. And they keep you,
uh—they keep you sharp, or at least they keep you as sharp as you were.
So there’s very little opportunity to go out to pasture, so to speak, while
you’re acting as an older judge, an elder judge, a senior judge. You still
have to do the work, and you still have to, in a way, compete in terms of
analysis and persuasiveness with a new generation of judges who don’t
quite have the respect maybe they should have for their older peers [both
laugh] but keep you on your toes. That’s the nicest thing about it.
MRS. EASTON: And were you to be counseling a lawyer who was an appellate advocate,
enjoyed appellate work, and had aspirations to being an appellate judge,
what would you advise him or her?
JUDGE FARRELL: Well, I’ve traditionally given the advice which is contradicted by my own
experience, which is you’re probably going to end up being a better
203
appellate lawyer if you’ve gotten a good deal of trial work—trial
preparation and trial work under your belt, if you’ve started, not
necessarily in civil practice doing depositions and things like that or
reading documents, but at least started with a government agency where
you’ve had to learn the rules of evidence, for example, and rules of
procedure, day in and day out by actual hands-on doing and practice. The
number of appellate lawyers who are kind of born to the manor and excel
at appellate advocacy without ever having done that is fairly limited.
Those tend to be the people who were at the top of their law school class
in very good law schools, in law review, had just that natural gift for
writing and analysis and so forth, have gone to appellate clerkships right
out of law school, some have gone on to the Supreme Court, then have
gone on to places like the Solicitor General’s office in Washington. Those
kind of people—you know from your experience—those kind of people
find it very comfortable to go right into appellate work and to excel at
appellate work. And many of them never leave appellate work. That I
think is a very, very small number of people on the whole. There’s a
grumbling that you get now-a-days that you never got, I think, years ago,
for example that all of the Supreme Court arguments these days are done
by about a dozen lawyers. In a way, clients have decided they cannot
afford to make the mistake of not having the best Washington appellate
lawyer from Sidley & Austin or wherever argue their case, even if they got
a very creditable performance by a local lawyer out in Des Moines in the,
204
uh, 8th Circuit or wherever out there. It becomes that way. In a way it’s
disappointing for the Supreme Court justices. They see the same people
before them again and again, the appellate practitioners, the Supreme
Court level of appellate practitioners. It is, to begin with, almost a deadend
for the average lawyer to just plan to be an appellate lawyer. It’s not
going to happen. There isn’t enough of the work. Everybody says, it’s a
cliché now, if you have a decent Supreme Court issue as a citizen you can
get somebody to take your case into the Supreme Court without paying
them a nickel. Good lawyers and law practices, appellate practices in the
big law firms, are falling all over one another to get the cases that are
Supreme Court worthy. But the average young man, woman coming out
of law school can’t count on an appellate law career. The odds are even if
they want to they will never end up doing that. But beyond that, at least a
number of years of learning in the trenches how to try cases and how to
cross-examine witnesses. I was, in a sense, lucky. I didn’t do that partly
because, as we’ve talked about before, I started my legal career late. I
don’t think I probably would have been a terribly good trial lawyer. I
don’t know whether I would have had the patience for it or whatever—
maybe the quickness of mind. But you really have to test yourself, I think,
as a trial lawyer, and for a period of time, before you think about pursuing
an appellate career. And of course in organizations like the Public
Defender Service, for example, there are—they depend on their lawyers
having—in the same institution for having tried cases very effectively to
205
produce a record that can be adequately litigated on appeal. We get quite
a few of Criminal Justice Act—quite a few lawyers who try to specialize
in appellate work. But by and large, I think the lawyers do the appellate
work for a number of reasons: Partly because they’re doing it part time,
some of them working out of their home, or they’re doing it to supplement
the trial work [where] there just is not enough trial work for them to make
a living, so the appellate work provides an additional source of income,
and a certain enrichment for them too as a—professionally. But I don’t
think appellate lawyering as a career for most is any more productive or
prosperous as—than it was in the past. It’s a very limited practice. So,
here I am and here I will remain. I don’t know how long I will remain as a
judge. ‘Could be one more year. I’ll turn 80 next year, that might not be a
bad number for— On the other hand we have a couple of senior judges
who are over 80 and show no signs of stopping. I could—I don’t know, it
will depend on my health. It’s a terrific job in the sense that you’re your
own boss. I’ve been my own boss since 1989. You have nothing
comparable to the kind of pressures on higher-level folks like yourself in
law firms, who are balancing and juggling the demands of satisfying
clients and partners and things like that.
MRS. EASTON: The work does come to you. That’s the part of which I’m most jealous.
[Laughing.]
JUDGE FARRELL: The work comes to you. The work comes to you, which makes it
astonishing to me, why—not really perhaps astonishing, but a little
206
puzzling why we don’t get more applicants for our court. I’m told that our
latest opening has generated only at most a dozen applications and my
guess is probably heavily from government organizations. That has
always been the case, traditionally, for a lot of reasons. But in a way it is a
little disappointing that so many of the super-good lawyers out in law
firms find it an unattractive proposition to apply for appellate judgeship on
our court. There are a lot of reasons. Most probably don’t live in the
District of Columbia and they’re not really prepared to move in. They
couldn’t afford to maybe, and you have to have that. For many it’s a
matter of simply taking the pay cut. I mean being an appellate judge pays
fairly well, but it’s nothing like being a partner in a good law firm. And
also it’s the ambition of those who have wanted to do appellate work,
historically, is aimed toward the federal courts, where the chances of
getting an appellate judgeship are next to nil statistically speaking. But
that kind of work, federal and constitutional law and statutory law has
been the thing that has attracted people most. There’s a certain reluctance
on people from at least larger law firms to want to come and do
unemployment compensation litigation or workers compensation or local
regulatory kind of stuff or burglary appeals and things like that. So it’s
not so easy to get—to attract, I think, the breadth of applicants that we
would like to have for our court. I don’t think that’s going to change any
time soon. But that is the way it is. Nonetheless, we do get good people.
How’s that?
207
MRS. EASTON: I think it’s excellent Judge, thank you so much.
JUDGE FARRELL: I think we’ve kind of wrapped it up. When I was reading through the last
transcript, I said to myself, “God, I didn’t realize you were so stupidly
verbose.” But, uh—(Laughs.)
MRS. EASTON: It’s been a delight for me to get to know you, and I’ve learned a lot from
you. So I thank you very much for this adventure.
MRS. EASTON: I think it’s a real treasure that they’re collecting this information, and I’m
so pleased and honored to be part of it. Well, I—do you have interest in
taking a professional portrait? Is that something that would—
JUDGE FARRELL: No. I will.
MRS. EASTON: —maybe you should get one.
JUDGE FARRELL: No, I won’t. I don’t think I’ll get professional one. I’ll just get, a—in laypersons
dress, I’ll just get a head photo.
MRS. EASTON: Okay, yeah, that would be a nice addition.
JUDGE FARRELL: And I’ll give it to her because she certainly doesn’t want to limit herself to
me in my basketball togs.
MRS. EASTON: Although, that’s really—(Laughs.)
JUDGE FARRELL: That was the highpoint of my non-professional career.
MRS. EASTON: Your pre-law career. (Both laughing.) Oh, Judge, well thank you so
much—
B-1
ORAL HISTORY OF JUDGE MICHAEL W. FARRELL
Table of Cases and Statutes
Cases
Brady v. Maryland, 373 U.S. 83 (1963), 73
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), 162
Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69 (N.J. 1960), 14
Gary v. United States, 499 A.2d 815 (D.C. Cir. 1985), 84
Marbury vs. Madison, 5 U.S. 137 (1803), 154
McClough v. United States, 520 A.2d 285 (D.C. Cir. 1987), 84
Winfield v. United States, 676 A. 2d 1 (D.C. Cir. 1996), 174
Winfield v. United States, 652 A. 2d 608 (D.C. Cir. 1994, 174
Statutes
Criminal Justice Act, 18 U.S.C. § 3006, 205
A-1
ORAL HISTORY OF JUDGE MICHAEL W. FARRELL
INDEX
A River Runs Through It (Maclean), 42
ABA (American Bar Association), 122, 189
Abramson, Frederick (Fred), 94
Abscam, 79
Advance Publications, 24
American Hustle (movie), 79
American University Law School, 50-53, 71
attorney discipline, 82, 171-72
Bass, Ellen (wife)
Department of Education, 183
WMATA, 183
Beckwith, Corinne, 82
Black, Hugo, 54
Brady v. Maryland, 73
Bryson, William, 65
Columbia University, 44
Covington & Burling, 91
Criminal Justice Act, 205
Daubert rule, 162
Davis, Oscar, 65, 76
death penalty, 113-14
diGenova, Joseph, 91
Dinkins, David, 18
DLA Piper, 90
Douglas, William O., 54
Easterbrook, Frank, 60, 71
Easterly, Catharine, 82
electronic legal research, 99, 102, 105
en banc cases, 77-78, 113, 161-62, 173-74, 188, 193, 201
Essex, New Jersey, 3
Farrell, Elizabeth (mother), 1, 3, 10-11, 21-22, 30, 42
Farrell, John (father), 3, 5, 7-9, 17, 20-22, 24-25, 29, 67
interest in politics, 9
Newark Evening News, 3
newspaper business, 13, 15, 21-23
retirement, 13, 21, 23
Farrell, John (Jack) (brother)
Holy Cross College, 17
A-2
Farrell, Michael W. – Personal
American University Law School, 50-53, 71
Army Reserve, 40-41
basketball, 5-7, 25-26
Columbia University, 44
German literature, 44, 46, 48, 66, 68-69
Germany, 42-43, 67, 182
Berlitz School of Languages, 43
University of Mainz, 43
hobbies
foreign languages, 69
hiking, 186-87
literature, 44, 66
philosophy, 44, 66
travel, 178, 182
New York University, 44
Saint Peter’s Preparatory School (teaching), 44
Seton Hall Preparatory School (high school), 5-9
sports, 5
paternal grandfather, 9, 10, 12
University of Chicago, 40-42
Woodrow Wilson Fellowship, 40
University of Notre Dame, 2, 7-8, 25-29, 36, 39-41, 48
basketball, 30-32
magna cum laude, 27, 39
wander years (Wanderjahre), 28, 47-48, 54, 66-68, 144
William & Mary College, 7-8, 26
youth, 1-5
Catholic family tradition, 17
Farrell, Michael W. – Professional
attorney discipline, 82, 171-72
bar exam, 108-09
caseload, 162, 181-82, 189
CLE courses for the D.C. Bar, 184
computers, 99, 101-03, 105, 153, 171, 191-95
electronic legal research, 99, 102, 105
clerking, 92, 108
Daubert rule, 162
en banc cases, 77-78, 113, 161-62, 173-74, 188, 193, 201
Farrell Ninety-Day Rule, 169, 182
Indian law, 59, 72
Inns of Court, 123
intermediate court of appeals, 111
judging, 122, 130, 133-34, 198
change from advocate to independent decision maker, 132
judicial training, 122
A-3
judicial collegiality, 126, 131, 196
judicial confirmation, 121
vetting process, 118
Judicial Nomination Commission, 117-18
law clerk (MWF), 134
Maryland Court of Special Appeals, 53-56, 64, 92, 108, 150
Montgomery Maryland Circuit Court, 53-54
law clerks, 132
analysis and opinion drafting, 135
bench memos, 147
expectations, 137
MOJ (memorandum of judgment), 161
New York University, 44
opinions
published and unpublished (memorandum of judgement, MOJs), 161, 181
writing process, 137, 148, 156
oral argument and summary cases, 158
organized crime, 73
preventive detention/pretrial detention, 77
recusals, 85, 124-25
res judicata, 130, 145
retirement, 21
rules committee, 110, 171
senior judge, 2, 178
law clerk pool, 179
Strike Force, 60, 71, 73
thoughts on teaching writing, 95
U. S. Attorney’s Office, 75, 95, 98, 109
job sharing, 87
merits brief for the Supreme Court, 59
U. S. Department of Justice, 56-60, 63, 92, 109-10
Woodrow Wilson, 9-10
Woodrow Wilson Fellowship, 40
William & Mary College, 177, 190
young lawyers, 190
Farrell, Richard (brother), 16-18
Federal Rules of Evidence, 110, 111
Fisher, John, 81
Francis, John J., 14
Frey, Andrew (Andy), 62-63, 75,
Friedman, Dan, 63, 65, 76
Frisch, Max, 44
Gary v. United States, 84
Geller, Kenneth (Ken), 63
Georgetown University, 16
A-4
Germany, 42-43, 67, 182
Glenn, John, 120
habeas corpus, 113-14
Harris, Stanley S., 91
Henningsen v. Bloomfield Motors, 14
Hetherton, Judith, (Judy), 80
hornbooks, 163
Irish mafia, 14, 20
Jenrette, John, 79
judicial collegiality, 126, 131, 196
Judicial Nomination Commission, 117-18
Kelly, Richard, 79
Kennedy, Edward (Ted), 78
Kim, Todd Sunhwae, 121
King, Warren, 178
Klein, James, 97
Kutak Rock, 183-84
lace curtain Irish, 11
legal writing, 61, 99
Leventhal, Harold, 85
Levi, Edward (Ed), 62
Lexis, 102, 105
Maclean, Norman, 42
Macy, Elizabeth B., 177
Mandel, Marvin, 55
Marbury v. Madison, 154
McClough v. United States, 84
McLeese, Roy, 81
Mikva, Abner, 92-93
Monahan, Phil, 57-58, 71
Moore, John, 55, 57, 71
Nebeker, Frank, 77
New York Daily News, 25
New York Post, 25
Newark Evening News, 3, 13, 23-24
Newark Star-Ledger, 24
Newhouse, Samuel, 24
Newman, Theodore, 178
newspaper business, 13, 15, 21-23
A-5
Oberly, Kathryn, 63
Office of the Solicitor General of the United States, 59, 64, 75
egos, 60
Davis, Oscar, 76
Frey, Andrew, 62
Friedman, Daniel, 63
Geller, Kenneth, 63
Kim, Todd Sunhwae, 121
preventive detention/pretrial detention, 77
Prosser and Keeton on Torts (Prosser and Keaton), 163
Public Defender Service, 97, 161, 190, 197, 204
Raker, Irma, 53
Reagan, Ronald, 119
Restatements of Law, 104, 153, 163
Rosenberg, Beatrice (Bea), 63
Ruff, Charles, 85, 91
Sasser, James, 120-21
Schwelb, Frank E., 103, 156, 173, 178
Scudders family, 23
Seton Hall Preparatory School, 5, 16
shanty Irish, 11
Silbert, Earl, 64, 89
Watergate, 90
Sirica, John, 90
South Bend Tribune, 31
Sputnik, 35, 40
Steadman, John, 139
Stein, Jacob A., 139
Supreme Court of New Jersey, 14
Supreme Court of the United States, 54, 58-59, 62, 68, 71-72, 78, 83-84, 97, 134, 147, 196
appellate practitioners, 204
Daubert rule, 162
habeas corpus and the District of Columbia, 114
law clerks, 156
unanimity of decisions, 173
Supreme Court of Virginia, 177
technology, 40, 100, 101, 105, 167
redlining, 167-68
use by judges, 104
Terry, John, 64, 76-77, 80, 85
The Bostonians (James), 8
Tourish, Thomas, 81
Trosman, Elizabeth, 81-82, 88
A-6
U.S. Attorney’s Office, 64, 76, 80, 82-90, 95-101, 110, 124-28, 161, 166
Strike Force, 60-61, 71,74-75
U.S. Department of Justice, 56-58, 60, 62-63
Appellate Section of the Criminal Division, 57-58
Criminal Division Appellate Section, 59
United States Court of Appeals for the District of Columbia Circuit, 84
United States Court of Appeals for the Fourth Circuit, 73
University of Chicago, 40-42
Woodrow Wilson Fellowship, 40
University of Notre Dame, 2, 7, 25-27, 29, 36
Vietnam, 34, 36, 41, 45
von Goethe, Johann Wolfgang, 48
Wagner, Annice M., 178
Walton, Reggie, 52
Warren Court, 53-54
Washington Post, 81, 128
Weinberg, Mel, 79
Westlaw, 2-3, 27, 29, 102, 105
Wilhelm Meister’s Journeyman Years (von Goethe), 48
Wilson, Woodrow, 9
Winfield v. United States, 174
Winter, Harrison, 73
Winter, Ralph, 56

THE HONORABLE MICHAEL WILLIAM FARRELL
ASSOCIATE JUDGE
DISTRICT OF COLUMBIA COURT OF APPEALS
Judge Michael William Farrell was appointed to the District of Columbia Court of
Appeals in 1989 by President George H.W. Bush.
Judge Farrell was born and raised in West Orange, New Jersey. He graduated
from the University of Notre Dame with a Bachelor of Arts in English in 1960 and
received his Master of Arts in German from Columbia University in 1966. Before
turning to the law, Judge Farrell was Chair of the English Department at Georgetown
Preparatory School in Rockville, Maryland. He received his law degree from the
American University School of Law in 1973.
Judge Farrell’s legal career has always involved public service. Following law
school, Judge Farrell clerked for the Honorable John P. Moore, Associate Judge of the
Maryland Court of Special Appeals. He entered the Department of Justice as an attorney
in the Criminal Division, Appellate Section the following year. In 1977, Judge Farrell
joined the United States Attorney’s Office for the District of Columbia, where he served
as Deputy Chief, Appellate Division before becoming Chief of the Appellate Division in
1982.
Since 1992, Judge Farrell has been a member of the Joint Committee on Judicial
Administration of the D.C. Courts. He also recently chaired the Court of Appeals’
committee which revised the Court’s rules of procedure.
D-1
LORY BARSDATE EASTON
34 Arell Court Alexandria, VA 22304
Mobile phone: (312) 401-5993 Email: Lory.Barsdate.Easton@gmail.com
EDUCATION
Institute for the Psychological Sciences, Divine Mercy University, Arlington, Virginia: Psy. D.
candidate, Clinical Psychology (August 2017-present).
Yale Law School, New Haven, Connecticut: J.D. 1988 (Yale Law Journal Managing Editor,
Volume 97 (1987-1988); author of Note, Attorney-Client Privilege for the Government Entity,
97 Yale Law Journal 1725 (1988)).
Yale College, New Haven, Connecticut: B.A. 1983 (Summa cum Laude; Distinction in the
Linguistics Major; Phi Beta Kappa). Senior Thesis in Linguistics topic: Comprehensibility of
Jury Instructions.
University of Alaska, Fairbanks, Alaska: September 1979-December 1980, transferred to Yale
College January 1981 (Outstanding Freshman Chemist Award; Chancellor’s List – 4.0 GPA).
PROFESSIONAL EXPERIENCE
Admitted to practice law: Connecticut (retired) (1990), Pennsylvania (inactive) (1990), Illinois
(retired) (1991), District of Columbia (2007).
Sidley Austin LLP, 1990-2016 (Partner, 1996-2016). Litigator specializing in complex multidistrict
litigation, defending product liability claims in both federal and state courts. Served as
national coordinating counsel and directed the defense of hundreds of lawsuits alleging personal
injury and wrongful death. Managed defense in high-profile mass torts including aviation and
railroad disasters, toxic exposure cases, and pharmaceutical and medical device matters. Advised
corporate clients on torts liability issues, including litigation overseas. Counseled clients on
litigation avoidance and mitigation strategies.
Law firm leader on diversity and professional development committees: Co-chaired Washington,
DC, office Diversity Committee (2011-2016); chaired Washington, DC, office Lawyer Training
Committee (2007-2010); team leader for Chicago and DC offices recruiting at Yale Law School
(1997-2015); member, firmwide Diversity Committee (2002-2016); member, firmwide
E-Discovery Committee (2006-2016).
Seminar speaker on professional development, diversity, and litigation topics: Interrupting
unconscious bias in formal and informal performance reviews, mentoring across differences,
providing effective feedback, career planning for law students, attorney-client privilege and work
product protections, multidistrict litigation procedures, jurisdictional issues in transnational torts
litigation, discovery issues for multinational corporate entities, defending wrongful death actions,
D-2
forum non conveniens, mold litigation trends, punitive damages, the “second injury” rule, revival
of statutes of limitations, e-discovery, and legal ethics issues.
ADDITIONAL ACTIVITIES AND POSITIONS
Certified in Adult Mental Health First Aid (February 2017).
Principal author of “Giving Feedback Across Differences: How to Minimize Implicit Bias (and
Maximize Your Team’s Legal Talent),” 58 For the Defense 9:80 (Sept. 2016).
Author of “Getting Out of Dodge: Defense Pointers on Jurisdictional Issues in Aviation Torts
Litigation,” 20 Air & Space Lawyer 3:9 (2006); co-author of a book chapter on jurisdictional
issues in Litigating the Aviation Case – The Legal Issues, 3d Edition (2008).
Legal professional associations including Seventh Circuit Bar Association (Northern District of
Illinois Liaison Representative, Rules and Practice Committee Chairman, and Seventh Circuit
Pattern Civil Jury Instructions Committee member); Defense Research Institute; International
Aviation Women’s Association.
Law Clerk, The Honorable Ralph K. Winter, United States Court of Appeals for the Second
Circuit (August 1989 – August 1990).
Law Clerk, The Honorable José A. Cabranes, United States District Court, District of
Connecticut (August 1988 – August 1989).
Ombudsman Assistant II, State of Alaska (June 1983 – August 1985): Performed all aspects of
investigation of citizen complaints against Alaska state agencies, including on-site inspections of
state facilities, use of subpoenas and depositions, and preparation of formal reports of findings
and recommendations. Also conducted outreach visits to rural communities, led staff orientation
on state personnel procedures and computer research, and supervised the Fairbanks Regional
Office during the absence of the Regional Manager.
Board Member, FOCUS North America (2009 – present): Founding board member of
Fellowship of Orthodox Christians United to Serve, a new faith-based non-profit organization
that provides sustainable services (including Food, Occupation, Clothing, Understanding, and
Shelter) to the homeless and working poor in multiple communities nationwide.
City committee leader, International Orthodox Christian Charities (“IOCC”): Chairman, IOCC
Chicago Annual Banquet Committee, (2000, 2001); IOCC Chicago Metropolitan Committee
(1995-2006); IOCC Washington DC Metropolitan Committee (2007-2011).
Choir member and parish lay leader in multiple Orthodox Christian parishes (Fairbanks, AK;
New Haven, CT; Windber, PA; Chicago, IL; Cicero, IL; Washington, DC; Alexandria, VA).