Joyce Hens Green Complete Oral History Package (1,261 KB)

HONORABLE JOYCE HENS GREEN
Oral History Project
The Historical Society of the District of Columbia Circuit
Oral History Project
The Historical Society of the
District of Columbia Circuit
United States Courts
District of Columbia Circuit
HONORABLE JOYCE HENS GREEN
Interviews conducted by:
Jennifer M. Porter, Esquire
September 9, September 16, October 6, December 12, 1999
March 3, March 1 1 , March 13,2001
TABLE OF CONTENTS
Preface ……………………………………………………………. i
Oral History Agreements
… Honorable Joyce Hens Green ……………………………………… 111
Jennifer M . Porter. Esquire ………………………………………. vii
Oral History Transcript of Interviews
September9. 1999 ………………………………………………. 1
September16. 1999 …………………………………………….. 36
October6. 1999 ……………………………………………….. 69
December2. 1999 …………………………………………….. 106
March3. 2001 ……………………………………………….. 143
Marchll. 2001 ………………………………………………. 209
March13. 2001 ………………………………………………. 261
Index …………………………………………………………… A1
Table of Cases and Statutes …………………………………………… B1
Biographical Sketches
Honorable Joyce Hens Green …………………………………….. C1
Jennifer M . Porter. Esquire ……………………………………… C5
NOTE
The following pages record interviews conducted on the dates indicated. The interviews
were electronically recorded, and the transcription was subsequently reviewed and edited by
the interviewee.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject
to, the Oral History Agreements included herewith.
0 1998 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 who sat on the US. Courts of the District of Columbia
Circuit, and judges’ spouses, lawyers and court staff who played important roles in the history of the
Circuit. The Project began in 1991. Most interviews were conducted by volunteers who are
members of the Bar of the District of Columbia.
Copies of the transcripts of these and additional documents as available – some of which may have
been prepared in conjunction with the oral history – are housed in the Judges’ Library in the E.
Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C.
Inquiries may be made of the Circuit Librarian as to whether the transcripts are available at other
locations.
Such original audio tapes of the interviews as exist, as well as the original 3.5″ diskettes of the
transcripts (in Wordperfect format) are in the custody of the Circuit Executive of the U.S. Courts for
the District of Columbia Circuit.
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B
Historical Society of the District of Columbia Circuit
Interviewee Oral History Agreement
1. In consideration of the recording and preservation of my oral history memoir by
the Historical Society of the District of Columbia Circuit, Washington, D.C., and its employees
and agents (hereinafter “the Society”), and except as otherwise provided herein and in
Schedule B attached hereto, I, Joyce Hens Green
Society and its successors and assigns all of my rights, title, and interest in the tape recordings,
transcripts and computer diskette of interviews of me as described in Schedule A hereto,
including literary rights and copyrights. All copies of the tapes, transcripts and diskette are
subject to the same restrictions herein provided.
, do hereby grant and convey to the
2. The foregoing transfer is subject to the exceptions specified in Schedule B hereto.
3.
as a resource for any book, pamphlet, article or other writing of which I am an author or
c 0- author .
I also reserve the right to use the tapes, transcripts and diskette and their content
4. I authorize the Society, subject to the exceptions specified in Schedule B attached
hereto, to duplicate, edit, publish, or permit the use of said tape recordings, transcripts and
diskette in any manner that the Society considers appropriate, and I waive any claims I may have
or acquire to any royalties from such use.
JL-~ L-1 6/27/6;
gnature of Interviewee] Date
SWOXN ‘TO AND SUBSCRIBED before me this JTkday of &NC. ,203.
Notary Public – L/
MY Commission expires /Q /OGL
ACCEPTED this 3 p4ay of d%
the Historical Society of the District of Columbia Circuit.
, 200,Iby Daniel M. Gribbon, President of
Daniel M. Gribbon
…
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ORIGINAL
Schedule A
Tape recording(s) and transcript resulting from
Joyce Hens Green Jennifer Porter (number)
interviews of conducted by
on the following dates?’
(Interviewee) (Interviewer)
Date (Month. Day, Year) Number of Tapes Pages of Transcript
9/1/99 1&2A 1-35
9/16/99 2B, 3A&B 36 – 68
10/6/99 4A&B, 5A 69 – 105
12/2/99 5B, 6A&B 106 – 142
3/3/01 7A&B, 8A&B,
9A&B 143 – 208
3/11/01 10A&B, 11A&B,
12A&B 209 – 260
3/13/01 13A6B 261 – 308
The transcripts of the above-identified interviews are coli tained on one diskette.
– 1 /
conveyed, and (3) the number of pages of the transcript of that interview.
Identify specifically for each interview, (1) the date thereof,- (2) the number of tapes being
-iv-
Schedule B
Exceptions to Oral History Agreement
(Please initial only those provisions that you wish to apply, and only if you wish to limit
the use of your interview.)
1. The entire tape, transcript and diskette shall not be made available to anyone
other than myself- without my express
written permission until d 8 v t’ rn L 13. ao o 3 , [identify date or event]
whichever just occurs.
2. The following page(s) of the transcript of the interview of me on
relating thereto, shall be closed to all users until
express written permission.
[date] , and the tape and diskette
[identify date or event], except with my
3. 2ri-e It is agreed that the Society shall not authorize publication of the transcript
or any part thereof during my lifetime without my express written
permission, but that the Society may authorize scholars, researchers and
others to make reasonable quotations therefrom without my written
permission.
4.
5.
It is agreed that the Society shall not authorize publication by others of the
transcript or any part thereof, including brief quotations, during my lifetime
without my express written permission.
I retain all of my right, title, and interest in the tapes, transcripts and diskette
and their content, including literary rights and copyrights, until
rights shall vest in the Historical Society of the District of Columbia Circuit.
[identify date or event], at which time these
6. >&4- In the event of my incapacity, I designate * ~17 c.s
to make decisions related to the use of the interview of me. Upon the death
or incapacity of this designee, I authorize the Society to make such
decisions on my behalf.
H 1 GRE E I\I of
ai=L e.& 1 BhLTl wok, (me) m, d , a, (address) d
7. I impose the following conditions: [describe]
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Standard Form
INTERVIEWER ORAL HISTORY AGREEMENT
Historical Society of the District of Columbia Circuit
Oral History Agreement of Jennifer M. Porter
1. Having agreed to conduct an oral history interview with Judge Joyce Hens
Green for the Historical Society of the District of Columbia Circuit, Washington, D.C., and its
employees and agents (hereinafter “the Society”), I, Jennifer M. Porter, do hereby grant and
convey to the Society and its successors and assigns, all of my right, title, and interest in the tape
recordings, transcripts and computer diskette of interviews, as described in Schedule A hereto,
including literary rights and copyrights.
2. I authorize the Society to duplicate, edit, publish, including publication on the
internet, or permit the use of said tape recordings, transcriptsand diskette 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. F ___I– — —-
[Signature of Interviewer]
Date
S WORH TO AND SUBSCRIBED before me this
/b day of ld~ie~j-, -Qx, ,2004.
P
ACCEPTED this ?5b ’day of h hhb
the Historical Society of the District of Columbia Circuit.
, 20042 by Stephen J. Pollak, President of
n
Stepkn Uollak
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ORIGINAL
Schedule A
Tape recording(s) and transcript resulting from
Joyce Hens Green Jennifer Porter (number)
interviews of conducted by
on the following dates?’
(Interviewee) (I 11 ter vi ew er)
Date (Month. Dall. Year) Number of Tapes Pages of Transcript
9/1/99 1&2A 1 – 35
9/16/99 2B, 3A6B 36 – 68
10/6/99 4A&B, 5A 69 – 105
12/2/99 5B, 6A&B 106 – 142
3/3/01 7A&B, 8A&B, 9A&B 143 – 208
3/11/01 10A63, 11A&B,
12A&B 209 – 260
3/13/01 13A&B 261 -308
The transcripts of the above-identified interviews are contained on one diskette.
a/
conveyed, and (3) the number of pages of the transcript of that interview.
Identify specifically for each interview, (1) the date thereof,. (2) the number of tapes being
… -v111-
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ORAL HISTORY OF
HONORABLE JOYCE HENS GREEN
First Interview – September 1, 1999
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 Joyce Hens Green. The
interviewer is Jennifer Porter. The interview is taking place in the judge’s chambers at the United
States Courthouse on September 1, 1999, beginning at 3:00 in the afternoon.
(TAPE 1)
MS. PORTER: Judge Green, we’ve been meaning to do this tape for a long
time and now this is finally the day. I want to know for the record here about your childhood and
your parents and your family background. Would you like to lead off with the history of your
life?
JUDGE GREEN: I’ll be delighted to do so, particularly since we’re on the cusp
of the millennium. It is way overdue that I have finally allowed this to occur. I should admit that
my full name on my birth certificate is Ruth Joyce Martha Hens; now, of course, Green since my
marriage. As soon as I had the opportunity, I joyously dropped Ruth and Martha, and I am now
Joyce Hens Green.
You asked about my parents. My dad, James Stanley Hens, was born in
Nowydwor, near Warsaw, Poland, in 1891. He had lived most of his life, since his early
teens, in Switzerland, and indeed considered himself Swiss. He was educated there at
college and medical school, the medical school being the University of Zurich in Switzerland,
from which he graduated in 1917.
MS. PORTER: If I could just interpose here, how did your father come to be
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living in Switzerland when he was born in Poland?
JUDGE GREEN: His parents, his father a Pole, who was an architect and civil
engineer in Poland, and his mother, Frances, decided that of their three sons he was then the one
that had the greatest hope for a career in a profession. They believed the education that he could
receive in Switzerland was far superior to that being provided in Poland. As you will recall,
Poland has seesawed back and forth, becoming part of Russia, then back to being Poland again.
They wanted stability in this son’s life, so that is exactly what happened. Do you want more
about my father or shall I talk about my mother?
MS. PORTER: No, I’m still interested to know did he have other siblings who
stayed behind in Poland?
JUDGE GREEN: He had two siblings who married, had their own business
careers, and stayed in Poland. His brother, Michal, and his other brother, Brunik, both followed
different careers. Brunik was a medical doctor and raised his family in Poland after spending a
few years in London, England. Michal was a businessman. I just came across this information
the other day in pursuit of the full truth of this episode we are doing now, and he was an
entrepreneur in his day, dealing with advertising signs. You have to relate this back to the time
that we are talking about. We are talking about the early 1920s, when they are marrying, going
into business, and it was extraordinary to hear they even had signs that advertised anything in
those days.
MS. PORTER: Now talk about your mother and her family.
JUDGE GREEN: Hedy Emma Bucher was born in Zurich, the second of four
children. Her father, Johann Jacob Bucher, was 15 years old when he came from the farm to the
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big city in Switzerland. He was totally self-made: a lawyer and banker, and ornithologist by
hobby, and so recognized that people came from around the world to consult him about their
birds. He also established a bank in Switzerland and participated in the rewriting of the
Constitution of Switzerland. A fascinating person I’ve been told; I never knew him, he died long
before I was born. He married my grandmother, Emma Rinderknecth. They had four children I
just referenced, three sons and my mother. Do you want more detail about the sons?
MS. PORTER: Sure.
JUDGE GREEN: My mother’s brothers were Karl Walter Bucher, Ernest
Bucher, and Hans Bucher, and they were an educated family, a well-to-do family, who had great
interests in the arts, opera, theater – a variety of things – and my mother indeed led a protected
and sheltered life as the only daughter. She graduated from “finishing school,” was essentially
taught to be a homemaker, took courses of special interest, was an expert in anything that dealt
with the home – sewing, embroidery, painting, arts. She played the accordion and, in all
respects, was an absolutely beautiful person in her person and soul.
MS. PORTER: Let’s go back to your father and studying medicine. Did he
ever talk about why he became a doctor?
JUDGE GREEN: Oh, how he related to people. They were foremost in his life.
He relished working with them, he enjoyed determining the similarities and the differences, what
made them the way they are. This was at the time that Freud was first recognized worldwide.
The science of psychiatry was novel. As my dad was completing medical school, certain
professors encouraged him to consider working with the mind to become a
neurologist/psychiatrist (neuropsychiatrist). And so he did.
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MS. PORTER: So as you say, it seems like a rather bold choice of career, at
least a new type of career.
JUDGE GREEN: My father was nothing if not bold. He was bold, he was
courageous, he was adventurous. He was very advanced in his thinking and eager to approach
new matters. He never regretted the choice. He loved being a psychiatrist. Other doctors
referred to him as a natural; he had to be a psychiatrist. He was enormously helpful and
successful with his patients who worshiped him and his extraordinary impact on their lives.
People just had amazing rapport with him, telling him things that they had never told anyone.
He, of course, encouraged this, but the fact was he would say it wasn’t even that difficult to
stimulate in many cases. He was so easy to talk to and relate to and, importantly, he wasn’t
judgmental. He and I had many discussions about what it was to be judgmental from a judge’s
viewpoint and a psychiatrist’s viewpoint. He told our family that he tried to have his patients
understand that he was not their judge, but was there to help them to live with that which they
had to live with. He could change their attitude and acceptance of factors; often he could not
change the factors.
MS. PORTER: So he graduated from medical school in 1917 and what
happened then?
JUDGE GREEN: One of the things you had to do to graduate from medical
school at that time (I don’t know whether it still exists) is to write a thesis. His thesis (translated
from the German by my stepson, who is a neurologist) was “Examination of the Imagination of
School Children, Normal Adults, and Mentally Ill Through the Use of Shapeless Blots.” That
thesis was the predecessor of the famous Rorschach test. To put it delicately, my father’s ink
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blots were “adopted” by Rorschach, who expanded upon it. To be sure my dad’s presentations
were in black and white, Rorschach had some in color, but the concept that my dad had, that
idea, the original idea, Rorschach took as his own and published in 1922, five years after my
father’s thesis was published, giving him the most minimal credit imaginable. When I asked dad
why he had never done anything about this, he said, put yourself in the situation of a young
psychiatrist in Switzerland versus an older, more experienced, highly renowned psychiatrist.
People were not litigious in those days, unlike today. Dad never really considered doing
anything, other than a mild protest. In any event, he did not believe, even to his final day, that
the Rorschach test was of such substantial importance. An aid, yes, but other psychiatric tests
and means he found far more useful and important.
MS. PORTER: Now he graduated from medical school and already had an
interest in psychiatry. Was there any other formal education he had to have to hang out a shingle
as a psychiatrist? What was the process?
JUDGE GREEN: After he graduated, in October 1917, he took a post as an
assistant physician at the Medical University Clinic in Zurich. Thereafter, he practiced
psychiatry and, during the violent influenza epidemic in 1918, where everyone was recruited –
doctors, nurses, volunteers – to assist in this massive deadly influenza situation, through which,
eventually, millions of people died worldwide. He went and attended patients daily, while
continuing still with his psychiatric practice.
MS. PORTER: In this clinic?
JUDGE GREEN: In this clinic. My mother, much to the consternation of her
family, insisted that she had to do something to aid the crisis. She wasn’t a nurse, but
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volunteered as a nurse’s assistant, doing anything needed. That’s how and where she met my dad.
MS. PORTER: Now obviously you’re here and your father came to work here.
When did all of that happen?
JUDGE GREEN: While my mother was not particularly enchanted with my
father when they first met, this promptly changed when they met in Zurich a few years later. She
then found in him a brilliant and ebullient spirit that enamored her completely. They adored each
other from the time they started going out together. They married in Zurich in February 1922 and
shortly after the marriage, about six months later, they applied for visas to come to the United
States of America where my father could receive graduate training in psychiatry. He went to
Columbia University. In those days (and the preferred site of education shifted back and forth) it
was appropriate to get some American education to balance the European education.
MS. PORTER: Did he have some sort of scholarship or fellowship when he
came, or did he just come to the United States?
JUDGE GREEN: I don’t know, but he immediately matriculated at Columbia.
And after several months, my parents decided that they were going to make their life in America.
They had lived the early months in the Bronx with my Uncle Walter (Wally) and his wife, Tessy.
Then my parents moved to Manhattan and started the path to naturalization, which occurred five
years later.
MS. PORTER: And you said your mother’s brother was here too? How did
he come to the United States? You have other relatives who migrated as well. It wasn’t just your
mother and father?
JUDGE GREEN: In addition to my parents, my only relative that migrated to
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the United States was that uncle.
MS. PORTER: Did you ever have any contact with the part of the family that
stayed in Poland?
JUDGE GREEN: Yes. We would see them occasionally, but more at the time I
was five years old and my brother was seven; we spent five months in Switzerland with my
mother’s family and her relatives. Then my paternal grandfather and grandmother, their sons and
their sons’ families paid many visits to Switzerland so we could see each other. On at least one
occasion we went to Poland.
MS. PORTER: When was that? I didn’t know you had been to Poland?
You are a well-traveled person.
JUDGE GREEN: Well-traveled at age five. I was told that I had gone to
Poland.
MS. PORTER: You don’t even remember?
JUDGE GREEN: I have an independent memory of taking a train from
Switzerland and, to a five-year-old it seemed a long way. That’s really all I know about it. But I
vividly remember meeting my paternal grandparents and their relatives, and recall their loving
attention, my cousins (also very young) and wonderful cooking aromas.
MS. PORTER: Your father, when he came to the United States, went to
Columbia University. What was he doing there and how long was he there? When did he start
to set up his own psychiatry practice in the United States?
JUDGE GREEN: After the six months that he had intended to spend at
Columbia were completed, he and mom then made the decision to stay in the United States. He
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took the required examinations in order to become licensed in the State of New York and to
establish a practice, and was phenomenally successful from the outset. I’ve been told that among
other friends my parents acquired in their first few months here, they knew a great number of
schoolteachers. Several became patients, demonstrating the stress of teaching, as well as other
persons with other occupations. That’s how practice began in the U.S.: patients satisfied with the
results achieved and the comfort found in their physician make references and referrals. It
developed so quickly that my dad soon had a very large office in New York, on Park Avenue,
with all the amenities, and several secretaries. Our family moved a few months after I was born,
in New York City, to Westchester County, Pelham Manor, where we continued the environment
of a successful life. My brother and I had a governess. I recall we had a chauffeur and a car that
had a window that would close and separate the chauffeur from the passengers to afford privacy.
One of the delights as a child with my short legs was sliding down in my chair at the dining room
table in order to press that button for the butler to come. I tell you all this for a reason, because
we had this luxury for a while and then we had none.
MS. PORTER: Before we go on to having none of the above, I’ve allowed
you to escape without telling me when you and your brother were born.
JUDGE GREEN: (laughter) I hope you can hear my laughter. My brother was
born first, August 20, 1926, and I was born two years and three months later, on November 13,
1928. Within weeks of my birth, my parents became naturalized citizens.
MS. PORTER: Okay, and now you are living in Westchester County where
you had the chauffeur and the butler and all those other things.
JUDGE GREEN: Right. And I mentioned that because part of what develops
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you are circumstances along the way, often beyond your control. The Great Depression seized
the country. A huge amount of stock had been purchased, almost all of it on margin. The market
collapsed; my dad, eternally optimistic, thought this really can’t continue and insisted we live the
same lifestyle until, over time, all material things were lost. We had to sell the house. All the
home personnel could no longer be paid, and we moved from Pelham to New York City. My
father’s large office was divided into two parts. One part became our residence, the other part
continued as the office. But dad still had several secretaries and expensive furnishings and
equipment. This dug a deeper and deeper hole of economic distress from which there had to be
some dramatic change.
MS. PORTER: How long did you actually live in Westchester County?
JUDGE GREEN: Approximately six years. I was around six when we came to
New York City, where I first started school.
MS. PORTER: So it’s during the Depression, and your father had bought all
this stock on a margin. Did his practice slow? I assume people needed psychiatrists just as
badly, or more so, during the Depression.
JUDGE GREEN: They needed psychiatrists just as badly, of course, although
many could not pay. Pay or not, none were turned away. The fact is, while the practice had
patients there all the time (filled waiting rooms), the income was totally insufficient to maintain
even a retrenched lifestyle. I should mention, though, that as a child I never realized there was a
difference in our financial status until my adolescence, when I could review the years from a
more mature view. We had so much stability in the family. We had so much love, so much
protection, and our parents really hid troubles from us, wanting us to have a happy, normal
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childhood. My brother and I have discussed this many times. We were completely unaware of
the distress and hard times my mother and father had at that time. We certainly had enough to
live on and eat, but all the extras we didn’t really need them as children. We remember this
period as a good life.
MS. PORTER: So you actually started school in New York City?
JUDGE GREEN: Yes. I never went to kindergarten and I never went to first
grade. I took an examination and went directly to second grade.
MS. PORTER: This is an examination to go directly to second grade?
JUDGE GREEN: Exactly.
MS. PORTER: Was this a special exam for you or did everybody do the
same?
JUDGE GREEN: No, this was a special exam to see if I could skip the first two
grades because, self-taught, I had read since I was three years of age, and because I could write,
not all self-taught. It was felt that I could go into a more advanced class and so it was. I’d like to
mention a couple of things because we never really know what forms you as a person later on,
but some things are so deep in my memory from that age that probably they did have something
to do with the person I later became. My first adventure in school was for one day at a school
that was the elementary school part of Hunter College. I recall the teacher asking if anyone could
write. I was a shy child, but raised my hand, went to the front of the classroom, and with my left
hand, printed a number of things on the blackboard. She mocked this in front of the entire class,
laughed and berated me because I was left handed (in those days some thought it important to
force people to change their native inclination, which my dad wouldn’t allow), and the teacher
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also complained that I did not write cursive (I didn’t know what cursive was), I had printed the
words. At the end of my day my father encountered me, spirit shaken, tearful. I relive those
emotions every time I think about that day. Dad promptly removed me from the school, telling
the principal that no child should be in a place where a teacher would do this to a child’s
confidence. I then went into public school, PS 6, where I was given the advanced placement
examination by that principal, Ms. Emily Nosworthy; I was pronounced appropriate for the
second grade. Since I had never had the opportunity to associate with other children in school,
and had just had a searing experience at Hunter, I was lonely and shy and spent most of my first
weeks sobbing away until they placed me in the third grade with my brother. While he wasn’t
happy to have this pesky young sister sitting next to him, I promptly found my social abilities
there.
MS. PORTER: Does this mean that you skipped the second grade as well?
JUDGE GREEN: No, no, no. They wouldn’t go that far. After seeing me
quieted down for whatever it took, days or a couple of weeks, I was put back with my second
grade class and then readily adjusted. But that whole situation was traumatic. The indignity that
the first teacher foisted on me, the protections and love and security that my family gave by
rescuing me immediately from that, the confidence I got by being put into a higher grade, the
discouragement I felt because I wasn’t socially ready for it. You learn many things from these
striking experiences at age six.
MS. PORTER: How does Russ feel about it all today?
JUDGE GREEN: He puts up with a lot from me, even today. He is the most
wonderful, loving, protective brother, and I have to ask why after what I put him through for
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years. Anything he did, I tried to copy. “Me, too!” He is an electronics engineer and more about
him later.
MS. PORTER: What else do you remember about PS 6?
JUDGE GREEN: I loved school. I enjoyed everything but math and gym.
Those were my two least favorite subjects. Math I could tolerate and, after Russ, a genius with
math and science, patiently explained how to do it, I applied myself and could do it well. Gym I
found an absolute horror, and similarly so in high school and college. I have absolutely no
athletic ability. When they coined the phrase “couch potato” they were thinking of me. To do
archery and basketball, and to emerge in those blue serge, two-piece, billowing gym suits that
had absolutely no grace, everyone alike, and observing others with skills I did not have, I wanted
to be anywhere but in gym. Today I am the best spectator at sports, which I do enjoy watching,
especially the beloved Redskins.
MS. PORTER I can vouch for that.
JUDGE GREEN: (laughter) I love to read. As a child I would go to the library
daily and literally take out four books. I can’t promise you that I read every delicious page, but I
did read most of them and then I would return the books the next day. I rapidly swallowed all the
books in the children’s room, so my mother gave me her adult card and said, “Go for it.” I am
confident there were many, many books beyond my comprehension, actually I know so, because I
took out reading material I now recognize as a bit much for a child as, for example, Joyce’s
“Ulysses!” I was devoted to reading and continue to be.
MS. PORTER: Are there people that you remember from that time?
JUDGE GREEN: I remember a number of the teachers, not by name, but by
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personality, who were caring and tender and inspired in me the joy of learning. There was never
any doubt that there would be many more years of schooling for me. It was a fabulous
experience. It was a fabulous school. You know, in those days public schools were remarkable,
and you received every bit as good an education as you could from the most endowed private
school. Sadly, it’s a different story today.
MS. PORTER: How many grades were there at PS 6?
JUDGE GREEN: Kindergarten and six grades. Sixth grade was the last grade;
then you went to a junior high school.
MS. PORTER: You said you remembered some of your teachers – how about
classmates? Do you remember any of the kids you used to play with or were in your class?
JUDGE GREEN: I do. There were not very many children in the classes,
perhaps 20 in a class. Much smaller groups than today. Both boys and girls. I remember them
very favorably. I had many friends and two special ones. One was a girl about my age named
Marian Anderson, who was the only black in our class and a great pal. Everyone wanted to sit
next to her.
MS. PORTER: Did she sing?
JUDGE GREEN: No, Marian didn’t sing, and as far as I know she wasn’t related
to that Marian Anderson. I just remember her as being a wonderful person whom I cared for a
good bit. And then another one, Daisy Lundblad, the daughter of the janitor in our apartment
building, who became my best friend. Even today we share Christmas cards. She now lives in
New Jersey, is a retired schoolteacher, wife, mother, grandmother. These were my best chums
going through elementary school. I was a very good student; academics were easy for me.
-14-
MS. PORTER: And there was only one black in your class?
JUDGE GREEN: Just one.
MS. PORTER: How about in the school? Do you have any recall of that?
JUDGE GREEN: I don’t. I didn’t even know what “black” was. I recall going
home and asking my parents why Marian’s skin color was different from ours. My parents asked
if it made any difference to me. I said of course not, and they said well, that’s how it is, some
people you like specially and some you do not. It’s up to you to decide who will be your friends.
It was a very simple response that a six-year-old could accept.
MS. PORTER: We touched on Russ very briefly. He had to put up with the
mortification of having his younger sister sitting next to him in grade three. Tell me about Russ
and his life at PS 6, with a remarkable sister like you.
JUDGE GREEN: (laughter) He was very studious, an excellent student, far
more creative than I am. He always loved to design and invent all types of contraptions, and to
read. Science was his forte, still is. He relished reptiles and animals of every size and shape.
Our family was deluged with salamanders, guinea pigs, and ducks that people gave us for Easter,
which, as you can imagine, wasn’t easy in an apartment in New York City. There were kittens I
would smuggle in from the beach where we spent every summer for many years. We also had
dogs. We had a baby alligator, if you can believe it, that some “friend” in Florida gave us once,
which lounged in our bathtub and had to be taken in and out several times a day so we could
bathe.
MS. PORTER: I must admit, Joyce, you seem too fastidious to have ducks
and alligators.
-15-
JUDGE GREEN: They were my brother’s until they escaped, then there were
moments of horror, but you asked me to explain him to you. He was all boy and just a really
good guy.
MS. PORTER: Now there came a time when you left PS 6. What happened
after that? Where was your next stop?
JUDGE GREEN: The next school was Joan of Arc, a junior high school. I have
a fleeting memory of that experience. It was just very quick. It was for less than a year, easy, but
not memorable in any way. We moved then from New York to Maryland.
MS. PORTER: Do you recall when that happened?
JUDGE GREEN: 1941. Earlier that year, as part of this continuing retrenching
still resulting from the Depression, still with the need to pay back all of the huge indebtedness, at
this point my dad finally acknowledged there had to be a change in lifestyle. He took a job, in
addition to his private practice. He began private practice in Maryland and he was also a staff
psychiatrist at Spring Grove State Hospital in Catonsville, Maryland. We lived on the premises
next to the criminal division which, when I was appointed a judge, took some explanation to the
F.B.I. Even more so, when I was appointed to the FISA Court! Those were wonderful years,
growing years. The medical families socialized together very well and this was where I learned,
if you can believe it, how to play a mean hand of poker at the age of 12, and have my first “date”
with the son of another doctor there (Nedick’s Orange Juice Bar for dinner and a movie).
MS. PORTER: Well it’s not athletic, so I believe you could do that very well.
JUDGE GREEN: (laughter) I can still play poker. Maybe not as sharply as I
could in those days; not enough opportunity to practice in later times. My family reestablished
-16-
our lives in Maryland, and then, because there was a far better high school just a few miles away,
in Baltimore County, as was Catonsville, we moved to the Parkville area of Baltimore County,
and I attended Towson High School, where I graduated. So my experiences in high school
overall, both in Catonsville and particularly in Towson, were impressive.
MS. PORTER: Tell me some more about what you remember about life in
high school back in those days.
JUDGE GREEN: Life in high school I found most enjoyable. I was in the
school orchestra, played the violin, and to this day, every time I hear “Pomp and Circumstance” it
takes me immediately back to those days that I squeaked with my violin for four years at each
and every graduation ceremony and numerous concerts. But I really enjoyed doing that. I love
music and this was an outlet in that regard.
MS. PORTER: Just help me get oriented as to what we’re talking about.
What years?
JUDGE GREEN: Let me think if I can get this straight. Roughly the end of
1943, something like that. I was in the middle of my second year when I started at Towson and I
graduated in 045, so you’ll have to do the mathematics on that one. And I was also, in my senior
year, the editor-in-chief of the yearbook. It is certainly not the glossy kind of yearbook that you
see young people producing today, but we were very proud of our result. This adolescent period
saw me particularly shy: 13, 14, 15, and 16 were difficult growing years. I had many friends, but
due to the shyness, I didn’t have the full kind of social life I wanted in high school. I was always
prepared when I’d be called upon to stand up and recite in class, but, nonetheless, I would blush
and gulp and find it difficult to express myself in front of everyone. Finally, in my senior year in
-17-
high school, as I was looking forward to college, the time came when I decided that for the rest of
my life I was going to carry me with me (including shyness) unless I made the change. And so I
forced myself to meet people, I forced myself to laugh uproariously at jokes that I didn’t think
were funny, even feeling the stretch marks on my face when I came home at the end of a day.
But, remarkably, after a few weeks of this, I discovered that the jokes were really funny, I
enjoyed the people who welcomed me into the circle and I absolutely glowed in that regard.
While I still have minor shyness on occasion, by and large that has been conquered; I’m very
proud I met this challenge myself. As a psychiatrist’s daughter, I did not go to my dad and say
help me here. I knew I was the one to conquer the problem.
MS. PORTER: Why do you think you were shy?
JUDGE GREEN: I have no idea. I had always received a lot of praise from
family and friends. I had succeeded in some things at a very early age. I had many young
friends, so I have no idea why.
MS. PORTER: Certainly it seems an unusual characteristic for a judge, but –
JUDGE GREEN: It’s unusual that I’ve chosen the path that I have in many
respects: my private practice of law, the need to be a litigator, the other matters that have brought
me relentlessly into public life. As indicated, I still have aspects of that shyness that well up on
occasion, but perhaps it was the challenge of having to conquer this that put me on the path that I
took. I’ve often wondered about it.
MS. PORTER: Well then, tell me what subjects you studied in high school.
JUDGE GREEN: The normal subjects that everybody studies: English, social
studies, history/geography, language, mathematics, science, arts, hygiene. Males and females
-18-
were also taught cooking.
MS. PORTER: That sounds progressive.
JUDGE GREEN: Wood and workshop was for the boys only, I have to say.
Those were the customary classes. There was typing, but reserved for those students who were
going to live a life in the commercial world typing and clerking and doing that kind of activity.
While I knew I would have a different working life, I took typing as an elective, hoping that
someday it might come in handy, and indeed it did, because I had a number of jobs later on that
required typing.
MS. PORTER: Which subjects did you particularly like? Or did you like
them all?
JUDGE GREEN: I liked most of them. I liked history; I liked the political
sciences; I liked the languages; I liked anything with English, poetry; I liked biology, chemistry
slightly less, physics not at all, gym, absolutely not, but we’ve discussed that before. I loved
French. I was particularly proficient in that language at the time and went directly to the second
year of French, because my mother, who had lived in Paris for a year, taught me one summer
how to write and speak French. I was quite fluent for a time, but regrettably, haven’t maintained
that comfort level.
MS. PORTER: When you talk about physics and chemistry, in classes did
you have electives or did everybody take everything?
JUDGE GREEN: Everybody took everything to the best of my memory, except
for typing. There were a few other courses, not recalled now.
MS. PORTER: So you had girls as well as boys doing these heavy science
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subjects.
JUDGE GREEN: Yes. Lots of laboratories. Excellent public schools, really
wondrous schools. Now, when I think of the demise of the public school systems, particularly in
large cities like Washington and Baltimore (with which I am more familiar because my daughterin-law is a high school teacher), it’s just astonishing and sad.
MS. PORTER: At Towson were there any black students?
JUDGE GREEN: I do not think so. Fifty-five years later I do remember some
persons of color from those days, but not at school, and only a few in the community. This was
long before profound civil rights legislation and Brown v. Board of Education.
MS. PORTER: Now I’m going to switch around on you a little bit. We’ve
talked about when you were in high school and basically that’s during the years of World War II,
but we haven’t really talked about whether there were any discussions of that in school or what
you remember about being alive at that particular time in U.S. history.
JUDGE GREEN: My entire high school years spanned the time when our
country entered into the war, December 1941, and the ending of the war in Europe in May 1945,
and with Japan in August 1945. Those were the years that our country went through an
extraordinary time; patriotism was reflected in everything, in the newsreels you would see at the
movies, in the rationing, in the attitude of the people to do what had to be done, with dignity,
perseverance, uncomplaining, and with a determination to win this war and bring home safely our
service members. You would have butter, fats, gasoline, meats, dairy products, eggs, all rationed.
You would receive the little ration books (I came across one the other day) and would tear out a
coupon every time one of those rationed items was purchased. Purchase of such items could not
-20-
be more frequent than the specific regulations allowed. People accepted this without question, as
essential to the war effort. We would listen to Gabriel Heatter announce the news, and Edward R.
Murrow broadcast from London the plight of the world, as the bombs rained down. The radio
was our anchor in all of this (there was no television). Patriotism was strong: as example, when
Kate Smith sang “God Bless America” on the radio, I would stand up to salute our country. My
brother went into the service, so that had a dramatic effect on our family.
MS. PORTER: When did he go into the service?
JUDGE GREEN: He enlisted in the Navy when he was just a few weeks shy of
his 18 birthday in order that he could get into the emerging field of electronics. He served there th
for over two years, and because of his extraordinary ability in engineering and the new electronics,
he was at the forefront as our country confronted with sonar and radar guided missiles – those
scientific matters we take for granted today. He couldn’t discuss any details because his work was
highly classified. At 19 years of age he was a naval instructor, teaching people often twice his
age. The Navy kept Russ in the territorial United States because of his usefulness. Honorably
discharged, he entered the University of Maryland.
But, back to our time of the war, this was the moment when young people, such as
I, would write letters to the servicemen overseas, people we had never met; I can imagine how
enthralled they must have been to have received a communication from a 13-year-old or 14-yearold. But they did write back, so hungry they were for news from home. And then my mother, so
gentle and such a homemaker, who had never worked for pay, decided she could no longer sit at
home when our country had a tremendous need of civilian services. She worked for about two
years in a factory which made small parts for radios to be used on the battlefield for
-21-
servicepersons to communicate with each other. Classified work, that’s all I know, except I have a
strong memory of her coming home at the end of each day for weeks after she started working,
with her palms bleeding from the precise and detailed work that she was doing. But, she was
absolutely determined, just as she was in the flu epidemic in 1918, that she was going to do her
part, and then, when she felt she had done sufficiently, she came home to be a total homemaker
again, wife and mother. Gentle as she was, she had that incredibly tough fiber, and when
something had to be done, she would see that it was. Never complained. I cannot recall my
mother ever complaining about anything, even when she disagreed with situations or was
devastated by her final illness years later. A truly remarkable woman. This selflessness left an
enormous impression, telling me, through deeds, that when you encounter a challenge you do
what you must to meet that moment in life.
MS. PORTER: Do you have any recollection now of how the ongoing war
affected the boys that were in school then? They were thinking about careers, thinking about
going into the service?
JUDGE GREEN: Unlike Vietnam, and Korea, to a lesser degree, it was
considered an honor and privilege during World War II to go into the service. They would line up
and, if rejected, would return again and again for further evaluation. Nobody considered
deferring. Because my brother was so underweight, at first the Navy was not going to accept him.
He said he would gain weight and persisted. He didn’t get very many pounds on, but his tenacity
saved the day and the Navy gained tremendously. It was unquestioned that if you were of age you
would go to service unless there was something extraordinary that prevented you from doing so.
And you knew that you might not survive. This was a very dangerous war, so far away from our
-22-
shores, but everyone rallied. I’ve never seen this country as unified as it was at that time and that,
too, occurring during pivotal years, left an enormous impression.
MS. PORTER: Now it’s 1945 and you’ve graduated from high school.
Obviously for a young woman in that particular time and place, having a career, even going to
college, is not something everybody did. What do you remember about when you started thinking
about having a career?
JUDGE GREEN: I have always known that I was going to have a career. When I
was very young I thought I was going to write the great American novel. I loved to write and
would constantly be slipping notes under my parents’ pillows, usually complaining about what my
brother had done or writing little snippets of poetry sharing thoughts. But rapidly on, perhaps 11
or 12 years of age, I determined that I wanted to be a doctor, a psychiatrist like my dad, whom I
adored, and then, after accomplishing that I wanted to follow with marriage and motherhood, like
my mother, whom I also adored. In short, I really wanted for my life the best of what I saw in
them. There was never any question in my mind that I’d go on to college, then go on to medical
school, that I would have a family. I would do all these things. My parents heartily encouraged
all.
MS. PORTER: How many women went to college then?
JUDGE GREEN: Not many. It certainly wasn’t customary, but I had very
forward-looking parents who, from the earliest of my life, discussed as a matter of course that my
brother and I were going to have fine educations. For me, they hoped it would be a career in
medicine, but, if not medicine, then another profession. Again, unlike these days, there were no
entrance examinations, no SAT. I had excellent grades and many extracurricular activities. I
-23-
graduated third in my class at Towson High School of several hundred graduates, so I would have
had no problem getting in any college. But I never applied to any but my local college, the
University of Maryland. I was 16 years of age and I think I recognized that I was a bit young to be
traveling, but I didn’t focus on that. I knew I was immature and there was simply never a longing
to go somewhere else.
MS. PORTER: Was it common then for kids to go away to college or was it
more common for kids to go to college closer to home?
JUDGE GREEN: It was the latter. My first two years I did live on the campus of
college and then during my second two years I was what was called a “day dodger,” meaning that
you commuted. But, let me digress. During the summer between high school and college I had
my first 40 hour a week job. Up until then I had done some babysitting for the high school faculty
and neighbors. I had operated a switchboard, and in those days you would plug into the
switchboard. Of course, I unplugged people more frequently than I plugged them in. I had my
first full-time job the summer before I went to college just after my high school graduation. The
company, Butler Brothers, in Baltimore, was a merchandising house, something similar to Sears
Roebuck and Montgomery Ward, and the work that we did was piecework. One hundred women,
the proverbial 100 women sitting in a room, each at her typewriter (here’s where typing came in
handy) and hitting a steel blade, which was the tab on the typewriter, so it would deeply crease the
hands; and there was a small meter in back of the typewriter that noted the starting and ending
point daily to reflect productivity. There was but one man. His full duties were to walk around
the room ceaselessly, loading each person with paperwork when it began to look as if the
employee was going to run out of work. I had a supervisor who was an absolute tyrant, who,
-24-
when I recklessly told her one month after I started, and two months before I was to complete, that
I was going to be leaving at the end of the summer, refused to talk to me until my last day of
work. I learned for the first time there was such a thing as a coffee break, both morning and
afternoon for 10 or 15 minutes. I was sent out to stand in line to get the cigarettes (another item
that was rationed) for the women who smoked, and after a while I thought I should do this for
myself. So, I bought my first pack of cigarettes, red tipped Marlboros, went home and asked my
mother if she would teach me how to smoke. Since she never had smoked, the teaching (and
learning) became tortured, but she preferred that I tell her about it than sneak it. And then I, too,
smoked, but, in all seriousness, I did not inhale for the first few months. I know it’s a joke today,
but anyhow, I benefitted life-long lessons which I share about that summer job. That summer I
earned a total of $219.08, from which $22.10 was withheld for federal income taxes. I learned
that the 99 other women were going to have to support themselves and their families for the rest
of their lives. I was going to escape to college at the end of the summer and so my life was, even
then, recognized as tremendously better. I learned that these wonderful women were remarkable
and they took good care of me because I was the youngest there; they could not have been more
caring. They saved their hard-earned money to buy this girl a pink angora sweater as a goingaway gift, which shed on everything but was worn and treasured for years. I learned that you have
to leave people with dignity and hope, something I have tried to teach my children and all my law
clerks and something I’ve tried to put into effect as I pass through life. There was a day when I,
not challenged by this boring work, decided there had to be a more stimulating way to do it; I was
going to be the fastest in the room just one time. I worked breathlessly and as fast as I could. I
got down to the last piece of paper on my desk as I glimpsed the man with his load of papers. I
-25-
typed faster and faster, but I didn’t make it. I was still on the last two lines on that last piece of
paper when he piled perhaps a hundred pieces of paper on top of it. At that point I didn’t care if I
did anymore or not. It took away all hope. And these are the things that you learn and carry with
you in life. I have thought of that innumerable times. A great lesson. People need
encouragement, need to be left with dignity, need to have hope, however tiny.
MS. PORTER: And so, you got your pink angora sweater and you went off to
college. What did you decide to study at college?
JUDGE GREEN: Pre-med. Pre-med was a three-year course that combined all
of the general courses one takes in a university and, in addition, has many numerous specialized
courses, including laboratories, zoology, hematology, invertebrate anatomy, vertebrate anatomy,
inorganic chemistry, organic chemistry, languages, scientific German, physics, calculus, intended
to lead the way to go to medical school some day. So that was three years of your four in college,
and in your fourth year electives were available and other matters to make college a bit more
pleasurable. My family was elated that I was going into medicine. My brother had decided to be
an engineer as I noted earlier. But after my first semester, even during my first semester in
college, there I was at 16 looking at least at 12 more years of education to become the psychiatrist
I wanted to be; it seemed forever, it was forever. And working on cats and on inanimate objects
in laboratories did not thrill me. I announced to my family that I did not want to become a doctor
since I could not work with humans for years to come. We struck a bargain – a compromise, the
way our family often resolved impending disasters. If I would finish the three years pre-med and
all essential courses, should I still want to give up a career in medicine, then my parents would
support and encourage whatever I chose and I would not be hassled further about my decision.
-26-
Alternatively, if I decided to become a doctor, I would have all requisite courses to apply to med
school. This was a win win and I agreed, but never wavered, never applied to medical school and
took double the normal amount of credits in my senior year to graduate with a major in
psychology, a minor in English, in addition to the three years pre-med.
(TAPE 2 A)
MS. PORTER: This interview is being conducted on behalf of the Oral
History Project of the District of Columbia Circuit. The interviewee is Judge Joyce Hens Green.
The interviewer is Jennifer Porter. The interview is taking place on September 1, 1999, in the
judge’s chambers. This is a continuation of the interview on tape one. Joyce, you were talking
about going off to college and studying pre-med and the deal that you made with your parents.
One thing that interests me, and hopefully it will interest other people – not many women were
doing this. Talk about the other women who were in college with you. Were there others?
JUDGE GREEN: Oh, yes. There were a number of women who had come from
high school with me and, of course, from other high schools around the country. Certainly
women were not in abundance in the school, except for the first half year. The war having ended
in August 1945, the small college population of 3,500 gained 5,000 people six months later,
swelling its resources so much that Quonset huts and makeshift housing accommodations were
needed. Some of the matriculating veterans had families, not only wives, but also children; they
were much more mature than we who came directly from high school. During the succeeding
years they came by the thousands, so that the 3,500 population college, to the best of my memory,
was something like 15,000 by the time I graduated. An enormous change in the dynamics of the
school: the faculty of the school, the instruction you received, the seriousness with which the
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veterans tackled the education, the usual disdain for fraternities and sororities, and the pranks that
accompanied this society. It was an extraordinary time to go to college, from 1945 to 1949, when
I received my B.A. But, to answer your question more specifically, there were a number of
women who went to college. Most went in the teaching profession, some went into the home
economics area, only a few intended to continue to graduate professional schools. Of my
particular class that graduated from Towson High, I was the only female who sought to be a
doctor.
MS. PORTER: You were so much younger than the average.
JUDGE GREEN: Yes.
MS. PORTER: And now you’ve got this older population coming in and you
are young even for college – how did that affect the way you fitted in at school and the way you
felt about college? You were 16.
JUDGE GREEN: Interestingly, it was, how shall I put it? Very invigorating. I
enjoyed it, I thoroughly enjoyed it. It was nice being the young one and yet being able to
accomplish many of the same things others did. I have to say, yes, when you were dealing with
veterans who are six years older than you or ten years older than you. You are asked for a date to
go to a dance. In those days you had the big dance bands, like Harry James. These dances were
occasions you eagerly looked forward to all year. You wear formal ball gowns and it was
expected that your date would bring a corsage. These were the big social events in college. Then
some unwary individual, whose invitation I had accepted to the dance and who had not realized
my youth, would ask, “How old are you?” When I said 16, we would stop right in the middle of
the dance and have a little discussion. I found this very amusing. Actually, my dates bravely
-28-
accommodated themselves to the situation. At the same time, because I was a pre-med student, I
had laboratories to go to at inopportune moments, so I would say, for example, at a dance,
“Excuse me, I have to go to the laboratory and turn over my slide.” It is not enchanting to come
back to the dance reeking of formaldehyde, as I can remember doing, particularly when you’ve put
on your best perfume to go with your ball gown. But I took those things in stride. Wonderful
suitors also took them in stride. I was maturing rapidly. The vast majority of my friends were
kind, accepting and really sensitive to the fact that I was younger. I was treated very well indeed.
It certainly could have been otherwise. I thought then how lucky I was; I know now how blessed I
was looking back on those tumultuous times.
MS. PORTER: How did the professors deal with women in their classes? Premed is a fairly untraditional program. There wouldn’t have been many young women there,
particularly not as young as you.
JUDGE GREEN: I was usually the only woman in the class of any age and just
accepted that I would be the only one. I do not have a memory of being “picked on” in college, or
discriminated against as we would say in modern times.
MS. PORTER: Picked on is what I had in mind.
JUDGE GREEN: Picked on. All right. I don’t remember being picked on, but in
college we also had much larger classes. In many of our courses we had classes of 300, some
were much smaller, about 30. The laboratories were smaller, yet I still remember chemistry was a
class of 300 in an amphitheater. Everybody was treated like everybody else, as best as I can
recall, but what I do have a striking memory of is the scholarship and the effort put forth by the
returning veterans, utilizing the G.I. Bill of Rights, compelled to be the best they could be as fast
-29-
as they could be, to learn and then to go out and earn. They had lost these years and they were
reclaiming them in the finest way they could. It inspired you to do better, too, it really did. I think
it made a big deal of difference in my approach and in my gaining maturity and learning about the
ways of the real world.
MS. PORTER: You mentioned before that you lived on campus for two years.
JUDGE GREEN: I did. It was called Anne Arundel Hall and C Hall. Two
different residence establishments for women; they had others for men; I commuted my last two
years.
MS. PORTER: And what do you remember about the first two years there?
Like the communal life in a college.
JUDGE GREEN: Lots of fun. I became more of a social butterfly than perhaps I
should have been at that time, but it was my growth period. All the things that I had missed in a
social sense in high school, as far as dating and going to dances, rapidly advanced when I got to
college. I had a great time yet kept up my grades, continued involvement in extracurricular
activities, such as writing for the school newspaper, the Diamondback, and engaged in many other
matters, despite the extraordinary length of my class/lab hours as contrasted with the average
college student. With those laboratories and the multiple science courses, I was always going to
class while others were lounging under the trees or calling someone for bridge. It’s my excuse for
not being able to play bridge today – that I never had the time to learn. Of course, decades have
passed, excuses run thin.
MS. PORTER: Yes, but you’re good at poker.
JUDGE GREEN: That’s true.
-30-
MS. PORTER: Tell me something about – you lived two years on campus and
then there were two years off campus. Where did you live?
JUDGE GREEN: At home. And commuted from home daily and (laughter) in a
wreck of an old Hupmobile. People don’t even know it, so I’ll spell it for you, h-u-p-m-o-b-i-l-e.
MS. PORTER: Is this a real car or is this your nickname for it?
JUDGE GREEN: A real car. It clanged and chortled along. My brother drove it,
and there was the pesky sister again that he had to drive to class, as he drove himself to class,
because, after my brother finished his tour in the Navy, he came to the University of Maryland,
ending up two years behind me, even though he’s two years older, because he had to replace the
years lost while in the Navy. We took different courses, but he was very helpful at dramatic
moments, such as the night before a huge examination in organic chemistry when I called for help.
He has always helped me along the way.
MS. PORTER: What do you recall of the extracurricular activities that you
were involved with in college? What sort of things were they?
JUDGE GREEN: In addition to working on the newspaper, I was in a sociology
club that dealt also with political affairs, I belonged to some language clubs, keeping up my
French, and also, because I was required to study scientific German. I joined the German Club. I
continued to play my violin, but soon thereafter gave it up recognizing that I was not a virtuoso,
nor would I ever be. I have no regrets about that. I also was enamored of fun times and became
the sweetheart of a fraternity. I was a chum of the head of the fraternity, that might have had
something to do with me being eventually named the sweetheart of the fraternity and – well,
you’ve asked things that shaped me along the way and that’s why I’m going to put this oral history
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in embargo for a while (laughter), perhaps a long while.
MS. PORTER: What did you have to do – I’m almost hesitant to ask, but what
sort of things were entailed in being the sweetheart of a fraternity?
JUDGE GREEN: I attended their functions and dances. I helped them when they
had a float, for example, that went around the entire football field on the occasion of a football
game and in those days Maryland’s football team was ranked the number one college team in the
United States. Bear Bryant, the coach, left Maryland football to go to Alabama. It really was an
extraordinary time. I sat on the float as they tooled me around the field, at intermission, wearing a
huge thing around my neck in the shape of the emblem of the fraternity that was signed by all the
fraternity brothers on the back. What did I have to do? I had to be a pleasant person, that’s all.
MS. PORTER: Well, that sounds easy for you, Joyce.
JUDGE GREEN: People had a great deal of enthusiasm at this time and
encouragement and hope for the future. Those miserable war years were behind us and the future
was ahead and people were excited about it. There was a vibrancy out there.
MS. PORTER: Well, I think it has to be said about you, Joyce, that when
people talk about you they describe you as a liberal judge. Were you involved in political activity
at that time? Were you interested in politics? If you were thinking back on your early life, where
do you see the origins of this liberal streak?
JUDGE GREEN: It clearly comes from my parents, who daily demonstrated by
word and action and unbiased attitude. It is one of the reasons that I’ve mentioned how rich we
were once and how poor we became. It is important to know that I viewed both sides of life, but
always had security and comfort. I truly believe in the inherent goodness of people (while
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accepting that there is a downside, but optimistic about most), that everyone should be treated
equally and fairly to reach his or her capacity to determine self worth, based on inherent abilities
and soul, no matter the race, size, gender, origin, nationality, politics, education, and economic
status. My brother and I were treated equally, a male and a female in the family – there was never
a question about it. I have to give credit to my parents for that – it started there. Did I do anything
outwardly in politics? No. In college you all participate in the small political matters that are
ongoing and I did no less than any others, but was no crusader. The only thing I can remember
that had to do with politics, and it did not have to do with liberalism in any way, was an
assignment I had in one of my psychology courses. At that time there was the 1948 Truman/
Dewey impending presidential election. Dewey was expected to handily win the election. One
assignment was to go out and poll neighborhoods, soliciting that which we deemed was the
wealthy neighborhood, a middle-class neighborhood, and a poor neighborhood. We were to
knock on doors and ask a series of questions we had created to determine how and why the people
were going to vote in a certain manner. I had good friends who insisted on protecting me who
waited outside the strange homes I would enter. If I didn’t come back in 15 minutes they were to
come in and rescue me. How naive we all were. I shudder as I relate the foolhardiness. I picked
a plumber in Georgetown, I found a poor person, a bit into drink, and I landed at the home of
Daisy Harriman (Averell’s relative), then our Ambassador to Norway, who lived at this home.
She insisted I have tea with her. I had to go out and tell my friends I would not be back in 15
minutes. Ambassador Harriman and I talked about life in general, and the world in general.
That’s not political. It was just an assignment, but I found it exciting and interesting and I liked
doing it. Everyone talked to me. The plumber told me about his life and why he did what he did,
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and when he did it and how he did it. Very enjoyable. And how he was going to vote. I don’t
remember how any of them were going to vote specifically at this time, but I dutifully took it
down; I wrote a paper on this and found it an enjoyable task. I never wanted to go into politics,
but always thought it would be interesting to work behind the scenes, to support and stimulate a
candidate, or write speeches for a candidate, and I savored that thought for some time.
Between my second and third year in college I also became briefly engaged.
MS. PORTER: To be married, as opposed to something else?
JUDGE GREEN: To be married. I was 18. He was 19. We were both too
young and immature and had no independent means of support. I broke the engagement at 19. I
hadn’t really planned ahead and, anyhow, life went on and I graduated from college in 1949 and
got a B.A. degree. I could have gotten also a B.S. degree, we just didn’t do the doubles in those
days, but I had so many science courses that would have been easy. I was a good student, I had a
good record, and I had absolutely no idea of what I was going to do in the long future ahead. I
truly had been so busy in college that I hadn’t given the thought that I should have to the next step,
but I had never considered being a lawyer.
MS. PORTER: You say you got a B.A. What were your majors and minors?
You mention a lot of science courses.
JUDGE GREEN: As noted earlier, I majored in psychology, expecting at that
time that I probably would need at minimum a Masters Degree, and more likely a Ph.D. in
psychology to be a psychotherapist. That was fleetingly in my mind. I minored in English, I had a
great many courses in English as I liked to write and I continue to write. In fact, I kept diaries for
years and years, but all of them have gone by the wayside, probably during moves to residences
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and schools. I’m somewhat rueful that I don’t have them now because it certainly would help jog
the memory of more intimate details, but perhaps, more likely probably, I wouldn’t have shared
them with you. (laughter)
MS. PORTER: Thank you for that vote of confidence, Joyce. Well, so now
you’ve graduated, it’s 1949, what happens next?
JUDGE GREEN: What happens next is that I applied for one job only, and
looking back, it would have been interesting. That was to be the manager of employee relations,
that is hiring and firing employees of all the Marriott endeavors in the Washington metropolitan
area, for each of its restaurants, hotels, and motels. I’m 20 years old; I look 16. I have freckles.
My hair is sometimes braided on the top of my head and sometimes otherwise. The people I
would have had to work with were the cooks, the waiters, the busboys, the hotel clerks, the
chambermaids, the porters, the elevator and doormen personnel. While the interviewer, and the
ultimate decider, really liked me, persistently calling me back for three separate interviews over
several weeks, I was finally told I was too young and there was a concern that I would be unable
to handle these people, so much older and worldly than I. So, now, I didn’t have a job, I’d just
been rejected, and I didn’t know what I was going to do with the rest of my life. But, fortuitously
or otherwise, my former fiancee reappeared in my life briefly. He was a law student at
Georgetown and encouraged me to go to law school; there also was a woman lawyer, a great
friend of the family, very influential. She was a tax lawyer at the Department of Justice who
opined that I’d make a fine lawyer. With encouragement like that, and as the granddaughter of a
lawyer, I decided to apply to law school less than two weeks before law school began. This could
not be accomplished these days, but remember, we did not have to take tests. I applied to one law
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school alone, just like I had applied to one college only, and that was to the University of
Maryland Law School. All their professional schools are in Baltimore. They wrote back and said
their class was filled, but to send them my transcript. I did and by return mail I was told I was
now in their class of 052, and I should come immediately. I cannot sufficiently stress how
unprepared I was for this evolving event, but exhilarated about the idea of preparing for a
profession. The more I reflected on it, the more I became excited about the public service I’d be
able to do some day and how much I was going to learn. I went to Baltimore and looked for an
apartment, determining that I would live by myself for the first time in my life and, after three
days, changing my mind. I found an apartment, a second floor walk-up, and had a remarkable
time at law school.
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ORAL HISTORY OF
HONORABLE JOYCE HENS GREEN
Second Interview – September 16, 1999
MS. PORTER: We are resuming the interview with Judge Joyce Hens Green.
We started on September 1. It’s now September 16, 1999.
JUDGE GREEN: I must say, Jenny, you have picked some day to conduct this
interview, because this is the second worst hurricane we have ever encountered in the history of
keeping records, Hurricane Floyd, which is battering our area as I speak. And, of course, three
years ago we had the blizzard of the century upon us and I’m sure we did something amazing that
day also. But at least we are diligent and finally, finally moving on our mission here.
MS. PORTER: That’s true. We are trying to overcome our failures today, I
guess. When we concluded on September 1 , you had just started at law school in Baltimore and st
you decided that you weren’t going to live alone in your second floor walk-up. How did you find
yourself a roommate?
JUDGE GREEN: By posting notices in each of the professional schools of the
University of Maryland, all of which were located in Baltimore, and I received a response from a
third year student, then Dorris Pencheff, now Dorris Harris, a third year medical student interested
in sharing my modest $54 a month furnished efficiency. And so we shared forces, which included
dividing the rent right down the middle. She remains one of my best friends today and we share
our children’s experiences now as well as travel together often.
MS. PORTER: Was this apartment within walking distance of the law school,
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or did you have to have transportation as well?
JUDGE GREEN: It wasn’t within walking distance. I was fortunate to have a
fellow law student who wanted to come by and pick me up every day to take me to school. I
accepted with enthusiasm and Dorris took public transportation.
MS. PORTER: Well, you started law school with the first year subjects, the
same way as we do today?
JUDGE GREEN: The same basic subjects that we do today, but all were together
in the same room – it was a sizeable auditorium – for each of our classes the first year. There
were no electives, so it was an intense, regimented time. I loved the law immediately and realized
it was what I had been searching for a long time; I was being fulfilled very rapidly.
MS. PORTER: How many people in your class?
JUDGE GREEN: It’s difficult to remember, I struggle to do so. I think there
were about 120 in our class, that’s my memory at this time, and of the 120 there were three
women, including me.
MS. PORTER: Were you divided up into sections? Not the women, I mean
the class.
JUDGE GREEN: No, not divided into sections. We were divided alphabetically,
so whoever’s name would alphabetically adjoin my maiden name, Hens, was someone that I
would join forces with in discussing the law.
MS. PORTER: This wasn’t 120 people in one class – when you went to
contracts were there 120 people in the class?
JUDGE GREEN: Yes.
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MS. PORTER: That sounds intimate, doesn’t it?
JUDGE GREEN: (laughter)
MS. PORTER: So you took to law school like a duck to water. What other
sort of things happened in the first year?
JUDGE GREEN: Well, within two weeks of starting law school I came down
with a serious, but unknown, central nervous system ailment at the time. I was suddenly partially
paralyzed, after having, most unusually, felt odd and tired for days. I left for home immediately,
was hospitalized, and shortly thereafter diagnosed with atypical polio. In those days the only real
solution was the iron lung. The Salk vaccine was not yet in use. I was filled with all sorts of
medications, including penicillin, and treated to several spinal taps. I was paralyzed from the
waist down and fed intravenously. I was not placed in an iron lung, but the possibility loomed. I
was 20 years old, my family was terrified, I was equally so. I was most concerned that having
been such a short period of time in law school and having heard of the rigors of professional
school, that to be out for the three weeks that I was, they might not take me back. But to the
contrary, my professors were wonderful and had saved their notes for me and the students had
saved their notes for me as well. Everybody helped enormously, and, miracle of miracles, I had
absolutely no vestige of that illness after I returned to school. I was one of those very, very
fortunate people who survived polio without any lasting problems.
MS. PORTER: And how long were you out?
JUDGE GREEN: I was in G.W. University Hospital for two weeks, told not to
go back to school for the third week,and then the doctor would see me; but because of the concern
I just mentioned, I stealthily returned to Baltimore and law school immediately after discharge,
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later going to my neurologist for my appointment, whereupon I confessed and he banished me
from his office, but forgave after a few moments, expressing his amazement at the rapidity of my
bounce back to health.
MS. PORTER: You said you were paralyzed from the waist down. Did you
have therapy for that or did it come back?
JUDGE GREEN: It came back to normal. They tried all sorts of things. Because
my dad was a well respected, beloved doctor, and because I was such an oddity, people came from
NIH and elsewhere to examine me, to use whatever experimental matters that they had. They
were focused on stopping the process, and bit by bit everything came back and I didn’t have to
continue any particular physical therapy. I was given a little bit of therapy, but none after I left the
hospital.
MS. PORTER: Was this a time when there was an epidemic of polio?
JUDGE GREEN: Yes, there was an epidemic of polio. I wasn’t aware of it at the
time. The doctors told me of the danger I was in. I just knew something very serious had
happened and was confident the doctors would find out whatever it was, but whatever it was it
was acutely serious and needed immediate attention.
MS. PORTER: So you went back and finished up the first year. Now I, in my
knowledge of you, Joyce, you graduated from G.W. Can you explain this transformation to us?
JUDGE GREEN: Maryland Law School did not have a summer school session at
that time. I’ve always been in a hurry and thought it would be a plus if I could save half a year by
going to a school that had a summer school session. We lived in the area of Washington, D.C., so
it was appropriate to go to G.W. Also, G.W. had a couple of courses that I was interested in
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taking that Maryland, at least at that point, was not providing to a law student who had just had
one year. So I applied to G.W. G.W. took me as a special student because they, and I, expected
me to return to Maryland. The dean of the G.W. Law School, Dean Oswald Colclough, called me
aside early on and suggested that I remain at G.W. Law School, that he was very pleased with my
performance, and if I went through the following summer, as eventually I did, I could actually
graduate from law school in two years, rather than in the normal three, or two and a half had I just
used my acceleration of that 1950 summer. And so, by going through double summer sessions for
two summers, I did graduate from law school in less than two years.
MS. PORTER: This is giving me the impression, Joyce, that you are fairly
driven.
JUDGE GREEN: In a hurry, only in a hurry. That kind of driven.
MS. PORTER: When you were in law school, were there courses in particular
that interested you?
JUDGE GREEN: I was interested in evidence, in criminal law, in antitrust, and
in constitutional law. I enjoyed other subjects almost equally well. There was a rare subject,
negotiable instruments, that was not my favorite subject, but interestingly enough, my professor,
Professor Orentlicher, was a remarkably wonderful person whose doctor son, many years later,
became one of my interns on the federal court.
MS. PORTER: What electives did you take?
JUDGE GREEN: You are putting me to memory task – what electives did I
take? I took trusts, taxation, philosophy of the law, literature in the law, creditors rights, conflicts
of law, and others.
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(TAPE 2 B)
MS. PORTER: This is a continuation of the interview being conducted on
behalf of the Oral History Project of the District of Columbia Circuit on September 16, 1999.
Joyce, you were saying you finished law school in two years. That’s pretty quick.
JUDGE GREEN: It is quick. And as I indicated, at the suggestion of the dean of
the law school, I did go through the two double summer sessions. I completed law school in May
1951, with the necessary credits for graduation.
MS. PORTER: That’s what, 18 months after starting?
JUDGE GREEN: Well, I started in September of 049, so if I do the calculations,
about 20 months. At that point I had asked and received special permission to take the bar early,
before graduation, in June 1951, because I had completed the necessary credits for graduation and
because my mother was dying then of cancer. I hoped that I would have some good news for her
about my profession before she passed away. G.W. has graduation ceremonies three times yearly,
around or on important holidays: George Washington’s Birthday, Memorial Day, and Veterans
Day. I wanted to graduate at the November ceremony, since the bar results would be announced
by August or September. But, although I was then awaiting the results of the bar, G.W. said no,
not so quickly. I had gone so fast through law school, in 5 l/2 semesters, and G.W.’s
regulations required six semesters, so I still had half a semester to go. All I had to do was to pay
the tuition, take a course that I hadn’t taken before, it made no difference if I attended the class or
passed or failed the course, as long as the tuition was paid, so that is what I did. I took a course
that my memory tells me was called something like alternative remedies. I passed, but it was
forgettable. I just recalled another elective taken – a writing course. Today people are taught to
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write in law school and have such special courses, but in my day that was not considered as
important, or even an important element of the law school curriculum. It was assumed this was
picked up afterwards, appropriate to whatever you were going to do in the profession.
MS. PORTER: It’s hard to imagine that you would have had time to do any
extracurricular activities, but I feel I should ask because I’m sure that you’ve got some tucked
away there.
JUDGE GREEN: There were two main ones. I was the manager/secretary of the
G.W. Law Review, for which I was paid $75 a month, in those days a very handsome sum of
money, and I was responsible to see that the others who were on the law review, as I, performed
each of the tasks that they were supposed to do and assured that whatever mailings had to go out
were accomplished. So, it was a multifaceted job, wonderful because of my academic standing,
not only had I been elected to be on the law review, I was the only one who got paid for my
services there. The other matter that I did and spent a great deal of time doing was trying to find
positions for people who were going to graduate from law school. We did not have a career
development office then, nor any administration office that found positions for law students. This
was volunteer work done by law students. So I was appointed to this committee and became the
chair of it. It was a delight to contact law firms to ascertain interest in interviewing any of our
students, posting those notices on the boards, advising the students of what was available or what
could become available, matching one interest to the other.
MS. PORTER: Did this give you an insight into what you were interested in
doing with the opportunities?
JUDGE GREEN: It gave me the opportunities. I didn’t take advantage of the
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opportunities, but there was one tantalizing job that I will always remember. I was not
disinterested, but did not apply, although many actively pursued it. That was a job in Alaska for
$5,000 a year. Bread in that state costs one dollar. You have to understand that in those days
bread might have cost 15 to 25 cents here in the continental United States. One of the students
did take that position.
MS. PORTER: Did G.W. at that time have clinics as part of its curriculum?
JUDGE GREEN: No, what a disappointment. It did not have any clinics. It was
something that I thought then it should have had. Today it does have a number of substantial
clinics that do really excellent work. I think it’s a superb way for a young person to learn what
public service is about, to try and start honing the ethics and academics of their education, and at
the same time help people who need these services. What we did in my student time was to go to
the courts, the local courts of Washington, and the federal court (then a combination local/federal
court) and just sit and listen to whatever was going on, and when you had enough, to walk to
another courtroom and listen to what was going on in that courtroom. The fact is, fellow students
and I didn’t know whether the matters illuminated were correctly done or decided, but it was
helpful to get this sense of it, the atmosphere. Once again, the experience helped push me in a
direction that I eventually became a litigator.
MS. PORTER: You mentioned when you started at Baltimore that there were
three women in your class. How many women were there in your G.W. classes?
JUDGE GREEN: At the top, meaning at the highest number of women, there
were six in the entire day and night school at G.W., during the very brief time I was there.
Remember I was a day student there approximately a year, a little bit over a year, from one
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summer to the end of the next summer, so during that racing through law school, those are the
numbers that I was advised were present at the school. Several were women I met when I joined a
professional sorority, Kappa Beta Phi.
MS. PORTER: Let me tax your memory. Do you remember who the three
women were in Maryland?
JUDGE GREEN: The other two were May Green, who, a number of years after
she married, became a public defender in Baltimore, and there was Elsbeth Levy, who became
Elsbeth Levy Bothe in subsequent years, and she was a practitioner, also a public defender,
member of the Maryland Constitutional Reform Committee, and then, subsequently, a renowned
judge of Baltimore City, where she served for many years until her recent retirement.
MS. PORTER: And after your first year experience did you remain friends?
JUDGE GREEN: Oh, we have remained good friends. I have seen May Green
only briefly through the years, but not nearly with the frequency that I have seen Judge Bothe.
You will recall that the judge sat directly behind me with the alphabetization in the class: her
surname began with “L” in those days and mine with “H,” so we would constantly talk to each
other.
MS. PORTER: How about G.W.? Did you share classes with any women or
were the six spread out through other classes?
JUDGE GREEN: I did. The ones I remember most particularly were Catherine
Kelly, who subsequently became a judge at the D.C. Court of Appeals, with a sterling reputation,
Jeanne Dobres, who became one of the chiefs of Internal Revenue, Kitty Frank, who went into
practice in the State of Maryland, and Frances Nunn, who practiced briefly, among others.
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MS. PORTER: There were so few of you, did you have a sense of camaraderie
or did you stick together?
JUDGE GREEN: We did stick together to a great extent. We shared class
experiences, subsequently other experiences in taking the bar examination, which immediately
followed the May graduation ceremony for the other students, and before I graduated. I took my
bar examination before I graduated from law school, and subsequently was admitted to the bar one
day before I formally graduated from law school.
MS. PORTER: Joyce, with so few women in law school you must all have
stood out rather like sore thumbs.
JUDGE GREEN: Well I hope that we weren’t sore thumbs, but we certainly
stood out.
MS. PORTER: How did the professors deal with that? I know that when I was
in law school some professors made a special point of calling on women more frequently or for
particular issues. There were so few of you in the class, did you have any experiences like that?
JUDGE GREEN: I did. When women of my generation talk about their times in
professional schools and in law schools different from the ones I attended, their recitation is so
very similar to mine. There was a professor at Maryland who always called upon one of the
women in class to recite page 100 of the criminal law book. Page 100 dealt with a particularly
salacious situation involving a rapist, graphic detail about that person’s activities and the defense
that he raised; I knew before I went to the first class in law school that when page 100 was
reached, one of the three of us would be chosen to stand and recite. And if she was able to get
through that session without fainting, without blushing or stammering, without embarrassing
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herself, that professor would never call upon her again. That’s exactly what happened. Guess
who was the chosen one my year? I managed to get through it without doing anything horrible
and I was thereafter ignored by our learned professor for the rest of the course. In G.W. I had a
professor who called upon me every day to stand and recite/analyze daily, he did not call on any
male students daily. I had this professor for a variety of courses, including trusts and estates,
among others. There was a time I was running for a class officer position (the entire slate lost)
and he came up and said he assumed I wouldn’t be prepared for the next several weeks because I
would be engaged otherwise. When I told him, truthfully, I was prepared for the next several
weeks, that was the only time he didn’t call upon me daily. Just about three weeks ago, I received
a letter from him. He has written to me periodically through the years about my professional
career. He had just read a rather lengthy and complicated decision of mine that was profiled in the
newspapers and he wrote me this long letter to tell me how he had always been so very proud of
me from the earliest date. That is enormously heartwarming to me after all these years, but he
certainly did not share those thoughts at the time.
MS. PORTER: Probably figures he trained you well, Joyce. How about your
fellow students? I recall a conversation with one of your law clerks and she was recalling her
experience in law school and various times her male colleagues gave their view that she was
taking a seat that should have been occupied by a male.
JUDGE GREEN: Happily enough, my fellow students were as completely
accepting of me as they were of their male counterparts. They reflected no difference or
distinction, certainly no discrimination. I had a really great time in law school, in both of the law
schools, and that contributed to my love of the law and the desire to learn more and more. I
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relished my time in law school. I know that other people have had unfortunate experiences, but I
was not among that group.
MS. PORTER: You’ve talked about your doing the bar exam and graduating
quickly from law school. What happened next?
JUDGE GREEN: I hung out my shingle in early December, after being admitted
to the bar. For the first couple of months afterwards, though, I was needed at home to help care
for my mother, and after her death, to care for her last matters. So I started from home a very
small private practice. Private it was, much of the time. My mother died in January. Shortly
thereafter, I got an office; did all of my own secretarial work, did all of my messenger work, used
an answering service, and didn’t have a carpet for the first few months. Initially I shared this
office and services with another lawyer. Later I was on my own. I was fortunate enough to be
sufficiently successful (although still partially subsidized by my family) to afford a half carpet,
and then a full carpet, and then a part-time secretary, and then a full-time secretary. A few years
later I joined forces with one of the most esteemed and admired female practitioners in
Washington at that time.
MS. PORTER: Who was?
JUDGE GREEN: June Green. She is my colleague now on the federal court; at
that time she was the premier female litigator in both Maryland and in the District of Columbia,
absolutely respected. She asked me to share office space with her. I did, and we became “sisters,”
and the very best of friends
MS. PORTER: What was the decision process in which you just decided to
hang out your own shingle? This is a tough way to make a living.
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JUDGE GREEN: It is a tough way to make a living and, again, you have to relate
to the period of time in which this was happening. Had I my druthers, I would have been an
assistant United States attorney. I knew that there was remarkable training. You were taught how
to be a litigator and it was an area that fascinated me – the criminal law – and of course, the office
also did extensive civil law for the government. I thought that this would be a wonderful career of
public service and learning at the same time. That was not to be. There were no women invited
to become assistant United States attorneys. My second choice was to be a law clerk, but I had no
idea how one went about securing such a position. I had read in the newspaper about a former
governor of the State of Minnesota, Luther Youngdahl, who had just been appointed to be a
federal district judge in Washington. It struck me that he would need a law clerk, so I made an
application. Of course, I did not know that he had never granted an interview to a woman, much
less hired one. But, wonder of wonders, he granted me an interview and told me that he never had
hired, nor would he ever hire, a woman lawyer. He candidly said he just wanted to see this
unusual creature. When I became a federal judge, decades later, I inherited his chambers, in
which I am today.
MS. PORTER: That seems to be satisfying revenge.
JUDGE GREEN: Oh, it’s not revenge, it’s fate. I think things generally work out
for the best. Perhaps what happened here demonstrates that. A very short time after I hung out
my shingle I was asked by a friend of mine, who had secured a summer position, if I would take
that position for her since she was about to have a baby. I agreed I would take this three-week
summer position, part-time, with a large law firm.
MS. PORTER: What sort of work were you doing with a large law firm?
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JUDGE GREEN: Two of us would go over prior records, since this case had
been twice to the Supreme Court of the United States. We were reading all of the transcripts, all
of the prior pleadings and depositions, in order to make another try. It involved all of the railroads
in America versus all of the trucking associations in America. We represented the then second
largest trucking corporation, Riss Corporation, and the issue was which group (trucks or railroads)
was the appropriate/safest to carry explosives.
MS. PORTER: Do you recall what the law firm was?
JUDGE GREEN: This was the predecessor of the present law firm that bears
some of the same names of the partners. In my day it was called Berge, Fox, Arent and Layne. I
worked directly with Alvis Layne and his associate, Charles Ephraim.
MS. PORTER: And its current day incarnation is Arent, Fox?
JUDGE GREEN: Exactly.
MS. PORTER: How long were you working on this case?
JUDGE GREEN: Well, the three-week, half-day job became 20 hours a day,
literally, every day for four months, at which time I was asked if I would become their first
woman associate – an enormous compliment. I said no because I had that law practice. I laugh
now because the practice was so small then, and I wonder what would have happened had I
become an associate there. But, through the years, a good friendship was retained with some
members; I absolutely relish that brief time. Lots of fun things happened, enormous growth
occurred, and Earl Kintner, senior partner of the firm, antitrust expert and the former chairman of
the Federal Trade Commission, at the time I was invested in the federal district court, was the first
in the ceremonial courtroom more than one hour before the ceremony took place, so that he could
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exercise his pride in that youngster of long ago now becoming a federal judge.
MS. PORTER: What happened with that case?
JUDGE GREEN: What happened with the Riss case? I don’t know. (laughter)
Isn’t that terrible. I don’t know. (laughter) It took years and years for these cases to fully develop,
and at that point I was off doing other things, but probably should have followed through.
MS. PORTER: So after four months you’re now back to dusting off your
shingle again.
JUDGE GREEN: Right, and doing my domestic relations practice as well as
personal injury litigation, civil practice, estate work, probate work, those areas in which I
concentrated the most. I took court appointments; the system learned of my availability, and once
you were found to take a court appointment you are asked constantly to take like cases. As
example, I was appointed to represent a defendant who had stolen 12 cars in a short period of
time, including a deceased judge’s, and then claimed that he had been brutalized by the police.
We developed that case, actually, with the F.B.I. working on it also. We weren’t able to prove he
had been brutalized. While we believed this man, the actions could not be proved, despite
physical signs supporting the allegations of being hit with a large telephone book. The judge’s
sentence was compassionate and understanding, that this defendant, with low I.Q. and illiteracy,
had spent most of his adult years in prison and actually wanted to go back to prison again. He had
security there, he only longed to be taught a trade and to read and write. He kept in touch with me
through many years, as he floated in and out of prisons.
MS. PORTER: You basically were taking anything that came across your
doorstep.
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JUDGE GREEN: Exactly. Another example of a “good” court appointment
would be a person committed to St. Elizabeth’s Hospital (a hospital for mentally ill persons and
for criminal defendants who had, by reason of insanity, been placed there). Such a defendant was
entitled to a hearing each six months, to ask for freedom. A bit disconcerting that as you argued
for his release, the defendant would shout at the judge that he heard sounds coming from the air
conditioning vents and the judge should stop the noise. The judge did not release him and the
decision was not appealed.
MS. PORTER: One of the issues I suppose is of interest to every lawyer is
how you go about finding clients. They just don’t walk across your doorstep. Some do, I suppose,
but how did you go about developing your client base?
JUDGE GREEN: I think my friends, and my parents’ friends, really helped me.
Three were of special assistance. A physician friend of the family asked me to represent him and
his family in a variety of cases, including purchases of commercial real estate, wills, estates of his
relatives. When his patients asked him to recommend a lawyer, he would tell them about his
lawyer. The new clients came for a will or an adoption or an estate proceeding or a personal
injury suit or contract matter. If satisfied with my professional services, they often recommended
me to others, and that’s exactly what happened – by word of mouth – the clients and cases came
on a regular basis. Then there was a vice president at Riggs Bank, who was also the manager of
the local branch of that bank, where I had placed my personal and business accounts. This banker,
who merely saw me deposit monies, asked one day if I would be interested in handling actions the
bank was unable to develop, such as drawing wills, estate probating and representing bank clients
in court. Of course I was interested, and he referred a large number of clients. Lt. Colonel Lily
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Gridley, a lawyer, then the highest ranking woman in the Marine Corps and in charge of the
Corps’ legal assistance office for Marines and their dependants, telephoned one day to advise she
had heard of me and wanted to refer Marine clients on a regular basis for those civilian matters
her office could not handle. Those three persons were most instrumental in the development of
my practice, and the referrals continued for years thereafter. The banker made me his personal
attorney. There were a variety of complex problems that he, his wife, and his young daughter had
through the years. When this good man died suddenly in an automobile accident, his wife leaned
very heavily on me while we completed the estate proceedings, and subsequently. While I did not
take her as a client, as a friend I taught her to write a check (imagine a banker’s wife who didn’t
know how to write a check) and pay the bills and helped her to find part-time work. She wanted
to be the nanny for our baby, but I thought otherwise. The Lt. Colonel and her husband, a retired
Rear Admiral, also became lifelong friends.
MS. PORTER: I don’t imagine there were many women in private practice at
the time.
JUDGE GREEN: Only a few women were regular litigators in the court, trying
cases before judges and/or juries. While others practiced law and argued an issue occasionally,
most specialized in real estate or probate. One female lawyer worked for a book publishing firm
as a journalist. One married and did not practice law afterwards. Another went to Internal
Revenue. Several became government lawyers at Justice, Labor or the FCC.
MS. PORTER: Tell me about the early cases.
JUDGE GREEN: The first case was an elderly African-American woman who
was a housekeeper. She visited her son in northeast Washington regularly. In order to reach his
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apartment she had to walk up an outside stairway. The stairway had a very rickety railing and one
day it broke off and she was hurt. She sustained a fracture, pain and suffering, was hospitalized,
lost a modest amount of income. We sued the owner of the building and the maintenance people.
This case taught me several lessons. We were successful, eventually, in receiving a small amount
of money for her. This was a co-counsel case, before a jury.
MS. PORTER: A co-counsel case?
JUDGE GREEN: Yes, Jeanne Dobres, one of the people in my classes at G.W.
Law School, in the early stages of her career, before she went to Internal Revenue Service, where
she spent her professional career in a leading position in the Chief Counsel’s Office, needed some
litigation experience and joined me in this case. I did most of the litigation part, but she prepared
pleadings and prompted me to do the necessary things at the appropriate times.
MS. PORTER: Were there other occasions where you joined with colleagues
on doing cases or were you mostly doing these solo?
JUDGE GREEN: Mostly solo. Can I go back for just one brief moment to say
that this early case in my career also taught me a profound lesson. It was recognized that when a
complaint was filed, it included a sum of money prayed for. I had no one to ask, no one to inform,
and we didn’t have any courses teaching us how to fill out complaints and prepare for this. So I
put down $45,000 – that I thought was fair and reasonable compensation for this individual who
had been hurt. In 1952 this was sizeable.
(TAPE 3 A)
MS. PORTER: This interview is being conducted on behalf of the Oral
History Project of the District of Columbia Circuit. The interviewee is Judge Joyce Hens Green,
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the interviewer is Jennifer Porter, and it is taking place in the judge’s chambers on September 16,
1999. This is the continuation of the interview on tape two.
Judge Green, you were talking about some aspect of the case in which you had
Jeanne Dobres as your co-counsel and you were talking, I think, about settlement.
JUDGE GREEN: The senior partner of the firm defending the action asked if I
would come to his office to discuss settlement. I have never forgotten the lesson learned and have
shared it with others. What would the plaintiff accept to settle the case? I had absolutely no
experience and was clearly naive because I told him that on her behalf I would take the amount
requested in the complaint, $45,000. He shook his head in exasperation saying, “Young lady, you
give me absolutely no choice, we have nowhere to go but to trial.” And so we went to trial
because I was not sophisticated enough to know that you go back and forth on these matters, and
you never ask for the stated ultimate when trying to settle a case.
MS. PORTER: What happened at trial?
JUDGE GREEN: We did win, but we certainly didn’t win $45,000; it was more
like $7,500 or so, but this, too, seemed huge to us at the time. My client was happy.
MS. PORTER: This was one of your first cases?
JUDGE GREEN: This was my first case in federal court, but federal court in
those days was a combination of both local and federal. I should explain that quickly. A federal
court in the District of Columbia then, long before the 1970s Reform Act, was the court for
virtually all matters except local, municipal cases under $3,000 in value, misdemeanors, and
traffic. Almost everything else was in the federal court, the only court in America that handled
both local and federal criminal and civil matters; all criminal cases of consequence were in the
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federal court. Any personal injury in which the request was for over $3,000 damages was in the
federal court. The federal court handled probate matters and all local taxation cases. In short,
virtually everything was in the federal court. That’s where the court appointments came from, and
that’s where I spent 98 percent of my time.
MS. PORTER: Did you practice in other States as well?
JUDGE GREEN: Subsequently. Five years later I was admitted to the bar in the
State of Virginia and then practiced in that state, as well as in D.C. Those were my two places of
practice.
MS. PORTER: So you never practiced in Maryland?
JUDGE GREEN: No. I did think of something that I neglected to mention
during the course of time that I worked with Berge, Fox, Arent & Layne, though many years ago.
May I mention it now?
MS. PORTER: Please do.
JUDGE GREEN: I understand that the purpose of the oral histories is to develop
an understanding of the judges as human beings and to see how and why we each function today.
What was it in our past that made us the people we are now? And so, this again was another
lesson along the way. I said earlier that in that firm the days were long, sometimes 20-hour days.
It was on one of those occasions, two o’clock in the morning, when I was working –
MS. PORTER: This is when you were doing your four-month stint with the
law firm?
JUDGE GREEN: Exactly. I worked with a partner, Alvis Layne, an incredibly
wonderful man, gentle and brilliant, and also with his young associate, a recent graduate of the
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University of Chicago. All of a sudden, at this wee hour of the morning, the associate had a
brilliant idea: completely revamp the theory on which we had been proceeding for weeks. He
asked me if I knew how to type. I sensed this as a moment of moments and told him, untruthfully,
that I did not know how to type, even though I was happy to make a cup of coffee for all of us
right then and there. I recognized that had I acknowledged my secretarial skills, I would be a
typist for the remainder of my days with this firm, something I did not want to do. Years later I
confessed what I had done; he had suspected it and his partner thought this dialogue was hilarious.
The very next day Al and Chuck brought an evening secretary who stayed with us for the duration.
We were a wonderful team, working remarkably well together. I look upon that very short stint as
momentum in my career.
MS. PORTER: You’ve raised the issue of being a lawyer in an almost
exclusively male environment.
JUDGE GREEN: Exclusively, except for the secretaries. No female lawyers.
MS. PORTER: How was it in court? You hung out your shingle –
JUDGE GREEN: There were five women who practiced actively in the courts,
and by actively that meant that they were there with great regularity. When I graduated and
commenced my practice, women lawyers constituted but three percent of the profession.
MS. PORTER: Are there particular experiences that you remember with
judges or juries or opposing counsel?
JUDGE GREEN: Many, but let me recount only one. My colleagues treated me
really very favorably, although, understandably, were a bit tentative about my lack of experience.
I thought I had an advantage as a woman. If I had a good argument, people would listen if only
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because I was an oddity (and, to juries, certainly I was that), but listening was the important thing.
That’s three quarters of the battle; the rest of the battle is to get acceptance of your argument. An
experience that I recall (and I don’t know whether it would have happened to two male lawyers,
but I doubt it) was a situation where my male opponent was much more experienced than I. We
were lawyers in a personal injury case. The judge put us in a room in chambers, took a key,
locked the door, and said, “You are going to settle this case.” I recall turning to counsel and
asking, “Is this customary?” He said, “Absolutely no.” We did settle the case after hours of
detention. What we settled for or the details of the case, I do not recall. I certainly recall that
judge. He is no longer on the bench.
MS. PORTER: Do you use this yourself as a settlement tactic?
JUDGE GREEN: I do not. Again, the tale I just related was another good lesson.
Be gracious to people, do not press too hard, be logical and fair. If they don’t want to settle, fine;
if they do, then help them to do so. You are there to make it possible. A judge can aid a situation
and encourage reality recognition, can place people in an attitude disposed to resolve, but never,
ever, to lock people in a room, saying, “No bread, no water, don’t come out until this case is
settled.”
MS. PORTER: While you were hanging out your shingle and learning to
practice law, were you also involved in other community and professional activities?
JUDGE GREEN: Yes. Without giving specific dates, I can note that I was a
trustee of the American Cancer Society, the D.C. division, for about eight years. Also, I was
very active in the Bar Association of the District of Columbia, which was then the general bar
association. It was powerful. It was only, I believe, in the latter 1940s that the bar
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association accepted women as members. The Federal Bar Association existed for government
attorneys and the Women’s Bar Association, for women attorneys. The D.C. Bar Association was
a voluntary association; you paid dues and you participated to whatever extent you wanted. After
appointment as a member of the Public Information Committee, and designated six months later
as vice chair, the following year I was selected as chair, and served as such for eight more. While
not the first woman who chaired a bar association committee, I was one of the first (very few
women were active members). The committee was responsible for the weekly radio program,
“District Roundtable.” Any subject or participant could be used since the program was public
time in the public interest, without commercials or sponsors.
MS. PORTER: This was for eight years that this radio program went on?
JUDGE GREEN: Well, the program went on for longer, it’s still on today, I
believe, but I was the chair for eight years and responsible to see that each of the 52 weeks a year
we produced a radio program for one half hour. The committee was sizeable. Interestingly, my
husband to be (although I certainly didn’t know we would marry some day) was a member of my
committee. I would assign a week to the members. Ironically, something always happened. We
tape recorded on Fridays and often on Thursday I would hear from the committee member that he
was tied up in trial and could not put on a program. I would rush in and either do it live or quickly
tape it, or even create a subject and/or participants in a hurry.
MS. PORTER: What sort of programs, what sort of topics, did you cover?
JUDGE GREEN: Well, since we had carte blanche as to any kind of subject we
would want to do, it was anything that interested the individual who was going to act as
moderator, one of the committee, and what topic we thought would interest the public, and then
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put it together in a balanced fashion for expression of diverse viewpoints. As example, I was very
much interested in seeing that the District of Columbia had a public defender. We did not at that
time. Recognizing the skills of the assistants in the United States Attorney’s Office, I thought it
only fair that the defense be equally skilled. After considerable research, I learned that only three
large cities had public defenders at that time: New York, Los Angeles and Chicago, and after
receiving information, I moderated two programs with proponents and opponents of the public
defender system. Another occasion: When the baseball team (“Senators”) left the District of
Columbia, there was a grand program with two panelists. One was Morrie Seigel, a famous
sportswriter on the local paper—disheveled, unshaven, rumpled, an absolute caricature out of
Damon Runyon, and his mate on that program, was Shirley Povich, the legendary sportswriter
who died in the 1990s, who arrived in spats to the taping of the program at eight o’clock in the
morning. Incredible! They had different ideas, and it was one of our most celebrated programs.
We produced programs on civil defense, that is, methods to defend the citizens in the event of
invasion and war. There were programs about war powers, not yet legislatively proposed, search
and seizure, civil contracts, landlord/tenant matters, anything that was of moment. The FTC was
very interested in making sure that there was a fair presentation of advertising concerning
children’s toys and articles like cribs and strollers. We now have the Consumer Protection
Agency, but the FTC took that responsibility in its day, and this was worthy of a program.
MS. PORTER: Who were some of the other co-workers? Who helped you
with some of these programs?
JUDGE GREEN: We had perhaps 50 or 60 people who constituted the
committee. Certainly enough members that if each wanted to take a program one week, we would
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have been able to cover all members in a year. Our lawyer members came from private practice,
academia, or government: Sam Green, and there was Bob Dimont, Bill Cairn, Ed Gaskins, Neil
Kabatchnick, Gilbert Hahn, Jr. (who subsequently chaired the City Council in the District of
Columbia), Gilbert Giordano, Dorothea Baker (who was a very fine woman attorney), Frank
Crowley, Ed Skeens, Edwin Neil, Agnes Neil (who later married Edward Bennett Williams), Ray
Posten, Jr., Jimmy Vacarro, Charlotte Murphy (who was very active in ABA matters), Marty
McNamara, Jake Levine, Harry Wood (who eventually became a Court of Claims judge), among a
few; there were many more.
MS. PORTER: Were you involved in any other activities for the bar
association or was this enough?
JUDGE GREEN: Chaired the Lawyer Referral Committee for several years –
this was a matching committee. If a potential client called the bar association to request the name
of a lawyer, and if, after inquiry, it was discerned that the lawyer should have proficiency in a
particular area of law (e.g., probate or criminal), the committee would draw several names from
the roster of attorneys skilled in those fields to match them with the applicant. The applicant paid
a minimal sum of money for this introduction; it was up to the lawyer and the client to see if they
could work out a financial arrangement for the agreed services. Were there any questions,
subsequently, about that financial arrangement, the committee would resolve the problem.
Essentially, the committee referred lawyers for a reasonable sum. That was the goal: to provide
the client, whether rich or poor, the professional services of a reliable and skilled lawyer for
reasonable compensation.
MS. PORTER: Do you remember major issues of the day that the bar
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association confronted?
JUDGE GREEN: Probably the major issue of the day was whether it would open
its ranks to minorities. There were no minority members at that time, other than women. The bar
association had never endorsed or sponsored any minority person for membership.
MS. PORTER: It was specifically written in its bylaws?
JUDGE GREEN: For the Bar Association of the District of Columbia, it required
a change in the bylaws, and Charlie Ryan (who eventually became president of the American Bar
Association) spearheaded the effort to change. I was among the many who joined the process.
MS. PORTER: What’s the time frame?
JUDGE GREEN: I’m not sure. It was in the early 060s probably. The very early
060s or the latter 050s.
MS. PORTER: Can you talk somewhat about how the change came about in
the bylaws?
JUDGE GREEN: There was a great deal of advocacy. I can remember the day
that the reform bylaws had been shaped; it was a proposal that was put squarely before the
association to stand up and vote. You had to be there at the meeting – it wasn’t a written ballot
kind of thing – you had to stand up and show how you felt. And I remember a group of people,
myself included, standing up to signify that we were in favor of admitting black persons into the
association as full participating members. You not only had to stand up, you had to walk, for
whatever reason, around the room. I don’t recall why that was done, but I know it was done in a
room that we used for the monthly meeting at the Mayflower Hotel. The vote was affirmative, but
it had taken years to get to that point. It was discussed, it was shelved, it was tabled, it was
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brought up again, subsequently, in another year, another generation of people, and finally passed.
MS. PORTER: You mentioned that you were active in the Women’s Bar
Association as well. How did that come about and in what sort of things were you and the
Women’s Bar involved?
JUDGE GREEN: I thought it important that I identify with those women who
had either been practitioners or members of the profession for some time, as well as the new ones,
and so as soon as I had an opportunity to do so, I joined the Women’s Bar Association of the
District of Columbia. In those days the Women’s Bar numbered perhaps 300 and it was not nearly
as active an organization as was the D.C. Bar Association, which is why I joined the other one
also – so I could belong to both. The Women’s Bar was asked by Congress to testify in certain
matters believed to be of importance to women and to the public, such as juvenile justice and
domestic relations, criminal law and taxation. There was a D.C. city government in those days
that operated with three commissioners appointed by the President. The Women’s Bar president
would appear not just before the United States Congress, but also before the boards and the
advisory groups of the District of Columbia Government, to promote the interests of women and
children, and also the interests of men, depending on the subject. That association became more
and more engaged in community affairs. I am particularly proud of a matter that began during the
time that I was the combination vice president and acting president of the association, and
completed at the time that I was president of the Women’s Bar. To assist the problem of crime,
particularly because one of our senior members had been mugged on the streets of Washington,
we were alerted, as an organization, to do something to prevent recurrence of such action as best
we could. We notified the police department that there was a very active unit of police dogs in
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Scotland Yard, London, England, and suggested we could assist our police to begin a police dog
unit or canine corps. We were told that if we could raise money for this purpose, the police would
seriously consider doing it. So we did, they did, and we have been given credit for being
instrumental in seeing that the first police dog unit/canine corps of the Metropolitan Police
Department was established. Indeed, the Women’s Bar communicated with the individuals
forming this small unit in the District of Columbia and then with the one individual who was sent
to Scotland Yard to learn how to train dogs and to go for graduate training in St. Louis, I think it
was. He would come back and report to us. So this began with a very small unit, but was
absolutely inspired by and founded by and subsidized by, initially, the Women’s Bar Association
of the District of Columbia.
MS. PORTER: Where did the Women’s Bar get the money?
JUDGE GREEN: We raised the money. We went to the members of the Bar
Association of the District of Columbia because those were the men with the money, and we also
raised money among our members. We asked them in turn to see if money could be raised from
commercial establishments, because a canine corps would help them, too. We raised the money,
sizeable thousands of dollars. It is part of our proud history and an absolute immersion in
community affairs, which I always felt was part of the activity that we do, even though we were a
professional organization and our prime object was to promote professional skills and obligations
and goals and interests of our members.
MS. PORTER: Just to place things into perspective, when you came into the
Women’s Bar, were you active on a committee, were you a committee chair?
JUDGE GREEN: I chaired more committees than I can remember, just like I did
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in the D.C. Bar, you know nomination committees, committees to create ideas, committees to
arrange for meetings, committees to have a small conference or a seminar, to which we’d invite
other people, committees for speeches, you name it, it seems somehow I found myself involved in
it. I don’t know how I did all this. I had an enormous amount of energy. I still do, but not quite
as enormous as I did when I was in my twenties, and it was just that the more that I got in my cup,
the more I enjoyed doing. While all this was going on, I was also the dean, which meant I was the
chair, the leader of the alumni entity, Eta Alumnae of Kappa Beta Pi Legal Sorority International,
the professional sorority I had belonged to in law school.
MS. PORTER: And you never cease to amaze me. Before we go and talk
about a sorority –
JUDGE GREEN: That’s all I want to say about the sorority.
MS. PORTER: As a former Women’s Bar president myself, I’m interested in
bits and pieces of Women’s Bar history. When were you the president?
JUDGE GREEN: I was voted president for two successive terms: 1960 to 1961,
1961 to 1962.
MS. PORTER: Now, are there particular people that you worked with there
that you remember? Still have as friends?
JUDGE GREEN: To some extent, the same people I knew from law school.
Catherine Kelly, who was very active in the bar association; June Green, this is where I met her,
through the Women’s Bar; Jeanne Dobres; Kay Staley–all of us were very active. I’m going to
later lament on not being able to think of all the names. Mary Garner, an outstanding lawyer at
the Department of Agriculture; Clarice Felder Hens, my sister-in-law who worked as counsel with
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the Judge Advocate General’s Office (Navy); Edwina Avery, also in government service, as most
of our women were. The government was, and is, a natural for women. Women were accepted,
although in that era they did not get promoted to leadership positions as promptly as men. But,
there was a steady income coming in and substantial responsibilities; and it was special public
service.
MS. PORTER: Do you recall what some of the major issues were that you
worked with?
JUDGE GREEN: We were primarily interested in legislation, which I’ve already
discussed. A minority of us, unlike the bar association, felt very strongly that we should have
minority members. The Women’s Bar did not. Unlike the bar association, our bylaws were
absolutely silent; there was no reason why we couldn’t have a minority member, but, in reality, the
minority members were not applying because it was believed, and probably correct, that a
minority person could not get the requisite two sponsors (members of the association) to sign her
application. So it wasn’t a matter of rejecting applications, the few minority women did not apply.
(TAPE 3 B)
MS. PORTER: This is a continuation of the interview being conducted on
behalf of the Oral History Project of the District of Columbia Circuit, on September 16, 1999.
JUDGE GREEN: This, of course, is a time in the early 1960s, just before the
1964 Civil Rights Act; there were very few African-Americans practicing law in the District of
Columbia and, of those few, there were still fewer women minority members practicing law. The
most prominent was Dovey Roundtree; she and I were good friends. I discussed this matter with
her and she said simply that she had never been able to get the sponsorship, so had not formally
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applied. I advised I would sponsor her, I would find another to sponsor her, and I did so. I told
my board of directors we now had a new member. The board, comprised of the leaders of the
association, and, in particular, the person who then chaired President Kennedy’s Commission on
Women, vehemently protested this decision. I found this absolutely shocking, but she certainly
wasn’t alone in her opposition. This application, I insisted, would remain. The board of directors
then voted to present this application to the entire membership for its vote. A unique situation.
MS. PORTER: When you say unique, what do you mean? Because there was a
split on the board and you had the casting vote or required some action because it was unique in
some other way.
JUDGE GREEN: It was unique because it was a minority applicant. That is why
the board insisted it go to the membership at large. As far as my memory goes, we had never
presented an application to the entire membership for up or down vote. The meeting was
scheduled for the next day. At 9:00 p.m. that evening I received a phone call at home from a
Washington Post reporter who had heard of this acrimonious board of directors meeting. She
knew we were going to vote on taking in the first minority member of the association the next
day. She was going to write about it; this was newsworthy. While I had never before asked any
member of the press to stay their hand from writing, I told this reporter that I would put it to her
this way: If she did write, I knew enough about our membership to recognize that this applicant
would lose the necessary votes at the forthcoming meeting. If she did not write anything, we had
a chance that we would succeed in getting Dovey Roundtree to be a member of our Women’s Bar
Association, breaking the barrier for persons of color. This remarkable reporter did not write
anything until after the vote, which was successful, and Dovey Roundtree became a full member
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of the Women’s Bar Association. Despite the loss of many of our members, who left in protest,
that began an inclusive membership of the Women’s Bar Association. The next day the reporter
wrote something about this moment in history.
MS. PORTER: During this time when the Women’s Bar was opening up its
membership to minorities, the rest of the community was in the beginning of turmoil, and
Washington, D.C. I guess was, what, a segregated city? What was it like practicing when you
were segregated? How did you meet minority lawyers? How did it happen? What was it like?
JUDGE GREEN: We did meet minority lawyers, but minority lawyers were
generally uncomfortable, so they said, and understandably, to be active in associations like the
D.C. bar associations, which had to be dragged screaming into opening its membership to all. The
African-Americans had their own bar association, the Washington Bar Association, and that is
where members who practiced actively in the courts largely chose to be active. Among
outstanding African-Americans were: Bill Bryant, prosecutor, defense counsel, now judge;
Joseph Waddy, local, and later, federal judge; William S. Thompson, absolutely charming,
puckish, sometimes stretching the bounds a bit. We knew him as Turk or Bill Thompson. Turk
subsequently became a judge of the Superior Court, a wonderful man, fascinating litigator, with a
lot of courage, which he demonstrated with his cases and the skill he applied to those cases. He
had a substantial law firm that dealt not only with criminal law but also with defense of personal
injury cases. There was another person, Margaret Haywood, a practicing attorney at the time we
met, who later became one of the most skilled and beloved judges of the Superior Court. Now in
senior status, she returns to the court several times yearly, even though she lives in California. A
wonderful human being. And, indeed, when she and I were in practice she would ask me to file
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litigation for her in the State of Virginia, because she knew I practiced there and she felt that
because of the segregation that Virginia so stridently avowed through its United States Senator,
the senior Harry Byrd, she thought it was unwise for her as a minority to file that litigation herself.
So I did for her in Manassas, Virginia, I remember. When I went there it had segregated
restrooms for whites only, it had segregated drinking fountains for whites only. This was the
courthouse to which I asked to be admitted, in order that I could file her papers, and the
Commonwealth Attorney agreed to perform that service. Again, emblematic of the time that we
were in, the Commonwealth Attorney reluctantly got into his suit jacket, he kept chewing on his
cigar and whatever else he was chewing on, and when we walked into the courtroom, one of my
strong memories is when he binged whatever he had in his mouth into the spittoon that was sitting
in the courtroom and moved my admission before the judge of that court. I had to have that
performance accomplished so I could file pleadings there. There was also Wesley Williams,
eventually president of the school board in the District of Columbia, who was a fine litigator, and
ever so impish, also African-American. In D.C., leaders of the school system were appointed and
supervised by the U.S. Court of Appeals. Judge Skelley Wright, in particular, performed that
function. He had come to that court during the civil rights days from Louisiana, having to leave
when crosses were burned on his lawn. I say this to demonstrate that we lived then in an
atmosphere so different from today’s. Then so settled in attitude and so emotional, so biased.
We’re not there yet, progress has been made, but there is a way to go to equality. So this was the
city of Washington as I knew it, as I practiced law here, and as I learned through clients of mine
and others how really segregated this city was, and how the races were so divided in their abilities
to move in the world of the 050s, 060s, and 070s.
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ORAL HISTORY OF
HONORABLE JOYCE HENS GREEN
Third Interview – October 6, 1999
(TAPE 4 A)
MS. PORTER: This interview is being conducted on behalf of the oral history
project of the District of Columbia Circuit. The interviewee is Judge Joyce Hens Green. The
interviewer is Jennifer Porter. The interview is taking place at the judge’s home on October 6,
1999. Joyce, in our previous interviews we jumped around a little bit. What I’d like to do is try
and give us a little chronology, so can you talk about after you graduated from law school, talk
about where you practiced and who you practiced with.
JUDGE GREEN: As earlier said, I graduated from law school in November 1951
and very shortly thereafter, within weeks, I hung out a shingle, initially from my home. I was
needed there for the first few months, my mother was dying of cancer, and did die a few weeks
after I graduated from law school; it was necessary that I combine home activities and take care of
my father and brother, as well as begin a small law practice.
MS. PORTER: Where was home at that time?
JUDGE GREEN: Home was in northwest Washington on Calvert Street. It was
a large townhouse with many rooms and sufficient space in which I could designate office area in
order to confer with clients. That arrangement worked for some time until I commenced sharing
offices with another woman attorney, met through the Women’s Bar Association, a bit older than
I. Our arrangement was sharing office space only, but it quickly became exceptionally awkward
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because her office was very small and it was necessary to work out timing so that she would not
be there when my clients came in and I was there. This didn’t always occur in sync; however, we
managed to go along with this arrangement until finally she left and I maintained it alone for
perhaps two years thereafter. Then, at her invitation, I joined offices with June Green in 1960.
(Note: Judge June L. Green, after an extraordinary 33 years on the federal court, took inactive
status on January 1, 2001, and died February 2, 2001.)
MS. PORTER: And did you have a secretary, a library – how did you manage
those sort of things?
JUDGE GREEN: In the beginning, I was everything to the office. I did my own
typing, my own legwork; I was the messenger; I answered the phone, except when the answering
service performed that function for me in my absence. There was no one else. But after the first
year, and during the second year, I was able to afford a part-time secretary. As I put it, I was able
to afford half a carpet, then things improved substantially, and thereafter I was able to afford a
secretary and other support services. When I joined forces with June Green, she had two offices,
one for each of us, a common waiting room, and a secretary. We shared the cost and operation of
the office and the secretary right down the middle and that worked remarkably well.
MS. PORTER: How about legal research?
JUDGE GREEN: Each of us bought as many books and supplies as we could
afford. It’s amazing to think back to the day when there was no computer, there was no
LexisNexis, no Internet; we did not have research assistants, you did the research yourself, and
that meant going down to the bar association library, available to members only, and spending a
great deal of time there (located on the third floor of the U.S. Courthouse), and doing whatever
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research was necessary. There were typewriters in the back of the library’s large room, accessible
for people who had need for them, which I used over and again. There was also, interestingly, an
assistant in the library by the name of Warren Juggins, who is, incidentally, still with the
courthouse after all of these years, and he assisted me greatly in making photocopies so that I
could take those documents home with me, those slip opinions and those cases, and then plot out
whatever it was that I had to do to become versed in a matter sufficiently to properly advise my
client.
MS. PORTER: Now we talked, this was before we got on tape, we talked
about many humorous aspects of practicing law. Joyce, what sort of clothes did you wear to go to
court in those days?
JUDGE GREEN: I might have known that a woman would ask me a question
like that. In those days we were demure, that’s the word that comes readily to mind. Wore
business suits and simple blouses only, never the turtleneck sweater or the chic little collar or
gloriously vibrant blouse or the tailored pants suit you will see today. High heeled shoes, hose,
small white gloves, and very often a little hat. You seem stunned. (laughter)
MS. PORTER: It’s the hat and the white gloves that did it for me. I wanted to
have you on tape owning up to that.
JUDGE GREEN: You have to remember. This is 1950. It is a time in our
history when we are just recovering from the war. In 1960 you had Jackie Kennedy with her little
pillbox she was famous for, and her white gloves with a ballgown as she went to dinner. This was
the period when we didn’t know about DNA or Medicare, or the Heimlich Maneuver, or test tube
babies, or recognition of extraordinary illnesses, like AIDS.
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MS. PORTER: Well, it seems to me that there weren’t many women in the
work force, where you didn’t really have a model to choose, so maybe the hat and gloves was what
everyone else was wearing, so you’d just blend into the workplace.
JUDGE GREEN: Must have been quite a sight the first time I went and visited
the cellblock for a court appointment. The Marshals were astonished and chortled and yelled to
my defendant, “Here comes your lady lawyer!”
MS. PORTER: Well, let’s leave the riveting topic of attire and go back; I’d like
to get a sense of what your practice was like. We talked last time about your first jury trial.
JUDGE GREEN: The United States District Court for the District of Columbia
and the U.S. Circuit Court of Appeals for the District of Columbia were really the only courts of
record in those days. The local courts were the municipal court, which had severely limited
jurisdiction, and the municipal court of appeals. The primary local jurisdiction vested in our
federal court, the only federal court in the United States that had this dual activity. The kinds of
cases that would wind up in the municipal court would be the drunk driving and traffic problems,
local landlord/tenant, evictions, small claims court, misdemeanors, civil cases affording limited
compensation, but most controversies were determined in federal court: domestic relations,
divorces, adoptions, custody, support, probate and estate, all done in the federal court, and any
cases, over whatever was the jurisdictional limit of the municipal court at that time, perhaps in the
$2,000 to $3,000 range. Anything more demanding than that would come over to our federal
court to be tried. And then, of course, you had the customary things that happen in federal court,
as today: diversity actions, felonies. In short, the greater bulk of anyone’s practice back in the 050s
and the 060s, and until the early 070s, would be in federal court. Astonishing to people when they
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think of the jurisdiction as it is now. So this is the court where I really cut my eyeteeth, where I
did the vast majority of my practice, where I spent easily 95 percent of my time in litigation of
cases.
MS. PORTER: So your first case – we talked about your first jury case. Can
you remember what was absolutely your first case?
JUDGE GREEN: Yes, it was a domestic assault case. My client was a woman
who had heard about me from a friend of hers. She came to my office detailing how her husband
had assaulted her and that they had been summoned to appear at the U.S. Attorney’s Office. In
those days we called it “over the counter”; the U.S. Attorney would be on one side of the counter,
and he (then it almost always was a he) would discuss the matter informally with the victim and
defendant, often lawyerless.
MS. PORTER: Over the counter?
JUDGE GREEN: Over the counter. Literally a counter separated the two.
MS. PORTER: Sounds like a private experience.
JUDGE GREEN: Everybody stood and it wasn’t very private.
MS. PORTER: Were there other people in the room? Was there a long
counter?
JUDGE GREEN: Long.
MS. PORTER: With several people having conversations all the way along
this counter?
JUDGE GREEN: Exactly. And there was a bit of counseling that took part in
this process to decide whether or not there would be a prosecution. People were entitled to bring
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attorneys if they wished, most appeared without counsel. So this is where I was the first time. My
victim client asked if I would assist her; she was afraid of her husband; she didn’t know what was
going to happen at the U.S. Attorney’s Office. The fact is, I didn’t know what was going to
happen at the U.S. Attorney’s Office since this was my very first case. But, we went there, the
matter did get resolved, they decided to stay in separate abodes for a few weeks and then they
started dating again in the hope their lives could be happily resolved. It did work out – a very
modest case and I remember an alarmingly modest fee ($25.00) that I set for my activity there.
But after that, there would be other kinds of cases that would propel me into court. As example,
there was a gentleman whose home was being razed on New Jersey Avenue, NW, because he had
contracted to repair and remodel the home, and, in particular, to have 12 steps with treads in the
house. It had been required by the D.C. licensing officials, otherwise the house would be razed.
My client was a man who worked very long hours at the United States Post Office, he had gotten
my name from another client, telephoned me; I was the third or fourth lawyer he had had. Signals
go off, even for the novice I was at that time, that when one has had three or four lawyers, it may
not be wise to be the fifth. In any event, he talked about his problems and I agreed to see him.
When he told me that his third lawyer had actually committed fraud I worried a bit more, but
continued with the case. It turned out that he was correct about his third lawyer, who had taken
his money; the contractor had taken his money; and nobody had done any work for him; and now
he was about to lose the property in which he and his mother lived. He was a very decent person,
but not very savvy, and so my greatest work for him was going down to the court frequently,
perhaps every two weeks, to advise of the progress we were making.
MS. PORTER: On repairing the stairs?
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JUDGE GREEN: That’s right. That is, 12 treads were put on those 12 stairs and
other repairs were effectuated to stop D.C. from the final eviction and razing of this home. This
man was truly a special client, one of the best I ever had. Totally devoted, he did everything I
asked him to do. We did get his matter solved – never got his money back because they never
found the people who had taken his money – but we got the house rebuilt to the point that it
satisfied the licensing personnel. In fact, this man was so earnest and likeable that the licensing
personnel began to testify on his behalf, urging delay until he could afford all the repairs. I was
proud of this result. It wasn’t difficult for the judge to give us another stay and we could leave the
court. A great experience. He paid my fee and I asked for one last promise: If you ever, ever
think about entering into any contract again, please call me or call another lawyer, but call
someone. Don’t rely on your own judgment.
MS. PORTER: I assume you mean call beforehand.
JUDGE GREEN: Yes. And, indeed, he called several months later while I was
on vacation; when I checked in with my office, I was told it was an emergency, so I called my
former client who confessed to signing a contract an hour or two earlier. He thought then he was
in trouble. Standing in a phone booth on the beach, I immediately called the other party,
explained why my client should not have signed the “contract,” and claimed we were going to take
action immediately. I suggested that the swiftest and best way to dispose of this was to tear up the
contract and give his client half of the torn one and give the other half to my client. Much to my
amazement my protestation and suggestion was accepted.
MS. PORTER: Do you remember what the contract was about?
JUDGE GREEN: Not at all. I then called back my client and said he would
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never be my client again if he disregarded my advice in the future. He agreed he would never do
that again. In short, these were small cases in the beginning, domestic cases, personal injury
cases, cases contractual, such as I have just mentioned, but the fact is the satisfied clients referred
one to others and, in turn, became devoted friends for the rest of my career.
MS. PORTER: Well, do you have any other cases that you remember from
that time period that you would like to share?
JUDGE GREEN: During some of the time I practiced in the state of Virginia,
having become a member of the Virginia bar in January 1956, and set up a home office there since
we had moved our home from Washington, D.C. to Virginia, at approximately that period of time,
1955 or 1956. I had became eligible to become a member of the Virginia bar and I applied for
permission to join that bar, which then required a commitment to devote over 50 percent of your
practice in the state of Virginia. I could make that promise. I then had to go down to Richmond
to be formally admitted to the Virginia bar. In between, I responded to a subsequent questionnaire
asking how I expected to do 50 percent in the State of Virginia, since I practiced law in the
District of Columbia. I explained that I could not do so the first few months after Virginia
admission, because I had to earn a living, but I was a resident there, I fully intended to do practice
50 percent or more in Virginia, I had cases that I had been trying with other lawyers who were
members of the Virginia bar, I had appeared in court on many occasions in Arlington County and
Fairfax County, and I was ready to do this and continue towards the 50 percent requirement.
Thereafter, I went with Virginia counsel, on a snowy day in January 1956, to the Virginia Supreme
Court, in Richmond, for formal admission. I was required to bring a member of the bar with me
to move my admission before the Supreme Court of Appeals of Virginia. After I was admitted,
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the bailiff approached to tell me that the Chief Justice wanted to speak to me. Of course, I was
terrified, I thought what could I have done wrong already? The Chief Justice asked if I would be
willing to become his law clerk. At this point I had been practicing law for several years, five or
six years, and I can only imagine it was the correspondence back and forth from the time that I
applied to be admitted to the Virginia bar that had inspired this offer. Or possibly it was because I
was a woman and there were only a few women lawyers. I turned down the offer as gracefully as
I could.
MS. PORTER: Do you remember his name?
JUDGE GREEN: I have been referring to Chief Justice Edward W. Hudgins.
MS. PORTER: So what happened? Was he just sitting there on the bench and
like a bolt out of the blue says would you come and work for me?
JUDGE GREEN: No, he wasn’t on the bench. He asked me to come back to his
chambers, but it was within minutes after I had been admitted, before I left that courtroom. The
Clerk of the Supreme Court of Appeals of Virginia, Howard Turner, who had been a longtime
clerk of that court, was present at that time.
MS. PORTER: Now Joyce, lets go back – you’ve been admitted in Virginia
and what sort of cases did you have?
JUDGE GREEN: My practice, essentially, was a civil litigation practice. I did a
good deal of domestic relations work, probate, estate work, personal injury work, and only on rare
occasions did I do criminal work. Primarily those latter cases resulted from court appointments.
As example of some of the cases that went to litigation, I recall representation of intervening
petitioners, the grandparents, in a most acrimonious five-day divorce trial involving custody of
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two minor grandchildren. Representation of a mother who sought support from her deserting
husband, who years later became the famous country musician, Roy Clark, television personality
of “Hee Haw.” I mention his name only because this was a public case, publicly reported; his wife
sought support on behalf of the minor child, incapacitated by infantile paralysis. The Clarks also
had a two-year-old son when Roy left the family and her with all of their obligations. This was at
the very beginning of his career and right after he had won the prize on the Arthur Godfrey show,
very famous in those days. I represented a mother-in-law who was sued by her daughter-in-law
under the Virginia’s quaint “insulting words” statute.
MS. PORTER: Do you remember what the insulting words at issue were?
JUDGE GREEN: I really don’t remember the precise words, but this was a
daughter-in-law who despised her mother-in-law, and said so in no uncertain terms. I represented
infants and mental patients and as guardian ad litem in habeas corpus proceedings. I represented a
prisoner before the parole board and one of the cases that I remember most particularly was a
former banker indicted for embezzlement in Arlington, Virginia. He was an officer, a principal of
the then largest bank in the state of Virginia, Old Dominion Bank. I had met him on the occasion
of my responsibility as a lawyer for a doctor client; he asked me for my professional card,
laughing that maybe he might need me some day. A few years later, I did receive a phone call; he
reminded me of how we met and exclaimed that he was now in D.C. jail, about to be extradited to
Virginia. Could I help him? He had been arrested for embezzlement from that bank. I advised
that I was certainly not a criminal law expert, suggested he might do better if he hired someone
who was more experienced than I, but he insisted he wanted my services. I agreed to look into the
case and then make that determination. His family retained me. The matter focused on
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handwriting and the embezzlement of a Danish bank client who had purportedly written a letter
asking that monies from his account be forwarded to him. The letter was in the bank files. Of
course, the Dane never received the monies. The complaint asserted my client had taken the
money. I attended the preliminary hearing and noting that there was no handwriting expert
present, asked one question of each of the witnesses, “Are you a handwriting expert?” The
answer, of course, was no. I moved for dismissal of the charges. No one was more astonished
than I when the judge granted the motion, but, of course, that was not to be the end of the case,
because the prosecutor can secure, as was done, a grand jury original. And, later, when I
recognized the name of one of the government’s witnesses as that of a handwriting expert, lights
went off and I knew we also had to have a handwriting expert. I secured the services of such an
expert who had been in the Charles Lindbergh baby kidnaping case. When he assured me this
was, indeed, the handwriting of my client, I advised my client that he should consider options.
When I had secured the handwriting document in order to utilize the services of our expert, I had a
long discussion with Bill Hassan, then the Arlington, Virginia, Commonwealth Attorney, who
advised that if the defendant pled he would make a reasonable recommendation for my client, but
if he insisted on trial, he would “throw the book at him” after conviction. The prosecutor had
discovered (as I had) that Old Dominion Bank had not checked the background of the defendant
before hiring him as an officer, and he knew – I did not – that the defendant had committed the
same type offense in Texas years earlier, receiving a governor’s pardon. I should note that when I
asked Bill Hassan for a copy of the original handwritten instrument, I had drawn up a detailed
motion and a proposed order for that. He took it, laughed, tore it up in my presence and said,
“You want the document, you have it, we shake hands on it.” I actually slept with the instrument
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– I wouldn’t let it out of my sight. I brought it over personally to the expert; I stood by; I went in
the other room; I waited until he came to his decision. I felt absolutely bound to give this letter
intact to the one who had handed it to me so readily. The night before we went to trial, my client,
who had been insisting on his innocence (although I certainly had great doubts about it), called me
late that evening to admit his responsibility in the case and ask that I work out the best deal I
could for him. The next day we went to court to enter the plea of guilty. I have the greatest
respect for the hard-boiled Commonwealth Attorney. Instead of throwing the book at this client
of mine, who thoroughly deserved it, he stayed his hand, did not oppose my brash motion for
probation (having found two jobs for the defendant). The judge granted probation and then, lo
and behold, a few years later this incredible client called me again. No surprises: Once again, he
was in jail, in D.C., accused of embezzlement. He wanted me to represent him. It was easy to say
no. I said no.
MS. PORTER: Joyce, in this day and age, work obsessed, the number of hours
worked by lawyers, I can’t figure out how you managed to get more than 24 hours in a day. Just
for history’s sake, what sort of hours were you working?
JUDGE GREEN: It’s amazing the energy one has when in their twenties and
thirties and a bit beyond. It really is extraordinary to look back on it. I don’t know how many
hours I would work per day. There is no question I put in probably 10-12 hours a day on the
average, but to say that it began at a certain time and ended at a certain time would not be
accurate. Things just had to be done. I worked through lunchtime, would spend that time
working on a project, roll it into the evening, go to meetings, work on Saturdays. I would do
whatever was necessary in order to accomplish the task, whatever time it took.
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MS. PORTER: Your 10- or 12-hour day, is that work, work, or work plus
extracurricular activities?
JUDGE GREEN: I would spend 10 to 12 hours daily on work and then more
time beyond that for extra activities and very little time for sleep. But you don’t need much sleep
when you are young.
(TAPE 4 B)
MS. PORTER: This is a continuation of the interview being conducted on
behalf of the Oral History Project of the District of Columbia Circuit on October 6, 1999. Joyce,
we were talking about what sort of hours you worked. How much of your time would you say
was spent on litigation?
JUDGE GREEN: You had to spend time on investigation and research before
litigation; I was in court several times a week, very often in trial, other times presenting a motion;
it seemed to me then, and looking back in retrospect, it still seems to me that I spent a huge
amount of my time on litigation. There were, indeed, only five women who regularly appeared in
the court arena. To be sure, there were other women lawyers, but they were in fields that didn’t
lend themselves to court. Most of it was on paper: real estate and even probate and estates didn’t
require many court appearances.
MS. PORTER: I think we’ve been over it before, but who were the others?
JUDGE GREEN: The five included me. There was June Green, Kay Staley,
Dovey Roundtree and Jean Dwyer.
MS. PORTER: Jeanne Dobres?
JUDGE GREEN: No, Jeanne Dobres was not a litigator.
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MS. PORTER: Through this time, Joyce, it seems to me that there are so few
women. What did it feel like or did you think about it? You would walk into a room and you
would stand out like a sore thumb. How did it feel to be one of such a select group?
JUDGE GREEN: Of course I thought about it, but I was already accustomed to
it. Going through college and going through law school I was always one of a distinct minority.
In college, as I have told you earlier, I was pre-med and the only woman in a number of my
classes; in other classes there were very few of us. In law school I was one of three in my first law
school and one of six in the law school to which I transferred.
MS. PORTER: The whole school, not just your class?
JUDGE GREEN: In the whole school. So it was no surprise to come out in the
real world and find the same situation. I was accustomed to it by now and I just knew that I had to
work harder and really do a good job, first for my clients and secondly because it was obvious that
I was probably going to be the only woman that any of the jurors would ever see in action, and
thirdly for self-respect. So it was a combination of matters that propelled me to work hard and
learn a great deal. I had help from the few women then in the profession who were active in
associations and activities that I too was active in, but, candidly, in the main it was the men who
were my mentors and assisted me because those were the great majority of people I dealt with.
They did help me, by and large.
MS. PORTER: Do you have any recollections at this point of how judges
responded to having a women attorney standing in front of them?
JUDGE GREEN: It’s difficult to say because, of course, I didn’t know them as
well as some of my colleagues did. I didn’t play golf with them (and still don’t) but many of my
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male colleagues did so. That would be apparent when we went to chambers to discuss whether or
not a case would settle because the judge would address the man by his first name and discuss the
golf game they had played the day before; it was clear that there was a greater rapport, but that
was understandable, or at least so I rationalized. Obviously they had done things together and had
known each other, and I was new and young at the bar, and there were very few women. When
the judges listened to an argument most seemed patient; what they were thinking is another
matter. I won most cases. I remember one really very nice judge, his name was F. Dickinson
Letts, a United States district judge; I had two motions to argue before him. He was a courtly,
white-haired gentleman, and he bent forward and rocked a little bit and nodded his head
affirmatively as I argued the issue. I thought oh, for sure, I have won this motion; then he denied
it and I thought, oh well. I argued the next motion, again he bent forward, nodding his head
affirmatively, and this time I thought I knew the result of this motion, but he granted it. So, it
would be very difficult for me to say that I was treated differently than the men, save for the fact
that there was more familiarity with the men. Most judges were courteous with all; some berated
all. Indeed, Judge Alexander Holtzoff, brilliant, but a tyrant, screamed at the other lawyers but
beamed at me. I have no idea why.
MS. PORTER: Well, how about the juries? Were you aware of having any
special impact on juries? Did they listen more attentively?
JUDGE GREEN: I like to think that they were listening more attentively. If I did
a good job as a lawyer and female (therefore someone to look at as a strange apparition), and if
persuasive and good enough, perhaps the jurors would not only listen, but appreciate the rationale,
reason and righteousness of my client’s case.
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MS. PORTER: And did women serve on juries then?
JUDGE GREEN: Yes, although unlike the situation today. There were far more
men on the juries than women. You might know that we had, in the United States District Court
for the District of Columbia, but one woman judge, Burnita Shelton Matthews, who was the first
woman in the United States, in 1950, to have been appointed as a United States district judge, by
President Harry Truman.
MS. PORTER: She was one of a kind then?
JUDGE GREEN: Indeed one of a kind.
MS. PORTER: Did she have any special feeling for women who were
practicing before her? Did she give indications that she understood the difficulties you were
laboring with?
JUDGE GREEN: She did have a special feeling. She was a southern gentle lady,
as people have referred to her, right from Mississippi, delicate in her approach to matters, but
firm, always polite, always a lady, dressing accordingly and presenting herself accordingly. She
only hired women law clerks, unlike the men, none of whom hired women law clerks – none, and
she always seemed to accept my presentation with interest and appreciation. She was
professional. I never felt I was receiving a special favor because I was a woman, but I did feel that
I was being received with pleasure because of that fact.
MS. PORTER: Did you get to know her personally? Outside the courtroom?
JUDGE GREEN: I did. Not very well. I knew her law clerks far better. Sylvia
Bacon and Pat Frohman among those. Pat Frohman, for example, was her law clerk for six or
seven years and Sylvia Bacon for at least two years, perhaps longer. I got to know Judge
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Matthews much better after I became a judge in the same court so many years later, when she was
close to her nineties.
MS. PORTER: Now you had given me a story before about the
Commonwealth Attorney in Virginia, who had given you an original document to go off with, and
it raised in my mind the question of trust and civility in the practice of law. Do you have any
sense about how things have changed between now and then? What was it like in the 050s? Do
you have a sense of it as a more gentle, polite, well-mannered time in the practice of law?
JUDGE GREEN: There was a stark difference between those days, Jenny, and
today. Civility was an accepted matter. People were decent to each other. People treated each
other with respect, with politeness, with civility; they didn’t stab you in the back; they didn’t go
before a judge and say he or she has done this and judge, please invoke Rule 11. We didn’t have
Rule 11 in those days. It was a matter of course that no matter how hard you fought in court (and
I want to say we did really fight hard for our clients), you always fought decently, ethically,
responsibly. In all my years of practice, and I was 17 years in practice, only once am I aware of a
time when a lawyer, to use the vernacular, attempted to “spin” me; that was resolved as soon as I
heard about it, the very next day. It was a situation where we each represented a client in a
domestic matter. I represented the wife, he the husband, and we worked out with the clients in a
four-way conference (the principals and the two lawyers) the division of the real property they
owned and division of their other assets. They had no children. It was agreed that there would be
a separation agreement drafted by that opposing lawyer the next day (since I was not going to be
available for a few days), and then the complaint would be filed and attached to it would be the
separation agreement, resulting in an uncontested proceeding. This was done customarily. I had
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not told the lawyer I was going into the hospital for a minor operation the next day. And so I was
on my hospital bed when I received the news that this lawyer had filed the lawsuit and had
demanded, inexplicably, the very property that had been agreed to go to my client, making this a
contested matter. He never attached a separation agreement because, of course, he had not drafted
the agreed disposition for signature. I called from my hospital room and said in no uncertain
terms what I thought about his ethics and what I expected him to do immediately. He saw the
wisdom of that, blamed it on his secretary (not something that enchanted me), and withdrew the
pleadings from court that day. When I returned I drafted the agreement and it became an
uncontested divorce. Only one turncoat lawyer. You could shake hands civilly, you could break
bread with each other the next day (it’s probably hard for the clients to understand this), and you
could go out and fight again the following day if you had to. But recently – I wish that were the
situation today. We never had to write those protective letters to each other. If I broke my word I
would have been a pariah. Nobody, nobody would have worked with me. It just wasn’t done.
MS. PORTER: Joyce, I guess we’ve zigzagged around about some of your
extracurricular activities.
JUDGE GREEN: Well there were so many of them.
MS. PORTER: I know. We only touched on the Women’s Bar Association
and I think also the bar association, when you talked about your radio program. Were there other
things that you did in the bar association? And let’s talk about other organizations that you were
part of.
JUDGE GREEN: There were many organizations, it’s hard to know where to
begin. Why don’t I talk briefly about the American Bar Association. I became a member in 1952
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or 1953. At varying times I was the D.C. delegate in the mid-050s to the junior bar conference of
the ABA. For several years, about five, somewhere from the mid-050s to 1959, I was associate
editor of The Young Lawyer, a quarterly newspaper publication of the junior bar conference. I
should say, parenthetically, that those entities of the bar association’s “junior bar, junior bar
division, junior bar conference, junior bar section,” highlighted the lawyers under the age of 36.
Somehow that was the divining moment in a lawyer’s professional life. I also was a member in
the family law section and the insurance/negligence section of the ABA. I was active in the ABA,
attending their annual and semiannual meetings with regularity, particularly because the public
information committee in which we had produced the 350 programs over those years –
MS. PORTER: This is the public information committee of the Bar
Association of D.C.?
JUDGE GREEN: Exactly. Members of the D.C. Bar Association would go to
these ABA meetings with others of the junior bar section to present their activities. Annually, one
of these groups was singled out as the best junior bar section in the country. It made me very
proud indeed to say that the District of Columbia’s junior bar won the award primarily because of
the activities of my public information committee.
MS. PORTER: Were you the chair?
JUDGE GREEN: Yes.
MS. PORTER: You mentioned that you were the editor of their quarterly
newspaper. What was involved in being the editor? Did you have to write this or were you
twisting arms?
JUDGE GREEN: I was associate editor. We edited contributions from others
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discussing ABA activities, and collating that information that came in from various members and
delegates of each state to the junior bar conference to assimilate the news we thought most
beneficial professionally to the other younger members of the American Bar Association. It was a
quarterly, relatively slick document for those days. Slick, I say in a good sense.
MS. PORTER: Joyce, in your 30-hour days, what other things were you
doing?
JUDGE GREEN: I was a fellow of the American Academy of Matrimonial
Lawyers from the day of its founding in 1966 until I went on the bench. I also was a founding
member of the National Lawyers Club, and was one of two women on its original honorary
advisory board. This was a wonderful club with meals and sleeping accommodations for the
lawyers, always filled with lawyers, friends and clients. Business talk was evident. For me, a solo
practitioner and a woman to boot, it was really important that I have a place (other than my office)
to which I could take my clients (I’m not a country club kind of person), a place where I could
graciously pay the bill, because male clients always wanted to pay the bill. It got awkward. All I
had to do at the club was sign my name. We didn’t have credit cards in those days. It was
comforting to sit in a lounge, talk to a client or another lawyer, and have a meal together. I was
honored to be asked to be on the founding and advisory committee. As I told you earlier, I
practiced in both the District of Columbia and Virginia, shuttling back and forth with offices in
both jurisdictions. In the District of Columbia as another extracurricular activity, I participated in
the American Cancer Society, the D.C. division, became an officer for several years in the 1960s
and throughout most of that decade, and eventually a trustee of the American Cancer Society,
serving on its Executive Board. This was very important to me and I was active in it for personal
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reasons (my mother was a cancer victim), as well as the desire to work with a worthy charitable
organization. As far as Virginia was concerned, for about 18 months I was a member of the
Soroptimist Club of Virginia. How did that happen? I was dragooned into membership by the
Deputy Clerk of the Arlington County Court, a woman.
MS. PORTER: You mean you were frightened not to join?
JUDGE GREEN: Exactly. She was the most prominent woman in Arlington
County politics and courts. It’s important to understand the dynamics in Virginia at that time.
When you think of a Clerk of the Court or a Deputy Clerk of the Court, your mind doesn’t
necessarily consider politics, but in Virginia it was the Clerk of the Arlington County Court that
gave, at his home, the kickoff ceremony for the gubernatorial election. And, in this instance, the
Deputy Clerk’s husband was the Clerk of the Court. She, more than he, was a serious politician.
Nothing was more important to her than to recruit young lawyers for work and politics. When she
found a young woman professional to associate with an organization that she was active in, that
enhanced her prominence. I was told I was going to be a Soroptimist and represent all women
lawyers (each Soroptimist represented an occupation, a banker, realtor, something of that nature).
I really had no choice. I wanted to have my pleadings promptly processed. So I joined. This club
was dedicated to charitable causes and doing good. The difficulty was that whatever we were
asked to do involved money. You had to sell tickets, you had to go to a raffle, you had to do an
auction, you had to participate two or three times a week in getting people to buy things. I have
never been able to lobby. As a girl scout I could never sell the cookies, so I bought them and ate
them all myself.
MS. PORTER: Well that’s okay. Eating is alright.
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JUDGE GREEN: And I was the one who now had to raise money for laudable
purposes: scholarships, charitable contributions, etc. It lasted 18 months because I was rapidly
becoming impoverished, since I bought the tickets. I had no time for other, more important
causes. I finally had to say my practice was booming and my other activities were many, and,
therefore, I resigned to make a place for another woman lawyer. The deputy and I remained very
good friends, nonetheless; she was the one who insisted on personally issuing my wedding
license; she and her husband demanded to be invited. They were.
MS. PORTER: That’s sometime later?
JUDGE GREEN: Yes, sometime later.
MS. PORTER: Have we finished with your extracurricular activities?
JUDGE GREEN: No, but I’ve said enough, other than to add that I chaired the
younger lawyers of the National Association of Women Lawyers, around 1959 or 1960.
MS. PORTER: Can you explain what that organization was?
JUDGE GREEN: As its name suggests, women lawyers from all over America
had the right to join this organization, which represented the cause of women in general and
women lawyers specifically. It really did commendable work, as best it could with a relatively
small membership; since I was indeed one of the younger lawyers, I inherited that mantel rather
easily.
MS. PORTER: Now Joyce, you mentioned that right around 1960 you started
to share offices with June Green. Was June at that time a good friend of yours or did you become
good friends as a result of sharing an office?
JUDGE GREEN: At the time June Green asked me to join her in her suite of
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offices in the Washington Building in D.C., she was the most prominent woman attorney both in
Maryland and in the District of Columbia, and had been a recent president of the Women’s Bar
Association. I did not really know her that well. I had seen her in action in the WBA and in her
activities with the D.C. Bar; I had watched her in court and admired her greatly, but I didn’t really
know her very well as a person. I accepted her offer with pleasure and we had, as I indicated
before, two offices, a common waiting room and a secretary, and equally shared the expenses. I
brought to this arrangement my copying machine, which in those days used the fluid, and energy;
she brought her coffee pot, her good nature and her wisdom. We became the very best of friends,
truly sisters (June treated me as her younger sister, but as an equal member of this association).
We were not partners, we never did become partners, but we were together for six years, five
before my marriage and one after my marriage. A wonderful, wonderful human being. She
would sew me up in order to go to court. Literally whip out her thread and needle as my hem
dragged a bit, apply a few stitches and send me out the door. I would send her out the door early
enough so she would be on time for her husband, John, or wouldn’t be held in contempt of court
for being late. We would do things for each other in many respects, personal things, consult about
cases, and how we would apply our respective talents. She mentored and taught me all along the
way, but, on occasion, much to my joy, she would also ask for my advice. We ate lunch together
almost daily. It was a very wonderful time in my life. A time of growth, a time of personal
pleasure in this really great friendship, a time of increasing devotion to the law, respect for the
other judges and lawyers that she knew, and I came to know. During this time she became a bar
examiner in the District of Columbia (there had been but one other woman who received that
prestigious position). I can still remember the sound of mounds of bar examinations landing at
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our door days after the examination that she would now have to grade. These were inspiring
times. I met many people through her and John. They were steady rocks in my life. It was a time
I will cherish forever.
MS. PORTER: Who were some of the more memorable people that you
remember from this time?
JUDGE GREEN: So many. Let me just cite a few. Much of my life revolved
around the bar association and my activities therein, the people I met there, the monthly meetings,
so when I cite people I met there, some were co-counsel and some were opponents in court. I’ll
mention John Pratt, who was at one time president of the bar association as was Oliver Gasch;
both became colleagues of mine on the federal district court years later. They were there a long
time before I was. There was Charlie Rhyne, not only the president of the District of Columbia
Bar Association, who became the president of the American Bar Association and established the
World Peace Through Law group; I joined the division that concerned judges and world peace.
MS. PORTER: You say it dealt with judges. What did it do to judges?
JUDGE GREEN: The membership included judges worldwide who compared
their responsibilities in their cultures and politics; they tried to find ways in which judges, through
the law, could help assist the cause of world peace. A little difficult to fashion into words, but the
idea was laudable and World Peace Through Law was appreciated for many years as a stable
organization. There was also Donald Duvall, who has recently died, a fine gentleman who
worked in leadership posts at the State Department and was very active in the bar association.
There were wonderful women, Nancy Thompson for one, a very dear friend who had been active
in the bar before I came to the bar, as was Charlotte Murphy. Charlotte Murphy eventually
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became a Court of Claims judge. Nancy Thompson was a very important figure in the
Department of Justice for many years during the time of civil rights, and subsequently during the
050s and 060s and 070s, and later as a Deputy Assistant Attorney General and legislative liaison to
Congress. There was, of course, Chief Judge Bolitha Laws of the United States District Court for
the District of Columbia. An amazing gentleman who treated me – you asked me how the judges
treated me, I should have mentioned him at the outset – with the greatest courtesy and
appreciation. And, of course, wonderful Ed Campbell. Ed Campbell, a noble gentleman of the
south, married to a remarkable woman, Elizabeth Campbell, who originated and developed
WETA, the public broadcasting station.
(TAPE 5 A)
MS. PORTER: This is a continuation of the interview being conducted on
behalf of the Oral History Project of the District of Columbia Circuit on October 6, 1999. Joyce,
before we had to start a new tape here, you started to talk about Ed Campbell as one of the
memorable people that you encountered during your activities. How did you meet Mr. Campbell?
JUDGE GREEN: I met Ed through my association with the bar association. He
had been an officer at the time I was chairing the public information committee and, when
president of the bar association he called and asked if I would accept the association’s
recommendation for nomination to the President of the United States for my appointment to one
of the two newly authorized judgeships in the D.C. Juvenile Court. I was astonished. While I
had followed that matter with interest since I had done some juvenile court work, among other
domestic relations work, I had never wanted to be a judge. I asked for a few days to think about
whether I would accept the designation by the District of Columbia Bar, which surprised Ed no
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end; he persisted until I called to say I would. Then he told me what I had to do to secure this
appointment. He was very savvy politically; I was absolutely a novice. I was told to begin with
my precinct chair (I didn’t even know who that was) and move my way up to the 10 county th
level, which included Arlington County, where I lived and practiced, and the surrounding area,
and to get the endorsement of those leaders. Of course I did not know them. In turn, these
sponsors would encourage others to sponsor me. There were multiple stages in the political
process. Then I would have to contact my United States Senators. This was scary. All the
shyness that I had suppressed returned. It was really difficult to do this and I wanted to say no,
forget the whole thing, but I couldn’t since good people had reached out with faith in me; I also
felt I owed this to the women to follow. I went, reluctantly, from place to place. If Ed had only
admitted that he had paved the way for me in every instance, because at the end of each
conversation the person would say I was just as Ed had said I would be, etc., reflecting that he had
intervened. But I didn’t know that, and I couldn’t count on that, so to each I went with trepidation.
But, people were wonderful. Everyone wrote a glowing letter, even though I had just met them.
Mary Marshall, then chair of the 10 county (later, a state senator), herself typed a letter, in her th
home, while I waited, telling the world how wonderful I was and how I deserved this judgeship.
Senator Fenwick, our state senator, also sponsored me and he contacted William Battle. Bill
Battle, of the established Virginia law firm, Battle, Neal, Harris, Minor and Williams, in
Charlottesville, and son of a former Governor of Virginia, wrote a strong letter asking for my
appointment, to the U.S. Attorney General. He was special, a person who was on the PT boat
with John F. Kennedy during the war; John Kennedy was the President of the United States at
this time, so this obviously was a most important endorsement. I secured the endorsement of
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Harry Byrd, Sr., the senior Senator of Virginia. Three men and I were nominated for this position:
Hubert Pair, then Assistant Corporation Counsel in charge of appeals (subsequently a judge of the
D.C. Court of Appeals); Barrington D. Parker, who later became a colleague of mine on the
district court; and Edmond T. Daly (later a judge of the Court of General Sessions, predecessor of
the Superior Court of the District of Columbia), then an assistant United States attorney. What
happened at the end is that —
MS. PORTER: None of you got the job?
JUDGE GREEN: None of us got the job, that’s exactly right. The positions went
to Morris Miller and Marjorie Lawson. Marjorie Lawson had been one of the handful of people
who consulted with President Kennedy in Hyannis, Massachusetts, prior to his nomination for the
Presidency; it was well known that should she want the juvenile court position she had it. But,
what she wanted was to be the Director of the Mint, and if she got that I would become the
juvenile court judge. As it turned out, she did not become Director of the Mint, she became the
juvenile court judge, I didn’t. End of story. It taught a remarkable lesson, which was, never, ever
would I allow myself to do again what I did to try to secure this appointment. I could not go with
hat in hand to ask for personal endorsements. It just wasn’t me; I can’t do that sort of thing. I was
enormously concerned about it and I detested the entire process. I felt very uncomfortable that
people wrote such laudable things about me, however nice, when they didn’t even know me. It
just seemed so artificial. Incidentally, Jenny, as an Australian, you should know that Bill Battle
was appointed by President Kennedy as Ambassador to Australia.
MS. PORTER: I don’t remember him.
JUDGE GREEN: Well, you’re too young. This was an interesting period in my
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life – that was in 1962.
MS. PORTER: Okay. Well we were talking about people you had met during
that time. Now, in our conversations off the record, one of the topics that you mentioned as
arising during this period was your marriage, and now might be a good time to tell us about how
you met your husband and how it all panned out.
JUDGE GREEN: Another illustration of the importance of the bar association
and its activities. I met my husband, Sam Green, through bar association activities. Indeed, he
was a member of my public information committee. We had similar interests. He was one of
many special people, a person that I had opposed in several cases. We had also been co-counsel
in trials. I admired him professionally, and enjoyed the little bit we would see of each other
socially at the bar association activities. He was brilliant, worthy, ethical, funny and serious, great
to work with and to be around, a gentleman. He worshiped the law and had the full respect and
affection of the bar. It was, however, a matter of vast astonishment when he asked me out, saying
he was going to court me. I accepted the date and eight weeks later we were engaged.
MS. PORTER: What year was that, Joyce?
JUDGE GREEN: This was 1965. Our first date was in March. We became
engaged on May 7 , same year, then we waited four months, until September 25 , our wedding th th
date, while we made arrangements for our personal and our professional lives, continuing to
practice law and planning the wedding and life thereafter. There was much to do. Sam had been
married before and I wanted to know better his three children. His son, Phil, was heading for
medical school that September; his daughters, Leslie and Kathy, were 14 and 8. Sam was an
amazing man, self-made. He volunteered into the Army as a private days after Pearl Harbor, was
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a “90-day wonder,” battlefield honored, commissioned as a captain, and returned to college/law
school on the G.I. Bill of Rights, ever grateful for the education he never would have otherwise
afforded. He was strong, he was sensitive, and a hugely decent person, modest about his
remarkable accomplishments, totally unselfish and only determined to advance me. A man
beyond description who was my universe, and a loving, dedicated father to our children, without
whom I would not be giving this oral history today. He died 17 years ago, in 1983. I miss him
every day of my life. We were blessed to have such an incredible marriage.
MS. PORTER: You married in September?
JUDGE GREEN: We married in September. We had a formal church ceremony
(June Green was matron of honor) and honeymooned in the U.S. Virgin Islands at Caneel Bay, on
St. John, then on to the New York World’s Fair and also a few days in Williamsburg (typical of
Sam to squeeze in all these places; his zest for life was fabulous). We established our home life in
Washington.
MS. PORTER: And you were, at that time, still sharing offices with June
Green?
JUDGE GREEN: I was.
MS. PORTER: What happened after that?
JUDGE GREEN: Sam had asked me if I would join in partnership with him at
the time we married. I elected not to do so then, even though it meant double expenses for
offices, double secretaries, double rents, double books, and a lot of wasted time because we spent
so much time during the day talking to each other, being with each other, lunching with each
other, driving in and driving out together, and so on. It was such a great marriage that I thought
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maybe 24 hours a day might be a bit much and lead to disagreements about approaches in the law.
I had read too many stories suggesting this total togetherness to be a mistake. As it turned out, in
1966, now really knowing Sam and how it would be, and how great it was to be together all the
time, Sam and I established the partnership of Green and Green. I left the office to June Green.
At this time I changed my name from Ruth Joyce Hens, my professional and social name, to Joyce
Hens Green, having to get special permission from various courts in order to do this little act. As
the Clerk of the Court of the State of Virginia drawled, “Why, gal, nobody has ever done that in
our history, but I’ll see that you get your way.” We had established the firm of Green and Green
and shortly thereafter, my husband would say I simply refused to work. I became pregnant and
gave birth to our first child. When I was put on the bench the partnership ended.
MS. PORTER: I think you skipped over something now Joyce.
JUDGE GREEN: Did I skip something there? (laughter)
MS. PORTER: When was Jimmy born?
JUDGE GREEN: Jim was born on June 18, 1967, just short of two years after
we were married. It was a difficult pregnancy, but only in the sense of keeping the pregnancy
going, so I was required to retire from the practice of law as soon as I found out I was pregnant. I
had had two miscarriages before his birth and one afterwards. From one day to the next I did two
things, I stopped practicing law and I stopped smoking.
MS. PORTER: Which one was easiest?
JUDGE GREEN: I never thought of it that way. (laughter) Neither was difficult
because the goal was so important. We could not have been happier. I was required to stay at
home and do a great deal of resting to keep this a viable pregnancy. Jim arrived unexpectedly a
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month early, on Father’s Day, because that’s the day I had proclaimed I really wanted to have him.
Like so many matters which have worked so beautifully in my life, Jim was wonderful and
healthy and sturdy. We were delighted to have this little son.
MS. PORTER: Now, Jim is just one of three children.
JUDGE GREEN: Yes, he is very much one of three children. When Jim was
three years old, it seemed obvious I was not going to have another successful pregnancy. We
applied for adoption and our two other children, who are brother and sister, came to us four
months later. Our oldest son, then, was four and a half years of age, his sister, three.
MS. PORTER: This is Michael.
JUDGE GREEN: Yes, Michael Timothy. He’s a year and five months older than
Jim and June, because June is only five days older than Jim.
MS. PORTER: And is June named for the June Green?
JUDGE GREEN: Oh, you have it absolutely right but, of course, you knew that,
didn’t you.
MS. PORTER: So how did having three children change your life?
JUDGE GREEN: It was wild and wooly and clamorous and wonderful. I can’t
imagine life without them. Crisis upon crisis, challenging, loving, endless work, endless joy.
Because of the closeness of age, it was indeed like having triplets, each going in a different
direction, each a different personality, each with different interests, different talents, different
friends. My husband and I spent an enormous amount of time on soccer and football fields, at
chorus, at PTAs, watching our youngsters engage in their interests, play their sports, develop their
beings, knowing their friends, involving ourselves in their lives and with those friends and those
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friends’ parents. This was the staple for years and years; an enormous enhancement to life. It was
extremely busy, a full life, a challenging life, because during this period of time, Sam actively
practiced law and wrote for law journals and continued bar activities. I had been on the bench
only a few years when Mike and June became our son and daughter.
MS. PORTER: What year did that happen?
JUDGE GREEN: I became a Superior Court judge in March 1968, having been
interviewed in December 1967.
MS. PORTER: So this was when Jim was about a year old?
JUDGE GREEN: No, Jim was six months old when I received a call at home. I
was then retired from my 17-year practice of law and a full-time wife and mother at home. The
call was from Dan Freed, Director of the Office of Criminal Justice at the Department of Justice,
who had been a colleague in the practice of law and also very active in the bar association. In
later years, Dan became a law professor at Yale, referring law clerks to me. We had served on
committees (once again you can see the huge impact the bar had in so many respects). Dan asked
me to come to the Department of Justice to talk to the Deputy Attorney General about a long
existing vacancy on the then Court of General Sessions of the District of Columbia, the
predecessor of Superior Court. An astonishing phone call in which I laughingly asked, “Where
have you been for my 17 years of practice,” promptly turned him down, expressed my joy with life
at home, my husband and our child, and the completeness of my life, but thanked him for thinking
of me. And then I called my husband and told him what had just happened. He told me to
immediately call Dan, whom he also knew, and say that I would at least come in for this meeting
with Warren Christopher, the Deputy Attorney General in President Lyndon Johnson’s
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administration, and recently was the Secretary of State in President Clinton’s administration.
MS. PORTER: And you went for the interview?
JUDGE GREEN: As a dutiful wife, albeit protesting all the way. I reluctantly
called Dan, told him I was doing this only because Sam wanted me to, that I didn’t really want the
position, and certainly did not expect to get this very political appointment, but that I would come
in the next day and see the Deputy Attorney General. It was very close to Christmastime.
Mr. Christopher and I had a long conversation; he gave me well over 1 ½ hours of total
concentration; advised me that 500 people (astonishing!) had applied for this position. I reminded
him I had never applied, but he knew, and was very much aware of my career. I didn’t know then,
and to this day I don’t know, how my name came to his attention. He asked me many questions. I
told him very honestly that I did not want the position. I was there because my husband said I
owed it to women to be there, and that while it was probable that I would not get it, I should still
go for this appointment and that he, my husband, had said he did not want to hear from me 30
years later, “Just think what I could have been.” Mr. Christopher was fabulous. He laughed about
Sam’s statements and the more I backtracked from this position, the more he moved forward,
reminding me that his law schoolmate at Stanford had been Shirley Hufstedler, who was an idol
of mine on the Ninth Circuit and a remarkable jurist. She was married and had a son, and if she
could do it, I could do it. Those, literally, were his words. It was an absolutely astounding
interview. Of course I had no experience to know that not all interviews for judgeships went this
way, but I suspected that was the situation. At the end of this conversation he told me that he
would recommend me to President Johnson, but that did not mean I would receive the position.
He also told me not to have anyone write or call on my behalf, not to tell anyone about it, expect
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my husband, since Lyndon Johnson, once he felt pressured to do something, did just the opposite.
And so I left, not expecting anything, and shortly thereafter the FBI knocked on the door and
wanted information. There were long discussions, but I knew other people were being considered,
too. My name began appearing in various legal publications and newspapers, reporting that I was
one prominently being discussed for this position. I never believed it would happen. However,
on occasion I did put on my best pair of shoes and go to the office just in case something magic
would occur, which did, on February 22, 1968, George Washington’s real birth date. I had been
with my husband and Jim, then about eight months old, in northeast Washington, attempting to
sell the house of a mental health patient, my responsibility as the guardian. I went back to my
husband’s office, talked to him for a few minutes outside in the car, fed the baby and then drove to
our apartment. As I was parking, Sam drove up next to me and told me to get to the White House.
When he had returned to his office, he was told they had been looking for us all morning long and
that I had to be at the White House immediately for important news.
MS. PORTER: And at that point, how did you feel about being offered this
job?
JUDGE GREEN: My first thought was what am I going to do with the baby?
There was a woman in our building who had occasionally babysat with him. I just gave her Jim
and his bag of essentials and said I’d be back soon. When I telephoned the White House to say I’d
be there shortly, after I changed clothes, I was told not to take even ten minutes to change. I was
so naive that I believed them and I didn’t change. Subsequently we took a picture to memorialize
that I had a red sweater on and a skirt and the baby had just broken my pearl necklace that
morning. On the way to the White House I was so nervous I could not find my lipstick (although
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it was there) and insisted we stop to get one, even though Sam reminded me that the President had
just had the Pueblo incident and I was keeping him waiting. Four of us were at the White House:
Austin Fickling, then a general sessions judge who was being elevated to the Court of Appeals;
Jim Belson and Bill Pryor. We were told that we were being nominated to be judges. Barefoot
Sanders (now a district judge, N.D. Texas, in senior status), assistant counsel to the President, was
the one who informed us all. He noted my incredible excitement, you asked how I reacted –
excited! After the others left he detained me and asked if I wanted to see the Oval Office and the
Rose Garden. I did. He showed them to me and I floated on a cloud. We were told not to say
anything to anyone until the President formally made the nominations. Very hard to do. But the
press called me the next day and told me my picture had just appeared on the front page of the
newspaper, and that it had been announced. That’s how I heard about it.
MS. PORTER: What happened after that? What was the procedure for being
sworn in? How did it go? After you read it in the paper, what happened next?
JUDGE GREEN: Immediately, papers were prepared for the United States
Senate. This went before the District of Columbia Committee of the United States Senate and I
had to go through a formal process there before the committee, give them a financial statement,
give them a total background and resume of all of my activities to date, appear for a pro forma
hearing. Then, the committee’s approval went to the Senate for action. Sam and I were in the
process of buying a house in Arlington, Virginia, literally on the grounds of that house, and had
just gone with the broker to sign the contract of sale. My husband telephoned his office and
returned to announce I had just been confirmed by the United States Senate. That was on March
11.
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MS. PORTER: From the moment Dan Freed called you to ask you if you
were interested, to the moment you were appointed, how much time elapsed?
JUDGE GREEN: This was from December to March. Fast.
MS. PORTER: That’s very quick.
JUDGE GREEN: Very quick. There had been a vacancy in the court for over
two years, almost three years, and in an area that I was expert in, the domestic relations field. Of
course, I was appointed to be a judge on the court, but initially to serve in the three judge
domestic relations branch. I would be the third judge. The process went so fast, I did something
I never should have done, and never would do again, but at that time, recognizing the great need
in the bar for prompt filling of this judgeship, I gave myself only 11 days, and had my investiture
ceremony on March 22, 1968.
MS. PORTER: You say you gave yourself 11 days.
JUDGE GREEN: Eleven days to try and find someone to take care of the baby,
11 days to try and put life in order, 11 days to do everything that you have to do to prepare
yourself for another life. Eleven days to just borrow a robe, because there were none ready for me
at that point and couldn’t be, I went on so quickly. The Chief Judge at the court, Harold Greene,
had told me there was a need for me to come on quickly. I have reminded him of that many
times since, that I galloped on and never should have done it so quickly. I could not find the
right babysitter for Jim in that short period of time and so the woman in our apartment building
took care of him initially. Each day I went to work and for the first few weeks, I interviewed
people by telephone in the early morning, and in person during my lunch hour, and then I’d go on
the bench, do my work, go home, take care of Jim. It was such a busy, enveloping time. In April
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we found the perfect person for both our youngster and for us, and Katherine Naw, later Ahmed,
came to live with us. She stayed 17 years, with a brief interruption when she married, far longer
than needed for childcare. She didn’t do housekeeping (that was just really a term of art in her
case), but she did do childcare exceptionally well. One hundred percent reliable, 4’10”, 90
pounds, Burmese, a delightful, warm, loving human being. We stay in contact these days.
MS. PORTER: We need to have this all put in context. What was this court
that you were appointed to? Where was it in the structure of the courts in D.C. and what was its
jurisdiction?
JUDGE GREEN: It was the only local trial court in the District of Columbia.
The D.C. Court of Appeals was the first court of review then (today it is the highest court of
review); the next court of review was the United States Circuit Court for the District of
Columbia, and again, this odd mix of the local and the federal intervened. In fact, it was the U.S.
Appeals Court of the District of Columbia Circuit that appointed the D.C. School Board. Just a
total involvement of the federal in the local affairs because of the unique status of D.C. That
changed in 1970, 071, 072, 073, when the Court Reform Act, which had been in process for a long
time, came into being. The D.C. Juvenile Court was absorbed by the newly named Superior
Court of the District of Columbia, the jurisdiction was augmented, the tax court became part of
this court, probate, domestic relations, landlord tenant, traffic, were all in the local court, the
number of judges hugely increased, the responsibilities were much vaster; it became an entirely
different court system, with all local matters and all under one roof. Later, there were seven
roofs for this structure.
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ORAL HISTORY OF
HONORABLE JOYCE HENS GREEN
Fourth Interview – December 2, 1999
(TAPE 5 B)
MS. PORTER: This is a continuation of the interview being conducted on
behalf of the Oral History Project of the District of Columbia Circuit on December 2, 1999.
Joyce, you had just joined the Court of General Sessions. How many judges were
there on that court at that time?
JUDGE GREEN: I can’t remember the exact number, but close to 23 or 24.
Three of us served on the domestic relations branch: Judges Joe Ryan and Dick Atkinson.
Richard Atkinson was African-American, one of the few on the court at that time. Some other
judges on the local court at that time were: Tim Murphy; Edward “Buddy” Beard; DeWitt Hyde,
a former Congressman from the State of Maryland; Milton Korman; Milton Kronheim; Ed Daly,
who had been one of those also suggested for the juvenile court who didn’t get it; Harold
Greene, the Chief Judge. The other woman, Mary Barlow, was not present at the courthouse.
She had served well the then ten-year term. Reappointed for a second ten-year term, she did not
serve any of that second term, and was four years into that second term when I came on the
bench. She had an illness that was, how do I put it – ill defined. We really didn’t know the
extent of the illness, but it so incapacitated her that she could not go on the bench and perform
her duties. She did hire a law clerk yearly, much to the irritation of mine, because her law clerk
would come in around 11:00 a.m., read the newspaper, make his luncheon arrangement, make his
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golf plans for the afternoon, push around a few papers and leave early – unlike the hours that my
clerks had to work with me.
MS. PORTER: So you were effectively the only woman on the court at that
time.
JUDGE GREEN: Effectively, yes. I was the only woman. Eventually Mary
came back for a few weeks – a day or two – then absent again. She tried, unsuccessfully, to
participate again as a judge on the bench. More years elapsed before she resigned. She was a
really lovely person. She was clearly sick.
MS. PORTER: I think it’s fair to describe your ascent to the bench as being
catapulted onto the bench, and you did that, you weren’t looking for the job, how did it feel? One
day you’re at home with the baby, next day you’re on the bench. How do you go about wanting to
be a judge?
JUDGE GREEN: Very difficult. Had no training courses, no one to hold my
hand and mentor me through this, no one to tell me the next steps to take. I remember the first
day going on the bench I carried a yellow pad and a pen in my hand, and the bailiff took them
from me, exclaiming that judges don’t go on benches holding anything. Today I still carry
materials onto the bench, but I didn’t know the protocol then. I knew enough about litigation to
recognize those things I hoped I never would put into practice as a judge and things I hoped a
good judge would do. Happily, I was put into the domestic relations area where I was very
comfortable with my knowledge of the law. I had kept up with it during my time in retirement,
but was not comfortable doing judges’ actions of preparing a memorandum, an opinion, an order.
No one had taught this in school, nor had I learned through experience. My law clerk and I
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learned together and my colleagues really were great. Among them, Tim Murphy, a colleague
across the hall, a wonderful, helpful, creative man, and a very good friend today. I’d ask
questions, particularly about criminal law, which I was least conversant with, and the ways of
judging.
MS. PORTER: How long were you in the domestic relations area? Did you
do a rotation among the different areas?
JUDGE GREEN: In all other areas of the court the judges did rotation.
Generally the domestic relations judges stayed, but after a few years of doing this, much as I
loved the work (I felt particularly devoted to custody and adoption cases; nobody enjoys
contested divorce cases, although I certainly did many). I needed a change. I’m pleased to say I
advanced the law in a number of respects in cases affirmed by the court of appeals that
stimulated modern trends into the domestic relations field, which was changing rapidly and
radically from the former adultery in every case with investigators and named correspondents,
the worst possible scenario, to more voluntary separations and attempts to effectuate peace
among those who otherwise would war. But there came a time when I asked my Chief Judge,
who had always treated me most impressively (making me one of his seven advisors participating
in the governance of the court), if he would take me out of domestic relations for a time. I
volunteered to take landlord tenant or small claims or anything that most judges didn’t want. He
promptly put me into felonies; I called to tell him that every other judge who had been in felonies
had first had a year of misdemeanors, and since I had never had a misdemeanor in my life,
perhaps I should start there. The chief exclaimed, “You can do it, can’t you?” and hung up. And
so I went to felonies and I was out of domestic relations for several years doing a variety of the
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court’s work: major felonies, civil motions and trials (the most interesting and more cerebral than
any other assignments). I found all of the work of the court fascinating. My Chief Judge treated
me, as I have said, very well indeed. I only spent a week in traffic court in all my 11 years in
Superior Court, and two weeks in landlord tenant court, not a favorite. I was treated extremely
well. After the initial growing period of this new court, most of the assignments lasted at least a
year or more, subject to being repeated, if not immediately, shortly thereafter.
MS. PORTER: And the Chief Judge was still Harold Greene then?
JUDGE GREEN: Yes, Harold Greene was my Chief Judge for all but one of my
11.
MS. PORTER: You mentioned that he made you one of his seven counsel.
What was that?
JUDGE GREEN: He took seven judges of the court and utilized them as
sounding boards, as a counsel to advise him, to do things, to work with the other judges in
various areas, and to generally help with the governance of the court. But he was the Chief Judge
and a strong Chief Judge who really made this new Superior Court of the District of Columbia a
model court in America. We were very proud to be judges and an abundance of new judges were
coming on. At one point we got 17 new judges, which almost doubled the strength of the court.
Then we got seven more about a year later.
MS. PORTER: And these were all people who had never been judges before?
JUDGE GREEN: Yes. The new judges generally were people well known in
the community and respected in the profession. It became a court of fuller dimension than it had
been before. We were very proud to be part of this court. We were proud to respond well to
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crises. For example, this was the era of demonstrations, the flaming 060s and restless 070s, the
youngsters demonstrating against the Vietnam War and other causes of the day. The acceleration
of drug and alcohol abuse reflected in the court cases. I took my oath of office on March 22, and
in the first week of April, Martin Luther King, Jr. was assassinated. Smoke poured through the
windows of my chambers. Rioting and acts of violence were occurring throughout the city. The
court was put on 24-hour duty. It was decided that, because I was so new, I shouldn’t do the 2:00
a.m. stint, but instead, while others did those round the clock duties, I took care during the day of
the entire court operations.
MS. PORTER: What was entailed in taking care of the court system?
JUDGE GREEN: The entire court had to function, arraignments in particular,
anything time regulated by statute for criminal and juvenile courts had to be accomplished. For
example, those arrested had to come before a judge within hours, preliminary hearings were
required within ten days of arraignment. The civil matters were put on a back burner. Clearly I
couldn’t do them all. Other matters, unless they were an emergency, such as domestic restraining
orders or a kidnap situation, had to wait for the larger crisis to subside. Of course, I had no
experience. It was an interesting time for everyone, for the lawyers, for the defendants, and then
for me. But, we all worked together, and it got done. The next time we had demonstrations I
was put on the 2:00 a.m. to 6:00 a.m. shift, just like everyone else.
MS. PORTER: You probably learned a lot in your brief period of running the
whole court.
JUDGE GREEN: I did. What extraordinary times! The Martin Luther King
period was a truly revealing time reflecting the agony our country was suffering; it was
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demonstrated fully in Washington, D.C. Fires were set everywhere. When we tried to leave the
courthouse that day, that first day, my husband and I, our car was forcibly and vigorously rocked
by angry people on the street. It was scary. An awesome time thinking about our nine-monthold baby at home, wondering if we were going to survive. I have never seen a city in flames. I’d
never witnessed looting as it occurred before our eyes. It was a tragic moment in history. The
next day an Army jeep was placed where the juvenile court had been, across the street from my
chambers. The National Guard was summoned. There were military people all over downtown
Washington (even as far as Cleveland Park, NW, where we lived) trying to protect persons and
homes from the incredible anger, misery and mourning, and turmoil that beset people because of
the King assassination. It was as if this had ignited a long submerged cataclysmic action, and
then everything erupted to heedless destruction. But I knew you could not lose sanity in the
midst of this insanity, and the judges had to stay steady, our court institution had to stay steady.
The court was the law, and would survive and surmount the crisis. The people had to be
processed quickly and appropriately. We did the best we could with what we had. And if we
couldn’t do it the right way, then we didn’t do it. I look back on those years and think, if ever
there is a time of law and order demonstrated, it was this time. The court system and its judges
became the symbols of dignity and justice. We all could stand straight and tall and be proud of
what we had accomplished. I was so proud to be a Superior Court judge; I was proud to be a
citizen of this United States of America. I will never forget.
MS. PORTER: This was a pretty novel situation that you all encountered and
you say the court rose to this occasion. After this experience did you put in place contingency
plans should this happen in the future, or just go on memory about how to do it if it ever
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happened again?
JUDGE GREEN: Well, in part you went on memory hoping it wouldn’t happen
again, but all of us were acutely aware of what we had to do at the time and where we could have
done it better, had we certain procedures in effect; so procedures were established for future
emergencies. People knew exactly their function and how they could reach others; in those days
we didn’t have cell phones, but you needed access to materials you could carry with you in small
size, the men in their wallets and billfolds, the women in their purses, so that you would have
essential information with you day and night should something like this happen again. And so,
matters evolved. You learn from the past and you try to do better the next time, when there is,
unfortunately, a next time.
MS. PORTER: This is pretty rigorous on the job training that you received.
You mentioned when we were talking about training a little bit earlier that at a certain point in
your career on the bench the training became better for judges. Can you tell me how that all
happened?
JUDGE GREEN: I can. I give credit for this to Tim Murphy. Tim Murphy has
always had creative ideas, and when we got so many new judges, all coming within a short span,
it was clear that we should do something to try to help.
MS. PORTER: This was in the early 1970s?
JUDGE GREEN: It was 1973 when we acquired full local jurisdiction.
Everything local had been removed from the federal court now; everything local was in the local
court. The domestic relations division had gone over earlier, too. But everything else, the
unlimited civil jurisdiction, felonies, when the court had never had felony jurisdiction before, the
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tax court, the juvenile court, all of those matters had to be reckoned with, and so, when these new
judges came on, so many at one time, Judge Murphy urged us to devise training for the new
judges. He recruited me and asked my husband, his good friend, if he and I would participate in
this; he recruited other judges, experts in other areas, to be his faculty. We would take the new
judges in groups and teach them the fundamentals (procedures and law) of the respective areas
under the court’s jurisdiction, because the judges came from different disciplines. We had one,
an oil and gas expert in his partnership in a prestigious firm, who asked me before his
confirmation where the courthouse was located. I’m not going to mention names, but he clearly
needed assistance in fundamentals of matters other than oil and gas. Now had we done anything
with oil and gas we would all look to him for advice, but the court didn’t handle that.
MS. PORTER: Were most of these new judges experienced litigators?
JUDGE GREEN: Yes, but in subjects that were not necessarily the work we
did. They would do SEC work (federal court), they would do FCC or FTC work (federal court),
government regulations (federal). If they did things like medical malpractice or legal
malpractice, yes, that was our court. If it was a big contract that involved X, Y and Z, that
undoubtedly would come to our court unless it was diversity and could be removed to the federal
court. So, with the two courts working side by side, we achieved all the local functions. It was
an extremely busy court, a volume court, and all of us had something to learn no matter how long
we had been judges and no matter what activity we had done in our lives before we became
judges. And so this training was invaluable. For example, the judges rode in a police car to
various scenes and actions so they could see what happened on the streets of Washington when
the police responded to a radio call, and located and arrested a suspect. Very helpful to have this
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kind of training. Similar training continues today.
MS. PORTER: It is December 2, 1999, and we are resuming the interview
with Judge Joyce Hens Green for the District of Columbia Circuit Oral History Project. The
interviewer is Jennifer Porter and we are doing this at the judge’s home. Joyce, you were talking
about training programs that Tim Murphy was instrumental in establishing to help the new
judges understand their duties and get a handle on what they were supposed to be doing in this
new role. Apart from the training courses, were there other things that were done at that time to
help the new judges?
JUDGE GREEN: The quick answer is yes. I earlier said that we had about 23
or 24 judges when I came on board. The actual figure is there were 20 and then I made the 21 .
st
We got the increased number of judges, first 17 and then, about a year later, seven more, swelling
the court to a total of 44; I should say, parenthetically, there have been some resignations in
between or deaths, and those judgeships were filled as they occurred. I’ve always been fortunate
to be in courts that have had extraordinary collegiality among the judges. The judges in Superior
Court were a fascinating group of individuals, men and women; they came from all walks of life,
they were ready to share their experience as the cases developed before them. We had a
lunchroom which assisted measurably in getting us together as frequently as once a day if we
wished to join at lunch to talk about our various issues. We encouraged judges to pick a mentor
and come to chambers and chat about anything which seemed to be a problem; each of us gained
much from that kind of dialogue and that input. As the years went by, this became especially
important with the increasing number of judges and the very little space available in the court
system. We were in seven different buildings (for all but the last of my 11 years there). The
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chief decided it was necessary for us to walk to our assignments, literally carrying the robe over
the arm, sometimes accompanied by a Marshal, sometimes not, no books, just ourselves. Most
of us didn’t take our law clerks with us so they could stay back in chambers and do the research.
I would be completely separated from my staff, and I would go to the building that had the
particular discipline that I was assigned to. As example, if I was in civil, I’d go to the Pension
Building (now the National Museum Building); if I was in domestic relations, I would go to the
building at 5 Street and Indiana Avenue; if I was in criminal, it would be to one of the two th
criminal buildings on 4 or 5 Streets, NW. Chief Judge Greene believed that this would allow th th
the citizens to find us. I might say we had some difficulty finding each other and finding the
citizens, but nonetheless this is what we did for year upon year upon year, through rain and snow
and even personal danger. It became all the more vital that the judges have an opportunity to
gather together or meet to talk about ongoing activities of the day; indeed, just to have a little
R&R becomes mandatory when surrounded by stress and turmoil constantly, as is commonplace
in any court system. We needed the levity of lunching together.
MS. PORTER: So scattered among so many District buildings, how did you
go about getting to know each other and the lunch meetings? Was there any other mechanism?
JUDGE GREEN: Other than the monthly judges’ meetings, which generally
were devoted wholly to business, and the training courses, we would pick up the phone, call
another judge and just say I need help or I’d like to talk about something. We made the
opportunity to get together, despite the long hours on the bench. The collegiality was there.
Many of us became social friends outside of the court because we wanted to. We took great
pleasure in the companionship of our colleagues and their families.
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MS. PORTER: We seem to have confused ourselves at various times through
this interview by talking about things off the tape. My recollection is that in one of these
moments you mentioned a buddy system that Judge Murphy had invented. What was that?
JUDGE GREEN: You remember correctly. There was a buddy system that sort
of wavered over later years, although it could have readily been instituted by anyone who had
that desire. Initially the idea was that a more experienced judge would be assigned to a less or
non-experienced judge and then always be ready to answer the questions and assist as to the
procedures and the mechanism. Obviously you didn’t do the research for the other judge, but this
was, when you just had a very basic question, where do I go, where do I sit, how do I stand, how
do I address a group of people sitting out there in the courtroom, what is expected when I am
ready to get up from the bench – do I announce it or does the bailiff announce it – things that you
take for granted when you have been a judge for a long period of time, but if you have never
done it, and if you have never seen the inside of a courtroom, as some of our brethren had not, it
becomes all the more vital that they feel comfortable in performing these activities.
MS. PORTER: If we could just go back for a minute to a subject that we
touched on earlier, and that was collegiality on the court, and the efforts that you and Judge
Murphy made to try and bring together those in buildings spread out across blocks of the city.
Talk about why you thought collegiality was such an important thing. I’ve always thought of
judging as an isolated sort of activity, where you are ultimately responsible for a decision. In
thinking about collegiality, do you actually talk to each other about your cases and compare
notes, or how does that work and why is it important?
JUDGE GREEN: It’s absolutely essential. Collegiality clearly has to be with your
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colleagues, rather than with the lawyers who appear before you. In Superior Court and its
predecessor court, general sessions, I’ll refer to both as Superior Court, in a court that goes from
such a small size to such a huge size quickly, with the great breadth of jurisdiction, and the
separation into seven buildings, it was vital that we find the cords that would bind and draw us
together. One of those vehicles was the teaching that Judge Murphy devised and that a number
of us participated in; another was a newsletter that several of us participated with, that was sent
around to the Clerk’s Office, to the other judges, to the law clerks, to the staffs, just sharing bits
of information we thought might be of interest and importance, on occasion even gossip, and
sometimes, believe it or not, judges’ humor. This is the kind of thing we tried to do to enhance
collegiality. We asked for participation because, as in any occupation, the more you participate
the more you become part of the function.
MS. PORTER: Well it has always struck me, Joyce, that judges can’t talk to
you. There are friends in a way whom I’m able to talk to about work that I’m doing. You can’t
talk to me about your cases because that would be inappropriate. But is there a case where you
feel free with all your judges to talk about your cases and to get the sort of feedback or
encouragement or support that the rest of us like to get in our everyday lives?
JUDGE GREEN: That’s exactly what I mean. You can say virtually anything
with the collegiality that you share with your colleagues. You can talk, discuss and argue about
politics outside the court, but a judge cannot attend political rallies or participate in any way in
campaign finance, other than casting a vote. You can thoroughly and candidly talk about cases;
you can share concerns about matters; you can talk about lawyers who in turn talk about judges;
you can talk about other judges who in turn talk about you; yes, you can share that and it helps to
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round out your dimension in life so that you’re not always looking through your own prism, but
you are getting feedback from others who have either gone through this same situation or are
about to encounter it.
(TAPE 6 A)
MS. PORTER: This is a continuation of the interview that was started on
December 2, 1999, on tape 5. The interview is being conducted on behalf of the Oral History
Project of the District of Columbia Circuit. The interviewee is Judge Joyce Hens Green, the
interviewer is Jennifer Porter. This interview is taking place at the judge’s residence on
December 2, 1999.
JUDGE GREEN: Continuing what we just finished talking about, collegiality:
eating lunch together was important where judges could group and break bread, and talk and do
fellowship. Through the efforts that we made, and I think they were really very successful
efforts, many of us did become lifelong friends, social friends as well as court colleagues, and I
look back on that experience as one of the more treasured in my life. I spent 11 years on the
Superior Court and with those friendships and relationships and the devotion of those judges I
served with at that time, and with the staff, even today it remains a large part of my life. But
back to when the judges would consult together. Very often they were seeking, and of course I
include myself in this, seeking advice as to how the other would handle a particular situation, and
in order to get to the bottom line you obviously have to give many specifics about the problem or
the background of the case you were referring to, and whatever happened that was important in a
courtroom. You might just be ventilating that, but not really seeking advice. Different dynamics
go into this, and one of the more important contributions to the court and to the collegiality, I
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believe, was an idea accomplished in Superior Court through the suggestion of Judge Greene,
and later incorporated by the judges, on a purely voluntary basis. It was recommended that those
judges who worked during the same period in the same area of criminal law, especially with the
most serious crimes, denoted Felony I, get together periodically, share each other’s presentence
reports, and then examine: If you were in my situation as the sentencing judge, what kind of
sentence do you believe should be imposed on this particular individual? I should say quickly
that in those days we did not have sentencing guidelines, and so we were unencumbered to
sentence as we believed appropriate. Only the statute could curtail our discretion. In short, the
sentence could be uniquely tailored to the particular defendant and the crime committed.
MS. PORTER: And did all the judges in the criminal area participate in this
or did some not want to?
JUDGE GREEN: Not all of them did participate in this, however, those that did
saw a dramatic change. The judge known as the most lenient judge, or the judge known as the
one that would give the harshest sentence changed radically over time, drawing more towards the
center of whichever direction had been their original tendency. These judges could incorporate
those changes in their sentences. I think that overall it benefitted all: the government, the
defendant, and the victim. Judging can be isolating and it becomes all the more necessary to
have the input of others. While, at bottom, it was our decision, and we would call it that way, the
decision was formulated with the thoughts and interaction from other experts. A number of us
carried that project for years and years.
MS. PORTER: Before I go on to ask you some more detailed questions about
the organization of the court and how it actually ran, we have touched on training for the judges
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and you have alluded to some more detailed training that you received at some point. What was
that and when was it?
JUDGE GREEN: Are you talking perhaps about the judges’ school in Nevada?
MS. PORTER: I think so, yes.
JUDGE GREEN: All right. We didn’t have any school for the local Superior
Court judges when they came on the bench, but there was, and is, a national college for state
judges in Reno, Nevada, which you could attend, and actually were expected to attend, at some
time after you started your judgeship. In my case, I had put it off for some years because of my
three young children, but in 1972, with several of my colleagues in Superior Court, I traveled to
Reno for the month required for attendance at the judges’ school.
MS. PORTER: By that time you were almost experienced enough to be the
faculty.
JUDGE GREEN: Not really. I’d only had about four years on the bench. And
actually I think it is good to go when you have had some years of experience – not too many – so
then you really understand what they are talking about, can relate your experience to them and
they to you, which is part of the curriculum, and see how you can improve that which you had
been doing for many years, absorbing the ideas of others. I took to this course my children and
the nanny, so, although I had to work, we could still be together many hours daily; and my
husband, who was in the private practice of law and couldn’t abandon it for a month, joined us
the last week and was allowed to attend the sessions as a spectator, and he found that absorbing.
Afterwards we went on a two-week vacation in Nevada. It’s tremendous to learn from others’
experience. There were about 120-130 in our class; I was one of two females. We were all
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together during the day, and in the evening, we were in groups of only 10 or 12, each of us
coming from a different state, a different experience, so that we could bring something to the
discussion. The school began at 8:00 a.m. and ran until 1:00 p.m., six days a week. If people
thought we were playing out there in Nevada, they are wrong, wrong, wrong. We had an
afternoon during which time we were expected to digest and analyze 600 pages of required
reading daily; we would then parse those matters the next day in the sessions. That evening we
would return at 6:00 p.m. and stay until 9:00 p.m., gathered together in that smaller group; we
would not only discuss the lesson structure of that day and the anticipated ones of the subsequent
day, we would analyze the latest cases from the Supreme Court and other courts, and we would
talk about what each of us did in our court to implement procedures. It was enlightening to hear
what was done elsewhere. This sharing was enormously helpful, stimulating ideas for the
Superior Court. We learned how to deal with rebellious litigants, or witnesses, determined to
destroy the efficacy of the system in a democratic institution. This was on the agenda because of
a fairly recent experience that had happened at the Democratic convention in Chicago and how
that judge, unable to cope with intended destruction, behaved poorly and became the scorn of the
nation, the embarrassment of the judiciary. And while nothing can really prepare you for the
actual happening of a situation, education about such matters can help if you encounter the
unexpected.
MS. PORTER: What sort of strategy was there for dealing with a litigant who
refused to cooperate?
JUDGE GREEN: Above all, to stay calm.
MS. PORTER: Not duct tape?
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JUDGE GREEN: To stay calm, to not lose yourself in the passions of others,
who are absolutely beyond control, to have courage, to decide when it is wise to call a recess and
wise to continue on, decide whether it is wise to react as expected when you know that will
create an unnecessary issue. To illustrate: When I saw a person sitting with a hat on in the
courtroom, who was clearly determined to remain so attired, clearly anxious for confrontation
with the system, my action was simple. I told the Marshal to not say, “Everyone rise,” and I
walked into my courtroom and said, “Everyone remain seated.” No issue created, man walks in
and out of courtroom. There are many, many ways you do it. Most of it comes from experience,
some is reaction. But it is helpful to know that others have been in similar situations and have
been able to ride it through and, hopefully, to do it well. The important thing is that we in a court
system have to continue due process no matter how we personally feel about a situation and no
matter how some may be determined to confront us. Our democratic institution, with its
constitutional protections, has to surmount obstruction in a dignified, firm and understanding
manner.
MS. PORTER: The program sounds as though it’s a blend of practical plus
academic. Is that a fair description of it?
JUDGE GREEN: That is a fair description. Also collegiality. Most judges
came with spouses and each had an apartment in a particular building. I took a cottage because I
arrived with the three children and the nanny, awaiting my husband. We stayed together in that
cottage. I hired the lifeguard there to teach the children how to swim, while I studied my 600
pages; I could sit out by the pool and watch them and the lifeguard, and study my reading. We
could do fun activities with each other, including picnics and horseback riding; this was a really
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important time and helpful. I went out at the time that my Chief Judge did, as well as Joe Ryan,
one of the domestic judges; both had been on the bench longer than I. Judge Hamilton also was
in our group, so it was a good one. We were, as they would say in the vernacular, tight with each
other, and had a great deal of fun as well as worked very hard. We brought these experiences
back to Superior Court.
MS. PORTER: How was the court structure after it changed in Superior
Court and you had large numbers of judges? How, for example, when a litigant came in, filed a
complaint, now how was the judge’s calendar organized?
JUDGE GREEN: The structure changed with so many judges and the so many
added disciplines. The Chief Judge continued the assignment of the judges, initially for a month;
later the assignments were for longer periods of time, usually for one year, and then we rotated to
other assignments. The most serious criminal cases, involving murders, conspiracies, armed
kidnaping, multiple defendants, most complex issues and longest trials would be assigned to one
of the judges in Felony I. Eventually the judges would be moved to different assignments,
because it becomes too much of one thing after a period of time.
MS. PORTER: So you have a number of judges assigned to criminal?
JUDGE GREEN: Right. And there are different areas in the criminal division.
Felony I (the most serious), Felony II, the armed robberies, the burglaries, certainly serious
matters but much more volume. Four hundred cases at a time on your docket, that you were to
monitor and move. All demanding jury trials at the outset, many of them, of course, resulting in
pleas, some of them resulting in bench trials rather than jury trials.
MS. PORTER: Did you have the Speedy Trial Act to deal with at that time?
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JUDGE GREEN: No, the speedy trial particulars required by law at that time
found it not unconstitutional if it took one year (or even more) to get a trial with a detained
criminal defendant. After I left the court in 1979, that changed. You must accommodate. The
federal court was different, with much stricter speedy trial matters.
MS. PORTER: So when a case came in, how was it given to a judge? Was
there some sort of roster when the case comes in, and they see you’ve only got 399 cases, so they
give you the next one?
JUDGE GREEN: Essentially, yes. The additions to a calendar were made as
equally as possible. Yet, each judge works at a different tempo and some cases take longer to
resolve than others. Some judges have more pleas. Whether they are more lenient in sentencing
or not, it just happens that way. You are constantly working, constantly moving your calendar.
There came a time that we went off what we call the central assignment system, which is,
whenever the next judge is available, the trial is assigned to that judge, whatever kind of case it
is. And, as earlier related, there would be a certain number of judges assigned to civil, a certain
number to domestic relations, and juvenile matters. So that if I were in criminal, I wouldn’t be
doing any civil cases unless I elected to do additional matters.
MS. PORTER: And once you were assigned a criminal case, for example, did
you keep that case the whole time?
JUDGE GREEN: Yes. You kept it the entire time that you were in that
assignment category, perhaps for a year, so you probably would complete the case there. If you
had not tried the case by the time that you were moved to another assignment, then it was left to
the next judge to try the case. If you had remaining only the sentence of the case which you had
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tried and the individual had been convicted, then you would carry the sentence with you to the
new assignment.
MS. PORTER: So when you were in the civil area, did the system operate the
same way?
JUDGE GREEN: Yes. The major civil cases, the ones that were more complex,
the ones that would take longer to complete, the ones that had more parties, would be in Civil I,
and a few judges would be assigned to that particular area. Civil II would be a hybrid of
everything else, including all the motions, and the case would go to the next judge available to
take those cases. It was a mix and the dynamics of that kept changing. As new things were tried,
some things were scuttled later on as not having worked successfully under a one judge one case
situation.
MS. PORTER: So was there a time like, for example, when you could go to
court down there and have a different judge hearing different pieces of your litigation?
JUDGE GREEN: Usually. A very untidy way to handle litigation. Of all cases
that should have the same judge, the domestic/juvenile area needed this most, yet that area was
the last to have particular judges assigned to see the case all the way through. When I was in
Superior Court, it was not unusual to have seven different judges hearing the same domestic
relations case at different stages, ruling on different motions and, particularly with the juvenile
cases that come within the family area, you would have different judges seeing the children at
different times, and, if the youngsters had been sentenced, reviewing their cases that had been
before a different judge. I found that appalling and, therefore, even when I went on any other
assignment, criminal or civil, I carried roughly 400 children with me from the time that I had
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initial interaction with those cases. Because children’s cases are confidential and there must be a
closed courtroom, I would do these at the end of the day and review each every three months,
since I saw that child at least four times a year. I would have to keep detailed notes because it is
true that after a while, things begin to blur, and you can’t quite remember what was said three
months earlier, particularly when you have a heavy volume of adult criminal cases ongoing at the
time. But, I have never regretted doing that. It took lots of extra work for my staff and for me to
put this together, but was absolutely worth it to give the youngsters continuity and the sense that
they were cared for as unique persons, no matter the offense. Many of the children remember
me, have found me in federal court, and visited through the years. They often talk about “my
promotion” there to the federal judgeship and share photographs of their families. One carried
my newspaper picture in his pocket the day he came to visit me and to watch as another judge
sentenced his father in some criminal matter.
MS. PORTER: Joyce, you mentioned that when you sat on the bench you had
to grab your robe and walk to the building. When you are doing that and you are separated by
quite some distance from your chambers, how do you deal with the little research questions that
come up quickly, or did you have your clerks with you when you went on the bench? How did
that work?
JUDGE GREEN: No, you didn’t have your clerk with you. It didn’t work well.
I thought that we could not do nearly as well as we could had we been in an assigned courtroom,
wherever located, if we had the ability to have some research tools with us – the law clerk, the
books – the ability to take the time to digest matters. It didn’t work that way. Maybe, in fairness,
some adjustments had to be made due to the enormity of the change in our jurisdiction and the
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space constriction, but it would get confusing. I would walk, as I indicated earlier, from my
chambers to an assignment several blocks away. Sometimes, not infrequently, I would walk past
the very defendant I had just sentenced, often riding in the same elevator with them and then
walking out on the street with them as they were attended by one Marshal per defendant. It
enhanced the interesting moments in life. I would arrive for my assignment at a building
designated as a civil building, or a domestic building, or a criminal building, and would wait in a
paint peeling, barren room for someone to send me a case. And a huge file, no exaggeration,
often a foot or two high, or several files related to the same case, would be walked in by the
deputy clerk who would happen to be sitting with me that particular day in that courtroom. The
litigants and lawyers would be waiting for me and the jurors. I would be expected to stroll out
and just start trying this case, never seen before. So, not knowing what it was about, my first
question always was, is this tort, is this contract, what is it? Is it jury, is it bench, who are the
lawyers? Once getting that answer (if available), I would take about 20 minutes to quickly flip
through the file just to see the issues I was trying. Remember, we were dealing with volume and
as soon as I finished this case, another awaited. So I would walk into the courtroom and say to
my lawyers, before we actually did empanel a jury, just give me a brief synopsis of what this is
about so I can intelligently preside over this particular case. That’s how we tried them, or settled
them. Talk about doing it on spur of the moment, that’s the way it was, day in and day out, a bit
nerve-racking. If you really needed assistance in research (I tried not to ask for it, most of it just
had to come from my knowledge and, hopefully, I was correct), I’d take a brief recess, go to the
waiting room, and, if there was a working telephone (not usually), call the law clerk and say two
minutes, really in two minutes, I need this information. Let me add that we did not have
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computers in those days, nor did we have LexisNexis. In another two minutes I would get a call
back, I’d go back on the bench and do whatever I could with the response I got, sometimes
accepting it and sometimes rejecting it. It was a very clumsy way to do justice. It slows the
process, it is certainly not the best application of mind and ability, but it surely did keep me
challenged, and some of the issues were absolutely engrossing. The miracle is that we were able
to do as well as we did under such trying circumstances and in that atmosphere, which just shows
that when you are called upon to do something and you have X number of resources you learn to
live within that number. Surprisingly, justice did get served most of the time. The judges and
staff worked ever so hard to make this happen.
MS. PORTER: You talked about telephoning your law clerk. How did you
get a law clerk? Here you are, 1968, catapulted onto the bench. How did you go about finding a
law clerk?
JUDGE GREEN: For my first law clerk, Stephany Joy, I called my law school,
GW, and said I had just come on the bench and needed a law clerk (a judge had but one law clerk
in Superior Court) and this person would probably stay on staff for perhaps a year and a half to
two years, but that the applicant and I would discuss that. I was told that Stephany was a very
experienced candidate, highly recommended by faculty; I knew them well and respected their
views. Consequently, I only interviewed Stephany and no others. Today, she is a state judge in
California. She was excellent and happened to be also taking Virginia bar review courses with
my husband at that time, so that made it more of a family situation; we became good friends and
have remained such since. After that I learned there were other ways most law clerk applicants
arrive. There are many candidates for the same position. But here again, there was no one to tell
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me this. I had to learn and after a while I would ask the other judges, “What do you do, how do
you do it?” In those days in general sessions in Superior Court, it was customary to interview
three, four, five months before the clerk came on board. In federal court today, the interviews
take place 18 months prior to commencement of the clerkship. It was a different time with a
different expectation for the law clerks. In the early years, my law clerk also served as my
courtroom deputy clerk, and, therefore, was with me 100 percent of the time when I was on the
bench. Then both of us had to do research after I left the bench for the day.
MS. PORTER: In those early days were clerkships as highly sought after as
they are now? Was it as strongly competitive?
JUDGE GREEN: It was. It was considered a real stepping stone to a new
chapter in law after the clerk completed his or her term. It was very competitive, a premier kind
of position, and as soon as it became known that you were a judge on the court (it takes a while
for this word to filter through), the applications arrived from persons all over the country.
MS. PORTER: Who are some of your law clerks?
JUDGE GREEN: My second clerk was Pat Gurne, subsequently a partner in the
firm of Jackson & Campbell, now a partner in Coates, Davenport and Gurne, who remains
among my closest friends; our friendship has continued from that early time (1967-71) to today.
Indeed Pat adopted our family, visiting our home almost every night bearing her McDonalds’
hamburger. She was followed by Sue Low, now a wife, mother of two, and practicing law in
Iowa. The others included Ann Keary, now a Superior Court judge, Anne McKenzie, a
Minnesota judge, Helen Bollwerk, Office of the Pardon Attorney, Nancy Lawson Schmidt, now a
hearing examiner in California, Don Hamer, judge and new Episcopal priest. They were, each
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and all, special and wonderful. The clerks had graduated from law schools across the nation,
some with years experience in the real world, others not.
MS. PORTER: Did they have some sort of program to introduce the clerks to
the court?
JUDGE GREEN: Not really, it was very individual. You decide where you are
going to find your applicant, or the applicant finds you, and you interviewed whenever it was
convenient for you and your schedule, it was a much less regimented way than we do today.
MS. PORTER: When you hired a clerk, what were you looking for?
JUDGE GREEN: I was looking for someone who, first of all, could, in effect,
“live” with me for the period of time that clerk was there, because we were going to be doing
most things together. Someone who was skilled at doing research. Someone who was skilled at
people relations, because this individual, initially, also acted as my deputy clerk, was constantly
in the courtroom and had to be able to get along with the myriad of people that come through the
courtroom (the litigants, the jurors, the witnesses, the other court personnel and the other judges).
In those days, there was relatively little writing done by most judges and, therefore, relatively few
memos or research had to be done by the clerk. But, that increased with my desire to write some
opinions. I would be on the bench 99 percent of the time in Superior Court, and the time to write
the opinions could only be in the wee hours of the morning or after I finished bench time.
MS. PORTER: Does this mean that you were giving your decisions on the
bench orally?
JUDGE GREEN: Absolutely. The volume was torrential and if I didn’t give my
decisions in the main from the bench, with multiple findings of facts and conclusions of law, I
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simply could not return to the matter for a long time. So, if I took something under advisement,
it could be months before I could produce the written opinion. It became almost impossible, so
most of my opinions were from the bench and anyone interested would have to buy a transcript
or be seated in the courtroom at the time I rendered this judgment. Some judges like to write
more than others, I among them. I did do more writing and that, of course, created more work for
my law clerk, who then did more research and, on occasion, some initial drafts.
MS. PORTER: Did what you were looking for in your clerks change?
(TAPE 6 B)
MS. PORTER: This is a continuation of the interview being conducted on
behalf of the Oral History Project of the District of Columbia Circuit, on December 2, 1999.
Before we were cut off by the other side of the tape, Joyce, I was asking you a question about
whether your criteria for selecting clerks changed over time.
JUDGE GREEN: Essentially the same qualities were needed throughout the
entire time that I have been a judge. But, as the years went by, first in Superior Court and then
always in the federal court, I put great emphasis on the ability of the clerk to do writing. Drafting
quick orders for me, preparing more lengthy memoranda, if need be, concerning the arguments I
was about to hear. Let it be said that I read every piece of paper in a case and, therefore, was well
aware of the written legal arguments, as was my clerk. The clerk and I then discussed the matter
and decided whether I needed a memorandum when about to hear the oral argument, or whether I
needed a rough opinion for something that most likely could be resolved in its entirety as soon as
I held the hearing. But the law clerk’s ability to write quickly and gracefully (if only to highlight
certain problems or to advise me of the research) is really important now, as is a terrific sense of
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humor. In small chambers you not only need to get along, but to have some lightness in a day of
heavy serious concerns.
MS. PORTER: Going back to the days when you were giving your opinions
orally, or the judgments, how did you go about preparing for that? Your trial finished, and you
sat there and said well I’ve decided this is the way it’s going to be, or did you take a recess and
make a few points on your legal pad? How did you do it?
JUDGE GREEN: It’s amazing how you learn to do something you have not
done before, and learn very quickly how to do it. I’ve always taken copious notes as a case is
ongoing, simply because it’s my style (somehow I convince myself that facts/conclusions are
more firmly in mind if I can see it in my scribbles and my writings, often hard even for me to
decipher). Nonetheless, I would take notes and as the lawyers were making their arguments, I
would highlight those points necessary to make oral findings of fact in the case. And so, no, I
usually did not leave the bench. I just sat there and started rolling off findings of fact and
conclusions of law. On rare occasions I might take five or ten minutes in an anteroom just trying
to put things in a more logical, coherent order, or deciphering an illegible note. But, most of the
time I did this without the benefit of research (except that research opposing lawyers provided
prehearing and those that my clerk unearthed for our discussion). Then I’d state the findings,
legal conclusions and the decision. If I did not render my decision then, it would become
virtually impossible to go back and recap this; too many new judges fell into that trap. Although
warned, they didn’t realize initially that the volume created impossibilities. So they would wait
to write up literally scores of cases. I had tried to do that, but recognized in the very first week
that I could not write opinions, except rarely. Today is a different matter. In federal court, busy
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as we are, there is not the staggering volume we had in Superior Court. The Superior Court
judges performed remarkably well in light of that continuous volume. No matter how bright, no
matter how diligent, it is inescapable that exhaustive hours will be spent to accomplish the work,
leaving scant time for anything else.
MS. PORTER: Let’s talk now about your cases, some of the ones that you
remember from your time on the court.
JUDGE GREEN: If we are going to talk about episodes in the law, I think I
should probably complete what I have started to say about the Vietnam War demonstrations.
Somewhere around the years 1970-71, students revolted around the country and descended on
Washington, to give expression to their views concerning acceleration in the Vietnam War. They
blocked all of the bridges in Washington so people could neither come in nor leave. We judges
had fortuitously received news of this a day or two earlier when we secured a copy of their war
plans. We were asked to come in on a Sunday so we could all be lodged in a hotel and ready to
go on duty. Military personnel stood outside of the hotel, bayonets at the ready, which, perhaps,
called a bit of attention to the fact that somebody of importance was in the hotel, but the result
was that we were able to walk to our assignments and perform them. The entire court went on
24-hour duty, just as was done during the Martin Luther King assassination situation in 1968, but
this time, rather than being asked to take over the entire court and not the midnight duty, I was
assigned to the 2:00 a.m. to 8:00 a.m. duty. Thousands of people, including these rebellious
students, were arrested, as were innocent bystanders. They were just swept by the police into
RFK Stadium, kept out in the open, and detained there to await their hearings in court. And
when a court system is unexpectedly obligated with thousands of cases at one time and has to rise
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to the occasion, it is an extraordinary matter. The judges came in shifts. I can only speak to my
moment of time on duty, as four of us gathered together. We believed the arrests were not being
performed or processed appropriately, in violation of the detainees’ rights. It was obvious that
the police officers were unable to make identification of the individuals they had arrested to the
charge that they were being charged with. Law enforcement hadn’t learned in those days, but did
as a result of this, to take Polaroid pictures of those arrested and write a few remarks to remind
themselves why they were doing what they were doing. But, in defense of the police, they were
overwhelmed by the numbers of people that were blocking the streets of Washington, not
allowing others to go to their responsible duties; yet, although noisy, they were essentially nonviolent demonstrations, unlike the Martin Luther King assassination episode. So we had these
people milling around the courthouse, lying on floors, eating snacks, unrelated adults who had
been recruited by the parents of our student demonstrators to come and rescue their children and
act as third party custodians, lawyers who obviously had never been in a court before, other
lawyers who were recruited by the bar associations to represent these youngsters. In the midst of
all of this, we four judges who had met together decided that if the processing of these papers
were not completed within a couple of hours (and we had given fair notice to the Corporation
Counsel), and if the police were unable to make positive identification to match the individual to
the charge, we would immediately dismiss those cases. We circulated that decision to the other
judges who were sitting on similar cases or were coming in to take their tours of duty, saying you
do what you want, but this is what we are doing.
MS. PORTER: Joyce, did the other judges on the early shift follow your lead
on this issue?
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JUDGE GREEN: On the early and the later shifts, most did so. And, most of
the cases were dismissed. For those few thousand not dismissed, for whatever reason, they were
processed and assigned trial dates that would not interfere with the examinations most of these
students were to be taking a few months later. Eventually, a large class action was filed
constituting those who had been detained in RFK Stadium interminably. That was tried before a
federal judge, William Bryant, who is one of my colleagues today. He had the case for a number
of years and some did, eventually, recover modest damages for that extraordinary period in the
history of Washington, D.C.
MS. PORTER: Now, hearing judges criticized for their rulings, was it at all
controversial when you released all of these students, who after all had paralyzed the city?
JUDGE GREEN: Other than the fact that these student demonstrations had
hijacked the city for days (peaceful, although vociferous, demonstrations), I don’t remember
much in the newspaper concerning the court’s activity with these demonstrators, other than they
appeared in court, something to that effect; nothing further about what the judges did. To the
best of my memory, we were neither criticized nor championed. But we felt good about it,
recognizing that while there were some problems, we provided due process, and despite the
enormity of the volume, not the difficulty, squarely met the challenge doing what we believed
was right.
MS. PORTER: Now that we’ve dispensed with the Vietnam demonstrations,
what other cases did you have that stick out in your mind as memorable?
JUDGE GREEN: As you can appreciate, in 11 years on the Superior Court
bench, serving in every facility of the court, I undoubtedly was involved with thousands of cases.
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I’ve never had the time to count them, and probably couldn’t find documentation today for most,
but yes, of course, there are a number that do stand out. I’m just going to recite a few, otherwise
we would be here for the next year, and I know none of us want that to happen. I can’t give you
exact dates when these cases occurred, but most, if not all of these cases, are in the 1970s, and
they make particular points worthy to mention at this time. I’ll start with the Merriweather case,
brought by Monroe Friedman, a lawyer and activist. I did constitute this a class action – the first
ever in the family division. It involved foster children, 28 in number, who were supposed to stay
in this foster home for no more than two or three weeks, awaiting placement with families who
would adopt them (those families had to be located and scrutinized to be appropriate for the
purpose). As it turned out, most of these children stayed at the Merriweather home for two and
three years, and the dismal neglect and appalling situation in that home were matters of enormous
concern. We had several weeks of testimony. The children were allowed to roam at will, there
were no real caretakers, usually the cook was called upon to watch the children. The children
weren’t known by anything but come here you, as if they were animals and did not have names.
It was a most impersonal attitude, but more importantly, perhaps, there were no safety
protections. No fire protection, no other safety protection, and no one to see to the activation and
implementation of even the most basic safety features, such as removing shards of glass from
bedroom windows or tending to festering cuts. According to the regulations, the children were
supposed to be given three nutritious meals per day, with specific types of food spelled out. They
were supposed to receive cookies and milk at night. These were small children, these were
children needing substantial amounts of food and types of food (vegetables, fruit, milk), so that
their bones could grow strong, so that they received sufficient calcium and potassium. The
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authorities that ran this home did not provide these essentials, although they received payment
for providing these mandatory matters. The children never had the balanced nutrition, the snacks
or the nighttime milk. Charitable persons and companies would donate toys for the use of the
children, and when examined we found there were closets filled with hundreds, hundreds of toys,
still in cellophane wrappings, that had never been taken out for the use of the children, just
stored. The 28 children had four toys to play with, all broken. The clothing was in disarray,
mismatched, buttons missing, children 12 years of age (most of them were younger) were
wearing the clothing of a five-year-old. Sexual proclivities were rampant. The District of
Columbia and its welfare agency were clearly not providing supervision over this home. The
agency had directed that certain things be done, but there was no follow through to see that those
things were actually done. The children were endangered as a result of this. I made the decision
that the court would close this home unless, within 30 days, Merriweather’s operators put into
implementation all protections that the child welfare and District of Columbia regulations
required for safety, for sanitary reasons, for psychological reasons, to be strictly monitored by
D.C. thereafter. Merriweather decided not to put them in effect. This was the first foster home
closed in America, not to be reopened unless there was proof of appropriate protections in full
use, to be supervised and implemented according to the regimen that I had set out. That was one
of my sadder cases. Another case, the “lemon car” case, came when I was on civil assignment.
Some of the facts are a little hazy, but essentially this was a car advertised as new, which had
been purchased from a certain dealer and had been owned by the plaintiffs for about three years,
during which time they had driven it only 8,000 miles, primarily because it could not
hold an air conditioner. It had been bought with the assurance that it would have air
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conditioning. The air conditioner on one occasion literally fell out of the car, stopping movement
of that vehicle for a few months until repairs could be made. There was a reason for only 8,000
miles on this car. No matter what you did with this car, it not only could not generate air
conditioning, it couldn’t generate a lot of other things. It had one mishap after another. At the end
of the hearing, I decreed that this car was so defective that the plaintiffs were entitled to a new
car, with no mileage on it, save the usual ten or so miles that one begins with and that it have
workable air conditioning. I am told this was the first such decision in the nation and there was
substantial press given to the case. It became even more interesting because this was the time the
Redskins were playing their first Super Bowl against Miami and the game was in Los Angeles.
My husband and I were going there after I gave my decision in this case. I took a recess from my
other cases, so I could leave with a good conscience. When we returned from the game, who was
in the airport? The counsel for the plaintiffs in the lemon case, the counsel for the defendant, the
plaintiffs themselves, and my husband and I. The only one not there was the dealer company.
We elected not to discuss the case. The world is small and moves in surprising ways.
Another was a tax case. I am certainly no expert in the tax field and, in fact, never had a tax
case nor a tax course before this case came into being. This case had to be treated with urgency:
Clarazel Green v. District of Columbia, was brought by the immediate former chair of the D.C.
City Council, Gilbert Hahn, who by virtue of his office, had been restricted from bringing any
cases against the city for X period of time. The day after that period expired, he brought this
action, leaving but five days in which to complete the case. Here, too, I maintained this as a class
action, the first such in the tax division. I found that the district government was guilty of
misinforming its citizens about property tax assessment procedures, piling misleading
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“clarification” on top of misinformation, and that these actions of the city in its implementation
of the collection of taxes on all single family residences were in violation of the Fifth
Amendment guarantees of equal protection in the law and citizens protections specified in the
D.C. Administrative Procedures Act. I declared the city’s real estate tax assessments illegal and
then took two weekends to write the opinion. It is the one and only time that my order was
issued prior to issuance of the opinion. The hearing (trial) ran 15 to 18 hours a day, in the
sweltering summer, without any air conditioning in the courthouse, with windows open, and
surrounded by truckloads of files brought in by the District of Columbia that rung the courtroom.
It was a serious case, with constitutional implications. The taxpayers proved discrimination in
the assessment of taxes among different areas of single family homes, even though, of course, all
like properties were supposed to be treated similarly. Although there was a 1926 law which
demanded an assessment of 100 percent of market value as to apartments and commercial
properties, which instead were assessed at 65 percent, single family homes were assessed at 55
percent; yet 78,000 single family homes were assessed at the 65 percent level and about 19,000
homes were assessed at the lower level. I required a rollback and that the city not take any action
to collect real property taxes until all single family residences were at the required 55 percent of
estimated market value. You could literally have a home on one side of the street assessed at 60
or 65 percent (even this varied) and a home on the other side of the street assessed at 55 percent,
with no rational reason whatsoever for the disparity. The rollback I understood would cost the
city about $3.8 million and reduce taxes on bills that were scheduled to be paid within the next
several days, hence the urgency in pronouncing the decision. I also found several constitutional
violations. How pleased I was when a short time after my decision appeared (it should be noted
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that the decisions of Superior Court were not reported unless the Washington Law Reporter was
inclined to do so), a circuit judge, Albert Bryan, Sr., then of the Fourth Circuit, and formerly a
district court judge for the Eastern District of Virginia, asked for a copy of my decision saying
that it would contribute to his writing of a tax decision. And then, in handwriting, he wrote me a
second time – a letter that I have preserved – and advised that my decision had made a great
contribution to tax law and that he did indeed base his opinion on the very matters that I had
discussed. You can imagine the joy that praise brought to this Superior Court judge from this
esteemed federal judge. I walked on clouds that day. Another memorable case is the Gail Cobb
case. Gail Cobb was a young, 24-year-old rookie policewoman and the first policewoman on
active duty killed in the line of duty in America. She was approached on the street by a lawyer
who had witnessed something unusual. He had seen a man running frantically into the
underground of a parking garage at 20 and L Streets, NW, in Washington, D.C., right next to the th
Columbia Bank Building, and he sensed something was wrong. Officer Cobb was then writing
traffic tickets, but nodded her head in understanding and ran down into that parking lot. As the
story was later related by parking lot cashiers who were underground in a glass encased area, the
man had run into the bathroom, changed his clothes, and came out wearing strikingly different
attire. The policewoman arrived at that time, made him straddle the wall, put his hands up on the
wall, spread his legs wide while she proceeded to hold her radio in one hand attempting to
summon help, and frisking him with the other hand. The man turned around, pulled a gun from
his waistband and, at face-to-face range, shot her in the head. She died immediately. He then
ran out of the parking lot, was promptly accosted by police. Sirens wailed all over the city; there
had been an attempted bank robbery. The killer and the would be robbers belonged to an
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organization that called itself The New Nation. The organization, comprised of at least the eight
persons arrested, was to obtain money from armed robberies for the purpose of overthrowing the
U.S. government. It was to have an assassination unit, a drug sale unit, an intelligence unit, and a
unit that would kill all the white people in the area. This was the first effort of the group to put
into effect its criminal conspiracy. As the proceedings commenced, it was obvious that we had
to keep all eight individuals in different facilities, we had to be particularly vigilant because Gail
Cobb was the daughter of a corrections officer at Lorton. He and his wife, the parents of Gail
Cobb, and her four-year-old son, were in court for every single action that was taken: the most
customary motion, the most serious motion, and, of course, the trial. They never missed a
moment. It was a highly volatile situation. Law enforcement did not know if others were
members of this conspiracy who could be silently ready to commit other crimes, but suspected
there were many; the defendants had talked among themselves about hundreds and thousands of
other people, mostly professionals, who were silent members of this group. At the time this case
was considered the second most dangerous ever in the history of this city, the first being the
Hanafi murders. One of the eight defendants in the Cobb case pled early on, and fully cooperated
with the police. Day by day, during trial, one or two of the defendants pled guilty, and were
eventually sentenced; two went through trial, were found guilty by the jury and were sentenced in
September 1975. The court of appeals affirmed. It should be noted that the mastermind, a
college graduate and the second most dangerous perpetrator, John Dortch, after release from
prison, went to law school. For years he has sought admission to the bar of the District of
Columbia, contending that he was only a minor participant, that he had turned himself in
immediately, and that he pled guilty immediately. In fact, his role was major, and he didn’t plead
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guilty until several days into trial, which occurred many months after the actual commission of
the crime. To the best of my knowledge he has not yet been admitted to the bar. I shall
remember this sad and intriguing matter. Another case, in the domestic field, involved a
divorced wife seeking alimony as well as other monetary assets. She was an older woman, a
Ph.D., but because her husband had been a foreign service officer, she had not been permitted, as
the spouse, to work in any of the countries to which he was assigned. That was the law at that
time; those were the regulations under which she had to abide. Her husband at one time was
stationed in Russia, she accompanied him, and indeed, the wife of the Ambassador to Russia
testified about the responsibilities of wives of foreign service officers and how this plaintiff had
contributed mightily to her husband’s success in advancing in the foreign service. She therefore
aided the augmentation of income that he earned. Other than being a typical alimony case with
an international twist, the most compelling matter was that this woman, by reason of her inability
to pursue a career while her husband performed his work, had been unable to get enough Social
Security credits, which would have provided a small lifetime “annuity.” I directed the real
property be equally divided, not to be sold for three years, during which time the plaintiff’s wife
would continue to live in the property, maintain it, pay the full mortgage, and could rent a portion
of her share, becoming landlady and thereby gain the needed social security credits. The court of
appeals affirmed.
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ORAL HISTORY OF
HONORABLE JOYCE HENS GREEN
Fifth Interview – March 3, 2001
(TAPE 7 A)
MS. PORTER: The following interview is being conducted on behalf of the
Oral History Project of the District of Columbia Circuit. The interviewee is Judge Joyce Hens
Green, the interviewer is Jennifer Porter. The interview is taking place in the judge’s chambers
on March 3, 2001.
In our last interview, over a year ago, Joyce, we were talking about some of your
cases before Superior Court and you mentioned that you had other cases that live in your
memory. What were the things that you remember most strongly?
JUDGE GREEN: For the first time in the District of Columbia, a case involving
adoption procedures produced a full evidentiary record. The action had originally come before
another judge. The adoptee, now in her twenties, and with a family of her own, had requested
that the record be opened so that she could locate her birth parents and siblings, if any. The
judge had denied the request; the case went to the D.C. Court of Appeals which remanded the
case to be determined by another judge. As beneficiary of that remand, and in pursuing it, I
decided to call for a full evidentiary hearing, appointing a guardian ad litem for the birth parents,
directing that the adoptee present her reasons for why she wished the record to be opened and
what she intended to do as a result of whatever relief she might receive. The major difficulty was
the D.C. statute that mandated, in effect, that the records shall be opened if it is in the best
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interest of the adoptee. This means, of course, that in the vast majority of the cases, if the
adoptee showed just some reason why it should be opened, expressing it was in his/her “best
interest,” the records would have to be opened. But, recognizing promises made at time of
adoption to other than the adoptee would be broken by the stroke of a pen, it was important to
walk this carefully and fashion procedures, including legal protections for the unknown parents
and psychiatric testimony. This was done. It was a tender case. The adoptee, one of twins, had
been adopted with her twin at the age of three. Her sister refused to participate in these
proceedings, expressing disinterest in her birth parents. The adopting parents fully supported the
plaintiff, as did her husband and other relatives. On the eve of the decision, the Corporation
Counsel located the birth mother, who came to Washington the next day, anxious to meet her
daughter. They met in my chambers, where I left them to reconcile, and as the adoptee said
wistfully to me at the end of the meeting, “You know, sometimes things don’t turn out the way
you hope they will, but I’m still glad I had a chance to meet my mother and I have also found out
where my father is, that I have a grandfather in Washington, and that I have siblings, persons I
never knew existed.” She wrote me, subsequently, to tell me she had met all of these people and
that her twin sister had joined in the process. She was forever grateful that we had undertaken
these proceedings. This established the first case in the District of Columbia for opening the
adoption records, and with safeguards to protect the birth parents as best as possible, despite the
clear statute favoring the adoptee. I have no problem with adoptee’s rights, but notification to
and consideration of birth parents’ rights should not be cavalierly dismissed. This case is still
used in federal court. More than 40 years ago the federal court had jurisdiction over adoption
cases, and so, while the adoptee would today not be a youngster (we’re talking about records that
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go back to and beyond World War II), nonetheless, sometimes these records must be opened.
My case is the precedent for whether the record should be opened and interim procedures. I am
proud of that case.
MS. PORTER: Joyce, I notice that you are actually holding in your hand a
copy of the decision. Where do we find this case?
JUDGE GREEN: With great difficulty. Cases in the District of Columbia
Superior Court were not, at that time (I do not know what happens today), reported in volumes
such as Atlantic 2d, where the cases of the D.C. Court of Appeals are reported. If they were
reported at all, they were printed in the Washington Law Reporter. This particular 1977 case,
In Re Adoption of Female Infant, was reported at 107 Washington Law Reporter 337. It was in
1979 that it issued. Also several journals commented. At the very least, it was reported in the
American Bar Association Family Law Journal, and also in Antioch Journal, Volume 1, in the
fall of 1981, in a law review article.
MS. PORTER: What was the gist of the article? Do you recall that?
JUDGE GREEN: The article talked about the novelty of the proceeding, that it
offered an alternative to recognize the sensitive concerns of all of the parties, the difficulty of
applying the District of Columbia adoption statute, and breaking down the issue of how I granted
access to petitioner into three questions. First, the court considered the interests of both sets of
parties, not those of the petitioner alone. Secondly, the court looked at the question of releasing
medical information to the petitioner, and thirdly, the court considered, in that particular case, the
petitioner’s allegations of “bewilderment concerning her identity.” Then, as the article says, I
went on to carefully weigh the interests of all the parties in deciding these issues and granting the
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request, but not allowing immediate access to the petitioner. Rather, I required there be an
investigation by the local public welfare agency, with a report of its findings to the court, and
then, if unable to locate the natural parent, I had announced I would have given the basic medical
information to the petitioner. If the birth parent was located, then there would be an inquiry
made of that person as to whether she or he wanted the identity disclosed to the adoptee. If yes,
the result was simple. If no, I had told the adoptee I would confront her with the “no” and she
could then decide anew as to whether, despite her birth parents’ decision, the adoptee was going
to, nevertheless, pursue the parents. And I thought that was the best that could be done in light of
a statute that says, in effect, open up these records if there is any reason to believe it would
benefit the petitioner.
MS. PORTER: You mentioned also, when you started talking about this case,
that it had come to you from the court of appeals. Was that the usual way that cases would have
come to you? Did the court of appeals commonly remand cases to another judge?
JUDGE GREEN: There are times that any court of appeals, the one in the local
court of appeals, the D.C. Court of Appeals, as well as the circuit court of appeals, for a specific
reason, not always made evident to the court below, will direct that the remand go to a different
judge. In the adoption case, the judge who initially considered and denied this matter was
forceful and made unrestrained remarks, extemporaneously, probably in part leading to the court
of appeals’ determination it should go to another judge. And then, by the time the remand came
along, he was no longer with the Superior Court, so it became a very simple matter.
MS. PORTER: Joyce, as a judge you have mentioned that you often became
involved in administrative activities and you were involved in the construction of a new court
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building? What’s that about?
JUDGE GREEN: The construction of the court building was absolutely
necessary because, as earlier mentioned, we were in seven different buildings, to which we
walked to our assignments. A great deal of energy, imagination, and resource was lost by this.
The court desperately needed a new building, and Congress granted a certain amount of money
with which to build that building. The building was constructed as it went, so to speak. There
was no complete architectural design before this building was begun, because each month
inflation would bring a loss to the funds provided, so it was a rush to completion. In this process,
five of us were designated by the Chief Judge to go to the West Coast and the Pacific Northwest
and bring back ideas for the design of this courthouse, already in construction, and how we could
implant innovations with the remaining monies. We judges saw courts in San Francisco, Los
Angeles, Reno, Nevada, and in Oregon, among others. We returned with a multitude of
wonderful ideas, most of which could not be accepted due to the inability to either put it into the
design as the building was rising, or beyond our funds. But some of the ideas we brought back,
for example, smaller courtrooms (rather than large for everyone), offering privacy for the
juveniles or for the domestic protective cases which had to be under seal.
MS. PORTER: Joyce, you just explained that you started building this
courthouse before the designs were final. This seems to be an unusual way of proceeding with a
construction project. Tell us a little bit about how that happens.
JUDGE GREEN: It’s not only unusual, it is exceedingly worrisome. On the
other hand, in the District of Columbia the courts are subject to the whims and caprices of the
United States Congress.
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MS. PORTER: We’re still talking here about Superior Court?
JUDGE GREEN: Yes. There was no advocate for the Superior Court in the
legislature. The funds come from the United States Congress and we received a certain amount
for doing whatever was necessary in the court system; there is no home rule. These factors
combine, reflecting how little control the court has over its destiny. And Congress said this is the
lump sum you are going to get. Don’t come back, don’t ask for more, don’t have overruns. That
was it. It was a choice of either building then or not building at all.
MS. PORTER: Were there cost overruns and did you get more money?
JUDGE GREEN: Yes, just a small amount more was allotted.
MS. PORTER: When was this just to help put us in context?
JUDGE GREEN: It took several years, but the completion of the courthouse
was in 1978, and that’s easy to remember because I spent just over a year there before I came to
the federal court; and it also combined with other interesting activities.
MS. PORTER: What were those interesting activities?
JUDGE GREEN: I was asked on very short notice, the day before the interview,
if I would allow my name to be included among four who were to be interviewed to be the Chief
Judge of the Superior Court of the District of Columbia. I had never expressed an interest in
being the Chief Judge. Frankly, I wasn’t interested, but after I talked it over with my family it
was determined that I should at least participate in the interview; that I owed this to women in the
profession and to myself, but clearly I did not expect this appointment. This was the only court
of its kind in the United States that had such vast jurisdiction over areas of diverse nature; it was
a volume court with huge undertakings, the only local trial court in D.C. with 44 judges and over
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1,000 employees. It would have been a remarkable responsibility, but I did not want the position,
particularly since I had been under consideration for the federal court a couple of years earlier,
and I knew I was again under consideration at the time that they, the selection commission, were
considering the Chief Judge decision. Bottom line: I did go to that interview, I completed
innumerable papers thereafter that I was asked to do – innovative ideas that I would implement.
While at a conference in Chicago, I was summoned to the phone by a member of the
commission, who asked if I would serve the full term of four years, which was subject to
renewal, if I received the appointment, since the members wanted to appoint me but were afraid I
might leave in the middle of my term (as had the preceding Chief Judge) if I were tapped for the
federal court. I acknowledged that I would stay for the initial two years, but couldn’t promise
beyond that, because my ideas could be implemented during that period. Then I was asked
repeatedly by Ted Newman, the Chief Judge of the D.C. Court of Appeals, and others, to do what
was necessary to assure the chief judgeship. Six of the seven commission members had
determined that I should be the Chief Judge, but they wanted a unanimous decision, if possible.
There was only one lingering consideration – they wanted me to move into the District of
Columbia. While the members didn’t believe it was required that I move into the District of
Columbia, all other public servants in the District of Columbia were required to live within the
territorial boundaries of the District of Columbia. I immediately refused to do so. The move
would have disrupted my children, their schools, their sports, and their friends in Virginia where
we had lived for years. I continued to refuse on each of the three occasions that they persisted in
this request, fully recognizing this would put the death knell on that appointment. Had it been a
decision affecting just my husband and me, we would have been delighted to come back to the
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District of Columbia. Of course, underlying all of this, I didn’t really want the position, but I felt
that I owed it to my community and to my family.
MS. PORTER: What was the procedure for selecting the Chief Judge? Do
you recall?
JUDGE GREEN: A group of citizens headed by the chairman, Charles Duncan,
who were lawyers, judges and citizens, comprised a member commission that selected judges for
the District of Columbia for appointment and also selected the Chief Judge. They would make
three recommendations for each judicial vacancy to the President of the United States, and under
certain regulations one of those recommended would be appointed. For the Chief Judge, the
commission would give the name of one individual to the President, and it became an automatic
appointment.
MS. PORTER: So you were being interviewed by the members of this
commission?
JUDGE GREEN: To the very point that on the day that the new courthouse
opened I had a visit from the chairman of that commission who looked into my new chambers to
see if it was in order, since the entire commission was going to arrive that afternoon to offer me
the Chief Judgeship.
MS. PORTER: You mentioned that you had to submit papers to the
commission talking about innovative ideas that you had. What were some of those ideas?
JUDGE GREEN: Let me say first that the other people who were being
interviewed were Judge James Belson, Judge Tim Murphy, Judge Carl Moultrie, I (who became
the Chief Judge), and me. Among the ideas that I had were to have independent calendars.
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While this could not work for all of the tasks performed in the Superior Court, it could for
felonies, for domestic relations cases, for juvenile cases, for tax cases, for probate cases, for civil
cases, both complex and less complex. I also thought it was important to have a presiding judge
and a deputy judge over each of the major disciplines of the court: civil, family, criminal,
tax/probate, to lead that division, steer its direction, expedite the processing and act “hands on,”
reporting periodically to the Chief Judge.
MS. PORTER: When you say an independent calendar, what do you mean?
JUDGE GREEN: I mean that up until then, each judge received cases from a
central clerk’s office; when you were on civil assignment you would wait for the case to arrive.
The judge who had announced he or she was free to take a case, would get that case, whatever it
was. You had no chance to explore the matter or know anything about it before you literally
went into the courtroom, convened a jury and started trying the case. It was not the most artful
way to do it.
MS. PORTER: You mean you didn’t have that case from the moment it was
filed through to its completion, you just got it in a slice, every now and again.
JUDGE GREEN: Right, and while there is no question the judges work harder
and have more work to do, and put in longer hours, you certainly know every detail about your
case. It’s yours from beginning to end. You are responsible for it – for good or for ill; you are
most familiar with it. If people ask for a continuance for the twentieth time, they are not going to
receive that continuance, because if you’re asked on a central calendar you don’t know that the
same request has been made through multiple judges twenty times. Among the ideas I had, I
thought there should be strong outreach to the community. I wanted more participatory activity,
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not only by the judges so that they felt a close association to the individual cases, but also
participatory activity by the support staff, by the Clerk’s Office, by the probation officers, to help
each other and the court administration. As example, if a translator was needed, if you had
someone who came into your building and spoke only Spanish, didn’t even know which way to
turn, didn’t know how to get to the courtroom, didn’t know how to even say I need an interpreter,
we could get someone quickly who had knowledge of that language, and use that person briefly.
Later, as the first presiding judge of the family division, I would ask for a list of court personnel
who any kind of special training (nurse’s aide, or mechanic, or secretarial), or somebody skilled
in the American sign language, to aid a deaf person, or someone who had particular skills with
blind persons and would know how to cope with the handicapped, in days prior to making
courthouses available to the disabled. I put all these ideas, and more, into a document that we
were all asked to write in court over a Memorial Day weekend. We delivered these papers to a
commission member, and I was not unhappy, in fact I was relieved, when I did not get the
judgeship. But it has ever distressed me that my ideas were put into place immediately by the
judge who received the appointment as Chief Judge. Someone told him about my ideas before he
turned in his submission and before the appointment was made. I had never shared them with
anyone other than the commission, first orally at the interview, and then in writing. Of course,
no credit was given to the originator of the ideas.
MS. PORTER: The day the new court building opened sounds like a sort of
chaotic day – what do you remember about that day now?
JUDGE GREEN: I remember particularly the huge number of judges dressed in
their robes ascending the escalator, reminding me of flapping penguins. That’s the thought that
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comes back. But in reference to my personal situation, that was the day, as I mentioned a
moment ago, that the commission’s chair made sure I was ready to receive the commission and
it’s intended offer of the position. The commission arrived saying that they weren’t quite ready to
make the offer, because they had to ask me one last time to move into the District of Columbia.
It was patently obvious that if my answer was no (as it repeatedly had been), I was not going to
get this position. Unhesitatingly I said no – this could not be brokered. For the sake of a career
and even for the sake of a community, I could not rip my children away from those things so
important to them at that stage of their lives. I have no regrets about this. Had I received this
position I would have felt honor bound to keep my word that I serve at least two years in the
position. As it turned out, President Carter appointed me to the federal judiciary in 1979. He
was not reelected and I would not have been appointed a federal judge by the far more
conservative Reagan administration when my two-year promise expired.
MS. PORTER: You mentioned that about the time of the courthouse opening
and being under consideration for the chief judgeship, you were also up for reappointment. Can
you explain what that procedure was and what is involved in being reappointed?
JUDGE GREEN: Yes, when initially appointed in March of 1968, it was for the
then existing ten-year term to which all general sessions judges, as we were called in those days,
were appointed. When the Superior Court of the District of Columbia, the successor court, was
organized, among other changes, the judges were appointed to 15-year terms. So, for the
incumbents, we would serve out a ten-year term (mine expired in March 1978), and then would
be subject to the commission, which would decide whether or not we were appropriate for
reappointment. The final appointment came from the President of the United States. There were
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various designations then: exceptionally well qualified, well qualified, qualified and unqualified.
If unqualified, the President of the United States could not reappoint that person. If qualified, the
person was in limbo and it was up to the President to decide whether or not to appoint you. If
you were very well qualified or exceptionally well qualified, the reappointment was automatic. I
was designated as exceptionally well qualified in February 1978, and reappointed in March 1978,
for a 15-year term. As it turned out, I served one of those 15 years and then was commissioned
as a federal judge.
MS. PORTER: The designation of your qualifications, was that on a
recommendation to the President, and from whom did the recommendation come?
JUDGE GREEN: It was again by the same commission that would appoint the
Chief Judge of the court or appoint other judges of the court. In the case of reappointment, the
President is bound by statute, as earlier detailed.
MS. PORTER: It has taken us some years to get to the end of your time on
Superior Court. Now that we are getting close to getting you on to the federal bench, as we
meander through this oral history, are there any other aspects of your career on Superior Court
that you would like to talk about? Now Joyce I’ve given you a very broad brush question. Just to
give you a helping hand, how about your membership in the Executive Women in Government?
JUDGE GREEN: I joined the Executive Women in Government around 1975.
It had been founded in July 1974, was composed of women executives in the three branches of
government: executive, legislative and judicial. Its mission is to promote, support and mentor
women for senior leadership positions in the federal government. Those eligible to join are
members of the senior executive service, senior level positions, GS-15 and above, presidential
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appointees, including those serving on boards and commissions.
MS. PORTER: Well, in 074 did you have enough members to meet in a
telephone booth or was it larger?
JUDGE GREEN: We had a fairly sizeable group of members. The founders
were Republican, as were most members until after the 1976 election, which brought a
Democratic administration with Democratic senior appointees. The earliest member had served
in the Nixon administration; Barbara Franklin Hackman, who became Secretary of Commerce in
a later administration. Our first chair was Major General Jean Holm, then the highest ranking
woman in the military; Ethel Bent Walsh, Chairman of EEOC; Catherine Bedell, a former
Congresswoman, was next, and, in 1977, I became EWG’s fourth chair. Later, women from the
Treasury Department, the Consumer Protection Agency, the Nuclear Regulatory Commission,
and other agencies, Congress and the judiciary became active.
MS. PORTER: What sort of activities did this organization get involved in?
JUDGE GREEN: We had monthly meetings with guest speakers discussing the
work of their agencies, or the legislature, or the judiciary, and issues of the day: ERA, civil rights
legislation, campaign finance. (Note: the discussions continue 20 years later!) The contributions
of outstanding women would be highlighted. There was an annual conference for senior level
professionals, when a publication of our work was distributed. EWG aided “sisterhood” in
making known vacancies in the professional fields, in Washington, D.C., and elsewhere,
nationally and internationally.
(TAPE 7 B)
MS. PORTER: This is a continuation of the interview being conducted on
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behalf of the Oral History Project of the District of Columbia Circuit. The interview is taking
place at Judge Green’s chambers at the district court on March 3, 2001.
JUDGE GREEN: It may be of interest to note that the founding members
included Elizabeth Hanford Dole; Carla Hills, who held responsible positions in several
administrations; and a very fine lawyer, Constance Newman, who served the public sector
(OPM) for many years in various capacities. This was an outstanding organization, a great honor
to be invited to join, and a particular honor to be the first judicial member elected chair. In
addition to the Executive Women in Government, there were a number of other honors that gave
me great heart and happiness. I look back with awe that in 1976 I was the first recipient of the
Women’s Legal Defense Fund award for “outstanding contribution to equal rights.” In 1975 I
received the Distinguished Alumnae award from George Washington University.
MS. PORTER: One, of course, that’s near and dear to my heart, is the
Women’s Bar. You became the Woman Lawyer of the Year.
JUDGE GREEN: Jenny, just as you were later, I became the Woman Lawyer of
the Year in 1979, a distinguished honor. Subsequently I have been given the privilege to
introduce awardees designated for a particular year as Woman Lawyer of the Year, among them
Justice Ruth Bader Ginsburg and Pat Gurne, my dear friend and former law clerk.
MS. PORTER: Now you were appointed to the federal bench in 1979. How
did that happen?
JUDGE GREEN: Jimmy Carter, the President of the United States, appointed
me, and I was confirmed by the U.S. Senate on May 11, 1979. The oath of office was taken on
June 27 of that year. My dearest friend and colleague, Judge June L. Green, presided over that
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investiture. How was I appointed? Jimmy Carter constituted the one and only Merit
Commission for federal judicial recommendations. It was his idea that members of the
community in which the federal judge was to serve should have some voice in the qualifications
and the appointment of those individuals. He left the selections to the U.S. District Court, as was
custom, to the prerogative of the United States Senators of that particular state. But, for the
circuit court he had a Merit Commission comprised of judges, lawyers and responsible lay
people, to make these decisions, follow through interviews, and then to send three names to the
White House from which he had pledged himself to select one. For the District of Columbia
only, he included the district court, since, obviously, D.C. had no Senator in Congress. The
President pledged each Merit Commission that his appointments would come from its
recommendations. I was asked to submit my name for consideration as a federal judge on two
occasions. The first time, my name was among three sent to the White House for appointment,
but I was not selected; the second time I was.
MS. PORTER: Who asked? We know Jimmy Carter asked, but who actually
did the legwork, who was talking to you about this?
JUDGE GREEN: For the D.C. district and circuit court, the commission
chairman Joseph Tydings, the former U.S. Senator from Maryland, and son of a former Senator
from Maryland, U.S. Senator Millard Tydings (D., MD), asked if I would submit my name for
consideration, stating I was being given serious consideration by the commission members who,
based on their own knowledge and the strong recommendations from the community, lawyers
and judges, wanted me to send in materials, a completed questionnaire, in that regard. I did so,
was then chosen from numerous others for an interview, and, following that interview, continued
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my work as a Superior Court judge. I received word from the chair on the Friday before I left to
teach a one-week advocacy training class at Harvard, for the fourth successive year. Joe Tydings
asked me to leave notification of where I would be every minute of the time that I was in
Cambridge, Massachusetts, but not to tell anyone what was happening, that I had already been
cleared by the White House and cleared by the Justice Department, and it was simply a matter of
timing the announcement. A few weeks prior I had received a phone call from Senator John
Warner, then junior U.S. Senator, Republican, from my State of Virginia, in which he asked to
see me, reminded me that he had known me when he was a young assistant United States
attorney, and that we had talked often when we both worked on cases in the library. He wanted
to endorse me, even though I was a Democrat, to be on the federal court, that he believed it was
the time for women. He had discussed me with several of the federal judges of the circuit, who
“heartily” endorsed me. He wanted to be front and center. On one of several encouraging phone
calls, he put his then wife, the actress Elizabeth Taylor, on the telephone. She was most
gracious.
MS. PORTER: So you’ve shaken hands with Elizabeth Taylor.
JUDGE GREEN: Not literally, just by telephone. In any event, after the phone
call from Senator Tydings, I went to Harvard. Indeed, just as I was to walk to the first session of
classes, I received a call asking me to contact X at the Justice Department. I was told I was about
to be nominated for the federal court and to come back to Washington as soon as possible. I
explained when I would complete my tour of duty at Harvard. Astonishingly, I was then asked,
this must be unusual (I thought so then and still do), to select which of the two federal courts I
wished to serve, the one in the District of Columbia or the one in the Eastern District of Virginia,
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where I would be the first female federal judge in the entire State of Virginia. Up until that
second I never realized I had a choice. I always assumed I was being considered for the District
of Columbia vacancy. In the next second I said the District of Columbia was where I wanted to
be a judge. I was not only hugely honored for the nomination, but also for the opportunity to
choose among two great courts.
MS. PORTER: After the President nominated you, what was the next step?
JUDGE GREEN: There is an intensive investigation by the Federal Bureau of
Investigation and other entities. On May 11, 1979, I was confirmed by the U.S. Senate. The
investiture ceremony occurred on June 27, 1979. On the day that I was to be invested, perhaps an
hour earlier, court personnel deposited 135 cases in chambers so that I would be ready to work
promptly. In those days, the cases were selected by the judges, usually forwarding their worst
“dogs” to the rookie judge. The number of cases received was to equal the average number
carried by the other 14 judges. Some of their selections were ten years old, with 20 to 30
motions pending; and one had a trial scheduled for the next day. During this same one hour
before my investiture, there was a call to chambers from a lawyer, demanding to know, from the
new clerk, what I had done with his case. He was advised I had not even been invested yet.
MS. PORTER: You should always be so lucky.
JUDGE GREEN: (laughter)
MS. PORTER: At the time you were appointed to the U.S. District Court,
how many judges were there on it? How many women?
JUDGE GREEN: It’s a court that has 15 active judges at full strength, and
several judges in senior status; we were then at full strength. I was the third woman judge in the
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history of this court, now more than 200 years in being. The second was June Green (who has
recently died), and the first was Burnita Shelton Matthews, the first woman federal district judge
in America, appointed by Harry Truman in 1950.
MS. PORTER: Who were some of your other colleagues on the district court
bench and also the court of appeals?
JUDGE GREEN: Well, I probably will leave out some names, and will be
chagrined on the district court: Gerhard Gesell, Oliver Gasch, Aubrey Robinson, Bill Bryant,
John Smith, June Green, George Hart, John Sirica, Ed Curran, Howard Corcoran, John Pratt,
Tom Flannery, Barrington Parker, Chuck Richey, Lou Oberdorfer, Harold Greene, John Garrett
Penn (appointed six weeks prior to me). Subsequently, Norma Holloway Johnson, also from the
Superior Court came (appointed 11 months after me), Tom Jackson, Tom Hogan, Stan Harris,
Mike Boudin, here about a year, then left to be a judge of the First Circuit, Royce Lamberth, Stan
Sporkin, Gladys Kessler, Rick Urbina, Emmett Sullivan, Jim Robertson, Colleen Kollar-Kotelly,
Henry Kennedy, Richard Roberts and Ellen Huvelle. I must also mention our more recent
Magistrate Judges: Deborah Robinson, Alan Kay, and John Facciola. On the circuit court at this
time were Judges Spottswood Robinson, Skelley Wright, Ed Tamm, Malcolm Wilkey, Robert
Bork, Nino Scalia, Jim Buckley, Pat Wald, who came just a few months after I did, as did Ab
Mikva, Harry Edwards and Ruth Ginsburg, then Larry Silberman, Steve Williams, Douglas
Ginsburg, Dave Sentelle, Clarence Thomas, Karen Henderson, Ray Randolph, Judy Rogers,
David Tatel, and Merrick Garland.
MS. PORTER: As the new judge on the block, with all of these new
colleagues, Joyce, how did it differ from Superior Court?
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JUDGE GREEN: The wonderful thing about the federal court is also a
wonderful thing about the Superior Court, the collegiality you have with your colleagues. There
has always been a tender spot in my heart for Superior Court, its personnel and judges (44 judges
when I left, 59 now), both during the time I served there for 11 years and, subsequently, any time
I return for lunch or a special event, I still know some people there. In the district court, during
my 22 years, we have been truly collegial, 15 active judges and, until deaths, retirements, this
past year, often eight or nine senior judges. Most of us meet at luncheon every day of the week,
calendars permitting. The lunchroom is special. The judges order their food from the courthouse
cafeteria. We pay for our food, of course, receiving a monthly bill which also pays for the
services of the lunchtime server who delivers our order as we chat to one another in a private
room. In this hour away from the rest of our duties, real R&R takes place, a light spot in the
midst of the very serious work we do daily in federal court. We cover the gamut, talk about
lawyers, talk about other judges, talk about cases, talk about the rise or demise of our beloved
Redskins, talk about golf, basketball, baseball and appropriate statistics, talk politics (something
we can’t do on the outside), tell jokes, and discuss/tease/praise one another. It remains
fascinating to consider the differences: our appointments are from different presidents, we are of
different political persuasion, different gender, different religion, different ages, different sizes,
different shapes, different races, liberal, moderate, conservative, yet we are so collegial. In the
main, we really like each other, telling, candidly, what we think, but we are ever upbeat,
consistent in our respect and affection. We are there to support when someone has a problem.
It’s like a family. I consider this court my family away from my personal family. Most judges
comment that among the highlights of their individual lives are the lunches in the dining room
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with the judges, where camaraderie reigns. An oasis in the rest of the day when furiously
engaged with the work at hand.
MS. PORTER: Is that also do you think because the topics of conversation
with the outside world, you can’t really talk about jobs, so you talk about it to each other?
JUDGE GREEN: Exactly right. We are bound by our ethics and by natural
inclination to not discuss our cases with anyone outside our judicial family in private
conversation. I had a rule when I was a Superior Court judge, and now, as a district court judge,
that I never discuss in the presence of, or with, a court of appeals judge, a pending case of mine
or a concluded case (even if affirmed). I’ve always done that.
MS. PORTER: Are the court of appeals judges using this lunchroom too?
JUDGE GREEN: I’m glad you mentioned that. Yes, the court of appeals judges
are as welcome to join, as we, and pay a monthly fee, just like a club, whether you go or not.
Some circuit judges are also regulars. Most district court judges have joined and come, but not
all of them. It’s a matter of inclination. That’s why I believe we district judges have to be
particularly vigilant not to discuss anything that might potentially come before our appellate
judges.
MS. PORTER: Have you noticed any changes in the quality of the
collegiality of the lunchroom over your 22 years?
JUDGE GREEN: No changes in the quality. While we have fewer people from
the court of appeals now in the lunchroom than when I first came on board, there are more
women and more diverse viewpoints. Very healthy. June Green and I were the only women for
a very long time.
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MS. PORTER: And Burnita Shelton Matthews?
JUDGE GREEN: When I arrived at district court, Judge Matthews was at that
time in her 90s. While she came to the courthouse, she never came to the lunchroom. So June
Green, here for 11 years before I arrived, was the only female active judge. She had told her
Chief Judge, then George Hart, that she really didn’t think she should go to the dining room
because she knew the judges didn’t want her there, and he countered, “You are right, but it is your
prerogative to go, so go,” so she did so. It was easy for me because she had paved the way.
MS. PORTER: You mentioned that on the day you were about to be sworn in
somebody dumped a hundred cases on you. How did you get to have a hundred cases? Who did
they come from, where did they come from, and what did you do with them?
JUDGE GREEN: Actually, I received 135 “gems” initially, by the then rule of
court, subsequently improved vastly. But at that time (and this still exists), whatever number of
cases were in existence (total for the court) the month before appointment (since I took office in
June, the cases that were outstanding in May) would be divided by the active 14 judges of the
court, and whatever that number turned out to be, if the average caseload was 135, then I would
get 135 cases. The 14 other judges would be asked to give up a certain number of cases, to leave
a total of 135 cases for each, and they could select the cases they wanted to get rid of in those
days. One case I received took three file cabinets, had been lingering for about eight years, was a
notorious case, a Scientology case, with much work remaining to be done. Nobody wanted that
case, and so – Later the rules changed, and, indeed, when I was calendar control judge, it was
one of the matters that I was determined to tend to during my time of appointment, to make life
easier for the newer judges that came on. Today, the new judges do not receive any case older
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than 18 months and there can be no motions pending. It is far easier for a judge to get a handle
on the matter and to start working, and a case is almost virgin when received in this manner.
MS. PORTER: What did you do with your 135 cases?
JUDGE GREEN: I held a status hearing in each of those cases during my first
two weeks, about 15 a day. I would, of course, prepare also for the next day’s group. Notices
were telephoned and sent to the lawyers involved. They were told to be prepared to advise which
of the motions pending were still viable, because over the course of years some obviously no
longer had merit or momentum. The status would promptly reflect whether a case was near
settlement or had settled, but nobody remembered to tell the court. So much time had transpired
since some of these cases had been received, and now this new judge was going to examine each.
The lawyers who had forgotten some cases still existed had to review the issues. The law clerks
and I ran through all of the cases together, so that I could go on the bench and give a focused 10
to 15 minutes to each. We would quickly examine what had to be done, how much more
discovery (if incomplete), what was really necessary to complete the matter fairly and make fast
decisions. As to those that had lingering motions I said I’d do the best I could; I would get to
them as promptly as possible. But there were cases I had to try almost immediately. The case
that was set for trial the next day I postponed for a few weeks – that one had 20 motions pending
– and told the lawyers I would scrub them, and if summary judgment was denied, we would then
have a trial for which I had already set a date in the event it were needed. That libel case did
indeed go to trial, and one of the participants in that case is still one of my good lawyers, who
constantly reminds me that this was her first trial too.
MS. PORTER: So this was 135 cases, and in two weeks you held a status.
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Does that mean that you called people in or you were doing this over the phone for the sake of
efficiency?
JUDGE GREEN: We did both. As I suggested, we called them in by phone and
set the time they had to come in, and then followed through by letter. In those days, we didn’t
even have faxes.
MS. PORTER: You were typing them, too, probably.
JUDGE GREEN: Well I wasn’t typing them, my secretary was. My law clerks
assisted me. I didn’t make the phone calls myself.
MS. PORTER: Well the organization involved in this, Joyce, does raise a
question: How did you get your office up and running? Did you just bring your office people
from Superior Court?
JUDGE GREEN: In Superior Court each judge had one law clerk and one
secretary. The term of my law clerk, Helen Bollwerk, was up at the end of the summer. She
came to the federal court to complete her term. I was entitled to have two law clerks over here in
district court. Lou Golinker served until September when he left for a pre-arranged position. My
first full-time federal clerks were Paul Bollwerk, husband of Helen, and Joan Smiley.
MS. PORTER: It sounds like you certainly hit the ground running with your
135 cases. How did the district court organize its calendar? How did that differ from your
experience in Superior Court?
JUDGE GREEN: I have already mentioned that in Superior Court our cases
were funneled through the clerk’s office to the next judge available in whatever area you had
been assigned, civil, criminal, etc. Among my more novel ideas in 1978, when under
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consideration to be Chief Judge, was to have most of our functions on an independent calendar.
It would be more efficient. It would be better for the lawyers, better for the litigants, better for
the judges, better for the community, better for the court system. In the federal court, everything
is on an independent calendar and I cannot applaud that enough. This is a wonderful way – you
are totally responsible for your cases and totally independent in your actions, and whatever you
do with them from beginning to end is your responsibility. If you perform well, you take the
credit, if you do poorly, you take the discredit. The fact is it is great to know this is your sole
responsibility; it promotes efficiency, you have commanding knowledge of your particular case,
the principals who are involved, litigants or lawyers, the issues that are crystallized (eventually).
The independent calendar is for both criminal and civil assignments. I should mention that
apparently the public often does not realize this, since I’m always asked, do you do both criminal
and civil? Yes, to all of the above.
MS. PORTER: Is there some informal way of comparing statistics on you and
your colleagues just to make sure that you all know how quickly people are processing cases and
how you stand?
JUDGE GREEN: It’s better than informal, it’s formal. First of all, in the
assignment of cases in chambers to law clerks, each judge does it his/her way; but many of us
follow the same procedure, that is, assign cases to the two clerks, trying to give them equal
weight and type of cases, so that during their clerkships (in my case, I hire for two years) they
have a variety and challenge, a good training period. And so, arbitrarily, a case that ended in an
even number would be assigned to clerk A, if an odd number, to clerk B. My clerks were never
referred to as junior or senior, even though in staggered terms, one having already served one
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year, the other just beginning, because each received cases of equal complexity from day one and
would be off and running. I heartily endorse the two-year clerkship. You might make a mistake
once in a great while (happily I didn’t), but it can happen. The blessing of the two-year period is
a well-trained lawyer, one who is not looking for the next career post from the day he or she
starts. The experienced clerk can also be a real support buddy to the incoming clerk. It works
very well, at least in this chambers. So that is the background. In the early years before we
received computers (and you have to realize that I’ve been around that long), our secretary would
have handwritten drafts from each law clerk and from me, try to discern the handwriting, and
type the draft opinion or opinion; then changes would be made, perhaps ten lines on page 8 of an
80-page document. You can readily imagine what happened as far as the typing was concerned;
there was always huge work for the administrative secretary. Then the advent of the computer.
Eventually, each of us received one. Some also learned to operate them. For years, the chambers
joke was: “The judge has said once again ‘me too,’ to the technician putting in updates or new
equipment; she still thinks someday she might be inspired to learn how to use the computer.” (I
did learn a bit along the way, but no expert am I.) The day the fax arrived I got the first one for
the judges because of the security court I then served; I’ll address that later.
MS. PORTER: You’ve talked about the procedures within your chambers for
assigning cases and the procedures for keeping the cases moving. Was this procedure within the
courthouse itself to keep the judges up to the mark, to keep their cases moving?
JUDGE GREEN: The cases came to us from the Clerk’s Office, where the
lawyers file them. The lawyer would designate on a form what kind of case it was, lets say a
patent case.
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(TAPE 8 A)
MS. PORTER: This is a continuation of the interview being conducted on
behalf of the Oral History Project of the District of Columbia Circuit on March 3, 2001.
JUDGE GREEN: Once the lawyer had completed the designation, the clerk
would go over to a pack of attached papers which would have my name on it (every judge would
have an equal number of papers in a similar pack bearing the name of that particular judge). The
next judge in order to be assigned a case of this particular type would receive that case that had
just come in. So, for years Clerk’s Office personnel manually did this random selection.
Through the years, this random selection has advanced to an electronic mode. The judges have
absolutely no contact with it and do not know a case is going to be assigned until it actually has
been assigned.
MS. PORTER: So you could have a case that might last, trial would last half
a day, or a day, and sort of equally randomly you might have a much more complex case that
lasts for years. Was there some mechanism for balancing for this?
JUDGE GREEN: No. No mechanism at all. An internal mechanism in the
judge’s chambers, perhaps, but no mechanism. Whatever statistical “credit” that you might get
for that case – if you had a case that lasted eight years and had 42 parties in it versus a case that
might walk in as a consent judgment and walk out in a few minutes, with two parties, both
counted equally as one case on the statistics. I have diminished faith in statistics because they
can be skewed in so many different ways, and are interpreted and implemented differently in
different jurisdictions. The only variation from random cases is if I received a case that the
lawyer said was a related case to one that I had, either the same parties, the same issues, that type
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of thing, then I would be also assigned the related case. Also, with pro se litigants, I would be
assigned all cases of that pro se individual until that litigant ever stopped litigating. Accordingly,
I might receive eight cases from the same pro se litigant in the same week, of course, none at
issue yet, but then I might be assigned a bonus, as indicated a moment ago, of an SEC consent,
settled in the agency, and the court is only for the formalization and approval of those papers
which takes just minutes of your time to go through.
MS. PORTER: Joyce, if you thought about it, what percentage of your cases
would derive say from agency proceedings versus litigants, private citizens?
JUDGE GREEN: I’ve never done any statistics on this and cannot give a precise
response. The Clerk’s Office would have them, also our Administrative Office, the governing
body for the entire federal judiciary, which maintains like statistics. But a large percentage of the
cases we have are in one way or the other derivative of agency action, where the government is
either the moving party or the defendant. A number of cases are concerned with government
regulations, freedom of information. Cases that concern farming, or drugs, or equal opportunity,
often come through government agencies. This U.S. District Court in the District of Columbia
receives most government cases. So I would guess my government caseload would constitute a
generous excess of 50 percent of the whole. I look at each case I am assigned. Example: Does it
concern a Medicare provision? This, frankly, is not my most exciting exercise: to discern the
intent of Congress when word one was positioned next to word two, and two sentences later one
of those words was eliminated. I had to decide whether this juxtaposition would still qualify
under Medicare as a hospital institution, entitled to receive monies/grants. Not my favorite case,
but those also have to be completed. But there are many cases where the issues, even if more
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complex, are more interesting because I am dealing with live people.
MS. PORTER: You mentioned also that you had criminal cases. In the
District of Columbia, what sort of criminal cases, and on what basis would they come to your
court as opposed to the local court.
JUDGE GREEN: If you had to do it in two or three words you could say drugs,
guns, violence, but we also have many other criminal cases in the federal court. We deal with
alleged transgressions of Congressmen. One of my cases did indeed involve a sitting
Congressman, I’ll mention it subsequently. I had an indictment involving alleged violations of
the Arms Export Act. There have been failures of banks and sometimes allegations that a
“crooked” bank committed massive worldwide fraud. There have been SEC cases asserting fraud
in companies’ securities applications and in their prospectuses sent the unwary shareholder. If
murder is charged in the federal indictment, normally a state charge/Superior Court case, it is
because it is in addition to other charges in the case that are federal. For example, the death
penalty case that I had in 2000, the first death penalty case headed for trial in 40 years, until just
days before when he pled, could not have been tried in Superior Court because the citizens of
Washington, D.C., voted overwhelmingly years ago not to have a death penalty; but in federal
court there is a death penalty statute for certain criminal violations. My defendant, through a 48
count indictment, was accused of conspiracy to commit racketeering activities (RICO), with his
group of co-conspirators, including multiple robberies, four murders and one attempted murder.
So sometimes cases are brought in federal court that would usually be processed in state court,
but is in federal court due to the federal nexus.
MS. PORTER: And the decision on this is made by the U.S. Attorney’s
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Office?
JUDGE GREEN: In a death penalty case, a recommendation is made by the
United States Attorney to the Attorney General of the United States. The Attorney General
makes the decision whether or not a case, which qualifies as a death penalty case, should be so
treated. There are several stages to pass after conviction, and a separate hearing to determine if
the defendant should die. Then, of course, years of litigation beyond the district court to the
circuit court, and petition for certiorari to the Supreme Court. The alternative in most death
penalty cases is to plead guilty, and in the case I just noted the defendant pled and received life
imprisonment, which in the federal system means no release ever.
MS. PORTER: We’ve talked generically about the sort of cases that you’ve
had. Let’s take some time to touch upon some individual cases that stick in your mind as more
memorable than others. Where would you like to start in your 22 years?
JUDGE GREEN: That is very difficult. I’m going to start with two cases that
happened toward the end of my very first year on this bench. My first year, as you know, began
June 27, 1979, when I was invested, and later that year, in December or November, I received a
case Narenii v. Civiletti; Civiletti was the U.S. Attorney General. I looked up some of these
cites, so I’ll provide them. This is 481 F. Supp. 1132 (1979), and I will say at the outset I was
soundly reversed, but to me it remains a case that, were it to be decided today, I truly believe I
would be soundly affirmed, at least by the Supreme Court which has more recently decided a
very similar case, affirming that district court decision. President Carter, who appointed me,
issued an executive order that all Iranian, nonimmigrant, post secondary students, immediately
report to the nearest Immigration and Naturalization Service office to be identified and examined
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as to their student visa status. This was within days of our citizens being taken hostage in Iran,
when our embassy was invaded. There was a turmoil in the United States over this situation.
Following a hearing, fully briefed, I determined in a written opinion that this Presidential
directive was unconstitutional. Appreciating the likelihood of reversal in the emotional climate
of the occurrence, nonetheless, I firmly believe that this action was akin to what was done with
the Japanese internment in concentration camps at the time of World War II when Japan and the
United States declared war. Then we shamefully treated our citizens of Japanese origin. Had the
U.S. rounded up all students of whatever nationality, no problem, but to single out a particular
nationality because of horrendous activity in a distant country was appalling. The plaintiffs’ main
challenge to this promulgation by President Carter, and my primary reason for finding this
unconstitutional, was violation of the Fifth Amendment in singling out only Iranian students,
discrimination on the basis of national origin, which is a suspect class and required strict judicial
scrutiny and a compelling government objective in order to pass constitutional muster. As I
indicated, I was quickly reversed by the three most conservative judges then sitting on our circuit
court. Nonetheless, something good comes out of everything. But, first I want to tell you that I
was the subject of assassination and there were a number of threats.
MS. PORTER: You weren’t actually assassinated.
JUDGE GREEN: No, I was the subject of threats of assassination. Certainly, I
understood the despair of people who didn’t comprehend my ruling and telephoned chambers to
declare what they thought of me. My favorite came from a gentleman who told me he was
elderly. He wrote in script on small white lined paper, “I don’t know where they get these dum
judges, D u m, d u m, d u m.” Others wrote articles/editorials praising my order. The
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Washington Post reporter Tim Robinson, subsequently editor of the National Law Journal, came
to chambers as soon as he received a copy of the opinion. When I told him I would not discuss
my ruling, he said, “No, I just want to shake your hand; it’s the most courageous thing I’ve ever
seen done in a district court.” Supreme Court Justice Ruth Bader Ginsburg was then a professor
at Columbia University. My introduction to Ruth Ginsburg, though I had heard of her for years
was when she sent me a copy of the document signed by her and more than 20 other professors,
which they forwarded to President Carter, telling him I was right and he was wrong; they
expressed outrage at the unconstitutional actions he had wrought on the Iranian students. I wrote
her my gratitude for the support during the tumult, and I hoped we would have a chance to meet
someday. We did, and are good friends, indeed. The same week the Narenii case was assigned, I
also was assigned the criminal case of the McDonnell Douglas Corporation. The United States
had brought a criminal indictment against the corporation, McDonnell Douglas, against Douglas
Corporation, against James McDonnell, individually, president of the corporation and the son of
the founder, and other individuals charging illegal export of arms, bribery, and violation of
Foreign Government Corrupt Practices Act. Five foreign nations were implicated: Korea, the
Philippines, Zaire, Venezuela and Pakistan. The general assertion was that the Presidents or Vice
Presidents of those countries had accepted bribes in return for purchasing airplanes from
McDonnell Douglas. This was, of course, “under the counter,” affecting the political and
economic status in the U.S., as well as the five countries. This was an extremely involved case,
replete with direct and implied improprieties of high government officials, with political
overtones. Clark Clifford represented McDonnell Douglas and other well known lawyers also
appeared in this challenging case that took virtually all of the time of one of my two law clerks
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for the better part of the year through discovery, and innumerable, tough motions, so many that I
can’t recall, but a minimum of 50. A fascinating, complex matter. I learned later it was the last
case to be brought under this particular Arms Export Act. At the end, the corporation pled guilty,
received the maximum fine of several million dollars, and each individual pled guilty to modest
offenses.
MS. PORTER: Now Joyce, very early in your term on the U.S. District Court
you were also involved in the Letelier case. Can you explain what that was about and what the
issues were?
JUDGE GREEN: Yes, Orlando Letelier, he was ambassador to America from
the Republic of Chile and I had the civil case of his surviving wife and children against the
Republic of Chile, seeking damages because Ambassador Letelier has been assassinated. He was
a leader of the dissident forces. Augusto Pinochet was the President of Chile.
MS. PORTER: So Letelier was appointed by Allende?
JUDGE GREEN: Exactly. And the lawsuit asserted that the Republic of Chile,
through its President, had directed the assassination. The criminal trial of the accused had been
held before Judge Barrington Parker; I inherited the civil litigation.
MS. PORTER: Letelier was what? He was in a car that was blown up at
Sheridan Circle in Washington, D.C.
JUDGE GREEN: Yes, with one of his assistants; her husband was seated in the
back, and survived to testify before me several months later. I held that neither the Foreign
Sovereign Immunities Act nor the Act of State Doctrine would protect a foreign government
from civil liability if it had ordered an assassination that took place in the United States. I
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granted a default judgment against the Republic of Chile. It was the first judgment, I am told, in
America’s history, to so hold. Subsequently there was a hearing where the survivors and the
personal representatives of Ambassador Letelier and his passenger brought an action to recover
monies for those bombing deaths that had occurred as they drove to work together in the District
of Columbia. The bomb had been placed by an American, married to a Chilean, who came in a
Chilean airplane from Chile with the ingredients for the bomb, which were assembled in the
United States. And from testimony derived in the criminal case and other credible sources, I
could make a firm finding of who and what had traversed this vicious act. Accordingly, it was
concluded that the plaintiffs produced satisfactory evidence. I gave by default in the amount of
$2,500,000, and counsel fees and costs, for the defendant’s acts of assault and battery, negligent
transportation and detonation of explosives, conspiracy to deprive the victims of their
constitutional rights, tortuous actions in violation of international law on an international and
protected person. There were two decisions. The second is cited at 502 F. Supp. 259, November
1980. After judgment was entered, the plaintiffs executed on the judgment in federal court in
New York, no Chilean airline landed in the Washington area, and my memorandum opinion
made clear that those explosives destined and used for the assassinations arrived on the Chilean
airline.
MS. PORTER: So the airline was one of the defendants?
JUDGE GREEN: No, but the airline was an instrument and asset of the Chilean
government. It was lodged in New York, and its seizure by the plaintiff satisfied the judgment.
To get back its plane, Chile settled the case in the neighborhood of two million to two million
five, close to the judgment that I had rendered. Michael Tigar, moving counsel in that case, did
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splendid work.
MS. PORTER: In subsequent years have you followed the various
international proceedings against Pinochet? Do you have some satisfaction that you were
absolutely correct on the facts?
JUDGE GREEN: As you can imagine, with heightened interest I have followed
that and looked at the subsequent matters, and have read articles discussing the Letelier case and
now the world is convinced that the orders to assassinate Letelier came from the very highest,
President Pinochet and his Chief General Conteras. Many of the other offenders were convicted,
and have been jailed in America, including Michael Townley, who transported, assembled, and
placed that bomb, then informed on his “colleagues.” They came to the U.S. for evil purpose,
when we had different diplomatic relations with Chile. Several, including General Contares,
remain to someday be brought to trial and justice.
MS. PORTER: After the Letelier case, Joyce, what is the next case that you
remember?
JUDGE GREEN: Well, I remember many, many cases I’m not discussing. Most
of the cases were important to the litigants, even if considered less important by others. The ones
I note are those that for one reason or another impressed me mightily during the course of my
district court days. Not necessarily my favorite cases, but the ones that made impact and
reflected the way I handled cases, the way I viewed people, and in differing matters. In 1983 and
for a substantial period, I handled a case known as the Air Crash Disaster, Washington, D.C.,
that had occurred on January 13, 1982, in a blinding snowstorm. A passenger jet, built by the
Boeing Company, operated by Air Florida, that had been housed in the hangar owned by
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American Airlines and serviced by American Airlines, departed from the Washington National
Airport. Shortly after it left the runway, and as it went across the Potomac River, it struck the
14 Street Bridge in Washington, which connects Arlington, Virginia and the District of th
Columbia. It damaged several occupied automobiles on the bridge, injuring or killing the
occupants. It then fell into the icy waters of the Potomac River below, within the District of
Columbia. Five people aboard the flight were pulled to safety. Six persons had survived and
gone into the water, but one brave soul gave up his life, refusing the transportation safety ring
lowered to him in favor of another victim. Over 70 people died on the flight. Most of the
victims were residents of the District of Columbia, Maryland and Virginia. Others came from
Florida, Massachusetts, Pennsylvania, Georgia and Texas. There were other defendants than the
ones I already mentioned (Boeing, American Airlines, Air Florida) involved in this case initially,
including the United States, because of the length of the runway, and a number of other factors,
such as the construction of the engine, the fuel applied to defrost the icing on the plane, etc. This
case was specially assigned to me as multi-district litigation, for all pretrial purposes. Although
it was expected that the individual cases would be returned to the state of origin of the decedents
or the injured, there was no direction at that time whether a judge could or could not take the
cases beyond pretrial. In recent times it has been made clear. In 1982 and 1983, we were
heading towards a liability trial and then individual damage trials. I also agreed to handle the
crew cases, a separate action. Both pilots perished in the accident, some stewardesses perished,
others were hurt. I dealt with wonderful lawyers who were all aviation experts. As one who had
never tried an aviation case in private practice, and certainly never presided over an aviation case
as a judge, I had much to learn. I spent the first weekend or two formulating, at my dining room
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table, a scheduling order, a procedural order, which amazingly remained intact throughout
completion of the entire case.
MS. PORTER: Was this the most complex case that had come before you?
JUDGE GREEN: No, not the most complex case.
MS. PORTER: Organizationally?
JUDGE GREEN: Organizationally, of its genre, it was more complex than
most.
MS. PORTER: And you were making up these procedures as you went along
or did you look to experience somewhere else?
JUDGE GREEN: I read every case that could be found on aviation disaster
cases, and then considered what was appropriate for this case. I read, of course, the multi-district
manual for complex cases. And putting all of this together, and many of my own ideas, I devised
a procedure from the beginning to the very end, whether the end was settlement or trial, on how
we would allocate attorneys fees and costs and assign responsibilities, and how the case would be
measured throughout. I look back on it now and I wonder where all of this came from, but I have
to say I was elated that a single procedural order of several pages was the working tool for the
remainder of this case. The long and the short of it is, I appointed lawyers from a number of
lawyers suggested to me to be lead counsel in the case. It is customary to appoint three as
steering (lead) counsel for the litigation and a fourth to be liaison counsel, in charge of the
administrative matters, receiving and maintaining documents, providing audit statements,
arranging for receipt of monies, and disbursement for fees and costs. I did not know any of these
lawyers before; their expertise was not the kind that had earlier come before me, so I didn’t have
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that sense of it, but could see how lawyers reacted to other lawyers in the case. We had lawyers
representing each of these 70 plus victims, 76 I think there were, and then, also lawyers for the
crew. After scrutiny of their qualifications, I appointed two lawyers who seemed to be well
respected and trusted by the other lawyers; the third lawyer I took from another panel suggested
to me because, while I suspected he was not an easy person to get along with, I discerned that the
three would have their fights internally and then come unified in the progress of the case. That’s
exactly what happened. Each was a wonderful lawyer.
MS. PORTER: These were lawyers from all over the country as well?
JUDGE GREEN: From all over the country. So then we had our three lead
counsel and liaison counsel, the lawyers for the consolidated cases. The cases would only be
consolidated for pretrial and then, of course, would have to be individual damage cases if we got
to that. The three defense counsel were equally remarkable. I saw all lawyers every two or three
weeks. It was important to see them frequently: discovery was taking place, many questions and
problems arose, resolved promptly as they arose. There were two sets of fees: fees that
individual lawyers charged their clients and an overall fee that was taken from the individual
lawyer’s fees to be paid to the steering committee/liaison counsel. In that very first procedural
order that I referred to, when I appointed the plaintiffs’ steering committee, I announced that the
steering committee and the liaison counsel, those four lawyers, would receive no greater than a
certain percentage (I recall it was eight percent, it could have been five percent, I can’t remember)
from the other lawyers’ fees in the case. This sum would constitute what they got over and above
their own cases for their work on this case because they had the vast majority of the work. This
was the target fee. It could not be greater, it could be less. The determination of this amount
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early on prevented considerable argument and delay later. As it turned out, it became the
maximum specified, good compensation richly deserved. The other lawyers could sit in, the
other lawyers could give questions for the lead lawyers to ask in depositions, but lead counsel did
all the depositions. We had depositions going three and four at a time, so that one lawyer could
do this, one lawyer could do that, different depositions in different rooms at the same time, same
day, day after day after day, in order to expedite so that this wouldn’t become a ten-year case. We
finished in short of two years.
MS. PORTER: Did many of the plaintiffs join together and have the same
counsel?
JUDGE GREEN: In fact, some counsel on our steering committee had several
cases, or perhaps ten cases, or only three or four, or but one. It varied, but there were individual
lawyers representing all the other victims, and they had worked out their own contracts on a
percentage basis. Whatever their contract was, I had to approve it later on to make sure it wasn’t
inappropriate. So, that’s how I tried to work potential problems. To patch a drip before it
became an ocean of problems. Looking back, I said that if cases settled they first had to go
to the appropriate state court to establish probate proceedings and get the approval of that court
for the proposed settlement. Only then would I decide whether or not to approve the settlement.
There were multiple rulings on motions to eliminate a number of the defendants from the case.
The remaining defendants were Boeing, Air Florida and American Airlines. American Airlines
provided the defrosting/de-icing fuel. In the end this was deemed the pivotal problem – the plane
hadn’t been de-iced close enough to takeoff. As evident from the black box recordings, the pilots
had been engaged in banter, not realizing the necessity of de-icing in this snowstorm almost
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immediately before the plane finally was allowed by the control tower to take off. There were
other things concerning Boeing’s potential liability – whether its manual provided sufficient
warning that the nose didn’t rise as expected in inclement weather. Was it highlighted enough?
Questions like that arose. Conflicts of law because of the laws of different states became a vital
matter for which a substantial opinion was written, framing the issues and results.
(TAPE 8 B)
MS. PORTER: This is a continuation of the interview being conducted on
behalf of the Oral History Project of the District of Columbia Circuit on March 3, 2001. Joyce,
you were just in the middle of giving a citation.
JUDGE GREEN: The citation is 559 F. Supp. 333 (1983), the conflicts of law
opinion, that received a good deal of acclaim throughout the nation. My law clerk and I worked
very hard on this opinion. Six weeks had been set aside by all for the approaching liability trial.
A few weeks before, I requested my lawyers to discuss resolution of the liability with the
insurance carriers. I have a general philosophy that I never see litigants in a case when I am
discussing settlement or a resolution. The carriers for all the defendants were with Lloyds of
London, a syndicate of multiple and different groups. The lawyers were unable to accomplish
resolution. They had been told that if they were not able to settle that matter, I would order the
insurance representatives to Washington where we would discuss the matter. That’s what
happened. On a Friday afternoon, two representatives arrived from Lloyds of London, one
representing Boeing forces, one Air Florida and American. After a short time, the insurance
representatives asked if they could talk to me alone, without the presence of lawyers. The
lawyers immediately agreed, so that became the rare time I talked to the insurance carrier in any
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case. Two hours later we had a settlement, with the allocation of liability and percentage of
damage amounts each defendant would bear when the damage claims resolved.
MS. PORTER: When you say you talked to these gentlemen, Joyce, that
sounds very persuasive.
JUDGE GREEN: I encouraged them and tried to be persuasive about my view
of the liability and what their decision should be, and what it would mean in the enormity of the
resolution of these cases. But, I never insist or threaten. It must be their unequivocal decision.
They agreed. We called the lawyers back and told them we had a settlement. Having reached a
settlement, we now had six weeks open which had been reserved for the liability trial. So I
immediately told the lawyers each case was going into mandatory settlement with me for those
six weeks. If they settled, great. If not, there would be scheduled, later, a damage trial for each
of the unresolved actions. For settlement, I would see the lawyers for each case, one case in the
morning, one case in the afternoon. We’d try to resolve the case right then and there, I’d take a
very activist role. I wanted papers from each side three days before the chambers meeting: the
economic reports, anything personal they wanted to tell me about the individual, victim, pictures,
so I would have a truly full understanding of each case as we commenced upon our settlement
discussion. The lawyers had to share the papers/reports/pictures given me with defense counsel,
so the defense would have the same opportunity to evaluate the case. All the cases, I am proud to
say, save two, were settled on that morning or afternoon allotted for that case. One was settled
three days later; the final, with its Texas lawyer, required transfer to Texas to try the case. Four
years later, that plaintiff got, astonishingly – my defense counsel called me to crow over this –
the precise amount of money I had recommended, going through trial and several layers of courts
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of appeal in Texas. All that time and all that 12 percent, plus interest, could have been saved,
and invested, but I had granted the lawyer’s request.
MS. PORTER: You mentioned this case was assigned to you for pretrial
purposes. Now if you ever went beyond that, how did that happen.
JUDGE GREEN: Everybody thought it would be a good idea if we could move
this case along. Nobody disagreed. There was a wonderful editorial in the Washington Post
extolling my work in this regard, and that was gratifying. But I could not have finished this case
short of two years, as was done, without the extraordinary and special lawyers.
MS. PORTER: Are there particular individual lawyers who stand out in your
mind as contributing to this result?
JUDGE GREEN: Absolutely. Donald Madole, unfortunately now deceased,
Milton Sincoff of New York, and George Farrell completed the steering committee; George
Tompkins was the lead lawyer for the defendant, and his assistant Desmond Barry, as well as
Cynthia Larson, with absolutely remarkable understanding and ability to recognize a fair figure.
They represented the insurance carriers. I don’t mean to ignore the others who were so helpful,
but those noted are the ones I dealt with the most.
MS. PORTER: With all the issues and the multitude of parties and you are
able to achieve a settlement – what were your particular approaches to the task of bringing about
a settlement that were most helpful to achieving the result that you did?
JUDGE GREEN: I have a firm belief that every litigant deserves the fullest
opportunity to resolve the case. By trial or by settlement, but to feel that he or she has received
justice, whether he gets what he wants or he doesn’t, whether she wins or she loses, that she/he
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has had a full and fair opportunity to present the case, be heard, be considered, and something
determined. I don’t think there is anything I enjoy more than being in trial. I really love being in
trial. I am always enthusiastic as a trial approaches, even one that others might not get excited
about. I harken to the thrill of ruling quickly, observing persons, viewing the litigants, witnesses,
lawyers, jurors. I also have a great deal of enthusiasm about assisting the prompt settlement of
cases. I am pleased to be an activist in the process. I do not browbeat, I don’t cajole, I never
insist, I never demand, I never mock, I never raise my voice. I may propose a solution. I always
have both parties in at the same time. When I say parties, I mean the lawyers. I don’t see the
parties. They should be in the courthouse or accessible by telephone for discussion with their
lawyers, but I don’t see them during settlement. If I do say “hello” on the rarest of occasions, it is
only after they have signed the settlement papers and want to come in and shake my hand. I don’t
even give them a seat. I just tell them they have wonderful lawyers and they leave.
MS. PORTER: Why is that?
JUDGE GREEN: Whether I am wearing the robe or not, the presence of that
robe hovers. And for litigants who are not accustomed to seeing a judge, and certainly when that
judge is presiding on their case, their papers or making some determination, I think it puts too
much weight on that lay person to accept what seems to be the judge’s approach to this. When
judges talk to lawyers about various things in the law, the lawyers will usually understand, but
the litigants, not trained in the law, don’t understand the legal, or even factual references in
settlement discussions, and are too emotionally vested in the case to face reality. I never want
someone to think that she or he was so pressured by the emotion or by this judge or whatever,
that’s he believes that’s why he accepted the settlement. So I stand aloof from the litigants;
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always have done that, even when frequently I am told that seeing that litigant is what will settle
the case. My lawyers tell their clients anything I’ve said in chambers. I don’t keep that a secret. I
don’t know how they express it to their clients, but I see both groups of lawyers and each tells me
briefly, in the presence of the other, his position. They are well aware I have read every scrap of
paper about the case, so I know that case, footnotes and all. It’s essential, that they know the
judge knows the case and is interested. Then I see the lawyers separately. I talk about various
things I may have surmised. As example, I read the deposition and I might say to the lawyer, “I
think you have a difficult client, who has sparred with the deposer. Am I wrong or am I just
reading into it? As you know I haven’t seen your client.” “Oh my goodness, yes,” the lawyer will
say, “this is a very difficult client.” I suggest various things which reflect how this person would
look before a jury. How this person would respond to a question. Would a jury like this person?
The lawyers are quite frank in chambers, when they’re not in the presence of the other lawyer.
So, in summary, I start opposing lawyers together. Each tells me what the client wants: “I am
demanding X amount of money, the position and an apology.”
MS. PORTER: So the client is out?
JUDGE GREEN: The client is either out in the hall or the courtroom, or in the
library or at home or on telephone call. The lawyer can go back and forth to the client.
MS. PORTER: So you see just the lawyer for one party?
JUDGE GREEN: As said, I see both lawyers together and in front of each other
and surprisingly you will hear a lawyer say to the other lawyer, “Well I didn’t know that’s what
you were offering” or “My client has now trebled her demand from what was said the last time.”
I find out where we are today, not where we were yesterday or two years ago, and then I ask the
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defense counsel to leave. I always work with the moving party first. I might say, “You asked for
$350,000 and you and I know that is most likely too high,” or “That’s astronomical,” or “Do you
really think a jury would give you that? You know there are frailties in your case.” I point out
what I think those frailties are, then I discuss the litigants, asking, “What does your client really
want?” I do not tell that figure to the other side, but it is important that I know so we are not
wasting time and so I can promptly discern if there is a possibility or an impossibility in resolving
this case. And the lawyer gives me – not always the last figure as he should – but a figure that is
substantially lower than the one cited to the opposing counsel. And I tell that lawyer that I will
call the other counsel in separately and say, “X has come down measurably or substantially or
just a little bit,” but I won’t give the figure, I’m going to use general terms in that regard and find
out where the opposing side is. When that lawyer raises the offer (usually), I bring in plaintiff’s
counsel separately and say, “Well they have come up measurably or substantially, or just a
minimum bit.” We get to a point where I can say, “Now you are close enough and should talk to
each other. I’m not going to bring you down to dollar one, you’re close enough. I’m going to
have you both back in here, I’m going to tell you where we are. Let’s be realistic about it, it’s not
going to go up or down from here. This is where we are. You’re going to have to decide if you
can live with this. I’ve done what I can.” This works rapidly and successfully in most cases. The
lawyers talk a bit, talk to their clients, and return to announce the settlement and sign the
appropriate documents. It’s done like that. Some cases are obviously much harder. Some take a
few days, the lawyers must consult in person with their clients to see if they can work out all the
bits, and so forth. What happens frequently is not simply dollars and cents. For many it’s the
principle. Or people want a job back. Or people want to be recognized for what they think is a
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wrong that has been done to them. And there is a tradeoff. One of my favorite cases involved
the TVA and a woman who worked for the TVA who was horrified when others still smoked,
despite the fact that as a quasi-government agency, signs were posted all over that read, “No
smoking in X, Y and Z corridors.” The plaintiff had an allergy to smoke. She had been for years
with this agency. She had no family, she had no children. TVA was her life. She was going to
retire in two years and was angry that the agency permitted smoking, against the regulations and
to her personal distress. She sued TVA. As I talked to the lawyers an idea came. I suggested
that because the plaintiff was only two years away from her retirement and pension, and since she
had this abiding love (until the smoking problem) for the agency and knew it better than anyone,
couldn’t she work at home (which, of course, would be smoke free), use her computer and write
up a loving history of the TVA. Who knew it better and who loved it more? The agency did
want a history. When plaintiff’s time comes for pension, retire her, give her the pension, she has
been smoke free, and her co-workers, who had been refusing to work with this angry woman, had
been free of her presence. I remember my two opposing lawyers (women) looking at each other,
starting to laugh and saying, “We’ll see what we can sell to our clients.” Back in a week, it was a
“done thing.” No money exchanged, all the relief requested was ignored. Just fully resolved in a
way that benefitted all. Another one of similar vintage was the Indian claim against the Corps of
Engineers. The Corps of Engineers wanted to build a dam and Indian funeral grounds were
going to be impacted. Ergo, clash of fundamentals. And so, in the end, I asked what the Indians
really wanted and what they really needed. What they needed was education for their children, a
subject that didn’t even begin to touch the parameters of the case. And so, the matter settled: the
Corps of Engineers could build the dam for the benefit of all the other people, and would move
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the burial grounds to another site; the U.S. would provide improved educational facilities to the
Indians. Again, no litigation, satisfied litigants, the country benefitting. I love these settlements
where imagination can flow.
MS. PORTER: Now in all of these cases where you’ve been actively seeking
a settlement, in those cases that have gone on to trial, in those cases another judge handles it?
JUDGE GREEN: If it’s a jury case I can handle it. If it’s a bench trial I cannot,
because I am the finder of fact and would hear so much in a settlement conference, that could
potentially influence my thinking. So the bench cases that I dealt with in settlement were rare
and only when the parties importuned my assistance. The Corps of Engineers would have been a
bench trial because the government was involved; the opposing lawyers wanted me to resolve it
and I told them I may hear too much, it may not be a good idea. I didn’t want to recuse, so if you
don’t want me to try to settle the case, fine with me. I am frequently asked to try and settle some
of my colleagues’ cases, because it is well known that I enjoy the challenge and am, however
immodest this sounds, successful most of the time.
MS. PORTER: What are some of the others that you have received from your
colleagues on the court?
JUDGE GREEN: The one that comes quickly to mind was the Vietnam orphans
case. A great number of cases, each one taking about a month to try, using many of the same
experts.
MS. PORTER: Refresh my recollection about what the case involved and
about when it was.
JUDGE GREEN: It started on the day Saigon fell to the enemy.
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MS. PORTER: April 1975.
JUDGE GREEN: Thank you. I thought with your Australian foreign service
background you would be able to supply that immediately. So, it was April 1975, and the United
States had sent one of its huge transport planes on a humanitarian mission to rescue children
from orphanages. Hundreds of children, strapped in the belly of the airplane with few adults,
nurses and other workers to accompany them to homes in America where people had agreed to
adopt them. Some children had been in the orphanages for a long time and were very ill from
their ravages there and before they came to the orphanages. In the midst of turmoil and haste –
this was wartime – and gunshots could be heard from the advancing enemy. The transport took
off, ascended briefly and then came downward, hit a paddy, went up again slightly and came
down and smashed. Many children were killed, a number were severely hurt, and the litigation
claimed, subsequently, that each was also psychologically maimed. The children who survived
were sent to families in America, most were adopted, and by the time these cases came to trial,
years later, the children, of course, had grown – perhaps it was six years later or so – and were
each in different stages of their lives and health, physically and emotionally. These cases were
assigned as a group to Judge Louis Oberdorfer, who did a remarkable job with pretrial. These
Vietnam orphan cases, multi-district, had three types of litigation requiring resolution. The judge
appointed a guardian ad litem; the cases continued over time. There came a point when they
were parceled out to the other judges for trial. A decision was made by the court as a whole that
each judge would try one such case per year, and no more, since each took a month to try and
because of overlapping lawyers and witnesses, only one could be tried at a time. And so, 12
judges would be trying 12 of these cases yearly. You can imagine this could go on for dozens of
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years, but there was no alternative, or else no other work in the court could be accomplished.
The court owed equal responsibility to all the other litigants. I was asked by Judge Oberdorfer
and Chief Judge Aubrey Robinson to resolve this crisis. I really was loathe to accept this
responsibility because these were Judge Oberdorfer’s cases and he had done so much on them
and tried very hard to get this matter settled. I agreed to do it, because the judge asked. He
decided it would be better if I tried to settle them on my own, rather than he be present, but he
would be available by telephone. He was going out of the city. And so, one evening I met the
principal lawyers, and late that evening one group of cases was settled as to liability and the
percentages each defendant would pay if a damage award was reached, and how the cases would
later proceed, if necessary, to the individual damage trials. Judge Oberdorfer and I talked by
phone; I’d ask, “What do you think about this move, it looks like it’s going to work. It’s now nine
o’clock at night, I certainly hope it works,” and he would agree and suggest something;
associating collaboratively helps all. I happen to have worked well before with the lawyer for the
United States (primary defendant in the case), who had been in my Air Florida case. We
respected each other and were able to move with dispatch.
MS. PORTER: In that first night you actually settled the case?
JUDGE GREEN: We settled one of the three waves of cases. The liability
factor was the primary issue, thereafter, the damages cases, which must be individually
determined, since different types of damages impact different persons. During the next week or
two the other two groups of litigants settled. Then all cases could be quickly determined on
damages. I had two or three of those, two settled before trial and one of them settled in the midst
of trial. It was obvious from those that the situation had dramatically changed since 1975. Those
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initially injured were now doing splendidly in school and in their home life, but hadn’t been well
earlier. It was impossible to know whether emotional injuries could be attributed to years in the
orphanage or whether attributable to that horrible accident when the door flew off the transport,
plummeting the airplane into a downward spiral and crash. So many things were involved.
Overall, only a handful of cases were tried, and I was very pleased that everybody had worked so
harmoniously together. We all realized the importance. And these are the things you do to try
and help the court as an institution. Judge Oberdorfer and I are really great pals. We understand
and respect each other. In United States v. George Hansen, around 1983 or 1984, in a case of
first impression, a sitting U.S. Congressman was charged under 18 U.S.C. § 1001, in a fraud
indictment, with making false statements on financial disclosure reports required to be filed with
the United States House of Representatives. Today he could not have been prosecuted for the
same charge, I believe, since the Supreme Court, much later on, ruled that use of 18 U.S.C. §
1001 as a statute for these purposes was invalid. Nonetheless, Congressman Hansen was
convicted by the jury, and sentenced to 15 months imprisonment; he was a second offender,
having been convicted of a similar charge (filing false reports) under a different statute years
earlier, before Chief Judge George Hart, and put on probation. Suffice to say that the jury heard
evidence and testimony of twists and turns at trial from Assistant Attorney General Giuliani (now
Mayor of New York) and from the Hunt brothers, Texas billionaires dealing with silver
securities. The meeting of the defendant and the Secretary of the Army on a desolate road in
Virginia on a Sunday, when there was a probative exchange of information, became critical to
the charge.
(TAPE 9 A)
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MS. PORTER: A continuation of the interview being conducted on behalf of
the Oral History Project of the District of Columbia Circuit. The interviewee is Judge Joyce
Hens Green, the interviewer is Jennifer Porter and the interview is taking place at the judge’s
chambers on March 3, 2001, and it is 3:00 in the afternoon.
JUDGE GREEN: With respect to intellectual property, I issued an opinion,
kindly referred to by some as a leading opinion on trademark law, when I ruled that the
defendant’s magazine, then called Science Digest, gave such great prominence to the word
“Science” in this latest edition of this publication was likely to cause confusion, thereby
infringing plaintiff’s valid trademark, Science. This was the American Association for the
Advancement of Science v. The Hearst Corporation, a 1980 case, 498 F. Supp. 244. I should also
mention one of my early cases in point of time. It is so difficult to isolate those cases that have
special flavor, which I remember so well, for particular reasons. One certainly was Luevano v.
Campbell, 1981, its cite is 93 F.R.D. 68. This resulted in a consent decree in a class
employment discrimination action brought against the government which challenged the use of
the so called PACE examination, the mandatory examination given for entry-level positions in
the government. The plaintiffs represented a nationwide class of blacks and Hispanics who
alleged this examination discriminated in violation of Civil Rights Acts. I inherited the action
from another judge when I became a district court judge. There had been 18 months of litigation,
but only a modicum of settlement negotiations. Soon after I received the case, the parties began
with encouragement, serious settlement discussions, and they jointly moved for an order granting
approval of this far- reaching consent decree. Notice of the settlement was provided the class
members. It is important to remember the date, the consent decree was approved on January 15,
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1981, because that was five days before Ronald Reagan was inaugurated President. Interestingly,
while I was examining the matter for approval of that consent decree, on January 15, in open
court, four men stood up in the courtroom. The transcript says, “Voices from the rear.” As part
of President Reagan’s transition team, they asked me to not approve this decree. This, after these
years of litigation and arms length negotiations, and now a settlement that no one had objected
to. I took the four back to chambers with the case lawyers to ask who they were and what
authority they thought they had to make this request. Incredibly, they responded that we had two
governments (simply astonishing!), and I shouldn’t approve this settlement because the Reagan
Administration wanted to think about it. I did sign the decree then and there. Later, Attorney
General Smith asked me to vacate my order. I declined, but stayed its implementation for ten
days. That was the end of that. It was decided, wisely, not to pursue the matter further. Among
the four was Alex Kozinski, now a Ninth Circuit judge, who inquires periodically whether I
remember him from that time and forgive him. Oh, yes, I do; he was a Covington and Burling
attorney then. Another of the foursome became the head of the Agency for International
Development. Amazing that this group of intelligent lawyers tried to informally and
illegitimately intervene in a formal court process because a new administration might disagree
with a decree. Many developments occurred as a result of the abolishment of the PACE
examination; but new, nondiscriminatory standards were devised and worked well during the
years until new regulations succeeded the earlier ones. With respect to civil procedure in the
courts, I issued a decision in 1987 which has been proclaimed as novel, allowing the press access
to a deposition over the witness’ objection. The Christic Institute, a Washington based public
interest group, had alleged that 29 defendants participated in a RICO conspiracy to bomb a press
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conference held in Nicaragua by contra leader Pastora. The witness, Glenn Robinette, who had
been implicated in the Iran-contra inquiry, sought a protective order to bar the press from
attending the deposition in Washington, D.C. He was the man who had built a security fence for
Colonel Oliver North, a matter that received wide publicity in an international action. I ruled that
the good cause standard under Rule 26 of Federal Rules of Civil Procedure, applied previously
only to protective orders related to documentary evidence, applied equally to deposition
testimony. Avirgan v. Hull, is reported in 118 F.R.D. 252 (1987), and has been discussed in a
number of law journals with approval. Colonel North had provided guns to the Nicaraguan
forces, on behalf of the Reagan Administration, which had surreptitiously defied Congress’ clear
directive to not do so. That matter nearly brought an impeachment hearing against President
Reagan and did bring an indictment against North. He was convicted by jury; the circuit court
overturned the conviction. In Association of Administrative Law Judges v. Heckler, 594 F. Supp.
1131, former U.S. Attorney General Elliott Richardson represented the plaintiff judges, who
claimed improper pressure on them by the Secretary of Health and Education to deny Social
Security disability benefit claims. The judges asked that I issue an order giving them the same
rights and protections that Article III judges enjoy. Although I dismissed the suit (which was not
appealed), I criticized the “untenable atmosphere of tension and unfairness that violated the spirit
of the Administrative Procedure Act.” There are so many cases. As I’ve said before, I’m trying to
select only a few for our discussion here. Over the years, as all judges, I’ve been faced with
important cases involving interpretation of the Freedom of Information Act (FOIA). In 1997, I
ordered the Department of the Army to disclose documents related to its controversial AIDS
research program. Lurie v. Department of the Army, 970 F. Supp. 19. In 1985, jumping around a
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few years, in the case Foundation on Economic Trends v. Weinberger, 610 F. Supp. 829, in the
field of environmental law, I enjoined the United States Army from building new research
laboratories for chemical and biological warfare programs at Utah’s Dugway Proving Grounds,
which is about 90 miles southwest of Salt Lake City. I found the risks of building the $1.4
million aerosol test lab to be serious and far reaching, since the Army’s environmental assessment
at that time failed to comply with the National Environmental Protection Act. I required
compliance with the law and greater assessment before the government could release deadly
chemicals into the atmosphere.
MS. PORTER: Did they do so?
JUDGE GREEN: They did so.
MS. PORTER: Has the lab ever been built?
JUDGE GREEN: Don’t know. You know, nobody gets back to tell you about
development and conclusion of matters once the case is over; also, some activities are not widely
reported in the newspapers, for obvious reasons. Increasing importance of antitrust law, as
applied to intellectual property, became evident in National Cable Television Association v.
Broadcast Music, 772 F. Supp. 614 (1991). I dismissed an antitrust suit brought by a number of
cable television companies against Broadcast Music, Inc. (BMI), a company that collects royalty
fees for composers, holding that BMI’s blanket licenses under which cable operators pay a set fee
covering all composers represented by BMI for a set period did not violate antitrust laws because
other types of licenses were available. Separately, BMI was barred from using what is referred to
as split licenses, to collect from both cable programers and local cable operators, in the holding
that such licenses violated a 1966 consent decree from a previous antitrust case. As an aside, all
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the lawyers were New York lawyers. Since I was born in New York City, I can acknowledge that
lawyers from New York have a reputation in the District of Columbia for being forthright,
ambitious, pushy, directing, and difficult to handle. Obstreperous might be the word. Yet, I
found them delightful. When they would insist upon writing me pages and pages of letters
outlining their legal arguments about this or that, I would just as consistently remind them that
we have a local rule directing that no one in litigation can write a letter to the judge. Put it in a
pleading if you must, but you don’t write letters, particularly if they contain legal argument,
citations, and the like. So the lawyers had to comply. Then one day I was reading a transcript of
the preceding case involving a similar matter in New York and the judge there directed the
lawyers to “Write me a letter, gentlemen.” Laughing, I told my lawyers they were forgiven for
past transgressions, but still, do not write me a letter. The hearing was to consume about one
month. The lawyers were given a set time in which to try the case, a policy I have followed for
years in many different cases, although not in criminal cases; in civil cases, when I know there
will be a lengthy trial or a lengthy argument. I was the first in this jurisdiction, at least, to buy a
chess clock and have it operated by my deputy clerk, with the admonition to the lawyers that, “I
hope you use the allotted time advantageously. I don’t care how you use it, but when you are in
trial, remember that every time you stand up, the time counts against you.” It is amazing when
lawyers are given two hours, or ten hours, or one hour, or whatever it is, they are anxious to meet
the time schedule, to focus on matters most essential, to call only those witnesses who are really
necessary and illuminating. While they may gripe a lot about what the judge has done before
they actually get to the courtroom, they almost invariably express pleasure later on that it has
been done because the issues have crystalized and the case has focused on the essentials each
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party wants the judge to recognize.
MS. PORTER: How do you decide how much time should be allotted for a
particular matter?
JUDGE GREEN: I ask each side what is requested. Next, I ask how many
witnesses will testify and, of those, how many are experts, recognizing that experts take longer
than fact witnesses. Lastly, I use my own judgment and select the hours to be allotted for the
case, telling the lawyers, far in advance of argument or trial, that the hours are equally divided
between the parties. Once forewarned, they can and do live with this directive. In the BMI
antitrust case, the lawyers spent the first part of the first day objecting and wrangling about
various matters. I reminded them that two precious hours of their time had now elapsed and I
had learned nothing. They asked for a ten minute recess and when they returned said they had
made a decision not to have any objections. (laughter) So, there is a purpose and an advantage
to doing it this way. I might note that a number of the other judges have now bought their own
chess clocks, they are far more advanced technologically than mine, but mine does the trick.
They, too, have found this process fruitful. Some judges even use the process in criminal cases,
but I find that could become unfair to the parties. Judges encounter the challenge of a variety of
cases: environmental law, employment law, criminal law, air crashes, government regulations,
health care, antitrust, patent, constitutional impasses, separation of powers, etc. In PHE v. United
States Department of Justice, 743 F. Supp. 15 (1990), the subject was pornography and curbing
prosecutorial misconduct. I issued an injunction against the Department of Justice for
conducting multiple prosecutions against one of the largest retail distributors of sexually oriented
magazines and videotapes in the United States. In a far-reaching decision by Edwin Meese, the
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then Attorney General of the United States, a particular area of the Department of Justice was
devoted to the prosecution of pornographers. As was learned subsequently, the idea was to
prosecute the alleged pornographers in several conservative regions of the United States,
including, among others, Idaho, Utah, and Montana, at the same time, in order to put them out of
business, of course, since who can defend, simultaneously in two or more jurisdictions.
Prosecution in this manner not only limited, but prevented due process.
MS. PORTER: You mean for the same magazine they would be prosecuted in
Idaho and elsewhere.
JUDGE GREEN: For the same transgression, exactly. Obviously the
pornographic materials had gone through the mails or were borne interstate, and so forth. It was
the procedure utilized and the intent of the government to choke off defense that was the subject
of the case before me. (It had nothing to do with the merits of the prosecution to stifle
pornography. Who wants pornography, particularly if children can be so impacted?) I allowed
discovery in this case, over vigorous objection, which unearthed extraordinary and hidden
measures taken to investigate, to explore, to wiretap pornographers. Only the record can truly
reflect the shocking depth of matters that had transpired. I despise pornography, but must say
that the appalling matters happening in our United States of America, at this time of our
“civilized existence” were even more despicable. It was not difficult to issue the injunctions,
initially a temporary injunction and then a combined preliminary permanent injunction. At the
end, the Department of Justice threw in the towel, recognizing that this was not a winner in any
way, politically, legally, ethically. A consent agreement was reached. The well-known
pornographer ceased his operations in certain areas for the benefit of all, the U.S. ceased multiple
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prosecutions against anyone, including pornographers. While there was no prohibition against
the government prosecuting one case at a time, and then a month or two later, or whatever is
necessary, prosecuting another case of the same pornographer in another jurisdiction, that was up
to the Department of Justice, but to do prosecutions concurrently, with the same defendant and
same material, would not happen again.
MS. PORTER: You mean this was concurrently?
JUDGE GREEN: Concurrently.
MS. PORTER: Wouldn’t they achieve the same result, even if they did it one
a month?
JUDGE GREEN: From the defense viewpoint, how can you defend
concurrently? And of course, the government knew the answer to that. You couldn’t. You
couldn’t be in two places at the same time. You couldn’t have two sets of lawyers or the same
lawyer in two places at the same time and defend before two different juries on the same matter.
Impossible. While to most this wouldn’t be a matter of great interest, to me it was fascinating
and extremely well tried with excellent lawyers on each side.
MS. PORTER: Were they D.C. lawyers?
JUDGE GREEN: National reputations. Some from the District of Columbia.
The lead counsel for the pornographer was Bruce Ennis, who has very recently died. A superb
lawyer who argued multiple cases before the Supreme Court, many successful. He specialized in
First Amendment matters. The United States also had a fine advocate, Thomas Martin, an
excellent lawyer. As may well be imagined, through the course of my 33 years on the bench, I
have had written, literally, hundreds, perhaps thousands, of opinions. Some short, many too
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long, some obviously more noteworthy than others. Some more impressive than others, some
only important for the clients and lawyers of that case. One of the most challenging and complex
matters I have ever had was the criminal case, then another criminal case, five massive civil
cases, and hundreds of other civil cases under my jurisdiction, all related to the collapse of the
Bank of Credit and Commerce International (BCCI).
MS. PORTER: Why would you describe that as one of your most challenging
cases?
JUDGE GREEN: Most of the law in those cases remained to be developed. It
was novel and virgin territory, concerning fields of banking, fraud, commercial instruments,
securities, money laundering, false testimony, disappearing monies and witnesses, arcane
statutes, all on an international scale. The series of cases were fascinating. They commanded
over eight years of my time. They are now completed. In fact, the last opinion I wrote for this
case commenced, “At last.” I summarized there what had happened through the eight years. I
was forwarded a letter from The Right Honorable Lord Bingham of Cornhill, then and now the
Lord Chief Justice of the United Kingdom, who received a copy of my opinion, at his request,
since my trustees and I dealt extensively and internationally with many world leaders. Lord
Bingham commented that the opinion was not only very interesting and very impressive, it is the
first time he had seen a judgment which began, “At last.”
MS. PORTER: Why did it take eight years?
JUDGE GREEN: Initially, the case was assigned as a criminal indictment.
BCCI and its satellite companies were defendants; there were also three individual defendants (I
might note it took the longest time for the United States to finally admit that one of those
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defendants had died; we carried him as a fugitive for years). Another of the defendants has paid,
just a few days ago, $47 million to the Federal Reserve involving this case, but remains a
fugitive; more will be forthcoming if he ever wants to return to the United States.
MS. PORTER: Who were the individuals?
JUDGE GREEN: There was Abedi (decedent), Ghaith Pharaon, and a man by
the name of Naqvi. Mr. Naqvi flew to the United States in a military plane, after years in a Saudi
Arabian prison for his corruption in destroying BCCI. He pled guilty before me. I sentenced him
to a lengthy term of imprisonment; he is presently on supervised release and has provided
extraordinary information concerning the location of assets in secret places and carried under
false names that we never could have known about otherwise. He has fully cooperated, despite
serious declining health while giving this information. He was number two in the pyramid of
BCCI leaders and scoundrels, when Abedi was ailing, so he knew all. It was an extraordinary
criminal case. The BCCI corporate defendants pled guilty. They were represented by the
liquidators appointed from courts in the Cayman Islands, Luxembourg, the United Kingdom and
other countries. Auditors and financial experts tried to uncover what had happened causing the
collapse of BCCI and in attempts to trace the lost monies. Almost every country in this world
had a BCCI bank. The fraud was massive, destroying the livelihoods of many, including the
green grocers in England. Little grocery shops, mom and pop types, went out of existence.
Monies put in the bank for their work and daily existence were raided and taken for personal
purposes use by the crooks who ruled in Abu Dhabi and elsewhere. The sheiks of the royal
families fully contributed to the demise of the bank. In America, the First American Corporation
existed, the holding company of the largest bank in the area at that time, the First American
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Bank, here and also in New York. The prosecutors believed that BCCI had illegally acquired a
controlling interest in First American Bank through the efforts of Clark Clifford (former
statesman and advisor to many U.S. Presidents), who was then chairman of the board, and Robert
Altman, his law partner, who was then president of First American. This led, in turn, to satellite
civil cases, as I refer to them, in separate actions against Messrs. Clifford and Altman. Members
of their law firm partnership, established people in the community, were also sued, to be
eventually dismissed from the cases. Other banks were impacted. National institutions were
affected, American Express among others. The court appointed liquidators had control of BCCI
and entered pleas of guilty. They agreed that the former management of BCCI had perpetrated
the largest, the most complex bank fraud in history worldwide. One aspect of the plea agreement
was that BCCI would forfeit all its assets in the United States to the United States Government
and the United States Government, in turn, agreed to share those true victims. During the
process, Attorney General Janet Reno directed that the U.S. share of recoveries would be given
fully to the worldwide victims.
MS. PORTER: So there were lawsuits brought against BCCI around the
world?
JUDGE GREEN: Absolutely. All came here eventually. I held hearings for all
who wanted them, even though it was unclear whether hearings were required. Nonetheless, I
felt it important to offer a hearing in every case, and put a time limit on them. I’d say, “I have
your pleadings and can rule on the papers, but if you want a hearing I’ll give 20 minutes to each
side.” Most elected not to travel to the United States for a 20-minute hearing, but many (even
though requested to do so) did not advise me they had elected to not appear. We would only
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learn of this on the day of hearings for groups of cases. I do not recall today the exact number of
the hearings (an opinion was written for each claim, but they numbered well over 400, perhaps
600).
MS. PORTER: And were there other BCCI cases pending in other
jurisdictions in the United States?
JUDGE GREEN: Yes. They all came to me eventually save for two: a
bankruptcy proceeding in New York and a matter in Georgia, otherwise, all were my cases, at
one time or another.
MS. PORTER: How did that happen?
JUDGE GREEN: It was decided that since mine was the prime case, it would be
appropriate to have also the other case before this judge. And that did happen here, as it does in
other causes. I appointed two trustees: one to liquidate First American’s assets, the other to
liquidate assets in California and elsewhere. Real personal properties had to be located and sold.
That liquidation process went on until the end of June 2000, when I decided enough is enough
and I could finally write my “At last.” There were matters that we could have continued to
pursue, particularly in Luxembourg, the United Kingdom and Cayman Islands, against BCCI, its
auditors, Price Waterhouse, and others. But the wheels of justice turn much more slowly in other
countries, and it would have taken another five or six years. We were expending money to get
money. Although our receipts magnificently outweighed our expenses, there came a point when
I felt that the court no longer should be involved. By agreement reached with the parties, I ruled
that the United States would take over some of the actions and work them out with the
liquidators and the others, and the liquidators, should they continue to want to file cases, would
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work that out with the other country involved, including Luxembourg and the Cayman Islands. It
was known that in the Cayman Islands, as example, it took two to three years before there would
be a decision on initial motions. And then there would be a period of discovery, perhaps another
four or five years. And then there might be a trial someday, perhaps ten or 12 years down the
pike. I could not justify continued U.S. involvement and our court involvement any longer with
two trustees on the payroll, their staff and offices in existence, all for the possibility of making
any more recovery of some monies. Candidly, I did not envision any more sizeable recoveries.
So I gave the directive to close up. The lawyers and my trustees made the necessary
arrangements, despite some disagreement with this decision, with each U.S. agency implicated,
the Internal Revenue Service, the Comptroller of the Treasury, with Mr. Robert Morgenthau in
New York. He and I had to deal with many of these cases because First American also was in
New York. There is yet an ongoing discovery process outside of the court’s involvement. In any
event, the total recovery amounted to 70 to 80 percent of the loss. Through my BCCI criminal
case and forfeitures to the United States, there was recovery of well over one and one half billion
dollars, and much more from individual related cases. I am exceedingly proud of this. We had
anticipated success if we got back merely ten cents on the dollar. These were compelling cases
with so many different aspects. It went through the money laundering section of the Department
of Justice, the asset forfeiture division, where a body of asset forfeiture law has now been
produced for the first time through these novel matters. My staff and I did work long and hard on
the cases and I am truly appreciative that every case that has gone to our court of appeals, and
virtually every one did so go, was fully affirmed. Only one small exception, a bench trial against
Abdul Raouf Khalil, a sheik in Abu Dhabi, who was truly involved in getting illegal millions
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from BCCI that he used for his own luxuries. This man, who bragged about his pursuits of fame
and money, had over 200 Samsonite suitcases he liked to take to where the money changing took
place in Abu Dhabi, accompanied by his staff of money changers, and, as he testified by
deposition from Abu Dhabi, he couldn’t recall how much he put in the suitcases. I am certain
that failure of memory was true.
(TAPE 9 B)
MS. PORTER: This is a continuation of the interview being conducted on
behalf of the Oral History Project of the District of Columbia Circuit, taking place at the judge’s
chambers on March 3, 2001.
JUDGE GREEN: With reference to Sheik Khalil, I determined that he owed
(due to treble damages) in excess of a billion dollars, to be paid to the liquidators, who in turn
would deliver this compensation to the victims. That would be a billion in addition to the one
and a half billion collected as noted above. Our circuit court ruled that in all respects, save one,
this case was affirmed. The appellate judges determined some facts had not been sufficiently
developed and therefore struck about $62 million from my award. I disagree with the court of
appeals on this, but the final budget still was over $900 million, just short of a billion dollars.
Our liquidators continue a laborious process right now in execution of this judgment. I have held
Sheik Khalil in contempt of court for refusing to comply with the order of the court and he is
fined $2,000 daily until he pays the judgment. But back to the case in chief. The liquidation that
I had referred to required enormous time and skilled work. In addition to monitoring the
activities, the trustees reported to me at least quarterly. I adjudicated 400 plus claims of third
parties, who asserted that the property the U.S. Government seized was not part of the BCCI
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network of assets.
MS. PORTER: What was your procedure for resolving those hundreds of
claims?
JUDGE GREEN: Laborious.
MS. PORTER: How have you done this?
JUDGE GREEN: I explained earlier that if they wanted a hearing, it was to be
held within defined time limits. Thereafter, I’d write an opinion granting or denying relief.
MS. PORTER: So you had one law clerk assigned to BCCI?
JUDGE GREEN: Yes. I had four law clerks, each serving two-year clerkships,
who worked on it during their tours of duty. Eight years. I named each in my final decision with
deep appreciation for their ideas, wonderful thoughts, and invaluable assistance with the
opinions. I was also assigned those five civil cases that related to the liquidation of BCCI. Four
of the five resolved. It took time, but went fairly quickly. The fifth took the longest. It was
mired in necessary discovery. More than $400 million in settlements had been achieved in that
case alone, pretrial. Trial was scheduled for October 1998, estimated to last six months, against
four remaining defendants, including Clark Clifford and Robert Altman. The parties had been
trying to settle the matter for some time. I had appointed a former federal judge in Illinois to be
their mediator, each party having to pay equally for this purpose. It didn’t settle. Less than four
weeks pretrial I received a joint letter from the counsel asking if I would assist settlement. The
logjam was broken. The case settled in a few days. Clark Clifford passed away about a month
later. We had known for years that he was ill. Ill to the point that when I also had his and Mr.
Altman’s criminal case, much earlier, I appointed an independent doctor who agreed with Mr.
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Clifford’s physician that Mr. Clifford was too ill to go through a criminal trial. He had a history
of heart disease and other ailments that, with the stress of a criminal trial, the doctors expected he
would die. As it turned out, he survived for years, but at the time of settlement I was aware that,
although alert, he had had round the clock nurses for two years. He was then 90 or 91 years of
age. I was concerned that with the stress of the lengthy and impending trial, he would die. Then
what? To look at it from the judicial viewpoint, the trial would have to commence again, the
heirs first deciding whether or not they would retain the same lawyers to represent them (I
suspect an idea that had not been considered by the lawyers who then represented Mr. Clifford).
Mr. Clifford desired to have this resolved before he did pass away. He was concerned mightily
about Mr. Altman, who thought of him as a son. Mr. Altman was concerned about reestablishing
his law practice. There were many other reasons, unnecessary to relate here. First American’s
viewpoint, of course, was to get this resolved, finally. Mac Mathias, former U.S. Senator from
the State of Maryland, had been appointed chairman of the bank, bringing credibility to the
shaken institution. A nun, Sister Bridget, president of Marymount College in New York, was
also on the board, among others. I had to persuade the trustee (who I had made sole shareholder)
that it was time now to come to a final resolution of this matter. And it was resolved. Eventually
all were satisfied that resolution was fair. I do want to mention the great contribution that Robert
Morgenthau, the New York District Attorney, made to the BCCI case. I verily believe that there
never would have been these cases, these successful cases against BCCI, without the persistence
of Robert Morgenthau, who saw a terrible injustice, a massive bank fraud, and investigated,
against resistance. There were those in Congress, I won’t name names, who opposed
investigation, vigorously defending the BCCI against accelerating rumors of its “crookedness”
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not long before its collapse worldwide. The Congressional Record published the statements of
those who would protect BCCI interests. So, while the United States Government also
investigated, it didn’t do it with the same degree of stubbornness, determination and persistence
that Morgenthau did. Throughout the years, he retained his interest in these cases, even when not
in his jurisdiction. Although I was never told this, I know he strongly recommended the
appointment of my trustee, Harry Albright, former advisor to New York Governor Nelson
Rockefeller and former Superintendent of New York Banks. There was consent to his
appointment from all parties. The trustee was an excellent, hard-working partner in a law firm
who uncovered astonishing transgressions of the leaders of First American Bank. These
transgressions are fully related in his final report (a public document) filed in the court. The then
chairman of the board, a former U.S. Attorney General, and the president of the bank had created
for themselves extraordinary multi-million dollar annual pensions from this bank in distress. Mr.
Albright persuaded them, with my blessing, to renegotiate their contracts and promptly resign
from the bank so that a more reputable chair could take over. It saddens and angers me to discuss
this publicly for the first time. This is detailed in Harry Albright’s lengthy report. He persisted in
telling all, despite my suggestions to not name names.
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ORAL HISTORY OF
HONORABLE JOYCE HENS GREEN
Sixth Interview – March 11, 2001
MS. PORTER: The following interview is being conducted on behalf of the
Oral History Project of the District of Columbia Circuit. The interviewee is Judge Joyce Hens
Green, the interviewer is Jennifer Porter. The interview is taking place at the judge’s chambers
on Sunday, March 11, 2001. It is now 11:20 a.m. Now Joyce, didn’t you have some libel cases
that were of interest to you and probably also to posterity?
JUDGE GREEN: Well, if I start with the first one, I’m not so sure posterity is
holding its breath. This 1985 jury action involved the Liberty Lobby, Inc. and its chair, Willis
Carto, and the National Review and its chair, William Buckley, Jr. A libel action of one
conservative opinion magazine and its principal versus another conservative opinion magazine
and its principal. The men had been great friends in past years and then had come to a division
of their ways. Most interesting thing about the claims and counterclaims were the lawyers
involved, and Mr. Buckley, who performed much like he did on his own television show. At one
point, slouching in the witness chair, he turned to me to ask if he could leave because he had a
very important speaking engagement and had to catch a plane. When I said “No,” he kept
insisting that he was losing a great deal of money. The jury overheard this and did not appear
impressed by his attitude. A news weekly reported a little bit about this trial and that a judge in
Washington had denied Buckley his way. Mr. Buckley was represented by Daniel Mahoney,
former chair of the New York State Conservative Party, who a short time after this trial was
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appointed to the Second Circuit. He is now deceased. Mr. Mahoney, at the onset of the trial,
took Mr. Buckley through his educational and recreational experience, his background, his
governesses, his siblings; the jury registered emotion when Mr. Buckley detailed that he had
spent his entire earlier education in private schools in Switzerland and in private schools in other
countries for higher education; that he had lived in luxurious places, traveling and skiing at posh
resorts. I found this an odd bit of lawyering, for a District of Columbia jury, which is not known
for its sophistication and certainly did not have the benefit of similar education and recreational
opportunity. The evidence reflected libelous statements to and by each principal. They had, for
example, called each other Nazis and Fascists and sneered at each other’s manhood. It seemed
clear the suit/countersuit was brought to ventilate the growing enmity between these two. The
jury, at the end, did the right thing, awarding only minimal damages to National Review, for the
libel.
MS. PORTER: Joyce, you mentioned to me that you had another libel case
that you remember involving Pat Robertson.
JUDGE GREEN: Yes, around 1988, certainly in the year of a Presidential
election. Pat Robertson filed a libel suit against Pete McCloskey, a Congressman from
California, and Andrew Jacobs, Jr., a Congressman from Indiana. He claimed against both
defendants, asserting he was libeled in a letter McCloskey had sent to Jacobs, in which
McCloskey claimed that Robertson, who served in his unit during the Korean War, was given
soft duty, was the alcohol procurer for the other members of the fighting forces, was deferred
from combative duty because his father, United States Senator (Virginia), had exercised his
powerful position to put his son in non-combatant service. Pat Robertson was seeking the
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Presidency at this time; there was speculation as to why he had initiated this particular libel suit
in concert with his run for the Presidency. Nonetheless he persisted in this lawsuit. Substantial
discovery was taken, much of which was mightily uncomplimentary to Robertson and seemed to
substantiate the allegations McCloskey had made. Truth is a defense. Summary judgment was
granted in favor of Jacobs. The matter continued, pretrial against McCloskey, because of some
controverted facts. I urged the parties (through their lawyers) to settle. The lawyers spent two
full days in my jury room (they asked to work nearby so I could continue to aid their efforts),
literally with rolled up shirt sleeves, running back and forth to ask questions about could this be
done, could that be done. The case did not settle. Therefore, I called the lawyers to chambers
(the time was September 1987) to agree upon a time acceptable to all for this anticipated lengthy
trial. We reached an agreement to commence trial on March 8, 1988. Each lawyer indicated the
date was “perfect.” The next day I picked up the Washington Post to the screaming headlines,
“Judge sets Super Tuesday as Commencement of Trial for Pat Robertson.” Super Tuesday is vital
in the life of a politician running for office. Mr. Robertson used that agreed upon date to whine
that he now was being forced to make a choice to either withdraw from the Presidency or be
forced to dismiss this case, all because the judge had set it “arbitrarily for that particular Super
Tuesday.” When the lawyers came in the next day, I pointed to that headline and asked what had
happened, why hadn’t they alerted me to the consequence of the date we each agreed to, and if
they were seeking a different date now. They both acknowledged that they had agreed on the
scheduled date, and they both insisted they did not want a different trial date. But, of course, that
was done in chambers, and the world wasn’t aware that that was the fact. I issued an order that,
with the consent of the parties, the trial continued to be set for that original date. I truly did not
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know it was Super Tuesday when it was set, and I clearly, as I often do, would have worked
around the date had I been asked to do so. But I wasn’t. Thereafter, the decision was misused
politically. Mr. Robertson persisted in complaining about the date until he finally said he had to
dismiss this case. Then ensued a round of orders, four or five issued in one day, as to whether he
could dismiss it without paying the costs and without paying the very modest attorneys’ fees
requested. At the end he did acquiesce and pay and the case was dismissed.
MS. PORTER: In all the political controversies surrounding that case, and the
public attention to it, was there any suggestion that you had acted for political reasons in setting
the trial date?
JUDGE GREEN: Oh, absolutely. Article upon article referred to me as an
appointee of Jimmy Carter, Democrat. The veiled accusation from Robertson (repeated by the
media) was, of course, that I had purposely tried to prevent Mr. Robertson’s presidential
candidacy by the selection of Super Tuesday as the date on which to commence trial. Robertson
knew he was wrong. He acted untruthfully and unfairly. There is little a judge can do to set the
record right.
MS. PORTER: Let’s switch from the Moral Majority to Larry Flynt and
Hustler. They came before your court, as well. What was that about?
JUDGE GREEN: This was a case involving Hustler, the magazine of Larry
Flynt, which sued a photographer who had taken pictures of Elizabeth Ray, a person well known
in the District of Columbia circles to be available for social reasons. She was a special friend of
a number of Congressmen. Ms. Ray had posed for this photographer in her younger days, in the
nude, and when there was a great deal of publicity concerning her and a certain Congressman,
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this enterprising photographer contracted to sell this nude picture to Hustler. Later, he tried to
withdraw from the contract, but Hustler did not permit this. Elizabeth Ray joined the lawsuit to
prevent publication of her picture. Larry Flynt testified from a wheelchair, having been shot in
an assassination attempt. It was an interesting and well litigated case, all the more so because of
the colorful people who were involved. Often the persons are more interesting than the issues of
the suit.
MS. PORTER: Joyce, in 1998 you had an immigration case, Lee v. Reno, that
you mentioned as one you wanted to talk about. Would you like to explain why this is a case that
you attach particular importance to?
JUDGE GREEN: It is a complex and novel case close to my heart, cited at 15 F.
Supp.2d 26 (July 1998). Hsue Lee, a detained deportable alien, petitioned for a writ of habeas
corpus to challenge the denial of his motion to reopen his deportation proceedings to seek a
waiver of deportation based on his recently approved marriage to a U.S. citizen. This case raised
two very important questions of statutory and potentially, constitutional interpretation. Did
Congress intend only to streamline judicial review of final orders of deportation, or did it intend
instead to remove federal courts from the picture altogether? If the latter intent, the question
arises as to whether the constitution imposes limits on Congress’ ability to sideline the federal
judiciary in this context. The second question of interpretation concerns whether Congress
intended one of the 1996 sweeping congressional changes to the nation’s immigration laws to
apply retroactively so as to eradicate all pending applications for a waiver of deportation filed by
aliens facing deportation for reasons of prior criminal convictions. Lee, who has lived in the
U.S. with his parents and siblings since he was eight years old, as a permanent resident, spoke
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only English, was married with a child, admitted he was “deportable” because he had fired a
handgun at some road signs in rural Virginia in 1988, had a series of citations for DWI, and had a
prior burglary conviction. He sought a hearing which had been denied on his application for a
waiver of deportation. Since his last conviction in 1989, he secured employment, joined AA and
received alcohol abuse therapy. I held that, with respect to the two 1996 amendments to the INA,
Congress neither explicitly nor impliedly repealed the grant of jurisdiction in 28 U.S.C. § 2241,
to issue writs of habeas corpus to persons in federal custody, such jurisdiction having been
continuously exercised for over 200 years (i.e., since 1789) and having at all times been available
in immigration cases. Alternatively, had Congress intended such a repeal, then I held that the
constitution requires that some court, other than an administrative court created by Congress, be
available to inquire on habeas into the legality of a potential deportee’s detention. Further, I held
that the scope of such habeas review extended, at least, to pure issues of law as in the petition,
also holding that Congress did not intend to extinguish applications such as Lee’s, retroactively or
elsewise. I directed that the writ should issue. The government appealed, and a few weeks later
withdrew its appeal. More than two years thereafter, in September 2000, the Second Circuit
decided a similar case, Calcano Martinez v. INS, holding as I had. The Supreme Court granted
cert. in January 2001, and heard argument April 24, 2001. We await the decision.
MS. PORTER: In 1999, Joyce, you were back in court with Pat Robertson,
with the Christian Coalition, and that was a case that you found memorable as well?
JUDGE GREEN: Yes, this involved the Federal Election Campaign Act. The
Federal Election Commission (FEC) brought an enforcement action against Christian Coalition
the nationwide ideological, religious corporation formed by Pat Robertson, for five stated
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purposes: “(1) to represent Christians before local councils, state legislatures and the United
States Congress; (2) to train Christians for effective political action; (3) to inform Christians of
timely issues and legislation; (4) to speak out in the public arena and the media; and (5) to protest
anti-Christian bigotry and defend the legal rights of Christians.” The FEC alleged violation of
federal campaign finance laws during congressional elections in 1990, 1992 and 1994, and the
George Bush Presidential election in 1992. In August 1999, I issued an opinion that was about
116 pages. Too long, perhaps, but there was much to be said. The case presented two novel
issues concerning restraints on corporate campaign related activities. Federal campaign finance
law prohibits corporations and labor unions from using general treasury funds to make
contributions, in cash or in kind, to a candidate for a federal office. Corporations and unions can
make independent expenditures that are related to a federal election campaign, so long as those
expenditures are not for communications that expressly advocate the election or defeat of a
clearly identified candidate for federal office. One of first impression in this circuit, the issue had
created, as I put it, a moderate division of opinion among other circuits. The question presented
is whether express advocacy by corporations and labor organizations is limited to
communications that use specified phrases, such as “vote for Smith” or “vote for Robinson,” or
whether a more substantive inquiry into the clearly intended effect of communication is
permissible. The FEC advocated a substantive inquiry and alleged that the coalition had used
general corporate funds to expressly advocate the election or defeat of certain candidates through
a speech that was made by the coalition’s then executive director Ralph Reed and by certain of
the coalition’s direct mail communications. The second novel issue related to how an in-kind
campaign contribution is to be defined. According to the FEC, the coalition had spent
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considerable general corporate funds in coordination with the election campaigns of certain
Republican candidates and the National Republican Senatorial Committee (which the FEC
referred to as coordinated expenditures), to produce and distribute millions of voter guides and
congressional scorecards comparing candidates or incumbents’ positions on certain issues. And
although there was no doubt as to which candidates the coalition preferred (that could be read
clearly through those materials), the FEC acknowledged that most of the voter guides did not
expressly advocate the election or defeat of any particular candidate; but the FEC’s theory was
not that the election materials themselves violated the express advocacy limitation in independent
corporate expenditures, but that the coalition’s extensive consultations with the campaign staffs
of certain candidates, regarding the distribution of its voter guide and other materials, turned
otherwise permissible campaign materials into illegal in kind campaign contributions, giving new
meaning to the saying that politics makes strange bedfellows, the coalition’s position regarding
coordinated expenditures was supported by amici, the American Federation of Labor and the
Congress of Industrial Organizations, and the ACLU.
(TAPE 10 A)
MS. PORTER: This is a continuation of the interview being conducted on
behalf of the Oral History Project of the District of Columbia Circuit. The interviewee is Judge
Joyce Hens Green, the interviewer is Jennifer Porter. The interview is taking place at the judge’s
chambers on Sunday, March 11, 2001, and the time is 12:15 p.m.
JUDGE GREEN: Buckley v. Valeo, the Supreme Court’s lengthy per curiam
opinion, provided a partial First Amendment blueprint for restrictions on campaign finance while
striking down or scaling back various Federal Election Commission provisions. In the Federal
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Election Campaign Act, Congress had sought to restrict campaign contributions and expenditures
equally, but the Buckley court read the First Amendment to require substantially different
treatments of contributions and independent expenditures. Indeed, Buckley observed that
virtually every means of communicating ideas in today’s mass society requires the expenditure of
money. It then reached its holding that restrictions on campaign contributions and expenditures
are restrictions on political speech, and such restrictions are permissible only if they survive strict
judicial scrutiny, concluding that the First Amendment permitted limits on campaign
contributions, but not on independent expenditures by individuals. Buckley’s analysis did not
explicitly extend to the FECA provision limiting corporate and union expenditures that are at
issue in the Christian Coalition case. In Federal Election Commission v. Massachusetts Citizens
for Life, commonly referred to as MCFL, the court followed Buckley’s two-step analysis, first
declaring that express advocacy limitation also applies to the restriction on independent
expenditures, but reaching a different result than Buckley, because the nexus between the
government’s anti-corruption interest in Buckley and the ban on corporate and union independent
expenditures is much closer than was the case with individuals. Most courts that have
considered the issue understand that Buckley and MCFL have separated permissible issue
advocacy from impermissible express advocacy by a bright line, and those bright line rules of law
(those that give the clearest possible advance notice or guidance to distinguish permissible from
impermissible conduct) leave little room for the post hoc case by case considerations. But even
those courts recognize that the context dependent nature of language introduces ambiguities that
require case specific considerations. Having considered the relevant precedent, I understood the
following attributes to be necessary to the application of the statute’s prohibition on independent
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expenditures containing express advocacy. The communication must, in effect, contain an
explicit directive. That effect is determined first and foremost by the words used. More
specifically, the express advocacy standard requires focus on the verbs. For example, in the
cases when contemplating a phrase “don’t let them do it,” it shifted from the district court’s focus
on “it” to “don’t let him.” The distinction is tortured, but, in the Coalition case, I held that the
verb, or its immediate equivalent (when considered in the context of the entire communication,
including its temporal proximity to the election) must unmistakably exhort the
reader/viewer/listener to take electoral action to support the election or defeat of a clearly
identified candidate; the most obvious electoral action is to vote for or against the candidate.
But, as the Buckley court recognized, when it included the verb “support” in its non-exclusive
list, express advocacy also includes verbs that exhort one to campaign for or contribute to a
clearly identified candidate. Therefore, the express advocacy standard covers only a narrow class
of communications. While some have complained, understandably, that the express advocacy
cannot be so limited as to easily be avoided by linguistic sleight of hand, I was compelled to
conclude that that is precisely how the Supreme Court had narrowed the Act. Buckley had held
that the FECA has too much bite; it recognized that the result of its narrowing construction
rendered the FECA limitations on independent expenditures largely toothless. And so then I
examined in the Christian Coalition case the three alleged acts of express advocacy that were at
issue, looking strictly at the factual information that had been obtained through protracted
discovery, making the legal analysis on that basis. As said earlier, in addition to alleging that the
coalition engaged in prohibitive express advocacy, the FEC also alleged that the coalition
violated the Act in relation to other communications, principally its voter guides. And while the
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FEC had knowledge that those guides, which compared candidates’ positions on express issues
and were proliferated throughout churches in America, did not contain express advocacy, it
asserted that the voter guides were not protected independent expenditures because the coalition
shared information with various campaigns, including the 1992 reelection campaign of President
Bush, to such an extent that the voter guides should be treated for the FECA purposes as
literature distributed on behalf of the campaign. The FEC’s view was that those expenditures on
the voter guides were illegal, in kind, corporate contributions. Buckley and its treatment of
coordinated expenditures as in-kind contributions, had left undiscussed the First Amendment
concerns that arise with respect to expressive coordinated expenditures. An example would be
for a television advertisement favorably profiling a candidate’s stand on certain issues, which is
paid for and written by the contributor, in which the advertisement does express the underlying
basis for his support and does discuss candidates and issues, but for which the expenditure is
done in coordination with, or with the authorization of, the candidate. I wrote in Christian
Coalition that it can only be surmised that the Buckley majority purposely left that issue for
another case, and in many respects, the Christian Coalition was that case. The two dissenting
justices in Buckley drew the distinction on precisely the grounds I have referred to, stating that
whether speech is considered an impermissible contribution or an allowable expenditure turns
not on whether speech by someone other than the contributor is involved, but whether the speech
is authorized or not. These were the facts that confronted us in Christian Coalition. The
question presented was whether the First Amendment requires a limiting construction of the Act
that would protect the coalition’s expenditures in this case and, more specifically, whether the
corporation’s expenditures and voter guides, and get out the vote telephone calls, independent of
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a campaign, or coordinated with a campaign (where the evidence shows that the corporation was
privy to non-public information about a campaign’s strategies and discussed the corporation’s
plans to make campaign-related expenditures in advance with the campaign) were matters that
are implicated by this case under the First Amendment. As you can see, I have made this lengthy
recitation because this very complicated case is exceedingly fact bound. It was a very difficult
decision. I walked a tenuous line between Buckley and the subsequent cases and what was left
unsaid. Our case ended with the decision essentially in favor of the Christian Coalition, although
the FEC succeeded on a few fact bound issues. The coalition corporation had skirted just enough
to come within permissible advocacy. As to matters concerning civil penalties, they were left for
decision another day. This case was not appealed, the parties agreed to agree on what the
statutory penalties were, they were paid and so we never reached chapter two in this case. We
shall never know whether the divining forces would have agreed or disagreed with this court. At
bottom, politics remain inextricably entwined with the actions of the Federal Election
Commission, campaign reform arises chronically in the United States Congress, and reform
action is persistently defeated. This case was troubling in many respects. A very difficult and
thin line had to be walked between Supreme Court pronouncements, which obviously I must
honor and give precedent to, and the fact that so much had been left unsaid; but had I made the
decision in a certain way, it would somewhat alter the decision of both the Buckley case and
succeeding cases.
MS. PORTER: You say repeatedly that you made this decision reluctantly.
JUDGE GREEN: I made the decision reluctantly because we stand bereft of law
that would assist us in making these determinations. When Buckley didn’t reach issues precisely,
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it left so much unsaid that, as the dissent pointed out, the overall result was distressing. And so,
the courts are going to be inundated for the foreseeable future, particularly in the District of
Columbia where these cases are filed requiring decisions upon facts specific, and murky law,
case after case, on pleadings filed four and five years after an election has taken place and long
after the damage, if any, has been done.
MS. PORTER: How was this case perceived when you issued your opinion?
JUDGE GREEN: As you can imagine, I was the darling of some and the evil
witch of others. Many editorials were published, a number stating that I had been too precise and
tortured the reasoning; they would have preferred that I had thrown the rascals in jail. Of course,
it wasn’t a criminal case, but at bottom they felt that the Act was clear enough. Other editorials
expressed an appreciation for my work and obvious comprehension of the difficulties all faced.
MS. PORTER: This was evidently a very difficult case for you, so let’s make
life a little bit easier for you now. We can go on and talk about your death penalty case.
JUDGE GREEN: You’re a very interesting person, Ms. Porter, to think that a
death penalty case is easier than a First Amendment case. This was the first death penalty case
expected go to trial in the District of Columbia in about 50 years. It was well known that no
defendant in the local court can be punished by death since the citizens of the District of
Columbia voted overwhelmingly, years ago, against the death penalty. Were they to vote today,
some experts opine, the vote would be opposite. Nonetheless, the only tribunal that could
undertake a death penalty case was the D.C. Circuit’s federal district court. In August 1999, I
was assigned United States v. Carl Cooper, a single defendant charged by indictment with
multiple counts of RICO (the pattern of racketeering activity by participation in the affairs of a
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criminal enterprise), conspiracy, multiple counts of first degree murder while armed, ancillary
counts of bank robbery, second degree burglary, felon possession of a firearm, and other firearm
offenses, in the 48 counts.
MS. PORTER: This is the guy who walked into the Starbucks and shot up the
store and some people. How does this become a RICO case?
JUDGE GREEN: He walked into the Georgetown Starbucks (Wisconsin
Avenue). The store was closed. It was the end of the July 4 weekend. He expected substantial th
monies had been received by the store, multiplied by the activity over that three-day holiday.
How did this become a RICO case? Cooper led a criminal enterprise (although with a small
group of confederates) to perform a pattern of criminal racketeering activity. I appointed two
excellent lawyers as defense counsel, each of whom was qualified for death penalty cases. We
had to really track law new to the District of Columbia to decide who to appoint, what kind of a
budget to establish, how to estimate the length of this case (because at that time it had not yet
been determined whether the death penalty would be invoked; that was to be determined a few
months later). At our initial meeting, all agreed to a prompt trial date of April 2000. This case
was treated from day one as if it would indeed be declared a death penalty case, so that the work
in investigations, in motions in discovery, experts’ examinations, decisions on procedure and
evidence would not have to be revisited.
MS. PORTER: How would it become a death penalty case? What is the
procedure for that?
JUDGE GREEN: The reviewing committee of the U.S. Attorney’s Office,
which prosecuted this case, examined the totality of information provided both by the
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prosecutors and by the defense counsel (to whatever degree the defense counsel wants to share
information) and then, in consideration of both aggravating and mitigating factors, decides
whether or not this should be a death penalty case. A recommendation is made then by the U.S.
Attorney to the Attorney General of the United States. The U.S. Attorney at that time was Wilma
Lewis, the Attorney General, Janet Reno. Janet Reno, in turn, convened a committee to ascertain
the similar considerations as to whether this should become a death penalty case. She made that
decision in early February 2000. Thereafter, the case was handled accordingly. Only the
Attorney General can make that ultimate decision. In Cooper the recommendation by the U.S.
Attorney was against the death penalty, but Janet Reno decided the jury should consider the death
penalty. The lawyers asked an additional month to prepare; and they were given 22 days more.
Trial was then scheduled for early May. From the onset of the indictment, all persons involved
contributed massive efforts. My staff and I worked constantly on the huge number of motions.
There were many hearings and status calls. The hearing on the motion to suppress his confession
and other evidence (wire interception, physical evidence, photographic evidence) consumed four
court days, resulting in a 68-page opinion in which I denied each of the four motions to suppress,
concluding that his statements were “clearly voluntary, readily and eagerly initiated and provided
free of coercion and duress.” More jurors were summoned for this particular case than had ever
been before in the District of Columbia. I requested summonses for 3,000 potential jurors,
recognizing that by past statistical surveys about half never show (and we don’t have the
resources to go out and locate this half). In the Cooper case, this number would have left us
approximately 1,500. Since the jury is not told initially that it is a death penalty case (we could
merely tell them it was a case that would last three to four months, through the hot summer of
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Washington), we accepted the fact that many jurors would never serve because of business and
personal matters, as, for example, significant encumbrances on their ways of life, or a physical or
emotional inability to sit for three or four months. We, of course, anticipated the impact of the
death penalty issue. The jurors would be told of this the day they came to complete the
questionnaire, specifically tailored to fit this case. Again, a huge number of jurors could not be
qualified to fairly decide a death penalty case. Based on guesstimates, we might have a panel of
200 remaining jurors to work with.
MS. PORTER: Was your estimate correct?
JUDGE GREEN: We will never know. Our estimate was correct in the loss of
jurors that didn’t show, our estimate was roughly correct in the numbers that made acceptable
excuses (each one of which I individually addressed as whether they had to be interviewed for the
purpose of this jury selection), but at the end, when we awaited jurors for the questionnaire, we
had perhaps 400 or 500 jurors left. Probably there would have been 175-225 jurors left after they
were informed that it was a death penalty case. The jurors were to come in to fully hear about the
Cooper case and for completion of the detailed questionnaire (which ascertained the juror’s
feelings about death penalty, murder, guns, confessions, high publicity). For fair trial and due
process, we had to make sure the jurors were not influenced by these and other factors.
(TAPE 10 B)
JUDGE GREEN: Several days earlier the defendant had made it clear he
wanted to plead guilty. The terms of the guilty plea, however, were not completed until three or
four days before the jury questionnaire session, which we postponed until the day after the
expected plea. Then, on the night before the day he was to plea guilty, a telephone call was
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received in chambers, advising that there was a problem and that chambers would be notified the
next morning as to whether the plea could go forth. At 8:00 a.m. the next day, pleadings arrived
over the fax and were filed in the Clerk’s Office (not under seal), requesting that the two defense
counsel be permitted to withdraw from the case immediately, due to “irreconcilable differences,”
but asking me to appoint amicus to talk to the defendant. I took that as a signal (it wasn’t so
stated) that perhaps the problem could be resolved once the defendant had an opportunity to
speak to independent counsel. I immediately ran through my mind the names of eminent counsel
who, although always busy, might be readily available to the court. The amicus had to be highly
respected, a household name that my defendant might recognize. At the top of my list I put one
name (there were several others in the event this person was unavailable or didn’t want to touch
this case or had a conflict). I was also searching for a lawyer who did more white collar crime
than street crime, because this would make it less likely that he would have had cases that would
create conflict, due to our many witnesses with criminal records who were going to testify. I
telephoned this lawyer, who was in his office. All I had to do was say, “This is Joyce Green and I
need your services.” Without even asking what these services would involve, he asked where I
was and said he was on his way to the courthouse. I stopped him to say which case this was and
what I needed from him; he immediately left his office and his very busy practice and (with his
sole associate) came to the rescue. That was Plato Cacheris, a remarkable lawyer and special
person. I am truly indebted for his service to the court and for his service to the defense and the
prosecution representing the public’s interest. He first talked to the lawyers, to familiarize
himself with the problem, then talked to the defendant, who I had brought in immediately by the
Marshals to the cellblock in the courthouse so that Mr. Cacheris could have quick access to him.
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Shortly thereafter, Mr. Cacheris advised me that there was no problem, asked if he could he go to
lunch and if I could have the court convene two or three hours later. He felt that the problem had
been resolved. I did as suggested. I asked the government to wait in another room. In the
courtroom I listened to ex parte details of the difficulty, heard from the defendant, under oath,
heard from the defense counsel as to their present position on withdrawal, to establish what was
to be done in the future of with the Cooper case. The defendant, as the court record will show,
immediately indicated that he wanted his counsel to remain, that the night before he had
expressed distress with the contours of the plea agreement, and briefly did not believe counsel
were on his side. The moment they left, he told me in convincing terms that he realized his
serious mistake; he wanted to call them, but was told a prisoner’s opportunity to make telephone
calls had expired for the evening, so he wasn’t able to reach them. The lawyers agreed that they
could responsibly remain as counsel now that this impasse had been resolved; Mr. Cacheris
graciously had completed his responsibility to this case with the swiftness that a master lawyer
can muster. I then brought the government counsel in and had a repetition, under oath, so there
would be no doubt where this case would end. Mr. Cooper entreated me over and again to accept
his plea to life in prison with absolutely no chance of ever seeing daylight again. The
government understood now the reasons why all of this flurry occurred. I put off the plea until
the following day so that the defendant could be examined by a clinical psychologist (who had
remained present to testify at trial, and who had examined him before) to assure that this
defendant knew what he was doing and was competent to proceed and wanted to proceed, as he
had told us over and over again, with the same attorneys and with the plea agreement. The
psychologist testified briefly, affirming Cooper was fully competent to proceed. The next day, in
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a marathon session, I took the plea as to each count of the indictment. The taking of the plea
began at ten o’clock in the morning and ended at about six o’clock at night; there was but a brief
luncheon recess. The government had insisted he plead to each one of the 48 counts (dismissing
one during the plea). As to each, I read the count, the defendant admitted his guilt, separately as
to each element of that count, and the government said what it could have proved in each and
every count. The defendant stated his agreement with the government’s proffer and, in his own
words, gave full details as to what he had done. I accepted the plea to each count, separately.
That’s why it took so long. But for a case of this difficulty, this gravity, it was essential to walk
this very carefully, step by step, although as a judge I didn’t think it was necessary to plead to 48
counts when he was going away for consecutive life terms on each of the three Starbucks
murders, and also had received severe penalties for his other crimes, including a fourth unrelated
murder, and another attempted murder, the nucleus of the federal RICO conspiracy. In the
Starbucks matter, Cooper had planned with a cohort to commit robbery on the last day of the July
4 weekend of this particular year. He couldn’t reach his confederate when he was ready to th
proceed. By this time the co-conspirator had decided to go straight, giving up crime, had really
begun to turn his life around, but, had not shared that information with Mr. Cooper. And so, Mr.
Cooper said since he couldn’t find his cohort he “seized the moment of opportunity.” As he
explained, he left for the Starbucks coffee shop dressed in a black outfit, black mask, black
sneakers. He entered with two guns blazing, forced the woman manager back towards the safe
and directed her to open it; she refused and he shot her. He stood over her body and pummeled
more shots into her. Then he turned to the two quivering men, her co-workers, who viewed this
horrendous act, and shot both of them to death. I asked if he examined the bodies before he left
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to see if any one of them were still alive. He said no, that wasn’t part of his “agenda.” He calmly
returned to his work at an Internet firm, to his wife and a four-year-old son, going about his
normal activities, but the demon within continued the commission of other crimes. Not only did
he commit these three murders, years earlier he had decided that one of his conspirators needed a
gun, so they rode through the streets of Washington, and when they saw a uniformed man
through the window of a building, correctly surmised him to be a security guard and would likely
have a gun, entered the building, whereupon Mr. Cooper shot this individual in the head and took
his gun. There was another incident in a wooded and dark park when Cooper saw two persons in
a car obviously making love. One happened to be a policeman, not in uniform at that time. The
woman who was with the policeman was prepared to testify at the Cooper trial that she offered
him $20 to not shoot them. He took the $20 and then he shot the policeman and left the scene.
The policeman survived to be in court (dressed) at the time of the plea.
MS. PORTER: You said he had a job with an Internet firm? What sort of job
did he have?
JUDGE GREEN: Mid-level employee at the Wang Corporation in Tyson’s
Corner, Virginia.
MS. PORTER: It seems an unusual background.
JUDGE GREEN: It was an unusual background. It was fortunate in many ways
that this defendant was as intelligent and knowing and understanding as he was of all the
ramifications of the investigations, the motions to suppress, the discovery, the impending trial,
the plea, the sentence. He was absolutely aware of every stage of the proceedings. He enjoyed
what he obviously considered a game between law enforcement and himself. He felt always that
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he had the upper hand. Highly intelligent, personable, attractive, articulate, with a wife and son,
a leader, never confused, a psychotic personality without a scintilla of remorse. What a time the
psychiatrists will have during Cooper’s life in prison, should Cooper elect to talk to them (and I
suspect he will).
MS. PORTER: I know that you personally are opposed to capital punishment.
How did you feel about having to handle the first case capital case in the federal court in the
District of Columbia in so many years?
JUDGE GREEN: Since the federal district court has jurisdiction over the death
penalty statute, I’ve asked myself repeatedly whether I would be able to handle such a case, since
I have always been opposed to capital punishment. Inhumanity to victims does not require the
ultimate inhumanity to the perpetrator (except, I believe, in a handful of instances, like the
intentional Oklahoma bombing of the Federal Building causing 168 deaths). Statistically, we are
told, the death penalty does not deter others from the commission of heinous crimes. How did I
feel? It was a very difficult decision. When I received the case and knew that it was death
penalty eligible, my prosecutor son asked if I could do this. I acknowledged that I had searched
within and I could. In the first instance, it is the jury that makes the decision whether or not the
defendant receives the death penalty, and then, and only then, the judge could, under the law, set
aside that decision, lowering the penalty to life. I decided that I would be able to see the Cooper
case all the way through, as my duty as a federal judge required. As it turned out, I never had to
face the ultimate question, for which I am grateful. I do believe in the Cooper case that the
decision reached by the prosecution and the defense was the most appropriate one also for the
victims’ families, each of whom had agreed to the life sentences.
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MS. PORTER: You mentioned issues other than capital punishment on which
your personal feelings may be different from the law that you’re called upon to apply. Do you
recall any specific instances in which your personal philosophy has been at variance with what
you have had to do as a judge?
JUDGE GREEN: There are numerous occasions I could recite, but I’m going to
let it rest with capital punishment.
MS. PORTER: You mentioned that one of the reasons that you were able to
take the capital punishment case was, in the first instance, that the decision would be made by the
jury. In your experience as a judge, how has the jury system worked? Do you think it is
generally effective? Do juries generally come out with the right decisions?
JUDGE GREEN: For most of my years on the bench, and until the last perhaps
five years, I found that the jury system worked superbly well, not perfectly, but certainly better
than anything else that can be offered to the litigants in civil and in criminal cases. Most jurors
carry out their responsibility impeccably, with earnestness, and with an intense desire to reach the
right decision under the law, as the court had explained the law to them, and are not swayed by
their personal inclinations. But in more recent years, the result often has been distressing. The
jurors are asked, of course, the usual questions as to whether they can identify any of the parties,
or the lawyers or witnesses, if they’ve heard anything about the case, whether they can accept the
testimony of a law enforcement officer with the credibility that they would apply to any other
witness, neither giving them greater credibility nor less credibility. You ask about their own
experiences, as to whether they or any member of their family have ever been arrested or
convicted for a crime, anywhere, anytime, or been a witness to a crime anywhere, anytime, or
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been a victim of a crime. Some answers are taken at the bench, so the responses are more
detailed, and, hopefully, more candid, and also so the jurors can further discuss, if necessary,
potential/actual bias. There are occasions people tell you that they mistrust the police or that they
or their relatives have been unjustly convicted of crimes; sometimes they say the conviction was
just and the defendant is doing well now. Overall, the judge and lawyers try to know the jurors
as best as they can to assure that when they approach the case they do it free from taint of
publicity, free from taint of personal druthers and the like. It has become obvious in recent years
that jurors approach cases differently. This is particularly so for defendants charged as felons
with guns. When the jurors somehow for whatever reason, whether they accept this crime as a
way of life and therefore don’t believe in punishment, or whether they have been swayed by the
miserable actions of some law enforcement people, such as frisking them roughly, kicking a leg
out from where it is positioned at the wall, deliberately hurting an arrestee without justification,
whatever it is, so many of our jurors, who call the police when needed, really distrust the police
and their testimony. Although jurors have told us, under oath, they will treat the officer exactly
like anyone else, the truth is, they don’t; and many have known, even before the trial begins, that
they would never accept law enforcement testimony. We know this from interviews with other
jurors after a case has mistried and angry jurors tell us, the court, the lawyers and the defendant,
that juror X entered the jury room saying, “I didn’t believe a word that officer said,” or “the
officer must have planted the gun on the defendant” (even though there was absolutely no such
testimony). Dedicated jurors are dismayed at the inability of other jurors to fulfill their duty and
examine the evidence, and their determination, instead, to mistry the case, or force an acquittal.
It is astonishing how jurors intentionally nullify a verdict. This became most noticeable after the
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O.J. Simpson case. After the Simpson verdict, it was commented by many that the amazingly
swift verdict, in a few hours only for a trial of many months, contradicted overwhelming
evidence. It is equally distressing to hear professors of the law assert that minority persons have
every right to nullify when they don’t believe the defendant should have to face justice,
conviction and punishment, even though the evidence has proven that the defendant committed
the crime, indeed, even when the defendant admits commission of the crime.
MS. PORTER: As a society then, what solutions do we have for that
problem? I mean, on a day to day basis, you’re confronted with a jury. What sort of procedures
do you use to counteract that phenomenon.
JUDGE GREEN: First of all, let me say, even before I get to my procedure, that
as a result of frequent nullifications, over and over again in every courtroom, state courts, federal
courts, in this courthouse before each judge, there are recommendations that legislation be
enacted so we can proceed with non-unanimous juries in criminal cases. As example, 11 must
vote in favor of guilt before that person can be found guilty beyond a reasonable doubt.
Suggestions like that. Or to do as other countries do, live without a jury system. It has gotten to
that point. There is such serious concern about the casual or skewed deliberations some jurors
give to cases (most jurors are earnest, most are well intentioned and try hard to render a fair
verdict on the evidence). It’s something that may well change our system of justice unless
nullification can be largely eradicated.
MS. PORTER: Why not have cameras in the courtroom?
JUDGE GREEN: The complaint all along has been that people act differently
when cameras are thrust on them in a setting where they are aware of that presence. Witnesses, it
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is feared, will either testify in a way that advances their own cause, or will testify for the camera,
for the media, for the public. There are those concerned that the witnesses might be intimidated,
may speak differently. There has always been this concern, and there is some justification that
the witness may act differently, but today cameras can be positioned so they are really not
obtrusive. For the first few moments and until you adjust, certainly you are more careful with
your choice of words. It is a little less spontaneous. There may even be some acting. It does,
briefly, alter the position of a person. Afterwards, you forget the camera is present and act
normally, probably too normally. But, even those (as I) who favored cameras in the courtroom,
almost all say no, not yet, until the climate has changed. There is a deep concern about the
jurors. Our jurors want to know that they have security when they go home, that people will not
target them as one seen on television the night before as part of the jury coming and going from
X’s trial. There are many concerns, and it may well be that the jurors also act to the cameras, to a
lesser degree, when they sense the camera beam. This has happened in state courts where
cameras are used. The jurors are initially entranced with the idea that a camera is being trained
on them, and they smile, arch eyebrows, even put on makeup in front of the camera. They are
not then listening attentively. Then I think many do forget the cameras, or at least are not
constantly aware of it. But cameras do impact; they also could, someday, be used in such a
manner to really illuminate court proceedings, and that could be very healthy. But I did stray a
good deal from the question asked, what procedures do I take to try and prevent jury nullification
and to work with that phenomenon that exists. There is so little a judge can do to prevent jury
nullification other than continue to press ask the questions, to probe to the point where it’s not
just the answer the person gives, but it’s the body language, the manner in which it’s given, it’s the
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context to make you determine whether this is a juror appropriate to sit in judgment on this
particular matter. In high-profile cases, in particular, because of their nature and the principals,
and the need to weed out those who have been unduly influenced by their knowledge of this case,
it’s not uncommon to prepare a jury questionnaire in great detail. So much can be learned about a
potential juror, about the types of activities that he/she engages in that may give a clue to the
juror’s disposition, and what the juror’s attitude towards a particular charge might be, especially
in a criminal case. The most illustrative example, of course, is the death penalty case earlier
mentioned.
(TAPE 11 A)
MS. PORTER: Continuation of an interview being conducted on behalf of the
Oral History Project of the District of Columbia Circuit. The interviewee is Judge Joyce Hens
Green, the interviewer is Jennifer Porter. The interview is taking place in the judge’s chambers
on Sunday, March 11, 2001, and it is now 2:00 p.m.
JUDGE GREEN: The point I make is we must probe, we must examine, we
must ask sensitive questions to ascertain whether personal philosophies or beliefs will,
nonetheless, allow the jurors to make a fair and reasoned judgment in the case under the evidence
and the law. The reason for asking if any judgment can be made is that jurors of certain religions
(Jehovah’s Witnesses, among others) believe that they cannot make a judgment because only God
can make a judgment, and so, if selected as a juror, that person will never participate in a verdict.
It is a serious, sensitive question. We accept the representation of the individual without further
inquiry and that potential juror is dismissed from service.
MS. PORTER: You mentioned that there is some interest in, I guess in
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Congress, in having juries that don’t make unanimous decisions, or having juries with less than
12 people. Doesn’t this raise interesting constitutional questions?
JUDGE GREEN: Of course. The matter must be examined thoroughly. I’m not
certain Congress has anything yet pending, but certainly lawyers are advocating such legislation.
There are law review articles about this, and it is in criminal cases, of course, where the greatest
concern exists about one juror less than the 12 we have always had. In a civil case, by rule of
court, for years now (we don’t have alternate jurors anymore in a civil case) we can select up to
12 jurors for a civil case, but no less than six, unless the parties have so agreed. Five, with the
parties’ consent, can render the verdict. So we already have accepted inroads on jury selection.
MS. PORTER: There was something you said a few minutes ago, this is sort
of suggestive of the topic you and I haven’t really touched on, and that was jurors being
concerned about their own safety. Is that a relatively new phenomenon as well in your
experience?
JUDGE GREEN: I’ve known of this concern for years, perhaps a decade and a
half. A note will be sent from the jurors who have already been admonished, when sent out to
deliberate, to not tell us how you are voting, to not tell us how you are split, just tell us whether
and when you are ready to give us a unanimous decision, yes or no. Then a note arrives saying a
unanimous decision has been reached, and asking if the Marshals may accompany the jurors to
their bus, to their homes, whatever the request is. To the court, that is a signal that the verdict is
a conviction. I had one note that came in and said exactly that, and added, “We know that the
defendant’s friends are in the courtroom watching us.” They were right. The defendant’s friends
were studying the jurors’ faces intently, one by one. I put up a screen so that participants had full
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view of all persons who sat in a certain area and most could see the jurors from their locations. I
suspected the four, with locked arms and sitting closely side by side, were friends of the
defendant. In fact, I talked to the lawyers during a recess and opined that, if those are friends of
the defendant the jury seems very uncomfortable, I would suggest they are not doing the
defendant any good being in here and glaring at the jury, but I’m not going to ask them to leave,
since they are quiet. If the defendant invited them in here or they are watching him, we’ll see
what happens. But since the jurors appear concerned, I am ordering that a half screen be placed,
unobtrusively, to block the jurors from the view of the four. Safety is always a concern. It takes
courage to be a witness in a criminal case, it takes courage for the prosecution, and also for the
defense. It certainly takes courage to be a juror in a case where horrible things have happened
and the defendant is accused of doing these acts. As a juror, you must make the decision whether
or not these matters did happen, and, if so, whether this defendant perpetrated the charged crime.
Think how difficult it is for a juror to convict when that juror must return to the community
where the action happened or where the defendant and his family live. Most jurors have read
about “contracts” put on persons during the course of a trial and witnesses who have been
assassinated before or after testimony. It takes heroism these days to do honorable service as a
juror.
MS. PORTER: One of the other issues that I think we need to address here is
the sentencing guidelines, which of course have affected criminal cases. How do you as a judge
feel about the sentencing guidelines and how do they affect your work on a day to day basis?
JUDGE GREEN: It is astonishing to recognize that the sentencing guidelines
have been with us only since 1987; it is less than 14 years since they went into effect. We deal
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with them daily and in the case of each defendant who is convicted, whether through plea or
through trial, that defendant is impacted by the guidelines. When the “guidelines” were
promulgated, many judges were certain they were unconstitutional. Indeed, I felt so strongly
about the unconstitutionality of these draconian guidelines, that when the Supreme Court was
considering the very constitutionality of the guidelines, I began to give written judgments in two
forms, both appearing on the same judgment page. One judgment was the sentence I would give
if unencumbered, the second said, “Should the Supreme Court deem that the guidelines are
constitutional, then under the guidelines your sentence will be – ” It was generally a harsher
sentence, but not always. The dual judgment avoided future transport of the defendants back and
forth from the institution where they were incarcerated, also eliminating the safety concerns and
the separation of the defendants from the continuity of prison life (education, health needs,
work). This assisted the efficiency of the process and overall helped the defendant. Of course,
the Supreme Court did declare the guidelines constitutional. While many judges continued to
rebel inwardly at the injustice we believe the guidelines promoted, we have no choice but to
follow them. Let me give some background on this. The original intent of the guidelines was to
eliminate disparity in sentencing, a well intentioned goal, a noble goal, but you cannot dispense
equal justice by playing the numbers game and by using a grid, which is what we have to do.
Literally, use a grid to determine the fate of a defendant for the particular offense of which he or
she was convicted. Most judges believe that judgment and discretion and common sense and
individual application are essential when sentencing another human being, but now judges are
required to say, “Mr. Jones, the guidelines show you are in criminal category IV, the offense
level is 32; therefore, my discretion is 168-210 months. I sentence you to the lower end, 168
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months (14 years).” Departures (exceptions) from the guidelines are uncommon. The guidelines
exist because of relatively few cases where bad law was made and horrible sentences imposed,
either much too lenient or much too severe. So, to make the process uniform and to avoid
disparity, in came the sentencing guidelines at a time that the courts were confronted by a huge
influx of drug cases which absorbed the full attention of the court. In fact, the interesting statistic
I picked up the other day for our bicentennial, where I was addressing this problem with a panel I
was moderating, is that 42 percent of the young African-American males in the District of
Columbia, between the ages of 18 and 35, are under some form of criminal justice, be it, arrest,
conviction, probation (we don’t have parole anymore), or supervised release. It’s almost
impossible to consider that an accurate figure, but it is. And so, with the sentencing guidelines,
let me give you some examples of the injustice we impose daily.
MS. PORTER: I was going to hop back for a minute, Joyce, to jury
nullification. Doesn’t that 42 percent figure make it very difficult to get a jury in the District of
Columbia?
JUDGE GREEN: Of course, it is very difficult to get a jury. Not many
available 18- to 35- year olds who are African-American, to so serve. It also makes it difficult to
get a jury because many families live daily without a son, or husband, or cousin who is
incarcerated or who is awaiting trial, or who died violently. If selected as a juror, no matter how
one may try to focus on the facts and law relative to the defendant on trial, it is inevitable that
memories exist of the incarcerated or deceased relative. How does this fact impact on the
judgment of that juror? We shall never know.
MS. PORTER: Feel free to go back to the sentencing guidelines now, Joyce.
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JUDGE GREEN: Let me give you a couple examples of the unfairness of the
sentencing guidelines, and, in particular, the evil of coupling statutory mandatory minimums with
the guidelines. Let’s say there is a drug conspiracy. Common sense dictates that the leader of the
conspiracy, if convicted, would receive the harshest sentence. Under the present system of
mandatory minimums with the guidelines, the leader frequently receives a lighter sentence than
his or her co-conspirators because the leader is usually capable of providing information to law
enforcement that allows him or her to obtain a significant reduction in the sentence and a
departure if the prosecutor so requests from the statutory mandatory minimum.
MS. PORTER: Are you talking about information about people further up the
line or are they giving information about people lower down?
JUDGE GREEN: It can be both. The government does not give much credit to
a defendant who gives information about the people lower on the scale. What, understandably,
law enforcement wants are those higher and higher on the pyramid of crime. After all, it is
common to convict the top, the leader, by testimony from his former cohorts who go undercover
and/or inform, and the co-conspirators, in turn, for this cooperation in bringing the leader to trial
or plea, will be rewarded by a lesser sentence recommended by the prosecution. This is clearly a
useful tool of law enforcement. The knowledge of mandatory minimums and guidelines, and the
skill in application, by the preparation of the indictment, predicts the future of the case. The
charge by the prosecution sets the parameters for trial or for plea negotiations; it is a vital tool in
the hands of the prosecutors. All of this has removed the discretion of the judges and has
allowed the prosecutor to define the outcome. But minor persons in the same drug conspiracy
know little, if anything, and won’t be able to provide the substantial assistance required; and
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therefore won’t be eligible for a departure from the guidelines or mandatory minimum. So this
person at the bottom of the group can be incarcerated for 10 or 20 years, depending on whether
there has been a prior conviction and, more importantly, the quantity of the drugs involved in
distribution or possessed with intent to distribute. This could be (and has been) a one time
courier found in possession of a large quantity of drugs charged with possession with intent to
distribute. This means a mandatory minimum of 10 years or 20 years. This could be a first
offender who, at age 18, is going to spend the next 20 years in a federal institution. Judges
confront this type of situation frequently. The guidelines say incarceration is for punishment and
warehousing, not rehabilitation. I remain hugely concerned, not only about the injustice we are
required to impose, but for the future of my children, grandchildren, and yours, who will
someday encounter such a defendant upon his release, not rehabilitated, unemployed, poor,
uneducated, angry, and ready to tackle society. A very dangerous situation we have fostered
here. One of my colleagues, known as a law and order judge, a former U.S. Attorney, told the
judges he was brought to tears by the uneven justice he had to administer. He described a
scenario much like the one I’ve just outlined. He related how he had to turn away from the
audience in the courtroom and face the wall so that no one would see the tears trickling down his
face as he had to impose a very heavy sentence on the lowest member of the conspiracy, while he
gave more lenient sentences to others at, or near, the top of this conspiracy. We do this everyday;
we know it is unjust. It is so difficult for a judge to ladle out sentences you are absolutely certain
are unfair, but you have no choice, you must follow the law. Very sad, very disturbing.
MS. PORTER: Is there any movement to reconsider the sentencing
guidelines, politically at least?
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JUDGE GREEN: Oh you hear about “reform” every once in a while, that they’ll
get rid of the mandatory minimums or lessen the terms, that they will do something about these
guidelines, but there have been few changes downward, only upward, and more severe. The
construction of penitentiaries continues. Most judges in senior status (who can select their
categories of cases) go out of the criminal draw because of the sentencing problems because they
can no longer stomach what they are compelled to do in sentencing. And there are judges who
will try the criminal case and insist that another judge sentence if there is a conviction. I
inherited the case of Charles Campbell from Judge Oberdorfer, who recused because he felt so
strongly that way. Charles Campbell had a record, was a drug addict in his forties, who received
a piece of crack (he had cooked crack from powdered cocaine) as reward for his cooking role in
this drug distribution conspiracy. The leaders were sentenced, as they should have been, to long
terms; Campbell had to receive 20 years to life. Judge Oberdorfer unsuccessfully tried to depart.
I wrote an opinion deploring the sentence I had to impose. President Clinton reduced the term to
time served (six years). Campbell was freed appropriately, but still serves the time of release I
had also imposed.
MS. PORTER: We’ve talked about a number of cases where you have given
decisions that were controversial or were a source of a lot of public debate, and I assume that
many cases have been appealed, so perhaps it would be timely now to touch on the relationship
between your court and the court of appeals. How does it feel when your cases go to the court of
appeals and they disagree with you? Of course they may not disagree with you.
JUDGE GREEN: It’s kind of you to say so. In my 33 years as a judge I cannot
count the number of cases that I had, much less the number of cases I’ve had that have gone to
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the court of appeals. I cannot state the number of cases in which I have been roundly affirmed,
partially affirmed, fully reversed, partially reversed, remanded. This happens to every judge.
Overall, I’m satisfied with my record. As an aside, I will tell you what happened the very first
time I was reversed, when on the local court (and I was 99 percent plus affirmed by the D.C.
Court of Appeals, in my 11 years on the Superior Court). The lawyer for the appellant was also a
friend, and I promptly marched to my personal address cards and pulled out his card for
destruction. After I thought about it for a day or two, I returned the card to my roster list, but that
was my initial reaction to my first reversal. After that I hope I became more tempered. I have
not agreed with a negative decision of the appellate court on a number of occasions, some of my
colleagues react similarly, but more vociferously. It’s an expectation that most cases will be
appealed. Judges can’t satisfy both sides unless the case settles, and then litigants and lawyers
sometimes are only partially satisfied. The fact is we are in an adversarial system, one brings a
case against another, be it corporate, be it individual; one wins, one loses. The one that loses
usually takes the matter to the court of appeals; more often than not he is not vindicated and the
judge is. It is inevitable that there will be tension between the reviewing appellate court and the
district court. The district court is on the first line, sees the individuals and deals with the case in
progress, including minutiae. Most of the time the appellate court renders scholarly
interpretation of the law and either agrees or disagrees with the way the district judge interpreted
the law. There are times that the court of appeals overreaches when it examines and determines
the credibility of the witnesses never seen or heard. The trial judge’s evaluation of the credibility
of the witnesses he/she saw and heard (and examined in context of all other evidence) used to be
wholly accepted. So it shocked me, about 15 years ago, when a circuit appellate judge called to
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apologize for having reversed me in a case in which he had determined the credibility of the
witnesses differently than I. When I gasped and asked how can an appellate judge evaluate the
credibility of the witnesses not seen or heard, he said, “Well, there’s something novel everyday,
isn’t there?” I am still aghast about this, but I have observed it happen time and again to other
judges as I read the decisions and hear their remarks at the lunch table we share. Our court of
appeals has a very different attitude. While several of the appellate judges are friends, I never,
ever, discuss cases; I just won’t discuss a case with them which they may review some day, or on
a case which they have concluded. It makes our conversation a little sterile, but friendships can
endure this way. I firmly believe that, but it is disconcerting to read an appellate opinion which
says “X” was not in the record, or the district judge must have overlooked this sentence, when, in
fact, the district judge did examine the record, did not overlook a sentence, and this is patently
obvious when the district judge’s opinion is read. It makes a district judge wonder if her opinion
is read in the appellate court. There is no way we can defend ourselves by saying not so, not so,
appellate judge. The circuit’s opinion has issued, been sent out for publication, and distributed.
It’s over. All you can do is gnash your teeth and say, well, better day tomorrow. The district
judges certainly talk about such things among themselves, as we know what I’ve described is not
a rare occurrence. But I think in most instances appellate judges do try to “get the record
straight.” They may not have had the experiences we district court judges have had. If the
appellate judge had never been a trial judge, this does create difficulty in fully understanding the
climate in which we work, the climate in which the litigants come, the things we see (like body
language and facial expression), it’s more than just the words expressed. That assists in
perceiving credibility, in discerning facts, in evaluation of cases, in testimony to the arguments,
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in observing people approach the courtroom, in watching the ongoing asides or whispers to
others. It is impossible to make a record of every nuance, body movement and the like
(particularly when a jury is present). You would be stopping every minute to make the record,
but you do the best you can, realizing that your record is the mirror through which the court of
appeals has to view this. And so, tension will always exist. There are many times I’m grateful to
be reviewed, the best example being a death penalty case. I do not argue against the existence of
an appellate court. It is good that we have an impartial system of review. I just decry,
sometimes, the manner in which the review is approached. I have sat on courts of appeal, by
invitation, numerous times (both on the local D.C. Court of Appeals and the U.S. Court of
Appeals for the D.C. Circuit). Later, in conscience, I chose not to sit again on the appellate court.
Many times I have been asked what does happen in a trial court, how do you handle this, what
did they mean when they said this? If an informed judge is not on the panel to give that
information, then perhaps the appellate judge knows, or guesses, perhaps not.
MS. PORTER: You said in conscience that you don’t sit on the court by
designation any longer.
JUDGE GREEN: I knew you’d pick up on that. There are a couple of reasons.
One is I was asked to sit on the cases of my fellow district judges and I found that difficult. If I
could have affirmed them all at the time, not so difficult. But I found it very difficult to sit on
cases of people I know so well, and am so very fond of, but I knew so much about them that
really, it became to me a conflict. Were I to review agency cases or something neutral, no
problem. That was one concern, and the other concern was with some panels’ (certainly only
some, not all) casualness, even mockery, with which they view the district judges’ labors. We are
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asked to write opinions, we are asked to provide findings of fact in our written opinions, we are
asked to set it out so the court of appeals can truly review this. Astonishingly, some judges on
some panels I joined made it strikingly clear, unhesitatingly, right in my presence, that they had
never read the opinion of the district judge whose case they reviewed, or, if read, some laughed
about style, the judge’s family life, as well as the legal conclusion. All they had to know, they
said, was whether the district judge granted or denied relief, and what that relief was. They just
ran roughshod over the trial judge’s opinion. It was clearly a matter a judge had worked on for
days or weeks, for months sometimes, and had tried to make as clear as possible. When I would
defend the opinion, one or more circuit judge would cough and claim they don’t read those
opinions. Even if I agreed with the panel’s legal decision, I just could not accept that attitude and
the personal criticism of my fellow judges.
MS. PORTER: Well did they offer philosophical reasons for not doing that?
Was it part of their approach to reviewing?
JUDGE GREEN: It was, in effect, who cares, unimportant. It was hard to deal
with. There were other cases, of course, most, where the panel judges were extraordinary,
brilliant, who knew the case intimately, considered each case thoroughly, who earnestly strived to
give the fairest understanding of the law to that particular case they were reviewing. And when
they revised, they did not cast snide remarks. You had to respect and honor those judges. Also,
when I was invited to sit and did, it was for four days at a stretch; that meant 16 cases on the
panels that I sat on for years. I was asked to do this often and selected to write the opinions for
several cases, sometimes only the unpublished opinions, and on occasion the full opinion. It
takes an incredible amount of time because our district court caseload doesn’t go away. We have
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an independent calendar that I’ll address later, if you want me to, and this means that nobody else
is going to take over the cases when you’re not there. So at the end of a long day on the court of
appeals, I’d return to chambers, work on my district court cases, go back the next day to the court
of appeals, and so on. And while I appreciated both activities, I am a trial judge in deed and in
spirit, and ever shall be.
MS. PORTER: These were only D.C. Circuit cases? So there isn’t any place
– since you mentioned before you had a problem sitting on cases that some of your close
colleagues on this court had ruled on – do you get around that problem if you sit by designation
on some other circuit?
(TAPE 11 B)
JUDGE GREEN: To sit in another circuit on cases of their trial judges
(particularly if I don’t know them) wouldn’t be too great a problem. Yes, I could request to serve
elsewhere, or if asked by the appropriate committee to serve temporarily in a jurisdiction where
vacancies exist and there is a need for judges, I could readily do so. I knew very well the people
who chaired those committees. I would have been assigned wherever I may have chosen to be
had this been my inclination.
MS. PORTER: We’ve talked about the court of appeals. In your time as a
judge did you have cases go to the Supreme Court?
JUDGE GREEN: I did. I had a number of cases that went to the Supreme
Court, but will mention only a few. In 1981, a decision implicated both banking law and
administrative law. A.G. Becker, Inc. v. The Board of Governors of the Federal Reserve System,
cited as 519 F. Supp. 602, was reversed by the circuit court at 693 F.2d 136, and the Supreme
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Court reversed the circuit court (6-3) in 468 U.S. 137 (1984). The case was a challenge to the
efforts of a state commercial bank to enter the business of selling third party commercial paper,
requiring interpretation of the Banking Act of 1933 (Glass Steagall Act), legislation enacted to
restore public confidence in the financial markets at the time of the nation’s Great Depression.
The Supreme Court agreed with my decision that commercial paper fell within the plain language
of the Act and inclusion of commercial paper was fully consistent with the Act’s purposes.
Commercial paper was held to be a “security” under the Act. Times have changed; the result
would be different today. In 1988 public interest groups filed suit against the U.S. Department of
Justice seeking declaratory and injunctive relief in connection with the Department’s
longstanding use of the American Bar Association’s federal judiciary committee for evaluations
of the qualifications of nominees for federal judgeships. Washington Legal Foundation v. U.S.
Department of Justice, 691 F. Supp. 483, affirmed, 491 U.S. 440 (1989), 8-0. The circuit court
was bypassed and the case taken directly by the Supreme Court, unlike its action recently in the
Microsoft case. The ABA’s investigations, reports and votes on potential nominees are kept
confidential, although its rating of a particular candidate is made public if he or she is in fact
nominated. The public interest groups had sought, and been denied, the names of the potential
nominees and the reports and minutes of the ABA’s meetings. I ruled that the ABA committee
was an “advisory committee” under the Federal Advisory Committee Act (FACA), which
requires notice of the meetings, open meetings, and the availability of its reports and minutes to
the public, but that “FACA cannot constitutionally be applied to the ABA committee because to
do so would violate the express separation of nomination and consent powers set forth in Article
11 of the Constitution and because no overriding congressional interest in applying FACA to the
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ABA committee has been demonstrated.” Justice Brennan, on behalf of the Court, concluded
that this was a close case, with competing arguments based on FACA’s text and legislative
history both plausible. Nonetheless, the Court held that that background “tend(ed) to show” that
Congress did not intend FACA to apply to the Justice Department’s confidential solicitation of
ABA views and “sound sense counsels adherence to our rule of caution. Our unwillingness to
resolve important constitutional questions unnecessarily thus solidifies our conviction that FACA
is inapplicable.” With that conclusion, I was affirmed. This certainly has much interest since
President Bush has indicated his intention to not use the ABA in any respect in his selection of
federal judicial nominees. As you can see, Jenny, I have gathered some of the opinions so that I
can recite more accurately and quote exactly, when appropriate. This aids materially, as I recall
the past 22 years of judging in the U.S. District Court. The case of Hechinger v. Metropolitan
Washington Airports Authority, had a long relationship with the courts. In 1987 the Secretary of
Transportation (Elizabeth Dole) entered into a long-term lease of the Washington National and
Dulles International Airports to the Metropolitan Washington Airports Authority, an independent
regional authority created 2 years earlier by compact between the State of Virginia and the
District of Columbia. Prior to this time, the airports had been operated by the federal
government. Congress conditioned the lease on the Authority’s establishment of a Board of
Review consisting of nine Members of Congress. Requirements included the board’s
consideration and approval of most of the work of the Authority. This, the Supreme Court held
in 1991, reflected that the board was vested with power that violated the constitutional doctrine
of separation of powers. Six months later Congress enacted amendments that effected major
changes in the composition and powers of the board. In 1994 I held that the amended Act was
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unconstitutional (again) in that the major changes continued to permit the board to exercise
impermissible control over the Authority, 845 F. Supp. 902. Circuit Judge James Buckley
(former U.S. Senator from New York) wrote the court of appeals opinion, 36 F.3d 97, affirming
my ruling that the board continued to be an agent of Congress in a sufficient exercise of federal
power to violate the separation of powers doctrine. In the rapidly evolving area of employment
law, and in particular, employment discrimination law, I was gratified that Judge Harry Edwards,
senior on the panel and also in the majority, recognized my enthusiasm about the case and
suggested I author the opinion for the circuit court on which I was sitting by designation. Judge
Williams wrote the dissent. Hopkins v. Price Waterhouse, 825 F.2d 458 (1987). Judge Gerhard
Gesell, my colleague on the district court, had been the trial judge. (In large part, he was
affirmed, but never could stop twitting me subsequently about the relatively minor issues where
he had to be reversed.) This was the case of a female manager at one of the nation’s “Big 8”
accounting firms, who had generated more business for her company and billed more hours than
any of the other 87 candidates for partnership, but was, nonetheless, denied partnership.
Comments from the evaluating partners centered on her difficulties with staff and her overly
aggressive, unduly harsh impatience with staff and her demanding manner. A number of these
complaints were couched in terms of her sex. We held (2-1) that ample evidence supported
finding that the partnership selection process was impermissibly infected by stereotypical
attitudes towards female candidates; Ann Hopkins’ showing that she was treated less favorably
than male candidates because of her sex was sufficient to establish discriminatory motive, and
the gender stereotyping played a significant role in blocking her admission to partnership. We
ruled further that the partnership failed to demonstrate by clear and convincing evidence that
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impermissible bias was not the determinative factor in denial of partnership. We concluded by
holding that the denial of partnership and the failure to renominate her for partner amounted to
constructive discharge, entitling her to compensation for the period between partnership denial
and her eventual resignation. One of my proudest moments came when the Circuit Judge Ruth
Bader Ginsburg (not on the panel, but who had received a copy of the draft opinion circulated
among all non panel members, as is customary) telephoned me at home in excitement to
enthusiastically comment that I had advanced the state of employment discrimination law
“hugely.” To hear this from such a respected world authority in this area of law, who was also a
good friend, had me dancing on clouds. The clouds separated a bit, bringing me to earth, when
the Supreme Court (J. Brennan), 6-3, reversed on the burden of proof required by the employer,
ruling that since the lower courts required Price Waterhouse to make its proof by clear and
convincing evidence, we had not determined whether Price Waterhouse had proved by the less
stringent standard, preponderance of the evidence, that it would have placed Hopkins’ candidacy
on hold even if it had not permitted sex-linked evaluations to play a part in the decision making
process. The case was remanded for that purpose under the preponderance standard. Other than
which burden of proof was the correct one, my opinion advancing the law was fully approved
and became the law of the land. Then Congress, lobbied by industry, changed the sex
discrimination part of employment law, in large part (the legislative hearings reflect) due to the
Price Waterhouse case.
MS. PORTER: You had other discrimination cases.
JUDGE GREEN: In 1997 I ruled that a temporary employment agency could be
held jointly liable under Title VII if it knows or should have known of discriminatory action by
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its client and failed to take corrective action. Caldwell v. Service Master and Norell Temporary
Services, 966 F. Supp. 33, issued in 1997. It was not appealed and has been cited as the leading
case in this area, EEOC Policy Guidance on Contingent Workers, December 1997. Williams v.
District of Columbia, 916 F. Supp. 1 (1996) (I know I’m going back and forth on dates here)
involved a female District of Columbia correctional guard who brought action against the District
of Columbia alleging sexual harassment by her supervisor in violation of Title VII and
deprivation of her Fifth Amendment rights. She asserted many things: assault, battery, negligent
training, intentional infliction of emotional distress. I granted in part and denied in part the
motion to dismiss for failure to state a claim. But the important part of the case, for advancement
of the law, in the first such ruling in the District of Columbia, is that Title VII applies to cases
involving sexual harassment by a supervisor of the same sex. There had been other decisions
reaching (impliedly or in dicta) the same conclusion, that same sex sexual harassment was
actionable under Title VII, as, for example, a 1995 case in the Seventh Circuit, but Williams was
the first from our jurisdiction. Essentially I held that, as is obvious, Title VII broadly prohibits
all forms of sex discrimination, this includes sexual harassment, and I found that Title VII made
no distinction based on sexual orientation. The determinative question is not the orientation of
the harasser, but whether the sexual harassment would have occurred but for the gender of the
victim. So, I wrote that, absent compelling and contrary legislative history, federal courts were
obligated to apply statutes as written. Title VII is written to protect victims of sexual harassment
who are harassed because of their sex. There is no legislative history that suggests that victims of
sexual harassment must be sexually harassed by the opposite sex before they may invoke the
protections of Title VII. Had Congress intended to insulate sexual harassers from liability, as
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long as those sexual harassers selected their victims carefully, not only should Congress have
spoken more clearly, it should at least have said something. (laughter) Since this decision, the
Supreme Court, opining on another case, has spoken in agreement. Once memory is opened a
bit, it is swept open wider and wider as thoughts brim over, each evoking others. Of course, here
were so many other cases important to the nation, to the litigants, to the judiciary and to me. But
this oral history is already far too lengthy and must come, soon, to its close.
MS. PORTER: Apart from being a judge of the district court in the District of
Columbia, you’ve also been appointed to the Foreign Intelligence Surveillance Court. Can you
explain what that court is and how you came to be appointed to it?
JUDGE GREEN: The U.S. Foreign Intelligence Surveillance Court (FISA)
reviews applications made by a federal officer, in writing and under oath (heavily scrutinized for
classification as top secret, etc.), for electronic surveillance anywhere in the United States,
specifically setting forth the mode of surveillance requested, the precise place and target of the
surveillance and the anticipated duration. The application requires the approval of the Attorney
General (often the federal officer and applicant and Justice Department lawyer must fly to
wherever the Attorney General may be that day for the essential signature), and the Attorney
General must certify that the application satisfies the statutory criteria and that this requested
order is vital to national security and/or involves international terrorism. Like certifications must
be attached from the directors of our various law enforcement agencies. With complete history
of the matter before the court, including results of the most recent surveillance, the most recent
facts known about the target, and an explanation of why the surveillance is being requested this
time (or, if so, for the first time), the judge, if she or he finds probable cause for the issuance of
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the order, enters an ex parte order approving, modifying or denying the application. If there is
denial of the application, the case can be appealed to the three judges comprising the court of
review, or the application can be withdrawn. A target is a foreign power or an individual agent
of that foreign power. The orders are for one year, renewable as appropriate, if the target is a
foreign power; for an individual agent of a foreign power, the order expires after 90 days, unless
renewed. Each renewal is by application with the same safeguards and criteria already noted.
Essentially, and the statute controls, electronic surveillance includes the acquisition by an
electronic, mechanical or other surveillance device, of the contents of any wire or radio
communication sent by or intended to be received by a known U.S. person in the U.S.; or to or
from a person in the U.S. No information acquired in this manner shall be disclosed for law
enforcement purposes unless for use in a criminal proceeding with advance authorization of the
Attorney General. If any of the gathered information is to be used in a criminal trial, the
aggrieved person must be notified of this by the government and can file a motion to suppress
such evidence obtained or derived from such electronic surveillance. That district court reviews
the matter, in camera and ex parte, and makes a determination. If the motion to suppress is
denied, that becomes the subject of review before a circuit court of appeals. All circuits which
have ruled, as have most, on the constitutionality of the procedures and the particular order at
issue in these cases, have found the procedures constitutional and to be valid. The Supreme
Court has never granted cert. There is so much curiosity about this “secret court” that I have
partially described the operations of FISA. All I have related, and more, can be found at 50
U.S.C. § 1805, et seq. For those who are even more interested, there are quite a number of
reported cases throughout the nation which relate an idea of the scope of the activities (these
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have been well publicized criminal cases against spies, IRA, a state murder case (either the Sixth
or Eighth Circuit had this fascinating matter). The media, also, in addition to the above cases,
has often pronounced the involvement of FISA when it becomes known that a defendant has
been so targeted.
MS. PORTER: So, for example, Aldridge Ames or Walker or Jonathan
Pollack, these are names that have been in the press in recent years as people who spied for
foreign powers.
JUDGE GREEN: Right. When I say right, I cannot confirm or deny, everything
you suggest, save for one. Truly, there is little I can talk about concerning the court. I can tell
you what the statute says. I can tell you that there are seven judges who comprise this national
court, although we sit individually to review and hear applications. I can tell you that the
appointment is a maximum of seven years; a judge is not eligible for redesignation, and there are
shorter appointments when one replaces a judge who is unable to complete the term, and that
there is but one judge from any given judicial district at a time. The appointments are made by
the Chief Justice of the United States and the Federal Bureau of Investigation performs an intense
investigation taking months, a far more invasive and probing investigation than other federal
judicial appointments.
MS. PORTER: You mean the FBI is vetting judges to see whether they can
be appointed to this court?
JUDGE GREEN: They examine every particular of your life back to birth, your
siblings, your relatives, your parents, your friends, your husband, every association you ever had.
I had so many I listed them by decade and had to confess then that probably 55 years ago boys
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were not permitted to join the Girl Scouts. I was relieved to share that the Women’s Bar did have
(associate) male members. The investigation is extraordinarily detailed, I’ll come to that in a
moment.
MS. PORTER: And the Chief Justice makes these appointments on his own?
JUDGE GREEN: He makes these appointments. They’re made from sitting
district judges who have already been confirmed by the United States Senate. I received a call in
1988, from Chief Justice Rehnquist, asking if I would consider serving on this court. I was
completely surprised. I had no idea there was a vacancy, I had no idea that I was under
consideration for that vacancy. He asked if I knew about the court. I paused and when I said,
“I’m a quick study,” he laughed heartily. The Chief asked if there would be any hidden reason I
couldn’t serve. He said that when I was formally appointed it would become the most important
matter I could ever do as a federal district judge, i.e., preserving the national security of our
country and protecting us from international terrorism. And while I certainly couldn’t disagree, I
would like to think that I have done a few other important things along the way, and perhaps
moved justice slightly forward with all these 33 years in the judiciary. Nonetheless, I was
humbled with the opportunity and, of course, accepted. The next day, three agents of the Federal
Bureau of Investigation gathered in chambers to examine my life minutely. I answered inquiry
upon inquiry. They took my fingerprints, unsuccessfully. They returned the following day and
took my fingerprints, again unsuccessfully. The third time, when they once again came to take
my fingerprints, I delicately suggested that we let the United States Marshals in this courthouse,
who are very conversant with taking fingerprints, do the job. We went downstairs, the Marshals
performed and apparently I passed muster. Indeed, every part of my hand was utilized for this
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purpose. I ghoulishly told my kids that if anything happened to me, and a sliver of my palm
passed in the wind, they could say, “There goes mom!” The investigation, as I indicated, was so
detailed. It was important the FBI learn of every foreign country I had ever gone to at any time in
my life, and for how long. This proved challenging, since there was a period before I became a
judge that my husband and I, every year, would travel with the D.C. Bar Association, for perhaps
five days, to some foreign country, get a little bit of legal training, but mostly vacation. I called
the bar association to ask exactly when was this trip to Canada? When was this trip to Austria?
When was this trip to the Caribbean? In any event, in 1988 I was selected as a judge of this
court. The then presiding judge (Chief Judge) was a former Congressman from a distant state
who asked if I would serve as his delegate and do the activities of the presiding judge for him. I
did that for two years, and when his term expired the Chief Justice appointed me as the presiding
judge for the balance of my term. So, I served on the FISA Court from 1988 to 1995, at the same
time not diminishing my full load in the district court. Each year, all FISA judges met with the
Chief Justice, with the Attorney General of the United States, with the head of the National
Security Agency, the Director of the CIA, the Director of the FBI, and other intelligence officials.
We used the Supreme Court facilities for this purpose and the Chief Justice always joined us for
the luncheon. There were other meetings in the interim to determine the course of action as law
was evolving and as particular matters became of special interest in our work. I cannot discuss
cases. The FISA judges have the highest security clearance, the same security the President has.
It was sort of a downer and an upper to learn this, because I always thought I had the highest
security as a district court judge and then found out I didn’t. But then I got it. So, it was one of
those things that one learns very quickly to adjust to. It was an enormous honor to serve. People
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ask whether I received extra pay for this; the answer is no, just the honor of being able to be on
duty for 24 hours a day, seven days a week, for seven years. Since I was Chief Judge and
handled all emergencies for the U.S. (and there were so many!), I always advised where I was
going, how I could be reached, whether I was on vacation or even when I left this jurisdiction for
a day or two. If an emergency arose, which it always seemed to do, I would be available, or
another judge in the immediate vicinity or close by could be available. If not, they would have to
locate another FISA judge to do duty. When the Gulf War broke out, I was in North Carolina at
Duck, on vacation with the family. When I heard about the happening, I knew that the court
would be in some manner most likely implicated, and, therefore, I checked with Justice (from
where all applications flowed) to see if my services were needed; the response was it was too
hard to get to Duck, so instead the agents were going to go to Minnesota, to Judge Devitt, a FISA
judge. But there were cases where it was so imperative that the most sensitive security be in
effect that I handled exclusively. I assigned my judges for periods of time to come to
Washington so that one judge was here twice a month, every month of the year, to handle
assignment of cases that built up over the intervening period. Some cases have to be renewed
periodically, depending on the nature of the case; others less frequently, and others were new or
not renewed. One of the things I am most proud of was requiring the intelligence forces to be
absolutely current with information provided. I had no objection (in fact I encouraged) to
inclusion of the details of the past, before the present application was made, but it was important
to know what had occurred since the last application was granted. While our decisions are made
on probable cause, which is not an exacting standard, I wanted to be certain that the information
was very much the kind of thing looked for when a judge is asked to authorize a search warrant.
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All of the applicants who provided this information are sworn, always accompanied by a Justice
Department lawyer who had helped prepare the application and the papers. In this way,
questions could be asked both of the affiant as well as the lawyers. The intelligence service
requesting the application, as example, the FBI, the Director, would have to sign and certify
under oath that the order requested was necessary to national security and/or for protection from
international terrorism. I have already discussed basic procedure. I started to say that there were
cases in which it was mandatory that only as few people as possible handle the case, to lessen the
opportunity for a leak. Such a case was that of Aldrich Ames. I mention this now only because
Attorney General Janet Reno elaborated on this after that case went to conviction by plea. She
discussed my role at an awards ceremony for the Department of Justice. Since I couldn’t be
present at that ceremony, a videotape was presented with a brochure outlining my role as Chief
Judge of FISA and the particular case, which was widely circulated to thousands of Justice
employees and others. General Reno insisted on presenting me, in chambers, the Attorney
General’s Edmund Randolph Award, the top award of the Department of Justice, for my service
to the FISA Court. She told the world that I had monitored the Aldridge Ames case from
beginning to end and that it was because of my efforts that he had now come to custody and to
conviction, and that it has been a formidable and lengthy task. I guess she knew that when I was
on vacation in Dewey Beach, Delaware, as a hurricane was momentarily expected, the agent and
lawyer flew from Washington to Delaware, seeking assurance that I would be present when they
arrived. My short answer was, the police have already been here with an evacuation warning
and, if they returned and told us to leave for shelter, the agent would have to find me on the road
somewhere. I illustrate that only to say that it was important for matters that needed an
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emergency order, that I be available, and I was. I grew mightily impressed with these law
enforcement agencies, and their agents, men and women. The best I’ve ever seen: intelligent,
dedicated, hard working, geared to the goal. Often I would bake cookies and pies, and fix coffee
and iced tea, if I had sufficient notice of their impending arrival at my home. They would help
themselves to food. I would review the application, carefully, put them under oath and, if
appropriate, issue the order. Not only did I receive agency honors from the CIA, NSA and FBI,
but four of the agents, on behalf of all, personally presented a tribute of respect and affection.
They wished to inscribe thanks, also, for your blueberry pie, but their chief wouldn’t permit it.
(TAPE 12 A)
MS. PORTER: A continuation of the interview being conducted on behalf of
the Oral History Project of the District of Columbia Circuit. The interviewee is Judge Joyce
Hens Green, the interviewer is Ms. Porter; the interview is taking place on Sunday, March 11,
2001, and the time is now 4:20.
JUDGE GREEN: As you said, Ms. Porter, for obvious reasons these matters
cannot be open to public scrutiny. Indeed they have to be done in a manner where we are sure
that there is no electronic surveillance being trained on us as we do our task, as sure as anyone
can be of those matters. There is a special place, a special room in which this can be done,
which, I’ve been told, is impervious to assault, electronic or otherwise. I also worked on these
matters in locales necessary to accomplish the goal of our national security. It is obvious you
cannot say to one you believe is conducting matters detrimental to this country, come listen to
everything that I am going to say and how I found out about you and what I’m going to do to stop
you from acting out your activities. It simply can’t be done. Because I very much believe in open
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disclosure, I had serious concern about the secrecy involved. On balance, of course, the court has
to proceed in that manner. I am satisfied that everything is checked over and again as best as can
be done to minimize “listening in,” to protect civil rights. Without this confidence, I would not
have remained on the FISA Court. As of this date, I am the only woman ever appointed to this
court, and, of course, the only female Chief Judge. I am very proud to have been the first in that
regard; as time goes on there will be more. The FISA Court was created in 1978 by Executive
Order of President Jimmy Carter, in an effort to prevent the executive branch (as President Nixon
had done) from electronic surveillance on someone considered a political or personal enemy.
The FISA Court was created to be the judicial protector from unwarranted, illegal surveillance. It
performs its work magnificently. People have asked whether it had been difficult to keep the
nation’s secrets. As point of fact, it has not been at all difficult. You tell yourself that you simply
cannot talk about this to anyone, the details of what has been done through the years, why it has
been done and in what fashion. I will say, for the seven years I was a FISA judge, I believe,
without exception, that my judges and I gave correct action to our cases. I trust that history will
so show. History will not show, because we cannot reveal, the catastrophes prevented, some too
horrendous to dwell on in memory for more than seconds, by the intelligence agencies, by the
agents and by the FISA Court.
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ORAL HISTORY OF
HONORABLE JOYCE HENS GREEN
Seventh Interview – March 13, 2001
MS. PORTER: This interview is being conducted on behalf of the oral history
project of the District of Columbia Circuit. The interviewee is Judge Joyce Hens Green, the
interviewer is Jennifer Porter. The interview is taking place at the judge’s chambers on Tuesday,
March 13, 2001, and it is 11:00 a.m. We’ve wandered at great length over your activities on the
bench. Now I think we’re at a point when we can talk about some of the multitude of things that
you have done associated with being a judge, but off the bench activities. What activity would
you like to talk about first?
JUDGE GREEN: It’s difficult to parcel them. Every judge of the court is
assigned by the Chief Judge at one time or another to serve on committees, to chair committees,
to streamline the operations of the court. I have chaired several committees and a member on
more. I have been the calendar control chair. Let me explain what calendar control is. There are
numerous questions that arise as to whether a judge should maintain a particular case (that has
been randomly assigned to that judge) if the judge elects to recuse. The judge states the reason
for recusal, as example, has one share of stock of a party to a case, which is an automatic recusal,
or has a familial relationship or too close relationship with the lawyer or litigant. There are times
that the lawyers, when they come to the Clerk’s Office to file a new case, state that the case is
related to another case a particular judge has. Sometimes it’s judge shopping and sometimes the
lawyer verily believes that while the issues may have only some relationship to another, although
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the parties are different, this is nonetheless a case that could be deemed related under our rules.
If the judge to whom the case goes, by random or by related status, disagrees, that impasse has to
be resolved by the calendar control judge. Other like matters arise; and it is amazing how
frequently requests come in for the chair of that committee to resolve issues so that the cases can
be fairly assigned in the court system.
MS. PORTER: So there is no allowance made in the assignment of the case
for the complexity of a case or how long it would take?
JUDGE GREEN: Absolutely not.
MS. PORTER: You could end up with three Microsoft cases and another
judge might end up with three one-day trials.
JUDGE GREEN: You could. True. It is believed that in the statistical world,
and the law of averages, somehow all this evens out if you live long enough and share in the
work of the court long enough. But, there are times when assignments have to be adjusted,
simply because it cannot be absorbed on one judge’s calendar.
MS. PORTER: Is that done by the calendar control judge or is there some
other method for doing that?
JUDGE GREEN: Essentially it’s done by the calendar control judge with her/his
committee. In the past, we had a rule that the Chief Judge of the court, and I mention this
because application of this rule has received much attention (and criticism) recently, because of
the need for the efficiency of the court and the need for justice in the court, would be able to
specially assign a case to a given judge. That rule is no longer existent. It was a rule prevalent in
many of the courts of this nation until a few years ago when the Judicial Conference of the
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United States (the ruling body of the federal judiciary) determined that use of that rule perhaps
was no longer appropriate. The Conference suggested that the courts change their rules to
eliminate it, even though the Chief Judge retained overall powers, and duty, to promote
efficiency. The court as a whole voted to eliminate that rule several months after the
recommendation of the Judicial Conference. The normal process of the Rules Committee takes
time. By the normal process, the Rules Committee examines the issues, writes a
recommendation to the executive session of all the judges, the judges voting it up or down. In
this instance, the judges did vote to remove that rule. It is important that the public realize that
these cases, in the main, are fairly and routinely and randomly assigned. While the reasons for
recusal must be given by the district judge, unlike Supreme Court Justices who do not give the
recusal reason, those reasons are maintained internally and not disseminated to the successor
judge or to the world at large, including the litigants who filed the case. The reason is selfevident, but still let me explain. This is so it does not corrupt the thinking of the successor judge.
As example, should a recusal say: I know these parties well and one is a very dear and close
friend of mine, or I know these lawyers well, one is a very dear friend of mine, or I know these
lawyers well, and X lawyer is a fraud without credibility as to anything he ever does, that
certainly could influence the other judge. Other roles in administration of the court – I have been
the Criminal Justice Act chair. On my watch, our committee determined to interview each
lawyer. The ones who had experience and ability could do good representation were elected to
the panel from which assignments were made by the court for representation of indigent persons
in criminal cases. Our Federal Public Defender’s Office, an excellent office, clearly does not
have sufficient staff to meet the needs of the ever increasing criminal calendar. Most of our
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criminal defendants are without funds and need the services of the Criminal Justice Act panel
lawyers. The more complex a case is and the more defendants in that case, the more Criminal
Justice Act attorneys we need. In the past, these attorneys were drawn from the lists provided by
the local court, the Superior Court of the District of Columbia, because many of the attorneys
practice interchangeably in federal and local courts. We are, literally, across the street from each
other, so there is not a vast distance between us, except as to the type of cases we do; and many
of them have a similar genesis. As a consequence, a large part of the role of the Criminal Justice
Act was to screen the lawyers to assure they had such degree of legal expertise that the court
could responsibly assign the lawyer to a criminal case. The court also located and screened
lawyers who had proficiency, as example, in language, since more and more criminal defendants
speak Spanish only; therefore, we needed many attorneys we could recommend who are not only
legally skilled, but also Spanish fluent, to represent these defendants, who have trust in someone
who can speak their language, rather than always dealing with an interpreter, side by side with
the lawyer. When I chaired this committee, among its duties (enormously time consuming) was
examination and decision on the vouchers given by the defendant’s counsel to ascertain if they
were fair and appropriate fees. It was an assignment given to the judge before whom that lawyer
had appeared, but if a controversy arose, the CJA chair would resolve that conflict.
MS. PORTER: You said in those days. Has the procedure changed
somewhat now?
JUDGE GREEN: The procedure has changed. The office of the Federal Public
Defender handles all the vouchers, examining them, then advising the judges whether they
appear to be fair and appropriate, and whether or not they add up mathematically correct. While
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each judge still looks at them individually, to make that same determination, we do rely at least
on the calculations, and certainly consider the reason given by the Federal Public Defender for
agreeing or disagreeing with the lawyer’s request. So that assists us and greatly streamlines the
operation. We can more readily resolve those matters and the lawyers get paid for their
professional services more quickly. Things have changed through the years, usually for the
better.
MS. PORTER: Your membership on these committees, is this a voluntary
thing or does every judge get to serve on at least some committees?
JUDGE GREEN: Every judge, at the request and designation of the Chief Judge
of the district court, serves on one or more committees. More recently we have committees with
judges who are particularly versed in technology; those judges not versed in technology are
delighted to have those who are serve as chairs. Settling cases is of particular interest to me. It is
well known that I enjoy doing this; immodestly, I state, I do have a special aptitude for this and
take an activist role. Through the years most of my colleagues, at one time or another, have
come with cases and asked that I try to resolve them. I have attempted to do so, of course I have
not kept records of this, but the numbers are substantial and the success rate estimated at 90-95
percent. I really enjoy doing the activity and achieving a good result. I may, in another life,
come back and do more for my colleagues in the future, should they continue to want my help.
MS. PORTER: Is there a formal structure within the court for you to pursue
this interest in mediation or settling a case?
JUDGE GREEN: There is no formal structure. Another judge asks if I’d help in
the process and he advises the litigants and lawyers that I will be doing so. I have also recently
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been appointed by our Chief Judge to a committee of one to resolve disputes that might arise
through our Alternative Dispute Resolution Office and cases actively engaged in mediation. On
occasion, an impasse occurs between the mediator and the litigants (or lawyers) to such degree
that the case is in limbo or the parties are ready to give up the settlement attempt. A judge is
needed to make a ruling that will dissolve the impasse and bring the case, if possible, to
resolution.
MS. PORTER: Is this a mute function, or is it you’re just new to the function?
JUDGE GREEN: I am new to the function. It is a function that former Chief
Judge Robinson was the first to undertake. When he died I was asked to succeed that
chairmanship. I have recited just a few of the matters that have occurred through my years here
in the role of administration. Speaking of the role of administration, I might mention that we
have an Administrative Office of the United States Courts, which performs important
administrative functions for the entire federal judiciary. On a number of occasions I have been
asked to assist with select projects. One has been to work to increase the salaries of the judges,
showing reasons why the present structure is inappropriate. I’m safe to say 99 percent, if not 100
percent, of federal judges would agree there must be improvement. Our compensation is tied to
the whim of Congress. We receive the same compensation as Members of Congress, but not the
additions the Members get for office staff, supplies and other allowances. Judges will never
receive more compensation than Members, Congress has made clear, and Congress totally
controls those purse strings. It wishes to use us as a shelter for its own increase, but remains
conflicted about giving a cost of living to its Members. This is understandable. They have to be
re-elected in the House every two years and in the Senate every six years, so they are concerned
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about constituents who may well disagree that they have given themselves a raise or a cost of
living allowance. So the Members try to improve their situation in ways we cannot. There is
pending a proposition to give Members a per diem for the hardship they have in maintaining two
homes. As federal judges, we cannot give ourselves a per diem. So if Congress eventually gives
itself a per diem (as much as $25,000 to $35,000 a year, as suggested), they will get that
additional income and we will not. The income federal judges (25 to30 years experience in the
legal profession) receive is the same, or less, than many of our departing law clerks get as third
year associates in a sizeable law firm. As example: one recent law clerk received not only in
excess of my income, but also a $20,000 bonus (for being my law clerk for two years) and
$10,000 for transportation expenses. The judges never expected to be compensated to the
extraordinary degree private practices provide today, but we did have reasonable expectation
when we became federal judges to earn enough on which to comfortably raise our families,
maintain our homes and comport our lives. Judges are leaving the judiciary in greater numbers
than before, in order to earn a responsible livelihood for their families, in light of their education,
experience, and worth. Morale has declined enormously. The judiciary will fail more and more
to recruit excellent lawyers unless they are multi-millionaires. I was requested to canvass the
country, to speak on this crisis, to give media interviews, so that the public would understand the
problem, to work with the American Bar Association, the Federal Bar Association, the Federal
Judges Association, all which work for the same goal: to see that the judges will remain, with the
independence that they must have to do their work well and to have fair income. I cannot lobby
Congress, it is not my style, it is not my personality. I’m enormously uncomfortable with the
idea, but what I do is call judges around the country (and I know so many now), and ask them, in
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turn, to lobby their United States Senator or Congressperson, to acquaint them with the facts and
materials that we have prepared, for a fuller appreciation of what is happening to this country’s
federal judiciary.
MS. PORTER: You say you were asked to do this? Where did the request
come from?
JUDGE GREEN: The request came from the Director of the Administrative
Office, who works daily with the Chief Justice. The Director of the Administrative Office also
asked me recently if I would work on the judges’ special insurance problem. Judges are entitled
to purchase (we pay fully for this special life insurance, there is no contribution by the United
States to this cost of this particular insurance). If judges wish, they can purchase up to five
multiples of salary without the necessity of a physical examination and without consideration of
age, during rare open periods (which occur only every few years). Many judges take advantage
of this, creating the only estate, in most instances, for their beneficiaries. When we entered the
federal judiciary, we knew premiums literally doubled every five years, between 40 and 60 years
of age, costing thousands of dollars annually, if the judge selected the maximum multiples. But
we had paid more in our younger years than had we taken comparable private insurance, counting
on the promise to each that this doubling would cease at age 60. After that there would be no
further increases, we would continue to pay whatever the cost was age 60, $12,000 to $13,000 a
year. So, all of a sudden the rules changed and the Office of Personnel Management declared
that it was going to double rates (to $25,000 to $26,000 annually). Dozens of judges announced
they had to leave the judiciary immediately to try to get a job to pay this huge amount annually,
to provide for their heirs. Morale plummeted among the others. I was one of three judges
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assigned to this problem. At the end, the problem resolved: status quo for four years, and if any
increase later resulted, then the Administrative Office would pay the difference from the judicial
appropriation so that promises would be kept.
(TAPE 12 B)
JUDGE GREEN: More recently, in April 2001, the circuit celebrates its
Bicentennial and the 200 vibrant years of the U.S. District Court and the U.S. Court of Appeals
of the District of Columbia. Splendid discussions ensued from the panels relating our history and
looking to the future. Justice Scalia was a keynote speaker; so was Chief Justice Rehnquist.
Justice Ginsburg presented a scholarly consideration of the more illustrious cases since the
beginning of these courts. Justices Scalia and Ginsburg had served as colleagues on the circuit. I
was given the honor of moderating the only panel on the uniqueness and contribution of the
district court. Professors Resnick (Yale) and Ogletree (Harvard) were joined by Judge Bryant,
and Judith Richards Hope, Darryl Jackson and Brendan Sullivan, the latter three litigators of
national renown. This is the kind of symposium we engage in and are asked to do on behalf of
the court and community. I have done many like programs and usually enjoy the scope of the
assignment and the panelists. I have presided over the circuit’s annual Judicial Conference,
participated in panels there and elsewhere, sat on more law school moot courts than I can recall,
and have fully participated in the life of our court as we have reached out to the legal profession
and to the schools and to the community in general. My law school, George Washington
University National Law Center, established the Harold H. Greene and Joyce Hens Green
National Security Law Moot Court. For a time I judged several national competitions. One of
my favorite things is to preside over the monthly naturalization ceremonies held with great
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fanfare in the courthouse, with military presentation of the colors, the pledge of allegiance; I had
the privilege, on numerous occasions, to administer the oath to hundreds of persons and then to
greet them as fellow citizens of the United States.
MS. PORTER: I’ve heard you talk about another program that you did, the
Freedom Forum?
JUDGE GREEN: I’d like to get to that one in a moment, if I may, I just want to
sort of complete what we did strictly through this court and then I’ll come to that with pleasure.
You asked what committees I’ve been on. I’ve been on the Grievance Committee, which
examines if a lawyer, charged with derelictions, should be disbarred, suspended from practice, or
allowed to continue. This is an important function, so when we admit a lawyer to practice in this
court, we are, in effect, assuring the public that this lawyer is in good standing. For the very first
Bring Your Daughters to Work Day, now done annually, I was asked to speak to the girls and
young women who came with their mothers to observe the work they performed and to share the
rich life court work generates. Of course, all judges also talk frequently to children who arrive in
large groups to watch the court in operation. The understanding of court operations and our
system of justice is impacted by the age of those children and what they can absorb at that time,
but we try to talk or demonstrate to their level of understanding so they can appreciate what a
juror does when called for duty, what a judge does who sits in a robe up on a higher level and
why judges sit on a higher level. The questions we get from these children are extraordinary and
thought provocative. I remember a child who asked, “Is the judge just as important as the juror
or is the juror more important than the judge?” It makes you pause. It really does.
MS. PORTER: What’s the answer to that question?
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JUDGE GREEN: The answer I gave was that the jurors are judges of the facts,
the judge is the judge of the law, and so we both have equally important roles to perform and
need each other to perform those roles. An immediate and rather simplistic answer, and
certainly, in most ways, accurate. There are times that judges like to think we are a bit more
important, but, it was a wonderfully good question from a child or adult. Makes you think.
MS. PORTER: Do I get to take you to the Freedom Forum yet?
JUDGE GREEN: Yes, you do. The Chief Justice appointed me to the Judicial
Branch Committee of the Judicial Conference of the United States, and as I earlier related, the
Judicial Conference is the policy making body of the federal judiciary headed by the Chief
Justice. It is an honor to be appointed to one of these committees. Not all of the federal judges,
district or circuit, are ever appointed to so serve.
MS. PORTER: What was the purpose of the committee that you were
appointed to?
JUDGE GREEN: The purpose of the committee is its relationship with other
judges, the needs of judges, and how fulfillment of those needs truly benefits the public: our
independence, compensation, travel regulations, insurance. As example, long term insurance
policies for the federal judiciary. We perform a myriad of other tasks in looking for all matters
that will improve the status, not only of the judiciary, but also of the support staff that assists us
in the Clerk’s Office, in the Probation Office, in the Marshal’s Office. This committee has the
most direct relationship with Congress concerning the above matters and proposed legislation.
The other 14 members each had a positive relationship with a U.S. Senator (former
administrative or legislative assistant). I was the only member without such contact – no Senator
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or voting Member of the House in D.C. While I have served on this committee now for over six
years (exceeding by far the usual term), one of the questions that arose is how we can improve
our public relations. A few years ago, an idea burst forth while I was sitting at a committee
meeting, then chaired by Judge Barefoot Sanders, from Texas, that it was vital we find a way in
which we can talk to the members of the media without losing dignity and without case specific
discussion, so that the journalists would understand better our problems and we understand better
theirs. It is obvious that among their needs is the immediacy of getting a decision, dissecting it
accurately, and translating it clearly and concisely for the public, particularly in these days of the
Internet, where contents are blazed in seconds. Competition, of course, is rampant among the
media; who gets there first, and, similarly with the Internet. A big issue. We who labor over our
opinions, whether two pages or one hundred plus pages, don’t always make things absolutely
clear, particularly for lay people. I was trying to think of a way in which we could let the media
know how we do our work, how we function, why we do what we do, and to see how we could
improve, for our respective disciplines to get along better and be better understood and
appreciated, and in turn to do what we could responsibly for the media without yielding
independence in any way and maintaining dignity. My call for improved “P.R.” led immediately
to creating a subcommittee, and I was made the chair and allowed to appoint the members of my
committee. How to execute this idea? I decided to utilize the Freedom Forum, a non-partisan
organization that does not accept funds from outsiders, and deals through the grants it has
received from substantial foundations, like the Gannett Foundation. This organization created
the Newseum presently in Arlington, Virginia, soon to be located in Washington, D.C. It puts on
symposia throughout the country on matters of great interest to the reporters dealing with all
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facets of life. I called the CEO, Charles Overby, to see him about the implementation of
improved relations; he was delighted. I did visit him, we did talk about it, and he was truly
excited about the opportunity to produce a joint program with the federal judges. I considered it
my responsibility to try to bring the federal judiciary into the 21 century and beyond. A st
cooperative program of this kind had never been done in the 200 years of our history; indeed,
such thinking had been frowned upon. Using the report of the Long Range Planning Committee
of the Judicial Conference of years ago, which encouraged betterment of our relations with the
media, with the public, with the schools, with the Congress, with the executive branch, and urged
us to stimulate ways to have outreach, I went to Ralph Mecham, Director of the Administrative
Office. The word from on high was “it’s a go.” The Executive Committee, presided over by the
Chief Justice, agreed that the Judicial Conference would not only endorse the joint program, but
would contribute to its expenses, in part. I determined that the first session, hopefully of many to
come, should be a national symposium. I selected 30 federal judges from around the country of
different gender, different experience on the court, service for varying lengths of time, different
political backgrounds (as best as I could tell), different philosophies, as had been expressed in
their opinions and the like, men, women, tall, short, different races, different everything I could
possibly think of, and certainly different geographical areas of the country, because different
geographical areas have different interests and different needs, rural and urban. The reporters
wanted to have two judges for one journalist, and recruited 15 reporters to this national meeting
that we had in October 1999.
MS. PORTER: And who was the audience?
JUDGE GREEN: There was no audience, other than several non-participatory
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judges and journalists, and some administrative staff. It was a closed meeting for this first one,
to see how it materialized. The participants were the leaders and officers of the Freedom Forum,
such as John Seigenthaler (who had been very active in the Department of Justice at the time that
Robert Kennedy was the Attorney General, he had been a freedom rider in the civil rights days,
and was revered by the journalists). He acted as the roving moderator for one of our programs in
which he shot questions, certainly unrehearsed, to members of the panel, all judges and reporters
of the national media, from magazines, newspapers, television, Internet. Virtually, every judge I
asked agreed to participate in this. They were exhilarated by the idea. We talked candidly about
our existing relationship (woeful) and the need to get along. Helping each other was, after all,
constructive and an illuminating outreach to the public. Freedom Forum remains fully
committed to doing this. They want to do four programs annually, in regional areas. That’s a bit
much for the judges, so we’ve been doing two a year regionally. We’ve done one in Chicago and
another in Tennessee, we cover different circuits, sometimes two or more in combination. The
next program is scheduled for the fall in Michigan, involving district and circuit judges of the
Sixth Circuit.
MS. PORTER: But the format is still the same?
JUDGE GREEN: The format now is beginning to expand. We are very
satisfied with what is being accomplished and the judges are enamored of it. Some have advised
me they now utilize many of the suggestions that came out through this fora. You can tell I
remain highly enthusiastic. I do consider this part of my legacy. I am very proud of it, I’m proud
of the way it has been accepted and honored and now implemented, and I know, as now do so
many judges who have participated, that it has benefitted us in our work, benefitted the media,
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established a continuing dialogue and, above all, better serves the public by enhancing
understanding of our system of justice. As example, I suggested that when we write our opinions
(even though it is more work and time consuming), for those opinions which we believe will
have particular newsworthiness (and it’s not hard to discern which will and which won’t) that we
write a syllabus at the beginning of each – a short paragraph, or two or three, but as short as can
be, to highlight what the opinion says. Of course it can’t provide the nuances, it can’t provide
everything, but we have as precedent the Supreme Court of the United States that does this for its
opinions. If it’s good enough for the Supreme Court and eminently workable, it’s good enough
for us. Several judges are now doing this. The media can immediately read the syllabus without
digesting a hundred pages and promptly get this on line; it will accurately quote what we have
put down. So the media is also happy. This can work and does. Additionally, we supply the
journalists with the names and phone numbers of every judge’s chambers, of the personnel in the
judge’s chambers, the secretary in particular, or judicial assistant, who might be responding to the
telephone inquiry. We provided similar information, such as how to reach the Clerk of the Court
and the major assistants in the Clerk’s Office, so that the media can know immediately when a
case has been filed and to whom assigned. So simple, so easy to do for every court in this
country. This should be done, it’s public information, we are just putting information together in
one place, distributing it to the media and public, updating periodically. This is readily
accomplished in every area of this country, should those judges choose to do so. That’s up to
them. Some courts have undertaken educational training for the reporters at their request. What
is the difference between a state court and how it operates and a federal court? Amazingly, some
reporters who cover the federal court have told us candidly that they don’t know the difference.
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Well then, who better to tell them the answer. We can tell them that when we rule on a case that
involves search and seizure, as example, what is search and seizure, why we get into some of
these thickets and problems, what we are looking for, what is the ruling made, and what the
ruling means to the overall case and its progress to plea or trial. What are the different kinds of
cases we deal with, what types, categories, areas. Much of this is so easy for us to discuss, but
judges are loathe to get into tête-a-têtes with reporters, and they shouldn’t have these tête-a-têtes.
The important thing is to maintain independence, to maintain dignity and not divulge secrets or
sealed information.
MS. PORTER: Now that these programs are being held regionally, you
mentioned that the audience is broadening for this?
JUDGE GREEN: I’ve always looked at this as the beginning of our public
relations expansion. The audiences are broadening. We now ask selected members of the
community (school heads, bankers, chambers of commerce, mayors) to come in and be part of
the audience. Not to participate in the dialogue and the questions and the answers, but to be the
audience to share with us, upon request, their ideas how we can improve relationships and help
the public, and how we can expand the program. I leave this to the individual regional groups as
to how they do it, but the suggestion is that we include representative members of the
community, so that you have perhaps 10 to 20 different areas represented by the appropriate
persons. We also hope that some day we can expand this public relations engagement with the
media to members of the legislature in the various states in which our federal courts operate. It’s
certainly interesting for judges and journalists to deal with members of the state legislature
because a state legislator must recognize the role the federal court plays, and that sometimes
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there is an overlap with state courts and that case is then removed to the federal court.
Particularly in the District of Columbia we deal chronically, constantly, sometimes
complainingly, with Members of the United States Congress. We are in a unique position to
work with the legislators who should, indeed, witness the results of their legislation on our cases
and what happens to the litigants, and the sentencing guidelines, and the very matters we traverse
daily in substantive work, as well to note the need to fill vacancies. Also, the judges’
compensation concerns and other interests. It’s very important that we understand, not just in a
abstract way, what Members of Congress go through, the requirements they have as far as their
constituents are concerned, their needs, their concerns, their focus, their public relations, and that
they understand ours. It is important they visit our courthouse. I suggested that we have, perhaps
every two months, a breakfast with select Members of Congress who are in leadership roles, who
will better understand the courts if they come and just break bread with us.
MS. PORTER: And is that happening?
JUDGE GREEN: It hasn’t happened yet. It’s a matter that’s slow in acceptance
by the judiciary here; some would be very amenable to it, others are a little bit hesitant.
Throughout the nation in certain areas this is done, successfully and traditionally. I have been
told by one of the federal appellate judges from the Utah area that in Utah they’ve been doing this
for years and that the two United States Senators and the Congressmen from Utah come regularly
to breakfast meetings with all federal judges throughout the state. I know it’s a small state, it’s
easier to gather people together, but this is done readily and with enthusiasm and each learns
something from the other. I feel strongly that if this is done so well in Utah, it is certainly worthy
to try here. I believe that if a United States Congressperson sees our courthouse, built in the days
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of President Harry Truman, and dedicated by Harry Truman (we’re talking well over 50 years
ago), he/she will understand that while we are marbled in the interior, we are crumbling (both
exterior and interior), we are cramped for space, there aren’t enough courtrooms for each judge.
We do “buddy” utilization of courtrooms, it is very hard logistically to arrange the matter. You
can imagine that if two judges have cases that start at nine o’clock in the morning and need to get
the attorneys at that time (who often are engaged in trial work elsewhere later that day), to ask
one judge to wait to begin at one o’clock in the afternoon is just defying reality. Time and energy
is wasted by all. But, to make Congressmen see this, to make them understand what we are
doing, will highlight the matters that gravely need attention. After we have first become friends
as a result of these breakfasts, understanding comes more readily. This doesn’t mean that we are
going to succeed in gaining all of the goals we have, but at least we succeed in knowing the other
and the problems that person has, and it is at minimum an adventure in education and
illumination.
MS. PORTER: The reluctance some of your colleagues feel comes from
what, is it, traditional concern that judges and the legislature should be seen to be separate or is it
the judges’ reluctance to change?
JUDGE GREEN: I think both things are correct, and it’s hard for me to isolate
because it’s never fully expressed, it’s just, well, we’re not going to get to it now. It is the Chief
Judge who must facilitate movement. That hasn’t happened, but it hopefully will someday. An
aside, as far as the Judicial Branch Committee is concerned. You will recall that I mentioned
Barefoot Sanders as the chair who appointed the subcommittee that I subsequently, and still do,
lead. The next chair was David Hansen of the Eighth Circuit who led us admirably in our
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pursuits. I must confess to a special matter in my life that Barefoot Sanders played, because he
was in the Counsel’s Office of President Lyndon Johnson, and had recognized status at the time
that I was summoned to the White House to be told that I was going to become a local judge.
Noting my excitement about the appointment to the local judiciary, he asked if I would like to
view the Oval Office and the Rose Garden, and took me on a personal tour. Years later I
encountered Judge Barefoot Sanders again, when he was a newly minted federal district judge in
Texas and I was one (almost newly minted) in the District of Columbia. We were both attending
a two-week program the Federal Judicial Center put on for newly indoctrinated judges. The
speakers were judges who had years of service in the federal judiciary, who would lecture us on
matters that could happen in the judiciary, such as how you control an unruly courtroom or one
that is demonstrating or one that has been taken over by litigants and held people hostage? What
do you do in this kind of a case? Many persons who become federal judges have never been
judges before and it is important that they be prepared for crises that will, someday, occur. The
Federal Judicial Center is unheralded, but a remarkable part of the federal judiciary, it is the
training and research center for federal judges. So Barefoot Sanders and I met again there, and
later he was my first chair when I was appointed to the Judicial Branch Committee.
MS. PORTER: That story reminds us that the judiciary is geographically
widespread, but still quite small in numbers.
JUDGE GREEN: True.
(TAPE 13 A)
MS. PORTER: This interview is being conducted on behalf of the Oral
History Project of the District of Columbia Circuit. The interviewee is Judge Joyce Hens Green,
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the interviewer is Jennifer Porter. The interview is taking place on March 13, 2001, it is now 10
past 12:00 and this is a continuation of the interview on tape 12. Over to you, Joyce.
JUDGE GREEN: One of the matters that you asked me to address, I would have
done so without being requested, is one that generated a great deal of publicity in the District of
Columbia. It is colloquially known as the Gender Bias Committee. Formally it was the Task
Force on Gender, Race and Ethnic Bias. In 1990, then Chief Judge Patricia Wald, created a
judicial Task Force to study and report to the Circuit Judicial Council on race, gender and
ethnicity in the work life of this circuit and its courts. Four judges were appointed initially to the
Task Force: Judges Ruth Bader Ginsburg, Clarence Thomas, Charles R. Richey, and this judge.
Judge Thomas served as chair, we had one meeting over the ensuing 18 months, i.e., on
Thanksgiving eve; Judge Thomas decided that there were no real issues that needed to be
developed. His approach was if something comes up in the future we will decide what to do.
MS. PORTER: How did he come to be selected as the chair of the
committee?
JUDGE GREEN: Chief Judge Wald selected the members of the committee and
appointed him chair. I was appointed chair when Judge Thomas became Justice Thomas on the
Supreme Court. I was asked to carry out the mandate that Judge Wald had established.
MS. PORTER: You took over in 1990?
JUDGE GREEN: I took over in 1991, appointed as chair by then Chief Judge
Abner Mikva; the composition of the committee also changed. The then Chief Judge of the
district court, John Garrett Penn, was appointed as a member of the committee by Chief Judge
Mikva and Judges Ginsburg and Richey continued on the Task Force. Let me tell you the rest of
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those who constituted the committee throughout the process. In 1993 Judge Ruth Bader
Ginsburg was elevated to the Supreme Court and Judge Wald, as a judge of the court (no longer
Chief Judge), and Circuit Judge Stephen Williams were appointed by Chief Judge Mikva to
round out the group. Judge Williams resigned in 1994, Chief Judge Mikva appointed himself to
the Task Force to replace Judge Williams and he joined the others: this judge, Judge Wald, Chief
Judge Penn and Judge Richey. When Judge Mikva retired in 1994, becoming counsel to
President Clinton, District Judge Friedman was appointed by Circuit Chief Judge Edwards. I
remained as chair, Judge Wald, Chief Judge Penn, Judge Richey, and Judge Friedman and I
completed the work of the Task Force. You can see that we kept losing judges to the Supreme
Court (two of them), then lost another judge to the President. It was decided in early 1992 that
we would establish two special committees to carry out substantive research for the Task Force.
I asked certain individuals, mostly professors and some active members of the bar, to co-chair
these special committees and then to recruit a number of other stellar persons to be members of
those committees. Georgetown Law Center Professors Vicki C. Jackson and Susan Deller Ross,
along with Susan Liss, a prominent member of the bar, were selected as the co-chairs of the
Special Committee on Gender, and then, working in consultation with the co-chairs, we
identified 25 members of that committee and two social science research advisors, Professors
Rita Simon of the American University and Valerie Hans of the University of Delaware, to assist.
That special committee met for the first time in September 1992 to develop a research agenda. In
December 1992, Katia Garrett, a member of the bar, assumed the position of executive director
of the Task Force. Her salary was paid by the Administrative Office of the U.S. Courts. She
performed superbly and I continue to be indebted for her care and concern. In February 1993,
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Professor Todd Petersen of George Washington National Law Center, Vanessa Ruiz, then
Deputy Corporation Counsel (who, during her service with us, became Corporation Counsel, and
then a judge of the D.C. Court of Appeals), and Vincent Cohen, Esquire, a practicing member of
the bar, were co-chairs of the Special Committee on Race and Ethnicity. Nineteen committee
members were selected for this special committee, and Dr. Bonita Young of Howard University
served as the committee’s social science research advisor. Later Vincent Cohen resigned, to be
replaced by Joseph Sellers, an outstanding member of the bar, and James E. Coleman, equally
outstanding, became the fourth co-chair a few months later. The Special Committee on Race and
Ethnicity, while meeting later than the gender committee, did amazing catchup work to complete
its report and recommendation at the same time as the Special Committee on Gender. Our Task
Force produced the first federal court’s report in the nation on race and ethnicity. We were the
second federal court in the nation on gender, the first being in California. All of the committee
members and the social science research advisors were volunteers. We numbered about 50.
Assistance was provided by approximately 100 additional volunteer attorneys, students and
others, and funding was obtained only for the position of the Task Force’s executive director,
Katia Garrett, who as the project neared conclusion, was succeeded by Virginia Sloan, who did
highly commendable work in completing the project. It must be noted that this work would
never have been completed successfully without the brilliance, courage, push and prod of Linda
Ferren, then Circuit Executive, our administrative guru, who held the hand when the going got
rough. So, essentially, we developed the research agendas throughout the process and the Task
Force judges participated in the many meetings of the two committees as the scope of the work
was discussed and established. The principal work relating to research, interviews, surveys,
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drafting reports, and the eventual development of recommendations was inspired and stimulated
by the respective co-chairs and completed largely by members of the special committees and
their research advisors. The work of prior task forces was examined to decide upon areas of
research. There were many reports, perhaps 25 in number, to draw from, addressing gender in
the courts, because the state courts produced those reports and were far ahead of the federal
courts in this examination of bias in the courts, what the perception of reality was, and whether
the courts were actually biased, however inadvertently, in attitudes towards attorneys, litigants,
witnesses, jurors, support staff. The research tools included surveys of attorneys and courthouse
employees, interviews from the judges and court managers, informational interviews with people
who worked in the federal justice system, as example, our Probation Office, our Clerk’s Office,
our court reporters, deputy clerks, attorney focus groups, employees, community members and
probationers. In addition, we developed demographic information about such matters as court
committee appointments, judicial conference invitees, Criminal Justice Act attorneys’ panel and
special master appointments, and payments and case assignments. In short, all the matters that
permeate court operations. Statistical data was obtained from published sources. A few
examples: The D.C. Circuit’s annual reports, the reports of the Sentencing Commission, the
Administrative Office, the jury office, district court, and, by request, from existing data bases,
such as the U.S. Bureau of Prisons, the D.C. Pretrial Services. At the request of Chief Judge
Mikva announced to the conference members days earlier, I presented an oral overview of the
work of the Task Force’s special committees to the judges of both courts and to the managers at
the June 1993 annual conference of the D.C. Circuit. The research underway was outlined with
future plans delineated. Several preliminary findings were also presented. Those judges who
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had most strongly expressed their disdain and distance from the project did not say a word,
although invited to do so. The Special Committee on Gender issued its preliminary report to the
Task Force at the June 1994 Circuit Judicial Conference, the primary subject of that conference,
attended by judges, lawyers, managers, academicians. At the same time the Special Committee
on Race and Ethnicity presented its status report. Panelists who opposed the reports, panelists
who saluted the reports, debated, with questions, comments and discussion from the audience.
Not a single judge openly criticized the report, although by that time the news media was writing
about the judges’ dissension. Each committee submitted draft final reports with
recommendations to the courts of the circuit by January 1995. Each judge, each unit head,
received copies with an invitation to comment. Action was taken by the Judicial Council at its
meeting on March 30, 1995. I’d like to recite the recommendations of the special committees
presented to the Judicial Council and the result. While the recommendations of each special
committee are noted, there is considerable overlap. Candidly, we eliminated important
recommendations, acknowledging that there was no possibility that all desired ones would be
accepted by majority vote of the members of the Judicial Council. Pragmatists, we moved the
matters as best we could. Perhaps another day there would be hope for the other
recommendations.
MS. PORTER: This is a backhanded way of saying that this Task Force’s
work had become controversial?
JUDGE GREEN: It had become incredibly, amazingly, horrendously,
controversial. I’d like to address that after I tell you the recommendations made by each of the
special committees and the result in the Circuit Judicial Council. The recommendations of the
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Special Committee on Gender were addressed to the D.C. Circuit’s Judicial Council (and some of
these are so simplistic): the courts should take steps on their own and work with the bar to
maintain and increase the fairness with which parties and witnesses are treated in court; the court
should take steps on their own and work with the bar to increase the fairness with which
attorneys are treated by judges and other attorneys, especially in out of court litigation settings. I
digress and say one never realizes the acrimony that attorneys display towards each other, the
venom that one hurls at the other when they come to court, even to talk to judges in chambers, to
the point that when it happens I remind them that they are guests in chambers, I will not tolerate
such acrimony, and if they cannot be civil to each other, how possibly can they fairly represent
their litigants. They then cease and desist from that appalling behavior.
MS. PORTER: Can I just divert your attention one minute? In a jurisdiction
like the District of Columbia, where it’s really quite small, the bar is quite small, did you find
people willing to talk about the behavior of your judges, for example. Was that a problem?
JUDGE GREEN: It wasn’t a problem finding loquacious and candid lawyers.
They would discuss, favorably or critically, the actions of judges, the actions of fellow attorneys,
the actions of other participants in the justice system, but never for attribution – and that is
understandable. Their very livelihoods depended on ability to not antagonize a judge. Had they
been known to have lambasted a judge as a cretin, unfair, biased, sexist, stupid, how could they
appear before such a judge and get an unbiased hearing? (laughter) We also recommended that
the court work to increase the understanding by lawyers of opportunities for service to and in the
courts and to increase the understanding among judges of the range of attorneys interested in and
qualified to provide service to the court. It was thought that not enough appointments had been
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given dispassionately to different members of the bar, and that assignments should be considered
for not only experienced, but also less experienced members of the bar (if not leadership roles, at
least roles on committees), so that they become involved in the work of the court and eventually
become chairs, if merited. We asked that the court revise its equal employment opportunity
plans for a discriminatory complaint process to provide expanded options for the resolution of
EEO disputes at a relatively informal level, to address concerns about the need for independence
and confidentiality in the complaint process. We asked that there be adoption of a formal written
policy on sexual harassment in the courthouse, to say what it is, how to prevent it, and how
recipients or supervisors should respond if it has occurred and is reported. We asked that the
court explore ways to be more supportive of the family obligations of courthouse employees,
jurors, parties, witnesses and attorneys, through part-time work and job sharing, as example,
childcare services, or sensitivity in scheduling and the enhancement of family leave policies. We
asked that the courthouse be physically safe and comfortable for all who use it, including the very
persons I’ve just recited, and for judges also. We recommended that the court improve its routine
information gathering, to make it easier periodically to assess the diverse participation in this
court system, that the court encourage educational programs for the entire court, the judges, the
employees, and that we fashion ways to assure equality and fairness to all in dealings with the
participants in the court system. We suggested that the Judicial Council establish, for a limited
time, an ad hoc advisory committee on implementation, to provide assistance to the courts in
effectuating those recommendations of the committee so addressed. As far as the
recommendations of the Special Committee on Race and Ethnicity, addressed to the Judicial
Council and its courts, we asked that the courts work to increase outreach into the minority
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communities of the District of Columbia by more widely distributing information about
employment opportunities in all areas and levels of employment of the courthouse and work to
increase access to promotional activities for all personnel by establishing and giving more
systematic and timely notice of objective requirements for available positions, clearly articulating
the process for application and selection. Similarly we recommended that the court, as we had
recommended with gender group, revise the discrimination complaint process and equal
opportunity employment plans, provide expanded options for the resolution of those disputes at
the earliest opportunity and address concerns that the current process lacked the independence
and confidentiality that was felt required for an effective complaint process. We suggested that
the court encourage the head of each office to convene regular meetings or retreats in which the
employees could ventilate and discuss the workplace tensions. We recommended that the
understanding by lawyers be increased, again very similar to the gender committee, as to
opportunities for service in the courts, to increase the awareness among judges of the range of the
attorneys interested in and, importantly, qualified to provide service to the courts. We asked that
the courts take steps on their own and work with the bar to increase the fairness with which
lawyers are treated by judges and other attorneys. We recommended that the courts consider
ways to increase the appointment of minority attorneys on the CJA panels of the district court
and the court of appeals, and insure the accessibility of the courthouse and its processes to all
those who come to the court. We asked that the court encourage providing attorneys to those
civil litigants who are unable to pay for counsel by supporting the efforts of the civil pro bono
panel to recruit additional volunteers, especially multi-lingual lawyers, in order to assure access
to the court for non-English speaking litigants as well as, of course, English speaking litigants.
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The courts should take steps on their own, we said, to work with the bar, to maintain and increase
the fairness with which everyone would be treated in the court, and should establish grievance
procedures for complaints by members of the public about what the public had told us they
considered inappropriate treatment by the judicial branch personnel, including allegations of
racial, ethnic or gender bias. The allegations of such bias were rare, it must be noted, but should
never be perceived as happening. We asked that the court and its processes, by its signs, by its
forms, by its services, make this courthouse accessible and understandable to the language
minority of the communities served by the courts and improve routine information gathering to
permit periodic assessment of that participation in the court system. We asked that the Federal
Judicial Center (or whatever was deemed the appropriate body) study the results of litigation,
such as employment discrimination cases that involve issues of race, ethnicity or gender affecting
a significant number of racial and ethnic minorities, and that the court continue to encourage
educational programs for all persons who deal within the court system, including attorneys and
judges and court employees to insure fairness, and again, an ad hoc advisory committee on
implementation to act as a resource for the committee and insure attention to the needs of the
communities by initiating a dialogue between the members of the committees and the courts. As
you can see, there was enormous overlap in conveying these recommendations, to insure fairness
and to avoid any possibility or perception of bias in the courts, racial, ethnic or gender. The
following statement was issued by Chief Judge Edwards on March 31, 1995, following the action
by the Judicial Council on these committee recommendations. It is worthy to recite the final
conclusion here, and then a brief discussion of implementation. As to those resolutions adopted
by the Judicial Council for the District of Columbia Circuit, Judge Edwards said, and I’m
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quoting, “On January 30, 1995, the Special Committee on Gender and the Special Committee on
Race and Ethnicity, both comprised of volunteer attorneys, submitted draft final reports and
recommendations to the D.C. Circuit Task Force on Gender, Race and Ethnic Bias. The reports
and recommendations were the product of major efforts of over 50 practicing attorneys and
academics. The Task Force project was initiated on January 14, 1990, and its purpose was to
take a hard look at what, if any, effects race, ethnicity or gender had on courthouse operations.
Pursuant to procedures adopted by the D.C. Circuit Judicial Council at its December 1994
meeting, the written volumes produced by the two committees were circulated to all judges and
court managers in the D.C. Circuit to afford them an opportunity to submit comments on the
recommendations prior to council action. Those comments along with comments received by the
public were collected and submitted to the members of the council for their consideration prior to
the council’s meeting on March 30, 1995. Council action on the recommendations included
adoption of four action items reflecting council policy, seven referral items covering matters
referred by the council to the courts, their Chief Judges or unit managers, as follows: As to the
action items, the Judicial Council recommended, and these were adopted, that the courts direct
the Circuit Executive and unit managers to develop strategies to insure that information about job
openings is available to all potential applicants. Two, the council recommended that the Chief
Judge must direct the Circuit Executive and unit managers to work to increase access to
promotional opportunities for all personnel by providing systematic and timely notice of job
requirements and the application and selection process. Three, the court shall take appropriate
action to insure that the courthouse is easily accessible to all who wish to use it, including jurors,
parties, attorneys and witnesses, and the Chief Judge of the circuit shall appoint a committee to
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draft a formal written policy on sexual harassment for court officials, employees, jurors,
witnesses and attorneys. Referral items: The council referred to the Chief Judges the
recommendation that existing EEO grievance procedures should be revised to provide for
informal counseling, volunteer mediation and an independent decision maker subsidiary to the
final authority of the Chief Judge. Consideration should also be given to extending grievance
procedures to include non-discrimination employment complaints and inappropriate treatment of
members of the public by court personnel. Two, the court should be asked to schedule or
participate in meetings or retreats when feasible or desirable to alleviate workplace grievances
and tensions. Three, consideration should be given by the courts to arranging, when feasible and
desirable, educational programs aimed at increasing awareness of cultural diversity and its effect
on relationships of court personnel and court users. Four, the court should widely distribute
information about the qualifications required for, the availability of, the methods of expressing
interest in court committee assignments and membership on Criminal Justice Act panels. Five,
the district court should consider the recruitment of additional attorneys fluent in relevant
languages for the district court’s civil pro bono panel.”
MS. PORTER: Those recommendations, Joyce, seem to be smaller in number
than the list that came out of the Task Force itself.
JUDGE GREEN: Unquestionably they’re small in number, but some of them do
put together several of the individual items suggested, and as I indicated earlier there was overlap
in the gender and the race and ethnicity committees. To be sure, we did not receive everything
we asked for, but under the circumstances we labored as much as could be done. Those who
presented the case to the council, as I did with former Chief Judge Wald (the other Task Force
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judges were present), did feel at the end that we had accomplished more than we thought would
happen. Since, there has been some implementation by the court following through not only on
the referral and action items approved by the Judicial Council, but also on other suggestions
emanating from the reports subsumed along the way for district court implementation. More
importantly, those who most keenly perceived bias, now express greater satisfaction and a sense
of being treated more equitably, and now are appointed to serve the court in more sizeable
numbers and in broader participation by minorities (gender, race, ethnicity). Listening to my
judges, observing them and knowing them so well, I have learned of the huge impact our study
had which has produced such positive results. It raised consciousness like never before. So, if
the Task Force did not accomplish the affirmative vote to all we recommended and would have
wished to recommend, the result has gone beyond anything we could have hoped for by
affirmative vote, and is so much more important.
MS. PORTER: So how did it become controversial and how did the
controversy affect the findings of the Task Force?
JUDGE GREEN: It is difficult to know why this project was controversial. I
can only state that some judges were so very angry, so very vocal, and vented their disassociation
appallingly. Draft reports marked “confidential” (of course, not final yet) were reported in the
newspapers as if final all too frequently. The judges of the Task Force and the committees’ cochairs perceived these happenings as “leaks.” To illustrate: Judge A, a member of the Task
Force, had opined that X, Y and Z should be included in the draft report. They were so included.
Yet, the very next day Judge A circulated to all judges (including those not yet privy to the
report, since it was merely a draft) his overall objection to the report and his special objection to
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X, Y, and Z. A copy of his remarks appeared in the newspaper that day also. Bizarre! We could
understand opposition, we could not comprehend the attitude at play. The majority of the circuit
judges strongly opposed the project, totally refusing to be part of it in any way, asserting that to
do otherwise would undercut their judicial independence and that our research, canvassing,
analyses were flawed. It was the judges, they said, that should decide how they worked, where
they worked, with whom they worked, who they appointed to special, sometimes lucrative,
assignments, and this they could do, should do and would do without consideration of gender,
race or ethnicity, because they knew that there was no bias in the courts and didn’t need a study to
tell them so, and if there was perception of bias by some, that was just perception, not scientific
data. They considered the Task Force’s work unworthy and directed their anger at its members,
and this chair, in particular. Those disassociated circuit judges were forceful in expression,
making it well known, through the media, to members of the bar and their powerful law firms,
that they considered our work ludicrous and unacceptable. It must be remembered that those
who served as co-chairs and as the volunteer lawyer members and the support staff in the main
came from those powerful law firms; many were partners. They had much to lose if they fell into
disfavor by the circuit judges. Nonetheless, each district judge on the U.S. District Court here
was determined to not let this Task Force and its work be scuttled. I had gone to each saying,
“Vote your conscience, of course. All I ask is if you can agree with any one or more of our
recommendations, that would be wonderful. I do not ask for agreement for each
recommendation. All I hope for is survival.” Each came through, voting agreement as they
believed, voting against a recommendation they could not accept. Not one district judge voted
against all recommendations. Each time I dwell on this I relive my enormous pride to be their
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colleague. This took courage. It was also known at that time that the other circuits were
scrutinizing the clamor in D.C. and they pondered whether their circuit would undertake such a
project. I received many calls from Chief Judges asking explanation, voicing concerns, and then,
usually, deciding to go forth. Interestingly, in California, the first federal circuit to accomplish
the gender report, the Chief Judge heartily encouraged the work, exhorting one and all (including
his judges) to participate for the good of the courts in the circuit and for the public we all serve.
Never once did the co-chairs, lawyers and Task Force judges (other than Judge A), our executive
director or our Circuit Executive lessen the pursuit of justice and completion of our report. I
must add this: I came from a Circuit Judicial Council meeting one day where, in mocking and
scathing terms, it was conveyed to me that there was no way in which the disassociated judges
(the majority of the circuit judges) would ever accept what was produced and that they would do
all in their power to impede and dissolve this project. I cannot discuss exactly what occurred at
this meeting since matters there are confidential and I take my oath seriously. Suffice to say that
I have not forgotten a word or action there, losing respect forever for some. I convened a
meeting of about 50 shortly thereafter. My lawyers and volunteers knew from the newspapers
the scorn and distaste theretofore; they could see on my face that something serious had
happened. I told them I knew they must have concern about their positions in the profession and
their very livelihoods, that they were associates or partners in firms regularly appearing before
the same judges who so openly detested our project. I told these lawyers that if any wanted to
resign I would ask no questions nor try to have them remain, that I would fully understand and
this would make no difference to my appreciation of their worth and the friendship developed.
Take a few days to think this over, I urged. Not one, not one person accepted the invitation to
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depart. All remained through the end, at substantial personal and professional sacrifice. We are
blessed with a brilliant and courageous bar. I shall ever be grateful.
MS. PORTER: You mentioned that there was one judge who resigned. Was
that associated with this travesty?
JUDGE GREEN: One judge, a disassociated one, no longer remained a
committee member and, as earlier noted, was replaced by Chief Judge Mikva so that we could
progress with this project. Those who remained were each of strong view, and there were
occasions, of course, when we would heartily disagree, but always with intellect and with the
intent to improve the result. Evaluating the entire canvas of our independent exploration, the
results were, overall, highly favorable to this court, which could and should do better, but was
not infested with bias and evil. We needed, in the main, to communicate better, to adjust and
improve matters to accommodate more persons and more creative ideas, to dispel perceptions
that appointment of persons and resolution of issues were not spread evenly, or fairly, among the
most qualified in the community. The perception was quite strong that minorities were not
always given, proportionately or fairly, prestigious appointments to committees, as trustees, or as
special masters, or invitations to judicial conferences which would shine reputations and honor,
business and income, to the participants. We pointed out that so often appointments were made
because the judge knew the appointee and her reputation, not because of bias, and that it was
important for the seeker of appointment to make known his availability, expertise and interest.
It’s always a two-way street; no judge wants to appoint an unknown to a valued position.
MS. PORTER: So how did they develop controversy about this?
JUDGE GREEN: The reports speak for themselves. The noted
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recommendations were ones that came from the concerted determination that these were the
primary ones really needed to advance the court and that even if we obtained a few only (we did
far better than just a few), we knew certain things would be accomplished. One other matter
before we move on, Jenny, if you please. I mention the report of the Special Committee on
Gender, reported in the Georgetown Law Journal and the report of the Special Committee on
Race and Ethnicity, reported in the George Washington Law Review. Ruth Bader Ginsburg,
among the first four members of the Task Force, wrote the foreword to the gender report in the
Georgetown Law Journal when a Supreme Court Justice. That foreword, as you might expect,
was delivered with her usual candor and directness and searching analysis. However immodest
this is for me to say, it expresses, far better than I, the tone and disservice of the swirling
controversy. Quoting: “I served as a member of the Task Force from its creation under the
leadership of then Chief Judge Patricia M. Wald, until my appointment to the Supreme Court.
The prime mover of this undertaking throughout its long course was District Judge Joyce Hens
Green. Without her intelligent leadership and caring attention the Task Force might have
capitulated to critics of its mission.” How gratified I was to read this. Justice Ginsburg
commented about the awakening consciousness of people to the prevalence of sex-based
discrimination, about the diligent and comprehensive endeavors superintended by this Task
Force to reveal the large progress that we have made since the 1970s in our perception of
discrimination and willingness to tackle its manifestations, and referring to our bound report of
both special committees (now circulated around the country, to state courts, to state bar
associations, to federal courts, to other bar associations), which she saw as “a vital contribution
to pursuit of the highest aspiration of the federal judiciary to achieve equal justice under law.”
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She viewed these separate committee studies and reports as projects that enhanced public
understanding that gender equality, racial equality, equality in ethnicity are important goals for a
nation concerned with full utilization of the talent of all of its people. Self-examination enabled
an institution to identify and devise means to eliminate the harmful effects of bias in any form.
She observed that close attention to the existence of, importantly, unconscious prejudice can
prompt and encourage those who work in the courts to listen to the voices of these people in the
minority (including gender), and to accord those proposals the respect customarily accorded to
ideas advanced by those in the majority. And finally, she stated that self-inspection heightens
appreciation, that progress does not occur automatically, but requires a concerted effort to change
habitual modes of thinking and acting.
MS. PORTER: Now this was one of the first committees, or task forces, in
the federal courts. How have other courts, other jurisdictions reacted to this report and what have
they done with it?
JUDGE GREEN: I am pleased to say that after this report was circulated, after
the tumult subsided (which eventually it did), a number of the courts that had been in limbo,
waiting to find out what resulted in the District of Columbia Circuit, began to undertake studies.
Many have been accomplished, with appointments of circuit directors to help produce reports.
Justice Sandra Day O’ Connor addressed a Ninth Circuit Judicial Conference I attended while our
project was underway. She lauded the work that circuit was doing in its gender bias study. In
short, the Ninth Circuit received approval and we received disapproval for engaging upon the
same matters as far as gender was concerned. We followed most of the same methodology as
that of the Ninth Circuit. We had assistance of those who had actively and vigorously
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participated in the Ninth Circuit’s investigation and analyses, talked to the Ninth Circuit judges
and our own judges to find out their views. And, at the end, we came to similar conclusions. But
in D.C. we had to struggle our way through discord and clamor to reach the end result.
MS. PORTER: You had mentioned that in succeeding years the district court
adopted many of the recommendations of the Task Force report. What’s happened with the Task
Force report, do you have any sense of that?
JUDGE GREEN: After circulation of the reports, I asked to be relieved of work
because there could be conflict, potentially. I had to devote more time to my cases and the FISA
Court and I was a bit exhausted by the time the reports were completed. Gratified and forever
indebted, though. So another task force was appointed by the district court, at my request, and it
saw to implementation of the recommendations, including the sex harassment policy; streamlined
EEO procedures, again for both courts, were put into being. Thereafter, we heard nothing further
about implementation. I mentioned already my deep gratitude to those people who had worked
on our special committees. The following is telling of what we endured. I looked upon our
volunteers as lawyers who had courageously served the court. In the past lawyers who served the
court in any activity, the Grievance Committee, for example, or the Civil Reform Act Committee
(incidentally, huge groups of civil reform lawyers voluntarily gave their service to civil indigents,
so there’s another result of one of the recommendations that had been made). We always gave a
reception at the court to honor those –
(TAPE 13 B)
MS. PORTER: This is the continuation of an interview with Judge Joyce
Hens Green being conducted by Jennifer Porter on March 13, 2001, and the time is 1:10 p.m.
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JUDGE GREEN: We gave receptions to laud people who had done volunteer
service for the court, serving some refreshments, as a way to show them how delighted we were
with their services; each would get a paper certificate saluting this performance and the judges
would applaud. It was a great honor for the lawyers, they loved this, to come to the court and be
praised by the court. Very understandable. I asked if there would be funds to pay for a modest
reception for our 50 volunteers. It was suggested to me that I wait a while, indefinitely, to do
this, the court of appeals was so angry in this regard. So I decided that I would take a few
thousand dollars of my money and do this right. No one could stop me from giving a reception
to honor these people whose services I had chaired. And so, I didn’t say the court was doing it. I
told the invitees that the leadership of this group was giving the reception in their honor
(although I did imply that this was the court’s reception). I used the dining room in this
courthouse, but in all other ways this reception was mine. I hired the caterers from our own
cafeteria, invited our people, and my judicial assistant and I searched for the best place to order
plaques; I wanted the very best money could buy for the seven very best co-chairs of these groups
to commend them for their efforts to equal justice under the law and volunteer service so richly
performed. I paid for everything. The lawyers and academics and judges will never know this
was not a court reception until they read this oral history, I know they are convinced the court did
this for them. God bless them. I wanted them to feel that. Then, of course, I invited each judge
who had helped us with this. I did not invite the disassociated judges. I did invite those judges
like Chief Judge Edwards, who, while he remained fairly neutral in this matter, did assist us in
bringing this to a fair and appropriate resolution. He gave a lovely impromptu talk at the
reception.
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MS. PORTER: Did you have a good turnout of judges at this reception?
JUDGE GREEN: I believe all of my district court judges attended. Some of the
circuit judges appeared, in fact, one or two “scorners” appeared who hadn’t been invited. Either
they had changed their minds or maybe they just liked a good reception. I didn’t ask. But it was
important to me to laud those who unselfishly did incredible work.
MS. PORTER: I feel somewhat privileged to have been here today. Perhaps I
should have been here yesterday when you told me that you had handed in your resignation as a
judge. So, that’s about 50 years that you have been a lawyer or a judge.
JUDGE GREEN: May I set the record straight? I have not handed in my
resignation, I have elected to take inactive senior status. There are many wondrous things about
the federal judiciary. In 1995 I availed myself of the opportunity to take senior status, one year
after becoming eligible to do so. When a federal judge has at least 15 years active service,
coupled with age of no less than 65 (thereby meeting the rule of 80), the judge vests with the
lifetime pension and can consider choices for the future. The judge can retire and take another
position or just play; the judge can take inactive senior status and thereafter return to this court
(or any in America, where assigned) for any purpose – on the bench for motions, arguments,
trials, or in chambers for settlements – if the court needs the judge. Mutuality is essential, but
easy to achieve. The inactive judge can return for a day, a week, a month or longer, and, if
needed, a staff will be supplied (since the judge has earlier yielded chambers, courtroom and
staff). The judge’s other option is to take senior status (active) in which case the judge has her
own caseload from prior active service, and, if she wishes, also has cases assigned at random in
whatever percentage desired, the only difference being that there is no requirement to accept each
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category of cases, such as criminal cases. Also, a senior judge maintains chambers, courtroom
and staff, and must handle cases with disposition of at least 25 percent that of an active judge if
she wants only one law clerk; to have two law clerks, she must do at least 50 percent of the work
of an active judge. From 1995 through June 30, 2001, I have been a senior judge in active
service, fully participating in the work of the court. For five years I did over 75 percent of the
work of active judges, some years 80 percent, as well as being active in federal judicial
administration and other activities which count towards the calculation of the percentage of
work. This last year, anticipating that I would change status soon, I have done less work, but still
far more than required. As of July 1, 2001, I shall be in senior status (inactive). I have had many
requests from lawyers and my colleagues to return to be a special master on a complex case, or to
settle a huge matter long pending. At present, my answer is not now, perhaps later, perhaps not, I
need to step back, take a deep breath, smell the roses, examine my 50 years in the law and decide
exactly what I really want to do. I am so fortunate that my health is good and I remain energetic
and happy. Certainly, I shall travel, learn the intricacies of photography (black and white), write
one or more children’s books, unravel the puzzles of the technical world, including the computer
and Palm V, babysit the younger of the ten grandchildren, dream a bit, and do whatever I want
and when. I shall continue to relish, and cherish, all of life.
MS. PORTER: I’m not a purist, Joyce. It means you’ll be sitting on a beach
and I’ll be working. In any event, here we are now looking back at 50 years of practicing law as a
lawyer and as a judge. From that prospective, the prospective of those years, what makes a good
judge?
JUDGE GREEN: Everyone will say, and rightfully so, that a judge has to have
-301-
wisdom. It’s better yet if a judge has great intellectual powers. It’s wonderful if a judge is fair in
temperament, in approach, in expression. A judge must have courage. There are so many
situations trial judges, in particular, encounter, where a judge’s very life is in peril from those of
the public who vehemently disagree with us. Look at the record where judges have been
murdered in the courtroom, in the home, or attempts at murder have been made. A judge has to
have courage and express the way it is in her opinions, whether oral or written, not to just ride
with the waves of the time, economically, politically, emotionally. You have to do what you
verily believe as an independent thinker, appointed to exercise judicial independence, but also to
follow, if appropriate and if possible, precedent. A judge has to exercise responsibilities in a way
and manner that will bring justice. That is our duty. That is our responsibility. That is our
privilege and that is our joy if we succeed. Of course we fail on occasion. As the others, I have
come to the tasks I do with my own background, much of which has been demonstrated in this
oral history, with positions on matters. I do believe most of the judges (but I’ll speak for myself
only) try very, very hard indeed to suppress unconscious thoughts, should they exist, or to
suppress conscious thoughts of druthers to decide the case this way or that way. While this may
come as a surprise, I do try to decide a case on precedent but, amazingly, there is scant precedent
for so many matters. Something new is to be learned daily. I would have left the court years ago
(to accept one of the offers to become partner, to do mediation/settlement, for $450 hourly) had I
not believed that there remained much to learn, new paths to trod, old paths to revisit, creative
thoughts to absorb and possibly implement, new adventures to experience. It is wholly my
decision to leave now, while I have health and desire to plow virgin areas and encounter exciting
challenges, hopefully to yet accomplish the golden (shall I say green?) pastures of the good and
-302-
useful life. Inactive status affords this opportunity.
MS. PORTER: Since you are leaving, now is a good time –
JUDGE GREEN: Not for three and a half months.
MS. PORTER: Well, we want to finish the tapes. You know how we are
Joyce. What advice do you have for your colleagues here or for people generally looking at the
court about things that could be done better, things you’d like to see changed?
JUDGE GREEN: Not so many things to change. Things to strengthen, to
resolve courageously to do right, under the law, to advance the law where appropriate and
essential, to not look back, constantly revisiting or second guessing, but to do your darndest and
then move forward.
MS. PORTER: Unless the court of appeals makes you –
JUDGE GREEN: Yes, unless reversal or remand interferes with smooth living,
it is important to not second guess, not carry this baggage, not impede development of the law.
Reach decisions in novel matters with consideration and determination to reach the goal of
justice. I very much want to express the blessings that have flowed from the incredible
opportunities bestowed. Save for the first at 16, I have never searched for a job or position.
People have come to me, offering opportunities, many extraordinary. I know I am one of the
luckiest on earth and have been blessed beyond expectation, beyond belief. I have treasured my
days as Superior Court judge, as United States district judge, as judge (and presiding (Chief)
Judge) of the United States Foreign Intelligence Surveillance Court. To have served the public in
this community, and nationally, to have been with such terrific colleagues, to know I have
worked with the very best in the most special court in the world. You see my unabashed bias.
-303-
My colleagues have each been different, and those very differences demonstrate the greatness of
remarkable America and how those differences have impacted on the lives of all we serve. The
judges,with whom I have served 33 years,have been appointed by different Presidents, and on the
FISA Court by different Chief Justices; they are different in gender, race and ethnicity, different
sizes and shapes, different ages, different in philosophies, politics, religion, sports, entertainment
joys, different in experience and in wisdom. These very differences, these disparities, are the
strength of our judiciary and may this ever be so. And yet, exemplifying the best, in what they do
and how they do it, all have the same goal: justice. I have great rapport with my colleagues,
despite these differences, perhaps because of these differences. Many of us see each other daily,
in the dining room where we choose to eat together, our brief “R&R,” in times of tumult and
crisis cases (or lawyers or litigants) bring. We tease and twit, in good humor, we chew and
digest each other and the court of appeals in particular. I have cherished, and will continue to do
so always, the special fortune to have worked with the universe of these remarkable able and
caring jurists, my law clerks, my extraordinary, devoted, loving judicial assistant/secretary of 19
years, Elsie Yates McClannan, the court’s support staff, including, among too many to
acknowledge here, my deputy clerk of 17 years, Joe Wood, and my court reporter, Gordon
Slodysko, who was with me for about 12 years, until I took senior status and then, as custom
dictated, was assigned to an active judge. Each of the above, is highly accomplished and
successful in personal and professional life. I have had wonderful law clerks through my years of
judicial service, each special to me. They are: Stephany Joy (1968-69), Patricia Gurne (1969-71),
Susan Low (1971-73), Martha Bindeman (1973), Nancy Schinit (1973-75), Ann O’Regan Keary
(1975-76), Anne McKinsey (1976-77), Don Hamer (1977-78), Helen Bollwerk (1978-79), Lou
-304-
Golinker (1979), Paul Bollwerk (1979-80), Joan Smiley (1979-80), Scott Michel (1980-81),
Paula Dinerstein Conrad (1980-82), John Crittenden (1981-83), Susan Blondy Fine (1982-84),
Kim Sievwright Mitchell (1983-85), John Reiman (1984-86), Joe Guerra (1985-87), Denise
Antolini (1986-88), Joe Yenouskas (1987-89), Bob Libman (1988-90), Sprightley Ryan (198-
91), Ellen Fels Berkman (1990-92), Frank Kulbaski (199- 93), Laura Clauson Ferree (1992-94),
Mike Francese (1993-95), Lynn Rhinehart (1994-96), Martha Allen Godin (1995-97), Mark Yost
(1996-98), Michael Carroll (1997-99), Theresa Fuentes (1998-2000), Catherine Clifton (1999-
2001), John Clopper (2000- 2001). Five of my former law clerks are judges, several are
professors of law, others are partners or associates in prestigious law firms, several are splendidly
serving the U.S. government, some have done so in the past and are now nurturing their young
children, one is also an Episcopal priest. We have been family, we have cared about each other;
they have made me appear far better than I am. They have my everlasting gratitude and love.
MS. PORTER: What makes a good judge?
JUDGE GREEN: To sum the characteristics of the good judge: with a look to
the past, with an understanding of today, with the promise of tomorrow, to do justice, with
courage, grace, intelligence, wisdom, judgment, vision, integrity, dignity, humility, empathy,
compassion, decency, promptness, fairness, sensitivity, firmness, and humor. Before the final
chapter in this oral history, I have to salute you, Jenny Porter, for the excellent lawyer you are,
and, more importantly, for being such a friend: caring, patient, dedicated, persevering, funny and
so wise. Time and again we’d talk and talk and then say, “Let’s put this on tape,” and an hour
later wonder “Did we tape this or did we just talk about this without taping?” It seems an eternity
since we began. And you have gently infused some discipline to my rambling and insistence on
-305-
my, “Oh, well, I have many things to do today, let’s do oral history another time.” Thank you,
thank you; I am happy you were the interviewer. I hope that the spirit of the real “Joyce Hens
Green” as daughter, wife, mother, grandmother, sister, aunt, step-mother, step-grandmother,
lawyer, judge, person, shines through this tome. I have waited to the end for these special
reflections. It is important to now talk about my husband, Sam, our children – Jim, June and
Mike – their spouses and significant other, my brother, Russ, his Clarice, and their children
(Cindy and Steve), who are now, and always will be, the beginning and end of my existence.
However wondrous the days of professional life, and they have been extraordinary, indeed, I have
never lost sight of the purpose of my life, and the influence of those most important who
constitute family. I am a judge today because of Sam, his persistence and encouragement all the
way, the love and pride he showered on me as a person and on the worth of my work, his courage
and integrity, his dignity and fairness and decency, his total unselfishness, his strength and
sensitivity to all humanity, and, unfailing good humor. I would not, nor could not, do any of this
without my husband’s support. In 1980, after months of puzzling and seemingly non-threatening
symptoms, they escalated to the point where Sam was hospitalized on an emergency basis. After
exhaustive tests and within minutes of his release days later, he was advised he had terminal
cardiomyopathy and had but three weeks to live, at maximum. There was no cure, no hope; he
would die. We were stunned. Sam insisted on secrecy, and to live his life as normally as possible
in the time left, to do whatever we could, though we were told there was nothing we could do.
Only the immediate family was told: his three children from his first marriage, Phillip (father of
two sons, and now a neurologist in Kalamazoo, Michigan), Leslie, living with her husband in
Wisconsin, who died several years later, and Kathy, now married with two daughters in Potomac,
-306-
Maryland. We told his sole living sibling. Our three children, then 13 and 14, were advised only
that he was quite ill, but we hoped for a speedy recovery. We embarked on second opinions.
Those cardiologists confirmed the diagnosis and refused to make follow-up appointments. And
so, we put on a happy face for the world. Sam worked fully and daily, we continued to be totally
involved in our children’s lives attending PTA’s, attending every sporting event they played in,
every chorus our June sang in. Our home continued as the meeting center for their friends.
Every dinner (I really cannot recall any exception, although there must have been a few) we were
joined by one or more of the children’s chums who came for his/her second dinner. In short, with
improved diet, some exercise, grit and determination, we marched on. And, miracle of miracles,
he continued to improve, baffling his physicians. Six months later, the Johns Hopkins specialist
pronounced that all symptoms had disappeared, demonstrated to us the x-rays of the grossly
enlarged heart of six months earlier and the now clearly normal heart. There was no explanation
for why Sam had been stricken with this terrible, incurable disease, and no explanation as to why
he was now free of this disease. We were warned that it could reoccur. But, in every way and
hopefully forever, he was normal and could participate in anything without restriction. We had
three years, treasuring every day even more than before, watching our children grow strong and
bright and giving and loving, proud of our efforts at work and at home. Those were incredible
years. And then, coming home from a Redskins victory, he fell unconscious at the wheel of the
car due to ventricular fibrillation. Those in cars behind observed the disaster and emergency help
arrived to briefly resuscitate and then hasten with him, and me, to the hospital where he died.
The cardiomyopathy had returned and the doctor advised that the post death-examination showed
Sam had at most ten days to live. The children and I were devastated. They were each in high
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school, 16, 16 and 17. They adored their father and had no idea of the diagnosis or that the
illness had returned (we knew it was back, but since “we” had conquered this before, we were
foolishly optimistic). I took two weeks from work, found a job for everyone on Sam’s staff, kept
his senior secretary for months to work with the clients, prepare for the close of the law practice,
find attorneys for the clients, etc. Everything to be done for our children was done: friends and
neighbors were remarkably sensitive to our crashing bewilderment and enormous loss. I came
home one day to witness 20 or more youngsters, dear friends of our children, just sitting quietly,
some holding hands, not a word, no music, just thinking and being there for June and Jim and
Mike. Tears come to my eyes as I relate this. And so, I made them go to all activities, because
their dad would have wanted this and high school experience comes but once. I went on as best
as I could without life’s support: the love of my life, my best friend. My friends, too, were
incredible; they were there. My judicial assistant/secretary, Elsie Yates McClannan, was there
always helping me through the awful years. She will be my friend forever. My brother, Russ, so
caring, so wonderful, so giving, so ready to come to the rescue, steady as a rock. He and his
brilliant Clarice, their bright and creative children, Cindy and Steve, lived quite near and
provided, as always, stability and presence in the good times and at moments of crisis. Sam’s
children (I detest the word stepchildren) were there as needed and brought caring and love,
particularly Phil, to the children and me in the darkest moments then and since in the better
times. I will not be able to fully articulate what this closeness meant, this pulling together, at the
very worst of times, and what it has meant all the times thereafter. I deeply love these people.
Their love has overflowed. Their impact has been incalculable. And so, the children and I
survived. June, mother of nine-year-old Mark, lives in Virginia and works for the Fairfax County
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Public Schools. Mike graduated from George Mason University with a degree in the
Administration of Justice; he and his wife, Mary, have three children. Jim and his wife, Beth,
live in Baltimore with their two children. Jim, an assistant states attorney, is the sole liaison
between his office and the federal system, and serves also as a Special Assistant U.S. Attorney. I
am so proud of each. At length I have brought forth very, very personal feelings. I have shared
them because if the purpose of this oral history is to discern who we are, how we came to be,
what we think and why, and who shaped our philosophy, the essence of our being, and what
makes us “tick,” you have the answer in my case. I am a judge today, I am the person I am
because of my family and the impact of each family member. I am blessed with the treasure of
their existence, their ceaseless love and caring, and the nourishment of soul. Of all, I am most
proud to have been daughter, wife, mother, grandmother, sister, aunt.
MS. PORTER: Thank you, Joyce. It’s been fun. Now let’s go and have
lunch.
Oral History of Honorable Joyce Hens Green
INDEX
Abedi, Aghan Hasan, 201
Administrative Office of the United States Courts, 266, 268-69, 28 1
Ahmed, Katherine Naw, 105
Air Florida, 176-77, 180
Albright, Harry, 208
Allende, Salvador, 174
Altman, Robert, 202,206-207
American Airlines, 177, 180-8 1
American Bar Association, 86-88,24748,267
American Civil Liberties Union (ACLU), 2 16
American Federation of Labor and the Congress of Industrial Organizations (AFL-CIO), 2 16
Ames, Aldrich, 258
Anderson, Marian, 13
Antioch Journal, 145
Antolini, Denise, 304
Arms Export Act, 170,173
Army, U. S. Department of, 194-95
Atkinson, Richard, 106
Avery, Edwina, 65
Bacon, Sylvia, 84
Baker, Dorothea, 60
Banking Act of 1933,247
Bank of Credit and Commerce International (BCCI), 200-208
Bar Association of the District of Columbia, 57-58, 63, 256
Lawyer Referral Committee, 60
minority members, 6 1-62
Public Information Committee, 58, 87
Barlow, Mary, 106-107
Barry, Desmond, 183
Battle, William, 94, 95
BCCI. See Bank of Credit and Commerce International
Beard, Edward (“Buddy”), 106
Bedell, Catherine, 155
Belson, James A., 103, 150
Berkman, Ellen Fels, 304
Bingham, Lord, 200
Blacks, 238
in Bar Association of the District of Columbia, 61-62
-Al-
lawyers, 65, 67-68
in school, 13, 14, 19
See also Minorities
BMI. See Broadcast Music, Inc.
Boeing Company, 176-77,180-8 1
Bollwerk, Helen, 129, 165, 304
Bollwerk, Paul, 165, 304
Bork, Robert, 160
Bothe, Elsbeth Levy, 44
Boudin, Michael, 160
Brennan, William J., 248, 250
Broadcast Music, Inc. (BMI), 195, 197
Bryant, Paul W. (“Bear”), 31
Bryant, William B., 67, 135, 160, 269
Bucher, Ernest, 3
Bucher, Hans, 3
Bucher, Hedy Emma, 2-3,5-6,7-8,20-21,41,47,69
Bucher, Jacob, 2-3
Bucher, Karl Walter, 3, 6-7
Buckley, James, 160,249
Buckley, William, Jr., 209-1 0
Bush, George H., 215
Bush, George W., 248
Byrd, Harry, Sr., 68,95
Cacheris, Plato, 225-26
Cairn, Bill, 60
calendar control, 26 1-63
cameras in courtroom, 232-33
Campbell, Charles, 241
Campbell, Edmund D., 93-94
Campbell, Elizabeth, 93
Carroll, Michael, 304
Carter, James E., 153, 156, 157, 171-72, 173,212,260
Carto, Willis, 209
Chile, 174-76
Christian Coalition, 2 14-1 6,2 17, 2 18-20
Christic Institute, 193-94
Christopher, Warren, 100, 10 1
Civil Rights Acts, 65, 192
Clark, Roy, 78
Clifford, Clark, 173,202, 206-207
Clifton, Catherine, 304
-A2-
Clinton, William J., 241, 281
Clopper, John, 304
Cobb, Gail, 140-41
Cohen, Vincent, 282
Colclough, Oswald, 40,41
Coleman, James E., 282
Conrad, Paula Dinerstein, 304
Contreras, Manuel, 176
Cooper, Carl, 221-22,224,226-29
Corcoran, Howard, 160
Court of General Sessions of the District of Columbia. See Superior Court of the District of
Court Reform Act, 105
Criminal Justice Act, 263-64,283,287,290
Crittenden, John, 304
Crowley, Ray, 60
Curran, Edward M., 160
C o lum bi a
Daly, Edmond T., 95, 106
death penalty, 170-71,221-24,229-30
Devitt, Edward J., 257
Dewey, Thomas, 32
Dimont, Bob, 60
District of Columbia
Administrative Procedures Act, 139
adoption statute, 143-45
Court of Appeals, 146,242,243-44
court structure, 105, 123
demonstrations, 1 10, 1 1 1 , 133-35
Superior Court. See Superior Court of the District of Columbia
Dobres, Jeanne, 44, 53, 54,64, 8 1
Dole, Elizabeth Hanford, 156,248
Dortch, John, 141-42
Duncan, Charles, 150
Duvall, Donald, 92
Dwyer, Jean, 8 1
Edwards, Harry, 160,249,28 1 , 28849,298-99
EEOC. See Equal Employment Opportunity Commission
employment discrimination, 192, 249-50, 286, 287, 288
Ennis, Bruce, 199
Environmental Protection Act, 195
Ephraim, Charles, 49
-A3-
Equal Employment Opportunity Commission (EEOC), 286,290,297
Policy Guidance on Contingent Workers, 25 1
Executive Women in Government, 154-55, 156
express advocacy, 2 16,2 17-1 9
Facciola, John M., 160
Family Law Journal, 145
Farrell, George, 183
Federal Advisory Committee Act (FACA), 247-48
Federal Bar Association, 267
Federal Election Campaign Act (FECA), 2 14,2 16-1 9
Federal Election Commission (FEC), 2 14-20
Federal Judges Association, 267
Federal Judicial Center, 279, 288
Federal Public Defender, 263,264-65
Federal Trade Commission (FTC), 59
Fenwick, Charles, 94
Ferree, Laura Clauson, 304
Ferren, Linda, 282
Fickling, Austin, 103
Fifth Amendment, 25 1
Fine, Susan Blondy, 304
First Amendment, 2 16-1 7,2 19-20,22 1
FISA. See United States Foreign Intelligence Surveillance Court
Fitzgerald, Sister Bridget, 207
Flannery, Thomas A., 160
Flynt, Larry, 2 12-1 3
Foreign Government Corrupt Practices Act, 173
Francese, Mike, 304
Frank, Kitty, 44
Freed, Daniel J., 100-101
Freedom Forum, 272-73,274
Freedom of Information Act (FOIA), 194
Friedman, Monroe, 136
Friedman, Paul L., 281
Frohman, A. Patricia, 84
Fuentes, Theresa, 304
Garland, Merrick, 160
Garner, Mary, 64
Garrett, Katia, 28 1, 282
Gasch, Oliver, 92, 160
Gaskins, Ed, 60
Gender Bias Committee. See Task Force of the D.C. Circuit on Gender, Race and Ethnic Bias
Georgetown Law Journal, 295
George Washington Law Review, 295
Gesell, Gerhard, 160,249
G.I. Bill of Rights, 28, 97
Ginsburg, Douglas, 160
Ginsburg, Ruth Bader, 156, 160, 173,250,269,280,28 1,295-96
Giordano, Gilbert, 60
Giuliani, Randolph W., 191
Glass Steagall Act. See Banking Act of 1933
Godin, Martha Allen, 304
Golinker, Lou, 165, 304
Great Depression, 9, 15,247
Green, May, 44
Green, John, 91, 92
Green, [Ruth] Joyce [Martha] Hens – Personal
adoptions, 99
birth, 8
brother, 7, 8,9, 11-12, 14-15,20,21, 30, 305, 307
childcare, 102, 104-1 05
childhood, 8-1 2
children, 98-100, 122, 149, 153, 305, 306, 307-308
college, 22-23,25-31,33-34
elementary school, 10-1 1, 12-14
engagement, 33
father, 1-2, 3-5, 7-8, 9, 11, 15
grandfather, maternal, 2-3
grandmother, maternal, 3
grandparents, paternal, 7
high school, 16-19
husband. See Green, Samuel
junior high school, 15
law school
George Washington, 3940,4147,269
University of Maryland, 34-35, 36-38, 3940
liberalism, 3 1-32
marriage, 96,97
mother, 2-3, 5-6, 7-8,20-21,41,47, 69
pets, 14
polio, 38-39
politics, 32-33
pregnancy, 98-99
shyness, 17
-A5-
summer job, 23-25
uncles, maternal, 3
uncles, paternal, 2
war years, 19-22
Administrative Office of the United States Court assistance, 266-69
American Academy of Matrimonial Lawyers fellow, 88
American Bar Association, 86-88
American Cancer Society trustee, 57, 88-89
appellate court experience, 244-46
bar admission
Green, [Ruth] Joyce [Martha] Hens – Professional
District of Columbia, 45,47
Virginia, 55, 76-77
“District Roundtable” radio program, 58-60
Lawyer Referral Committee chair, 60
minority members, 6 1-62
Public Information Committee service, 58, 87
Berge, Fox Arent & Layne lawyer, 48-49, 55-56
capital punishment philosophy, 229-30
Court of General Sessions of the District of Columbia judge. See Green, [Ruth] Joyce
[Martha] Hens-Superior Court of the District of Columbia judge
District of Columbia Juvenile Court nomination, 93-95
Eta Alumnae of Kappa Beta Pi Legal Sorority International, chair, 64
ethics, 85-86
Executive Women in Government member, 154-55, 156
George Washington University Distinguished Alumnae award, 1 56
inactive senior status, 299-300
Judicial Conference of the U.S., Judicial Branch Committee, 27 1-73,278-79
jury system function, 230-36
law clerks, 126, 128-30, 131-32, 165,206, 303-304
legal research, 70-7 1 , 126-28
medi at i on , 2 6 5-6 6
mentors, 82, 91
National Association of Women Lawyers, 90
National Lawyers Club founder, 88
partnership with husband, 97-98
private practice, 47-48, 69-70
Bar Association of the District of Columbia, 57-58,63,256
cases, 50-51, 52-53,54-5572-76
client base, 51-52
public relations, 27 1-77
sentencing guidelines, 236-38, 239-41
Soroptimist Club of Virginia member, 89-90
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Superior Court of the District of Columbia Chief Judge interview, 148-50
Superior Court of the District of Columbia judge, 106-1 07
adoption procedure case, 143-46
advisor, 108, 109
alimony case, 142
collegiality, 1 14-1 5, 1 16-1 9, 303
confirmation, 103-1 04
construction of courthouse, 147-48
domestic relations work, 108, 125-26
emergency period, 110-12,133-35
felony cases, 108-1 09
Gail Cobb case, 140-42
interview, 100-1 02
lemon case, 1 3 7-3 8
Merriweather case, 136-37
nomination, 102-1 03
opinions, 1 3 0-3 1, 1 3 2-3 3
reappointment, 153-54
remanded cases, 146
tax case, 13 8-40
training, 107-1 08, 1 12-14, 1 15, 1 19-22
support staff, 303
Task Force of the D.C. Circuit on Gender, Race and Ethnic Bias chair, 280-96
commendation, 295-96
controversy, 29 1-95
presentation, 2 83-84
appointment, 153, 154, 156-59
assassination threat, 172
aviation disaster case, 176-83
BCCI criminal case, 200-208
BMI antitrust case, 195-97
calendar control chair, 26 1-63
caseload, 163-65
cases to court of appeals, 241-44
cases to Supreme Court, 246-50
civil procedure, 193-94
colleagues, 160-63, 303
Corps of Engineers case, 187-88
Criminal Justice Act chair, 263-65
death penalty case, 221-29
Department of the Army case, 194-95
discrimination cases, 249-52
United States District Court for the District of Columbia judge
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federal campaign finance law cases, 2 14-2 1
Grievance Committee, 270
Hansen case, 19 1
immigration cases, 2 1 3-1 4
on lawyers, 196-97, 285
Letelier case, 174-76
libel cases, 209-13
Luevano case, 192
McDonnell Douglas Corporation case, 173-74
multiple prosecutions, 197-99
Narenii case, 17 1-73
pornography case, 197-99
programs, communal and ceremonial, 269-70
Science case, 192-93
settlement approaches, 183-88
TVA case, 187
Vietnam orphans case, 188-91
Edmund Randolph Award, 258
FBI investigation for, 254-56
United States Foreign Intelligence Surveillance Court (FISA) Chief Judge, 256-60,297, 303
Virginia cases, 77-80
wardrobe, 71
Women’s Bar Association of the District of Columbia, 62-64, 65-67, 255
president, 62, 64,91
Women’s Legal Defense Fund award recipient, 156
working hours, 80-8 1
Green, June L., 47, 64, 70, 81, 90-92, 97, 99, 156, 160, 162-63
Green, Samuel, 60,96-98, 101, 102, 103,138
children, previous marriage, 96,305-306, 307
death, 306-307
illness, 305-307
Green & Green, 98
Greene, Harold H., 104, 106, 108-109, 115, 119, 123, 147, 160
Gridley, Lily, 51
Guerra, Joe, 304
Gurne, Patricia D., 129, 156, 303
Hackman, Barbara Franklin, 155
Hahn, Gilbert, Jr., 60, 138
Hamer, Don, 129,304
Hans, Valerie, 281
Hansen, David, 278
Hansen, George, 191
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Harold H. Greene and Joyce Hens Green National Security Law Moot Court, 269
Harriman, Daisy, 32
Harris, Dorris Pencheff, 36,37
Harris, Stanley, 160
Hart, George, 160, 163, 191
Hassan, William J., 79
Haywood, Margaret, 67-68
Heatter, Gabriel, 20
Henderson, Karen, 160
Hens, Brunik, 2
Hens, Clarice Felder, 64-65, 305, 307
Hens, James Stanley, 1-2, 3-5, 7-8,9, 1 1, 15
Hens, Russ, 7, 8, 9, 11-12, 14-15,20,21, 30, 305, 307
Hens, Michal, 2
Hills, Carla, 156
Hogan, Thomas F., 160
Holtzoff, Alexander, 83
Holm, Jean, 155
Hope, Judith Richards, 269
Hopkins, Ann, 249-50
Hudgins, Edward W., 77
Hufstedler, Shirley, 101
Hunt, Nelson Bunker, 191
Hunt, William Herbert, 191
Hustler, 2 12-1 3
Huvelle, Ellen, 160
Hyde, DeWitt, 106
independent calendars, 150-52, 165-66
Jackson, Darryl, 269
Jackson, Thomas Penfield, 160
Jackson, Vicki C., 281
Jacobs, Andrew, Jr., 210,211
Johnson, Lyndon B., 101-102,279
Johnson, Norma Holloway, 160
Joy, Stephany, 128, 303
judges
children’s programs, 270
collegiality, 114-15, 116-19, 161-62
compensation, 266-68
and Congress, 277-78
insurance, 268-69
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and media, 272-76
qualities of, 301, 304
response to women lawyers, 82-83
Judicial Conference of the United States, 262-63
Judicial Branch Committee, 27 1-73,278-79
Judicial Council for the District of Columbia Circuit, 280,28691, 293
Juggins, Warren, 71
jurors, 230-3 1 , 270-71
and cameras in courtroom, 233
in death penalty case, 223-24
safety, 233,235-36
verdict nullification, 23 1-32, 233-34,238
Justice Department, U. S., 197-99,247-48
Kabatchnick, Neil, 60
Kay, Alan, 160
Keary, Ann O’Regan, 129,303
Kelly, Catherine, 44, 64
Kennedy, Henry H., Jr., 160
Kennedy, Jacqueline, 7 1
Kennedy, John F., 94,95
Kennedy, Robert, 274
Kessler, Gladys, 160
Khalil, Abdul Raouf, 204-205
King, Martin Luther, Jr., 110-1 1, 133, 134
Kintner, Earl, 49-50
Kollar-Kotelly, Colleen, 160
Korman, Milton, 106
Kronheim, Milton, 106
Kulbaski, Frank, 304
Lamberth, Royce C., 160
Larson, Cynthia, 183
law clerks, 128-30, 13 1-32, 165, 166-67,206
Laws, Bolitha, 93
Lawson, Marjorie, 95
Layne, Alvis, 49, 55-56
Lee, Hsue, 2 13-14
Letelier, Orlando, 174-75
Letts, F. Dickinson, 83
Levine, Jake, 60
Lewis, Wilma, 223
Liberty Lobby, Inc., 209
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Libman, Bob, 304
Liss, Susan, 281
Low, Susan, 129,303
Lundblad, Daisy, 13
Madole, Donald, 183
Mahoney, Daniel, 209-1 0
Marshall, Mary, 94
Martin, Thomas, 199
Mathias, Charles (“Mac”), 207
Matthews, Burnita Shelton, 84-85, 160, 163
McClannan, Elsie Yates, 303, 307
McCloskey, Paul N. (“Pete”), 2 10, 2 1 1
McDonnell, James, 173
McKenzie, Anne, 129, 304
McNamara, Marty, 60
Mecham, Ralph, 273
media, 272,273-74,275-76
Meese, Edwin, 197-98
Merit Commission, 157
Metropolitan Washington Airports Authority, 248-49
Michel, Scott, 304
Mikva, Abner (“Ab”), 160, 280-81, 283, 294
Miller, Morris, 95
minorities, 28748,291
See also Blacks; Women
Mitchell, Kim Sievwright, 304
Morgenthau, Robert, 204,207-208
Moultrie, H. Carl I, 150
multiple prosecutions, 197-99
Murphy, Charlotte, 60, 92-93
Murphy, Tim, lO6,108,112,113,114,116,117,150
Murrow, Edward R., 20
Naqvi, Swaleh, 201
National Republican Senatorial Committee, 2 16
National Review, 209,2 10
Neil, Agnes, 60
Neil, Edwin, 60
Newman, Constance, 156
Newman, Theodore R., 149
Newseum, 272
Ninth Circuit Court, 296-97
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Nixon, Richard M., 260
North, Oliver, 194
Nosworthy, Emily, 11
Nunn, Frances, 44
Oberdorfer, Louis F., 160, 189, 190, 191,241
O’Connor, Sandra Day, 296
Old Dominion Bank, 78-79
Overby, Charles, 273
PACE examination, 192, 193
Pair, Hubert, 95
Parker, Barrington D., 95, 160, 174
Pastora, Eden, 194
Perm, John Garrett, 160,280,28 1
Petersen, Todd, 282
Pharaon, Ghaith, 20 1
Pinochet, Augusto, 174, 176
pornography, 197-99
Posten, Ray, Jr., 60
Povich, Shirley, 59
Pratt, John, 92, 160
Price Waterhouse, 249-50
Pryor, William C., 103
Racketeer Influenced and Corrupt Organizations Act. See RICO statute
Randolph, Ray, 160
Ray, Elizabeth, 2 12-1 3
Reagan, Ronald, 193, 194
Reed, Ralph, 2 15
Rehnquist, William, 255, 269
Reiman, John, 304
Reno, Janet, 202,223,258
Resnick, Judith, 269
Rhinehart, Lynn, 304
Rhyne, Charles S., 92
Richardson, Elliott, 194
Richey, Charles R., 160, 280, 281
RICO statute, 170, 193,221-22,227
Rinderknecth, Emma, 3
Riss Corporation, 49, 50
Roberts, Richard W., 160
Robertson, James, 160
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Robertson, Pat, 2 10-2 12,2 14
Robinette, Glenn, 194
Robinson, Aubrey E., Jr., 160, 190
Robinson, Deborah, 160
Robinson, Spottswood W., 160,266
Robinson, Tim, 173
Rockefeller, Nelson, 208
Rogers, Judy, 160
Rorschach, Hermann, 4-5
Ross, Susan Deller, 281
Roundtree, Dovey, 65-67, 8 1
Ruiz, Vanessa, 282
Rule 11, 85
Ryan, Charles, 61
Ryan, Joseph M. F., 106, 123
Ryan, Sprightley, 304
Sanders, Barefoot, 103,272,278-79
Scalia, Antonin (“Nino”), 160, 269
Schinit, Nancy, 303
Schmidt, Nancy Lawson, 129
Segregation, 67-68
Seigel, Morrie, 59
S ei gen t ha1 er , J oh, 2 74
Sellers, Joseph, 282
Sentelle, David, 160
sentencing guidelines, 236-38,23941
sexual harassment, 25 142,286,297
Silberman, Larry, 160
Simon, Rita, 281
Sincoff, Milton, 183
Sirica, John, 160
Sloan, Virginia, 282
Slodysko, Gordon, 303
Skeens, Edward, 60
Smiley, Joan, 165, 304
Smith, John, 160
Smith, Kate, 20
Smith, William French, 193
Speedy Trial Act, 123-24
Sporkin, Stanley, 160
Staley, Kay, 64, 81
Starbucks, 222, 227
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Sullivan, Brendan, 269
Sullivan, Emmett G., 160
Superior Court of the District of Columbia, 109-1 1
case assignments, 124-26
case reportage, 145
courthouse, 147-48, 152,277-78
emergency period, 110-12, 133-35
judges’ collegiality, 1 14-1 5, 1 16-1 9, 161-62
judges’ training, 1 12-1 4, 1 15, 1 19-22
reappointments, 153-54
structure change, 105, 123
Supreme Court of the United States, 24640,253,275
Tamm, Edward, 160
Task Force of the D.C. Circuit on Gender, Race and Ethnic Bias, 280-96
controversy, 29 1-96
recommendations to Judicial Council for the District of Columbia Circuit, 284-91, 293
report, 297
Special Committee on Gender, 28 1 , 284,285,289,295
Special Committee on Race and Ethnicity, 282,284,286-87,289,295
volunteers’ reception, 297-99
Tatel, David, 160
Taylor, Elizabeth, 158
Thomas, Clarence, 160,280
Thompson, Nancy, 92,93
Thompson, William S. (“Turk”), 67
Tigar, Michael, 175-76
Title VII, 250-5 1
Tompkins, George, 183
Townley, Michael, 176
trademark law, 192
Truman, Harry S, 84, 160,278
Turner, Howard, 77
Tydings, Joseph, 157, 158
Tydings, Millard, 157
United States Congress
compensation, 2 66-6 8
and judges, 277-78
and Judicial Branch Committee, 27 1-73
United States Court of Appeals for the District of Columbia Circuit, 72, 244, 269
United States District Court for the District of Columbia, 72, 269
Gender Bias Committee. See Task Force of the D.C. Circuit on Gender, Race and Ethnic Bias
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case assignments, 166-70
Clerk’s Office, 167, 168, 169,261
collegiality, 16 1-63
criminal cases, 170
women judges, 159-60
United States Foreign Intelligence Surveillance Court (FISA), 25244,256,259-60
Urbina, Ricardo M. (“Rick”), 160
Vacarro, Jim, 60
Vietnam War, 133
Waddy, Joseph, 67
Wald, Patricia M., 160, 280, 281,291, 295
Walsh, Ethel Bent, 155
Warner, John, 158
Washington Bar Association, 67
Washington Law Reporter, 145
Wilkey, Malcolm, 160
Williams, Stephen, 160, 249, 281
Williams, Wesley, 68
Women
in college, 22, 26,27, 28
in federal government, 154-55, 156
jurists, 84
in law school, 43-46, 82
lawyers, 52, 5647,6465, 71-72, 81
impact on juries, 83
judges’ response to, 82-83
National Association of, 90
minorities, 65-67
on U. S. District Court, 159-60, 162-63
working, 24
Women’s Bar Association of the District of Columbia, 62-63, 64, 65-67,255
Wood, Harry, 60
Wood, Joe, 303
World Peace Through Law, 92
World War 11, 19-22
Wright, Skelley, 68, 160
veterans, 26-27, 28-29
Yenouskas, Joe, 304
Yost, Mark, 304
Young, Bonita, 282
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Youngdahl, Luther, 48
Young Lawyer, 87-88
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Oral History of Honorable Joyce Hens Green
Cases and Statutes
A. G. Becker Inc. v. Board of Governors of Federal Reserve System, 519 F. Supp. 602
(D.D.C. 1981), rev’d, 693 F.2d 136 (D.C. Cir. 1982), rev’d, 468 U.S. 137 (1984),
245-46
In re Air Crash Disaster at Washington, D.C., 559 F. Supp. 333 (D.D.C. 1983), 176-83
American Association for Advancement ofscience v. Hearst Corp., 498 F. Supp. 244
(D.D.C. 1980), 192
Association OfAdministrative Law Judges, Inc. v. Heckler, 594 F. Supp. 1 132
(D.D.C. 1984), 194
Avirgan v. Hull, 118 F.R.D. 252 (D.D.C. 1987), 194
BCCI Holdings (Luxembourg), S.A. v. Cluord, 964 F. Supp. 468 (D.D.C. 1997), 200-208
Brown v. Board ofEducation, 347 U.S. 483 (1954), 19
Buckley v. Valeo, 424 US. 1 (1 976), 2 16-2 1
Calcano-Martinez v. INS, 533 US. 348 (2001), 214
Caldwell v. SewiceMaster Corp., 966 F. Supp. 33 (D.D.C. 1997), 250-51
Clarazel Green v. District of Columbia, 138-40
FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999), 214-21
FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), 21 7
Foundation on Economic Trends v. Weinberger, 610 F. Supp. 829 (D.D.C. 1985), 195
Hechinger v. Metropolitan Washington Airports Authority, 845 F. Supp. 902 (D.D.C.),
aff’d, 36 F.3d 97 (D.C. Cir. 1994), 248-49
Hopkins v. Price Waterhouse, 825 F.2d 458 (D.C. Cir. 1987), 249-50
In Re Adoption of Female Infant, 107 Washington Law Reporter 337, 143-45
Lee v. Reno, 15 F. Supp. 2d 26 (D.D.C. 1998), 213-14
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Lee v. Reno, 15 F. Supp. 2d 26 (D.D.C. 1998), 213-14
de Letelier v. Republic of Chile, 502 F. Supp. 259 (D.D.C. 1980), 174-76
Luevano v. Campbell, 93 F.R.D. 68 (D.D.C. 1981), 192-93
Lurie v. Department ofthe Army, 970 F. Supp. 19 (D.D.C. 1997), 194
Merriweather case, 13 6-3 7
Narenji v. Civiletti, 481 F. Supp. 1132 (D.D.C. 1979), 171-73
National Cable Television Ass ‘n v. Broadcast Music, Inc., 772 F. Supp. 614 (D.D.C. 1991),
195, 197
O.J. Simpson case, 232
PHE, Inc. v. US. Department of Justice, 743 F. Supp. 15 (D.D.C. 1990), 197-98
United States v. BCCI Holdings, S.A., No. 1:91-cr-00655-JHG-3 (D.D.C. filed Nov. 15, 1991),
200-208
United States v. Cooper, No. 1 :99-cr-00266-JHG- 1 (D.D.C. filed Aug. 4, 1999), 22 1-29
United States v. Hansen, 566 F. Supp. 162 (D.D.C. 1983), 191
United States v. McDonnell Douglas Corp., Crim No. 79-5 16 (D.D.C.), 173-74
Public Citizen v. US. Department ofJustice, 491 U.S. 440 (1989), 247-48
Williams v. District of Columbia, 916 F. Supp. 1 (D.D.C. 1996), 251
Statutes
Banking Act of 1933,12 U.S.C. 5 227,247
Speedy Trial Act, 18 U.S.C. 5 3161, 123-24
-B2-
JUDGE JOYCE HENS GREEN
Education
University of Maryland, College of Arts and Sciences, B.A.
George Washington University National Law Center, J.D.
Posit ions
United States District Judge, United States District Court for the
District of Columbia (1979-present)
Chief Judge, United States Foreign Intelligence Surveillance Court
(1988-95)
Associate Judge, Superior Court of the District of Columbia
(1968-79) ; Presiding Judge, Family Division (1978-79)
Green & Green, Partner (1966-68)
Private Practice, D.C. and Virginia (1951-68)
Memberships and Activities
Judicial Conference of the United States, Committee on the Judicial
Branch
Chair (1997-98), National Conference of Federal Trial Judges
(American Bar Association)
Chair, Task Force of the District of Columbia Circuit on Gender,
Race and Ethnic Bias
Executive Women in Government (chair, 1977)
Fellow, American Bar Foundation
Federal Judges Association (board of directors, 1985-89)
National Association of Women Judges
Board of Advisors, George Washington University Law School
The District of Columbia Bar
Bar Association of the District of Columbia
Women’s Bar Association of the District of Columbia (president,
1960-62)
Federal Bar Association
Virginia Bar Association
-c1-
JOYCE HENS GREEN
Arlington County, Virginia, Bar Association (honorary)
Women’s Forum of Washington, D.C.
Phi Delta Phi legal fraternity
Professional Honors Include, among others,
Intelligence Under Law Award, National Security Agency (1996)
United States Department of Justice Edmund J. Randolph Award (1995)
Agency Seal Medallion, Central Intelligence Agency (1995)
Agency Seal Medallion, National Security Agency (1995)
Federal Bureau of Investigation, National Security Award (1995)
The Chief Justice’s Award (1995)
1994 Judicial Honoree of the Year, Bar Association of the District
of Columbia.
Honorary Doctor of Laws, George Washington University (1994)
Co-honoree, National Security Law Moot Court Competition, George
Washington University Law School (established 1992 and continuing
annually)
Distinguished Alumna Award, George Washington University (1989)
Woman Lawyer of the Year, Women’s Bar Association of the District
of Columbia (1979)
Women’s Legal Defense Fund Award for “Outstanding Contribution to
Equal Rights” (1976)
George Washington University Alumni Achievement Award (1975)
Publications
Green, Long & Murawski , “Dissolution of Marriage” (McGraw-Hill)
1986, and supplements
Green & Long, “Marriage and Family Law” (McGraw-Hill) 1984, and
subsequent supplements
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JOYCE HENS GREEN
International
October 1995. Judicial- speaker for the U.S. Information Agency
program at Militia Academy in Minsk, Republic of Belarus. (Twoweek teaching assignment re law enforcement and the U.S. criminal
Justice system).
Personal
Judge Green is the widow of Samuel Green, Esq., and has three
children: Michael, June and James
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JENNIFER M. PORTER
Ms. Porter is a founding member of Gurne, Porter & Baulig, and PLLC\ where her
practice focuses on representing and advising small and medium sized businesses and non-profit
organizations. She advises and counsels educational and health care organizations in a wide
variety of matters including compliance audits, contract reviews, and regulatory matters. Prior to
joining the firm in 2000, she was a partner at Andrews & Kurth, a Texas based law firm.
Ms. Porter was President of the Women’s Bar Association of DC (1 989-90) and the
Women’s Bar Foundation (1 993-96); she served as Treasurer of the Bar Association Foundation;
Chair of the DC Bar Nominations Committee and was a member of Ethics Committee and the
Steering Committee for the DC Bar’s Summit on Women in the Legal Profession.
Ms. Porter graduated from the George Washington University Law School in 1983 and
received her undergraduate degree from the University of Queensland in Brisbane, Australia.
Prior to attending law school, Ms. Porter was an officer of the Australian Department of Foreign
Affairs and served at Australian Embassies in Manila and Washington DC.
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