John Fisher Complete Oral History Package (736 KB)

THE HONORABLE
JOHN ROBERT FISHER
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
THE HONORABLE
JOHN ROBERT FISHER
Interviews conducted by:
Cecil Hunt, Esquire
September 9 and December 20, 2011
TABLE OF CONTENTS
Preface .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Oral History Agreements
Honorable John R. Fisher. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Cecil Hunt, Esquire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Oral History Transcript of Interviews:
Interview No. 1, September 9, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Interview No. 2, December 20, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Biographical Sketches
Honorable John R. Fisher. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Cecil Hunt, Esquire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-3
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.
© 2013 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.
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. Both the interviewers and the interviewees
have had an opportunity to review and edit the transcripts.
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
INTERVIEWEE ORAi? RffiTORY AGREEMENT
Historical SocietY of the District of Columbia Circuit
Oral History Agreement of [Name oflnteryieweeJ
1. In eonsideration of the recording and preservation of my oral bistOiy memoir by the
Historical Society of the District of Columbia Circuit, Washington, D.C., and its employees and
agents (hereinafter ”the Society”), I, John R. Fisher • do hereby grant and convey to the
Society and its successors and assigns all of my rights, title, and interest in the tape recordings,
digital recordings, transcripts, computer diskettes, and DVDs of the interviews of me as
described in Schedule A hereto, including literary rights and copyrights. All copies of the tape
recordings, digital recordings, transcripts, eomputer diskettes, and DVDs are subject to the same
restrictions herein provided.
2. I also reserve for myself and to the executor of my estate the right to use the tape
recordings, digital recorcfinm;, transcripts, eomputer diskettes, and DVDs and their eontent as a
resource for any book, pamphlet, article or other writing of which I or my executor may be the
author or co-author.
3. I authoriz.e the Society to duplicate, edit, publish, including publication on the internet,
and permit the use of said tape recordings, digital recordings, transcripts, computer diskettes, and
DVDs in any manner that the Society considers appropriate, and I waive any claims I may have
or acquire to any royalties from such use.
·,
;• , ‘ . … ,
My Commission expires: _____ ACCEPTED this 2 7 tt,day of \-? 0 a-i 1 , 20 !;-by’Stephen J. Pollak, President of the
Hislllrical Society of1he District of Columbia Cimm. ? ?
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Stpndard Form
INTERVIEWER ORAL IDSTORY AGREEMENT
The Historical Sociezy of the District of Columbia Cirouit
Oral History Agreement of [Name of Interviewer]
1. Having agreed to conduct an oral history interview with John R. Fisher , for the
Historical Society of the District of Columbia Circuit, Washington, D.C., and its employees and
agents (hereinafter “the Society”), I, Cecil Hunt do hen,by grant and convey to
the Society and its S\K:CCSSOrs and assigns all of my rights, title, ar;i4 interest in the tape
recordings, digital recordings, transcripts, computer diskettes, and DVDs of interviews as
descn’bed in Schedule A hereto, including literary rights and copyrights.
2. I authorize the Society to duplicate, edit, publish, including publication on the internet,
and permit the use of said tape recordings, digital recordings, transcripts, computer diskettes, and
DVDs 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 interview or the information contained therein
until it is concluded and edited, or until I receive permission from the Society.
??? lo/ ? ?I y
[Signature of Interviewer] [Date]
SWORN TO AND SUBSCRIBED before me this
J:L clay of f,e,bv:u ctr? . 20 li-
G7lC00 S. {:(MWIM NotaryPub c
My Commission expires= Uu ly 3 lj2l017
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ORAL HISTORY OF
HONORABLE JOHN ROBERT FISHER
First Interview — September 9, 2011
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 John R. Fisher, Associate Judge of
the District of Columbia Court of Appeals. The interviewer is Cecil Hunt.
(TAPE 1)
MR. HUNT: Good afternoon Judge Fisher.
JUDGE FISHER: Good afternoon Mr. Hunt
MR. HUNT: Will you introduce yourself?
JUDGE FISHER: I’m John R. Fisher. The R stands for Robert. I live in the American
University Park area of Northwest D.C.
MR. HUNT: Judge Fisher, later in this interview I’ll be talking about your family, your
wife and children, but I would like you to tell us something about your forbears, where you were
born, when you were born, and something about your family background.
JUDGE FISHER: I was born in North Central Ohio, Knox County, Ohio, in 1946.
Although we lived in the town of Fredericktown at the time I was born, we moved to a nearby
farm when I was about three years old.
My father was George Fisher. He was born in 1899 in Southeastern Ohio, in an area of
Ohio that’s really part of Appalachia, and his family and he moved to the North Central Ohio
area in 1916, I believe, when he was about seventeen years old. He was a farmer for most of his
life; from time to time he had to work in offices or factories to supplement his income, but it was
while working at a company in Fredericktown, Ohio, that he met my mother, Helen Clark Fisher.
My mother was born in Knox County, Ohio, and she was about seventeen years younger than my
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father. My mother was my father’s second wife; his first wife died after they’d had two children,
and then he met my mother and they got married after his first wife’s death.
MR. HUNT: Would this have been during the Depression that they married?
JUDGE FISHER: Well, they’d emerged from that. They married in 1945, as I recall, so
World War Two was still going on, but was soon to end.
MR. HUNT: And so there were some siblings before you came on the scene?
JUDGE FISHER: Yes, although they were considerably older than me, and my older
sister had moved out of the house by the time I was born. She was still in the area at that time.
My older brother, I think, was still in his last year of high school probably when I was born, but
he soon went away to college so they weren’t in the household very much when I was growing
up. A younger brother came along in 1949, and so for the most part it was two children growing
up together.
MR. HUNT: So you were the older brother of the second family.
JUDGE FISHER: I am, yes.
MR. HUNT: Tell me a little bit about the kind of family setting, the kind of activities, in
addition to hard work, that your parents were involved in, and the kind of atmosphere in your
home.
JUDGE FISHER: Well my parents were very hardworking. They were people of modest
means, and I remember my dad always working very hard on the farm. My mother stayed at
home to raise the children. I recall especially that we always had an enormous vegetable garden,
to try to provide food for the table and she would be engaged in a lot of canning, and later on
freezing, to preserve food for the winter. Meat and eggs were provided from the farm, and so we
didn’t do a lot of grocery shopping in town. It was a pretty lonely existence growing up, I would
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say. We had only one car, and my father often had that for transportation to work. For many,
many years we did not have any television while I was growing up so a lot of activities were in
the outdoors—running around playing in the yard, swinging, going down to the creek on the
farm, and looking around.
MR. HUNT: Which came first, your start in school or your having household chores?
JUDGE FISHER: I don’t remember having any really significant chores before I went to
school. I first went to school in first grade. Although they had kindergarten in the town of
Fredericktown, that was a half day program and they didn’t provide bus service so only the town
children would go to kindergarten and I did not, so I first went to school in the first grade.
MR. HUNT: Were your parents readers?
JUDGE FISHER: They were, my father especially was a reader. I think in some senses
I’d say he had been a reader. There were lots of books in the house, and it was clear that he had
read a lot as a younger man. I think as he got older he had less stamina and read less.
MR. HUNT: When did you get started with books and what direction did it take?
JUDGE FISHER: I think I had at least learned some reading skills before I went to
school, but I don’t remember ever reading books or things before I went to school, but I really
liked to read, and I remember many evenings, there being no TV and not a lot of activity in the
house, that I would read a book while probably most of my classmates were watching TV or
chasing around doing other things.
MR. HUNT: Can you remember the kinds of books, say, in your grade school days, were
there books you were reading that would fall into any particular category, or was it random?
JUDGE FISHER: I remember particularly being interested in history, and I can’t
remember the name of this series, but I remember that there was a series of biographies of
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famous people, and these books tended to talk about their childhoods, and they might throw in
some information about what they did when they grew up and became famous. I suspect most of
the information about their childhood was fiction, but I remember in particular enjoying reading
that series.
MR. HUNT: (laughs) I’m sorry that’s not allowed in these interviews!
JUDGE FISHER: No fiction?
MR. HUNT: No fiction. Well, can you, before we get to your high school years; are
there any recollections from grade school years that stand out as good memories or bad
memories?
JUDGE FISHER: I have mostly good memories of my school experience. I think a lot
of people would have characterized me as “bookish” and “shy,” and so I think my classmates, on
one hand sometimes made fun of me because I wasn’t an athlete or socially adept, at other times
they tended to appreciate that I knew answers to things, and those are my principal memories of
grade school.
MR. HUNT: Good, where did you go to high school?
JUDGE FISHER: I went to high school in Fredericktown, Ohio, all twelve years of my
elementary school and high school education were in the same town. I graduated from high
school in 1964, and we tended to think it was auspicious that we had 64 members of our class in
1964, so we had a fairly small class, as you can tell.
MR. HUNT: Well we know that you went on to do your undergraduate work at Harvard,
at least I know. We’ll get to that, but when did you start thinking about your college choice and
what influenced your college choice?
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JUDGE FISHER: Let me say first of all that it was always expected of me and my
brother that we would go to college. I think our parents valued education very much, although
they didn’t have much education beyond high school, and so there was always in the back of my
mind the expectation that I would be going to college, which was not an obvious answer for the
people in our community. I first became familiar with a variety of colleges in Ohio. A very
good liberal arts college named Kenyon College is in the same county where I grew up so I
learned of Kenyon and might well have attended Kenyon had things been just a little different,
but I think probably in my sophomore year, and certainly in my junior year, I started to think
more concretely about where I would go to college. One of the important things would be
financial aid, figuring out a way to pay for it, since we didn’t have a lot of resources to do that
ourselves.
MR. HUNT: Well specifically, were you in any sense recruited, or did you send out the
applications and wait to see what would happen?
JUDGE FISHER: Most of the recruiting that I recall was conducted by mail. In high
school I took a number of standardized tests, either in subject matter or SATs, things like that,
and I tended to score well on those tests, and that would often prompt colleges or universities to
send me a letter or pamphlet or something inviting my interest. I don’t recall any recruiters
coming around to the school and touting their colleges or universities, but there were institutions
that sent me brochures and invitations to apply, and I ultimately foisted myself on Harvard,
having just applied to them in the blind, so to speak. I think I got interested in them because I
enjoyed so much reading American history and biographies of famous Americans, and John
Kennedy had been president while I was in high school, and you just couldn’t pay attention to
American history without realizing that Harvard was a preeminent institution, and it was
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completely unrealistic for me to apply to Harvard, but I did so, and for some reason they
admitted me and I ended up going there to college.
MR. HUNT: Had you ever visited Harvard, or had you visited the East Coast before you
made your decision to go there?
JUDGE FISHER: No. The first time I saw Harvard was when I showed up to begin my
freshman year. I actually took a train there. I had to go to a town 30 or 40 miles away to catch
the train and went through New York to change trains, and ended up in Harvard, and that’s the
first time I ever saw it.
MR. HUNT: That took a little spunk. I imagine that your acceptance by Harvard was
known to you before you graduated. Were there comments in your high school yearbook? I
mean, was it something that people noticed and commented on, your heading off to Harvard?
JUDGE FISHER: Yes, I’m not sure about the yearbook, but I think I probably found out
in April of the year I graduated, and I recall that the town paper had an article about I was the
first person from that area to go to Harvard and there was some publicity about that.
MR. HUNT: So you arrived and started at Harvard in, what year?
JUDGE FISHER: 1964.
MR. HUNT: And went straight through in four years of undergraduate work, did you?
JUDGE FISHER: I did.
MR. HUNT: You must have some lasting impressions, but first on the academic front,
are there classes or professors that stick out in your memory as influential in a positive way?
JUDGE FISHER: I remember particularly enjoying the American history classes taught
by Bernard Bailyn. He was a scholar particularly of the theories or ideologies behind the
American Revolution and then the American Constitution. He wrote a famous pioneering book
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called the Ideological Origins of the American Revolution. He was a very good lecturer and I
enjoyed his classes. A professor named Frank Freidel taught more general courses about
American history. I confess there wasn’t much personal interaction with the professors there. I
wouldn’t characterize Harvard as a warm and fuzzy place, as far as undergraduates were
concerned. We did, in our sophomore, junior and senior years, have what we called tutors, who
tended to be graduate students, who played a certain role in guiding us through courses and
thesis preparation and things like that. I think if I had to do it over again, I would study less and
explore more while I was at college, but I always felt compelled to work very hard to take
advantage of the opportunity.
MR. HUNT: How about your summers? Did you have to work during the summers and
did you come back to Ohio to do that?
JUDGE FISHER: Initially, yes. I had a job during the school year, a part-time job.
Different kinds of jobs in different years. I came back to Ohio in, let’s see, the summers of ’65
and ’66, and worked in a factory those summers. I also worked on a farm part of the time. And
in 1966, between sophomore and junior years, my wife and I got married, so when I went back
for my junior and senior years, we lived in married housing in the Cambridge area.
MR. HUNT: Well, let’s get you out of Harvard and then we’ll talk a little bit about your
wife and your family. Was there a point during your undergraduate years that ideas began to
form in your mind as to what you wanted to do after college?
JUDGE FISHER: I had lots of ideas. They changed a lot, but let me step back a few
years. I remember in high school considering that maybe I’d want to be a lawyer when I grew
up, and when I was maybe a junior or a senior for the first time to my knowledge a lawyer settled
in Fredericktown, and I remember that a friend and I went up uninvited and dropped into his
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office and chatted with him about what it was like to be a lawyer and that sort of thing. As I
went through college those ideas pretty much faded from my mind, and I was interested in
history, perhaps in an academic career. I also liked the study of literature. And so I think I had
planned to go on to graduate school in history, up through my senior year. One of the things that
I particularly was interested in was constitutional history, and at some point, and I don’t recall
exactly how this happened, but at some point during my senior year I got to thinking that, well,
maybe it made sense for me to go to law school, and approach the study of the constitution and
constitutional history that way; and so at the time that I was applying to graduate schools I also
applied to Harvard Law School. I first was on the waiting list there, but got off of that, and so I
had planned to begin law school in the fall of 1968, following my graduation from college.
MR. HUNT: That leads to the military question: were you in ROTC while you were an
undergraduate at Harvard?
JUDGE FISHER: I was not. It would have been a great idea to have done that, but I
was—I don’t know whether I was being willfully blind or not, but I was not in ROTC. I
remember at a certain point in probably my junior or senior year, calling up the ROTC folks and
seeing if they had room for me, but they were oversubscribed at that point. One of my vivid
memories of graduation day from college is that we had an interruption in activities at midday,
and I went to the mailbox and there waiting for me on graduation day was a notice to report for
my physical from the draft board, so it soon became pretty obvious that I was going to have to
deal with military obligation sooner or later.
MR. HUNT: At that point had you been admitted to law school?
JUDGE FISHER: I had, and I thought for a while that I could maybe postpone military
service and complete law school or at least begin law school. It seemed, after consulting with
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some people, that I might be able to postpone it and maybe get through the first year, but it
wasn’t likely I’d be able to finish law school without interruption. I remember consulting with
the dean of admissions at the law school and basically deciding that I’d be pretty distracted and
in order to get through the first year of law school I would’ve probably had to take certain
appeals and ask for certain exemptions. It would have been pretty time-consuming and
preoccupying, so I enlisted in the army under duress.
MR. HUNT: Okay.
JUDGE FISHER: It was apparent that if I didn’t enlist then they would draft me, and I
ended up enlisting.
MR. HUNT: Well, please tell us about your military service.
JUDGE FISHER: Well, I had enlisted in a program where I could go to officer candidate
school in the army, and the cycle that would suit, or that was timed for my needs, would have
taken me into the army in January of ’69. So we moved away from Cambridge in I think
September of ’68. We lived with my wife’s parents and worked on their farm until January of
’69, and then I reported for duty and took basic training at Fort Dix, New Jersey. I’ve never been
colder in my life than I was taking basic training in Fort Dix, New Jersey, in January and
February and early March, but that’s where that began. I then went to Fort Leonard Wood,
Missouri, for advanced individual training. I was trained as a combat engineer, and from there I
went to Fort Benning, Georgia, for officer candidate school. I had qualms about the war, and
whether I would be comfortable doing what I’d need to do as an officer in the war.
MR. HUNT: This would have been early 1969?
JUDGE FISHER: This would have been the summer of ’69. I said I’d never been colder
than I was in Fort Dix; I’m not sure I’ve ever been hotter than I was in Fort Benning, Georgia, in
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the summer, but I resigned from officer candidate school about halfway through. They asked us
to fill out our preference for duty thereafter, and that was all a sham because there was only one
place we were headed, which was Vietnam, and so I went to Vietnam in September of 1969.
MR. HUNT: Would you be willing to comment on the qualms to which you referred,
about the war and the prospective duties?
JUDGE FISHER: From my point of view, a lot of the training that we went through
prepared us for brutality. Part of the ways they did that was to dehumanize the enemy. I wasn’t
real enthusiastic about what I was going to be doing, and my particular qualm was I wasn’t sure I
would be an effective officer, leading people to do things they needed to do to preserve their
lives, if I wasn’t fully committed to that. I don’t know whether that was the right decision or a
cowardly decision, but I just didn’t feel comfortable going forward to be an infantry officer, in
those circumstances.
MR. HUNT: Know thyself.
JUDGE FISHER: Right.
MR. HUNT: Important. Thank you. Briefly, tell us about your experience then, as you
shipped out in the infantry.
JUDGE FISHER: Well, I actually had what they called a primary MOS (military
occupation specialty) as a combat engineer and my secondary MOS was as an infantry man. I
landed in Vietnam at Cam Ranh Bay and then had orders to go up to Chu Lai, which was the
headquarters of the Americal Division. And I was originally assigned to go to an outpost called
Hawk Hill, but I had to first process through the headquarters company of the engineer battalion.
And, it proves that the smartest thing I’ve ever done in my life was to learn how to type, because
when I came through the headquarters company, I filled out an information sheet. They saw I
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was a college graduate and could type. They needed a company clerk, and they said, “you’re not
going up to Hawk Hill—sit down right there!” And so, in a great piece of good fortune, I
became a company clerk, rather than a combat engineer or an infantryman.
MR. HUNT: So did you remain in Chu Lai for your tour?
JUDGE FISHER: I did. We moved around at various locations within that area, but it
was all either in the main base at Chu Lai or right outside it.
MR. HUNT: Now there was some period of time between the time you got out of the
army and the time you started law school. Is there anything in particular that you recall about
that period?
JUDGE FISHER: Well, it was sort of an unsettling period. Although I was in the army
for roughly two years, it killed three academic years and I came back in mid-September of 1970.
Tomorrow will be the anniversary of my leaving Vietnam. My wife had been attending Ohio
State University while I was in the army; at that time we settled in Columbus temporarily, and I
had a hard time finding a job. You probably heard or read or remember that Vietnam veterans
weren’t exactly welcomed back with open arms, and I don’t know whether that accounted for it
or it was just my lack of planning.
MR. HUNT: At this period, you were intending to start law school about eight or nine
months later?
JUDGE FISHER: Not at the beginning. I had basically decided while I was in the army
that I didn’t want to go to law school anymore. A couple people asked me why and I said,
“Well, I think I’ve seen enough conflict, let’s find something else to do,” but I never really had a
good concept of what I was going to do, so after I got back to the States and found a temporary
job at the United Parcel Service, I got to thinking about things some more. Harvard suggested
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you read a series of books about the law and famous lawyers, and I decided that I would again
apply to law school. When I left I knew that they wouldn’t take me back automatically, but they
said they would understand the circumstances, and so I applied, I reminded them I’d been
admitted previously, and they were kind enough to let me in again.
MR. HUNT: Let me break in here with a question about the Law School Aptitude Test.
When did you take it and how did you do?
JUDGE FISHER: I took it probably in the winter or spring of 1968, when I was a senior.
I don’t remember what percentile I was in.
MR. HUNT: Harvard liked it twice.
JUDGE FISHER: Well, they’re kind and forgiving in many ways, so they decided to let
me in.
MR. HUNT: So when did you actually get started in classes at Harvard Law School?
JUDGE FISHER: That would have been in September of 1971, so there was roughly a
year after I got back from Vietnam before I began law school.
MR. HUNT: And your wife was with you. Did you have any children at this point?
JUDGE FISHER: No we didn’t, and I should commend my wife as we’re talking about
this movement through school. She worked while I was in college to help support us. I
mentioned briefly that while I was in the army she had gone to college at Ohio State, and then
when we went back to Cambridge to begin law school she began working again, and worked
throughout the three years of law school to support us, so she supported me through half of
college and all of law school.
MR. HUNT: That’s worth noting, unquestionably. Did your first impressions of Harvard
Law School make you feel good or doubtful about your decision to go to law school?
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JUDGE FISHER: I felt pretty good about Harvard Law School. One of my current
clerks just graduated from Harvard and it sounds like it’s a kinder, gentler place now. I for the
most part liked law school. One of the explanations for that, I think, is there was a pattern of
people forming small study groups, and so we tended to have a cadre of friends that we studied
with, and I developed a lot of closer friendships during that time at law school than I had at
college, so I think that’s part of the explanation. I was still very much approaching the law from
an academic or theoretical bent.
MR. HUNT: Was that still an interest in constitutional history, constitutional law?
JUDGE FISHER: And in my first year of law school, my torts professor was a fellow
named Mort Horwitz. He was a brilliant teacher, who had been sort of recruited to teach torts,
but his passion was American legal history, and I think it must have been the second half of my
first year at law school, I took a seminar-type course from him about the origins of judicial
review. I loved that; that was great stuff. I asked him whether I could be his research assistant
the following summer; he said sure, so I spent the summer after my first year as a research
assistant for Professor Horwitz, and I became more and more interested in American legal
history. I also started to take classes from a fellow named Roberto Unger. He taught
jurisprudence and social theory and that sort of thing, and so I wasn’t really pursuing the
practical courses, I was pursuing jurisprudence and legal history and things like that, and I liked
that.
MR. HUNT: How much counseling did you get from the law school as to your course
selection and as to your, if you will, your learning path?
JUDGE FISHER: I don’t remember any.
MR. HUNT: I’m not surprised.
-14-
JUDGE FISHER: Probably in the information packets we got connected with course
registration; they made certain recommendations. There were certain requirements of certain
core courses; I forget if I was required to take corporations or whether it was strongly
encouraged, but I took that. I never took labor law or securities transactions or business planning
or any of that sort of thing. I did take a basic taxation course that probably was required, but I
didn’t receive much counseling and there weren’t all that many requirements that we had to
satisfy.
MR. HUNT: Was there some point in law school when your orientation began to shift
away from the academic aspect of law?
JUDGE FISHER: I think at that time I still was interested in the academic aspects and
thought I would maybe one day teach in law school, but, and I don’t quite remember my thought
pattern right now, but I did sign up for trial practice. I took evidence, but that was taught at a
very theoretical level so I didn’t learn how to get any evidence admitted in a court of law, but I at
least did take trial practice and some courses that maybe would serve me in a practical way after
law school.
MR. HUNT: Before we turn to what you did immediately after law school, are there
other recollections or observations about the law school experience that you would like to share?
JUDGE FISHER: I have basically good memories of law school. I think it was a very
competitive place. I think it was especially true in those days that it was a lot easier to go from
Harvard to a big corporate law firm, and although they may not have been consciously pushing
you in that direction, that was the easiest path to follow. One of the reasons for that, I think, was
that because they taught you so few practical skills, you pretty much had to count on serving an
apprenticeship at a big law firm in order to learn how to practice law.
-15-
MR. HUNT: You mean if you hung out your own shingle you would have starved?
JUDGE FISHER: Exactly. There were some clinical courses available. I did not take
any of those, but compared to the number of clinical options there are today, there were very few
at that time.
MR. HUNT: Now, you mentioned that one summer you were a research assistant for
Professor Horwitz. Was that between first and second year?
JUDGE FISHER: It was, and actually I spent part of the next summer working for him.
I got a small grant to do an independent research project of my own, connected to legal history,
and I think I spent three weeks or so at an Indianapolis law firm so they could take a look at me.
I obviously had had in mind at least the option of going back to Ohio or nearby Indianapolis to
practice law, so I had made the connection with that law firm.
MR. HUNT: Well, we know that you went on, or you will tell us that you went on, to
clerkship after law school. Could you tell us about that and tell us how it came about and how
you made the decision to go that route?
JUDGE FISHER: Again, I don’t remember counseling that led me to explore clerkship
options, but for one reason or another I guess I had observed that a lot of people clerked for
judges after leaving law school. I was interested in going back to Ohio and I applied to several
of the justices on the Ohio Supreme Court. I also applied to some of the United States District
Court judges, and I was fortunate enough to attract the interest of Judge Joseph Kinneary. He
was a United States district judge in Columbus, Ohio, and he hired me for a two-year clerkship,
which I began almost immediately after graduating from law school; so I started working for him
in June of 1974. That was a great experience, and I thought it was an ideal bridge between law
school and the real world. I would not characterize Judge Kinneary as a great legal scholar. I
-16-
think he was a very good judge of people and he really ran a tight ship in the courtroom. One of
the things that proved to be very influential to me was that if you were the clerk working on a
matter that took him into court, you were expected to go into court with him, so rather than
staying behind—
MR. HUNT: In the library all the time.
JUDGE FISHER: That’s right, so I spent a lot of time watching evidentiary hearings and
trials, and that really appealed to me; I liked seeing that, I thought I would like to participate in
that, and on some occasions, many occasions, I figured I can surely do better than they’re doing,
so that piqued my interest in becoming a trial lawyer.
MR. HUNT: That’s very interesting; I was wondering about the educational value of
observing counsel in court.
JUDGE FISHER: Both there and at the U.S. Attorney’s Office and here, I tell people
that reading transcripts or watching people in court is often a lesson in how not to do something,
but I’ve been fortunate to see a lot of great advocates as well.
MR. HUNT: Was your appointment as a clerk—did you have any push from either
family connections or political connections, or how did the interview process go and the
selection process go?
JUDGE FISHER: I’d had no connection with Judge Kinneary at all, so my application
just turned up unexpectedly. He never exactly said this but I think my Harvard credentials
probably caught his eye, so he invited me for an interview and that apparently went well; I think
he offered me a job at the end of the interview. I said I’d like to go back and talk to my wife
about this but, you know, it was obvious that that was a great idea so we quickly accepted the
offer.
-17-
MR. HUNT: You used the term “Harvard credentials” and I failed to ask about “Harvard
credentials”; what more can you say about the fact of your Harvard credentials?
JUDGE FISHER: Well, I graduated. I graduated from college Magna Cum Laude. I
graduated from law school Cum Laude, but candor compels me to acknowledge that Harvard
handed out honors liberally, so I can’t claim to have been at the top of either my college or law
school class.
MR. HUNT: Now can you tell us about your next career move after the clerkship?
JUDGE FISHER: Well, as I’d mentioned, I had become interested in becoming a trial
lawyer. I had been applying to a number of the law firms in Columbus, but it was also obvious
to me that the people who got into court most often were assistant United States attorneys, and I
instinctively thought that representing the United States would be more in line with my views of
what I wanted to stand for, and so I applied to the U.S. Attorney’s Office in Columbus, and I
applied to the U.S. Attorney’s Office out here in the District of Columbia. I had a friend who
was out in D.C. and I knew that D.C. had a lot of openings every year, so that that maybe offered
the best prospect for a position. The U.S. Attorney’s Office in Columbus was very small.
People rarely left, and so they didn’t have a lot of vacancies. I think eventually the U.S. attorney
got authority to hire me on a next-vacancy basis, meaning he could hire me but the next time
somebody left they couldn’t fill that spot, but by that time he had dragged his heels so much and
I had the opportunity out here, and I had the sense that this would be better training out here, so I
accepted the opportunity to be an assistant U.S. attorney in D.C., and started that job in June of
1976.
MR. HUNT: It appears that by this point, academic law had been pretty well displaced
by aspirations or expectations of being in court.
-18-
JUDGE FISHER: Probably we shouldn’t say displaced. Probably at that time
postponed, and I had developed the sense that if I were going to teach in law school, it might be
good to know something about the practice of law, and so I decided that I’d pursue either law
practice or being an assistant U.S. attorney for a few years; but I still always had in the back of
my mind that I hoped this would lead at some point to a law school teaching position. So I’d say
deferred rather than displaced.
MR. HUNT: Was the U.S. Attorney’s Office in D.C. a good environment for a fledgling
lawyer, in your experience?
JUDGE FISHER: It was a great environment in a very complicated way. One of the
attractions of the job was you got tremendous responsibility right away. There was more work to
do than a person could responsibly be expected to do. It was like being thrown in the middle of
the lake to see if you could swim or whether you were going to drown. At that time we had very
little formal training, so you would basically tag along with some people who had been there
maybe a month or two longer than you, and initially you’d do certain assignments that might
involve deciding whether or how to charge a crime, maybe going into court for things like
calendar calls.
MR. HUNT: Was there an organized rotation assignment?
JUDGE FISHER: Absolutely. The theory of the office at that time, and the theory that
still prevails today, is that the younger assistants would rotate though various assignments on
roughly a six-or a nine-month basis, the theory being that if we exposed you to the different
aspects of being a prosecutor, by the time you’d been in the office three or four years you’d be
trained in all these disciplines, and you could be a utility infielder. You would have been trained,
so they could send you to any assignment that they needed you to serve in, and at that time I
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made a three-year commitment to the office, and during those three years I rotated through
various assignments. I began my service in the misdemeanor trial section, and so after a few
weeks of non-trial assignments they sent me off to try cases.
MR. HUNT: Well, there can be training and there can be critiquing and there can be
mentoring. If there wasn’t much in the way of training, was there much in the way of critiquing
and mentoring in the U.S. Attorney’s Office then?
JUDGE FISHER: I think at that time the answer is no. There was a fellow named Vic
Caputy who may have held the title of director of training, and he conceived of his job as going
around, visiting various courtrooms, watching people, and then grabbing them later and
critiquing them. He could only cover so many courtrooms in the course of a week or a month,
and there was very little formal classroom-type training or demonstration-type training. Before I
moved to felony trials, I remember we had I think a week of what I would call classroom
training, a combination of explanations and exercises to help us learn various skills, but I don’t
recall much formal training. Most of the learning process, as it turns out, was sort of a banding
together of youngsters who were in over their heads, and we helped teach each other how to do
this. We did have supervisors; you could go to them in the evening and say, “I got this coming
up, how do I do it?” But I wouldn’t say there was a lot of formal training.
MR. HUNT: Let me ask a question which, feel free to put aside. As a distinguished
alumnus of the U.S. Attorney’s Office here, on any occasion have any succeeding U.S. Attorneys
or senior people in the U.S. Attorney’s Office sought the thoughts of you or colleagues of yours
who are similarly alums of that office, as to the organization and operation of the office?
JUDGE FISHER: From time to time, new U.S. Attorneys do introduce themselves and
ask for my advice, since I’ve become a judge. I ended up being in the U.S. Attorney’s Office for
-20-
a very long time, and the office changed a lot while I was there. Although there wasn’t much in
the way of training when I began, now there’s a very vigorous training program, not only for
brand-new people but for people moving into new assignments, and there are various ways of
having ad hoc training; it might be a brown-bag lunch or an afternoon one-hour session after
court, sharing of information on paper or by computer. So the training is just light-years ahead
now of what it was at that time.
MR. HUNT: We can detour from your legal career a bit. During your first period in
Washington, 1976-1983, can you tell us a little bit about the atmosphere of the city, you and your
family’s experience of the area?
JUDGE FISHER: My wife and I lived in Arlington, at a couple different places, during
that seven-year period. A lot of existence was taken up with work; I generally was in the office
at least six, maybe seven days a week. I didn’t necessarily work a full day on the weekends, but
we tended to socialize with other people in the U.S. Attorney’s Office and their families. We
did, bit by bit, get acquainted with D.C. and the museums and monuments and things like that,
but there was a lot of work involved.
MR. HUNT: I get the impression that there wasn’t much time or opportunity for outside
activities or joining or this sort of thing, but was there some of that?
JUDGE FISHER: Not much joining, and then in 1979 our first child, our son Clark,
came along, and so that refocused our existence quite a bit too.
MR. HUNT: Good, I’m glad you mentioned that. I think this would be a wonderful time
just to tell us a little bit about your family, as to when they arrived and where they are now.
JUDGE FISHER: Great. We have two children and we’re very proud of both of them.
Our son Clark is 32 years old now; as I said, he was born in 1979. He’s married and lives near
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San Francisco, in California. He is a district manager for Farmers Insurance Company, which
means that he basically recruits new agents, trains them, supervises them, and directs their
activities. He doesn’t do a whole lot of selling of insurance himself anymore. He and his wife
are going to make us grandparents in November of this year, so we’re very much looking
forward to that. Our daughter is Mandana; she’s about six years younger than Clark, having
been born around Christmastime of 1984. I should say that Clark attended college at Denison
University.
MR. HUNT: Back in Ohio.
JUDGE FISHER: Back in Ohio, a very fine liberal arts college in Ohio. Mandy went to
college at East Carolina University, and then attended three years of graduate school at Boston
University in the field of physical therapy. She completed that graduate study a little over a year
ago, passed her board exams, and is a physical therapist at Children’s Hospital here in the
District of Columbia.
MR. HUNT: Now we can get back to your legal career, if that’s all right. Thank you.
How and why did you make the move, I guess when, how and why, did you make the move from
the U.S. Attorney’s Office in D.C. to that in the Ohio Southern District?
JUDGE FISHER: Basically for family reasons. We talked about maybe postponing my
entry into academic life. I had also thought when I left Ohio and came to D.C. that I would
eventually go back to Ohio, and I considered that to be home, and so I’d made a three-year
commitment to the U.S. Attorney’s Office here, and thought I would probably go back to Ohio
soon after the three years were up, but I liked what I was doing here. I stayed longer and longer,
and it became less likely, I thought, that I’d go back to Ohio. While I was in law school, or
actually just before I began law school, my father suffered a stroke, and it left him with
-22-
expressive aphasia and some physical limitations. My mother had cared for him over a very long
period of time, and it was a situation where the need to care for him gave her strength at the same
time it was wearing her out. My father died in March of 1983, and my mother essentially
collapsed after that. I heard that there was an opening in Columbus, Ohio, for an Assistant U.S.
Attorney, and decided that well, it would enable me to help my mother more and continue doing
the kind of work that I liked to do. I should say that during the time we were here in the District
of Columbia we would drive back frequently to Ohio, to check up on my parents and help as we
were able, but that was really hard, doing it very often, and—
MR. HUNT: With a car full of little children, too.
JUDGE FISHER: Yes, and so it seemed that we needed to be closer by to help my
mother, so when this position in the Columbus U.S. Attorney’s Office opened up at that
particular time it seemed that the obvious thing to do was to move back to Ohio and help out my
mother and reestablish our lives in Ohio.
MR. HUNT: Good. With your time in the U.S. Attorney’s Office in Columbus, were
you doing civil cases, criminal cases, or a mix?
JUDGE FISHER: I was doing criminal cases, mostly grand jury work and trials. We
also did a few appeals; you tended to handle the appeals involved in your own trial cases, but
whether at the grand jury or trial or appellate level, I did exclusively criminal work.
MR. HUNT: Okay, at your time in the U.S. Attorney’s Office in D.C. and your time in
the U.S. Attorney’s Office in Columbus, is there a case or cases that stand out in terms of your
satisfaction or the challenge, that you had the lead in?
JUDGE FISHER: Probably at this time it would make sense to talk about my first period
in D.C. and the period in Ohio; once I came back to the District of Columbia things were quite
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different. We had talked about the fact that when you’re a young AUSA in the District of
Columbia you went through rotations, and one of the rotations was service in the appellate
division. I already had a notion that I would like doing appellate work, but I’d never really had
an opportunity to do it, and sure enough I really did like doing appellate work. During my first
rotation in the appellate division, I was assigned to handle a gigantic appeal that we called the
Hanafi Muslim case1, and I ended up writing a brief that, I forget, I think it might have been one
hundred and sixty-five or one hundred and seventy pages long. I had I believe twelve or thirteen
opponents on that case, and after the briefing we had an argument in the District of Columbia
Court of Appeals that went on for about five and a half to six hours, so I’d have to say that that
was the preeminent case in my early years.
MR. HUNT: So that was appealed to the court where you now sit—to the District of
Columbia Court of Appeals.
JUDGE FISHER: Exactly, and perhaps I’ll explain a little bit to people who did not
remember this, but, in I think it was the spring of 1977, there was a group of people that were
referred to as Hanafi Muslims; these were African Americans who had adopted the Muslim
religion. They had some complicated grievances because of some murders that had taken place
in their family, and they decided that they would avenge their grievances by taking hostages at
three different places in the District of Columbia. They took some hostages at the Islamic Center
up on Massachusetts Avenue, at B’nai B’rith headquarters, and at the City Council building. I
forget now how many people were killed, I think one or two. There were a number of people
injured; Marion Barry was a city councilman at that time, and he was shot and wounded, and
they held hostages for I believe a period of 39 hours or so, until they were finally persuaded to
surrender. That ended up being a very long trial in the Superior Court.
1 Khaalis v. United States, 408 A.2d 313 (D.C. 1979).
-24-
MR. HUNT: Were they being tried on murder charges?
JUDGE FISHER: Among other things: kidnapping and a variety of charges.
MR. HUNT: Capital charges?
JUDGE FISHER: Actually no. At that time, well there was not then and there is not now
a death penalty available in the local courts of the District of Columbia. They were all
convicted; some of them got very, very long sentences, longer than any individual could ever
completely serve, and then it resulted in a complicated appeal. So the handling of the Hanafi
Muslim appeal was probably the highlight of my early years in the District of Columbia. In part
as a result of that, and in part because I really, really liked doing appellate work, as it turns out
better than I like doing trial work. After I’d done trial work for a few years, I asked to go back to
the appellate division as a senior assistant, a more permanent appellate assistant, and I eventually
was allowed to do that, and soon after that I became a supervisor in the appellate division, first a
deputy to John Terry, who was chief of the appellate division at that time; he’s now a senior
judge of this court. Then from 1982 till the time I left in 1983 I was a deputy to Mike Farrell,
who is now a senior judge of this court. So that last probably three years of my time in D.C.,
from 1980 to 1983 approximately, I was a deputy chief of the appellate division, and during that
time I handled some en banc arguments in both the D.C. Circuit and in the D.C. Court of
Appeals. Some of them might be worth a mention.
MR. HUNT: Thank you. Just to complete the record on the appeal of the Hanafi Muslim
case, the outcome of the appeal was?
JUDGE FISHER: The convictions were affirmed.
MR. HUNT: Thank you. Moving on, and just perhaps finishing the Ohio phase, you left
the U.S. Attorney’s Office in Columbus when, to do what?
-25-
JUDGE FISHER: I left in June of 1986, and I became of counsel to a distinguished law
firm called Vorys, Sater, Seymour and Pease. They were basically a corporate law firm, one of
the larger firms in Ohio, and actually, as I recall, I had a chance to join them when I left my
clerkship with Judge Kinneary. I decided instead to come be an assistant U.S. attorney, but then
there was an opportunity to go there in 1986 and I figured, well, I wasn’t getting any younger, if
I was ever going to do this, this was the time, and so I went over there in 1986 and stayed till
about April of 1989 I believe.
MR. HUNT: And again, were you doing litigation at Vorys, Sater?
JUDGE FISHER: Litigation, but not trial practice. I did participate in two trials, as I
recall. One I sat at counsel table but, I didn’t get to speak in court. Another trial I co-tried with
another lawyer, but I think I participated in only two trials in essentially three years. Most of my
activity was related to discovery or motions practice, those sorts of things.
MR. HUNT: Did you have any outside activities during this period, in the bar or church
or organizations during this period in Columbus?
JUDGE FISHER: Not much. We tried to spend time with our children. We regularly
attended church, but I was not really a joiner in Columbus, either.
-26-
ORAL HISTORY OF
HONORABLE JOHN ROBERT FISHER
Second Interview — December 20, 2011
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 John R. Fisher, Associate Judge of
the District of Columbia Court of Appeals. The interviewer is Cecil Hunt.
(TAPE 2)
MR. HUNT: Judge Fisher, would you please tell us when you were appointed chief of
the appellate division of the Office of the U.S. Attorney in D.C.?
JUDGE FISHER: That was in 1989. I think I officially became chief in June of that
year.
MR. HUNT: How did it happen that you got that position?
JUDGE FISHER: Well, before I left the office in 1983, I had been a deputy chief of the
appellate division for about 3 years, and then, as we discussed earlier, I went back to Ohio for a
few years. I missed doing appellate work. I’d stayed in touch with the office and knew that the
then chief of the appellate division, Mike Farrell, who became a judge of this court, had been
nominated to be a judge and if things went well they would need a new chief of the appellate
division. So I applied for that, lobbied pretty hard to get it, and was fortunate enough to be
selected.
MR. HUNT: Good. It was Judge Farrell you succeeded, and you had worked with him.
JUDGE FISHER: I had, yes.
MR. HUNT: Tell us a little about the size of the office when you joined it, and the scope
of its responsibilities.
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JUDGE FISHER: Well, I joined the office on two occasions. I joined in 1976, and I
believe the office consisted of about 150 attorneys at that time. When I rejoined in 1989, we
were somewhere in the area of 350 attorneys, so the office had grown considerably in size.
MR. HUNT: That’s amazing, 350 attorneys in the D.C. U.S. Attorney’s Office.
JUDGE FISHER: That’s right, and it seems odd now, but in those years there was
money available for law enforcement and I think soon after I rejoined the office there was a
considerable hiring effort, but either when I rejoined or soon thereafter the total number got up to
about 350.
MR. HUNT: What was the size of the appellate division?
JUDGE FISHER: It varied a little bit over the years. I think when I first became chief
we had 22, 25 attorneys, something like that. I persuaded the U.S. Attorney at the time that we
needed more resources to be able to do our appellate work in a timely fashion, and, because there
was a hiring surge going on, there were more resources and I was fortunate to get some of those.
By the time I left the office, we generally had 35 attorneys in the appellate division.
MR. HUNT: You mentioned you successfully persuaded the U.S. Attorney. Who was
the U.S. Attorney at the time you rejoined the office?
JUDGE FISHER: That was Jay Stephens.
MR. HUNT: Tell us a bit about the appellate division chief’s role; it sounds like there
was a large enough office that you had kind of a management function. Tell us about the
management and the lawyering aspects of the chief’s role.
JUDGE FISHER: There are a lot of different aspects to being the appellate chief. There
is a management role, there’s a supervisory role, in terms of sort of small picture, supervising
people on specific projects. There’s a very substantial teaching role there, and I’ll elaborate on
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that in a minute. And then I also tried to emphasize a lot of giving advice to trial attorneys,
before they created an awful mess that would be hard to clean up on appeal. And then one of the
things that was hard to do but I tried very hard to do is to brief and argue important appeals
myself. I wanted to be the primary appellate advocate for the office in very important matters,
and so I tried to juggle all those different roles. One thing I should explain about the appellate
division is that the bulk of our staff was made up of attorneys who were rotating through the
division for a period of maybe six or eight months, and our job was to teach them some criminal
law, to teach them how to be a persuasive legal writer, to teach them how to be a persuasive oral
advocate, and then they’d go off to another assignment. And so there is a very substantial
teaching and training role because of that phenomenon. At the same time, I tried to recruit and
keep in the appellate division experienced attorneys who had been there and who had substantial
skills and could handle some of the more serious cases, but the training role was very important,
not only training the appellate attorneys, but I was often a part of efforts to train attorneys in
other parts of the office.
MR. HUNT: Trial practice, mentoring?
JUDGE FISHER: Yes.
MR. HUNT: Now, of course you needed the cooperation of the U.S. Attorney in taking
on that role. Was that formalized, or did you and your staff simply take advantage of openings?
JUDGE FISHER: It was formalized, at least as far as training the office at large. When I
first started in the office in 1976, there was very little formal training at all. This time around
there was a training director; there was a staff that organized training. With an office that large,
and new people joining the office several times a year, it really required a big effort to provide
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meaningful training to them, and so the training director would often call upon people in the
appellate division, including myself, to contribute to those classes.
MR. HUNT: Did you inherit a deputy or deputies, or were you able to recruit your own
or select your own?
JUDGE FISHER: Well both. I inherited deputies, and then over the course of time some
of them left. I think I may have been able to get one more deputy position, so from time to time I
was able to select new deputies, as the old ones moved on to other things.
MR. HUNT: And you argued some cases yourself?
JUDGE FISHER: Quite a few.
MR. HUNT: Which ones did you reach out for? What type of case did you particularly
want to take on your own?
JUDGE FISHER: Well, it depended. If there was something that was very important to
the office, either because it was a high-profile case or because there was an issue that would have
a lot of future ramifications, I always had to figure out whether I was the best person to do that,
not only in terms of skills but also availability, could I devote the time to do that. And then from
time to time I just got restless and I looked around for something that was available that I could
brief and argue myself.
MR. HUNT: When the case involved representation of an agency, were there ever
instances in which agency counsel would be involved in briefing or even arguing an appeal?
JUDGE FISHER: Very seldom, and I need to explain that the appellate division really
handles only criminal matters, and agency counsel are more often involved when it’s a civil
matter, and the civil appeals were handled out of the civil division of the U.S. Attorney’s Office.
Now from time to time, we would have a matter that related to a parole issue, so we might
-30-
consult with the U.S. Parole Commission and their general counsel. I cannot remember an
instance where one of those counsel argued a case, but they were often consulted in preparing the
brief and preparing for oral argument.
MR. HUNT: During your years as chief of the division was the caseload bearable,
unbearable, or manageable? What would you say?
JUDGE FISHER: It was never manageable in the sense that it was easy, but I think we
did succeed in wrestling it to the ground in the sense that we adopted some good management
practices. In a typical year, we would probably file 500 or 600 briefs. I think one year it got up
to 700 briefs in a single year, and often there were motions and other things that didn’t add to
that tally. In a typical year we would argue maybe 150 to 200 appeals, and so that was a
substantial effort—
MR. HUNT: Indeed
JUDGE FISHER: to find the resources to brief those and to prepare people for oral
argument.
MR. HUNT: I assume you had considerable leeway and discretion in hiring and
selecting attorneys to come into the office—well not the ones rotating, but people being brought
into the regular staff. Is that correct?
JUDGE FISHER: Well basically the answer to that is no. We almost never hired
anybody from the outside to work exclusively in the appellate division. The normal process was
that you look at people who had been in the office for several years, who had been through the
general rotation program, but seemed to have a special talent and an affection for appellate work.
If they indicated they would like to come to the appellate division in a more senior capacity, then
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there was often a competition for their talents. So I was involved in those efforts, of course, but
as I said we didn’t hire from the outside.
MR. HUNT: I’m asking you to reach back. Are there particular cases, either that you
argued or the office handled while you headed it, that stand out in your recollection and for one
reason or another you think would be worth mentioning for this oral history?
JUDGE FISHER: There are several, and I talked about how I’d often be involved in
appeals that presented a programmatic or long-term issue for the office, and one of the things
that happened under Jay Stephens, and this was really, I think, encouraged by Attorney General
Thornburgh at the time, was an effort to bring more and more cases into federal court, to take
advantage of the higher penalties for gun cases and drug cases, and that involved in the District
of Columbia not only a change of policy going forward, where we would—let me back up. As
U.S. Attorney here, you have the choice of whether to bring a case in the local court system (in
the Superior Court) or in the U.S. District Court, and that’s an option that most U.S. Attorneys do
not have. Usually a U.S. Attorney has to decide whether to take the case or defer to the local
prosecutor. Well, here the U.S. Attorney is the prosecutor, so he makes a decision whether to
pursue a case in Superior Court or District Court. When there was this emphasis on bringing
more and more cases in District Court, it was decided that we would take a lot of cases, I believe
there were dozens of them, I forget the exact number, cases that were already pending in
Superior Court, and we would dismiss them in Superior Court and re-file in U.S. District Court,
and that created all sorts of protests. The principal protest was that the U.S. District Court judges
did not like having these cases. They thought many of them were beneath their dignity—just a
gun, a small amount of crack cocaine—but the penalties could be pretty severe. So there was a
lot of litigation about that, and that resulted in an en banc argument that I handled about whether
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or not we had violated various statutes and provisions of the Constitution by transferring those
cases over to federal court. We won the case; I count that we won it 5½ to 5. One judge voted in
our favor but he made it very clear he didn’t care for what we were doing. That was one case
that was very important.
MR. HUNT: Under what case title, was that particular one?
JUDGE FISHER: The case title was Mills & Wonson v. United States; maybe as we tidy
up I can get you the citation to that.2
JUDGE FISHER: There were a number of battles over the years respecting the United
States’ sentencing guidelines, and so I handled several appeals dealing with that. I feel a little
chagrin now spending the flower of my youth defending the sentencing guidelines, and then the
Supreme Court says at the end of all this that they really are not buying in after all, and maybe all
that effort was wasted, but there were a number of cases I argued trying to sort out what the
guidelines meant, whether various provisions of them were valid or violated constitutional
principles, and so there were some of those.
MR. HUNT: Do you recall any appeal where you lost that you still feel that you should
not have lost, if that’s not too impertinent a question?
JUDGE FISHER: I’m sure there were some and they don’t pop to mind right now.
There are a couple of cases that you may have heard of that I ought to mention. One involved a
spy named Jonathan Pollard, who had been charged with turning over classified information to
the Israeli government. He had pled guilty, but then after he’d been in prison for a while he
decided to attack the validity of his conviction, and I handled the appeal in that case.3 That was
not an en banc case but it was argued before a panel, and I happened to argue against Ted Olson,
2 United States v. Mills, 964 F.2d 1186 (D.C. Cir. 1992).
3 United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992).
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who became Solicitor General of the United States sometime after that. But that was a
prominent case that I argued principally because of the prominence of it.
Another case that I argued involved Congressman Dan Rostenkowski. Our office was
prosecuting him, and there were some pretty esoteric issues about how the speech or debate
clause of the Constitution applied to criminal prosecutions, and did that preclude us from using
certain evidence in our prosecution. I argued that case and substantially won it. I think they said
some things in the opinion we didn’t agree with, but we substantially prevailed.4
In this court, I argued an en banc case involving the wording of the reasonable doubt
instruction. Various judges always thought the language of that instruction was pretty arcane
and surely they could do better, but then when they tried to do better it would raise all sorts of
issues about whether they had left something out or maybe had reworded something just not in
the right way, so we had an en banc argument about that.5
I had an en banc argument dealing with the application of the Miranda Doctrine6 and
over the course of my time, not only as appellate chief but also a deputy chief, I think I argued 16
en banc cases, either before the D.C. Circuit or before this court. So those cases come to mind.
One of the last cases I argued before I became a judge involved a concept called “urban
warfare,” and it basically focuses on when people are having a shootout on the street, and they
happen to kill an innocent bystander, what form of murder is that, and do you prosecute only the
person who fired the lethal bullet, or can you prosecute all the participants in the gun battle on
the theory that they were jointly creating the dangerous situation that resulted in a death, and so I
argued that case toward the end of my time.
4 United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995), petition for rehearing denied with opinion, 68 F.3d
489 (D.C. Cir. 1995).
5 Smith v. United States, 709 A.2d 78 (D.C. 1998) (en banc).
6 Jones v. United States, 779 A.2d 277 (D.C. 2001) (en banc).
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MR. HUNT: Did the decision in that case become law in the federal courts that
continues to be applied?
JUDGE FISHER: Well, it affects the local court system. It was a case that was argued in
this court. It’s the case of Roy & Settles v. United States and I’ll get you the citation for that as
well.7
MR. HUNT: Speaking now from your perspective as a judge, can you think back and
name any judges before whom you argued who made a strong favorable impression on you, from
the way they handled their bench?
JUDGE FISHER: There were several. I think out of diplomacy I’ll not comment on the
judges of this court, but in some of my early days I argued before judges such as David Bazelon
and Skelly Wright, but the one who particularly impressed me during those years was Carl
McGowan. He was a very courteous judge, very sensible and level headed, and I always
admired both his approach in the court room and the tenor of his opinions. I also thought highly
of Malcolm Wilkey, who was a D.C. Circuit Judge.
Before I left D.C. and went back to Ohio, I had the opportunity to argue a couple of
important en banc cases, and on the panels in those cases were now Justice Scalia and Robert
Bork, who was on the court at that time.8 So I remember those arguments. In more recent years
I had the chance to argue frequently before Ruth Bader Ginsburg, who is now on the Supreme
Court. I also have had the chance to argue before John Roberts, who is now Chief Justice of the
United States. I particularly admire Merrick Garland, he became a judge later in my tenure, but
I’ve been able to argue before him on a few occasions and I particularly admire his approach to
the task of judging.
7 Roy v. United States, 871 A.2d 498 (D.C. 2005).
8 United States v. Byers, 740 F.2d 1104 (D.C. Cir. 1984 (en banc); also United States v. Cohen, 733 F.2d 128 (D.C.
Cir. 1984) (en banc).
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MR. HUNT: You are generous and helpful with your recollections there. During this
period, while you were chief of the appellate division, did you have any opportunity for activities
outside the office—bar activities or other organizations?
JUDGE FISHER: One of my principal bar activities was serving on the legal ethics
committee of the bar, and that’s a group that met generally on a monthly basis. We would
receive inquiries from lawyers about how the rules of professional conduct applied to a particular
situation they described, and we would on occasion just give a quick answer, but our primary
task was to write opinions, which are then published by the bar.
MR. HUNT: Which we’ve all read cheerfully!
JUDGE FISHER: So I served on that committee for six years, which was the maximum
number. Actually, before that, the D.C. Court of Appeals adopted a new version of the rules of
professional conduct that went into effect in I think January of 1991, and I was involved in lots
of efforts to get the word out, and I’d provide training to lawyers and our group particularly
focused on government lawyers, so I was involved in some of those efforts. And then toward the
end of my time in government I served as treasurer of our church for five years, so that took up a
good bit of time. Those were my principal activities, apart from work.
MR. HUNT: Are there any other highlights from the period when you were Chief of the
Criminal Appellate Division that I haven’t touched on and that you would like to touch on before
we move forward in time?
JUDGE FISHER: Well, it was a wonderful job to have. I may have mentioned earlier
that for someone whose been infected with the appellate virus, being chief of the appellate
division of the U.S. Attorney’s Office was a terrific job to have because it allowed you to devote
your efforts to appellate practice—
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MR. HUNT: It gave you an opportunity for cherry picking, in the best sense of the word.
JUDGE FISHER: Yes, indeed. It gave you quite an opportunity to train other lawyers,
and one of the things I especially tried to do was to select issues at an opportune time for
litigation so maybe we could change the law in the a way that was favorable to us. That
sometimes involved decisions about, “well, we don’t like what the judge did in this case but this
is not the time to really fight it out, let’s look for a more favorable case.” Sometimes you’d
make the same arguments again and again, as the opportunity arose, and then eventually they’d
sink in and bear some fruits.
MR. HUNT: That’s an interesting comment that you make about the selection, the
decision as to whether to appeal certain cases, I’m just wondering, was that left exclusively to
you or to the appellate division, or would there be instances in which the U.S. Attorney or top
people in the office would influence that decision?
JUDGE FISHER: For most cases, well let me back up. It depends on which side of the
house you’re talking about, and for reasons that I think are primarily historical, although don’t
make perfect sense, whenever we were going to take an appeal in the D.C. Circuit, or whenever
we were going to seek rehearing en banc in the D.C. Circuit, we had to not only get the approval
of the United States Attorney but we had to get the approval of the Solicitor General of the
United States, because the Solicitor General was concerned about how the law looked throughout
the country, trying to make sure that law was consistent, as far as the Department of Justice was
concerned, and trying to make sure that people in the hinterlands didn’t screw things up too
badly. So there was a fairly rigorous process one had to go through to get permission to take a
government appeal or to get permission to seek rehearing en banc in the D.C. Circuit. I think for
primarily historical reasons, they did not exercise that oversight over the local court system, so
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when we were deciding whether to take an appeal from the Superior Court to the D.C. Court of
Appeals, or whether to seek rehearing en banc in this court, that decision was primarily up to me.
I had to make a judgment as to whether it was important enough to take up the U.S. Attorney’s
time in consultation, but I didn’t consult the U.S. Attorney in each instance because it wasn’t that
important a question.
MR. HUNT: And when it was an appeal from the Superior Court as opposed to the
District Court, the Solicitor General’s Office would not be involved at all?
JUDGE FISHER: That’s correct. And so we had that process deciding how to take
appeals, seek rehearing en banc, try to shape the law. Often you were not all that concerned with
the outcome of the individual case but were really concerned about what the law would say
going forward. Another effort that I put a lot of energy into that I’ve referred to briefly as what I
call preventive appellate advocacy, trying to get trial attorneys in the mindset of thinking what
the record would look like on appeal, and we made a lot of resources available to consult with
trial attorneys, so they would often stop by unexpectedly seeking advice. Oftentimes they would
call from the courtroom, some crisis had arisen and they needed a case cite or they needed advice
on what to do, and my deputies and I would spend a lot of the time during the day giving that
sort of advice with the hope that ultimately it would be good for the office as a whole, and also
with the hope that if we sort of made some strategic judgments at the trial level, then it would be
a lot easier to defend the conviction on appeal, so we invested a lot of time and effort in that sort
of thing.
MR. HUNT: That’s very interesting. Shall we move forward in the timeline?
JUDGE FISHER: Indeed.
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MR. HUNT: Then we get to your nomination and confirmation as associate judge of the
District of Columbia Court of Appeals. When did this occur, and as best you can tell us, how did
it come about?
JUDGE FISHER: Well, in order to become a judge on the local courts you cannot be a
shrinking violet; you don’t wait for people to come to you. We have a process that is articulated
in statute. There is a judicial nomination commission, and whenever a vacancy occurs, on the
trial court or on this court, that’s announced. The commission solicits applications; they then
screen the applications and conduct interviews, and the commission then selects three names for
each vacancy and it forwards those names to the White House, and then the White House has to
choose a nominee from the names that have come from the judicial nomination commission. So
you don’t wait for somebody to come seek you out, you have to apply for the job. In 2005, I
think, there was a vacancy on the court, and, actually it was 2004, the first vacancy that I applied
for, and I decided that I would apply for the vacancy and see what happened.
MR. HUNT: Let me interject, I think, a related question. If my understanding is correct,
in effect the Home Rule Act did not delegate to the District any of the function or any authority,
with respect to the naming of judges. Is that correct, and is that why the position on this court is
handled out of the White House without any involvement of the council or other arm of D.C.
government?
JUDGE FISHER: That’s right. Actually two things happened in the early 1970s, and
one was the Court reform and reorganization act. Up until the very early 1970s, although there
was a local court system, it had very limited authority, and most of what we would call “street
crime” was prosecuted in the U.S. District Court. So the U.S. District Court judges would have
jurisdiction not only over the typical federal matters—big drug cases, mail fraud, bank robbery,
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that sort of thing—but the district judges would try rapes and murders and street robberies, things
like that. There was a Court of General Sessions, but it had primarily misdemeanor jurisdiction
and then somewhat limited civil jurisdiction. There was something called the Municipal Court
of Appeals, but that had limited jurisdiction as well, and its decisions were reviewable by the
D.C. Circuit on basically a certiorari basis. And so in the late 1960s the White House decided
that it would propose the creation of a robust local court system, and that led to the creation of
the Superior Court and it led to the upgrading, I’ll say, of the District of Columbia Court of
Appeals. So this court became the highest court of the District of Columbia. Our decisions were
no longer reviewable by the D.C. Circuit. If anybody was going to review our decisions it would
be the U.S. Supreme Court. So at about the same time, what we generally call the “home rule”
effort was going on, but I think it was primarily in connection with Court Reform and
Reorganization Act, that Congress decided that they would retain in the President, the
appointment authority for judges of the local courts, and so judges of the Superior Court and
judges of this court are nominated by the President, confirmed by the Senate, and the Mayor and
the Council of the District of Columbia are not involved that process.
MR. HUNT: Thank you, I think that the digression was very helpful brief explanation of
the history and structure of the D.C. Courts. Back to your elevation to the bench—was there
anything that stood out in the confirmation process, or was it not an event?
JUDGE FISHER: Well, I probably ought to fill in more about how I got to be
nominated, and it was in many ways a very uncomfortable process because to succeed before the
commission you not only have to fill out a lot of paperwork to explain your background and
experience and everything, but you also need to be a salesman for yourself. You need to recruit
people to recommend you and then it is advised that you try to visit with each of the
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commissioners individually. Eventually there is a group interview before the commission, but
it’s recommended that you go around and try to visit each commissioner privately if you can.
Not every commissioner will sit down with you privately but most of them do, and so that was a
very uncomfortable process, sort of trying to sell yourself. I was raised in Ohio to be a modest
young man and not to be a self-promoter, and this was kind of awkward.
MR. HUNT: Well self-promotion aside, in any instances were there inquiries into, say,
judicial philosophy, that you thought might be beyond line?
JUDGE FISHER: Nothing that went beyond the line. People were of course very
concerned about one’s approach to being a judge, and one of the questions I encountered a lot
was, “well, you’ve been basically a lifelong prosecutor. What are defendants and defense
attorneys going to think when they look up and see you on the bench?” So that was something I
needed to address. I was fortunate in my first effort to be included among the three candidates
whose names were sent to the White House, but the White House nominated somebody else for
that first vacancy. Unexpectedly, another vacancy came along, and there’s a very odd system
here, but because the first vacancy had not yet been filled I technically was not eligible to be
recommended again by the commission, yet under the statute my name was still before the White
House, and the White House has the ability to reach back to a previous list if that vacancy has
not yet been filed, so the new vacancy came along and they remembered me and so they picked
me from the prior list and I was nominated for the second vacancy that came along.
MR. HUNT: That sounds efficient and certainly not inappropriate.
JUDGE FISHER: Well, it’s kind of bizarre, but it’s part of the statutory process. So then
the confirmation process went relatively smoothly. One of the things that affects confirmations
to this court and to the Superior Court is that our nominations do not go to the Senate Judiciary
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Committee but they go to the Committee on Homeland Security and Government Affairs, which
has the portfolio for the District of Columbia. And so a lot of the partisan wrangling that you
read about a lot dealing with the nominees to the federal courts that occurs before the Judiciary
Committee does not typically occur with our nominations.
MR. HUNT: News to me, thank you.
JUDGE FISHER: So it was mainly a process of filling out a lot more paperwork,
interviewing the staff at the Senate committee, and then waiting for them to pay attention to my
nomination, but that did occur in what in retrospect seems like a fairly timely fashion. I think I’d
been nominated in June of 2005 and was confirmed in October of 2005.
MR. HUNT: With your background as an appeals advocate, was there still a learning
curve when you ascended the bench, a learning curve as a judge, how did that period evolve?
JUDGE FISHER: There was a very substantial learning curve. I probably was as
familiar with the workings of this court as a lawyer can be. I’d been appearing before the court
for close to 20 years, off and on. Some of the judges of this court I’d worked with in previous
jobs, but one of the things that really shaped my first few years on the court was that I had to
recuse from most criminal cases involving the United States, so as a result I had a pretty small
docket of criminal cases and a very large docket of civil cases and administrative reviews and
things like that. So I was not allowed to work, for the most part, in my area of expertise—
MR. HUNT: It was probably an advantage for your growth as a judge.
JUDGE FISHER: Well, it has been an enormously rewarding period of growth. It was
very hard, in that I had to learn to be competent in areas that I had not practiced in before, and
there was a fairly steep learning curve in a lot of those things, so I would have occasional
criminal appeals if they were really recent, had not been percolating in the U.S. Attorney’s
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Office while I was there, or if they involved juvenile matters, which are prosecuted by the local
Attorney General’s Office, but I was doing a lot of civil cases, a lot of administrative reviews,
and that really took a lot of hard work to try to understand those cases.
MR. HUNT: As a judge with a case coming before you for oral argument, how do you
go about preparing for oral argument—would be question one. I guess question two would be
what are you trying to accomplish during the course of oral argument?
JUDGE FISHER: Well, I think, from the point of view of all of the judges on this court,
one of the primary benefits of oral argument is that it presents sort of a deadline, at which all of
the judges need to be well-prepared, because immediately after the argument we go into
conference and we take a tentative decision about how the case is going to come out, so ideally
all three judges will be well-prepared at that time, and so one of the principal benefits of oral
argument is that at one time and place all the judges are equivalently prepared and ready to make
a decision. As far as the argument itself, I think we’re seeking clarification. We’re seeking a
comfort level; that is, if a party is asking us to take a certain position in this case, what kind of
trouble will that get us in down the road, how far-reaching is their argument going to be, and just
satisfaction that the argument they’re asking us to adopt is well supported in the case law and in
the record. A lot of the questions we ask are trying to clarify factual things about the record.
You sort of put this spin on what happened, but demonstrate to us that that’s a fair reading of
what happened in the record. Often people will be asserting things that are not in the record, and
thus we’re not supposed to consider them.
MR. HUNT: On that point, are you really fully dependent on opposing counsel to point
out mis-citations or misuse of the record or is it ever something that you would have your clerks
check on.
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JUDGE FISHER: Yeah, we often go back to the record or the transcript, depending on
the kind of case, and try to verify the accuracy of the representations. Sometimes opposing
counsel will point them out, but not always, and so sometimes we catch those glitches on our
own.
MR. HUNT: Glitches may be putting it kindly.
JUDGE FISHER: Well, I think sometimes they are truly glitches, and other times it may
be an effort to maybe distort things a little bit. In terms of my individual preparation for oral
argument, I always read the briefs myself, and in many instances I read them more than once, but
what I will typically do is ask my law clerk, one of my law clerks, to read the briefs and I will
read the briefs too and then after we’ve both done that we will talk about the case, and one of the
things that shapes our approach to oral argument here is that, unlike in many courts of appeals,
we know in advance which case we’re assigned to write, so you take a special care in preparing
for the cases that you’re assigned to write and you feel more comfortable devoting increased
resources to those cases. So I’ll have the law clerks read the briefs, I’ll read the briefs, we’ll talk
about the issues, we may do some preliminary drafting to try to get things worked out in our
minds about what the facts are and what the legal issues are. And so I think it’s fair to say that
all the judges of this court are well-prepared when we go into oral argument.
MR. HUNT: Now you mentioned the kind of pre-selection of which judge will be
writing which case, but that suggests a selection in advance of the judges who vote on the
decision. How does that work?
JUDGE FISHER: Well, it’s still in part a mystery to me, but the important thing to
emphasize is the judges themselves have no say in what they’re assigned to write. I think there
are two operations that go on independently of each other. Somebody out there decides which
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judges will sit together on a particular day and somebody else working independently will decide
which cases are going to be heard on those days, and then there’s some sort of random selection
about who will be assigned to case number one, case number two, and case number three, so
there’s no opportunity to cherry-pick the cases that we will work on.
MR. HUNT: That is interesting. I don’t know if it’s possible to reach back and come up
with a recollection of this, but, as to questions that you raise during oral argument, do you have
any sense as to how many of them have been formulated in your mind or your notes in advance
of argument and what proportion occur to you in the course of argument?
JUDGE FISHER: It’s hard to say. In my early months, and maybe still even my early
years as a judge I was more apt to prepare a list of potential questions in preparing for
argument—not that I would ask them all, but try to formulate things that I thought were
important to address. Now I’m less apt to write anything out in advance, but I think maybe I’ve
become more adept at doing it mentally. Probably most of the questions I ask I’ve thought about
in advance, but a lot of them come up just in the spur of the moment. An advocate will say
something which will spark you to say, “well wait a minute, how can that be?” and “how do you
reconcile that with this legal doctrine or this portion of the record?” So, at least a significant
number of the questions I think are spontaneous, a reaction to what an advocate said or maybe a
reaction to what one of the other judges had said.
MR. HUNT: What goes into your decision to write a dissent?
JUDGE FISHER: Well, I should say that I write very few dissents. I generally feel that
I’m not God’s gift to jurisprudence and people are not just hanging out there waiting to learn my
individual views, so I write few dissents and I write few concurrences. I believe our primary
goal ought to be to make the law, make the individual decision, as clear as we can, and having an
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extra opinion out there often detracts from the clarity. When I do write a dissent I have to feel
pretty strongly that the decision is wrong and that it is worth my while to state why I think it’s
wrong. I think you’ll see that the judges of this court do not dissent all that often, and often it’s
more a process of uncertainties or disagreements which will be worked out in the drafting
process, so that the majority opinion ends up being something that, if you’re not necessarily wild
about it, you’re comfortable enough with it that you will remain silent. So a lot of the
disagreements, the uncertainties, are worked out in the drafting process, and often I will go along
with an opinion even if I disagree because I know I’m not going to change the result, I’ve had
my say and I’ve failed to persuade the other judges. I have to think “well, what good is it going
to do for me to voice a dissent?” Occasionally I think it’s worth the effort, but as I said I don’t
write separately very often.
MR. HUNT: Case conferences can be pretty exciting occasionally?
JUDGE FISHER: Actually, the conferences themselves generally do not get all that
exciting. It’s the effort to write it down that often sparks more comment, and sometimes you
will think that “yeah that sounds like the right decision in this case,” but then when you see a
draft you’ll think “hmm, I didn’t bargain for that.” And so I think more effort goes into the
process of commenting on draft opinions than necessarily goes into the conference.
MR. HUNT: That’s interesting. From your time on the court, do you have any wise
words for advocates appearing not necessarily before this court but you’ve talked about when
you were in the U.S. Attorney’s Office, training trial attorneys for their advocacy. What advice
might you give advocates, based on your experience on the bench?
JUDGE FISHER: One piece of advice is that you need to know your case backward and
forward. I think what really disappoints me and disappoints other judges is when I know your
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case better than you do, and that should never happen. The advocate ought to know the facts
better than we do and because they’ve had more time to work on this individual case they ought
to know the legal framework better than we do. Another thing is that you need to put a lot of
preparation into getting ready for oral argument. One of the things that I always urged as an
advocate and tried to do myself is in the preparation, step out of your advocate role, try to
identify all the problems with your case, try to anticipate the questions that a judge might ask,
and try to be prepared to give a satisfactory answer to those questions. So that involves a lot of
self-criticism, I think, being able to set aside the fact that you’ve convinced yourself you’re right
and anticipate all the pitfalls, and it also requires a lot of collaboration from colleagues, so I think
moot courts are indispensable. When you work for an institutional litigant you have colleagues
around who help you prepare for oral argument; that’s very hard for sole practitioners or people
in small firms to do because often there just aren’t the resources available. But I think those two
things are important; having a thorough knowledge of your case, having thought through your
case and anticipated questions, and just the style of argument I think is just very important.
You’re not up there to regurgitate your brief. You’re not up there to give a speech. You’re not
giving a closing argument to the jury. Ideally you’re engaging in a conversation with the judges
in a pretty conversational style with good eye contact. When I grew up I did not have a high
opinion of salesmen, but when I think critically about the role of an appellate advocate I think
you have to be in many ways a salesman. You have to be able to look somebody in the eye, you
have to be able to state sincerely to them your view of things, you have to be able to respond
candidly to questions they have about the product you’re selling, and I think a lot of people who
come into appellate courtrooms don’t approach things in that way.
MR. HUNT: May I see if I could translate that into—“some style without histrionics”?
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JUDGE FISHER: Exactly. I have no use for oratory. We had an argument the other day
where people commented that maybe the lawyer just got a little too emotional and it wasn’t
particularly helpful to the cause, but you know the art of persuasion is something that takes
practice.
MR. HUNT: Going further away from the workaday, are there reforms that you would
like to see in the court system as it exists here in the District of Columbia or more generally from
your experience?
JUDGE FISHER: Well, there are a number of challenges that I think we’re dealing with.
I should begin by saying I think the people of the District of Columbia are very well served by
the Superior Court and by our court. We have very conscientious judges who bring a lot of
talent and experience to their jobs. One of the principal challenges is the volume of the work,
both in the trial court and here. One of the challenges the Court of Appeals is dealing with is
trying to manage the volume of the work in a more expeditious fashion. It can take years for an
appeal to migrate from a notice of appeal to a final decision, and we are working very hard to try
to figure out how to deal more efficiently with the easier cases and how to conserve resources for
the more challenging cases. I think in the last few years we’ve made a lot of progress on
becoming more current, but we’ve got a long ways to go and it encompasses things from how
long it takes to prepare a transcript so people can then write their briefs, how long we allow them
to write their briefs, how quickly we get to argument after the briefs have been finished and of
course after argument how long it takes us to write the opinion. I think we’re doing a lot better
at the latter stage, how long it takes us to get an opinion out, and our statistics are looking better
and better. I think in the earlier parts of the process there are still some useful changes we can
make.
-48-
MR. HUNT: May I ask specifically about delay in the preparation of the transcript. Is
that strictly a matter of resources?
JUDGE FISHER: I think in large part it is, yeah. Sometimes you have to get the
attention of the lawyers to focus on what they need and sometimes there are delays that, oops,
they set out to write their brief and discover they don’t have a transcript that’s essential, but it’s
in large part a question of resources and technology. I think now we’re getting to the point where
we will get more and more transcripts in electronic form rather than in paper form and what goes
on in the courtroom. There are newer systems that can produce an almost instantaneous
transcript. I think we’re not there yet in the Superior Court, but technology will be a big part of
that too.
MR. HUNT: That’s excellent. To wind up, what aspects of your career have provided
either the greatest challenges or the greatest satisfaction to you?
JUDGE FISHER: I guess my current job and my next previous job would be the greatest
challenges and satisfactions. I thought being Chief of the Appellate Division of the U.S.
Attorney’s Office was a marvelous opportunity. It wasn’t easy at all; as we’ve talked about there
were a lot of aspects to it, but it gave me the opportunity to do the kind of thing I enjoyed very
much. I like to think I made a useful contribution in that role. And then being a judge of this
court is just a great opportunity, a lot of responsibility. It’s a constantly evolving job where
you’re facing new cases. People sometimes ask me the question, “do you miss being an
advocate?” and I answer yes, I do miss being an advocate. “Which would you rather be, a judge
or an advocate?” and my response to that has been I feel very blessed to be able to do both in one
lifetime. Probably there’s nothing that compares to standing at the podium, giving an argument
in an interesting case, but being a judge of this court is a marvelous opportunity, it allows me to
-49-
put to use the experience that I have gained over 30, 35 years, and so I feel very blessed to be
able to do both in one lifetime.
MR. HUNT: Thank you Judge Fisher. We’ve covered a lot of very interesting ground
and I appreciate your time and your recollection.
JUDGE FISHER: It’s been a pleasure Mr. Hunt.
A-1
ORAL HISTORY OF
Honorable John Robert Fisher
INDEX
African Americans, 23–24
American Bar Association (ABA), legal ethics committee, 35
American history, 5, 6–7
American legal history, 13, 15
American Revolution, 6, 7
appellate law, 23–24, 26–37, 41
court performance, 45–47, 48
criminal cases, 29–30, 31–34
preventive advocacy, 37
selection of cases, 36
sentencing guidelines, 32
shaping of law, 37
Arlington, Virginia, 20
Assistant United States Attorney (AUSA), 17–20, 22–23, 27. See also U.S. Attorneys
Office for the District of Columbia
Bailyn, Bernard, 6–7
Ideological Origins of the American Revolution, 7
Barry, Marion, 23
Bazelon, David, 34
B’nai B’rith Headquarters (D.C.), 23
Bork, Robert, 34
Boston University, 21
Caputy, Vic, 19
Children’s Hospital (D.C.), 21
Chu Lai, American Division Headquarters, South Vietnam, 10, 11
City Council building (D.C.), 23
civil cases, 29, 39, 42
Columbus, Ohio, 11, 15, 17, 21–22, 24–25
Congress, U.S., 39. See also Senate, U.S.
Constitution, U.S., 6, 32
Speech or Debate clause, 33
constitutional history, 8, 13
constitutional law, 13
corporate law, 14
criminal cases, 29–34
and D.C. court system, 23–24, 31–32, 34, 38–39, 41–42
federal, 38–39
federal penalties, 31–32
A-2
Miranda Doctrine application, 33
reasonable doubt wording, 33
sentencing guidelines, 32
Speech or Debate Clause application, 33
D.C. Circuit. See U.S. Court of Appeals for the District of Columbia Circuit
D.C. Court of Appeals. See District of Columbia Court of Appeals
D.C. Court of General Sessions. See District of Columbia Court of General Sessions
D.C. District Court. See U.S. District Court for the District of Columbia
D.C. Superior Court. See Superior Court of the District of Columbia
death penalty, 24
Denison University, 21
District of Columbia, 20
Hanafi Muslim hostages, 23–24
home rule effort, 38, 39
Senate committee for, 41
District of Columbia court system, 23–24, 31–32, 34, 36–37, 41–42
expedition of work volume, 47–48
history and structure, 38–39
judicial nomination and confirmation, 38, 39–41
local vs. federal courts, 31, 36–37
lack of death penalty, 24
street crime prosecution, 38
District of Columbia Court of Appeals, 26, 38–49
appeals process, 37
en banc arguments, 24, 37
Hanafi Muslim case, 23
as highest D.C. Court, 39
judicial appointment process, 38, 39–41
judicial case decisions assignment, 43–44
oral argument, 42–43, 44, 46
professional conduct rules, 35
transcript preparation, 48
volume of work, 47
District of Columbia Court of General Sessions, 39
District of Columbia Court Reform and Reorganization Act, 38, 39
District of Columbia Municipal Court of Appeals, 39
drug crimes, 31, 38
East Carolina University, 21
ethics, legal, 35
evidence, 13, 16, 33
Farrell, Mike, 24, 26
felony trials, 19
Fisher, Clark (son), 20–21
A-3
Fisher, George (father), 1–3, 5
books and reading, 3
children, 2
death of first wife, 2
farm, 1, 2
second wife, 2
stroke, 21–22
Fisher, Helen Clark (mother), 1–3, 5
and husband’s stroke, 22
life as farmer’s wife, 2–3
marriage to widower, 2
Fisher, John Robert — Personal
birthplace, 1
career considerations, 7–8
childhood activities, 2–4
reading interests, 3–4
children, 20–21
choice of college, 4–5
financial aid, 5
church membership, 25, 35
elementary school, 3–4
family life, 20–21, 25
half-siblings, 2
Harvard Law School, 12–15
admittance, 8
attendance, 12–13
courses and professors, 13–14
Cum Laude degree, 17
friendships, 13
impressions of, 12–13, 14
postponement for military service, 8–9
reapplication to, 11–12
Harvard University, 4, 5–7
acceptance, 6
courses and professors, 6–7
Magna Cum Laude degree, 17
marriage while attending, 7
part-time jobs, 7
high school, 4, 5, 7
interest in history, 3, 5, 6–7
as academic career, 8
interest in law, 7–8, 13
interest in literature, 8
Law School Aptitude Test, 12
military service, 9–11
draft notice, 8
A-4
enlistment in army, 9–10
postponement of law school, 8–9
qualms about officer training, 10
return from, 11–12
Vietnam assignment, 10–11
parents, 1–3, 5
father’s stroke, 21–22
return to Ohio, 21–22
on salesmanship, 40–41, 46
summer jobs, 7
and Washington, D.C.
American University Park home, 1
Arlington (Va.) homes, 20
first period in, 17–24, 27
second period in, 27–49
wife, 7, 11
financial support from, 12
younger brother, 2
Fisher, John Robert — Professional
academic law interests, 8, 13
advice to appellate advocates, 45–47
assessment of judges, 34
Assistant U.S. Attorney for the District of Columbia
as appellate division chief, 26, 27–37, 48
as appellate division deputy chief, 24, 26, 33
appointment, 17
attractions of job, 18
cases argued, 23–24, 29–30, 31–34
departure and return, 21–23, 26–27
learning on job, 18–19
preventive appellate advocacy, 37
responsibilities, 18, 27–28
rotation assignments, 18–19, 23, 28, 30–31
satisfactions of advocacy, 35–36, 48
selection of issues, 36, 37
training of advocates, 45
Assistant U.S. Attorney for the Southern District of Ohio, 21–22, 24–25
bar activities, 35
on career challenges and satisfactions, 48–49
D.C. Court of Appeals associate justice, 40–49
advice for advocates, 45–46
and case conferences, 45
and dissent writing, 44–45
on learning curve, 41–42
and majority opinion, 45
nomination and confirmation process, 38–41
A-5
and oral argument, 42–43, 44, 46
and primary legal goal, 44–45
recusals from criminal appeals, 41–42
satisfactions of judgeship, 48–49
on D.C. court system, 31, 34, 36–37, 38–39
challenge of work volume, 47–48
on educational value of court proceedings, 16
first interest in law career, 7–8
and Harvard credentials, 16–17
as Horwitz research assistant, 13, 15
judicial philosophy of, 44–45
Kinneary clerkship, 15–18
litigation work, 25
and trial practice, 16, 17
with Vorys, Sater, Seymour and Pease, 25
Fisher, Mandana (daughter), 21
Fort Benning (Ga.), 9–10
Fort Dix (N.J.), 9
Fort Leonard Wood (Mo.), 9
Fredericktown, Ohio, 3, 4, 7–8
Freidel, Frank, 7
Garland, Merrick, 34
Ginsburg, Ruth Bader, 34
gun cases, 31
Hanafi Muslim hostage case, 23–24
convictions upheld, 24
Harvard Law School, 8, 9, 11–15, 16–17
atmosphere of, 13, 14
clinical courses, 15
competitiveness of, 14
and course selection counseling, 13–14
professors, 13
required courses, 14
study groups, 13
Harvard University, 4, 5–9, 17
faculty-student interaction, 7
history, study of, 3, 5, 6–7, 8
Home Rule Act (D.C.), 38
Horwitz, Mort, 13, 15
Islamic Center (D.C.), 23
Israeli spy case, 32–33
judges
A-6
assessment of, 34
assignment of case decision to, 43–44
nomination and confirmation of, 38, 39–41
and oral argument, 44
sentencing guidelines, 32
judicial review, origins of, 13
Justice Department, U.S., 36
Kennedy, John F., 5
Kenyon College, 5
kidnapping charge, 24
Kinneary, Joseph, 15–16, 25
Knox County, Ohio, 1
Law School Aptitude Test (LSAT), 12
McGowan, Carl, 34
Miranda Doctrine, 33
misdemeanor cases, 19, 39
murder cases, 23, 24, 39
shootout bystander victim, 33–34
Muslims, 23
Ohio, 1–4, 7, 15, 21–22
colleges in, 5, 21
See also Southern District of Ohio
Ohio State University, 11, 12
Ohio Supreme Court, 15
Olson, Ted, 32–33
oral argument, 42–43
benefits of, 42
individual preparation for, 43, 46
judge’s questions during, 44
parole, 29–30
Pollard, Jonathan, 32–33
President, U.S., and D.C. local court system, 38, 39, 40
professional conduct rules, 35
reasonable doubt, wording of instruction, 33
Roberts, John, 34
Rostenkowski, Dan, 33
ROTC (Reserve Officers’ Training Corps), 8
Scalia, Antonin, 34
A-7
Senate, U.S.
judicial appointment confirmation, 39, 40–41
Senate Committee on Homeland Security and Government Affairs, 41
Senate Judiciary Committee, 40–41
sentencing guidelines, 32
Southern District of Ohio
U.S. Attorney’s Office, 17, 21–22, 24–25
U.S. District Court, 15–16
Speech or Debate Clause, 33
Stephens, Jay, 27, 31
street crime cases, 38–39
Superior Court of the District of Columbia, 23–24, 47
and appeal process, 37
creation of, 39
criminal cases, 23–24, 31
judicial appointment process, 39, 40–41
review of decisions, 39
and transcript preparation, 48
Supreme Court, U.S.
and D.C. Court of Appeals, 39
justices, 34
sentencing guidelines, 32
Terry, John, 24
Thornburgh, Richard L. (“Dick”), 31
trial practice, 16, 17, 24, 28, 37
and knowledge of case, 45–46
Unger, Roberto, 13
urban warfare, 33–34
U.S. Army, 9–11
draft, 8
officer candidate school, 9– 10
U.S. Attorney, 27, 29, 36, 41–42
choice of D.C. court system, 31, 37
U.S. Attorney General, 31
U.S. Attorney’s Office for the District of Columbia, 16, 17–20, 22–23
Appellate Division, 23–24, 26–37, 48
attorney selection, 30–31
attorney teaching and training, 27–29, 36, 45–46
caseload, 30
case selection, 36
chief’s role, 27–28
choice of court, 36–37
criminal cases, 23–24, 29–30, 31–34, 41–42
A-8
deputy chiefs, 24, 26, 29
job satisfaction, 35–36
litigation selection, 36
management practices, 27, 30
Miranda Doctrine application, 33
number of attorneys, 27
preventive appellate advocacy, 37
sentencing guidelines, 32
size and scope, 26–27
Civil Division, 29
number of attorneys, 27
rotation assignment, 18–19, 23, 28, 30–31
training of attorneys, 19, 20, 28–29
See also Assistant United States Attorneys
U.S. Attorney’s Office for the Southern District of Ohio (Columbus), 17, 21–22, 24–25
U.S. Court of Appeals for the District of Columbia Circuit
appeals process, 32–33, 36–37
and D.C. local court system, 36–37, 39
en banc cases, 24, 33, 34, 36
justices, 26, 34
U.S. District Court for the District of Columbia, 37
appeals process, 31–32, 37
en banc cases, 31–32
local crime cases, 31–32, 34, 38–39
U.S. District Court for the Southern District of Ohio, 15–16
U.S. Parole Commission, 30
U.S. Solicitor General, 33, 36, 37
U.S. Supreme Court. See Supreme Court, U.S.
Vietnam War, 9, 10–11
Vorys, Sater, Seymour and Pease, 25
Washington, D.C. See District of Columbia
White House. See President, U.S.
Wilkey, Malcolm, 34
Wright, J. Skelly, 34
B-1
ORAL HISTORY OF
HONORABLE JOHN ROBERT FISHER
Table of Cases
1. Khaalis v. United States, 408 A.2d 313 (D.C. Cir. 1979)…………………..23
2. United States v. Mills, 964, F.2d 1186 (D.C. Cir. 1992)……………………32
3. United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992)………………….32
4. United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995), opinion
supplemented on denial of rehearing, 68 F.3d 489 (D.C. Cir. 1995)……. …33
5. Smith v. United States, 709 A.2d 78 (D.C. Cir. 1998) (en banc)……………33
6. Jones v. United States, 779 A.2d 277 (D.C. Cir. 2001) (en banc)…………..33
7. Roy v. United States, 871 A.2d 498 (D.C. Cir. 2005………………………..34
8. United States v. Byers, 740 F.2d 1104 (D.C. Cir. 1084) (en banc)………….34
9. United States v. Cohen, 733 F.2d 128 (D.C. Cir. 1984) (en banc)………….34